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the Climate Change
E. Annex ................................................................................................................................................. 31
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. The
Intergovernmental 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 and
especially representative samples of natural ecosystems‖ in Principle 2. Most importantly,
Principle 4 proclaimed that:
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:
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.
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 Preamble’s recognition of the ―intrinsic
value‖ of biodiversity, including its ecological, cultural and aesthetic aspects, it assumes human
use 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
b. Sustainable Use
Although 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.
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 human’s need not only to the present but also to the
future generations.
c. Conservation
Article 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.
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.‖
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.
One 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
a. 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.
Common heritage of mankind is a principle of international 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.‖
The 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.
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
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 Crime
Lothar 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 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
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 animal…trait.
…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.
From these generalized effects, the Technical Expert Panel then attempted to
identify specific adverse impacts global warming will most likely cause:
One could drill down still further to evaluate potential biodiversity impacts by regions. For
instance, Africa’s 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.
Although 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.
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 world’s 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
transition‖—that 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 resources
over 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
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 CBD‖s 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
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 fog — sustainable 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.‖
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 reinforcing…such 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 link – or 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 CBD‖s Subsidiary Body
on 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 Group’s 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
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 adverse
modification‖ 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 the
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.
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
liability – we 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
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 man‖s
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 alternatives
are 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
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 Africa’s 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.
The 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 Africa’s 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.
(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 -
(viii) informing one another of, and consulting one another on, matters of common interest;
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.
Section 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
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.
Section 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 Africa’s 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
The Minister of DEAT must designate monitoring mechanisms and set indicators to
determine the conservation status of various components of South Africa’s 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 other
institutions 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 Convention’s 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.
Chapter 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
Chapter 4 essentially aims to give effect to South Africa’s 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.
Chapter 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 Africa’s 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.
The 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 and
invasive 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.
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, Taiwan’s 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
The Preservation of Biodiversity & the Climate Change Page 30
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
E. Annex