THE CONVENTION ON BIOLOGICAL DIVERSITY AND ITS PROTOCOLS AND ASSOCIATED HUMAN RIGHTS ISSUES
Submission (updated) to the Expert Consultation on Biodiversity and Human Rightsconvened by the United Nations Special Rapporteur on Human Rights and the Environment
20-21 September 2016
I.General
1.The environment, including biodiversity, and human rights are closely linked and interdependent. The United Nations Human Rights Council, in its Resolution 25/21 of 15 April 2014, recognized that the unsustainable management and use of natural resources may interfere with the enjoyment of a safe, clean, healthy and sustainable environment and that environmental damage can have negative implications, both direct and indirect, for the effective enjoyment of all human rights. The Human Rights Council further recognized thatwhile the human rights implications of environmental damage are felt by individuals and communities around the world, the consequences are felt most acutely by those segments of the population who are already in vulnerable situations. The Human Rights Council also recognized the role of human rights obligations and commitments in informing and strengthening international, regional and national policymaking in the area of sustainable development and environmental protection, and the importance of identifying best practices in that regard.
2.The Convention on Biological Diversity (CBD) serves as recognition that the Earth’s biological diversity and resources are vital to humanity’s social, cultural and economic development. Efforts to conserve and sustainably use biodiversity directly and indirectly impact multiple human rights guaranteed in the core international human rights instruments, particularly the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). When ecosystems are degraded and biodiversity diminished, this negatively affects people’s food and water supply, shelter, security, wellbeing, health, and social, economic, and cultural subsistence, development and dignity. The interrelated nature of biodiversity conservation and sustainable use and the enjoyment of human rights is reflected in the CBD, its protocols, the Strategic Plan for Biodiversity 2011-2020 as well as the various programmes and activities formed under the auspices of the CBD. Of particular relevance, also, are the measures taken to: integrate gender considerations in the implementation of the CBD and promote the rights of indigenous peoples and local communities embodying traditional lifestyles relevant to the conservation and sustainable use of biological diversity (hereinafter “IPLCs”).
II.The Instruments
(a)The CBD
3.As reflected in the preamble, by ratifying or acceding to the CBD, Parties recognize the social, economic, educational and cultural value of biodiversity and the essential need for access to and sharing of benefits arising from the use of genetic resources. Parties recognize that the conservation and sustainable use of biological diversity “is of critical importance for meeting the food, health and other needs of the growing world population”. The inclusion of these affirmations in the preamble guides the interpretation of the CBD as an instrument that takes into account the wide variety of issues arising from human interaction with the environment.
4.The contributions to and dependence on biological resources of IPLCs[1]are recognized in the preamble of the Convention thereby providing the policy rationale to support the inclusion of its Article 8(j) and related provisions. The preamble also recognizes the vital role that women play in the conservation and sustainable use of biodiversity and affirms the need for the full participation of women in the implementation of the CBD. These explicit references and emphases in the preamble denote that considerations for the human rights to life, food, health, shelter, education, culture and belief (including the right of minorities in a community to practice their culture and religion[2]), as well as the inclusion of women and IPLCs are an important part of the framework for Parties in the adoption and implementation of the provisions of the CBD, its Protocols and decisions of the Conference of Parties (COP).
5.The CBD has three objectives, as outlined in Article 1: “the conservation of biodiversity; the sustainable use of its components; and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.” The objectives of the CBD align with the principles of equality and equity, which are enshrined in the UN Charter and other core international human rights instruments, particularly UNDRIP and Article 1 of the UDHR. For example, conservation and sustainable use imply inter-generational equity, while the equitable sharing of benefits upholds the notion of fairness in the distribution of rights and obligations over biological resources. The right of all peoples to “freely dispose of their natural wealth and resources” so that they are not “deprived of their means of subsistence”[3], may also be interpreted to correspond with the objectives of the CBD, to ensure biodiversity conservation and sustainable use meet the needs of current and future generations. Similarly, Article 15, paragraph 6, Articles 16 and 19 of the Convention reflect related rights: “to share in scientific advancement and its benefits”[4] while upholding the right of everyone “to the protection of the moral and material interests resulting from any scientific [….] production of which he is the author”[5].
6.For example, Article 6(b) of the CBD calls for the integration of the conservation and sustainable use of biological diversity into relevant sectoral and cross-sectoral plans, programmes and policies, reflecting a clear intention to link biodiversity to social, cultural, and economic issues such as those related to human rights expressed in the preamble of the CBD.
7.Article 8(j) of the CBD requires Parties, subject to national legislation, to respect, preserve, and promote the wider application and equitable sharing of benefits arising from the knowledge, innovations, and practices of IPLCs with their approval and involvement as far as possible and appropriate.
8.Article 10(c) of the CBD requires that Parties protect and encourage customary sustainable use of biological resources in accordance with traditional cultural practices that are compatible with conservation and sustainable use.
9.Article 14(1) of the CBD creates a qualified obligation for Parties to introduce procedures requiring environmental impact assessments (EIAs) of proposed projects, as far as possible and appropriate, in order to avoid or minimize adverse effects on biological diversity. This obligation includes the need to allow for public participation in EIA procedures, where appropriate. Furthermore, Article 14(1) provides the framework for the Voluntary Guidelines on Biodiversity-inclusive Environmental Impact Assessment and the Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments, adopted by COP decision VIII/28 and VII/16 F respectively, which include the need to take into account the impacts on ecosystem services of social and economic value. The project-based EIA obligation promotes accountability, transparency, and responsive, inclusive and participatory decision-making on issues with possible impacts on the enjoyment of human rights.
(b)The Protocols
8.There are two major protocols adopted under the CBD: the 2000 Cartagena Protocol on Biosafety to the CBD (hereafter the “Cartagena Protocol”) and the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the CBD (hereafter the “Nagoya Protocol”).
The Cartagena Protocol
9.The Cartagena Protocol, which entered into force on 11 September 2003, is a supplementary agreement to the Convention, designed to contribute to the conservation and sustainable use of biological diversity by promoting the safe transfer, handling, and use of living modified organisms (LMOs). The Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol, was subsequently adopted in 2010 as a result of the process envisaged in Article 27 of the Cartagena Protocol. The Supplementary Protocol provides rules on liability and redress for damage resulting from the LMOs that have their origin in a transboundary movement.
10.The Cartagena Protocol reaffirms, in its preamble, the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development and recognizes that modern biotechnology has great potential for human wellbeing, if developed and used with adequate safety measures for the environment and human health. Further in the preamble, the Parties express their awareness of the growing public concern over the potential adverse effects of modern biotechnology on the conservation and sustainable use of biological diversity and take into account the limited capabilities of many countries, particularly developing countries, to cope with the nature and scale of known and potential risks associated with living modified organisms. The Parties also recognize the crucial importance to humankind of centres of origin and centres of genetic diversity.
11.Generally, by contributing to the conservation and sustainable use of biological diversity, the Cartagena Protocol adds value to global and local efforts intended to advance the enjoyment of human rights. The Cartagena Protocol addresses a number of specific issues that are closely related to human rights. For example, a number of provisions, including Articles 1 and 4 refer to the need to take into account risks to human health. Article 23 of the Protocol requires Parties to promote public awareness and participation in the safe handling and use of LMOs, and to provide for access to information and consultation in decision-making processes. In Article 26, the Cartagena Protocol recognizes the value of biological diversity to IPLCs in the context of socio-economic considerations in decision-making on the importation of LMOs. When Parties take into account socio-economic considerations in relation to their decisions on the importation of LMOs, they shall do so consistent with their other international obligations, which, in view of some stakeholders, may be interpreted to include human rights obligations.
The Nagoya Protocol
12.The Nagoya Protocol, which entered into force on 12 October 2014, was adoptedin order to effectively implement Article 15 (Access to Genetic Resources), Article 8(j) (Traditional Knowledge), and the three objectives outlined in Article 1 of the CBD. The Protocol contributes to equity and balance between the custodians of biodiversity and the users of genetic resources (e.g. scientific and business community). As recognized in the preamble to the Protocol, public awareness of the economic value of ecosystems and biodiversity and the fair and equitable sharing of the concomitant benefits with the custodians of biodiversity are key incentives for the conservation and sustainable use of biodiversity.
13.The Protocol covers genetic resources and the associated traditional knowledge that is held by IPLCs, as well as the benefits arising from utilization of both of these. It provides greater legal certainty and transparency for both providers and users of genetic resources and associated traditional knowledge. It helps to ensure the sharing of benefits, in particular where there is transboundary movement of genetic resources, and it establishes more predictable conditions for access to genetic resources and associated traditional knowledge. By enhancing legal certainty and promoting benefit-sharing, the Nagoya Protocol encourages the advancement of research on genetic resources which could lead to new discoveries for the benefit of all.
14.With respect to the rights of IPLCs, Parties to the Nagoya Protocol are required to take measures to ensure that traditional knowledge associated with genetic resources held by IPLCs as well as genetic resources over which they have established rights are accessed with the communities’ prior informed consent, and that benefits arising from their use are shared in a fair and equitable way with these communities. In doing so, Parties are to take into consideration IPLCs’ customary laws and community protocols and procedures, and as far as possible, they should not restrict the customary use and exchange of genetic resources. In addition, the Protocol, in its preamble, recognizes that it is the right of IPLCs to identify the rightful holders of traditional knowledge within their communities.
15.A number of the Protocol provisions aim to support IPLCs in order for them to benefit from the use of their traditional knowledge and/or genetic resources over which they have established rights. The Protocol provides for the involvement of IPLCs in the implementation of the Protocol. It also requires Parties to support the capacity needs and priorities of IPLCs, emphasizing the capacity needs and priorities of women. Parties are also to support the development by IPLCs, including women within these communities, of community protocols, minimum requirement for mutually agreed terms and model contractual clauses with a view to promote the fair and equitable sharing of benefits when negotiating agreements with users of genetic resources regarding access to genetic resources or associated traditional knowledge. Finally, the Protocol, in its preamble, takes note of the UNDRIP and affirms that nothing in the Protocol shall be construed as diminishing or extinguishing the existing rights of IPLCs.
16.In addition, the preamble also recognizes the links between access and benefit-sharing and sustainable development, food security and sustainable agriculture, public health, poverty alleviation and the mitigation and adaptation to climate change. The “vital role that women play in access and benefit-sharing” and “the need for the full participation of women at all levels of policy-making and implementation for biodiversity conservation” are also recognized in the preamble.
17.Finally, in describing what can be construed as benefits under the Protocol, the Annex to the Protocol lists such non-monetary benefits as: collaboration, cooperation and contribution in education and training, contributions to the local economy, research directed towards priority needs, such as health and food security, food and livelihood security benefits and intellectual property rights. These recognized benefits are relevant to the advancement of human rights to education, the right to a “standard of living adequate for health and well-being […] including adequate food, clothing and housing, and to the continuous improvement of living conditions”[6], the right to “enjoy the benefits of scientific progress and its applications”[7], and the right to “benefit from the protection of the moral and material interests resulting from any scientific production of which he is author”[8].
(c)Governing and Subsidiary Bodies
18.In examining the incorporation of human rights into the policies and programmes of the CBD and its Protocols, it is relevant to take note roles of some of principle governing bodies of the CBD: the Conference of the Parties (COP), the Conference of the Parties serving as the meeting of the Parties to the Cartagena Protocol (COP-MOP), the Conference of the Parties serving as the meeting of the Parties to the Nagoya, the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA), the Subsidiary Body on Implementation (SBI) the Working Group on Article 8(j) and Related Provisions.
19.The COP is the main governing body of the CBD and the overriding mechanism for decision-making. Collectively, the Parties negotiate and adopt provisions of the CBD, its Protocols, and Conference of the Parties (COP) decisions which give rise to a number of initiatives, mechanisms and actions that relate to human rights issues. Individually, the Parties are responsible for implementing these provisions in accordance with their specific circumstances.
20.The SBSTTA is a subsidiary body of the COP charged with providing the COP and other subsidiary bodies with timely advice relating to the implementation of the Convention. Multidisciplinary and open to participation by all Parties, SBSTTA comprises government representatives competent in the relevant field of expertise. Its functions include: providing assessments of the status of biological diversity; providing assessments of the types of measures taken in accordance with the provisions of the Convention; and responding to questions that the COP may put to the body.
21.The SBI, established in 2014 to replace a previous group on implementation, serves four functions: (a) review of progress in implementation; (b) strategic actions to enhance implementation; (c) strengthening means of implementation; and (d) operations of the Convention and the Protocols.
22.The Secretariat provides services to these bodies. It facilitates and supports Parties’ efforts to implement their obligations under the Convention and its Protocols, and to monitor and review implementation, as well as the implementation of decisions of the governing bodies. In respect to advancing human rights issues, the Secretariat has undertaken activities, in response to the wishes of the COP as expressed through its decisions, such as to ensure adequate attention to gender mainstreaming and full and informed participation of IPLCs in the decision-making and implementation processes under the Convention and its Protocols.