Exploring how law is made within the UN Convention on Biological Diversity


This is the first blog in our journey to demystify international law. It aims to provide an insight into how international biodiversity law is made and how international lawyers and others can influence it for the greater good. The blog is intended primarily for our law students and others interested in learning more about this area of law. Don’t worry if it includes a lot of new information for you – we will further explain the various elements and ideas throughout the series. If you have any questions or comments, please connect with us

International law: out of textbooks and into reality

As news about climate change, declining biodiversity and the state of our oceans dominates daily headlines, more and more people are learning about international environmental law. But not everyone has the opportunity to attend international meetings and experience the international law-making process first-hand. 

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A lot is written about the theory and content of international law, but less so on how it is developed in real life. Some of it happens at UN meetings in big conference centres, but a significant part of the process happens through informal discussions, smaller meetings and workshops, papers and related processes. If successful, all of this work culminates in tangible outcomes at the international level.  

In this blog, we report from the 14th meeting of the UN Biodiversity Conference, which was held over two weeks in Sharm El Sheikh, Egypt, in November 2018. Through a series of short videos, we introduce you to the international law-making process, with a focus on a draft decision on ‘conserved areas’ in which Future Law has been keenly involved.

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But first – what is the Convention on Biological Diversity? 

The United Nations Convention on Biological Diversity (UN CBD) is one of the world’s most important multilateral environmental agreements. Adopted in Rio de Janeiro in 1992, the CBD has three aims: 

  • Conservation of biodiversity,

  • Sustainable use of biodiversity, and

  • Equitable sharing of benefits arising from the use of genetic resources.

One hundred and ninety-six states are Parties to the CBD (interestingly, the US is one of the only countries that is not a party). This means that they agree to be legally bound by the Convention. A wide range of observers, including Indigenous peoples and local communities, international organisations, NGOs, academic institutions and private entities, also participate in the CBD, but Parties are the only ones that have power to adopt decisions.

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The Parties and observers meet in a different country every two years at the Conference of the Parties (referred to as a ‘COP’) to adopt decisions. Each COP decision becomes part of the body of international law under the Convention. In this blog, we use ‘UN Biodiversity Conference’ as shorthand for the full technical term – the 14th Meeting of the Conference of the Parties to the Convention on Biological Diversity (also referred to as ‘CBD COP 14’).

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Most people only hear about UN environmental agreements when COPs adopt major decisions (for example, the Paris Agreement on climate change adopted in 2015). However, most of the work happens in inter-sessional negotiations between COPs. For example, the last two-year cycle of meetings under the CBD looked like this: 

  • The 13th COP took place in December 2016 in Mexico. 

  • Working Groups and Subsidiary Bodies met in December 2017 and July 2018 to review progress in implementation and develop draft decisions for the 14th COP.

  • The draft decisions and reports generated by these inter-sessional meetings were reviewed and adopted at the 14th COP in Egypt. 

In the next cycle, the process will continue through inter-sessional meetings in 2019-2020 and the 15th UN Biodiversity Conference will be held in Beijing, China, in late 2020.

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What was on the agenda at the 2018 UN Biodiversity Conference? 

The answer is simple: a lot! There were 28 agenda items covering topics as diverse as the 2050 vision for biodiversity, sustainable wildlife management, biodiversity and climate change, marine and coastal biodiversity, invasive alien species and synthetic biology. It is next to impossible to follow all the issues at UN meetings – partly because the content of each topic is so technical and nuanced and partly because negotiations on different topics happen simultaneously.

We follow a range of issues in the CBD, but one of the agenda times in which we were closely involved at this conference was called ‘Spatial Planning, Protected Areas and Other Effective Area-based Conservation Measures’ (Agenda Item 24). We will illustrate how COPs work by focusing on how the deliberations of this draft decision unfolded.

In case this topic is new for you, we suggest first reading two blogs we have produced on ‘other effective area-based conservation measures’ (which we refer to as ‘conserved areas’):

So a draft decision on conserved areas was negotiated at the 2018 Biodiversity Conference – but how did we get there? 

Bear with us for a moment as we run you though the process to date.  

At the 10th Meeting of the Conference of the Parties (COP10) in 2010, CBD Parties adopted the Strategic Plan for Biodiversity 2011–2020 with twenty Aichi Biodiversity Targets. The Plan and Targets provide an overarching framework on biodiversity for the entire UN system. Among these, Aichi Target 11 states that: 

By 2020, at least 17 per cent of terrestrial and inland water, and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes. (Emphasis added).

Protected areas are well defined and widely used as the main tool for in situ conservation of biodiversity. However, that was the first time the term ‘other effective area-based conservation measures’ (‘conserved areas’) appeared in international law. As a new and unwieldy term, no one knew exactly what to make of it. Soon thereafter, we wondered whether it could be intelligently defined through an inclusive process to help give greater recognition to areas outside of protected areasthat contribute to the conservation of biodiversity. 

In 2014, PARKS published a paper in which we made this argument and suggested that the IUCN World Commission on Protected Areas (WCPA) establish a Task Force to do this work. (This paper is freely available at: New Steps of Change: Looking beyond protected areas to consider other effective area-based conservation measures.)

Harry Jonas (Future Law) and Kathy MacKinnon (then-Deputy Chair, now Chair of the WCPA) were asked to initiate and co-chair the Task Force. Work began in earnest in early 2016. 

Today this WCPA Task Force has over 100 members globally. It convened three technical workshops from 2016–2017 and developed a draft of Guidelines for Recognising and Reporting OECMs, which was submitted to the CBD Secretariat in January 2018. 

In February 2018 the CBD Secretariat hosted two related workshops that considered the draft IUCN Guidelines and resulted in a draft decision on ‘Spatial Planning, Protected Areas and Other Effective Area-based Conservation Measures’. Parties considered the draft decision at the inter-sessional meeting in July 2018 and forwarded it to COP14 in November 2018 for final negotiations. 

In the meantime, we also influenced the law-making process through writing and editing articles that target a CBD-oriented audience. In 2017, we published an article that focused on conserved areas and ‘territories of life’ (also known as territories and areas conserved by Indigenous peoples and local communities or ICCAs: Will other effective area-based conservation measures increase recognition and support for ICCAs?) We also guest edited a Special Issue of PARKS that brought together a number of papers about conserved areas and related issues (read a blog about that publication here). This has been a useful way to not only reflect on and learn about the issues ourselves but also to feed into and shape policy dialogues.

Tip for students: We know this information might be bewildering at first. You may wish to read the whole blog once and then re-read the more technical sections to see how everything fits together.

That sounds complicated – how else do people contribute to the law-making process during UN negotiations?

While we think of UN negotiations occurring in large rooms (as you can see in the videos), one can also influence the discussions by hosting and speaking at side events. Often held during lunch and dinner breaks or even in parallel to the negotiations, side events provide platforms for Parties and observers to launch reports, promote ideas and share recommendations. In the next video from the 2018 UN Biodiversity Conference, Harry Jonas (Future Law) frames the big picture issues around conserved areas in an event on conserved areas held at the Rio Conventions Pavilion.

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Back to the negotiations: how it happens in real-time

When preparing for the UN Biodiversity Conference, delegates have to read a lot of documents – most somehow manage to turn very important and interesting global issues into long and boring technical text. Every COP considers many agenda items, each of which is allocated to one of two Working Groups that meet in parallel for negotiations.

If certain issues are controversial, a Working Group may establish a contact group or “Friends of the Chair” (i.e., smaller groups of interested delegates to resolve the issues more quickly). These groups report back to the respective Working Group, and the Working Groups report back to the plenary. Decisions are ultimately adopted by State Parties in the plenary. Even though negotiations are officially scheduled for just six hours per day, in practice they often extend late into the night, especially if contact groups are convened to address more controversial issues.

Through the negotiation process, a draft decision will be converted to a ‘Conference Room Paper’ (CRP), which is an in-session document containing new proposals or outcomes of in-session work. Once it gets through that stage, it is converted to a “Limited distribution” (L) document before it is finally adopted in plenary as an official decision.

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By the 26th of November, the draft decision on ‘Spatial Planning, Protected Areas and Other Effective Area-based Conservation Measures’ – known by this stage in the negotiations as ‘Conference Room Paper 8’ – was ready to be negotiated. In this video, Clarissa Nina (Chair of Working Group II) announced the agenda for the day, with our agenda item coming up first. 

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Having agreed the day’s agenda, Chair Nina introduced the agenda item, stating that once agreed it will be a “landmark decision” and that it will contribute to the achievement of Aichi Target 11 and accrue multiple benefits. 

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After some deliberation, Parties agreed to review the decision paragraph-by-paragraph. On paragraph 2, which contained the all-important definition of an ‘other effective area-based conservation measure’ (conserved area), Costa Rica was the first Party to speak. After some deliberation, the definition was agreed without change. 

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After the delegates had considered the whole document, just one paragraph was still contentious. The International Indigenous Forum on Biodiversity (IIFB) had proposed a new paragraph on which Parties could not immediately agree. The Chair asked a small informal group to discuss it over lunch and present the outcome of the discussion to the Secretariat before the Working Group reconvened for its afternoon session. 

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Because there was just one paragraph within CRP 8 for Parties to review, Chair Nina decided to look at it first in the afternoon in the hope that it could be agreed quickly. The new agenda was presented and the Secretariat read the new paragraph. 

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Canada queried a number of aspects of the new paragraph and asked the IIFB for clarification. Chrissy Grant (IIFB) provided her inputs. 

With no other Parties requesting the floor, the paragraph was agreed. With that, CRP 8 was agreed and the room broke into applause. 

The agreed decision will be crucial to the futures of many thousands of conserved areas around the world. However, the negotiation process and the room where the decision was finally adopted seemed far removed from the lifeblood and colours of these areas. This paradox of the international legal process can sometimes be difficult to reconcile for those who are most passionate about tangible progress on the ground. Harry escaped to an outside section of the venue to reflect on the process and to look ahead. 

The final decision can be found here. The definition of an ‘other effective area-based conservation measure’ appears in paragraph 2 and the criteria are presented in Annex III. The decision also includes other important annexes on the integration of protected and conserved areas (I), on governance (II) and on marine and coastal areas (IV). Together, this COP decision (14/8) is arguably the most important decision on in situ conservation since the Programme of Work on Protected Areas was adopted in 2004. More images from the day, including of the Secretariat, the small breakout group, IIFB colleagues and the IUCN negotiating team are available here

Getting the news out there beyond the international legal community

When we returned home after the UN Biodiversity Conference, we invested time in reflecting on and promoting the outcome and the international development of protected and conserved areas through a commentary published by Mongabay (Global agreement on conserved areas marks new era of conservation)

As we stated in the commentary, the adoption of the definition of this new conservation designation – ‘other effective area-based conservation measures’, known informally as conserved areas – represents a transformative moment in international biodiversity law. It enables a greater diversity of actors — including government agencies, private entities, Indigenous peoples and local communities – to be recognised for their contributions to biodiversity outside protected areas. Furthermore, the ‘protected and conserved areas’ paradigm offers the global community an important means through which to respect human rights and appropriately recognise and support millions of square kilometres of lands and waters that are important for biodiversity, ecosystem processes, and connectivity — including in the next global deal for nature and people, which is expected to be adopted in late 2020 at COP15.

So there is finally a CBD decision on conserved areas – now what? 

As with all international law, the CBD decision on conserved areas is only as good as its implementation at national and local levels. In 2019, we are following up through the IUCN Task Force to (a) publish guidelines to support countries to appropriately recognise conserved areas in line with the CBD COP decision, and (b) host a capacity-sharing workshop for a number of early adopters, including Colombia, South Africa and Malaysia. As Honorary members of the ICCA Consortium, we will help develop guidelines specifically on conserved areas and Indigenous peoples and local communities.

Some final words

Especially for those who have not yet participated in a UN meeting, this blog offers some insights into how international law is made within the UN Convention on Biological Diversity. To be effective in this process, in addition to having a good understanding of the different bodies, procedures and technical issues within the Convention, you also have to think critically and imaginatively about ideas and alliances through which you can create new spaces for change. Influencing international law can often take years of consistent hard work, though sometimes things can move quickly just by being in the right place at the right time. Prepare to invest in lateral activities and exchanges, such as engaging a broad range of rights-holders and stakeholders (which in the CBD includes at least the Secretariat, Parties and caucuses for Indigenous peoples and local communities, civil society organisations, youth and women), presenting your ideas through different media such as peer-reviewed papers, commentaries and online videos, and raising funds to organise dedicated meetings and workshops.

If you have a great idea, be prepared for people to tell you that it will not fly (common reasons include “X has always been this way” or “Y will never happen”). If you believe in your idea, don’t give up! Simply ask ‘why?’, listen carefully and ask thoughtful questions. Is the issue with the idea itself or the approach or timing? If it has been tried before in a different guise and not gained traction, why not? Who else could offer guidance and connections? The answers will help lead you to your next course of action. Changing your idea or coming up with a new one does not mean that you have given up. 

The greatest inspiration for our international legal work comes from our engagement in real landscapes and seascapes with diverse people, including Indigenous peoples and local communities, civil society groups and government agencies. International law is developed to improve local conditions – it is not a world in and of itself.  

For those of you interested to become international lawyers, remember your local roots – whatever they may be – and keep returning to those sources for inspiration and motivation. 

This is the first blog in our multimedia series to #DemystifyLaw. It is intended to provide a candid look at how law is made and how international lawyers can use creativity and systems thinking to be catalysts for positive change. Please connect with us if you have any questions or suggestions.