by Lim Li Lin

Montreal, 31 Jan 2000 -- After almost five years of painstaking negotiations, Parties to the UN Convention on Biological Diversity (CBD) finally reached agreement in the early hours of Saturday morning on a Biosafety Protocol to the CBD.

The majority of countries had mixed feelings when the Chairman of the Biosafety Protocol negotiations, Juan Mayr Maldonado, Minister of Environment for Colombia, announced the conclusion of the week-long negotiations in Montreal. The agreement will enable importing countries to limit import of genetically modified foods, and use the precautionary principle (of the 1992 Rio Earth Summit Declaration). While the agreement speaks of the biosafety protocol and the WTO agreements being mutually supportive, it does not over-ride rights and obligations under the multilateral agreements of the World Trade Organization.

[While the protocol includes the 'precautionary principle' and some labelling requirements, and thus perhaps a plus for environmental groups, it may turn out to be much less than made out. For any 'trade restrictions' will be tested through the WTO dispute settlement process - in terms of the health exception of Art.XX of the GATT and the WTO Agreements on Sanitary and Phyto-sanitary (SPS) measures and the Technical Barriers to Trade (TBT), with the obligations on importing countries interpreted cumulatively, by panels and the Appellate Body. Given the difficulties that developing countries will face in assembling and conducting scientific assessments of their own that would be tested in terms of Art.5.7 of the SPS agreement, they may find their particular individual measures easily declared illegal by the WTO panel system which is weighted against the developing world - SUNS]

The week spent in Montreal to conclude the negotiations had seen the deadlock over the core outstanding issues finally resolved at the end of the week, after many late night and early morning negotiating sessions, and under immense political and public pressure to reach agreement on the draft text.

Agreement to regulate the transfer, handling and use of living modified organisms (LMOs) - also referred to in some literature as genetically modified organisms (GMOs) - should have been reached in Cartagena, Colombia last February. However, the US-led Miami Group (comprising Canada, Australia, Argentina, Chile and Uruguay as well) scuttled agreement by refusing to allow any provision in the Protocol that would impede their free export of genetically modified (GM) commodities.

Three core outstanding issues had been identified by Juan Mayr and adopted by delegates at an informal consultation in Vienna last September. There were long-drawn discussions at Vienna to reach an understanding on concepts relating to the general scope of the Protocol, the relationship of the Protocol to other international agreements (particularly the WTO agreements), and the system for obtaining consent from importing countries to the entry of GM commodities destined for food, feed and processing.

As delegates arrived at the Montreal convention centre for the final plenary session at 9.00 p.m. on Friday, they were greeted by lively protesters, dancing and chanting, "Shame! Shame! Shame on the Miami Group!" The protesters had spent the night outside the convention centre in a tent, in temperatures below 20 degrees centigrade, keeping a candlelight vigil begun the night before. They had vowed to stay there until a strong Biosafety Protocol was concluded.

By 9 pm on Friday, the last day of the negotiations, it was common knowledge that the disagreement over the Precautionary Principle and the relationship clause, considered to be the most difficult hurdle, had been resolved. Delegates and observers were expecting the plenary session to be called at any time to adopt the Biosafety Protocol. As hour after hour dragged by with sporadic announcements from the Secretariat that the plenary session would yet again be postponed for a few more hours, word began to filter through that, in the closed door negotiations with the spokespersons of the negotiating groups, the issue of segregation and identification of GM commodities had become a major sticking point.

Finally, the chief spokesperson of the Like-Minded Group of Developing Countries (comprising almost all the G77 countries and China), Dr Tewolde Egziabher gathered the group at the front of the conference hall, and announced that the Miami Group did not want GM commodities to be identified as such in shipping documents.

The issue, he explained, was that the Miami Group only wanted shipments of commodities to be documented as "may contain" LMOs. As murmurs of dissatisfaction rippled through the hall, Dr Tewolde went on to explain that all the other negotiating groups, including the European Union, had accepted this clause, and that the Like-Minded Group was the last to agree to it. If the Like-Minded Group agreed to this clause, there would be a Protocol, but if they could not agree to it, there would be no Protocol, he explained.

The delegate of Antigua and Barbados stated that this clause was unacceptable, but indicated that he would not stand in the way of consensus. No other delegate registered their opposition to the clause, but there were many almost tearful faces among the dejected Group.

At the eleventh hour, the Miami Group had, yet again, held the world hostage to its demands, playing their cards so carefully that there was nothing else to be done but to agree to their rules. Minutes later, at 4.45 am, Juan Mayr announced to exhausted delegates that the Biosafety Protocol was now adopted. The euphoria among delegates and observers at the conclusion of almost five years of hard work was dampened by the final compromise that they had been forced into.

The issue of commodities had been the most important issue to the Miami Group, since these currently comprise the bulk of their exports of LMOs (soya, canola, maize). Pressure from the Like-Minded Group, with support from the EU and the Compromise Group (Norway, Switzerland, Japan, Mexico, South Korea) amidst public condemnation for the hardline position of the commodities exporters, forced the negotiations of a separate procedure for commodities.

With the procedure for the transboundary movement of GM commodities resolved, the one other issue that many delegates and observers had thought was also agreed upon was the segregation and identification of GM commodities. With the requirement to only document commodity shipments as "may contain" LMOs, the Miami Group was, in effect, declaring that they did not intend to segregate GM commodities from non-GM commodities, as that would obstruct the free movement of their export commodities. The Protocol now provides for rules to be established for such documentation, within 2 years from the entry into force of the Protocol.

But many non-governmental observers commented later that exporters of LMOs will eventually have to bow to public pressure, whatever the rules, to segregate and label LMOs as such. Public opposition to LMOs and their products has already forced many countries such as Japan and Australia to pass labelling laws. The European Union already has a law requiring segregation and labelling of LMOs and their products.

When talks resumed in Montreal, positions on the core outstanding issues had changed very little, and as the days stretched on with little agreement on any of the these issues, there were real fears among delegates and observers that there would be no Protocol yet again. By Wednesday, as the deadlock continued, hopes began to be pinned on the arrival of around 40 Ministers to pave the way for a political push towards securing agreement on the key issues.

The Canadian Minister of Environment, David Anderson, whose appearance had been much touted after he caved in to public pressure to attend the negotiations, was noticeably in hiding. The Minister of Environment for France was reported to have been stood up at a meeting scheduled between them.

On the general scope issue, the Like-Minded Group went against all odds to re-open discussion on pharmaceuticals for human consumption which had been excluded completely in the Cartagena draft, as well as the contained use and transit of LMOs which had also been effectively left out. The LMG had argued, since the Vienna consultations, for a comprehensive scope, namely, that all LMOs should be covered by the Protocol. Parties could then, at their discretion, waive the requirement of advance informed consent for pharmaceuticals.

Persistence and finally support from the Compromise Group (with some reservation from Switzerland and Japan) swung the tide. The general scope of the Protocol now covers all LMOs, with exclusions, under certain conditions, in the subsequent articles on the three disputed areas. Though far from what the Like-Minded Group had wanted, the scope of the Protocol now does not explicitly exclude any category of LMOs, an achievement that many had privately felt was impossible to arrive at.

On commodities, a separate article deals specifically with the procedure for the export of GM commodities destined for food, feed and processing. Global public pressure and opposition to genetic engineering, amidst increasing scientific evidence of its risks and hazards, had forced the Miami Group to agree to some sort of procedure for regulating GM commodities, when they had resisted all such attempts at Cartagena to include commodities at all.

The provisions were hard fought, but still place the onus on importing countries to initiate procedures regulating the movement of GM commodities into their countries, and do not, as such, place an international obligation on exporters to first notify importers of specific shipments, followed by informed agreement.

This is in contrast to first shipments of LMOs for release into the environment (example, planting in the fields) which would be subject to the Advance Informed Agreement procedure. Under this, the responsibility lies with the exporter to first notify the importing country of an intent to export. Provision of full information (particularly risk assessment), followed by express consent must occur before any export can take place.

None the less, at the very least, information relating to domestic approvals of GM commodities can now be monitored through the Biosafety Clearing-House mechanism. It is then up to the other Parties to inform the potential exporter of their national requirements. However, express consent is still required from importing countries.

The one victory, if it can be called that, was the inclusion of the Precautionary Principle in the Protocol. This Principle, as included in the Protocol, states that, "Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a LMO on the conservation and sustainable use of biological diversity in the Party of import, taking into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of that LMO...."

Though not as strongly worded as all the negotiating groups, with the exception of the Miami Group, would have liked, most delegates and observers were pleased with the fact of its inclusion.

The Precautionary Principle was negotiated in a cluster with the relationship clause as it became increasingly difficult to discuss one without the other. All but the Miami Group were advocating the position that any action to restrict or ban the import of a LMO in accordance with this Principle should not be regarded as a trade-restrictive measure.

The Like-Minded Group had consistently insisted on the precautionary principle as an operative provision for decision-making in the advance informed agreement procedure.

In Cartagena last February, observers were shocked when the European Union was prepared to concede to the Miami Group on this crucial point even though EU law is rooted in this principle. Since then, public rejection of GM foods and crops in Europe and increased evidence of environmental and health hazards have raised the demand for the precautionary principle to prevail.

Attempts by the USA, Canada and Japan to shift the biotechnology issue to the WTO last December at Seattle also saw vocal protests by developing countries and several European environment ministers. The same group of ministers, joined by others turned up in full force last week. At a meeting with NGOs, the message was clear: the precautionary principle is needed, and the biosafety protocol will not be subordinate to the WTO. Ministers included those from Denmark, France, Portugal, the UK and the Netherlands.

When the precautionary principle was discussed at plenary, the European Union made its clearest statement since the negotiations started almost 5 years ago. The spokesperson for the European Union, Christoph Bail, declared that in cases of scientific uncertainty "governments must be able to have the freedom and sovereign right to take precautionary action, as risks that may arise may be long term and irreversible."

Many had feared that, given the strong opposition of the Miami Group to the inclusion of the Principle and its insistence that the Biosafety Protocol should be subordinated to other international agreements, namely the WTO agreements, a trade-off on either of the provisions would have to be accepted.

But the provision on the relationship of the Protocol to other international agreements was finally deleted, and statements relating to such relationship were added into the preamble of the Protocol. Most contentious among the preambular language was, "Emphasising that this Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements".

However, this statement relegated to the preamble carries far less weight than if it were included as a substantive provision. A paragraph also follows that the previous recital does not imply a hierarchy amongst the agreements.

In the end, the conclusion of the biosafety negotiations turned on the issue of commodities. Once again international negotiations became a platform for the US and the European Union to play off their growing trade war on genetically modified organisms and their products.

Fortuitously for developing countries, public concern and opposition to genetic engineering in most of the European countries swung the political resolve of their governments to resist at all cost the free and unimpeded trade in LMOs.

In their statement at the closing plenary, France offered to host the preparatory meeting for the first meeting of the Parties before the end of this year. Many issues still have to be resolved, including those specifically provided for in the Protocol. In the end, in the urgent rush to conclude the Protocol by this session in Montreal, many issues left open since Cartagena were never addressed. Parties and negotiating groups were forced to allow these issues to remain as in the Cartagena text, in order to see a conclusion to the negotiations.

In the statement on behalf of civil society groups at the closing plenary, Chee Yoke Ling from the Third World Network said that it was a historical agreement, being the first time that international law recognised GMOs as distinct and inherently different, thereby requiring a separate regulatory framework. However, she said that the last change pressed upon the rest of the world by the Miami Group in the final hours, to avoid segregation and identification of commodities as GMOs was disappointing. "Nevertheless, civil society - consumers, farmers and scientists - will continue to be vigilant. The demand for segregation and labelling will not stop".

The statement also noted that the Protocol provided for an international liability regime to be negotiated, and that governments should work on that as soon as possible.

The Protocol will be opened for signature at the fifth Conference of the Parties to the Convention on Biodiversity in May 2000 in Nairobi.

According to an UNEP press release, under the Cartagena Protocol on Biosafety, governments will signal whether or not they are willing to accept imports of agricultural commodities that incorporate LMOs. This is to be done by communicating their decision to the world community via an Internet-based Biosafety Clearing House. In addition, shipments of these commodities that may contain LMOs are to be clearly labelled.

Stricter Advanced Informed Agreement procedures will apply to seeds, live fish, and other LMOs that are to be intentionally introduced into the environment.

In these cases, the exporter must provide detailed information to each importing country in advance of the first shipment, and the importer must then authorize the shipment. The aim is to ensure that recipient countries have both the opportunity and the capacity to assess risks involving the products of modern biotechnology.

"The Biosafety Protocol is the first new environmental treaty of the 21st century, a century that will be dramatically shaped by biotechnology," said Klaus Toepfer, Executive Director of the United Nations Environment Programme (UNEP), which administers the secretariat of the Convention on Biological Diversity. "Last Saturday's agreement in Montreal empowers the international community to build an effective regime for ensuring that the planet's biological diversity will be able to coexist with this powerful technology," he said.

One of the most contentious issues that negotiators had to resolve involved the relationship between the Protocol and other international agreements, notably those under the World Trade Organization. While environmental agreements are premised on the precautionary principle (which states that potentially dangerous activities can be restricted or prohibited even before they can be scientifically proven to cause serious damage), decisions under trade law require "sufficient scientific evidence". Under the agreement reached in Montreal, the Protocol and the WTO are to be mutually supportive; at the same time, the Protocol is not to affect the rights and obligations of governments under any existing international agreements. (SUNS4596)

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

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