Article 17. Unintentional transboundary movements and emergency measures

463. While much of the Protocol is concerned with the intentional transboundary movement of LMOs, LMOs can also cross national boundaries unintentionally. Article 17 deals with issues related to inter-State cooperation and preventive measures in the event of such unintentional transboundary movements of LMOs.

464. Article 17 recognizes that LMOs may spread across national boundaries, posing potential risks to biodiversity and human health within the jurisdiction of other States. With a view to avoiding such risks, Article 17 contains a series of obligations, which primarily address the duty to notify and to consult in the event of unintentional transboundary movements of LMOs.

465. Under existing general international law, States have a general obligation to prevent or minimize transboundary harm. This implies that States have an obligation to take appropriate measures to prevent incidents that may cause such harm. The obligation of prevention has a continuing character. In other words, it applies from the planning stages of the proposed activity to the operational stages. In the framework of the Protocol, Parties are required to prevent or minimize the risks of unintentional transboundary movements of LMOs.

466. The complement of the obligation of prevention is the duty to cooperate in matters relating to the unintentional transboundary movement of LMOs. In this respect, Chapter 16 of Agenda 21 (Environmentally Sound Management of Biotechnology) also calls for cooperation in providing immediate assistance in cases of emergencies that may arise in relation to the use of biotechnology products.

467. The Protocol does not include a definition of “unintentional transboundary movement”. Unintentional transboundary movement can be contrasted with transboundary movements addressed in other provisions of the Protocol, which are covered by the definition in Article 3(k). The key element here is whether the transboundary movement is a deliberate one or not. Thus, an intentional introduction of a LMO into the environment of a Party (i.e. a deliberate release) may in certain circumstances give rise to an unintentional transboundary movement of that LMO to another State. Alternatively, an accidental release in a Party (e.g. from a contained use facility) may give rise to an unintentional transboundary movement.

468. The four paragraphs of Article 17 set out various obligations concerning notification and consultation in cases of unintentional transboundary movements. Article 17(1) deals with the obligation of the Party where the incident occurred to notify any affected or potentially affected States as well as the Biosafety Clearing-House. Article 17(2) requires Parties to designate a point of contact for receiving notifications. Article 17(3) describes the minimum information that any notification should contain. Finally, Article 17(4) refers to the obligation to hold immedconsultation to minimize any significant adverse effects on biodiversity and human health.

469. Article 17(1) addresses the obligation to notify other States in the event of an unintentional transboundary movement of a LMO. It now seems to be recognized that customary international law requires a State to notify other affected States where an incident within its jurisdiction may give rise to significant harm to the environment of other States. There are a number of treaties that develop, to different degree and detail, the procedural aspects of the obligation to notify.95 In addition, Principle 18 of the 1992 Rio Declaration on Environment and Development calls for immediate notification of any natural disasters or other emergencies.

470. In the context of the conservation and sustainable use of biodiversity, the CBD provides that Parties shall immediately notify the potentially affected States of imminent or grave danger of damage to biodiversity (Article 14(1)(d) CBD).

Box 31. Article 14(1)(d) CBD

Each Contracting Party, as far as possible and as appropriate, shall:

    ...

471. Although Article 17 of the Protocol focuses on the issue of unintentional transboundary movements of LMOs, it is worth noting that, in certain respects, it represents a development from Article 14 of the CBD. Article 17 specifies in more detail the procedural aspects of the obligation to notify, and it does so in mandatory language, avoiding qualifications such as “as far as possible and as appropriate” that appear in the CBD. Additionally, the Protocol lowers the threshold that triggers the obligation to notify by referring to “significant adverse effects” instead of “imminent or grave danger or damage” as in Article 14 of the CBD.

472. Article 17(1) describes a series of conditions that have to be fulfilled before the obligation of notification arises. Its main elements correspond to the following questions:

What kind of measures are States bound to take?

473. Article 17(1) indicates that “Each Party shall take appropriate measures to notify affected or potentially affected States, the Biosafety Clearing-House, and where appropriate, relevant international organizations”. The obligation to “take appropriate measures” implies a duty of due diligence which requires each Party to take the necessary legal, administrative or other measures to implement its duty of notification (see also Article 2(1)). It is up to each Party individually to decide how they will give full effect to this obligation, as long as they do it immediately after any known incident. Parties have the flexibility to decide which authority will be in charge of this function. They might mandate the designated national focal point or competent national authority (Article 19), or the point of contact under Article 17(2) to perform this task. Presumably, the notification has to be made in written form. However, if Parties so agree, through bilateral or regional arrangements, they may also make use of other modalities and more expedient means of communication.

To whom shall the notification be addressed?

474. The notification shall be sent to:

475. Notifications have to be sent to all those affected or potentially affected States. This obligation is owed by Parties to other States, not only to other Parties to the Protocol. While non-Parties to the Protocol are, of course, not specifically bound by the provisions of Article 17(1), they are nonetheless also under some duty under customary international law to notify other affected and potentially affected States where an event occurs in their jurisdiction which could cause significant harm to the environment of another State (see Box 32 below).

476. The role of the Biosafety Clearing-House (see commentary on Article 20) is important here. Notification to the Biosafety Clearing- House is likely to promote effective international cooperation to deal with unintentional transboundary movements of LMOs.

477. The Party of origin may also notify relevant international organizations in the event of an unintentional transboundary movement. The relevant international organizations are not identified in the Protocol but depending upon the circumstances of the release may include organizations with appropriate expertise, such as, for example, UNEP or FAO. The term would also appear to include relevant regional organizations.

What conditions and circumstances are required to trigger the obligation to notify?

478. This part of Article 17(1) gives rise to a variety of issues. The text provides that the relevant Party shall notify

when it knows of an occurrence under its jurisdiction resulting in a release that leads, or may lead, to an unintentional transboundary movement of a living modified organism that is likely to have significant adverse effects on the conservation and sustainable use of biological diversity, taking into account risks to human health.

479. The first issue is that there has to be a “known” occurrence. Only occurrences that come to the knowledge of the Party trigger the obligation to notify. The expression “when it knows” needs to be read in light of the continuing character of the obligation of prevention and of evolving scientific and technological knowledge and developments in biotechnology. Accordingly, Parties are required to take all appropriate measures to monitor existing activities concerning LMOs (see also Articles 7 and 8(g) of the CBD and Article 16 of the Protocol) during the planning and the operational stages.

480. In practice, the meaning and interpretation of the expression “when it knows” may lead to disagreement. Knowledge may be inferred from the particular facts of the relevant unintentional transboundary movement and the particular circumstances of the Parties involved. This may give rise to the question of whether a developing country Party should be subject to the same standard as a Party with advanced capacity in modern biotechnology. The effective implementation of this Article is likely to require extensive human, financial and institutional resources. In this respect, capacity-building cooperation (see commentary on Article 22), in relation to, for example, risk management and monitoring, constitutes a crucial component for the effective implementation of Article 17.

481. Article 17(1) refers to an “occurrence” under the jurisdiction of the Party. The term “occurrence” is not defined, but it may consist, for example, of an accidental release of LMOs, a failure in risk management measures, or identification of an unexpected spread of LMOs within the Party of origin. An intentional introduction of a LMO into the environment of a Party would not appear, of itself, to constitute an occurrence for the purposes of Article 17, unless that release has already been identified as possibly giving rise to an unintentional transboundary movement of the LMO concerned. In such circumstances, customary international law would appear to require prior consultation with potentially affected States. Article 16(3) requires each Party to take appropriate measures to prevent unintentional transboundary movements of LMOs, including such measures as requiring a risk assessment to be carried out prior to the first release of a LMO. More generally, Article 8(g) of the CBD requires CBD Parties to establish or maintain means to regulate, manage or control risks associated with the use and release of LMOs.

482. Under Article 17(1), the “occurrence” in question has to take place in the jurisdiction of the Party of origin. This means in any part of its territory, including its territorial sea, and other maritime zones adjacent to its territorial sea (the continental shelf and the exclusive economic zone), as well as occurrences on board its registered aircraft and on ships flying its flag.

483. Article 17(1) further requires that the known occurrence “leads or may lead” to an unintentional transboundary movement. While in some cases this may be presumed by virtue of the proximity to border of other States, in other circumstances this may be difficult to establish. Potential gaps in knowledge about the potential spread of a given LMO may call for the application of the precautionary approach in accordance with Article 1 of the Protocol.

484. The precautionary approach is also relevant for the interpretation of the expression “likely” to have a significant adverse effect on biological diversity and human health. Uncertainties regarding the impacts of LMOs on biodiversity in different environments may complicate any conclusive answer to the question of whether a particular LMO is “likely” to have a significant adverse effect in the affected or potentially affected States. In light of these uncertainties, the precautionary approach will be relevant, in particular if centres of origin and of genetic diversity are involved, or other vulnerable components of biodiversity identified in accordance with the CBD (Article 7 and Annex I of the CBD).

485. Article 17(1) also refers to “significant adverse effects” on biodiversity, taking into account risks to human health, in affected or potentially affected States. This wording introduces a threshold that needs to be reached to trigger the obligation of notification. The term “significant” is found in a variety of international instruments. It is also found in the Preamble and other provisions of the CBD. According to the International Law Commission, the word “significant” is generally taken to refer to adverse effects which are more than detectable but not necessarily serious or substantial.96 Its interpretation needs to be tested against the particular background and circumstances of each occurrence. In cases where it is not possible to determine if the threshold has been exceeded, the application of the precautionary approach may be relevant, again perhaps especially where centres of origin and of genetic diversity may be affected.

486. Article 17 is silent on matters related to unintentional transboundary movements of LMOs which affect or potentially affect areas beyond the limits of national jurisdiction (for example, the high seas).

When must the notification be made?

487. The last part of Article 17(1) deals with the issue of notification “as soon as” the Party of origin knows of the relevant occurrence. This formulation appears to indicate that notification has to take place immediately or without delay after the situation is known. Generally, customary international law, treaties and other instruments, require States to notify immediately or without delay in cases of transboundary environmental emergencies. Again, appropriate information management systems and adequate human and financial resources will be important factors in enabling Parties to fulfil their obligation to notify in a timely manner.

488. Parties to the Protocol are required to make available to the Biosafety Clearing-House the details of the point of contact to receive notifications. They are obliged to do so before the date of the entry into force of the Protocol for them.

489. At the national level, the contact point might be the same body as the national focal point or a competent national authority designated under Article 19. However, it could also be some other agency.

490. Clearly, non-Parties to the Protocol cannot be required under Article 17(2) to notify a contact point for these purposes. The Protocol does not specify to which entity in an affected or potentially affected State notification should be made in the event that that State is not a Party to the Protocol. For non-Parties to the Protocol which are nonetheless Parties to the CBD, the obligations in Articles 5 and 14(1) of the CBD with regard to cooperation in respect of matters of mutual interest for the conservation and sustainable use of biological diversity may be relevant.

491. Article 17(3) describes the minimum information that any notification to affected or potential affected States should contain.

492. Article 17(3) (a) – (c) refers generally to information related to the particular characteristics of the LMOs concerned and the circumstances concerning the occurrence giving rise to the unintentional transboundary movement. It also requires information about the possible adverse effects on biodiversity and human health, and possible related risk management measures.

493. Article 17(3) does not specify the format or language in which the notification should be provided to affected or potentially affected States. The general obligation of due diligence to prevent harm would suggest that the Party of origin and affected and potentially affected States should cooperate to ensure that information is provided in an effective and useable form.

494. An additional issue under Article 17(3) is to what extent Article 21 of the Protocol on confidential information affects the information requirements under Article 17. However, Article 21(5)(d) of the Protocol excludes from confidentiality the information relating to any methods and plans for emergency response. This is likely to cover certain information made available under Article 17.

495. Parties of origin of unintentional transboundary movements of LMOs do not discharge their obligations by simply notifying other States. The obligations of prevention and cooperation require States to offer any assistance to minimize any significant adverse effects to biodiversity and human health and to request immediate consultations to agree upon any applicable emergency measures.

496. Article 17(4) provides for immediate mandatory consultations. It seems clear that the Party in which the occurrence has taken place is obliged to offer consultations simultaneously with the notification. If there is more than one potentially affected State, joint consultations among all the States concerned may be more practical.

497. The main objective of this paragraph is to “minimize” any significant adverse effects. The word “minimize” implies the lowest possible level of significant adverse effects to biodiversity and human health. In order to minimize any impacts, the primary aim of consultations is to enable States concerned to assess the particular situation with a view to determining any appropriate responses and the nature and magnitude of the necessary actions, including emergency measures.

498. It is widely recognized that any consultation process needs to be conducted in good faith and with a genuine intent to arrive at agreed solutions.

499. In order to be consistent with the continuing character of the obligation of prevention, it may be necessary to maintain ongoing consultations throughout the emergency operation, and even afterwards, to adequately monitor for any possible unidentified adverse effects.

500. Finally, as part of their duties on prevention, Parties may wish to develop bilateral or regional contingency plans concerning unintentional transboundary movements. For its part, the CBD encourages the development of joint contingency plans. (Article 14(1)(e) CBD; see also Article 5 CBD).

501. The types of responses and actions that may be taken in relation to an unintentional transboundary movement are not specified but are to be determined by the States concerned, presumably in the light of the nature and scale of the transboundary movement in question and the possible adverse effects on biodiversity and human health.

Box 32. Article 17 and non-parties

As noted above, where a relevant occurrence takes place in a Party to the Protocol, it is obliged to notify all affected and potentially affected States, whether or not those States are themselves Parties to the Protocol. This is consistent with the Protocol's objective to ensure an adequate level of protection with regard to the conservation and sustainable use of biological diversity, taking also into account risks to human health.

The situation is different where the State in which the occurrence occurs is a non-Party to the Protocol. Under general international law, a treaty does not create obligations or rights for non-Parties, without their consent. However, this general principle is without prejudice to existing obligations under international customary law (Article 38, 1969 Vienna Convention on the Law of Treaties) – i.e. if a treaty or part of it reflects customary international law then all States are bound by it (or by the relevant part of it) regardless of whether they become parties to the treaty.

Existing international law regards as customary rules the general obligations of prevention and cooperation, as well as their related procedural obligations of notification and consultation, in cases of transboundary environmental emergencies. Accordingly, even non-Parties to the Protocol are bound to notify immediately and consult with affected or potentially affected States (Parties and non-Parties alike) in the event of an unintentional transboundary movement of LMOs from their jurisdiction that leads or may lead to significant adverse effects in other States. However, they are not bound by the specific procedures established for such notifications under Article 17 of the Protocol.

Even though non-Parties are not obliged to contribute information to the Biosafety Clearing-House, it seems that by designating a point of contact for notifications, non-Parties will be contributing to ensuring an effective response to any unintentional transboundary movement. They will also be taking steps to discharge their respective obligations under customary international law. In addition, the Protocol requires the Parties to encourage non-Parties to contribute appropriate information to the Biosafety Clearing-House on LMOs released in, or moved into or out of areas within their national jurisdictions (Article 24(2)).


95 For example, the 1982 UNCLOS (Articles 198 and 211(7)); the 1986 Convention on Early Notification of a Nuclear Accident (Article 2); the 1989 Basel Convention (Article 13); the 1992 UN-ECE Convention on the Transboundary Effects of Industrial Accidents (Article 10) (which expressly excludes from its scope the cases of accidental release of genetically modified organisms); and the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses (Article 28).

96 Commentaries on the Draft Articles on Prevention of Transboundary Harm, adopted by the International Law Commission at its fifty-third session (2001), Article 2, para. (4), UN Document A/56/10, November 2001.

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