Unintentional transboundary movements and emergency measures

Each Party shall take appropriate measures to notify affected or potentially affected States, the Biosafety Clearing-House and, where appropriate, relevant international organizations, when it knows of an occurrence under its jurisdiction resulting in a release that leads, or may lead, to an unintentional transboundary movement of a living modified organism that is likely to have significant adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health in such States. The notification shall be provided as soon as the Party knows of the above situation.

2. Each Party shall, no later than the date of entry into force of this Protocol for it, make available to the Biosafety Clearing-House the relevant details setting out its point of contact for the purposes of receiving notifications under this Article.

3. Any notification arising from paragraph 1 above, should include:

(a) Available relevant information on the estimated quantities and relevant characteristics and/or traits of
the living modified organism;

(b) Information on the circumstances and estimated date of the release, and on the use of
the living modified organism in the originating Party;

(c) Any available information about the possible adverse effects on the conservation and sustainable use of
biological diversity, taking also into account risks to human health, as well as available information
about possible risk management measures;

(d) Any other relevant information; and

(e) A point of contact for further information.

4. In order to minimize any significant adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, each Party, under whose jurisdiction the release of the living modified organism referred to in paragraph 1 above, occurs, shall immediately consult the affected or potentially affected States to enable them to determine appropriate responses and initiate necessary action, including emergency measures.

463. While much of the Protocol is concerned with the intentional transboundary movement of LMOs, LMOs can also cross national boundaries unintentionally. Article 17 deals with issues related to inter-State cooperation and preventive measures in the event of such unintentional transboundary movements of LMOs.

464. Article 17 recognizes that LMOs may spread across national boundaries, posing potential risks to biodiversity and human health within the jurisdiction of other States. With a view to avoiding such risks, Article 17 contains a series of obligations, which primarily address the duty to notify and to consult in the event of unintentional transboundary movements of LMOs.

465. Under existing general international law, States have a general obligation to prevent or minimize transboundary harm. This implies that States have an obligation to take appropriate measures to prevent incidents that may cause such harm. The obligation of prevention has a continuing character. In other words, it applies from the planning stages of the proposed activity to the operational stages. In the framework of the Protocol, Parties are required to prevent or minimize the risks of unintentional transboundary movements of LMOs.

466. The complement of the obligation of prevention is the duty to cooperate in matters relating to the unintentional transboundary movement of LMOs. In this respect, Chapter 16 of Agenda 21 (Environmentally Sound Management of Biotechnology) also calls for cooperation in providing immediate assistance in cases of emergencies that may arise in relation to the use of biotechnology products.

467. The Protocol does not include a definition of “unintentional transboundary movement”. Unintentional transboundary movement can be contrasted with transboundary movements addressed in other provisions of the Protocol, which are covered by the definition in Article 3(k). The key element here is whether the transboundary movement is a deliberate one or not. Thus, an intentional introduction of a LMO into the environment of a Party (i.e. a deliberate release) may in certain circumstances give rise to an unintentional transboundary movement of that LMO to another State. Alternatively, an accidental release in a Party (e.g. from a contained use facility) may give rise to an unintentional transboundary movement.

468. The four paragraphs of Article 17 set out various obligations concerning notification and consultation in cases of unintentional transboundary movements. Article 17(1) deals with the obligation of the Party where the incident occurred to notify any affected or potentially affected States as well as the Biosafety Clearing-House. Article 17(2) requires Parties to designate a point of contact for receiving notifications. Article 17(3) describes the minimum information that any notification should contain. Finally, Article 17(4) refers to the obligation to hold immedconsultation to minimize any significant adverse effects on biodiversity and human health.

1. Each Party shall take appropriate measures to notify affected or potentially affected States, the Biosafety Clearing-House and, where appropriate, relevant international organizations, when it knows of an occurrence under its jurisdiction resulting in a release that leads, or may lead, to an unintentional transboundary movement of a living modified organism that is likely to have significant adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health in such States. The notification shall be provided as soon as the Party knows of the above situation.

469. Article 17(1) addresses the obligation to notify other States in the event of an unintentional transboundary movement of a LMO. It now seems to be recognized that customary international law requires a State to notify other affected States where an incident within its jurisdiction may give rise to significant harm to the environment of other States. There are a number of treaties that develop, to different degree and detail, the procedural aspects of the obligation to notify.95 In addition, Principle 18 of the 1992 Rio Declaration on Environment and Development calls for immediate notification of any natural disasters or other emergencies.

470. In the context of the conservation and sustainable use of biodiversity, the CBD provides that Parties shall immediately notify the potentially affected States of imminent or grave danger of damage to biodiversity (Article 14(1)(d) CBD).

Box 31. Article 14(1)(d) CBD
Each Contracting Party, as far as possible and as appropriate, shall:

...

(d) In the case of imminent or grave danger or damage, originating under its jurisdiction or control, to biological diversity within the area under jurisdiction of other States or in areas beyond the limits of national jurisdiction, notify immediately the potentially affected States of such danger or damage, as well as initiate action to prevent or minimize such danger or damage.

471. Although Article 17 of the Protocol focuses on the issue of unintentional transboundary movements of LMOs, it is worth noting that, in certain respects, it represents a development from Article 14 of the CBD. Article 17 specifies in more detail the procedural aspects of the obligation to notify, and it does so in mandatory language, avoiding qualifications such as “as far as possible and as appropriate” that appear in the CBD. Additionally, the Protocol lowers the threshold that triggers the obligation to notify by referring to “significant adverse effects” instead of “imminent or grave danger or damage” as in Article 14 of the CBD.

472. Article 17(1) describes a series of conditions that have to be fulfilled before the obligation of notification arises. Its main elements correspond to the following questions:

What kind of measures are Parties bound to take?

To whom shall the notification be addressed?

What conditions and circumstances are required to trigger the obligation to notify?

When must the notification be made?

What kind of measures are States bound to take?
473. Article 17(1) indicates that “Each Party shall take appropriate measures to notify affected or potentially affected States, the Biosafety Clearing-House, and where appropriate, relevant international organizations”. The obligation to “take appropriate measures” implies a duty of due diligence which requires each Party to take the necessary legal, administrative or other measures to implement its duty of notification (see also Article 2(1)). It is up to each Party individually to decide how they will give full effect to this obligation, as long as they do it immediately after any known incident. Parties have the flexibility to decide which authority will be in charge of this function. They might mandate the designated national focal point or competent national authority (Article 19), or the point of contact under Article 17(2) to perform this task. Presumably, the notification has to be made in written form. However, if Parties so agree, through bilateral or regional arrangements, they may also make use of other modalities and more expedient means of communication.