The 10th Conference of the Parties to the Convention on Biological Diversity in Nagoya produced a “package” of results, most notably the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, may help to put to rest some of the most extreme predictions about the end of multilateralism in international environmental law. But it is far from a panacea. Even within the confines of biodiversity law, the COP-10 outcomes do not provide a strong likelihood of significantly reducing the extensive loss of biological diversity (which was documented in Global Biodiversity Outlook 3 shortly before the Nagoya meetings). The Strategic Plan for 2011-2020 identifies the key changes and activities needed to address biodiversity loss, but does not make any major breakthroughs.
Nagoya does not signal a new era or multilateralism, it does not make more likely binding international targets for biodiversity preservation or greenhouse gas emissions limitations. Instead, it reflects several key realities about international environmental law that should be borne in mind as the UNFCCC COP-16 unfolds. First, the Nagoya Protocol in access and benefit sharing is deeply ambiguous. This ambiguity was necessary to reach agreement. Second, the Protocol came into being only because of closed-door session among a few major players, reminiscent of the meetings that led to the Copenhagen Accord. Third, the Strategic Plan emphasizes the Convention’s role as a facilitator of national and subnational action to address biodiversity. Finally, the Strategic Plan and Strategy for Resource Mobilization deeply embrace the need to find creative and effective financing mechanisms for biodiversity preservation.
Taken together, these characteristics of the Nagoya meetings portray the current state of international environmental law fairly well. Top-down binding international environmental law is not the future of the field. In many ways, the Kyoto Protocol may be the high water mark of that approach. Instead, international environmental treaties will continue to contain the extensively qualified and ambiguous language that any student of the field is familiar with. Further, even within a multilateral UN framework, the key players in any context will likely hammer-out the main features of any agreement that can be reached – and they may do so in private. These things are not new.
Growth and development in international environmental law will come through its deeper integration into national and subnational law, and through its ability to facilitate the creation and implementation of ever more effective approaches to solving globally significant environmental problems. Authority is, and will remain, polycentric. Nations need not surrender sovereignty, but may participate in cooperative efforts that are made possible by multilateral institutional arrangements. In particular, issues such as financing, technology transfer, and monitoring are far more likely to be advanced in the context of multilateral commitments – however ambiguous they may be – than through bilateral or unilateral efforts.
In sum, Nagoya was successful for its achievements in updating several key aspects of the CBD regime, but its shouldn’t be seen as a sign that the UNFCCC COP-16 is likely to make any meaningful progress towards a Kyoto-style climate change agreement. Rather, COP-16 may be most important for the extent to which it advances the facilitative capacity of the UNFCCC regime to support a wide array of approaches to address climate change on the national and subnational levels.