Article 1. Objective

In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements.

159. The objective provision sets out what the Protocol is designed to achieve: simply put, why was the Protocol negotiated and adopted? What is it for?

160. The objective also has a legal effect. States that sign the Protocol must not act against the objective, and the implementation of the Protocol must conform to the objective. Several operative provisions of the Protocol refer back to the objective in terms of the standard of conduct required by Parties (see for example Articles 2(4), 14, and 24)

161. A provision on the objective is found in most modern multilateral environmental agreements. The purpose of such a provision is to state, in fairly general terms, the aim that the treaty is meant to achieve: the reason for its existence. The provision on the objective establishes the frame within which actions have to be taken, setting the basis for the subsequent provisions with their more specific obligations. It also provides a point of reference or benchmark against which to measure activities undertaken under the treaty. The implementation of the treaty, as well as its further development, must conform to the objective. Suspected or alleged failure to conform to the objective when implementing the Protocol could be a matter for consideration by the compliance mechanism to be established in accordance with Article 34. In this spirit, other provisions of the treaty often state that specific rights of States are to be exercised “consistent with the objective” of the treaty. The Protocol contains such references in Article 2(4) in relation to the right of a Party to take more protective action than prescribed by the Protocol; Article 14(1) in relation to the right to enter into separate agreements on transboundary movements of LMOs; and Article 24 in relation to transactions with non-Parties. Although these provisions do not contain a direct reference to Article 1, the phrase “consistent with the objective of this Protocol” indicates that the objective as set out in Article 1 is to be adhered to in exercising the relevant rights and carrying out related activities.

162. Under the international law of treaties, a State that has signed a treaty but has not (yet) ratified it is under an obligation not to act contrary to the objective of that treaty, pending its entry into force.55 To give a concrete example: while a signatory State cannot be required to apply the AIA procedure as set out in the Protocol, it is obliged to refrain from transactions involving LMOs that would result in unacceptable risks to biological diversity, for example to permit uncontrolled release of LMOs in an ecologically sensitive area.

163. By the phrase “in accordance with the precautionary approach as contained in Principle 15 of the Rio Declaration, the objective of this Protocol is . . .” in the first sentence, Article 1 of the Protocol declares the precautionary approach to be the basis and point of reference for the Protocol. In other words, the objective as set out in Article 1 is understood to be in accordance with Principle 15 of the 1992 Rio Declaration. The spirit of Principle 15 thus underlies the Protocol in its entirety. The essence of the precautionary approach as laid down in Principle 15 is that lack of full scientific certainty is not to be used as a reason for postponing measures to prevent environmental damage, where there is a threat of serious or irreversible damage. The inclusion of precaution in the Protocol, and the form in which it should be included, was the subject of considerable controversy. 56

164. The main elements of the objective of the Protocol as set out in Article 1 are:

to contribute to ensuring an adequate level of protection

165. The Protocol does not set an absolute standard of protection against adverse effects of LMOs. There is a double qualification built into the provision. Firstly, the Protocol is intended to contribute to ensuring protection. It is thus not to be the only means of ensuring protection, but should be supplementary to protective action undertaken in other forms and within other frameworks. This presupposes that other relevant action is being taken, or that it needs to be taken, in addition to the action taken under the Protocol. Such other action may be taken in accordance with the applicable national legislation of countries, or under other existing and future international legal instruments. Secondly, an adequate level of protection is envisaged, a wording which is subject to interpretation. This may imply that the level of protection should be adjusted to the specific activity undertaken and to the particular risks associated with it. In other words, the more risky the activity, and the more serious the potential consequences if the damage materializes, the higher the level of protection required.

. . . in the field of safe transfer, handling and use of living modified organisms resulting from modern biotechnology

166. The objective of protection is to be met with respect to a range of activities involving LMOs resulting from modern biotechnology, namely transfer, handling and use. These terms are not defined in Article 3. Accordingly, they are to be understood in their everyday meaning.57 The reason why these three activities were singled out is that they appear in Article 19(3) of the CBD, which formed the basis of the mandate for the negotiation of the Protocol. By contrast, the list of activities set out in Article 2(2) (General Provisions) is much broader, the idea being that every possible situation involving LMOs should be addressed (see commentary on Article 2(2)). Article 4, setting out the scope of the Protocol, refers to “transboundary movement, transit, handling and use” (see commentary on Article 4).

167. The terms “living modified organism” and “modern biotechnology” are defined in Article 3 (see commentary on Article 3). This component of the objective is qualified in the last part of the sentence, which provides for a specific focus on LMOs subject to transboundary movement.

. . . that may have adverse effects on the conservation and sustainable use of biological diversity

168. Protecting biological diversity against possible adverse effects of LMOs was the first consideration underlying the mandate to negotiate the Protocol. In the negotiations on Article 1, it was clear at quite an early stage that the protection of biodiversity against potentially negative aspects of LMOs would be the essential element of the objective. The use of the wording “biological diversity” in the context of Article 1 indicates a fairly narrow definition of the object of protection. By contrast, a number of existing national laws extend the scope of protection to the environment as a whole, including not only biological diversity but also other parts of the environment such as air, water and soils. The reference to “conservation and sustainable use” of biological diversity takes up the first two elements of the objective of the CBD (Article 1, CBD). The phrase “may have adverse effects” indicates adherence to the precautionary approach: protection is called for not only if the adverse effects are a certainty, and have been established as such by full scientific evidence, but also if there is a threat of adverse effects. Some take the view that the reference in Article 1 (and in Article 4) to LMOs “that may have adverse effects” serves to limit the scope of the Protocol since it is only those which may have adverse effects to which the Protocol will apply. However, there is no specific mechanism in the Protocol for exempting LMOs from its scope on this basis. By contrast, under Article 7(4), it is possible for the COP/MOP to exempt from the AIA procedure (but not from the Protocol as a whole) LMOs identified as being not likely to have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health.

. . . taking also into account risks to human health58

169. In addition to potential damage to biological diversity, the risks to human health that LMOs may pose must also be taken into account in assessing and managing risks associated with LMOs. The wording “taking also into account . . .” constitutes a compromise between those who wanted to see protection of human health included in the objective of the Protocol, and those who felt that the objective should be limited to conservation and sustainable use of biological diversity. It is not certain what the effect of the wording “taking also into account risks to human health” implies in legal and practical terms for implementation of the Protocol. For example, what kinds of risks to human health will be taken into account: is it only those that result from some impact on biological diversity, or also more “direct” effects on human health (e.g. effects caused by consumption of LMOs or products containing LMOs)? Are these potential effects to be assessed in the same way as risks to biological diversity under the Protocol? Might potential effects on human health alone be sufficient to justify a restriction of imports of LMOs under the Protocol?

170. There seems to be widespread agreement that protection against indirect effects on human health i.e. resulting from effects on biological diversity, is part of the objective of the Protocol. Whether protection of direct effects on human health (e.g. effects caused by consumption of products containing LMOs) is also part of the objective is controversial, although the phrase “taking into account risks to human health” could support this interpretation.

171. During the negotiations some countries also proposed that other possible effects of LMOs be mentioned in the objective – for example socio-economic impacts or effects on animal health. These proposals are not reflected in the objective. There is, however, a separate provision in the Protocol on socio-economic considerations (Article 26).

. . . and specifically focusing on living modified organisms that are subject to transboundary movement

172. Article 1 provides for a specific focus on LMOs that are subject to transboundary movements, although the use of the term “specifically” indicates that the objective is not limited solely to transboundary movements of LMOs. Article 4 (on Scope) expresses a broader approach in that it lists “transboundary movement” as one of several activities involving LMOs to which the Protocol applies.

173. This somewhat convoluted wording reflects a compromise on a fundamental controversy that dominated the early negotiations of the Protocol: developing countries in particular favoured a Protocol covering all aspects of management and use of LMOs, which could to some extent compensate for the fact that at the time of the Protocol negotiations many developing countries did not have national legislation in place regulating LMOs. Most developed countries, on the other hand, were in favour of clearly limiting the scope of application of the Protocol to transboundary movements of LMOs.

174. The Protocol reflects both approaches. A number of provisions apply to transboundary movements only, most notably Articles 714 related to the AIA procedure. But there are also provisions covering transboundary movements as well as other forms of management and use. These include, among others, Article 16 (Risk Management), Article 22 (Capacity-Building), and Article 23 (Public Awareness and Participation). The broader approach is also reflected in the General Provisions (Article 2(2)), which go beyond the issue of transboundary movements by obliging Parties to ensure that “the development, handling, transport, use, transfer and release” of LMOs are carried out in amanner that prevents or reduces risks (see commentary on Article 2).

Box 10. Provisions relating to transboundary movements only and provisions addressing a broader scope of activities

Whether or not a provision applies only to transboundary movements of LMOs or has a broader scope may be subject to interpretation and it is not possible to give definitive guidance here at this stage. The table below makes an initial attempt to identify provisions of the Protocol applying to transboundary movement only and those with a broader application. The distinction is made on the basis of whether or not the core of the provision is limited to transboundary movements; in other words, looking at the general content of a provision rather than at whether or not the wording contains the specific term “transboundary movement”. In some instances, one paragraph of an article relates to transboundary movement only, while another one has a broader scope.

55 Vienna Convention on the Law of Treaties, Article 18; see also Glowka et al. A Guide to the Convention on Biological Diversity (IUCN, Gland and Cambridge, 1994), p. 15. On entry into force see Article 37 of the Cartagena Protocol.

56 See Introduction for further discussion of Principle 15 Rio Declaration.

57 Vienna Convention on the Law of Treaties, Article 31.

58 See section on human health in the Introduction for a further discussion of this issue.

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