Article 9. Acknowledgement of receipt of notification

294. Under Article 9, the Party of import must acknowledge receipt of the notification to the notifier within 90 days of receipt. The acknowledgement of receipt of the notification is important as it:

295. However, if the Party of import fails to acknowledge receipt of a notification within the 90-day deadline, its consent to the proposed transboundary movement is not implied (Article 9(4)). If a Party has difficulties responding to a notification, assistance may be available under the procedures and mechanisms to facilitate decision-making that are to be developed under Article 10(7) (see commentary on Article 10).

296. The purpose of the acknowledgement of receipt of notification is to confirm receipt to the notifier and to confirm on a preliminary basis whether the notification is in order – i.e. that it contains the required information. The acknowledgement of receipt of notification also identifies the next steps in the process, in that it indicates whether the AIA procedure in the Protocol will be applied to the import of the LMO or whether the Party of import will apply its own domestic regulatory framework in dealing with the import. This regulatory framework need not exactly replicate the procedure set out in Article 10 of the Protocol, but it must be “consistent with this Protocol” (see Article 9(3)).

297. Confirmation of the date of receipt of the notification is important in that it is this date which marks the beginning of the 270-day period within which the Party of import should reach its import decision under Article 10 (see commentary on Article 10).

298. As noted previously, countries that become Parties to the Protocol will need to put in place regulatory procedures to implement it at the domestic level. Thus, a decision by a Party on the proposed import of a particular LMO will take place within a domestic regulatory framework.

299. The effect of Article 9(2)(c) is to allow any Party to the Protocol either:

300. The right to use a domestic regulatory framework consistent with the Protocol, rather than be bound to use its specific AIA procedure, was insisted upon during the Protocol negotiations by a number of developed countries which had existing biosafety regulatory frameworks in place which they wished to continue to use.

301. The phrase “consistent with this Protocol” is not defined, and is not made subject to any specific oversight mechanism in the Protocol. In other provisions of the Protocol, the phrase “consistent with the objective of this Protocol” is used (for example, in Articles 11(4), 14(1) and 24(1)). The requirement of consistency with “this Protocol” would appear to place more limits on the flexibility accorded to the Party than a requirement of consistency only with the objective of the Protocol.

302. From a review of Article 1, one might expect that the consistency of a domestic regulatory framework with the objective of the Protocol would be assessed in terms of the following issues:

303. On the basis of the broader content of the Protocol, and particularly its AIA provisions, a domestic regulatory framework consistent with the Protocol (as required under Article 9(3)) might be expected to reflect, in addition, for example:

304. Thus, it might be expected that while any domestic regulatory framework followed under Article 9(2)(c) may differ somewhat in procedural terms from the AIA procedure specified in Article 10, the core elements of the decision-making procedure should be similar. In accordance with Article 2(4), a Party's domestic regulatory framework may be more protective of the conservation and sustainable use of biological diversity than called for in the Protocol.

305. During the Protocol negotiations, there were extensive discussions over whether, in the absence of any response to a notification from a Party of import, the proposed transboundary movement of a LMO could proceed as if the Party of import had in fact consented. Article 9(4) provides that, in such circumstances, no consent to the transboundary movement shall be implied – i.e. the exporter cannot simply assume that the transboundary movement can go ahead.

306. A similar provision is contained in Article 10 below, with regard to the failure of a Party of import to communicate a decision to the notifier within 270 days (see commentary on Article 10).

307. Procedures and mechanisms developed under Article 10(7) of the Protocol may be relevant to the acknowledgement of receipt of notifications under Article 9 (see commentary on Article 10). The Intergovernmental Committee for the Cartagena Protocol, after consideration of appropriate procedures, has recommended to the COP/MOP a procedure whereby a Party of import may, after receiving a notification, contact the Secretariat to seek assistance from the roster of experts,80 among other mechanisms, in order to deal with the notification. Under the ICCP recommendation, a Party of export may also facilitate the Party of import to obtain assistance from the roster of experts where the Party of import does not acknowledge receipt of a notification within ninety days.81

308. Another provision which may potentially be relevant in the context of a continued failure to acknowledge receipt of notifications is Article 34 on compliance.

80 A roster of experts was established by the CBD COP under Decision EM-I/3 and its functions have been elaborated by the ICCP. See commentary on Article 10(7).

81 ICCP Recommendation 2/7, UNEP/CBD/ICCP/2/15, Annex I.

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