Mrs Hogwood ESED
FROM:
Jill Barrett
Assistant Legal Adviser K174 270 3381
DATE:
25 June 1993
MONTREAL PROTOCOL: TAIWAN
1. I refer to your minute of 17 June and the attached draft EC Regulation.
2. Articles 8-12 of the new Regulation correspond to Articles 5-9 of Regulation No 594/91 (as amended by Reg No 3952/92). The headings have remained the same, and use the term "non-Parties". In the text of the Articles, the references to "non-Parties" in Articles 5-8 of Reg 594/91 have been amended to read "any State not party" in Articles 8-11 of the new Regulation. However, in Article 12, corresponding to Article 9 of Reg 594/91, the term " non-Party" has been retained in both line 3 and line 4.
3. These Articles are intended to implement Article 4 of the Montreal Protocol, as amended. In all the paragraphs of this Article, the term "any State not Party" is used. The wording of Articles 8-11 of the draft regulation are therefore now in line with with the Protocol. However, Article 12 is not in line with the wording of Article 4 (8) of the Protocol. To be consistent with the Protocol, and with the rest of the Regulation, the words "any non-Party" in line 3 of Article 12 should be changed to "any State not party", and the words "the non-Party" in line 4 should be changed to "that State".
4. The headings to Articles 8-12 still refer to "non-Parties", but since this inconsistency appears in the Protocol itself it is difficult to argue that it should now be changed in the Regulation. In any event, headings to Articles are not part of the operative text, so if the different wording did result in a different interpretation in a particular case, the wording used in the text of the Article would prevail. So I do not think we need worry about the headings.
5.
Article 4 (9) of the Protocol provides that "State not party to this Protocol", shall include with respect to a particular controlled substance, a State or REIO that has not agreed to be bound by the control measures in effect for that substance. The draft Regulation only defines "Party" in Article 2. The second sentence of the definition corresponds to Article 4 (9), but receasts the definition in the form of a double negative. Given that the Regulation now uses the term "State not party", I would suggest that it would be preferable to define that exact term in the same way as in the Protocol.