New Technologies in International Law / Tymofeyeva, Crhák et al.

issued “ A Guide to the Convention on Biological Diversity ” (1994), where we can find the proof for the previous sentence. It can be found in paragraph 1 274 of Article 16 of CBD, and the commentary to this paragraph, which states: “Developed countries were particularly fearful of language which might be interpreted as requiring them in any way to force their private sectors to transfer technology (including biotechnology). […] “ Paragraph 1 sets the obligation for each Contracting Party to undertake “to provide and/or facilitate access for and transfer to other Contracting Parties” of: 1. technologies relevant to the conservation of biological diversity; 2. technologies relevant to the sustainable use of its components; or 3. technologies that make use of genetic resources. These technologies must not cause significant damage to the environment.” 275 In conclusion, CBD recognizes an obligation of the contracting parties to provide and/or facilitate access for and transfer to other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological diversity (unfortunately, CBD deals solely with biotech). These technologies must not cause significant damage to the environment – that is mostly the case with biotechnology. However, CBD does not elaborate on what the “significant damage” is, or to be more accurate, what is the threshold to classify damage as significant. Contracting parties have obligations to provide (or facilitate) access for and transfer to the other parties of technologies relevant to biodiversity protection – especially towards the developing countries. The huge financial difference between “north and south” countries was one of the drivers during the negotiations of CBD. Unfortunately, it still did not change. We are detecting more and more rapid decline in biodiversity, while most of the “megadiverse” locations are in developing countries. It seems technology transfer and financial mechanisms regulated by CBD are not quite effective. It is a simple fact, and even CBD contracting parties and specific bodies realize that. In the decision of the Conference of contracting parties from December 2022 is stated (although in a more general sense, not just technological one) that “the lack of adequate means of implementation has been a persistent obstacle to the implementation of the Convention and of the Strategic Plan for Biodiversity 2011–2020 in developing country Parties, thus highlighting the need for enhanced international cooperation.” 276 Also, there is a specific goal in Kunming-Montreal Global biodiversity framework from 2022, based on which “adequate means of implementation, including financial resources, capacity-building, technical and scientific cooperation, and access to and transfer of technology to fully implement the Kunming-Montreal global biodiversity 274 „Each Contracting Party, recognizing that technology includes biotechnology, and that both access to and transfer of technology among Contracting Parties are essential elements for the attainment of the objectives of this Convention, undertakes subject to the provisions of this Article to provide and/or facilitate access for and transfer to other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment.“ 275 Glowka L, Burhenne-Guilmin F et al, A Guide to the Convention on Biological Diversity (IUCN, 1994), p. 84. 276 Decision adopted by the Conference of the Parties to the Convention on Biological Diversity (CBD/ COP/DEC/15/3) accessed 19 December 2022.

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