New execution framework for Biodiversity Convention adopted

Biodiversity. Adonis blue (Polyommatus bellargus) female 2, Charles J. Sharp. Creative Commons.

Hobart, 28 December (Lim Li Lin) – The Kunming-Montreal Global Biodiversity Framework (GBF) under the Convention on Biological Diversity’s (CBD) was adopted in a package together with five other linked decisions in the early hours of the morning on 19 December after protracted negotiations.

This took place at the fifteenth meeting of the Conference of the Parties (COP15) in Montreal held from 7 to 19 December.  COP15 was originally to take place in Kunming, China in 2020 but COVID-19 led to its postponement, and the eventual venue in Montreal where the CBD Secretariat is located.

The GBF focuses the implementation of the CBD up to 2030 on its four Goals and 23 Targets.

The agreement on the framework was marred by its adoption by the Chinese Presidency of COP15, over objections by the delegate from the Democratic Republic of Congo (DRC), one of the world’s most biodiverse countries being home to the second largest tropical rainforests located in the Congo Basin.

(Earlier, halfway through the COP15, developing countries also walked out of negotiating rooms in protest at the lack of progress in discussions on the provision on financial resources.)

The DRC said that it was unable to support the adoption of the GBF, because despite developing country demands for a dedicated Global Biodiversity Fund to be established by COP15, this was not part of the agreed outcomes.

More than 70 developing countries, including all of the Africa Group, had demanded for a new fund, under the authority of the COP, to be set up by COP15 (see ‘Developing countries, in show of unity, call for new biodiversity fund’, 14 December 2022).

Developed countries were firmly opposed to this.

A compromise proposal by Colombia, Chile, Costa Rica, Mexico and Peru was to set up a Trust Fund under the Global Environment Facility (GEF) instead, and this proposal was reflected in the penultimate text. However, this is seen by most developing countries as inadequate, as financial flows to developing countries through the GEF are beset with problems from decades of experience.

A last-minute further compromise introduced a sunset clause in 2030 to the new Trust Fund under the GEF, unless otherwise decided by the COP. The compromise also opened the door for consideration of a stand-alone Global Biodiversity Fund under the authority of the COP.

In addition, a multilateral mechanism for benefit sharing of digital sequence information (DSI) of genetic resources, including a global fund, was established. The fund decision in 2030 would decide if it was an adequate entity to receive and disburse revenue from the multilateral mechanism.

Uproar over process of GBF package adoption

The COP15 President had informed the plenary that he would adopt the decisions one by one, and then adopt the package of six decisions (the GBF package) as a whole. He first tabled the decision on capacity building and development and technical and scientific cooperation for adoption, and this is when the DRC objected and asked for the GBF to be placed in brackets since that had not been adopted yet.

Mexico then took the floor to argue for the adoption of the GBF as a package without any changes. The delegate said that a perfect text will never exist, and that perfect is the enemy of the good. She further said that it was her birthday the next day and that she would like to have the GBF as her present. This was followed by prolonged applause from the floor, and from the podium.

CBD Secretariat staff and the COP15 Presidency then furiously consulted on the podium.

When the COP15 President, China’s Minister of Ecology and Environment Huang Runqiu, resumed the meeting he announced that he had heard the arguments from Mexico and the acclamation from the floor, and was therefore proposing the adoption of the whole package and quickly gavelled this decision without a pause.

The stunned plenary gave way to other African countries expressing their unhappiness with the manner in which the GBF package was adopted. Cameroon objected to the President’s force of hand and for twisting the procedure that he had previously announced.

Uganda raised a point of order and questioned whether its adoption was in accordance with the Rules of Procedure, as a Party had openly objected, and the Rules of Procedure require consensus decision-making. If not consistent, it said, it becomes a “fraud”.

The legal advisor of the CBD was given the floor to explain the Rules of Procedure. He said that “what happened today was free from any mistake in my legal opinion”, as there was no formal objection from the DRC, only some comments, and “what the President had done was consistent with the rules of procedure”.

The delegate from the DRC responded to say that “My statement, that of my country, through my voice, was formal opposition”.  And to the great astonishment of the entire world, “we resorted to violence against our text” and that “history will never forgive us for it.”

Uganda also took the floor again and said that the adoption was a “coup d’état against the sovereign COP15”. He said that “we do not accept the manner and the spirit under which the gavel fell in total disregard of the Rules of Procedure, the spirit of the Convention, the tenets of multilateralism and the best practices for international legal jurisprudence”. He said that “due procedures should have been given time, and Parties’ should have been given their sovereign right to exercise their rights under the Convention,” and insisted that his reservation be put on record to avoid setting a bad precedent for future COPs.

Later that evening at the final plenary session on 19 December, the DRC Environment Minister Ève Bazaiba took the floor, reportedly after heavy lobbying to soften her stance to “make some clarifications”, as the Chinese COP President put it. She acknowledged that the GBF had been adopted in a package with five other decisions, and spoke of “truth, equity and justice” in the process of adoption.

Minister Bazaiba expressed the DRC’s sovereign right to make reservations regarding the resource mobilization target and decisions related to funding and the financial mechanism. She asked for this to be clearly placed on record and included in the final report of COP15. This move reconciled the DRC’s objection with the adoption of the GBF package.

In the end, tensions over the Russian war in Ukraine, unfolded by proxy though heated disagreements over the selection of Central and Eastern European (CEE) COP Bureau members, held up the final closing plenary session, and prevented COP15 from closing. Russia had insisted on a secret ballot to elect CEE Bureau members as it wanted a seat on the Bureau and accused other European countries of blocking its selection in the regional group process.

Due to a lack of quorum because of the late hour of the closing plenary, it was not possible to vote. As such, COP15 was merely suspended at around 1.00 am on 20 December, and a third meeting of COP15 will have to be convened to resolve this issue and adopt its final report.  A largely ceremonial and procedural (and mostly virtual) first session of COP15 was held in Kunming in 2021 to hand over the Presidency from Egypt to China. COP15 had been scheduled to be held in Kunming in 2020 but COVID-19 disrupted this.

An actual stand alone in-person meeting in not expected to be held to resolve this issue and formally close COP15; it remains to be seen how this would be done.  Meanwhile a short COP decision tabled by the COP15 President requested current Bureau members and the Chairs of the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) and the Subsidiary Body on Implementation (SBI) to extend their term until this matter is resolved. 

Assessment of outcomes

Much hype had surrounded the GBF, with media reports touting a Paris Agreement (on climate change) moment for biodiversity. Yet the precursor to the GBF, the Strategic Plan and its Aichi Targets (2010-2020) were negotiated with little fanfare and through the normal work streams of the CBD and COP. Unlike the Paris Agreement under the UNFCCC, which is a legally binding international treaty, the GBF was adopted as an Annex to a COP decision, by Parties who are legally bound by the CBD, and therefore obliged to implement it.

This hype was generated in part due to the failure to achieve any of the Aichi targets, and the determination of the international community to take much more serious action because of the growing scientific evidence and reports on the biodiversity crisis. However, the GBF, while meant to focus on implementation of the CBD, also cherry picks its elements, raising fears that the implementation will be skewed by the intense political focus on the GBF.

Not to be discounted was also that the developed countries were using this opportunity to shift responsibilities onto the developing countries, as was the case with the Paris Agreement on climate change. Most of the world’s remaining biodiversity is in developing countries, and as such the burden for action lies heavily on them. At the same time, the developed countries were pushing strongly for an enhanced mechanism on planning, monitoring, reporting and review, while far from adequately meeting the demands of developing countries on the quantum of and mechanism for financial flows.

As such, entrenched North-South fights pervaded the negotiations, with developing countries insisting on the Rio 1992 bargain and the principle of common but differentiated responsibilities. (The 1992 Summit on Environment and Development or Earth Summit in Rio de Janeiro celebrated the conclusion of the Rio Declaration of Principles, Agenda 21 and three “Rio Conventions” on biodiversity, combating desertification and climate change.)

Resource mobilization issues dominated throughout as a strong demand by developing countries for developed countries to meet their legally binding obligations to provide financial resources to them under the CBD (see upcoming article).

The other major North-South issue was access and benefit sharing of digital sequence information of genetic resources. Since the Nagoya Protocol on access and benefit sharing of 2010, new technological developments have meant that the physical genetic resource no longer needs to be accessed, thus potentially undermining ABS rules. As such, developing country Parties have been forcefully arguing to include DSI, and to work out a solution for ABS rules to apply (see ‘South successfully defends benefit sharing objective, equity in One Health,’ 23 December 2022).

The enhanced multidimensional mechanism on planning, monitoring, reporting and review that was finally agreed includes seven elements:

national biodiversity strategies and action plans (NBSAPs) aligned with the GBF and including national targets,

national reports,

global analysis of information to assess national contribution to the GBF,

global review of collective progress in the implementation of the GBF including on means of implementation,

voluntary peer reviews,

further development and testing of a forum for voluntary county reviews, and

information on non-state actor commitments.

This is much enlarged from the CBD’s requirements of NBSAPs and national reports.

A controversial section known as “B bis” was also drafted by the Co-Chairs of the Open-Ended Working Group on a Post-2020 GBF. This section was initially created to house the multiple references across the text to various principles and approaches, such as the Rio Principles and rights-based approaches, thus ‘decluttering’ the text. Many raised fears that important principles would be housed there, and not operationalized in the text and that only the goals and targets had indicators for monitoring its implementation. Heated debate also took place over what the appropriate content of that section should be, and whether it should be called fundamental premises, or premises or principles, or guidelines and approaches.

In the end, the new section C was relegated to ‘Considerations for the implementation of the framework’ and is a laundry list of issues including, among others:

Contribution and rights of indigenous peoples and local communities,

Different value systems,

National circumstances, priorities and capabilities,

Collective effort towards the targets,

Right to development,

Human rights-based approach,

Fulfilment of the three objectives of the Convention and its Protocols and their balanced implementation,

Consistency with international agreements or instruments,

Principles of the Rio Declaration,

Inter-generational equity,

Cooperation and synergies, and

Biodiversity and health.

The GBF could be seen as a necessary compromise given very entrenched positions and vested interest among the Parties. Its Mission to “take urgent action to halt and reverse biodiversity loss to put nature on a path to recovery…” is indeed laudable. However, conservation groups were disappointed with the weak conservation targets, which may not amount to enough to achieve the GBF’s Mission and Vision, and implementation of the GBF remains a concern.

Southern justice-oriented groups condemned the fact that the GBF was not transformational, and therefore not ambitious, as it does not address the root causes of the biodiversity crisis in a systemic way to bring about real transformational change.

Language in the GBF targets on the rights of Indigenous Peoples and local communities (IPLCs), on gender equality, on participation which includes access to justice by IPLCs, and the protection of environmental human rights defenders were heralded as major wins by civil society.

In particular, language on respecting, inter alia, the roles, knowledge, culture and rights of IPLCs was well reflected in the GBF. In addition, in the conservation targets on spatial planning and protected areas, there is safeguard language with regard to respecting the rights of IPLCs. The customary use of biodiversity by IPLCs is also safeguarded in the targets.

The issue of protected areas had been hugely controversial with a so-called ‘High Ambition Coalition for Nature and People’ comprising more than 100 countries, and large conservation organisations pushing for an increase in protected areas to 30% by 2030. This was met by a huge push-back by IPLCs and civil society organisations arguing that colonial “fortress conservation” has resulted in massive human rights violations of IPLCs.

In this regard, the language of the target is now “Ensure and enable that by 2030 at least 30 per cent” of all areas is “effectively conserved and managed through ecologically representative, well-connected and equitably governed systems of protected areas and other effective area-based conservation measures, recognizing indigenous and traditional territories recognizing indigenous and traditional territories…”

In the new section C however, under “Contribution and rights of indigenous peoples and local communities”, the same recognition for the rights of local communities under the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) was deleted, although the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is recognised.

These gains in the recognition of the rights of IPLCs could however be systematically undermined by the failure of the GBF to seriously tackle the systemic issues driving biodiversity loss. Instead, governments seem to have ceded their public responsibilities to the private sector.

The target on regulating the corporate business and finance sectors is miserably weak without mandatory requirements, accountability measures or legal responsibility for damage done. Agribusiness interests were also behind the side-lining of the precautionary approach in relation to new technologies (see separate article titled: ‘Biodiversity meeting agrees on limited action on technology and synthetic biology’, 27 December 2022).

The GBF has also opened the door wide to corporate and market interests, inviting private, blended and “innovative” finance to provide financial resources, without any safeguards. This helps developed countries to avoid their legal obligations under the Convention to provide new and additional financial resources.

Market-based mechanisms such as biodiversity offsets and credits, and offsetting approaches such as Nature-based Solutions are included (see upcoming article on climate change and biodiversity). In addition, the governance of the GEF Trust Fund for the GBF would be open to influence by the unaccountable private sector and philanthropic foundations. Private sector “commitments” on action also provide another escape hatch for governments to avoid their CBD obligations.

Yet, the crux of the issue remains unaddressed. Resource extraction from developing countries that began since the colonial era and which continues today, driven by corporations, rich countries and global elites have caused the biodiversity crisis. Developed countries have become rich, and overconsumption by the rich world is causing biodiversity destruction in poor countries.

The fundamental issue of justice and equitable fair shares regarding the sustainable use of biodiversity has largely been ignored, save for vague language to “reduce the global footprint of consumption in an equitable manner, including through halving global food waste, significantly reducing overconsumption and substantially reducing waste generation, in order for all people to live well in harmony with Mother Earth.”

This was forcefully expressed by the delegate from Namibia to the plenary session, who said that “colonial injustice” is the “origin of all of the problems that we have encountered in this Convention and in the relationship between humanity and biodiversity.” He stressed the need to acknowledge that the “global economic and financial architecture that came out of the violence of colonization, of resource extraction, of plantation agriculture” has driven markets and manufacturing for “the countries that are today rich and control the resources of the world”. He further emphasised the need for “a much more comprehensive and holistic solution than what we have managed to craft in this GBF”

- Third World Network