Biosafety Protocol talks end in deadlock again

by Lim Li Lin

Vienna, 21 September 1999 -- The latest round of negotiations for an international biosafety protocol ended here late Sunday with the continuation of the previous deadlock, as a few countries (in the "Miami Group" led by the United States) blocked any progress.

The Miami group made clear here that their commercial interest in marketing genetically modified (GM) food and other products had to take priority over environmental and health concerns. The six countries of the Miami Group (Canada, Australia, Argentina, Chile and Uruguay, all contracting parties to the Convention on Biodiversity, plus the US which is not even a member of the CBD under which the protocol is being discussed) insisted that the heart of the protocol, an Advanced Informed Agreement (AIA) should cover only genetically modified organisms (GMOs) that are directly released into the environment (or seeds earmarked for planting).

They were opposing the vast majority of developing countries clustered in a Like-Minded Group (comprising all G77 countries and China excepting Chile, Uruguay and Argentina) that wanted coverage of all GMOs, including those used as food, feed and in processing.

The talks were taking place at a period when there is mounting worldwide opposition by citizen groups and increasing numbers of scientists to genetic engineering technology and its products. Officials of most developing countries have also been concerned about the lack of international regulation on the trade and movement in GMOs and products containing them, hence their insistence on an adequate protocol to fill in the gap.

The protocol was to have been signed in Cartagena in February 1999 but the talks had then broken down, with the main differences between the Miami Group and the Like- Minded Group of Developing Countries. In Vienna, the resumed five-day meeting ended again in deadlock.

The next set of meetings will be held in Montreal over nine days, from 20-28 January 2000. The first 2 days will be for the negotiating groups to meet among themselves, with the following day for informal consultations. After a one-day break, formal negotiations will resume for three days, and the last two days will be a high level meeting of Ministers at which the protocol is scheduled to be finally signed.

But with the gap between the groupings still so wide, few diplomats or non-governmental organisations believe the protocol can be concluded by January.

The Vienna informal consultations held on 15-19 September achieved very limited progress in terms of resolving the three disputed core issues: scope of the protocol, the range of products to be covered by the AIA, and the protocol's relationship with other international agreements.

The Miami Group stunned the plenary session on the final day with a strongly worded statement clarifying explicitly their real position on why they opposed the application of the AIA procedure to GMOs intended for food, feed and processing.

The informal consultations, chaired by the Minister of the Environment of Colombia, Mr. Juan Mayr Maldonado, was an attempt to bring the five negotiating groups (the Like-Minded Group of Developing Countries, the Compromise Group including New Zealand and Norway, the European Union, Central and Eastern Europe and the Miami Group) together to resolve the key outstanding issues before the next round of formal negotiations in Montreal in January 2000.

Members of each of the negotiating groups met among themselves during the first two days, and with each other the following day. The final two days of the informal consultations were plenary consultations among all negotiating groups.

The first day of the plenary discussions (18 Sept) had seen the negotiating groups exchange their conceptual views on the three core outstanding issues that had been identified in Cartagena after the collapse of the Biosafety Protocol negotiations there in February 1999.

Under the guidance of the Chair, the plenary consultations only addressed conceptual issues, studiously avoiding the formulation of actual drafting language for the provisions of the draft Protocol.

The three key outstanding issues that were on the agenda for discussion were the scope of the Protocol, the relationship of the Protocol with other international agreements and the application of the AIA procedure to GMOs intended for food, feed and processing. The AIA procedure obliges countries to ensure that its exporters give prior notification to importing countries to enable them to make a risk assessment of the GMO before the import is approved.

The Miami Group, all major agricultural exporters, had only wanted the AIA procedure to apply to GMOs intended for direct release into the environment, and were adamant on protecting the free and unimpeded trade of GMOs.

They proposed an obligation to notify parties of domestic approvals within a specified period of time soon, after approvals of GMOs destined for food, feed and processing, on the basis that countries would be well informed before these commodities would enter international trade.

This meant that countries intending to export such GMOs (and commodities containing them) would not be obliged to obtain the prior informed consent of the importing countries. This would shift the onus onto the importing countries (that seek to protect themselves from such potentially harmful GMOs) to determine the need for risk assessment under domestic legislation.

In other words, the Miami Group's proposal was an offer to notify the world at large once domestic approval is given for planting, so that other countries would be able, within the time lag between approvals and final export, determine whether or not these commodities would be arriving in their countries and take appropriate national action.

This would also place the decision-taking on such transboundary movement within the framework of domestic regulation, rather than under the framework of an internationally binding agreement, as the exporting countries would not need to obtain approval first from the countries they intend to export to.

[But, trade experts said, the way the WTO system and its dispute settlement processes are going, the country restricting the GMOs and GMO-embedded products would be forced to prove to the panels that its restrictions are based on 'science']

The spokesperson for the Like-Minded Group of Developing Countries, Dr Tewolde Berhan G. Egzaibher of Ethiopia, stated that they were prepared to consider "a system of comparable robustness" to the AIA for food, feed and processing, but that these commodities had to be kept within the scope of the Protocol as there was no difference between genetically modified (GM) seed earmarked for planting and for food, feed or processing as they carried the same risks.

The need to keep these GMOs within the AIA procedure was "a matter of survival", Dr Tewolde later remarked.

The position taken by the Like-Minded Group was an attempt at compromise, since the developing countries had always maintained that all GMOs had to be subject to the AIA procedure.

Discussions on the alternative concept of AIA for GM commodities made some headway throughout the day and the following day with the Compromise Group submitting to the plenary three rounds of proposals, following inputs by all the negotiating groups, to bridge the gap.

Although the Miami Group appeared to have been making concessions, it soon became clear that their position had remained unchanged. On the final day of the informal consultations, the Miami Group stunned delegates at the plenary session with a statement clarifying their position, which laid bare their main priority - to protect their commercial interests, at the expense of health and the environment.

In no uncertain terms, the spokesperson for the Miami Group declared that they were not prepared to accept any new obligations on the transboundary movement of GM agricultural commodities, and that they were not prepared to assume any obligations that would limit or prevent exports of such commodities, as they were "unwilling to cause any major disruption" to their agricultural trade system.

As such, they were only prepared to discuss mechanisms based on information sharing and insisted that the only way to address the range of views on commodities is through national regulatory frameworks. They stressed that States should be given the opportunity to take decisions outside the ambit of the Protocol, and that the Protocol should not specify obligations on exporters.

Although the position and interests of the Miami Group had always been clear (i.e. that their commercial interests were paramount and above ecological and health concerns), this had been more implicitly expressed until now. Thus their explicit admission of this central position to the plenary session revealed their anxiety.

After two days of conceptual debate, which demanded a clear indication of positions, the handful of countries of the Miami Group once again put their commercial interests above global ecological and health concerns, and blocked the rest of the world from coming to an agreement on regulating the international trade in GMOs. No agreement was reached on the application of the AIA procedure to GMOs for food, feed and processing.

The plenary discussion on the scope of the Protocol was also inconclusive. In the text of the draft Protocol, the following are excluded from the scope of the Protocol:

* transboundary movement of GMOs that are not likely to have an adverse effect on the conservation and sustainable use of biological diversity, taking into account risks to human health,

* transit of GMOs (with exceptions to particular provisions),

* intentional transboundary movement of GMOs destined for contained use (with exceptions to particular provisions),

* transboundary movements of GMOs in pharmaceuticals for humans.

The Like-Minded Group submitted a proposal which would bring all GMOs under the scope of the Protocol, subject the first intentional transboundary movement of a specific GMO intended for a specific use to the AIA procedure and require the party of export to inform the party of import in writing, prior to any subsequent transboundary movement of GMOs.

The proposal would also allow the party of import the right to decide whether or not to subject pharmaceuticals for humans and GMOs for research in contained use to the AIA procedure. The party of export would also be under an obligation to inform or notify the party of transit if GMOs will pass through the territory of that country.

The other negotiating groups only indicated, however, that they would study and reflect on the Like-Minded Group's proposal.

Consensus was only formally reached on Article 31 which deals with the relationship of the Protocol to other international agreements. After the two days of plenary consultations, agreement was secured on the following conceptual elements, expressed in the following terms:

* the main purpose of this protocol is biosafety;

* recognise that there are other international agreements relevant to sustainable development with rights and obligations;

* the protocol and other international agreements are of equal status;

* trade and environment agreements and policies should be mutually supportive.

However, the Miami Group insisted that if the elements were to be reflective of a consensus among all the negotiating groups, a proviso had to be attached to the last element -- that trade and environment agreements and policies should be mutually supportive, without prejudice to the rights and obligations under other international agreements.

Delegates expressed frustration at this formulation which in effect was a restatement of Article 31, without the exclusions, bringing the whole discussion round in a full circle.

Representatives of a non-governmental organisation commenting on the elements were more scathing - "It takes trained diplomats and lots of public money to come up with such elegant formulation."

In concluding the informal consultations, the Chair expressed regret that countries did not arrive at all at the kind of goal that had been proposed at Montreal, when planning for the informal consultation. He stressed the need for political will to come to a final agreement on the provisions of the Protocol.

With the core issues still largely unresolved, and several other issues still disputed, it will need either a miracle, a fundamental change of heart and mind (by one or the other groups) to arrive at an international agreement to regulate the transboundary movement, handling and use of GMOs by the new deadline of January 2000.andling and use of GMOs by the new (SUNS4515)

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

[c] 1999, SUNS - All rights reserved. May not be reproduced, reprinted or posted to any system or service without specific permission from SUNS. This limitation includes incorporation into a database, distribution via Usenet News, bulletin board systems, mailing lists, print media or broadcast. For information about reproduction or multi-user subscriptions please contact < suns@igc.org >