Global Trends by Martin Khor

Monday 1 March 2004


Last week saw Malaysia hosting the historic first Meeting of the Parties of the Biosafety Protocol, which is part of the Convention on Biological Diversity.  The meeting ended on Friday with the adoption of ten decisions.  Three of them, on the handling of living modified organisms, liability and redress, and compliance with the rules, were especially important in taking the protocol on its journey from rules to practical policy measures to address the risks associated with genetic engineering.

International regulation of the trade in genetically modified products took a vital step forward last week when governments adopted several measures at the first ever meeting of the parties (MOP) to the Cartagena Biosafety Protocol held in Kuala Lumpur.

The meeting, dubbed MOP1, ended last Friday with the adoption of ten decisions on issues ranging from information-sharing and finance to the handling of living modified organisms (LMOs).

When Minister of Science, Technology and the Environment, Datuk Law Hieng Ding, who chaired the meeting, used the gavel for the last time after three weeks of negotiations on biodiversity and biosafety, there was some satisfaction that progress, however modest, had been made to implement the protocol.

For many years now there has been growing concern about the potential health and environmental risks posed by genetically-engineered (GM) crops and food products.

Whilst the biotech industry claims that the process and products from genetic engineering are safe, many governments and environmental and consumer groups have asked for more information about GM products and for action to regulate them. 

After years of hard negotiations, the Biosafety Protocol came into force last September, and Malaysia was chosen to host the first formal meeting of the 87 countries that have joined it. 

Three of the most important decisions adopted by the MOP1 last Friday were on:

·        Measures for handling, transport and identifying LMOs, in line with Article 18 of the protocol;

·        Establishing compliance procedures and mechanisms for the protocol, and

·        Establishing an expert group on liability and redress in the context of the protocol.

Until the protocol came into force, there have been no international regulations on the export or import of food, seeds and other products containing LMOs.

This has left consumers and farmers around the world wondering whether the food they eat or the imported seeds they plant had been genetically modified.  

Under Article 18 of the protocol, countries shall take measures to require that LMOs that move across borders are handled, packaged and transported safely.  The aim is to avoid adverse effects on biodiversity and risks to human health.

For the first time, the MOP1 has decided on the documentation that should accompany three categories of LMOs:  first, those that are used as food, feed and for processing;  second, those that are for “contained use” (mainly in laboratories);  and third, those for introduction into the environment (such as genetically-modified seeds for planting).

For the first category, documents should clearly identify that the shipment may contain LMOs for direct use as food, feed or for processing and not intended for introduction into the environment.

The documents should include the common, scientific and commercial names of the LMOs, the transformation event code or its unique identifier code, and the identity of the LMO and any unique identification.

An expert group was set up to elaborate detailed requirements of identification of the LMOs under the first category, and report to the next meeting of the parties in 2005. The above measures are thus interim, and countries are requested or urged to take them now.

For the second category of LMOs, documents accompanying them should clearly identify the LMOs, their common and scientific names, that they are destined for contained use; their commercial names and new and modified traits and characteristics. 

For the third category, the documents should clearly identify them as LMOs, and describe the LMOs, their names and traits (including transgenic traits such as transformation events), risk class and the required approval permit for import under the protocol.

The LMOs under categories two and three should also be subject to any requirements for safe handling, transport and use under existing international instruments, as well as domestic regulations and any agreement between the exporter and importer.

The names and addresses of the exporters and importers and the contact point for more information (including in case of emergencies) should also be provided in the documents in all three categories.

On the compliance issue, the MOP1 had a week-long intense debate on how to deal with countries that do not comply with their obligations under the protocol. The European countries were especially keen to get a strong compliance regime so that countries would take their obligations seriously. 

The MOP1 eventually established some compliance procedures and mechanisms.

A Compliance Committee was set up, comprising 15 persons, three from each of five regional groupings.  One of the Asian representatives appointed was Gurdial Singh Nijar, professor at the Law Faculty of University Malaya. 

The Committee, which will meet twice a year, will receive cases submitted to it of non-compliance.  It will identify circumstances and causes of these cases, provide advice to the concerned party to assist it to comply, review general compliance issues, take measures or make recommendations to the meeting of parties.

A party complained against has three to six months to respond, and the committee will consider the views of both the parties making and receiving the submission.  The committee can then take measures including giving advice or assistance to the party, develop a compliance action plan with a timeframe, ask the party to submit progress reports, and make reports on efforts made by the party to the MOP.

In turn, the MOP can decide on taking the following measures: provide assistance, technology transfer, training and capacity building measures;  issue a caution; have the cases on non-compliance published; or take other measures (to be decided at the protocol parties’ third meeting) in the case of repeated non-compliance.

The issue of liability and redress was perhaps the most controversial, with developing countries (especially from Africa) pressing that MOP1 adopt a strong international regime.

They argued, in general, that in the event of accidents or incidents where LMOs cause damage to farmers’ crops, the environment or human health, there should be a legally binding regime to determine who is responsible and how redress or compensation can be made to the victims and for the harm done.

The MOP1 eventually decided to set up a working group of experts on liability and redress which will meet before next year’s meeting of the parties.

It will analyse potential and actual damage scenarios of concern in order to identify situations for which international rules may be needed, and analyse how international rules and procedures on liability and redress can be applied to the damage scenarios.

It will also elaborate options for rules and procedures, including definition, nature and scope of damage, valuation of damage to biodiversity and human health, threshold of damage, causation, channeling of liability, roles of parties of import and export, standard of liability, mechanisms of financial security and standing or right to bring claims.

The working group will meet five times and propose international rules and procedures on liability and redress in a final report in 2007.  The MOP will then make a decision.

Besides the measures taken on these three issues, the MOP1 also took decisions on seven other issues, including capacity building, a medium-term work programme, information sharing and the biosafety clearing house, budget and other financial issues.

Delegates to the meeting appeared to be rather satisfied with the progress made at the MOP1.

Dr Tewolde Egziabher, a leading African scientists who is also head of the Ethiopia delegation and coordinator of the Africa Group, said he was especially pleased with the progress on liability and redress, an issue which for years the developing countries had been pushing for but which the developed countries had been opposing.

“Even at the start of the Kuala Lumpur meeting, the developed countries were stalling on this issue, but in the end we were able to prevail on them.  Besides the Africa Group, I must credit Malaysia for being very active among the developing countries for this.”

He added that the liability issue was critical as it was important that developing countries be able to be compensated if their farms, environment or human health were to be adversely affected by the imported LMOs.  

An international liability regime would also cause the private sector to be more careful and cautious in their activities relating to LMOs. 

Tewolde was also happy that the protocol would have a relatively strong compliance mechanism, unlike many other multilateral environment agreements.  “With such a mechanism, it would be more difficult for parties to shirk their obligations.”

Regarding the “Article 18 measures”, Tewolde said the MOP1 decision makes it easier for countries to insist that imported products containing LMOs be labeled.

He noted, however, that most of the leading exporters of genetically engineered products are not members of the protocol and thus are not obliged to follow its rules.

Nevertheless, the decision at MOP1 would make it easier for importing countries to insist that the imports containing LMOs be accompanied by proper documentation, even from the countries that are non-parties.

Tewolde added that the MOP1 decision only covers interim measures but it was the basis for a more detailed process to develop a lasting system for the handling and transport of LMOs.

“Biosafety is important for African and other developing countries in order to protect agricultural and animal biodiversity,” he said.  If there is unintended contamination by genetically-modified substances, it can affect crop diversity, agricultural productivity as well as human health.

“I am happy the biosafety protocol is moving from rules to measures and action, but although we made good progress in Kuala Lumpur, the challenges are very big and there’s much more to be done.”