Concept and Legal Significance of Biological Diversity
Definition of Biological Diversity
Biological diversity, also called biodiversity, refers to the entirety of organisms living on Earth, their genetic differences, and the diversity of the ecosystems in which these organisms live. The term was internationally shaped by the “Convention on Biological Diversity” (CBD) and encompasses three central levels: genetic diversity, species diversity, and the diversity of habitats (ecosystems).
In the legal context, biological diversity describes not only the multitude of living organisms, but also includes the interactions between these organisms and their environment. The conservation of biological diversity is therefore not merely an issue of nature conservation, but a comprehensive legally binding concern at international, European, and national levels.
International Legal Foundations
The Convention on Biological Diversity (CBD)
The CBD, signed in 1992 at the UN Conference on Environment and Development (UNCED) in Rio de Janeiro, constitutes the central international treaty for the protection of biological diversity. It obligates the contracting parties to preserve biological diversity, to use its components sustainably, and to equitably share the benefits arising from the use of genetic resources. The CBD entered into force in 1993 and now has more than 190 contracting parties.
Key measures under the CBD include:
- The development of national strategies and action plans for the conservation and sustainable use of biodiversity
- The obligation to establish protected areas
- The promotion of scientific research in fields of biodiversity research and monitoring
- Cooperation regarding access to genetic resources and the equitable sharing of resulting benefits (Access and Benefit-Sharing, ABS)
Other International Agreements
Other legally binding facts for the protection of biological diversity particularly 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 Ramsar Convention on Wetlands of International Importance (Ramsar Convention)
European Legal Framework
Directives of the European Union
The European Union has developed numerous legally binding instruments for the protection of biological diversity, notably:
- The Fauna-Flora-Habitat Directive (FFH Directive, 92/43/EEC)
- The Birds Directive (79/409/EEC, now replaced by 2009/147/EC)
These directives form the basis for the “Natura 2000” network of protected areas, which aims to maintain or restore a favorable conservation status for species and habitats of community interest. Member States are obliged to designate appropriate protected areas, draw up management plans, and ensure that the status of the protected assets does not deteriorate.
Biodiversity Strategy and Green Deal
With the Biodiversity Strategy for 2030, part of the “European Green Deal”, the EU pursues the goal of strengthening biodiversity within the Union, stopping existing losses, and achieving comprehensive improvements by 2030. The strategy provides, among other things, for a legally binding expansion of protected areas, restoration measures, and the promotion of sustainable agriculture and forestry.
National Law in Germany
Statutory Basis
In Germany, biological diversity is primarily protected by the Federal Nature Conservation Act (BNatSchG). The BNatSchG contains comprehensive provisions for the conservation, development, and restoration of nature and landscapes, including their biodiversity (§ 1 BNatSchG). The Act reflects the goals of the CBD and relevant EU directives and implements them into national law.
Essential legal measures include:
- The prohibition of removing, damaging, or destroying wild animals and plants without a permit (§ 39 BNatSchG)
- The designation and safeguarding of areas of special importance for species and habitat diversity (nature reserves, national parks, biosphere reserves, Natura 2000 sites)
- Regulations on the sustainable use of natural resources
- Obligations to develop national strategies (e.g. National Strategy on Biological Diversity)
Impact Regulation and Compensation Measures
The impact regulation (§§ 13 et seq. BNatSchG) requires project developers to generally avoid or compensate for impacts on nature and landscape. If adverse effects cannot be avoided, compensatory measures to preserve biological diversity must be implemented. Compensation is given priority at the site of the impact in order to minimize local biodiversity loss.
Legal Responsibilities and Supervision
Enforcement of regulations for the protection of biological diversity in Germany lies with the federal states, but in some cases also with the federal government. Environmental authorities monitor compliance with legal provisions and may impose sanctions and fines in the event of violations. Additionally, there are notification and reporting obligations to the European Commission and international treaty bodies.
Legal Challenges and Current Developments
Implementation and Enforcement
Legal safeguarding of biological diversity is associated with various challenges. These include:
- Effective control and sanctioning of violations against protective provisions
- Coordination of international and domestic regulations for the protection of shared species and habitats
- The challenge of upholding biodiversity protection in the face of competing land uses (e.g. settlement development, agriculture, transport)
Access to Genetic Resources and Benefit-Sharing
The Nagoya Protocol to the CBD internationally regulates access to genetic resources and the fair sharing of benefits arising from their use. In the European Union, the protocol is implemented by Regulation (EU) No 511/2014 and obliges users of genetic material to exercise due diligence and provide information. In Germany, this has been further specified by the implementing act for the Nagoya Protocol.
Climate Change and Biodiversity Law
Climate change represents one of the greatest challenges for the legal protection of biological diversity. National and international legal provisions are continuously adapted to create synergies between climate protection and biodiversity conservation and to legally promote the so-called “dual benefits”.
Conclusion: Legal Dimensions of Biological Diversity
The legal aspects of biological diversity are of international significance and concern a multitude of treaties, directives, as well as national and regional laws. They comprise binding regulations for protection, use, and access, as well as the integration of biodiversity goals in sectors such as agriculture and climate protection. Compliance with and further development of these legal norms is essential to slow down and eventually reverse the loss of biological diversity in the long term.
Frequently Asked Questions
What are the most important international agreements for the protection of biological diversity and how are they implemented in German law?
Germany is a contracting party to various international agreements aimed at the protection of biological diversity. Among the most important is the Convention on Biological Diversity (CBD) of 1992. Other major treaties are the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES/Washington Convention) and the Bonn Convention on Migratory Species (CMS). The legal implementation of these agreements in Germany primarily occurs through their transformation into national law – that is, the agreements are specified by acts and regulations. For the CBD, these are mainly the Federal Nature Conservation Act (BNatSchG), various federal and state regulations, as well as specific implementing provisions. In addition, there are national strategy and action plans, such as the “National Strategy on Biological Diversity,” which clarify the legal requirements and ensure their observance. Effective legal protection also arises from European implementing directives, especially through the Fauna-Flora-Habitat Directive and the Birds Directive, which have been transposed into German law.
To what extent is the protection of biological diversity enshrined in German law?
The protection of biological diversity is enshrined in German law at multiple levels. Constitutionally, the duty of protection arises in particular from Article 20a of the Basic Law (Grundgesetz), according to which the state shall protect the natural foundations of life, also in responsibility for future generations. The central piece of ordinary legislation is the Federal Nature Conservation Act (BNatSchG), supplemented by state nature conservation laws. The BNatSchG obliges to maintain and, if necessary, restore biodiversity as a protected resource (§ 1 para. 1 BNatSchG). It also formulates protective provisions for species, biotopes, and habitats (e.g. through the designation of protected areas such as national parks, nature reserves, landscape protection areas, and FFH areas). In addition, there are numerous special legal regulations, such as the Federal Species Protection Act or the Federal Species Protection Ordinance, which regulate the protection of certain species and populations in detail.
What legal instruments exist for the protection of endangered species and habitats?
German law offers various legal instruments for the protection of endangered species and habitats. A central instrument is the designation of protected areas, for example under §§ 23 et seq. BNatSchG (nature reserves) or through the implementation of Natura 2000 sites in accordance with the FFH and Birds Directives. In addition, numerous species are given special or strict protection under the Federal Species Protection Ordinance and the Federal Hunting Act. The BNatSchG contains prohibitions, such as prohibitions on capture, killing, and disturbance (§ 44 BNatSchG), for certain protected species. Other instruments include biotope protection regulations (§ 30 BNatSchG), rules on ecological set-aside in agricultural policy, as well as permit and compensation requirements, for instance in connection with interventions in nature and landscape (§§ 13 et seq. BNatSchG). Furthermore, reporting obligations exist regarding the import and keeping of specially protected species (CITES certificates).
How does European Union law affect biodiversity protection in Germany?
EU law significantly shapes German biodiversity and nature conservation, particularly through the Fauna-Flora-Habitat Directive (FFH Directive, Directive 92/43/EEC) and the Birds Directive (Directive 2009/147/EC). These directives oblige all Member States to designate Natura 2000 sites and to take measures for the long-term protection of habitat types as well as animal and plant species of community interest. The directives are implemented through federal and state law, namely in the BNatSchG, and are thus binding. The EU nature conservation directives contain detailed obligations on conservation objectives, prohibitions of deterioration, and for carrying out appropriate assessments for projects likely to affect Natura 2000 sites significantly. In addition, agricultural policy (CAP) and the Water Framework Directive impose legal requirements for promoting and ensuring biodiversity.
What role do impact regulations play in the protection of biological diversity?
Impact regulations are a central legal steering instrument in biodiversity protection. Under the BNatSchG (§§ 13 et seq.), it is established that interventions in nature and landscape – understood as changes to the form, use, or structure of soils, surface waters, or habitats – are generally subject to official review. Projects that cause significant adverse effects may only be authorized if these are reduced to the unavoidable minimum and compensation or replacement is provided (compensation regulation). The objective is the so-called “no net loss” of biodiversity and ecosystem services. This applies, for example, to construction projects, infrastructure projects, or changes in agricultural use. The effectiveness of compensation rules and measures is generally monitored and, if necessary, adjusted by the relevant specialist authorities.
How are violations of regulations for the protection of biological diversity sanctioned?
Violations of regulations for the protection of biological diversity in Germany, due to their particular importance, are in some cases designated as administrative offences and in others as criminal offences. The BNatSchG provides for fines for numerous infringements, e.g. violations of protective provisions in nature reserves or illegal handling of protected species (§ 69 BNatSchG). In severe cases, § 71 BNatSchG allows for imprisonment of up to five years or a fine, especially for intentional or commercial destruction of habitats of specially protected species. In addition, there are specific legal sanctions, for example in animal protection and species protection law. Administrative authorities are obliged to prosecute and sanction relevant violations; at the same time, citizens are entitled to report violations and, where applicable, institute representative actions under the Environmental Remedies Act.
What legal options do citizens and environmental associations have to contribute to the enforcement of biodiversity protection?
Citizens and recognized environmental associations play important monitoring and participation roles in biodiversity protection. Under the Environmental Remedies Act and the requirements of the Aarhus Convention, associations have the right to request environmental information and, in certain cases, to bring actions against administrative decisions (“association lawsuit”), in particular for infringements of nature conservation provisions. Private individuals can submit statements and raise legal objections in planning and permitting procedures, e.g. for construction projects. There is also the option to file reports with the competent authorities regarding possible violations of conservation requirements. Furthermore, public participation procedures, for example in connection with the designation of protected areas or environmental impact assessments, are legally required and provide a platform for involvement by civil society and stakeholders.
