Protection of Biological Resources in Bulgaria Under International Environmental Law

David Downes and Chris Wold

Summary

International environmental law offers useful and im-portant tools for the protection of domestic biological resources. International environmental agreements can help support the policies - and the laws necessary to carry out those policies - that will form part of Bulgaria's national biological diversity conservation strategy (NBDCS).

International law has unusual potential in Bulgaria, because the 1991 Constitution is unusually progressive among national constitutions: it provides that international treaties ratified by Bulgaria have immediate force as domestic law, and that they prevail over inconsistent provisions of other domestic laws, whether or not the government has enacted domestic legislation to carry out the treaty obligations. While its precise legal impact has yet to be determined, this constitutional provision establishes that international environmental law will have an important place in the Bulgarian legal order.

This report discusses nine international agreements or programs to which Bulgaria has or will probably become a party (the "listed agreements"):

Of these listed agreements, the Convention on Biological Diversity offers the widest range of legal tools for promoting biodiversity conservation. CITES, the Ramsar Convention, the World Heritage Convention, and the UNESCO MAB will also provide important support for important components of the NBDCS - offering not only legal tools but also international recognition, information-sharing, and programmatic support. Less critical but still of some utility for specific issues are the remaining agreements: the climate change convention, the Black Sea and Danube fishing treaties, and the Rio forest principles.

Part I is a summary of this report. Part II discusses general legal principles that are relevant to the implementation of all of the listed agreements, and gives a general overview of the relation of domestic and international law in Bulgaria. Part III analyzes the Convention on Biological Diversity, and Part IV discusses the other international agreements. Parts III and IV assess respectively the general status of the international agreements and their specific status in Bulgaria. The assessment of the general status is based on direct research and experience. Assessment of the status and implementation in Bulgaria of international agreements is based on consultations with Bulgarian lawyers and government officials, translations of selected Bulgarian environmental laws prepared for the NBDCS, written reports and responses to questions provided by Bulgarian lawyers, and some secondary sources cited in the text. Discussion of each agreement concludes with recommendations for effective implementation in Bulgaria of the listed agreements, focusing on legal measures rather than policy decisions.

II. The Need for Law to Protect and Conserve Biological Diversity

A. The Role of Law

Law is only one of many parts of a strategy to conserve biodiversity in Bulgaria - but it is an essential part. The first step perhaps is scientific research in ecology, taxonomy, zoology, botany, and other fields. Another step is economic analysis. Later, but just as important, are the creation or reform of institutions, and the creation or reform of laws. Law is a necessary tool for carrying out a conservation strategy - for making sure that policy truly and consistently implements science and social decisions, and for making sure that changes in science, public opinion, or social values are reflected in public conservation policy and institutions.

One practical implication of this is that any team for developing and carrying out a conservation strategy must include not only scientists, economists, and administrators, but lawyers as well. From the early stages, the team must consider how scientific findings can be translated into legal mechanisms and structures for institutions - mechanisms and structures that are necessary to continuously translate science into policy, to monitor environmental conditions, to gather public comments, to apply general principles in specific cases, to monitor official and private impacts on biodiversity, and to enforce environmental standards by empowering government officials and citizens to monitor compliance and enforce standards.

B. The Status of International Law in Bulgaria

International environmental law offers useful and important tools for the protection of domestic biological resources. While international authorities have little coercive power to force national governments to implement international law, international environmental agreements nevertheless have significant impact, because of the prestige and respect given to international standards, and the national and international attention given to the adoption and enforcement of those standards. They can also help countries participate in legal systems in which financial assistance is available for implementation. The Convention on Biological Diversity, Convention on International Trade in Endangered Species (CITES), the Ramsar Convention on Wetlands, the World Heritage Convention, and the UNESCO Man and Biosphere Program (MAB), for instance, provide financial and technical support for important components of the National Biological Diversity Conservation Strategy - offering not only legal tools but also international recognition, information-sharing, and programmatic support.

International law has special potential in Bulgaria, because the 1991 Constitution is unusually progressive among national constitutions: it provides that international treaties ratified by Bulgaria have immediate force as domestic law, and that they prevail over inconsistent provisions of other domestic laws, whether or not the government has enacted domestic legislation to carry out the treaty obligations. (1) By contrast, the law in most nations is that international treaties require domestic implementing legislation to bring a treaty into effect. It has been argued that under Article 5(4) an international instrument overrides not only pre-existing domestic laws but also inconsistent domestic laws passed after the treaty was ratified.

There may, however, be practical limits to Bulgaria's unique constitutional provision. First, the Constitutional Court has ruled that a treaty acquires the status of domestic law only after it is both ratified and published in the State Gazette. (2) Some international environmental agreements have yet to be published in the State Gazette. In addition, because most international environmental agreements are written in general terms, they must be implemented through more detailed domestic laws that, for instance, establish specific penalties for violations of standards. This limitation can be overcome by strong enforcement. Ramsar, for example, imposes very general obligations on parties. Yet, although some countries have not enacted implementing legislation, their governments have enforced its obligations against developers.

Many international agreements relating to the environment are non-binding, such as the Rio Forest Principles and the UNESCO Man and the Biosphere Program, and have no legally binding effect under Bulgarian law. They may, however, have some persuasive effect as evidence of international sentiment, widespread scientific agreement or management practice, or in limited circumstances as evidence of customary international law.

Despite their limitations, many of the international environmental agreements provide useful tools for advancing parts of a national conservation strategy. The Convention on Biological Diversity, for instance, includes many good general policy principles, such as a requirement that every country develop a national biodiversity protection plan. In addition, it requires the preparation of environmental impact assessments, with public participation, for government projects that are not now covered by the Bulgarian EIA law, including forestry projects. CITES, the World Heritage Convention, and Ramsar have strict requirements in specific areas such as international trade in endangered species. Bulgaria has recently ratified CITES and must now pass effective implementing legislation.

Regional agreements will be very important in the future for Bulgaria. Scientifically, many species are endemic to the Balkan Peninsula, not Bulgaria alone. Thus, neighboring countries must cooperate to ensure their protection. (Of course, the current war in the former Yugoslavia limits the extent to which conservation cooperation can move forward.) In addition, Bulgaria's desire to move closer to the European Community (EC) creates a strong incentive to harmonize its environmental standards with those of the EC. This will be very important in terms of environmental regulations that control industrial activity, such as air and water quality standards, and may have some importance for nature conservation as well. For example, this situation provides an incentive for Bulgaria to join wildlife and nature conservation treaties such as the Berne Convention (to which most western European nations belong).

C. The Implementation of International Environmental Law in Bulgarian Domestic Law

Bulgaria has implemented, at least in part, a number of the listed agreements through domestic legislation such as the Nature Protection Act of 1967. It is important that implementing laws, like any other laws, employ the most effective legal mechanisms for carrying out their purposes. While some existing environmental laws in Bulgaria do much to accomplish the goals of the listed agreements, they often suffer from serious flaws.

First, many laws fail to specify clearly the division of authority among the branches of the government. In the past this has led to confusion and inefficiency. Similarly, the relationship between older laws and the newer laws is sometimes unclear.

Second, under existing laws the penalties for violating environmental regulations are too weak to discourage misconduct. (3)

Third, some laws fail to state clearly the criteria for making decisions about protection of the environment.

Fourth, many laws fail to include useful tools and procedures for public participation and accountability, such as opportunities for citizens to comment on government decisions and proposed policies and regulations, freedom of information laws, or citizens' rights to enforce environmental laws or to request independent review of government decisions. Public participation is important because it enhances the legitimacy of government decisions by demonstrating that decision-making is fair, open, and democratic. The government can use public participation to build and demonstrate public support for its policies. In addition, participation of citizens and NGOs reduces the burden of work on the government, because the public helps to collect, organize, and analyze relevant evidence. For the same reason, the quality of information and decision-making will be higher, because a wider range of relevant evidence and viewpoints is represented and collected, and errors in analysis are detected and corrected.

Finally, another problem is that even where the written environmental laws are adequate, the government in the past has frequently failed to enforce them. Violations were ignored, and weak penalties (or no penalties at all) were imposed. In addition, procedures for independent, impartial review of administrative decisions - an indispensable mechanism for ensuring accountability and the rule of law - have apparently not functioned properly, at least in part because of inadequate training, limited funding, and a lack of independence on the part of the judiciary.

D. Fundamental Legal Principles

Several general legal principles are fundamental to implementing a strategy for biodiversity conservation. Bulgarian laws date from an era in which the prevailing ideology devalued law. At that time, law merely expressed government policy, which was supposed to reflect the will of the people. Bulgaria is now shifting to a new legal system in which the will of the people is supposed to shape the law, which in turn controls and shapes government policy so that it is consistent with the people's will. In addition, any system of environmental laws anywhere must be constantly reevaluated in light of changing scientific knowledge.

The several basic principles outlined below must be adapted to the cultural, social, and economic conditions in each country or region. In essence, however, they are fundamental to human rights, democracy, and sustainable development, as reflected in international law and in the laws and practices of a growing number of countries around the world. These fundamental legal principles help citizens to express their will and to shape and control government policy and action. Consequently, Bulgaria should implement the following principles as appropriate to the circumstances within Bulgaria:

1. Clarify which governmental authority has jurisdiction over certain activities or territories, and delegate exclusive administrative, management and enforcement powers to specific government departments and to specific levels of government (i.e., national, regional, or municipal/local).

2. Clarify the relationship of old and new environmental laws, explicitly repealing provisions of older laws where necessary to resolve inconsistencies.

3. Establish clear criteria for making decisions that affect biodiversity, including:

4. Include mechanisms for periodically re-evaluating - under clear criteria - standards and rules in light of improvements in scientific knowledge.

5. Provide (by reference to administrative procedure law or otherwise) for procedures for the review of government decisions affecting biodiversity by an impartial, independent decision-maker.

6. Provide for public participation in decisions, including:

Public participation serves several critical purposes. It implements basic principles of democracy and justice, and thus is valuable in and of itself. It also improves the quality of evidence and reasoning available to the decision-maker, by providing a wide range of facts and views from all interested parties. If specific policy decisions always involve public participation, the government is able constantly to monitor and respond to changing conditions, including scientific conditions, social values, and public opinion.

7. Strengthen enforcement of standards and rules with stronger fines that are more strictly enforced,

III. Convention on Biological Diversity

Although many of the obligations of the Convention on Biological Diversity (the "Convention") are very general, they cover a wide range of important activities that should be part of any country's biodiversity conservation strategy. The Convention is thus very useful as a legal tool for building support to protect biodiversity.

Many of the Convention's obligations, including those in Articles 5, 7-11, and 14, are limited by the provision that parties are obliged to implement them only "as far as possible and as appropriate." While this language allows parties to implement the Convention flexibly, it does not free them completely from any legal obligation. To interpret the language as permitting governments complete discretion would be absurd, as it would have the effect of deleting those Articles from the Convention altogether.

"[A]s appropriate" is best understood to mean that each party shall carry out the obligation in full, but in a manner that is appropriate for each country's social, economic, cultural, and physical conditions. Unlike climate change or ozone depletion, biodiversity loss is not the effect of specific technologies, but is due to diverse factors that are related in complex ways to the social, cultural, and economic context. There is great variation among societies and cultures in the details of the human relationship to biodiversity. The term "as appropriate" reflects the parties' understanding that techniques and policies for conservation and sustainable use are not uniform, and must be tailored to varied circumstances.

Similarly, "as far as possible" cannot mean that a country is excused from performing an obligation merely because it is politically difficult. That logic, too, would make implementation discretionary, which would in effect remove the obligation from the Convention. The more reasonable interpretation is that countries are excused from performing an obligation if it is literally impossible, for instance if biodiversity is found within territory that is occupied by a foreign power, or if science has not yet identified a threatened species that should otherwise be covered by protective legislation as required by the Convention. (5)

The Convention's obligations will be legally binding as soon as Bulgaria ratifies it and it enters into force. (6) In the meantime, Bulgaria will be developing an action plan for implementation of the Convention. The NBDCS and this implementation plan are closely related and indeed should be identical in many respects. While some of the Convention's requirements are at least partly satisfied by existing legislation, full implementation - like full implementation of the NBDCS - will require the revision of some existing laws and, probably, the creation of some new ones.

A. Planning and Decision-Making

Major Obligations

The Convention requires each party to create a national plan or strategy for the protection of biodiversity, Art. 6(a). Each country must also integrate biodiversity protection and sustainable use of biodiversity into relevant sectoral or cross-sectoral plans, programs, and policies, Art. 6(b), and into national decision-making, Art. 10(a). Examples of relevant sectors are fisheries, mining, forestry, agriculture, military, land use planning, and transportation.

Parties are also required to provide for environmental impact assessment (EIA) of "proposed projects that are likely to have significant adverse impacts on [biodiversity] with a view to avoiding or minimizing such effects." The EIA should "allow for public participation in such procedures" as appropriate. Each party must also provide for assessment of the environmental consequences of "programs and policies" likely to have significant negative impacts on biodiversity. Art. 14.

General Status

As of early 1993, about a dozen countries have begun development of national strategies for the conservation of biodiversity. Relatively few countries include explicit consideration of biodiversity in a wide range of policies and programs, but many countries provide for general assessment of the environmental impact - which should include impact on biodiversity - of many government activities, and at least some private activities, with the potential for significant environmental effects. Frequently, these procedures include public participation. The legal norm of environmental assessment, including public participation, is also recognized in the Convention on Environmental Impact Assessment in a Transboundary Context, done Feb. 25, 1991, 30 I.L.M. 800 (1991).

Status in Bulgaria

The project for which this report is prepared launches the development of Bulgaria's national strategy for the conservation of biodiversity. With assistance from the U. S. Agency for International Development, and through the offices of the U.S.-based Biodiversity Support Program, the Bulgarian Ministry of Environment held an interdisciplinary workshop to discuss this and other reports prepared by a team of scientists, lawyers, and administrators, in Sandanski, 12-20 March 1993.

Bulgaria's Environmental Protection Act of 1991 provides for environmental assessment of a number of categories of economic activities with the potential for significant environmental impact. (7) An EIA must be conducted whether the activity is to be carried out by the public or the private sector. The public has the right to participate in the process, and may appeal the government's decision to the courts. The government shall prevent or stop activities found through the EIA to have a "negative" environmental effect. As of early 1993, the EIA procedure has been used twice, in both cases to evaluate large dams. (8)

Recommendations

1. In general, the term "environment" should be defined by statute or regulation, or interpreted by government policy or judicial decision, to explicitly include biodiversity.

2. An EIA should be mandatory for forestry projects or policies involving the cutting of timber (Annex 2 to the EPA, listing types of projects for which EIAs are required, does not include such projects or policies), because forestry projects or policies are likely to have "significant adverse effects" on biodiversity.

3. An EIA should be mandatory for any project that could have a significant impact on protected areas rich in biodiversity (this could possibly be done through regulations issued under EPA, Art. 20(2)).

4. All relevant policies and programs and their implementing legislation - including, for instance, the forestry law and agricultural land protection law - should explicitly consider the value of biodiversity in decision-making.

5. Incentives should be provided to encourage private parties to conserve biodiversity (e.g., tax credits for landowners who conserve rather than develop natural habitat), and regulations developed that are appropriate for privately owned lands.

B. Identification, Monitoring, and Research

Major Obligations

The Convention requires parties to:

General Status

While there is substantial research underway around the world the general sense is that much more must be done, as ecological and taxonomic knowledge is so very limited. Indeed, the need for financing such activities in developing countries was one of the major motivations for the negotiation of the biodiversity convention.

Status in Bulgaria

The NBDCS itself will outline what is necessary to carry out Article 7 of the treaty.

Recommendations

1. The strategy will outline necessary policy measures. The legislation or regulations to implement them, once they have been established, should be fairly simple.

C. Measures to Protect Biodiversity

Major Obligations

Avoid Injury to Biodiversity. Parties must take measures to control the causes of significant injury to biodiversity, Art. 8(l), and must also adopt measures to avoid or minimize adverse impacts on biodiversity (e.g., sustainable forestry practices to avoid excess destruction; regulation of mining to avoid contamination of waters and resulting loss of aquatic biodiversity). Art. 10(b).

Establish Protected Areas. Parties must establish a system of protected areas, and must take measures to promote environmentally sound development in areas adjacent to protected areas. "[W]here necessary," they must develop uniform guidelines for selection and management of those areas. Art. 8.

Manage and Protect Biodiversity for Conservation and Sustainable Use. Both within and beyond protected areas, parties must manage biological resources to ensure their conservation and sustainable use. They must promote the protection of ecosystems, natural habitats, and maintenance of viable species populations in natural surroundings. They must also develop laws to protect threatened species or populations. Art. 8.

Restore Damaged Ecosystems and Threatened Species. Countries must take measures to rehabilitate and restore ecosystems and promote the recovery of threatened species. Art 8. Such measures must provide for assistance to, and participation of, local populations. Art. 10(d). Ensure "Biosafety." Countries must take steps to control the risks of use and release of genetically modified organisms (GMOs) likely to have adverse impacts on biodiversity. (9)

Control Alien Species. Countries must take steps to prevent introduction, control, or eradicate alien species that threaten biodiversity. Art. 8(h).

Create Conservation Incentives. Countries must create incentives for the conservation and sustainable use of components of biological diversity. Art. 11. In addition, each country is to encourage cooperation between government and the private sector in developing methods for sustainable use of biological resources. Art. 10(e).

Educate the Public. Countries must promote and encourage public understanding of biodiversity conservation through the use of media and through education. Art. 13.

Protect and Apply Traditional Knowledge and Conservation Practices. Countries must maintain traditional knowledge and practices that help to conserve and sustainably use biodiversity, must apply (in cooperation with them) such traditional knowledge and practices, and must encourage equitable sharing of their benefits. Art. 8(j).

General Status

These provisions range over a wide and varied set of activities and policies. Some countries have made progress on one or more of them, but no country has dealt adequately with all of them.

Status in Bulgaria

Bulgaria's geographic position at the border of the European temperate, continental steppe, and Mediterranean zones, together with its rich microclimatic variety and hydrographic complexity and other factors, have led to a great variety of wild flora and fauna. Bulgaria also contains genetic resources important for many cultivated plants - including tomatoes, beans, tobacco, melons, corns, cereals, forage grasses, legumes, and fruits - and has been termed a secondary center of diversity for many cultivated plants with other primary centers of origin. (11)

In general, the MOE has the authority to "guide and control the preservation of the biological diversity and natural ecosystems [and] declare the protected species and territories." EPA, Art. 24. Under Article 15 of the Constitution, the government must "ensure the protection ... of the environment, the conservation of living nature in all its variety, and the sensible utilization of the country's natural and other resources." The MOE's specific duties and powers in this area are described in the Nature Protection Act of 1967.

Avoiding Injury to Biodiversity. This general requirement has been implemented in part through the EIA provisions of the EPA (described above). Laws governing protected areas, hunting and fishing, and endangered species, discussed below, also carry out this requirement to some extent. However, not all laws that affect biodiversity acknowledge the need to avoid injuring it, and laws that acknowledge the need to avoid injury do not always include effective mechanisms for avoidance.

Establishing Protected Areas. Under current laws, the MOE is authorized to establish protected areas by an order published in the State Gazette after consulting with other interested government authorities. (12) The MOE regulates activities in all protected areas, including private lands within them. Arts. 24-26. Although citizens and NGOs may propose the declaration of protected areas to the government, Art. 23, there are no procedures for public participation in decisions about protected areas. Protected areas covered 2.05% of the country's territory in 1990. (13)

The Nature Protection Act of 1967 (NPA) establishes uniform guidelines for two categories of protected areas. Nature Reserves comprise areas which (a) have plants and animals that are remarkable and scientifically valuable or are threatened with population decline or extinction, or (b) places whose terrain has permanent significance for science. Reserves shall be preserved in their natural state, and all activities within the reserves that disturb their original natural character are forbidden. NPA, art. 16. Scientific research and activities to protect the natural biota are permitted. (14)

National Parks are areas which have remarkable natural aesthetic, scientific, cultural, or health value, and in which recreational and tourist use and other economic activities are permitted. NPA, Art. 17. The MOE designs a management plan tailored to each national park. (15) Other categories of protected areas under the NPA, Arts. 18-20, are "natural landmarks," "places with typical landscape," and "historical places."

Management and Protection for Conservation and Sustainable Use. The NPA provides for protection of plant and animal species that are in danger of extinction or are scientifically or economically valuable. Arts. 15, 16, 21. Article 9 provides for the regulation of gathering of wildflowers and useful and edible plants. In 1990, 330 higher plants were under strict protection, and 31 medicinal plants were subject to limits on use; several hundred animals species are protected under the NPA, and 122 species are subject to use limits. (16)

A number of other environmental laws, including those on forestry, hunting and fishing, air, water and soil pollution, and agricultural practices, relate to biodiversity. For instance, the Reserve Law, State Gazette (D.V.) No. 91, 1982 authorizes the Committee on Forests and the Bulgarian Hunting and Fishing Union to regulate hunting with the goals of increasing game populations and maintaining ecological balance. Art. 1. Similarly, the Fish Enterprise Act of 1982 includes among its goals the increase of species variety and maintenance of biological balance, and regulates fishing accordingly.

Restoration of Ecosystems and Threatened Species. The government has begun to reintroduce Lynx lynx, which has gone extinct within Bulgaria. The government has also attempted to restore ecosystems through remediation of water pollution aimed at reversing eutrophification, and reforestation of historically deforested areas. (18)

Ensuring "Biosafety." Control of the risks of use and release of GMOs is not currently a serious concern in Bulgaria. There have been few if any GMO releases within Bulgaria, and future releases are not expected. Officials in the MOE knew of no plans within the government to develop biosafety regulation.

Alien Species. Under the NPA, Art. 11, new wild animal species may be introduced into the country only with the approval of the Bulgarian Academy of Sciences. On the basis of information provided, it appears that no measures have been taken that deal specifically with the introduction of alien flora.

Public Education. The EPA, Art. 11, requires authorities to publicize information on the environment by means such as the mass media. It does not specifically mention biodiversity.

Conservation Incentives and Traditional Knowledge and Conservation Practices. From the information provided, it appears that there are no laws specifically addressing these issues.

Recommendations

1. In any nature conservation law, specify precisely which government authority (which ministry, and which level, local/municipal, regional, or national) has the regulatory authority over a protected area (this would require revision of Art. 5 of the draft protected areas act (DPAA)).

2. Specify the criteria to be used for selecting all protected areas within the protected areas system, and the criteria for selecting the level of protection. (19)

3. Establish procedures for public participation in decisions about whether to designate protected areas - including the level of protection and the creation of management plans (the DPAA includes such procedures for creating but not for "de-listing" areas, Art. 8, and for national park management plans but not for nature reserve management plans, Arts. 20, 23(2)).

4. Establish procedures for public participation in decisions whether to classify species as endangered, and in decisions about the extent of legal protection for a species, where alternatives are possible.

5. If necessary, enact laws to control the introduction of alien species, and to acknowledge conservation practices based on traditional knowledge.

6. To ensure protection of genetic diversity of cultivated plants or wild relatives:

7. Establish strict penalties for all violations (the DPAA does not specify all penalties; penalties specified under NPA, art. 37 appear to be weak, and the extent to which they are superseded by the EPA is not clear).

8. Develop laws for carrying out policies to protect biodiversity outside of protected areas, including regulation of private lands. (20)

9. Provide for incentives to private parties to conserve and sustainably use biodiversity. Such incentives to private owners will be increasingly important as privatization progresses. At the same time, the government should avoid adopting perverse disincentives that discourage conservation (e.g., laws in some countries prohibit the sale of traditional seeds unless they are among a limited number of commercial varieties).

D. Measures to Protect Biodiversity - Ex Situ Conservation (Article 9)

Major Obligations

The Convention includes the general obligation to take measures for ex situ conservation (that is, conservation outside of the natural habitat) of biodiversity components, especially those for which the party is the country of origin. Art. 9. In particular, countries must establish and maintain facilities for conservation of and research on biodiversity components, i.e. "gene banks" or "seed banks" (storage centers for germplasm of domesticated crops or botanical gardens). In addition, parties must take measures for ex situ recovery of threatened species.

General Status

Approximately fifty countries have established facilities for long-term storage of "plant genetic resources," principally covering the genetic diversity of major food crops and their relatives. Twelve of the International Agricultural Research Centers, linked through the Consultative Group on International Agricultural Research, have collections of plant genetic resources. Erosion of genetic resources held in such storage facilities is a worldwide problem. Furthermore, collections of crop genetic resources are far from complete, and are especially weak for minor crops. Ex situ conservation of the genetic resources of trees and domesticated animals is even less adequate. Finally, most countries have yet to explore the potential for using economic incentives to encourage conservation of biodiversity on private lands, which could be a useful complement to ex situ conservation of crop genetic diversity by the public sector.

Status in Bulgaria

The National Institute for Plant Genetic Resources at Sadovo has facilities for long-term storage of germplasm.

Recommendations

1. Pass laws implementing policies for ex situ conservation of genetic diversity. These could include incentives, such as tax credits or low-interest loans, to encourage farmers to establish and maintain gardens of traditional crop varieties or herds of traditional animal breeds (see Recommendation 9 under Part III.D above). In many countries, non-governmental initiatives have contributed significantly to ex situ conservation.

E. International Relations

Major Obligations

Technology Transfer. Under the Convention, parties must "provide and/or facilitate" transfer to other parties of biodiversity-protection technology and biotechnology that uses genetic resources. Transfer to developing country parties (and perhaps to source countries of biodiversity generally) must be "under fair and most favorable terms," while providing for "adequate and effective protection of intellectual property rights." In practice, any party to the treaty should negotiate terms to make sure that other parties that obtain its genetic resources give it at least some access to any biotechnology developed from its genetic resources.

Rules on Access to Biodiversity. Each party should ensure that biodiversity within its jurisdiction is available to other parties on "mutually agreed terms," and conversely that any biodiversity it obtains from other countries is obtained on mutually agreed terms. In either case, it should provide for "fair sharing" of biodiversity's benefits - i.e., compensation for its use or transfer of technology based on it.

Financing of Convention. The Convention requires parties to establish a multilateral fund - financed by developed countries - to help developing countries meet their obligations. The Convention permits "countries undergoing the process of transition to a market economy" to decide whether to voluntarily assume the obligations of developed countries to contribute to the multilateral fund. Art. 20(2).

International Information Exchange and Scientific and Technical Cooperation. Countries must: (1) facilitate exchange of information on biodiversity conservation and sustainable use, including technical, scientific and socioeconomic research, and training and surveying programs, Art. 17; and (2) promote international cooperation on technical and scientific research, training, and institution building. Art. 18.

International Communication on Risks. Countries must make regional, multilateral, or bilateral arrangements with other nations for notification, consultation, and exchange of information on activities within their jurisdiction that may significantly injure areas beyond their jurisdiction. Art. 14. In particular, countries must provide for immediate notification of other states that would be potentially affected in cases of imminent, grave danger to areas outside national jurisdiction that originate within national jurisdiction. Also, countries must establish joint contingency plans with other nations, where appropriate, for emergency responses to grave and imminent dangers to biodiversity. Finally, each party must ensure that any person within its jurisdiction who releases a genetically modified organism (GMO) into another party's jurisdiction provides the second party with all information on risks that is required by the first party's law. (23)

International Liability. Countries are obligated to study the issue of state liability (including compensation and restoration) for transboundary damage to biodiversity. Article 14(2).

Reporting. Countries must report to the Conference of the Parties on measures taken for the conservation and sustainable use of biodiversity. Art. 26.

General Status

Countries are still analyzing the meaning of these provisions of the Convention and are still developing their positions. In addition, international proceedings are underway to clarify the meaning of these provisions. (24)

Status in Bulgaria

Bulgaria, like other countries, is still analyzing the Convention and developing its position. International information-sharing and cooperation will be particularly important for the many plant and animal species (many of which are endangered) that are endemic to the Balkans, for migratory birds, and for ecosystems affected by activities in neighboring countries. (25)

Recommendations

1. Ratify and publish the Convention in the State Gazette by October 1993 (in time for the first inter-governmental meeting).

2. Analyze implications of the Convention's provisions on international relations for Bulgaria, and participate in continuing international discussions.

3. To increase the efficiency and quality of analysis and participation, consider the possibility of cooperation - through information-sharing or development of similar policy positions - with other countries in situations similar to Bulgaria (i.e., countries in transition, developed countries with relatively high biodiversity, countries with moderate amounts of native crop genetic diversity, countries with significant scientific and technical expertise but limited financial resources);

4. To the extent possible (in light of political turmoil and economic problems) discuss regional cooperation for the protection of regionally endemic species and migratory birds with neighboring countries.

IV. Other Listed International Envrionmental Agreements

A. The Convention on International Trade in Endan-gered Species (CITES).

Any national strategy for the conservation of biological diversity must consider the effects of international trade in flora and fauna. For some countries, the most important issue will be pressure to export domestic flora or fauna. For others, the biggest problem will be the pressure to import foreign wildlife products. In either case, CITES is a powerful tool for the control of trade that harms species of flora or fauna in danger of extinction.

Major Obligations

CITES regulates international trade of species listed on three appendices. It contains no restrictions on domestic trade, and contains no habitat protection provisions. The appendices determine the type of regulation and the type of trade that is permitted. As a result, the debates at the Conferences of the Parties focus on whether to list, "downlist" (i.e. move from one list to another), and delist species.

Appendix I species are subject to both import and export permits. Before an importing country can issue an import permit for a specimen of a species, it must determine that:

1. the import will not be for commercial purposes;
2. the use of the import will not be detrimental to the species' survival; and
3. living specimens will be properly housed and cared for.

Before the exporting country can issue an export permit, it must determine that:

1. the export will not be detrimental to the survival of the species;
2. the export was not obtained in contravention of State law:
3. the export will be shipped in such a way as to minimize the risk of injury to living specimens; and
4. an import permit has been granted.

Appendix II species require only an export permit. The exporting country must make the same findings as for Appendix I species, with the exception that they need not determine that an import permit has been granted. Art. IV. Appendix III species require only an export permit certifying that the specimen was not obtained in violation of law. Art. 5.

The key difference between species listed in Appendix I and those listed in Appendices II and III is that commercial trade in Appendix I species is prohibited. As the parties have interpreted that term, any transaction that is not wholly non-commercial should be treated as commercial. Res. Conf. 5.11.

A party must establish a Management Authority and a Scientific Authority, which have the duty to make the permitting decisions described above. A party also must pass legislation to prohibit trade in violation of CITES, including measures authorizing penalties for trade in, or possession of, specimens taken in violation of CITES, and confiscation of such specimens. Art. VIII.

Each party must submit an annual report detailing the number of violations of CITES requirements, the number of permits granted, and the number of specimens exported and imported. Art. VIII.

General Status

The list of parties to CITES continues to grow; the number now stands at 117. However, there is a great deal of concern that countries are not fully implementing the treaty. In particular, many parties do not appear to comply with the treaty's requirements in the permitting of Appendix II species. At the 1992 Conference of the Parties, 135 alleged infractions were reported as a sample of the range of infractions occurring throughout the world. The parties banned all trade in species listed under CITES with Thailand, because of Thailand's extremely poor implementation of CITES.

The CITES Secretariat reported that many parties do not have implementing legislation, or have legislation that does not fully or effectively implement the Convention. The result is weak enforcement. The Secretariat also noted that some countries issue certificates for exemptions to the Convention's trade restrictions in a manner inconsistent with the treaty's obligations. This has resulted in continuing commercial trade in species that are not supposed to be traded. (26)

Implementation in Bulgaria

The National Assembly ratified CITES on December 12, 1990, effective April 16, 1991, published D.V. No. 6, 1992. (27) Bulgaria did not make any reservations with regard to the species listings. (28) The MOE plans to develop implementing legislation and submit it to the National Assembly. (29) Because international instruments are "self-executing" under the Bulgarian Constitution, species listed on CITES' appendices automatically receive legal protection in Bulgaria (at least assuming that appendices are published in the State Gazette), but implementing legislation will be needed to provide for penalties for violations and other necessary measures.

Bulgaria has designated the Ministry of Environment as the Management Authority; three officials in the MOE's Department of Biodiversity, Protected Areas, and Forests (DBPAF) have the authority to issue permits. (30) The government has also designated several Scientific Authorities (the Institute of Zoology for vertebrates and invertebrates, the Institute of Botany and Botanical Gardens for plant species, and the Institute of Ecology for vertebrate species) to provide assistance with regard to species listed in the Red Data Book of Bulgaria.

As required by CITES, the Management and Scientific Authorities have the power to make the findings necessary for issuing an import or export permits. To make the findings, the authorities rely on information and advice of the CITES Secretariat and communication among the authorities. In particular, the MOE does not have experience in determining whether a specimen is shipped in a manner that will not damage the specimen's health and relies on the advice of the CITES Secretariat. The Scientific Authority makes its "no detriment" findings based on Bulgaria's Red Data Book of endangered species, and bases its findings on two criteria: (1) biological possibility for breeding, and (2) present population numbers. A separate permit is required for each shipment.

Customs is responsible for ensuring that illegal specimens are not imported into or exported out of Bulgaria. The Regulations on Customs Control grants customs officials the power to confiscate illegal shipments. As of 27 April 1993, Customs has confiscated five pythons and one jaguar. Because there is no implementing legislation yet, civil penalties are administered under the general civil and penal provisions of domestic legislation. In addition to confiscation, civil penalties include fines up to 150,000 Leva for first time offenders and 300,000 Leva for repeat offenders. Under the provisions of Article 29, the offender may also be required to remedy the harmed caused by their action, which could include replacement costs. Criminal penalties are also available. (31)

Recommendations

While Bulgaria has implemented some of the provisions of CITES, implementing legislation and regulations are needed to cover the following points:

1. Explicitly delegate authority (including division of responsibility among ministries and among national, regional, and local/municipal authorities) to issue regulations implementing CITES, to make management decisions under the legislation and regulations, and to enforce CITES trade limitations.

2. Designate a single scientific authority rather than several different scientific authorities (experience in other countries suggests that more than one scientific authority can cause confusion in issuing export and import permits).

3. Designate an adequate budget and sources of revenues, possibly including fines and penalties collected for violations.

4. Establish sufficiently severe penalties for violating prohibitions or limitations on trade, including fines, civil penalties, confiscation, and imprisonment, because the present fines do not always provide sufficient economic deterrent.

5. Provide for citizen participation in enforcement by giving citizens the power to bring legal actions (in courts or agency proceedings) against violators;

6. Establish the Management Authority's procedures for:

7. Establish the Scientific Authority's procedures and criteria, including collection and evaluation of information, for determining that the export or import of a specimen will not be "detrimental to the survival of the species." Reliance on the Red Data Books, published in 1984 (for plants) and 1985 (for animals) may not provide up-to-date information upon which to make informed decisions regarding the ability of a species, particularly a foreign species, to sustain trade;

8. Designate ports of entry and ports of exit where specimens must be presented to customs officials with valid permits;

9. Continued submission of reports to the CITES Secretariat as required under the Convention;

B. Convention on Wetlands of International Importance, Especially Waterfowl Habitat ("Ramsar")

Major Obligations

Ramsar requires parties to include one wetland site on the List of Wetlands of International Importance. Ramsar "encourages" parties to take certain other actions. At the Fourth Conference of the Parties, however, the parties passed a resolution to clearly define the obligations of parties as well as committees established under Ramsar. The Resolution is to form the basis for determining Ramsar activities, and summarizes the commitments of the parties under the provisions of Ramsar. (32) These include: (1) designating wetlands for the List (Art. 2.1); (2) developing and implementing plans to promote conservation of listed sites (Art. 3.1); (3) notifying the Ramsar Bureau of any change in the ecological character of listed wetlands resulting from human interference (Art. 3.2); (4) compensating for any loss of a listed wetland by creating or expanding other protected wetlands (Art. 4.2); (5) developing criteria to identify wetlands of international importance; and (6) establishing national inventories of potential Ramsar sites and all other wetlands.

In addition, parties are committed to: (1) developing and implementing plans to promote the wise use of wetlands (Art. 3.1); (2) preparing environmental impact assessments before changing the character of wetlands (Recommendations Cagliari 1.6, Groningen 2.3, Regina 3.1, Montreux REC C.4.10); and (3) establishing nature reserves on wetlands and providing for their protection (Art. 4.1).

General Status

The Ramsar Convention now covers 538 wetlands, totalling 32.3 million hectares. (33) Most parties take the provisions of Ramsar seriously. For example, some parties have used Ramsar to prohibit lead shot or hunting in listed sites. Many countries feel that implementing legislation is not required because existing nature protection legislation can be used to designate sites that are named under Ramsar. In a typical example, the United States did not pass special laws governing Ramsar sites, believing that the Clean Water Act and the other laws established regulations that adequately protected Ramsar sites.

Many countries have established national Ramsar committees to help them meet their obligations under Ramsar. The composition of the committees varies. Many include non-governmental representatives. Such committees help overcome budget constraints and also help fulfill Ramsar's commitment to public participation.

Implementation in Bulgaria

Limited information was available on Bulgaria's implementation of Ramsar. Bulgaria signed Ramsar on September 24, 1975; the treaty entered into force on January 24, 1976. (34) The treaty's text was published in the State Gazette, D.V. No. 56, 1992. (35) Bulgaria has placed four wetlands on the Ramsar List, including the Srebarna Reserve (600 ha, Sept. 24, 1975); the Lake Atanasovsko Ezero Reserve (1050 ha), the Lake Arkutino Reserve (97 ha, Sept. 24, 1975); and the Durankulak Natural Monument (9350 ha, Nov. 28, 1984). (36)

The MOE has named these Ramsar sites using its general power to declare protected areas under the Nature Protection Act, Art. 22. The MOE published an order declaring the protected area and establishing limitations on activities within it in the State Gazette, relying on its regulatory powers under the Act. Id. The declaration that an area is protected does not deprive private landholders of possession, although they are governed by the MOE's rules limiting activities. Id. at 25. The large majority of wetlands protected by Ramsar are state-owned and will remain so, leaving them unaffected by land restitution programs. (37)

The MOE's DBPAF is leading a task force that is developing a national plan (using funding provided by the French government and with technical assistance from the Ramsar Bureau) for protecting wetlands on the Danube and the Black Sea that will include proposals to name new Ramsar sites. (38) The plan is to be presented at the next Ramsar meeting in Japan. (39)

Recommendations

Based on available information, the following is recommended:

1. See recommendations regarding protected areas in Part III.C above.

2. The DPAA should specify that all wetlands of international importance (as defined under Ramsar, Art. 2, these could, for instance, include wetlands having unusually high biodiversity or significant for migratory birds) should be designated as protected;

3. The law should require an EIA of any project with potential for significant environmental impact on a wetland listed under Ramsar. This implements Art. 3(2), and could be effected through amendment of the DPAA or through regulations implementing the EPA's EIA provisions.

C. Convention for the Protection of the World Cultural and Natural Heritage ("World Heritage Convention")

Major Obligations

The Convention for the Protection of the World Cultural and Natural Heritage, adopted Nov. 16, 1972, entered into force Dec. 17, 1975, now has 127 parties; the World Heritage List consists of 358 sites in 82 countries, of which 95 sites are natural and 8 mixed natural/ cultural.(40)

The Convention is administered by the United Nations Educational Scientific and Cultural Organization (UNESCO) through a World Heritage Committee of representatives from twenty-one of the parties. The Committee creates and administers the World Heritage List of sites and areas that are of "universal outstanding heritage" and part of "the world [natural and cultural] heritage of mankind as a whole." Each party must submit a list of sites within its jurisdiction for possible inclusion that it recognizes as having global importance and which it obliges itself to protect. Articles 3-5, 11. The Committee reviews nominations and selects those of outstanding universal value. The Convention also establishes a List of World Heritage in Danger which can include sites even if they are not nominated by the government with jurisdiction. (41)

"Natural heritage" includes: (1) "natural features consisting of physical and biological formations... which are of outstanding universal value from the aesthetic or scientific point of view"; (2) "precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation"; and (3) "natural sites or precisely delineated areas of outstanding universal value from the point of view of science, conservation or natural beauty;" Art. 2.

The Committee's operational guidelines define narrowly the kind of biodiversity site that can be included, giving as examples "superlative natural... formations," such as "the most important ecosystems"; or "the most important and significant natural habitats where threatened species of animals or plants of outstanding universal value from the point of view of science or conservation still survive" (emphasis in original).

The Convention requires parties to take measures to protect their heritage. At least one court has decided that parties are legally obligated to take special measures to protect World Heritage Sites within their jurisdiction. (42) Parties must also cooperate to: (1) protect all heritage, not just all World Heritage cultural and natural sites; (2) help other parties protect and conserve sites; and (3) avoid deliberately damaging sites in others' jurisdictions. They must also submit reports every two years to the UNESCO General Conference with information on implementation, including legal measures adopted and results obtained.

The Convention pioneered the concept of a multilateral fund to support implementation, establishing a World Heritage Fund (administered by the Committee) to assist countries that need help to protect and maintain sites. Parties pay into the fund in an amount equal to 1% of UNESCO dues. The fund currently totals approximately US $2 million. (43)

General Status

The Convention is valuable in that naming a site to the World Heritage list gives it special international legal status that can enhance protection, and also makes it eligible for small amounts of multilateral funding for protective measures. It is progressive in that it affirms the interest of all of humanity in places of universal heritage even though they are within the sovereign jurisdiction of a single state. Interest in the Convention has tended to come mostly from the cultural side, and the rigorous criteria for selecting sites ensures that the List will never comprehensively protect biodiversity. Nevertheless, unusual richness in biodiversity can qualify a site for inclusion on the List, and a site's presence on the List helps protect the biodiversity within the site.

Implementation in Bulgaria

Limited information was available on Bulgaria's implementation of the World Heritage Convention. Bulgaria ratified the Convention March 7, 1974, with a reservation to the provision concerning voluntary financial contributions. (44) The text of the Convention has not been published in the State Gazette, and consequently it does not yet have direct force as domestic law. (45) While the government authorities in charge of cultural affairs are responsible for administering implementation of the Convention, the MOE actually manages the natural heritage sites.

Two natural heritage sites in Bulgaria have been placed on the World Heritage List. (46) Pirin, covering 27,500 hectares in the Pirin Mountains, has protected legal status as a national park. (47) The Srebarna Reserve, consisting of 600 hectares of wetlands near the Danube River west of Silistra, provides critical habitat for rare birds, and has the protected legal status of a nature reserve. (48) It has been placed on the List of World Heritage Sites in Danger. (49) These sites are protected pursuant to the Nature Protection Act according to their protected status as a park and as a reserve, respectively. There is a question as to whether or not these areas are protected in practice, however.

Because of the reservation taken to Article 16(1), Bulgaria does not make voluntary financial contributions to the trust fund established to protect World Heritage sites. (50) In addition, Bulgaria is no longer a member of UNESCO's World Heritage Committee and does not report on its activities undertaken pursuant to the Convention. (51)

Recommendations

Based on available information, the following steps are recommended:

1. Publish the text of the Convention in the State Gazette to give it official status as Bulgarian law;

2. Ensure that Bulgaria's inventory of potential sites, required by Art. 11(1), is complete and up-to-date, especially with respect to sites rich in biodiversity in light of current science; and

3. Ensure that legal measures to protect World Heritage sites are fully enforced in practice.

D. Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (1992) ("Rio Forest Principles")

Major Obligations

While the Rio Forest Principles are non-binding, they include several useful principles that can guide forest policies so as to increase protection of biodiversity, including:

General Status

The destruction and degradation of forests is a severe, world-wide problem, and few if any countries adequately implement all of the principles listed above. Many countries are, however, improving their policies to some extent.

Implementation in Bulgaria

Forests cover 34.8% of the territory of Bulgaria; 97.5% of the forests are state-owned, and only 13.8% of forests have trees with an average age greater than 80 years. Forests in protected areas are as much as two to five hundred years old, but most forests have been logged during the last fifty years. (53)

A comprehensive review of Bulgarian forest policy and management is beyond the scope of this report. The comments under "Recommendations," below, however, apply both to the existing Forestry Law as well as to a draft Forestry Law that has been circulated.

Recommendations

1. Any national plan or new legislation must provide for consideration in policy- and decision-making of the benefits and value of biodiversity found in the forests. (Such values and benefits include aesthetic, economic, environmental, and cultural benefits, both long- and short-term, whether or not they are traded on markets or paid for with money.)

2. The government authority with jurisdiction over a forest must consider environmental costs, benefits, and values - including the biodiversity of the forest - in any decision, and in doing so must use the best and latest available scientific evidence.

3. Forestry policy and management decisions and the bases for those decisions - including evaluation of costs and benefits and assessment of biodiversity - must be made public, and the public must have a chance to comment.

4. The environmental impact - including the impact on biodiversity - of forestry management decisions must be assessed, and the public must be included in the assessment process (see also Recommendations in Part III.A above).

E. Framework Convention on Climate Change ("Cli-mate Change Convention")

Major Obligations

The Climate Change Convention, adopted May 9, 1992, requires that parties take climate change into account "to the extent feasible" in "relevant" social, economic and environmental policies. Art. 4(1). Because research indicates that climate change will have a serious impact on biodiversity - although effects will vary widely from region to region - biodiversity conservation policy is clearly one of the relevant policies that must incorporate consideration of climate change. (54)

The Convention also requires parties to prepare, publish, and update inventories of greenhouse gas emissions and sink removals, and requires developed countries and countries in transition to take measures to mitigate climate change by limiting emissions and enhancing sinks. (55) This requirement is relevant because forests - which are often relatively rich in biodiversity compared to habitats resulting from the conversion of forested land - are also major natural "sinks" of carbon; that is, they accumulate and store large amounts of carbon. Growing trees absorb carbon dioxide from the atmosphere. While mature forests absorb relatively little carbon, they store large amounts in the soil as well as in vegetation; if they are cut for timber, significant amounts of carbon can be released into the atmosphere, especially in clear-cutting. (56) Thus, protecting forests can simultaneously avoid greenhouse gas emissions and conserve biodiversity.

General Status

Most countries have yet to take comprehensive steps to implement the Climate Change Convention, and are still in preliminary planning stages. While scientists have offered general proposals for the protection of biodiversity against climate change - including enlargement of reserves, increased conservation outside of protected areas, and restoration ecology through translocation and ex situ conservation - authorities have so far taken very little action.

Implementation in Bulgaria

The Climate Change Convention was signed by Bulgaria June 5, 1992. As of March 1993, ratification was pending. In Bulgaria, an increase in temperature and decrease in precipitation over the past ten years - with consequent damage to forests - has been reported, but it is not known whether the change is related to global warming. (57) The MOE's outline for implementing the Convention covers the inventorying of emissions, development of a national plan for reduction of emissions (including selection of a pre-1990 base year), and protection of carbon sinks (specifically including forests).

Recommendations

1. In laws for biodiversity protection, include provisions for the mitigation of climate change's effects on biodiversity, such as enlargement of protected areas, based on available scientific knowledge.

F. The Convention Concerning Fishing in the Black Sea of 1959 and the Convention Concerning Fishing in the Waters of the Danube of 1958.

Major Obligations

The Black Sea Fishing Convention regulates fishing on the Black Sea and commits parties to "rational" fishing, improving fishing techniques and research. Art. 1. The Convention allows fishing vessels to seek refuge and repairs in designated ports of other parties. Arts. 2 & 3. It also establishes minimum size limits for certain species of fish; each party must appoint one representative to a Mixed Commission for development of other fishing regulations. Arts. 5 & 8.

The Danube Fishing Convention regulates fishing in the "waters" of the Danube, a term which is broadly defined to include the Danube's mouth, tributaries up to the maximum extent of flood waters, lakes, and temporary pools. Art. 3. The obligations under this Convention are similar to the Black Sea Convention. It establishes closed seasons and minimum size limits for certain species of fish and creates a Mixed Commission to further regulate fishing on the Danube. Art. 11-13; Annex. It also requires parties to ensure the migration of fish around dams and other obstructions and to ensure the normal breeding of economically valuable fish above and below such works. Art. 5. Parties must also create hatcheries for economically valuable fish. Art. 6. Parties must prepare and apply plans to prevent the contamination of the Danube from waste that is harmful to fish and other aquatic organisms. Art. 7.

Implementation in Bulgaria

Limited information was available on Bulgarian implementation of these agreements. The National Assembly of Bulgaria ratified the Black Sea Fishing Convention on December 12, 1959, it was published in the State Gazette, D.V. No. 33, 1960, and it came into force March 21, 1960. Bulgaria ratified the Danube Fishing Convention on August 8, 1958, it was published in the State Gazette, D.V. No. 17, 1959, and it came into force December 20, 1958.

The Fish Industry Act of 1982 implements the provisions of these two conventions that relate to fishing, but not refuge and repairs. (58) Fish passages are required for any dam project and dams that completely block the migration of fish are prohibited. Discharge of waste water that adversely affects fish is prohibited. Although in theory the law implements the two conventions, Bulgaria's toxic contribution to the Danube indicates that enforcement of the Fish Industry Act is less than ideal in practice.

Unlike other environmental protection laws, implementation of the Fish Industry Act is dependent on sport and commercial fishermen who comprise the Union of Hunters and Fishermen. They are largely responsible for stocking fish and for production at hatcheries. The Ministry of Forests and Wood Industry and the Committee for Environmental Protection were the governmental bodies originally charged with implementing the conventions.

Recommendations

1. Ensure that the fish in the Danube River and Black Sea are not over harvested by adapting regulations of the commissions to meet the needs of the fish and ecosystem.

2. Enforce the prohibition on the discharge of wastes that are harmful to fish stocks.

G. UNESCO Man and the Biosphere Program ("MAB")

Major Obligations and General Status

The MAB was established in 1970 by UNESCO; over 110 countries now participate. Worldwide, biosphere reserves now number some 300 sites, totalling nearly 162 million hectares. The MAB is governed by an International Coordinating Council; the Secretariat is in Paris at UNESCO. Each participating nation appoints a national committee.

The Biosphere Reserves system is the main program of MAB. Biosphere reserves are intended to conserve characteristic ecosystems while permitting sustainable development of resources to meet human needs. The objective is to link the natural and social sciences in efforts to rationally use and conserve the biosphere by improving the relationship between humanity and the environment. Other objectives are: to conserve natural or minimally disturbed ecosystems; to provide a legal or administrative basis for resource protection; and to conserve specific genetic resources. (59)

Implementation in Bulgaria

Bulgaria participates in MAB, maintaining seventeen biosphere reserves totalling almost 40,000 hectares. (60) Bulgaria has appointed a National Committee on MAB, but not a secretariat. (61) As a practical matter, the MOE's DBPAF is responsible for managing biosphere reserves. Biosphere reserves have protected legal status in domestic law as nature reserves, the strictest level of protection under the NPA. In some cases biosphere reserves are situated within the boundaries of a national park, so that the national park - where more human activity is allowed - functions as a "buffer zone" for the biosphere reserve. (62) In the past, Bulgaria participated in MAB-organized research and conference activities, but has not done so since 1985 because of a lack of funds. As with other protected areas, there is concern that MAB sites are protected by law, but not in practice.

Recommendations

1. Where necessary, redefine the boundaries of biosphere reserves to reflect MAB's mission to integrate conservation and human activity (e.g., expand borders to include "buffer zones" as well as core areas).

2. Ensure that MAB sites are not only protected by law, but also that the laws are adequately enforced.

Notes

1. Article 5(4) of the Constitution states that "[a]ny international instruments which have been ratified by the constitutionally established procedure, promulgated and come into force with respect to the Republic of Bulgaria, shall be considered part of the domestic legislation of the country. They shall supersede any domestic legislation stipulating otherwise." Constitution of the Republic of Bulgaria, established by the Grand National Assembly on 12 July 1991, promulgated in Durzhaven Vestnik [State Gazette] [abbreviated D.V.] No. 56, Jul. 13, 1991 (English translation published by Sofia Press Agency).

2. Decision published in D.V. No. 56, Jul. 10, 1992. The Constitutional Court is empowered to determine whether domestic laws are compatible with international instruments to which Bulgaria is a party. Constitution, Art. 149(4). CITES, Ramsar, the World Heritage Convention, and the two fishing treaties were ratified before the 1991 Constitution came into effect.

3. ENVIRONMENT AND DEVELOPMENT OF REPUBLIC [OF] BULGARIA: NATIONAL REPORT FOR THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT (1991) at § 2.7 [abbreviated BULGARIA UNCED REPORT]. Another problem is that even when substantial fines were imposed, the economic structure was such that fines did not create disincentives for the authorities managing stateowned enterprises. Id.

4. Some laws do provide for public participation. The new Environmental Protection Act of 1991 provides in general terms for the right to obtain information and the right of the public to participate in environmental impact assessment procedures. The Nature Protection Act of 1967, Art. 23, gives the public the right to petition the government to declare an area protected. The draft Protected Areas Act, Arts. 8 & 9, establishes a procedure for involving the public in protected status decisions. These laws are discussed in more detail in Part III. C, below.

5. Developing countries - but not developed countries, including countries in transition - might also argue that the phrase refers to their need for additional international aid to meet the Convention's requirements, or their need to balance conservation with economic development and the eradication of poverty, needs which are specifically mentioned in Article 20(4) as affecting implementation.

6. Bulgaria signed the Convention on Jun. 12, 1992. Bulgaria's Ministry of the Environment (MOE) plans to submit the treaty to Parliament for ratification. The Convention enters into force 90 days after the 30th country has submitted evidence of ratification, art. 36. As of June 1993, 21 countries had ratified it, and it will likely enter into force by early 1994. [Note: the Convention on Biological Diversity officially entered into force in January 1994 - ed.]

7. Ch. 4, Environmental Protection Act, D.V. No. 86, Oct. 18, 1991, amended, D.V. 100, Dec. 10, 1992 [abbreviated EPA].

8. Interview with George Penchev, Feb. 25, 1993.

9. Article 8(g). "Biosafety" regulation is regulation designed to ensure that bioengineered organisms are released safely.

10. BULGARIA UNCED REPORT at § 1.1, Summary.

11. DRAFT REPORT, PLANT GENETIC RESOURCES AND THEIR MANAGEMENT IN BULGARIA (prepared for NBDCS Workshop by Dimitar Stoyanov).

12. Nature Protection Act of 1967, Art. 22, D.V. No. 47, Jun. 16, 1967, amended, D.V. Nos 3, 1977, 39, 1978, 28, 1982, 26, 1988, and 86, 1991 [abbreviated as NPA].

13. BULGARIA UNCED REPORT at § 4.4.

14. Legislative Protection of the Biological Resources in the Republic of Bulgaria, DRAFT DOMESTIC LAW REPORT (citing Rules for the Application of the NPA, art. 17).

15. J. SPIRIDONOV AND A. JURAS, NATURE CONSERVATION IN BULGARIA at 69.

16. BULGARIA UNCED REPORT at § 4.4.

17. SPIRIDONOV AND JURAS at 67; Interview with Jeko Spiridonov, Feb. 25, 1993.

18. Interview with Jeko Spiridonov, Feb. 25, 1993.

19. For instance, the criteria developed by the Ecology Institute in its Prognosis and Program for the Development of the System of Protected Areas to the years 1995 and 2010 could be used. Among these criteria are, for instance, the presence of a high degree of biological diversity and a high degree of floristic endemism. See JEKO SPIRIDONOV, CONTEMPORARY TENDENCIES IN PROTECTED AREAS SYSTEM DEVELOPMENT IN BULGARIA 3.

20. It is worth noting that Western governments routinely regulate activity on private lands to protect the environment, including biodiversity. Most countries, including the U.S., impose significant limitations on private use of land without paying the compensation that is required for a "taking" of private property, on the principle that the rights of private ownership by definition include limits on the owner's power to affect other citizens or the environment.

21. KEYSTONE CENTER, KEYSTONE INTERNATIONAL DIALOGUE SERIES ON PLANT GENETIC RESOURCES, OSLO PLENARY SESSION: FINAL CONSENSUS REPORT: GLOBAL INITIATIVE FOR THE SECURITY AND SUSTAINABLE USE OF PLANT GENETIC RESOURCES 7 (1991).

22. Id. at 7-8, 19.

23. Note that the Convention requires parties to regulate releases of GMOs that may significantly injure biodiversity. Art. 8(g). In addition, the Convention provides that the parties shall discuss at future meetings whether to draft a protocol - a related but new treaty - that would establish uniform international standards for safety regulation of GMOs. Art. 19(3).

24. Some of these provisions will be discussed, for instance, at the meeting of the Inter-Governmental Committee on the Convention on Biological Diversity, organized by UNEP and scheduled for October 11-15, 1993.

25. BULGARIA UNCED REPORT at § 12.2.

26. Doc. 8.19, Review of Alleged Infractions and Other Problems of Enforcement of the Convention.

27. State Gazette, No. 103/1990 (ratification of CITES); State Gazette, No. 6/1991 (publication of text and coming into force); MOE International Environmental Agreement Implementation Outline.

28. Interview with George Penchev, Mar. 12, 1993. When a country takes a "reservation" regarding a treaty's requirements it indicates its intent not to be bound by that provision of the treaty. CITES permits reservations.

29. Interview with Lubomir Profirov, Department of Biodiversity, Protected Areas, and Forests (DBPAF), Feb. 22, 1993.

30. Interview with Lubomir Profirov, Feb. 22, 1993.

31. Letter to David Downes, CIEL Attorney, from George Penchev, April 27, 1993.

32. FRAMEWORK FOR THE IMPLEMENTATION OF THE CONVENTION AND PRIORITIES FOR ATTENTION 1991-1993, (Doc. C.4.12) (Rev.).

33. GLOBAL BIODIVERSITY at 475.

34. DRAFT DOMESTIC LAW REPORT, Parts 12 & 14. The Paris Amendments have been in force for Bulgaria since Jan. 24, 1976. Ratification by the national assembly was apparently thought unnecessary, as the Convention was made effective by a resolution of the Council of Ministers, Resol. No. 389, Nov. 18, 1974. Id. at Part 12. Bulgaria has taken no reservations to Ramsar. Interview with MOE DBPAF officials, Feb. 22, 1993.

35. DRAFT DOMESTIC LAW REPORT Part 14.

36. Fax letter from Venelin Iliev to David Downes, May 25, 1993.

37. Interview with Mira Mileva, MOE DBPAF, and Tanio Michev, Institute of Ecology, Bulgaria Academy of Sciences, Mar. 19, 1993.

38. MOE International Environmental Agreement Implementation Outline.

39. Id.; Interview with Mira Mileva, MOE DBPAF, Feb. 22, 1993.

40. U.S. DEPT. OF STATE, TREATIES IN FORCE. . ON JAN. 1, 1992 at 406 (1992); Michel Batisse,The Struggle to Save Our World Heritage, 34 ENVT. no. 10 at 12 (1992); GLOBAL BIODIVERSITY at 475.

41. For instance, the Committee recently placed Dubrovnik on the danger list, although the government had not requested it.

42. SIMON LYSTER, INTERNATIONAL WILDLIFE LAW 223 (1985), citing No. C6 of 1983, The Commonwealth of Australia v. The State of Tasmania, 46 A.L.R. 625; 68 I.L.R. 266.

43. GLOBAL BIODIVERSITY at 492.

44. DRAFT DOMESTIC LAW REPORT, Part 14; WORLD CONSERVATION MONITORING CENTRE, GLOBAL BIODIVERSITY at 475; TREATIES IN FORCE at 406-407; Letter from George Penchev to David Downes, April 27, 1993.

45. DRAFT DOMESTIC LAW REPORT at Part 14.

46. GLOBAL BIODIVERSITY at 475.

47. SPIRIDONOV AND JURAS at 69, 71.

48. Id.

49. Interview with MOE DBPAF officials, Feb. 22, 1993.

50. Letter from George Penchev, Apr. 27, 1993.

51. Id.

52. BULGARIA UNCED REPORT at § 2.4.

53. Interview with Jeko Spiridonov, Director, MOE DBPAF, Feb. 25, 1993.

54. GLOBAL WARMING AND BIODIVERSITY (ROBERT L. PETERS AND THOMAS LOVEJOY, EDS. 1992).

55. Parties must notify the Convention secretariat of these mitigation policies and measures ("with the aim of" reducing emissions to 1990 levels) and their projected results.

56. MICHAEL OPPENHEIMER AND ROBERT H. BOYLE, DEAD HEAT: THE RACE AGAINST THE GREENHOUSE EFFECT 146 (1990).

57. BULGARIA UNCED REPORT at § 5.4.

58. DRAFT DOMESTIC LAW REPORT, Part 14.

59. William P. Gregg, Jr., MAB Biosphere Reserves and Conservation of Traditional Land Use Systems 278, in BIODIVERSITY: CULTURE, CONSERVATION AND ECODEVELOPMENT (MARGERY L. OLDFIELD AND JANIS B. ALCORN, EDS. 1991).

61. SPIRIDONOV AND JURAS at 69; GLOBAL BIODIVERSITY at 475.

62. Letter from George Penchev to David Downes, April 27, 1993. The Committee is an independent body, usually chaired by the director of the Institute of Ecology, Bulgarian Academy of Sciences. Id.

63. Interview with Jeko Spiridonov, Feb. 25, 1993.

64.Letter from George Penchev to David Downes, April 27, 1993.

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