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BIOSAFETY PROTOCOL IN DANGER OF BEING PRE-EMPTED BY NARROW TRADE INTERESTS

A Commentary on the US proposal to the Seattle Ministerial Conference of the World Trade Organisation

by Chee Yoke Ling


1. Introduction

In the draft Declaration for the WTO Ministerial Conference in Seattle, under the section on Agriculture, there is a Para. 29 (vi) on improving the rules and disciplines of the WTO. Under this section are listed various proposals. One of the proposals is:

"Disciplines to ensure that trade in products of agricultural biotechnology is based on transparent, predictable and timely processes."

The language of this paragraph is similar to the US proposal (in its paper WT/GC/W/288 dated 4 August, 1999) in the context of future agriculture negotiations.

This commentary examines the implications of the terms "transparent, predictable and timely processes" in the context of the position of the US at the biosafety protocol negotiations, conducted under the Convention on Biological Diversity since 1996.

In February 1999, the US led 5 other countries (Canada, Australia, Argentina, Chile and Uruguay) collectively called the Miami Group, to bring international negotiations on the biosafety protocol to a standstill by blocking the inclusion of agricultural commodities in the Advanced Informed Agreement (AIA) procedure proposed by the draft protocol. The major implications for biodiversity, food security and health posed by genetically engineered seeds, given new and emerging scientific evidence, call for utmost caution amongst our countries. Developing countries, in particular, will also face serious socio-economic consequences from genetically modified organisms and their products. It is therefore imperative that safety standards and an international regulatory framework for AIA be established, independent of the WTO regime.

In addition, we have received reports over the past two years that the US, particularly, and Australia have been pressuring developing countries which are vocal on biosafety to align with their unacceptable positions in the international biosafety negotiations. We are concerned that such pressure, directly or otherwise, may be continuing. The latest move by the US, Canada and Japan to bring the GMO issue to the WTO during the Seattle Conference is a clear move to pre-empt the biosafety negotiations due to resume in January 2000, and to once again put the trading interests of a small number of countries over the safety priorities of the rest of the world.

This commentary is based on the inter-governmental discussions at the Informal Cnsultations on the Biosafety Protocol held in Vienna on 15-19 September, 1999 and the written submission of the Miami Group at the last negotiation session in February in Cartagena. Looking at Cartagena and Vienna, and seeing the WTO-related moves now, it can be safely concluded that the US has never shifted from their position (since 1991 during the negotiations of the Comvention on Biological Diversity) of not wanting an international biosafety protocol.

2. General points

* The Miami Group (essentially US and Canada) wants to resume negotiations based on the Working Group Chairman's draft in Cartagena (Chair Veit Koester's controversial draft was taken to the Extraordinary COP, chaired by Minister Juan Mayr of Colombia and stands as the current draft - see Annex V in UNEP/CBD/EXCOP/1/L.2/Rev.1). Nobody was happy with the chair's text, for different reasons, and the Miami Group at the close of Cartagena was adamant as everyone else that it was not a consensus text. But since the Like-Minded Group had also made it clear that they are returning to their original position (comprehensive scope of protocol and the AIA procedure for all first shipments of all LMOs ), we believe the MG would rather prefer to start with the chair's text (where pharmaceuticals are completely removed from the Protocol, and contained use is so broadly/vaguely defined that much activity would also escape regulation; where agricultural commodities are excluded from the AIA procedure), then to allow a total re-opening of the scope debate. As the draft text stands, with agricultural commodities excluded from prior approval, the AIA would apply to very little - LMOs for cultivation or for release into waters or soil for the first time!

* The MG wants to exclude agricultural commodities from the Advance Informed Agreement (AIA) procedure altogether. The "conciliatory" approach they started with in Vienna was clearly in response to the worldwide condemnation for their jettisoning of the Cartagena negotiations. While proposing a general information sharing scheme for the protocol, they obviously want to take no chances by also moving the issue to the WTO and treat this category of LMOs as a purely trade issue.

The Vienna meeting was an attempt to identify concepts of common understanding and to explore common ground to resume the negotiations in January 2000. The specific text of the draft protocol was not discussed, though the Like-Minded Group of developing countries (LMG) towards the end submitted a draft on Article 4 (scope) and Article 5 (Application of AIA).

3. Advance Informed Agreement (AIA)

The crux of the biosafety protocol is the Advance Informed Agreement (AIA) procedure, with the Like-Minded Group wanting the Party of export to have the legal obligation, under international law, to require the exporting company to inform in writing the importing Party prior to any transboundary movement. The LMG wants the AIA procedure to apply to all first shipments of a specific LMO intended for a specific use, but the Miami Group (essentially US and Canada) wants to exclude agricultural commodities altogether - LMOs destined for food, feed and processing

In Vienna, the MG was eager from the start to show that they were being "cooperative" by stating that they support including commodities in the GENERAL SCOPE of the protocol, but it was also clear that they still reject commodities from the scope of the AIA procedure. Their proposal is a mechanism based on information sharing. An example is general notification (e.g. Internet website) when an LMO is domestically approved in the exporting country. Problem: in the US, broad approvals as opposed to a case-by-case approval is given, which puts the full burden on importing countries to seek information the nature and extent of which they have no idea!!

The Miami Group made it clear that commodities are to be dealt with through national regulatory frameworks. They do not want to undertake broad or new obligations on movements of agricultural commodities ("We cannot project everything on to the exporter; the needs of each market should be dealt with by those markets"). They do not want international law to spell out the details of obligations on exporters. They were only willing to discuss mechanisms based on information sharing, but failed to provide details.

In Vienna the MG also said that they are "not entirely satisfied with the concepts" of the AIA process as contained in the draft text. We believe that even if they win the exclusion of commodities battle, they will still dilute the obligations for the remaining bits that are to be regulated.

In Vienna the LMG submitted their latest proposal (dated 19 September), whereby the general scope of the Protocol covers "the transboundary movement, transit and handling and use of all living modified organisms that may have an adverse effect on the conservation and sustainable use of biological diversity, taking also into account risks to human health". With regards to AIA, the procedure "shall apply prior to the first intentional transboundary movement of a specific living modified organism intended for a specific use". Exclusion from the AIA procedure of pharmaceuticals and LMOs targetted for contained use will be at the discretion of each Party.

The LMG made it clear that any "alternative" scheme proposed by the MG must be "as robust as the AIA under the Protocol".

On the issue of "timely" - all along, the LMG wanted to have reasonable time for decision making, arguing that lack of capacity for risk assessment is a major factor. The MG wants "timely" decisions with specified time periods in the protocol. In Cartagena, the European Union was also supportive of prescribed time for each stage of the AIA procedure.

The scheme as contained in the current draft is as follows:

a) Written acknowledgement of the receipt of notification of transboundary movement within 90 days of its receipt (failure to acknowledge is not implied consent);

b) Within those 90 days, the Party of import shall in writing inform the exporter whether - i) movement can proceed after no less than 90 days without a subsequent written consent; or ii) only after written consent is given;

c) If written consent is the option [ see (ii) above], within 270 days from the receipt of the notification, the Party of import shall communicate in writing to the exporter and the Biosafety Clearing House the following: i) approval, with or without conditions, including treatment of susequent imports of the same LMO; ii) prohibition of import; iii) request additional information; iv) if more than 270 days is required, inform exporter of the definite extension period.

Except for an unconditional consent, any decision in para (c) shall set out the reasons for the decision. NOTE: this is part of the "transparency" requirement.

Again, failure to communicate a decision within 270 days is not an implied consent to a transboundary movement. The safeguard against implied consent (LMG proposal) is to balance the specified time requirements.

When negotiations resume in January, it is expected that some countries may push for shorter time periods. In any event, the prescribed time to make a decision (270 days) is far too short for a thorough independent evaluation of the risk assessment report, let alone independent risk assessments to be undertaken before a decision is made. In the EU, the first approval for planting took about 3 years.

The MG continued to make statements in Vienna that commodities trade being a system of bulk movement, there must be no major disruptions to "our agricultural trade system", hence their continuous insistence to exclude commodities from international scrutiny.

In Vienna, the MG was also very vocal on the provision of "capacity building" (ie assist importing countries to make decisions faster) but all along the LMG insisted that putting in place a safety transboundary regime, with clear obligations on the exporters is a priority - especially re: full disclosure of information and the AIA procedure.

4. "Predictable" as a negation of the precautionary principle, and other factors to be taken into account for decision making under the AIA

a) Article 8(7) on decision making under the AIA procedure provides for the application of the precautionary principle:

"Lack of full scientific certainty or scientific consensus regarding the potential adverse effects of a LMO shall not prevent the Party of import from prohibiting the import of the LMO in question ..."

In Cartagena, the MG proposed the deletion of this provision. They only want a "Noting" of the "precautionary approach" (not principle) contained in the Rio Declaration which is a vague formulation and does not reflect the Precautionary Principle. This would be in Article 1 on the objective of the protocol.

b) In Vienna, the MG reiterated that they accept that under domestic law, "a country may take informed decisions prior to any import that is a threat to the environment, or even deemed a threat" [Article 5(3) on AIA scope] BUT these decisions are to be "taken fairly and on a scientific basis, with no political overlay".

Implications:

* The draft protocol in Article 5(3) retains the right of Parties to require, under domestic law, procedures consistent with AIA for LMOs not covered in the international AIA framework. But if this is not established as an international regime, then each domestic action can be challenged at the WTO because there will be no corresponding international standard as opposed to the trade rules and disciplines.

* There is a clear inconsistency here, as always. The MG wants "predictability" from others, (i.e. national sovereignty to take into account socio-economic factors, ethical, religious, cultural, is not acceptable because they consider these to be arbitrary and possible trade protectionist in nature) but when importing countries want precise, detailed information so that they can make informed decisions and that the obligation to provide such information is on the exporter, the MG objects and instead wants broad and general information to be posted on the Internet.

* The MG also rejects Article 9(4) of the draft text that gives the Party of import the discretion to require a risk assessment for subsequent imports of an LMO so that they may review a previous decision - assuming the final scheme requires mandatory risk assessment for the first transboundary movement only. This is part of their "predictable" criterion, i.e. once an approval is given for the first transboundary movement, it should cover all future movements.

* By pushing for "science-based" they mean application of the familiarity principle and the substantial equivalence concept instead of the precautionary principle. The latter is cast as "unpredictable". However, in the light of new and increasing scientific evidence, the familiarity principle and substantial equivalence concept are showing themselves to be rooted in unsound science.

* "Transparency" is linked to "predictability" in that factors other than "science" (socio-economics, etc.) leave too much to the discretion of an importing Party, and thus do not lend to transparency. As noted above, the Party of import has to give reasons for conditions attached to an approval, a prohibition, a request for additional information, and an extension of time to decide (beyond the 270 days allowed from the time of receipt of notification of transboundary movement).

* Again, there is doublespeak for transparency. In Article 18 on confidential information (vis-…-vis the public), all countries agree that the following information "shall not be considered confidential":

i. Name and address of the notifier (exporter)
ii. A general description of the LMO
iii. A summary of the risk assessment of the effects on the conservation and sustainable use of biodiversity, taking also into account human health
iv. Any methods and plans for emergency response.

The MG insists that this information "shall not generally be considered confidential". The Group's demands for confidential information treatment far exceeds even the WTO criteria for confidentiality (see Article 39 of the Trade-related Intellectual Property Rights Agreement - TRIPS).

5. Relationship with WTO agreements

In Vienna extensive debates took place on Article 31 of the draft protocol which subordinates rights and obligations under other any existing international agreement to the protocol "where the exercise of those rights and obligations would cause serious damage or threat to biological diversity".

The MG rejected any concept of the protocol and other agreements being of "equal standing". Argentina speaking for the MG said : "We are countries that operate in free trade ... we cannot accept any possibility of disrupting trade". They do not want "artificial barriers" to trade, and insist that the protocol must be "consistent with" and not be inferior or superior to other agreements. However, the very meaning of "consistent with" implies compliance with the other agreements (ie WTO agreements). The final elements agreed in Vienna were:

a) The main purpose of this protocol is biosafety.

b) We recognise that there are other international agreements relevant ot sustainable development with rights and obligtions.

c) The protocol and other international agreements are of equal status. [Note: by this is meant legal status, ie they are all international legal instruments - just the word "status" took long discussions!]

d) Trade and environment agreements and policies should be mutually supportive. [Note: the MG still put in a final verbal reservation that this is without prejudice to the rights and obligations under other international agreements].

It is obvious that the MG wants the protocol to be subordinate to the WTO agreements.

6. Conclusion

Positions have not changed for the MG since Cartagena, in fact it is the US position since the beginning i.e. no free standing biosafety protocol that would set international standards for the safety of LMOs and their products. The attempt to finalise the protocol in one session next January is already a gargantuan task. If the WTO Working Party is indeed set up, it will be the death of the protocol process.

Chee Yoke Ling is an Environment Representative of Third World Network.

 


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