Article 22. Capacity-building

570. It is widely recognized that, if the Protocol is to be effective, support is needed to build the capacity of developing countries and countries with economies in transition in the field of biosafety. Many such countries currently lack adequate human, technical and financial resources to implement the Protocol fully: for example to undertake risk assessment and risk management of LMOs, or to monitor LMOs once released into the environment.

571. Article 22 seeks to address these needs. It requires Parties to cooperate in building capacity for implementation of the Protocol in developing country Parties and Parties with economies in transition. It particularly recognizes the needs of least developed countries and small island developing States in this regard.

572. Article 22 of the Protocol is closely linked to Articles 16 and 18 of the CBD. Article 16 of the CBD requires Parties to the CBD to provide and facilitate access to and transfer of technologies that are “relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment”. Access to and transfer of technology, if directed towards developing countries, are to be provided “under fair and most favourable terms.” Article 18 of the CBD requires Parties to undertake technical and scientific cooperation, especially with respect to the development and strengthening of national capabilities in human resources development and institution building.

573. Article 22(1) sets out the general obligation of cooperation in respect of capacitybuilding. The inclusion of a reference to “biotechnology” in Article 22(1) was initially opposed by some countries in the negotiations. Some developing countries viewed it as an attempt by developed countries with strong biotechnology industries to promote trade in biotechnology products and services (including LMOs) rather than to promote biosafety. On the other hand, some developed countries proposed limiting the scope of the Article to issues relating to transboundary movements since making an unqualified reference to biotechnology and biosafety would make the scope of the Article extend beyond the Protocol, and may have obliged them to undertake more wide-ranging activities to build biotechnology capacity.

574. The text of Article 22(1) reflects the compromise solution agreed – i.e. capacity-building efforts should cover biotechnology “to the extent required for biosafety”. Furthermore, the scope of Article 22(1) is further clarified by the statement that cooperation in capacity-building is “for the purpose of the effective implementation of this Protocol”. The Executive Secretary to the CBD noted, in relation to the capacity-building provisions of the Protocol, that:

The scope of capacity-building usually includes the assessment of needs, identification of options at the national (and possibly regional) level, the development and strengthening of relevant institutions, the development of skills and expertise in human resources, including through education and training, establishment of necessary scientific and information management facilities, and assessments for technology transfer. These and other areas of capacity-building are generally supported through the provision of external technical assistance and financial resources on a bilateral, multilateral or private basis.105

575. Under Article 22(1), Parties are expected to cooperate with each other to develop and strengthen the human resources and institutional capacities of developing countries and Parties with economies in transition in the field of biosafety. Such cooperation may be achieved in the framework of existing “global, regional, subregional and national institutions and organizations”. Parties also have the option to promote the involvement of private sector actors in capacity-building activities under Article 22(1).

576. The first sentence of Article 22(2) of the Protocol makes reference to the provisions of the CBD relating to the provision of financial resources and access to and transfer of technology (see commentary on Article 28). Under the provisions of Article 20(2) of the CBD, developed country Parties are required to provide “new and additional financial resources” to developing country Parties to enable them to meet the costs of implementing their obligations under the CBD. Under Article 20(4) of the CBD, the implementation by developing country Parties of their commitments will depend on the degree to which developed country Parties provide financial resources and technology transfer to the former. The precise implications of CBD provisions on technology transfer are not clear. Article 16(2) of the CBD requires that access to and transfer of technology to developing country Parties must be under “fair and most favourable terms”. Such terms may include preferential or concessional terms – i.e. at or below market terms – if mutually agreed upon. Technology transfer may also be in accordance with, as necessary, the CBD's provisions on financial resources and mechanism. Furthermore, such technology transfer must recognize intellectual property rights that may be attached to the technology.106 Discussion on the implementation of Article 16 are ongoing in the CBD COP.

577. Article 22(2) of the Protocol also describes the general areas in which capacity-building cooperation is to be undertaken. These are:

578. Thus there are three “kinds” of capacity that need to be addressed for the effective implementation of the Protocol:

579. In providing for or developing these capacities, the Protocol recognizes that no single model will fit the situation of all countries, but that capacity-building should be tailored to fit the specific national context of the country whose capacity is being assisted and developed. Hence, cooperation in capacity-building is subject to and must take into account the different situations, capabilities and requirements of each Party.

580. Furthermore, cooperative capacity-building efforts by the Parties to the Protocol must be targeted at ensuring the effective implementation of Parties' obligations under the Protocol. The specific obligations in the Protocol most relevant for purposes of capacity-building are listed in the “tool kit” adopted by ICCP3.107 This has been reproduced for ease of reference in the Supplementary Materials at the end of this Guide. It provides a useful checklist for reference for implementation of the Protocol.

Capacity-Building Action Plan

581. In October 2001, at its second meeting, the Intergovernmental Committee on the Cartagena Protocol endorsed the Action Plan for Building Capacities for the Effective Implementation of the Cartagena Protocol on Biosafety. The objective of this Action Plan is to facilitate and support the development and strengthening of capacities for the ratification and effective implementation of the Protocol at the national, sub regional, regional and global levels in a timely manner. It recognizes that financial, technical and technological support to developing countries is essential, in particular the least developed and small island developing States among them, as well as countries with economies in transition, taking into account also countries that are centres of origin and centres of genetic diversity. To achieve its objective, the Action Plan aims at identifying country needs, priorities, and mechanisms of implementation, as well as sources of funding.108 The ICCP recommended that the COP/MOP request the GEF and other donors (see commentary on Article 28) to take the Action Plan into account when providing assistance to developing country Parties and Parties with economies in transition towards ratification and effective implementation of the Protocol.

582. The ICCP identified the following key elements requiring action:

583. The analysis in Box 39, developed by the Secretariat of the CBD, identifies the required capacities for implementation of the Protocol obligations. This indicative list was incorporated into the Capacity-building Action Plan endorsed by the ICCP in its Recommendation 2/9.

Box 39. Indicative list of areas of advice and support for the roster of experts for implementation of the Cartagena Protocol

Roster of experts

584. Discussions relevant to capacity-building have also taken place in relation to Article 10(7) of the Protocol, on procedures and mechanisms to facilitate decision-making by Parties of import. These mechanisms, and capacity-building under Article 22, are likely to draw upon the roster of experts established in Decision EM-I/3. Paragraph 14 of Decision EM-I/3 provides:

Decides to establish a regionally balanced roster of experts nominated by Governments, in fields relevant to risk assessment and risk management related to the Protocol, to provide advice and other support, as appropriate and upon request, to developing country Parties and Parties with economies in transition, to conduct risk assessment, make informed decisions, develop national human resources and promote institutional strengthening, associated with the transboundary movements of living modified organisms;

585. The ICCP also recommended that the COP/MOP adopt a Coordination Mechanism for the implementation of the Action Plan, to be administered by the Secretariat.109 This would include a regionally balanced liaison group on capacity-building for biosafety to provide advice to the Secretariat and the COP/MOP, and a biosafety capacity-building projects database, as well as other mechanisms.

586. The Biosafety Clearing-House will provide a source of information on capacity-building initiatives in biosafety. This information is currently available in the Biosafety Clearing- House pilot phase at In practice, relevant capacity-building initiatives are likely to be undertaken by a wide range of actors including governments, intergovernmental organizations, the private sector and non-governmental organizations.

105 UNEP/CBD/ICCP/1/4 Capacity Building (Article 22, Article 28): Indicative framework for capacity-building under the Cartagena Protocol on Biosafety – Note by the Executive Secretary, paragraph 2.

106 See, for example, discussion in Glowka et al. (1994) pp. 86-91. Chapter 34 (Transfer of Environmentally Sound Technology, Cooperation And Capacity-building) and Chapter 37 (National Mechanisms and International Cooperation for Capacity-building) of Agenda 21 also provide guidance on capacity-building efforts in environmental matters at the national level.

107 ICCP Recommendation 3/5, UNEP/CBD/ICCP/3/10, Annex III; see Supplementary Materials.

108 ICCP Recommendation 2/9, UNEP/CBD/ICCP/2/15, Annex.

109 ICCP Recommendation 3/5, UNEP/CBD/ICCP/3/10.

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