Ole Kr. Fauchald Introduction to biodiversity n What is ”biodiversity”? ä Distinguish between levels of biodiversity ä Development of biodiversity ä The concept of species n What are the benefits of biodiversity? ä To humans ä To ”life on earth” n What is the status of biodiversity? n What is the prospect for biodiversity? n Which are the main threats against biodiversity? ä Land use – eco systems ä Climate change ä Hunting and killing (including dependency on other species) ä Pollution ä Alien species (including GMOs?)

Ole Kr. Fauchald Normative issues n State sovereignty ä Modified by ”common heritage”, ”common inheritance”, ”common interest”, ”common concern”, ”common property” ä Tragedy of the commons n Cross border issues n Threatened species n The role of ”mixed” NGOs – IUCN n The debate: Conservation vs. sustainable use ä Which status should be ”conserved”? ä From a static to a dynamic view on biodiversity ä Common property? n The content and role of global declarations – soft law! ä Rights based approach? ä Slow progress based on soft law instruments and obligations

Ole Kr. Fauchald The variety of international law n Addressing individual threats ä Hunting and exploitation ä Area protection ä Land use in general ä Pollution ä Alien species n Addressing specific areas ä Terrestrial vs. marine ä Special areas (Antarctic, high seas, deep seabed, the Alps) n In situ and ex situ protection ä Formal and informal arrangements

Ole Kr. Fauchald The CBD n CBD as lex generalis? Art. 22 n CBD as an ”umbrella” or ”framework” convention? ä ”as far as possible and as appropriate” ä The quality of the commitments ä The relationship to existing treaties n The scope of the CBD n The objectives of CBD (art. 1) ä Striking a balance between developed and developing countries n The importance of processes initiated under CBD

Ole Kr. Fauchald The rules of CBD I n Lack of knowledge ä Art. 7, 12, 13, 14 - programs and cooperation n Lack of national strategies ä Art. 6 - report obligation n Need for conservation measures ä Art. 8, 9 - in situ / ex situ –Art. 8: Habitats (a-f), alien species (g-h), overexploitation (i-k), other (l) –Art. 9: Complementary, country of origin n Sustainable use ä Art. 10, 11, 14 - local communities, lack of specificity

Ole Kr. Fauchald The rules of CBD II n Sharing of benefits ä Art. 15, 16, 17, 18, 19 - create incentives, hard law, balance of interests (access / benefit sharing) ä Distinction between wild and cultivated species ä ”Prior informed consent” and ”mutually agreed terms” ä The interaction between CBD and WTO n Lack of funding ä Art. 20, 21 - link to obligations, new and additional resources, interpretative declaration ä The link to the Global Environment Falility and the Climate Change Regime

Ole Kr. Fauchald GMOs n What distinguishes GMOs from other organisms? n GMOs and genetic resources ä Benefits of GM-technology ä Problems generated by GMOs n Is there a need for special rules concerning GMOs? n The precautionary principle and GMOs ä What kinds of potential harm, and how serious is the potensial harm? ä How likely is it that serious harm will occur? ä How significant is the lack of knowledge? ä Consistency in acceptable level of risk

Ole Kr. Fauchald The main elements of the Protocol I n Advance informed agreement (art. 7) ä Scope –Only applicable to living organisms –Not applicable to GMOs intended for food, feed or processing –Procedures for exempting products from the procedure ä Risk assessment to be produced by exporter ä Not a ”minimum requirement” – countries may adopt more open systems for import ä Labelling – obligation to identify, art. 18

Ole Kr. Fauchald Main elements II n GMOs for food, feed and processing ä Biosafety Clearing-House – info concerning domestic decisions and risk assessments ä Individual decisions by potential importers ä Special rules for countries without domestic legislation ä Labelling: Art. 18 and MOP decision III/10 – no clear obligation, ”may contain” n Decision based on risks to health and environment ä Risk assessment – who is responsible? Art. 15 ä Remaining uncertainty ä What about socio-economic factors? Art 26

Ole Kr. Fauchald Main elements III n Compliance mechanism ä Limited possibility of triggering ä Started to review on the basis of national reports n Liability regime ä The challenges with regard to liability regimes in general ä Status under the Protocol – not yet finalized

Ole Kr. Fauchald Relationship to other treaties n Trade treaties ä The Agreement on Sanitary and Phytosanitary Measures vs. the Agreement on Technical Barriers to Trade vs. GATT ä Internal regulation or trade restrictions? ä The role of science and burden of proof ä The ”necessity” test n Institutions aiming at harmonization of domestic policies ä Codex Alimentarius Commission, International Plant Protection Convention, Office International d’Epizootie (World Organization for Animal Health) ä Competing or cooperating? ä Relationship to WTO