Article 2. General provisions

175. Article 2 sets out certain general rules and principles that Parties must observe in implementation of the Protocol. It addresses a diversity of issues which are not addressed in detail elsewhere in the Protocol.

176. This is a fairly common type of provision in modern multilateral environmental agreements. Such provisions may restate generally recognized rules of international law, or refer to established principles of cooperation between Parties. The purpose of the provision is not to create new obligations as such, but to emphasize general rules that are considered especially important in the context of this particular Protocol, thus providing guidance to Parties for its implementation.

177. Article 2 sets out five general provisions.

178. This provision is a restatement of a general rule of international treaty law. A State that is a Party to an international treaty is bound by that treaty59 and must comply with its obligations under the treaty. For this purpose, it must ensure that activities carried out within areas under its jurisdiction or control are in accordance with the pertinent obligations. The Party may itself decide on the legal, institutional and other means through which to achieve implementation. The tools generally used by States for this purpose are a national legal framework setting out rights and obligations of persons (natural and legal) under its jurisdiction which aim at ensuring the implementation of the international instrument, and an institutional framework to apply and enforce the national legislation. The obligation on Parties to develop a national framework has a catalytic role: without it, many Parties might not have developed such a framework in the near future.

179. This obligation refers to the main component of the objective of the Protocol set out in Article 1, namely the conservation and sustainable use of biological diversity, taking also into account risks to human health (see Introduction). By stating that activities involving LMOs are to be carried out “in a manner that prevents or reduces risks”, Article 2(2) relates directly to the need for prior risk assessment as addressed in Articles 15 and 16. The provision reflects the preventive approach, which is widely recognized in modern international law. It emphasizes that legal rules should be designed to prevent damage from occurring rather than attempting to remedy damage after it has occurred.

180. Article 2(2) provides that Parties should be guided by the preventive approach in relation to the following activities involving LMOs:

181. These terms are not defined in Article 3 of the Protocol. Accordingly, they are to be understood in their everyday meaning.60 The list of activities set out here is very broad, the idea being that every situation involving LMOs should be covered. By contrast, Article 1 (Objective) only mentions “transfer, handling, and use”, which are the terms that appear in Article 19(3) of the CBD. Article 4, setting out the scope of the Protocol, refers to “transboundary movement, transit, handling and use” (see commentary on Article 4).

182. Article 2 covers activities which are not expressly included within the provision on scope of the Protocol in Article 4 – i.e. the “development”, “transport” and “release” of LMOs. Article 2 is thus wider in its application than other provisions of the Protocol. It establishes a requirement that Parties carry out any of the activities mentioned in accordance with the preventive approach. This ties in with the obligation on countries to develop the necessary mechanisms to carry out risk management, as laid down in Article 16(1). A similar approach is reflected in Article 8(g) of the CBD, which requires Parties to that Convention to control the risks associated with the use and release of LMOs that could have adverse effects on biological diversity.

183. This provision basically states that the rights and freedoms of States under the international law of the sea will not be affected by the provisions of the Protocol. This applies in particular to the provisions addressing the transit of LMOs through a third country and potential rights and obligations of the transit State in this context.

Box 11. Navigational rights and freedoms and transboundary movements of LMOS

The issue of navigational rights and freedoms is potentially relevant for any international legal instrument that sets out restrictions on international transfer or trade in a substance or product, or allows Parties to impose such restrictions. In accordance with customary international law as reflected in the 1982 UN Convention on the Law of the Sea (UNCLOS),61 States have sovereignty over their territorial sea and the airspace above their territory. They also have rights with respect to certain sea areas that are not part of their territory but that are adjacent to it, notably the exclusive economic zone and the continental shelf.

The territorial sea is considered part of the territory of the coastal State. It extends to 12 nautical miles beyond the “baseline” (which, roughly, follows the shoreline). Within its territorial sea, a State exercises sovereignty and thus, among other things, it has the right to adopt measures for the protection of the marine environment.62 The exclusive economic zone, which extends to 200 nautical miles beyond the baseline, is not a part of the coastal State's territory. However, in accordance with customary international law and UNCLOS, the coastal State has the exclusive right to exploit, manage and conserve natural resources within this zone. This includes the right to adopt measures to protect the environment, e.g. to control pollution.63

At the same time, customary international law and UNCLOS establish the right of innocent passage through the territorial sea, and the right of overflight.64

In the case of transit of potentially hazardous substances through the relevant areas, there is room for conflict between the rights of a coastal State and those of a State wishing to exercise its right of innocent passage or overflight. On the one hand, the coastal State has the right to adopt measures to reduce and control pollution in the relevant areas. This may include restrictions regarding substances that are potentially harmful to the environment. On the other hand, other States have the right of innocent passage or overflight with respect to these areas. This may include transit of potentially hazardous substances through the areas in question, as long as there is no attempt to deposit the substances. Article 2(3) of the Protocol simply reaffirms these rights, and states that the Protocol shall not affect them. It does not address or attempt to resolve any potential conflict between the coastal State and other States. An indication that the right to protect the environment within the relevant zones may take precedence over transit rights can be found in Part XII of UNCLOS, which establishes a general obligation of protecting the marine environment, including in particular rare or fragile ecosystems, as well as the habitat of depleted, threatened and endangered species.65 This can be understood to include protection against adverse effects of LMOs. Accordingly, States must always respect the obligation to protect the marine environment when exercising navigational rights and freedoms, and rights over marine areas.

The wording of Article 2(3) of the Protocol is taken verbatim from Article 4(12) of another international agreement, the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (“Basel Convention”). The Basel Convention was the first international legal instrument to address at the global level environmental aspects of transboundary movement of potentially hazardous materials. Many of the underlying issues are similar to those of the Protocol. For this reason, the Basel Convention served as a reference for a number of provisions of the Protocol, including Article 2(3). In the negotiations on the Basel Convention, the rights of transit States were among the most contentious issues in the negotiations. The resulting provision was criticized as inadequate at the time of adoption of the Basel Convention. The legal implications of the issue have never been resolved, and there appears never to have been a concrete case where a conflict arose.66

The wording of Article 4(12) of the Basel Convention is based on the understanding that the transit State is given an active role in a proposed transboundary movement. Under the Basel Convention, this is indeed the case: the prior informed consent procedure for hazardous wastes (i.e. the equivalent to the AIA procedure under the Protocol) is applicable to transit States. In the negotiations on the Protocol, application of the AIA procedure to transit States was also considered. However, the final text of Article 6(1) expressly states that the AIA procedure is not applicable to transit of LMOs. It merely refers to “any right of a Party of transit” to control transit unilaterally (see commentary on Article 6). As the Protocol does not accord transit States an express right to oppose transit movement in accordance with the AIA procedure, the relevance of Article 2(3) of the Protocol is even more limited than Article 4(12) of the Basel Convention. In fact, during the negotiations on the Protocol, there was disagreement as to whether this provision was needed at all.

184. This paragraph establishes that the rules contained in the Protocol are a “floor” rather than a “ceiling”– i.e. they are the minimum standard for achieving the objective of the Protocol that States could agree during the negotiations. 67 Some countries wished to impose more protective measures, or indeed already had more protective measures in place or under development. Parties will implement the Protocol through an appropriate legal and institutional framework at the national level. In enacting or adapting this framework, Article 2(4) reserves the right for Parties to adopt protective measures that go beyond the agreed minimum standard.

185. This freedom is not unlimited, however:

186. This provision recalls the issue of risks to human health (see Introduction and commentary on Article 1) and “encourages” Parties to take into account available expertise, instruments and work in other forums. The provision is not couched in mandatory terms, but serves as a reminder of the numerous efforts by other organizations to address the protection of human health in the context of LMOs, which might be integrated into the work under the Protocol but not duplicated. There are a number of organizations dealing with this issue, e.g. WHO and FAO: among other things, the two organizations jointly operate the Codex Alimentarius (see Introduction and Box 12).

Box 12. Codex Alimentarius and Genetically Modified Foods

The Codex Alimentarius Commission is a FAO/WHO body which elaborates standards, general principles, guidelines and recommended codes of practice in relation to food safety. As of 2002, there are at least three processes underway in the Codex Alimentarius Commission of relevance to the safety assessment and labelling of foods derived from modern biotechnology.

In 1999, the Codex Alimentarius Commission decided to establish a Task Force on Foods derived from Biotechnology. The Task Force met for the first time in March 2000 and decided to elaborate (a) a set of broad general principles for risk analysis of foods derived from biotechnology; (b) specific guidance on the risk assessment of foods derived from biotechnology; and (c) a list of available analytical methods including those for the detection or identification of foods or food ingredients derived from biotechnology. The Task Force is due to present its final report to the Commission in 2003. At its third meeting in March 2002 the Task Force agreed to advance Draft Principles for the Risk Analysis of Foods Derived from Modern Biotechnology and a Draft Guideline for the Conduct of Food Safety Assessment of Foods Derived from Recombinant DNA Plants for consideration by the Codex Alimentarius Commission in 2003.

In the meantime, the Codex Committee on General Principles is undertaking work on Draft Working Principles for Risk Analysis. These may address, among other things, the role of precaution in risk management.

The Committee on Food Labelling is in the process of considering draft recommendations for the Labelling of Foods Obtained through Certain Techniques of Genetic Modification/Genetic Engineering.

Other Codex Committees undertaking work relevant to foods derived from modern biotechnology include the Committee on Food Import and Export Inspection and Certification Systems and the Committee on Methods of Analysis and Sampling.

Domestic food safety measures that are in conformity with standards, guidelines and recommendations of the Codex Alimentarius are (rebuttably) presumed to be consistent with the WTO Agreement on Sanitary and Phytosanitary Measures (see Appendix).

Further information on the work of the Codex Alimentarius Commission is available at http://www.codexalimentarius.net

Relevant work is also underway in other fora, such as the Interim Commission on Phytosanitary Measures of the International Plant Protection Convention (see Introduction).


59 Vienna Convention on the Law of Treaties, Article 26.

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

61 In matters pertaining to rights of states over certain marine areas as well as to navigational rights and freedoms, UNCLOS is widely held to reflect customary law in the relevant areas.

62 Recognition of the international law principle of State sovereignty over the territorial sea can be found in Article 2 of UNCLOS.

63 The extent of a State's rights and jurisdiction over its exclusive economic zone and continental shelf is defined in Parts V and VI, respectively, of UNCLOS.

64 The extent and limits of the right of innocent passage by ships through a State's territorial sea are defined by Articles 17 to 32 of UNCLOS. Article I, sections 1–5, of the International Air Services Transit Agreement lay down the extent and limits of the freedom to transit through the airspace of States of aircraft pursuant to scheduled international air services.

65 UNCLOS, Article 192 and 194(5).

66 For a discussion of Article 4(12) of the Basel Convention, and the negotiations leading to its adoption, see Kummer, K. International Management of Hazardous Wastes – The Basel Convention and Related Rules (Oxford University Press, 2000), p.52 et seq.

67 Stec, S., Casey-Lefkowitz, S. and Jendroska, J. The Aarhus Convention: an Implementation Guide, UNECE/CEP/72 (United Nations, New York and Geneva, 2000) p. 45.

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