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CSD staves off US assault on balanced approach to biotech

The US distinguished itself at the Third Session of the Commission on Sustainable Development in New York by its relentless drive to prevent a balanced consideration of the question of genetic engineering.

By Gurdial Nijar

AT the recently concluded Third Session of the Commission on Sustainable Development, held in New York from 14-28 April 1995, the US made a concerted and sustained effort to exclude from the final text, provisions which sought primarily to give a balanced approach to the introduction of genetically engineered organisms and which cautioned against the unbridled and uncontrolled unleashing of the biotechnology industry especially on the Third World.

The first salvo was fired by Ambassador Robert Pringle of the US delegation when a draft prepared by the Secretariat on Chapter 16 of Agenda 21 on 'environmentally sound management of biotechnology' was discussed for the first time on the evening of 21 April by drafting group C.

The US asked for the deletion from the draft of:

* any reference to the lack of an internationally agreed framework for regulating the safe handling and transfer of biotechnology;

* any reference to the application of the 'precautionary approach' in dealing with genetically engineered organisms;

* any reference to concerns that without proper regulation, the release of such organisms might take place in developing countries without due consideration for the environment in these countries;

* any reference to the knowledge, innovations and practices of indigenous and local communities;

* any reference to feasible and up-to-date standards for intellectual property rights related to biotechnology.

The Precautionary Approach

The US was particularly insistent that there be no reference to the 'precautionary approach' in two paragraphs of the text. Mr Pringle said that by the inclusion of this term, the CSD was prejudging the work of the expert panel set up by the first meeting of the Conference of Parties of the Biodiversity Convention to prepare a background document to enable the second meeting of the COP to reach a decision on the need for and modalities of a biosafety protocol.

'It is a loaded term and we don't really know what it means,' he said. 'That is why experts are getting together. This is a matter of some concern to our industry. We would really like it (the term) dropped,' he added.

The G77 and China retaliated. The inclusion of this term was important, they said. The European Union and Australia rallied to their cause and argued for the retention of this term.

Many delegates and NGOs noted that the US' arguments for excising the term from the text were simply unacceptable. The term has acquired a clear and distinct meaning. Indeed it appears in the legislations of several Northern countries. The UK and Germany apply this precautionary principle in their environmental legislation. It is an important principle to safeguard against potential risks which are not, or not yet, identifiable because of the current state of scientific knowledge.

More importantly, the Biodiversity Convention stresses the importance of preventative measures. It recognises that information and knowledge regarding biological diversity is generally lacking. That is why it states the urgent need to develop scientific, technical and institutional capacities to plan and implement measures to deal with the loss of this diversity. In the meantime, the Convention explicitly states, lack of scientific certainty cannot be used to avoid undertaking preventative measures. It states that the precautionary principle shall be applied.

The Expert panel, set up pursuant to Article 19 of the Convention, is therefore obliged to incorporate this principle in its approach. How then, many asked, could it be said that stating this principle was prejudging the approach of the expert panel? On the other hand, the US has not raised any objection to UNEP promoting the UK/Dutch Technical Guidelines for Safety in Biotechnology. These guidelines have been severely criticised. One criticism is that it does not incorporate the precautionary approach. The CSD's draft report 'notes the relevance of recent initiatives for the implementation of the objectives of Chapter 16 such as ... the on-going work in UNEP on the technical guidelines...' This refers to UNEP's plans to promote the guidelines in a series of regional consultations of 'government-designated experts' in Central America, the Caribbean, the Asia-Pacific region, West Asia, South America and Africa.

The European Union, supported by Malaysia's Ambassador Ting, asked for the deletion from the text of this reference to UNEP's initiatives.

After three revisions the US had to relent and the final compromise text maintains the reference to the precautionary approach. The relevant part of paragraph 74 now reads as 'Taking into account the precautionary approach, the Commission attaches high priority to the safe handling of biotechnology.' The reference to UNEP's initiatives is maintained in the final report but any mention of its work in relation to the Dutch/UK guidelines is deleted.

Impact on Third World

The US also wanted removed from the text the following:

'It (i.e. the Commission) further notes the concerns that without proper regulation, the release of such organisms might take place in developing countries without due consideration for the environment in those countries.'

Its ambassador stated that this 'was unbalanced and misleading because it implies irresponsible behaviour by developed countries and portrays developing countries as sole victims.'

But, this is precisely what is happening according to well placed sources. Greenpeace International's inventory of releases of genetically engineered plants shows that US- based multinationals have been using the fields of Third World countries as testing grounds for their genetically engineered crops.

In 1989 Monsanto tested transgenic Roundup-tolerant soybean in Puerto Rico. Roundup is a herbicide manufactured by Monsanto. Since 1991, it has been doing the testing in Argentina, Costa Rica, the Dominican Republic. Testing of transgenic cotton has been done since 1992 in Belize and Costa Rica and has also been planned for the fields of Brazil, India and Zimbabwe.

Calgene released insect-resistant cotton and herbicide-tolerant cotton in Argentina and Bolivia in 1991. Its genetically engineered tomato was tested in the fields of Mexico and Chile. Ciba-Ceigy used the fields of Argentina to test its transgenic insect- resistant cotton in 1991.

Greenpeace has also documented illegal releases of genetically modified organisms (gmos) in Argentina, Kenya, India and Ireland by Northern multinationals.

At the second revision of the text, the formulation had been altered to:

'The Commission further notes the particular significance of this (i.e. an agreed biosafety regulation applying the precautionary approach) for developing countries.'

The US insistence on its removal did not prevail and this formulation was retained in the final report.

The Knowledge, Innovations and Practices of Indigenous People

The US also wanted the last sentence of para 73 of the text to be deleted. It reads:

'It (the Commission) also welcomes the decision of the Conference of the Parties (of the Biodiversity Convention) to include consideration of the knowledge, innovations and practices of indigenous and local communities in its Medium-Term Programme of Work.'

'This does not belong here, or is it a slip of the computer?' Pringle asked.

This sentence had been inserted on the suggestion of the G77 and China, and supported by the EU.

To counter this, the G77 and China proposed that there be included as well a recommendation to the Conference of the Parties to the Biodiversity Convention that its subsidiary Body on Scientific, Technical and Technological Advice should address the issues of the knowledge, innovations and practices of indigenous peoples and local communities and the protection of such practices in accordance with the Convention. This would appear as a new para 76(f).

The US retorted that this proposal is 'an inaccurate reading of paragraph 8(i) of the Convention and needs to be straightened out.'

When the US finally agreed to the retention of the last sentence at the end of para 73, the G77 and China agreed to drop their demand that a new para 76(f) be included in the text.

Intellectual Property Rights

The G77 and China made two additions to the original draft to provide for the protection of intellectual property rights (IPRs). The first was in para 77 'urging governments to take specific actions within a framework of ensuring safety and protection of IPRs...'

The second was an addition to para 77(a)(iii) asking the Commission to:

'support the establishment of biotechnology associations, particularly in developing countries, with a view to facilitating the safe commercialisation and application of biotechnology products and processes taking due consideration of the need for the protection of IPRs in the light of the provisions of the Convention on Biological Diversity.'

This took many Third World NGOs by surprise. Intense discussions ensued privately between them and the Government delegates on the wisdom of this amendment. Some government delegates felt that this might provide a measure of protection for the resources and indigenous knowledge of Third World countries.

Others wanted it removed. They argued that in the Biodiversity Convention, the G77 and China had fought very hard to prevent IPRs being applied to the products of biodiversity-rich countries, which were mainly in the South. The North has always been clamouring for full recognition of IPRs to obtain monopoly rights over their biotech products. The South would then end up paying prices dictated by the North in respect of such products, made essentially from the genetic resources, and often based on the knowledge of indigenous people, of the South.

As a result, the Convention accords recognition for the protection of IPRs in the transfer of technology to the South (Article 16(2). At the same time, it states that IPRs must not hinder the attainment of the objectives of the convention, one of which is the sharing of benefits, which includes the transfer of technology to the South(Article 16(5).

The Conference of the Parties, at its first meeting, has agreed to study how IPRs could hinder the implementation of the Convention's objectives.

The G77 and China's proposal implies acceptance of the full implementation of IPRs in the Convention. This would clearly preempt this study and handicap Southern negotiators arguing against the full implementation of IPRs.

Again many Third World countries are seeking to avoid the rigours of Article 27(3)(b) of the WTO treaty. This provision, while imposing an obligation on countries to provide for patent protection of plant varieties, allows for the setting up of an independent sui generis system of protection. Some Third World countries are considering legislation which will accord recognition to the innovations and knowledge of indigenous and local communities. By implying full recognition of IPRs, as this proposal does, the efforts of these countries to set up an alternative protection regime could well be undermined.

Additionally, there is an initiative by some G77 countries to include an exception in the TRIPs agreement based on environmental considerations. If accepted, IPRs need not be accorded recognition if the environment is jeopardised by their recognition. These efforts of the South would be undermined if the proposals at this CSD were accepted.

The US seized upon the proposals of the G77 and China, and suggested that the words 'taking due consideration of the need for protection of IPRs..' be changed to 'recognising the need for the protection of IPRs..'

Finally G77 and China proposed that their earlier amendments be withdrawn.

Accordingly, the final text does not make reference to IPRs directly, although at the US insistence, reference is made to Article 16 of the Biodiversity Convention (which refers to the delicate balancing of IPR recognition as described earlier). At the G77's suggestion, reference is also made to Article 19 - which deals with the need for and modalities of a Biosafety Protocol.

Conclusion

On the whole, the delegates from the Third World, the European Union, Canada, Denmark, and Australia as well as the NGOs, were quite pleased with the final text, considering the sustained attempts by the US to highlight only the importance of biotechnology and exclude any reference to the perils, despite overwhelming recent evidence.

The text now,

* highlights the need for future reports to place a stronger emphasis on the ecological, safety, health, socio-economic and ethical aspects of the application of biotechnology, and the commercialisation of biotechnology products, with particular reference to genetic engineering, including genetically modified organisms especially when human genetic material is involved.

* such reports should take into account existing uncertainties and the most recent findings of the science of genetics to enable the CSD to take a more balanced and objective approach to biotechnology.

* (The report of the Task Manager - UNIDO - on Chapter 16 of Agenda 21 which deals with biotechnology, had earlier been criticised for failing to take all the above concerns to account and was therefore said to be unbalanced.)

* urges UN agencies to monitor and evaluate biotechnology experiments and projects.

* welcomes the efforts of the Convention to work towards a globally agreed framework for the safe handling and transfer of biotechnology, and the sustainable management of genetically modified organisms.

Gurdial Nijar is a Malaysian lawyer representing the Third World Network at the Biodiversity Convention.


 


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