ThesisPDF Available

is international environmental law actually law and how does it work : Insights from the Convention on Biological Diversity

July 2022

July 2022

DOI:10.13140/RG.2.2.17029.42722

Thesis for: Master's Degree
Advisor: Sylvia Karlsson Vinkhuyzen

Authors:

Ahmad Ardiansyah

Wageningen University & Research

List of interviewees, their role, and country of origin for the study

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List of CBD submission documents and country's reports used in the studyCBD/COP/DEC/VI/16 2002 COP Decision : Additional Financial Resources UNEP/CBD/COP/DEC/V/15 2002 COP Decision : Incentive Measures UNEP/CBD/COP/DEC/IX/8 2004 Procedure and Mechanism of Cartagena Protocol UNEP/CBD/COP/DEC/X/2 2008 COP Decision : Review of CBD Goals Implementation UNEP/CBD/BS/COP-MOP/1/15 2010 The Strategic Plan for Biodiversity and Aichi Targets UNEP/CBD/BS/COP-MOP/1/15

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Ahmad Ardiansyah (Policy & Society Spec - Sustainable Development Diplomacy Track)

1047853 / Student nr 951003-017-120

supervised by Sylvia Karlsson-Vinkhuyzen Phd MSc (Public Administration and Policy Group)

examined by dr. JH (Jelle) Behagel (Forest and Nature Conservation Policy Group)

Is international environmental law actually law and how does it work ? : Insights from the

Convention on Biological Diversity

MSc Thesis Forest and Nature Conservation Policy (FNP-80436), Wageningen University,

Wageningen, The Netherlands, July 2022

Photo cover : https://www.pngwing.com/en/free-png-pnpmq

Abstract

Over decades, international law has been widely accepted as a central component in

addressing global issues and the major discussion on making international laws work

effectively is through strengthening its compliance. However, if the focus is solely on

compliance, there is an assumption that the law gives mutual and stable meaning among

countries, and there is a possibility that it can be perceived differently. This study delves into

the difference in understanding and perception of international law among governmental

actors in the global biodiversity regime, the Convention on Biological Diversity (CBD).

Seventeen government actors from fourteen countries around the world were interviewed

while analysing sixty-eight CBD country documents for triangulation. The study finds that

most government actors identified the CBD as a piece of soft law, although few obligations

within the CBD were identified as hard law aspects of the CBD. Some enabling and preventing

factors in national and global context that will influence the implementation of hard and soft

law aspects of the CBD and its Protocols nationally, are also identified. In global context, to

make the law work, from the constructivist theory lens, the study argues that government

actors must treat the CBD not only as an obligation to be fulfilled but also as a platform to

learn and reflect on each other's gap in policy and law implementation to achieve the CBD's

objective. Meanwhile, the implementation problem in national context primarily relates to

technical and human capacity-building. Moreover, motivations to comply with international

law can be considered an important factor of implementation in national context, for which I

have identified three out of four situations which build upon the rationalist view.

Keywords : biodiversity; government actors; rationalism; constructivism; convention on

biological diversity

Foreword

I have always been fascinated by how nature evolves and works. I remembered when

I was only six-year-old, I always requested my parents to go to the zoo whenever the school

holiday came. Since then, it became my growing interest and has led me to my love of biology

and ecology. I earned BSc degree in Biology (specialization in wildlife conservation) in my

home country, Indonesia. At university, I was actively involved in conservation and urban

nature-related projects. Right after graduation, I worked as a research coordinator in the field

of wildlife conservation and human-animal interface for two years in my home country. At

that time, I was quite lucky to receive funded trainings and invitation to attend conservation

conferences worldwide. At the same time, it made me realize that doing conservation work

in the field is equally important as disseminating the findings from the field in policy-relevant

way both (locally and internationally), to get the buy-in support from policy makers to

conserve and halt the loss of natural environment and biodiversity. I was very speechless

when finally I had a chance to make this happen while pursuing my master’s degree in Forest

and Nature Conservation at Wageningen University, The Netherlands and this thesis is my

first-ever evidence. But to be honest, I do not want to reserve myself as the sole person who

contributed to the study. Many good-hearted people have contributed to the study in any

way (technically and mentally), although unfortunately I can’t mention each of them but I will

mention few among them.

First of all, I could not have gone this far without the support of my family, father

Ubaidilah, mother Munawaroh, brother Hima, and the one and only God, Allah SWT. Thank

you for always being my mental support system through thick and thin. I would like to thank

Sylvia Karlsson-Vinkhuyzen Phd MSc who wanted to supervise me patiently throughout this

study and always gave me kind advices and sharp comments on every detail of the writing

pieces I put in the thesis. I always found something insightful from her for every supervision

meeting, not only for the writing part but also for my future career trajectory overall. Not to

mention group of friends I have been hanging out with, during my difficult times :

STUNEDisasi, Grup Pengajian, Bornsesteeg 19C corridormates, Sustainable Development

Diplomacy Group. I am also thankful to all the seventeen interviewed experts who provided

very valuable inputs for this thesis.

I hope readers find this writing piece useful and insightful to add more knowledge on

how global environmental policy works or be an inspiration for current/future projects

probably. I hope this thesis serves as the start of my study process rather than an end, and I

can’t wait for any longer what the future brings to me

Wageningen, 13 July 2022

Ahmad Ardiansyah (Ian)

List of Abbreviations

ABS : Access & Benefit Sharing

CBD : Convention on Biological Diversity

COP : Conference of the Parties

CITES : Convention on International Trade in Endangered Species

CMS : Convention on Migratory Species

CFC : Chlorofluorocarbons (CFCs)

EU : European Union

FAO : Food and Agriculture Organisation of the United Nations

GBF : Global Biodiversity Framework

GTI : Global Taxonomy Initiative

GBO : Global Biodiversity Outlook

GSPC : Global Strategy for Plant Conservation

IPBES : Intergov. Science-Policy Platform on Biodiversity & Ecosystem Services

IR-IL : International Relation – International Law

IUCN : International Union for Conservation of Nature

MEAs : Multilateral Environmental Agreements

NBSAPs : National Biodiversity Strategies and Action Plans

NGO : Non-Governmental Organisation

NRs : National Reports

OECD : Organisation for Econmic Cooperation and Development

RTPI : Royal Town Planning Institute

SBI : Subsidiary Body on Implementation

SBSTTA : Subsidiary Body on Scientific, Technical and Technological Advice

SDG : Sustainable Development Goals

SMART : Specific, Measurable, Achievable, Realistic, and Timely target

TRIPS : The Agreement on Trade-Related Aspects of Intellectual Property Rights

UNCCD : United Nations Convention to Combat Desertification

UNEP : United Nations Environment Programme

UNFCCC : United Nations Framework Convention on Climate Change

UNCTAD : United Nation on Conference on Trade &Development

WTO : World Trade Organization


 
Table of contents 
 
Abstract .................................................................................................................................... 1 
Foreword .................................................................................................................................. 2 
List of Abbreviations .................................................................................................................. 3 
 Introduction ......................................................................................................................... 5 
1 Background ................................................................................................................................... 5 
2 Research Problem ......................................................................................................................... 7 
3 Research Aim ................................................................................................................................ 9 
4 Outline of The Thesis .................................................................................................................... 9 
 Theories underlying the study ............................................................................................. 10 
1 International Norms, Laws, and State-Behaviours ..................................................................... 10 
2 Constructivist Approach: The Interactional Theory of Legal Obligation ..................................... 13 
3 Rationalist Approach : The State-Interest Theory ...................................................................... 13 
4 Conceptual Framework ............................................................................................................... 15 
 Research Questions ............................................................................................................ 16 
Methodology ....................................................................................................................... 17 
1 Study design ................................................................................................................................ 17 
2 Data collection ............................................................................................................................ 17 
3 Data analysis ............................................................................................................................... 22 
 Results ............................................................................................................................... 26 
1 The Meaning of the CBD for Government Actors ....................................................................... 26 
1.1 Character and Role of the CBD ............................................................................................ 26 
1.2 Influence of Different Types of Laws within the CBD .......................................................... 31 
1.3 The CBD as an (Ideal) International Biodiversity Law .......................................................... 37 
2 Factors That Make the CBD Works In National & Global Context .............................................. 42 
2.1 National Context: Preventing & Enabling Factors of the CBD Implementation .................. 42 
2.2 Global Context : Preventing & Enabling Factors of the CBD Implementation ..................... 50 
3 Preferences and Behavior of Government Actors ...................................................................... 58 
 Discussion .......................................................................................................................... 64 
1 Discussion part 1 : A Return to the Research Questions ............................................................ 64 
2 Discussion part 2 : A Return to the Methodology and Theory ................................................... 69 
 Conclusion .......................................................................................................................... 71 
References .......................................................................................................................................... 73 
Annexes .............................................................................................................................................. 83 

1. Introduction

1.1 Background

Biological diversity has played a significant role in sustaining human life throughout

history. It provides benefits and services that contribute hugely to human welfare and well-

being from providing food and fresh water to reducing extreme effects of natural disasters

(Markussen, 2005). As the human population will be significantly growing in the upcoming

decades, it puts a high cost on the goods and services that biodiversity provides. For that

reason, the protection of biological diversity cannot be seen anymore as an optional extra

since the loss of biodiversity will negatively impact human well-being (Galvani et al., 2016).

Responding to the global concerns on biodiversity loss, world leaders initiated the first-

comprehensive international agreement on the conservation and sustainable use of biological

diversity, the Convention on Biological Diversity (Secretariat of CBD, 2005). The CBD was

adopted in 1992 and opened for signature the following month at Rio Summit, UNFCCC, and

UNCCD (Secretariat of CBD, 2005). The treaty is purposely made to conserve and promote the

sustainable use of all aspects of biological diversity (ecosystem, species, and genetic

resources) and share its benefits. Moreover, the Convention also covers possible domains

related to biodiversity such as business, agriculture, culture, and education to name a

few(Popovski, 2018).

Two Protocols have complemented the Convention; regulating specific issues to

address the main goal of the CBD through an appropriate legal regime, the Cartagena and

Nagoya Protocol (Secretariat of CBD, 2005). The Cartagena Protocol on Biosafety was first

adopted in January 2000 and entered into force in September 2003 (Mrema, 2021). The

Protocol addresses the safe transfer and handling of genetically modified organisms (GMOs)

that may negatively impact human health and biodiversity. Developing countries have pushed

the establishment of the Cartagena Protocol as an international agreement given the fear of

transgenic products flow into their countries because the Protocol will justify the rights of

importing countries to ban GMO trade concerning the risk or future detrimental socio-

economic and environmental impacts (Gupta and Falkner, 2006). The Cartagena Protocol also

has its additional Protocol, the Nagoya – Kuala Lumpur Supplementary Protocol on Liability

and Redress, which entered into force in 2018. The Protocol sets rules and procedures in case

there is a damage resulting from GMOs. The second Protocol under the Convention is the

Nagoya Protocol on Access and Benefit Sharing, which entered into force in October 2014

(Mrema, 2021). The establishment of the Protocol stemmed from concern that genetic

resources were perceived as a public good belonging to anyone. The Nagoya Protocol aims to

guarantee equal access and benefit-sharing (ABS) obligations from utilizing genetic resources,

especially in developing countries that serve as genetic resource providers (Movilla Pateiro,

2020). The states' sovereignty over genetic resources becomes recognized through the

Protocol, and the country where the genetic resources are taken from, must issue permits if

other countries want to access it (Greiber,2014).

In 1993, the CBD finally came into force with around 193 states ratifying the

agreement and the agreement has been declared as the "key international instrument on

biodiversity" (Secretariat of CBD, 2005). To date, the CBD has been in force for nearly thirty

years however, the pace of biodiversity loss has not shown any sign of slowing down, proving

that the Convention has yet to reach its key objectives (Mrema, 2021). One of the possible

reasons could be the vague and unspecified sentences in the text of the Convention that will

enable states to implement those provisions in practically any manner they wish. For example,

it is often expressed by the use of 'subject to national legislation', 'subject to patent law' and

'as far as possible' that potentially undermine the degree of obligation among CBD’s parties

(Harrop & Pritchard, 2011). By definition, the CBD is supposed to be a hard law since it requires

ratification prior to its implementation in national scope (Abbott & Snidal, 2000). However, in

the multilateral environmental agreements, the legalization of law into ‘hard’ almost never

exist, given that it will be difficult and time-consuming to reach a mutual agreement with the

consequences of diminution of the state autonomy and sovereignty that comes after (Abbott

& Snidal, 2000). Accordingly, the concept of "hard law" in international scope cannot be made

similar to "hard law" operated in the domestic legal system as it often possesses a vital

element of soft law which leaves freedom to states in the implementation process, such as in

the CBD agreement (DiMento, 2003)

Given the strong element of ‘soft law’ in the CBD, it raises a question about the role

and function of the CBD as international law to promote compliance in achieving biodiversity

goals (Barizah, 2019; Movilla Pateiro, 2020; Treves et al., 2009). The concept of compliance

has been argued as an essential element of international law. Since without compliance, most

international scholars think that the role and function of international law as an instrument is

pointless because it cannot be enforceable (Howse & Teitel, 2010). However, emphasizing

much on compliance implicitly means states have the same level of understanding of

international law. In reality, states might have different interpretations and meanings of the

law that affect how the policy is implemented (Gupta & Falkner, 2006).

Hence in this study, I will investigate the unanswered question by exploring the diverse

understandings and perceptions of what international law is and how it works (in the context

of the CBD) among the government actors who exercise the law rather than focusing on why

they do or do not comply to the law. In the following part, I will briefly introduce the research

problem that I address and the aim of the study consecutively. From the research problem, I

formulate three main research questions I wanted to focus on with some sub-research

questions within each of them. Subsequently, I will elaborate methodology, highlighting how

I identify, select, and process the data and some theories upon which the study is built. Finally,

I develop a conceptual framework that shows how these theories are interlinked, including

the scope of research.

1.2 Research Problem

Over decades international law has been widely accepted as a central component of

addressing global environmental issues, because the ongoing efforts to solve environmental

issues are conducted in fragmented ways (Speth, 2005). Although some countries' efforts in

environmental protection and management show improvements, they do not contribute

globally. Therefore, an international agreement is required to foster collaborative action

among countries (Young, 2011). The 1972 United Nations Conference on the Environment in

Stockholm marked the birth of the international environmental agreement, highlighting the

environment as a major global issue that needs to be addressed (Global Youth Biodiversity

Network, 2016). Since then, several global landmark treaties were issued throughout the

1970s, such as the trade of endangered species (CITES) or migratory species (CMS) that set

out principles for a single-focused environmental issue. Throughout time, the next generation

of international agreements take a more comprehensive approach and address broader

issues, one of which is the Convention on Biological Diversity, which seeks to combine

conservation with several important sectoral issues such as agriculture, forestry, fishery, and

land use (UNEP & Foundation for International Environmental Law and Development, 2007).

According to Louis Henkin, one of the most famous contemporary international law

scholars, he asserted "..Almost all nations observe almost all principles of international law

and almost all of their obligations, almost all of the time." . With his saying, it can be deduced

that when states are involved in international law practice, they are aware of their obligations

in line with terms and conditions determined within the agreement (Henkin, 1979). It is also

the nature of international law to be a “collection of legal norms” that directs what measures

are allowed to do (prescriptive norms), are not allowed to do (prohibitive norms), and

something that possibly can be done, thus exempts them from rights and obligations (Weil,

1983).

Given the positive expectations of compliance with international law by Henkin (1979)

(see above), it is a stark contrast that the implementation of CBD and most international

environmental laws do not work effectively (Bruch, 2006; Harrop & Pritchard, 2011). One

possible explanation for the CBD particularly, some would argue that most obligations

specified in the text of the Convention are expressed, in such a way that can be interpreted

as voluntary, such as ‘in accordance with its particular conditions’,’in accordance with national

legislation and policies’ (Secretariat of the Convention on Biological Diversity, 2005;p7). The

Convention also obliges Parties to translate its objective into national context through

National Biodiversity and Action Plans (NBSAPs) in accordance with the country’s capabilities

on how to implement those provisions and overall, it shows a low degree of obligation

(Secretariat of the Convention on Biological Diversity, 2005; Popovski, 2018). In addition to

the Convention, two Protocols (Cartagena and Nagoya) have been developed, with more

precise and high obligations (Mrema, 2021). Some scholars argued that the creation of the

Cartagena and Nagoya Protocol are more driven by commercial interests in biotechnology

markets rather than concerns regarding the invasive species management (Morgera &

Tsioumani, 2010; Movilla Pateiro, 2020). Given the facts, only some provisions within the

Protocols are fulfilled, hence both Protocols did not contribute thoroughly to the three core

objectives of CBD. Another shortfall of the CBD is that only the two Protocols have been

developed for almost three decades since the CBD officially came into force which explains

the worldwide commitment to preserve and use biodiversity sustainably is half-hearted

(Popovski, 2018).

Among critiques toward international environmental agreements because it is less

elaborate and enforceable (Mitchell, 2003a). Moreover, it has no standing body that governs

norms, standards, or procedures (Merry, 2006) and often consists of general obligations which

lack specific standards (as the example from the CBD) to make the law operationalize (Bruch,

2006; Merry, 2006). At the same time, the implementation process of international law is

optional, making it is even more difficult to comply with what states have pledged for the

agreement (Kim, 2019). Nonetheless, not all international environmental laws brought total

failure because some were accounted as successful in the sense that they contribute to

environmental improvement (Mitchell, 2003a). Most scholars bring up the ozone agreement's

success, which successfully addressed the production and consumption of CFCs by

industrialized countries (Young, 2011). Other examples were the Agreement on the

Conservation of Seals in the Wadden Sea, which brought a significant harvest reduction of

seal stocks from massive fur production (Nielson, 1989), and the International Convention for

the Regulation of Whaling which got the interim success of whale population’s increase,

although it has been decreasing again in the past decades (Andersen, 2001). Hence saying that

all international laws lack implementation is also not true, given the range of efficacy from

failure to success (Young, 2011).

One of the determinant factors of the agreement’s success is when the degree of

obligation, precision, and delegation are equally at the higher level, as explained by

Finnemore and Sikkink (1998). The international law must be precise enough to govern the

provisions that align with its objectives as well as has strong legitimacy, which results in

“compliance pull” for countries as part of an international society governed by law (Weil,

1983; Raustiala & Slaughter, 2002). However, having all the three elements higher is not

possible since most international laws are “soft” typically; (Finnemore & Sikkink, 1998)

proposed a legalization spectrum from soft to hard legal framework in the international law

regime ((Finnemore & Sikkink, 1998)

The study will delve into the difference in understanding and perception of

international law among government actors, the extent to which the meaning of international

law (between hard and soft aspect of law) is shared or disputed, and how it is expected to

work. It also contributes to the literature body on international law by showing an alternative

to compliance with international law regimes. By focusing only on the idea of compliance,

there is an assumption of stable and agreed meaning to law, whereas there might be a

different understanding among states of what law means to them. Therefore in the study, I

will investigate the various interpretations of the CBD among government actors and how

their interpretations motivate them to achieve the goals of the CBD, which is halting

biodiversity loss.

1.3 Research Aim

The study aims to understand various ideas about the character and boundaries of

international law and how it works among government actors engaged with the CBD.

1.4 Outline of The Thesis

The remainder of the thesis starts with a chapter on the theories I used for the study,

and I combine these three theories as a conceptual framework in the next section to address

the research questions and aim. Then I put three main research questions with some research

questions subsumed in each question. Chapter four is the methodology, there, I explain how

the research will be undertaken, what types of data I get, and how these data will be used to

answer all the research questions I described in the study. In chapter five, I try elaborating the

findings from my research comprehensively, which are divided into six sub-chapter, aligning

with each of sub research questions, and I also put a summary by the end of every sub-

chapter. In the next chapter, I explain all the findings concerning every main research question

and then reflect on the conceptual framework and methodology before concluding my study

in relation to the research problem and objective.

2. Theories underlying the study

This study posits itself within the theory of international norms, law, and state

behavior that assumes international norms determine the state’s behavior since international

norms have been made and agreed upon as a law by government actors at the negotiation

table. As it will be much work to analyze the states’s behavior thoroughly, I will define the

implementation of the CBD provisions in national context as the state’s behavior. Within the

study, I also use two different thinking approaches that could serve as potential external

factors that influence their interpretation and behavior; the rationalist and constructivist

thinking approach. Rationalist thinkers favor behavior that will maximize the goals and

interest of being involved in the agreement. Briefly, government actors will carefully compare

the cost-benefits if they do or do not comply with the agreement to the alternatives they

have. In contrast, constructivist-minded actors think about whether their behavior is the

‘right’ thing to do in a particular situation and decide based on the legitimacy of the provisions

within the agreement (Mitchell, 2007).

2.1 International Norms, Laws, and State-Behaviours

For two millennia, the norms have become the major study of politics where the

student of politics has struggled with the question of how norms deliver the meaning of justice

and good society and influence human behavior of ideas about justice and good (Finnemore

& Sikkink, 1998). By definition, a norm is 'established practices, codes of conduct and degree

of acceptable behavior' (C.Ingebritsen, 2002 in Gunasekara and Karim, 2020). The study of the

norms emerged from realism, as the former school of thought that considered interest and

power as the state’s drivers in international relations-international laws (IR-IL), excluding

norms that are considered as emotional appeal to the political goal and grounds for moral

judgment (Carr, 1939;1962). The conventional theory of international relations, such as

realism, generally favors the rationalist assumptions that state policies are only informed by

the military and economic capabilities of the state. Therefore from the rationalist perspective,

it is quick to deny the role of norms as an explanatory power (Klotzz, 1995). A scholar realist

such as Hans Morgenthau argued that norms possess normative factors, namely, nationalism

and morality, which argued it is inexplicable how these factors actually work. Hence, the

norm’s role has been outcasted by realist's perspective due to lack of explanation of how the

norms hamper the state’s power (Claude, 1966).

Eventually, the norms' study revived again in the 1980s along with the rise of

constructivist scholars. These scholars made rigorous contributions by asking what has been

left out in IR-IL – what are the determinants of the state’s interest and the factors which

contribute to the behavior-shaping of the state, rather than solely driven by material

incentives just as realist scholar thinks. The analysis of the norms' role in IR-IL by David

Lumsdaine has successfully brought the argument to the degree that the norms play a

significant role. In his case, he showed that morality had a considerable impact on foreign aid,

and throughout the years, some evidence showed how the norms could play an important

role in ending apartheid politics in South Africa, the end of Cold War, the end of slavery, etc

(Finnemore & Sikkink, 1998). Over time, the definition of the norms has changed. Firstly, the

norms are about behavior and not directly about ideas. The definition was found in the regime

literature, given that the norm has become an essential component of regimes (Florini, 1996).

A regime is “a social institution consisting of the collective agreement of principles, and rules

of a given area. Based on regime theory, it tends to provide little flexibility to its user and

constrain the actor's power” (Wijen & Ansari, 2007). Whereas the norms are described as

shared understandings among actors that explain why specific behavior is elicited, the

concept of the norm offers more flexibility and does not state the area of limit to which the

rules and principles should be (Florini, 1996). Secondly, the sense of "ought" in the norms

brings the atmosphere of how an actor should behave or others who watch and assess the

actor's behavior. The sense of "ought" indicates correctness, which means any behaviors

conducted must be seen as legitimate before it can be considered norms (Florini, 1996).

Recent changes have been observed where the power and deterrence between the

states were no longer the only factors to maintain the order. Instead, the rules and institutions

as part of the norms were more favorable to be used (Finnemore & Sikkink, 1998). An

important note is whether the norms can turn state/actor into compliance with its rules

embedded in institutional practices. According to Rowmand and Littlefield (1999), the sources

of compliance are rooted domestically that finally can change participating the actors' beliefs.

When the beliefs bring significant changes to the environment as a result of compliance, then

the actors will abide by the rules . Since then, the basis of global stability has resulted in an

emphasis on the norms and institutions. For example, during the Cold War, the norms were

mostly ingrained in the strategic interactions between major power and formal agreement

during negotiation (Rowmand and Littlefield ,1999). In international environmental regime,

anti-plastic policy which formerly began as domestic norms in the most regions of the global

south, was eventually being taken up as one of the widely-recognized global policies despite

there being no international treaty or global regime purposely made for this (Clapp and

Swanston, 2009). The Montreal Protocol, which appeared to be one of the most successful

international environmental treaties, was also influenced by moral norms. The United States,

which used to be against the treaty, eventually became the leader and persuaded other

countries to protect the ozone layer (Harris, 1995).

Some theories have emerged about how the international norms influence the state’s

behavior toward compliance. Professor Martha Finnemore and Kathryn Sikkink (Finnemore &

Sikkink, 1998) outlined the life cycle of norms from which they arise until can finally be

acceptable to the state/ actors . Then, the norms create a cascade and influence non-state

actors through states’ domestic measures, which will put them into compliance (Finnemore

& Sikkink, 1998). Another renowned scholar, Professor Harold Koh from Yale Law School,

explained of how the norms can be internalized into a part of the state’s internal system (Koh,

1998 in Kim, 2019). Koh suggests that the norms internalization is more about the vertical

process in which the actors see the norms as a legitimate conduct. Taking this into account,

the legalization of the norms that have gone through “vertical domestication” is no longer

required — but the newly emerging norms must go through “horizontal domestication”, to

be acknowledged among the states, and it requires legalization to achieve full compliance

(Koh, 1998 in Kim, 2019).

Legalization is defined as a means to make the norm legal and it is characterized by

the three components: obligation, precision, and delegation (Abbott & Snidal, 2000).

Legalizing norms can also mean turning the norms into law because by definition, law is a

system consisting of rules, norms and institutions that exist at a point of time (Dunoff and

Polack, 2013). Within any international agreement regimes, agreements or treaties are

legalized in two ways: soft and hard law. "Soft law" is briefly described as a "non-binding" law,

while some scholars do not consider it law. However, soft law still gain prominence in the IR-

IL, since it offers more effective ways to deal with uncertainty (Skjærseth et al., 2006).

Different from “hard law” which is legally-binding obligation and often comes with a punitive

mechanism if it cannot be fulfilled (Abbot and Snidal, 2000). Thus, soft law allows the actors

to learn about the impact of agreements over time, and is able to facilitate the compromise

between the actors with conflicting interests, values, and possession of power (Abbot and

Snidal, 2000). For realists, there is no such thing as "soft law" as it lacks precision and

obligation. This is where the dimension of "soft law" is weakened. Some argued that using

"soft law" might undermine the outcome of the agreement itself because it is the same as

turning law into normative instrument which can no longer fulfill its purpose; enforcing the

behavior (Weil, 1983). The tendency to create international "anarchy" is a underlying reason

why realists oppose softer law, given that states have difficulty in committing (Abbot and

Snidal, 2000). At the same time, it is undebatable that the "softness" of law, cause most

international regimes fall short in achieving the goal and objective (Abbot and Snidal, 2000).

However, it is also true that the global acceptance is easier to gain with the soft law adoption

(Skjærseth et al., 2006). The matter of compliance in soft law is less central, which implies

greater flexibility for negotiators in the international arena, and this is why the actors often

choose soft law as the first typical form of an international agreement which later becomes

solidified as legally binding agreement or hard law in the future (Skjærseth et al., 2006).

Some attempts have been made to conduct a comparison between hard and soft laws,

nonetheless, it has several weaknesses given that there are much more interactions between

these both laws (Skjærseth et al., 2006) . Firstly, the criteria used are not derived from a

comprehensive theoretical framework, which is commonly centered around effectiveness of

legitimacy and does not consider the reasons why the actors should comply with the law and

what makes the norm have the right to govern (Karlsson-Vinkhuyzen & Vihma, 2009).

Secondly, the comparison is made as if there were only two types of the norm, neglecting that

various degrees exist along the hard-soft continuum (Abbott & Snidal, 2000). There is a divide

between the hard and soft law proponents; the rationalist’s perspective is an underlying

paradigm of hard law that treats actors more inclined on utilitarian calculations and

maximizing their interest. Whereas constructivist's perspective argues that it is more

important to make the law 'softer' and non-binding to bolster international cooperation

among countries (Young, 2002; Stokke and Coffey, 2006; Wettestad, 1998, 2002 in Skjærseth

et al., 2006). Characterizing the diversity of laws along the hard-soft continuum will become

much more insightful if there is an understanding of what these differences mean to the ideal

criteria of international norms.

2.2 Constructivist Approach: The Interactional Theory of Legal Obligation

Soft law refers to the law that is not formally binding, unlike the hard one.

Constructivists favor soft-law instruments because they can generate shared norms,

understandings, and common purposes (Shaffer & Pollack, 2010). Constructivist scholars do

not acknowledge the assumption that states' interests and other actors are formed before a

social interaction. Therefore, constructivists focus on culture, ideas, and institutions that can

influence the behaviors (Hurd, 2008). Through continuity of learning and encouragement,

norms will drive changes in the actors' identities and interests. Constructivists understand

the world as a socially-constructed entity by interlinked understandings, and these

understandings are not external to an individual, nor something is material. For example,

paper is a usual material that can be assigned new status (e.g : money) because material

features can not be self-declared as money. In other words, ”there must be continued

collective acceptance or recognition of the validity of the assigned function; otherwise, it

cannot be successfully performed” (Searle, 1995).

However, a question remains whether international law with soft law elements does

matter, given there is no clear explanation of how the norms will work in practice once shared

understandings have been made. The book “Morality of Law” by Lon Fuler provides insights

into the connection between the rule of law and morality along with a description of criteria

of legality such as generality, non-retroactivity, non-contradiction, and concordance between

rules of law and action (Lovett, 2015a). Yet, the influence of law will not come around when

only the norms meet these criteria. Early constructivist scholars only emphasized that practice

should encompass acts and commitments but did not elaborate on what is identified as a

practice. Later on, (Adler, 2005) proposed that the norms can be turned into a legal obligation

with the condition that it has to be collectively maintained on a regular basis between agency,

individual and social structure through practices that he refers to as “communities of

practice”. By the time the law is created, it has to be exercised to maintain “meanings”

through continuous processes otherwise, it will disintegrate. These theories are proposed by

Brunnée & Toope (2011), which combine the role of mutual understandings, principles, and

practice of legality in the emergence of new legal norms. It will be used to analyze the study

2.3 Rationalist Approach : The State-Interest Theory

For the rationalist, hard law plays an essential role in securing cooperation because it

goes against mistrust that the global environment has an anarchic element. A legally binding

agreement will prevent any forms of violation that possibly be conducted by the actors due

to reputation costs, reciprocity, and any uncertainty that could happen. Hence hard law is

strongly promoted to strengthen commitments from the involved actors because it forces

them to consider the consequences. Rationalist thinkers propose that the states already had

their interests long before they decided to join the agreement thus they act rationally to

maximize their gains according to other states’ perceptions and distribution of state power.

One of the widely-known state’s-interest proponents in IR-IL is Professor Goldsmith

and Posner. They argued that the interest is what makes the states comply with international

law. Their argument to explain the state’s interest is not new since it is adopted from rational

choice. There are three assumptions within the book Limits. First, they assume that the state

is the international legal system's primary actor. Second, they believe that the state has

interests and the interests is defined as the political leadership or the extent of state’s

influence on decision-making and political outcomes in global context . Although it seems like

a simplifying assumption at first, they later explain how various domestic groups and

institutions strongly affect the political leadership’s decisions related to international law

(Goldsmith & Posner, 2005). They argue that these differences distinguish their work from the

realists that a state’s interests are only limited to security and wealth (Goldsmith & Posner,

2005).

Lastly, borrowing from rationalist perception, Goldsmith and Posner (2005)

incorporate their assumption that states act rationally to achieve the outcome. They do not

mean to represent rational choice theory to simplify the decision-making process at state

level or to provide the fundamentals of international behavior. Instead, they use the theory

as a tool to clarify the assumption that international law takes power from those hands who

should possess it (state governments and chief) and gives it to those who should not

(international organizations) (Goldsmith & Posner, 2005; Hathaway & Lavinbuk, 2006). They

claim their assumption leads to better and more nuanced explanations of the state-behavior

related to international law than other theories do. (Goldsmith & Posner, 2005)

Some scholars put heavy critiques on the theory. For example, their case studies fail

to capture that cooperation is more possible than their pessimistic stance (Golove, 2006;

Sloss, 2006). The Limits also does not sufficiently consider the process of norms internalization

proposed by (Koh et al., 1997) that has been documented by other scholars (Finnemore, 1996

in Sloss 2006; Goodman, 2003; Koh et al, 1997). The inability of Goldsmith and Posner (2005)

to explain the connection between compliance and norm internalizations incapacitates the

power of their theory. Even so, the Limits deserve to be applauded for comprehensively

explaining one of the three factors in international law: how state interests shape

international law regime can be explained in terms of four basic models that I will explain in

the following paragraph. Therefore, in combination with the “interactional theory of legal

obligation”, this theory will be used as a conceptual framework to answer the research

question.

2.4 Conceptual Framework

The conceptual framework elaborates how this research will be conducted. It shows

what steps are required to answer the research questions and how the different theories are

linked to each other to achieve the objective of the study. The course of research is based on

how international norms and law can influence a state's behavior. State’s behavior in the

study is defined as what the norms and laws within the CBD agreement mean to them and

how they are being implemented in national context. I will combine two frameworks

developed from the constructivist and rationalist approaches. In brief, the interactional theory

of legal obligation will focus on how international norms can be seen as legitimate and works

accordingly in practice, while the state-interest approach focuses on the motivation of

individual’s state to comply with the agreement which can be explained through four basic

game models : coercion, coordination, cooperation and coincidence of interests.

Figure 1 Conceptual framework of the study

International

Agreement Interpretation

(Hard-Soft Law) State's

behaviour

Interactional Theory of Legal Obligation

(Constructivist approach)

State-Interest Theory

(Rationalist approach)

3. Research Questions

As I have explained in the objective of the study that I will explore the understanding

and views of the government actors toward the CBD as international law and how it will

motivate themselves to combat biodiversity loss. Informed by the conceptual framework, I

have three central research questions I aim to answer with some sub-research questions in

each research question.

1. What does CBD mean to government actors ?

A. How do government actors define and characterize the boundary of international law

in CBD agreement?

B. How do states perceive differences in the influence of different types of hard and soft

law within the context of CBD (Convention and its Protocols) ?

C. According to involved government actors, what is an ideal form of international

biodiversity law?

2. What are the factors that make government actors see the hard and soft law aspects

of CBD and its Protocol influence national implementation – in their own country

and more generally

A. What reasons in the national context are seen as preventing/enabling CBD

implementation?

B. What reasons in the international context (provisions in CBD etc.) are seen as

preventing/enabling CBD implementation

3. To what extent do constructivism and rationalism thinking approaches explain the

behavior of government actors toward CBD ?

I will use primary and secondary data to answer all the questions: interview and

documentary evidence. The documents I will analyze, including the national and CBD reports,

will be relevant to answering all the research questions. The interview data constitutes the

major findings of the study, and any data from document analysis will serve to justify the

interview data.

4. Methodology

The following section explains the method I use in undertaking the research. It consists of

two parts; the first part elaborates on the study design and what type of study I will use. The

latter is the data collection part which explains how I identify, select, process, and analyze the

data and how I will use it to answer research questions.

4.1 Study design

A study design can comprise either quantitative or qualitative study design. The

quantitative study design deals with numbers and statistics and focuses more on confirming

theories/ assumptions; hence it has specific procedures to follow, and has been tested for

validity and reliability (Kumar, 2014). The latter takes a different approach because it deals

with words and meanings. This type of design enables researchers to gather in-depth

perspectives or views, which commonly are not well understood. As the study aims to

understand various ideas and opinions on the character and boundaries of international law,

the qualitative approach best suits the nature of the study (Kumar, 2014). Additionally, the

qualitative research also enables researchers to gain in-depth insight on topics, although

sources of information are not large in terms of number, whereas the quantitative analysis is

more interested in the quantity and somewhat lacks depth thereof.

4.2 Data collection

The section will explain what kind of data I use and how the data will be collected to

answer the research questions. The questions necessitate the use of data from various

sources; two major approaches have been identified; primary and secondary data, which will

be explained as follows :

4.2.1 Primary data

Primary data refers to first-hand data gathered by researcher himself; it always fits the

researcher’s needs and has more accuracy and reliability, although it is very time-consuming

to get the data (Kumar, 2014). The primary data collection was conducted through the

interview method where the researcher asks questions derived from the main research

questions directly to the respondents, and answers will be given. Regarding the technique, I

chose to use semi-structured interviews as it allows me to explore the topics in-depth and

propose different questions for each respondent(s) depending on what they will answer later

but still in a similar direction (Bernard, 2018). It is different from structured interviews, which

tend to possess the rigid and pre-determined questions, and it is not the purpose of the study

to compare all answers from respondents based on similar questions. Instead the interview

serves as a means to get various ideas about the topics, which will be triangulated later with

the secondary data (Bernard, 2018).

The website of the CBD provides contact person of all countries that have ratified the

Convention, and each country (at least) has 5-10 people responsible for different programs or

sectors under the CBD and its Protocols or so-called National Focal Points (NFP, n.d.). In

selecting respondents, I used non-probability sampling, purposive and snowball samplings to

determine the respondents who will be interviewed (Bernard, 2018). By purposive sampling,

I selected the respondents based on my judgment, and at least two or three state

representatives in each country were selected. Once those respondents were listed, I sent

them an interview invitation and an attachment that explained the aim of the study, how the

interview would take place, and whether it was acceptable to record the interview for analysis

purposes. Interviewing state representatives is central to the study as it mainly discusses the

ideas and perceptions of the CBD from government actors. Besides selecting the state

representatives, some countries sometimes hire experts from academics and consultants who

work with the government in the CBD process. Their perspective is as critical as government

actors and could enrich understanding of the CBD overall.

All interviews were conducted on a video conference platform, phone interview or

written interview depending on respondent’s preferences. Every interview session was

recorded and transcibed through prior consent from respondents, and if not possible to be

recorded the researcher would highlight the important concept from the respondent’s

answer. The interview duration took place between 20-30 minutes.

For the number and selection of interviewees. Initially, I aimed for 20 interviewees

with the balance spread of developing, developed and small-island developing states. In the

first phase, I contacted 50+ people based on the contact from the CBD website. Most of them

did not reply to the email, and some replied with the objection to give an interview. I reflected

on what could be wrong in my interview invitations and guide and revised it to make more

concise and feasible, for example I put the interview duration at least an hour, and probably

the interviewees did not have time for an hour interviews. Eventually, I managed to interview

17 government officials from 14 countries, at least one government representative of each

country was involved in the case. Some interviewees requested their names to be

anonymized, and I decided to apply to all interviewees. In the findings, I will differentiate each

of the interviewees with a code number and country-category, whether they are from

developing or developed countries. Unfortunately, I did not manage to get the interview data

from representatives of small-island developing countries. In the following table, I will present

the list of interviewees I managed to get the data.

Table 1 List of interviewees, their role, and country of origin for the study

Interviewee code

Country of origin

Role within or related to CBD

Interviewee 1

Indonesia

SBSTTA National Focal Point

Interviewee 2

Indonesia

Cartagena Protocol Contact Point

Interviewee 3

China

Attendee of CBD CoP, SBSTTA and SBI

meetings

Interviewee 4

Netherlands

ABS National Focal Point

Interviewee 5

GTI National Focal Point

Interviewee 6

Costa Rica

ABS National Focal Point

Interviewee 7

Canada

Depart. of Environment and Climate Change

Interviewee 8

Canada

Depart. of Environment and Climate Change

Interviewee 9

Argentina

Former staff of Ministry of Agriculture

Interviewee 10

South African

CBD National Focal Point

Interviewee 11

Australia

CBD National Focal Point

4.2.1 Secondary data

Secondary data refers to the data which is collected already. This data type is

previously analyzed and refined therefore, it may not be subjected to the researcher's

requirement. Many forms of secondary data can be distinguished however, only two forms of

data are used; submission documents and peer-reviewed scientific articles related to CBD

topic (Kumar, 2014).

Submission documents are the official CBD submissions, national biodiversity strategy

plans (NBSAPs), and national reports disseminated by government agency to the CBD

Secretariat and can be accessed publicly through the CBD official website. These documents

are central to the study as they explicitly contain information about the government’s stance

to specific issues or the Convention and its Protocols. Several meeting reports of CBD, which

are publicly available on the website of Earth Negotiations Bulletin, were used next to the

submissions since it gives a picture of how the discussions were taking place. Additionally, it

mentions which country Parties are pro or against a particular issue and what suggestions

were made regarding their stance. Additionally, scientific articles relevant to the Convention

and its Protocols in both national and global contexts are pivotal in understanding the issue.

The chosen articles would be only peer-reviewed to ensure the article's quality and validity,

and the search would be performed through WUR library and Scopus search engine. Here in

the following table, I present all the submission documents used for the study

Interviewee 12

Belgium

CBD National Focal Point

Interviewee 13

France

SBSTTA National Focal Point

Interviewee 14

South African

Cartagena Protocol Contact Point

Interviewee 15

Thailand

CBD National Focal Point

Interviewee 16

Spain

SBSTTA National Focal Point

Interviewee 17

Norway

CBD Negotiator

Table 2 List of CBD submission documents and country’s reports used in the study

SUBMISSION ON PROPOSAL FOR THE POST-2020 GBF (COUNTRY)

Country

Year

In-text citation

2021

UK Post2020, 2021

Costa Rica

2019

Costa Rica Post2020, 2019

Argentina

2019

Argentina Post2020, 2019

South Africa

2019

South Africa Post2020, 2019

Australia

2019

Australia Post2020, 2019

Norway

2020

Norway Post2020, 2020

NATIONAL BIODIVERSITY STRATEGY AND ACTION PLANS (NBSAPs) (COUNTRY)

Country

Year

In-text citation

Indonesia

2016

NB1, 2016

China

2010

NB2, 2010

Netherlands

2013

NB3, 2013

2011

NB4, 2011

Costa Rica

2016

NB5,2016

Canada

(n.d)

NB6, (n.d)

Argentina

2017

NB7, 2017

CBD OFFICIAL DOCUMENTS

Document name/publisher

Year

Topic

UNEP/CBD/COP/DEC/VI/16

2002

COP Decision : Additional Financial Resources

UNEP/CBD/COP/DEC/V/15

2002

COP Decision : Incentive Measures

UNEP/CBD/COP/DEC/IX/8

2004

Procedure and Mechanism of Cartagena Protocol

UNEP/CBD/COP/DEC/X/2

2008

COP Decision : Review of CBD Goals Implementation

UNEP/CBD/BS/COP-MOP/1/15

2010

The Strategic Plan for Biodiversity and Aichi Targets

UNEP/CBD/BS/COP-MOP/1/15

2014

Procedure and Mechanism of Nagoya Protocol

MEETING NOTES

Document name/publisher

Year

Topic

Earth Negotiations Bulletin

2016

UN Biodiversity Conference 2016

Earth Negotiations Bulletin

2017

The 21th Meeting of SBSSTA

Earth Negotiations Bulletin

2019

The 1st Meeting of the OEWG on the Post-2020 GBF

Earth Negotiations Bulletin

2020

The 2nd Meting of the OEWG on the Post-2020 GBF

Earth Negotiations Bulletin

2021

The 3rd Meeting of the OEWG on the Post-2020 GBF

Earth Negotiations Bulletin

2021

The Informal Meeting of the SBI of CBD

Earth Negotiations Bulletin

2021

UN Biodiversity Conference 2021

GREY LITERATURES

Document name/publisher

Year

Topic

UNEP

2018

Assessment of post-2010 NBSAPs

OECD

2020

Overview of Global Biodiversity Finance

WTO

(n.d)

TRIPs Agreement

South African

2015

NB8, 2015

Australia

(n.d)

NB9, (n.d)

Belgium

2018

NB10, 2018

France

2010

NB11, 2010

Thailand

2016

NB12, 2016

Spain

(n.d)

NB13, (n.d)

Norway

2015

NB14, 2015

NATIONAL REPORT (NRs) (COUNTRY)

Country

Year

In-text citation

Indonesia

2014

NR1, 2014

China

2014

NR2, 2014

Netherlands

2014

NR3, 2014

2014

NR4, 2014

Costa Rica

2007

NR5, 2007

Canada

2014

NR6, 2014

Argentina

2015

NR7, 2015

South African

2014

NR8, 2014

Australia

2014

NR9, 2014

Belgium

2014

NR10, 2014

France

2014

NR11, 2014

Thailand

2014

NR12, 2014

Spain

2014

NR13, 2014

Norway

2014

NR14, 2014

INTERIM REPORT ON NAGOYA PROTOCOL IMPLEMENTATION (COUNTRY)

Country

Year

In-text citation

Indonesia

2018

IR-Nagoya 1, 2018

China

2017

IR-Nagoya 2, 2017

Netherlands

2017

IR-Nagoya 3,2017

2017

IR-Nagoya 4,2017

Costa Rica

Non-party

Canada

Non-party

Argentina

2018

IR-Nagoya 7, 2018

South African

2018

IR-Nagoya 8, 2018

Australia

Non-party

Belgium

2018

IR-Nagoya 10, 2018

France

2018

IR-Nagoya 11, 2018

Thailand

Non-party

Spain

2018

IR-Nagoya 13, 2018

Norway

2017

IR-Nagoya 14, 2017

INTERIM REPORT ON CARTAGENA PROTOCOL IMPLEMENTATION (COUNTRY)

Country

Year

In-text citation

Indonesia

2007

IR-Cartagena 1, 2007

China

2007

IR-Cartagena 2, 2007

Netherlands

2007

IR-Cartagena 3, 2007

(n.d)

IR-Cartagena 4, (n.d)

Costa Rica

2007

IR-Cartagena 5, 2007

Canada

Non-party

Argentina

Non-party

South African

(n.d)

IR-Cartagena 8, (n.d)

Australia

Non-party

Belgium

2007

IR-Cartagena 10, 2007

France

2007

IR-Cartagena 11, 2007

Thailand

IR-Cartagena 12, (n.d)

Spain

IR-Cartagena 13, (n.d)

Norway

2007

IR-Cartagena 14, 2007

4.3 Data analysis

After all those data were collected, the data were analyzed systematically. The section

also elaborates on how the analyses will answer the research questions I posed in the study.,

I use two concepts, reliability, and validity which are essential indicators that must be taken

to make the research more robust (Kumar, 2014). However in qualitative research, Lincoln

and Guba (1985) suggested the concept of reliability and validity is equal to the concept of

trustworthiness to judge the quality of qualitative research. Moreover, the concept of

trustworthiness can be achieved by fulfilling four concepts; credibility, transferability,

dependability, and confirmability which I will describe the definition of each concept in order

and what strategy I use to achieve each concept in the following paragraph (Lincoln and

Guba,1985).

Credibility refers to the truth of research findings drawn from the participant’s actual data

and whether the data is correctly interpreted as the participant’s actual view (Kumar, 2014).

Two ways to get more credibility from the data; prolonged engagement and triangulation

(Korstjens & Moser, 2018). Prolonged engagement is defined as a lasting presence during the

interview to know the setting and context better and to test for any misinformation if there

are happens to be ones. The interviews were semi-structured, so I use a topic guideline rather

than a list of questions. Equally important as interview data, the document findings will also

be considered. It relies on multiple sources of data, or so-called triangulation, which constitute

an important aspect of ensuring credibility in qualitative research (Korstjens & Moser, 2018).

These data , were then compared and scrutinized whether or not both sources reflects the

same pattern.

The second aspect is transferability, the extent to which the study results can be

transferred to other contexts and this can be done by writing a thick description of research

context (Kumar, 2014; Bernard, 2018). As the study takes place in a global perspective and

within context of CBD I managed to get state representatives from two major groups of

countries with equal balance; six developing and eight developed countries (List of Parties,

n.d.). Other considerations within the context of countries such as political situation or

country with different levels of government would not be considered. In addition, the

respondents of interest are government actors, but it will not only be limited to them; the

people who work closely with them, such as academics or consultants, and their responses

will be treated equally to those who are the government actors.

The concept of dependability and confirmability are similar to reliability in quantitative

research (Kumar, 2014). They can be described whether the result obtained would be the

same if the observations are conducted twice. Given that the research’s primary topic will be

about the understanding perspective and/or views among government actors, thus it is very

crucial to keep a comprehensive and detailed record of every research step taken from the

start of the study to the development and writing the result. Every interview was transcribed

in non-verbatim transcription, which means every unnecessary speech, pause, and utterance

are removed (Clark et al., 2017). Further analysis will be conducted through qualitative

software coding Atlas.TI for analyzing the textual data, both literature, and interview

transcription. The coding followed two steps in the study (Glaser & Strauss, 2017). Firstly,

open coding was conducted where the textual data would be made into discrete parts and

labeled with particular codes deemed relevant to answer sub-research questions.

Subsequently, the created codes were grouped into categories, and these categories were

based on three main research questions that I have made in the first place (Glaser & Strauss,

2017). For example the categories are “definition of CBD”, “influence of CBD”, “enabling factor

of CBD”,”preventing factor of CBD”, “constructivism thinking” and “rationalist thinking” but it

could be more or less depends on the textual data I will find since the categories are

determined as I am analyzing the data later. The last step is selective coding, where I put all

my categories together under three main research questions (Glaser & Strauss, 2017). The

coded data provides the basis for the result section of this study. Due to time limitations, I did

not code the findings from secondary sources; only relevant findings from secondary sources

were directly incorporated in the result section of the thesis.

Table 3 List of codes and example of quotes from interview data

Code categories

Example of quotes

Role and Function of CBD

(RQ 1)

“...CBD only gives guidelines.”

“..CBD provides sort of a political framework.”

“..CBD is a convention that does not ask strength to countries but it is

because of global biodiversity governance.”

“..it is a vehicle to encourage capacity building and financial aid.”

Character of CBD

(RQ 1)

“...In the CBD, we will not get any punishment and in the context of

compliance.”

“...it is more like international agreement under the form of

international law”

“CBD is not really a law and it is agreement between countries”

Influence of CBD

(RQ 1)

“...Obligations under the CBD was one of the key drivers for our

national legislation.”

“...I think the CBD brought influence but I do not think you could

attribute all the influence from CBD”

“...many private and financial industry show their interest to take part

in biodiversity issue.”

Influence of Protocols

(RQ 1)

“We are party of Cartagena Protocols and we have 11 agencies that

look after the issues within Cartagena Protocols.”

“..responding to Nagoya Protocols, at European we have the

obligation to comply similary we have our own national legislation

regulate genetic resources..”

Ideal international biodiversity

law

(RQ 1)

“CBD should constitute as wider issue that every sector and

government ministeries can relate...”

“...would be very hard to have global one that has global obligations,

sort of more binding that can be relevant to all of those countries,

respecting local priorities because conservation is a human thing..”

“...procedures of Protocols should be very simple.”

Enabling factor (national context)

(RQ 2)

“Other actors should use CBD and its Protocol as one of the foundatio

to create policy and legislation”

“Legally-binding Protocol has to be implemented through law but the

softer decisions, implementation through practice and political will

must be there.”

“It is essential to ratify CBD and its Protocols to strengthen our

national regulation.”

Enabling factor (international

context)

(RQ 2)

“Synchtonization of global agreement that direcly or indirectly related

to biodiversity is necessary.”

“If we go back to 1992 and renegotiate it, might be good to put some

more specificity around the obligation itself.”

“The text of Convention does not have to be changed but the means

of implementation is beyond important.”

Preventing factor (national

context)

(RQ 2)

“There is not even single issue in biodiversity that clearly can be made

as a national target explicitly, not as clear as issue of climate change,

that has 1.5 C as an overarching goal.”

“Capacity is clearly a barrier, in West it is difficult to appreciate the

problems that many countries have.”

“Issue of biodiversity is constantly shifting issues and not everybody is

on the same page in term of what to prioritize.”

“Lack number of people working in the national focal points”

Preventing factor (international

context)

(RQ 2)

“You will find provisions in CBD-COP decisions which are kind of

contradictory to decisions in WTO, for example.”

“You have now read the CBD and probably have read the decisions are

written in this bizarre language, what are the differecences between

‘recognizes’, ‘endorses’ and ‘welcome’

“Given generic global SMART targets are difficult to create and

measure.”

Constructivism/Rationalism

(RQ 3)

“In these day, the country involvement in global game rules is a must,

without omitting country’s sovereignty.”

“Because as country we have got all in place by our own legislation

without ratifying the Protocols for example, then it becomes more of

a political or not political , or a legal discussion you know.”

“At the moment countries are generally unwilling to ratify approaches

with strong sanctions for non compliance but the growing realisation

of the existential risk posed by biodiversity loss may enable this to

change.”

5. Results

In this chapter, I present the results of both interview and documentary findings. It will

be arranged along with the topic of research questions and sub-research questions as a

chapter I identified in the study. The main text is interspersed with the quotes and findings

from the interview or document analysis I managed to capture. I categorize the interviewee’s

country of origin, which corresponds to the interview data with the developed or developing

country, because I wanted to highlight the number of interviewees with the same statement.

I finish each chapter with a short summary of key findings

5.1 The Meaning of the CBD for Government Actors

5.1.1 Character and Role of the CBD

Sub-research question 1A deals with the definition of the CBD according to

government actors as an international legal treaty. In other words, they will consider whether

the CBD and its Protocols are a law or not, which include the underlying reasons of their

justification. The question will also cover how government actors describe the role and

character of the CBD law and how they perceive it in a national context. Generally,

government actors have diverse views on the question.

CBD IS NOT A LAW AND IS MORE VOLUNTARY-BASED AGREEMENT

When the researcher asked how they perceive the CBD as international law, most

interviewed government actors emphasized that the CBD is a framework and a guide for a

law-making process at the national level rather than as a law (Developed country- Interviewee

4,8; Developing country- Interviewee 1,2). Among these respondents, only a single

interviewee from a developing country stressed that the CBD is a legal treaty that must be

implemented through strategic plans. She also mentioned that the CBD is different from

guidance such as the post-2020 Global Biodiversity Framework, which covers a broader topic

(Developed country- Interviewee 10). While others, both developing and developed

countries, mainly stated that the CBD serves as a guide to facilitate and promote biodiversity

management nationally.

" In the context of CBD, it does not serve as an instrument to regulate but rather to facilitate

and promote global commitment." (Developing country - Interviewee 1, 2)

"The CBD has been instrumental as a framework to promote biodiversity management

nationally; compared to other Rio Convention it is pretty successful. However, it is not done

enough." (Developed country – Interviewee 8)

Reflecting on both statements above that the role of the CBD is considered a more

facilitative process, one developed country argued that the CBD is not a Convention that asks

country parties to implement or translate all the provisions into national law because of the

breadth of the topic and not all aspects of the topic within CBD are relevant for them

(Developing country- Interviewee 1,9, 10, Developed country- Interviewee 13,).

“When you have a clearer scope, as the case of the Protocol as I was saying before, or CITES, I

mean there are conventions that clearly or the Montreal Protocol on the protection of the

ozone layer. The scope is so clear that you can have stricter ways of working actually to

enhance implementation. With CBD, it is more about facilitative processes, really supporting,

implementation, trying to support parties to identify the challenges and why they are not

implementing things as they said they are good.” (Developing country - Interviewee 9)

“So we have CITES agreement, and the agreement has binding and enforceable obligations

that require implementation, which is challenging. They are not just reporting , you have to

create the whole system for tracking species. You have to prove that you are monitoring that,

the sustainability of trade and the agreement is very focused on this one issue, and it is a more

obligation-based process.” (Developed country - Interviewee 7)

From the statements, there is an implication given that the scope of the CBD is very

exhaustive; it undermines the existence of the CBD as an international treaty among the eye

of government actors. According to the text of Convention, the CBD is indisputably a legally-

binding treaty since several steps must be taken before the treaty enters into force or

ratification (Secretariat of the Convention on Biological Diversity, 2005). First, negotiation

must be conducted once they reach an agreement, the treaty is signed and ratified.

Interestingly, almost all parties who have ratified the CBD, contended that the agreement is a

voluntary-based agreemnt (Developing country- Interviewee 2, Developed country-

Interviewee 13). One interviewee continued that although the CBD is a form of international

law, as referred to the text of the Convention Article 3. However, the role of the CBD remains

only as an agreement that does not possess any enforcement power (Developing country-

Interviewee 2) . Another reason the CBD is regarded as a voluntary-based agreement because

there is hardly any possibility of addressing the issue of non-compliance in case the provisions

are not implemented (Developing country- Interviewee 2,3; Developed country- Interviewee

12).

IMPLEMENTING PROVISIONS OF CBD AND ITS PROTOCOLS

Each country party of the CBD is obliged to make report periodically which is called as

National Biodiversity Strategies and Action Plans or NBSAP. The report is a central instrument

of national-level biodiversity implementation according to Article 6 of the Convention and

should be renewed every three-five years. To date, only 193 of 196 parties have issued at

least one NBSAP; most of them have yet to update their NBSAPs (CBD Website, n.d). Although

reporting NBSAPs is mandatory, however every country party is given flexibility in terms of

what to report and how the CBD provisions are adopted into national context. Although COP

decisions IX/8 and X/2 provide detailed guidance on how NBSAPs should be reported, these

decisions are not legally binding (UNEP/CBD/COP/DEV/X/2;

UNEP/CBD/COP/DEV/IX/8).Another document of which the submission is obligatory for

country parties is the national report. The national report provides information on the

progress of implementation of each party. There are differences between developing and

developed countries regarding its policy-making and implementation based on analysis of

national reports. The parties of developing countries with broader land-and-sea coverage

have more general laws or policies ,and mainly focus on direct pressure on biodiversity such

as land-use change, species exploitation, and genetic resource (NR1,2014; NR2,2014;

NR12,2014). Compared to parties of developed countries that are relatively smaller in the

area than the developing ones , they produce law or policies to address both direct and

indirect pressures on biodiversity such as a result of massive production and consumption

(NR4,2014; NR6,2014; NR10,2014; NR11,2014). Although they both have the policy to

regulate the activity, most of them do not provide a clear indication if the policy or law is

legally binding (NR1,2014; NR2,2014; NR12,2014). Countries that are party to the Protocols

must submit a separate report to measure its implementation's progress. The report format

is uniform across countries, consisting of several questions that must be answered. All

countries have developed their policy and regulation regarding the implementation of

Protocols; most developing countries acknowledge that their legal and institutional

arrangement is yet to be improved while some EU countries have already established

integrated procedures and systems through European Union. For example, every genetic

resource user in EU countries has to submit the due diligence proposal according to EU no

511/2014 to ensure it is aligned with the principle of fair and equitable benefit-sharing, while

some developing countries have yet to develop one (IR-Nagoya 3 and 4, 2017, IR- Nagoya

10,11,13, 2018). Moreover, both developing and developed country parties argued that even

though the Convention is a binding agreement, a decision made in the governing body of the

CBD, COP meeting, is not legally binding (Developed country- Interviewee 5, Developing

country- Interviewee 9).

“When you ratify this agreement, you are obliged to comply with the provisions of the

agreement and um, but also in a way in which the institutional arrangement has been setup

in the context of CBD. You might have seen that the Convention has quite general provisions

in term of what country should be considering when developing their policy and legislation,

and then the details are developed over time and adopted through the decision, and the

decision are not legally binding.” (Developing country- Interviewee 9)

“Well, I mean there is a keyword – law whilst the Convention itself is legally binding. All of the

COP decisions are where the interesting stuff comes or not. The massive problem with the CBD

COP decisions is because they are not legally binding.” (Developed country- Interviewee 5)

A developed country party emphasized that although some scholars and people may

be very cynical about the CBD because of the non-bindingness, some things have already

changed because of the agreement to name a few financial capacities and capacity-building

initiatives (Developed country- Interviewee 5). Moreover, the respondents both from

developing and developed country, highlighted the role of the CBD as a political motivator

which make the issue of biodiversity remains a priority to be addressed and requires

immediate attention (Developed country- Interviewee 7,12; Developing country- Interviewee

1 )

"But you have a framework that tries to bring countries together, fostering better cooperation

between them and understanding that for obvious reasons. I mean, biodiversity understands

no boundaries, so animals move, and plants grow regardless of which side of the border you

are referring to, so it is very important to have these global processes that try to gather those

efforts and push the countries to work in a certain direction." (Developing country- Interviewee

“I think we are better off with the agreement than without because it focuses government

minds. Every few years, governments had to think well ok we are just about to make report.

What do we push in that report that ain’t make us look good? and be helpful for us to meet

our needs.” (Developed country- Interviewee 5)

Among the fourteen countries interviewed, five nations are non-party to or one of the

Protocols. Being party to the Protocol means a country is obliged to comply with the

provision(s) attached to the Protocol, and every country has to make policy and institutional

arrangements as acknowledged by the developed country parties

“Our country did not sign and ratify part as a part of the Protocol until it had its legislation in

place. So the country developed what is called a statutory instrument which is how it applied

EU legislation of the nature of the ABS regulation once Parliament approved its statutory

instrument. Then our country ratified it is participation in the Nagoya Protocol.” (Developed

country – Interviewee 5)

Furthermore, both Protocols have a compliance committee, contrary to only being a

party to the CBD, that does not have any compliance mechanism as acknowledged by one

developing country party (Developing country- Interviewee 2). She reiterated that albeit each

of the Protocols has a compliance mechanism, no punishment is given in case there happens

to be an infringement:

“If we talk about CBD Protocols that have a more specific procedure for implementation that

deals with transboundary movement of GMO in Cartagena Protocol and access-benefit

sharing mechanism in Nagoya Protocol. I think it is only limited to the regulation and

procedural scope. Talking about compliance, there is no enforcement or punishment at all and

if there happens to be some violation, we are just asked why it happens.” (Developing country

– Interviewee 2)

SUMMARY

Most government actors referred CBD agreement as a framework and guidance for

the law-making process in the national context. They consider the role of the CBD is a more

facilitative process which means that through the CBD, country parties are more encouraged

to identify challenges and what kind of assistance they need to address the problem of

biodiversity management in the national context. Among other reasons, CBD is perceived as

more facilitative and voluntary-based agreement than law because of the wide-ranging topics

under CBD, and not all the issues are relatable to every country. The CBD is as an international

legally-binding treaty as mentioned in the Article 6B, each country has to take into account

principle of conservation and sustainable use of biological diversity into relevant sectoral

programs or policies, although each country has flexibility to adopt and translate the

provisions of the CBD. Here is another reason why the CBD is considered a voluntary-based

agreement according to some government actors. They also emphasized that every decision

taken in the Conference of Parties or COP is not legally binding. Even so, the CBD is deemed

pivotal to bringing concerted effort in biodiversity preservation as stated by the interviewees.

Different from the Conventions, both Protocols have their own specific topic, and all ratifying

countries have developed legislation aligning with the Protocols though some countries

especially developing ones, are yet to make or improve the domestic regulation and laws on

ABS.

5.1.2 Influence of Different Types of Laws within the CBD

Sub-research question 1B focuses the influence of laws within the CBD in national

scope and how the government perceives a difference in the influence of hard and soft laws

elements within the Convention and its Protocols . The ‘influence’ can be analyzed by letting

the interviewees determine their own assumptions which one is considered as ‘soft’ or ‘hard’

law in the CBD agreement; whether ‘hard’ and ‘soft’ law affect their behavior in working

within global biodiversity issues and if so, in what way it affects them.

(NOT ONLY) THE CBD MAKES BIODIVERSITY AS AN IMPORTANT ISSUE

Speaking of influence, the respondents accepted that the Convention and its Protocol

bring influences both in national and global political arena. They all stated that the CBD had

made a difference in how biodiversity issues is currently considered as global economic and

development issues. Illustrating how CBD have influenced the country parties, some national

reports highlighted the country’s economy and production activity in the report and its

implications for biodiversity (NR4, NR10, NR11, 2014). While most developed countries

already have policies and laws in place to regulate all activities that might potentially harm

biodiversity, some parties of developing country are still paving a path to mainstream

biodiversity in sectoral aspects, and accordingly they stated that mainstreaming biodiversity

is a part of national goals (NR5,2007; NB7,2015). One report from a developed country

mentioned that the CBD is an international law regarding this activity indicates that being a

party to the CBD does not mean the economy and production-related activity is prohibited as

long as it does not negatively impact the biodiversity (NR4,2014). Some developed countries

have reported their commitment of financial and capacity-building provisions to developing

countries according to the Articles 20 and 21 CBD within national reports (NB4,2011;

NB11,2010; NB13; NR4,2014; NR11,2014; NR13,2014). One interviewee from a developed

country mentioned that many private and financial industries are showing interest to

contribute financially in post-2020 global biodiversity framework, particularly the agri-food

industry, given that biodiversity significantly impacts their business (Developed country-

Interviewee 8). Another interviewee admitted although there are changes in terms of

attention on achieving global environmental goals compared to when she started working 18

years ago. She believed that it could not be attributed entirely to the CBD, climate change

through the UNFCCC has played a role in elevating overall environmental issues, including

biodiversity (Developed country- Interviewee 7). It was also admitted in the NBSAP reports

of some countries that others biodiversity-related conventions also play a role (NB1,2016;

NB8,2015; NB10,2018; NB14,2015). Conversely, the influence of the CBD on the national

scope was perceived differently by government actors; only six of the fourteen respondents

of different countries stated that the creation of national law and policy builds upon the CBD

in terms of how biodiversity issue is taken into account within national planning (Developed

country- Interviewee 5,11,12; Developing country- Interviewee 1, 2,6)

"Obligations under the CBD were one of our government's key drivers in developing the

Environment Protection and Biodiversity Protection Act 1999, which is a key piece of

environmental legislation in our country." (Developed country – Interviewee 11)

"First we ratify the CBD, the CBD is started and it was agreed on 1992 and started 1994, we

released our biodiversity law in 1998. The biodiversity law was inspired on the CBD."

(Developing country – Interviewee 6)

As it can be seen that many interviewees agreed that the CBD elevates the biodiversity

issue; on the other hand, some interviewees disagreed that the CBD had influenced the

national legislation. Some countries, which are among world’s biodiversity-rich regions,

stated that the issue of biodiversity had been put in national legislation before the ratification

occurred , hence the CBD does not bring influence per se (Developing country- Interviewee

1,9,10; Developed country- Interviewee 7). The sovereignty issue

is also mentioned by the

three interviewees of developing country (Developing country- Interviewee 1,2,9). These

actors emphasized that they have always tried to comply with the provisions of the CBD and

Protocols such as reporting, and it does not mean they will change their national legislation

because of the CBD (Developed country- Interviewee 7; Developing country- Interviewee 9).

“In the Ministry of Agriculture, we do not have policy developed because of CBD or different

ways of working because of CBD, we were working because that is how we work not because

of the CBD.” (Developing country -Interviewee 9)

“I would not say influence legislation per se, at the time of signing it helps motivate to develop

some new legislation then once legislation is developed we just continue to work within the

framework,it serves more like bringing global attention to prioritize for us in term of the

relationship as people with nature.” (Developed country – Interviewee 7)

One intervieewee had an opinion of how the provisions of the CBD are taken

differently between developing and developed countries.

“...In western countries, we see if there is an issue with no legal form of regulation. Then the

issue will be taken into account as a legal form or law. For example, In here everything is

heavily regulated. For instance wildlife control, in the western countries despite no national

law regulating the issue but IUCN issues a guidance, people and government will follow it. The

guidance could be called ‘law’ for them and everything here is regulated and must follow

government-issued regulation.” (Developing country- Interviewee 1)

Sovereignty can be briefly described as the power of a country to control its own government

Derived from the opinion of interviewee 1, many questions might be asked, but I had

to track the time as most interviewees did not have much time to explain further. To my

knowledge and interpretation, the statement from interviewee 1 indicates that the

sovereignty issue in the country or generally developing countries is stronger. One of the

interviewees from developed countries gave the explanation, which somewhat could be the

answer to what Interviewee 1 said. Since most country representatives interviewed are a part

of the European Union (EU) and the EU is also a party to both Protocols and the Convention,

interviewee 5 explained that the push for adoption of the Convention and its Protocols are

obligatory. According to him, there are two important bodies: member states and competent

authority in the law decision-making process of the EU (Developed country- Interviewee 5).

The EU countries are defined as member states and a competent authority is an organization

that helps with the adoption process of international agreements to be legally implemented

across its member states (Developed country- Interviewee 5). For instance, producing

guidance documents in terms of what legislation means and how it should be applied

nevertheless, each EU party has sovereignty in terms of how it will be translated into national

legislation (Developed country- Interviewee 5). All the interviewed EU countries were a

member of the European Union prior to the open signature of the CBD, which makes it

legitimate to say that being a Member of the EU has influenced the country to pursue

biodiversity conservation efforts in the national context (CBD website2, n.d).

THE INFLUENCE OF THE CBD’S PROTOCOLS

There are also Protocols accompanying the Convention, the Cartagena and Nagoya

Protocol. The Nagoya-Kuala Lumpur Supplementary Protocol, as a newly developed the CBD

protocol, will not be considered in the analysis as it is quite early to measure the influence.

All countries interviewed are parties to the Convention, and nine out of fourteen nations are

parties to both Protocols aswell, accordingly all of them have different reasons and views of

being a party to the Protocol. Two interviewees from developed (Interviewee 4) and

developing country (Interviewee 2) parties stressed the importance of being a party to the

Nagoya Protocol. They believed that eventually, all countries would ratify the Protocol in the

future (Developed country- Interviewee 4; Developing country- Interviewee 2). He

recapitulated that all countries must have understood that when a country became a party to

the Nagoya Protocol, automatically any exchange of genetic materials would be traced, and

people who intentionally brought genetic materials to their home country without any

permits issue could be persecuted (Developed country- Interviewee 4). Likewise, interviewee

4, interviewee 2 mentioned that although the ratification of Protocol is essential, the country

has always considered the cost and benefit before the Protocol’s ratification (Developing

country- Interviewee 2)

“Regard to the Protocols, we consider the benefit we will gain. For instance, Cartagena

Protocol deals with the transboundary movement of GMOs. If we do not comply, we cannot

market our products in foreign countries, same for Nagoya Protocol because there is a clear

benefit. Hence it is far easier for us to engage with Protocols.” (Developing country –

Interviewee 2)

Another important point made by Interviewee 6 that the reason why the country did

not want to ratify the Protocol because it is not as ambitious as they wanted to

"They said that during the negotiations of the Nagoya Protocol, the Nagoya Protocol is not as

ambitious as they wanted, and so we are, but the point is when you are negotiating with more

than 100 countries, it is challenging to have like a good text that everyone is happy so the

protocol is kind of writing in their mind and they wanted to be more ambitious" (Developing

country – Interviewee 6)

She emphasized that although the country is currently not a party to the Nagoya

Protocol, it does not mean we do not sympathize with the provision of Protocols as the access-

and-benefit sharing which has been reflected in the text of Convention (Developing country-

Interviewee 6) . According to the text of Convention under article 15 . it is also explicitly

mentioned the procedure for genetic resources exchange, or so-called Access and Benefit

Sharing (ABS) reflects the third objective of the Convention. The Nagoya Protocol makes ABS

procedure mandatory when a country wants to gain access to genetic resources where it is

originally from, and both country users and provider of genetic resources have to agree on

benefits from both sides (either commercially or result-sharing) (Secretariat of the Convention

on Biological Diversity, 2005).

For further investigation, the Protocols' influence will be explained by analyzing the

interim national report on Protocols implementation, given there is not much information on

Protocol implementation in NBSAP and national reports. Looking into the national interim

report on the Cartagena Protocol, all country parties have a system regarding legislatio,

regulation, and guidelines (IR-Cartagena 1,2,3,4,5,8,10,11,12,13,14, 2007). The nationwide

implementation of the Cartagena Protocol is consulted across ministries and private sectors ,

and some countries only have a single minister or organization in charge of the matter. The

report has a common and strict format across country parties which is tailored in question-

and-answer format that obliges each party to provide relevant answers accordingly. Unlike

the NBSAPs and national reports, which have several topics to report on and there is greater

flexibility for each country in terms of what to report on, although there is a guidance from

the CBD Secretariat (UNEP/CBD/COP/DEC/IX/8; UNEP/CBD/COP/DEC/X/2) . An example of

question asked on the report is whether actions have been undertaken in the national context

of the Cartagena Protocol’s implementation; most answers provided by parties are the list of

issued laws and regulations.

In connection with the Cartagena Protocol, country parties have the legal regulation

and policy to support the Nagoya Protocol implementation, which is conducted across

ministerial bodies. All EU countries expressed in the report that the provisions of Nagoya

Protocol have been aligned with EU regulation 511/2014; most EU countries have provided

financial and capacity-building requirements to the developing ones through bilateral

cooperation and global biodiversity fund agency. It can be said that the EU, as a party to the

Protocol also plays a role in bringing the influence to its country members (IR-Nagoya 3 and

4, 2017, IR- Nagoya 10,11,13, 2018). All developing countries that are party to the Protocol

mentioned in the report that national regulation on access-benefit sharing mechanism was

developed prior to the ratification of Protocol (IR-Nagoya 1,7,8, 2018), some of which also

highlighted how much share of their national GDP as means for the Protocol’s

implementation (IR-Nagoya 1,7,8, 2018). The Nagoya Protocol is among the first global

agreement relevant to indigenous and local communities, which makes indigenous people's

rights acknowledged as the legitimate owner of genetic resources. Some countries have

integrated indigenous people's rights into the national policy, and some have not, but these

countries require country users to obtain indigenous people’s consent prior to genetic-

resources use (IR-Nagoya 14, 2017; IR-Nagoya 8, 2018). The country parties of Nagoya

Protocol are obliged to report if there is a breach incident, for example, people do not have

permits over genetic resources. Based on the reports there is no incident however it is also

stated explicitly that some countries do not have or still developing specific policies for the

Protocol’s implementation.

NO DIFFERENCE IN TREATING THE CONVENTION AND ITS PROTOCOLS

Furthermore, I will also investigate if there are any differences in how country parties

work with the Convention and its Protocols. Four out of fourteen nations agreed there are no

differences in how they work with Protocol and Convention (Developed country- Interviewee

12,13; Developing country- Interviewee 2,15)

“Our country has ratified both Protocols, the Cartagena Protocol and the Nagoya Protocol,

and we work with both, and then of course, the Protocols have more specific concrete

obligations that you need to fulfill. So in that case, let’s say more straightforward to see what

you have to do to comply with this obligation, so yeah I would say that is the difference.”

(Developed country – Interviewee 16)

“The Convention and then the Protocol, right ??, I think it is not different, because the Protocol

is an under the Convention and we call it “children of the Convention” so we do the same .”

(Developing country – Interviewee 15)

The only highlight they all mentioned is that the Convention is somewhat broader and

less precise, whereas the Protocols is more specific and targeted (Developed country-

Interviewee 16, Developing country - Interviewee 15). One developed country added that

even though the Convention has overarching topics, it is still helpful to guide the national

policy and law (Developed country- Interviewee 16). Furthermore, three interviewees

considered the Convention a piece of soft law as there are hardly any consequences of not

implementing it and it is up to States to translate the provisions into national law (Developed

country- Interviewee 12 and 17; Developing country- Interviewee 2). The Cartagena and

Nagoya are legally binding Protocols equipped with a compliance committee, which makes

the Protocols and Convention have a different nature of legalization. The Protocols have a law

that is ‘harder’ than the Convention, according to the Article 34 and 30 of Cartagena and

Nagoya Protocol respectively as well as COP decisions (UNEP/CBD/BS/COP-MOP/1/15;

UNEP/CBD/NP/COP-MOP/DEC/1/14). The compliance committee will promote and identify

the need for support to address challenges related to compliance with the provisions of the

Protocols rather than delivering punitive actions in case the obligations is not fulfilled.

SUMMARY

All interviewees accepted that the Convention and its Protocol have brought influence

to put effort for biodiversity conservation and is shown in the NBSAP reports; some countries

highlighted the implications of country's economy and production country toward

biodiversity. One interviewee stated that many private sectors are interested in biodiversity

issues because of the Convention. However, not all influences can be attributed to the CBD

only; several biodiversity-related conventions and climate change issues have credit for

elevating the overall environmental issue, including biodiversity. Other government actors of

developing country who are among the world's biodiversity-rich countries argued that the

CBD does not bring influence per, given they had national legislation in place before the

ratification occurred. Similar to some developed countries that are party of a supranational

organization such as EU, the organization exerts a force on its member states to ratify and

implement the CBD provisions.

Not all countries are party to both Protocols, having said that, they sympathize with

the Protocol's provisions by developing specific measures, for example the use of genetic

resource, which aligns with the Access and Benefit Sharing (ABS) principle. The Convention

also has a provision on ABS under article 15 of CBD, which explains another source of the

Protocol’s influence . According to the country's national interim report, parties to either or

both of Protocols developed specific regulations aligning with the provision of Protocols and

the implementation are consulted across ministerial bodies. Therefore the interviewees

perceive no difference when working with the Protocols or Convention. According to the

Convention's text, there are hardly any consequences of not fulfilling the provisions of CBD.

Some interviewees also stated likewise that they refer to the Convention as a piece of soft

law. Unlike the Protocols that have compliance committee according to the Article 34 and 30

of Cartagena and Nagoya Protocol, respectively, there is no punitive measure, and it gives a

sense that the Protocols are 'harder' than the Convention itself.

5.1.3 The CBD as an (Ideal) International Biodiversity Law

Sub research question 1C intends to investigate further how the international

biodiversity law should be designed according to government actor’s thought. Some

government actors were confused when asked the questions since it was a difficult question

for them, and the circumstance made the researcher probe with the example of answers such

as should it be a protocol or umbrella agreement, how specific obligations are, should there

be a degree of follow up or enforcement etc. Given that most government actors had

experience as a negotiator or diplomats in the field, the following findings shed light on how

the current state of biodiversity law should be improved .

THE ISSUE OF BIODIVERSITY SHOULD BE MADE LEGAL

The answers provided vary among actors, while some interviewees followed the

guiding questions, others had their own solutions. When the researcher asked the question,

two parties of the developing country expressed explicitly that the biodiversity issue has yet

to be made as a law

“I think it should be a law, because in our country it is not a law...” (Developing country –

Interviewee 15)

“We could say that NBSAPs in our country do not possess legal force despite the ministry of

national development planning involvement aswell, if we are asked how CBD works as an

international legal entity in our country. We can only say, viewing from legal aspect it is a slow

process indeed and formation of biodiversity-based policy in our country is still weak to be

implemented in across sector...” (Developing country – Interviewee 1 and 2)

The statements mentioned above infer that the CBD's provisions translated to the

NBSAPs, are yet to be legalized as a legal entity in the national context. Following the Article

6 of CBD it says country parties have to adopt, translate and integrate the objective of CBD

into national planning, but it is up to States whether it will be legalized in the country or not,

nonetheless they agreed that NBSAP has to be made as a national law or possess legal entity

to bolster implementation (Developing country- Interviewee 2,15). Only a single government

actor mentioned that the biodiversity has recently been included in the country’s national

development planning, which is a legal document, she said it can make the political level

endorsement of biodiversity issue higher. Moreover, putting biodiversity issue as a part of the

legal document will make interministerial coordination more visible (Developing country-

Interviewee 2).

CBD MUST REMAIN A SOFT LAW

Two developed country parties believed that the Convention and its Protocols as an

international biodiversity law are already the best versions of an umbrella agreement for

biodiversity given the level of complexity (Developed country- Interviewee 5,7). Other

interviewees suggested that the international biodiversity law must be a soft law, but it shall

not make country parties fall back and unambitious in achieving the target (Developed

country- Interviewee 12).

" One of the main problems with the CBD is that it is a very soft law which means that there is

hardly any possibility to address issues of non-compliance and non-implementation, and that

would-, on the one side, can be good to have a soft law convention that as much stronger. On

the other hand, having a much stronger Convention would probably preclude having an

ambitious Convention. So, trying a balance there is a difficult but important issue.” (Developed

country- Interviewee 12)

One interviewee gave an example why it has to be a soft law, he knew there was a

country that had developed a legally-binding protocol under national law to address the

biodiversity issue; it did not go well and turned out relatively weak (Developed country-

Interviewee 17). Another reason it has to be made as a soft law is that there is much

uncertainty of national and global circumstances e.g : COVID-19 pandemic, which makes

countries redirect resources to address health and well-being issue (Developing country-

Interviewee 14). In the NBSAP reports of some developing countries, it was emphasized that

the framework should recognize common but differentiated responsibilities, meaning that the

effort of biodiversity conservation has to be taken asymmetrically among developing and

developed countries as their capabilities are also different (NB1, 2016; NB8,2015; NB12,2016).

Correspondingly it is also supported by some developed countries during the interviewees,

thereby, communication among countries remains pivotal to keeping track of conservation

effort’s progress (Developed country- Interviewee 4,5,7).

One developed country proposed the idea that international biodiversity law ideally

has to be built upon the law applied in the country parties (Developed country-Interviewee

5). Others proposed that the CBD needs better modes of sanction which can be done by

connecting biodiversity law or to other international laws (Developing country- Interviewee

3,14). One developing country gave the example of a wildlife trade issue that is regulated

under the CITES agreement, comes into the remit of UNCTAD, and makes the financial

components much more effective (Developing country-Interviewee 3).

THE CBD MUST HAVE SPECIFIC AND MEASURABLE TARGETS

Most countries argued that the CBD goals and targets must be made less, and the

metrics must be measurable and explicit (Developed country- Interviewee 7,11; Developing

country- Interviewee 3,9,15). Country parties also acknowledged this in the submission of the

structure of post-2020 global biodiversity framework (Australia Post2020, 2019; South Africa

Post2020, 2019; Norway Post2020, 2020; UK Post2020,2021). One developed country party

suggested that the CBD has to focus more on the obligation-based process, and the

agreement must have targeted actions where shared actions are needed (Developed country-

Interviewee 7):

“I think an umbrella agreement with specific targets where shared action is needed, is probably

the most effective way instead of having a one size fits all solution. With the specific targets,

the level of the problem you are trying to solve can be determined. Either it is about invasive

species, in-island ecosystems, sustainability of trade amongst countries and protection along

the migratory pathway but you are looking at biodiversity as a proxy.” (Developed country-

Interviewee 7)

She gave an example of international agreements that focus on the single-specific

issue, the CITES agreement, which successfully created the whole system for species tracking

and sustainability of trade, also the CMS agreement which builds relationships between

countries along with species migratory pathway and looks at species as a proxy and examine

how it is related amongst countries (Developed country-Interviewee 7). Standardizing the

target measurement was also proposed by one interviewee, he proposed it would have been

better if there are two parts of the target-monitoring framework; the main and secondary

ones (Developed country-Interviewee 13).

“..So we have to use a common set of indicators that can rely on available data, almost

everywhere, so each country can indicate its contribution to the indicator, and then we

aggregate all the national values to have the global value. I think there will be two-part for

the monitoring framework; common parts with the main indicators of the datasets and

databases with the same indicators to bring back all these images in global but alongside with

this some controls as if there is, so they can add the main set of indicators of some

complementary indicators that suit to their specific topics.” (Developed country- Interviewee

13)

He noted the main part of targets have to be made obligatory for a country to report

on, with same methodology to measure and the secondary ones will remain an optional for

countries (Developed country – Interviewee 13). In that way, it will be much easier for each

national indicator to be aggregated at a global level, making the global implementation’s

progress is trackable (Norway Post2020, 2020; UK Post2020, 2021). Two interviewees stated

that reporting remains an essential part of success in achieving global biodiversity targets. For

instance some of the targets should have intermediary reporting lines just as the Protocols to

ensure that it will not be a total failure in the final assessment (Developed country-

Interviewee 7; Developing country-Interviewee 10)

THE CBD SHOULD BE UNDERSTANDABLE IN BOTH LOCAL AND GLOBAL CONTEXTS

Furthermore, two government actors argued that the CBD provisions must be easily

digestible in the global and local context to enhance the implementation (Developed country-

Interviewee 5,7). One developed country gave examples of situations within logging

companies where many people have different roles (Developed country-Interviewee 5). He

explained that each of them has their different motivations or needs to work there, and often

the policy adopted from the global context barely have not addressed all their mundane

motivations or needs equally or, in other words managing the complexity of all drivers of

biodiversity loss, that potentially undermine the optimality of conservation and sustainable

use

“....the scientists, they were looking to improve timber extraction and sustainability. A lot of

what they were looking at was long-term forest management. The forest manager was looking

to maintain short-term returns, so he had to carry on producing the timber for his company,

and they could not start saying... well, we are going to cut less, we are going to go further and

be more selective in the stands we cannot because that will give us a longer-term benefit. This

company was saying we need the income now and the guys with chainsaws... well what I

wanted to do was to go at the count, the number of stems I had to cut, and come back as fast

as possible to have a beer... If you start looking at the drivers of the different stakeholders,

that is, the forest labor. You have got a lot to bring together to develop and deliver something

optimal for conservation and sustainable use.” (Developed country-Interviewee 5)

SIMPLIFICATION OF PROTOCOL’S PROCEDURES

Regarding the Protocols, one party argued that a lot could be improved to simplify the

procedure of Protocol, particularly in acquiring prior-informed consent of genetic resources

use which is part of the Nagoya Protocol’s provisions (Developed country – Interviewee 4). He

further argued that the simpler the process is, the more it potentially invites more people to

voluntarily comply with its policy and regulation (Developed country – Interviewee 4). As a

result, every activity involving genetic-resource exchange will be well-documented, and in the

long-term, the cooperation between the country’s user and provider of genetic resources will

be strengthened, thereby achieving the third objectives of CBD.

“It should be very simple, I will give you an example if you go to Ethiopia. As a researcher, you

got it in Eithopia and if you want to use material from Ethiopia in your research, you must

apply for a permit. The government of Ethiopia demands you to bring a letter signed by your

country’s government in which they guarantee that you will not use the material improperly.

Well, of course this government cannot guarantee the behavior of its individual citizen. It is

very difficult because they ask and have demands that are impossible to fulfill from the

researcher's lens.” (Developed country – Interviewee 4)

According to the meeting notes of CBD, several parties called for the integration of

CBD with its Protocols to enhance the implementation in national context, and some

interviewees acknowledged that the different nature of Protocols from the Convention make

the adoption process is lengthy and expensive (Developed country- Interviewee 4;

Developing country- Interviewee 6; Earth Negotiations Bulletin2, 2019; 2020; 2021). There is

no major discussion on how the Cartagena Protocol should be changed except on

multisectoral and regional cooperation to exchange practices and knowledge on biosafety

(Earth Negotiations Bulletin, 2016). Similar to the Nagoya Protocol, not all country parties

have differentiated the use of genetic resources between commercial and non-commercial

research. However, it is barely realized when high economically profitable results are

obtained from basic research. It is equally important, especially for indigenous people and

local communities as the legal beneficiary of genetic resources, to receive both monetary and

non-monetary benefits thus capacity building and knowledge exchange are urgently required

(Thomas et.al, 2012). By integrating the CBD and its Protocols, technically, it will make

efficient use of human and financial resources.

SUMMARY

With regard to the question 1C, which focuses on ideal form of international

biodiversity law, two parties expressed that it should be made as law and they referred to the

Convention and NBSAP itself has to be legalized to receive high political level of endorsement

across ministeries. Some interviewees believed that the Convention and its Protocols are

already the best versions of an umbrella agreement for biodiversity and it has to be made soft

law as the current state, thereby communication across ministers and governmental actors

are needed to ensure that countries do not fall back in achieving the target. Most countries

argued that the CBD principles, goals and targets must be focused in key specific areas by

which it can address the overarching objective of the CBD. Reporting is yet acknowledged as

a useful tool to track the implementation’s progress with standard metrics and methodology

so it will be easier to be aggregated at global level as well as having intermediary reporting

to ensure it will not be a total failure in the final assessment. Moreover, to enhance the

implementation, two government actors argued that the provisions of the CBD must be

relatable both in global and local context so the impact can be seen locally, for example

managing all drivers of biodiversity loss. Most government actors also called for the

integration of the CBD and its Protocols to promote the compliance and make efficient use of

human and financial resources.

5.2 Factors That Make the CBD Works In National & Global Context

The previous chapter has addressed how government actors define what is law and

what is not in the international biodiversity regime, then continued with which ‘soft’ and

‘hard’ law are found in the CBD agreement, which is described as the CBD framework and

both Protocols respectively. The government actors also gave insight on how the laws should

be made to bring more positive influence. The current chapter will elaborate on how laws

within the CBD works at the national and global levels, focusing on what factors can enhance

or obstruct the operation of law.

5.2.1 National Context: Preventing & Enabling Factors of the CBD Implementation

In the interviews, the government actors were asked what is needed to overcome

obstacles for implementing the CBD that occurs in national context. Some mentioned the

enabling factors only, and others described both enabling and preventing factors. In the

following paragraph, all factors that are obstacles to the implementation according to

government actors will be written down first and the enabling factors will be structured

separately hereafter.

PREVENTING FACTORS

BIODIVERSITY IS YET TO BE TREATED AS A SECTORAL ISSUE

One foremost factor that the respondents considered hampering the implementation

of CBD provision is the fact that biodiversity issue is yet to be treated as an important

sectoral issue. It is also mentioned by government staff from developing countries that their

country has just recently included the issue of biodiversity in long-term national

development plan (Developing country- Interviewee 1,2). Other parties from developing

country also said that biodiversity always goes second because many issues are yet to be

addressed in the national context (Developing country-Interviewee 10,15).

“ I am sure many of the guys from developing countries will always tell you this, and it is

always a case of national priorities, elevating poverty and creating jobs, service delivery, that

will always create that battle. You know you went to many communities where you do

research, and they tell you, and yeah, you are here to tell everyone to agree, but we are

hungry.” (Developing country – Interviewee 10)

“Its a bit hard to cooperate with the other ministry because like the other country as well like

the ministers have their responsibility and the biodiversity might not be the main priority to

do so.” (Developing country – Interviewee 14)

Another reason the issue of biodiversity always goes second is that the country's

development is nowhere close to the national goal, especially the developing ones as

acknowledged by one party (Developing country- Interviewee 1 ) . He added that it would

be different from a country where the national goal has been achieved (Developing country-

Interviewee 1) .

We see that the development goals of our country has nowhere close and will be different

from the country that the goal has been achieved, to name a few, Saudi Arabia. Thus, they

are more flexible in what they want to do since the power of technology, finance, and science

can contribute to preserving biodiversity, except if this country takes extreme decisions as

the country of Nepal, for example. The Nepal government says that we want to be a green

country means every decision they take will always consider’living in harmony with nature’.

They want to live as a ‘country within a forest’ not as a ‘forest within country”. There is

always a trade-off between development (Developing country- Interviewee 1)

Although every country has its own legislation on the national plan that consider

biodiversity issues as guide of the country’s development, the legislation will not always

work in reality (Developed country-Interviewee 5). At the end of the day, the decision has to

be made by policy-maker where issue of biodiversity is often overlooked with other national

priority issues (Developing country-Interviewee 14). Striking a balance between

development needs and biodiversity preservation also becomes a constant challenge; one

developed country exemplified that only 3% of the country can be suitable for agriculture

and protection of biological diversity, along with the needs of building railroads, roads and

houses is always an issue (Developed country-Interviewee 7,12,17).

“One of our country's major elements is a federal country, which means that anything that

comes out of the Convention or Protocol has to be analyzed to see where the competence is,

out of the different region and the federal level related to. And that sometimes, can take a

bit of time before the correct level of governance is identified to implement certain elements

of the Convention and its Protocols.” (Developed country – Interviewee 12)

In connection with the above-mentioned problem, achieving the objective of

development-related policies in balance with the national ecosystem's health becomes

another challenge. For instance, an agricultural and fishery activity contributes to a major

part of some countries' national revenue, as indicated in the national reports (NR10, 2014;

NR14, 2014). Two countries highlighted that they have difficulty in identifying changes in the

state of biodiversity over a short period as a result of fishery activity (NR10, 2014; NR14,

2014)

LACK OF HUMAN RESOURCES AND RESEARCH CAPACITIES

Lack of capacity building serves as another challenge. The promotion of sustainable

management of national biodiversity will not be achieved if there are lack of personnels who

have good biodiversity-related knowledge, especially to identify some economic or industry

activities that are not known yet, bringing harmful impacts on biodiversity as indicated in

the NBSAP report of some countries (NB1,2016; NB2,2014; NB8,2015; NB9,(n.d);

NB10,2018; NB11,2010; NB12,2016). One interviewee argued that it is a significant problem,

especially for global south countries

“Capacity is a clear barrier, In the West, it is a difficult to appreciate the problems that many

countries have. Our country has a CBD focal point, SBSSTA, GTI, GSPC, etc. You get some

countries, there is one person handling all of that plus plus. Capacity constraints occur at the

governmental level in many countries. Now that is capacity at the official governmental level,

and you can get capacity issues at the implementation level. So first of all, the people

implementing, you have got to understand what government wants like that, that is going

to understand what implementation looks like and what is required,not easy, definitely not

easy.” (Developed country-Interviewee 5)

He also added that although the majority of the interviewed respondents

acknowledged that capacity-building remains an issue in the national reports (NR1, 2014;

NR2, 2014; NR5,2007; NR7,2015; NR9,2014; NR10,2014), there is not much clarity on what

it means and how should it be implemented (Developed country-Interviewee 5). These were

also acknowledged by the developing country respondents in the following statement, who

gave an example that the problem is not just lack of resources and personnel, but also they

do not know what kind of assistance they need (Developing country- Interviewee 9)

“As a country, if you do not know what you need, the option of articulating what you need

will be challenging for someone else to provide that support, or the support could be provided

but based on the agenda of the donor and not what the country needs, and therefore there

will be no impact at all even if there is money and there is process.” (Developing country-

Interviewee 9)

Other respondents continued to say that some countries, especially the developing

ones, do not even have sufficient people working on this topic. For instance, one national

focal point is the focal point for five conventions, and the circumstance brings many

disadvantages, making it even longer to adopt and implement the provisions of CBD and its

Protocols (Developing country-Interviewee 1,9,10). Recognizing that some world’s

biodiversity-rich countries are also below the poverty line, it becomes even worse especially

when everything is currently going online. They have difficulty joining negotiations due to

unstable electricity and internet access (Developing country-Interviewee 10).

It is a similar situation for both Protocols, some countries stated that they perpetually

experience struggles, particularly for implementing the Nagoya Protocol. However, none of

them mentioned the Cartagena Protocol, indicating there is probably a less primary issue in

that Protocol. Two interviewees of developed and developing country parties recognized the

importance of ratifying the Nagoya Protocol, however, the discussion on whether the

Protocol should be adopted, remains dead-end due to conflicting internal understandings

(Developed country 7-Interviewee 7; Developing country-Interviewee 6,15). One

interviewee of developing country also gave the example that there is a probability the

government will ratify the Protocol through the adoption process is very lengthy and

expensive (Developing country-Interviewee 6).

“Conservation and the sustainable use of resources are fundamental for our country through

fair trade, and it is a very ingrained part of our society and well understood. Whereas the

access and benefit-sharing of genetic resources are not historically that has, you know, driven

our sentiment either in culture or economic.” (Developed country– Interviewee 7)

LOW AWARENESS OF BIODIVERSITY ISSUE

It also relates to the third issue, low awareness among government actors. One

respondent from developing country believed that low awareness leads to insufficient

coordination at the national level, which cannot bring all relevant actors together to adopt

decisions coherently and efficiently (Developing country-Interviewee 9). One interviewee

argued the biodiversity issue would have been coordinated thoroughly and urgently if only

the elected head of state had come to the meeting instead of the ministry leader (Developing

country-Interviewee 15). The COP-CBD meeting could be an example where only the

minister-class leader came and negotiated. Another example is the process of acquiring

consent on genetic resource use, under the mandate of the Nagoya Protocol which is a very

lengthy and time-consuming. According to one interviewee, the regulation could have been

made more uncomplicated to enhance lay people's awareness of the law (Developing

country-Interviewee 6). Two government actors mentioned that all government officials in

the country already know the issue. They gave an examplet that in every discussion, the issue

of biodiversity is always on the table, but they also acknowledged that turning the awareness

into action appears more difficult because the trade-off in other areas always comes

unhindered (Developed country- Interviewee 12, Developing country- Interviewee 9)

FUNDING

Funding has been another fundamental issue in the national implementation of the

CBD, and all government actors highlighted the lack of funding to implement the provisions

of the CBD in national context. According to the meeting note on the UN Biodiversity

Conference part 1, the number of parties have not given their annual contribution for the

core budget for 2020 and prior years, some countries have never paid once, which indicates

that some nations lack financial means for implementing biodiversity conservation efforts

(Earth Negotiations Bulletin, 2021). One developed country party talked about the OECD

report highlighting that international funding for biodiversity from developed countries did

not reach all countries (Developed country- Interviewee 5)

“The major character, of course,a funding. But you might have seen the OECD report last

year on the contribution to national biodiversity funding through multilateral and bilateral

cooperation. Is it reaching everywhere now ?, it is clearly not reaching everywhere.”

(Developed country – Interviewee 5)

Second to the lack of funding, the authors of the report proposed the need to

investigate further whether some portion of these flows are relevant to biodiversity-related

activities since the budget is very limited (OECD Report, 2019). Meanwhile, biodiversity

funding sourced from company is still very limited to the sectors such as agriculture,

livestock, food and beverage, cosmetic manufacturers, and renewable energy which

explains why the total amount is relatively low compared to climate-change-related

investments (NB1, 2016). Hence promoting the capacity development of people specialized

in biodiversity-related information will potentially help identify the source of funding from

more industries (NB1, 2016; NB10, 2018; NB11,2010).

ENABLING FACTORS

COORDINATION ACROSS MINISTERIES

To address the preventing factors, half of the interviewees argued that it is pivotal to

communicate the provisions of CBD across governmental departments (Developed country-

Interviewee 7,11,12; Developing country-Interviewee 1,2,6,9,10). Of those interviewees, the

country has only at least four ministerial bodies involved directly in the CBD meeting—

environment, fishery, forestry, and agriculture. Some countries explained how biodiversity

interlinks with other issues by giving an example of the implications of fertilizer use and its

waste on soil health, maintaining a healthy fish stock in ocean, agricultural expansion in the

natural landscape (Developed country- Interviewee 5,12). Furthermore, these commodities

are also essential to serve domestic and foreign needs, which underlines the importance of

collaboration with other ministerial bodies, such as ministry of trade and economy, to

maintain sustainable biodiversity management (Developed country – Interviewee 17,

Developing country – Interviewee 1,2,10). Although one developing country argued that

interministerial negotiation is regarded as not an easy negotiation (Developing country-

Interviewee 9)

“. And of course there are different approaches on the minister of agriculture has different

objectives and interests compared to the minister of environment, that obviously is a case.

However there was always an intention to bring two things together, at least to have people

sitting around the same table, discussing and trying to identify their priorities for their

country.” (Developing country – Interviewee 9)

Two respondents stated the importance of incorporating human dimension to drive

a sense of urgency in addressing biodiversity issues (Developed country- Interviewee 5,

Developing country- Interviewee 12). Another interviewee stated explicitly that the post-

2020 global biodiversity framework must be different by creating a broader issue that makes

all stakeholders aware (Developing country- Interviewee 1). He suggested that the post-

2020 global biodiversity framework must be equally resonant as the SDG issues related to

the duty and responsibilities of more ministerial bodies in the government (Developing

country- Interviewee 1). His argument was aligned with what some governments have said

at some meetings of the open-ended working groups that Aichi Targets should communicate

the vital role of biodiversity in human-well being (Earth Negotiation Bulletin,

2019;2020;2021)

“..creating biodiversity as a wider issue; it is seen that managing biodiversity conservation is

aided by including the human livelihood dimension. So you're not doing things in isolation,

you are actually supporting people to conserve somehow.” (Developed country – Interviewee

5,7)

The low consideration of biodiversity as national priority issue is defined as a

preventing factor of CBD implementation in the national context (see section). Some insights

from government actors on how to enable the biodiversity issue to be a national priority are

summarized in the following paragraph. First, by using political pressure from supranational

organizations such as an EU; the organization exercises powers of sovereignty that have

been deliberately ceded to the organization by its members, as acknowledged by

interviewees among EU countries (European Union, 2012). Although it has been explained

in the previous section that the EU’s role is only limited to influencing its Members to

implement the provisions of the CBD. However, it can be argued that the influence is binding

enough to force the country members to ratify and align national law and regulation to the

CBD and both Protocols, considering the EU is also party to them (Developed country -

Interviewee 4,5,12,13,16). One developed country party even mentioned that the EU target

is higher for biodiversity target than for global biodiversity target.

“...If you look at the history of the biodiversity targets, if we thought of with the 2010 target,

the EU had a far more ambitious goal than the international goal, remember 2010 was when

EU wanted to halt the loss of biodiversity, whereas the international goal was to reduce the

rate of decline of biodiversity.” (Developed country- Interviewee 12)

Secondly, representatives of non-EU countries highlighted the importance of regular

reporting and monitoring of each region or province within the country aside from

mandatory reporting for fulfilling the obligations of CBD (Developed country- Interviewee

7). By performing a constant review and redrafting of the biodiversity impact assessment or

biodiversity law within national or regional scope, the issue of biodiversity will be frequently

discussed among governmental stakeholders. Eventually, it will receive more exposure in

the political context (Developed country- Interviewee 7).

INCLUSION OF NON-STATE ACTORS

Three interviewees stated explicitly that including non-state actors is essential to

support the implementation process (Developed country- Interviewee 5,12; Developing

country- Interviewee 9). One developed country party exemplified that the negotiation

process in the country has always invited NGOs, worker representatives, and all economic

sectors to ensure the process is inclusive so that the outcome will be recognized by all parties

(Developed country- Interviewee 12). Another interviewee stated explicitly that non-state

actors could also voice significant issues that have been neglected by the government or

create a circumstance where the government will reconsider their work (Developed country-

Interviewee 5). Moreover, within the CBD's national focal point, some people are academia

or independent consultant; thus the role of non-state actors are deemed significant

(Developing country- Interviewee 10). In separate interviews, a developed country party

expressed the importance of private sector involvement, particularly for agrifood and

financial sectors, given that their activity depend heavily on biodiversity (Developed country-

Interviewee 7). He added that this initiative would enable both sectors to reinvestigate the

impact of their practice that is potentially harmful to biodiversity (Developed country-

Interviewee 7). Although in the NBSAP, it has been mentioned that the non-governmental

actors were involved in the national biodiversity plan. There is no mention to what extent

their their inputs were incorporated in the NBSAP-making process (UNEP, 2018). This is also

something that must be a reflection on post-2020 global biodiversity framework to enhance

the implementation of CBD.

DIVERSIFY SOURCES OF FUNDING & CROSS-COUNTRY COLLABORATION

Given resource mobilization remains a fundamental issue for almost every country

party,and as acknowledged by all interviewees, Two interviewees of developing and

developed country party asserted some perspectives as follows

“...But you know, money can never be enough. The more money you have, the more problems

arise and the more you need to spend it. I hope it can be improved, and I do not know whether

its the sole responsibility of the CBD and all the different partners. If you are in a region, you

have to try to align with what your neighbor is doing and what other countries in the region

do. Because then you will get strengthened and get a better result and the credibility of what

you do is collaborative, sort of supporting that.” (Developing country- Interviewee 10)

“....I think that is a general problem when we come to mobilizing resources to implement the

Convention. We face the same problem as everyone, I guess, that is funding by the federal

government to fund the regions is largely insufficient therefore to mobilize all the resources

for fully implementation, so we need to engage with the private sector...” (Developed

country- Interviewee 12)

Summarizing both statements, the developing country party emphasized that the

money will never be enough. Instead of focusing on money, the country must identify what

assistance is needed and align with what neighboring countries are doing (Developing

country- Interviewee 10). In this case, it will reinforce both countries in achieving their

national target, and it is also crucial for a country to not rely on funding from the government

or CBD Secretariat and engage with all related-private sectors to mobilize more funding

(Developed country- Interviewee 12). As indicated in the NBSAP reports, some nations have

made innovative economic instruments to attract private and international actors, such as

green bonds, tax incentives, and payment of ecosystem services (NB1,2016; NB8,2015;

NB14,2015).

SUMMARY

Some government actors have identified preventing and enabling factors of the CBD

implementation in national context. First, the biodiversity issue is yet to be treated as an

important sectoral issue therefore, including non-state actors and communication across

ministries serve as enabling factors. Secondly, cross-neighboring country collaboration can

address the lack of sufficient people and expertise especially for developing countries. It can

make efficient use of national biodiversity spending. Addressing the matter is pivotal given

that having insufficient people with good biodiversity knowledge will undermine efforts on

national biodiversity management, as mentioned in some NBSAP reports. An upfront

investment to increase people with biodiversity expertise will also help the government

identify more funding from private sectors other than the agricultural, livestock, and food

beverage sectors. The government can also participate by creating innovative economic

instruments, as highlighted in both countries’ reports and interviews. Lastly, low awareness

among government actors leads to inadequate coordination at the national level, including

the involvement of non-state actors and private sector. It can be done by constantly

reporting and reviewing biodiversity impact assessments within national or regional scope.

The regular national assessment is beyond important as the health of biodiversity

significantly impacts the practice of some sectors such as agricultural and agrifood industry

in the long term, and hopefully, both government and company will do something to protect

biodiversity to maintain goods and services that biodiversity provides.

5.2.2 Global Context : Preventing & Enabling Factors of the CBD Implementation

The previous chapter has focused on what factors will potentially enhance or impede

the operation of the CBD law in national context. This chapter will elaborate on the

government actor’s view on the elements exist in international context which can enable and

obstruct the implementation within national context.

PREVENTING FACTORS

MULTIPLE & UNMEASURABLE TARGETS

Regarding the question, firstly some interviewees felt that the text of the Convention

is quite good in composition for the level of complexity (Developed country- Interviewee 5,7).

Nevertheless, one interviewee argued that some countries still debate how COP decisions are

written. For instance the differences between ‘recognizes’, ‘endorse’ and ‘welcome’ in the

document, leaves the substantial agreement elements unexamined (Developed country –

Interviewee 5). Some government actors, especially developing country officials, highlighted

that the issue of biodiversity is not clear in terms of having a target-specific overarching goal.

For example, climate change that has a global average temperature as a proxy indicator

(Developed country - Interviewee 13; Developing country – Interviewee 1,2,15)

“There is not even a single issue that can be explicitly made as a national target. Not as clear

as issue of climate change for example, our country pledge an ‘unconditional reduction target

of 29% by 2030’, which is easier to be translated into across sector in the national context.”

(Developed country- Interviewee 13; Developing country – Interviewee 1,2,15)

Another interviewee argued that the previous global biodiversity targets had 21

targets, and having multiple targets makes relevant stakeholders think that biodiversity

landscape and governance are complex issues. Moreover, it will give the impression that

biodiversity is a boundaryless issue and potentially obscures which elements the country

parties should focus on (Developed country-Interviewee 16; Developing country-Interviewee

1,2,15).

“I could say in an issue like biodiversity that is so localized, I do not think you should. But then

in a topic like UNFCCC, when everyone shares the atmosphere and actually collective action is

a must because whatever we all do affects everyone else, you can probably have more

specificity in issues like that because global collective action is what you need. For biodiversity,

you need action by everyone, but it is not perceived as a global issue.” (Developing country –

Interviewee 9).

One government official believed that the most of government actors perceive

biodiversity as a complex issue compared to climate change. He added it is because the

problem of climate is obvious , which is limiting global temperature to 1.5 C and he felt that it

is odd from the scientific point of view why such the flagship 1.5 C can make the climate

change less complex than biodiversity issue (Developed country – Interviewee 13)

“I think now exploring the lack in the climate and the 1.5 degrees because this flagship can

bring all the community. But I do not know if it is because somehow climate is perceived

simpler, and biodiversity would rely on the complexity. From a scientific point of view, it is very

odd to have such a value.” (Developed country – Interviewee 13)

POLARIZATION OF VIEWS BETWEEN DEVELOPING AND DEVELOPED COUNTRIES

There are some calls on making the CBD targets in numeric forms, given that creating

the generic targets, like the current ones, will be very difficult to monitor the progress or

justify whether the target is achieved. Some government actors proposed that the targets

should be based on the SMART principle (specific, measurable, achievable, results-based, and

time-bound) for example, the climate change goal has an overarching numerical target such

as 1.5 C as acknowledged in the two country’s submissions (Norway Post2020, 2020; Australia

Post2020, 2019 ) . The number of government actors in the UN Biodiversity Conference Part

1 last year voiced to make an inspirational apex target that is clear, quantifiable, and easier to

understand and capture across stakeholders with different backgrounds and languages (Earth

Negotiations Bulletin, 20211). Even though there is a chance that having an apex target would

be impossible to cover all aspects of biodiversity as argued by some countries (Earth

Negotiations Bulletin, 20211). Some negotiators emphasized that the post-2020 Global

Biodiversity Framework should not end up as its counterpart, Aichi Target, which was

considered a failure. Conversely, other respondents in the interview session argued that the

negotiation to bring up a numerical target is very time-consuming; group of countries have

polarized views toward each other regarding the matter, and later, it potentially constrains

implementation in national context (Developed country-Interviewee 13, Developing country-

Interviewee 9). One developed country party gave an example, there was a negotiation on

the target to increase by 15% of the natural area, but some negotiators understood it was not

just the coverage area but also the integrity and connectivity of habitat. The discussion

became heated, he reiterated when people called for the numerical value which must rely

solely on a scientific basis. In reality, the debate was far more complex, given that political

considerations were brought into. In this case, all negotiators agreed on a lower number

(Developed country – Interviewee 13) . He argued that the debate has to be scientific since

the scope is within evidence-based negotiation, but instead, it was more political :

“...but what is really happening that the points of negotiation occured in the COP15 and this

issue political effects came back into the SBSTTA meeting. So when you were discussing in

between scientific issues, it is already political. It is quite true to raise scientific issues in this

discussion because the whole negotiation was very much political. It is quite frustrating when

you are a scientist because you cannot negotiate science, science is something you can find

okay or not, but it is what it says that is so, for example, the matter of expanding the protected

areas 2/3 percent of the globe. Science says that we need 50%, and we have to act, so we

know it is not possible in 2030, but in 2050 we can imagine we can go to the value. However,

currently no reference at all, for the value of 50% because we already have a political

discussion and it is already a big issue, we are now only speaking about the 30% for 2030, and

we completely avoid the discussion on the 50%...” (Developed country – Interviewee 13).

Two interviewees noticed that polarized views could be due to the political tension

between developed and developing countries (Developing country – Interviewee 1,3,5).

“..Other countries are saying well, you know, developed countries have already cut down your

forests. You raped our biodiversity and now you are telling us we cannot. Well, is it not that

unfair?. And of course you see that, it is being displayed in negotiations at SBSTTA, SBI and

COP.” (Developed country – Interviewee 5)

One party argued that developed countries usually would only commit to texts that

align with a national policy whereas developing countries may be much more variable or only

have ‘’red lines” over key issues of national importance (Developing country – Interviewee 3).

The statement above is aligned with findings in NBSAPs of some developing countries that

emphasize benefiting people’s livelihood from conservation efforts and sustainable use of

biological diversity (NB1,2016; NB2,2010; NB12,2016). Government officials from a

developing country also stated that the targets agreed in the CBD text seem to put pressure

on biodiversity-rich countries, mostly the developing ones, and it clearly shows that

developed countries want to control the utilization of biodiversity through CBD (Developing

country – Interviewee 1). The findings above indicate that it could be a potential hindering

factor since the disagreement among developing and developed nations within the CBD

negotiation would slow down the implementation process in the national context.

CONTRADICTION WITH OTHER INTERNATIONAL AGREEMENTS

Another preventing factor is the number of ratified conventions or international

agreements, some of which contradict or are not fully aligned with the provisions of the CBD,

as indicated by one of the government officals in the following statement.

“Being a mega biodiversity country is also a dilemma considering how we have to develop as

a country and the number of conventions/treaties we have ratified so far; UNFCCC, UNCLOS,

CBD. From the CBD, we call ourselves a megabiodiversity country, which is different from

UNCLOS, which we call an archipelagic country.” (Developing country – Interviewee 1)

Although some countries argued there are no such contradictory provisions among

other treaties, more country representatives believed that some treaties potentially oppose

the provisions in the CBD (Developed country – Interviewee 5,12; Developing country-

Interviewee 1,2,9). One example is the agreement under the auspices of WTO, the Agreement

on Trade-related Aspects of Intellectual Property Rights (TRIPS) that deals with patentability

or non-patentability of plant and animal inventions (WTO, n.d). Generally speaking, the TRIPS

agreement states that any invention can be patented whether it is product or process, as long

as it is new. The problem is that the TRIPS agreement allows the patents of genetic material

without requiring consent or disclosure form where the genetic resources are sourced, which

is against the Nagoya Protocol's provision on prior informed consent regulation. A large group

of developing countries have submitted a proposal to amend TRIPS agreement to require the

disclosure of genetic resource origin and/or its traditional knowledge in application. In

contrast, some developed countries argued that the associated provisions in the TRIPS

Agreement already granted enough flexibility to address the concern, thereby the case has

yet to be settled (IISD, 2011).

LACK OF DETAILED MEASURES OF BIODIVERSITY-MAINSTREAMING

Some government actors called upon the integration of biodiversity issues into

economic and development sector or so-called biodiversity mainstreaming. However, it is not

yet followed by he tdetailed implementation or turning the approach into concrete measures.

Only one government actor gave a comprehensive example of the detailed implementation

measure of Protocol in her country

“Well, we have a decree establishing different fines for people who do not ask for the ABS

permit and do not follow what is included in the permit. We have the legal tools to do that,

we have started, trying to raise awareness in the different sectors and meeting workshops

with companies, with the academia, the NGOs and different stakeholders, trying to encourage

people to ask for those permits. Not just because you have to follow procedure or bureaucracy

and so on but make them understand that if they have this kind of permit, we can assure the

providers’s benefit. Most of the time, the providers are the protected areas or farmers or

people that have a private preserve, I mean farmers could have liked cooperatives because the

idea is to try to bring back not just the monetary but also non monetary benefits to these

providers and make them understand the importance of this benefit sharing. Not just

punishing people because they do not follow the legislation but also trying to attack the issue

from the roots and raise the awareness of users, of users, to understand the importance of this

kind of permit, that is not just a regular permit. You know it has this commitment to bring

benefits to the providers, and many people are happy to ask for the permits because of that.

We developed a label for a commercial product we call the ABS benefit-sharing label, and the

idea is that all the commercial products that have a permit from our government, are allowed

to put this little brand in their product. Nowadays, we are working on publicity on how we

could make the people, the regular people know that this label exists and what it means, it

does not mean that they the best quality product but instead, the company is sharing benefits

with the provider.” (Developing country – Interviewee 6)

Based on the statements above, she said the measure has made people happy to ask

for the permit. Eventually, it makes customers shift their decision to buy the product with a

logo, giving more incentives to the farmers who will be encouraged to take care of the

environment. She argued that it serves as a relevant example of good implementation

measure of Protocol that can lead to biodiversity mainstreaming (Developing country –

Interviewee 6). Integrating biodiversity into the human and economic development sector

was also mentioned several time by country’s leaders on the meeting note of UN Biodiversity

Conference Part 1 and in some open-ended working group meeting (Earth Negotiations

Bulletin, 2019; Earth Negotiations Bulletin, 20211,2,3). Some government actors underlined the

changes of restructuring global production and consumption as a first starting point to

mainstream biodiversity. In the NBSAP some national policies were highlighted to address

biodiversity-mainstreaming issue such as circular economy, pollution, quantification of

however, all of them barely mentioned the detailed measures (NB3,2013 ; NB4,2011 ;

NB14,2015). In the interviews, some government actors referred to the national legislation

that are already in place when they were asked about the implementation measures.

Separately, one government actor explained that this is a challenge to make government

actors aware that policy is not an implementation (Developed country- Interviewee 5).

The challenge is that when policy wanders off by itself, you might discover a lack of

understanding that policy is an implementation among some policy people around the world.

Certainly had people express the idea well, I hope we have got the policy sorted, but it is not

sorted until it can turn into something that is implemented (Developed country- Interviewee

Based on his statement, it can be deduced that this is a global issue, given that most

country parties generally experience it. The issue of biodiversity-mainstreaming is addressed

in the CBD context based on Article 6 (b), 10 (a) (c), 14, 11, 7 (c) and 8 (l) of Convention’s text

and two COP decisions : decision VI/16, paragraph 6 , decision V/15, annex B. However none

of them mentioned how the mainstreaming should be conducted

(UNEP/CBD/COP/DEC/VI/16; UNEP/CBD/COP/DEC/V/15) .

ENABLING FACTOR

HAVING KEY FOCUS AREAS & CLEAR TARGETS

Speaking of the enabling factors in international context, the issue of biodiversity

should have a key focus area and clear targets as acknowledged by the government actors.

Three respondents exemplified climate change issue that is translated into a temperature as

a universal and quantifiable target to be achieved (Developing country – Interviewee 1,2,15)

. The others two recommended that the CBD must have key area priorities to focus on rather

than many targets to get the implementation done. (Developed country – Interviewee 7;

Developing country – Interviewee 9)

“I think it would have been helpful if we had started from that point where we had just a few

not 20 or 40 or 50, but a few key areas requiring more sort of targeted reporting because we

would've been able to track um and sort of keep our implementation focused on a few of these

key priorities.” (Developing country – Interviewee 9)

“When you have a clearer scope, as is the case of the protocol as I was saying before, or CITES,

I mean there are conventions that clearly or the Montreal Protocol on the protection of the

ozone layer. The scope is so clear that you can have stricter ways of working to enhance

implementation.” (Developed country – Interviewee 7)

Both argued that the focus area and clear target would bring stricter ways of working

to enhance implementation, such as Montreal Protocol which has a sole focus on protecting

ozone layer, or CITES that focuses on sustainable trade of animals. They argued it should be

something that the CBD can learn from (Developed country – Interviewee 7; Developing

country – Interviewee 9). As having focus area will enhance implementation, one country

proposed to cluster the goals and targets of CBD into three groups and decide the headline

for each goal and target. In this way, it reduces the number of indicators required and will

make the communication is easier across stakeholders and, importantly, the reporting (UK

Post2020, 2021).

REVIEWING THE IMPLEMENTATION PROGRESS OF CBD GLOBALLY

The implementation progress of all country parties toward the objective of the CBD is

summarized in the Global Biodiversity Outlook (GBO) report. The report gives comprehensive

detail of the recent status and trends of the state of global biological diversity as well as steps

that have been taken by country parties (CBD website5 , n.d). The GBO contains findings from

national reports, research studies, IPBES Global Assessments, and some reports from

international organizations (CBD website5, n.d). The latest GBO found that most of the Aichi

Targets have not been met and some interviewees highlighted the role of reporting to ensure

the countries are on-track in achieving the global biodiversity targets (Secretariat of

Convention on Biological Diversity, 20202). One government actor argued that the reporting

must be mandatory for all country parties to enhance the implementation. A common strict

format of reporting will be very helpful in making the aggregation of national progress at

global level is much easier (Developed country – Interviewee 13). Although there is a direct

guidance for making the reports (based on decision IX/8 and decision X/2) each country party

is given a greater flexibility to discuss and reflect on the progress and challenge of their own

country in the report (UNEP/CBD/COP/DEV/X/2; UNEP/CBD/COP/DEV/IX/8). Two

government officials from developing countries came up with the idea to have an interim

report on global CBD implementation progress to ensure it will not be perceived as a total

failure again. He highlighted the importance of reviewing since everything changes from

technology, conservation priority, and social-economic circumstances,hence it is forever

improving and evolving legislative instrument (Developing country – Interviewee 10, 14).

LINKING CBD WITH SDGs & CLIMATE CHANGE

One interviewee had a different opinion, he emphasized that the principal value of

setting a target is to change how society works, and it is not necessary that the targets must

be achieved (Developed country – Interviewee 12).

“....but it would have been naive to think that we would have met the goals, we would've met

all the goals. The main value of the target is that it is set in motion a number of changes in

how society works, or it has a hope to, actually, change how society works. In that way, some

elements of the Aichi target were partly successful, and I think it is not entirely correct to depict

the Aichi targets as a complete failure. It is more like political motivator targets.” (Developed

country – Interviewee 12)

Some interviewees stressed synergizing the CBD with other biodiversity-related

conventions and Sustainable Development Goals (SDGs) as one means of mobilizing society,

which has more overarching and sectoral issues. Both representatives of developing and

developed countries explicitly stated that their whole government system heavily depends on

the SDG in formulating their national policies (Developing country 1; Developed country –

Interviewee 12). They also gave a comparison when SDGs and climate change are discussed

in the meeting, more ministerial bodies and high-level government officials are willing to

contribute to SDGs and climate change than the CBD and it is argued because the issues are

at the center of human development (Developed country - Interviewee 1,2,7; Developing

country – Interviewee 15). Two developed country parties proposed to unite all secretariat of

biodiversity-related conventions and climate change since they have strong links and

undoubtedly, in the long-term, will make biodiversity loss as high-political issue as climate

change (Developed country – Interviewee 7,12).

“..because I think there is a huge potential to get all the administration, the secretariats of the

real conventions, and the other biodiversity-related conventions to work together through a

common secretariat. So now you have one secretariat for the CBD in Montreal, Canada and

then you have one for the climate in Bonn, Germany and the convention on desertification, I

can't remember that is but that is somewhere else, I think, maybe you know. But I would try

to put them all together in the same place so they can see how the issues connect, because

now its obvious that the climate and biological diversity issues are very much interlinked.”

(Developed country – Interviewee 17)

Some countries have identified the link between climate change and biodiversity in

the NBSAPs, however it is yet to be done in the global level (NB1,2016; NB2,2010; NB3,2013;

NB8,2018; NB9; NB14,2015). One interviewee reiterated that if both climate change and

biodiversity issues are addressed as global issues, it will benefit both goals. The climate change

framework will reinforce biodiversity targets and vice versa (Developed country – Interviewee

7). Corresponding to this, in the interview session, three-country parties felt more

conventions or international agreements address similar cross-cutting issues. They all agreed

that it would be beneficial to simplify the reporting process by using similar data from one

Convention for others. Thereby, it is unnecessary to report multiple times in formats and has

a recurring negotiation on the same thing (Developed country- Interviewee 13,16; Developing

country- Interviewee 1,2).

SUMMARY

One foremost challenge is that the global biodiversity targets do not have measurable

and overarching targets. The apex target will make the issue easier to understand and capture

across stakeholders with different backgrounds and languages. Some government actors took

example of climate change that can be translated into a single-universal target; global average

temperature as a moving target. Having 21 targets, such as the current biodiversity

framework, will bring the impression to government actors that biodiversity landscape and

governance are complex issues that cannot be addressed as a global issue.

Many government actors in the CBD Conference part 1 emphasized making the targets

in numeric form as creating the generic targets as the current ones will be very difficult to

monitor the progress or justify whether the target is achieved or not. Conversely, another

respondent argued that the negotiation to bring up numerical targets is a time-consuming

process. Some countries have polarized views among developed and developing countries

regarding the matter, and later it potentially constrains implementation in the national

context. Hence, linking biodiversity as the central issue in the CBD to other topics that have

been received as high-political issues such as the SDG and climate change, can create more

communicable negotiation across governmental actors. Not to mention, it enables conditions

to synergize other international agreements or conventions that directly or indirectly impact

negatively to the CBD agreement.

To keep track of the implementation progress, it is crucial to have common reporting

across country parties. Several international conventions or agreements have similar cross-

cutting issues and are adopted by almost all countries globally. It will be beneficial for country

parties to use similar data from one convention for others. Thereby, it is not necessary to

report multiple times in formats. Uniting the secretariat of biodiversity and climate change is

also an option since they have strong links and can mutually reinforce each global target.

5.3 Preferences and Behavior of Government Actors

In this section I will investigate research question 3, to what extent do constructivism

and rationalism thinking approaches explain the behavior of government actors toward the

CBD ?. As discussed in the conceptual framework section (see chapter 2.4), the rationalist

approach explains that actors’ behavior tends to follow the “logic of consequences,” meaning

that they act rationally to pursue their interests based on cost-benefit analyses, given their

perceptions of the interests of other states and the distribution of state’s power. The

constructivism approach favors the “logic of appropriateness,” meaning that the fundamental

principle of ‘decision-making’ is based on what social norms deem right rather than a rational

assessment of cost-benefit (Hathaway and Lavinbuk, 2006; Brunee and Toope, 2012). Both

views have become a predominant debate within international relations theory. The use of

two lenses, constructivism and rationalism, serve as moderating variables to explain the

strength and direction of interpretation that could imply the government actor’s behavior.

I will structure the section by revisiting several government actors' statements

relevant to the research question. Then, based on my subjective interpretation, I will

determine whether those statements can be classified as constructivism or rationalism.

Hereafter, it can be investigated to what extent it affects the government’s action along with

the researcher’s opinion.

When I asked the question on the importance of international biodiversity law, one

developing nation argued that it is essential for a country involved in the global rules of the

game such as being party to the CBD. He said a country or government that chooses to exile

themselves from the global rule will be going nowhere, and another party had a view that

countries will decide how to adopt CBD as their national law.

“In nowadays the country’s dependency toward global commitment is a must along with

following the rules of the global game without omitting the country’s sovereignty. Hence our

country is not whole-heartedly fulfilling the CBD and its Protocols like most western countries

as general. If it is asked how important is it, it is part of livelihood. A country will not survive if

they choose to ostracize themselves from the global community, it is not going anywhere and

will not be developed further in near future. We want to socialize with other countries, and it

is important to follow their rules by adopting them and what we could get from our

involvement in Convention and its Protocols.” (Developing country- Interviewee 1)

From the statement, an element of rationalism is observed. The view indicates that

the commitment to international biodiversity law must not go against the country’s

sovereignty, at the same time, the country considers the benefit gained from the involvement

of the Convention and its Protocols. It explains rationalist’s approach. However, it is

undoubtedly true despite a lot of criticism and doubts about the CBD regimes. Some efforts

on how country parties voluntarily commit to CBD provisions are visible, for example, aligning

with Aichi Biodiversity Targets no 15, some developed nations have provided significant

financial flows to help developing ones to conserve biodiversity (NR 6,8,10 ,2014). Another

example is the inclusion of other ministerial bodies and non-state actors to discuss

biodiversity management planning in national context based on the interview and literature

analysis (Developed country- Interviewee 5; Developing country-Interviewee 1,2,3,12,14,15)

Those provisions can be perceived as an example of soft laws given those provisions are not

legally binding but happened and it illustrates how discourse and norms emerge in every CBD

meeting or negotiation, which explains how constructivist approach arises.

On the flip side, some countries, especially developing ones, argued that the influence

could not be solely explained through CBD agreement only. Other environment-related

conventions such as climate change have contributed in making biodiversity a priority issue

(Developed country-Interviewee 7; Developing country- Interviewee 9,10 . Accordingly, it

makes governments more aware of the underlying importance of biodiversity and forest to

deliver ecological services that benefit the livelihood of people and economy in the long term,

as stated by both interviewees below. Both findings can explain how government actors use

rationalist approaches (Developing country- Interviewee 6; Developed country- Interviewee

7).

“..I think this is a good start, also obviously there is always a conflict between the different

sectors but its something that our country has a slogan right? Try to work together within

biodiversity and not against it. I think the laws we have that protecting the forest and so on is

very important and the economy sometimes adjusts to those, obviously we still have some

things that we need to improve, as any country but yeah we are trying to make the way in this

direction.” (Developing country – Interviewee 6)

“..we are regularly redrafting our environmental impact assessment laws to help us make sure

that the actions that we take on the ground are respectful of maintaining a healthy

environment, so this is the priority that our country has addressed through the electoral

processes, and now we have policies and acts to try to implement that.” (Developed country –

Interviewee 7)

Two interviewees stated that CBD serves as a political or motivational framework

rather than law which influences governments to take action on biodiversity conservation

efforts.

“I think I will call it more of a like political motivator, it brought attention to the issues and

therefore brought more momentum to creating mechanism in our country that we call it

support for conservation and simple use quite mostly.” (Developed country – Interviewee 7)

“..CBD is more to do with political performance.” (Developing country -Interviewee 1)

Here it is observed that CBD serves as one of the elements to construct mutual

intersubjective understandings between government actors regarding the importance of

conservation and its sustainable use as prescribed in the objective of CBD. Looking closely at

both statements, CBD can also be used as a political tool, meaning there are other factors

than norms and ideas within CBD that influence the country to be a party of CBD itself. When

the Convention was opened for signature in 1992, most countries signed and ratified the

instrument years after. International and bilateral cooperation is vital for a country’s existence

and might be hampered if those countries do not ratify the Conventions given that biodiversity

has been considered a political issue. The finding was also strongly supported by one

developing country in statement below, and it explains that the motivation was driven by

rationalist’s view as they might have considered the cost and benefit of ratifying the

Convention (Developing country- Interviewee 9).

“ In the case of our country it is quite a strong sovereignty element. Obviously, the one thing

that we do follow, I mean the countries do follow and perform the obligation and comply with

whatever they need to comply so of course there is a NBSAP, and the NBSAP was developed

because its directly made for the Convention. But I do not think that we are forced to change

it is basically an instrument that exists because the Convention’s request for it, I mean the

same applies to any country.” (Developing country – Interviewee 9)

Another interviewee also strengthened the argument above. She explained that her

country would not be likely to ratify both Protocols in the future because the government

already had legislation in place; therefore, the ratification becomes sort of political or

apolitical, or how a country wants to be seen by other countries (Developed country –

Interviewee 7).

“..the Cartagena Protocol is the same thing although it is part of our country, those risks issue

have led to the creation of the Cartagena Protocol. We have created it through our legislation

already. I think it also does not have momentum why we should ratify it because we feel that

we have got those things in place and then it becomes more of a political-, not a political more

like a legal discussion about how do we map them and how we met all those obligations. We

feel that they are relevant for our country’s context, and I think that discussion just has not

had the momentum. Lacking of priority means that the human resources to do that kind of

analysis and make those commitments have not been there yet.” (Developed country-

Interviewee 7)

Although the statement above clearly explains rationalist’s approach, it can also have

a conflicting view from her statement. She acknowledged that ratifying Protocols is important

to address; however, it does not extend to the overall government, which gives an impression

there is also a constructivist element in her personal acknowledgment (Developed country-

Interviewee 7). As I have explained before the legalization of Protocols is ‘harder’ than its

Convention; therefore, country parties might decide not to ratify it after considering that the

benefit will not overlay the cost of ratification (UNEP/CBD/BS/COP-MOP/1/15,2004;

UNEP/CBD/NP/COP-MOP/DEC/1/4, 2014)

In the above paragraphs, I have explained the understanding and approach of

government actors from rationalist and constructivist lenses. I will also analyze factors

identified by government actors, both globally and nationally in research question 2A and 2B,

which can enhance the implementation of CBD. As we can see from previous section, four

enabling factors were identified in national context, and I argued that each factor can be

viewed from a rationalist or constructivist approach or even has a combination of both

approaches . Communication across ministries was recognized as a factor that will enhance

awareness among governmental actors and elevate biodiversity as a priority issue. Therefore

communicating with other than environmental ministers will build new understanding among

other governmental actors and potentially make other ministerial bodies more aware of

biodiversity issues. As the effort explains social processes to harbor shared understanding, I

believe the factor goes toward a more constructivist approach. Moreover, I argued there is

also an element of rationalist as well, given a conflicting issue between development and

environment in national context may arise thereby, communication across ministries serves

as a way to look for a win-win solution as mentioned by some interviewees (Developed

country – Interviewee 17, Developing country – Interviewee 1,2,10) . Including non-state and

private actors to enhance the CBD implementation in the national context are observed of

having both elements proportionally (Developed country- Interviewee 5,12; Developing

country- Interviewee 9). First, the intersubjective understandings among governmental actors

will be built along with the discussion with non-governmental and private actors. The two-

way discussion will eventually generate new understanding for both actors that successful

conservation efforts will only happen through collaboration hence it is a form of

constructivist’s view. Three interviewees also mentioned that including non-state and private

actors will make them aware of the issue and hopefully turn the discussion into action. In this

case, the government actors think rationally that it is not possible to have successful

biodiversity-positive outcome without assistance from other actors thus they ask them to

collaborate to make it happen; this can explain there is a rationalist’s view (Developed

country- Interviewee 5,12; Developing country- Interviewee 9).

Unlike another factor identified by interviewee 12, cross-country collaboration has

both views. In this regard, government actors' perception is likely to have more elements of

rationalist (Developing country- Interviewee 14). Given that the country does not have any

competencies or resources, they ask for “help” to another country, for example, to conduct

research and development on biological resources aligning with the third objective of CBD

(NR8, 2014, NR12,2014). In different views, cross-country collaboration can also be seen as a

constructivist’s view since it can make more aware of developed country parties, notably on

their responsibility toward developing nations (Developed country – Interviewee 5).

Diversifying sources of funding by including non-state actors to invest in environmental or

biodiversity-friendly projects will be categorized as mainly a rationalist’s view, because both

sides wanted to have profit returns that are shared upon agreement, but at the same time,

they also wanted to see positive impact toward an environment which explains a

constructivist’s view (NB1,2016; NB8,2015; NB14,2015). .

In international context, reviewing the CBD implementation globally with the

stakeholders, including non-governmental actors, was identified as a means to address the

issue of biodiversity mainstreaming, which has to be taken holistically. However, it is a very

daunting task given that the world is constantly changing, so does the country's political and

socio-economic context worldwide, as the interviewee mentioned (Developing country-

Interviewee 14). To ensure that the implementation measure is adequate, each party and

related-stakeholders will decide based on certain indicators or metrics agreed upon that

serves a reason if it is already achieved or not therefore, it significantly relates to a rationalist

view (Developed country- Interviewee 7). To a minor extent, a constructivist’s view can be

found and acknowledged by some interviewees because the idea puts emphasis on the role

of shared understandings that serve as a new knowledge. In this case, the involvement of

stakeholders in national biodiversity management will make stakeholders more aware of the

issue (Developed country- Interviewee 7,12; Developing country- Interviewee 9). Linking

biodiversity with SDGs and climate change issues is mentioned in the NBSAP reports of

developing and developed country parties (NB1,2016, NB8,2015, NB10,2018, NB14,2015).

The enabling factor can potentially reinforce biodiversity, being a high-political issue like

climate change and SDGs. As a result, these issues will create a robust environmental

regime,equipped with self-enforcing norms, as I noted in question 2B. Reframing the linkage

can also mean reconstructing the knowledge that biodiversity is equally vital to achieving

climate and SDG goals; hence the statement implies a tendency toward a constructivist

approach (Developed country- Interviewee 12). Lastly, having key focus areas and numerical

targets for CBD are equally crucial because currently biodiversity issue does not have any

measurable and overarching targets. Hence it obscures the focus of both governmental and

non-governmental organizations in achieving the targets (Developing country- Interviewee 9).

Furthermore, the current targets are formulated not specified enough, and multiple

understandings from the government may arise on how these targets should be fulfilled.

Developing key focus areas that can address several targets will be more rational for

countries, rather than asking them to focus on more than 20+ targets thus bolstering the

implementation of CBD; it has a more rationalist view.

SUMMARY

From constructivist or rationalist perspectives, many reasons can be explained why

country parties commit to both Convention and its Protocols, most of which are combination

of both elements. Viewing from rationalist perspective, the reason for countries joining CBD

is to be a part of global communities since it allows a country to make the connection and gain

recognition of other countries. In the long-term, it can have substantial economic impacts, as

stated by some interviewees. All interviewees agreed that CBD is legally binding, but not all

the provisions are. Nevertheless, things have changed from capacity-building, financial

assistance, and awareness of the environmental issue, demonstrating how the constructivist

view takes place. Not all countries are party to both Protocols however they sympathize with

the Protocol’s provisions by developing national regulations and laws that underline the three

objectives of CBD. Cost-and-benefit consideration is among the main reasons they prefer to

develop national legislation aligning with provisions of Protocols rather than ratifying them.

Nevertheless, several interviewees acknowledged the possibility of ratifying the Protocol in

the future, and some did not due to conflicting internal understandings in the country.

The enabling factors identified by government actors in the interview have elements of

both rationalist and constructivist perspectives. In national context, communication across

ministries has more of a constructivist element as it can raise awareness among state actors

on the issue of biodiversity. Involvement of non-state and private actors serve as a tool to not

only build shared understandings but also bring financial and capacity-building assistance

because then it will be more reasonable to make biodiversity-positive outcomes; therefore it

has half constructivist element and half rationalist element. Cross-country collaboration and

diversification of funding sources are identified as having more rationalist than constructivist

elements. Both factors are needed to achieve more successful conservation efforts since

relying only on political will and awareness toward biodiversity will barely make the steps

work . In international context, to ensure the implementation measure is adequate, it is

necessary to review the global progress of CBD implementation with stakeholders and how it

should be improved; thus, it has more rationalist than constructivist elements. Changing CBD

targets to have numerical ones and key focus explains a rationalist perspective, although

shared understanding must be achieved first before making a numerical target that possesses

constructivist’s element. As more people are aware that environmental issues are interlinked,

it requires an interlinked solution. Some government actors suggested linking biodiversity

with climate change and development issues to have a robust environmental regime which

indicates a constructivist view.

6. Discussion

In this section, I will discuss the findings of my research. Firstly I will answer all research

questions (see chapter 3), including the sub-research questions within each research question

then discuss these answers based on my interpretation and the context of the literature.

Briefly, Research question 1 was about the definition and influence of the CBD agreement

according to the government actors. The question will also touch upon opinions among

government actors on how they want to change the CBD. Research question 2 focuses on

what factors make the law within the CBD influence the implementation, and research

question 3 focuses on to what degree constructivist and rationalist approach can explain the

behavior of government actors toward CBD. I will put the discussion of research question 2

and research question 3 altogether. In the discussion later, I will also engage the results with

relevant literature and put them within scope of the conceptual framework I proposed; the

role of international law and norms in influencing the government actors’ behavior.

6.1 Discussion part 1 : A Return to the Research Questions

Research question 1 was: what does the CBD agreement mean to government actors.

The legally-binding status of the CBD undoubtedly has been recognized by country parties

since its enforcement. Given that most government actors identified the CBD as not a law

instead, they argued that it serves more as an instrument to facilitate the Parties to implement

the effort on biodiversity conservation effort nationally. Moreover, the agreement was

acknowledged as having a significant role in bringing the momentum of conservation and

sustainable use of natural resources. I think this relates to what government actors claimed

the role of the CBD agreement as a political performance or, in other words, to what extent

the provisions of the CBD can acquire meaning in state institutions and policies (Rai, 2015).

Bearing in mind that every country has its own motives, histories, and visions of the future, it

will affect how the CBD will be perceived and understood in a political context (Rai, 2015). It

is understandable why the Convention has quite general provisions given that each country

has different views and stances on what they think is relevant for them and then the details

of the Convention will be developed through COP. Therefore, answering sub-research

question 1A on the definition and characterization of CBD by government’s actors, the CBD is

perceived as a means to facilitate the implementation of biodiversity conservation in national

context rather than as a law by both developing and developed countries.

To brings the CBD into action, the Conference of Parties (COP) serves as a plenary

meeting among country parties globally to meet and discuss the implementation progress.

The COP of the CBD has met fourteen times, and the next one will be held in Montreal,Canada,

this December 2022. The COP serves as a supreme decision-making body in the text of the

Convention however, two government actors stated explicitly that the COP decision itself is

not legally binding, which is correct in legal-terms. According to Bodansky, a COP decision

could be legally binding if there is a ‘highlight’ in the text of the Convention, for example in

the article 4.1 of the UNFCCC says that all parties must use comparable methodologies to

measure greenhouse gas emissions to be agreed upon by the Conference of the Parties

otherwise the COP decisions itself are not binding (Bodansky, n.d.). Looking at the text of the

Convention, given that the CBD does not grant the COP, the power to make the decisions are

binding therefore it can be argued why COP decisions in the CBD are not binding either,

although another legal scholar,Brunnée (2002) reached different outcome that COP decisions

should be binding).

Considering the CBD’s character that gives flexibility for the Parties to decide how to

translate its provisions into national legislation and no punishments given if a country did not

manage to fulfill its provisions, it is maybe among explanations why some government actors

recognized the CBD only as a piece of soft law. The Protocols that have more specific and

targeted obligations, were also perceived as soft law as its Conventions by some interviewees.

The existence of compliance committee in the Protocols can explain the difference in

bindingness of the instrument with the Convention. However, the role of the compliance

committee does not seem like the name rather, they tend to support country parties to

enhance the implementation of Protocols meaning there are more obligations for the

Protocol’s parties. (UNEP/CBD/BS/COP-MOP/1/15; UNEP/CBD/NP/COP-MOP/DEC/1/14).

Most government actors did not claim the above-finding during the interview and only single

government actor mentioned that even when we did not manage to fulfill Protocol’s

obligations, we were only asked why these obligations were not implemented. In conjunction

with sub-research question 1B: the government actors’s opinion on the difference in influence

of different types of hard and soft law within context of the Convention and its Protocols, they

claimed there is no difference in treating the Convention and its Protocols, and it probably

indicates that the influence was similar. Having said that, probably the result would have been

different if I had more time and could have probed them more with the question on how

government actors adopt the provisions from the Convention and its Protocols so I can make

sure if there are any differences, even minor ones.

Research question 2 was : What are the factors that make government actors see the

hard and soft law aspects of CBD and its Protocol influence national implementation – in their

own country and more generally ?. All the government actors agreed that the CBD is a stepping

stone agreement of its kind, which has made biodiversity an essential issue in global economy

and development issue as acknowledged in some country’s national reports (NR5,2007; NR4,

NR10,NR11, 2014) although other environmental agreements also have contributed in

elevating the biodiversity issue. But what was interesting, not all government actors had a

common view that the CBD had influenced the national legislation. Instead, they argued that

biodiversity had been put as issue in their national legislation before the ratification, which

might have inspired the CBD thereof. The study did not mean figuring out which agreement

has the most significant influence and how the influence does happen. Nevertheless, the

findings give insight that it is not only the law but also the norms embedded within, bring

influence. Drawing from Brunnée & Toope (2011) as constructivist scholars, they explain how

a law can gain its obligatory effect to whom it is addressed by combining Fuller and Adler’s

work (Adler, 2005; Lovett, 2015b). The theory, which is called interactional international law,

will be used to discuss findings from sub-research question 2B what reasons in global context

are seen as preventing /enabling the CBD implementation and research question 3 : to what

extent a constructivism’s element can explain government actor’s behaviour toward CBD?

First, the norms that exist within the law, must have been agreed upon mutually, and

it relates to the importance of the CBD to have a focus area and clear targets which

government actors identified as enabling factors in global context. Not to mention that having

a focus area and clear targets also have rationalist view to a minor extent, as discussed in the

result section. Linking the CBD with the SDGs and climate change serves as another enabling

factor identified by some interviewees, could be put as means to harbor shared

understandings. Linking those issues will elevate the profile of biodiversity as a political issue

and change how actors perceive certain problems, forming new interests and priorities

(Brunnée & Toope, 2011). Having shared understanding could also minimize polarization of

views, especially amongst developing and developed countries, as another factor identified

by government actors.

However, only having shared understandings is not adequate, Brunnée & Toope

(2011) mentioned that it is pivotal for a law to have set criteria of legality, two of which are:

the generality of law to capture a wider audience and the law must be clear enough what is

permitted and prohibited. Possible findings connected to the government actors’s suggestion

is that the CBD should give direction on how countries should integrate biodiversity into

economic development or so-called biodiversity mainstreaming. I argue that the direction of

biodiversity mainstreaming is essential. In the Article 6(b) of the text of CBD , it is only

mentioned,”each contracting party shall, in accordance with its particular conditions and

capabilities, integrate as far as possible and as appropriate, the conservation and sustainable

use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and

policies” ,which is unclear in term of how the biodiversity-mainstreaming can be achieved and

if the government actors do not have a common baseline of what activities can or cannot be

harmful to biodiversity, eventually it will undermine the progress of the CBD implementation.

When the government actors were asked about what is the ideal international biodiversity

law, as in research question 1C. Three of seventeen interviewees proposed that the issue of

biodiversity should be legally enforceable in national context to enhance the implementation.

Furthermore, they also argued that the CBD must be a soft law, meaning it should remain

flexible about what the country is doing.

Abbott & Snidal (2000) stated that the differentiation between hard and soft law is not

as black and white, the degree between them is also applicable. They explained that hard law

must contain three essential elements; obligation, precision, and delegation. Obligation

means that states or actors that are legally binding to an agreement, their behavior will be

carefully examined in alignment with general rules and procedures of law. Precision means

the procedures and rules within the contract are clearly defined as what is allowed and

proscribed. Delegation implies the existence of third parties to enforce and interpret the rules

and reconcile disagreements between parties (Ibid). For soft law, it can have lower or absent

one or two elements (Ibid). The CBD is a legally-binding agreement which means it has a high

obligation, but I think that the CBD is written in imprecise and ambiguous language, meaning

the CBD has lower elements in precision and delegation. Therefore it should be discussed

further in the post-2020 global biodiversity framework process to make the CBD (at least)

have one of these features, either in precision or delegation, to enhance the implementation

as a legally-binding agreement.

Another criterion of legality is that the law should avoid contradiction, which

interviewees mentioned that it is crucial to synergize the provisions of other related-

international agreements with the CBD to make it legitimate (Brunnée & Toope, 2011). Lastly,

the norms must be exercised to gain their legality over time. One of the first steps is that the

norms within the law must gain wide acceptance among the stakeholders, which can be done

by considering voices from every stakeholder across levels, from local to global, in the law-

making processes. Once the law gained wide acceptance, the interactions between actors

would start to happen, thus norms is exercised. I argue that the role of non-governmental

organizations in this process is essential to make dynamic interactions among various

stakeholders, for example mobilizing voices between government and society (Hafner-Burton

et.al, 2015) . Suppose more people get engaged in the awareness-raising events organized by

non-governmental organizations, in that case, it will eventually influence the legislative

process since the law or norms remain or become dead without being exercised, through

active engagement and involvement of various stakeholders. The reporting part, which is one

of few CBD obligations, must be maintained or even improved, as confirmed by one of the

government officials that the reporting makes government actors think about what does not

makes us look good and how we as a nation, can enhance our implementation and meet our

needs at the same time.

As I have mentioned, the discussion above aligns with the sub-research question 2B :

what reasons in global context are seen as preventing /enabling the CBD implementation. I

have also connected the discussion to the findings of research question 3 : to what extent can

a constructivism’s element explain government actor’s behaviour ? and research question 1C

: what is the ideal international biodiversity law according to the government actors ?. Taken

all above findings together, it can be concluded that it is crucial at global level, that

government actors must treat the CBD not only as an obligation to be fulfilled but also as a

platform to learn from each other and work together to achieve the objective of the CBD.

With that, the norms within the agreement will be internalized among country parties. Over

time, it will also strengthen the legitimacy of norms.

Concerning sub-research question 2A on factors in national context are seen as

preventing or enabling CBD implementation, it can be observed that all preventing factors

identified are linked to technical and human capacity building issue, among which are lack of

human resources and scientific research capacities. Other factors such as not treating

biodiversity as an important sectoral issue (because other issues have more priority and the

country only has limited resources) and low awareness of biodiversity issue could be due to

the abovementioned factors. The term ‘capacity-building’ is defined on the official website of

CBD as any interventions which purposely structured to contribute to the amplifying of the

capabilities of people, institutions, and systems. The capacity-building is often targeted at

countries with limited human and economic resources and potentially influences the

country's ability to fulfill the agreement’s obligation (Karlsson-Vinkhuyzen & Vihma, 2009).

Aside from technical and human capacity building, according to findings derived from

research question 1C, government actors mentioned that ideally the CBD as a top-down

regulatory instrument brings impacts and successfully addresses all potential drivers and

pressures of biodiversity loss, which also means influencing people’s behavior to be more

positive. Drawing from Karlsson-Vinkhuyzen & Vihma (2009) they referred to it as political

capacity building or the government’s ability to posit the issue of biodiversity within the

political realm effectively, it can be done through developing the knowledge and skills of

individuals within government.

Coordination with ministries and non-state actors, as among enabling factors of the

CBD implementation identified by government actor, is likely to serve as a way to strengthen

the political capacity building. Although biodiversity issues have been regularly discussed

among ministeries, whether the decision output taken into implementation is unclear, which

indicates that the biodiversity issue is yet to gain high political endorsement (UNEP, 2018).

Hence, ensuring accountability in decision-making among government and non-state actors

must be among the primary discussions in the post-2020 global biodiversity framework

meeting—other than capacity building, which explains the country's ability to fulfill CBD's

obligations. Motivations can be considered an important aspect that explains a rationalist

thinking of government actors toward the CBD, which also relates to research question 3 : to

what extent can rationalism explain government actor’s behavior toward the CBD ? and I use

the state-interest theory to discuss those findings (Goldsmith & Posner, 2005).

In the theory, Professor Goldsmith and Posner argued that a traditional understanding

of customary international law could not explain country behavior instead, they proposed

four basic situations that explain state’s behavior regularities; coincidence of interests,

coercion, coordination, and cooperation (Ibid). Coincidence of interests occurs when states

gain private advantages due to engaging certain behavior irrespective of the action of other

states. Applying the situation to study findings, the case of several countries worldwide

ratifying the Convention can be an example. Given that a country can choose to ratify or not

ratify , apparently for some countries, it can bring more benefits to ratify than to not ratify in

the long-term cooperation—for example, trade policy over certain natural resources products

between countries. The country importers perhaps only have an interest in sourcing products

from a country that has put attention on the environment or biodiversity. Meanwhile, the

country exporters also put efforts to ensure the production activity will not be detrimental to

the environment, and hence these states’ interests happen to be coincidental (Yoga, 2019) .

Coordination between states can arise when each state's action relies on other states’ action,

what we can see from the interview findings is that all agri-food companies are ready to

contribute to the post-2020 global biodiversity framework and undoubtedly the government

sector welcome their commitment since the contribution will be in the form of financial

assistance which can minimize the biodiversity funding gap. The matter has also been

addressed in the event “Global Dialogue on the Role of Food and Agriculture in the Post-2020

Global Biodiversity Framework” that FAO and CBD hosted in July 2021 (FAO, 2021). To keep

the agrifood business working, it is essential to maintain a healthy state of global biodiversity

where all governments signed up for the CBD can participate. Coercion means when the states

or the coalition of states with similar interests force other states to serve their interests, and

the example can be applied to the EU as a supranational organization. As a supranational

organization, one of the EU’s primary roles is to exercise a part of the sovereignty power of

its members, and should the EU member states fail to comply with the EU law—the union is

allowed bring up sanctions that can end up in the European Court of Justice (European Union,

2012). In the findings, all government officials confirmed the findings by saying it is pivotal for

all member states to speed up the process of ratifying both Protocols and its Convention once

the EU has ratified it, while other non-EU countries that are independent by themselves, can

choose whether they want to ratify Protocols or only to the Convention. Cooperation between

states occurs when states can foresee the benefit through working together, and as long as

the other do not cheat, Professor Goldsmith and Posner argued that cooperation is very rare

in a real-life situation rather than coercion and coincidence of interest and if it happens, there

must be the interests for both parties (Chinen, 2001)

The discussion above links to answering sub-research question 2A, what reasons in the

national context are seen as preventing/enabling the CBD implementation, and part of

research question 3, to what extent does rationalist perspective can explain the government

actor’s behaviour. It can be said that factors identified in national context link to the country’s

capacity to implement the provisions of the CBD and the interest which serves as their

motivation to comply. In summary, aligning research questions 2 and 3 with the study

findings, I argued that compliance toward the hard and soft law aspects of CBD could be

explained through rationalist and constructivist views.

6.2 Discussion part 2 : A Return to the Methodology and Theory

In the section, I will go back to the methodology and theory I used (see chapter 2 and

4). By reflecting on the study design. For myself it will serve to maximize future learning and

performance that I can use to my future study of this topic and of course it will serve as insights

to any of the readers who want to study the topic further. Relating to methodology, the study

falls into the category of qualitative research. The study aims to explore different opinions

and views on international biodiversity law, but not all the interviewees were from the

government sector. Some interviewees are working for international organizations and they

had been involved in the CBD negotiations (at least once) so they know how the government

thinks or works, thereby their views were relevant to be incorporated. In the study, I managed

to interview as many as 17 government officials from fourteen countries with equal

representatives from developing and developed countries. This means that some countries

have more than one government officials being interviewed. Other than the category of

developing or developed countries, I did not consider the choice of country/respondent, such

as countries with the same level of government or governance or political context. The topic

of study was comprehensive, and on average, the interviews took a maximum of a half-hour

which was relatively short, and the findings would have been more in-depth if the discussions

had longer time. All interview findings were transcribed and coded to certain topics deemed

relevant to answer all research questions, and I later realized that I should have made more

sub-codes to address the research questions promptly and in detail. Similar to secondary data,

I analyzed 68 documents from NBSAP, national reports, and CBD submissions from the

interviewees' countries. The use of document analysis was only to validate the findings from

the primary data hence those were not analyzed comprehensively because time-wise is not

possible. It is something I could recommend if there is someone who wants to conduct a

similar study, it will be better to focus on different three to four countries with relatively the

same level of government or political context, and more detailed analysis of both primary and

secondary sources to get more in-depth insights to what extent their opinions and views of

international biodiversity law are differed or aligned among government actors

As I have mentioned in the conceptual framework (see chapter 2.4), the study assumes

that international norms and law serve as the sole determinant for state’s behavior since the

norms have been developed and then agreed upon as a legally-binding agreement. Other

factors can be potential predictors of whether provisions of international agreements will be

implemented and the study also assumes that what government officials have said, based on

how they perceive different aspects of law, will reflect on the action they will make. However,

in reality, it will always be some confounding factors such as power, discourse, and different

kinds of governmental and non-governmental actors exist at local, national, and global. For

example, the role of non-governmental organizations is to motivate the state negotiators to

reconsider the costs of failing to achieve the agreements objectives or even the presence of

big organizations that can make the goal of the environmental treaty less ambitious (Mitchell,

2003b). A combination of these factors will likely result in actions that are not aligned with

the provisions of the CBD or indirectly bring detrimental impact on biodiversity.

Therefore it would also be interesting to take a single country as a case study and

investigate how the CBD's provisions can effectively be implemented locally. But I believe the

study will require different study designs and conceptual frameworks.

7. Conclusion

In the final section of this report, I will return to the research problem and objective

posed in the beginning. I began with the notion that there is an ingrained problem with

international environmental law that is deemed unable to deliver the objective of agreement

itself, and one of its simple explanations based on several scientific studies because the states

do not comply to agreements they have ratified. Some scholars even insist that compliance

must be a focus of any theory of international law, and without compliance, the treaty and

other international agreements will barely have a significant role. Indeed putting too much

emphasis on compliance, obscure the normative and social-learning element of international

law and assumes that international law will always have the same meaning to all states over

time.

The objective of the study is to understand ideas of the character and boundaries of

international law and how it works in the eyes of government actors. CBD is an international

legally-binding agreement on biodiversity conservation and its sustainable use, and I hope to

have brought insights into how CBD was perceived more as a ‘guidance’ than law itself. Some

government actors mentioned that CBD is like a ‘political motivator’, and it could be

interpreted that CBD has or is about to gain a place in national decision-making. Several

government actors explicitly claimed that overall CBD is a very soft law by nature, both

Protocols suppose to have ‘harder’ element of law as they have a compliance commitee.

However, in essence it is not a hard law yet. given the role of the compliance committee

appears to be ‘facilitative’ than giving punitive measures, as confirmed by government actors

and document analysis.

All interviewees come from a country that has ratified CBD but not all of them are

party to one or both Protocols. They have developed protocol-like instruments in national

context to address CBD's objectives, which explains that CBD has influenced government

actor’s behavior, although some governments did not agree on the statement. One of the few

CBD obligations is reporting part, they are obliged to submit NBSAPs and national reports but

not the content. From analyzing their reports, some of them have reported potential indirect

pressure of biodiversity loss coming from the activity industry, which illustrates the influence

of CBD.

Secondly, I hope to have brought insights on how the influence of hard and soft law

aspects closely link to preventing and enabling factors and demonstrate the use of rationalist-

constructivist as analytical lenses to explain government behavior and identify the gap to

enhance the implementation of international law . Using state-interest theory, which builds

upon rationalist theory, I demonstrated that three out of four game basic models proposed

by Goldsmith & Posner (2005) link to government actors’s understanding and behavior toward

CBD. Some factors described by government actors in the national context relate closely to

technical and human capacity-building issues that explain the rational view of government

actors but also have constructivist’ elements to a minor extent . The need for strengthening

political capacity building can be demonstrated by the highlight of coordination with non-

state actors and other ministries within which the constructivist element also has a role in

making it fruitful. Factors identified in the global context relate to the subjective stance of

government actors toward the CBD, and it can be explained mostly with a constructivist view.

Using the theory of interactional international law, it can be concluded that it is crucial for all

government actors to have a shared understanding of norms on global biodiversity issues

before making the norm itself legal, not to mention that the norms have to be exercised to

ensure it will not erode over time.

73 
 
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CBD OFFICIAL DOCUMENTS

UNEP/CBD/COP/DEC/VI/16. 2002. Decision of the Conference of the Parties : Additional Financial

Resources. (7-19 April 2002). Available from https://www.cbd.int/decisions/cop/6/16

UNEP/CBD/COP/DEC/V/15. 2002. Decision of the Conference of the Parties : Incentive Measures. (15-

26 May 2000). Available from https://www.cbd.int/decisions/cop/5/15/1.b

UNEP/CBD/COP/DEC/IX/8/ 2008. Decision of the Conference of the Parties : Review of

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Biodiversity 2011-2020 and the Aichi Biodiversity Targets. (18-29 October 2010). Available from

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UNEP/CBD/BS/COP-MOP/1/15. 2004. Decision of the Conference of the Parties : Establishment of

procedures and mechanisms on compliance under the Cartagena Protocl on Biosafety. (23-27

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UNEP/CBD/BS/COP-MOP/1/15. 2014. Decision of the Conference of the Parties : Cooperative

procedures and institutional mechanisms to promote compliance with the Nagoya Protocol and to

address cases of non-compliance. (13-17 October 2014). Available from

https://www.cbd.int/doc/decisions/np-mop-01/np-mop-01-dec-04-en.pdf

CBD MEETING NOTES

Earth Negotiations Bulletin. (2016). Summary of the UN Biodiversity Conference : 2-17 December

2016. 9(678): 1-34

Earth Negotiations Bulletin. (2017). Summary of the Twenty-First Meeting of SBSSTA and Tenth

Meeting of the Working Group on Article 8(J) of the Convention on Biological Diversity : 11-16

December 2017. 9(698) : 1-15

Earth Negotiations Bulletin. (2021). Summary of the UN Biodiversity Conference : 11 - 15 October

2021. 9 (759) : 1-17

Earth Negotiations Bulletin. (2021). Summary of the Third Meeting of the Open-ended Working Group

on the Post-2020 Global Biodiversity Framework : 23 August - 3 September 2021. 9 (758) : 1-18

Earth Negotiations Bulletin. (2020). Summary of the Second Meeting of the Open-ended Working

Group on the Post-2020 Global Biodiversity Framework : 24 - 29 February 2020. 9 (751) : 1-18

Earth Negotiations Bulletin. (2019). Summary of the First Meeting of the Open-ended Working Group

on the Post-2020 Global Biodiversity Framework : 27 - 30 August 2019. 9 (732) : 1-13

Earth Negotiations Bulletin. (2021). Summary of the Informal Meeting of the Subsidiary Body on

Implementation of the Convention on Biological Diversity : 8 - 12 and 14 March 2021. 9 (755) : 1-14

SUBMISSION ON PROPOSAL FOR THE POST-2020 GLOBAL BIODIVERSITY FRAMEWORK

Argentina, Ministerio de Relaciones Exteriores y Culto. 2019. Propuestas sobre la estructura del marco

global de diversidad biological posterior a 2020. SCBD/OES/CPP/JMF/88326. Available from

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4ACE5BF2C2CE/attachments/211830/Argentina.pdf

Australian Government . 2019. Submission on the structure of the post-2020 global biodiversity

framework. SCBD/OES/CPP/JMF/88326. Available from

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BBFD799F3E7E/attachments/211828/Australia.pdf

Costa Rica, Ministerio de Ambiente y Energie. 2019. Submission of the Republic of Costa Rica on the post-

2020 strategic framework. SCBD/OES/CPP/JMF/88326. Available from

https://chm.cbd.int/database/record?documentID=248182

Republic of South Africa, Department Environmental Affairs. 2019. Comments on proposed possible

structure, strategic goals, targets and indicators. SCBD/OES/CPP/JMF/88326. Available from

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Norway, Royal Norwegian Ministry of Climate and Environment. 2020. An implementation mechanism in

the Post-2020 Global Biodiversity Framework. Available from

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United Kingdom, Department for Environment Food and Rural Affairs. 2021. Technical submission from

the UK on the monitoring framewrk for the Post-2020 Global Biodiversity Framework. Available from

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15w2zyxk3prl8/0adacd175e0b5a79ea686416dda3dc49

GREY DOCUMENTS

Secretariat of the Convention on Biological Diversity2. (2020) Global Biodiversity Outlook 5. Montreal :

Canada

OECD. (2020). A Comprehensive Overview of Global Biodiversity Finance. Available from

https://seea.un.org/content/comprehensive-overview-global-biodiversity-finance

European Union. (2012). The European Union explained - How the EU works. Available from

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how_the_european_union_works_en.pdf

IISD. 2011. Negotiations on CBD-TRIPS Relationship Still Deadlocked after Adoption of ABS Protocol.

[Online] http://sdg.iisd.org/news/negotiations-on-cbd-trips-relationship-still-deadlocked-after-adoption-

of-abs-protocol/

UNEP. (2018). Assessment of post-2010 National Biodiversity Strategies and Action Plans. Available

fromhttps://wedocs.unep.org/bitstream/handle/20.500.11822/25656/post2010_NBSAP_Assessment.pdf

The WTO Agreement. (n.d). Agreement on TRIPs as Amended by the 2005 Protocol Amending the TRIPS

Agreement.[Online] Available from https://www.wto.org/english/docs_e/legal_e/trips_e.htm#preamble

NATIONAL BIODIVERSITY STRATEGY AND ACTION PLANS (NBSAPs) (COUNTRY)

Argentina, Ministro de Ambiente y Desarrolo Sustentable de la Nación, Estrategia Nacional Sobre La

Biodiversidad Plan de Acción 2016-2020. (2017). Available from

https://www.cbd.int/doc/world/ar/ar-nbsap-v2-es.pdf

Australia, Meeting of Environment Ministers 2019-2030. (2019). Available from

https://www.cbd.int/doc/world/au/au-nbsap-v3-en.pdf

Belgian National Focal Point to the Convention on Biological Diversity (ed.), 2013. Biodiversity 2020 –

Update of Belgium’s National Biodiversity Strategy. Royal Belgian Institute of Natural Sciences,

Brussels, 148 pp

Canada, Minister of Supply and Services Canada. Canadian Biodiversity Strategy : Canada's Response

to the Convention on Biological Diversity. 1995. Available from https://www.cbd.int/doc/world/ca/ca-

nbsap-01-en.pdf

China. 2010. China National Biodiversity Conservation Strategy and Action Plan (2011-2030). Available

from https://www.cbd.int/doc/world/cn/cn-nbsap-v2-en.pdf

Costa Rica, Ministerio de Ambiente y Energia Comisión Nacional para la Gestión de la Biodiversidad

Sistema Nacional de Areas de Conservaction. (2016). Available from

https://www.cbd.int/doc/world/cr/cr-nbsap-v2-es.pdf

France,Ministère de l’Écologie du Dévelopment durable des Transports et du Logement. 2010.

National Biodiversity Strategy 2011-2020. Available from https://www.cbd.int/doc/world/fr/fr-nbsap-

v2-en.pdf

Indonesia, The Ministry of the National Development Planning. 2016. Indonesia Biodiversity Strategy

and Action Plan 2015-2020. Available from https://www.cbd.int/doc/world/id/id-nbsap-v3-en.pdf

Norway, The Ministry of Climate and Environment. 2015. Norway's National Biodiversity Action Plan.

Available from https://www.cbd.int/doc/world/no/no-nbsap-v4-en.pdf

Netherlands, The State Secretary for Economic Affairs and The State Secretary for Infrastructure and

the Environment. Available from https://www.cbd.int/doc/world/nl/nl-nbsap-v4-p1-en.pdf

South Africa, Development of Environmental Affairs. (2015). South Africa's 2nd National Biodiversity

Strategy and Action Plan 2015-2025. Available from https://www.cbd.int/doc/world/za/za-nbsap-v2-

en.pdf

Spain ,Ministerio de Medio Ambiente y Medio Rural y Marino. (2011). Plan Estrategico del Patrimonio

Natural y la Biodiversidad 2011-2017. Available from https://www.cbd.int/doc/world/es/es-nbsap-

v3-es.pdf

The United Kingdom of Great Britain and Northern Ireland, Department for Environment, Food and

Rural Affairs. (2011). Biodiversity 2020 : A strategy for England's wildlife and ecosystem services.

Available https://www.cbd.int/doc/world/gb/gb-nbsap-v3-p1-en.pdf

Thailand, Ministry of Natural Resources and Environmnet. (2016). Master Plan for Integrated

Biodiversity Management. Available from https://www.cbd.int/doc/world/th/th-nbsap-v4-en.pdf

NATIONAL REPORTS (COUNTRY)

Argentina, Secretaria de Ambiente y Desarrolo Sustentable, Quinto informe nacional Para La Conferencia

de Las Partes del Convenio Sobre La Diversidad Biologica (CDB). 2015. Available from

https://www.cbd.int/doc/world/ar/ar-nr-05-es.pdf

Australia, Australian Government Department of Environment. 2014. Australia's Fifth National Report to

the Convention on Biological Diversity. Available from https://www.cbd.int/doc/world/au/au-nr-05-

en.pdf

Belgium, Royal Belgian Institute of Natural Sciences. 2014. Fifth National Report of Belgium to the

Convention on Biological Diversity. Available from https://www.cbd.int/doc/world/be/be-nr-05-en.pdf

Canada. Canadian Wildlife Service Environment Canada. 2014. Canada's 5th National Report to the

Convention on Biological Diversity. Available from https://www.cbd.int/doc/world/ca/ca-nr-05-en.pdf

China, The Ministry of Environmental Protection. 2014. China's Fifth National Report on the

Implementation of the Convention on Biological Diversity. Available from

https://www.cbd.int/doc/world/cn/cn-nr-05-en.pdf

Costa Rica, Sistema Nacional de Áreas de Conservación (SINAC) . 2014. V Informe Nacional al Convenio

sobre Diversidad Biológica Costa Rica. Available from https://www.cbd.int/doc/world/cr/cr-nr-05-es.pdf

France, Ministre de l’écologie. 2014. Stratégie Nationale pour la Biodiversité. Available from

https://www.cbd.int/doc/world/fr/fr-nr-05-fr.pdf

Indonesia, Ministry of Environment and Forestry of Indonesia. 2014. The Fifth National Report of

Indonesia to the Convention on Biological Diversity. Available from https://www.cbd.int/doc/world/id/id-

nr-05-en.pdf

Netherlands, Ministry of Economic Affairs. 2014. Fifth National Report of the Kingdom of the Netherlands.

Available from https://www.cbd.int/doc/world/nl/nl-nr-05-en.pdf

Norway, The Ministry of Climate and Environment. 2015. Norway's Fifth National Report to the

Convention on Biological Diversity. Available from https://www.cbd.int/doc/world/no/no-nr-05-en.pdf

South Africa, The South African National Biodiversity Institute. 2014. South Africa's Fifth National Report

to the Convention on Biological Diversity. Available from https://www.cbd.int/doc/world/za/za-nr-05-

en.pdf

Spain, Ministerio de Agricultura, Alimentacion, y Medio Ambiente. (2014). Quinto Informe Nacional Sobre

La Diversidad Biological. Available from https://www.cbd.int/doc/world/es/es-nr-05-es.pdf

Thailand, Ministry of Natural Resources and Environmnet. (2014). Thailand's National Report on the

Implementation of the Convention on Biological Diversity. Available from

https://www.cbd.int/doc/world/th/th-nr-05-en.pdf

United Kingdom, Joint Nature Conservation Commitee. 2014. Fifth National Report to the Convention on

Biological Diversity. Available from https://www.cbd.int/doc/world/gb/gb-nr-05-en.pdf

INTERIM REPORT ON NAGOYA PROTOCOL IMPLEMENTATION (COUNTRY)

Argentina, Ministerio de Relaciones Exteriores y Culto. 2018. Interim National Report on the

Implementation of Nagoya Protocol. Available from https://absch.cbd.int/en/countries/AR

Belgium, Royal Belgian Institute of Natural Sciences. 2018. Interim National Report on the

Implementation of Nagoya Protocol. Available from https://absch.cbd.int/en/countries/BE

China, Ministry of Environmental Protection. 2017. Interim National Report on the Implementation of

Nagoya Protocol. Available from https://absch.cbd.int/en/countries/BE

France, Ministry of Environment. 2018. Interim National Report on the Implementation of Nagoya

Protocol. Available from https://absch.cbd.int/en/countries/FR

Indonesia, Director of Biodiversity Conservation. 2018. Interim National Report on the Implementation of

Nagoya Protocol. Available from https://absch.cbd.int/en/countries/BE

Netherlands, Ministry of Economic Affairs. 2017. Interim National Report on the Implementation of

Nagoya Protocol. Available from https://absch.cbd.int/en/countries/NL

Norway, Ministry of Climate and Environment. 2017. Interim National Report on the Implementation of

Nagoya Protocol. Available from https://absch.cbd.int/en/countries/NO

South Africa, Department of Environmental Affairs. 2018. Interim National Report on the Implementation

of Nagoya Protocol. Available from https://absch.cbd.int/en/countries/ZA

Spain ,Ministerio de Agricultura y Pesca, Alimentacion y Medio Ambiente. 2018. Interim National Report

on the Implementation of Nagoya Protocol. Available from https://absch.cbd.int/en/countries/ES

United Kingdom of Great Britain and Northern Ireland. 2018. Interim National Report on the

Implementation of Nagoya Protocol. Availabe from https://absch.cbd.int/en/countries/GB

Costa Rica, Ministerio de Agriculura y Ganaderia. 2007. Primer Informe Nacional Ordinario Sobre

Aplicacion Del Protocolo De Cartagena Sobre Seguridad de la Biotechnologia. Available from

https://www.cbd.int/doc/world/cr/cr-nr-cpb-01-es.pdf

People's Republic of China, Biosafety Administration Office. 2007. First Regular National Report on the

Implementation of the Cartagena Protocol on Biosafety. Available from

https://www.cbd.int/doc/world/cn/cn-nr-cpb-01-en.pdf

France, Ministère de l’Ecologie et du Développement Durable. 2007. Premier Rapport National Regulier

Sur La Mise en Euvre du Protocole De Cartagena Sur La Prevention Des Risques Biotechnologiques.

Available from https://www.cbd.int/doc/world/fr/fr-nr-cpb-01-fr.pdf

INTERIM REPORT ON CARTAGENA PROTOCOL IMPLEMENTATION (COUNTRY)

Indonesia, Ministry of Environment of Indonesia. 2007. First Regular National Report on the

Implementation of the Cartagena Protocol on Biosafety. Available from

https://www.cbd.int/doc/world/id/id-nr-cpb-01-en.pdf

Belgium, Federal Public Service Health, Food Chain Safety and Environment. 2007. First Regular

National Report on the Implementation of the Cartagena Protocol on Biosafety. Available from

https://www.cbd.int/doc/world/be/be-nr-cpb-01-en.pdf

Netherlands, Ministry of Housing, Spatial Planning and the Environment. 2007. First Regular National

Report on the Implementation of the Cartagena Protocol on Biosafety. Available from

https://www.cbd.int/doc/world/nl/nl-nr-cpb-01-en.pdf

Norway, Ministry of the Environment-Department for Nature Management. 2007. First Regular

National Report on the Implementation of the Cartagena Protocol on Biosafety. Available from

https://www.cbd.int/doc/world/no/no-nr-cpb-01-en.pdf

South Africa, Department of Environmental Affairs and Tourism. (n.d). First Regular National Report on

the Implementation of the Cartagena Protocol on Biosafety. Available from

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Spain, Ministerio de Medio Ambiente. (n.d). Primer Informe Nacional Ordinario Sobre Aplicacion del

Protocolo De Cartagena Sobre Seguridad de la Biotechnologia. Available from

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Thailand, Office of Natural Resources and Environmental Policy and Planning. (n.d). First Regular

National Report on the Implementation of the Cartagena Protocol on Biosafety. Available from

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United Kingdom of Great Britain and Northern Ireland, Department for Environment-Defra,FSA,HSE.

(n.d). First Regular National Report on the Implementation of the Cartagena Protocol on Biosafety.

Available https://www.cbd.int/doc/world/gb/gb-nr-cpbi-en.pdf

Annexes

ResearchGate has not been able to resolve any citations for this publication.

Indonesia’s Patent Policy on the Protection of Genetic Resources related Traditional Knowledge; Is it a Synergy to Fulfill the TRIPs agreement and CBD Compliance?

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Nurul Barizah

This research analyses the compatibility of Indonesian Patent Act with the Trade related Aspect of Intellectual Property Rights (TRIPs) Agreement and the Convention on Biological Diversity (CBD) dealing with Genetic Resources Related to Traditional Knowledge (GRTK). The focus this analyses on whether the new Indonesian Patent Act provides a clear policy on the protection of GRTKF and the development of the biotechnology in Indonesia, particularly on the patentability of genetic resources related inventions, including genes patent. This research found that the new Indonesian Patent Act on GRTK is not only to synergise between the TRIPs Agreement obligation and the CBD compliance, but also adopted patent policies derived from other developed countries particularly in examining the patentability thresholds and exceptions from patentability. Even, in the context of patentability of living organisms, Indonesia adopts a very liberal approach compared to most industrialised countries. This research advises that Indonesian patent policy on GRTK should take into account the richness of this country on biodiversity and the level of biotechnology industry development.

Series: Practical guidance to qualitative research. Part 4: Trustworthiness and publishing

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In the course of our supervisory work over the years we have noticed that qualitative research tends to evoke a lot of questions and worries, so-called frequently asked questions (FAQs). This series of four articles intends to provide novice researchers with practical guidance for conducting high-quality qualitative research in primary care. By 'novice' we mean Master's students and junior researchers, as well as experienced quantitative researchers who are engaging in qualitative research for the first time. This series addresses their questions and provides researchers, readers, reviewers and editors with references to criteria and tools for judging the quality of qualitative research papers. The first article provides an introduction to this series. The second article focused on context, research questions and designs. The third article focused on sampling, data collection and analysis. This fourth article addresses FAQs about trustworthiness and publishing. Quality criteria for all qualitative research are credibility, transferability, dependability, and confirmability. Reflexivity is an integral part of ensuring the transparency and quality of qualitative research. Writing a qualitative research article reflects the iterative nature of the qualitative research process: data analysis continues while writing. A qualitative research article is mostly narrative and tends to be longer than a quantitative paper, and sometimes requires a different structure. Editors essentially use the criteria: is it new, is it true, is it relevant? An effective cover letter enhances confidence in the newness, trueness and relevance, and explains why your study required a qualitative design. It provides information about the way you applied quality criteria or a checklist, and you can attach the checklist to the manuscript.

The Global Environment and International Law

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While 2020 –dubbed the “Super Year for Nature –has seen the world battling an unforeseen global pandemic, this article comes back on the Convention of Biological Diversity and its regime, studies the aim of the negotiations of the post-2020 global biodiversity framework and the relevance of this framework for the planet, considering that the protection of biological diversity impacts all aspects of human life, including the full enjoying of human rights and protection against future pandemics.

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This article analyses the potential of the Association of Southeast Asian Nations (ASEAN) and its members to promote the norm of responsible governance of marine biodiversity of areas beyond national jurisdiction (ABNJ). Based on the literature on international norms, this article suggests that the norm of responsible governance of ABNJ biodiversity will soon reach the point of a norm cascade, after which it will gradually move towards the stage of norm internalization. As such, the norm can have the potential to standardize appropriate behaviour of States. This article examines ASEAN’s norm‐promotion activities within and outside the region that support an improved governance system for ABNJ. Notably, some ASEAN States play an important role both individually and collectively in the development of a new global legal instrument on marine biodiversity of ABNJ. The findings suggest that although the conservation of biodiversity of ABNJ has been the subject of debate for more than a decade, ASEAN’s initiatives to protect marine biodiversity of ABNJ are limited. This is not surprising considering the lack of jurisdiction in ABNJ. Nevertheless, ASEAN’s overall initiatives for conservation of the marine environment are highly relevant for its future role in ABNJ governance because some regional ocean governance norms are transferable in the ABNJ context.

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Feb 2020

Laura Movilla

The Nagoya Protocol developed the legal regime for the access to genetic resources and the fair and equitable sharing of benefits arising from their utilization that were already enshrined in the Convention on Biological Diversity, and introduced binding rules on compliance. With its Regulation 511/2014 adopted in 2014, the European Union (EU) – the second most important geographical area in the global biotechnology market – has developed and sought to harmonize the compliance and monitoring measures for users from the Nagoya Protocol in the EU territory. This article presents and assesses the progress made in this recent EU legal field, including the challenges in the form of several uncertainties that still lie ahead.

Towards Relative Normativity in International Law?

Chapter

Jul 2017

Prosper Weil

Implementation of the Nagoya Protocol in the European Union and in Germany

Article

Oct 2018
PHYTOMEDICINE

Thomas Greiber

Background: In 2014 the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization entered into force. The Protocol aims to further concretize and improve the implementation of the access and benefit-sharing (ABS) obligations already foreseen under the Convention on Biological Diversity (CBD) since 1993. The European Union has accepted the challenge to establish the necessary monitoring and compliance measures which are envisaged in the Nagoya Protocol. For this two ABS Regulations (Regulation (EU) No 511/2014 and Implementing Regulation (EU) 2015/1866) were adopted in the European Union. Hypothesis However, the EU ABS legislation “only” provides a framework of instruments which now need to be tried out and tested in real life. Results As this paper shows competent national authorities in the European Union, such as the one in Germany, currently face a number of practical challenges ranging from ABS awareness raising in numerous and very diverse sectors, to clarification of the highly disputed scope of the EU ABS legislation, to the development of effective, proportionate and dissuasive compliance checks. Conclusions The paper concludes that the implementation of ABS in general and the Nagoya Protocol in particular remain a highly complicated task influenced by rapid technological developments and a general lack of trust between countries as well as stakeholders.

The Implementation of the Paris Agreement on Climate Change

Book

Oct 2018

Vesselin Popovski

is international environmental law actually law and how does it work : Insights from the Convention on Biological Diversity

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