Source: EURLEX
Language: en
Format: md

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Hw&y'Cy

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##### **`COMMISSION OF THE EUROPEAN COMMUNITIES`**

```
                          COM(92) 186 final

                          Brussels, 26 May 1992

                   Proposal for a

                  COUNCIL DECISION

           CONCERNING THE SIGNATURE OF A CONVENTION

          ON THE CONSERVATION OF BIOLOGICAL DIVERSITY

               (presented by the Commission)

```

```
sss

```

```
                EXPLANATORY MEMORANDUM

&lbjfi£l= SIGNATURE OF THE CONVENTION ON THE CONSERVATION OF BIOLOGICAL

      DIVERSITY

1. On 29 July 1991 the Council authorized the Commission to participate on
  behalf of the Community In the negotiations on a Convention on the
  conservation of biological diversity under the United Nations
  Environment Programmed [1] ) The Commission has participated in the
  negotiations in accordance with the negotiating directives given to It
  by the Counc11.

2. The origin of this draft Convention and the rationale for the
  Community's participation in it has been explained In the explanatory
  memorandum to the Commission's communication on the negotiation of a
```

**`Convention`** **`on the`** **`conservation`** **`of biological`** **`diversity.`** _**&>**_

```
  Since the Council's conclusions were adopted, the draft Convention has
  been discussed in four sessions of the Intergovernmental Negotiating
  Committee on a Convention on the conservation of biological diversity
  which took place from 24 June to 3 July 1991 in Madrid, from
  23 September to 2 October 1991 In Nairobi, from 26 November to
  4 December 1991 in Geneva and from 6 to 15 February 1992 in Nairobi.

4. At this stage it is not possible to present a definitive text of the
  Convention to the Council, as the draft text will be further discussed
  at one more session from 11 to 18 May 1992 in Nairobi, A Diplomatic
  Conference win be held Immediately after that session, on 19 and
  20 May. The Final Act Is due to be signed in Nairobi on 21 May. The
  Convention will subsequently be signed in June in Rio at the United
  Nations Conference on Environment and Development (UNCED).

5. Certain improvements to the text need to be sought by the Community, it
  will be advisable, In particular, for the Community to seek to amend
  certain provisions of the draft Convention which will have important
  consequences with regard to the protection of intellectual property.
  These amendments will be the subject of coordination at the meeting.

6. Forasmuch as the result of the negotiation would be acceptable by the
  Community, the commission considers that it will be in the Community's
  Interest to be ready to sign the Convention in June at the UNCED.

7. Subject to this reservations, the Commission therefore requests the
  Council to authorize the President to designate the persons empowered to
  sign the abovementioned Convention on behalf of the Community and to
  confer on them the necessary powers to sign the Convention on behalf of
  the Community. '

(1)
(2) SEC (91) 936 final

```

_**1**_

```
             PROPOSAL FOR A COUNCIL DECISION

          CONCERNING THE SIGNATURE OF A CONVENTION

         ON THE CONSERVATION OF BIOLOGICAL DIVERSITY

THE COUNCIL OF THE EUROPEAN COMMUNITIES.

Having regard to the Treaty establishing the European Economic community.

Having regard to the proposal from the Commission,

Whereas the Commission has participated on behalf of the Community in the

intergovernmental Negotiating Committee on a Convention on the conservation

of biological diversity under the United Nations Environment Programme:

Whereas the Community shall seek further Improvements, particularly as

regards intellectual property.

Whereas the draft Convention provides for signature by states and by

regional economic integration organizations, thus allowing the Community to

sign;

Whereas the draft text of this Convention will be submitted to the

plenipotentiaries for signature during the United Nations Conference on

Environment and Development to be held In Rio (Brazil) from 3 to

14 June 1992;

Whereas It is necessary for the Community to be in a position, where

appropriate, to sign the Convention without prejudice to its further

conclusion.

HAS DECIDED AS FOLLOWS:

  The President of the Council is hereby authorized to designate, as

  appropriate, the persons empowered to sign, with reserve of further

  approval, the Convention on the conservation of biological diversity on

  the Community's behalf and to confer on the persons he designates the

  necessary powers for that purpose.

Done at Brussels, For the Council

                    The President

```

#### United Nations * Environment Programme

```
INTERGOVERNMENTAL NEGOTIATING COMMITTEE

 FOR A CONVENTION ON BIOLOGICAL DIVERSITY

Seventh Negotiating Session/Fifth Session of INC
Nairobi, 11-19 May 1992

                 PROVISIONAL AGENDA

1. Opening of the session.

2. Organizational matters:

   (a) Adoption of the agenda;

   (b) Organization of work.

```

```
Distr.

GENERAL

UNEP/Bio.Div/N7-INC.5/1
26 February 1992

ORIGINAL: ENGLISH

```

```
3. Consideration of the fifth revised draft Convention on Biological
   Diversity.

4. Other matters.

5. Adoption of the report.

6. Closure of the session.

Na.92-5290

```

_**x£^.\**_ **`Distr.`**
## **»Oz GENERAL** United Nations ^W

```
   -_. . UNEP/Bio.Div/N7-INC.5/2
```

20 w 9 2
## Environment ^ ™« y Programme ORIGINAL: ENGLISH

```
INTERGOVERNMENTAL NEGOTIATING

 COMMITTEE FOR A CONVENTION ON

 BIOLOGICAL DIVERSITY

Seventh negotiating session/Fifth session of INC
Nairobi, 11-19 May 1992

             FIFTH REVISED DRAFT CONVENTION

               ON BIOLOGICAL DIVERSITY

```

_**Explanatory**_ _**note**_

```
1. The fifth revised draft Convention on Biological Diversity contains
articles revised by Working Groups I and II of the Intergovernmental
Negotiating Committee (INC) for a Convention on Biological Diversity at the
third negotiating session/first session of INC (Madrid, 24 June 3 July 1991), the fourth negotiating session/second session of INC
(Nairobi, 23 September - 2 October 1991), the fifth negotiating
session/third session of INC (Geneva, 25 November - 4 December 1991)
and the sixth negotiating session/fourth session of INC (Nairobi,
6-15 February 1992).

2. The preamble and Article 1 (Objectives) were not revised at the sixth
negotiating session/fourth session of INC. They remain unchanged.

3. At the sixth negotiating session/fourth session of INC, Working Groups
I and II established open-ended stab-working groups on definitions and use
of terms on the basis of the Bureau's proposed distribution of definitions
between the Working Groups. The sub-working group of WG.II submitted a
proposed text for definitions and WG.II recommended its inclusion in
Article 2 of the fifth revised draft Convention with a footnote stating
that the new definitions had been formulated by a sub-working group of
WG.II and had not been discussed by the Group itself. These terms appear
in Article 2 marked with an asterisk (*). The terms contained in
Appendix I were prepared by a sub-working group of WG.I but were not
considered by WG.I. WG.I recommended that they should be appended to the
fifth revised draft Convention.

4. Article 3 (Fundamental Principles) was placed in square brackets
and its former paragraph 11 was placed in square brackets and moved to
Article 14. Article 4 (General Obligations) was placed in square brackets,
and its former sub-paragraphs (f) and (i) of paragraph 2 were placed in
square brackets and moved to Article 14 as well. Alternative proposals in
the form of elements for reformulation of Articles 3 and 4 are contained in
Appendix II.

```

**`5.`** **`Article`** **`14`** _**bis**_ **`of the`** **`fourth revised draft convention was deleted`**
```
since its substance had been transmitted to WG.I and incorporated to
strengthen Article 7 (j), with some elements being incorporated in the

Na.92-5271

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 2

Preamble. Articles 15 and 16 of the fourth revised draft convention were
```

**`considered together and appear reformulated as Article 17. Article 17`** _**bis,**_
```
paragraphs 4 and 5 of the fourth revised draft convention were reformulated
and paragraph 6 was deleted as concerns expressed therein were adequately
covered by the reformulated text. The Article appears as Article 20 in the
fifth revised draft convention.

6. A general discussion was held at the sixth negotiating seesion/fourth
session INC on Articles 18 and 19 of the fourth revised draft convention
and a sub-working group was established. After some discussion in the subworking group, the Chairman of WG.II ruled that the text of Articles 18 and
19 would be reproduced in the fifth revised draft convention as they
appeared in the fourth revised draft convention (UNEP/Bio.Div/N6-INC.4/2)
with updated footnotes in order to make it clear that the text resulted
from the fifth negotiating session/third session INC. Articles 18 and 19
appear as Articles 21 and 22 respectively, in the fifth revised draft
convention.

7. Articles 23, 26 and 30-43 were considered as revised by the Lawyers'
Drafting Group during the fifth negotiating session/third session of INC.
No decision was made on Article 23. The revised text of Article 23 is
reproduced together with the previous version, both are in square brackets.
Article 26 was not discussed in substance and is reproduced as prepared by
the Lawyers' Drafting Group. The previous version of Article 30 is
reproduced with an additional alternative.

8. During the sixth negotiating session/fourth session of INC a legal
drafting group was established with a mandate to give a legal review of
Articles 31-43. The recommendations of the group, which were adopted by
the Plenary, are reflected in paragraph 4 of Article 32 (Amendment of the
Convention or Protocols) and sub-paragraphs (b) and (c) of Article 33
(Adoption and Amendment of Annexes).

9. At the sixth negotiating session/fourth session of INC a number of
articles, paragraphs and sub-paragraphs were deleted, moved or rearranged.
The articles and paragraphs have been renumbered to read sequentially.

10. The draft includes appropriate footnotes resulting from the
deliberations of the sixth negotiating session/fourth session of INC. All
relevant footnotes resulting from the previous sessions of the INC are
retained in the text.

                                      /...

```

UNEP/Bio.Div/N7-INC.5/2
Page 3

**Preamble** **!**

```
   The Contracting Parties,

```

_**Recognizing**_ **`that humanity shares the earth with other forms of life`**
```
and accepting that these should exist independently of their benefits for
humanity;

```

_**Affirming**_ **`that the conservation of biological diversity is a common`**
```
concern of all peoples;

```

_**Conscious**_ **`of the ever growing environmental, ecological, genetic,`**
```
scientific, aesthetic, recreational, cultural, educational, social and
economic values of biological diversity and its components;

```

_**Recognizing**_ **`the close and traditional dependence of many local`**
```
communities and indigenous populations on biological resources, their
continuing interest in their conservation, and the need to reward their
knowledge and innovations associated with the conservation and wise use of
biological diversity and its components;

```

_**Noting**_ **`that biological diversity is being seriously reduced and that`**
```
some species are threatened with extinction;

```

_**Accepting**_ **`that the threats to these irreplaceable resources include`**
```
degradation of the environment from habitat destruction and pollution,
human population growth, unsustainable exploitation of some species, and
the unlawful taking of flora and fauna;

```

_**Voting**_ **`the deterioration in quality of life caused by unwise use of`**
```
biological resources;

```

_**Stressing**_ **`that in exercising their sovereign rights over their`**
```
biological resources states have a responsibility to use and develop them
in a sustainable manner and to conserve biological diversity;

```

_**Stressing**_ **`the importance of and need to promote cooperation among`**
```
States and international governmental and non-governmental organizations in
a coordinated and comprehensive regional and global approach for the
conservation of biological diversity and sustainable use and development of
its components in areas both under and beyond national jurisdiction and
control;

   Aware that the conservation of natural habitats and the maintenance of
viable populations of species in natural surroundings are vital components
```

**`of the`** _**in-situ**_ **`and`** **`ex-situ`** **`conservation of biological resources;`**

_**Recognizing**_ **`to this end the need to set aside areas of natural habitat`**
```
for the conservation of biological diversity and to pursue sustainable
development outside these areas through planning and management which
conserves biological diversity to the maximum extent possible;

    1 The Group of 77 and China requested that the proposal contained
in Appendix II to the fifth revised draft Convention on Biological
Diversity be considered with the Preamble.

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 4

   Aware that the conservation of biological diversity also requires
special measures independent of natural surroundings [which are also
vital);

    Avars of the benefits from the sharing and diffusion of knowledge
about biological diversity, its uses and developments, technologies and
practices favourable to its conservation;

```

_Acknowledging_ `that special provision is required to meet the needs of`
```
developing countries, including the provision of additional financial
resources and access to relevant technologies, bearing in mind that the
funds can be expected to make a substantial difference in the world's
ability to address the loss of biodiversity;

```

_Accepting_ `that the developed countries and large industrial`
```
enterprises, including transnational corporations, have benefitted from
their significant role in the development and use of biological resources;

```

_Considering_ `that these countries and enterprises can help avoid`
```
additional costs and burdens for developing countries which forgo
exploitation of their biological resources when acting in accordance with
this Convention;

```

_Stressing_ `the need for States, international organizations and non-`
```
governmental organizations to promote the conservation of biological
diversity and the wise use and development of its components;

```

_Noting_ `that action by States and international organizations directly`
```
and jointly to conserve biological diversity and to use and develop its
components in a sustainable manner will strengthen cooperative and friendly
relations among States, and contribute to peace and security for all
peoples; and

```

_Agreeing_ `that existing international arrangements dealing with`
```
biological resources do not cover, in spite of the progress achieved, all
aspects of biological diversity, the sources of threats to it and the wise
use and development of biological resources.

   Have agreed as follows:

```

`Article 1.` _Objectives_

```
   [The objective of this Convention is to conserve the maximum possible
biological diversity for the benefit of present and future generations and
for its intrinsic value, [and to provide for the fair and equitable sharing
of the benefits of research in biotechnology arising out of conservation of
the biological diversity. This is to be achieved] by ensuring that the use
of biological resources is sustainable; [by providing adequate, new and
additional funding to the developing countries] (by taking account of the
need to share costs and benefits between developed and developing
countries,] and by [securing] (providing] economic and legal conditions
favourable for the transfer of technology [to them on preferential and noncommercial terms] necessary to accomplish this objective.]

                                      /...

```

```
                             UNEP/Bio.Div/N7-INC.5/2
                             Page 5

```

_**Article**_ _**2.**_ _**Use**_ _**of Terms for the Purpose of this**_ _**Convention**_ _*****_

```
   [For the purposes of this Convention:

"ALIEN SPECIES" means a species occurring in a particular country or area
outside its historically known natural range, as a result of intentional or
accidental dispersal by human intervention.

"BIOLOGICAL DIVERSITY (OR BIODIVERSITY)" means the variety of and
variability among living organisms and the ecological complexes of which
they are part; this includes diversity within species, between species and
of ecosystems.

BIOLOGICAL RESOURCES includes genetic resources, organisms or part thereof,
populations, or any other biotic component of ecosystems with actual or
potential use or value for humanity.*

BIOTECHNOLOGY means any technological application that uses biological
systems, living organisms, or derivatives thereof, to make or modify
products or processes for specific use.*

"CONSERVATION OF BIOLOGICAL DIVERSITY" means the preservation (or integral
protection), maintenance, sustainable use, recovery and enhancement of the
components of biological diversity.

"CONSERVATION": see conservation of biological diversity.

COUNTRY PROVIDING GENETIC MATERIAL/RESOURCES means the country supplying
```

**`genetic resources collected from`** _**in-situ**_ **`sources, including populations of`**
**`both wild and domesticated species, or taken from`** _**ex-situ**_ **`sources, which`**
```
may or may not have originated in that country.*

COUNTRY OF ORIGIN OF GENETIC RESOURCE * means the country which possesses
```

**`those genetic resources in`** _**in-situ**_ **`conditions.*`**

```
"DOMESTICATED OR CULTIVATED SPECIES" means species in which the
evolutionary process has been influenced by humans to meet their needs.

"ECOSYSTEM" means a dynamic complex of plant, animal and micro-organism
communities and their non-living environment interacting as an ecological
unit.

"ENDANGERED SPECIES" means a species in danger of extinction and whose
survival is unlikely if the causal factors continue operating.

"ENDEMIC SPECIES" means a species whose natural geographic distribution is
restricted to a specific area or country.

    2 Terms followed by "*" were proposed by a sub-working group of
Working Group II but not discussed by the Working Group itself.

   * Definition proposed by the chairman of the sub-working group of
WG.li on the basis of informal consultations with some members of the subworking group.

                                      /...

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 6

EX-SITU CONSERVATION means the conservation of components of biological
diversity (genetic material, organisms, populations) outside their natural
surroundings.*

GENETIC MATERIAL means any material of plant, animal, microbial or other
origin containing functional units of heredity.*

GENETICALLY MODIFIED ORGANISMS means organisms in which the genetic
material has been altered in a way that does not occur naturally by mating,
recombination, or natural selection.*

GENETIC RESOURCES means genetic material of actual or potential value.*

"HABITAT" means the place or type of site where an organism or population
naturally occurs.

"INDIGENOUS POPULATIONS": it is advised that the word "populations" be
substituted by the word "people" when used for humans.

"INDIGENOUS SPECIES" means a species occurring in the wild in a particular
area or country, within its known natural range.

IN-SITU CONSERVATION means the conservation of ecosystems and natural
habitats and the maintenance and recovery of viable populations of species
in their natural surroundings and, in the case of domesticated species, in
the surroundings where they have developed their distinctive properties.*

"NONTERRESTRIAL SPECIES" means organisms not relying on the land for a
significant aspect of their life cycle.

"PROTECTED AREA" means a geographically defined area which is designated or
regulated, and managed to achieve specific conservation objectives.

"RATIONAL USE OF BIOLOGICAL DIVERSITY" means the use of components of
biological diversity in a way and at a rate that does not lead to their
long term decline.

"SPECIES THREATENED WITH EXTINCTION": see threatened species.

"TERRESTRIAL SPECIES" means organisms relying on the land for a
significancant aspect of their life cycle.

"THREATENED SPECIES" means species that are either endangered or
vulnerable.

"UTILIZATION/USE OF BIOLOGICAL DIVERSITY": see rational use of biological
diversity.

"WILD SPECIES" means a species which has not been deliberately modified by
humans.

"(WILDLIFE) CORRIDORS" means routes or avenues to ensure completion of life
cycles and unimpeded migrations and gene flows.]

                                   /..

```

```
                             UNEP/Bio.Div/N7-INC.5/2
                             Page 7

```

_**[Article**_ _**3.**_ _**Fundamental Principles**_ **`4`**

```
   The following fundamental principles shall guide the Contracting
Parties in the achievement of the objectives of this Convention:

1. The conservation of biological diversity is a [matter of] common
concern of all humankind and requires cooperation by all Contracting
Parties.

2. The Contracting Parties have as States the sovereign right to exploit
their own biological resources pursuant to their own environmental policies
and the responsibility:

   (a) For the conservation and sustainable use of their biological
resources; and

   (b) For ensuring that activities within their jurisdiction or control
do not cause damage to the biological diversity of other States or of areas
beyond the limits of national jurisdiction.

3. The fundamental requirement for the conservation of biological
```

**`diversity is the`** _**in-situ**_ **`conservation of ecosystems and natural habitats`**
```
and the maintenance and recovery of viable populations of species in their
```

**`natural surroundings.`** _**Bx-situ**_ **`measures, preferably in the country of`**
```
origin, also have an important role to play.

4. Conservation of biological diversity, particularly of migratory
species and their habitats, cross-border ecosystems and areas beyond the
jurisdiction of each State Party, requires international cooperation in
addition to the national effort that strengthens it.

5. While recognizing that remedying damage to biological diversity is
important, it is vital to anticipate, prevent and attack the causes of
reduction or loss of biological diversity at source.

6. Where there is a threat of [serious or irreversible damage to]
[significant reduction or loss of] biological diversity, lack of full
scientific certainty shall not be used as a reason for postponing
(measures] [actions] to avoid or minimize such a threat.

7. The value of the contribution of biological resources and of
maintenance of biological diversity and the uneven distribution of these
resources among countries are to be recognized and reflected in economic
and financial arrangements among them, with the countries benefiting most
from biological diversity carrying the main responsibility for the cost of
its conservation. [ s ]

8. The benefits of research and development derived from biomaterial
taken from developing countries are to be made available to those
developing countries. [ 5 ]

    4 The Group of 77 and China requested that the proposal contained
in Appendix II to the fifth revised draft Convention on Biological
Diversity be considered in conjunction with this Article.

    9 Paragraphs 7-10 were transferred by WG.I to WG.II for
cons iderat ion.

                                      /...

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 8

 [8. Countries providing genetic material located within their national
jurisdiction shall share in benefits from the research and the development
which make use of that genetic material.] [ s],*

9. Technology related to conservation of biological diversity and the
sustainable use and development of its components is to be transferred to
developing countries on a preferential and non-commercial basis. [ 5 ]

10. Technology related to conservation of biological diversity and the
sustainable use and development of biological resources is to be developed
jointly by the owners of the resources and those with financial, scientific
and technical resources. [ 5 ]

11. Countries are to gain directly from all the contributions that
biological resources within their jurisdiction or control make to
environment protection, economic development and better health and quality
of life in other countries.

12. Practices and innovations developed in the course of traditional life
and by indigenous [peoples] [communities] [populations] which contribute to
the wise and sustainable use of biological resources and conservation of
biological diversity are to be recognized and rewarded.

13. The additional burden on developing countries arising out of
protection of their biological diversity requires new and additional
funding to be provided by the developed countries through a new
multilateral fund to be established under this Convention.

14. Access to genetic material and substances and products derived from
them or to technology related or contributing to the conservation of
biological diversity which are within the jurisdiction or control of a
State is to be [open] [on the basis of mutual agreements].

[14. Access to genetic material [and substances and products derived from
them] or to technology related or contributing to the conservation of
biological diversity which are within the jurisdiction or control of a
State is to be [open] (on the basis of mutual agreements]. [ 7 ]

15. The application of biotechnology may involve risks and requires
regulatory approaches involving safeguards for health and the environment.

16. Patent systems may have unwanted socio-economic effects for developing
countries and small farmers.

    5 Paragraphs 7-10 were transferred by WG.I to WG.II for
cons iderat ion.

    6 Provisional formulation to replace Article 3, paragraphs 8 and

12.

    7 Provisional formulation to replace Article 3, paragraph 14 with
the text in the first set of square brackets (beginning with the words "and
substances and") to be deleted.

                                      /...

```

```
                             UNEP/Bio.Div/N7-INC.5/2
                              Page 9

17. Biotechnology contributes to the conservation and sustainable use of
biodiversity, which requires a wide genetic base. *

[17. The maintenance of a wide genetic base is necessary for biotechnology
to be able to contribute to conservation and sustainable use of biological
diversity.]) [ 9 ]

```

**`[Article`** _**4.**_ _**General Obligations**_ **`w`**

```
1. (Bach Contracting Party] [The Contracting Parties) shall take [in
accordance with (the means at (their] [its] disposal [,] [and]] [its]
[their] capabilities] [and [its] [their] national plans, programmes and
priorities], [all] (possible] [appropriate] measures [in accordance with
the provisions of this Convention] [to ensure] (consistent with) the
conservation of (the maximum possible] biological diversity and the
sustainable use [and the development] of its components within [the area
under] [its] [their] national jurisdiction (or control].

   [They shall ensure that activities within their jurisdiction [or
control] do not cause damage to the biological diversity of other States or
of areas beyond the limits of national jurisdiction.]

   [They shall ensure that the [measures of] conservation of biological
diversity and the sustainable use [and the development] of its components
are (as far as possible appropriately integrated into national plans and
policies.] [Treated as an integral part of national (development] plans
and are taken duly into account in all relevant sectoral policies and
legislation.]]

   (The Contracting Parties shall cooperate on a global basis and, as
appropriate, on a regional basis, directly or through appropriate
international organizations with a view to ensuring the conservation of
biological diversity in areas beyond national jurisdiction.]

   The Contracting Parties shall cooperate with each other and with or
through such international organizations as they may deem appropriate in
coordinating their activities and in supporting and assisting each other in
fulfilling their obligations under the present Convention [related to
biological diversity and] [biotechnology] [relevant aspects of
biotechnology], [including health, food and industrial processes).

2. [To these ends, the Contracting Parties shall in accordance with the
means at their disposal and their capabilities:]

   (a) Cooperate in the development of agreed measures, procedures,
technologies, practices and standards for the implementation of this
Convention, [where appropriate with a view to the adoption of protocols and
annexes];

   • As recommended by the Lawyers' Meeting, if retained, paragraphs
15, 16 and 17 should be relocated in the Preamble since they are statements
of fact.

    9 Provisional formulation to replace Article 3, paragraph 17.

    10 The Group of 77 and China requested that the proposal contained
in Appendix II to the fifth revised draft Convention on Biological
Diversity be considered with this Article.

                                      /...

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 10

   (b) Foster favourable economic and legal conditions for the
sustainable use and development of biological diversity and its components;

   (c) Ensure measures are taken to conserve natural habitats and viable
populations of species in natural surroundings;

   (d) Provide, establish and implement procedures for assessing the
impact on biological diversity of proposed policies, programmes and
projects where such an impact may be significant;

   (e) Provide individually, or in cooperation with other States and
international organizations, [new and additional] financial resources and
other forms of cooperation for programmes which support implementation of
the provisions of this Convention, taking into consideration the special
situations and needs of developing countries (.] [and loss of opportunities
for alternative uses of biological resources foregone because of measures
taken pursuant to this Convention].

   (f) Promote and support scientific research individually and jointly
with other Contracting Parties and international organizations;

   (g) Promote public awareness of the need to conserve biological
diversity and the wise use and development of its components through
education and the dissemination of general information;

   (h) Facilitate the exchange of information among themselves and with
international organizations;

   [(i) Taking into consideration the special needs of developing
countries, cooperate with the aim of ensuring the capacity of developing
countries to implement the provisions of the present Convention through
national institutions and legislation.]]

```

_**The text below contained in double square brackets**_ _**is**_
_**an alternative**_ _**in lieu of the whole of Article**_ _**4.**_

```
   [[Each Contracting Party shall, [in accordance with the means at its
disposal and its national plans, programmes and priorities] [as far as
possible and as appropriate,] [as far as practicable and as appropriate and
consistent with Articles 5 to ... endeavour to] implement the measures set
down in this Convention (with a view to ensuring] [to promote]:

   (a) The conservation of [the maximum possible] biological diversity
and the sustainable use of its components [in areas within the limits of
national jurisdiction];

   (b) That activities under its jurisdiction or control do not cause
damage to the biological diversity in areas within the limits of the
national jurisdiction of other States or beyond the limits of national
jurisdiction; and

   (c) Through international including regional cooperation, the
conservation and sustainable use of biological diversity in areas beyond
the limits of national jurisdiction.]

   (States shall implement this Convention and its protocols consistent
with the rights and obligations reflected in the 1982 United Nations
Convention on the Law of the Sea.]

                                      /...

```

```
                              UNEP/Bio.Div/N7-INC.5/2
                              Page 11

```

_**[Article**_ **`....`** _**Cooperation**_

```
   The Contracting Parties shall co-operate directly or through
international organizations, where appropriate, in coordinating their
activities in supporting and assisting each other in fulfilling their
obligations under this Convention, particularly taking into consideration
the needs of developing countries.]]

```

_**Article**_ **`5.`** _**Implementation**_ _**Measures**_ **`"`**

```
1. Each Contracting Party shall, in accordance with the particular
conditions and capabilities in each country:

   (a) Develop national strategies, plans or programmes for the
conservation and sustainable use of biological diversity or adapt for this
```

**`purpose existing strategies, plans or programmes which shall reflect,`** _**inter**_
_**alia,**_ **`the measures set out in this Convention relevant to the Contracting`**
```
Party concerned; and

   (b) 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.

[2. Each Contracting Party may take or maintain stricter conservation
measures than those provided for in the present Convention.] [ u ]

```

**`Article`** _**6.**_ _**Identification**_ _**and**_ _**Monitoring**_

```
   Each Contracting Party shall, as far as possible and as appropriate in
particular for the purposes of Articles 7 to 10:

   (a) Identify components of biological diversity with respect to which
it exercises sovereignty, sovereign rights or jurisdiction important for
its conservation and sustainable use, [having regard to those identified in
Annex ...] [and other international agreements to which it is a party);

   (b) Monitor through sampling and other techniques, the components of
biological diversity identified pursuant to paragraph (a), and paying
particular attention to those requiring urgent conservation measures and
those which offer the greatest potential for sustainable use;

   (c) Identify processes and activities with respect to which it
exercises sovereignty, sovereign rights or jurisdiction which have or are
likely to have significant adverse impacts on the conservation and
sustainable use of biological diversity [having regard to those processes
and activities set down in Annex ... ] and monitor through sampling and
other techniques their effects;

   (d) Maintain and organize by any mechanism data derived from
identification and monitoring activities pursuant to paragraphs (a), (b)
and (c) of this Article;

    11 One delegation proposed the new title of Article 5 to read
"General Conservation Measures". It was agreed that further consideration
should be given to the title of this Article.

    12 Agreement on the content and location of this paragraph was
delayed pending discussion of Article 23.

                                      /...

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 12

   (e) [Cooperate] [Cooperate through mutual agreements] with other
Contracting Parties, directly or [as appropriate] (where necessary] through
relevant organizations, [if appropriate] in identifying and monitoring
components of biological diversity, processes and activities pursuant to
paragraphs (a) to (d) of this Article, in respect of transboundary matters
```

**`and areas beyond national jurisdiction.`** _**°**_

_**Article**_ **`7.`** _**In-situ**_ _**Conservation**_

```
   Each Contracting Party shall, as far as possible and as appropriate:

   (a) Establish a system of protected areas (, and associated wildlife
corridors for those components of biological diversity identified pursuant
to Article 6] or areas- where special measures need to be taken to conserve
biological diversity;

   (b) Develop where necessary guidelines for the selection,
establishment and management of protected areas or areas where special
measures need to be taken to conserve biological diversity;

   (c) Regulate or manage biological resources whether within or outside
protected areas with a view to ensuring their conservation [and] [,]
sustainable use (and sustainable development];

   [(d) Provide financial and other assistance for new and existing
programmes supporting the protection of ecosystems, natural habitats and
the maintenance of viable populations of species in natural surroundings,
with particular attention to technology and the needs of developing
countries;] [ M ]

   (e) Promote environmentally sound and sustainable development in
areas adjacent to protected areas with a view to furthering protection of
these areas;

   (f) Rehabilitate and restore degraded ecosystems and promote the
```

**`recovery of threatened species, inter`** _**alia,**_ **`through the development and`**
```
implementation of plans or other management strategies;

   [(g) Regulate the development, use and release of genetically modified
organisms which may have [adverse effects on health] [adverse effects on
the conservation and sustainable use of biological diversity];] [ u ]

   (h) Prevent the introduction of, control or eradicate those alien
species which threaten ecosystems, habitats or species;

   (i) Endeavour to provide in so far as possible [on the basis of
national legislation and in accordance with national programmes, plans and
priorities] economic incentives, legislation, and the condition needed for
compatibility between present uses [in all relevant sectors including
agriculture, forestry and fisheries] and the conservation of biological

     13 • This paragraph was not agreed upon. It was produced as a result
of consultation with those two- delegations who had difficulty with it and
takes into account their concerns.

     14 As recommended by WG.II, WG.I, during the sixth negotiating
seesion/fourth session of INC, decided to postpone the discussion of this
sub-paragraph until WG.II completes its work on Articles 21 and 22.

    15 Provisionally accepted pending discussion of Article 20.

                                      /...

```

```
                             UNEP/Bio.Div/N7-INC.5/2
                             Page 13

diversity and the sustainable use of its components [taking into account
the circumstances of countries with economies in transition] [taking into
account the needs of developing countries); [ w ]

   (j) Subject to its national legislation [ 17] respect, record, protect
and promote the wider application of knowledge, innovations and practices
of indigenous and local communities embodying traditional lifestyles
relevant for the conservation and sustainable use of biological diversity
with the involvement of the holders of such knowledge, innovations and
practices and to share equitably the benefits arising from the utilization
of such knowledge, innovations and practices;

   [(k) Develop or maintain necessary legislation and/or other regulatory
provisions for the protection of threatened species, populations and
varieties (as identified in Article 6];]

   [ (1) Regulate or manage processes and activities which have or are
likely to have a significant adverse effect on biological diversity].

```

**`Article`** _**6,**_ _**Ex-situ**_ _**Conservation**_

```
   Each Contracting Party shall, as far as possible and as appropriate [,
```

**`and for the purpose of complementing`** _**in-situ**_ **`measures]:`**

**`(a) Adopt measures for the`** _**ex-situ**_ **`conservation of components of`**
```
biological diversity [identified pursuant to Article 6] [preferably in the
country of origin) (country possessing such components of biological
```

**`diversity`** _**in-situ],**_

**`[(To`** **`complement`** _**in-situ**_ **`measures] [; where providing adequate`** _**in-situ**_
```
facilities to conserve the species [components of biological diversity] is
impracticable or not feasible]].

   (b) Establish and maintain facilities for ex-situ conservation of and
research on plants, animals and micro-organisms (preferably in the country
of origin);

   (c) Adopt measures for the recovery and rehabilitation of endangered
species and for their reintroduction into their natural habitats under
appropriate conditions;

   (d) Regulate (manage or control] collection of biological resources
```

**`from natural habitats for`** _**ex-situ**_ **`conservation purposes so as not to`**
**`threaten ecosystems and`** _**in-situ**_ **`populations of species (ensuring that they`**
```
are not exploited for commercial purposes];

    16 Discussion of this paragraph was postponed pending the outcome of
the discussion of Article 11.

    17 The reference to national legislation at the beginning of the
text was made to accommodate the specificity of the legal system of one
State.

                                      /...

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 14

   ((e) Financial and other assistance to facilitate the establishment
and maintenance of ex-situ conservation facilities in developing
countries.] [ u ]

```

_[Article_ _9_

```
   For Contracting Parties which are developing countries the obligations
under Articles 5, 7 and 8 of this Convention would be subject to the
provision to them of technical resources, as appropriate, and of adequate,
new and additional financial resources covering on a grant basis the entire
cost to them for fulfilling their obligations under those articles.]

```

`Article` _10._ _Sustainable_ _Use of Components of Biological_ _**Diversity**_

```
   Each Contracting Party shall, as far as possible and as appropriate:

   (a) Integrate consideration of the conservation and sustainable use
of biological resources into national decision making;

   (b) Adopt measures relating to the use of biological resources to
avoid or minimize adverse impacts on biological diversity;

   (c) Protect and encourage customary use of biological resources in
accordance with traditional cultural practices that are compatible with
sustainable use requirements;

   (d) Support local populations to develop and implement remedial
action in degraded areas where biological diversity has been reduced;

   (e) Encourage cooperation between governmental authorities and
private sector in developing methods for sustainable use of biological

resources.

```

_[Article_ _11._ _Incentive_ _Measures_

```
1. Each Contracting Party shall, as far as possible and as appropriate,
[consider] [take] effective economic and social incentive measures (as
indicated in Annex .... ] to encourage the conservation and sustainable use
of biological diversity.

[2. In determining such measures, each Contracting Party shall take into
```

`account,` _inter_ _aliax_

```
   (a) Economic and social policies which act as incentives to conserve
biodiversity;

   (b) The effect of:

      (i) Institutional arrangements;

     (ii) Systems of rights to use biological resources;

     (iii) International trade policies; and

     18 As recommended by WG.II, WG.I, during the sixth negotiating
session/fourth session of INC, decided to postpone the discussion of this
sub-paragraph until WG.II completes its work on Articles 21 and 22.

                                      /...

```

```
                             UNEP/Bio.Div/N7-INC.5/2
                             Page 15

      (iv) Pricing policies on the conservation and sustainable use of
         biological diversity.]

[3. The Conference of the Parties shall establish at its first meeting a
group of experts to develop guidelines for determining the value
[ecological, economic, aesthetic and cultural] of biological diversity.
[National plans prepared in accordance with Article 5 may, where
appropriate, contain case studies of the value of biological diversity.]]]

```

**`Article 12.`** _**Research and**_ _**Training**_

```
   The Contracting Parties taking into account the special needs of
developing countries shall:

   (a) Establish and maintain programmes for scientific and technical
education and training in measures for the identification, conservation and
sustainable use of biological diversity and its components and provide
support for such education and training for the specific needs of
developing countries;

   (b) Promote and encourage research which contributes to the
conservation and sustainable use of biological diversity, particularly in
```

**`developing countries,`** **`[inter`** _**alia,**_ **`in accordance with decisions of the`**
```
Conference of the Parties taken in consequence of recommendations of the
```

**`Scientific Committee]`** _**[inter**_ _**aliax**_

```
      (i) Increased knowledge of the components of biological
         diversity and their role in the functioning of ecosystems;

      (ii) Increased knowledge of the impact of natural and human
         factors affecting the conservation of biological diversity,
         including social studies;

     (iii) Application of this knowledge for sustainable use of
         biological diversity;

     (iv) Development of technologies and other measures for the
         conservation and sustainable use of biological diversity
         [including of biotechnology in line with the objectives of
         this Convention]; and

      (v) Estimation of economic and social values of biological
         resources;] [ w ]

   (c) In keeping with the provisions of Articles 17, 19 and 21, promote
and cooperate in the use of scientific advances in biological diversity
research in developing methods for conservation and sustainable use of
```

**`biological resources.`** _**[ x ]**_

_Article_ _13._ _Public_ _Education_ _and_ _**Awareness**_

```
   The Contracting Parties shall:

   (a) Promote and encourage understanding of the importance of and the
measures required for the conservation of biological diversity, as well as
its propagation through media, and the inclusion of these topics in
educational programmes;

    19 Some delegations considered that, if there were to be a list, it
should be located in an annex.

    20 The content of subparagraph (c) may be covered by one of the
bracketed provisions of subparagraph (b).

                                      /...

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 16

   (b) Cooperate, as appropriate, with other States and international
organizations in developing educational and public awareness programmes,
with respect to conservation and sustainable use of biological diversity.

```

_**Article**_ _**14.**_ _**[Impact Assessment]**_ _**[Minimizing**_ _**Adverse**_ _**Impacts]**_

```
   Each Contracting Party, as far as possible and as appropriate shall:

   (a) Introduce appropriate procedures requiring assessment of the
environmental effects of proposed projects that are likely to have
significant adverse effects on biological diversity [whether within or
beyond the limits of national jurisdiction] with a view to avoiding or
minimizing such effects and, where appropriate, allow for public
participation in such procedures.

   (b) Introduce appropriate arrangements to ensure that the
environmental consequences (whether within or beyond the limits of national
jurisdiction] of programmes and policies that are likely to have
significant adverse impacts on biological diversity are duly taken into
account.

   (c) Promote, on the basis of reciprocity, notification, exchange of
information and consultation about activities under their jurisdiction or
control which are likely significantly to adversely affect the biological
diversity of other States * or areas beyond the limits of national
```

**`multilateral arrangements as appropriate.jurisdiction, by encouraging the conclusion of bilateral, regional or`** _**n**_

```
   [(d) Those responsible for activities which threaten or could [damage]
[cause significant loss of] biological diversity are responsible for the
costs of avoiding that threat or damage and for remedial action directly or
through financing where damage occurs.) [ s ]

   [(e) In the case of imminent or grave danger or damage originating
under its jurisdiction [or control] to biological diversity within the area
under jurisdiction [or control] of other States or in areas beyond the
limits of national jurisdiction [or control], notify immediately the
potentially affected States of such danger or damage, and establish the
necessary procedures for that purpose, as well as initiate [at source]
action to prevent or minimize such danger or damage.]

   [Be responsible for the cost of avoiding or minimizing threats or
damage to biological diversity beyond the limits of the areas under its
national jurisdiction resulting from activities within its jurisdiction or
control and, where such damage occurs for the costs of remedial action and,
where it is not possible to return the biological diversity to* the status
```

_**quo ante,**_ **`for compensation.]`**

_**n**_ **`Upon the next reading all paragraphs using words "Contracting`**
```
Parties" or "States" need to be reconsidered to achieve consistency.

    22 During the sixth negotiating seesion/fourth session of INC, the
text "(as well as for the establishment of contingency plans to address
situations affecting biological diversity]" was deleted from this subparagraph. While the importance of the issue of "contingency plans" was
not contested, WG.I decided that, at the next reading, consideration should
be given as to the precise location of the concept reflected in the deleted
text.

    23 During the sixth negotiating session/fourth session of INC, this
text was moved from Article 3, paragraph 11.

```

```
                              UNEP/Bio.Div/N7-INC.5/2
                              Page 17

   [Establish procedures for international cooperation for the control,
mitigation of damage or restoration of biological diversity, when the
affected Party or the Party of the origin of damage is not able to address
it individually.]] *

   [(f) Support and cooperate in the development and implementation of
international arrangements for emergency responses to activities or events
whether caused naturally or otherwise which [presents a grave and imminent
danger to] (threaten] biological diversity;] *

   [(g) The Conference of the Parties shall [adopt a protocol setting
down rules of procedures] [consider the need to adopt measures] relating to
liability and compensation for damage to biological diversity.] *

```

_**[Article**_ _**IS.**_ _**Global Lists**_ _**v**_

_**Alternative**_ _**1**_

```
1. [A Global List of Biogeographic Areas of Particular Importance for the
Conservation of Biological Diversity and a Global List of Species
Threatened with Extinction on a Global Level shall be established pursuant
to the procedures set down in Article 25.) [A List of (Components of]
Biological Diversity of [Outstanding Global Importance] shall be
established, pursuant to the procedures set out in Article 25.]

[2. Inclusion of an area on the List of Biogeographic Areas of Particular
Importance requires the consent of the State or States concerned.

3. Contracting Parties, in fulfilling their obligations under this
Convention shall [, so far as possible, and as appropriate for each
Contracting Party,] give priority to areas and species on the Global
List8.

4. Inclusion of areas or species on the Lists shall not prejudice the
rights of States over areas in respect of which more than one State claims
sovereignty or jurisdiction.]]

```

**`Alternative to`** _**paragraph**_ _**1**_ _**v**_

```
[A List of Areas of Outstanding Global Importance shall be established
pursuant to procedures to be determined by the Conference of the Parties at
its first meeting.]

     24 During the sixth negotiating session/fourth session of INC, this
text was moved from Article 4, paragraph 2 (f).

     23 During the sixth negotiating seesion/fourth session of INC, this
text was moved from Article 4, paragraph 2 (i).

     26 The location of this paragraph was not finalized by WG.I.

     27 An alternative proposal was made to delete the whole of
Article 15 with subsequent deletion of Article 25.

                                       /...

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 18

```

_Article_ _16._ _[Regulated]_ _Access_ _to Genetic_ _Resources_

```
1. Recognizing the sovereign rights of States over their natural
resources, the authority to determine access to genetic resources rests
with the national governments and is subject to national legislation.

2. Each Contracting Party shall endeavour to create conditions to
facilitate access to genetic resources for environmentally sound uses by
other Contracting Parties and not to impose restrictions that run counter
to the objectives of this Convention.

3. Access, where granted, shall be on mutually agreed terms and subject
to the provisions of this Article.

4. Access to genetic resources shall be subject to prior informed consent
of the Contracting Party providing such resources, unless otherwise
determined by that Party.

5. Each Contracting Party shall endeavour to develop and carry out
scientific research based on genetic resources [originating in other
Contracting Parties and/or] provided by other Contracting Parties with the
full participation of, and where possible in such Contracting Parties.

6. Each Contracting Party shall take the appropriate measures, in
accordance with Articles 17 to 23 and where necessary through the financial
mechanisms established by Articles 21 and 22, to [promote and advance]
[ensure] fair and equitable sharing of the results of research [products
developed) and the benefits arising from the [commercial and other]
utilization of genetic resources with the Contracting Parties [of origin
and/or the Contracting Parties] providing such resources.

```

_**Article**_ _**17.**_ _**Access**_ _**to and Transfer**_ _**of**_ _**Technology**_

```
1. Each Contracting Party, recognizing that technology includes
biotechnology, and that both access to and transfer of technology among
Contracting Parties are essential elements for the attainment of the
objectives of this Convention, undertakes subject to the provisions of this
Article to provide and/or facilitate access for and transfer to other
Contracting Parties of technologies that are relevant to the conservation
and sustainable use of biological diversity or make use of genetic
resources and do not cause significant damage to the environment.

2. Access to and transfer of technology referred to in paragraph 1 to
developing countries shall be provided and/or facilitated under [fair and
reasonable] [fair and most favourable] [preferential and concessional]
conditions and, where necessary, in accordance with the financial mechanism
established by Articles 21 and 22.

3. Each Contracting Party shall take legislative, administrative or
policy measures, as appropriate, with the aim that Contracting Parties (in
particular those) that are developing countries which (are of origin
and/or) provide genetic resources are provided access to and transfer of
technology which makes use of those resources, on mutually agreed terms
(notwithstanding patents and other intellectual property rights]. *

     28 Some delegations stated that this paragraph may be subject to a
review mechanism which may be introduced in this Article or at another
appropriate place in this Convention.

                                       /...

```

```
                             UNEP/Bio.Div/N7-INC.5/2
                              Page 19

4. Each Contracting Party shall take legislative, administrative or
policy measures, as appropriate, with the aim that the private sector
facilitates access to, joint development and transfer of technology
referred to in paragraph 1 for the benefit of both governmental
institutions and the private sector of developing countries and in this
regard shall abide by the obligations included in paragraphs 1, 2 and 3 of
this Article.

5. The Contracting Parties, recognizing that patents and other
intellectual property rights may have an influence on the implementation of
the present Convention, shall cooperate in this regard subject to national
legislation and international law in order to ensure that such rights are
supportive of and do not run counter to the objectives of this Convention.

```

**`Article`** _**18.**_ _**Exchange of**_ _**Information**_

```
1. The Contracting Parties shall facilitate the exchange of information
relevant to the conservation and sustainable use of biological diversity,
taking into account the special needs of developing countries.

2. Such exchange of information shall include exchange of [publicly
available] results of technical, scientific and socio-economic research, as
well as information on training and surveying programmes, specialized
knowledge, indigenous and traditional knowledge as such and in combination
with the technologies referred to in Article 17, paragraph 1. It shall
also, where feasible, include repatriation of information.

```

**`Article`** _**19.**_ _**Technical**_ _**and Scientific**_ _**Cooperation**_

```
1. The Contracting Parties shall promote international technical and
scientific cooperation in the field of conservation and sustainable use of
biological diversity, where necessary through the appropriate international
and national institutions.

2. Each Contracting Party shall promote technical and scientific
cooperation with other Contracting Parties, in particular developing
```

**`countries, in implementing this Convention, inter`** _**alia,**_ **`through the`**
```
development and implementation of national policies. In promoting such
cooperation, special attention should be given to the development and
strengthening of national capabilities, by means of human resources
development and institution building.

3. The Conference of the Parties, at its first meeting, shall determine
how to establish a clearing-house mechanism to promote and facilitate
technical and scientific cooperation.

4. The Contracting Parties shall, in accordance with national legislation
and policies, encourage and develop methods of cooperation for the
development and use of technologies, including indigenous and traditional
technologies, in pursuance of the objectives of this Convention. For this
purpose, the Contracting Parties shall also promote cooperation in the
training of personnel and exchange of experts.

5. The Contracting Parties shall, subject to mutual agreement, promote
the establishment of joint research programmes and joint ventures for the
development of technologies relevant to the objectives of this Convention.

                                   /.

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 20

```

`Article` _20._ _Handling_ _of Biotechnology_ _and_
_Distribution_ _of its_ _Benefits_

```
1. Each Contracting Party shall take appropriate measures to [promote and
advance] [ensure] the participation in biotechnological research activities
by those Contracting Parties, especially developing countries, [of origin
and/or those Contracting Parties) which provide the genetic resources for
such research.

2. Each Contracting Party shall [ensure priority access] [promote and
advance fair and equitable access] [take appropriate measures to promote
and advance priority access] by Contracting Parties, especially developing
countries, to the results and benefits arising from biotechnologies based
upon genetic resources [originating in and/or] provided by those.
Contracting Parties. Such access shall be on mutually agreed terms.

3. Each Contracting Party shall require any natural or legal person under
its jurisdiction who intends to introduce in another Contracting Party
genetically modified organisms (biotechnology products] which may have an
adverse impact on the [conservation and sustainable use of biological
resources in] (environment of] that Contracting Party to obtain the
[advance agreement] [prior informed consent] of that Contracting Party.
Such [agreement) [consent] shall be in accordance with procedures to be
established by the Conference of the Parties.

4. Each Contracting Party providing genetically modified organisms
[biotechnology products] shall require any natural or legal person under
its jurisdiction to provide any available information about the use and
safety regulations required by that Contracting Party in handling
genetically modified organisms [biotechnology products], as well as any
available information on the potential adverse impact of the specific
genetically modified organisms [biotechnology products] concerned to the
Contracting Party into which those organisms [products] are to be
introduced. "

```

_**Article**_ _**21.**_ _**Financial**_ _**Resources**_ `"`

```
1. Each Contracting Party undertakes to provide, in accordance with its
capabilities, financial support and incentives in respect of those
activities which are intended to [achieve the objectives of this
Convention] [contribute to the conservation and sustainable use of
biological diversity] in accordance with its national plans, priorities and
programmes. [ S1 ]

    29 Some delegations expressed the view that the substance of
paragraphs 3 and 4 were not needed.

    30 Some delegations noted at the fifth negotiating session/third
session of INC that the final outcome of this article would be closely
related to the final text of Article 1 and Article 22.

    31 Basic text proposed by an informal Sub-Working Group of WG.II at
the fifth negotiating session/third session of INC.

                                      /...

```

```
                             UNEP/Bio.Div/N7-INC.5/2
                             Page 21

```

**`Alternative`** _**1 for paragraph 2 to replace**_ _**alternative**_ _**2**_

```
2. The Contracting Parties which are developed countries commit
themselves to provide adequate new and additional financial resources to
enable developing countries to achieve the objectives of this
Convention. * (Developed countries referred to above do not include
countries with economies in transition.] [ s ]

```

**`Alternative`** _**2 for paragraph**_ _**2 to replace**_ _**alternative**_ _**1**_

```
2. The Contracting Parties, and in particular developed countries,,
undertake to provide (new and additional] financial (and other] resources
to meet the agreed incremental costs to developing countries of (achieving
the objectives] [fulfilling the obligations under Articles •••) of this
Convention. *

3. The extent to which developing countries are able to [meet the
objectives] [fulfil the obligations under Articles •••] of this Convention
will be subject to the availability of [such] resources [to meet agreed
incremental costs.) *

```

**`Article`** _**22.**_ _**Financial**_ _**Mechanisms**_

_**Alternative**_ _**1**_ **`*`**

```
[1. There is hereby established a fund, hereinafter called the Biological
Diversity Fund, for the achievement of the objectives of the Convention by
developing countries. Contributions to the fund shall be mandatory for
Contracting Parties which are developed countries according to the formula
in Annex ... to this Convention. Voluntary contributions may also be made
by the developed countries and by other countries and sources.]

[2. The Fund shall be administered [through an agency to be decided by the
Conference of the Parties] [in the following manner].]

(3. Pursuant to the objectives of this Convention, the Conference of the
Parties at its first meeting shall establish detailed criteria and
guidelines for access to and utilization of the Fund, including monitoring
and evaluation of such utilization.]

4. The Conference of the Parties shall review the effectiveness of the
funding mechanism established under this Article, including the criteria
and guidelines referred to in paragraph 3, not less than two years after
the entry into force of this Convention and thereafter on a regular basis.

    32 Basic text proposed by an informal Sub-Working Group of WG.II at
the fifth negotiating session/third session of INC.

    33 Bracketed text proposed by Bulgaria, Czechoslovakia, Poland,
Romania and the USSR at the fifth negotiating session/third session of INC.

    34 Proposal by the United Kingdom with modifications by the United
States at the fifth negotiating session/third session of INC.

```

_**35**_ **`Basic text by an informal Sub-Working Group of WG.II with`**
```
modifications by the United Kingdom and the United States at the fifth
negotiating session/third session of INC.

    36 Text by an informal Sub-Working Group of WG.II at the fifth
negotiating session/third session of INC.

                                      /...

```

```
 UNEP/Bio.Div/N7-INC.5/2
 Page 22

 (5. The Contracting Parties shall consider strengthening existing
 financial institutions to provide financial resources for the conservation
 and sustainable use of biological diversity.]

```

**`Alternative`** _**2 to paragraphs**_ _**1,2,3**_ _**and 5 above**_ `[37 ]`

```
 [1. The Contracting Parties, pursuant to the objectives of this Convention
and taking into consideration the special needs of developing countries,
 shall establish a [fund] [financial mechanism] to provide the resources
which Contracting Parties that are developing countries require to meet the
agreed incremental costs for complying with the provisions of this
Convention, access to and transfer of technology referred to in Article 17
and the benefits of the provisions of paragraph 6 of Article 16.
Contributions shall be assessed according to the formula in Annex ... to
this Convention. Additional contributions may also be made by developed
countries and by other countries and sources.]

 [2. The [fund] [financial mechanism] shall be administered [through the
evolving Global Environment Facility] [through a Multilateral Fund for
Biological Diversity] fthrough an agency to be decided by the Conference of
the Parties) (in the following manner ...].]

 [3. Pursuant to the objectives of this Convention, the Conference of the
Parties at its first meeting shall [confirm] [establish] criteria and
guidelines (set out in Annex ... to this Convention] for access to and
utilization of the [fund] (financial mechanism], including monitoring and
evaluation of such utilization.]

[5. The Contracting Parties shall consider strengthening existing
financial institutions to support the [fund] [financial mechanism]
established under this Convention.]

```

**`Article`** _**23.**_ _**Relationship**_ _**with Other International**_ _**Conventions**_

```
(1. The provisions of the present Convention shall not affect the rights
and obligations of any Contracting Party deriving from any existing
international agreement relating to the conservation and sustainable use of
biological diversity. *

2. Any existing international agreement relating to the conservation and
sustainable use of biological diversity may be renegotiated as a protocol
```

**`to the present Convention.`** _**x**_

```
3. The Contracting Parties shall invite the Parties to any international
agreement relating to the conservation and sustainable use of biological
diversity to agree on arrangements for facilitating joint actions,
coordination, and exchange of information.] "

     37 Proposal by the United Kingdom with modification by Mexico at the
fifth negotiating session/third session of INC.

     M The language in paragraph 1 leaves open the question of the
relationship of this Convention with future agreements. The Committee may
want to make an express provision for this.

    39 The Lawyers' Meeting felt that this paragraph has the character
of a recommendation and would invite the Committee to consider the
necessity of retaining it.

    40 If retained, the Lawyers' Meeting felt this paragraph might more
appropriately be located in Article 24 as a function of the Conference of
the Parties.

                                      /...

```

```
                               UNEP/Bio.Div/N7-INC.5/2
                               Page 23

[1. The provisions of the present Convention shall not affect the rights
and obligations of any Contracting Party deriving from any existing
international agreement compatible with the conservation and sustainable
use of biological diversity.]

```

_**Article**_ _**24.**_ _**Conference of the**_ _**Parties**_

```
1. A Conference of the Parties is hereby established. The first meeting
of the Conference of the Parties shall be convened by the Executive
Director of UNEP not later than one year after the entry into force of this
Convention. Thereafter, ordinary meetings of the Conference of the Parties
shall be held at regular intervals to be determined by the Conference at
its first meeting.

2. Extraordinary meetings of the Conference of the Parties shall be held
at such other times as may be deemed necessary by the Conference, or at the
written request of any Party, provided that, within [six] [three] months of
the request being communicated to them by the Secretariat, it is supported
by at least one third of the Parties.

3. The Conference of the Parties shall by consensus agree upon and adopt
rules of procedure for itself and for any subsidiary body it may establish,
as well as financial rules governing the funding of the Secretariat. At
each ordinary meeting, it shall adopt a budget for the financial period
until the next ordinary meeting.

4. The Conference of the Parties shall keep under review the
implementation of the present Convention, and, for this purpose, shall:

   (a) Establish the form and the intervals for transmitting the
information to be submitted in accordance with Article 28 and consider such
information as well as reports submitted by any subsidiary body;

   [(b) Review [and approve] scientific [information] [technological
advice] on biological diversity provided by the Scientific Committee in
accordance with Article 27;]

   (c) Consider and adopt, as required, in accordance with Articles 32
and 33, amendments to this Convention and its annexes;

   (d) Consider amendments to any protocol, as well as to any annexes
thereto, and, if so decided, recommend their adoption to the parties to the
Protocol concerned;

   (e) Consider and adopt, as required, in accordance with Article 33,
additional annexes to this Convention;

   (f) Consider and adopt, as required, protocols in accordance with
Article 31;

   (g) Establish such subsidiary bodies as are deemed necessary for the
implementation of this Convention;

   (h) Consider and undertake any additional action that may be required
for the achievement of the purposes of this Convention in the light of
experience gained in its operation.

5. The United Nations, its specialized agencies and the International
Atomic Energy Agency, as well as any State not Party to this Convention,
may be represented as observers at meetings of the Conference of the
Parties. Any other body or agency, whether governmental or non
                                        /...

```

```
 UNEP/Bio.Div/N7-INC.5/2
 Page 24

governmental, qualified in fields relating to conservation and sustainable
use of biological diversity which has informed the Secretariat of its wish
to be represented as an observer at a meeting of the Conference of the
Parties, may be admitted unless at least one third of the Parties present
object. The admission and participation of observers shall be subject to
the rules of procedure adopted by the Conference of the Parties*

```

**`(Article`** _**25.**_ _**Procedures**_ _**for**_ _**Global**_ _**Lists**_ **`4l`**

```
   The Conference of the Parties shall:

   (a) Receive from the Contracting Parties inventories of biogeographic
areas within the limits of their national jurisdiction of particular
importance for the conservation of biological diversity and inventories of
species found within the limits of their national jurisdiction which are
threatened with extinction on a global level;

   (b) Select, taking into account the recommendations of the Scientific
Committee, from the inventories forwarded pursuant to subparagraph (a),
areas and species to be included in the Global Lists;

   (c) Publish the Global Lists;

   (d) Establish, taking into account the recommendations of the
Scientific Committee, guidelines to assist Contracting Parties to select
areas and species for inclusion in the inventories to be forwarded to the
Conference of the Parties pursuant to subparagraph (a);

   (e) Establish, taking into account the recommendations of the
Scientific Committee, criteria for selecting areas and species for
inclusion in the Global Lists pursuant to subparagraph (b) [so that they
may contain areas and species representative of the greatest feasible
proportion of biological diversity, with particular regard to threatened
areas and species];

   (f) Establish and publish, taking into account the advice of the
Scientific Committee, guidelines to assist the Contracting Parties to
manage areas and species on the Global Lists;

   (g) Establish and publish guidelines for the provision of financial
and other assistance to Contracting Parties where it considers this
desirable or necessary in connection with areas and species on the Global
Lists; and

   (h) Ensure that arrangements made in relation to the Global Lists
complement and strengthen the conservation activities of Contracting
Parties and international organizations developed and implemented under
other international agreements.]

    41 A proposal was made to delete Article 25 subsequent to deletion
of Article 15 (Global Lists).

```

```
                              UNEP/Bio.Div/N7-INC.5/2
                              Page 25

```

_**Article**_ _**26.**_ _**Secretariat**_

```
1. A Secretariat is hereby established. Its functions shall be:.

   (a) To arrange for and service meetings of the Conference of the
Parties provided for in Article 24;

   [(b) To assist the Conference of the Parties and the Scientific
Committee in performing their functions with regard to establishment and
functioning of the Global Lists pursuant to the provisions of Article 15 of
the present Convention as well as assist in facilitating and promoting
transfer of technology and knowledge and technical cooperation pursuant to
the provisions of Articles 17 and 19 of the present Convention;]

   ((c) To maintain the Global Lists referred to in Article 15 of the
present Convention;]

   (d) To perform the functions assigned to it by any Protocol;

   (e) To prepare reports on the execution of its functions under this
Convention and present them to the Conference of the Parties;

   (f) To coordinate with other relevant international bodies, and in
particular to enter into such administrative and contractual arrangements
as may be required for the effective discharge of its functions;

   (g) To perform such other functions as may be determined by the
Conference of the Parties.

2. The secretariat functions will be carried out on an interim basis by
the Secretariat of the United Nations Environment Programme until the
completion of the first ordinary meeting of the Conference of the Parties
held pursuant to Article 24. At its first ordinary meeting, the Conference
of the Parties shall designate the secretariat from amongst those existing,
competent international organizations which have signified their
willingness to carry out the secretariat functions under this Convention.

```

**`Article`** **`27.`** _**[Scientific]**_ _**and [Technical]**_ _**[Technological]**_ _**[Committee]**_

_**[Subsidiary Bodies for Scientific**_ _**and Technological**_ _**Cooperation]**_

_**Alternative**_ _**1**_

```
   (The Conference of the Parties shall at its first meeting establish
such subsidiary bodies for providing scientific and [technical]
[technological] advice as required for the implementation of the
Convention.]

```

_**Alternative**_ _**2**_

```
[(1. The Conference of the Parties shall at its first meeting establish a
Scientific and (Technical] (Technological] Committee with a balanced
regional representation.]

[1. A Scientific and (Technical) [Technological) Committee is hereby
established. The Conference of the Parties shall, at its first meeting,
appoint the members of the committee with a balanced regional
representation.]

(, whose advice will be based on the considerations outlined in Annex ...

                                      /...

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 26

                  ANNEX ...

   - Considerations for the Scientific and Technical Committee

      Pursuant to Article 27, the Scientific and Technical Committee
      will provide scientific and technical advice to the Conference of
      the Parties taking into account the following considerations:

1. Articles 5 - ... of this Convention;

2. National, regional and global concerns;

3. National, regional and global plans, lists and priorities;

4. Other regional and global agreements, mechanisms, technologies and
   sources of funding;

5. The relative significance among species, subspecies, ecosystems and
   areas;

6. Conservation management effectiveness.]

2. The Committee shall under the direction of the Conference of the
Parties provide scientific and [technical] [technological] advice to assist
the Conference of the Parties to promote the objectives of the Convention. ]

```

**`Article`** _**28.**_ _**Reports**_

```
   Each Contracting Party shall, at intervals to be determined by the
Conference of the Parties, [submit] [present] to the Conference of the
Parties, reports on:

   The actions which it has taken for the implementation of this
   Convention [including, in particular, those pursuant to Articles 5 and
   17-21 of this Convention] [and its view on the effectiveness of those
   actions and on the state of components of biological diversity within
   the limits of its national jurisdiction.]

```

**`Article`** _**29.**_ _**Operational**_ _**Cost**_

```
1. Expenses incurred in respect of the technical and scientific
cooperation referred to in Article 19 shall be borne by the Biological
Diversity Fund. The expenses incurred in operating the Biological
Diversity Fund shall also be borne by that Fund.

```

_**Article**_ _**30.**_ _**Settlement**_ _**of**_ _**Disputes**_ `[42 ]`

```
1. In the event of a dispute between Contracting Parties concerning the
interpretation or application of this Convention, the parties concerned
shall seek solution by negotiation.

    42 Although most environmental conventions provide a single system
of dispute resolution for all articles (e.g., Vienna Convention for
```

**`Protection of the Ozone`** **`Layer`** _**f,**_ **`some environmental conventions have limited`**
```
the applicability of some dispute resolution mechanisms to specified
articles (e.g., Protocol on Environmental Protection to the Antarctic
Treaty, articles 19 and 20; U.N. Convention on the Law of the Sea,
articles 286, 297-298).

                                      /...

```

```
                              UNEP/Bio.Div/N7-INC.5/2
                              Page 27

2. If the Parties concerned cannot reach agreement by negotiation, they
may jointly seek the good offices of, or request mediation by, a third
party.

3. When ratifying, accepting, approving or acceding to this Convention,
or at any time thereafter, a State or regional economic integration
organization may declare in writing to the Depositary that for a dispute
not resolved in accordance with paragraph 1 or paragraph 2 above, it
accepts one or both of the following means of dispute settlement as
compulsory:

   (a) Arbitration in accordance with the procedure laid down in (Part 1
of] Annex I;

   (b) Submission of the dispute to the International Court of Justice.

4. Alternative 1. If the parties to the dispute have not, in accordance
with paragraph 3 above, accepted the same or any procedure, the dispute
shall be submitted to conciliation in accordance with Annex I, part 2
unless the parties otherwise agree.

   Alternative 2. If the parties to the dispute have not, in accordance
with paragraph 3 above, accepted the same or any procedure, a party which
has not made a declaration under paragraph 3 above shall be deemed to have
accepted arbitration in accordance with the procedure laid down in Annex I.
If the parties to a dispute have not accepted the same means of dispute
settlement, the dispute shall be submitted to arbitration in accordance
with the procedure laid down in (Part 1 of] Annex I.

5. The provisions of this Article shall apply with respect to any
protocol except as otherwise provided in the protocol concerned.

          (Alternative in lieu of paragraphs 3 and 4)

3. If the Parties concerned cannot reach agreement through the mechanisms
set down in paragraph 2, they shall submit the dispute to arbitration in
accordance with the procedure laid down in Part 1 of Annex I, unless the
dispute is submitted to the International Court of Justice (ICJ) in
accordance with its Statute.

4. When ratifying, accepting, approving or acceding to this Convention or
at any time thereafter, a state or regional economic integration
organization may declare in writing to the Depositary that it does not
accept paragraph 3 as binding.

5. If a party to the dispute has made a declaration pursuant to
paragraph 4, the dispute shall be submitted to conciliation in accordance
with Part 2 of Annex I [, unless the Parties otherwise agree].

```

_**Article**_ _**31.**_ _**Adoption**_ _**of**_ _**Protocols**_

```
1. The Contracting Parties shall cooperate in the formulation and
adoption of protocols to this Convention.

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 28

2. Protocols shall be adopted at a meeting of the Conference of the
Parties. *

3. The text of any proposed protocol shall be communicated to the
Contracting Parties by the Secretariat at least six months before such a
meeting.

```

_**Article**_ _**32.**_ _**Amendment of the Convention**_ _**or**_ _**Protocols**_

```
1. Amendments to this Convention may be proposed by any Contracting
Party. Amendments to any protocol may be proposed by any party to that
protocol.

2. Amendments to this Convention shall be adopted at a meeting of the
Conference of the Parties. Amendments to any protocol shall be adopted at
a meeting of the Parties to the protocol in question. The text of any
proposed amendment to this Convention or to any protocol, except as may
otherwise be provided in such protocol, shall be communicated to the
Parties to the instrument in question by the Secretariat at least six
months before the meeting at which it is proposed for adoption. The
Secretariat shall also communicate proposed amendments to the signatories
to this Convention for information.

3. The Parties shall make every effort to reach agreement on any proposed
amendment to this Convention or to any protocol by consensus. If all
efforts at consensus have been exhausted, and no agreement reached, the
amendment shall as a last resort be adopted by a two-third majority vote of
the Parties to the instrument in question present and voting at the
meeting, and shall be submitted by the Depositary to all Parties for
ratification, acceptance or approval.

4. Ratification, acceptance or approval of amendments shall be notified
to the Depositary in writing. Amendments adopted in accordance with
paragraph 3 above shall enter into force among Parties having accepted
them on the one hundred and eightieth day after the deposit of their
```

**`instruments`** _**[ M]**_ **`of ratification, acceptance or approval by at least`** **`two-`**
```
thirds of the Contracting Parties to this Convention or of the Parties to
the protocol concerned, except as may otherwise be provided in such
protocol. Thereafter the amendments shall enter into force for any other
```

**`Party on the [ninetieth] [one hundred eightieth] day`** _**[ M]**_ **`after that Party`**
```
deposits its instrument of ratification, acceptance or approval of the
amendments.

     43 One country agreed with the text as adopted by WG.I during the
sixth negotiating session/fourth session of INC with a reservation on the
procedure for the adoption of protocols.

    44 To achieve uniformity of the paragraph's formulation, an
alternative period of 180 days was introduced into the text as recommended
by the Legal Drafting Group established by the INC at its fourth
session/sixth negotiating session. It was further recommended that a final
decision be taken by the INC at its fifth session/seventh negotiating
session. To achieve consistency between the procedures described in the
paragraph, the Legal Drafting Group recommended substituting the phrase
"deposit of their instruments" for the phrase "receipt by the Depositary of
notification".

                                      /...

```

```
                              UNEP/Bio.Div/N7-INC.5/2
                              Page 29

 5. For the purposes of this Article, "Parties present and voting" means
Parties present and casting an affirmative or negative vote.

```

_**Article**_ _**33.**_ _**Adoption**_ _**and Amendment of Annexes**_

```
1. The annexes to this Convention or to any protocol shall form an
integral part of this Convention or of such protocol, as the case may be,
and, unless expressly provided otherwise, a reference to this Convention or
its protocols constitutes at the same time a reference to any annexes
thereto. Such annexes shall be restricted to procedural, scientific,
technical and administrative matters.

2. Except as may be otherwise provided in any protocol with respect to
its annexes, the following procedure shall apply to the proposal, adoption
and entry into force of additional annexes to this Convention or of annexes
to any protocol:

   (a) Annexes to this Convention or to any protocol shall be proposed
and adopted according to the procedure laid down in Article 32;

   (b) Any Party that is unable to approve an additional annex to this
Convention or an annex to any protocol to which it is Party shall so notify
the Depositary, in writing, within one year from the date of the
communication of the adoption by the Depositary. The Depositary shall
without delay notify all Parties of any such notification received. A
Party may at any time withdraw a previous declaration of objection and the
annexes shall thereupon enter into force for that Party subject to
paragraph (c) below;

   (c) On the expiry of one year * from the date of the communication
of the adoption * by the Depositary, the annex shall enter into force for
all Parties to this Convention or to any protocol concerned which nave not
submitted a notification in accordance with the provision of
subparagraph (b) above.

3. The proposal, adoption and entry into force of amendments to annexes
to this Convention or to any protocol shall be subject to the same
procedure as for the proposal, adoption and entry into force of annexes to
the Convention or annexes to any protocol.

4. If an additional annex or an amendment to an annex is related to an
amendment to this Convention or to any protocol, the additional annex or
amendment shall not enter into force until such time as the amendment to
this Convention or to the protocol concerned enters into force.

```

**`Article`** _**34.**_ _**Right to Vote**_

```
1. Except as provided for in paragraph 2 below, each Contracting Party to
this Convention or to any protocol shall have one vote.

    43 The "one year" time period was introduced in this paragraph to
achieve consistency with the preceding paragraph (b) as recommended by the
Legal Drafting Group established by the INC during its fourth session/sixth
negotiating session. The phrase "of the adoption" was introduced by the
Legal Drafting Group to achieve consistency with paragraph (b).

                                      /...

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 30

2. Regional economic integration organizations, in matters within their
competence, shall exercise their right to vote with a number of votes equal
to the number of their member States which are Contracting Parties to the
Convention or the relevant protocol. Such organizations shall not exercise
their right to vote if their member States exercise theirs, and vice versa.

```

_**Article**_ _**35.**_ _**Relationship**_ _**Between the Convention**_ _**and Its**_ _**Protocols**_

```
1. A State or a regional economic integration organization may not become
a Party to a protocol unless it is, or becomes at the same time, a
Contracting Party to the Convention.

2. Decisions under any protocol shall be taken only by the Parties to the
protocol concerned. Any Contracting Party that has not ratified, accepted
or approved a protocol may participate as an observer in any meeting of the
parties to that protocol.

```

**`Article`** _**36.**_ _**Signature**_

```
   This Convention shall be open for signature at ... by all States and
any regional economic integration organizations from ... until ....

```

**`Article`** _**37.**_ _**Ratification,**_ _**Acceptance**_ _**or**_ _**Approval**_

```
1. This Convention and any protocol shall be subject to ratification,
acceptance or approval by States and by regional economic integration
organizations. Instruments of ratification, acceptance or approval shall
be deposited with the Depositary.

2. Any organization referred to in paragraph 1 above which becomes a
Contracting Party to this Convention or any protocol without any of its
member States being a Contracting Party shall be bound by all the
obligations under the Convention or the protocol, as the case may be. In
the case of such organizations, one or more of whose member States is a
Contracting Party to the Convention or relevant protocol, the organization
and its member States shall decide on their respective responsibilities for
the performance of their obligation under the Convention or protocol, as
the case may be. In such cases, the organization and the member States
shall not be entitled to exercise rights under the Convention or relevant
protocol concurrently.

3. In their instruments of ratification, acceptance or approval, the
organizations referred to in paragraph 1 above shall declare the extent of
their competence with respect to the matters governed by the Convention or
the relevant protocol. These organizations shall also inform the
Depositary of any relevant modification in the extent of their competence.

```

_**Article**_ _**38.**_ _**Accession**_

```
1. This Convention and any protocol shall be open for accession by States
and by regional economic integration organizations from the date on which
the Convention or the protocol concerned is closed for signature. The
instruments of accession shall be deposited with the Depositary.

2. In their instruments of accession, the organizations referred to in
paragraph 1 above shall declare the extent of their competence with respect
to the matters governed by the Convention or the relevant protocol. These
organizations shall also inform the Depositary of any relevant modification
in the extent of their competence.

                                      /..

```

```
                             UNEP/Bio.Div/N7-INC.5/2
                             Page 31

3. The provisions of Article 37 paragraph 2, shall apply to regional
economic integration organizations which accede to this Convention or any
protocol.

```

**`Article`** _**39.**_ _**Entry Into**_ _**Force**_

```
1. This Convention shall enter into force on the ninetieth day after the
date of deposit of the [twentieth] instrument of ratification,, acceptance,
approval or accession.

2. Any protocol shall enter into force on the ninetieth day after the
date of deposit of the number of instruments of ratification, acceptance,
approval or accession, specified in that protocol, has been deposited.

3. For each Contracting Party which ratifies, accepts or approves this
Convention or accedes thereto after the deposit of the (twentieth]
instrument of ratification, acceptance, approval or accession, it shall
enter into force on the ninetieth day after the date of deposit by such
Contracting Party of its instrument of ratification, acceptance, approval
or accession.

4. Any protocol, except as otherwise provided in such protocol, shall
enter into force for a Contracting Party that ratifies, accepts or approves
that protocol or accedes thereto after its entry into force pursuant to
paragraph 2 above, on the ninetieth day after the date on which that
Contracting Party deposits its instrument of ratification, acceptance,
approval or accession, or on the date on which the Convention enters into
force for that Contracting Party, whichever shall be the later.

5. For the purposes of paragraph 1 and 2 above, any instrument deposited
by a regional economic integration organization shall not be counted as
additional to those deposited by member States of such organization.

```

_**Article**_ _**40.**_ _**Reservations**_ **`"`**

```
   (No reservations may be made to this Convention. ]

    46 Some environmental conventions contain a clause prohibiting
reservations (e.g. Vienna Convention for Protection of the Ozone Layer;
Protocol on Environmental Protection to the Antarctic Treaty). Some do not
(e.g. London Dumping Convention; Convention for the Protection, Management
and Development of the Marine and Coastal Environmental of the Eastern
African Region). Some permit only specified reservations, an approach
provided for in the Vienna Convention on the Law of Treaties and customary
international law (e.g. Convention on the Conservation of Migratory Species
of Wild Animals).

   In accordance with the Vienna Convention on Treaties and customary
international law, when a multilateral convention does not address the
topic of reservations, the usual presumption is that states may formulate
reservations that are not incompatible with the object and purpose of the
Convention.

   The Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and their Disposal presents another approach. It
prohibits reservations but allows to a State or political and/or economic
integration organizations "declarations or statements ... with a view,
```

_**inter**_ _**alia,**_ **`to the harmonization of its laws and regulations with the`**
```
provisions of (the) Convention", provided that any such declaration or
statement is not tantamount to a reservation.

                                      /...

```

```
UNEP/Bio.Div/N7-INC.5/2
Page 32

```

_**Article**_ _**41.**_ _**Withdrawals**_

```
1. At any time after two years from the date on which the present
Convention has entered into force for a Contracting Party, that Contracting
Party may withdraw from the Convention by giving written notification to
the Depositary.

2. Any such withdrawal shall take place upon expiry of one year after the
date of it8 receipt by the Depositary, or on such later date as may be
specified in the notification of the withdrawal.

3. Any Contracting Party which withdraws from this Convention shall be
considered as also having withdrawn from any protocol to which it is party.

```

_**Article**_ _**42.**_ _**Depositary**_

```
   The Secretary-General of the United Nations shall assume the functions
of Depositary of this Convention and any protocols.

```

_**Article**_ _**43.**_ _**Authentic**_ _**Texts**_

```
   The original of this Convention, of which the Arabic, Chinese,
English, French, Russian and Spanish texts are equally authentic, shall be
deposited with the Secretary-General of the United Nations.

IN WITNESS WHEREOF the undersigned, being duly authorized to that effect,
have signed this Convention.

Done at on the day of.

                                  /.

```

```
                             UNEP/Bio.Div/N7-INC.5/2
                              Annex I
                              Page 33

```

**`Annex`** _**I**_

```
                    Part 1

                   ARBITRATION

```

_**Article**_ _**1**_

```
   The claimant party shall notify the Secretariat that the parties are
referring a dispute to arbitration pursuant to Article 30 of the
Convention. The notification shall state the subject-matter of arbitration
and include, in particular, the articles of the Convention or the Protocol,
the interpretation or application of which are at issue. [If the parties
do not agree on the subject matter of the dispute before the President of
the tribunal is designated the arbitral tribunal shall determine the
subject matter.] The Secretariat shall forward the information thus
received to all Contracting Parties to the Convention or to the Protocol
concerned.

```

_**Article**_ _**2**_

```
1. In disputes between two parties, the arbitral tribunal shall consist
of three members. Each of the parties to the dispute shall appoint an
arbitrator and the two arbitrators so appointed shall designate by common
agreement the third arbitrator who shall be the President of the tribunal.
The latter shall not be a national of one of the parties to the dispute,
nor have his or her usual place of residence in the territory of one of
these parties, nor be employed by any of them, nor have dealt with the case
in any other capacity.

2. In disputes between more than two parties, parties in the same
interest shall appoint one arbitrator jointly by agreement.

3. Any vacancy shall be filled in the manner prescribed for the initial
appointment.

```

_**Article**_ _**3**_

```
1. If the President of the arbitral tribunal has not been designated
within two months of the appointment of the second arbitrator, the
Secretary-General of the United Nations shall, at the request of a party,
designate the President within a further two-month period.

2. If one of the parties to the dispute does not appoint an arbitrator
within two months of receipt of the request, the other party may inform the
Secretary-General who shall make the designation within a further two-month
period.

```

**`Article`** _**4**_

```
   The arbitral tribunal shall render its decisions in accordance with
the provisions of this Convention, any protocols concerned, and
international law.

```

_**Article**_ _**5**_

```
   Unless the parties to the dispute otherwise agree, the arbitral
tribunal shall determine its own rules of procedure.

                                      /...

```

```
UNEP/Bio.Div/N7-INC.5/2
Annex I
Appendix I
Page 34

```

_**Article**_ _**6**_

```
   [The arbitral tribunal may, at the request of one of the parties,
recommend essential interim measures of protection.]

```

_**Article**_ _**7**_

```
   The parties to the dispute shall facilitate the work of the arbitral
tribunal and, in particular, using all means at their disposal, shall:

   (a) Provide it with all relevant documents, information and
facilities; and

   (b) Enable it, when necessary, to call witnesses or experts and
receive their evidence.

```

_**Article**_ _**8**_

```
   The parties and the arbitrators are Under an obligation to protect the
confidentiality of any information they receive in confidence during the
proceedings of the arbitral tribunal.

```

**`Article`** _**9**_

```
   Unless the arbitral tribunal determines otherwise because of the
particular circumstances of the case, the costs of the tribunal shall be
borne by the parties to the dispute in equal shares. The tribunal shall
keep a record of all its costs, and shall furnish a final statement thereof
to the parties.

```

_**Article**_ _**10**_

```
   Any Contracting Party that has an interest of a legal nature in the
subject-matter of the dispute which may be affected by the decision in the
case, may intervene in the proceedings with the consent of the tribunal.

```

_**Article**_ _**11**_

```
   The tribunal may hear and determine counterclaims arising directly out
of the subject-matter of the dispute.

```

_**Article**_ _**12**_

```
   Decisions both on procedure and substance of the arbitral tribunal
shall be taken by a majority vote of its members.

```

_**Article**_ _**13**_

```
   If one of the parties to the dispute does not appear before the
arbitral tribunal or fails to defend its case, the other party may request
the tribunal to continue the proceedings and to make its award. Absence of
a party or a failure of a party to defend its case shall not constitute a
bar to the proceedings. Before rendering its final decision, the arbitral
tribunal must satisfy itself that the claim is well founded in fact and
law.

                                  /••

```

```
                             UNEP/Bio.Div/N7-INC.5/2
                             Annex I
                             Page 35

```

_Article_ _14_

```
   The tribunal shall render its final decision within five months of the
date on which it is fully constituted unless it finds it necessary to
extend the time-limit for a period which should not exceed five months.

```

`Article` _15_

```
   The final decision of the arbitral tribunal shall be confined to the
subject-matter of the dispute and shall state the reasons on which it is
based, it shall contain the names of the members who have participated and
the date of the final decision. Any member of the tribunal may attach a
separate or dissenting opinion to the final decision.

```

_**Article**_ _**16**_

```
   The award shall be binding on the parties to the dispute. It shall be
without appeal unless the parties to the dispute have agreed in advance to
an appellate procedure.

```

`Article` _17_

```
   Any controversy which may arise between the parties to the dispute as
regards the interpretation or manner of implementation of the final
decision may be submitted by either party for decision to the arbitral
tribunal which rendered it.

                                     /...

```

```
UNEP/Bio.Div/N7-INC.5/2
Annex I
Appendix I
Page 36

                     Part 2

                   CONCILIATION

```

_**Article**_ _**1**_

```
   A conciliation commission shall be created upon the request of one of
the parties to the dispute. The commission shall, unless the parties
otherwise agree, be composed of five members, two appointed by each Party
concerned and a President chosen jointly by those members.

```

**`Article`** _**2**_

```
   In disputes between more than two parties, parties in the same
interest shall appoint their members of the commission jointly by
agreement. Where two or more parties have separate interests or there is a
disagreement as to whether they are of the same interest, they shall
appoint their members separately.

```

_**Article**_ _**3**_

```
   If any appointments by the parties are not made within two months of
the date of the request to create a conciliation commission, the SecretaryGeneral of the United Nations shall, if asked to do so by the party that
made the request, make those appointments within a further two-month
period.

```

_**Article**_ _**4**_

```
   If a President of the conciliation commission has not been chosen
within two months of the last of the members of the commission being
appointed, the Secretary-General of the United Nations shall, if asked to
do so by a party, designate a President within a further two-month period.

```

_**Article**_ _**5**_

```
   The conciliation commission shall take its decisions by majority vote
of its members. It shall, unless the parties to the dispute otherwise
agree, determine its own procedure. It shall render a proposal for
resolution of the dispute, which the parties shall consider in good faith.

```

_**Article**_ _**6**_

```
   A disagreement as to whether the conciliation commission has
competence shall be decided by the commission.

                                      /...

```

```
                             UNEP/Bio.Div/N7-INC.5/2
                             Annex
                             Appendix I
                             Page 37

```

_**Appendix**_ _**I**_

```
           RECOMMENDATIONS OF THE WORKING GROUP I

        SUB-WORKING GROUP ON DEFINITIONS AND USE OF TERMS

        I. Recommended text for inclusion in Article 2

"ALIEN SPECIES" means a species occurring in a particular country or area
outside its historically known natural range, as a result of intentional or
accidental introduction through human intervention.

"BIOLOGICAL DIVERSITY (OR BIODIVERSITY)" means the genetic, taxonomic and
ecological variability among living organisms; this includes the variety
and variability within species, between species and of biotic components of
ecosystems.

-CONSERVATION OF BIOLOGICAL DIVERSITY" means the preservation (or integral
protection), maintenance, sustainable use, recovery and enhancement of the
components of biological diversity. '

"CONSERVATION": see conservation of biological diversity.

"DOMESTICATED OR CULTIVATED SPECIES" means species in which the
evolutionary process has been influenced deliberately by humans to meet
human needs.

"ECOSYSTEMS" means a dynamic complex of plant, animal and micro-organism
communities and their non-living environments interacting as a functional
unit.

"ENDANGERED SPECIES" means a species in danger of extinction and whose
survival is unlikely if the casual factors continue operating.

"ENDEMIC SPECIES" means a species whose natural geographic distribution is
restricted to a specific area or country.

"EX-SITU CONSERVATION" means the conservation of components of biological
diversity (genetic resources, organisms, populations) outside their natural
surroundings.

"HABITAT" means the place or type of site where an organism or population
naturally occurs.

"IN-SITU CONSERVATION" means the conservation of ecosystems and natural
habitats and the maintenance and recovery of viable populations of species
```

**`in their natural surroundings.`** _**[ 2 ]**_

```
     1 There was a strong feeling in the sub-working group that
"sustainable use" should be excluded from this definition; however, since
at this stage in the draft text of the Convention it is not decided whether
conservation and sustainable use should go together, the sub-working group
recommends that this matter be dealt with later.

    2 The sub-working group considered a definition of "in-situ
conservation" formulated by Working Group II which includes domesticated
species. No consensus was reached on whether that definition should be
accepted, whether domesticated species should be dealt with in a separate
definition, or whether the present formulation should Btand.

```

```
 UNEP/Bio.Div/N7-INC.5/2

Annex

Appendix I
 Page 38

"PROTECTED AREA" means a geographically defined area which is designated,
or regulated, and managed to achieve specific conservation objectives.

"(WILDLIFE) CORRIDORS" means routes or avenues to ensure completion of life
cycles and unimpeded migrations and gene flows. [ 3 ]

               II. Other Recommendations

   The sub-working group recommends:

1. The exclusion from Article 2 of the terms:

      "INDIGENOUS SPECIES", "NONTERRESTRIAL SPECIES", "RATIONAL USE OF
      BIOLOGICAL DIVERSITY", "TERRESTRIAL SPECIES", and "WILD SPECIES",
      as they no longer appear in the text of the draft Convention.

      "THREATENED SPECIES" and "SPECIES THREATENED WITH EXTINCTION",
      since they need not be defined, as is the case with IUCN and •
      CITES.

      "INDIGENOUS POPULATIONS", since it does not fall within the terms
      of reference of this sub-working group.

2. That if the term "UTILIZATION/USE OF BIOLOGICAL DIVERSITY" is to be
   defined in Article 2, it should be dealt with from the point of view
   of sustainable use of biological diversity.

3. That the term "REGIONAL ECONOMIC INTEGRATION ORGANIZATION", defined as
   "an organization constituted by sovereign States to which its member
   States have transferred competence in respect of matters governed by
   this Convention and which has been duly authorized, in accordance with
   its internal procedures, to sign, ratify, accept, approve, formally
   confirm or accede to it", as well as other terms such as "MONITOR" and
   "SPECIES" (including marine species, as suggested by one delegation)
   be dealt with should Working Group I so decide.

4. That the term "SIGNIFICANT" as proposed by one delegation should not
   be defined.

    3 There was a feeling that the text of this term should be
finalized after finalization of the text of Article 7 of the draft

Convention.

```

```
                             UNEP/Bio.Div/N7-INC.5/2
                             Annex
                             Appendix II
                             Page 39

```

_**Appendix II**_

```
  ELEMENTS FOR INCLUSION IN THE PREAMBLE/FUNDAMENTAL PRINCIPLES/GENERAL
       OBLIGATIONS AS PROPOSED BY THE GROUP OF 77 AND CHINA

```

**`1.`** _**Sovereignty and responsibility**_ _**(Fundamental**_ _**principle)**_

```
   1.1 Sovereignty and responsibility for damage.

         State sovereignty over own resources. Responsibility for
      activities in their jurisdiction not to damage biodiversity of
      other States or beyond national jurisdictions.

   1.2 Responsibility of each Party for conservation and sustainable use
of own biodiversity resources.

```

**2.** _**Funding**_ _**(Fundamental**_ _**principle)**_

```
   2.1 Adequate new and additional funding by developed countries for
additional burden to developing countries of biodiversity conservation.

```

**`3.`** _**Technology transfer**_

```
   3.1 Benefits from research and development to be shared by countries
providing genetic material.

   3.2 Transfer of biotechnologies to developing countries on
preferential and non-commercial basis. (Fundamental principle)

```

**`4.`** _**Access to technology and to genetic material**_ **`(Fundamental principle)`**

```
   Access to both genetic materials and conservation technologies to be
subject to mutual agreement.

```

**`5.`** _**International**_ _**cooperation**_ _**(Fundamental**_ _**principle)**_

```
   5.1 International cooperation in addition to national efforts is
necessary for conservation.

```

**`6.`** _**Prevention (Preamble or**_ _**obligation)**_

```
   Prevention of damage to biodiversity is essential. The precautionary
principle (lack of full scientific certainty is not a reason for avoiding
or minimizing threat of significant reduction or loss of biodiversity), and
the principle of action at source complete the mission of prevention.

```

**`7.`** _**Common**_ _**concern (Preamble)**_

```
   Conservation of biodiversity 'is common concern of all mankind.

```

**`8.`** _**Conservation (Preamble or**_ _**objectives)**_

_**In-situ**_ **`and`** **`ex-situ conservation.`**

```
9. Recognition and reward of traditional knowledge of local communities
which contribute conservation and sustainable use of biodiversity.
(Preamble or general obligation)

10. The fulfilment of the obligations under this Convention by developing
countries would be subject to the effective provision to them of adequate,
new and additional resources and of technology transfer to them on
preferential and non-commercial terms. (General obligation, Article 4)

```

_**J**_

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**PROGRAMME DES NATIONS UNIES POUR** **L'ENVIRONNEMENT** **^**

**"Zjf** **UNITERRA NAIROBI**

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_**Hx**_ **(2642)226880**
**OS** **22068** **UNEPKE**

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**17.Oa92** **I** **005830**

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**Nairobi,** **Kwtyo**

**6 March** 1992

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##### **Dear Sir, | INT. * l 1**

```
    I refer to UNEP Governing Council decision 15/34 by which the Ad Hoc
Working Group of Experts was established with a mandate to negotiate a
Convention on conservation and rational use of biodiversity. In May 1991
by Governing Council decision 16/42 the group was renamed the
"Intergovernmental Negotiating Committee for a Convention on Biological
Diversity".

```

```
Dear Sir,

```

**| INT.**

```
   The first and second negotiating sessions of this body were held at
the UNEP headquarters (Nairobi, Kenya) from 19 to 23 November 1990 and from
25 February to 6 March 1991 respectively. The third session was held in
Madrid, Spain, from 24 June to 3 July 1991. The fourth negotiating
session/second session of the Intergovernmental Negotiating Committee (INC)
for a Convention on Biological Diversity was held from 23 September to
2 October 1991 again at UNEP headquarters, the fifth negotiating
session/third session of INC was held in Geneva, Switzerland, from
25 November to 4 December 1991 and the sixth negotiating session/fourth
session of INC was held at UNEP headquarters (Nairobi, Kenya) from 6 to
15 February 1992.

   The seventh negotiating session/fifth session of INC will be held
from 11 to 19 May 1992 in Nairobi, Kenya, at the kind invitation of the
Government of Kenya. The session will open at 9.30 a.m. at UNEP
headquarters in Gigiri. In preparation of this session, please find
enclosed the provisional agenda for the seventh negotiating session/fifth
session of INC as well as the fifth revised draft Convention on Biological
Diversity including an Explanatory Note indicating the process followed in

The Director-General

Commission of European Communities
Rued de la Loi 200

1049 Brussels

Belgium

```

**United Nations** **Environment** **Programme — Programme des Nations** **Unies** **pour** **renvironnement**

**- 2 -**

```
   the revision. The report of the Intergovernmental Negotiating Committee
   for a Convention on Biological Diversity (INC) on the work of its sixth
   negotiating session/fourth session of INC will be sent to you as soon as
   ready in all languages.

      As agreed at the sixth negotiating session/fourth session of INC, the
   seventh negotiating session/fifth session of ZNC might be extended up to
   20 Nay 1992. This final negotiating sessioa will be followed by the
   Conference for adoption and signature of the Final Act which will include    resolutions, declarations. If any, as wall as the agreed text of the
   Convention to be signed at the Plenipotentiary Conference la Bio do Janeiro
   at the time of UNCKD. The Conference for- adoption sad signature of the
   Final Act will take place la Nairobi, at the kind invitation of the
   Government of Kenya, and la expected to last for one or two days.

      Z Invito your Organisation to nominate experts to participate la the
   above negotiating session of the T^^rg^T+riMrtntsl Negotiating Committee
   (ZNC). Please note that it has become the usual practice for both Working
   Groups (WG.Z and WG.ZZ) of the ZNC to hold simultaneous meetings throughout
   the session. This requires experts to be available from the beginning to
   the end of the meeting. Z should be .grateful if you would kindly Inform
   the secretariat la advance of the name(s) and address (es) Including
   telephone, telex and telefax (if available) numbers of the expert (s)
   nominated by your Organisation.

      Please direct any Information to the attention oft

      Mrs. I. Rummel-Bulska

      Secretary
      Intergovernmental Negotiating Committee (ZNC) ^
       for a Convention on Biological Diversity —,-
      Environmental I*aw and Institutions

       Programme Activity Centre

      UNEP

      P.O. Box 30552

      Nairobi

      Kenya

```

**`Telephone: 230800/520600`** _**&GCT.**_ _***j /)**_ **`J`** _**6**_

```
      Telex: 22068 UNEP KB

      Telefax: 230198

                                   Yours sincerely.

                                   Mostafa K. Tolba

                                   Executive Director

```

**ISSN 0254-1475**

**COM(92)** **186 final**

### **DOCUMENTS**

**E N** **14**

**Catalogue** **number:** **CB-CO-y2-197-F.N-C**

**ISBN** **92-77-43862-2**

**Office for Official Publications of** **the** **European** **Communities**

**L-2985** **Luxembourg**