Article 25. Illegal transboundary movements

615. As explained in earlier sections of this Guide, the Protocol provides for the regulation of transboundary movements of certain categories of LMOs, primarily through the AIA procedure. Article 25 addresses the situation where transboundary movement of LMOs takes place in contravention of national regulations implementing the Protocol. In essence, Article 25:

616. Article 25(1) obliges Parties to adopt appropriate domestic measures aimed at preventing and penalizing transboundary movements carried out in contravention of domestic measures to implement the Protocol. The term “domestic measures” refers to the legal and institutional framework that a Party adopts to implement its obligations under the Protocol. The domestic measures must be designed so as to ensure that persons under the national jurisdiction of the Party act in accordance with the rules of the Protocol.

617. As the term “transboundary movement” means “the movement of a living modified organism from one Party to another Party” (and in certain circumstances between Parties and non-Parties), Article 25(1) would appear to cover imports and exports of LMOs carried out in contravention of relevant domestic measures. Article 25(1) specifies that a Party should adopt both measures to prevent persons under its jurisdiction from carrying out illegal transboundary movements, and measures to penalize infringement of the preventive measures, where it considers this appropriate.

618. Article 25(1) appears to cover all LMOs that are subject to the Protocol's provisions on transboundary movement, even if they are not subject to the Protocol's AIA procedure. Thus transboundary movements of LMOs destined for contained use in the Party of import, LMOs in transit and LMO-FFPs could be deemed illegal under Article 25(1) if they are carried out in contravention of domestic measures to implement the Protocol.

619. Article 25(1) sets out the definition of illegal transboundary movements. These are “transboundary movements of living modified organisms carried out in contravention of its domestic measures to implement this Protocol”. It is notable that the illegal nature of a transboundary movement is judged by reference to a Party's domestic measures to implement the Protocol, rather than directly by reference to the provisions of the Protocol itself. This appears to recognize the flexibility and discretion accorded to Parties in their implementation of the Protocol. However, what is the legal situation if a transboundary movement of LMOs is carried out under the jurisdiction of a Party, in direct contravention of the provisions of the Protocol (e.g. the AIA procedure), but the Party in question has not enacted domestic measures on this issue? This situation is not addressed by the Protocol.110 The reference to domestic measures here means that the Protocol will not necessarily provide a universal standard of what is considered an illegal transboundary movement. The higher the standards set by the implementing legislation of a Party, the more types of behaviour will be classified as illegal transboundary movement. It is possible that the same conduct related to a movement of a LMO could be considered illegal in one Party but legal in another. Thus it is important to have regard to the specific national legislation of the Party of import and Party of export and any transit Party in relation to each transboundary movement of a LMO within the scope of the Protocol.

620. Article 25(2) addresses the legal relationship between the Party from which the illegal transboundary movement originated, and the Party affected by the transboundary movement. The two States involved are termed “the Party of origin” and “the affected Party”, without providing criteria to determine when a Party is considered “of origin” or “affected”. Since illegal transboundary movements are defined in Article 25(1) as movements carried out in contravention of domestic measures to implement the Protocol, the “Party of origin” is presumably the Party where the movement has originated in contravention of that Party's domestic legislation or the relevant legislation of the Party of import. The “affected Party” is presumably any Party in which LMOs are present in contravention of the domestic legislation of that Party implementing the Protocol, regardless of whether it is the Party “of import”, a transit Party, or a neighbouring Party that suffers damage through a spillage occurring near its border (see commentary on Article 17).

621. The affected Party may request the Party of origin to re-import, or otherwise dispose of the LMOs, at its own expense. This does not mean that the Party of origin will necessarily take the relevant measures itself. It may provide, either in its national legislation, or on a case-by-case basis, that they are to be taken by the person or entity responsible for the illegal transboundary movement, or it may require that person or entity to bear the costs of such measures.

622. Unlike the equivalent provisions of the Basel Convention, which clearly state that the Party responsible for an illegal transboundary movement “shall ensure” that the wastes are appropriately disposed of,111 Article 24(2) of the Protocol is silent on whether the Party of origin must comply with the request of the affected Party to dispose of the LMO in question, or whether this will be subject to agreement between the Parties concerned, or even be at the discretion of the Party of origin.

623. Article 25 refers to “Parties” rather than to “States”. Thus, the rights and obligations set out in Article 25 only apply to Parties to the Protocol. They are not applicable to a non- Party involved in an illegal transboundary movement. In the case of the State of origin, this has its basis in international treaty law: the Protocol cannot create obligations for States that are not Parties to it (see Boxes 32 and 43).112 Where non-Parties are involved, their rights and obligations will be determined in accordance with customary international law or subject to a separate agreement in accordance with Article 24, if such an agreement exists between the States concerned. Rules of customary law that may be applicable in such situations include the rule reflected in Principle 21 of the 1972 Stockholm Declaration and Principle 2 of the 1992 Rio Declaration. In accordance with this rule, a State has an obligation to ensure that activities carried out under its national jurisdiction do not cause damage to the environment of other States or to the global environment. Of course, in their dealings with non-Parties, Parties remain obliged to act in manner consistent with the objective of the Protocol and to comply with their own obligations under Article 1, 2(2) and 24 of the Protocol. In addition, in any event, persons, entities or States dealing in transboundary movements of LMOs will need to comply with any relevant national legislation of the States involved in such movements. Thus although Article 25 will not apply directly to transboundary movements involving non-Parties, it will still be important for a person, entity or State carrying out such transboundary movements to be aware of the requirements of relevant national regulations on LMOs and the possible consequences of non-compliance with such regulations.

624. Article 25(3) obliges Parties to provide the Biosafety Clearing-House with information on illegal transboundary movements of LMOs. This is intended to promote transparency and to allow Parties to benefit from each other's experience. It could also facilitate cooperation between Parties to combat illegal transboundary movements.

110 This can be contrasted to the equivalent provision of the Basel Convention on hazardous wastes, which defines “illegal traffic” as movements carried out in contravention of the provisions of the Convention itself.

111 Basel Convention, Article 9(2)–(4).

112 Vienna Convention on the Law of Treaties, Articles 3438.

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