Reproduced, with permission, from:

INTERNATIONAL FUNDING FOR THE CONSERVATION OF BIOLOGICAL DIVERSITY: CONVENTION ON BIOLOGICAL DIVERSITY

PART TWO: CONVENTION ON BIOLOGICAL DIVERSITY

A. Introduction

Pursuant to UNEP Governing Council decision 14/26, the Ad Hoc Working Group of Experts on Biological Diversity was established and held three sessions between November 1988 and July 1990. On the basis of the final report of the Ad Hoc Working Group of Experts, the Council, by decision 15/34, established the Ad Hoc Working Group of Legal and Technical Experts with a mandate to negotiate an international legal instrument for the conservation and rational use of biological diversity. The Ad Hoc Working Group held two negotiating sessions in Nairobi, in November 1990 and in February/March 1991. By decision 16/42 of May 31, 1991, the Governing Council renamed the Ad Hoc Working Group of Legal and Technical Experts on Biological Diversity the "Intergovernmental Negotiating Committee (INC) for a Convention on Biological Diversity," which held the following meetings: the third negotiating session/first session of INC, in Madrid from June 24, 1991 to July 3, 1991; the fourth negotiating session/second session of INC, in Nairobi from September 23, 1991 to October 2, 1991; the fifth negotiating session/third session of INC, in Geneva from November 25, 1991 to December 4, 1991; the sixth negotiating session/fourth session of INC, in Nairobi from February 6, 1992 to February 9, 1992; and the seventh negotiating session/fifth and final session of INC was held at the headquarters of UNEP in Nairobi, from May 11, 1992 to May 22, 1992.(48) The Convention was opened for signature at Rio de Janeiro from June 5, 1992 to June 14, 1992 and at United Nations Headquarters in New York from June l5, 1992 to June 4, 1993.(49) As of July, 1992, there were 158 signatories to the Convention.(50) Of course, the most noted non-signatory as of the end of UNCED was the United States of America.(51)

B. Background to Funding Provisions

The funding provisions of the Convention were, from the outset, a major area of contention for INC.(52) The delegates, however, had as the basis of their negotiations, several important notions about the general concept and goals of the financing provisions. General Assembly resolution 44/228, establishing UNCED, stated that it was

[t]aking note further of Economic and Social Council resolution 1989/101 of 27 July 1989 on strengthening international cooperation on the environment through the provision of additional financial resources to developing countries [as well as] recognizing that new and additional financial resources will have to be channelled to developing countries in order to ensure their full participation in global efforts for environmental protection" in its decision to convene UNCED.(53)

The General assembly went on to assign to the Conference the following objectives, among others:

(j) To identify ways and means of providing new and additional financial resources, particularly to developing countries, for environmentally sound development programs and projects in accordance with national development objectives, priorities and plans and to consider ways of effectively monitoring the provision of such new and additional financial resources, particularly developing countries, so as to enable the international community to take further appropriate action on the basis of accurate and reliable data;

(k) To identify ways and means of providing additional financial resources for measures directed towards solving major environmental problems of global concern and especially of supporting those countries, in particular developing countries, for which the implementation of such measures would entail a special or abnormal burden, owing, in particular, to their lack of financial resources, expertise or technical capacity;

(I) To consider various funding mechanisms, including voluntary ones, and to examine the possibility of a special international fund and other innovative approaches with a view to ensuring, on a favourable basis, the most effective and expeditious transfer of environmentally sound technologies to developing countries.(54)

Thus, from the outset, the negotiators had as their basis General Assembly Resolution 44/228 which called for the provision of "new and additional" financial resources for developing country nations and the identification or creation of a mechanism by which to provide the funding to developing nations.

C. Evolution of the Funding Articles

The appendices to this paper reproduce the text of the funding provisions as they evolved in the negotiation process. At the outset, the significant amount of bracketed text in the early versions of the financing articles should be noted. The bracketed text indicates the INC does not agree on the phraseology of the particular provision in the treaty.(55) This section of the paper analyzes the development of the final form of the financial resources and financing mechanism articles, respectively.

1. First Session of the Ad Hoc Working Group of Legal and Technical Experts on Biological Diversity: Nairobi: November 19-23, 1990.

At this session the negotiators from various countries provided suggestions on different aspects of the proposed Convention. The INC delegation from Burkina Faso indicated that it believed the use and cost of use of biological diversity should be agreed upon between partners in bilateral agreements, rather than standards applicable across the board.(56) The Chilean delegation believed that "[i]t is unacceptable for firms to observe general conservation norms within their country of origin and to apply other principles and standards outside."(57) The Chilean delegation was addressing the problem of transnational corporations.

The Indian delegation proposed the inclusion of the following ideas in the financial resources and financing mechanism articles:

(ii) The additional burden on developing countries arising out of their protection of their biological diversity should be met by new and additional funding to be provided by the developed countries through a new multilateral fund to be set up under the convention;

(v) Funding for developing countries should be "adequate, new and additional"; and

(vi) In the convention there must be equal clarity about and emphasis on the rights and obligations of developing countries. The special situation of developing countries should be recognized in all relevant provisions of the convention in order to ensure a clear distinction between the obligations and responsibilities of developing countries and those of developed countries.(58)

As will be seen later, the Indian delegation suggestions were incorporated in part in the final form of the funding articles.

The delegations from Malawi and Malaysia argued that States benefitting most from biological diversity should bear the main responsibility for the cost of conserving it.(59) This notion is consistent with General Resolution 44/228 and the Indian delegation suggestions, both of which specifically recognize the special circumstances of developing country nations. The Malaysian delegation further proposed that:

[t]hose who are conserving biological diversity for the benefit of mankind should receive fair and reasonable compensation. The obligation of developed countries to provide technical and financial assistance to developing countries to achieve the goals of conservation and sustainable use of biological diversity resources should be included. [Malaysia] [a]grees that there should be a new funding mechanism to help developing countries.(60)

The Brazilian delegation highlighted the need for "additional, new and appropriate funds and innovative financial mechanisms in order to meet the special needs of developing countries in addressing their priorities in developing and absorbing relevant technologies."(61) The Brazilian proposal was for "additional, new and appropriate" funds as opposed to the Indian delegation's call for "new and additional" funding. The inclusion of the word "appropriate" presumably indicated a desire for a specific level of funding as opposed to generally increased funding. The Tanzanian delegation, on the other hand, called for "new and adequate financial . . . support" and the creation of an "[o]bligation to compensate for areas set aside to conserve biological diversity."(62)

The delegation from Ecuador went further than the Tanzanian proposal and stated that the effectiveness of the convention depends on the inclusion of measures allowing access to financial support from the international community.(63) Along this line of argument, the delegation from Thailand stated that the Convention could not be obligatory without the provision of financial resources to developing countries as the cost of implementing biological diversity preservation activities far exceeds financial resources currently available for developing countries.(64)

2. Second Session of the Ad Hoc Working Group of Legal and Technical Experts on Biological Diversity: Nairobi, February 25, 1991 - March 6, 1991.

Between the first and second sessions of the Ad Hoc Working group, the Governing Council of UNEP met and adopted decision GCSS II/5 which urged the Executive Director (Dr. Mostafa K. Tolba of Kenya) to "accord high priority to the work on biological diversity...with a view to arriving at an international legal instrument for the conservation and rational use of biological diversity within a broad socio-economic context, taking particular account of the need to share costs and benefits between developed and developing countries and ways and means to support innovation by local people."(65)

Dr. Tolba addressed the Ad Hoc Working Group on the first day of their negotiations at the second session. Dr. Tolba emphasized that "the draft convention must contain concrete and binding commitments to funding." He recognized that "the costs [of conserving and rationally using the biological resources] involved were enormous," but he cautioned that "it had to be borne in mind that the cost of inaction would be far greater."(66)

The Sub-Working Group assigned the task of negotiating the financing articles began generally discussing the possible means to achieve the objectives of providing financial resources to developing countries so that they may undertake measures at the national level to conserve biological diversity. The Sub-Working Group noted at the outset that a "convention without firm commitments to funding to meet incremental costs likely to arise from conservation of biodiversity by developing countries would be meaningless."(67) The INC Sub-Working group agreed that funding should "realistically provide for the transfer of resources and allow for the implementation of the convention by developing countries."(68) The Sub-Working group, however, could not agree whether the institutional mechanism to provide for the funds transfer should be a single institution or multiple institutions. In this regard, some of the delegations desired that the convention contain a detailed and concrete plan for an institution, rather than leaving such decisions for later protocols.(69) Finally, several delegations proposed that the GEF could either provide such an institutional mechanism or a model for such an institution.(70)

3. Third Session of the Intergovernmental Negotiating Committee for a Convention on Biological Diversity: Madrid, June 24, 1991 - July 3, 1991.

Between the second and third meetings of the delegations, the Governing Council, by its decision 16/42 of May 31, 1991, renamed the Ad Hoc Working Group of Legal and Technical Experts on Biological Diversity the "Intergovernmental Negotiating Committee for a Convention on Biological Diversity."(71) It was at this third negotiating session that the delegates first had a draft convention based on the discussions at the prior two negotiating sessions.(72) The text of Article 18, "Financial Needs and Means" and Article 19, "Financial Mechanisms" is included in Appendix One.

At this stage the negotiators had not yet decided on the phraseology which Article 18, "Financial Means and Needs," would contain. Such language would establish the developed country's obligation to provide financial resources to developing countries. Proposed paragraphs two and three create substantially different funding relationships between the parties. Proposed paragraph two would make fulfillment of the treaty obligations by the developing countries contingent on the provision of financial resources by developed country treaty-parties. Proposed paragraph three, on the other hand, would require developed countries to provide financial resources. Presumably, proposed paragraph three would not permit a developing country party to claim insufficient provision of financial resources as an excuse for breaching their treaty obligations, whereas, proposed paragraph two explicitly provides that any obligations of developing countries are directly contingent upon the provision of resources. Proposed paragraph two decidedly favors developing countries, while proposed paragraph three has a more neutral effect. In proposed paragraph three neither developing nor developed nations are given an explicit opportunity to disavow treaty obligations.

Also, there was not yet agreement as to the language indicating the amount of financial resources. The parties had not agreed on whether the language would be "new and additional" (as in General Assembly Resolution 44/228(73)) or "adequate, new and additional." The controversy over whether to include the word "adequate" stems from the implications that the word "adequate" identifies a general level of financial resources.(74) "New and [a]dditional" funding refers to concerns that developed country parties, in fulfillment of their obligations under the treaty, will reduce other sources of aid and, without increasing the total amount of assistance, merely label aid as "aid in fulfillment of obligations pursuant to the Convention." It was important to UNEP and INC that such a diversion not occur.(75)

In regards to the institutional mechanism to transfer the funds from developed countries to developing countries, Article 19 "Financial Mechanisms," contained three alternatives at this point in the negotiations. The first alternative merely stated that the Contracting Parties would establish such a mechanism, not stating specific parameters. The second alternative was to establish a multilateral trust fund for the conservation and sustainable use of biological diversity.(76) The third alternative was to consider cooperative arrangements with existing funding sources, in effect, piggybacking the funding for biological diversity on these existing funding mechanisms.

The INC had also not yet decided the mechanism through which the details of the financial mechanism should be decided, either at the first meeting of the parties or through a special protocol to the convention. These are generally the two means to specify country obligations in framework conventions.(77)

Paragraph three of Article 19 illustrates that the negotiators had not yet agreed upon the implications of the biological diversity convention on existing financial institutions. Although paragraph four illustrates that the negotiators had agreed that the special needs of developing countries must be considered, they had not agreed whether to generally include such language or specifically refer to the sources and uses of such financial assistance. Again, there seems to be tension within INC between drafting the funding provisions with specific language or general language regarding treaty-party obligations.

4. Fourth Session of the Intergovernmental Negotiating Committee for a Convention on Biological Diversity: Nairobi, September 23, 1991--October 2, 1991.

The most important advancement regarding the financing articles at the fourth session was the discussion of the cost estimates of implementing programs for conservation and sustainable use of biological resources. Dr. Mostafa K. Tolba addressed the negotiators at the first day of the negotiating session and informed INC that the World Bank had estimated that the cost of biodiversity conservation ranged from $500 million to $50 billion per year.(78) These figures were based on the experience which the GEF had in biological diversity conservation projects.(79) The GEF biological diversity conservation projects cost approximately $35,000 per square kilometer.(80)

5. Fifth Session of the Intergovernmental Negotiating Committee for a Convention on Biological Diversity: Geneva, November 25, 1991--December 4, 1991.

The negotiators had before them at this meeting the latest version of the financing provisions. The text of the articles at this point is reproduced in Appendix Two.

The text of Article 18, "Financial Resources," was prepared by a Sub-Working group.(81) The remarkable aspect of this version of the Article is that neither Alternative One nor Alternative Two for paragraph two contain language conditioning developing countries undertaking obligations under the treaty on their receipt of financial resources. This omission resulted, in part, from the general trend during the negotiation of the treaty to water down the obligations of the Contracting Parties as specified in the treaty and to delay the details of the obligations to later protocols and meetings of the Conference of the Parties.(82) Alternative One, the stronger of the two versions, provides that only developed country parties "commit...to provide adequate new and additional" financial resources. Alternative Two, proposed by the United Kingdom and modified by the United States, provides that all contracting parties, "and in particular developed countries," shall "undertake to provide" resources to achieve either the general objectives of the convention or the specific obligations under the treaty. The difference between Alternatives One and Two is subtle. Alternative One is stronger in the sense of mandating that developed countries provide resources. Alternative Two, on the other hand, merely requires all contracting parties, and in particular developed countries, to undertake to provide resources. Committing oneself to provide implies a greater obligation than merely "undertaking to provide."

Article 19, "Funding Mechanism," contained two rather different alternatives. The text was based on an informal Sub-Working group and a United Kingdom proposal with modification by Mexico.(83) Alternative One creates much more significant obligations on the part of developed nations to contribute to the mechanism. Such language as "[c]ontributions to the fund shall be mandatory" creates significant obligations on the part of developed nations to provide funding. Alternative Two, (84) on the other hand, merely provides that "contributions shall be assessed according to . . . [a] formula."

Regarding the institution which will administer the fund, the two alternatives are also quite different. Alternative One specifically creates a fund, presumably to be similar to the Green Fund proposed by the People's Republic of China.(85) Alternative Two is less specific about the particular mechanism, but does make mention of the GEF as an option. Of interest regarding both proposals, neither specifies in any detail the administrative particulars of a funding mechanism or institution. Both proposals leave such institutional details to the Conference of the Parties.

6. Sixth Session of the Intergovernmental Negotiating Committee for a Convention on Biological Diversity: Nairobi, February 6, 1992--February 15, 1992.

At this point the Working Group II, in charge of negotiating the financial aspects of the Convention, had not yet finalized the treaty language. The Chairman of the INC, Mr. Sanchez (Chile), pointed this out to the delegates and implored them to complete the treaty in time for UNCED on June 5, 1992.(86) The most notable development of this session was that the United Kingdom withdrew its proposal for Alternative Two for paragraph three of Article 18, "Financial Resources," and its proposed Alternative Two for paragraphs one, two, and three in Article 19, "Financial Mechanisms."(87)

7. Seventh Session of the Intergovernmental Negotiating Committee for a Convention on Biological Diversity: Nairobi, May 11, 1992 May 22, 1992.

At this, the seventh and final negotiating session, the Committee was able to resolve the conflicts in textual content and finalized a Convention to be opened for signature at UNCED on June 5, 1992.(88)

The text of Article 20 [see Appendix Three for text], "Financial Resources," appeared quite differently than it had in previous drafts. Paragraph one contains a watered-down obligation to provide funds. Not only does it apply to all Contracting Parties, but also it provides that in "undertaking to provide" resources, Contracting parties may consider their capabilities to so provide funds. While a reasonable means to provide funding for developing nations reflecting donor nation unwillingness to be bound to open-ended funding requirements,(89) it certainly is a departure from "mandatory" language included in prior drafts of the Article.

Paragraph two of Article 20 uses "new and additional" to describe the general level of funding which developed nations (or nations which are changing to a market economy which choose to be treated as developed nations) will provide to developing countries. As discussed above, the exclusion of the word "adequate" indicates the treaty parties unwillingness to establish the level of funding with respect to some standard of "adequacy." The developed nations generally did not want to obligate themselves to provide funding at a level adequate to implement the obligations and objectives of the treaty.(90) Additionally, paragraph two explicitly states that the use of the funds shall be agreed upon by the institutional mechanism and the developing nation. The exclusion of reference to the developed-nation donor concerned many developed nations.(91) In response to this concern, the United Kingdom proposed a side-interpretation that any agreement would require consensus for any actions taken by the signatory parties, in effect providing a veto power to any country disagreeing with a proposal.(92)

Paragraph three of Article 20 encourages the use of other financing mechanisms as alternatives are available. Paragraph four only provides that the extent of developing nation implementation shall depend on the financial resources provided by developed nations. Instead of creating an obligation, this paragraph merely states a truism. Paragraphs five through seven require special consideration of the specific needs of developing nations, small island states, and nations within environmentally vulnerable zones.

Article 21 [see Appendix Three for text], "Financial Mechanism," provides a general outline for the type of institution envisioned by the Contracting Parties. Remarkable about paragraph one is that it refers to "the contributions" and that "voluntary contributions" may be made. There is no mention of mandatory contributions by developed nations, consistent with Article 20. Also, the "contributions shall be such as to take into account the need for "predictability, adequacy, and timely flow of funds." For such funding programs to be successful, the aid recipient must be able to rely on the funding over a substantial time horizon.(93) Finally, the mechanism "shall operate within a democratic and transparent system of governance," compensating for developing countries frequent complaint that international lending organizations often operate in a secretive manner.(94)

Paragraphs two and three of Article 21 specifically provide that details for the administration and composition of the institutional mechanism shall be decided at the first Conference of the Parties. Finally, paragraph four requests that the parties consider strengthening existing financial institutions.

A remarkable point about the funding provisions in general is a heretofore undiscussed article. Article 21 specifically provides that the GEF shall be the interim financial mechanism to function as the institutional mechanism referred to in Article 39. The GEF is discussed below.

Upon completion of the Seventh Plenary meeting of the INC, after completing the Convention, the heads of several delegations addressed the Committee. The Australian delegate stated that this document represents a very delicate political compromise. Because of the need to find those compromises, some of the resulting language is less than ideal from some points of view ....As to the complex financial provisions, these will have to be carefully examined and implemented in a way which requests the rights of members of other organizations with which the Conference of the Parties established by this Convention will deal and of the organizations themselves.(95)

In this regard, the Japanese delegate stated that "[t]he basic principle of the financial mechanism under this Convention is that the Conference of the Parties determine the policy, strategy, programme priorities and eligibility criteria and the institutional structure of the administration."(96)

Given the weaknesses of the treaty in general and the financing provisions in particular, the Nigerian Committee member was able to offer a positive comment on the Convention: "We believe that the Biodiversity Convention is a vital step that we must take on the road to preserving the world's ecosystem. It is our hope that all nations shall endeavor to play their part in the cause of conserving biodiversity for the benefit of mankind."(97)

PART THREE: THE GLOBAL ENVIRONMENTAL FACILITY

The Contracting parties provided in Article 39 that:

Provided that it has been fully restructured in accordance with the requirements of Article 21, the Global Environmental Facility of the United Nations Development Programme, United Nations Environment Programme and the International Bank for Reconstruction and Development [the World Bank] shall be the institutional structure referred to in Article 21 on an interim basis, for the period between the entry into force of this Convention and the first meeting of the Conference of the Parties or until the Conference of the Parties decides which institutional structure will be designated in accordance with Article 21.(98)

Thus the Contracting Parties have selected the GEF as the interim financial institution. This selection is significant in that it demonstrates the Contracting Parties' willingness, in the short run at least, to allow the current financing mechanism to act as the institution envisioned by the Convention. Although Article 39 specifically states that the GEF is the financing institution on an "interim basis," it is well known that, through design or inertia, "interim" measures quite often become "final" measures. This common phenomena did not escape the notice of the Malaysian delegation, which stated:

The Malaysian delegation always maintained that we do not see any role for the GEF in this Convention. It has always been our clear position that the Convention should have its own specific funds, called the Biological Diversity Fund. In view of that, we wish to express our reservations in the strongest terms that the GEF has been accepted into the draft Convention, even on an interim basis. As we all know, in spite of our best efforts and intentions, these interim measures have the habit of becoming permanent features.(99)

Of course, the validity of the Malaysian reservation is questionable considering Article 37 which provides that "[n]o reservations may be made to this Convention."(100) Nevertheless, the Malaysian "reservation" does indicate developing country dissatisfaction with the selection of the GEF.

The GEF is a pilot program under which "grants or concessional loans will be provided to developing countries to help them implement programs that protect the global environment."(101) The GEF operates in the following four areas: (1) Protection of the Ozone Layer; (2) Limiting Emissions of Greenhouse Gasses; (3) Protection of Biological diversity; and (4) Protection of International Waters.(102)

In the general area of protecting the Ozone layer (which is deteriorated, in part, by chlorofluorocarbon (CFC) emissions), the GEF will assist developing countries in shifting from the use and production of CFCs to available substitutes and alternatives.(103) In the general area of limiting emissions of greenhouse gasses, the GEF will support developing countries in the adoption of cleaner fuels and technologies; retrofitting in the power, mining, and industry sectors; and reforesting and managing existing forest resources on a sustainable basis.(104) In the area of protecting biological diversity, the GEF will support the efforts of developing countries to take specific actions to protect biological diversity.(105) Finally, in the area of protecting international waters, the GEF will "support programs to enhance contingency planning for marine oil spills; to abate industrial and wastewater pollution that affects international marine and freshwater resources; to improve reception facilities for deballasting in ports of developing countries; [and] to prevent and clean up toxic waste pollution along major rivers which affect international water courses...."(106)

At the September 1989 meeting of the Development Committee of the International Bank for Reconstruction and Development (the World Bank), the World Bank was asked to "assess the requirements for additional funding, and the potential interest from donors in supporting actions to address global environmental concerns in developing countries."(107) At this September 1989 meeting, the French and German governments presented a proposal outlining the general contours of the GEF.(108)

At further meetings in June and September 1990, donor countries (Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Italy, Japan, The Netherlands, Norway, Spain, Sweden, Switzerland, United Kingdom, United States, and New Zealand) and developing countries (Brazil, China, Cote d'Ivoire, India, Mexico, Morocco, and Zimbabwe), reached broad agreement on several parameters. These parameters are:

1. Type of Project: The GEF should support programs and activities which would benefit the world, the cost of which would be borne by the host country, and would not otherwise be supported by existing development assistance or environment programs.

2. Nature of Funding: Considering the nature of projects supported by GEF, funding should be on grant or highly concessional terms.

3. Relationship of GEF Funding to other Aid: GEF funding should be additional to existing aid flows.

4. Source of funding: The source of funds for the GEF should be from a broad-based multilateral group of donors.

5. Administration of GEF: Programs funded through the GEF should be implemented through a tripartite arrangement between United Nations Environment Programme (UNEP), United Nations Development Programme (UNDP), and the World Bank (Bank).

6. Allocation of funds: The GEF would be designed to accommodate contributions in the form of co-financing if provided on highly concessional terms, untied, and for the same regions and countries as the core funding allocation.

7. Timing: The GEF should be established quickly in order to obtain experience which will be helpful to the preparation process for the United Nations Conference on Environment and Development (UNCED) in 1992. Also, the GEF was to be a three year pilot program, completing at the end of calendar year 1993.

8. Size of Fund: Initially, at least SDR 1 billion.(109)

The GEF, then, is actually an "administrative mechanism for a wide range of environmental financing operations to be housed at the World Bank."(110) Each of the three partners, UNEP, UNDP, and The Bank, provides unique skills for the operation of the GEF.

UNEP, since its creation in 1972, has developed expertise in helping developing countries identify their needs regarding environmental concerns, educating world leaders on the technologies available for various environmental concerns, and bringing together nations to identify and create framework conventions to solve major world environmental problems (e.g. Vienna Convention For The Protection of The Ozone Layer, and the Montreal Protocol On Substances That Deplete The Ozone Layer).(111) UNDP has significant experience in technical assistance coupled with a network of field offices at the country level which will serve as a focal point for the preparation and implementation of country-specific projects.(112) The Bank, as the largest source of support for development projects, has experience in developing cost-effective approaches to project design and implementation as well as analysis of national policy with a view to implement projects consistent with that policy.(113)

Not including any mechanism created by Article 39 of the Convention, there are two funding operations administered by the GEF. The first is the Ozone Layer Protection Trust Fund (OTF), established by the Montreal Protocol on Substances that Deplete the Ozone Layer.(114) The OTF, an approximately $160 million Interim Multilateral Fund, is to be used exclusively for purposes delineated under the Vienna Convention and the Montreal Protocol.(115) The second fund administered by GEF is the Global Environment Trust Fund (GET).(116) GET is the funding mechanism for limiting greenhouse gas emissions, protecting biological diversity, and protecting international waterways.(117)

The eighteen developed countries and seven developing countries listed above decided, initially, that developing countries with UNDP programs (per capita GDP at or below $4,000(118)) would be eligible for GEF funding for investment projects, and therefore qualify for the full range of support services accompanying such funding.(119) The GEF broadly categorizes projects into three types.

The first type of project is economically viable (acceptable rate of return considering cost of capital) "on the basis of domestic benefits and costs to the country itself."(120) Only under the most unusual circumstances would such a project receive GEF funding.

The second type of investment is not economically viable if the full costs are borne by the implementing country. However, if this project offsets a portion of its costs with concessional financing, this would sufficiently raise the project's rate of return and such a project would be eligible for consideration for GEF financing.(121)

The third type of project is justified on the basis of costs and benefits to the implementing country.(122) In this type of project, global benefits could be realized if additional funding were available to expand the project. The costs of the additional funding would be eligible for GEF concessional financing.(123)

Each of the three partners in the GEF--UNEP, UNDP and the Bank-- have distinct responsibilities in the management. UNEP, generally, sets environmental policy guidelines along with monitoring and communicating technological and scientific information.(124) UNDP will couple UNEP environmental policy with development policy and, utilizing its country level representatives, implement the policy through institution building in donor countries at the pre-investment and project identification stages.(125) The Bank will act as the Trust Fund Administrator, overseeing daily operations of the Fund.(126)

Article 39 designates the GEF as the interim institutional structure referred to in Article 21.(127) This designation is contingent on the GEF being "fully restructured in accordance with the requirements of Article 21."(128) In response to this mandate for restructuring, the Bank has undertaken a major program, entitled "Beyond the Pilot Phase."(129) The GEF noted that "[i]t is important to begin the process of moving the GEF 'beyond the pilot phase' in a timely manner, building upon experience with the 'pilot' to date as well as proven institutional structures, namely the partnership among UNDP, UNEP, and the World Bank."(130)

The restructured GEF has as its underlying principles the following:

1. Provide additional grant and concessional funding of the agreed incremental costs;

2. Finance activities which benefit the global environment and make land degradation issues, especially desertification concerning the GEF's four focal areas, eligible for financing;

3. Function as the funding mechanism for agreed global environmental conventions on climate change and biological diversity;

4. Assure the cost-effectiveness of its activities in addressing the targeted global environmental issues;

5. Fund programs and projects which are country driven and consistent with national priorities designed to support sustainable development;

6. Build on proven institutional structures, thus avoiding the creation of new institutions;

7. Be transparent and accountable to contributors and beneficiaries alike;

8. Have sufficient flexibility to introduce modifications as the need arises.(131)

The restructuring of the GEF to fully reflect the above mentioned principles has only begun. It is planned that any proposals for structural changes to the GEF will be completed by the Participant's Meeting in December 1992.(132) The Participants (donor countries and beneficiary countries) to GEF have identified five areas requiring additional study prior to restructuring the GEF: (1) Decision-making; (2) Constituencies; (3) Legal status of the Participants' Assembly (PA); (4) Role of the Scientific and Technical Advisory Panel; and (5) Role of the Secretariat.(133)

The decision making system of the GEF, as can be imagined, is a rather sensitive issue.(134) The Participants endorsed the principle that Participants decide by consensus.(135) The undecided element of the governance mechanism concerned a voting system in the event no consensus is reached.(136) The Participants agreed that a voting system should "guarantee both a balanced and equitable representation of the interests of developing countries as well as give due weight to the funding efforts of donors."(137)

In order that Participant's deliberations not become unmanageable, the GEF recognized that some form of constituency system is necessary.(133) The issue of constituencies is generally considered as sensitive as the voting system.

The Convention presumably will create a binding legal relationship between the Parties to the Convention and the GEF. Therefore, the GEF recognizes that it is important to clarify the terms under which the Participant's Assembly (PA) will operate and the legal relationship between the Convention and the PA.(139)

The Participants have placed a high value on the Scientific and Technical Advisory Panel within the GEF.(140) Article 25 of the Convention also creates a "subsidiary body for the provision of scientific, technical and technological advice...to provide...timely advice relating to the implementation of this Convention."(141) The Participants recognized the need to use terms of reference within the GEF compatible with those of the Convention.(142)

Finally, the Participants have indicated an interest in strengthening the existing secretariat and the services it provides.(143) The Interim and Permanent Secretariat for the Convention will be located in Seville, Spain.(144) Structural mechanisms for coordination between the Convention secretariat and the GEF secretariat will be important for efficient implementing of the mandates of the Convention.

APPENDIX ONE

Article 18. Financial Needs and Means(234)

1. The Contracting Parties, consistent with their capabilities [and their national plans, priorities and programmes] undertake to provide financial support for the conservation and sustainable use of their biological diversity in accordance with Articles [5-12] of the present convention.

[2. Fulfillment by developing countries, Parties to the convention, of the obligations established in Articles [5-12] of the present convention shall be subject to the effective provision of adequate, [new] and additional financial resources and technology transfer [by developed countries] in accordance with Articles [15, 16, 17] and paragraphs [2-6] of this Article.] [paragraph three as an alternative to paragraph two]

[3. The developed countries, Parties to this convention, undertake, in accordance with their capabilities, to provide adequate, new and additional financial resources for the conservation and sustainable use of biological diversity including financial resources to ensure access to and transfer of technology in accordance with Articles 15, 16 and 17 of this convention to enable developing countries Parties to this convention to fulfill the objectives of this convention in accordance with these countries' national priorities.]

4. The Contracting Parties, [in particular][which are] developed countries, have an obligation to provide [genuine][adequate, new] and additional resources on a grant or concessionary basis as appropriate to developing countries Parties to this convention to enable them to cover the agreed incremental cost [in accordance with national legislation and policies] to comply with the provisions contained in the present convention [and to benefit from the provisions of paragraph 6, Article 14.] These financial resources shall be provided according to criteria to be decided upon by the Contracting Parties [at the first meeting of the Conference of the Contracting Parties][inter alia, on the basis of country studies.]

[5. The Contracting Parties shall, on a regular basis and in accordance with national legislation and policies, examine economic incentives which may operate in an efficient and equitable manner to induce changes contributing to the conservation and sustainable use of biological diversity.]

Article 19. Financial Mechanisms(235)

1. The Contracting Parties, pursuant to the objectives of the present convention and taking into consideration the special needs of developing countries, shall [establish a financial mechanism to provide the resources which the Contracting Parties that are developing countries require to meet the agreed incremental costs for complying with the provisions of this convention, access to and transfer of technology referred to in Article 15 and 16 and the benefits of the provisions of paragraph six of Article 14][establish a multilateral trust fund for the conservation and sustainable use of biological diversity][consider the case for co-operative arrangements with existing bilateral and multilateral sources of funding and shall examine the need for a special fund.]

2. The detailed provisions of [the] financial mechanism shall be [decided by the Parties at their first meeting] [the subject of a special protocol to the present convention.]

3. The Contracting Parties shall [strengthen] [also consider the possibility of strengthening] the existing [and consider the creation of new innovative] financial institutions and mechanisms to provide necessary financial resources [to Parties that are developing countries] [for bilateral and multilateral assistance with special emphasis on the needs of developing countries.]

4. The Contracting Parties when considering existing and creating innovative financial institutions and mechanisms shall take into account [that the developing countries require [sustained public sector investments] [assistance by national governments, bilateral donors and international organizations in order to benefit from all relevant technologies including biotechnology, and mitigate negative impacts.] [the special needs of developing countries.]

APPENDIX TWO

Article 18. Financial Resources(236)

1. Each Contracting Party undertakes to provide, in accordance with its capabilities, financial support and incentives in respect of those activities which are intended to [achieve the objectives of this convention] [contribute to the conservation and sustainable use of biological diversity] in accordance with its national plans, priorities and programmes.

Alternative One for paragraph two to replace Alternative Two

2. The Contracting Parties which are developed countries commit themselves to provide adequate new and additional financial resources to enable developing countries to achieve the objectives of this convention. [Developing countries referred to above do not include countries with economies in transition.] (bracketed text proposed by Bulgaria, Czechoslovakia, Poland, Romania and the USSR)

Alternative Two for paragraph two to replace Alternative One

2. The Contracting Parties, and in particular developed countries, undertake to provide [new and additional] financial [and other] resources to meet the agreed incremental costs to developing countries of [achieving the objectives] [fulfilling the obligations under Articles...] of this convention. (proposal by the United Kingdom with modifications by the United States.)

3. The extent to which developing countries are able to [meet the objectives] [fulfill the obligations under Articles...] of this Convention will be subject to the availability of [such] resources [to meet agreed incremental costs.] (basic text by an informal sub-Working Group with modifications by the United Kingdom and the United States.)

Article 19. Financial Mechanisms(237)

Alternative One

[1. There is hereby established a fund, hereinafter called the Biological Diversity Fund, for the achievement of the objectives of the Convention by developing countries. Contributions to the fund shall be mandatory for Contracting Parties which are developed countries according to the formula in Annex...to this Convention. Voluntary contributions may also be made by the developed countries and by other countries and sources.]

[2. The Fund shall be administered [through an agency to be decided by the Conference of the Parties] [in the following manner].]

[3. Pursuant to the objectives of this Convention, the Conference of the Parties at its first meeting shall establish detailed criteria and guidelines for access to and utilization of the Fund, including monitoring and evaluation of such utilization.]

4. The Conference of the Parties shall review the effectiveness of the funding mechanism established under this Article, including the criteria and guidelines referred to in paragraph 3, not less than two years after the entry into force of this Convention and thereafter on a regular basis.

[5. The Contracting Parties shall consider strengthening existing financial institutions to provide financial resources for the conservation and sustainable use of biological diversity.]

Alternative Two (proposal by the United Kingdom with modification by Mexico)

[1. The Contracting Parties, pursuant to the objectives of this Convention and taking into consideration the special needs of developing countries, shall establish a [fund] [financial mechanism] to provide the resources which Contracting Parties that are developing countries require to meet the agreed incremental costs for complying with the provisions of this Convention, access to and transfer of technology referred to in Articles 15 and 16 and the benefits of the provisions of paragraph six of Article 14. Contributions shall be assessed according to the formula in Annex ...to this Convention. Additional Contributions may also be made by developed countries and by other countries and sources.]

[2. The [fund] [financial mechanism] shall be administered [through the evolving Global Environmental Facility] [through a Multilateral Fund for Biological Diversity] [through an agency to be decided by the Conference of the Parties] [in the following manner...].]

[3. Pursuant to the objectives of this Convention, the Conference of the Parties at its first meeting shall [confirm] [establish] criteria and guidelines [set out in Annex...to this Convention] for access to and utilization of the [fund] [financial mechanism], including monitoring and evaluation of such utilization.]

[5. The Contracting Parties shall consider strengthening existing financial institutions to support the [fund] [financial mechanism] established under this Convention.]

APPENDIX THREE

Final Language

Article 20. Financial Resources(238)

1. Each Contracting Party undertakes to provide, in accordance with its capabilities, financial support and incentives in respect of those national activities which are intended to achieve the objectives of this Convention, in accordance with its national plans, priorities and programmes.

2. The developed country Parties shall provide new and additional financial resources to enable developing country Parties to meet the agreed full incremental costs to them of implementing measures which fulfill the obligations of this Convention and to benefit from its provisions and which costs are agreed between a developing country Party and the institutional structure referred to in Article 21, in accordance with policy, strategy, programme priorities and eligibility criteria and an indicative list of incremental costs established by the Conference of the Parties. Other Parties, including countries undergoing the process of transition to a market economy, may voluntarily assume the obligations of the developed country Parties. For the purpose of this Article, the Conference of the Parties, shall at its first meeting establish a list of developed Country Parties and other Parties which voluntarily assume the obligations of the developed country parties. The conference of the Parties shall periodically review and if necessary amend the list. Contributions from other countries and sources on a voluntary basis would also be encouraged. The implementation of these commitments shall take into account the need for adequacy, predictability and timely flow of funds and the importance of burden-sharing among the contributing Parties included in the list.

3. The developed country Parties may also provide, and developing country Parties avail themselves of, financial resources related to the implementation of this Convention through bilateral, regional and other multilateral channels.

4. The extent to which developing country Parties will effectively implement their commitments under the Convention will depend on the effective implementation by developed country Parties of their commitments under this Convention related to financial resources and transfer of technology and will take fully into account the fact that economic and social development and eradication of poverty are the first and overriding priorities of the developing country Parties.

5. The Parties shall take full account of the specific needs and special situation of least developed countries in their actions with regard to funding and transfer of technology.

6. The Contracting Parties shall also take into consideration the special conditions resulting from the dependence on, distribution and location of biological diversity within developing country Parties, in particular small island States.

7. Consideration shall also be given to the special situation of developing countries, including those that are most environmentally vulnerable, such as those with, arid and semi-arid zones, coastal and mountainous areas.

Article 21. Financial Mechanism(239)

1. There shall be a mechanism for the provision of financial resources to developing country Parties for purposes of this Convention on a grant or concessional basis the essential elements of which are described in this Article. The mechanism shall function under the authority and guidance of, and be accountable to, the Conference of the Parties for purposes of this Convention. The operations of the mechanism shall be carried out by such institutional structure as may be decided upon by the Conference of the Parties at its first meeting. For purposes of this Convention, the Conference of the Parties shall determine the policy, strategy, programme priorities and eligibility criteria relating to the access to and utilization of such resources. The contributions shall be such as to take into account the need for predictability, adequacy and timely flow of funds referred to in Article 20 in accordance with the amount of resources needed to be decided periodically by the Conference of the Parties and the importance of burden-sharing among the contributing Parties included in the list referred to in Article 20, paragraph 2. Voluntary contributions may also be made by the developed country Parties and by other countries and sources. The mechanism shall operate within a democratic and transparent system of governance.

2. Pursuant to the objectives of this Convention, the Conference of the Parties shall at its first meeting determine the policy, strategy and programme priorities, as well as detailed criteria and guidelines for eligibility for access to and utilization of the financial resources including monitoring and evaluation on a regular basis of such utilization. The Conference of the Parties shall decide on the arrangements to give effect to paragraph one above after consultation with the institutional structure entrusted with the operation of the financial mechanism.

3. The Conference of the Parties shall review the effectiveness of the mechanism established under this Article, including the criteria and guidelines referred to in paragraph two above, not less than two years after the entry into force of this Convention and thereafter on a regular basis. Based on such review, it shall take appropriate action to improve the effectiveness of the mechanism if necessary.

4. The Contracting Parties shall consider strengthening existing financial institutions to provide financial resources for the conservation and sustainable use of biological diversity.

48 Report of the Intergovernmental Negotiating Committee For A Convention on Biological Diversity on The Work of its Seventh Negotiating Session/Fifth Session of INC, Intergovernmental Negotiating Committee For A Convention on Biological Diversity, 7th Sess. at 1-2, UNEP Doc. UNEP/Bio.Div/N7-INC.5/4 (1992).

49 Recent Actions Regarding Treaties To Which The United States is Not a Party: United Nations Convention on Biological Diversity, 31 I.L.M. 1004 (1992).

50 Id. The signatories are Antigua and Barbuda, Australia, Bangladesh, Belgium, Brazil, Finland, India, Indonesia, Italy, Liechtenstein, Moldova, Nauru, Netherlands, Pakistan, Poland, Romania, Botswana, Madagascar, Sweden, Tuvalu, Yugoslavia, Bahrain, Ecuador, Egypt, Kazakhstan, Kuwait, Luxembourg, Norway, Sudan, Uruguay, Vanuatu, Cote d'Ivoire, Ethiopia, Iceland, Malawi, Mauritius, Oman, Rwanda, San Marino, Seychelles, Sri Lanka, Belarus, Bhutan, Burundi, Canada, China, Comoros, Congo, Croatia, Democratic People's Republic of Korea, Israel, Jamaica, Jordan, Kenya, Latvia, Lesotho, Lithuania, Monaco, Myanmar, Niger, Qatar, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, Zaire, Zambia, Afghanistan, Angola, Argentina, Azerbaijan, Bahamas, Barbados, Bulgaria, Burkina Faso, Cape Verde, Chad, Colombia, Cook Islands, Cuba, Cyprus, Denmark, Estonia, Gabon, Gambia, Germany, Ghana, Greece, Guinea, Guinea-Bissau, Lebanon, Liberia, Malaysia, Maldives, Malta, Marshall Islands, Mauritania, Micronesia, Mongolia, Mozambique, Namibia, Nepal, New Zealand, Paraguay, Peru, Philippines, Saint Kitts and Nevis, Samoa, Sao Tome and Principe, Swaziland, Switzerland, Thailand, Togo, Uganda, United Kingdom of Great Britain and Northern Ireland, United Republic of Tanzania, Venezuela, Yemen, Zimbabwe, Algeria, Armenia, Austria, Belize, Benin, Bolivia, Central African Republic, Chile, Costa Rica, Djibouti, Dominican Republic, El Salvador, European Economic Community, France, Guatemala, Guyana, Haiti, Hungary, Honduras, Ireland, Japan, Mexico, Morocco, Nicaragua, Nigeria, Panama, Papua New Guinea, Portugal, Republic of Korea, Russian Federation, Senegal, Slovenia, Solomon Islands, Spain, Suriname, Tunisia, Cameroon, Iran, and Libyan Arab Jamahiriya. Id at 1004-07.

51 See US. Industry Waiting To See If Competitor Nations Ratify Treaty, 15 Int'l Envtl. Rep. (BNA) 460 (July 15, 1992).

52 See Little Progress Seen in Talks on Biological Diversity Convention, 14 Int'l Env. Rep. (BNA) 547 (Oct. 9, 1991); see also Delegates Working On Biodiversity Treaty Urged By Chairman To Put Aside Differences, 15 Int'l Envtl. Rep. (BNA) 64 (Feb. 12, 1992).

53 GA Res. 44/228 GAOR, 44th Sess., Supp. No. 49 at 152, U.N. Doc. A/44/49 (1989).

54 Id paragraph 15(j)-(l)

55 Nations to Resume Talks On Environmental Action Plan At Earth Summit, 15 Int'l Envtl. Rep. (BNA) 311 (May 20, 1992).

56 Report of the Ad Hoc Working Group of Legal and Technical Experts on Biological Diversity on The Work of Its First Session, Ad Hoc Working Group of Legal and Technical Experts on Biological Diversity, 1st Sess. at 4, UNEP Doc. UNEP/Bio.Div/WG.2/1/4/Add.1 (1991).

57 Id at 5.

58 Id at 6-7.

59 Id at 7-8.

60 Id at 14.

61 Id at 12. Guatemala also emphasized the importance of taking into account the special needs of developing countries. Id. at 36.

62 Id at 16.

63 Id at 36.

64 Id at 38. Venezuela echoed this concern. Id.

65 Report of the Ad Hoc Working Group of Legal and Technical Experts on Biological Diversity on the Work of Its Second Session, supra note 4, paragraph 5 (1991).

66 Id paragraph 17.

67 Id paragraph 72

68 Id

69 Id.

70 Id

71 Report of The Intergovernmental Negotiating Committee For A Convention On Biological Diversity On The Work of Its Third Session, supra note 9, paragraph 2 (1991).

72 Id. paragraph 3.

73 See supra notes 52-64.

74 See Report of The Intergovernmental Negotiating Committee For A Convention On Biological Diversity On The Work of Its Third Session, supra note 9. Webster's New World Dictionary defines "adequate" as "1. Enough or good enough for what is required or needed; sufficient; suitable. 2. barely satisfactory; acceptable but not remarkable." Webster's New World Dictionary 16 (David B. Guralnik ed., 2d ed., 1980).

75 See Report of The Intergovernmental Negotiating Committee For A Convention On Biological Diversity On The Work of Its Third Session, supra note 9.

76 In this regard, the negotiators had, as an example, the "Green Fund" proposed by the People's Republic of China. See Preparations For The United Nations Conference on Environment and Development On The Basis of General Assembly Resolution 44/228 And Taking Into Account Other Relevant General Assembly Resolutions: Cross-Sectoral Issues: Proposal Submitted by the Delegation Of The People's Republic of China: THE GREEN FUND, Preparatory Committee For The United Nations Conference On Environment and Development, 3d session, U.N. Doc. A/Conf.151/PC/86 (1991).

77 Geoffrey Palmer, New Ways to Make International Environmental Law, 86 AM. J. INT'L L. 259 (1992).

78 Report of the Intergovernmental Negotiating Committee For A Convention on Biological Diversity on the Work Of its Fourth Negotiating Session/Second Session, supra note 34,11 16.

79 Id

80 Id

81 Report of the Intergovernmental Negotiating Committee For A Convention on Biological Diversity on The Work of Its Third Session/Fifth Negotiating Session, supra note 9, at 27 (1991). The Sub-Working Group was comprised of delegates from the following countries: Canada, Australia, Bahamas, China, Colombia, Germany, Guyana, India, Indonesia, Malaysia, Mauritius, Mexico, Netherlands, Norway, Sweden, Uganda, and United Republic of Tanzania. Id at 31.

82 See Biodiversity Treaty Called Highlight of Summit by Southern Conservationist, 15 Int'l Envtl. Rep. (BNA) 507 (July 29, 1992); Industry Officials Call Biodiversity Treaty Vague, See Little Impact On Competitiveness, Other Areas, 15 Int'l Envtl. Rep. (BNA) 511 (July 29, 1992).

83 See Report of the Intergovernmental Negotiating Committee For A Convention On Biological Diversity on The Work of Its Third Session/Fifth Negotiating Session, supra note 9, at 28. The Sub-Working Group was comprised of delegates from the following countries: Canada, Australia, Bahamas, China, Colombia, Germany, Guyana, India, Indonesia, Malaysia, Mauritius, Mexico, Netherlands, Norway, Sweden, Uganda, and United Republic of Tanzania. Id at 31.

84 The United Kingdom proposed and Mexico modified the text in Alternative Two. Id

85 See Preparations For The United Nations Conference on Environment and Development On The Basis of General Assembly Resolution 44/228 And Taking Into Account Other Relevant General Assembly Resolutions: Cross-Sectoral Issues Proposal Submitted by the Delegation Of The People's Republic of China: THE GREEN FUND, supra note 76.

86 Report of the Intergovernmental Negotiating Committee For A Convention On Biological Diversity On The Work Of Its Sixth Negotiating Session/Fourth Session of INC, 6th Sess. paragraphs 3-4, UNEP Doc. UNEP/Bio.Div/N6-INC.4/4 (1992).

87 Id. at 15.

88 See Report of the Intergovernmental Negotiating Committee For A Convention on Biological Diversity on The Work of its Seventh Negotiating Session/Fifth Session of INC, supra note 48.

89 See, e.g, The Earth Conference, Biodivisive, Economist, June 13, 1992, at 93. 90 US Industry Waiting To See If Competitor Nations Ratify Treaty, supra note 51.

91 Id

92 US. Stands Alone In Rejecting Treaty After Major Industrial Partners Sign, 15 Int'l Envtl. Rep. (BNA) 414 (June 17, 1992).

93 Birds and Bees; Governments are Trying To Use Treaties To Prevent Extinction, Economist, May 30, 1992, at 15.

94 A Greener Bank, Economist, May 23, 1992, at 79.

95 See Report of the Intergovernmental Negotiating Committee For A Convention on Biological Diversity on The Work of its Seventh Negotiating Session/Fifth Session of INC, supra note 48, at 22.

96 Id. at 28. The delegate from the United Kingdom agreed with the Japanese delegate and stated:

The United Kingdom understands that the basic principle of the financial mechanism under this Convention is that the Conference of the Parties determine policy, strategy, program priorities and eligibility criteria the institutional structure has responsibilities of administration and operation. Thus the available amount of resources, modalities of contributions should be agreed between the Conference of the Parties and the institutional structure entrusted with the operation by the Conference of the Parties.

Id. at 35.

97 Id. at 31.

98 Convention on Biological Diversity, art. 39, supra note 6 at 837.

99 Report of the Intergovernmental Negotiating Committee for a Convention on Biological Diversity On the Work of its Seventh Negotiating Session/Fifth Session of INC, supra note 48, at 10.

100 Convention on Biological Diversity, art. 37, supra note 6 at 837.

101 WORLD BANK, Funding For The Global Environment: The Global Environmental Facility, paragraph 1 (1990) (discussion paper available from The World Bank Group).

102 Id; see also David Reed, The Global Environment Facility: Sharing Responsibility For The Biosphere, 7-8 (1991) (available from the Multilateral Development Bank Program - World Wildlife Fund - International).

103 World Bank, supra note 1O1, paragraph 1(i)

104 Id paragraph 1(ii).

105 Id paragraph 1(iii)

106 Id paragraph 1(iv).

107 Id. paragraph 2; see also Reed, supra note 102, at 4.

108 Reed, supra note 102, at 4.

109 World Bank, supra note 101, paragraph 5

110 Reed, supra note 102, at 5.

111 World Bank, supra note 101, paragraph 11.

112 Id paragraph 12.

113 Id. paragraph 13.

114 Reed, supra note 102, at 5.

115 Id

116 Id

117 Id

118 The United States GDP in 1990 was $21,569. World Bank, supra note 22, at 219, 223.

119 World Bank, supra note 101, paragraph 15

120 Id paragraph 16.

121 Id

122 Id

123 Id

124 Id at 11.

125 Id

126 Id

127 Convention on Biological Diversity, art. 39, supra note 6 at 837.

128 Id

129 Global Environmental Facility, Beyond The Pilot Phase - The Next Steps (1992) (discussion paper available from the Global Environment Facility) (cited in World Bank Environment Community Environment Bulletin 4 (Summer 992)).

130 Global Environment Facility, supra note 129, paragraph 3.

131 Global Environment Facility, supra note 129, at 4.

132 Id paragraph 9(i)

133 Id. paragraph 9.

134 Reed, supra note 102 at 5.

135 Global Environment Facility, supra note 129, paragraph 9(i).

136 Id

137 Id (quoting Global Environment Facility, The Pilot Phase and Beyond. paragraph 2.13 (May, 1992) (GEF Working Paper)).

138 Id paragraph 9(ii).

139 Id paragraph 9(iii).

140 Id paragraph 9(iv).

141 Convention on Biological Diversity, art. 25, supra note 6, at 833.

142 Global Environment Facility, supra note 129, paragraph 9(iv).

143 Id paragraph 9(v)

144 Report of the Intergovernmental Negotiating Committee For A Convention On Biological Diversity On The Work Of Its Seventh Negotiating Session/Fifth Session of INC, supra note 48, paragraphs 10-11.

234 See Report of The Intergovernmental Negotiating Committee For A Convention On Biological Diversity On The Work of Its Third Session, supra note 9, at 22.

235 Id. at 23.

236 See Report of the Intergovernmental Negotiating Committee For A Convention On Biological Diversity on The Work of Its Third Session/Fifth Negotiating Session, supra note 9, at 27.

237 Id at 28-29.

238 Convention on Biological Diversity, art. 20, supra note 6 at 830.

239 Id. art. 21, at 831