The text of Article 22 is sensitive to the latter concerns in that it does not completely ban the introduction of alien or new species. Instead the Article requires states to take all measures necessary to prevent the introduction of alien or new species, ‘which may have effects detrimental to the ecosystem of the watercourses resulting in significant harm to other watercourse states’.

The obligation in Article 22 therefore firstly incorporates a precautionary approach through the use of the term ‘may’, and secondly sets the threshold at ‘detrimental effects resulting in significant harm to other watercourse states’.

Additionally, as with the obligation contained in Article 21, the obligation in Article 22 is one of due diligence, thus requiring states to take all ‘appropriate’ measures necessary to prevent the introduction of alien or new species (see Figure 4.6).

‘Species’ is defined by the ILC as including ‘both flora and fauna, such as plants, animals and other living organisms.’361 ‘Alien’ relates to ‘species that are non-native’, while ‘new’ covers ‘species that have been genetically altered or produced through biological engineering.’362 The provision is intended to cover the introduction of species into the watercourse itself, rather than fish farming or other activities conducted outside the watercourse, with no detrimental impact on the latter. 363

357 Convention on Biological Diversity, ‘Invasive Alien Species – Status, impacts and trends of alien species that threaten ecosystems, habitats and species’ (26 February 2001), UN Doc. UNEP/CBD/SBSTTA/6/INF/11, 7.

358 JA McNeely and others (eds.), A Global Strategy on Invasive Alien Species (IUCN 2001).

359 MA Davis, ‘Don’t Judge Species on their Origin’ (2011) 474 Nature 153, 153.

360 Ibid.

361 Ibid.

362 Ibid.

363 Ibid.

Guiding Principles for the Prevention, Introduction and Mitigation of Impacts of Alien Species That Threaten Ecosystems, Habitats or Species, Decision V1/23, Conference of Parties to the 1992 Convention on Biological Diversity

A. General

Guiding Principle 1 – Precautionary Approach:

Given the unpredictability of the pathways and impacts on biological diversity of invasive alien species, efforts to identify and prevent unintentional introductions as well as decisions concerning intentional introductions should be based on the precautionary approach, in particular with reference to risk analysis, in accordance with the guiding principles below. The precautionary approach is that set forth in principle 15 of the 1992 Rio Declaration on Environment and Development and in the preamble of the Convention on Biological Diversity. The precautionary approach should also be applied when considering eradication, containment and control measures in relation to alien species that have become established. Lack of scientific certainty about the various implications of an invasion should not be used as a reason for postponing or failing to take appropriate eradication, containment and control measures.

Guiding Principle 2 – Three-stage hierarchical approach:

1. Prevention is generally far more cost-effective and environmentally desirable than measures taken following introduction and establishment of an invasive alien species.
2. Priority should be given to preventing and introduction of invasive alien species, between and within states. If an invasive alien species has been introduced, early detection and rapid action are crucial to prevent its establishment. The preferred response is often to eradicate the organisms as soon as possible (principle 13). In the event that eradication is not feasible or resources are not available for its eradication, containment (principle 14) and long-term control measures (principle 15) should be implemented. Any examination of benefits and costs (environment, economic and social) should be done on a long-term basis.

Guiding principle 3: Ecosystem approach:

Measures to deal with invasive alien species should, as appropriate, be based on the ecosystem approach, as described in decision V/6 of the Conference of the Parties.

Guiding principle 4: The role of states:

1. In the context of invasive alien species, states should recognize the risk that activities within their jurisdiction or control may pose to other states as a potential source of invasive alien species, and should take appropriate individual and cooperative actions to minimise that risk, including the provision of any available information on invasive behaviour or invasive potential of a species.
2. Examples of such activities include:
   1. The intentional transfer of an invasive alien species to another state (even if it is harmless in the state of origin); and
   2. The intentional introduction of an alien species into their own state if there is a risk of that species subsequently spreading (with or without a human vector) into another state and becoming invasive;
   3. Activities that may lead to unintentional introductions, even where the introduced species is harmless in the state of origin.
   4. To help states minimise the spread and impact of invasive alien species, states should identify, as far as possible, species which could become invasive and make such information available to other states.

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No Significant Harm Rule

Protection and Preservation of Ecosystems