Article 4. Scope

This Protocol shall apply to the transboundary movement, transit, handling and use of all living modified organisms that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health.

229. Article 4 specifies the activities and organisms to which the Protocol applies: i.e. in what circumstances must a Party apply the provisions of the Protocol.

230. Articles 4, 5, and 6 of the Protocol are closely linked to each other.

231. Some of the terms used in Article 4 are specifically defined in Article 3 – so the applicability of the Protocol to specific organisms and activities also depends upon these definitions– in particular the definitions of “LMO” (including the terms “living organism” and “modern biotechnology”) and “transboundary movement”.

232. The scope of the Protocol was the subject of intense negotiations among States as early as the 1995 negotiations at CBD COP2 on the mandate to negotiate a Protocol. It was a major issue in the meetings of the BSWG and in the two sessions of ExCOP. Generally speaking, developing countries pushed for the application of the Protocol to all LMOs. Developed countries in general pushed for a more limited scope to the Protocol. Among the major issues in dispute here was the applicability of the Protocol to LMOs that are pharmaceuticals, and to the transit and contained use of LMOs. The structure and content of Articles 4, 5, and 6 of the Protocol reflects the compromises finally agreed upon during the resumed session of the ExCOP in Montreal, Canada, in January 2000.

Box 20. Understanding the concept of “scope” in the Protocol

In many ways, the scope of the Protocol is a function of how the Parties eventually defined the many technical terms in the text. Through its definitions of “LMO”, “living organism”, “modern biotechnology” and “transboundary movement”, the Protocol effectively defines its areas of applicability.

“Scope”, in the context of the Protocol should always be understood by distinguishing between the scope of the Protocol (Article 4) and the scope of the Advance Informed Agreement procedure (Articles 6 and 7 provide for exemptions from this procedure). Through this distinction, competing interests found ways to accept the Protocol. On one hand, those who wanted a broad application of the Protocol could legitimately claim that all LMOs were covered by Article 4. On the other hand, those who wanted a limited scope for the Protocol found comfort in the limitations on the application of the provisions of the Protocol as exemplified by Articles 5, 6 and 7. This “innovative mathematics”– the balancing between these two concepts of scope – made it possible for the debate on this issue to be resolved in a satisfactory fashion.

233. The concept of scope in Article 4 has two elements:

234. The Protocol is made applicable to the following activities:

235. As to subject matter, the Protocol applies to “all living modified organisms”. The term “living modified organism” is expressly defined in the Protocol as containing three essential elements (see commentary on Article 3(g)–(i)):

236. For the implications on the scope of the Protocol of the phrase “that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health”, see commentary on Article 1.

77 The terms used in a treaty, in the absence of a special meaning of the term expressed in the treaty by the parties, are to be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Article 31(1) in relation to Article 31(4), 1969 Vienna Convention on the Law of Treaties. For similar definitions or expressions of “transit” in other treaties, see e.g. Article 124(1)(c) of the 1982 UN Convention on the Law of the Sea, defining “traffic in transit”; and Article 2(12) of the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, defining “State of transit”.

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