BRIEFING PAPER No. 6
Whose Biosafety Protocol is It?
by Beth Burrows
IN the second meeting of the second contact group consolidating text(s) for the biosafety protocol, several amazing suggestions were made. They were all made by a non-NGO, non-party to the Convention.
First, it was proposed (and accepted as an alternative) that, "Nothing in this protocol shall affect the rights and obligations of parties to the protocol under any international agreement that has entered into force prior to this protocol."
Secondly, it was proposed that a state could be a party to the protocol without being a party to the convention. (Following this second proposal, the chair did ask whether the proposer was suggesting that the parties to the convention did not have to take seriously Article 32,* as ratified by their countries.) Then the same non-party who, by the way had indicated his government could not agree to the existence of a GEF financial mechanism for the protocol - said, "Nothing is written in stone." (Referring to an article of a convention which does not allow its members to take any exceptions to the treaty, he said, "Nothing is written in stone.")
Trying to interpret the above in the spirit of amiability, several options present themselves:
(1) The non-party was talking non-sense.
(2) The non-party was proposing to subvert the biosafety protocol and/or the Convention on Biological Diversity.
(3) The non-party was setting itself up to have a competitive advantage over the parties (if it has no obligations beyond the biosafety protocol and all the other signators have the burden of ALL the rest of the CBD).
(4) The non-party was proposing to subvert international law. or
(5) The non-party had not had lunch.
*Article 32 : "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 the Convention".