Concept and Significance of Biodiversity
Biodiversity (or biological diversity) refers to the diversity of all living organisms, the genetic diversity within a species, the diversity of species, and the diversity of ecosystems. It is a fundamental resource for life on Earth and a central element of sustainable development. Biodiversity forms the basis for essential ecosystem services such as food production, air and water purification, and climatic stability. In the legal context, biodiversity also encompasses numerous national and international regulatory areas designed to ensure its protection, sustainable use, and the fair sharing of benefits arising from its use.
Legal Framework of Biodiversity
International Legal Foundations
Convention on Biological Diversity (CBD)
The central international legal document is the Convention on Biological Diversity (CBD) from 1992. It pursues three main goals:
- Conservation of biological diversity,
- sustainable use of its components,
- fair and equitable sharing of the benefits arising from the utilization of genetic resources.
The CBD obliges the contracting parties to develop national strategies, plans, and programs for the conservation and sustainable use of biodiversity. It also provides for mechanisms for financial transfers, scientific cooperation, and technology transfer, as well as procedures for reporting and control.
Nagoya Protocol
The Nagoya Protocol of 2010 specifies and expands upon the CBD, particularly with respect to access to genetic resources and the balanced and fair sharing of benefits arising from their use (Access and Benefit-Sharing, ABS). It requires transparency, free prior informed consent of affected parties, and the establishment of national contact points and monitoring mechanisms.
Other International Agreements
Other relevant multilateral agreements include:
- the Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention, CMS),
- the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),
- the Convention on Wetlands of International Importance (Ramsar Convention),
- the Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention).
European Regulations on Biodiversity Protection
Legislative Foundations of the European Union
The European Union pursues a comprehensive biodiversity strategy. The protection of biodiversity is anchored in primary law, particularly Article 191 TFEU (Treaty on the Functioning of the European Union), as well as secondary law, for example:
- Directive 92/43/EEC (Fauna-Flora-Habitat Directive, FFH Directive),
- Directive 2009/147/EC (Birds Directive).
Both directives form the basis for the Natura 2000 protected area network, the EU’s central instrument for species and habitat protection.
Implementation Obligations and Sanctions
Member States must take appropriate measures to preserve or restore habitats and populations of selected species. Violations or failures of implementation may lead to infringement proceedings and sanctions.
National Law in Germany
Federal Nature Conservation Act (BNatSchG)
The Federal Nature Conservation Act governs the goals and principles of nature conservation in Germany, in particular the preservation and development of biodiversity (§ 1 BNatSchG). Key instruments include the designation of protected areas (national parks, nature and landscape protection areas, biosphere reserves), habitat networks, and species protection regulations.
Implementation of International Requirements
Requirements derived from international agreements such as the CBD and European law are implemented in federal or state law. Federal states play a central role in the federal system for the planning and management of protected areas and habitat networks.
Instruments for Biodiversity Protection
Protected Areas and Area Protection
Protected areas safeguard biodiversity through legal restrictions on land use. These include:
- National parks,
- Nature reserves,
- Landscape protection areas,
- Biosphere reserves,
- Natura 2000 sites.
Within these areas, different levels of protection and use prohibitions apply. Management plans and monitoring measures are mandatory.
Species Protection Law
Beside area protection, there are special regulations for particularly threatened species. These include prohibitions on the destruction, damage, or removal of protected species and their habitats. Species protection is regulated both internationally (CITES) and nationally (BNatSchG, Federal Species Protection Ordinance).
Impact Regulation and Compensation Measures
Nature conservation law provides for an impact regulation (§§ 13 ff. BNatSchG): For planned interventions in nature and landscape, impacts on biodiversity must be avoided, minimized, and—if unavoidable—compensated by replacement or mitigation measures.
Biopatent Law, Seed Law, and Plant Variety Protection
Commercial intellectual property rights in genetic material and cultivated plants affect biodiversity goals. While biopatents are possible under patent law (e.g., § 2a PatG, EU Directive 98/44/EC), the Plant Variety Protection Act governs exclusive rights to new plant varieties. The protection of traditional varieties (‘agrobiodiversity’) poses particular legal challenges.
Biodiversity and the Economy
Implications for Planning, Agriculture and Forestry
Impacts on biodiversity must be taken into consideration within environmental impact assessments, forestry and agricultural planning, and infrastructure development. The EU’s Common Agricultural Policy includes targeted greening measures to promote biodiversity.
Corporate Duties and Supply Chains
Companies are increasingly being obliged to adopt biodiversity-friendly business practices, for example through the EU Disclosure Regulation and the Supply Chain Due Diligence Act. Provisions of the Nagoya Protocol apply to imports of genetic resources.
Access to Genetic Resources and Traditional Knowledge
Under the CBD and the Nagoya Protocol, access to genetic resources and traditional knowledge of indigenous and local communities requires their prior informed consent and fair benefit sharing (“Access and Benefit Sharing”). Violations may result in civil and criminal liability.
Law Enforcement and Control
The enforcement of biodiversity protection is ensured through administrative controls, administrative procedures, as well as civil and administrative sanctions. In addition, recognized environmental organizations have the right to bring collective actions (association lawsuits) to review decisions that affect biodiversity protection.
Current Developments and Challenges
Ongoing urbanization, intensive agriculture, and the consequences of climate change continue to pose major threats to species diversity. International initiatives such as the Kunming-Montreal Global Biodiversity Framework are currently setting new, ambitious goals. Legal implementation and enforcement remain among the greatest challenges for effective biodiversity protection.
Conclusion:
The concept of biodiversity has a complex legal dimension, encompassing various international, European, and national regulatory areas. Biodiversity protection requires a multifaceted interaction of international treaties, national laws, ordinances, administrative procedures, and private legal obligations, as well as effective law enforcement. In view of the global biodiversity crisis, ongoing legal development and rigorous implementation remain central for the preservation of our natural foundations for life.
Frequently Asked Questions
Which are the most important international agreements governing biodiversity protection?
The key international agreement in the field of biodiversity is the Convention on Biological Diversity (CBD), adopted in 1992 at the UN Summit in Rio de Janeiro. It obliges the contracting parties to conserve biological diversity, ensure its sustainable use, and equitably share the benefits arising from the use of genetic resources. In addition, there are the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Cartagena Protocol on Biosafety. Within the European Union, specific directives apply, such as the Fauna-Flora-Habitat Directive (FFH Directive) and the Birds Directive, which govern biodiversity protection at the European level.
What obligations arise for states from biodiversity agreements?
Contracting parties must develop and regularly update national strategies and action plans for the protection and sustainable use of biological diversity. This includes monitoring biodiversity, reporting to international bodies, and integrating biodiversity protection into other policy areas. States are required to implement measures for the conservation of endangered species and ecosystems, including the designation of protected areas, development of restoration measures, and control of invasive species. Furthermore, legal frameworks must be established for public participation and legal regulation of access to genetic resources.
What is the significance of the Aarhus Convention for biodiversity protection?
The Aarhus Convention (adopted in 1998) grants the public rights of access to environmental information, participation in decision-making processes, and access to justice in environmental matters, including those related to biodiversity. It obliges public authorities to actively disseminate relevant information and to involve the public broadly, early, and effectively in procedures that may impact biodiversity—such as in the planning of protected areas or permitting procedures for projects affecting habitats.
How is biodiversity legally protected under the impact regulation?
In German nature conservation law, the so-called impact regulation (§§ 13 ff. BNatSchG) is central to biodiversity protection. Any significant intervention in nature and landscape (such as construction projects or infrastructure developments) must be avoided or restricted to the necessary minimum. Unavoidable impacts must be compensated for by mitigation and replacement measures. This regulation aims to ensure the long-term preservation of the functions of natural ecosystems and biological diversity. The requirements and details of the compensation measures are determined case by case in comprehensive planning and approval procedures.
What role do the FFH Directive and the Birds Directive play for biodiversity in the EU?
The Fauna-Flora-Habitat Directive (FFH Directive) and the Birds Directive are the backbone of European nature conservation law. They require Member States to designate and safeguard protected areas (the Natura 2000 network) for threatened species and habitats. These directives establish detailed assessment and reporting obligations, prohibit the deterioration or destruction of certain habitats, and forbid disturbance or killing of protected species. This applies to both government interventions and projects by private parties. National implementing acts govern the specific requirements and measures.
How are economic activities regulated with regard to biodiversity?
Economic activities are subject to numerous assessment and approval procedures aimed at protecting biodiversity. In particular, under license procedures governed by the Federal Nature Conservation Act, Environmental Impact Assessment Act (UVPG), or European directives, compatibility with existing protected areas, species, and habitats must be examined. There are also obligations to compensate for impacts through mitigation and replacement measures. Violations of protective provisions, such as the destruction of protected biotopes or the killing of strictly protected species, can be prosecuted as administrative offenses or even criminal offenses.
What legal instruments exist to sanction biodiversity loss?
A variety of sanctions apply to violations of biodiversity protection regulations. Under German law, these range from warnings and orders to restore damaged areas to fines and criminal consequences, particularly in cases of intentional or grossly negligent harm to strictly protected species or habitats. Planning permission may also be revoked or expropriated if serious impacts are identified. At the international level, contracting states may be reproached and sanctioned, for example under the Convention on International Trade in Endangered Species. In addition, recognized nature conservation organizations can bring collective legal actions (association lawsuits) demanding judicial review of decisions.
