Remaining Tensions Between the “Global Souths” and the “Global Norths”

The Convention on Biological Diversity gained increased momentum with the establishment of the 2022 Kunming-Montreal Global Biodiversity Framework (KMGBF) which aimed to address the limitations of the Aichi Biodiversity Targets (see here, here and here). The KMGBF aimed to be fully embraced by COP16, yet it concluded on November 2, 2024 after an extended session, yielding limited success and casting uncertainty over the ambitious goals. This post reviews outcomes from CBD COP16 in light of inherent tensions with international law between groups that have come to be identified as belonging to the “Global Souths” and the “Global Norths”. The analysis focuses on the dynamics surrounding the newly proposed “Cali Fund”, the centering of Indigenous Peoples, and the financial challenges of establishing yet another funding mechanism.

The Challenges Confronted

The “Cali Fund”

A notable achievement of COP16 was the establishment of a new fund, the “Cali Fund”, to address issues surrounding digital sequence information (DSI) from genetic resources. Genetic information is frequently used by companies in the Global Norths, especially for cosmetics and medicinal products that derive their raw materials from plants and animals located in the Global Souths. The fund aims to ensure equitable sharing of profits derived from these resources, benefiting nation-States in the Global Souths, and especially Indigenous Peoples.

Under the new DSI fund, companies using genetic resources are expected to contribute a share of their profits to support biodiversity protection. However, the fund faces hurdles due to its reliance on voluntary contributions. The draft decision (CBD/COP/16/L.32, para 3) suggests contributions of 1% of profits or 0.1% of revenue but uses the non-binding term “should” instead of the mandatory “shall” (Bodansky and van Asselt, 257), making substantial participation uncertain.

A further weakening of the “Cali Fund” is the removal of a “reversed burden of proof” clause, initially included in the President’s text (paras 3 and 4). The clause would have required companies to “demonstrate” that they do not use DSI to avoid financial contributions. Without it, companies can self-determine their involvement in the fund.

The fund represents a significant shift from traditional bilateral benefit-sharing to a multilateral approach for managing digital genetic resources. It builds on developments in the International Treaty on Plant Genetic Resources for Food and Agriculture but goes further by including digital sequence information alongside physical resources. The fund’s structure potentially creates a new precedent for handling intangible biological assets in international law, though its voluntary structure may limit its impact. The reliance on market-based mechanisms reflects a broader neoliberal trend in international environmental governance, where market incentives are prioritized over direct regulation, often reinforcing existing power dynamics and commodifying nature. The approach reduces biodiversity protection to financial transactions, overlooking the complexities of collective ecological stewardship, embedding the neoliberal logic in international environmental law.

The management of DSI through the “Cali Fund” could influence future international agreements related to digitalised natural resources of biotechnology products. Nonetheless, the absence of binding enforcement mechanisms targeting corporate actors from the Global Norths highlights the persistent challenge of regulating non-State actors under international law. At the same time, it underscores how States continue to safeguard their sovereignty while navigating the delicate balance between national interests and global environmental commitments. This tension between voluntary participation and mandatory compliance in international environmental law shows a notable trend that environmental frameworks are moving towards more flexible, market-driven approaches to environmental protection.

The exact mechanism for disbursing the fund remains unresolved, but Paragraph 20 of the draft decision indicates that at least half of its resources should be directed to Indigenous Peoples and local communities.

The Centering of Local Communities and Indigenous Peoples

A second significant success of COP16 is its commitment to a more inclusive approach to biodiversity by enhancing the role of Indigenous Peoples in achieving the goals of the 2022 KMGBF. As required by Article 8(j) of the Convention on Biological Diversity, Indigenous Peoples are now positioned to play a more active role in biodiversity conservation, with increased voice and decision-making power.

The program of work outlines general principles and guiding elements to encourage State Parties to be more inclusive of Indigenous perspectives. This inclusive approach strengthens efforts toward the three objectives of the Convention and may help accelerate progress toward the global goal of protecting 30 percent of the world’s land and water ecosystems by 2030—a target currently not on track.

In addition, COP16 adopted a separate decision on the role of people of African descent, aiming to facilitate their full participation in biodiversity conservation, with a focus on more specific and targeted Indigenous and community groups. However, the Democratic Republic of Congo (DRC) opposed this decision, citing insufficient evidence that people of African descent would contribute significantly to the KMGBF’s objectives. Other States such as Brazil welcomed the decision as milestone on biodiversity conservation. From this it seems that even within the Global Souths, there are discrepancies on how Indigenous Peoples rights are to be promoted.

Despite these disagreements, it marks a significant step toward recognizing the diversity within Indigenous Peoples and their unique contributions to biodiversity conservation. Alongside the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement), the increasing inclusion of Indigenous Peoples in international law marks a significant breakthrough in biodiversity conservation law. It enables and empowers Indigenous Peoples and local communities to participate actively in ‘global environmental governance’, addressing legal inequities and gaps while promoting the broader advancement of Indigenous rights. These developments also reflect a synergistic approach within the biodiversity framework to align with human rights, a trend evident in the marine conservation efforts of the BBNJ.

The Challenges that Remain

One of the main failures of COP16 is the inability of States to agree on a comprehensive financing mechanism for the KMGBF. The current general funding mechanism relies on the interim Global Biodiversity Framework Fund (GBFF), managed by the Global Environment Facility (GEF). However, funding pledges from the Global Norths have been minimal, falling far short of the annual commitment of $20 billion by 2025. The GBFF currently holds only US$407 million, which Zimbabwe criticised as an insufficient approach to mobilising the finances needed to meet biodiversity targets. Despite the calls for a broader biodiversity fund, the Global Norths, including the EU, Switzerland, Canada, Norway, New Zealand, Japan, and Australia, opposed (see also here) the creation of a new catch-all fund. A new fund does not mean that it will have money. Paragraph 19 of the draft decision on resource mobilisation proposed establishing such a fund by the end of 2030, but the decision failed to pass due to a lack of quorum. This shows how multilateral negotiations regarding financial commitments will always remain a contested issue between the Global Norths and Souths.

Another critical issue is that the world’s most biodiverse ecosystems are primarily located in the Global Souths, which require substantial funding to effectively protect and restore their natural resources. Despite this, COP16 did not address the reduction of nature-harming subsidies, which is essential to reversing biodiversity loss.

Outlook to the Future

Despite notable achievements at COP16—such as the creation of the “Cali Fund” for DSI, and increased involvement of Indigenous Peoples, including those of African descent—COP16 failed to address the critical issue of securing sufficient financial support from the Global Norths to the Global Souths for biodiversity restoration projects. Robust funding mechanisms remain crucial for achieving global biodiversity goals, but international environmental law continues to face challenges in this regard, particularly due to the divide between the Global Souths and Norths, the limitations of international law obligations to States rather than corporate actors from the Global Norths, and the complexities of multilateralism.

On a positive note, the enhanced recognition of Indigenous Peoples’ rights at CBD COP16 may influence broader discussions on ensuring the centering of Indigenous voices climate change and desertification mitigation and adaptation efforts at the UNFCCC and CCD COPs, potentially leading to more inclusive decision-making and effective policy implementation. Additionally, the “Cali Fund” could inspire similar innovative financing mechanisms for climate and sustainable land management initiatives.

However, the struggle to secure adequate financing for biodiversity conservation at CBD COP16 reflects broader issues in climate and desertification funding. The persistent Global North-South divide remains a significant obstacle, with developing countries often shouldering the impacts of environmental degradation while lacking the necessary resources for effective action. The voluntary contributions to the “Cali Fund” also raise concerns about its long-term sustainability and impact.

In conclusion, the outcomes of CBD COP16 offer both opportunities and challenges for UNFCCC COP29 and CCD COP16. If the “Rio Trio” is to succeed in 2024, it is essential to learn from the successes and failures of CBD COP16, strengthen international cooperation, and prioritize equitable financing and Indigenous participation.