LAW OF SCIENCE AND TECHNOLOGY - LAW NOTES

 LAW OF SCIENCE & TECHNOLOGY

Emphasis shall be on the relationship between law and science and technology – interplay between law, science and technology.  For example the phenomena such as issues related to the management of ocean space and resources therein

Atmosphere i.e. acid raid, depletion of the ozone layer and the climate change due to greenhouse gasses, problems brought about by nuclear technology ,issues of intellectual property rights, relating to food security, the law and the ethically sensitive scientific research i.e. cloning.

These areas create problems that science and technology law comes in to correct.

INTRODUCTION

Interplay between the law of science and technology can provide one of the pillars for policies and goals to be established or pursued.  

Law establishes general or specific or common goals to be achieved,

Science

Promotion of science is an important issue and became especially so in the 1970’s – it was decided that each 10 years there would be a development strategy and during the 1st strategy UN said – access to technology and science are essential to human development and had to be given priority.  Transfer of technology was also of utmost importance, international cooperation, recognition of science in assisting developing countries in development.

10 years later, they looked at what they had done to encourage science and technology in developing countries and said that the reactivation of development would be linked to the developing countries to participate in science and technology projects.   The knowledge gap between the developed and developing world was seen to be widening and appropriate policies and measures were needed to narrow the gap.

They decided to negotiate a code of conduct on transfer of technology – after agreeing in the UN they assigned the job of drafting the code to the UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT (UNCTAD)

For 5 years UNCTAD laboured to transfer technology or to find a legal basis.  From the beginning there was a fight, the fight was on the code of conduct which by nature would not be legally binding instead of negotiating a treaty.  The fundamental question raised by developed countries was – this code of conduct would be one in which a state negotiating assumed obligation to transfer technology.  Technology is owned and developed by private companies and states don’t own it so how were they supposed to transfer it?  This technology was proprietary and states could not feel obligated to transfer what they didn’t have.  They could not even agree on the mode of transfer.  The code was therefore abandoned.   This was an attempt to produce a code in a general way without tying it to a specific issue and therefore we will find out what happens in concrete terms where transfer of technology is asked for?

Protection of the Atmosphere

In the early 50s and 60s Europe woke up to find that all of a sudden their lakes were dying and the fish were depleted.  Their trees were also drying up and their beautiful statutes were corroding.  They wanted to know the cause.  The 34 European Countries members for UN Economic Commission for Europe got together to discuss the matter since all of them were experiencing this.  Scientific explanation was called for and the answer was ACID RAIN.  They said that the Acid Rain was a result of Sulphur Dioxide which is released in the atmosphere by the industries and when that mixes with moisture or rain, it returns and falls as rain, sleet, snow and was causing the havoc.

Science has identified a problem, then what – the conclusion was that no single country could solve this problem on its own and they required the concerted effort of all the countries.  The answer was to negotiate a treaty and this is where the law comes in.  for 3 years they negotiated a treaty known as the 1979 LONG RANGE TRANSBOUNDARY AIR POLLUTION (LRTAP).  The law comes to play to help the European community to deal with the problem caused by the Acid Rain.  

First step was to produce a general treaty in which all governments agreed and next specific protocols to implement the general way of reducing sulphur emissions.  By what percentage were they to reduce the sulphur emissions and in what time span?  This became difficult to agree on i.e. the amount of reduction, the base year or the time frame.  

The steady depletion of the stratospheric ozone layer was causing skin cancer on people. (the good ozone that protects us from direct rays of the sun that cause cancer)  Which are the substances that were depleting the ozone layer and how was the stratospheric ozone layer being depleted, it was being depleted by substances collectively known as CFC’s Chlorofluorocarbons.  CFCs are emitted mostly by air-conditioners, refrigerants, foams, methyl-Bromide , fumigants, Hairsprays.

A treaty to create general obligations to deal with elimination of substances that deplete the ozone was to be put into place.   The United Nations Environmental Program UNEP) in 1985 decided to negotiate a treaty; the 1985 Vienna convention on ozone layer.  Article 2 says that the parties shall take appropriate measures … to protect human health and environment against adverse results … to this end the 

a. Cooperate in formulating agreed measures

These were general obligations to do certain things in a general treaty.  This is another example of a problem identified, science explaining law helping in seeking a solution.  A protocol on how much to reduce the CFCs must be negotiated.  In 1987 Montreal Protocol on Substances that deplete the ozone layer was drafted.  This was now a global UNEP inspired multilateral treaty, to interpret the interplay between law, science and technology.

GLOBAL EFFORT

A large area found that they were increasingly becoming exposed to skin cancer, the sun was just too hot, and the question was why people were experiencing skin cancer and glaucoma.  The scientists provided the answer that there was a hole in the stratospheric ozone (good ozone) layer.  This meant that there was a continued depletion of the ozone layer and the sun’s ray which are not able to reach us since we are shielded by the ozone layer was now reaching us as the ozone layer was depleted.

The scientists provided the answer that there were substances known as CFC’s Chlorofluorocarbons which were depleting the ozone layer.  CFCs were being caused by Hairsprays, Air-conditioners, refrigerants.  The developing countries were interested in industrialising and needed the refrigerators and air-conditioners.  

Hydrochlorofluorocarbons – these were not as harmful as the Chlorofluorocarbons but were expensive.

Hydro bromo fluorocarbons – these could be used in air-conditioners and refrigerators to reduce destruction of the ozone layer.

Any fumigant using Methyl Bromide was also declared harmful to the ozone layer.

The scientists were now looking to getting together to having a treaty that would force governments to sign a treaty to protect the ozone layer.  At the 1985 Vienna Convention of the Ozone Layer (UNEP).  This convention was developed under the auspices of UNEP 10 years after the international community started to push for development of international treaty to deal with the problem of depletion of ozone layer.  It was a general framework convention in which states recognised the need to deal with ozone layer protection.

One issue began rearing its head in this process.  This was no conclusiveness of the scientific explanation on the cause of the ozone layer.  They were arguing there was no conclusive evidence and they said … aware that need for further research and … was crucial.  These questions became central and were going to be dealt with later.   Developed countries were the ones questioning the evidence.  They went ahead and negotiated and concluded by the 1985 Vienna Convention on the ozone layer.

The treaty did not insist that each party had a duty to see to it that they took care to avoid depleting the ozone layer but seemed to be addressing the Developed nations.

Systematic Observation (monitoring) – this was taken to mean systematic scientific observation and all nations were required to observe.  The first law that they could use is a treaty of general observation to do certain things towards reducing the causes of depletion.

They wanted to replace old time refrigerators and air conditioners that were harmful and replacing them with environmental friendly equipment.  They now wanted to negotiate a treaty with details on how much the reduction of the substances would be detailed and the 3rd world would consider.  The developing country needed a grace period and they were to be granted a grace period of 5 years during which they did not have to reduce the substances that were depleting the ozone and the law would start applying only after 1995.

In 1987 they negotiated protocol 1987 Montreal Protocol on substances that deplete the ozone.  This was the specific protocol to deal with reducing the substances that were polluting the ozone.

1985 – Vienna Convention on the Ozone layer under the auspices of UNEP was a general convention.

1987 Montreal Protocol on substances that deplete the ozone was now a specific protocol to the Vienna Convention.  They attached a lot of annexures showing how science and the law interplay.

The effort of the United Nations to produce a code of conduct for transfer of technology was abandoned because countries could not agree and here they had a problem of producing environmental friendly gadget.  The question now became the question of transfer of technology to the developing countries who did not have the technology but needed to participate in protecting the ozone.  The developed countries were forced into including an article in this treaty that dealt with transfer of technology.

The parties shall facilitate and encourage the exchange of scientific information, technology, knowhow to those who needed it.  The information was to be what was not confidential and publicly available without infringing on the law.   the developing countries got a raw deal since the 5 years grace period did not provide for how they were to prepare towards the elimination of the substances that were affecting the ozone.

The developing countries realised that they first needed the transfer of technology to be able to be compliant.  This was the first global effort that illustrates how science and the law transpires to address human problems.  the treaty was important in that 

1. They negotiated and showed an interest and

2. It was an attempt to address the issue of scientific research and the fact that it needed to be done more conclusively

3. Transfer of Technology must be done.

In the early 1980s another phenomena of continuous rise in the sea level so that islands were being submerged and the water was coming further and further inland.  In Africa the desert i.e. Sahara was spreading much faster.  Countries with glaciers were melting,  Kilimanjaro almost lost its whitecap.  What was wrong?  The scientists were consulted.  This phenomenon was tied to weather.  The problem was identified with the work of the World Meteorological Organization (WMO).  They were asked to explain or give an indication as to what was happening.  The WMO called a panel of scientists the Intergovernmental Panel on Climate Change (IPCC).  This panel of scientists were convened by the WMO so they met, studied and made preliminary conclusions that were made available to WMO itself.  They said there was climate change being caused by a phenomena known as global warming the earth was getting hotter than usual and the increasing tendency of the earth to be warmer than it was ever before and this is why the Glaciers and the ice were melting much faster and increasing the volumes of waters in the ocean which were submerging the islands.  This was being caused by loss of trees.  The issue became controversial and was removed from the WMO.

This became a United Nations issue and was taken to UN in New York.  They wanted climate declared the common heritage of man.  The WMO decided to call a special conference made up of scientists, lawyers and economists to find out what needed to be done.  They found out that Global Warming was being caused by Carbon Dioxide, Methane, Nitrogen Oxide Greenhouse Gasses).  These gasses are heavy and when released go only to the top of the Topospheric ozone (bad ozone) and form a blanket and trap the heat which is responsible for the Greenhouse Effect and that was what was causing Global Warming. 

The debate began to rage.  The challenge to the scientific evidence became the first problem.  This was in 1990.  Something happened at this point firstly in 1972 there was the famous United Nations Conference of Human and Environment in Stockholm to discuss the effect of human on the environment.

In 1990 – there were plans to call a meeting in Rio De Janeiro to deal with the environment.  The UN decided to establish an intergovernmental committee on climate change and instructed that committee to draft a treaty for governments to look at and to be tabled at Rio De Janeiro. For the first time they realised that they could not play around because there was already serious objection from the United States which was contending that there was no scientific evidence.  They agreed on having a framework convention on climate change to deal with Greenhouse Gasses that cause global warming.  They succeeded and there was the first meeting in Nairobi that produced a draft and other meetings in New York until Rio De Janeiro.  The United States particularly it was rumoured that one of their scientists paper was being disowned because it was supporting the Global Warming theory.   But scientists generally came to the conclusion that there was indeed global warming.  The question was by how much?  Enough to require any action?   The big countries were not interested in having the treaty on reducing the gases that were causing the Greenhouse effect.

The United Nations realised that the Developed countries were more involved in these effects than the developing countries and there was need to have common treaties but differentiated and that the developed countries would be required to do more although everybody had to play their part.  25% release of carbon dioxide was from the US and 23% was from Europe the rest Asia and Africa.

The parties to the convention were supposed to take precautionary measures to anticipate, prevent or minimise the cost of climate change and mitigate its effects.   Where there are threats of serious or irreversible damage lack of full scientific certainty was not to be used as a reason of postponing action.  This is the famous precautionary principle on climate change written in the United Nations.  It meant measures were to be taken whether there was scientific evidence or not.

President Bush did not even bother to go to Rio, America was not interested.  The Rio convention had also a provision for transfer of technology to developing countries.  The convention has also funding mechanisms to enable developing countries to write intelligent projects that can be financed from the fund to deal with Greenhouse gases.  They established Global Environmental Facility funded by the World Bank, UNDP and UNEP put a fund together for the purpose of allowing developing countries to deal with Global Warming as well as Bio-diversity.

All the environmental treaties that did not address transfer of technology and the question of financial arrangements were being refitted. 

When time came for the next stage (after the convention to deal with greenhouse gasses).  

They went to Kyoto Protocol to discuss how much carbon dioxide should be reduced and by what year.

1992 – it was decided to reduce 30% of Carbon Dioxide in 5 years and to reduce 50% in 8 years.

The United States refused to ratify the Kyoto Protocol that substantively established to implement the framework convention on climate change.  Europe said they would lead the way in implementation.  The USA after signing the protocol though refusing to ratify it later under George W Bush withdrew the signature and totally rejected the Kyoto Protocol since they are not a party to the UNFCC.

There is then a problem since USA produces and emits most of the carbon dioxide which refuses to reduce carbon dioxide emissions.

There is still something lacking in these conventions, technology is not transferred to the developing countries even though these countries have agreed to transfer the technology.  The failure to do so within a specified period now became a legal issue.  The countries were time bound to transfer technology. There is already a fight that the provisions on transfer of technology were faulty as they did not have a time frame.

LAW OF SCIENCE & TECHNOLOGY 

Lecture three

Nordic Countries recorded high atomic radiation in the atmosphere and alerted the neighbourhood, they advised people to take precautions to prevent against the radiation.  They alerted United Nations Agency called International Atomic Energy Agency (IAEA) whose headquarters are in Vienna Austria.

It is at that time that then the Soviet Union owned up and said that there was a nuclear accident in Chernobyl Nuclear Plant in the Ukraine.  This was what was causing the increased radiation in the atmosphere.

An emergency of the Board of the IAEA was convened to discuss the matter and it is there that the international community became embarrassed when they discovered that there was no treaty obligation anywhere that would force the Soviet Union then to notify anybody that there had been a nuclear accident within its boundaries, they were under no obligation to report to anyone.  

The Trail Smelter Case (Sulphur fumes that were creating problems to neighbours– authority that the right to use your territory requires that you use it without injuring your neighbour. 

The same principle was used to create obligation on Albania when Albania failed to warn England that there were mines that would destroy the British ships.  Vichano Case.

All these made the board of governance of IAEA realise that they needed a law to create an obligation among member states to notify other countries about any nuclear accidents.  These accidents have trans-boundary effects.    There had to be a balance between the secrecy maintained by the Soviet Union and the Western propaganda.  It was the Soviet Union that decide to negotiate 2 treaties one for creating obligation to notify other countries when a nuclear accident has occurred in your country and which you know will have a trans-boundary effect.

They want another treaty dealing with assistance.  They wanted to know what assistance the victim country would receive as a result of being affected by a nuclear accident from a neighbouring country.  The IAEA needed a procedure to deal with these disasters.  They wanted a comprehensive policy on how to deal with giving assistance decided and agreed upon.

In 1986 there were two conventions

Convention on Notification of Nuclear Accidents – created a duty to notify, what to notify, and who to notify and when to notify.  “in the event of an accident in all the nuclear facilities listed above, the state parties to the convention shall forthwith notify directly or through the international domestic agencies those states affected the nuclear accident in question by indicating the nature of the accident, its occurrence, its exact location and any other information that would enable the state to get ready and minimise the damage.”

Because of the competing interests, rights and obligations, the article dealing with assistance was circumspect.

Convention on Assistance in case of Nuclear Accidents & Radiological Emergency -

Adronicos Adede was the legal adviser for the IAEA on the above two treaties which took two weeks to be ratified.  A treaty may become binding upon a signature if the state says so and if it is provided in the treaty itself.

The Scandinavian countries went to the conference ready to be bound by the treaty and there were 5 signatures which were binding and only 10 more were remaining to make it 15.    

In America there was a 3 mile island whenever there was a nuclear plant in case of leakage.  

In Chernobyl the accident had been caused by human error because the scientists had been experimenting.  There were courses offered so that human error could be avoided.

EXCEPTION:

There was no negotiation of one framework convention to negotiate the treaty first, the treaty was negotiated together with the general, the treaty and the protocols were negotiated together which was an exception.

Long range ozone layer

Climate change – greenhouse effect

Chernobyl Disaster

End of Atmospheric …

MARINE ENVIRONMENT

At the beginning there was an attempt to prepare a code of conduct to prepare technology which could not work because technology for industrial development is owned by the companies and not the government and that is why this code of conduct did not take off.  The area in which this was tested was in the Law of the Sea particularly in areas dealing with seabed mining which had not been the subject of any treaty at all.  It was a new area that had to be looked at in the 3rd UN Conference.   The continental shelf definition had never been settled.  When it came to the 3rd conference the code of conduct was accepted.  As fishing also became a problem there were more sophisticated problems i.e. Japanese fishing vessels being found in the coast of Ivory Coast fishing.

Obligations of states to allow other states to conduct scientific research in the EEZ within established procedures was allowed.  Exchange of technology in this area was possible to help states manage their coast resources.

There was a resolution agreed upon saying that the seabed, the ocean floor and the sub-soil including the resources therein beyond the limit of national jurisdiction was declared to be the common heritage of mankind.  This resolution created a servitude over the International Sea bed area.  The coastal states could have their territorial sea and continental shelf but what was left was common heritage of mankind.  Until science discovered that the international seabed was full of minerals called manganese nodules, the area could have been useless.  This area was reserved for peaceful purposes only it was not subject to appropriation by any single State since it belonged to mankind and it was not open to exploitation except under the regime the conference was set to establish.

LAW OF SCIENCE & TECHNOLOGY 

Lecture 4       

USE OF NUCLEAR TECHNOLOGY FOR DEVELOPMENT:

Nuclear technology is considered to be high technology which can only be used by those countries who have already made it.  It is the kind of technology associated with production of weapons that injure and kill people.  This is an erroneous concept.  Nuclear energy can be used for peaceful purposes, and it can be advantageous and accessible even to the developing countries.  The shame of Hiroshima forced President Eisenhower to go to New York and made a proposal called Atom for Peace.   In his proposal Eisenhower made the following suggestions:

1. That there should be created a new international organization, with the power to collect, receive and store all nuclear materials.  All materials that can be used for making nuclear bomb and after storing it;

2. That no further use of Nuclear material in research except for peaceful purposes and international organizations be created to collect and store the nuclear material.

From 1953 – 1957 governments met and deliberated the Atom for Peace proposal and most of them treated it with Scepticism.  The United Nations established an agency known as the INTERNATIONAL ATOMIC ENERGY AGENCY (IAEA) 1957 and the statute of IAEA which was adopted and came to force in 1957 was meant to encourage and assist research on atomic energy for peaceful uses throughout the world and if requested to act as intermediary for the purpose of service to secure Nuclear Material.   The IAEA was not given the power to collect and store material but was supposed to act as a broker namely that any state that had a nuclear programme and lacked some component for its research could go to the IAEA and puts its request and then if a State is willing to supply the other state with what they want they broker an agreement under the auspices of IAEA.  The agreement would be for purposes of conducting peaceful uses of Nuclear Energy.  IAEA has Safeguard Inspectors who they send all over the world to inspect Nuclear facilities and check on how the material is being used by the contracting nations.

MBA – Material Balance Area – this ensures that nuclear material is not diverted to uses that it was meant for and not diverted to countries that are not supposed  to have nuclear power.  This also ensures that nuclear power is used for good and not to make bombs.  The IAEA with its experts can trace whether the materials are being used for peaceful purposes and not for weapon making, proposing peaceful purposes of nuclear technology.  Moreover Nuclear technology is homegrown i.e. one needs their own scientist who can draw and suggest where to get  the  materials to build the bomb.  Most of nuclear reactors have been stolen i.e. Chinese, Egyptians who learn the technology and then they go back to their countries and start preparing the nuclear progam.

At the time the atomic bomb was dropped in Hiroshima, 4 other countries had already acquired the Nuclear Technology, US, UK, Russia FRANCE then came China.

The IAEA decided to negotiate a treaty to stop nuclear proliferation and decide that only the four who already had it.  They decided to negotiate the NUCLEAR –NON-PROLIFERATION TREATY.  This was meant to stop proliferation of Nuclear technology.  All states were asked to denounce their right to make nuclear weapons, i.e. Those who had not acquired it were not to acquire it and only the original four could have it.  The non nuclear countries demanded then that the four that had nuclear technology ought to destroy what they had and they couldn’t do it.  India and Pakistan used to accept the NPT since it was not fair and they went on with their Nuclear Programmes.  The Nuclear Weapon States have refused to destroy their arsenal while telling others not to build.

The IAEA are still making efforts to inspect nuclear plants to ensure it is for peaceful purposes.  They were the first to inspect Iraq i.e. Elbaradei and Hans Blix going to Iraq to investigate and inspect whether there are weapons of mass destruction.  When South Africa tried to negotiate with IAEA, and were invited to Vienna to discuss, they were shocked when the IAEA team that was supposed to negotiate with South Africa which was led by a lawyer (Adronicos Adede) the lawyer in this case in 1984-1986.  They invited the IAEA to Pretoria and they have Nuclear components but they don’t have the bomb yet.

It was not until 1986 the Chernobyl Accident that demand for Nuclear power nose dived when people realised that it could be dangerous as a result of human error.  There was a big campaign for man-machine interface.  

Sweden came up with the idea of constructing a Nuclear Reactor that was foolproof but how?

USE OF NUCLEAR TECHNOLOGY FOR DEVELOPMENT

The cliché that water should be available for everyone in the right quantity, quality, place, time.  Using Radio Isotopes one can trace the water by using Nuclear Techniques once one has tried hydrological digging and gotten nowhere.  There were programmes like this in Algeria, Morocco, etc supervised by IAEA.  A lot of boreholes in the dry areas were dug using Nuclear ‘Technology by way of radio isotopes.

The farmers in the Mediterranean region for years suffered due to the menace of the Mediterranean Fly (Med-fly) that attacked and destroyed their fruits during harvest and they could not fumigate and they were becoming resistant to the medicine.  In Kenya, Langwe Valley was laying to waste because of the existence of a combination of animals.  Buffaloes were known to carry Tsetse flies that caused Elephantiasis and Triponosomiasis.  UNDP was unable to deal with the tsetse problem.  Then came the nuclear aspect of dealing with this problem called Sterile Insect Technique.  This means that in the laboratories of the IAEA they could produce a large colony or irradiated tsetse flies and mostly male and impotent.  After they produced a large colony of them they discreetly released the sterilised radiated tsetse and of course there was no reproduction and the population dropped.  The scientists said that the Med fly made all the difference.  This is a good example of the use of nuclear technology.

The Western World have Primary Standards Dosimetary Calibration Laboratory – this is meant to calibrate or medical instruments that they function accurately.  A lot of instruments however were in the 3rd World and there was not way of calibrating them.  The WHO had a programme to build two centres in the 3rd world called Secondary Standards Dosimetary Calibration Laboratory which they could use to repair and measure and calibrate the medical instruments in the 3rd World one was Nigeria and the other one was in Brazil.  But by 1967 none of those secondary standards laboratories are not working anymore.

If KBS were to be told that they can upgrade the laboratory to upgrade instruments, for example if they approached the IAEA and requested to be assisted to upgrade their equipment, the IAEA would do that and this would be easy and Kenya Bureau of Standards would become more efficient in the East African Region.  It can be done.

A lot of our wastage or crops like grain is at the harvest time?  The IAEA through irrigation can help us keep the grain fresh for along time and minimize losses and this is done through radiation by preventing rot and decay.  They have discovered how to keep shrimp for longer through radiation.  This is through nuclear technology.  They also found that they can radiate potato crisps and preserve them for longer.  They are using nuclear techniques to preserve what they like.

From hydrology to irradiation – nuclear power is not always associated with the making of bombs to kill power but it is a source of power.

PROTECTION OF BIOLOGICAL DIVERSITY

LAW OF SCIENCE & TECHNOLOGY  

Lecture 6 

MARINE ENVIRONMENT

Coastal States have difficulties in limiting territorial jurisdiction.  However seaward should Kenya’s coast go? 

1. Efforts made in determining coastal state jurisdiction by using the Continental Shelf; undertaken by the negotiations of the law of the sea.

President Harry S Truman defined continental shelf as the natural prolongation of the land mass meaning that where land prolongs to the sea, the landmark which prolongs to the sea is the continental shelf so that the extent of ones jurisdiction would be to follow the prolongation.  The problem is that not every coast state has land mass prolonging.  The most common and representative configuration is like this 

That coastal states should only have a continental shelf that extends up to about 200 nautical miles.  After 10 years suggestion that it be agreed that the limit should be up to the continental slope. In the end it was agreed that the legal definition of continental shelf as opposed to geography is the Continental shelf proper, slope and the rise (Continental Margin) not more than 350 nautical miles after the slope.  This is the formula that is written in Article 76 of the law of the sea convention. The Geneva Convention 1958 on continental shelf rejected by developing world defined the limitation as having the ability to exploit, if you could exploit any area then you could claim it.  200 nautical miles equals full sovereignty being exercised by the territorialist states.  In the meantime the states had at this time only 3 miles of territorial sea.  Upto 12 nautical miles of territorial sea was what was accepted an area in which a country would exercise complete jurisdiction.  The rest of the area which comprised 188 nautical miles is a compromise between complete sovereignty.

Continental shelf proper

LAW OF SCIENCE & TECHNOLOGY

 Lecture 7    Dr. Adede     

Protection of marine environment

Use of nuclear technology

Biodiversity

Intellectual Property Rights

Intellectual Property Rights

it has been noted that IPR has been in existence nearly as long as human beings have sought to protect their creations.

Potters used to place marks on their wares to denote their craftsmanship.  Copy rights appeared with the printing press whereas patents ..

Despite its lengthy existence there is no single definition as what qualifies as Intellectual Property or what the standard bundle of rights should include.  Now we know that the following qualify as intellectual property

1. Patents

2. Trademarks

3. Copy rights and neighbouring rights

4. Trade Secrets

5. Industrial Designs

6. Geographical Indications

This excludes ‘traditional knowledge’.  This list looks biased and is compiled by the West.

A professor at a lecture was asked by a sceptic in the audience “You refer to patents, copyrights and trademarks as property yet everybody knows that these are not property but temporary monopolies created by governments, how can you justify your use of the word property on mere monopolies?  The student thought she had corned the professor, the professor schooled in the Socratic method of lecturing the professor replied’ why do we call real estate property when its really common heritage of mankind, why should an individual own a house or a car, since they bought, shouldn’t we reserve the word for inventions that people created, isn’t intellectual property then the only real property?  This is to show why this area of law has relied on the thinking of the Western World as they are the ones who have defined what intellectual property is.

There was an attempt across the years to remove these class of rights from exclusively in the domain of sovereign states, the idea was to internationalise IPR to make them subject to international agreements so that states can have common understanding as to what trademarks, patents copyrights are.  From 1891 – 1984 aspect of an attempt to internationalise international property rights was attempted.

1891The Madrid Agreement for Repression of Force and

1883 Paris Convention on Industrial Property

1961 Rome Convention …

1867 Convention establishing the World Intellectual Property Organization (WIPO)  this was a culmination of series of intellectual Property Rights on few issues.  This was to create an international bureau in which all the information of the IPR was to be undertaken by member states.  Efforts were made to revise the old treaties to bring them up to date.  

The focal point is that the process of internationalisation of copy rights ended in WIPO based in Geneva.

In the Uruguay Round at a city called Punta de’Este in 1986.  when the countries that belong to GATT assembled n the Uruguay Round something unusual happened.  American industry had gone to state department and convinced President Reagan saying that American Companies were losing dollars abroad because their IPR were being violated by the 3rd World.  They want to find a way of protecting their industrial property.   Reagan authorised a special committee to do a report on this problem, a questionnaire was developed and the results were received an analysed and it supported the conclusion reached by the industry that indeed American Property Rights were being copied and money was being lost.

They decided to table it at the Uruguay Round. Africa rebelled and refused to accept the idea of taking the issue from WIPO to Uruguay Round, they were joined by Europe.  The Western World approached Africa that if Africa wanted to have access or markets for their goods they had to accept discussion of Intellectual Property Rights as part of the Uruguay Round.  They were threatened with unilateral punishment if they did not support the American agenda at Uruguay.  African countries resisted from 1986 -1990 but while Africa was still resisting in 1999 at a meeting Switzerland produced a complete draft agreement as to what would constitute protection of IPR.  That year “Africa agreed that the issue should be on the table for discussion and out of the blue it had a name which was “Trade Related Aspects” the European Union followed suit, then Japan, 3rd World felt left behind by saying they would join in and would give few principles that they believed ought to be negotiated to form the basis of discussion but they were not going to draft an agreement.  The 3rd World insisted that it was okay to draft the  draft agreement but it had to be taken back to WIPO even if it was negotiated with GATT its supervision and implementation had still to be done by the World Intellectual Property Organization.

From 1991 -1994 full fledged discussions on Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).  It was How TRIPS was negotiated and how it connects with the law. 

The last round of Uruguay Round was held in Marrakech Morocco in 1994 and this is where WTO was established with an agreement on trade related aspects of intellectual property rights.

TRIPS has a section in which it defines what patents are.  Patents are the right of inventor to exclude others from the rights of their invention.  Patents shall be available for any invention (article 27) whether products or person in all fields of technology provided such inventions new involve an inventive step which is non-obvious and capable of industrial application.  An invention must be new, involve an inventive step and be capable of industrial application.  This is the standard that the section contains for describing who can submit something as a patent.

Before that a state could offer a monopoly for someone with an invention for a number of years but TRIPS made it uniform for 20 years.  During 20 years the inventor excludes everybody from using the patent it has registered.  

The law has established the right for a patent holder to be protected for 20 years,  for example those who make flucanazone and viramine are protected for 20 years but these are expensive anti-retrovirals and Africa cannot afford them.  What to do?  Science has made it possible for researchers to produce the drugs.  Africa was interested in solving the problem

Article 31 – Other use without authorization of the right holder

Where the law of a member state allows for other use the subject matter of a patent without the authorization of  right holder including use by governments or other users the 

1. Authorisation of such use shall be considered on its individual merit;

2. Such use may only be permitted if prior to such use the proposed user had made effort to obtain authorisation of a patented product.

There must be a public emergency declared by a country before one can seek a cheaper version of a product. For example AIDS anti retroviral drugs; Kenya for example can go to open market to look for affordable drugs since aids is a national disaster or emergency.  The imported generic cheaper drugs can only then be used for the declared emergency and not for other purposes.  There must be public emergency, there must be negotiations before one can look for cheaper version.  Article 31 is the one that opens way for governments to access cheaper drugs by way of

1. Parallel Importation  - this is where a company in the 3rd world that can sell the cheaper generic version and we can import it and use it, like India.  So long as you have negotiated, have a law and declaring emergency and being willing to use the drug.

2. Compulsory Licensing - this is done by the country that has gone through the procedure.  You licence a foreign company which comes into Kenya and undertakes the manufacture and distribution of the generic version of the drugs that are required.

Major companies faced with competition from the companies that were making generic drugs began to lower their prices.

It had been agreed during the negotiation of TRIPS that the agreement was to be applied in a flexible and supportive manner so that poor countries could access drugs.

1999 – The Millennium Round in Seattle Washington – this was supposed to start another round but it failed. There was uprising because of certain political issues, the Western World were trying to bring to the table things that had no business being there.  

After this they prepared the Doha Round which was to start from 9th to 13th in Doha Qatar but since the one in Seattle failed there was fear that this one could fail too. It is at Doha that China was admitted to the WTO.  Since the Uruguay Round the Pharmaceutical Industry was able to influence their governments to bring negotiations to the table.  When Doha was still on its 3rd day developed countries said that they wanted unconditional parallel importation and compulsory licensing.  Americans joined by other European countries refused, the conference was extended for one more day to reach a compromise.  The Western world allowed the 3rd World to engage in compulsory licensing but refused parallel importation.  The countries were also told it was no longer necessary to declare AIDS as a national disaster.  The Western world knew that most African countries did not have the infrastructure to support compulsory licensing and so they knew that companies would not be going there.

The law was being updated.

Back at home TRIPS was insisting that all countries must become compliant with TRIPS requirements like observing the 20 year patent protect etc.  Kenya has a law which is TRIPS compliant.  How do we entice companies to come and manufacture cheaper AIDS Drugs here?  After Doha, they went o Cancun Mexico.

CANCUN – Walk out

Application of the TRIPS Agreement illustrated by the access to affordable drugs.  

21st May 2003 – Framework Convention on Tobacco Control – this is the convention that after science proved that there is a direct link between cigarette smoking and ill health and disability.  The convention has singled out the Tobacco Industries and told governments to be ware.

Consent regime

LAW OF SCIENCE & TECHNOLOGY

 Lecture 8  Dr. Adede     

INTELLECTUAL PROPERTY RIGHTS

Intellectual {Property Rights which began as monopolies granted by States within their territories giving inventor patents, registering trademarks and protecting authors and artists with their copyrights, these were being done by governments within their territories. It then became obvious that there was a problem in the different ways different governments were awarding patent rights and protecting copyrights.  An inventor in England who was given a patent in England could only exercise his right for 20 years and therefore there was an effort to internationalise protection and promotion of intellectual property rights .  for this reason a series of international treaties were addressed by international countries to address the problem of Intellectual Property Rights.  The idea was to find out if there can be a system in which an inventor in England could register its patent with a central bureau so that his rights would be protected internationally beyond the borders of the countries of invention.

1981 Madrid Convention concerned the International Registration of Marks

1983 Paris Convention for protection of Industrial Property – 

1961 International protection convention for varieties of new plants

1961 Rome convention for the protection of producers of phonograms and broadcasting operations.

The process of internationalisation as seen from these series of convention culminated in 1997 at the Convention of World Intellectual Property Organisation.  For registration and protection of World Trademarks  

World Intellectual Property Organisation (WIPO) was created in 1967 to address the problem of protection and promotion of Intellectual Property Rights.

Why was it important to discuss intellectual property rights under WTO when there was already WIPO dealing with the same issues.  Why did the protection of property rights become the subject matter at WTO? Something happened, a problem was discovered the international community has to respond to it.  The only thing is that that problem was raised by one country influenced by its industry.  It was during the Uruguay Round 0f 1986 that the issue of protection of intellectual property rights began from WIPE to WTO under President Ronald Reagan.  Pharmaceutical companies were lobbying Congress that they were losing money in intellectual property.   The president created a committee to establish whether these claims were correct.  Their claims were true and they were support and America went to Uruguay Round pressing the right to place on the table IPR with the World Trading Organisation.  They said WIPO could not protect their rights but WTO could.

In 1990 the 3rd World began to accept TRIPS (Trade Related Aspects of Property Rights) under WTO.  The 3rd world was promised markets for their goods and they were assured of gains by agreeing to discuss the Intellectual Property Issues.  In the end they joined in but firstly merely agreeing on principle.  It was agreed that when it came to the Agreement of Intellectual Rights Property, this was to be concluded by WIPO.  By the end of the day TRIPS (Trade Related Aspects of Property Rights) prevailed.

For an invention to be patentable it must be new. An invention must be new, involve an inventive step and be capable of industrial application.  This is the standard that the section contains for describing who can submit something as a patent.

Article 27 of the TRIPS Agreement:  distinguishing between what is patentable subject matter.  TRIPS Article 27 (3) says that members may also exclude from patentability 

1. Diagnostic Therapeutic surgical methods for the treatment of humans or animals;

2. Plants and animals other than micro-organisms;  However member shall provide for the protection of plant varieties either  by patent or by an effective sui generis system or by a combination thereof;  The provisions of this sub paragraph shall be reviewed four years after the date of entry to force of WTO Agreement.  This was an effort to compel the 3rd world to have plant varieties that are protected under a European Convention called UCO, 1961 European Convention.  UCO was aimed the world safe for large farmers who were producing for trade. But not all Africans produce for trade and if you forget one variety one is essentially forgetting Africans.  UPO encouraged one variety to be protected, there were to be no duplicates and so a lot of varieties would be lost.  For this reason the 3rd world was resisting accepting paragraph 3(b) of Article 27.  How could the 3rd World encourage the protecting of various varieties.  Could Africans have a system in which they could protect their patents?

It was recommended that the paragraph be reviewed after 4 years since the 3rd world did not like.  TRIP entered into force and the question of review called for in Article 27 3(b).  The Secretariat of WTO prepared a questionnaire which they sent to all members of WTO asking them their views on 27 3(b), they gave them 3 months to study and respond, at the end of the 3 months period not a single 3rd World country had responded to the questionnaire.  It was responded to by the developed world and interested organisation.  In the next meeting the Secretariat responded to the TRIPPS Council about the questionnaire and were directed to re-circulate the questionnaire and again another poor response few African Countries bothered to respond.  The Western Countries ganged together and voted that Article 27 (3) (b) stays.  The 3rd World Countries began to cry foul that the article should be taken out, since the Western World had had the occasion to respond, although the African governments discovered that that paragraph does impede protection of their own property but since the questionnaire did not contain any objection to Article 27 3 (b) the African argument could not hold and thus the TRIPS Agreement are still there.

A problem has shown a variety of responses in this case.  The law follows the majority who can speak up their position.

The TRIPS Agreement in its attempt to enlarge the subject matters of Intellectual Property Rights does not mention traditional knowledge as part of intellectual property but biodiversity does by mentioning that we need to respect the place of traditional knowledge.

WTO is now grappling the problem of Geographical Indications.  These are used by European Countries in the making of wine.  For example in France in the province of Bordeaux, you have protected 5 vineyards that produce first class Bordeaux wine, the area is controlled and the soil is treated specially, harvesting conditions are also controlled and the juice from grapes to make the wine is uniquely Bordeaux and so they patent wine from Bordeaux through Geographical Indication.  There is also an area called Burgundy known for its red and white wine.

TRIPS – as a question of indicating law science and technology.

Exhaustion of patent rights – if you are an inventor and are a member of EC and your patent has been presented in Kenya, after 20 years expires, the protection is over all over East Africa.  Exhaustion of rights.

It falls within the pattern the need to protect intellectual property rights beyond he borders of the states that granted them.  WTO with its trade related aspect, WTO has received wisdom that TRIP was a mistake ab initio.  It has created so many problems as the TRIP aspect of Trade has not been shown.  These IPR are nothing but State Monopolies, they create them and protect them.  It is important that a country registers its patents internationally so that it is protected in all the countries of the Rome Convention.  

Will Intellectual Properties be ever discussed apart from the point of view of the Western World?  Until we clean up our process of putting together those who negotiate on our behalf at international forums, we will suffer for the rest of our lives.

TRIPS WAS A NON-STARTER and developing countries are still waiting to access markets for their goods.  In Seattle Washington the Developing Countries supported by the rest of anarchists used democracy to defeat democracy – they reckoned there was no need to start a new round since the pledges of the last round had not bee fulfilled.  Seattle failed, Doha barely succeeded and Cancun.

Cartagena Protocol on Biosafety to the Convention on Biological Diversity

The Parties to this Protocol,

Being Parties to the Convention on Biological Diversity, hereinafter referred to as "the Convention",

Recalling Article 19, paragraphs 3 and 4, and Articles 8 (g) and 17 of the Convention,

Recalling also decision II/5 of 17 November 1995 of the Conference of the Parties to the Convention to develop a Protocol on biosafety, specifically focusing on transboundary movement of any living modified organism resulting from modern biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity, setting out for consideration, in particular, appropriate procedures for advance informed agreement,

Reaffirming the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development,

Aware of the rapid expansion of modern biotechnology and the growing public concern over its potential adverse effects on biological diversity, taking also into account risks to human health,

Recognizing that modern biotechnology has great potential for human well-being if developed and used with adequate safety measures for the environment and human health,

Recognizing also the crucial importance to humankind of centres of origin and centres of genetic diversity,

Taking into account the limited capabilities of many countries, particularly developing countries, to cope with the nature and scale of known and potential risks associated with living modified organisms,

Recognizing that trade and environment agreements should be mutually supportive with a view to achieving sustainable development,

 Emphasizing that this Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements, 

Understanding that the above recital is not intended to subordinate this Protocol to other international agreements,

Have agreed as follows: 

Article 1

OBJECTIVE

In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements. 

Article 2

GENERAL PROVISIONS

1. Each Party shall take necessary and appropriate legal, administrative and other measures to implement its obligations under this Protocol.

2. The Parties shall ensure that the development, handling, transport, use, transfer and release of any living modified organisms are undertaken in a manner that prevents or reduces the risks to biological diversity, taking also into account risks to human health.

3. Nothing in this Protocol shall affect in any way the sovereignty of States over their territorial sea established in accordance with international law, and the sovereign rights and the jurisdiction which States have in their exclusive economic zones and their continental shelves in accordance with international law, and the exercise by ships and aircraft of all States of navigational rights and freedoms as provided for in international law and as reflected in relevant international instruments.

4. Nothing in this Protocol shall be interpreted as restricting the right of a Party to take action that is more protective of the conservation and sustainable use of biological diversity than that called for in this Protocol, provided that such action is consistent with the objective and the provisions of this Protocol and is in accordance with that Party's other obligations under international law.

5. The Parties are encouraged to take into account, as appropriate, available expertise, instruments and work undertaken in international forums with competence in the area of risks to human health.

Article 3

USE OF TERMS

For the purposes of this Protocol: 

(a) "Conference of the Parties" means the Conference of the Parties to the Convention; 

(b) "Contained use" means any operation, undertaken within a facility, installation or other physical structure, which involves living modified organisms that are controlled by specific measures that effectively limit their contact with, and their impact on, the external environment;

(c) "Export" means intentional transboundary movement from one Party to another Party;

(d) "Exporter" means any legal or natural person, under the jurisdiction of the Party of export, who arranges for a living modified organism to be exported;

(e) "Import" means intentional transboundary movement into one Party from another Party;

(f) "Importer" means any legal or natural person, under the jurisdiction of the Party of import, who arranges for a living modified organism to be imported;

(g) "Living modified organism" means any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology;

(h) "Living organism" means any biological entity capable of transferring or replicating genetic material, including sterile organisms, viruses and viroids;

(i) "Modern biotechnology" means the application of: 

a. In vitro nucleic acid techniques, including recombinant deoxyribonucleic acid (DNA) and direct injection of nucleic acid into cells or organelles, or 

b. Fusion of cells beyond the taxonomic family,

that overcome natural physiological reproductive or recombination barriers and that are not techniques used in traditional breeding and selection;

(j) "Regional economic integration organization" means an organization constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by this Protocol and which has been duly authorized, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to it;

(k) "Transboundary movement" means the movement of a living modified organism from one Party to another Party, save that for the purposes of Articles 17 and 24 transboundary movement extends to movement between Parties and non-Parties. 

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.

Article 5

PHARMACEUTICALS

Notwithstanding Article 4 and without prejudice to any right of a Party to subject all living modified organisms to risk assessment prior to the making of decisions on import, this Protocol shall not apply to the transboundary movement of living modified organisms which are pharmaceuticals for humans that are addressed by other relevant international agreements or organisations.

Article 6

TRANSIT AND CONTAINED USE

1. Notwithstanding Article 4 and without prejudice to any right of a Party of transit to regulate the transport of living modified organisms through its territory and make available to the Biosafety Clearing-House, any decision of that Party, subject to Article 2, paragraph 3, regarding the transit through its territory of a specific living modified organism, the provisions of this Protocol with respect to the advance informed agreement procedure shall not apply to living modified organisms in transit.

2. Notwithstanding Article 4 and without prejudice to any right of a Party to subject all living modified organisms to risk assessment prior to decisions on import and to set standards for contained use within its jurisdiction, the provisions of this Protocol with respect to the advance informed agreement procedure shall not apply to the transboundary movement of living modified organisms destined for contained use undertaken in accordance with the standards of the Party of import.

Article 7

APPLICATION OF THE ADVANCE INFORMED AGREEMENT PROCEDURE

1. Subject to Articles 5 and 6, the advance informed agreement procedure in Articles 8 to 10 and 12 shall apply prior to the first intentional transboundary movement of living modified organisms for intentional introduction into the environment of the Party of import.

2. "Intentional introduction into the environment" in paragraph 1 above, does not refer to living modified organisms intended for direct use as food or feed, or for processing.

3. Article 11 shall apply prior to the first transboundary movement of living modified organisms intended for direct use as food or feed, or for processing.

4. The advance informed agreement procedure shall not apply to the intentional transboundary movement of living modified organisms identified in a decision of the Conference of the Parties serving as the meeting of the Parties to this Protocol as being not likely to have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health.

Article 8

NOTIFICATION

1. The Party of export shall notify, or require the exporter to ensure notification to, in writing,  the competent national authority of the Party of import prior to the intentional transboundary movement of a living modified organism that falls within the scope of Article 7, paragraph 1. The notification shall contain, at a minimum, the information specified in Annex I.

2. The Party of export shall ensure that there is a legal requirement for the accuracy of information provided by the exporter.

Article 9

ACKNOWLEDGEMENT OF RECEIPT OF NOTIFICATION

1. The Party of import shall acknowledge receipt of the notification, in writing, to the notifier within ninety days of its receipt.

2. The acknowledgement shall state:

(a) The date of receipt of the notification; 

(b) Whether the notification, prima facie, contains the information referred to in Article 8; 

(c) Whether to proceed according to the domestic regulatory framework of the Party of import or according to the procedure specified in Article 10. 

3. The domestic regulatory framework referred to in paragraph 2 (c) above, shall be consistent with this Protocol.

4. A failure by the Party of import to acknowledge receipt of a notification shall not imply its consent to an intentional transboundary movement.

Article 10

DECISION PROCEDURE

1. Decisions taken by the Party of import shall be in accordance with Article 15.

2. The Party of import shall, within the period of time referred to in Article 9, inform the notifier, in writing, whether the intentional transboundary movement may proceed:

(a) Only after the Party of import has given its written consent; or

(b) After no less than ninety days without a subsequent written consent. 

3. Within two hundred and seventy days of the date of receipt of notification, the Party of import shall communicate, in writing, to the notifier and to the Biosafety Clearing-House the decision referred to in paragraph 2 (a) above:

(a) Approving the import, with or without conditions, including how the decision will apply to subsequent imports of the same living modified organism; 

(b) Prohibiting the import; 

(c) Requesting additional relevant information in accordance with its domestic regulatory framework or Annex I; in calculating the time within which the Party of import is to respond, the number of days it has to wait for additional relevant information shall not be taken into account; or

(d) Informing the notifier that the period specified in this paragraph is extended by a defined period of time. 

4. Except in a case in which consent is unconditional, a decision under paragraph 3 above, shall set out the reasons on which it is based.

5. A failure by the Party of import to communicate its decision within two hundred and seventy days of the date of receipt of the notification shall not imply its consent to an intentional transboundary movement.

6. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of the living modified organism in question as referred to in paragraph 3 above, in order to avoid or minimize such potential adverse effects.

7. The Conference of the Parties serving as the meeting of the Parties shall, at its first meeting, decide upon appropriate procedures and mechanisms to facilitate decision-making by Parties of import. 

Article 11

PROCEDURE FOR LIVING MODIFIED ORGANISMS INTENDED FOR DIRECT USE AS FOOD OR FEED, OR FOR PROCESSING

1. A Party that makes a final decision regarding domestic use, including placing on the market, of a living modified organism that may be subject to transboundary movement for direct use as food or feed, or for processing shall, within fifteen days of making that decision, inform the Parties through the Biosafety Clearing-House.  This information shall contain, at a minimum, the information specified in Annex II.  The Party shall provide a copy of the information, in writing, to the national focal point of each Party that informs the Secretariat in advance that it does not have access to the Biosafety Clearing-House. This provision shall not apply to decisions regarding field trials.  

2. The Party making a decision under paragraph 1 above, shall ensure that there is a legal requirement for the accuracy of information provided by the applicant.  

3. Any Party may request additional information from the authority identified in paragraph (b) of Annex II.

4. A Party may take a decision on the import of living modified organisms intended for direct use as food or feed, or for processing, under its domestic regulatory framework that is consistent with the objective of this Protocol.

5. Each Party shall make available to the Biosafety Clearing-House copies of any national laws, regulations and guidelines applicable to the import of living modified organisms intended for direct use as food or feed, or for processing, if available.

6. A developing country Party or a Party with an economy in transition may, in the absence of the domestic regulatory framework referred to in paragraph 4 above, and in exercise of its domestic jurisdiction, declare through the Biosafety Clearing-House that its decision prior to the first import of a living modified organism intended for direct use as food or feed, or for processing, on which information has been provided under paragraph 1 above, will be taken according to the following:

(a) A risk assessment undertaken in accordance with Annex III; and

(b) A decision made within a predictable timeframe, not exceeding two hundred and seventy days.

7. Failure by a Party to communicate its decision according to paragraph 6 above, shall not imply its consent or refusal to the import of a living modified organism intended for direct use as food or feed, or for processing, unless otherwise specified by the Party.

8. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of that living modified organism intended for direct use as food or feed, or for processing, in order to avoid or minimize such potential adverse effects. 

9. A Party may indicate its needs for financial and technical assistance and capacity-building with respect to living modified organisms intended for direct use as food or feed, or for processing.  Parties shall cooperate to meet these needs in accordance with Articles 22 and 28. 

Article 12

REVIEW OF DECISIONS

1. A Party of import may, at any time, in light of new scientific information on potential adverse effects on the conservation and sustainable use of biological diversity, taking also into account the risks to human health, review and change a decision regarding an intentional transboundary movement. In such case, the Party shall, within thirty days, inform any notifier that has previously notified movements of the living modified organism referred to in such decision, as well as the Biosafety Clearing-House, and shall set out the reasons for its decision.

2. A Party of export or a notifier may request the Party of import to review a decision it has made in respect of it under Article 10 where the Party of export or the notifier considers that:

(a) A change in circumstances has occurred that may influence the outcome of the risk assessment upon which the decision was based; or

(b) Additional relevant scientific or technical information has become available. 

3. The Party of import shall respond in writing to such a request within ninety days and set out the reasons for its decision.

4. The Party of import may, at its discretion, require a risk assessment for subsequent imports.

Article 13

SIMPLIFIED PROCEDURE

1. A Party of import may, provided that adequate measures are applied to ensure the safe intentional transboundary movement of living modified organisms in accordance with the objective of this Protocol, specify in advance to the Biosafety Clearing-House:

(a) Cases in which intentional transboundary movement to it may take place at the same time as the movement is notified to the Party of import; and

(b) Imports of living modified organisms to it to be exempted from the advance informed agreement procedure. 

Notifications under subparagraph (a) above, may apply to subsequent similar movements to the same Party.

2. The information relating to an intentional transboundary movement that is to be provided in the notifications referred to in paragraph 1 (a) above, shall be the information specified in Annex I.

Article 14

BILATERAL, REGIONAL AND MULTILATERAL AGREEMENTS AND ARRANGEMENTS

1. Parties may enter into bilateral, regional and multilateral agreements and arrangements regarding intentional transboundary movements of living modified organisms, consistent with the objective of this Protocol and provided that such agreements and arrangements do not result in a lower level of protection than that provided for by the Protocol.

2. The Parties shall inform each other, through the Biosafety Clearing-House, of any such bilateral, regional and multilateral agreements and arrangements that they have entered into before or after the date of entry into force of this Protocol.

3. The provisions of this Protocol shall not affect intentional transboundary movements that take place pursuant to such agreements and arrangements as between the parties to those agreements or arrangements.

4. Any Party may determine that its domestic regulations shall apply with respect to specific imports to it and shall notify the Biosafety Clearing-House of its decision.

Article 15

RISK ASSESSMENT

1. Risk assessments undertaken pursuant to this Protocol shall be carried out in a scientifically sound manner, in accordance with Annex III and taking into account recognized risk assessment techniques. Such risk assessments shall be based, at a minimum, on information provided in accordance with Article 8 and other available scientific evidence in order to identify and evaluate the possible adverse effects of living modified organisms on the conservation and sustainable use of biological diversity, taking also into account risks to human health.

2. The Party of import shall ensure that risk assessments are carried out for decisions taken under Article 10.  It may require the exporter to carry out the risk assessment.

3. The cost of risk assessment shall be borne by the notifier if the Party of import so requires.

Article 16

RISK MANAGEMENT

1. The Parties shall, taking into account Article 8 (g) of the Convention, establish and maintain appropriate mechanisms, measures and strategies to regulate, manage and control risks identified in the risk assessment provisions of this Protocol associated with the use, handling and transboundary movement of living modified organisms.

2. Measures based on risk assessment shall be imposed to the extent necessary to prevent adverse effects of the living modified organism on the conservation and sustainable use of biological diversity, taking also into account risks to human health, within the territory of the Party of import.

3. Each Party shall take appropriate measures to prevent unintentional transboundary movements of living modified organisms, including such measures as requiring a risk assessment to be carried out prior to the first release of a living modified organism.

4. Without prejudice to paragraph 2 above, each Party shall endeavour to ensure that any living modified organism, whether imported or locally developed, has undergone an appropriate period of observation that is commensurate with its life-cycle or generation time before it is put to its intended use.

5. Parties shall cooperate with a view to: 

(a) Identifying living modified organisms or specific traits of 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; and

(b) Taking appropriate measures regarding the treatment of such living modified organisms or specific traits.

Article 17

UNINTENTIONAL TRANSBOUNDARY MOVEMENTS AND EMERGENCY MEASURES

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.

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.

Article 18 

HANDLING, TRANSPORT, PACKAGING AND IDENTIFICATION

1. In order to avoid adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, each Party shall take necessary measures to require that living modified organisms that are subject to intentional transboundary movement within the scope of this Protocol are handled, packaged and transported under conditions of safety, taking into consideration relevant international rules and standards. 

2. Each Party shall take measures to require that documentation accompanying:

(a) Living modified organisms that are intended for direct use as food or feed, or for processing, clearly identifies that they "may contain" living modified organisms and are not intended for intentional introduction into the environment, as well as a contact point for further information.  The Conference of the Parties serving as the meeting of the Parties to this Protocol shall take a decision on the detailed requirements for this purpose, including specification of their identity and any unique identification, no later than two years after the date of entry into force of this Protocol;

(b) Living modified organisms that are destined for contained use clearly identifies them as living modified organisms; and specifies any requirements for the safe handling, storage, transport and use, the contact point for further information, including the name and address of the individual and institution to whom the living modified organisms are consigned; and

(c) Living modified organisms that are intended for intentional introduction into the environment of the Party of import and any other living modified organisms within the scope of the Protocol, clearly identifies them as living modified organisms; specifies the identity and relevant traits and/or characteristics, any requirements for the safe handling, storage, transport and use, the contact point for further information and, as appropriate, the name and address of the importer and exporter; and contains a declaration that the movement is in conformity with the requirements of this Protocol applicable to the exporter.

3. The Conference of the Parties serving as the meeting of the Parties to this Protocol shall consider the need for and modalities of developing standards with regard to identification, handling, packaging and transport practices, in consultation with other relevant international bodies.

Article 19

COMPETENT NATIONAL AUTHORITIES AND NATIONAL FOCAL POINTS

1. Each Party shall designate one national focal point to be responsible on its behalf for liaison with the Secretariat. Each Party shall also designate one or more competent national authorities, which shall be responsible for performing the administrative functions required by this Protocol and which shall be authorized to act on its behalf with respect to those functions. A Party may designate a single entity to fulfil the functions of both focal point and competent national authority.

2. Each Party shall, no later than the date of entry into force of this Protocol for it, notify the Secretariat of the names and addresses of its focal point and its competent national authority or authorities. Where a Party designates more than one competent national authority, it shall convey to the Secretariat, with its notification thereof, relevant information on the respective responsibilities of those authorities. Where applicable, such information shall, at a minimum, specify which competent authority is responsible for which type of living modified organism. Each Party shall forthwith notify the Secretariat of any changes in the designation of its national focal point or in the name and address or responsibilities of its competent national authority or authorities.

3. The Secretariat shall forthwith inform the Parties of the notifications it receives under paragraph 2 above, and shall also make such information available through the Biosafety Clearing-House.

Article 20

INFORMATION SHARING AND THE BIOSAFETY CLEARING-HOUSE

1. A Biosafety Clearing-House is hereby established as part of the clearing-house mechanism under Article 18, paragraph 3, of the Convention, in order to:

(a) Facilitate the exchange of scientific, technical, environmental and legal information on, and experience with, living modified organisms; and

(b) Assist Parties to implement the Protocol, taking into account the special needs of developing country Parties, in particular the least developed and small island developing States among them, and countries with economies in transition as well as countries that are centres of origin and centres of genetic diversity. 

2. The Biosafety Clearing-House shall serve as a means through which information is made available for the purposes of paragraph 1 above.  It shall provide access to information made available by the Parties relevant to the implementation of the Protocol.  It shall also provide access, where possible, to other international biosafety information exchange mechanisms.

3. Without prejudice to the protection of confidential information, each Party shall make available to the Biosafety Clearing-House any information required to be made available to the Biosafety Clearing-House under this Protocol, and:

(a) Any existing laws, regulations and guidelines for implementation of the Protocol, as well as information required by the Parties for the advance informed agreement procedure; 

(b) Any bilateral, regional and multilateral agreements and arrangements; 

(c) Summaries of its risk assessments or environmental reviews of living modified organisms generated by its regulatory process, and carried out in accordance with Article 15, including, where appropriate, relevant information regarding products thereof, namely, processed materials that are of living modified organism origin, containing detectable novel combinations of replicable genetic material obtained through the use of modern biotechnology; 

(d) Its final decisions regarding the importation or release of living modified organisms; and

(e) Reports submitted by it pursuant to Article 33, including those on implementation of the advance informed agreement procedure. 

4. The modalities of the operation of the Biosafety Clearing-House, including reports on its activities, shall be considered and decided upon by the Conference of the Parties serving as the meeting of the Parties to this Protocol at its first meeting, and kept under review thereafter.

Article 21

CONFIDENTIAL INFORMATION

1. The Party of import shall permit the notifier to identify information submitted under the procedures of this Protocol or required by the Party of import as part of the advance informed agreement procedure of the Protocol that is to be treated as confidential. Justification shall be given in such cases upon request.

2. The Party of import shall consult the notifier if it decides that information identified by the notifier as confidential does not qualify for such treatment and shall, prior to any disclosure, inform the notifier of its decision, providing reasons on request, as well as an opportunity for consultation and for an internal review of the decision prior to disclosure.

3. Each Party shall protect confidential information received under this Protocol, including any confidential information received in the context of the advance informed agreement procedure of the Protocol.  Each Party shall ensure that it has procedures to protect such information and shall protect the confidentiality of such information in a manner no less favourable than its treatment of confidential information in connection with domestically produced living modified organisms.

4. The Party of import shall not use such information for a commercial purpose, except with the written consent of the notifier.

5. If a notifier withdraws or has withdrawn a notification, the Party of import shall respect the confidentiality of commercial and industrial information, including research and development information as well as information on which the Party and the notifier disagree as to its confidentiality.

6. Without prejudice to paragraph 5 above, the following information shall not be considered confidential:

(a) The name and address of the notifier; 

(b) A general description of the living modified organism or organisms; 

(c) A summary of the risk assessment of the effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health; and

(d) Any methods and plans for emergency response. 

Article 22

CAPACITY-BUILDING

1. The Parties shall cooperate in the development and/or strengthening of human resources and institutional capacities in biosafety, including biotechnology to the extent that it is required for biosafety, for the purpose of the effective implementation of this Protocol, in developing country Parties, in particular the least developed and small island developing States among them, and in Parties with economies in transition, including through existing global, regional, subregional and national institutions and organizations and, as appropriate, through facilitating private sector involvement.

2. For the purposes of implementing paragraph 1 above, in relation to cooperation, the needs of developing country Parties, in particular the least developed and small island developing States among them, for financial resources and access to and transfer of technology and know-how in accordance with the relevant provisions of the Convention, shall be taken fully into account for capacity-building in biosafety.  Cooperation in capacity-building shall, subject to the different situation, capabilities and requirements of each Party, include scientific and technical training in the proper and safe management of biotechnology, and in the use of risk assessment and risk management for biosafety, and the enhancement of technological and institutional capacities in biosafety.  The needs of Parties with economies in transition shall also be taken fully into account for such capacity-building in biosafety.

Article 23

PUBLIC AWARENESS AND PARTICIPATION

1. The Parties shall:

(a) Promote and facilitate public awareness, education and participation concerning the safe transfer, handling and use of living modified organisms in relation to the conservation and sustainable use of biological diversity, taking also into account risks to human health. In doing so, the Parties shall cooperate, as appropriate, with other States and international bodies; 

(b) Endeavour to ensure that public awareness and education encompass access to information on living modified organisms identified in accordance with this Protocol that may be imported. 

2. The Parties shall, in accordance with their respective laws and regulations, consult the public in the decision-making process regarding living modified organisms and shall make the results of such decisions available to the public, while respecting confidential information in accordance with Article 21.

3. Each Party shall endeavour to inform its public about the means of public access to the Biosafety Clearing-House.

Article 24

NON-PARTIES

1. Transboundary movements of living modified organisms between Parties and non-Parties shall be consistent with the objective of this Protocol. The Parties may enter into bilateral, regional and multilateral agreements and arrangements with non-Parties regarding such transboundary movements.

2. The Parties shall encourage non-Parties to adhere to this Protocol and to contribute appropriate information to the Biosafety Clearing-House on living modified organisms released in, or moved into or out of, areas within their national jurisdictions.

Article 25

ILLEGAL TRANSBOUNDARY MOVEMENTS

1. Each Party shall adopt appropriate domestic measures aimed at preventing and, if appropriate, penalizing transboundary movements of living modified organisms carried out in contravention of its domestic measures to implement this Protocol. Such movements shall be deemed illegal transboundary movements.

2. In the case of an illegal transboundary movement, the affected Party may request the Party of origin to dispose, at its own expense, of the living modified organism in question by repatriation or destruction, as appropriate.

3. Each Party shall make available to the Biosafety Clearing-House information concerning cases of illegal transboundary movements pertaining to it.

Article 26

SOCIO-ECONOMIC CONSIDERATIONS

1. The Parties, in reaching a decision on import under this Protocol or under its domestic measures implementing the Protocol, may take into account, consistent with their international obligations, socio-economic considerations arising from the impact of living modified organisms on the conservation and sustainable use of biological diversity, especially with regard to the value of biological diversity to indigenous and local communities.

2. The Parties are encouraged to cooperate on research and information exchange on any socio-economic impacts of living modified organisms, especially on indigenous and local communities.

Article 27

LIABILITY AND REDRESS

The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first meeting, adopt a process with respect to the appropriate elaboration of international rules and procedures in the field of liability and redress for damage resulting from transboundary movements of living modified organisms, analysing and taking due account of the ongoing processes in international law on these matters, and shall endeavour to complete this process within four years. 

Article 28

FINANCIAL MECHANISM AND RESOURCES

1. In considering financial resources for the implementation of this Protocol, the Parties shall take into account the provisions of Article 20 of the Convention.

2. The financial mechanism established in Article 21 of the Convention shall, through the institutional structure entrusted with its operation, be the financial mechanism for this Protocol.

3. Regarding the capacity-building referred to in Article 22 of this Protocol, the Conference of the Parties serving as the meeting of the Parties to this Protocol, in providing guidance with respect to the financial mechanism referred to in paragraph 2 above, for consideration by the Conference of the Parties, shall take into account the need for financial resources by developing country Parties, in particular the least developed and the small island developing States among them.

4. In the context of paragraph 1 above, the Parties shall also take into account the needs of the developing country Parties, in particular the least developed and the small island developing States among them, and of the Parties with economies in transition, in their efforts to identify and implement their capacity-building requirements for the purposes of the implementation of this Protocol.

5. The guidance to the financial mechanism of the Convention in relevant decisions of the Conference of the Parties, including those agreed before the adoption of this Protocol, shall apply, mutatis mutandis, to the provisions of this Article.

6. The developed country Parties may also provide, and the developing country Parties and the Parties with economies in transition avail themselves of, financial and technological resources for the implementation of the provisions of this Protocol through bilateral, regional and multilateral channels.

Article 29

CONFERENCE OF THE PARTIES SERVING AS THE MEETING OF THE PARTIES TO THIS PROTOCOL

1. The Conference of the Parties shall serve as the meeting of the Parties to this Protocol.

2. Parties to the Convention that are not Parties to this Protocol may participate as observers in the proceedings of any meeting of the Conference of the Parties serving as the meeting of the Parties to this Protocol. When the Conference of the Parties serves as the meeting of the Parties to this Protocol, decisions under this Protocol shall be taken only by those that are Parties to it.

3. When the Conference of the Parties serves as the meeting of the Parties to this Protocol, any member of the bureau of the Conference of the Parties representing a Party to the Convention but, at that time, not a Party to this Protocol, shall be substituted by a member to be elected by and from among the Parties to this Protocol.

4. The Conference of the Parties serving as the meeting of the Parties to this Protocol shall keep under regular review the implementation of this Protocol and shall make, within its mandate, the decisions necessary to promote its effective implementation. It shall perform the functions assigned to it by this Protocol and shall:

(a) Make recommendations on any matters necessary for the implementation of this Protocol; 

(b) Establish such subsidiary bodies as are deemed necessary for the implementation of this Protocol; 

(c) Seek and utilize, where appropriate, the services and cooperation of, and information provided by, competent international organizations and intergovernmental and non-governmental bodies; 

(d) Establish the form and the intervals for transmitting the information to be submitted in accordance with Article 33 of this Protocol and consider such information as well as reports submitted by any subsidiary body; 

(e) Consider and adopt, as required, amendments to this Protocol and its annexes, as well as any additional annexes to this Protocol, that are deemed necessary for the implementation of this Protocol; and

(f) Exercise such other functions as may be required for the implementation of this Protocol. 

5. The rules of procedure of the Conference of the Parties and financial rules of the Convention shall be applied, mutatis mutandis, under this Protocol, except as may be otherwise decided by consensus by the Conference of the Parties serving as the meeting of the Parties to this Protocol.

6. The first meeting of the Conference of the Parties serving as the meeting of the Parties to this Protocol shall be convened by the Secretariat in conjunction with the first meeting of the Conference of the Parties that is scheduled after the date of the entry into force of this Protocol. Subsequent ordinary meetings of the Conference of the Parties serving as the meeting of the Parties to this Protocol shall be held in conjunction with ordinary meetings of the Conference of the Parties, unless otherwise decided by the Conference of the Parties serving as the meeting of the Parties to this Protocol.

7. Extraordinary meetings of the Conference of the Parties serving as the meeting of the Parties to this Protocol shall be held at such other times as may be deemed necessary by the Conference of the Parties serving as the meeting of the Parties to this Protocol, or at the written request of any Party, provided that, within six months of the request being communicated to the Parties by the Secretariat, it is supported by at least one third of the Parties.

8. The United Nations, its specialized agencies and the International Atomic Energy Agency, as well as any State member thereof or observers thereto not party to the Convention, may be represented as observers at meetings of the Conference of the Parties serving as the meeting of the Parties to this Protocol. Any body or agency, whether national or international, governmental or non-governmental, that is qualified in matters covered by this Protocol and that has informed the Secretariat of its wish to be represented at a meeting of the Conference of the Parties serving as a meeting of the Parties to this Protocol as an observer, may be so admitted, unless at least one third of the Parties present object. Except as otherwise provided in this Article, the admission and participation of observers shall be subject to the rules of procedure, as referred to in paragraph 5 above.

Article 30

SUBSIDIARY BODIES 

1. Any subsidiary body established by or under the Convention may, upon a decision by the Conference of the Parties serving as the meeting of the Parties to this Protocol, serve the Protocol, in which case the meeting of the Parties shall specify which functions that body shall exercise.

2. Parties to the Convention that are not Parties to this Protocol may participate as observers in the proceedings of any meeting of any such subsidiary bodies. When a subsidiary body of the Convention serves as a subsidiary body to this Protocol, decisions under the Protocol shall be taken only by the Parties to the Protocol.

3. When a subsidiary body of the Convention exercises its functions with regard to matters concerning this Protocol, any member of the bureau of that subsidiary body representing a Party to the Convention but, at that time, not a Party to the Protocol, shall be substituted by a member to be elected by and from among the Parties to the Protocol.

Article 31

SECRETARIAT

1. The Secretariat established by Article 24 of the Convention shall serve as the secretariat to this Protocol.

2. Article 24, paragraph 1, of the Convention on the functions of the Secretariat shall apply, mutatis mutandis, to this Protocol.

3. To the extent that they are distinct, the costs of the secretariat services for this Protocol shall be met by the Parties hereto. The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first meeting, decide on the necessary budgetary arrangements to this end.

Article 32

RELATIONSHIP WITH THE CONVENTION

Except as otherwise provided in this Protocol, the provisions of the Convention relating to its protocols shall apply to this Protocol. 

Article 33

MONITORING AND REPORTING

Each Party shall monitor the implementation of its obligations under this Protocol, and shall, at intervals to be determined by the Conference of the Parties serving as the meeting of the Parties to this Protocol, report to the Conference of the Parties serving as the meeting of the Parties to this Protocol on measures that it has taken to implement the Protocol. 

Article 34

COMPLIANCE

The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first meeting, consider and approve cooperative procedures and institutional mechanisms to promote compliance with the provisions of this Protocol and to address cases of non-compliance. These procedures and mechanisms shall include provisions to offer advice or assistance, where appropriate. They shall be separate from, and without prejudice to, the dispute settlement procedures and mechanisms established by Article 27 of the Convention. 

Article 35

ASSESSMENT AND REVIEW

The Conference of the Parties serving as the meeting of the Parties to this Protocol shall undertake, five years after the entry into force of this Protocol and at least every five years thereafter, an evaluation of the effectiveness of the Protocol, including an assessment of its procedures and annexes.

Article 36

SIGNATURE

This Protocol shall be open for signature at the United Nations Office at Nairobi by States and regional economic integration organizations from 15 to 26 May 2000, and at United Nations Headquarters in New York from 5 June 2000 to 4 June 2001. 

Article 37

ENTRY INTO FORCE

1. This Protocol shall enter into force on the ninetieth day after the date of deposit of the fiftieth instrument of ratification, acceptance, approval or accession by States or regional economic integration organizations that are Parties to the Convention.

2. This Protocol shall enter into force for a State or regional economic integration organization that ratifies, accepts or approves this Protocol or accedes thereto after its entry into force pursuant to paragraph 1 above, on the ninetieth day after the date on which that State or regional economic integration organization deposits its instrument of ratification, acceptance, approval or accession, or on the date on which the Convention enters into force for that State or regional economic integration organization, whichever shall be the later.

3. For the purposes of paragraphs 1 and 2 above, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by member States of such organization.

Article 38

RESERVATIONS

No reservations may be made to this Protocol. 

Article 39

WITHDRAWAL

1. At any time after two years from the date on which this Protocol has entered into force for a Party, that Party may withdraw from the Protocol by giving written notification to the Depositary.

2. Any such withdrawal shall take place upon expiry of one year after the date of its receipt by the Depositary, or on such later date as may be specified in the notification of the withdrawal.

Article 40

AUTHENTIC TEXTS

The original of this Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations. 

IN WITNESS WHEREOF the undersigned, being duly authorized to that effect, have signed this Protocol.

DONE at Montreal on this twenty-ninth day of January, two thousand.

Annex I

INFORMATION REQUIRED IN NOTIFICATIONS UNDER ARTICLES 8, 10 AND 13

(a) Name, address and contact details of the exporter.

(b) Name, address and contact details of the importer.

(c) Name and identity of the living modified organism, as well as the domestic classification, if any, of the biosafety level of the living modified organism in the State of export.

(d) Intended date or dates of the transboundary movement, if known.

(e) Taxonomic status, common name, point of collection or acquisition, and characteristics of recipient organism or parental organisms related to biosafety.

(f) Centres of origin and centres of genetic diversity, if known, of the recipient organism and/or the parental organisms and a description of the habitats where the organisms may persist or proliferate.

(g) Taxonomic status, common name, point of collection or acquisition, and characteristics of the donor organism or organisms related to biosafety.

(h) Description of the nucleic acid or the modification introduced, the technique used, and the resulting characteristics of the living modified organism.

(i) Intended use of the living modified organism or products thereof, namely, processed materials that are of living modified organism origin, containing detectable novel combinations of replicable genetic material obtained through the use of modern biotechnology.

(j) Quantity or volume of the living modified organism to be transferred.

(k) A previous and existing risk assessment report consistent with Annex III.

(l) Suggested methods for the safe handling, storage, transport and use, including packaging, labelling, documentation, disposal and contingency procedures, where appropriate.

(m) Regulatory status of the living modified organism within the State of export (for example, whether it is prohibited in the State of export, whether there are other restrictions, or whether it has been approved for general release) and, if the living modified organism is banned in the State of export, the reason or reasons for the ban.

(n) Result and purpose of any notification by the exporter to other States regarding the living modified organism to be transferred.

(o) A declaration that the above-mentioned information is factually correct.

Annex II

INFORMATION REQUIRED CONCERNING LIVING MODIFIED ORGANISMS INTENDED FOR DIRECT USE AS FOOD OR FEED, OR FOR PROCESSING UNDER ARTICLE 11

(a) The name and contact details of the applicant for a decision for domestic use.

(b) The name and contact details of the authority responsible for the decision.  

(c) Name and identity of the living modified organism.

(d) Description of the gene modification, the technique used, and the resulting characteristics of the living modified organism.

(e) Any unique identification of the living modified organism.

(f) Taxonomic status, common name, point of collection or acquisition, and characteristics of recipient organism or parental organisms related to biosafety.

(g) Centres of origin and centres of genetic diversity, if known, of the recipient organism and/or the parental organisms and a description of the habitats where the organisms may persist or proliferate.

(h) Taxonomic status, common name, point of collection or acquisition, and characteristics of the donor organism or organisms related to biosafety.

(i) Approved uses of the living modified organism.

(j) A risk assessment report consistent with Annex III. 

(k) Suggested methods for the safe handling, storage, transport and use, including packaging, labelling, documentation, disposal and contingency procedures, where appropriate.

Annex III

RISK ASSESSMENT

Objective

1. The objective of risk assessment, under this Protocol, is to identify and evaluate the potential adverse effects of living modified organisms on the conservation and sustainable use of biological diversity in the likely potential receiving environment, taking also into account risks to human health.

Use of risk assessment

2. Risk assessment is, inter alia, used by competent authorities to make informed decisions regarding living modified organisms.

General principles

3. Risk assessment should be carried out in a scientifically sound and transparent manner, and can take into account expert advice of, and guidelines developed by, relevant international organizations.

4. Lack of scientific knowledge or scientific consensus should not necessarily be interpreted as indicating a particular level of risk, an absence of risk, or an acceptable risk.

5. Risks associated with living modified organisms or products thereof, namely, processed materials that are of living modified organism origin, containing detectable novel combinations of replicable genetic material obtained through the use of modern biotechnology, should be considered in the context of the risks posed by the non-modified recipients or parental organisms in the likely potential receiving environment.

6. Risk assessment should be carried out on a case-by-case basis. The required information may vary in nature and level of detail from case to case, depending on the living modified organism concerned, its intended use and the likely potential receiving environment.

Methodology

7. The process of risk assessment may on the one hand give rise to a need for further information about specific subjects, which may be identified and requested during the assessment process, while on the other hand information on other subjects may not be relevant in some instances.

8. To fulfil its objective, risk assessment entails, as appropriate, the following steps:

(a) An identification of any novel genotypic and phenotypic characteristics associated with the living modified organism that may have adverse effects on biological diversity in the likely potential receiving environment, taking also into account risks to human health; 

(b) An evaluation of the likelihood of these adverse effects being realized, taking into account the level and kind of exposure of the likely potential receiving environment to the living modified organism; 

(c) An evaluation of the consequences should these adverse effects be realized; 

(d) An estimation of the overall risk posed by the living modified organism based on the evaluation of the likelihood and consequences of the identified adverse effects being realized; 

(e) A recommendation as to whether or not the risks are acceptable or manageable, including, where necessary, identification of strategies to manage these risks; and 

(f) Where there is uncertainty regarding the level of risk, it may be addressed by requesting further information on the specific issues of concern or by implementing appropriate risk management strategies and/or monitoring the living modified organism in the receiving environment. 

Points to consider

9. Depending on the case, risk assessment takes into account the relevant technical and scientific details regarding the characteristics of the following subjects:

(a) Recipient organism or parental organisms.  The biological characteristics of the recipient organism or parental organisms, including information on taxonomic status, common name, origin, centres of origin and centres of genetic diversity, if known, and a description of the habitat where the organisms may persist or proliferate; 

(b) Donor organism or organisms.  Taxonomic status and common name, source, and the relevant biological characteristics of the donor organisms; 

(c) Vector.  Characteristics of the vector, including its identity, if any, and its source or origin, and its host range; 

(d) Insert or inserts and/or characteristics of modification.  Genetic characteristics of the inserted nucleic acid and the function it specifies, and/or characteristics of the modification introduced; 

(e) Living modified organism.  Identity of the living modified organism, and the differences between the biological characteristics of the living modified organism and those of the recipient organism or parental organisms; 

(f) Detection and identification of the living modified organism. Suggested detection and identification methods and their specificity, sensitivity and reliability; 

(g) Information relating to the intended use.  Information relating to the intended use of the living modified organism, including new or changed use compared to the recipient organism or parental organisms; and

(h) Receiving environment.  Information on the location, geographical, climatic and ecological characteristics, including relevant information on biological diversity and centres of origin of the likely potential receiving environment. 

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CONVENTION ON BIOLOGICAL DIVERSITY

Preamble

  The Contracting Parties,

  Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components,

  Conscious also of the importance of biological diversity for evolution and for maintaining life sustaining systems of the biosphere,

  Affirming that the conservation of biological diversity is a common concern of humankind,

  Reaffirming that States have sovereign rights over their own biological resources,

  Reaffirming also that States are responsible for conserving their biological diversity and for using their biological resources in a sustainable manner,

  Concerned that biological diversity is being significantly reduced by certain human activities,

  Aware of the general lack of information and knowledge regarding biological diversity and of the urgent need to develop scientific, technical and institutional capacities to provide the basic understanding upon which to plan and implement appropriate measures,

  Noting that it is vital to anticipate, prevent and attack the causes of significant reduction or loss of biological diversity at source,

  Noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat,

  Noting further that the fundamental requirement for the conservation of biological diversity is the in-situ conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings,

  Noting further that ex-situ measures, preferably in the country of origin, also have an important role to play,

  Recognizing the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components,

  Recognizing also the vital role that women play in the conservation and sustainable use of biological diversity and affirming the need for the full participation of women at all levels of policy-making and implementation for biological diversity conservation,

  Stressing the importance of, and the need to promote, international, regional and global cooperation among States and intergovernmental organizations and the non-governmental sector for the conservation of biological diversity and the sustainable use of its components,

  Acknowledging that the provision of new and additional financial resources and appropriate access to relevant technologies can be expected to make a substantial difference in the world's ability to address the loss of biological diversity,

  *823 Acknowledging further that special provision is required to meet the needs of developing countries, including the provision of new and additional financial resources and appropriate access to relevant technologies,

  Noting in this regard the special conditions of the least developed countries and small island States,

  Acknowledging that substantial investments are required to conserve biological diversity and that there is the expectation of a broad range of environmental, economic and social benefits from those investments,

  Recognizing that economic and social development and poverty eradication are the first and overriding priorities of developing countries,

  Aware that conservation and sustainable use of biological diversity is of critical importance for meeting the food, health and other needs of the growing world population, for which purpose access to and sharing of both genetic resources and technologies are essential,

  Noting that, ultimately, the conservation and sustainable use of biological diversity will strengthen friendly relations among States and contribute to peace for humankind,

  Desiring to enhance and complement existing international arrangements for the conservation of biological diversity and sustainable use of its components, and

  Determined to conserve and sustainably use biological diversity for the benefit of present and future generations,

  Have agreed as follows:

Article 1. Objectives

The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.

Article 2. Use of Terms

  For the purposes of this Convention:

  "Biological diversity" means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.

  "Biological resources" includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity.

  "Biotechnology" means any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use.

  "Country of origin of genetic resources" means the country which possesses those genetic resources in in-situ conditions.

  "Country providing genetic resources" means the country supplying genetic resources collected from in-situ sources, including populations of both wild and domesticated species, or taken from ex-situ sources, which may or may not have originated in that country.

  *824 "Domesticated or cultivated species" means species in which the evolutionary process has been influenced by humans to meet their needs.

  "Ecosystem" means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.

  "Ex-situ conservation" means the conservation of components of biological diversity outside their natural habitats.

  "Genetic material" means any material of plant, animal, microbial or other origin containing functional units of heredity.

  "Genetic resources" means genetic material of actual or potential value.

  "Habitat" means the place or type of site where an organism or population naturally occurs.

  "In-situ conditions" means conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties.

  "In-situ conservation" means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties.

  "Protected area" means a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives.

  "Regional economic integration organization" means an organization constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by this Convention and which has been duly authorized, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to it.

  "Sustainable use" means the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.

  "Technology" includes biotechnology.

Article 3. Principle

  States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

Article 4. Jurisdictional Scope

  Subject to the rights of other States, and except as otherwise expressly provided in this Convention, the provisions of this Convention apply, in relation to each Contracting Party:

    (a) In the case of components of biological diversity, in areas within the limits of its national jurisdiction; and

    (b) In the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction.

*825 Article 5. Cooperation

  Each Contracting Party shall, as far as possible and as appropriate, cooperate with other Contracting Parties, directly or, where appropriate, through competent international organizations, in respect of areas beyond national jurisdiction and on other matters of mutual interest, for the conservation and sustainable use of biological diversity.

Article 6. General Measures for Conservation and Sustainable Use

  Each Contracting Party shall, in accordance with its particular conditions and capabilities:

    (a) Develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programmes which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned; and

    (b) Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.

Article 7. Identification and Monitoring

  Each Contracting Party shall, as far as possible and as appropriate, in particular for the purposes of Articles 8 to 10:

    (a) Identify components of biological diversity important for its conservation and sustainable use having regard to the indicative list of categories set down in Annex I;

    (b) Monitor, through sampling and other techniques, the components of biological diversity identified pursuant to subparagraph (a) above, paying particular attention to those requiring urgent conservation measures and those which offer the greatest potential for sustainable use;

    (c) Identify processes and categories of activities which have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity, and monitor their effects through sampling and other techniques; and

    (d) Maintain and organize, by any mechanism data, derived from identification and monitoring activities pursuant to subparagraphs (a), (b) and (c) above.

Article 8. In-situ Conservation

  Each Contracting Party shall, as far as possible and as appropriate:

    (a) Establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity;

    (b) Develop, where necessary, guidelines for the selection, establishment and management of protected areas or areas where special measures need to be taken to conserve biological diversity;

    (c) Regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use;

    (d) Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings;

    (e) Promote environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas;

    *826 (f) Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies;

    (g) Establish or maintain means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health;

    (h) Prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species;

    (i) Endeavour to provide the conditions needed for compatibility between present uses and the conservation of biological diversity and the sustainable use of its components;

(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices;

(k) Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations;

    (l) Where a significant adverse effect on biological diversity has been determined pursuant to Article 7, regulate or manage the relevant processes and categories of activities; and

    (m) Cooperate in providing financial and other support for in-situ conservation outlined in subparagraphs (a) to (1) above, particularly to developing countries.

Article 9. Ex-situ Conservation

  Each Contracting Party shall, as far as possible and as appropriate, and predominantly for the purpose of complementing in-situ measures:

    (a) Adopt measures for the ex-situ conservation of components of biological diversity, preferably in the country of origin of such components;

    (b) Establish and maintain facilities for ex-situ conservation of and research on plants, animals and micro-organisms, preferably in the country of origin of genetic resources;

    (c) Adopt measures for the recovery and rehabilitation of threatened species and for their reintroduction into their natural habitats under appropriate conditions;

    (d) Regulate and manage collection of biological resources from natural habitats for ex-situ conservation purposes so as not to threaten ecosystems and in-situ populations of species, except where special temporary ex-situ measures are required under subparagraph (c) above; and

    (e) Cooperate in providing financial and other support for ex-situ conservation outlined in subparagraphs (a) to (d) above and in the establishment and maintenance of ex-situ conservation facilities in developing countries.

Article 10. Sustainable Use of Components of Biological Diversity

  Each Contracting Party shall, as far as possible and as appropriate:

    *827 (a) Integrate consideration of the conservation and sustainable use of biological resources into national decision-making;

    (b) Adopt measures relating to the use of biological resources to avoid or minimize adverse impacts on biological diversity;

    (c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements;

    (d) Support local populations to develop and implement remedial action in degraded areas where biological diversity has been reduced; and

    (e) Encourage cooperation between its governmental authorities and its private sector in developing methods for sustainable use of biological resources.

Article 11. Incentive Measures

  Each Contracting Party shall, as far as possible and as appropriate, adopt economically and socially sound measures that act as incentives for the conservation and sustainable use of components of biological diversity.

Article 12. Research and Training

  The Contracting Parties, taking into account the special needs of developing countries, shall:

    (a) Establish and maintain programmes for scientific and technical education and training in measures for the identification, conservation and sustainable use of biological diversity and its components and provide support for such education and training for the specific needs of developing countries;

    (b) Promote and encourage research which contributes to the conservation and sustainable use of biological diversity, particularly in developing countries, inter alia, in accordance with decisions of the Conference of the Parties taken in consequence of recommendations of the Subsidiary Body on Scientific, Technical and Technological Advice; and

    (c) In keeping with the provisions of Articles 16, 18 and 20, promote and cooperate in the use of scientific advances in biological diversity research in developing methods for conservation and sustainable use of biological resources.

Article 13. Public Education and Awareness

  The Contracting Parties shall:

    (a) Promote and encourage understanding of the importance of, and the measures required for, the conservation of biological diversity, as well as its propagation through media, and the inclusion of these topics in educational programmes; and

    (b) Cooperate, as appropriate, with other States and international organizations in developing educational and public awareness programmes, with respect to conservation and sustainable use of biological diversity.

Article 14. Impact Assessment and Minimizing Adverse Impacts

  1. Each Contracting Party, as far as possible and as appropriate, shall:

    (a) Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures;

    *828 (b) Introduce appropriate arrangements to ensure that the environmental consequences of its programmes and policies that are likely to have significant adverse impacts on biological diversity are duly taken into account;

    (c) Promote, on the basis of reciprocity, notification, exchange of information and consultation on activities under their jurisdiction or control which are likely to significantly affect adversely the biological diversity of other States or areas beyond the limits of national jurisdiction, by encouraging the conclusion of bilateral, regional or multilateral arrangements, as appropriate;

    (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; and

    (e) Promote national arrangements for emergency responses to activities or events, whether caused naturally or otherwise, which present a grave and imminent danger to biological diversity and encourage international cooperation to supplement such national efforts and, where appropriate and agreed by the States or regional economic integration organizations concerned, to establish joint contingency plans.

  2. The Conference of the Parties shall examine, on the basis of studies to be carried out, the issue of liability and redress, including restoration and compensation, for damage to biological diversity, except where such liability is a purely internal matter.

Article 15. Access to Genetic Resources

  1. Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.

  2. Each Contracting Party shall endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties and not to impose restrictions that run counter to the objectives of this Convention.

  3. For the purpose of this Convention, the genetic resources being provided by a Contracting Party, as referred to in this Article and Articles 16 and 19, are only those that are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance with this Convention.

  4. Access, where granted, shall be on mutually agreed terms and subject to the provisions of this Article.

  5. Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.

  6. Each Contracting Party shall endeavour to develop and carry out scientific research based on genetic resources provided by other Contracting Parties with the full participation of, and where possible in, such Contracting Parties.

  7. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, and in accordance with Articles 16 and 19 and, where necessary, through the financial mechanism established by Articles 20 and 21 with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms.

*829 Article 16. Access to and Transfer of Technology

  1. Each Contracting Party, recognizing that technology includes biotechnology, and that both access to and transfer of technology among Contracting Parties are essential elements for the attainment of the objectives of this Convention, undertakes subject to the provisions of this Article to provide and/or facilitate access for and transfer to other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment.

  2. Access to and transfer of technology referred to in paragraph 1 above to developing countries shall be provided and/or facilitated under fair and most favourable terms, including on concessional and preferential terms where mutually agreed, and, where necessary, in accordance with the financial mechanism established by Articles 20 and 21. In the case of technology subject to patents and other intellectual property rights, such access and transfer shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights. The application of this paragraph shall be consistent with paragraphs 3, 4 and 5 below.

  3. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, with the aim that Contracting Parties, in particular those that are developing countries, which provide genetic resources are provided access to and transfer of technology which makes use of those resources, on mutually agreed terms, including technology protected by patents and other intellectual property rights, where necessary, through the provisions of Articles 20 and 21 and in accordance with international law and consistent with paragraphs 4 and 5 below.

  4. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, with the aim that the private sector facilitates access to, joint development and transfer of technology referred to in paragraph 1 above for the benefit of both governmental institutions and the private sector of developing countries and in this regard shall abide by the obligations included in paragraphs 1, 2 and 3 above.

  5. The Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives.

Article 17. Exchange of Information

  1. The Contracting Parties shall facilitate the exchange of information, from all publicly available sources, relevant to the conservation and sustainable use of biological diversity, taking into account the special needs of developing countries.

  2. Such exchange of information shall include exchange of results of technical, scientific and socio-economic research, as well as information on training and surveying programmes, specialized knowledge, indigenous and traditional knowledge as such and in combination with the technologies referred to in Article 16, paragraph 1. It shall also, where feasible, include repatriation of information.

Article 18. Technical and Scientific Cooperation

  1. The Contracting Parties shall promote international technical and scientific cooperation in the field of conservation and sustainable use of biological diversity, where necessary, through the appropriate international and national institutions.

  *830 2. Each Contracting Party shall promote technical and scientific cooperation with other Contracting Parties, in particular developing countries, in implementing this Convention, inter alia, through the development and implementation of national policies. In promoting such cooperation, special attention should be given to the development and strengthening of national capabilities, by means of human resources development and institution building.

  3. The Conference of the Parties, at its first meeting, shall determine how to establish a clearing-house mechanism to promote and facilitate technical and scientific cooperation.

  4. The Contracting Parties shall, in accordance with national legislation and policies, encourage and develop methods of cooperation for the development and use of technologies, including indigenous and traditional technologies, in pursuance of the objectives of this Convention. For this purpose, the Contracting Parties shall also promote cooperation in the training of personnel and exchange of experts.

  5. The Contracting Parties shall, subject to mutual agreement, promote the establishment of joint research programmes and joint ventures for the development of technologies relevant to the objectives of this Convention.

Article 19. Handling of Biotechnology and Distribution of its Benefits

  1. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, to provide for the effective participation in biotechnological research activities by those Contracting Parties, especially developing countries, which provide the genetic resources for such research, and where feasible in such Contracting Parties.

  2. Each Contracting Party shall take all practicable measures to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by those Contracting Parties. Such access shall be on mutually agreed terms.

  3. The Parties shall consider the need for and modalities of a protocol setting out appropriate procedures, including, in particular, advance informed agreement, in the field of the safe transfer, handling and use of any living modified organism resulting from biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity.

  4. Each Contracting Party shall, directly or by requiring any natural or legal person under its jurisdiction providing the organisms referred to in paragraph 3 above, provide any available information about the use and safety regulations required by that Contracting Party in handling such organisms, as well as any available information on the potential adverse impact of the specific organisms concerned to the Contracting Party into which those organisms are to be introduced.

Article 20. Financial Resources

  1. Each Contracting Party undertakes to provide, in accordance with its capabilities, financial support and incentives in respect of those national activities which are intended to achieve the objectives of this Convention, in accordance with its national plans, priorities and programmes.

  2. The developed country Parties shall provide new and additional financial resources to enable developing country Parties to meet the agreed full incremental costs to them of implementing measures which fulfil the obligations of this Convention and to benefit from its provisions and which costs are agreed between a developing country Party and the institutional structure referred to in Article 21, in accordance with policy, strategy, programme priorities and eligibility criteria and an indicative list of incremental costs established by the Conference of the Parties. Other *831 Parties, including countries undergoing the process of transition to a market economy, may voluntarily assume the obligations of the developed country Parties. For the purpose of this Article, the Conference of the Parties, shall at its first meeting establish a list of developed country Parties and other Parties which voluntarily assume the obligations of the developed country Parties. The Conference of the Parties shall periodically review and if necessary amend the list. Contributions from other countries and sources on a voluntary basis would also be encouraged. The implementation of these commitments shall take into account the need for adequacy, predictability and timely flow of funds and the importance of burden-sharing among the contributing Parties included in the list.

  3. The developed country Parties may also provide, and developing country Parties avail themselves of, financial resources related to the implementation of this Convention through bilateral, regional and other multilateral channels.

  4. The extent to which developing country Parties will effectively implement their commitments under this Convention will depend on the effective implementation by developed country Parties of their commitments under this Convention related to financial resources and transfer of technology and will take fully into account the fact that economic and social development and eradication of poverty are the first and overriding priorities of the developing country Parties.

  5. The Parties shall take full account of the specific needs and special situation of least developed countries in their actions with regard to funding and transfer of technology.

  6. The Contracting Parties shall also take into consideration the special conditions resulting from the dependence on, distribution and location of, biological diversity within developing country Parties, in particular small island States.

  7. Consideration shall also be given to the special situation of developing countries, including those that are most environmentally vulnerable, such as those with arid and semi-arid zones, coastal and mountainous areas.

Article 21. Financial Mechanism

  1. There shall be a mechanism for the provision of financial resources to developing country Parties for purposes of this Convention on a grant or concessional basis the essential elements of which are described in this Article. The mechanism shall function under the authority and guidance of, and be accountable to, the Conference of the Parties for purposes of this Convention. The operations of the mechanism shall be carried out by such institutional structure as may be decided upon by the Conference of the Parties at its first meeting. For purposes of this Convention, the Conference of the Parties shall determine the policy, strategy, programme priorities and eligibility criteria relating to the access to and utilization of such resources. The contributions shall be such as to take into account the need for predictability, adequacy and timely flow of funds referred to in Article 20 in accordance with the amount of resources needed to be decided periodically by the Conference of the Parties and the importance of burden-sharing among the contributing Parties included in the list referred to in Article 20, paragraph 2. Voluntary contributions may also be made by the developed country Parties and by other countries and sources. The mechanism shall operate within a democratic and transparent system of governance.

  2. Pursuant to the objectives of this Convention, the Conference of the Parties shall at its first meeting determine the policy, strategy and programme priorities, as well as detailed criteria and guidelines for eligibility for access to and utilization of the financial resources including monitoring and evaluation on a regular basis of such utilization. The Conference of the Parties shall decide on the arrangements to give effect to paragraph 1 above after consultation with the institutional structure entrusted with the operation of the financial mechanism.

  *832 3. The Conference of the Parties shall review the effectiveness of the mechanism established under this Article, including the criteria and guidelines referred to in paragraph 2 above, not less than two years after the entry into force of this Convention and thereafter on a regular basis. Based on such review, it shall take appropriate action to improve the effectiveness of the mechanism if necessary.

  4. The Contracting Parties shall consider strengthening existing financial institutions to provide financial resources for the conservation and sustainable use of biological diversity.

Article 22. Relationship with Other International Conventions

  1. The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.

  2. Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea.

Article 23. Conference of the Parties

  1. A Conference of the Parties is hereby established. The first meeting of the Conference of the Parties shall be convened by the Executive Director of the United Nations Environment Programme not later than one year after the entry into force of this Convention. Thereafter, ordinary meetings of the Conference of the Parties shall be held at regular intervals to be determined by the Conference at its first meeting.

  2. Extraordinary meetings of the Conference of the Parties shall be held at such other times as may be deemed necessary by the Conference, or at the written request of any Party, provided that, within six months of the request being communicated to them by the Secretariat, it is supported by at least one third of the Parties.

  3. The Conference of the Parties shall by consensus agree upon and adopt rules of procedure for itself and for any subsidiary body it may establish, as well as financial rules governing the funding of the Secretariat. At each ordinary meeting, it shall adopt a budget for the financial period until the next ordinary meeting.

  4. The Conference of the Parties shall keep under review the implementation of this Convention, and, for this purpose, shall:

    (a) Establish the form and the intervals for transmitting the information to be submitted in accordance with Article 26 and consider such information as well as reports submitted by any subsidiary body;

    (b) Review scientific, technical and technological advice on biological diversity provided in accordance with Article 25;

    (c) Consider and adopt, as required, protocols in accordance with Article 28;

    (d) Consider and adopt, as required, in accordance with Articles 29 and 30, amendments to this Convention and its annexes;

    (e) Consider amendments to any protocol, as well as to any annexes thereto, and, if so decided, recommend their adoption to the parties to the protocol concerned;

    (f) Consider and adopt, as required, in accordance with Article 30, additional annexes to this Convention;

    (g) Establish such subsidiary bodies, particularly to provide scientific and technical advice, as are deemed necessary for the implementation of this Convention;

    *833 (h) Contact, through the Secretariat, the executive bodies of conventions dealing with matters covered by this Convention with a view to establishing appropriate forms of cooperation with them; and

    (i) Consider and undertake any additional action that may be required for the achievement of the purposes of this Convention in the light of experience gained in its operation.

  5. The United Nations, its specialized agencies and the International Atomic Energy Agency, as well as any State not Party to this Convention, may be represented as observers at meetings of the Conference of the Parties. Any other body or agency, whether governmental or non-governmental, qualified in fields relating to conservation and sustainable use of biological diversity, which has informed the Secretariat of its wish to be represented as an observer at a meeting of the Conference of the Parties, may be admitted unless at least one third of the Parties present object. The admission and participation of observers shall be subject to the rules of procedure adopted by the Conference of the Parties.

Article 24. Secretariat

  1. A secretariat is hereby established. Its functions shall be:

    (a) To arrange for and service meetings of the Conference of the Parties provided for in Article 23;

    (b) To perform the functions assigned to it by any protocol;

    (c) To prepare reports on the execution of its functions under this Convention and present them to the Conference of the Parties;

    (d) To coordinate with other relevant international bodies and, in particular to enter into such administrative and contractual arrangements as may be required for the effective discharge of its functions; and

    (e) To perform such other functions as may be determined by the Conference of the Parties.

  2. At its first ordinary meeting, the Conference of the Parties shall designate the secretariat from amongst those existing competent international organizations which have signified their willingness to carry out the secretariat functions under this Convention.

Article 25. Subsidiary Body on Scientific, Technical and Technological Advice

  1. A subsidiary body for the provision of scientific, technical and technological advice is hereby established to provide the Conference of the Parties and, as appropriate, its other subsidiary bodies with timely advice relating to the implementation of this Convention. This body shall be open to participation by all Parties and shall be multidisciplinary. It shall comprise government representatives competent in the relevant field of expertise. It shall report regularly to the Conference of the Parties on all aspects of its work.

  2. Under the authority of and in accordance with guidelines laid down by the Conference of the Parties, and upon its request, this body shall:

    (a) Provide scientific and technical assessments of the status of biological diversity;

    (b) Prepare scientific and technical assessments of the effects of types of measures taken in accordance with the provisions of this Convention;

    *834 (c) Identify innovative, efficient and state-of-the-art technologies and know-how relating to the conservation and sustainable use of biological diversity and advise on the ways and means of promoting development and/or transferring such technologies;

    (d) Provide advice on scientific programmes and international cooperation in research and development related to conservation and sustainable use of biological diversity; and

    (e) Respond to scientific, technical, technological and methodological questions that the Conference of the Parties and its subsidiary bodies may put to the body.

  3. The functions, terms of reference, organization and operation of this body may be further elaborated by the Conference of the Parties.

Article 26. Reports

  Each Contracting Party shall, at intervals to be determined by the Conference of the Parties, present to the Conference of the Parties, reports on measures which it has taken for the implementation of the provisions of this Convention and their effectiveness in meeting the objectives of this Convention.

Article 27. Settlement of Disputes

  1. In the event of a dispute between Contracting Parties concerning the interpretation or application of this Convention, the parties concerned shall seek solution by negotiation.

  2. If the parties concerned cannot reach agreement by negotiation, they may jointly seek the good offices of, or request mediation by, a third party.

  3. When ratifying, accepting, approving or acceding to this Convention, or at any time thereafter, a State or regional economic integration organization may declare in writing to the Depositary that for a dispute not resolved in accordance with paragraph 1 or paragraph 2 above, it accepts one or both of the following means of dispute settlement as compulsory:

    (a) Arbitration in accordance with the procedure laid down in Part 1 of Annex II;

    (b) Submission of the dispute to the International Court of Justice.

  4. If the parties to the dispute have not, in accordance with paragraph 3 above, accepted the same or any procedure, the dispute shall be submitted to conciliation in accordance with Part 2 of Annex II unless the parties otherwise agree.

  5. The provisions of this Article shall apply with respect to any protocol except as otherwise provided in the protocol concerned.

Article 28. Adoption of Protocols

  1. The Contracting Parties shall cooperate in the formulation and adoption of protocols to this Convention.

  2. Protocols shall be adopted at a meeting of the Conference of the Parties.

  3. The text of any proposed protocol shall be communicated to the Contracting Parties by the Secretariat at least six months before such a meeting.

*835 Article 29. Amendment of the Convention or Protocols

  1. Amendments to this Convention may be proposed by any Contracting Party. Amendments to any protocol may be proposed by any Party to that protocol.

  2. Amendments to this Convention shall be adopted at a meeting of the Conference of the Parties. Amendments to any protocol shall be adopted at a meeting of the Parties to the Protocol in question. The text of any proposed amendment to this Convention or to any protocol, except as may otherwise be provided in such protocol, shall be communicated to the Parties to the instrument in question by the secretariat at least six months before the meeting at which it is proposed for adoption. The secretariat shall also communicate proposed amendments to the signatories to this Convention for information.

  3. The Parties shall make every effort to reach agreement on any proposed amendment to this Convention or to any protocol by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a two-third majority vote of the Parties to the instrument in question present and voting at the meeting, and shall be submitted by the Depositary to all Parties for ratification, acceptance or approval.

  4. Ratification, acceptance or approval of amendments shall be notified to the Depositary in writing. Amendments adopted in accordance with paragraph 3 above shall enter into force among Parties having accepted them on the ninetieth day after the deposit of instruments of ratification, acceptance or approval by at least two thirds of the Contracting Parties to this Convention or of the Parties to the protocol concerned, except as may otherwise be provided in such protocol. Thereafter the amendments shall enter into force for any other Party on the ninetieth day after that Party deposits its instrument of ratification, acceptance or approval of the amendments.

  5. For the purposes of this Article, "Parties present and voting" means Parties present and casting an affirmative or negative vote.

Article 30. Adoption and Amendment of Annexes

  1. The annexes to this Convention or to any protocol shall form an integral part of the Convention or of such protocol, as the case may be, and, unless expressly provided otherwise, a reference to this Convention or its protocols constitutes at the same time a reference to any annexes thereto. Such annexes shall be restricted to procedural, scientific, technical and administrative matters.

  2. Except as may be otherwise provided in any protocol with respect to its annexes, the following procedure shall apply to the proposal, adoption and entry into force of additional annexes to this Convention or of annexes to any protocol:

    (a) Annexes to this Convention or to any protocol shall be proposed and adopted according to the procedure laid down in Article 29;

    (b) Any Party that is unable to approve an additional annex to this Convention or an annex to any protocol to which it is Party shall so notify the Depositary, in writing, within one year from the date of the communication of the adoption by the Depositary. The Depositary shall without delay notify all Parties of any such notification received. A Party may at any time withdraw a previous declaration of objection and the annexes shall thereupon enter into force for that Party subject to subparagraph (c) below;

    (c) On the expiry of one year from the date of the communication of the adoption by the Depositary, the annex shall enter into force for all Parties to this Convention or to any protocol concerned which have not submitted a notification in accordance with the provisions of subparagraph (b) above.

  *836 3. The proposal, adoption and entry into force of amendments to annexes to this Convention or to any protocol shall be subject to the same procedure as for the proposal, adoption and entry into force of annexes to the Convention or annexes to any protocol.

  4. If an additional annex or an amendment to an annex is related to an amendment to this Convention or to any protocol, the additional annex or amendment shall not enter into force until such time as the amendment to the Convention or to the protocol concerned enters into force.

Article 31. Right to Vote

  1. Except as provided for in paragraph 2 below, each Contracting Party to this Convention or to any protocol shall have one vote.

  2. Regional economic integration organizations, in matters within their competence, shall exercise their right to vote with a number of votes equal to the number of their member States which are Contracting Parties to this Convention or the relevant protocol. Such organizations shall not exercise their right to vote if their member States exercise theirs, and vice versa.

Article 32. Relationship between this Convention and Its Protocols

  1. A State or a regional economic integration organization may not become a Party to a protocol unless it is, or becomes at the same time, a Contracting Party to this Convention.

  2. Decisions under any protocol shall be taken only by the Parties to the protocol concerned. Any Contracting Party that has not ratified, accepted or approved a protocol may participate as an observer in any meeting of the parties to that protocol.

Article 33. Signature

  This Convention shall be open for signature at Rio de Janeiro by all States and any regional economic integration organization from 5 June 1992 until 14 June 1992, and at the United Nations Headquarters in New York from 15 June 1992 to 4 June 1993.

Article 34. Ratification, Acceptance or Approval

  1. This Convention and any protocol shall be subject to ratification, acceptance or approval by States and by regional economic integration organizations. Instruments of ratification, acceptance or approval shall be deposited with the Depositary.

  2. Any organization referred to in paragraph 1 above which becomes a Contracting Party to this Convention or any protocol without any of its member States being a Contracting Party shall be bound by all the obligations under the Convention or the protocol, as the case may be. In the case of such organizations, one or more of whose member States is a Contracting Party to this Convention or relevant protocol, the organization and its member States shall decide on their respective responsibilities for the performance of their obligations under the Convention or protocol, as the case may be. In such cases, the organization and the member States shall not be entitled to exercise rights under the Convention or relevant protocol concurrently.

  3. In their instruments of ratification, acceptance or approval, the organizations referred to in paragraph 1 above shall declare the extent of their competence with respect to the matters governed by the Convention or the relevant protocol. These organizations shall also inform the Depositary of any relevant modification in the extent of their competence.

*837 Article 35. Accession

  1. This Convention and any protocol shall be open for accession by States and by regional economic integration organizations from the date on which the Convention or the protocol concerned is closed for signature. The instruments of accession shall be deposited with the Depositary.

  2. In their instruments of accession, the organizations referred to in paragraph 1 above shall declare the extent of their competence with respect to the matters governed by the Convention or the relevant protocol. These organizations shall also inform the Depositary of any relevant modification in the extent of their competence.

  3. The provisions of Article 34, paragraph 2, shall apply to regional economic integration organizations which accede to this Convention or any protocol.

Article 36. Entry Into Force

  1. This Convention shall enter into force on the ninetieth day after the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession.

  2. Any protocol shall enter into force on the ninetieth day after the date of deposit of the number of instruments of ratification, acceptance, approval or accession, specified in that protocol, has been deposited.

  3. For each Contracting Party which ratifies, accepts or approves this Convention or accedes thereto after the deposit of the thirtieth instrument of ratification, acceptance, approval or accession, it shall enter into force on the ninetieth day after the date of deposit by such Contracting Party of its instrument of ratification, acceptance, approval or accession.

  4. Any protocol, except as otherwise provided in such protocol, shall enter into force for a Contracting Party that ratifies, accepts or approves that protocol or accedes thereto after its entry into force pursuant to paragraph 2 above, on the ninetieth day after the date on which that Contracting Party deposits its instrument of ratification, acceptance, approval or accession, or on the date on which this Convention enters into force for that Contracting Party, whichever shall be the later.

  5. For the purposes of paragraphs 1 and 2 above, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by member States of such organization.

Article 37. Reservations

  No reservations may be made to this Convention.

Article 38. Withdrawals

  1. At any time after two years from the date on which this Convention has entered into force for a Contracting Party, that Contracting Party may withdraw from the Convention by giving written notification to the Depositary.

  2. Any such withdrawal shall take place upon expiry of one year after the date of its receipt by the Depositary, or on such later date as may be specified in the notification of the withdrawal.

  3. Any Contracting Party which withdraws from this Convention shall be considered as also having withdrawn from any protocol to which it is party.

Article 39. Financial Interim Arrangements

  Provided that it has been fully restructured in accordance with the requirements of Article 21, the Global Environment Facility of the United *838 Nations Development Programme, the United Nations Environment Programme and the International Bank for Reconstruction and Development shall be the institutional structure referred to in Article 21 on an interim basis, for the period between the entry into force of this Convention and the first meeting of the Conference of the Parties or until the Conference of the Parties decides which institutional structure will be designated in accordance with Article 21.

Article 40. Secretariat Interim Arrangements

  The secretariat to be provided by the Executive Director of the United Nations Environment Programme shall be the secretariat referred to in Article 24, paragraph 2, on an interim basis for the period between the entry into force of this Convention and the first meeting of the Conference of the Parties.

Article 41. Depositary

  The Secretary-General of the United Nations shall assume the functions of Depositary of this Convention and any protocols.

Article 42. Authentic Texts

  The original of this Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

  IN WITNESS WHEREOF the undersigned, being duly authorized to that effect, have signed this Convention.

  Done at Rio de Janeiro on this fifth day of June, one thousand nine hundred and ninety-two.

Annex I

IDENTIFICATION AND MONITORING

  1. Ecosystems and habitats: containing high diversity, large numbers of endemic or threatened species, or wilderness; required by migratory species; of social, economic, cultural or scientific importance; or, which are representative, unique or associated with key evolutionary or other biological processes;

  2. Species and communities which are: threatened; wild relatives of domesticated or cultivated species; of medicinal, agricultural or other economic value; or social, scientific or cultural importance; or importance for research into the conservation and sustainable use of biological diversity, such as indicator species; and

  3. Described genomes and genes of social, scientific or economic importance.

*839 Annex II

Part 1

ARBITRATION

Article 1

  The claimant party shall notify the secretariat that the parties are referring a dispute to arbitration pursuant to Article 27. The notification shall state the subject-matter of arbitration and include, in particular, the articles of the Convention or the protocol, the interpretation or application of which are at issue. If the parties do not agree on the subject matter of the dispute before the President of the tribunal is designated, the arbitral tribunal shall determine the subject matter. The secretariat shall forward the information thus received to all Contracting Parties to this Convention or to the protocol concerned.

Article 2

  1. In disputes between two parties, the arbitral tribunal shall consist of three members. Each of the parties to the dispute shall appoint an arbitrator and the two arbitrators so appointed shall designate by common agreement the third arbitrator who shall be the President of the tribunal. The latter shall not be a national of one of the parties to the dispute, nor have his or her usual place of residence in the territory of one of these parties, nor be employed by any of them, nor have dealt with the case in any other capacity.

  2. In disputes between more than two parties, parties in the same interest shall appoint one arbitrator jointly by agreement.

  3. Any vacancy shall be filled in the manner prescribed for the initial appointment.

Article 3

  1. If the President of the arbitral tribunal has not been designated within two months of the appointment of the second arbitrator, the Secretary-General of the United Nations shall, at the request of a party, designate the President within a further two-month period.

  2. If one of the parties to the dispute does not appoint an arbitrator within two months of receipt of the request, the other party may inform the Secretary- General who shall make the designation within a further two-month period.

Article 4

  The arbitral tribunal shall render its decisions in accordance with the provisions of this Convention, any protocols concerned, and international law.

Article 5

  Unless the parties to the dispute otherwise agree, the arbitral tribunal shall determine its own rules of procedure.

Article 6

  The arbitral tribunal may, at the request of one of the parties, recommend essential interim measures of protection.

Article 7

  The parties to the dispute shall facilitate the work of the arbitral tribunal and, in particular, using all means at their disposal, shall:

    *840 (a) Provide it with all relevant documents, information and facilities; and

    (b) Enable it, when necessary, to call witnesses or experts and receive their evidence.

Article 8

  The parties and the arbitrators are under an obligation to protect the confidentiality of any information they receive in confidence during the proceedings of the arbitral tribunal.

Article 9

  Unless the arbitral tribunal determines otherwise because of the particular circumstances of the case, the costs of the tribunal shall be borne by the parties to the dispute in equal shares. The tribunal shall keep a record of all its costs, and shall furnish a final statement thereof to the parties.

Article 10

  Any Contracting Party that has an interest of a legal nature in the subject- matter of the dispute which may be affected by the decision in the case, may intervene in the proceedings with the consent of the tribunal.

Article 11

  The tribunal may hear and determine counterclaims arising directly out of the subject-matter of the dispute.

Article 12

  Decisions both on procedure and substance of the arbitral tribunal shall be taken by a majority vote of its members.

Article 13

  If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or a failure of a party to defend its case shall not constitute a bar to the proceedings. Before rendering its final decision, the arbitral tribunal must satisfy itself that the claim is well founded in fact and law.

Article 14

  The tribunal shall render its final decision within five months of the date on which it is fully constituted unless it finds it necessary to extend the time-limit for a period which should not exceed five more months.

Article 15

  The final decision of the arbitral tribunal shall be confined to the subject- matter of the dispute and shall state the reasons on which it is based. It shall contain the names of the members who have participated and the date of the final decision. Any member of the tribunal may attach a separate or dissenting opinion to the final decision.

Article 16

  The award shall be binding on the parties to the dispute. It shall be without appeal unless the parties to the dispute have agreed in advance to an appellate procedure.

*841 Article 17

  Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the final decision may be submitted by either party for decision to the arbitral tribunal which rendered it.

Part 2

CONCILIATION

Article 1

  A conciliation commission shall be created upon the request of one of the parties to the dispute. The commission shall, unless the parties otherwise agree, be composed of five members, two appointed by each Party concerned and a President chosen jointly by those members.

Article 2

  In disputes between more than two parties, parties in the same interest shall appoint their members of the commission jointly by agreement. Where two or more parties have separate interests or there is a disagreement as to whether they are of the same interest, they shall appoint their members separately.

Article 3

  If any appointments by the parties are not made within two months of the date of the request to create a conciliation commission, the Secretary-General of the United Nations shall, if asked to do so by the party that made the request, make those appointments within a further two-month period.

Article 4

  If a President of the conciliation commission has not been chosen within two months of the last of the members of the commission being appointed, the Secretary-General of the United Nations shall, if asked to do so by a party, designate a President within a further two-month period.

Article 5

  The conciliation commission shall take its decisions by majority vote of its members. It shall, unless the parties to the dispute otherwise agree, determine its own procedure. It shall render a proposal for resolution of the dispute, which the parties shall consider in good faith.

Article 6

  A disagreement as to whether the conciliation commission has competence shall be decided by the commission.

31 I.L.M. 818 (1992)

END OF DOCUMENT

FOR EDUCATIONAL USE ONLY

Copr. (C) West 1998 No Claim to Orig. U.S. Govt. Works

31 I.L.M. 818 (1992)

(Cite as: 31 I.L.M. 818)

International Legal Materials

Treaties and Agreements

July, 1992

UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT: CONVENTION ON

BIOLOGICAL DIVERSITY

Done at Rio de Janeiro, June 5, 1992

Copyright (c) 1992 by The American Society of International Law,

Washington, D.C.

  *818 Reproduced from the text provided by the United Nations Environment Programme. The Convention was adopted by the Conference for Adoption of the Agreed Text of the Convention on Biological Diversity, held at UNEP Headquarters, Nairobi, on May 22, 1992. Resolutions of the Nairobi Conference appear at 31 I.L.M. 842 (1992), and the U.S. Declaration at the Conference appears at 31 I.L.M. 848 (1992). It was opened for signature at the UNCED Conference in Rio de Janeiro by all states and regional economic integration organizations, and will remain open for signature at U.N. Headquarters in New York until June 4, 1993. As of June 29, 1992, 157 states and the European Economic Community had signed the Convention; the list of signatories appears at 31 I.L.M. 1004 (1992).

  The Introductory Note for UNCED at 31 I.L.M. 814 (1992) discusses the Convention. Three other UNCED documents appearing in I.L.M. are the Rio Declaration on Environment and Development at 31 I.L.M. 874 (1992); the Framework Convention on Climate Change at 31 I.L.M. 849 (1992); and the Statement of Principles for a Global Consensus of the Management, Conservation and Sustainable Development of all Types of Forests at 31 I.L.M. 881 (1992).

I.L.M. Content Summary

TEXT OF THE CONVENTION - I.L.M. Page 822

Preamble [see objectives] - I.L.M. Page 822

Art. 1 Objectives - I.L.M. Page 823

  [The conservation of biological diversity; the sustainable use of its components; equitable sharing of benefits of utilizing genetic resources]

Art. 2 Use of Terms - I.L.M. Page 823

  [Biological diversity; biological resources; biotechnology; country of origin in genetic resources; country providing genetic resources; domesticated or cultivated species; ecosystem; ex-situ conservation; genetic material; genetic resources; habitat; in-situ conservation; protected area; regional economic integration organization; sustainable use; technology]

Art. 3 Principle - I.L.M. Page 824

  [Sovereignty over resources; responsibility to prevent territorial activities from causing extraterritorial environmental injury]

Art. 4 Jurisdictional Scope - I.L.M. Page 824

Art. 5 Cooperation - I.L.M. Page 825

Art. 6 General Measures for Conservation and Sustainable Use - I.L.M. Page 825

  [Development of national strategies; integrate conservation into sectoral or crosssectoral plans]

*819 Art. 7 Identification and Monitoring - I.L.M. Page 825

  [See Annex I]

Art. 8 In-situ Conservation - I.L.M. Page 825

  [Each Party shall establish a system of protected areas; other duties associated with the management of such areas are set forth]

Art. 9 Ex-Situ Conservation - I.L.M. Page 826

  [For the purpose of complementing in-situ measures, each Party shall adopt measures for ex-situ conservation of components of biological diversity]

Art. 10 Sustainable Use of Components of Biological Diversity - I.L.M. Page 826

  [Further duties of Parties concerning the conservation of biological diversity]

Art. 11 Incentive Measures [shall be adopted] - I.L.M. Page 827

Art. 12 Research and Training - I.L.M. Page 827

  [Taking into account the needs of developing countries, programmes shall be established for scientific and technical education and research]

Art. 13 Public Education and Awareness - I.L.M. Page 827

  [Programmes shall be established]

Art. 14 Impact Assessment and Minimizing Adverse Impacts - I.L.M. Page 827

  [Procedures shall be established]

Art. 15 Access to Genetic Resources - I.L.M. Page 828

  [Recognizing sovereignty over natural resources, Parties should facilitate access to genetic resources for environmentally sound uses by other Parties]

Art. 16 Access to and Transfer of Technology - I.L.M. Page 829

  [The Parties undertake to facilitate access to technologies relevant to the conservation and sustainable use of biological diversity, especially considering the needs of developing countries]

Art. 17 Exchange of Information [Similar to art. 16] - I.L.M. Page 829

Art. 18 Technical and Scientific Cooperation [Similar to art. 16] - I.L.M. Page 829

Art. 19 Handling of Biotechnology and Distribution of its Benefits - I.L.M. Page 830

  [Similar to art. 15]

Art. 20 Financial Resources - I.L.M. Page 830

  [The Parties, especially the developed country Parties, undertake to provide financial support and incentives]

Art. 21 Financial Mechanism - I.L.M. Page 831

  [To be addressed at the first meeting of the Conference of the Parties]

*820 Art. 22 Relationship with Other International Conventions - I.L.M. Page 832

  [No effect on other obligations]

Art. 23 Conference of the Parties - I.L.M. Page 832

  [Establishment; first meeting to be convened by the UNEP Executive Director within 1 year after entry into force; extraordinary meetings; financial and procedural rules; responsibilities; representatives and observers]

Art. 24 Secretariat - I.L.M. Page 833

  [Establishment; functions; designation of secretariat]

Art. 25 Subsidiary Body on Scientific, Technical and Technological Advice - I.L.M. Page 833

  [Establishment; composition; responsibilities]

Art. 26 Reports - I.L.M. Page 834

  [Intervals to be determined by the Conference of the Parties]

Art. 27 Settlement of Disputes - I.L.M. Page 834

  [Negotiation; arbitration (see Annex II, Part 1); ICJ; conciliation (see Annex II, Part 2)]

Art. 28 Adoption of Protocols - I.L.M. Page 834

Art. 29 Amendment of the Convention or Protocols - I.L.M. Page 835

Art. 30 Adoption and Amendment of Annexes - I.L.M. Page 835

Art. 31 Right to Vote - I.L.M. Page 836

  [Parties and regional economic integration organizations]

Art. 32 Relationship between this Convention and Its Protocols - I.L.M. Page 836

  [Parties to Protocols must be Parties to this Convention]

Art. 33 Signature - I.L.M. Page 836

Art. 34 Ratification, Acceptance or Approval - I.L.M. Page 836

Art. 35 Accession - I.L.M. Page 837

Art. 36 Entry into Force - I.L.M. Page 837

Art. 37 Reservations - I.L.M. Page 837

  [None are permitted]

Art. 38 Withdrawals - I.L.M. Page 837

Art. 39 Financial Interim Arrangements - I.L.M. Page 837

  [The UNDP Global Environment Facility, the UNEP and the IBRD]

*821 Art. 40 Secretariat Interim Arrangements - I.L.M. Page 838

Art. 41 Depositary [UN Secretary-General] - I.L.M. Page 838

Art. 42 Authentic Texts - I.L.M. Page 838

  [Arabic, Chinese, English, French, Russian and Spanish]

  [Done at Rio de Janeiro on 5 June 1992]

Annex I - I.L.M. Page 838

IDENTIFICATION AND MONITORING

  [Specified ecosystems and habitats, species and communities, and genomes and genes]

Annex II - I.L.M. Page 839

Part I ARBITRATION

  Art. 1 [NOTIFICATION]

  Art. 2 [ARBITRAL TRIBUNAL; COMPOSITION; DESIGNATION]

  Art. 3 [APPOINTMENT OF PRESIDENT OF THE TRIBUNAL]

  Art. 4 [APPLICABLE LAW]

  Art. 5 [RULES OF PROCEDURE]

  Art. 6 [INTERIM MEASURES]

  Art. 7 [ACCESS OF THE TRIBUNAL TO EVIDENCE]

  Art. 8 [CONFIDENTIALITY]

  Art. 9 [COSTS]

  Art. 10 [INTERVENTION]

  Art. 11 [COUNTERCLAIMS]

  Art. 12 [DECISIONS BY MAJORITY VOTE]

  Art. 13 [FAILURE OF A PARTY TO APPEAR]

  Art. 14 [DECISION WITHIN FIVE MONTHS OF CONVENING]

  Art. 15 [CONTENTS OF THE DECISION]

  Art. 16 [AWARD; APPEAL]

  Art. 17 [INTERPRETATION OF AWARD]

Part 2 CONCILIATION

  Art. 1 [CONCILIATION COMMISSION; COMPOSITION]

  Art. 2 [APPOINTMENT OF MEMBERS]

  Art. 3 [APPOINTMENT BY THE UN SECRETARY-GENERAL]

  Art. 4 [APPOINTMENT OF THE PRESIDENT OF THE COMMISSION]

  Art. 5 [DECISIONS BY MAJORITY VOTE; PROCEDURE]

  Art. 6 [DISPUTES OVER THE COMPETENCE OF THE COMMISSION]