the modalities for benefit sharing.
86 Similarly, in terms of CB&TT, and for the
development of an eventual clearing-house mechanism,
87 the ILBI could use the
CBD and the Nagoya Protocol as sources of inspiration. Not only could it draw from
the instruments to reflect the recognition of the special requirements of developing
countries
88 or to develop a list of categories and types of CB&TT,
89 but it could also
rely on the CBD to develop funding mechanisms.
90
These examples give a rough overview of how the ILBI could complement the
biodiversity framework overseen by the CBD. Reciprocally, it also gives examples
of how the CBD could be used in several aspects of the development of the ILBI.
What is illustrated above is however only a portrait of ideas that have been
suggested; there is, for now, no consensus on what precise elements of the CBD
could and/or should be used and/or relied upon. The relationship between the CBD
and the ILBI will also most probably be influenced by the way the institutional
arrangements of the ILBI are developed.
91
Yet, when raising the question of relationships between instruments in the context
of the CBD, it is not to be forgotten that its Article 22 indicates that the Convention
pays a particular respect to the law of the sea, which would include the ILBI. Indeed,
paragraph 1 of Article 22 prima facie gives a primary status to the conservation of
biodiversity over rights and obligations found under other instruments.
92 However,
this direct reference to biodiversity is not found under the second paragraph, which
provides that “Contracting Parties shall implement this Convention with respect to
the marine environment consistently with the rights and obligations of States under
the law of the sea”. Although a literal interpretation of the wording of paragraph
2 would give priority to the balance between rights and obligations in the law of the
sea provisions over CBD related obligations, this has been characterised as illogical
for two reasons. First, the drafters would most probably have used more explicit
vocabulary if they had wanted to give priority to law of the sea rules over biodiversity related ones. Second, the law of the sea framework and biodiversity law do not
have the same scope of application as to substance; consequently, always giving
priority to law of the sea would leave some issues partially or completely uncovered.
93 This is why, as pointed out by Wolfrum and Matz, “[a]rticle 22 paragraph
2 of the [CBD] instead means that the two regimes exist in parallel and supplement
86 IGC (2019), p. 17.
87 DOALOS (2017a), pp. 33, 80, 83, 90 and 104; IGC (2019), p. 62.
88 More specifically Articles 16 and 20 CBD, see IGC (2019), p. 46.
89 More specifically Article 16 CBD and Article 22(5)(g) of the Nagoya Protocol, see IGC
(2019), p. 47.
90 IGC (2019), p. 54.
91 Id., p. 57. The institutional arrangements are described in further details in Sect. 4.
92 “The provisions of this Convention shall not affect the rights and obligations of any Contracting
Party deriving from any existing international agreement, except where the exercise of those rights
and obligations would cause a serious damage or threat to biological diversity.” (emphasis added).
See also Robinson and Kurukulasuriya (2006), p. 226.
93 Robinson and Kurukulasuriya (2006), p. 226; Wolfrum and Matz (2000), p. 476.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
365
86 Similarly, in terms of CB&TT, and for the
development of an eventual clearing-house mechanism,
87 the ILBI could use the
CBD and the Nagoya Protocol as sources of inspiration. Not only could it draw from
the instruments to reflect the recognition of the special requirements of developing
countries
88 or to develop a list of categories and types of CB&TT,
89 but it could also
rely on the CBD to develop funding mechanisms.
90
These examples give a rough overview of how the ILBI could complement the
biodiversity framework overseen by the CBD. Reciprocally, it also gives examples
of how the CBD could be used in several aspects of the development of the ILBI.
What is illustrated above is however only a portrait of ideas that have been
suggested; there is, for now, no consensus on what precise elements of the CBD
could and/or should be used and/or relied upon. The relationship between the CBD
and the ILBI will also most probably be influenced by the way the institutional
arrangements of the ILBI are developed.
91
Yet, when raising the question of relationships between instruments in the context
of the CBD, it is not to be forgotten that its Article 22 indicates that the Convention
pays a particular respect to the law of the sea, which would include the ILBI. Indeed,
paragraph 1 of Article 22 prima facie gives a primary status to the conservation of
biodiversity over rights and obligations found under other instruments.
92 However,
this direct reference to biodiversity is not found under the second paragraph, which
provides that “Contracting Parties shall implement this Convention with respect to
the marine environment consistently with the rights and obligations of States under
the law of the sea”. Although a literal interpretation of the wording of paragraph
2 would give priority to the balance between rights and obligations in the law of the
sea provisions over CBD related obligations, this has been characterised as illogical
for two reasons. First, the drafters would most probably have used more explicit
vocabulary if they had wanted to give priority to law of the sea rules over biodiversity related ones. Second, the law of the sea framework and biodiversity law do not
have the same scope of application as to substance; consequently, always giving
priority to law of the sea would leave some issues partially or completely uncovered.
93 This is why, as pointed out by Wolfrum and Matz, “[a]rticle 22 paragraph
2 of the [CBD] instead means that the two regimes exist in parallel and supplement
86 IGC (2019), p. 17.
87 DOALOS (2017a), pp. 33, 80, 83, 90 and 104; IGC (2019), p. 62.
88 More specifically Articles 16 and 20 CBD, see IGC (2019), p. 46.
89 More specifically Article 16 CBD and Article 22(5)(g) of the Nagoya Protocol, see IGC
(2019), p. 47.
90 IGC (2019), p. 54.
91 Id., p. 57. The institutional arrangements are described in further details in Sect. 4.
92 “The provisions of this Convention shall not affect the rights and obligations of any Contracting
Party deriving from any existing international agreement, except where the exercise of those rights
and obligations would cause a serious damage or threat to biological diversity.” (emphasis added).
See also Robinson and Kurukulasuriya (2006), p. 226.
93 Robinson and Kurukulasuriya (2006), p. 226; Wolfrum and Matz (2000), p. 476.
19 Three Structural Pillars of the Future International Legally Binding Instrument. . .
365