Basic issues in international environmental law - Introduction to International Environmental Law - page 12

embodying traditional lifestyles relevant for the conservation and sustainable
use of biological diversity and promote their wider application with the
approval and involvement of the holders of such knowledge, innovations
and practices and encourage the equitable sharing of the benefi ts arising from
the utilization of such knowledge, innovations and practices.
The Convention on Biological Diversity is now binding almost all over the
world as almost all of the world's states are parties - but this is at the expense
of its substantive content. The more states that are party to an environmental
treaty, the more the process has to meet their multiple and varying demands,
including the demands of those who are opposed to strict environmental regu-
lation. The result of this is that it can become diffi cult to determine exactly
what it is that the negotiating states have actually agreed.
In the case of Article 8 (which concerns the use of indigenous and local
communities' traditional knowledge in promoting biological diversity) it is clear
that the outcome is a result of many confl icting interests, with the result clearly
very much a compromise. For example, each government is obliged to imple-
ment the obligations of this Article (a) as far as possible, (b) as appropriate, and
(c) subject to national legislation. We should, however, note that a specifi c working
group is developing this article in the biological diversity regime. 13 The develop-
ment of Article 8( j) by the working group is a good example of the gradual
developmental process of international environmental regimes in practice: even
vague provisions can be given substantive content in a continuing process with
the collaboration of other actors, such as indigenous representatives, thereby help-
ing national civil servants devise measures to implement a given treaty provision.
How can we ensure states comply with international environmental rules?
After the Cold War in particular, research in international relations has been
increasingly interested in why governments comply with 'promises written on
a piece of paper'. This is due to increased empirical evidence of governments
actually complying with international agreements and the decisions of interna-
tional organizations.
The reality of how environmental treaties are applied is often rather bureau-
cratic. Most environmental treaties are applied in a routine manner; frequently
those that are responsible for their application are unaware that the obligation
actually originated in an environmental treaty at all. This is especially true in
dualist countries where international obligations are internalized in the national
legislation. A local offi cial thinks he or she is applying national environmental
law, whereas it is in fact a regulation in an international environmental treaty
that has been incorporated into domestic environmental law. In the case of an
EU member state, the process of application of a certain legal obligation from
an environmental treaty is very long and complex. The EU itself is often the
party (together with its member states) to an environmental treaty. The EU