1)   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.

2)   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."

Ⅵ. Summary

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.

Sincerely,

Nial Moores
Director, Birds Korea

Park Meena
National Coordinator Birds Korea

Birds Korea Office, 1108 Samick Tower 3-Dong, Namcheon Dong, Busan

1. 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.
2. http://www.me.go.kr/kor/info/statute_02_view.jsp?key=&no=20100043&pg=1
3. http://www.birdskorea.org/Habitats/.../BK-HA-Biodiversity-Conservation.shtml
4. Global Biodiversity Outlook 3. http://gbo3.cbd.int
5. http://www.cbd.int/doc/world/kr/kr-nr-04-en.doc
6. 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.
   http://www.birdskorea.or.kr/.../Saemangeum/SSMP-2008/BK-HA-SSMP-report-2008.shtml
7. 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.
   http://www.birdskorea.or.kr/Habitats/4-Rivers/BK-HA-Preliminary-Report-2010.shtml
8. Administered by the Ministry of Environment, with an increased focus on biodiversity. Application outline at: http://gefonline.org/projectDetailsSQL.cfm?projclass=1098
9. http://www.yslme.org
10. Benjamin K Wagner, J.D. U.S. Attorney at Law (Hawaii & Minnesota Bar)
    Professor of Law Kyung Hee University School of Law