Involvement of private sector actors under the Convention on Biological Diversity (CBD)

Before delving into details about private sector involvement in I BL, it is worth referring to the functioning of the regime. The CBD recognizes sovereignty over genetic resources to States in whose territory they are situated, seeking to regulate access to (including the harvest of) genetic resources. The basis for this is the prior informed consent of the providing State, to be given on mutually agreed terms, which include the provision of a fair and equitable share of benefits resulting from their use by the exploiting State. The resources regulated under the CBD comprise all genetic resources, defined as genetic material of actual or potential value for humanity. The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) now governs access to plant genetic resources explicitly intended for food and agriculture.

The main aim behind this regime is to guarantee the continued availability of these resources for humanity. Although States are assigned sovereignty over the resources, they shall facilitate access to them and not impose restrictions in breach of the CBD’s objectives. Similarly, there is a time constraint as the allocation of sovereign rights is restricted to resources collected after the CBD entered into force (29 December 1993).

The private sector plays a relevant role in the protection and management of biodiversity. The notion of private sector in this case, comprises different stakeholders such as: indigenous peoples and local communities, subnational governments, cities and other local authorities, intergovernmental organizations, non-governmental organizations, women’s groups, youth groups, the business and finance community, the scientific community, academia, faith-based organizations, representatives of sectors related to or dependent on biodiversity, citizens at large and other stakeholders.

In terms of public participation of stakeholders, their participation is encouraged and reinforced in the post-2020 global biodiversity framework. The processes are participatory, inclusive, gender responsive, transformative, comprehensive, catalytic, visible and knowledge-based, transparent, efficient, results-oriented, iterative and flexible. The 2050 Vision for Biodiversity reinforces the implementation of the 2030 Agenda for Sustainable Development. In turn, the Clearing-House Mechanism (CHM) contributes to the implementation of the Convention on Biological Diversity by promoting and facilitating scientific and technical cooperation.

The scope of application of the CBD is comprehensive, fostering harmonization across countries, aiming to protect determined species or groups of species as well as the biodiversity in a particular region. Its application, however, may lead to different issues. The FAO’s contribution to the design of the compliance and implementation of the CBD should be noted.

There are some applicable principles upon which the regime is based, such as the Sustainable Development Principle as well as the idea of global commons and the protection of world heritage. The CBD places various obligations on States based on these principles. Sometimes commitments are formulated in a manner in which they are subject to conditions, like ‘as far as possible’ and ‘as appropriate’, which are attached to the obligations. This might lead to a differential approach between developed and developing State parties. In developing States, the main biodiversity holders lack of sufficient resources to implement the norms which might water down the legally binding nature of the treaty or lead to a shallow implementation of the treaty.

Overall, the CBD started a process of international consensus-building around the question of biodiversity and the conception of biodiversity. The CBD constitutes a unique international environmental regime with an almost universal membership, a science-based and comprehensive mandate, and sound international financial support for national implementation, with processes informed by scientific and technological advice, bringing together the public sector (governments), the private sector and local communities and indigenous people.[1]

Amongst the various commitments allocated to States under the Convention, the parties should develop ‘national strategies, plans or programmes for the conservation and sustainable use of biodiversity’. According to the CBD, art 6(a), goal-setting at the national level should be incorporated into other relevant national programs, in other relevant areas, such as forestry and agricultural planning (art. 6(b)). Each State must also carry out studies to identify the components of biodiversity, overseeing components which are in need of conservation and those offering ‘the greatest potential for sustainable use’ (art. 7 (a)-(b)).

Conservation obligations in situ entail the protection of biodiversity in its natural setting through the establishment of protected areas, the management of biological resources in these protected areas, the protection of ecosystems and the maintenance of viable species populations. The CBD provides also for ex situ conservation and protection, including gene banks, captive breeding programs and zoos. Parties should undertake measures encouraging ex situ conservation by providing appropriate facilities and developing adequate spaces for species rehabilitation programmes.

  • [1] Guruswamy (n 5) at 169. 2 CBD, Article 8. 3 CBD, Article 9. 4 CBD, The Cartagena Protocol on Biosafety - Introduction, available at protocol accessed! April 2020. 5 Cartagena Protocol on Biosafety, adopted on 29 January 2000, art. 4. According to art. 37(1) the protocol entered into force on 11 September 2003, after the 50th instrument of ratification was deposited in 2003. 6 CBD, art. 1.