The South finally secures a Biosafety Protocol

By Gurdial Singh Nijar

After more than two years of debate, the Conference of Parties to the Convention on Biological Diversity finally agreed at its meeting in Jakarta in November last year to commence work on a biosafety protocol

T HE world community has finally agreed that there is a need to establish an internationally binding legal instrument focusing on safety aspects of transboundary movement of genetically modified organisms (GMOs). This was the outcome of the intense negotiations at the second meeting of the Conference of Parties of the Convention on Biological Diversity (CBD) which took place in Jakarta from 6 - 17 November 1995.

The Conference of the Parties (COP) established an open-ended working group to begin negotiations on the development of a biosafety protocol 'as a matter of urgency'. The working group, according to the terms of the decision, will 'endeavour to complete its work in 1998'.

Although the protocol to be negotiated will specifically focus on the transboundary movement of GMOs, the decision of COP2 states that the development of a protocol on biosafety will be 'in the field of the safe transfer, handling and use of GMOs'.

The terms of reference mandates the working group to elaborate upon the elements of a biosafety protocol identified by an open-ended ad hoc Group of Expertsþ meeting in Madrid in July this year. These elements are very broad in scope, and cover such areas as: all activities related to GMOs that impact adversely on the environment including research development, handling, transfer, use and disposal; national regulatory systems for risk assessment and risk management, and the transboundary movement of GMOs, including unintended movement. However, one of the terms of reference appears to restrict the scope by stating that the 'process will take into full account the gaps in the existing legal framework identified through analysis of existing national and international legislation.'

A major victory for the South and how it all began

The decision to begin negotiations for a biosafety protocol represents, without doubt, a major victory for Third World countries. 'We have been fighting for a legal protocol ever since negotiations for the Convention began in 1991,' said Dr Manokaran, who has been part of the Malaysian delegation to the CBD from the outset. A satisfied Manokaran recalls how he, and his then head of delegation, Ambassador Ting, hurriedly formulated the relevant provisions, when the agenda item dealing with this issue was suddenly brought forward during the opening round of the negotiations in November 1991.

Then followed intense disagreements and negotiations between countries of the North and the South. The final result was the present awkwardly-worded Articles 19(3) and (4), the critical part of which states that 'Parties shall consider the need for and modalities of a protocol ... in the field of the safe transfer, handling and use of any living modified organisms resulting from biotechnology that may have an adverse impact on the conservation and sustainable use of biological diversity.'

This formulation was to provide industrialised countries of the North with the excuse to filibuster the establishment of a protocol.

It was resolved (Resolution 3) at the conclusion of the negotiations for the Convention in Nairobi that the protocol issue would be tabled for discussion at the first inter-governmental meeting preparatory to the meeting of the COP. To the astonishment of delegates of the South, not only was this issue not on the agenda of this preparatory meeting held in Geneva in the autumn of 1993, but the secretariat paper did not say a word about Resolution 3 or of the biosafety issue.

The secretariat was then directed to table this issue for the second intergovernmental preparatory meeting for the Convention which was held in Nairobi in June last year. At this meeting, the G77 Group of countries and China (representing 130 countries of the South) unanimously expressed the urgent need for work to begin on a protocol and called for the very first meeting of the COP to endorse their request.

The US questioned the need for a protocol, averring that the technology was safe, and that in any event, the biotechnology industry was already over-regulated. The EU felt that any safety concerns of this new technology could be met by voluntary guidelines. They proposed that countries could follow the voluntary guidelines developed by the UK and the Netherlands, which they then made available. A compromise solution was reached: the first meeting of the COP would discuss the need for and the modalities of a protocol.

COP1 sets up a Working Group

This first meeting of COP held in the Bahamas in November last year, decided upon an open-ended ad hoc group of experts to study the need for and modalities of a protocol. A background document was to be prepared by 15 Government-nominated experts for consideration by the open-ended group.

The Cairo Report

The Expert Panel met in Cairo in May 1995 and drew up a background document. This document has been severely criticised. Notably, the document was said to downplay the risks of genetic engineering. An alternative Independent Expert Report, prepared by scientists from the US, the UK, Germany and India, criticised the Cairo report for failing to take into account growing recent evidence and scientific findings of the grave potential hazards of the biotechnology industry dealing with genetic engineering and for failing to acknowledge that GMOs constructed by genetic engineering differ fundamentally from GMOs produced by traditional methods. The document was also criticised for failing to acknowledge that there are enough demonstrable ecological effects of the unpredictability of GMOs and that this makes the existing test procedures and risk assessment methods incomplete and inadequate.

The document's support for the principle of familiarity was criticised as the scientific evidence, accumulated since the negotiation of the Convention, showed the inappropriateness and danger of basing safety regulations on this principle.

The document also came under heavy criticism as it failed to consider the fact that GMOs survived even after their discharge in sludge and waste water from contained use and that this required that they also be assessed for risk.

The Madrid Meeting

At the open-ended meeting at Madrid in July this year, the G77 and China emphasised that the evidence of potential danger was now clear; that GMOs once released into the environment mutate and migrate and cannot be recalled if any danger was subsequently discovered. This, they said, necessitated a precautionary approach (as the preamble to the Convention required). They stated that the urgency of a biosafety protocol was underscored by the fact that multinational companies of the North were already releasing GMOs in trials in the fields of countries of the South, some of them illegally and that developing countries, which had the least capacity to deal with GMOs, had to be protected from such practices of private corporations of the North. The US, EU and Japan were ambivalent and suggested voluntary guidelines yet again.

UNEPþs Agenda of promoting the guidelines

Even as these discussions on the need for a binding protocol were proceeding in the Bahamas, the United Nations Environment Programme (UNEP)' the secretariat for the Convention' publicly 'adopted' the UK/Netherlands voluntary guidelines. This was in defiance of the conclusion of its own Expert Panel IV þ that there was indeed a need for a binding protocol. Only the US and one other member of this Panel had asserted a contrary view.

After the COP1 meeting, UNEP started regional consultations to promote these guidelines. This was seen by many Third World countries as an attempt to undermine and prejudice work towards a binding protocol. For this reason, these countries have insisted on including in any formal document dealing with a biosafety protocol, an assurance that these guidelines will þnot prejudice the development and conclusion of a protocolþ. (One of the main architects of these guidelines was reported to have remarked at a much earlier stage that a binding protocol would only be secured 'over his dead body'. He was known to be the'moving spirit' in the promotion of these voluntary guidelines.)

The COP2 Meeting

Against this backdrop, at the second meeting of the COP in Jakarta, intense negotiations continued for five days, often well into the early hours of the morning, before a final consensus was thrashed out. The main protagonists were the EU, supported by the US, and the G77 and China. This time the EU agreed at the outset that there was a need for a protocol, although the US prevaricated. The US qualified its stand with the phrase:'in the event that COP2 agrees to the need for a protocol..'. Japan had earlier stated its opposition to a protocol, but withdrew what it termed its þunique positionþ in the course of the negotiations.

Change of position by the EU and the US

When the Convention was being negotiated in 1991, the EU had insisted on the inclusion of provisions for a protocol. But later it changed its stance, because some of its member-governments changed their position: notably Germany, France and the UK. These governments were under pressure from their own companies as well as from the US. The decision-makers of some hard-liner countries in the EU, such as Germany, were 'surrounded' by scientists who favoured the promotion of the genetic-engineering industry.

By the time of the Bahamas meeting, the EU was firmly opposed to any protocol.

Many were intrigued, then, when the EU and the US changed their opposition to a protocol at the COP2 meeting in Jakarta in November. What prompted this rethink?

Informed sources trace this to a meeting held a few weeks before the Jakarta meeting between Sweden, the UK, Denmark and Germany, where this issue on the need for a protocol was actively discussed. By this time some of the hard-liner-countries in the EU were faced with immense pressure from a public increasingly aware of the potential dangers of this technology, as well as a strong outcry against the claims by the biotechnology industry for the patenting and ownership of life. Opposing legal safety regulations of this technology was simply not politically palatable.

German politicians, for example, found it difficult to explain why they opposed a protocol, especially on the transboundary movement of genetically modified organisms and products incorporating such organisms, when they already had tough legislation within the country regulating safety aspects in relation to such organisms. They were accused of double standards and of giving support to the biotechnological industry to export its unsafe products and processes to the Third World.

Insiders also give credit to Sweden and Denmark, in bringing about this change at this pre-Jakarta meeting. Both these countries had declared their preference for a protocol before their recent admission into the EU. The softening in the opposition to a protocol may also be because the meeting was attended by officials from the ministries of the environment, which are more sympathetic, instead of trade ministries.

The Council of the EU finally relented and agreed on the need for such a protocol, but only in relation to transboundary transfers of genetically modified organisms. It expressed strong opposition to any protocol which would oblige countries to adopt (high) minimum standards in their national legislation. (There is amove at the moment to amend the EU Council's Directives on contained use, as well as deliberate release into the environment, of GMOs.)

The US had also in the meanwhile come to accept that it was difficult to forestall the protocol in the face of overwhelming opposition to its position þ from both the international community as well as its citizenry.

Bio-industry's final gasp

The biotechnology industry tried, nonetheless, in a last minute effort, to change the tide. In a letter dated 17 October and sent to all delegates well before they left for Jakarta, they warned of theþramificationsþ of a legally binding biosafety protocol. They advocated the þfree choice of every nation to adopt appropriate biotech-nology safety guidelinesþ and repeated this at the plenary session in Jakarta. Their crude appeal to vote against a protocol was ignored by the delegates.

The decision and the negotiations

The decision on the need for a protocol was swiftly made by the drafting group set up by COP2 in Jakarta. But the negotiations on the terms of reference and the scope of the protocol were tense. The EU and the US insisted that the terms of reference be confined to a protocol on transbound-ary transfers.

The G77 and China wanted to ensure that the other aspects referred to in the Convention -safe handling and use þ were not excluded entirely. The deadlock was broken only after permission was secured by the EU from the Committee of the Permanent Representatives in Brussels by a late-night telephone call on the third day of negotiations. The wording finally agreed upon was:

'Decides to seek solution to the above-mentioned concerns through a negotiation process to develop in the field of the safe transfer, handling and use of living modified organisms, a protocol on biosafety, specifically focusing on transboundary transfer, of any living modified organisim resulting from modern biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity, setting out for consideration, in particular, appropriate procedure for advanced informed agreement...'

The G77 and China officially declared their agreement to this compromise þin a spirit of conciliation and good faithþ but there was stunned silence from the EU when the G77 suggested that a comma be added after the words 'a protocol on biosafety'. The now infamous 'comma' (as highlighted in the text, above), was disagreed to and bracketed. The EU feared that this comma changed the effect of the decision and that it may not have the mandate to agree to this altered text. Negotiations proceeded for almost an hour before the EU finally agreed to the inclusion of this comma!

Malaysia, India, Colombia, the Philippines, Ethiopia (and to some extent, South Korea and Brazil), played important roles in the entire negotiating process both at Jakarta and at Madrid.

The Role of NGOs

Many developing countries, as well as some Nordic countries, acknowledge that the sustained efforts of several key NGOs were crucial at every phase of the negotiations. In Nairobi in 1993, for example, when the negotiations were at a crucial stage, timely interventions were made at critical phases by representatives of the Third World Network, GRAIN and Greenpeace.

The Third World Network and The Edmonds Institute also held special briefing sessions where scientists and lawyers addressed key scientific and regulatory issues relating to genetic engineering. Copious scientific and other documents were also provided to delegates by these two NGOs as well as by Greenpeace, Australian Gen-Ethics Network and the Community Nutrition Institute (CNI).

The NGO efforts continued right up to the time when the decision for a protocol was finally made at Jakarta. þIf not for their unstinting support,þ said a Third World delegate, 'the protocol might well have been some time coming.'

Tough negotiations ahead?

The future negotiations on the elements and shape of a protocol, expected to be discussed when the open- ended ad hoc Working Group meets in early 1996, are certainly not going to be easy. The contentious areas were foreshadowed somewhat in the Jakarta negotiations. They are expected to center around such issues as: whether the protocol should deal with unintended movements of GMOs, and not just deliberate transfers; the definition of GMOs (should it include, for example, all biological entities which can interact with, be incorporated in and change the genomes of, organisms?

The US has been exporting live, but unmodified, plasmids for use in genetic engineering to modify other organisms); whether health effects are to be included as part of the risk assessment and management of GMOs, whether the protocol should be comprehensive or only fill in gaps of existing national and international biosafety legislation.

The sincerity of developed countries to provide adequate safety regulations in respect of a technology which they have introduced and are subjecting the developing world to, will be judged in the coming months. The Parties are expected to commence negotiations on the development of the protocol early next year.-TWR

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