Biological Diversity:
Issues Related to the Convention on Biodiversity
Susan R. Fletcher
Senior Analyst in International Environmental Policy
Environment and Natural Resources Policy Division
May 15, 1995
95-598 ENR
CONTENTS
SUMMARY
BACKGROUND
INTERNATIONAL ACTION
RELATED CONGRESSIONAL
ACTIVITY
SUMMARY
As human activity continues to spread to the furthest corners of the
earth, natural areas are changed and modified, resulting in increasing and widespread
extinctions of plants, animals, and other types of species. Currently, many experts
believe such extinctions are occurring at the fastest rate in human history, and perhaps
the fastest rate since the extinction of dinosaurs 65 million years ago. This loss of the
Earth's biological diversity is said to be rapidly accelerating as desertification,
deforestation (especially in the tropics), degradation of oceans and water resources,
atmospheric change, and other environmental changes continue at a rapid pace. Consequences
for human welfare include the loss of species that could provide future medicines, crops,
and the basis for biotechnology research, as well as disrupting ecosystems that support
rainfall cycles, control floods, and affect basic global systems such as climate.
A global treaty on biodiversity was opened for signature at the
Earth Summit in June 1992, but the United States refused at that time to sign it.
President Bush cited concerns about protection of intellectual property rights, and
provisions on financial assistance to developing countries. Over 150 nations signed the
treaty, leaving the United States as the only developed country not signing it, and
relatively isolated in its position. However, on June 4, 1993, President Clinton, after
working with industry and environmental groups to resolve problems with some treaty
language, changed course and signed the treaty, and transmitted it to the Senate for
advice and consent, along with an interpretive statement to clarify how the United States
understands the provisions that have caused concern. After being considered by the Senate
Committee on Foreign Relations, the treaty was reported to the Senate with a favorable
recommendation for ratification in mid-1993; however, the treaty was not taken up for a
vote before the end of the 103rd Congress; it is now pending in the 104th Congress. No new
legislation would be needed to implement the treaty, as current law is regarded as
sufficient to carry out the treaty terms.
Within its own boundaries, the U.S. Government faces controversies
dealing with implementation of its Endangered Species Act, where many feel that economic
concerns sometimes conflict with saving threatened species from extinction. The issues at
home and internationally involve how nations can act effectively and cooperatively, to
provide for economic activity while preserving biological resources from degradation or
elimination. However, the measures needed to protect biological diversity may prove
difficult to achieve, given the very broad array of human activities that cause
extinctions: clearing land for agriculture or settlements, using chemicals that
unexpectedly kill various species, draining swamps and other wetlands, disposing of
various wastes, and many others.
BACKGROUND
The number of species on earth is not known. Estimates range from 5
million to over 100 million species. Some 1.5 million have been identified or studied,
including plants, insects, mammals, birds, and other life forms; the great bulk of these
are insects. Scientists now believe that thousands of species are being eliminated each
year due to human activities. Dr. E. O. Wilson of Harvard University estimates that about
17,500 species are lost per year--a rate about 1,000 to 10,000 times the rate before
modern human interventions. Nearly all scientists believe that the rapid and increasing
loss of biological diversity occurring today is unprecedented in human history, and many
argue that current extinction rates were last seen at the end of the dinosaur era.
In some cases, these losses are linked to loss of specific
ecosystems, such as clearing tropical forests or draining wetlands. In these habitats,
plant and animal species that are adapted to specific conditions of these locations are
lost. Significant declines in many American songbirds have been recorded among those
species that winter in tropical forests. Experts agree that these species face serious
loss of habitat in both the Northern and Southern ends of their ranges. In other cases, as
in the puzzling extinctions of frogs and salamanders now being reported worldwide, a
combination of factors may be responsible, such as changes in climate or the spread of
chemicals to which such species are sensitive.
Biological diversity is important to human welfare for many reasons.
Agricultural crops derive from wild species, and the high-yielding hybrids of modern
agriculture depend on continuing revitalization from wild genetic stock. Moreover, future
crop species that could be used directly or modified by biotechnology are lost when entire
ecosystems are wiped out. Plants are the basis of about 25 percent of prescription drugs
in the United States; a number of plants discovered in tropical rainforests or other wild
areas have made significant contributions to treatment of serious diseases. For example,
the rosy periwinkle found in Madagascar was the basis for a medicine that successfully
treats Hodgkin's disease and childhood leukemia. In the United States, the Pacific yew
produces a compound used in experimental treatment of cancer; this old-growth-dependent
species has been proposed for listing as endangered.
In addition, loss of species often signals the breakdown of
ecosystems that may have important roles in regulating rainfall, controlling floods,
producing oxygen and storing carbon, affecting climate (regionally and globally), and
providing other "ecosystem services."
INTERNATIONAL ACTION
In 1940, the United States became party to the Convention on Nature
Protection and Wildlife Preservation in the Western Hemisphere (known as the Western
Hemisphere Convention), under which the United States and other Western Hemisphere nations
agreed to establish protected wilderness areas and wildlife habitat.
Concern over the loss of endangered species led to the 1973
Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),
which entered into force in 1975. Some 107 nations have signed this treaty, which
regulates trade in species that are threatened with extinction or may become endangered if
trade is not regulated. Over 500 animal species alone are identified for protection under
CITES, through an outright ban on their trade or by controlled trade. The recent ban on
international trade in African elephant ivory was an action under CITES. However, this
treaty does not involve mechanisms to protect habitat, and is focused on trade regulation.
Both this convention and the Western Hemisphere Convention are implemented in the United
States by the Endangered Species Act of 1973 (P.L. 93-205), as amended.
A large number of regional and bilateral treaties are in effect to
protect specific habitat or species. Many treaties are in effect that regulate edible fish
or other marine species; others are intended to conserve wetlands or migratory birds and
their environments. However, in most cases, these treaties focus on regulating
exploitation, rather than on habitat or ecosystem conservation.
Treaty on Biodiversity
History and current
status:
The continuing and accelerating loss of habitat and species
worldwide, despite the existence of numerous treaties, led to discussion of the need for a
comprehensive global treaty to conserve biological diversity. In 1987, the United Nations
Environment Programme (UNEP) Governing Council adopted a U.S.-sponsored resolution
requesting that an ad hoc group of experts be convened to consider the need for a new
treaty.
In 1989, the UNEP Governing Council decided negotiations should
begin, and they were initiated in February 1991. At the final negotiating session in late
May of 1992, the treaty--titled the Convention on Biological Diversity--was rushed to
completion in order to meet the UNEP-imposed goal of opening the treaty for signature at
the United Nations Conference on Environment and Development (UNCED--known popularly as
the Earth Summit) held in Rio de Janeiro in early June 1992. The United States announced
just before the Earth Summit that it would not sign the treaty, citing concerns about
inadequate protection of intellectual property rights and an unsatisfactory financial
assistance mechanism. Although some other nations shared the U.S. concerns, over 150
countries signed the treaty, including the other industrialized nations.
Reversing this policy, President Clinton announced on April 21,
1993, as part of a speech on environmental policy honoring Earth Day, that the United
States would sign the convention.
On June 4, 1993, the United States signed the treaty, and the
following November, sent it to the Senate for consideration along with a statement of
understanding to clarify its interpretation of the problem provisions.(1)
No implementing legislation to carry out the terms of the treaty was sent to the Congress,
because current law was considered sufficient to meet the U.S. obligations. When
President Clinton announced in 1993 that he would sign the treaty, he also announced the
establishment of the National Biological Survey (now Service) to consolidate research and
data collection functions from various agencies, which would, as part of its mission,
carry out the inventory and data provisions of the Biodiversity Treaty.
On July 11, 1994, the Senate Committee on Foreign Relations voted
favorably, recommending ratification.(2) Minority views opposing the
treaty were registered by Senators Helms, Pressler and Coverdell. In August, a letter
expressing continuing concerns about the treaty was sent to Majority Leader Mitchell by 35
Senators, resulting in a delay in consideration on the Senate floor and the preparation of
a detailed statement responding to these concerns by the Administration. These concerns
dealt primarily with areas that were somewhat vague in treaty language, or which had been
delegated to the first conference of the parties to the treaty to resolve. Some were based
on misunderstandings of certain terms in the treaty, for example the agreement to prevent
introduction of "alien species" into a country was misunderstood to include
domestic livestock in the United States. Most of the industry organizations
that had expressed concerns withdrew their objections following the Administration's
response; however, the treaty was not taken up by the Senate before the
final adjournment of the 103rd Congress.
When the 104th Congress convened, as the political leadership of the
Senate went from Democrat to Republican, a leading opponent of the treaty, Senator Jesse
Helms, became Chairman of the Senate Foreign Relations Committee, and the treaty remains
pending before the Senate.
The treaty acquired the necessary number of ratifications and
entered into force on December 29, 1993. As of May 16, 1995, 118 nations had ratified the
treaty. The Conference of the Parties, which meets annually and is comprised of all
nations that have ratified the convention, held its first meeting November 28 - December
9, 1994 in Nassau, the Bahamas. The United States sent a delegation as observers, but
could not participate in the debate because it had not ratified the treaty.
A concern of United States industries and firms involved in
biotechnology or who depend on access to biological resources has been assuring this
continued access. In light of the early reluctance of the United States to sign the
treaty, several developing countries indicated that they might not be willing to allow
continued access to biological "prospecting" and use of their resources by
countries who did not become parties to the treaty. Press reports in April, 1995, stated
that the Environment Minister of India had told U.S. officials that if the United States
does not soon ratify the biodiversity treaty, India will seek to block American access to
biological material from developing countries.
Provisions of the Treaty:
The Convention on Biological Diversity affirms that conservation of
biodiversity is a common concern of humankind and reaffirms that nations have sovereign
rights over their own biological resources. The treaty states as major objectives the
conservation of biological diversity and sustainable use of its components; fair and
equitable sharing of the benefits arising out from the use of genetic resources; and
appropriate transfer of relevant technologies.
The major commitments made by parties to the convention are:
-- to develop national strategies, plans, etc., for
conservation and sustainable use of biodiversity;
-- to integrate, as far as possible and appropriate, the
conservation and sustainable use of biological diversity into relevant sectoral or
cross-sectoral plans;
-- to identify and monitor the components of biodiversity
and activities which have or might have significant adverse impacts;
-- to establish protected areas or areas where special
measures are needed and to regulate or manage biological resources important to
biodiversity;
-- to promote protection of ecosystems and natural habitats;
-- to promote environmentally sound and sustainable
development in areas adjacent to protected areas;
-- to establish means to regulate, manage or control risks
associated with use and release of living modified organisms from biotechnology with
likely adverse environmental effects;
-- to prevent introduction of species from outside a country
which could threaten native ecosystems or species;
-- to preserve and maintain knowledge and practices of
indigenous and local communities embodying traditional lifestyles;
-- to develop or maintain necessary legislation and other
regulatory provisions for protection of threatened species and populations;
-- to cooperate in providing financial and other support for
conservation outlined above, particularly to developing countries;
-- to maintain facilities, adopt measures for recovery of
threatened species, financial support, etc.;
-- to integrate consideration of conservation and
sustainable use into national decisionmaking;
-- to adopt economically and socially sound measures that
act as incentives for the conservation and sustainable use of components of biological
diversity;
-- to establish programs for scientific and technical
education and training in identification, conservation, sustainable use of biodiversity
and promote research that contributes to biodiversity;
-- to have programs for public education and awareness.
Other provisions deal with exchange of information, technical and
scientific cooperation, and handling of biotechnology and distribution of its benefits.
Provisions for access to genetic resources contained some issues that had been considered
problematic for the United States. The genetic access provisions include the
following:
-- authority to determine access to genetic resources rests
with the national governments and is subject to national legislation;
-- each party shall endeavor to create conditions to
facilitate access to genetic resources for environmentally sound uses by other parties,
and endeavor not to impose restrictions that run counter to objectives of this convention;
-- access is on mutually agreed terms;
-- access is subject to prior informed consent of party
providing;
-- each party is to take legislative or policy measures, as
appropriate, where necessary through financial incentives, with the aim of sharing in a
fair and equitable way the results of research and development and benefits from
commercial utilization, on mutually agreed terms.
Also problematic for the United States had been some of the
provisions on access to and transfer of technology, especially the provision on technology
transfer. The United States had wanted to assure that no open-ended commitment to share
technology on confessional terms was made in the treaty, and this was resolved by the use
of terms such as "where mutually agreed." This section of the treaty states:
Access to and transfer of technology . . . to developing countries
shall be provided and/or facilitated under fair and most favorable terms, including on
concessional and preferential terms where mutually agreed, and, where necessary, in
accordance with the financial mechanism established by [this Treaty]. In the case of
technology subject to patents and other intellectual property rights, such access and
transfer shall be provided on terms which recognize and are consistent with the adequate
and effective protection of intellectual property rights....
The convention states that the extent to which developing country
parties will effectively implement their commitments under this convention will depend in
turn on the extent to which developed country parties carry out their commitments under
this convention related to financial resources and transfer of technology. It also states
that implementation of the treaty by developing countries will take fully into account
that economic and social development and eradication of poverty are the first and
overriding priorities of the developing country parties.
The problems expressed by the United States with the financial
mechanism established by the treaty centered on the degree of control that would be
exercised by recipient developing countries, who would constitute a majority of the
conference of parties. The treaty provides that there shall be a financial mechanism for
providing resources to developing countries for purposes of this convention on a grant or
confessional basis, and that the "mechanism shall function under the authority and
guidance of, and be accountable to, the Conference of the Parties.... The operations of
the mechanism shall be carried out by such institutional structure as may be decided upon
by the conference of the parties at its first meeting."
RELATED CONGRESSIONAL
ACTIVITY
In 1973, Congress enacted the Endangered Species Act (P.L. 93-205)
which included among its provisions the implementation of both CITES and the Western
Hemisphere Convention. The Act was reauthorized through October 1, 1992, in P.L. 100-478;
the requirements of the Act remain in force, pending its reauthorization, and Congress has
appropriated funds despite the lack of authorization. The law provides for decisions by
the Secretary of the Interior to list domestic or foreign species as threatened or
endangered (for marine species most decisions are by the Secretary of Commerce), and then
requires that Federal agencies ensure that their actions not jeopardize the continued
existence of listed species or adversely modify their critical habitat. Internationally,
the Act provides for financial assistance to other countries to help them conserve
species, and regulates exports and imports of listed species. This Act has been the basis
of challenges to various types of domestic construction or development plans, such as
construction of dams or buildings, and sales of Federal resources for various uses, such
as timber harvests. It is widely viewed as one of the most powerful domestic conservation
laws, and as such has generated extensive controversy that has delayed its reauthorization
and created the possibility of major changes. (For more information, see CRS
Issue Brief 95003: Endangered Species: Continuing Controversy.)
Congress has also enacted laws governing foreign assistance,
authorizing and urging conservation of biological diversity as an objective of U.S.
assistance to other countries. Sections 118 and 119 of the Foreign Assistance Act, as
amended, were added in 1983 and include extensive provisions on the importance of such
measures. Additional measures have been included in appropriations for the U.S. foreign
assistance program.
Footnotes
l. See U.S. Congress, Senate, Convention on
Biological Diversity. Message from the President of the United States Transmitting the
Convention on Biological Diversity, with Annexes, Done at Rio de Janeiro June 5, 1992, and
signed by the United States in New York on June 4, 1993. November 20, 1993. Treaty
Doc. 103-20, 103rd Congress, First Session.
2. See U.S. Congress, Senate, Convention on
Biological Diversity. 103rd Congress, Second Session. Exec Rept 103-20. Washington,
D.C. July 11, 1994.
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