Article 24. Non-Parties

599. Article 24 addresses the obligations of Parties in relation to the transboundary movement of LMOs to and from non-Parties to the Protocol. As noted in relation to Article 17, as an international treaty, the Protocol cannot create binding obligations for non- Parties – if a State chooses not to become a Party to the Protocol it will not be bound by the Protocol rules (see Box 32 and Box 43). Non-Parties to the Protocol may include States which are not Parties to the CBD.

600. However, Article 24 of the Protocol does govern the conduct of Parties in relation to the transboundary movement of LMOs between Parties and non-Parties. Article 24 requires such transboundary movements to be consistent with the Protocol's objective but does not require that they be carried out in precise accordance with the Protocol's detailed provisions, such as the AIA procedures.

601. It should be noted that States which are not Parties to the Protocol, but which are Parties to the CBD, will remain bound by relevant CBD requirements including those contained in Article 8(g) and Article 19(4) of the CBD. These are discussed in the Introduction.

602. The relationship between Parties and non- Parties is an important issue in international environmental agreements, especially those addressing trade in substances or products that are potentially harmful to the environment. In general terms, provisions on potential dealings between Parties and non-Parties to a treaty aim to:

These two aims are reflected in Article 24 of the Protocol: Article 24(1) addresses the first aim, and Article 24(2) the second. As illustrated in Box 42, these aims have been addressed in different ways in different multilateral environmental agreements.

Box 42. Approaches to transboundary movements between Parties and non-Parties in selected multilateral environmental agreements

As this indicates, some multilateral environmental agreements addressing trade in potentially harmful substances allow Parties to trade with non-Parties only if a minimum standard of protection is applied. This can be achieved by:

603. The question whether or not the Protocol should permit transboundary movement of LMOs from or to non-Parties, and if so, to what extent its provisions should apply to such transboundary movements, was one of the more contentious issues in the Protocol negotiations. A proposal to prohibit transboundary movement of LMOs to or from non-Parties altogether met with considerable opposition and was eventually dropped. Some countries raised the concern that a prohibition on transboundary movements of LMOs between Parties and non-Parties could be challenged as an import or export ban under the WTO. The question as to whether transboundary movement from or to non- Parties should be consistent with the “objective” or with the “provisions” of the Protocol was also extensively discussed.

604. The resulting text of Article 24 allows Parties to engage in transboundary movements of LMOs with non-Parties, but only under certain conditions.

605. This provision addresses the aim of ensuring that Parties adhere to a standard of protection consistent with the Protocol in relation to their dealings with non-Parties. It requires that transboundary movement of LMOs between Parties and non-Parties must be “consistent with the objective of this Protocol”.

606. Since the Protocol cannot create obligations for non-Parties, Article 24(1) makes it the responsibility of any Party conducting transboundary movements with a non-Party to ensure consistency with the objective of the Protocol. In order to be consistent with the Protocol's objective, an Article 24 arrangement or agreement would need to be in accordance with the precautionary approach contained in Principle 15 of the Rio Declaration, and contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of LMOs that may have adverse effects on biological diversity, taking also into account risks to human health. While the agreement or arrangement would not need to replicate the same procedures and techniques, such as the AIA provisions, contained in the Protocol it should provide for equivalent measures necessary to achieve an adequate level of protection. Thus, as a minimum, it should provide for a mechanism to ensure safe transfer, handling and use of LMOs, and for a method to provide the importing country with an opportunity and a basis for deciding whether or not to consent to the import of LMOs. (See also commentary on Article 9, paragraphs 302 and 303).

607. Parties may conclude separate agreements with non-Parties to govern transboundary movements of LMOs, but they are not obliged to do so. If such an agreement is concluded, its relationship with the Protocol will be governed by the applicable rules of international law as codified in the Vienna Convention on the Law of Treaties (see commentary on Article 14).

608. As noted in relation to Article 14, one question which arises in relation to Article 14 is whether the “additional” standard set in that Article for bilateral, regional and multilateral agreements and arrangements also applies to such agreements and arrangements between Parties and non-Parties under Article 24(1). Article 24(1) requires that transboundary movements of LMOs between Parties and non-Parties are “consistent with the objective of this Protocol”. Article 14(1) requires that such agreements and arrangements must be “consistent with the objective of this Protocol” and also must “not result in a lower level of protection than that provided for by the Protocol. Two possible interpretations have been put forward:

609. Thus, there are arguments to support each interpretation, although the text of the Protocol would appear more strongly to support the first. In practice, however, the distinction may not be of major significance. As an international treaty, the Protocol is, of course, not binding upon non-Parties without their consent. However, one or more of the parties to the bilateral, regional or multilateral agreement or arrangement will be a Party to the Protocol. As such, it will remain bound by its obligations under the Protocol. These include, for example:

610. As Parties to the Protocol will also be in every case Parties to the CBD, relevant obligations will also include those contained in Article 8(g) and Article 19(4) CBD. States which are not Parties to the Protocol, but which are Parties to the CBD will also remain bound by Article 8(g) and Article 19(4) CBD (see Introduction). In accordance with Article 2(4), and subject to agreement with the non- Party concerned, agreements and arrangements entered into under Article 24(1) could also establish a higher level of protection than that provided for by the Protocol.

611. Where a Party enters into such agreements and arrangements with non-Parties, it must provide information on those agreements and arrangements to the Biosafety Clearing- House under Article 20(3).

612. The application of Article 24 in practice may differ according to whether the Party to the Protocol is the Party of import or the Party of export of the LMO. The following considerations, for example, may be relevant:

In practice, for reasons of regulatory efficiency, one might expect Parties to the Protocol to deal with imports from and exports to Parties and non-Parties within the same regulatory framework.

Box 43. Responsibilities of the States involved in transboundary movement between Party and non-Party

613. Parties must “encourage” non-Parties to adhere to the Protocol, i.e. to apply its principles or to become Parties. The way in which they do this is left open. It may include active encouragement, for example by pointing out the advantages of Party status or by providing technical, financial or institutional support for adherence to the Protocol.

614. Article 24(2) also encourages States that are not Parties to provide information to the Biosafety Clearing-House on transactions related to LMOs in which they have been involved. The aim is to gather as much relevant information as possible and make it available to all Parties, in accordance with the general function of the Biosafety Clearing-House (see commentary on Article 20).

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