The Protection of Biodiversity and the Climate Change

8/6/2019 The Protection of Biodiversity and the Climate Change

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The Preservation of Biodiversity & the Climate Change Page 1

The Preservation of Biodiversity

&

the Climate Change

Supervisor: Prof. Lee, Chien-Liang

Author: Nicholas Liao, Wei-Hsiang


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A. Biodiversity under International Law Regime ................................................................................. 3

1. Background & Development............................................................................................................. 3

2. Convention on Biological Diversity .................................................................................................. 4

a. Purpose and Objective .................................................................................................................. 4

b. Sustainable Use ............................................................................................................................. 5

c. Conservation ................................................................................................................................. 6

d. Developed States v. Developing States......................................................................................... 8

3. Principles of Environmental Law Governing Preservation of Biodiversity ..................................... 9

a. Sovereignty ................................................................................................................................... 9

b. The Principle of Common Heritage of Mankind .......................................................................... 9

c. Human Rights to Environment & Biodiversity........................................................................... 10

d. International Crime ..................................................................................................................... 11

B. The Preservation of Biodiversity & the Impact of Climate Change............................................. 12

1. Scientific Fact of the Linkage of Biodiversity and Climate Change ............................................... 12

2. International Legal Response to the Climate Change and Biodiversity ......................................... 15

C. Domestic Case Study......................................................................................................................... 20

1. United States of America................................................................................................................. 20

2. South Africa .................................................................................................................................... 22

a. The Objective of NEMBA .......................................................................................................... 23

b. Bioregions and Bioregional Plans ............................................................................................... 25

c. Biodiversity Management Plans ................................................................................................. 26

d. Monitoring and Research ............................................................................................................ 27

e. Threatened or Protected Ecosystems and Species ...................................................................... 27

f. Species and Organisms Posing Potential Threats to Biodiversity............................................... 29

g. The Permit System in Terms of the NEMBA ............................................................................. 30

D. Review of Taiwans Domestic Effort on Preservation of Biodiversity ......................................... 30

E. Annex ................................................................................................................................................. 31

1. Convention of Biological Diversity ................................................................................................. 32

2. Taiwan National Report of the Biological Diversity....................................................................... 32


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A.Biodiversity under International Law Regime1.Background & Development

It is only relatively recently had the international community has begun to recognize the full

scale and seriousness of the threat posed to the natural environment by human activities, and the

need to establish a clear, coherent and comprehensive legal framework within which to cope

with the threat. Traditionally, the exploitation of natural resources has been regarded as an aspect

of national sovereignty which enable each State in principle free to exploit the wildlife resources

present within its territory. Therefore, the absence of formal legal constraints upon this process

would be likely to contribute significantly to the over-exploitation of living resources and the

degradation of natural systems.

In fact, throughout history, the voice of conservation of natural resources in connection with

legal obligation had not been totally without existence. Lyster refers to the existence of forestry

conservation laws in Babylon as long ago as 1900 BC, and to the setting aside of land in Egypt

as a nature reserve in 1370 BC. Even the use of international treaty arrangements for the

protection of wildlife now has a pedigree stretching back over a hundred years.

Ever since 20th

century, with the environmental concern raised global attention, international

community started to make effort on the protection of natural resources through institutions. TheIntergovernmental Conference of Experts on the Scientific Basis for Rational Use and

Conservation of the Resources of the Biosphere, convened by UNESCO in Paris in 1968 was an

important early landmark thorough its establishment of the Man and the Biosphere Programme,

aiming at nature conservation.

Though little attention on the protection on biodiversity, the Stockholm Declaration resulted

from the 1972 United Nations Conference on the Human Environment emphasized the need to

safeguard the natural resources of the earth including the air, water, land, flora and fauna andespecially representative samples of natural ecosystems in Principle 2. Most importantly,

Principle 4 proclaimed that:


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Man has a special responsibility to safeguard and wisely manage the heritage of

wildlife and its habitat which are now gravely imperiled by a combination of

adverse factors.

It is perhaps in the 1980 World Conservation Strategy, through its underlying theme of

sustainable development, that the real foundations for the biodiversity concept were laid. The

strategy hence was formulated by IUCN as part of a collaborative effort with UNEP, WWF,

FAO and UNESCO, established its three fundamental objectives of living resource conservation

as being:

(a)To maintain essential ecological processes and life-support systems;(b)To preserve genetic diversity and(c)To ensure the sustainable utilization of species and ecosystems.

These ideas was later followed by the 1982 World Charter for Nature. And in 1988, IUCN

joined with UNEP to embark on preparatory work for an international convention on the

conservation of biological diversity. The convention was finally opened for signature at the Rio

Earth Summit in 1992.

2. Convention on Biological Diversitya. Purpose and Objective

Article 1 of the Convention on Biological Diversity(CBD) clearly sets out two main

objectives: (a) the conservation of biodiversity and the sustainable use of its components; (b) the

fair and equitable sharing of the benefits arising out of the utilization of genetic resources. The

first part of the Article 1 reflects the earlier of stressing the interdependent character of

conservation and rational use of resources. Despite the Preambles recognition of the intrinsic

value of biodiversity, including its ecological, cultural and aesthetic aspects, it assumes humanuse and benefit as the fundamental purpose for conserving biodiversity, limited only by the

requirement of sustainability and the need to benefit future generations.

Emphasizing that this is not simply a conservation convention, the second part of Article 1

calls for appropriate access to genetic resources, appropriate transfer of relevant


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technologies, and appropriate funding. The intended beneficiaries are resource-providing

countries in the developing world which lack finance and technology to benefit from exploitation

of the genetic resources they are committed to conserving. Thus a tradeoff between conservation

and economic equity is at the heart of the convention and makes is unusual among environmental

agreements.

b. Sustainable UseAlthough the origins of the concept can be traced back to early civilization, earliest examples

of international law adopting some form of sustainable use or management of living resources

began appearing in the sixteenth century and first appeared in modern treaty form in the 1885

Convention for the Uniform Regulation of Fishing in the Rhine. The concept first appeared as a

guiding philosophy, generally applicable, as opposed to a technique which might be used for a

particular resource, in the 1980 World Conservation Strategy. In the 1992 Rio World Summit,

sustainable use had become universally accepted as the basis upon which all living resources

should be managed.

In article 2 of the Convention:

Sustainable use means the use of components of biological diversity in a way

and at a rate that does not lead to the long-term decline of biological diversity,

thereby maintaining its potential to meet the needs and aspirations of present and

future generations.

The concept is adopted by the Convention can be traced from the WCS, which describe

sustainable use as analogous to spending the interest while keeping the capital. Whereas in the

concept of sustainable development, it is generally implicating that the three pillar,

Environmental protection, social and economic development must be interdependently and

cohesively balanced in order to meet the humans need not only to the present but also to the

future generations.

Contemporary understanding of the concept in the preservation of biodiversity implies a

number of key elements:


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it implies a duty to preserve biodiversity to the extent that the resource has tobe maintained in order to ensure that there is no long-term decline;

given that the resources is biological diversity, it implies that it must bemanaged on a biological basis instead of political one;

due to the interdependence of biological systems, management of livingresources cannot simply focus on the particular species being used, it must

also consider the impact upon other species and the ecosystem as a whole;

a further result of this interdependent and the fact that it implies a duty torehabilitate or restore those denuded aspects of biodiversity which are

essential for future sustainable use;

often the use of biological resources is driven to unsustainable levels byfactors other than the number of users or the absence of proper quotas and

more fundamental causes are responsible. As a result, the use of biological

resources needs to be considered in the widest possible context and needs to

be integrated into general policy development procedures;

as it requires consideration of the needs and aspirations of future generations,it implies the principle of intergenerational equity;

as current understanding of biodiversity is such that in most cases it is notknown what level of use is sustainable, it also implies a duty to undertake

research to develop a better understanding of biological system;

given that biological systems are dynamic it implies a duty to monitor both theuse and the ecosystem itself, so as to ensure that the use remains sustainable;

this also implies that management system must be flexible; the dynamic nature of the resource also, arguably, implies that precautionary

approach to management is needed to avoid long-term decline as a result of

some unusual perturbation.

c. ConservationArticle s 5-9 of the CBD are intended to give effect to the conventions first objective of

conserving biological diversity. Article 5 deals with areas beyond national jurisdiction and calls

for co-operation between the parties directly or through competent international organizations.


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Article 6 is concerned with developing national strategies, plans or programmes reflecting the

objectives of the convention and integrating conservation and sustainable use of biological

resources into other relevant plans, etc. Article 7 calls for states to identify with biological

components are important for conservation and sustainable use, to monitor these, and to identify

and monitor processes and activities likely to have a significant adverse effect. Little more need

to be said about the provisions except that they are likely to require significant resources and

technical expertise to implement.

Articles 8 and 9 deal with in situ and ex situ conservation. The former is defined as the

conservation of ecosystems and natural habitats and the maintenance and recovery of viable

populations of species in their natural surroundings and, in the case of domesticated or cultivated

species. The latter means simply the conservation of components of biological diversity

outside their natural habitats. As the preliminary paragraph of Article 9 makes clear, ex situ

conservation, for example in zoos, is predominantly for the purpose of complementing in situ

measure.

In suitconservation, as envisaged in Article 8, involves measures to protect a wide range of

interests and components which collectively constitute the essential elements of biological

diversity. These include:

Protected Areas; Regulation and management of biological resources both inside and outside

protected areas;

Protection of ecosystems, natural habitats, and viable populations of species; Environmentally sound and sustainable development in areas adjacent to

protected areas;

Rehabilitation of degraded areas and recovery of species; Control of use and release of modified living organisms where there are likely

to have adverse environmental impacts;

Protection of threatened species and populations; Regulation or management of processes and activities which threaten

biodiversity.


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These measures to be taken do reflect a broad and comprehensive view of what constitutes

conservation; however, according to the convention, perhaps resulted from the different

capacities among member states, they are left to individual states to implement as far as

possible and appropriate. Furthermore, while many States already take measures of the kind

indicated, much will depend on how willing States prove to be in practice to extend what is

already done. It is worth emphasizing that the Convention leaves the setting of priorities and the

choice of methods to individual parties.

d. Developed States v. Developing StatesOne of the important issues when negotiating the Convention is that the question of whether

developing States will ever be capable of implementing an effective strategy for the conservation

of biodiversity. The common situation happens in developing States is that most developing

States confronted by declining terms of trade and increasing population, debts and poverty lack

both the political priority and the financial as well as technical capacity to fulfill their current

international conservation obligation. At the final stage of the negotiation of the Convention, the

general consensus is that developing States must be assisted in realizing that economic and

technological development and environmental conservation need not be in conflict, and that

sustainable development is both possible and necessary. Therefore, if we examine the meaning

behind certain provisions therein, one can discern those provision were designed for the interests

of developing States.

Article 7 of the Rio Declaration refers to the common but differentiated responsibilities of

States, and to the special responsibility of the developed States. Although the same phraseology

is not employed in the Biological Diversity Convention, it is apparent that developed and

developing States do not bear the same burdens. This accounts for the frequent references

throughout the convention to what is possible and appropriate, which will vary from State to

State. The Article of the Convention concerning the transfer of technology and financial

resources are the best evidence that meant to enhance the capabilities of developing States.

Article 15(7) requires each party to ensure the sharing in fair and equitable way of the

benefits arising from the commercial and other utilization of genetic resources with the party

providing access to such resources. Since access is of course determined solely by the party with


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sovereignty over the resources, this does little more than state that access can be granted on

terms agreed by both states. In these circumstances, the party in possession of the resource is

well placed to secure whatever benefits it seeks.

3. Principles of Environmental Law Governing Preservation of Biodiversitya. Sovereignty

As Article 3 of the CBD provides, States have the sovereign right to exploit their own

resources pursuant to their own environmental policies, and the responsibility to ensure that

activities within their jurisdiction of control do not cause damage to the environment of other

States or of areas beyond the limits of national jurisdiction. This traditional principle in

international law, sovereignty, still plays the primary role in the conservation of the biodiversity.

On the one hand, States are the most capable subject under international plane to solve the

common concern of the mankind; on the other hand, States are the primary obligation bearer in

the preservation of biodiversity.

b. The Principle of Common Heritage of MankindCommon heritage of mankind is a principle ofinternational law which holds that defined

territorial areas and elements of humanity's common heritage either cultural or natural should be

held in trust for future generations and be protected from exploitation by individual nation

states or corporations.

A number of experts disputed that this principle is a binding general principle of international

law at present stage. But at least many of them indicated that the concept offers very useful

future perspectives for the preservation of biodiversity. The importance of the principle of the

common heritage is that it should not imply free access to all and sundry, especially to biotech

firms that exploit the resources for enormous private profit.

In the report of the World Commission on Environment and Development links the common

heritage principle to sharing the responsibility to preserve. And it also indicates that it would

mean that individual nations would no longer be left to rely on their own isolated efforts to

protect species within their borders.
http://en.wikipedia.org/wiki/International_lawhttp://en.wikipedia.org/wiki/Nation_stateshttp://en.wikipedia.org/wiki/Nation_stateshttp://en.wikipedia.org/wiki/Corporationshttp://en.wikipedia.org/wiki/Corporationshttp://en.wikipedia.org/wiki/Nation_stateshttp://en.wikipedia.org/wiki/Nation_stateshttp://en.wikipedia.org/wiki/International_law


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It has been pointed out be several experts that these concepts of common heritage should not

be complicated with the rights and duties of future and present generations. But most importantly,

it has been stated that there should be a clear distinction between the property rights of certain

states over their natural resources and the global concern that is expressed with regards to the

preservation of these resources. Thus, the expression common concern of humankind was

considered to be more suitable for the preservation of biodiversity.

c. Human Rights to Environment & BiodiversityThe first description of the human right to a clean environment appeared in the Declaration

of the United Nations Conference on the Human Environment (Stockholm Declaration, June 16,

1972):

Principle 1

Man has the fundamental right to freedom, equality and adequate conditions of

life in an environment that permits a life of dignity and wellbeing, and he bears a

solemn responsibility to protect and improve the environment for present and

future generations.

One could also look at the human right to a clean environment taking the human value as a

starting point. Environmental declaration could eventually endanger life of present and future

generations. Taking the view that human life is inherently valuable, man s most fundamental

aspect is threatened: the right to life and survive as a species. Moreover, the quality of life is in

danger, deteriorating the aspect of man that makes him human: dignity.

The human right to a clean environment could be viewed as a means of countering

environmental deterioration as far as it threatens human life and as a means to safeguard human

inherent value and dignity. If man acknowledges his inherent value and dignity, the right to a

clean environment is materially justified. The human right to a clean environment is a condition

to and has its material basis in inherent human value and dignity.

Even if environmental deterioration would not be life-threatening, one could still defend that

the right to life includes the right to a living. This right implies the right to a certain quality of


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life, the right to live in dignity. Consequently, less serious environmental decline could still

violate this right to a living.

Principle 1 of the Stockholm Declaration explicitly confirmed the link between the

environment on one hand and present and future human dignity and well-being on the other hand.

Furthermore, principle 1 strengthened the link between the right to a clean environment and the

right to life.

The General Assembly of the United Nations formally adopted the Stockholm Declaration in

a Resolution. Neither the Resolution nor the Declaration itself are binding treaties. Generally, the

Stockholm Declaration is considered an authentic interpretation of the notion of human rights as

mentioned in the Preamble of the UN Charter. As such, it sets a minimum standard for the de

lege frenda of states. After the Stockholm Declaration, the evolution of a human right to a clean

environment continued. In 1974, the UN General Assembly adopted the Charter on Economic

Rights and Duties of States. This Charter declared that economic, political and other relations are

defined by the principle of common responsibility of environmental protection for present and

future generations. Furthermore, international organizations began to refer to the Stockholm

Declaration in their recommendations, programs and resolution. For example, the UNEP Nairobi

Declaration (1982) concluded that the Stockholm principles constitute a fundamental rule fo

conduct.

d. International CrimeLothar Guendling and Pat Birnie pointed out that the substantive law basis regarding

international environment crimes is still very weak, as crime should be understood as a gross

violation of current international law. To date, environmental treaties do not include express

criminal provisions. Nevertheless, the consulted experts mentioned a long list of obvious

environmental crimes. But some of them may have meant to make a progressive development of

law instead of an interpretation of positive international law.

The following conducts were considered an international crimes:


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Destruction of ecosystems, especially in a war situation like the Persian GulfWar (the latter is probably also considered an international crime according to

the Draft rules on State Responsibility of the International Law Commission);

Environmental genocide Decimating indigenous peoples; Transfrontier pollution, adversely affecting human health; Liberal policies concerning the common, allowing powerful nations to benefit

disproportionally from global property of heritage;

Nuclear test; Massive and serious nuclear pollution; Toxic waste dumping; Dumping hazardous waste in an international river; Export of banned chemicals; Trade relationships and practices which are leading to the total loss of

biodiversity in the forests and the seas, including the forced repayment of vast

foreign debts demanded from debtor countries which extent loans and real

unreasonable interests;

All policies aimed at increasing the world population; Destruction of tropical rainforests; Massive destruction of biodiversity; Gene robbery; Extinction of species; Trade in endangered species; Unsustainable exploitation of migratory species; Destroying preserved landscapes and World Heritage Areas.

B.The Preservation of Biodiversity & the Impact of Climate Change1. Scientific Fact of the Linkage of Biodiversity and Climate Change

The precise breadth and depth of potential loss of biodiversity and ecosystem resilience due

to global warming subject to scientific. It is now widely recognized that climate change and

biodiversity are interconnected, not only through climate change effects on biodiversity, but also


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through changes in biodiversity and ecosystem functioning that affect climate change. The

carbon cycle and the water cycle, arguably the two most important large-scale processes for life

on Earth, both depend on biodiversity at genetic, species, and ecosystem levels and can yield

feedbacks to climate change:

Human beings are contributing to changing regional temperatures, which in turn are

associated with changes in wild species. Therefore human activities are highly likely to be

contributing to the changes in regional temperatures, and these human-influenced temperature

patterns are significantly associated with discernible changes in plant and animaltrait.

All studies taken together demonstrate that recent climate changes seen at both the local

and nine-grid-box scales, and observed changes in wild species, are highly likely to be forced to

a considerable degree by human emission of GHG & aerosols.

The Convention on Biological Diversity Ad Hoc Technical Expert Group on Biological

Diversity and Climate Change has summarized these risks as well as evidence of observed

changes that verify both the current loss and imminence of much greater loss of biodiversity.

According to theAd Hoc Technical Expert Group, observed ecosystem modifications associated

with global warming includes: (1) changes in the timing of periodic biological phenomena (e.g.,

flowering, breeding, migration), (2) changes in species distribution, (3) changes in the form and

structure, behavior and physiology of many birds, plants and insects, (4) enlargement of the

range, frequency and intensity of pests and disease, (5) altered patterns of precipitation, floods,

drought, water temperature, stream flows and water quality which will adversely affect

biodiversity and the goods and services ecosystems provide,(6) modifications in the length of

growing seasons and alteration of species composition in high northern latitude ecosystems, (7)

increased mortality of adult penguins, and (8) alterations of weather and temperature sensitive

coastal and marine ecosystems such as coral reefs, some fish populations, and Pacific and Arctic

marine birds and mammals.

Of course, independent of climate change, biodiversity is already decreasing because of

human activity. Ecosystems loss, pollution stresses, and the invasive human spread of exotic

species into new ecosystems. Climate change is yet an additional significant pressure on already

stressed ecosystems:while there is little evidence to suggest that climate change will slow


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species losses, there is evidence that it may increase species losses. For instance, the Technical

Expert Group predicts that ecosystem services will be lost due to climate change, and with it

human welfare will suffer due to ocean warming, sea-level rise, and intense storms that will

endanger the very existence of some coastal communities and threaten other coastal communities

(those not destroyed) with the loss of the benefits of marine biodiversity, fisheries, and shoreline

protection. Wetlands, ranging from reefs, atolls, estuaries and mangroves, to prairies, tropical

and boreal forests and polar and alpine ecosystems, are natural systems especially vulnerable to

climate change because of their limited adaptive capacity, and are likely to undergo significant

and irreversible change. The panel also expects presently eroding beaches and barriers to erode

further as the climate changes and sea level rises.

From these generalized effects, the Technical Expert Panel then attempted to

identify specific adverse impacts global warming will most likely cause:

Extinction of wildlife populations may be hastened by increasing temporal

variability in precipitation; changes in phenology, such as the date of bud break of

plants, hatching, and migration of insects, birds and mammals, have already been

observed and are expected to continue; Ecosystems dominated by long-lived

species (e.g., long-lived trees) will often be slow to show evidence of change and

slow to recover from climate-related stresses. Plant communities are expected to

be disrupted. Most soil biota have relatively wide temperature optima, so are

unlikely to be adversely affected directly by changes in temperatures, although

there is lack of information on the effect of changes in soil moisture. For inland

wetlands, changes in rainfall and flooding patterns across large areas of arid land

will adversely affect bird species. The lack of thermal refuges and migratory

routes in lakes, streams and rivers, may cause contraction of the distributions of

many fish species. Species and ecosystems are projected to be impacted by

extreme climatic events. The general impact of climate change is that the habitats

of many species will move poleward or upward from their current locations.

Drought and desertification processes will result in movements of habitats of

many species towards areas of higher rainfall from their current locations. The

climatic zones suitable for temperate and boreal plant species may be displaced by


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2001,200 km poleward. The species composition of forests is likely to change

and new assemblages of species may replace existing forest types. For lakes and

streams, the effects of temperature-dependent changes would be least in the

tropics, moderate at mid-latitudes, and pronounced in high latitudes. Climate

change will have most pronounced effects on wetlands through altering the

hydrological regime.

One could drill down still further to evaluate potential biodiversity impacts by regions. For

instance, Africas important biodiversity will be threatened by climate change. Much of Africa is

forest (5 million km2), and trees and shrubs (12 million km2). Semi-arid and sub humid

woodlands and savannahs are at risk from reduced rainfall (increased fires) and more intense

land use due to population pressure. Global warming will adversely affect ecosystem services

such as water regulation, carbon sequestration, soil fertility, and habitat formation will be

affected. Sub-Saharan Africa contains unique ecosystems whose flora and fauna face risk from

climate change. Critical flora biomes include Cape Floral Kingdom, Madagascar, Cameroon, and

mountain habitats from Ethiopia to South Africa. Important fauna in danger includes savannah

and forest species (90% of worlds antelope and gazelle species are in Africa) and birds, whose

habitat and migratory patterns are in danger from climate change. Biodiversity in Africa is an

important source of food, fiber, shelter, fuel, medicine, and income from tourism. Climate

change will affect the major mammal migrations in east and southern Africa as well as bird

migration. Important, heat-sensitive African habitats, such as the mountain habitat that runs from

Ethiopia to South Africa at elevations above 2000 meters and the Cameroon mountain habitats

will be impaired as temperature increases. The South African Cape floral kingdom, with 7300

species, of which about 68% only exist there, will be changed by rainfall patterns, warming and

the potential appearance of fires due to reduced rain.

2.International Legal Response to the Climate Change and BiodiversityAlthough there is a very real link between climate change and biodiversity, and although the

major treaties addressing these two topics were concluded and signed at the same place and time,

neither treaty refers to the other; Nor do they have any conceptual linkage. In 1992, both the

CBD and the UNFCCC were concluded and signed at the UNCED held in Rio de Janeiro.


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However, the processes that led to their respective results were entirely independent. The CBD

began with work at IUCN, and proceeded under the negotiation umbrella of UNEP while the

UNFCCC proceeded independently out of work began by the World Meteorological

Organization and pushed by the Intergovernmental Panel on Climate Change and others.

In broad strokes, the UNFCCC focuses on reducing the concentration of green house gas

emissions in the atmosphere to avoid the dangers associated with rapid global warming. The

treaty, without imposing any binding targets and timetables, sought to push developed countries

to craft GHG emission reduction plans, assemble emission data and inventories, proceed with

essential research, and begin the process of agreeing on what level of anthropogenic greenhouse

gas emissions are dangerous, and then establishing specific, binding targets and timetables for

reducing GHGs to avoid reaching the dangerous levels. Underpinning the treaty was the concept

that market mechanisms should be used to minimize the cost of emission reductions. Because

GHG are dispersed throughout the worlds atmosphere within weeks of their emission, the

location of emissions, emissions reductions, or sequestrations is irrelevant to warming; it is the

total atmospheric concentration that is important. Thus, the climate change legal regime

envisioned, from the start, the trading of emissions reductions as a central implementation

approach. Some pilot concepts were included in the UNFCCC, but full-fledged market

mechanisms would be subject to further negotiations. These negotiations, which would flower

into protocols to the UNFCCC, would establish emissions targets and timetables, details of

trading regimes, and international bodies to oversee the implementation of these commitments.

The UNFCCC also recognized the common but differentiated responsibilities of all the nations

of the world. Initially, only developed nations (including the so-called economies in

transitionthat is, the countries of the former Soviet Union) would face requirements (the so-

called Annex I nations), but ultimately all nations would be required to contribute, to the extent

they were able, to the challenge of mitigating climate change. The UNFCCC also included an

additionality obligation a commitment of the developed world to provide financial resourcesover and above (i.e., additional to) existing foreign aid to help developing countries address

GHG reduction.

The international and legal regime covering biodiversity is governed by two major treaties,

the Convention to Regulate International Trade in Endangered Species of Flora and Fauna


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(CITES) and the CBD. CITES, which has been in effect for over 30 years, was put into place to

control the hunting and poaching to extinction of wild animals and plants. Because much of the

exploitation was aimed at obtaining elephant ivory, animal hides, tiger bones, rhinoceros horns,

etc. for the economic value these items could attract in the global market, CITES used a trade-

based legal regime to eliminate the markets for these animal parts. Under CITES, the party

nations agree to a list of species that are endangered, ban all importing and exporting of any

specimen of a protected species, and adopt domestic laws to enforce the trade prohibition.

The CBD takes an altogether different approach to the problem of ecosystems and

biodiversity. Instead of banning any particular activity, it seeks to preserve and protect

biodiversity by urging more widespread use of environmental impact assessments (EIAs) that

incorporate biodiversity impacts into project and program analysis. Other than EIA and

information exchange, the only substantive obligation under the CBD is a conditional one: each

Party, as far as possible and appropriate, shall in the case of imminent or grave danger or

damage, originating under its jurisdiction or control, to biological diversity within the area under

the jurisdiction of other States or in areas beyond the limits of national jurisdiction, notify

immediately the potentially affected States of such danger or damage, as well as initiate action to

prevent or minimize such danger or damage. This operational focus on using environmental

assessment and notification of danger from specific actions is supplemented by recognition of

the conflict between developing countries and indigenous peoples over ownership and control of

traditional knowledge and genetic material as well as vigorous pursuit of this intellectual

property by drug companies and other commercial ventures in developed nations. The goal of the

CBD was to bring these concerns to the forefront of discussion, with the aim of establishing rules

and principles in subsequent protocols and agreements of the Conference of the Parties to the

CBD (CBD COP).

The CBD makes no mention of climate change, although some of its provisions contain ideas

broad enough that they could be read to support efforts to mitigate or adapt to impacts of climate

change. On the other hand, the CBDs silence on climate change even though it was drafted

simultaneously with the UNFCCC, and both were signed at UNCED in Rio, undercuts any

argument that the CBD language was intended to include climate change within the ambit of the

treaty. The only direct reference in the CBD to other international law is the requirement that the


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CBD be implemented with respect to the marine environment consistently with the rights and

obligations of States under the law of the sea.

The lack of direct substantive connection between the CBD and UNFCCC has meant that

there has been no legal mandate that each community coordinate its actions with the other. As a

result, it is possible that policy adopted in one arena may conflict with or even obstruct policies

and goals in the other. For instance, because invasive alien species can be a very significant

ecological problem, it is essential that carbon sequestration measures carried out under the

Kyoto Protocol give preference to native species, and that native grasslands and wetlands not be

converted to industrial-scale carbon plantations. It is altogether possible to envision carbon

dioxide sequestration projects that diminish rather than protect biodiversity. Monoculture

afforestation or reforestation projects that maximize rapid sequestration of carbon; increased or

excessive use of pesticides, fertilizers, and herbicides; adoption of improper fire management

practices, over thinning of forests; and other intensive forestry activities would reduce species

diversity, harm ecosystem vitality, degrade forests and accelerate biodiversity loss. If projects

such as these were approved for tradable carbon reduction credits, they could attract large

amounts of capital, resulting in enormous investment in monoculture forests. Conversely,

policies adopted under the CBD with respect to ownership of knowledge could, if made without

consideration of climate change concerns, increase GHG emissions by promoting land use or

other actions that increase use of fossil fuels, the production and release of methane or the

release of N2O. Since neither regime has any mandate to incorporate the goals of the other into

its own decisions, long term commitments could be made that hinder, or even set back the efforts

of the other.

However, there is one idea common to each regime that could enable them to avoid ramming

each other like ships in a dense fogsustainable development. A strong argument can be made

that both the UNFCCC and the CBD are treaties that reside under the overarching concept of

sustainable development. Language in the UNFCCC explicitly recognizes the treaty as one

promoting sustainable development since the climate change challenge involves economics,

environment, and human welfare of present and future generations. Additionally, several Article

4 commitments are directly relevant to the CBD.


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The CBD also makes reference to sustainable development as an overarching background

theme in its regime, and this makes sense as the CBD is trying to accommodate protection of

biodiversity, ecosystems and genetic material with economic interests and with concerns for

indigenous peoplesagain, a merging of economies, environment, and human equity, the three

pillars of sustainable development. The CBDs objectives are the conservation of biological

diversity, the sustainable use of its components and the air

Thus, arguably, decision-makers within each regime could, in the name of sustainable

development, legitimately include the concerns of the other in their decisions. Although the two

treaties could be mutually reinforcingsuch mutual reinforcement is not automatic. However,

that requires moving beyond the specifics of GHGs or biodiversity to define sustainable

development to include those concerns. The principles of sustainable development articulated in

the Rio Declaration, Agenda 21, and the Johannesburg Declaration permit this, but do not in their

own terms mandate the cross-fertilization, nor do the principles announce how the ideas of

global warming and biodiversity should linkor what field takes priority if conflicts emerge.

The best that can be said of the relationship between the CBD and UNFCCC is that there is

mild, informal, sporadic evidence of each being aware of the other. In the climate change

analysis world, the IPCC has regularly included impacts of warming on ecosystems and

biodiversity in its assessment reports as one of the categories of adverse effects rapid climate

change will cause. However, biodiversity is largely missing as an analytic component of policy

prescriptions in mitigation and analysis. Moreover, the specific criteria used by the UNFCCC

COP to evaluate offset projects for carbon credits under the Kyoto Protocol do not include

biodiversity or sustainable development metrics in their rules. Academic literature on the topic of

trading is also generally silent on the subject, as is the discussion of market mechanisms.

The CBD does have one project looking at biodiversity and climate change, the Ad Hoc

Technical Expert Group on Biodiversity and Climate Change within the CBDs Subsidiary Bodyon Scientific, Technical and Technological Advice. The Ad Hoc Group actively sought the

technical input of the IPCC, which submitted a technical paper and sent a representative to the

Ad Hoc Groups meetings. The Ad Hoc Group, on behalf of the CBD, was looking to use this

project as a way to draw to the attention of the Parties to the UNFCCC the need for reducing

and mitigating impacts of climate change on coral reefs and forest biological diversity...and


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prepare scientific advice for the integration of biodiversity considerations into the

implementation of the UNFCCC and its Kyoto Protocol.

C.Domestic Case Study1. United States of America

The Endangered Species Act protects those species the U.S. Department of Interior (DOI)

Secretary lists as endangered and threatened, and protects the critical habitat the Secretary

designates as essential for the conservation of those species. The protection is generally provided

by two means. First, the statute prohibits the federal government from taking any action that

would jeopardize any endangered or threatened species or result in the destruction or adversemodification of designated critical habitat. Courts must enjoin any such actions, irrespective of

the sunk financial costs. To implement this provision, the ESA contains a biological assessment

process designed to identify federal government action that may jeopardize endangered or

threatened species or critical habitat. The first step is for the government agency that is

considering undertaking the action (including issuing a permit or license to a private party) to

request from the Department of Interior information as to whether any species which is listed or

proposed to be listed may be present in the area of the proposed actions. If, based on the best

scientific and commercial data available the Secretary of DOI or the Secretary of the

Department of Commerce determines that a species may be present, then the government

agency wishing to undertake the action, shall conduct a biological assessment for the purpose

identifying any endangered species or threatened species which is likely to be affected by the

action. If a species is likely to be affected, the Department of Interior (or Commerce, as

appropriate) must issue a biological opinion which determines, based on the best available

scientific and commercial data, whether the action would create a jeopardy or adverse

modification and whether reasonable and prudent alternatives would avoid a violation of t he

ESA. Although the government agency is not required to undertake the precise alternatives

suggested in the biological opinion, it must satisfy the ESA standard that its action not jeopardize

the continued existence of an endangered as threatened species or result in destruction or adverse

modification of critical habitat.


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The ESA also prohibits all persons, private and public, from taking an endangered species.

Prohibited action under the statute and its implementing regulations includes both direct harm to

the species and destruction of habitat necessary for the species continued survival. Both the no

jeopardy and no take proscriptions envision restricting action that has a direct, causal effect on

the species. So building a dam that will destroy critical habitat for a endangered species of fish is

barred, as is hunting an endangered species. However, the Supreme Court requires that the action

and effect not be too remote from each other. Rather, there must be an adequately close causal

link between the action and the harm, without that proximately causal connection, the statute will

not operate to intervene. As a result, the application of the ESA to federal government action that

affects GHG emissions because those emissions contribute to global warming is problematic.

Take impacts on the polar bear, for example. First, this is not a situation in which specific,

traceable, toxic air emissions are contaminating polar bear habitat. Rather, the historic

accumulation of GHG in the atmosphere is slowly warming the planet. This warming is melting

Arctic sea ice, the loss of which adversely affects polar bears. The accumulated GHGs were

emitted by the entire human population, although to be sure, the United States has been and

remains the largest emitter. So, we cannot trace any specific climate problem to any specific

action or actions. All emissions are contributing; this is the ultimate case of joint and several

liabilitywe are all liable. On the other hand, in the case of melting Arctic sea ice, this is clearly

a result of global warming, and United States actions are clearly major contributors to present

and future warming. Any injunction to require US action to stop or reduce GHG emissions will

lessen the rate and amplitude of the warming. In that sense, the action would reduce the risk of

jeopardy. Thus, under the ESA no jeopardy and adverse modification prohibitions, it could be

argued that any U.S. government action that contributes to global warming must be enjoined

unless it represents a reasonable and prudent alternative that reduces the risk of jeopardy or

adverse modification of critical habitat.

Arguably, the National Environmental Policy Act (NEPA) could provide a vehicle to link

biodiversity and climate change. It requires agencies that propose actions that could significantly

affect the human environment to prepare an environmental impact statement (EIS) as part of the

decisions making process. However, as presently construed, NEPA is purely procedural, with no

substantive bite. Although it requires full consideration of the potential impacts a proposal might


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have on the environment, and consideration of alternatives (including no action) that might

lessen or avoid the environmental impact, NEPA does not require that the agency select the least

environmental harmful path. Procedurally, the NEPA process can be combined with the ESA

biological assessment process to make information gathering and analysis more cost effective

and efficient than if done separately. However, that does not change the purely procedural nature

of the statute.

Substantively, NEPA mandates that each EIS include in its analysis of the environmental

impact of the proposed action the relationship between local sort-term uses of mans

environment and the maintenance and enhancement of long-term productivity. However, the

scope of review of this analysis is limited to a judicial determination of whether the agency

considered a reasonable range of alternatives, and whether its actual analysis was arbitrary and

capricious. In the biodiversity context means that the refusal of an agency to consider

conservation biology, habitat fragmentation, or ecosystem approaches to biodiversity impacts of

government actions is not agency error. Agency EISs under NEPA generally (1) focus on

species, rather than ecosystems, (2) address the site scale rather than the ecosystem of regional

scale; and (3) concentrate on immediate short-term impacts rather than likely future impacts.

Moreover, to challenge an EIS for its failure to consider the global warming effects of the

proposal, a citizen must demonstrate that she has standing to bring the action. This subject matter

jurisdiction hurdle can be difficult, and failure to clear the hurdle is fatal to the case. However,

plaintiffs have been able to establish standing in several instances.

Once standing is established courts may be reluctant to hear the case, opting to avoid the

issue by finding global warming to be a political question. If the court does look at the adequacy

of the EIS as to global warming, it may not insist on a rigorous review of alternatives to reduce

GHGs, as the alternatives may too varied, or involve technology forcing, which might be deemed

to be outside the range of reasonable scope of alternative analysis. Finally, even if alternativesare reasonably considered, and incorporated into the final proposal, there is no requirement in

NEPA that the selected alternative be implemented. Overall, NEPA only has value as a forum for

the gathering and review of environmental information, and even at that task it is not robust.

2. South Africa


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South Africa is internationally famous for its rich biodiversity heritage that comprises,

amongst others, many endemic animals and birds, an abundance of marine biodiversity and a

large diversity of flora populations. These biodiversity resources are however under continual

threat of exploitation and extinction. Moreover, South Africa is in the process of social,

developmental and economical reconstruction and upliftment. These considerations may place an

additional burden on biodiversity resources if the developmental needs of society are not

balanced harmoniously with the conservation needs of the environment in general, and

biodiversity resources in particular.

Having noted this, the South African government recently enacted the National

Environmental Management: Biodiversity Act 10 of 2004 (the NEMBA). The Act is currently

the main legal platform on which biodiversity conservation is based in South Africa. The

NEMBA specifically provides for management and conservation of South Africas biodiversity

within the framework of the National Environmental Management Act 107 of 1998 (the

NEMA). It also provides for the protection of species and ecosystems that warrant national

protection; the sustainable use of indigenous biological resources; and the fair and equitable

sharing of benefits arising from bioprospecting involving indigenous biological resources.

a. The Objective of NEMBAThe objectives of the NEMBA include: to provide for the management and conservation of

biological diversity within South Africa; to enable the use of indigenous biological resources in a

sustainable manner; the fair and equitable sharing among stakeholders of benefits arising from

bioprospecting; to give effect to ratified international agreements relating to biodiversity which

are binding on the country; to provide for co-operative governance in biodiversity management

and conservation; and to provide for the South African National Biodiversity Institute (the

SANBI). In fulfilling the environmental right contained in s 24 of the Constitution,

government must manage, conserve and sustain South Africas biodiversity, its components and

genetic resources, and must implement the NEMBA to achieve progressive realization of this

right. These aims and objectives correspond with those set out by the CBD and CITES.

The objectives of the NEMBA, however, reach beyond the objectives of some of these

instruments, since it also aims to provide for co-operative environmental governance practices.


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Co-operative governance is also provided for in Ch. 3 of the Constitution and the NEMA, and

essentially aims to facilitate co-operation between national, provincial and local spheres of

government, and the various line functions, or environmental departments, in each sphere.

Section 41 of the Constitution provides in this regard that:

(1) All spheres of government and all organs of state within each sphere must -

(i) provide effective, transparent, accountable and coherent government for the Republic as a

whole;

(ii) respect the constitutional status, institutions, powers and functions of government in the

other spheres;

(iii) not assume any power or function except those conferred on them in terms of the

Constitution;

(iv) exercise their powers and perform their functions in a manner that does not encroach on

the geographical, functional or institutional integrity of government in another sphere; and

(v) co-operate with one another in mutual trust and good faith by -

(vi) fostering friendly relations;

(vii) assisting and supporting one another;

(viii) informing one another of, and consulting one another on, matters of common interest;

(ix) co-coordinating their actions and legislation with one another;

(x) adhering to agreed procedures; and

(xi) avoiding legal proceedings against one another.

Co-operative environmental governance practices are specifically relevant for sustainable

biodiversity conservation efforts in developing countries where environmental governance

regimes are characterized by fragmentation. Fragmentation includes: vertical fragmentation

between the various spheres of government; horizontal fragmentation between the different line

functions, or government departments in each sphere; and fragmentation of policies, legislation,


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governance tools, processes and procedures. Fragmentation is also evident in the South African

governance regime that regulates biodiversity resources. Although the NEMBA may be regarded

as an integrated act for the regulation of biodiversity, it is observed that various other acts may

also be relevant to biodiversity management and governance. These include, inter alia, the

Genetically Modified Organisms Act 15 of 1997 (the GMOA) insofar as regulation of

genetically modified organisms (GMOs) are relevant for biodiversity conservation; all the

provisions of the NEMA as primary environmental framework legislation; the National

Environmental Management: Protected Areas Act 57 of 2003, insofar as protected areas are

concerned in conservation of biodiversity resources; and the National Heritage Resources Act 25

of 1999, insofar as cultural heritage resources form part of biodiversity conservation efforts.

Regulation authorities responsible for biodiversity conservation are furthermore fragmented in

terms of the three spheres of government and various line functions in each sphere.

This fragmented governance regime may inhibit the achievement of sustainable biodiversity

protection efforts. Co-operative governance accordingly represents a mechanism to facilitate

inter-governmental co-operation, coordination and alignment of biodiversity-related structures,

procedures, tools, legislation and policies, with the principal aim to achieve sustainable results.

In the cadre of the NEMBA objectives, the express provision of co-operative governance in

biodiversity-related governance efforts may provide a useful mechanism to enhance biodiversity

conservation and management efforts at a domestic level. These provisions may accordingly

provide for local biodiversity conservation needs even beyond the expectations contained in

international biodiversity instruments.

b. Bioregions and Bioregional PlansSection 40 of the NEMBA states that the Minister of DEAT or the Member of the Executive

Committee (MEC) for environmental affairs in a South African province, may determine a

geographic region as a bioregion for the purposes of the NEMBA if that region contains whole or

several nested ecosystems and is characterized by its landforms, vegetation cover, human culture

and history. Provision is also made for the publication of a plan for the management of

biodiversity in a bioregion. The Minister may furthermore enter into an agreement with a

neighboring country to secure effective implementation of a bioregional plan. A bioregional plan


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must contain measures for effective management of biodiversity and the components of

biodiversity in the region, and must also provide for monitoring of the plan.

Development and implementation of bioregions and bioregional plans may serve to satisfy

the requirements of, amongst others, art 5-8 of the CBD. These articles relate respectively to:

regional and international co-operation; general measures for conservation and sustainable use,

including development of plans and programmes for conservation that must also be integrated

with other sectoral or cross-sectoral plans and programmes; identification and monitoring

obligations; and in-situ conservation measures relating to the establishment of protected areas.

c. Biodiversity Management PlansSection 43 of the NEMBA allows for any person, organization or organ of state desiring to

contribute to biodiversity management, to submit to the Minister of DEAT a draft management

plan for a specified ecosystem, indigenous species, or migratory species in order to give effect to

South Africas obligations in terms of an international agreement. The Act itself is unfortunately

silent on the manner of implementation of such biodiversity management plans, and merely

states that the Minister must determine the manner of implementation of these plans. Section 45

addresses the contents of biodiversity management plans and states that such a plan must, inter

alia, be consistent with the NEMBA, the national environmental management principles, the

national biodiversity framework, any applicable bioregional plan, any municipal integrated

development plans and any relevant international agreements binding on South Africa. These

plans must further be aimed at ensuring long-term survival in nature of the species or ecosystem

to which the plan relates, and it must provide for the responsible person, organisation, or organ

of state to monitor and report on progress with implementation of the plan. Section 48 stipulates

that the national biodiversity framework, a bioregional plan and a biodiversity management plan,

must be integrated and aligned with spatial development frameworks (integrated development

plans established in terms of the Local Government: Municipal Systems Act 32 of 2000), and

any environmental implementation or environmental management plans prepared in terms of Ch.

3 of the NEMA. This is clearly an attempt to give effect to art 6 of the CBD which requires the

development of national biodiversity conservation strategies, plans and programmes which must

also be integrated and aligned with other sectoral or cross-sectoral plans, programmes and


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strategies. These plans also conform to art 8, 9 of the CBD which require measures for in-situ

and ex-situ biodiversity conservation.

d. Monitoring and ResearchThe Minister of DEAT must designate monitoring mechanisms and set indicators to

determine the conservation status of various components of South Africas biodiversity, and any

negative and positive trends affecting the conservation status of the various components. Any

person involved with such monitoring activities, apart from the Minister, must also regularly

report the results. The Minister must likewise annually report to Parliament on the information

submitted to him or her, and make such information publicly available.

The NEMBA further requires the Minister to promote research done by the SANBI and otherinstitutions on biodiversity conservation, including the sustainable use, protection and

conservation of indigenous biological resources. Research on biodiversity conservation may

include the: collection and analysis of relevant information; assessment of strategies and

techniques for biodiversity conservation; determination of biodiversity conservation needs and

priorities; and the sustainable use, protection and conservation of indigenous biological resources.

The provisions on monitoring and research correspond with arts 7, 12 of the CBD which

relate to identification and monitoring obligations on contracting parties, and the establishment

of programmes for scientific research and training. Measures to be taken by parties to CITES, as

contained in art VIII also include maintenance of records of trade in specimens of species

contained in the Conventions appendices and the preparation of periodic reports on

implementation of CITES provisions. Article VIII(8) requires this information to be made

available to the public. The NEMBA provisions on monitoring and research accordingly serve to

satisfy a number of obligations in terms of the CBD and CITES.

e. Threatened or Protected Ecosystems and SpeciesChapter 4 of the NEMBA aims to: provide for the protection of ecosystems that are

threatened or in need of protection to ensure maintenance of their ecological integrity, and for the

protection of species that are threatened or in need of protection to ensure their survival in the


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wild; give effect to South Africas obligations under CITES; and ensure that the utilization of

biodiversity is managed in an ecologically sustainable way.

Chapter 4 essentially aims to give effect to South Africas categorizing obligations under

CITES. Part 1 of the NEMBA provides for the publication of national and provincial lists of

threatened ecosystems according to certain categories, which include: critically endangered

ecosystems; less endangered ecosystems; vulnerable ecosystems; and protected ecosystems. It

furthermore provides for the identification of threatening processes in listed ecosystems in terms

of s 24(2)(b)of the NEMA relating to environmental impact assessments. The provisions of Pt 1

allow for compliance with, inter alia, arts 7-10 and 14 of the CBD. These articles provide for:

identification and monitoring measures; in-situ and ex-situ conservation measures; sustainable

use of biological diversity; impact assessment and minimization of adverse impacts on

biodiversity resources.

Part 2 provides for the listing of critically endangered species, endangered species,

vulnerable species and protected species. Section 57(1) determines that a person may not carry

out a restricted activity involving a specimen of a listed threatened, or protected, species without

a permit issued in terms of Ch. 7 of the NEMBA. This may be seen as the domestic effort to

comply with, amongst others, art 14 of the CBD and art VIII(1) of CITES - which relate to

listing of endangered biodiversity resources, enforcement of measures to prohibit trade in

specified specimens, and environmental impact assessment procedures.

As far as trade in listed threatened, or protected, species is concerned, pt 3 of the NEMBA

explicitly provides for compliance measures relating to CITES. It determines that the Minister of

DEAT must, inter alia, monitor compliance in South Africa with the provisions of CITES. It

further determines that the Minister must consult the scientific authority on issues relating to

trade in specimens of endangered species regulated by CITES, and that the Minister must further

prepare and submit reports and documents in accordance with South Africas obligations interms of the Convention. The Minister may provide administrative and technical support services

and advice to organs of state to ensure the effective implementation and enforcement in South

Africa of CITES, and may make information and documentation relating to this Convention

publicly available. In terms of s 60 of the NEMBA, the Minister must establish a scientific

authority for the purpose of assisting in regulating and restricting trade in specimens of listed


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threatened, or protected, species. The scientific authority must publish any annual non-detriment

findings on trade in specimens of listed threatened or protected species in accordance with

CITES. Part 3 may be seen as an explicit effort by the South African legislature to incorporate

most of the international obligations derived from art VIII, IX of CITES, and arts 10, 14 of the

CBD. The former articles require, amongst other things, the integration of biodiversity

conservation into national decision-making, co-operation with the private sector, designation of

scientific authorities, and prescribed authorization processes in the case of trade in classified

species.

f. Species and Organisms Posing Potential Threats to BiodiversityChapter 5 of the NEMBA aims to regulate: the prevention of unauthorized introduction and

spread of alien and invasive species to ecosystems and habitats where they do not naturally occur;

management and control of alien and invasive species to prevent and minimize harm to the

environment and to biodiversity in particular; and the eradication of alien and invasive species

from ecosystems and habitats where they may harm such ecosystems or habitats. This chapter

also aims to ensure that environmental assessments, for purposes of permits in terms of national

environmental legislation, are conducted. It is required by chapter 5 that environmental impact

assessments be conducted prior to any authorization relating to species and organisms posing

potential threats to biodiversity are issued. Section 64 states, for example, that a permit in terms

of the GMOA will only be issued insofar as an environmental assessment, provided for in

chapter 5 of the NEMBA, has been conducted. Chapter 5 requires that environmental impact

assessments be conducted prior to any authorization, relating to species and organisms posing

potential threats to biodiversity, being issued. Section 64 states, for example, that a permit in

terms of the GMOA will only be issued insofar as an environmental assessment, provided for in

Ch 5 of the NEMBA, has been conducted. Subsequent provisions in the chapter regulate:

restricted activities involving alien species; a general duty of care relating to alien species;

restricted activities involving listed invasive species; and other threats such as GMOs. Chapter 5

of the NEMBA specifically addresses South Africas international obligations on: special

protection of animal and plant species that are threatened with extinction; protection of listed

species in terms of CITES; and in situ and ex situ conservation measures. These are distilled

from, inter alia, arts 3, 8, 9, 10 of the CBD; and art VIII of CITES.


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g. The Permit System in Terms of the NEMBAThe provisions on bioprospecting, access, and benefit-sharing must be read with the

provisions of Ch 7. Chapter 7 of the NEMBA aims to provide for command-and-control type

regulation relating to biodiversity resources in the form of a permit system. The permit system

further aims to regulate permits authorizing restricted activities involving: specimens of listed

threatened, or protected, species; alien species; and listed invasive species. It also deals with:

authorization of activities regulated in terms of a notice published under s 57(2); bioprospecting

involving indigenous biological resources; and the export of indigenous biological resources for

bioprospecting or any other type of research. The remainder of Ch 7 deals with procedural and

substantive aspects of permits. These include: the permit application procedure; risk assessments

and expert evidence; the content of permits; additional requirements relating to alien andinvasive species; the issuance of integrated permits; the cancellation of permits; and appeals.

Chapter 7 serves to address obligations derived from arts 8, 9 of the CBD. The latter

provisions specifically relate to the establishment of measures to regulate in-situ and ex- situ

conservation. These provisions also correspond to arts VIII(1), IX(1)(a) of CITES that require:

measures to be taken to enforce the provisions of the Convention and to prohibit trade in

specimens in violation thereof, and the designation management authorities competent to grant

permits or certificates.

D.Review of Taiwans Domestic Effort on Preservation ofBiodiversity

Taiwan is one of countries which possess the richest biodiversity resources. Yet, the

awareness and conservation concerning biodiversity are quite slow and out-dated. In 1983, the

Council of Agriculture established the Agency of Conservation which is the first governmental

agency that supervise and govern the conservation of national resources and research task. Ever

since 1984, Taiwans six National Parks has been established gradually, and has been entrusted

to conduct the general research on the biological resource within the area. In 1992, the

Conservation and Protection of Special Biological Species Center(CPSBS) has been established

under the structure of Taiwan Provincial Government. CPSBS had conducted the first general


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survey on the biological species inside the region of Taiwan, however, due to the lack of

awareness leading to the shortage of the personnel who possess the relevant knowledge and skills

with willingness to participate in the task as well as the ignorance by the government through its

political direction, the registration of biological species in Taiwan is still insufficient, let alone,

the effort put on conservation and management.

The emphasis draw on the conservation of biological diversity share large difference in

margin between Taiwan and the international community. In Taiwan, the focus is only on the

endangered species and the research of behavior also focus only on high-grade species, plants

and agricultural insects instead of ecosystem in general. Besides, while the reserved zones were

established by the government, lack of participation by experts of sociology, economics or law

contributed to the deficiency of integration and transfields management

To promote the awareness and conservation of biodiversity, Executive Yuan in 1997

establishes the National Council for Sustainable Development Network convened by the Council

of Agriculture and in 2000 published the Taiwan National Report on the Biodiversity aimed at

promoting the conservation of biodiversity and ultimately draft the Act of Conservation of

Biodiversity in the Future.

Though efforts been put on to draft a framework domestic enactment concerning

biodiversity in accordance with the international legal instrument such as CBD, present status of

Taiwans conservation on biodiversity mainly depends on executives orders or instructions.

Besides, political ignorance on the issue of biodiversity is also the main reason why the

promotion of conservation of biodiversity is hampered. As the aforementioned, climate change

and biodiversity is interchangeable which has great impact on the environment that human lives.

The deterioration of the environment once starts, is not an easy task to recover, and even if a

large portion of the deterioration of environment, is irreparable. If the enactment and

enforcement is not implemented timely, the lost or damage of biological resources whichtreasured by the people living in this land pending this period may be irreversible beyond our

imagination.

E.Annex


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1. Convention of Biological Diversity2. Taiwan National Report of the Biological Diversity

Documents

The Protection of Biodiversity and the Climate Change