H.A. Fitzhugh1
1 Winrock International Institute for Agricultural Development
1. Introduction
Few dispute the tragedy of irrevocable loss of genetic diversity. That such losses have occurred and continue to occur is well known, leading to calls for effective conservation programs.
Conservation initiatives dealing with plant genetic resources (PGR) began earlier and are relatively advanced in terms of institutional infrastructure. Efforts in support of animal genetic resources (AGR) primarily remain at the stage of studies to identify priorities and evaluate options. One such study, underway since 1987, has been conducted by the Board of Agriculture, National Research Council, US National Academy of Sciences. This study, while dealing with global genetic resources, is expected to have primary influence on US policy and support for conservation of PGR and AGR at the international as well as US level.
There is growing consensus that it is time to move beyond studies of priorities to their implementation. A consistent conclusion has been that ad hoc efforts are not likely to stem the loss of diversity among AGR. Instead, organized, coordinated, adequately funded programmes are required. At this point, the difficult institutional and legal questions must be addressed. Fortunately, some important lessons can be learned from the experiences with PGR conservation programmes.
This expert consultation refers to preservation of AGR; however, it is instructive to recall discussions during the initial meeting of the FAO/UNEP Expert Panel in 1983 in which preservation was recognized as one element of conservation (FAO, 1983). To be effective for the long run, preservation activities must be part of the broader programme of conservation, which encompasses sustainable utilization of AGR.
2. Plant genetic resources - past experience
Greater progress has been made in PGR conservation in part because the processes of collection and preservation tend to be simpler than for AGR. However, the principal reason has been the relatively early and substantial commitment of human, institutional and financial resources to conservation of PGR. These commitments were spurred by dramatic examples of the utility of conservation, including development of high yielding varieties and the southern corn blight scare in the US.
Out of the experience with PGR conservation come a number of important lessons relevant to the institutional and legal aspects of the programmes for AGR.
2.1 Utilization
Unless preserved, PGR have potential value for scientific or economic purposes, resources required to support effective programmes are not likely to be forthcoming on a sustainable basis. Inactive collections of un-utilized materials do not attract conscientious, capable curators and the quality of information about the materials, if not the material itself, declines.
2.2 Documentation
Information on environmental, as well as genetic background of preserved materials, is critical to efficient utilization for scientific and economic purposes. Even though more information is better, asking for too much may dilute efforts required for insuring that the minimal essential set of passport information is accurate and complete.
2.3 Institutional
Broad mandates and ambitious objectives have stretched institutional resources and created redundancies and conflicts with activities of other institutions. There are several major institutional initiatives for conservation of PGR. Principal among them are the Commission on Plant Genetic Resources (CPGR) and the International Board for Plant Genetic Resources (IBPGR). Both entities facilitate and coordinate conservation of PGR. IBPGR primarily supports research-oriented activities, whereas CPGR gives more emphasis to intergovernmental, development-oriented activities.
The history of these two entities is instructive to the development of international institutional support for AGR, especially identifying pitfalls to be avoided. However, it must also be recognized that difficult issues arising from political and economic concerns must be dealt with. For some issues, an intergovernmental agency such as CPGR is most appropriate; a publicly supported, non-governmental agency such as IBPGR is best able to address other issues. Therefore, some redundancy in mandate and action may be inevitable or even desirable to ensure comprehensive conservation of genetic resources.
2.4 Ownership
Difficult questions arise concerning the ownership of landraces and wild relatives distributed across the boundaries of private holdings, common lands and nations. Who has the right of approval (and under what circumstances) for collection, preservation and distribution. If payments are made, who should receive them - the farmer from whose fields collections were made, the national treasury in the country of origin, the programme which collected and stored the materials, or those who funded the programme.
2.5 Access
Probably the most difficult issues confronting preservation efforts involve question of who has access and for what purposes. These issues have highlighted the sometimes conflicting interests of private and public sector institutions and of developed and developing countries. Nor is it apparent that the rights of plant breeders and farmers always coincide. Experience suggests certain conclusions:
Programme costs should be covered by those who benefit (or expect to do so) in scientific, economic or cultural terms.
Free access should not imply freedom from charges commensurate with value received from access. Charges may be levied ex ante based on expected utility (a retainer or insurance payment) or ex post as a use charge or royalty.
3. Priorities for conservation
Priorities for conservation are those populations threatened by loss of potentially useful genetic diversity, when this diversity is not readily available in other populations. These priorities presume that all genetic diversity has potential value for scientific and cultural, if not economic uses.
Unfortunately, little is known about the genetics of most populations, especially in developing countries where even accurate census data are not available. In such cases, priority must be given to “at risk” populations whose environmental and evolutionary background may have yielded genetic diversity.
Principal institutional implications arising from these priorities include the need for more effort to characterize populations to improve the effectiveness of sampling and utilization. Characterization of populations in developing countries generally requires coordinated efforts by both national and international institutions. A good example is the African Trypanotolerant Livestock Network (Trail et al., 1988) involving national research organizations in 10 African countries, as well as the International Livestock Centre for Africa (ILCA) and the International Laboratory for Research on Animal Diseases (ILRAD).
4. Utilization of AGR
The utilitarian requirement for conservation may strike some as too rigourous, raising fears that genetic diversity will be sacrificed. However, for successful conservation in the long run, utility is a necessary condition to ensure that adequate resources are provided on a consistent, continuous basis from private or public sources or both. Defined broadly - as it should be - to include utility for scientific, economic, or cultural purposes, this requirement creates a tight mesh through which little genetic diversity will escape.
The current and potential utility of AGR has profound ramifications for type of institutional support required. The vast majority of genetic diversity is and will be maintained in the living herds serving needs of producers and consumers of livestock products. The composition of these working gene stores may change from time to time, subject to the influences of environmental and market forces. However, changes are most likely to be in gene frequency without absolute loss of genetic diversity.
The success of this large scale, on-going conservation of genetic diversity in working populations allows the limited resources available for organized programmes to be directed to populations at risk because they are no longer profitable or popular.
The probable use - scientific, economic, cultural - of conserved AGR impacts on the method of preservation and the institutional structure required.
4.1 Scientific
Diversity is the base on which genetic research depends. The recent rapid expansion of genetic biotechnological applications (Turton, 1989) provides convincing evidence to support preservation of all unique genetic variants. Cryogenic stores of semen and embryos seem most appropriate to support scientific uses. However, in future, DNA libraries may increasingly become method of choice for many scientific purposes. Publicly supported national and regional cryogenic gene banks (such as the centres being organized by FAO) are relatively inexpensive to develop and maintain. The difficult issues of ownership and access for scientific purposes remain to be resolved. It seems unlikely, however, that those excluded from access for scientific purposes or other benefits will support the programmes.
4.2 Economic
Genetic diversity conserved for economic reasons (in addition to that maintained in working herds) will have obvious and probable utility. Cost/benefit ratios for conservation efforts will be explicit and favourable. Cryogenic stores of gametes are the likely choice; indeed, the principal cryogenic stores of AGR are currently kept by AI organizations. The potential for profits from genetic engineering involving unique genes is attracting the attention of pharmaceutical and other agricultural business firms, which may support DNA libraries and other gene banks.
Insurance against catastrophic consequences of lost genetic diversity is a clearly economic argument for conservation. There are even recent examples showing value of conservation to the livestock industry. During the 1950s, the purebred Hereford industry in US was nearly devastated by the dwarf gene. The availability of “clean pedigree” lines from private and research herds, combined with AI which allowed their widespread use, was an important factor in rescuing the purebred industry from near economic collapse. However, even with such examples, when investments in insurance are discounted, economic arguments for long-term Conservation programmes have been less than compelling.
4.3 Cultural
The genuine cultural benefits from conservation programmes are generally realized using living stores that provide visual evidence of our heritage. Private initiatives in several developed countries generate income from tourists as well as satisfying concerns of their individual supporters. The argument for government support for in situ preservation parks draws on the responsibility of government for stewardship of the nation's natural resources (soil and water, plants and animals, inter alia). Simultaneous preservation of PGR and AGR makes sense because the feed supply is a major part of the animal environment. In situ conservation of domesticated animals dependent on human care and management raises the controversial issues of if and how the indigenous human element fits into the preservation plan. Decisions on numbers, sampling and breeding practices for livestock populations in preservation parks can be guided by the well-developed theory for genetic controls.
5. Data banks
An important lesson from experiences with PGR gene banks is that good documentation and good organization are essential elements. Otherwise, the task of accessing accumulations of materials for which little is known regarding genetic characteristics or environmental background becomes formidable, and gene banks remain under-utilized.
Passport and pedigree information should be recorded at time of collection which implies involvement of technicians from national institutions. Regional and international institutions have an important role to play in developing standard descriptions and assisting agreement on the minimal set of essential information recorded. Standard procedures will facilitate utility of gene banks over time.
Design and management of data banks should be done in concert with gene banks to ensure that essential data are available. This implies that the same institutional infrastructure is responsible for data and gene banks. Data banks not associated with gene banks or active populations can contribute to historical studies but not much more.
6. Organizational aspects
6.1 National programmes
The NRC study on global genetic resources has given major attention to the organizational aspects of AGR conservation. Priority is given to development of effective national initiatives which call attention to and mobilize resources for support of conservation of indigenous genetic resources. A bottom-up organizational approach is more likely to bring about the long-term, continuing commitment which comes through first-hand participation in programme development. Livestock holders, technicians and policy makers must own the national programme if they are to support it for the requisite long term.
To gain the needed widespread support for conservation efforts, national programmes must support collaboration among representatives from governmental research and extension agencies, non-governmental organizations (NGOs) and the private for-profit sector. Programmes will involve both technical and policy elements. Successful collaboration among diverse interests will require careful coordination, logically directed from the livestock department within the Ministry of Agriculture. If there are also active programmes for conservation of plants and wildlife, coordination responsibility may be vested in a national genetic resources institute. National advisory committees (perhaps with subcommittees for major species) facilitate involvement and assistance from the multiple private and public stakeholders in the national programme.
The principal elements of an effective programme include:
inventory and characterization of livestock populations with special attention to indigenous types;
identification of priorities and mobilization of resources for research and development in support of conservation;
development and support of gene banks for threatened populations;
development and maintenance of gene banks;
evaluation and utilization of diverse genotypes, including those imported from other countries; and
collaboration with other national and international programmes.
Programmes in developing countries will likely draw more heavily on technical and financial support from regional and international programmes than will those in developed countries. However, international collaboration is expected to strengthen conservation to the benefit of developed and developing countries alike.
6.2 International programmes
National and regional programmes can stand alone without international coordination. However, their effectiveness is likely to be improved through international cooperation. This is especially important for developing nations which face significant needs for conservation of indigenous landraces but usually have sharply limited resources for the task. Networks of national programmes provide opportunity for shared experiences and coordinated cooperation. An international institution with the mandate to initiate, support and coordinate conservation efforts is important to the success of global conservation strategy.
Functions identified for an international institution include assistance to:
identify population to be given priority for conservation;
mobilize financial and technical resources to assist national programmes;
standardize policies and procedures for documentation and conservation of genetic diversity;
support development and coordination of networks of national programme;
provide technical assistance and training; and
manage regional and international banks (gene banks, data banks).
To be effective, the international organization must have a clear mandate, competent management, consistent funding, confidence of national clients and the freedom and flexibility to act expeditiously.
Three institutional alternatives are suggested, all of which utilize infrastructure already in place.
Establish an IBAGR with CGIAR support and responsibilities analogous to those of IBPGR for plants. Expanding IBPGR mandate to include animals (i.e. International Board for Genetic Resources, IBGR) is a related option which would take advantage of existing administrative infrastructure.
Expand FAO efforts as recommended by the Tenth Session of Committee on Agriculture (FAO, 1989). Recommendations included establishment of World Watch system for indigenous breeds, strengthening the AGR data bank, establishment of regional animal gene bank, inter alia. Discussions also addressed possibilities for expanding FAO's Global System on Plant Genetic Resources to include AGR. This expansion would be likely to involve integrating institutional support for PGR and AGR within one infrastructure.
Expand the activities of international, non-governmental conservation agencies to embrace domestic livestock species. Institutions, such as the International Union for the Conservation of Nature and Natural Resources (IUCN), have a strong base of experience in mobilizing private as well as public resources.
These alternatives have their respective advantages and disadvantages.
6.2.1 FAO
Attention has been given by FAO to conservation of animal genetic resources for more than two decades. FAO has a standing expert panel on conservation and management of animal genetic resources and has programme officers within the Animal Production and Health Division with designated responsibility for conservation. In addition, FAO is accustomed to working with and through national governments and has an experienced bureaucracy in place which could manage a conservation programme. Through CPGR, there is already a body of experience and institutional support for FAO to undertake this initiative.
This history of involvement with conservation issues and programmes carries costs as well. There has been conflict of views on plant genetic conservation between so-called North and South national interests. These arguments could carry over from plants to intergovernmental animal conservation programmes managed by FAO. Given the important role to be played by the private sector, FAO's limited experience and involvement with private and non-governmental organizations could be a disadvantage.
6.2.2 International board
Whether organized separately as an IBAGR or as a component of an IBGR, this option would have the IBPGR as a useful model for the role of coordinating collection, characterization and conservation of genetic resources around the world. An additional advantage would be coordinated funding through the CGIAR. However, the mandate of the CGIAR centres is research, not development. Today, fifteen years after IBPGR was established, there is sharp competition for scarce resources among the 13 IARCs already supported by CGIAR. In addition, proposals have been made to expand support by the CGIAR to research on agroforestry, aquaculture, natural resource management and other initiatives. If accepted, this expansion will further increase competition for CGIAR funds. Therefore, the donors who support the CGIAR may be reluctant to broaden the mandate of IBPGR or to add another institute (IBAGR) to address animal genetic resources. In light of the proposal to move IBPGR headquarters, IBPGR administration may be similarly reluctant to consider additional responsibilities at this time.
6.2.3 Non-governmental organizations
NGOs, such as IUCN, have a strong base of successful experience in motivating and organizing private and public efforts in support of conservation. Expanding its mandate to include genetic diversity within commercial livestock species would have multiple benefits both to livestock and wildlife species. Much of the technology used to preserve wildlife has been drawn from research with commercial livestock. This complementarity could be expanded. However, there may be philosophical conflicts between the environmental priorities of IUCN (and similar organizations) and the support of the commercial livestock industry. Generally, these organizations are skilled in international activities, have a strong institutional base and highly dedicated staff.
The best strategy will likely be to combine elements of all three options, with each institution taking responsibility for that aspect of conservation most clearly in its mandate and appropriate to its experience and capabilities. For example, FAO could take the lead on development-oriented, inter-government activities. FAO also provides a forum for development of guidelines and protocols for gene banks, data bases and other conservation activities. IBGR could take responsibility for research on characterization and preservation of germplasm, including small grants to support research on conservation and management of animal genetic resources. Finally, the proven skills of NGOs to attract public support for conservation and to motivate private efforts could be brought to bear on conservation of commercial livestock genetic resources.
7.Conclusions
The principal work of conservation of animal genetic resources must be done at the national level. Given the substantial differences in needs and approaches appropriate to different countries, institutional approaches will vary widely among countries. There is no single best strategy or programme. What is essential for success, however, is that private and public interests within each country work together to develop the strategy and provide the resources to ensure an effective, coordinated national programme. A strong network of national organizations with support from an effective international organization is essential to success of international conservation efforts.
References
FAO (1983). Report of the FAO/UNEP Joint Expert Panel on Animal Genetic Resources Conservation and Management. Rome.
FAO (1989). Report of the Third Session of Commission on Plant Genetic Resources. Rome.
Trail, J.C.M., D'Ieteren, G.D.M. and Teal, A.J. (1988). Trypanotolerance and the value of conserving livestock genetic resources. Genome 30(2): 1–18.
Turton, J.D. (1989). The application of genetic biotechnology in animal breeding. Ag. Biotech. News & Information 1: 183–187.
M.A. Hermitte 1
1 Rue Halle 63, 75014 Paris, France
I. Political basis for an international agreement.
1. The economic and scientific background for conservation strategies of domestic animal resources is well known; documentation is available(0). The jurist's task is rather to highlight political grounds for a conservation plan of action, before drawing any conclusions from a legal point of view.
Impending threats to the biosphere, economic disparity between nations, demographic pressures upon shaky urban and agrarian systems, Third World debt - such are the constraints jurists, politicians and citizens must always bear in mind before considering the problem of animal genetic resources management, although the link may not seem obvious at first. These great constraints will in fact not only guide the political basis for our legal study but also direct our answers to three questions:
Should domestic animal genetic resources be preserved?
Is an international instrument necessary?
Which thread should conservation strategies be guided by?
I.I Should animal genetic resources be preserved?
2. Until recently, public opinion relied on progress to find solutions to the side effects caused by progress. Though still professed, this idea is no longer approved unanimously. Side effects are sometimes irreversible, irretrievable; but if a solution is to be found, it often implies plunging back into the roots of the past. Genetics does not hesitate in doing so, and it is common to transfer genes for resistance to disease or for adaptability to harsh environments into productive breeds. By laying stress on the value of genes and germplasm, by improving the technical possibilities of gene transfer between different species and even between the different kingdoms of living organisms, by concentrating many qualities into a breed's germplasm, geneticists have launched the valuable concept of germplasm. Actually, all they did was to reinforce the demands by some cattle breeders, veterinarians or ecologists who had been considering for some time the importance of conserving endangered breeds.
But, in the strength of this world's vision also lies its weakness, in what is called ‘the gene civilisation’(1)., nothing is either useful or harmful in itself. The usefulness of a gene will only appear, depending on set but yet variable targets - for example, what might be regarded as a good quality for a draught horse may not be so for a saddle horse. The ‘Charolais’ is of no interest to a vegetarian society.
3. Leaders therefore find themselves in a tricky position; it is impossible to preserve all existing breeds and at the same time impossible to pick some out rationally because their selection depends on set targets, which will vary with time, according to cultural and natural changes. But the weight of these many uncertainties should not lead to abdication. All countries must assign part of their income to the preservation of local animal breeds. Today, many breeds are still unadapted, but if one considers their close integration into a 'shaping' soil, climate and civilisation they offer a precious potential of adaptation. The scientific and economic reasons which argue for conservation are well known, and most people agree on them, therefore it is useless to go back over them. Yet it would seem sensible to underline the specificity of Third World countries in relation to the developed countries.
4. Third World breeders have selected animal breeds which were adapted to special types of habitats and civilisations. Turning over to new models of civilisation and having to tackle a burdensome demographic pressure, it is the Third World countries' duty to provide their farmers with more productive breeds. This kind of pressure could be harmful: it is indeed tempting to import cattle, transfer embryos into surrogate females, increase inseminations (which are not well supervised) and to carry out crossbreeding (that might erase the qualities of both breeds). The unfortunate result is that a poor but resistant type of livestock could have been replaced within a few generations by a totally unadapted one.
In developed countries, these kinds of substitutions were done quite slowly and many times not thoroughly, contrary to generally accepted ideas. In fact, the process in developed countries has more or less used the genetic inheritance that existed in the local breeds(2).
5. Economical disparity between nations at this particular point is most glaring: the more countries need and are ready to import productive breeds, the more local and adapted breeds will be endangered - the very breeds which may one day be needed to strike a balance between sustenance of life in uncertain conditions and the demands for increased productivity. This will be our first step: trying to find a legal way to link the necessity of imports with a duty for preservation.
I.2 Is an international instrument necessary?
6. Some admit the idea of the preservation of endangered local breeds, but only on a national and voluntary basis. They think that each country should be responsible for its own breeds, adapted to specific civilisation and soil. Some authors will say that an international tool is therefore useless because the genetic material in Third World countries is of no use to productive breeds in developed countries. It seems to me that there are two reasons that argue against this. First of all, impending threats to the biosphere lead us to expect significant climatic change. New arid zones may appear or existing ones expand in the developed countries. Further, the reduction of the ozone layer, even if confined to certain limits, will alter the conditions of life in the so-called temperate countries. The importance of the genetic inheritance of tropical breeds appears obvious because they are used to resisting a stronger solar radiation. Since we already know that the overall reduction of the ozone layer will considerably disturb the health of plants, animals and men, it is crucial for the developed countries to offset these effects by efforts to preserve domestic breeds, especially in arid areas(3).
7. The existing disparity between nations also implies taking this responsibility, but on a different basis. Apart from a few pockets of prosperous areas, many in Third World countries have reached a breaking point, where the necessary conditions for the population to survive are not fulfilled. The planet's disequilibrium around the year 2000 will objectively become unbearable, because for each person living in a developed area, five will be in a developing one. If the problem of food is not solved by then, or at least eased, no longer will an international order be possible, and violence may become the only issue(4).
8. The preservation of local breeds seems to be the key element for ameliorating tomorrow's food problem. The so called ‘gene war’ between Northern and Southern countries will not bring about the same effects for animals and plants. As far as plants are concerned, genes which are transferred from Southern to Northern countries can be used by the latter without disturbing the situation in the former. It is inequitable but not dangerous.
The problem with livestock management is somewhat different: genes are transferred from Northern to Southern countries. Crossbreeding as well as substitutions of certain breeds for others may mean destroying the local ones, although they are still needed for an efficient selection. Nothing is inequitable; these are commercial contracts, freely contracted, but dangerous, because Third World countries will only achieve productive and well-adapted domestic breeds if they take account of their local breeds in a selection program. Northern countries must therefore share in the cost of the preservation of this inheritance, which they have some responsibility for endangering.
9. A third point which should be raised is the problem of the Third World debt. There are many causes for it, of course, but one in particular should not be forgotten here. Let us recall the great debate over technology transfer. Many planners thought that the most up-to-date technologies had to be imported, even if everyone knew they had no chance of ever being profitable. The important thing was that technology be transferred at any cost. Benefits would come after. On the whole, profitability did not come and the debt has become a major issue. Animal husbandry plays its role, to an extent, in the increase of that debt - with its model farms, partially filled with unadapted animals in need of housing, air conditioning and imported feed. Any diminution of the potential availability of local breeds for improvement will simply increase dependence on imported stock for which the costs often exceed the financial returns - and will thus increase the debt problem even further.
10. Irrespective of whether it is a question of being responsible or in their own interest, Northern countries must actively share in the cost of the preservation of Third World domestic breeds. It seems that putting together series of international legal instruments, is the only way to make scientific, industrial, financial and legal cooperation possible, between Northern and Southern countries. Both the North and the South must contribute to ensuring future animal breeding opportunities, whether it is by preserving in the literal sense of the word, or whether by increasing the production of interesting tropical breeds, or whether by a selection which would concentrate the most interesting qualities of different genetic materials.
I.3 Guidance for an international strategy of conservation
11. Several simple ideas should guide us to the appropriate choices from a legal point of view: one is, first of all, to take into account the urgent cases, but not to the detriment of a general medium-term policy. For the most desperate cases, cryogenic conservation is imperative, but the preservation of the living animals' genetic inheritance is also important, and even more than for plants, because animals are so closely linked to people, civilisations and agrarian systems (cf para 35).
12. A legal term has therefore to be found to qualify ‘genetic information’ or ‘genetic material’ (semen, embryos…) - whether it is kept in a bank or in situ. After much hesitation, I decided to challenge all the traditional terms for it (property, ownership, sovereignty, common heritage of mankind). Animal resources are highly linked to the breeder they belong to, to the State this breeder is from, to the ecosystem of which the area in which the breed is found is a part, and finally to mankind - everyone will be able to make profitable use of them, miles away from where they were conceived. It would be appropriate to perhaps use the terms of ‘reservation and control of prospective value’ (cf para 32).
13. Series of legal instruments will have to be jointed to one another, and that concerns international conventions as well as national legislations or contracts, which will, but duly controlled, allow the shipment of animal resources.
The political basis for study on the legal instruments should be found in the light of the above considerations.
II. Legal answers to the conservation of domestic animal breeds
II.1 Creation of a fund for the conservation of domestic animal breeds
14. This fund would be competent for all scientific, financial and legal aspects. It would be an organisation, both central and centralising, created by an international agreement, which would be its legal founding tool. Its unity would allow information to be stored in a single place, before being dispatched to the signatory countries. The management of such organisation would therefore contrast with the inevitably decentralised one used for conservation actions (gene banks, conservation in situ, etc).
II.1.1 The fund's scientific mission
15. The fund should both receive and provide information; computers make this possible at a reasonable cost. It will therefore call for basic research on places of origin of animal breeds, migrations, today's diversity centres, and the links that exist with certain wild species(6). Knowledge concerning the animal kingdom is, in fact, less advanced than that concerning the plant one. So, improving knowledge in this field would avoid having to conserve several breeds which are thought to be different because of their geographical separation, but which may have a very close genetic inheritance. At this particular point a common language for all scientists should be worked out, as has not always been the case.
16. The fund must help improve knowledge concerning the most endangered local breeds. Applied research should concern itself not only with the purely genetic aspects of the question, but also with basic data concerning the ecosystems in which the breeds are found, the forage used, selection technology, ways of life and, in a more general way, agrarian systems. Pure genetic information is of limited interest if cut off from its natural and cultural environment. Anthropologists, ethnozootechnicians have their part to play, along with other scientists, in the gathering of all this information. Much scientific documentation is already available on breeds from Third World countries, but most of it is stored in libraries of developed countries. This information needs to be centralised and even more so because many of these developing countries have oral cultures which are on the verge of not being transmitted any more.
17. Imports of exotic breeds are one of the reasons for the disappearance of local breeds. They should therefore be closely followed, because side effects are often felt only after a long time. Even in the less organised countries imports are subjected to health controls by veterinarians. Sellers, buyers and veterinary departments should inform the fund of all significant transfers, so that unwanted side effects can be reduced, and so that all the different partners are aware of their responsibilities. We could even think of setting up a guarantee-fund, a sort of insurance for foreign trade, although the idea seems Utopian, because, in the end, the animal industry in developed countries is not particularly profitable. Information should even be given about all embryo transfers. Although they seem to present less health problems, the fact is that embryo transfers also hasten the disappearance of breeds and even of local species, since one type of livestock can be entirely replaced by another in only one generation.
18. The fund could also set up, as the FAO already does unofficially, a centre for training teachers, as well as a network of experts. it is indeed important that an up-to-date list is made available of all the laboratories in developed as well as in developing countries, which are ready to cooperate for the common good.
19. Finally, the fund should help in choosing the criteria for what will be regarded as emergency cases, for example, those that need immediate freezing. As FAO's Agriculture Committee has already emphasised (COAG-89,6 October 1988, No. 17 and following), these criteria should not be the same ones as those used in developed countries but chosen in relation to the specific constraints typical of many Third World countries. The concept of ‘extreme breeds’ should even be introduced in conservation strategies.
20. Part of the existing information on local breeds is in the public domain (articles which have been published, for example). It should actually be available for everyone, but it is necessary to ensure the financial running of gene banks. New information will be gathered, and then a dilemma will appear, because acquiring information means being ready to invest. The best solution would be to have free access to this information. On the other hand, paying those who supplied the information could enable the financing of other projects of the same kind. Thought should be given to the pros and cons of both systems.
II.1.2 The fund's financial mission
21. All conservation activities are costly, especially if one considers the way people today are not ready to invest in sectors which are not immediately profitable. Yet if the fund is to help the functioning of the - central data bank and of the different gene banks, important investments will be needed - without even mentioning the cost for in situ preservation by local farmers (cf para 35). With regard to this problem, the fund for phytogenetic resources seems to be a good example to follow. But other financial sources could be found because there is a direct link between public health and the proteins supplied by domestic animals. Humanitarian NGOs could take part in those kinds of projects, especially when related to in situ conservation (cf also para 38).
II.1.3 The fund's legal mission
22. The fund's legal department created by the international agreement would have different kinds of tasks, from the general to the particular. One could be to suggest how to interpret the agreement and its future developments, and how it could strengthen its links with other similar international agreements (of works on rationalisation of international agreements - UNEP GC 15/9 Add.2.15, February 1989). The fund should also provide guidelines for the interpretation of the legal functioning of gene banks and, in a more general way, for the organisation of all genetic material shipment (living or frozen). The fund should also provide guidelines for access to the information - manual or software - which is necessary for using genetic material. This legal department should help states to elaborate their national legislations as well as codes of conduct concerning the sampling methods, and to suggest how studies should be conducted in relation to the impact and consequences certain projects could have. Finally, and this is an important element of the system, the fund's legal department should have a conciliation committee, in case conflicts arise over a genetic material's origin, its shipment, what it is used for, or any other problem linked to it. The burden of proof is a fundamental choice.
II.2 The international agreement
23. The international agreement should clearly point out which conservation techniques should be used, and which resources should be preserved; it should also be clear on how it should be jointed to other legal instruments, whether similar international agreements or national legislations.
II.2.1 Conservation techniques
24. The jurist can only skim over the technical choices; he can only give advice on a general policy, scientific conflicts over quantitative and qualitative measures of genetics do not concern him. Three main trends should direct this general policy and each should have its own appropriate instruments, even if they cannot all three be implemented at the same time because of the financial constraints they imply. We are thinking here of cryo-conservation of livestock, in situ preservation, and of what could be called conservation by exercising choice, or ‘selection/conservation’.
II.2.1.1 Cryo-conservation
25. This part of the general policy is the first one to be implemented along with the gathering of information (as explained above, para 15). It is part of the emergency cases and seems to be one of the first priorities. A model has already been finalised spontaneously by member countries of the FAO in relation to the ‘Animal Production and Health Division’ and it is available. The system was set up unofficially by series of agreements in India, China, South America and Central America. Projects are in hand in Africa.
Today's practical experience is based on an operating manual; it concerns the installing and functioning of storage centres for semen and embryos of the most endangered breeds and chosen from among the greatest species. The legal fundamental idea which guides the operating manual is the idea of ownership (the country the sample comes from being the owner). This choice should be carefully analysed; actually, it is possible to choose between three different legal terms, each bringing about very different consequences, and chosen in relation to the traditional categories of law: ownership, which I will put in the same category as sovereignty for the purpose in hand, trustee, and common heritage of mankind. Ownership and sovereignty are two different categories, but which, in the light of the present context, produce the same effects. In these cases, states are totally free to supply samples or not, to commercialise them or not, all this in a discretionary way. The advantage of such options is that states have a total control over their resources, and they can decide to profit from them or not when someone wants to use the resources.
26. Yet today, because of the growing pressure in developed countries to patent animal breeds, ownership might not be the best solution and does not seem right for several reasons:
from an ethical point of view, patenting animal breeds will lead to a more intensive exploitation of ‘abnormally’ extreme breeds;
from an economic point of view, it will increase the price of animals and close even more the access to genetic progress; it might not even contribute to genetic progress itself!
Today, breeding ‘industries’ need to find new markets for the progress they are capable of achieving, because markets in developed countries are reaching saturation point and are not solvent. Developing countries could prevent animal breeds from being patented.
It will be a difficult stand-point to maintain if everyone asks for the full ownership of their genetic resources, because one claim will be in conflict with another.
27. Moreover, the concept of ownership does not apply well to living organisms. The progress of such live populations depends on a close inter-relationship with their environment, where genotype and environment are not independent of each other. Additionally, it is not clear why developed countries should finance the conservation of resources subjected to developing countries having exclusive rights.
28. The concept of common heritage of mankind is not very satisfying either, even though it can be considered as an ideal(7). If gene banks were managed on behalf of humanity, everyone would have free access to genetic resources without having to pay for it. In fact, the concept of common heritage of mankind seems to be the appropriate one for certain kinds of resources only, those which are still free of sovereignty, like sea beds or the moon. But it is difficult to accept that genetic resources which are entirely linked to the breeders who produce them, should be part of the common heritage of mankind, just because they can be stored in gene banks(8).
29. These resources need a double status, such as Egypt used for pyramids: pyramids are under Egyptian sovereignty but, at the same time, part of common heritage of mankind. So, could the samples which are entrusted to gene banks not be of free access? This free access would necessarily mean the registration and deposit of a guarantee under the control of the depository bank. If the samples are used for commercial purposes, the donor which supplied it should be rewarded financially or in kind (training, selection schemes, etc).
This would mean acknowledging specific rights to breeders in developing countries, as was done for farmers (phytogenetic resources, Third Session)(9).
Every time a sample is provided, the person who asked for it should specify what he wants to do with it (in terms of research), and how he intends to remunerate the supplier in case of profit-making. How important this payment will be is difficult to say. Two different cases can be distinguished(10):
In the most ordinary cases, the genetic material coming from Third World countries will allow profit to be made while the selection process takes place. For example, the heat resistant Egyptian hen called Fayoumi, allowed a decrease in chicken mortality in certain developed countries. The country of origin did not become any poorer. The financial contribution should therefore depend on the profit-making.
In other cases, the problem is different. Certain enzymes and proteins which can be found in the animal and plant kingdoms, could, if they are purified and multiplied by genetic engineering, allow developed countries to be less dependant on traditional imports from Third World countries. In this case, the financial contribution should be more important so that the countries have time to restructure their production.
30. In case the two countries disagree, the fund's conciliation committee should intervene. Refusing to supply samples should be allowed for serious reasons.
31. The suggested system here does not correspond perfectly to any existing legal category. The bank would be close to what we know as being the trustee in Anglo-Saxon law, this trustee being the owner on behalf of someone else, but being responsible for its own management. The banks would not be as free as the trustee actually is(11).
32. This is why the author suggested the new concept of 'reservation and control of prospective values' of the genetic material which is left to the bank. It would enable jointing together free access, control of use by the donor, and possible payment. The problem will then be to find out who deposits the material, who controls the shipments, and therefore who will be paid. States will obviously be the first ones to benefit from all this, but it should not exclude breeders' associations, under whichever legal structure they may be. Actually, the associations should be encouraged, technically helped if necessary, to take and deposit their resources. NGOs should not always have the same financial part to play, but contribute, along with the breeders, to the common undertaking.
33. The agreement will have to be clear-cut on the more technical aspects (which we will not examine here) concerning the conservation of the most interesting DNA, definition of which material to keep in order to differentiate between the concepts of herd and genetic material. The only thing the jurist may advise, as a mediator, is not to over-estimate the purely microbiological approach relative to more general approaches(12).
34. As for the other legal aspects, the agreements which were made between FAO and the first regional banks seem to be good starting points. Yet it is important when preserving to have accompanying information on feeding system, breeding method, etc (supra para 16).
35. The regional banks would accept the genetic material of species and of wild breeds which the CITES or the UICN ask them to keep.
II.2.1.2 In situ conservation
35. One should not forget that developed countries never really stopped maintaining many of their local breeds, even when they are not of much economic interest (cryoconservation only helps the conservation of a herd; it does not replace it). Yet a policy of rationalisation was never really undertaken, few public initiatives - perhaps more private ones - coming from breeders who do this as a hobby or by attachment to the past(15). Today, efforts are being made to link both initiatives by subsidising farmers to offset the loss of money. The situation is not the same in Third World countries where people cannot afford ‘leisure conservation activities’ because the incomes are too low.
36. In Third World countries, the problem of maintaining local breeds is more related to the problem of rural depopulation. The example of developed countries shows that the greater the rural depopulation the more local breeds are endangered. France, where 6% of the working population are farmers, was able to preserve certain domestic animal breed without any conservation strategy. Other countries which have been investing much more in conservation, have had less success just because only 1 to 2% of the working population are farmers.
The problem is that rural depopulation has much more tragic side effects in Third World countries, because farmers leave an extremely poor land to find extremely poor shanty towns.
Developed countries should perhaps make an effort towards reducing the Third World debt if the debtors agree to subsidise and maintain a sustainable evolution of agrarian systems. Here again, financial and technical help should be given to increase profitability of agrarian systems instead of letting them disappear. If they were to disappear, so would men, animals, plants - and everyone will be very sorry for it one day. Perhaps the World Health Organisation should keep an eye on this particular aspect of things. Rural depopulation as well as endangering adapted domestic breeds (that were the symbols of the right balance between man's way of life and the environment - take, for example, the grey pig from Haiti) can lead to the weakening of people's health.
37. In situ conservation should not be considered as a reserve or a reservation (unfortunately, these terms have become perjorative!). It can very well be associated with a more general policy of nature preservation, agro-tourism, etc.
Developed countries are actually starting to launch such development projects to promote at the same time natural reserves, hunting grounds, preservation of local breeds, selection schemes, light industry. It is wrong to think that it costs more to subsidise extensive rather than intensive agricultures - EEC type. In fact, keeping these agrarian systems does not mean keeping them the way they are, but perhaps turning over to a new type of system, which the author will call selection/conservation.
II.2.1.3 Selection/conservation
38. Conservation is not an end in itself, but it keeps the access to variability of breeds and species open. If cryoconservation can ‘freeze’ the evolution of genetic material, in situ conservation should go hand in hand with utilisation adapted to certain ecosystems and cultures. The use of local breeds is a conservation tool because it allows the maintenance of multiple qualities. Few, if any, qualities need be lost if selection is carefully controlled. Cryoconservation would be a way of helping to preserve representatives of intermediate stages (in a selection programme) which could be used again at any time during a breed's evolution.
39. Considering the specificity of many Third World countries, attention should be focused on extreme qualities and joint targets. Milk, meat, wool, proteins are targets, but humid areas, arid areas, altitudes, diseases, resistance to malnutrition and to long journeys, provide targets too.
Furthermore, it is probably dangerous and costly in the context of the Third World debt to develop breeds with high demands for nutrition, disease control and superior management.
40. It is important to remember that the ‘international breeds’ used in developed countries, though apparently homogeneous, display greater variability than often thought. The basic productive breeds were in fact frequently crossed with the local breeds in the selection schemes with an important local basis(14).
The conservation of this variability, achieved thanks to the multiplicity of small groups of breeders, may no longer be possible because of a general trend towards multinationalisation. One might not be able to do very much about this trend, but an eye should be kept on it.
II.2.2 Links with other legal instruments
II.2.2.1 Links with other international instruments
41. It is frightening to see the increasing number of international instruments which concern life on our planet to a greater or lesser extent. Nevertheless, each of these instruments has been produced for a reason and has its own specificity; therefore it is difficult to imagine how they might be merged. On the other hand, it is possible to imagine automatic connections between some of these instruments, providing information, assistance to decision-making, cooperation between different cryoconservation actions, financial contributions, etc (see annex).
42. A certain logic emerges quite clearly if these instruments are to be linked to one another (although, unfortunately, some of these instruments are still only projects). This starting point should be the instruments which concern the atmosphere (ozone, SO2, CO2) and climates, therefore concerning fields which are not related to animals. Yet they do give information on ecosystems, biological diversity and even on human, animal and plant health. This kind of information is crucial to the management of agrarian systems and should perhaps be provided automatically. In this way, the fund's scientific departments could improve their knowledge on the ecosystems in which different animal breeds live. They could also define more clearly the needs for emergency actions (immediate freezing) and state more specifically the qualities of the extreme breeds which are most needed.
Moreover, it should be easy to set up technical cooperation with the CITES and the UICN, in order to ensure the conservation in gene banks of the most endangered wild species. Cooperation with UNEP is of the utmost importance for creating and financing in-situ conservation/selection, as well as for launching a general policy for nature reserves and ‘agro-tourism’.
43. Finally, although people are less ready for it, the author is convinced that cooperating with WHO and UNESCO would be extremely useful for the maintaining of established agrarian systems - all this within the more general context of the debt reduction.
II.2.2.2 Law dependent on the agreement
44. The agreement should stay extremely flexible, and on it should depend the status of gene banks, the rules for impact studies and the national legislations. Flexibility is all the more essential since many changes are expected in the coming years - in scientific data, perceptions, political will, and hence in the overall financing.
• Gene banks
45. The first problem is to decide which law should be applied to the banks, to the genetic material they conserve, and to the foreign collaborators who will be working there (this last aspect of the problem will not be discussed here). The bank itself could be related directly to the national legislation of the country it is in, or alternatively work as a sort of international joint venture. Genetic materials come from different countries. It would be advisable that their shipments should be subjected to an uniform, trans-national law, which would be referred to in the operating manual (cf supra para 25). Another solution would be to submit each material to the donor's country legislation, but that would not be easy and would be less efficient. Such types of legislation do not yet exist and therefore this would be a risky solution. Donor countries should simply have the control of their material, as explained above (supra para 29). The problem of shipments should be settled with the principle of free access after registration and guarantee deposit. Banks should all be subjected to the same legislation in matters concerning information, delivery and the organisation of the health controls. Banks should also be the guardians for the codes of conduct which are imposed on those who collect genetic materials - whether states, NGOs or breeders associations.
Also, the way public or private persons should register when asking for samples, must be clearly brought into focus. This registration procedure should make it possible to follow closely the ongoing research and therefore to assess if profits are being made.
46. Finally, it would be a good thing if all gene banks - usually regional - were to cooperate with the concerned states in the setting up of impact studies. These would follow any impact the introduction of exotic breeds may have, and would draw conclusions from the in situ conservation actions. All this could be good material for a ‘code of conduct’.
• National legislations
47. National legislations on breeding conservation, livestock or embryo imports, are being set up (or at least thought to be) in certain Third World countries. After collecting this first legal information, the fund's legal departments should draw conclusions from such experiences and provide their assistance to the national legislations. It is important to focus on the way herds with a reduced number of animals should be managed, and to consider appropriate health measures which should lead to joint actions against diseases and epidemics.
References
0 Preservation of animal genetic resources. Committee on Agriculture, Tenth Session COAG/89-6, October 1988. AGA-AGR/GL/Encl. 1. La gestion des ressources génétiques des espèces animales domestiques, Colloque de Paris, 18 et 19 avril 1989, Bureau des ressources génétiques, Paris, Editions Lavoisier, 1989.
1 Gros, F. (1989). La Civilisation du gene. Editions Odile Jacob, Paris.
2 Lauvergne, J.-J. La constitution des ressources génétiques animales de ferme. In Colloque de Paris, précité.
3 Frankel, O.-H. and Soulé, M. (1981). Conservation and Evolution. Cambridge University Press. p. 252 et sv.
4 Raven, P.H. (1989). The Global Ecosystem in Crisis. A MacArthur Foundation, Portland.
5 Planchenault, D. and Chabeuf, N. Resources génétiques et milieux difficiles. In Colloque de Paris, précité, p. 138.
6 Lauvergne, J.J. (1975). Consultation PNUE and FAO, ‘Conservation of Animal Genetic Resources’ Pilot Study 1975. Project No. 0604-73/002.
7 Hermitte, M.-A. and Edelman, B. (1988). L'Homme, La Nature et Le Droit. Editions Christian Bourgois, Paris.
8 Kiss, A. La Notion de Patrimoine Commun de l'Humanité. Recueil de cours de l'Académie de Droit International de la Haye, t. 175. Martinus Nijhoff, The Hague, Boston, London,
9 Phytogenetic resources. Third session.
10 Frankel, O.-H. and Soulé, op. cit.
11 L'écologie et la loi, sous la direction d'A. Kiss, cf Claude Lambrechts, p. 327 et sv. Editions l'Harmattan, collection ‘Environment’.
12 Colloque de Paris, precité, article de J.L. Vilotte, Les Banques d'ADN Génomiques. p. 201.
13 Colloque de Paris, précité, article de P. Pinguet, Les motivations des roganismes ef. des personnes engagés dans des actions de conservation, les associations de race. p. 91.
14 Colloque de Paris, précité, article de A. Havy et B. Bibe, Seleciton en race bovine Salers, changement d'orientation, readaptation des moyens?
Annex 1
(Legal Office, FAO)
Selected International Conventions and Biological Diversity
I. Introduction
This paper considers various aspects of four major international conventions and two regional conventions pertaining to the protection of species or habitat, together with the FAO International Undertaking on Plant Genetic Resources 1, various FAO programs for the preservation of animal genetic resources, and the IUCN 2 Proposed International Convention to Conserve Biological Diversity 3. Parts II through V describe the scope and interaction of the various international measures, Part VI examines the parties to the agreements, and Part VII discusses the financing mechanisms for each agreement.
The four international conventions are: the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (herein referred to as Ramsar)4, the Convention Concerning the Protection of the World Cultural and Natural Heritage (herein referred to as the World Heritage Convention)5, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (herein referred to as CITES)6, and the Convention on the Conservation of Migratory Species of Wild Animals (herein referred to as the Bonn Convention)7.
The two regional conventions are: the Convention on the Conservation of Antarctic Marine Living Resources (herein referred to as CCAMLR)8 and the Convention for the Protection and Development of the Marine Environment and Coastal Areas of West and Central Africa (herein referred to as the West and Central Africa Convention)9, developed under the aegis of the UNEP10 Regional Seas Programme.
II. International conventions
For convenience, the discussion of the following four international conventions is divided into two parts; part A describes conventions that provide primarily for the protection of areas, and part B describes conventions that primarily protect species. This is not intended to be a rigid distinction, however, as some of the conventions actually protect both. To the extent a convention protects a designated area, for example, species found within that area would also benefit from the convention. Similarly, protection of a particular species may also result in conservation of the area in which that species is found. The classification is made, however, to facilitate discussion.
A. Protection of areas - Ramsar and the World Heritage Convention
Both Ramsar and the World Heritage Convention apply primarily to designated areas or sites. However, the threatened status of plants or animals inhabiting a given site may suffice to qualify the site for protection under these conventions. In both conventions, areas which are designated for inclusion in a list (the List of Wetlands of International Importance or the World Heritage List) are afforded special protection; both conventions also impose obligations to preserve areas not included in such lists.
Ramsar provides for inclusion in the List of Wetlands of International Importance (the List) of “wetlands”, defined in Article 1(1) as “areas of marsh, fen, peatlandor water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres.” The designated area may incorporate “riparian and coastal zones adjacent to the wetlands, and islands or bodies of marine water not deeper than six metres at low tide within the wetlands …”11.
Wetlands of international importance to waterfowl are to be included in the List “in the first instance”, but other areas may also be included “on account of their international significance in terms of ecology, botany, zoology, limnology or hydrology” 12. Thus, protection pursuant to RAMSAR is by no means restricted to wetlands that support waterfowl, but extends to all wetlands of “international significance”. The guidelines adopted by the 1980 conference of the parties in Cagliari13 specify, among other things, that a wetland should be considered of international importance for plants or animals if it:
supports an appreciable number of a rare, vulnerable or endangered species or subspecies of plant or animal; or
is of special value for maintaining the genetic and ecological diversity of a region because of the quality and peculiarities of its flora and fauna; or
is of special value as the habitat of plants or animals at a critical stage of their biological cycles; or
is of special value for its endemic plant or animal species or communities.
Under Ramsar, then, a wetland may be considered of international importance, and thereby eligible for inclusion in the List, depending on the characteristics of the plants or animals in the area, or the area's biological diversity. Unlike the World Heritage Convention, however, sites that may be listed under Ramsar are limited to wetland areas.
The World Heritage Convention provides that a party may nominate for inclusion in the World Heritage List any site that it determines is part of the “natural heritage” 14. Article 2 provides that “natural heritage” includes, among other things, “geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation”.
Once a party has nominated a site, the World Heritage Committee determines whether the nominated site is of such “outstanding universal value” that it should be included in the World Heritage List, or, if it is seriously threatened, in the List of World Heritage in Danger 15.
The operational guidelines of the World Heritage Convention 16 provide that a site may qualify for the World Heritage List if it contains "the most important and significant natural habitats where threatened species of animals or plants of outstanding universal value from the point of view of science or conservation still survive'' (underlining in original). The guidelines do not attempt to distinguish plants or animals that are of outstanding universal value from those that are not; as a practical matter the World Heritage Committee seems to have determined that all species are of outstanding universal value 17.
As with Ramsar, then, the World Heritage Convention appears to permit inclusion of a site in the World Heritage List on the basis of the plants and animals found within the area, at least where the area is one of the most “important and significant” natural habitats for such plants and animals.
Both Ramsar and the World Heritage Convention obligate the parties to protect areas on the List or those areas within their territories which they have identified as part of the natural heritage (whether or not on the World Heritage List). The World Heritage Convention specifies five conservation measures that each party must endeavour to accomplish 18, and obligates the parties to refrain from any deliberate measure which might damage a site identified by any other party as part of the natural heritage19. Ramsar parties are obligated to promote the conservation of wetlands included in the List and the wise use of wetlands in their territory, whether or not on the List20, and to establish nature reserves on wetlands and provide adequately for their wardening21.
Parties to the World Heritage Convention may request financial assistance from the World Heritage Fund in implementing conservation measures with respect to property forming part of the natural heritage22. Ramsar does not presently provide for such assistance; as discussed below, Ramsar has only recently been amended to establish a financial regime requiring contributions from the parties.
Ramsar parties are expected to consult with each other and coordinate their efforts, especially where a wetland extends over more than one territory23. Parties to the World Heritage Convention are required to submit biannual reports describing their implementation of the convention24. Both Ramsar and the World Heritage Convention provide only for in situ preservation, as they focus on geographical areas, rather than on species.
As of early 1989, the parties to Ramsar had designated 421 sites for a total area of 28,382, 115 hectares25. As of December 1987,78 natural sites were included in the World Heritage List26.
B. Protection of species - CITES and the Bonn Convention
CITES and the Bonn Convention are concerned with the preservation of specifically identified species, rather than with defined geographical areas. Both conventions use a system of appendices, which list the species covered by the convention. While CITES applies to both plants and animals, the Bonn Convention applies only to “migratory species”, defined as “the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries”27.
CITES prohibits international trade in species28 threatened with extinction (Appendix I species), allows controlled international trade in species whose survival is not threatened, but may become so (Appendix II species), and allows parties with domestic legislation regulating the export of any species (Appendix III species) to seek the support of other parties in enforcing that legislation. CITES defines “specimen” to include “any readily recognizable part or derivative” of a species. Once listed in one of the appendices, trade in specimens of those species is regulated or restricted by means of a permit system29.
Article III of the Bonn Convention prohibits the taking of, and requires the parties to endeavor to conserve, migratory species in danger of extinction throughout all or a significant part of their range (Appendix I species). Pursuant to Article IV of the Bonn Convention, parties who are also range states are required to conclude “AGREEMENTS” with respect to migratory species that have unfavorable conservation status and require international agreements for their conservation, or migratory species that have a conservation status that would significantly benefit from international cooperation (Appendix II species). Parties to the Bonn Convention are also encouraged to conclude agreements protecting any species which periodically crosses one or more national jurisdictional boundaries, whether or not listed in Appendix II30.
CITES and the Bonn Convention both promote in situ preservation of the species enumerated in the appendices by regulating or restricting international commercial trade in such species, or by prohibiting the taking of such species. Article VII(4) of CITES contains special provisions pertaining to captive bred Appendix I animals and artificially propagated Appendix I plants (allowing such species to be treated as Appendix II species), which promotes ex situ preservation as well31. However, protection under both CITES and the Bonn Convention is dependent on a finding that the species is endangered; neither convention purports to protect biological diversity per se, and neither convention is concerned with preservation of genetic material.
Parties to CITES are required to maintain records of trade in species listed in any of the appendices32. Parties are also required to prepare annual reports summarizing the records of trade, and biennial reports on legislative, regulatory and administrative measures taken to enforce the convention33. Parties to the Bonn Convention are obligated to inform the administrative body of the convention as to which migratory species listed in the appendices they consider they are range states. Range states are also to provide information on measures they are taking to implement the provisions of the convention34.
III. Regional conventions - CCAMLR and the West and Central Africa Convention
A. CCAMLR
CCAMLR protects species that are found in designated marine areas, and therefore does not apply to animals generally, nor does it concern plants. CCAMLR applies to “the Antarctic marine living resources of the area south of 60 degrees South latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystems “35. “Antarctic marine living resources” are defined as “populations of fin fish, molluscs, crustaceans and all other species of living organisms, including birds, found south of the Antarctic Convergence”36.
Parties to CCAMLR are obligated to conduct their harvesting and associated activities in the area covered by the convention in accordance with specified conservation principles37, and to “take appropriate measures … to ensure compliance with the provisions of this Convention and with conservation measures adopted by [the appropriate body of the convention” 38. Parties are obligated to report on measures they have taken to enforce the terms of the convention, and to “exert appropriate efforts… to the end that no one engages in any activity contrary to the objective of this convention”39. CCAMLR also binds the parties to certain obligations contained in the Antarctic Treaty (most of the parties to CCAMLR are also parties to the Antarctic Treaty)40 and to the Agreed Measures for the Conservation of Antarctic Fauna and Flora41 and “such other measures as have been recommended by the [administrative body] of the Antarctic Treaty”. The parties are also obligated to cooperate in a system of observation and inspection42.
B. The West and Central Africa Convention
This regional convention was developed under the auspices of the UNEP Regional Seas Programme, a program that contemplates a number of marine areas (e.g. Mediterranean Region, Kuwait Action Plan Region, Caribbean Region) and facilitates the adoption of regional conventions to combat pollution and to conserve marine habitats in each region. Pursuant to the Programme, coastal states in each region adopt a “framework convention” with separate optional protocols.
The West and Central Africa convention, as with CCAMLR and other conventions developed pursuant to the UNEP Regional Seas Programme, applies to marine resources and not to plants or animals generally; in addition, parties to the convention include only coastal states. This precludes the convention from effectively controlling land-based pollution, particularly toxic waste dumping on sites that constitute pathways to the sea, even though such forms of pollution may actually be more dangerous than pollution from marine sources43.
Although 21 countries participated in the development in 1981 of the West and Central Africa Convention, together with a Protocol concerning Cooperation in Combating Pollution in Cases of Emergency, only 7 countries had actually ratified the convention as of July 1988 44.
IV. FAO Plant Undertaking and FAO measures for the preservation of animal genetic resources
A. FAO Plant Undertaking
The term “undertaking” has no established meaning in international law and this instrument is not legally binding even on states that choose to adhere to it45, although it is intended as a formal commitment and has a large number of adherents. The Undertaking applies to plant genetic resources, both wild and domestic, and contemplates both in situ and ex situ preservation. It has no applicability to animals. Like the World Heritage Convention's approach to habitat preservation, the FAO Plant Undertaking is grounded on the principle that plant genetic resources are part of the common heritage of all people.
The Undertaking does not provide for a list of protected areas or specific plants, but requires adherents to “identify potentially valuable plant genetic resources that are in danger of becoming extinct… as well as other plant genetic resources in the country which may be useful for development but whose existence or essential characteristics are at present unknown… “46. Adherents are then expected to take “appropriate legislative and other measures” for the in situ protection and preservation plant genetic resources and to establish ex situ methods of preservation47.
Plant genetic resources are defined as “the reproductive or vegetative propagating material of [five] categories of plants”48. The last of these categories is “special genetic stocks (including elite and current breeders' lines and mutants)”, and refers to varieties that a breeder uses to produce the seed sold on the market. Development of special genetic stocks typically requires large capital investment and such stocks are maintained by breeders as trade secrets. Adherents to the Undertaking are required to allow access to samples of plant genetic resources and to permit their export “where the resources have been requested for the purposes of scientific research, plant breeding or genetic resource conservation”49. Such availability is to be free of charge, on the basis of mutual exchange, or on mutually agreed terms. This provision of the Undertaking has generated controversy, since breeders, who are usually in developed countries, object to the free availability of special genetic stocks created by them (although the germplasm used to create such special genetic stocks were most likely obtained free of charge from developing countries). Developed nations have not given unqualified support to the Undertaking; indeed, existing national legislation in many developed countries designed to protect breeders' rights is inconsistent with the concept of “common heritage” embodied in the Undertaking50.
In support of the Undertaking, a Commission on Plant Genetic Resources was established to provide a forum for discussion of matters related to plant genetic resources, where consensus can be reached and activities harmonized. At the third session of the Commission in April 1989, the difficulties described above were considered, and the text of an agreed interpretation of the Undertaking was developed. The agreed interpretation simultaneously recognizes breeders' rights and farmers' rights51, and provides that adhering governments which have benefited from the use of germplasm may make financial contributions in exchange for such use, on a basis to be agreed upon.
Also in support of the Undertaking is the International Fund for Plant Genetic Resources, which provides the funding mechanism for the Undertaking, presently based on voluntary contributions by adherents. Like the World Heritage Convention, funds may be expended to promote the use of plant genetic resources on a sustainable basis at the world level on a project by project basis.
The Undertaking contemplates the eventual development of an international network of centers to hold collections of plant genetic resources, and a global information system coordinated by FAO52. Adherents advise the Director-General of FAO of the extent to which they are in a position to give effect to the principles contained in the Undertaking53.
B. FAO measures for the preservation of animal genetic resources
With respect to measures for the preservation of animal genetic resources, FAO and the United Nations Environment Programme (UNEP) have worked together since 1973 in developing various conservation and management programs54. In 1983, a Joint FAO/UNEP Expert Panel of Experts on Animal Genetic Resources Conservation and Management was established. Regional agricultural and/or animal husbandry organizations in Africa, Europe, Asia and the Pacific, and Latin America had already initiated studies on the management of animal genetic resources, and the FAO/UNEP Expert Panel was intended to coordinate and further those efforts55. FAO and UNEP have since collaborated in producing a newsletter, providing training, and promoting research. The Expert Panel met in 1983 and in 1986, but has not met since 1986 due to lack of funding56.
In 1987, FAO started the organization of Regional Animal Gene Banks for the cryogenic storage of semen and embryos in Africa, Asia and the Pacific, Latin America and Caribbean. The action plan for the program provides that two centers are to be established in each region for the storage of semen and/or embryos of endangered breeds; an Operating Manual for Regional Animal Gene Banks has already been compiled. Once training has been provided, participating countries in each region will contribute to the gene banks free of charge. For the first three years of operations, the gene banks will be supported by trust funds. Thereafter, the genebanks will require only regular supplies of liquid nitrogen, the cost of which will be provided by the participating countries of the region57.
During 1983–1986, Animal Descriptors, a means of obtaining an orderly genetic characterization of certain breeds and of the environments to which they are adapted, was developed. This system is suitable for use in a computerized system known as an Animal Genetic Resource Data Bank, which is used to identify endangered breeds and to document standard genetic characterizations for the preserved breeds58.
The European Association of Animal Production (EEAP) has identified the endangered breeds of 22 European countries and has determined which of those countries have preservation programs. In addition, the EEAP has established an Animal Genetic Resource Data Bank to store information on various breeds, and has used Animal Descriptors developed by FAO and UNEP to incorporate information from developing countries. FAO is currently participating in a study group on animal genetic resources in connection with a comprehensive study being undertaken by the United States National Academy of Sciences on global genetic resources59.
V. IUCN proposed convention
The proposed convention seeks to preserve “biological diversity”, defined as “the diversity of species living on the Earth or, in respect of any State or area, the diversity of indigenous species living in that State or area; biological diversity includes genetic diversity, which is the diversity of genes and genotypes within each species and ecological diversity, which is the diversity of the different types of communities formed by living organisms and the relations between them”60. “Species” means any species of any living organism61.
Under the proposed convention, an Advisory Committee will prepare a “World List of Areas of Outstanding Importance for the Conservation of Biological Diversity”. Using the World List as a basis, the parties will identify areas of biological diversity in their territory that are important for conservation62. The proposed convention requires parties to prepare management plans with respect to areas on the World List63, imposes general obligations on parties to ensure the conservation of biological diversity within their territories and to refrain from causing harm to biological diversity in other territories64, and requires the parties to cooperate with other states, whether or not parties to the convention, in the conservation of biological diversity65.
The convention provides for both in situ 66 and ex situ 67 preservation, and obligates parties to prevent the introduction of alien species or man-made or genetically engineered organisms to their territories 68. Parties are required to draw up inventories of biological diversity in their territories, and an environmental impact statement is required for activities which may damage biological diversity, even where the potential harm from the activity would occur in other states or in areas beyond national jurisdiction69.
Like the FAO Plant Undertaking, the proposed convention obligates parties to provide access to specimens either directly or through the administrative body of the convention. Such access is to be exercised “on mutually agreed terms”, which may involve payment by the user of the specimen70. The proposed convention contemplates the collection of specimens by its own specialized unit, and permits the Secretary General to file patent applications with respect to any scientific discovery or invention resulting from the evaluation of such specimens71.
Like the World Heritage Convention and the FAO Plant Undertaking, the IUCN Proposed Convention provides for financial assistance to parties, on a project by project basis, in implementing the provisions of the convention72. Assistance to other conventions is also contemplated, and the Fund is authorized to make payments in respect of approved projects directly to the World Heritage Fund73. To the extent the proposed convention assists other conventions, or invites participation in developing an action plan or other joint action, it may be regarded as an “umbrella” convention.
VI. Parties to the conventions
Attached hereto is Appendix A, a tabulation of membership in each of the international conventions and the FAO Undertaking and Commission on Plant Genetic Resources.
Of the conventions that protect habitat, the World Heritage Convention has more parties, but as of December 1987, had designated only 78 natural sites for the World Heritage List. Ramsar, with only 51 parties, had designated 421 wetlands for inclusion in its List as of January 1989.
Participation is particularly important under the Bonn convention, as effective protection of migratory species is enhanced if all range states are parties. Range states are required to conclude agreements with one another, and the convention provides that such agreements should be open to other range states who are not also parties to the convention74. The Bonn Convention has the fewest parties, however, and includes only 5 countries in the American continent. Thus, species that breed in Northern Europe and then migrate to Central and South America are not effectively covered by the convention.
CITES, although it has among the most parties, permits parties to exempt themselves from the provisions of the convention with respect to any species in the appendices by making a “reservation”. Parties are treated as non-parties with respect to trade in species on which they have taken reservations75. The availability of reservations encourages States to join in CITES, but also provides a “loophole” which can be very damaging to the enforcement and the spirit of the convention. At least fifteen of the parties to CITES have taken reservations76. The Bonn convention also provides that parties may take reservations with respect to species in its appendices77.
The FAO Undertaking has attracted many adherents, especially developing nations. Developed countries have not fully participated in the Undertaking, due to the difficulties described below. However, several countries, while not adherents to the Undertaking itself, are members of the Commission on Plant Genetic Resources.
VII. Funding of the agreements
The Ramsar, CITES and World Heritage Conventions all provide for contributions from the parties78. The 1987 conference of parties to Ramsar adopted a budget for the triennum totalling $1.2 million. The 1984 operating budget of the World Heritage Fund created pursuant to the World Heritage Convention was $741 00079. At their sixth meeting in Ottawa in 1987, the parties to CITES determined that contributions for the biennium 1988–1989 budget would be calculated as $3 million. At their first meeting in 1985, parties to the Bonn convention expected to obtain full funding from contributions by the parties by 1988.
The FAO Plant Undertaking requires the parties to direct their attention to considering measures to finance activities pursuant to the Undertaking80. In 1987, the International Fund for Plant Genetic Resources was established, and contributions were solicited. Approximately $350 000 in contributions were forthcoming from governments, United Nations organizations, inter-governmental organizations, international centers, NGOs, and private foundations, corporations and individuals81.
The IUCN Proposed Convention establishes a fund for the conservation of biological diversity82. As in other conventions which employ “user pays” principle, the convention contemplates payments to the fund with respect to persons who use any biomaterial listed in Appendix I of the convention in any commercial operation. (Appendix I has not yet been prepared.) Payments are also required with respect to any persons belonging to a class of persons listed in Appendix II of the convention. (Appendix II has not yet been prepared but would include users of biological resources.) To the extent the convention owns patents pursuant to Article 16, royalty income may also be available. The fund established pursuant to the proposed convention may also contribute to the financing of projects established under other conventions83. Article 28 provides that where it is possible to identify the state from which the biomaterial originated, payments shall be made from the fund to that state in an amount equal to a percentage of the receipts paid into the fund in respect of the use or exploitation of such biomaterial.
VIII. Conclusion
A substantial body of international law for the protection of species or habitat is in place. The Ramsar and World Heritage Conventions, while applying primarily to areas, may also provide protection to threatened plants and animals. Ramsar is limited, however, to wetland areas, and World Heritage sites are limited to those of “outstanding universal value”. CITES and the Bonn Convention protect designated species, but neither protects genetic material or promotes genetic diversity per se. The Bonn Convention applies only to migratory species, and CITES allows parties to make reservations with respect to species in its appendices, which may seriously erode the effectiveness of the convention.
With respect to arrangements other than international conventions, CCAMLR and regional arrangements developed under the auspices of the UNEP Regional Seas Programme, such as the West and Central African Action Plan, protect species found in designated marine areas, but do not apply to plants or animals generally. The FAO Plant Undertaking does apply to genetic material, and provides for conservation of such resources on a global scale, but its presently limited to plant genetic resources. FAO measures for the preservation of animal genetic resources have been extensive, but as yet apply only to domestic breeds.
The effectiveness of any of the arrangements described above depends as much on the number and identity of the parties and the level of funding as on the actual terms of the agreements. The IUCN proposed convention is wider in scope and would fill many gaps in the coverage of existing conventions, particularly with respect to animal genetic resources. Its effectiveness, particularly with respect to its “umbrella'' provisions, would likewise depend on whether it could obtain broad support and whether adequate funding would be forthcoming. The IUCN recognizes this, and has no interest in proceeding with the proposed convention unless it would be truly effective. It is possible that the scope provided by the proposed convention could be obtained by amending or expanding existing arrangements.
Cooperation among existing conventions would probably also enhance their effectiveness. On 15 October 1988, staff from the secretariats of IUCN, Ramsar, CITES and the Bonn Convention met in Gland, Switzerland. The meeting discussed various ways in which cooperation and coordination of the conventions could be achieved, including co-location, with the assistance of the Swiss government, at a “conservation campus”. The secretariat of Ramsar is already located on the same premises as the IUCN in Gland. Even if it is not adopted, the IUCN proposed convention may provide the impetus for changes such as these.
Appendix A
| Country | Ramsar | WHC | CITES | Bonn | FAO Undertaking | Commission on Plant Genetic Resources |
| Afghanistan | x | x | x | |||
| Algeria | x | x | x | |||
| Antigua and Barbuda | x | x | ||||
| Argentina | x | x | x | x | ||
| Australia | x | x | x | x | ||
| Austria | x | x | x | x | ||
| Bahamas | x | |||||
| Bahrain | x | |||||
| Bangladesh | x | x | x | x | ||
| Barbados | x | x | ||||
| Belgium | x | x | x | |||
| Belize | x | x | ||||
| Benin | x | x | x | x | ||
| Bolivia | x | x | x | x | ||
| Botswana | x | x | ||||
| Brazil | x | x | x | |||
| Bulgaria | x | x | x | x | ||
| Burkina Faso | x | x | x | |||
| Burundi | x | x | ||||
| Cameroon | x | x | x | x | x | |
| Canada | x | x | x | |||
| Cape Verde | x | x | ||||
| Central African Republic | x | x | x | x | x | |
| Chad | x | x | x | x | ||
| Chile | x | x | x | x | x | x |
| China. | x | x | ||||
| Colombia | x | x | x | x | ||
| Congo | x | x | x | x | ||
| Costa Rica | x | x | x | x | ||
| Cuba | x | x | x | |||
| Cyprus | x | x | x | x | ||
| Czechoslovakia | x | |||||
| Denmark | x | x | x | x | x | x |
| Dominica | x | x | ||||
| Dominican Republic | x | x | x | x | ||
| Ecuador | x | x | x | x | ||
| Egypt | x | x | x | x | x | x |
| El Salvador | x | x | x | |||
| Equatorial Guinea | x | |||||
| Ethiopia | x | x | x | |||
| Fiji | x | |||||
| Finland | x | x | x | x | x | x |
| France | x | x | x | x | x | x |
| Gabon | x | x | x | x | ||
| Gambia | x | x | x | |||
| German Democratic Republic | x | x | ||||
| German Federal Republic | x | x | x | x | x | x |
| Ghana | x | x | x | x | ||
| Greece | x | x | x | x | x | |
| Grenada | x | |||||
| Guatemala | x | x | x | |||
| Guinea | x | x | x | x | ||
| Guinea-Bissau | x | |||||
| Guyana | x | x | x | |||
| Haiti | x | x | x | |||
| Holy See | x | |||||
| Honduras | x | x | x | x | ||
| Hungary | x | x | x | x | x | |
| Iceland | x | x | x | |||
| India | x | x | x | x | x | x |
| Indonesia | x | x | ||||
| Iran | x | x | x | x | x | |
| Iraq | x | x | x | |||
| Ireland | x | x | x | x | ||
| Israel | x | x | x | x | ||
| Italy | x | x | x | x | x | |
| Ivory Coast | x | x | x | |||
| Jamaica | x | x | x | |||
| Japan | x | x | ||||
| Jordan | x | x | x | x | ||
| Kenya | x | x | x | |||
| Korea, Democratic People's Republic | x | x | ||||
| Korea, Republic of | x | x | ||||
| Kuwait | x | |||||
| Laos | x | |||||
| Lebanon | x | x | ||||
| Liberia | x | x | x | |||
| Libya | x | x | x | |||
| Liechtenstein | x | x | ||||
| Luxembourg | x | x | x | |||
| Madagascar | x | x | x | x | x | |
| Malawi | x | x | x | |||
| Malaysia | x | |||||
| Maldives | x | |||||
| Mali | x | x | x | x | x | |
| Malta | x | x | ||||
| Mauritania | x | x | x | x | ||
| Mauritius | x | x | x | |||
| Mexico | x | x | x | x | ||
| Monaco | x | x | ||||
| Morocco | x | x | x | x | x | |
| Mozambique | x | x | x | |||
| Nepal | x | x | x | x | ||
| Netherlands | x | x | x | x | ||
| New Zealand | x | x | x | |||
| Nicaragua | x | x | x | |||
| Niger | x | x | x | x | x | |
| Nigeria | x | x | x | |||
| Norway | x | x | x | x | x | x |
| Oman | x | x | ||||
| Pakistan | x | x | x | x | x | |
| Panama | x | x | x | x | x | |
| Papua New Guinea | x | |||||
| Paraguay | x | x | x | x | ||
| Peru | x | x | x | x | ||
| Philippines | x | x | x | x | x | |
| Poland | x | x | x | x | ||
| Portugal | x | x | x | x | x | |
| Qatar | x | |||||
| Rwanda | x | x | x | |||
| Saint Christopher and Nevis | x | x | ||||
| Saint Lucia | x | x | ||||
| Saint Vincent and the Grenadines | x | x | ||||
| Saudi Arabia | x | |||||
| Senegal | x | x | x | x | x | x |
| Seychelles | x | x | ||||
| Sierra Leone | x | x | ||||
| Singapore | x | |||||
| Somalia | x | x | ||||
| Solomon Islands | x | |||||
| South Africa | x | x | ||||
| Spain | x | x | x | x | x | x |
| Sri Lanka | x | x | x | x | x | |
| Sudan | x | x | x | |||
| Suriname | x | x | ||||
| Sweden | x | x | x | x | x | x |
| Switzerland | x | x | x | x | x | |
| Syria | x | x | x | |||
| Tanzania | x | x | ||||
| Thailand | x | x | x | |||
| Togo | x | x | x | |||
| Tonga | x | |||||
| Trinidad and Tobago | x | |||||
| Tunisia | x | x | x | x | x | x |
| Turkey | x | x | x | |||
| Uganda | x | x | x | |||
| UK | x | x | x | x | x | |
| USSR | x | x | ||||
| USA | x | x | x | x | ||
| Uruguay | x | x | x | |||
| Venezuela | x | x | x | |||
| Vietnam | x | x | ||||
| Yemen, People's Democratic Republic | x | |||||
| Yemen | x | x | ||||
| Yugoslavia | x | x | x | x | ||
| Zaire | x | x | ||||
| Zambia | x | x | x | x | ||
| Zimbabwe | x | x | x | |||
| Total | 51 | 98 | 99 | 41 | 89 | 96 |
Footnotes
2 International Union for the Conservation of Nature and Natural Resources
4 11 I.L.M. 963; U.K.T.S. no. 34 (1976), Cmd. 6465. Ramsar came into force on December 21, 1975.
6 12 I.L.M. 1085; T.I.A.S. no. 8249; 27 U.S.T. 1087. CITES entered into force on July 1, 1975.
7 19 I.L.M. 15. The Bonn Convention entered into force on November 1, 1983.
9 20 I.L.M. 746. The West and Central Africa Convention entered into force on August 5, 1984.
10 United Nations Environment Programme.
15 World Heritage Convention, Article 11 (2) and (4).
16 Doc. No. WHC/2 Revised (January 1984) Para. 24 (iv).
27 The Bonn Convention, Article 1(a).
29 CITES, Articles III, IV and V.
34 The Bonn Convention, Article VI.
39 Ibid., Article XXI(2) and Article XXII.
46 FAO Plant Undertaking, Article 3.
60 IUCN Proposed Convention, Article l,(i).
62 Ibid., Article 5(1) and (2).
69 Ibid., Article 4, Article 14.
74 The Bonn Convention, Article V.
76 Simon Lyster, supra, note 17 above, p. 262.
77 The Bonn Convention, Article XIV.
79 World Heritage Committee, Seventh Session, UNESCO Doc. SC/83/CONF.009/8.
80 FAO Plant Undertaking, Article 6(d).
82 IUCN Proposed Convention, Article 26.
