On July 2nd 2010, the Ministry of Environment (MOE) posted a draft of their new "Act on Preservation and Use of Biodiversity" on their website, inviting public comment by July 21st. The MOE posted two links to the Act, one in English (a summary) and the other in Korean (the fuller text)
Birds Korea translated the draft Act (see below), and forwarded this translation to several key specialists and conservation organisations. After incorporating the comments that we recieved, we then sent our Opinion Letter to the Ministry of Environment by post and by email on July 20th 2010.
We would like to thank those who responded, and especially Ms. Lee Jung-Kyu for her translation.
Birds Korea, July 21st 2010.
To the Ministry of Environment / whomsoever it may concern
Please find below the response of the conservation organisation Birds Korea 1 to the draft of the proposed new Act on the Preservation and Use of Biodiversity (from herein “the Proposed Act”), in line with the invitation to comment provided by the Ministry of Environment 2.
Our response to the Proposed Act has been developed following our sharing (and translation into English 3 ) of the Ministry of Environment draft of the Proposed Act with selected organisations and specialists, both inside and outside of the Republic of Korea.
Before looking in more detail at the Proposed Act, it is first important to clarify here that Birds Korea actively supports the Ministry of Environment’s and others’ efforts to reduce the rate of national biodiversity loss in the Republic of Korea (ROK), in line with existing obligations held under the United Nation’s Millennium Development Goals and obligations held under Conventions such as the Convention on Biological Diversity. We also welcome the Ministry of Environment’s process in opening up an early draft of the Proposed Act to public review and comment.
I. The Title of the Proposed Act
While the words “preservation” and “conservation” are sometimes treated as synonyms, the word conservation in the English translation of this Proposed Act is greatly preferred to preservation. Conservation is the term used in several Conventions and Agreements already ratified by the Republic of Korea (including the Convention on Biological Diversity), and more clearly connotes management and sustainable use.
Ⅱ. The Rationale of the Proposed Act
The Rationale is an important component in that it identifies the major parameters and aims of the Proposed Act. As written, it identifies two elements that are of particular significance to the conservation of biodiversity: 1) Development-centred policies and 2) the Convention on Biological Diversity (CBD).
Paragraph two of the Rationale states that “the nation’s biodiversity is continuously decreasing due to the pushing ahead of development-centered policies”.
If “development-centred policies” is intended to mean “present unstainable development–centred policies” then Birds Korea accepts that such policies are a major driver of biodiversity loss and need to be addressed by the Proposed Act.
Support for highlighting the role of present unsustainable development policies leading to habitat change and biodiversity decline can be found in the vast majority of conservation literature, including Global Biodiversity Outlook 3 4 published in May 2010 and the ROK’s Fourth National Report to the Convention on Biodiversity 5 which was published in May 2009.
The ROK Fourth National Report to CBD, for example, explicitly identifies the threats to biodiversity of “dam construction, the artificial straightening of streams, dredging, aggregate collection, banking, the construction of submerged weirs and dammed pools, the development of terrace lands on rivers, the excessive utilization of river water for water supply, and the disturbance of river basins due to forest exploitation, wildfires, farmland conversion, and marsh wetland reclamation” (3.3.3, p.6) and the “filling-up, land reclamation by drainage, the development of bays and commercial complexes, and the construction of long-term facilities” (3.3.4, p.7). Such unsustainable development projects are at present supported by both local and national development policies, and funding.
Birds Korea’s own research confirms that the reclamation of inter-tidal wetland 6 results in declines or loss of biodiversity, and we anticipate declines in biodiversity due to further damming and dredging of rivers 7. We therefore support the Ministry of Environment’s position that legislation is required to change the present unsustainable development model and the policies that support it. Genuinely Green Growth, that enables both economic and social development as well as environmental conservation, is urgently required and in need of legislation to enable and support it.
In this regard, we note here too that unsustainable development policies and unsustainable development projects and (rather more importantly) the possible responses to them, have already been identified by several government and non-government bodies in the ROK during the past decade. For example, the importance of stopping perverse incentives and unsustainable development models and unsustainable ecosystem use (such as unsustainable fisheries) have been highlighted by e.g. the UNDP-GEF / Ministry of Environment Wetlands Biodiversity Project 8 and the ongoing UNDP-GEF / Korea & China project for “Reducing the Environmental Stress in the Yellow Sea Large Marine Ecosystem” 9.
Paragraph three of the Rationale states that one of the aims of the Proposed Act is “To develop international collaboration as establishing a system that will actively implement and respond to the CBD”.
In this regard, we note that all parties to CBD are “bound by all the obligations under the Convention” (CBD Article 34), and that the CBD Preamble states that it is “vital to anticipate, prevent and attack the causes of significant reduction or loss of biological diversity at source” (CBD Preamble).
Further guidance (and obligation) for the Proposed Act - if it is to assist with the active implementation of CBD within the ROK - is provided by CBD Article 7, that states that all Contracting Parties are obligated to “Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations” including “Where a significant adverse effect on biological diversity has been determined …(to) regulate or manage the relevant processes and categories of activities.”
CBD Article 6 states that Contracting Parties are obligated to “Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies”.
CBD Article 14 states that Contracting Parties are obligated to “Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures”.
Based on the Rationale provided in this draft of the Proposed Act, it can be understood that the Ministry of Environment recognises the importance of developing legislation (the Proposed Act) that can enable the development of better policies and the fuller implementation of CBD.
Regrettably, in the sections that follow the Rationale, the Proposed Act does not (in its present form) explicitly address habitat degradation and loss through the present development model.
Nor does the Proposed Act aim to strengthen (a recently-weakened) Environmental Impact Assessment process.
Ⅲ. Proposed Articles 14 & 15
Articles 14-15 of the Proposed Act appear to outline some of the responsibilities of national and local government to avoid biodiversity loss caused by emergencies or when biodiversity appears to be threatened. However, the Proposed Act does not appear to offer clear ways in which biodiversity conservation can be integrated into local and national-level planning, so that the obligations of CBD can be shared by all levels of decision-maker in the development of local and national budgets and policies.
Nor does the Proposed Act aim to restrict destructive development projects planned by either government or industry. It needs to.
Ⅳ. Proposed Articles 21-24
In the section on the management of alien species, alien species are described as those which are “naturally and artificially introduced from foreign countries”. However, there are multiple cases where species occurring naturally on the mainland in the Republic of Korea have been introduced artificially to e.g. islands within the Republic of Korea. Numerous examples include the introduction of the Magpie Pica pica to Jeju Island. The Magpie is an invasive alien species on Jeju Island.
The wording needs to be rewritten to include all such invasive alien species.
Ⅴ. Further Use of Language
Further, in its present form the Proposed Act appears to be at times ambiguous or vague and not in good accord with other existing legislation.
For example, the verb “shall” is greatly preferred throughout in any English version of the text of the Proposed Act (we have been advised 10 that legally-speaking, "should" is universally considered as non-binding language, meaning that no legal obligation adheres. The binding terminology is always "shall" - which means “must”).
Moreover, the language used in 2.B.1 is both non-binding and unconstitutional. The text presently reads (in the English version provided by the Ministry of Environment):
“(1) For example, a foreigner must report to the Minister of Environment when he or she accesses for capturing or collecting wild animals and/or plants”
More neutral and less ambiguous language is required.
We propose e.g. “Persons intending to capture or gather Republic of Korea’s wild fauna and flora [which are designated as protected species] for purpose of exportation or for any purposes inconsistent with the Act on Preservation and Use of Biodiversity shall obtain permission/approval from the Minister of Environment."
The Proposed Act focuses on e.g. the export of species, alien species, inventory development and the construction of a new national centre.
While these elements are important and also appear to relate to the Articles and guidance of CBD, we believe that they are in themselves insufficient to “enable the comprehensive and systematic preservation of national biodiversity and its sustainable use” (Rationale, Proposed Act).
Respectfully, we would therefore like to suggest that the legislation needs to address habitat loss and degradation and the policies leading to them, as already identified by the Ministry of Environment, and as already obligated by CBD and / or advised by other Conventions and international Agreements. Mechanisms could be developed to make those causing biodiversity loss to be more financially accountable.
We hope that our comments are of value and can be reflected by the Proposed Act as it is improved during the year. We look forward to the Ministry of Environment’s response, and to further contribution to this legislation in its development.
Director, Birds Korea
National Coordinator Birds Korea
Birds Korea Office, 1108 Samick Tower 3-Dong, Namcheon Dong, Busan
- Birds Korea is an NGO dedicated to the conservation of birds and their habitats in Korea and the wider Yellow Sea Eco-region, with an office in Busan and websites in both Korean and English.
- Global Biodiversity Outlook 3. http://gbo3.cbd.int
- Moores N., Rogers D., Kim R-H., Hassell C., Gosbell K., Kim S-A. & Park M-A. 2008. The 2006-2008 Saemangeum Shorebird Monitoring Program Report. Birds Korea publication, Busan.
- Moores N., Kim A., Park M-N., Kim S-A. 2010. The Anticipated Impacts of the Four Rivers Project (Republic of Korea) on Waterbirds. Birds Korea Preliminary Report. Published by Birds Korea.
- Administered by the Ministry of Environment, with an increased focus on biodiversity. Application outline at: http://gefonline.org/projectDetailsSQL.cfm?projclass=1098
- Benjamin K Wagner, J.D. U.S. Attorney at Law (Hawaii & Minnesota Bar)
Professor of Law Kyung Hee University School of Law
Draft bill of Act on Preservation and Use of Biodiversity
Since adoption of the Convention on Biological Diversity (CBD) in 1992, there has been an increasing need to intensify the national-level response to holistic aspects of biodiversity-related issues, such as surveying and cataloging species and taking measures to preserve species and their habitats.
At the same time, the nation’s biodiversity is decreasing continuously due to the pushing ahead of development-centered policies; and a comprehensive system to manage biodiversity has been lacking, with the policies on biological resources focusing mainly on use, dealt with by individual departments.
Therefore, to secure the health of the national eco-system, we aim to build a foundation that will enable the comprehensive and systematic preservation of national biodiversity and its sustainable use. We aim 1) To devote to improving the quality of life and 2) To develop international collaboration by establishing a system that will actively implement and respond to the CBD.
II. Main Principles
Setting up and carrying out a National Strategy on Biodiversity and Action Plan (Proposed Articles 8 - 9)
- The government is to establish a Strategy on National Biodiversity every five years to preserve the biodiversity of the nation and its sustainable use.
- The heads of the central administrative agencies are to set up and carry out the Action Plan every year in accordance with the National Strategy on Biodiversity, and to report the results from the previous year and the Action Plan of the current year to the Minister of Environment.
Duty to report Access to biological resources and Approval for taking biological resources out of the country. (Proposed Articles 10-12)
- For example, foreigners must report to the Minister of Environment when they capture or collect wild animals and/or plants.
- An individual must report to the Minister of Environment when he or she wishes to take biological resources that are protected for the preservation of biodiversity and its sustainable use out of the country, when they have been so designated and decreed by the Minister of Environment in consultation with the head of the relevant central administrative agencies.
Building a Checklist of National Biological Species and Emergency Measures for when biodiversity is destroyed (Proposed Articles 14-15)
- The Ministry of Environment is to build a database of species in the nation, including the scientific name and distribution of the species to manage biodiversity and to stake out national biological sovereignty.
- The head of national and local governments are to take measures to avoid or to minimize the damage or loss of biodiversity, such as in the case of natural disasters or a situation in which the national or local biodiversity is seriously threatened, or when a certain ecosystem or species biodiversity is in danger of seriously decreasing or is close to being lost.
Founding and Running a Center for National Biodiversity (Proposed Article 17)
To effectively take care of the issues related to the preservation and use of national biodiversity, a National Center for Biodiversity will be founded under the National Institute of Biological Resources. The Center will take care of surveys on biodiversity and the integrated management of the information on genetic resources etc.
Building and Running an Information-sharing System on National Biodiversity (Proposed Article 19)
The Minister of Environment is to build and run an information-sharing system on biodiversity, including the status of biodiversity, information on biological resources, the distribution and management of alien species etc. The Minister is to domestically implement the CBD and manage the information on national biodiversity in a comprehensive way.
Management of alien species (Proposed Articles 21-24)
- The Ministry of Environment is to set up the basic policy every five years to manage alien species, in consultation with the heads of the relevant central government agencies.
- An individual who wishes to import or introduce an alien species designated and decreed by the Minster of Environment as one that is of concern re harm to the ecosystem, must get the approval of the Minister of Environment through taking a risk assessment.
- The Minister of Environment can designate those alien species that are naturally and artificially introduced from a foreign country as ‘Alien Species harmful to the Ecosytem’, after conducting a risk assessment on the ecosystem.
- It is prohibited to import, introduce, farm, graze, transplant, transfer, take over or distribute alien species that could harm the ecosystem.
Supporting joint research and (or) expert training (Proposed Articles 27-28)
- The national and local governments are to try to promote actively technical cooperation, information-sharing and joint research or survey with foreign or international organizations for the preservation and use of biodiversity.
- The national and local governments are to set up and put into wide use professional human-power education programs for training professional personnel in order to promote the preservation and use of biodiversity.
III. Opinion submission
Anyone who has an opinion about this proposed legislation, please submit your comments by July 21st in the following way:
- The comments/opinion/objections should be made article-by-article (describing clear reasons for your opinions)
- The name, address and phone number of an individual submitter, or in case of an organization, its name and Representative
- Postal address: 88 Gwanmoon-ro, Gwacheon-si, Gyeonggi-do, 427-729, Republic of Korea
For more details: Call (02-2110-6751, 6758), FAX (02-504-9282), E.mail : firstname.lastname@example.org