The management on diversity is currently provided for under a number of international frameworks. The frameworks have not been adopted in every place in Kenya but they provide the basis for assessing the law as it pertains in Kenya.
Frameworks for the Management of Biological Diversity:
Internationally the management of diversity has a history dating back to the 70s and that history indicates that the management of biological diversity on the whole has been sectoral in nature. It has focussed on managing bio-diversity through the regulation of specific aspects of biological diversity. An early convention is the Convention on International Trade in Endangered Species known as CITES. CITES was adopted in 1974 in Washington DC. It focuses on regulating cross-border trade on species which are in danger of extinction. The degree of threat of extinction determines the extent of regulation required. The convention therefore establishes 3 appendices
Appendix 1 – this is a list of plant and animals that are in imminent danger of extinction. With regard to plants and animals that are listed in Appendix 1, International Trade is absolutely prohibited. For Kenya this particular convention is significant because the African Elephant and the Black Rhino have been listed on Appendix 1. They are listed on Appendix 1 because of the threat of extinction that they have faced primarily in Kenya. With regard to the African Elephant what is traded internationally is the task and with regard to the Black Rhino what is traded internationally is the horn in both cases the animal is killed either for its task or its horn. The banning of international trade by listing of these animals is implemented in Kenya by a prohibition on the hunting of either of these animals.
Appendix 2 - this is a list of items which are not in imminent danger of extinction but which are facing a threat. Items listed here can be traded internationally if there is consent by the exporting country and by the importing country. Therefore countries are required to have a licensing system to facilitate international trade. If one turns up at an Airport with item under Appendix 2 likes lets say a crocodile skin, you are not immediately locked up but they will demand a licence. With consent of either
Appendix 3- These items are not in danger and may be traded with the permission of the exporting country alone. The mechanism of CITES is to protect Biological Diversity through regulating international trade.
The second Convention is the Ramsar Convention. This is a 1971 Convention, Ramsar is a city in Iran. It is a convention on Wetlands of International importance as Waterfowl Habitat. This is an important convention for the protection of biological diversity because it establishes another principle for protection of biological diversity. It requires that countries should designate at least one wetland which internationally is important as habitat for waterfowl. Waterfowl move from one wetland to another (migrate) so in one season you find them in a wetland in warm climate and in the cold season you find them in a wetland in cold climate. The principle of protection of biodiversity in this case is the protection of the Habitat of that biodiversity. Kenya has so far designated two wetlands Lake Nakuru and Lake Naivasha and is in the process of designating Lake Bogoria. All of these wetlands are designated because of the Flamingo.
The third convention is the CMS – Convention on Migratory Species which a 1978 Bonn Convention. This convention also establishes a principle that countries which are known as range states must establish management frameworks and standards which are similar on either side of the border. Range States are countries through which, to which or from which migratory species will migrate. For example the Wilderbeest the Range States and Kenya and Tanzania. Range states must have comparable standards.
There are other many conventions but our focus is on National Law.
All this instruments regulated biological diversity through one or other aspect or biological diversity. It because quite clear that single issue regulation for biological diversity was not appropriate. In 1992 the Convention on Biological Diversity was adopted in Rio De Janeiro in Brazil. It establishes a comprehensive framework for the management of Biological Diversity.
Firstly the convention provides a definition of biological diversity. Basically it defines biological diversity as the variability among living organisms and the ecological complexes of which they are a part. This includes diversity within species, between species and of eco-systems. The focus is on variability. Biological Diversity is the difference between living organisms and among different organisms. In effect biological diversity is a concept, it is an idea that living organisms are different. They are different as species, there is a difference within the species and among the species in different ecologies. In ecological complexes, there is different kinds of habitat that exist in the earth i.e. water habitats, terrestrial. These Habitats have difference and all of that or the idea of that difference is what comprises biological diversity. This convention is designed to provide systems for managing that diversity. Biological Diversity is basically the difference in life forms and in the ecology and the convention sets out to provide mechanisms for managing that difference.
The convention has one fundamental philosophical premise that philosophical premise is that biological diversity is necessary in and of itself. It is inherently desirable. This means that one does not have to find justification for preserving diversity in the benefits of diversity to humans. The convention takes the position that difference must be maintained and therefore the loss of diversity is considered negative environmental management, the conservation of diversity is considered positive environmental management. According to this convention, if the world loses the black rhino for example, it will be a worse off place for the loss. Every kind of diversity deserves to continue to live. The point is that one does not have to argue that humans will be worse of if they lose the Rhino or the Mosquito but the Rhino and the Mosquito must exist period. diversity must exist.
The convention therefore puts in place a number of requirements for state parties to comply with
1. State Parties must identify the biological diversity within their jurisdiction and inventorise it;
2. State parties must put into place measures to identify the threats to biological diversity;
3. Biological Diversity must be managed in situ, this means managing biological diversity in its natural place of origin. the management of biological diversity in situ requires the establishment of systems and frameworks which allow in situ management e.g. is the system of protected areas which are known to us as national parts and game reserves. In situ management is required by all where there is diversity of biological diversity. With respect to biological diversity which are in danger of extinction, states are required to provide for management ex situ. Management ex situ is management off site of species and it is within these off site arrangements, representative samples of biological diversity must be maintained. This means that assuming keeps snake in a snake park, then one must keep the different kinds of snakes that exists in Kenya, the idea being that there must be diversity. The Kew Garden which is a botanical garden in London that is a representative of every plant that has ever been identified, here you can see the diversity of the plant kingdom.
4. Developments of technology which have an impact on biological diversity – the principle establish in the convention and the protocol which is the Cartagena Protocol which was developed on CBD and this protocol introduces the requirement that with respect to technological developments which have an impact on biological diversity, countries must apply the principle of caution called the precautionary principle. This principle is the principle that in the absence of scientific evidence that the proposed developed development will not have an adverse biological impact on the biological diversity it is necessary to proceed with caution. This principle is applied particularly to developments with respect to genetically modified Organisms (GMOs). Genetic modification is a technique which changes the genetic makeup of an organism in order to influence the characteristics of that organism. The resulting organism is the one called Genetically Modified Organism. Those that support this technique argue that Genetic Modification has significant benefits.
5. The Convention takes the position that biological diversity is common heritage of human kind. Common heritage means that all of humankind has an interest in the existence of biological diversity. The international community has a shared responsibility for the shared biodiversity. The Nation State in which that biological diversity is to be found has the responsibility to provide access to the biological diversity to others. That access will be on terms to be agreed but the responsibility is to provide access. In turn the international community has a shared responsibility for the management of biodiversity. The way in which the access is provided has been quite controversial. Biopiracy is the practice of entities seeking biological resources from other countries and converting those resources to commercial benefits to the detriment of the local people in the place where the resources were found. Biopiracy should be managed by determining terms of access. (A case of Americans using phytoplankton from Lake Bogoria to manufacture detergent). Countries are required to provide financial and technical resources to enable source countries manage their biological diversity. The regime for managing biological diversity today is premised on the philosophy that biological diversity must be preserved for its own sake preferably it must be preserved on site through the protection of habitat failing which it must be preserved off-site and that it is a shared responsibility of all countries to ensure the preservation of bio diversity.