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BIOTECH
PROPOSALS FOR SEATTLE UNDERMINE BIOSAFETY Geneva 26 Oct 99 -- Recent proposals in the WTO by some developed countries to establish special disciplines or a working group for bio-technology products could seriously undermine developing countries' efforts to ensure safety in the trade in genetically-modified organisms and products. As part of the preparatory process for the WTO's Seattle Ministerial Meeting, and the drafting of an agenda and draft ministerial declaration there, to launch a new round of negotiations and a post-Seattle work programme, Canada and Japan have proposed the setting up of a new WTO working group or forum on biotechnology, whilst the US has proposed the WTO consider additional disciplines for the trade in biotechnology products. These proposals have now been included in the revised draft Ministerial Text of 19 October in two places: (a) Para 71 (in square brackets) entitled "Working Party on Biotechnology" states: "We agree to establish a Working Party on Biotechnology. The Working Party shall have a fact-finding mandate to consider the adequacy and effectiveness of existing rules as well as the capacity of WTO members to implement these rules. It is appropriate for this Group to deliberate within an X period of time." This proposal has come from Canada and Japan, which have submitted papers proposing to set up a working party or a forum to deal with biotechnology (details are given below). (b) In the draft Declaration's section on Agriculture, Para 29 (vi) deals with improving the rules and disciplines (of the WTO). One of the proposals is for: "Disciplines to ensure that trade in products of agricultural biotechnology is based on transparent, predictable and timely processes." The language of this para is similar to the US proposal (in its paper WT/GC/W/288 dated 4 Aug 99) in the context of future agriculture negotiations. The proposals could have serious effects on the efforts made by developing countries in the Biodiversity Convention to establish a Biosafety Protocol which is aimed at preventing the indiscriminate export to developing countries of potentially hazardous genetically-modified organisms (GMOs) in products such as seeds, food and animal feed. It may be worth noting that the multilateral trading system's track record on dealing with hazardous and dangerous products in international trade is abysmal. In 1982, at the ministerial meeting under the old GATT, this item of prohibiting exports of hazardous and dangerous products, banned or severely restricted by countries in their own internal markets was put on the GATT work programme. It was put on the back-shelf, as the US and EC pushed on with their grand plans for the Uruguay Round, and almost disappeared from the agenda. In 1990, it was revived, and a working party was appointed, and was due to come up with some modest transparency demands, namely, of notification obligations of countries. The US blocked it, wanting to exclude auto-parts and pharmaceutical and chemical products - so that its enterprises would have the right to export what is viewed as hazardous and dangerous in the US market itself. There have been some talk, off and on, about this item, including in the WTO Committee on Trade and Environment, but with no serious work or movement. The export of GMOs could have an adverse effect on agriculture in developing countries (as the genetically-engineered genes could inadvertently contaminate local plants and crops) and could also pose health hazards. To avoid these problems, almost all developing countries of the Group of 77 have taken the lead in fighting for a Biosafety Protocol (under the Biodiversity Convention) with an "advanced informed agreement" (AIA) system in which GMO products can only be exported if the importing country is first informed and gives approval. A handful of countries, the so-called Miami Group, led by the US (which are the main producers of GM crops and food) are trying to delay and water down the protocol. The Miami Group comprises of the US, Canada, Australia, Argentina, Chile and Uruguay. The Miami Group in the CBD talks, have proposed only a limited scope for products covered. They have also proposed that instead of an AIA procedure (where exporters are obliged to get the importing counties' permission), exporters should only put information on an internet website and it is up to the importing countries to seek the information themselves and to restrict imports (if they so wish) within a specified period, after which the product should be allowed to enter. They are also insisting on a clause that the Biosafety Protocol be in line with other international agreements (which refers particularly to the WTO). The proposals in the WTO are in line with these efforts to subject the Biosafety Protocol to new disciplines in the WTO that would restrict the ability of importing countries to regulate imports of GMO products. If the proposals are adopted in Seattle, they would adversely affect the efforts of developing country delegations in the Biosafety Protocol to adequately regulate the (now unregulated) trade in GMOs and GM products. At present, GMOs and genetically-modified seeds and other materials are already entering developing countries, often without the knowledge of the authorities of importing countries. There is grave concern among environmental, agricultural and health authorities in many developing countries over the potentially serious problems this may cause. They are thus pushing hard for a good biosafety protocol, now scheduled for completion next year. There are strong grounds to believe that the recent proposals in the WTO are aimed at countering the Biosafety Protocol, or to prevent it from being able to adequately regulate the trade in GMO products, and to seriously limit the scope of national laws regulating imports. As part of the WTO's process for preparing for Seattle, Canada and Japan have put forward proposals that the Ministers at Seattle decide to set up a new working group in the WTO to deal with GMOs and biotechnology. Canada (in its paper WT/GC/W/359 dated 12 Oct 99) proposes a "working party on biotechnology", whilst Japan (in its paper WT/GC/W/365 dated 12 Oct 99) calls it an "examination group for new issues including GMOs". Meanwhile, the United States (in its paper WT/GC/W/288 dated 4 Aug 99) in the context of future agriculture negotiations, has proposed to address WTO disciplines "to ensure trade in agricultural biotechnology products is based on transparent, predictable and timely processes." To avoid the potential damage of the above proposals, developing countries could object to the proposals. They could argue that the present rules in WTO are adequate to deal with biotech products and thus there is no reason to grant such special status to biotech products. Moreover, agreement to give such special treatment to biotech products would open the door to demands for similar treatment for other products in future. This issue has been analysed in a Discussion Paper by the Centre for International Environmental Law (CIEL) on the implications for developing countries of proposals to consider trade in GMOs at the WTO. This paper is authored by Matthew Stilwell, managing attorney at CIEL. According to CIEL, the proposals' aim is to further constrain the ability of importing countries to regulate GMO products. "Currently, the WTO includes no explicit disciplines on national measures to regulate GMOs," says the CIEL paper. However, it is clear that GMO-exporting countries consider the existing WTO obligations (on importing countries) to be insufficient and are thus seeking new WTO disciplines. Whilst the ultimate form of these is unclear, says CIEL, nevertheless, it is likely they are intended to further constrain the ability of importing countries to regulate GMO products. They could include: * Further disciplines on national GMO approvals to ensure, what is termed as, "transparent, predictable and timely" processes. This may involve re-interpretation of the SPS and/or TBT Agreements. The terms "timely" and "predictable" may, for example, mean undue constraints for national regulators, who would face deadlines for dealing with GMO products that may need time consuming testing procedures to avoid unpredictable consequences for biodiversity and the environment; * Additional, so-called "science-based" disciplines on national GMO regulatory and labelling schemes. This may, again, involve a re-interpretation of the SPS and/or TBT Agreements; The CIEL paper also warns that the proposals may adversely affect the Biosafety Protocol negotiations and final outcome, because: (a) The argument could then be advanced that the protocol should be delayed until the proposed WTO Working Party in the WTO makes its conclusions; (b) WTO disciplines (existing or new) could be used to further reduce the SCOPE of the Protocol. During the Biosafety Protocol negotiations, the Miami Group sought to narrow the scope of the Protocol by excluding GMO commodities. A broad definition of "agricultural biotechnology products" at the WTO may be used to exert further pressure to reduce the protocol's scope; (c) WTO discussions could be used to weaken the protocol's PROVISIONS. For example, new WTO disciplines to ensure the "timely" approval of shipments of GMO products may cut against the Biosafety Protocol's provisions on "advanced informed agreement". During the biosafety negotiations, Miami Group members argued that these provisions may lead to unnecessary delays. (d) New so-called "science-based" disciplines may be promoted by these countries in the WTO which may then be used to counter the Biosafety Protocol's use of the precautionary principle. In addition, new obligations to prove risk before regulating GMO products may be especially burdensome for developing countries, which may lack the scientific and technical capacity to test shipments of GMO products. (e) Moving GMO issues into the WTO may change the negotiating dynamic. Considering GMO issues at the WTO may allow GMO- exporting nations to take advantage of the WTO's pro-trade (and pro-corporate) orientation, to exploit developing countries limited capacity to coordinate activities in numerous international fora, and to undermine developing countries' strong position for the Biosafety Protocol by negotiating anew with trade delegates who have not closely followed these negotiations. (f) It would increase the likelihood of using the "uncertainty" of WTO rules (this has already been used by a few countries during recent biosafety protocol negotiations) to undercut the protocol. The CIEL paper concludes that the existing rules in WTO are sufficient to deal with GMO and biotechnology products, and that the proposals to negotiate additional disciplines should not be accepted. The paper makes the following recommendations: A. Recommendations related to the WTO: * Characterize existing WTO disciplines as adequate to deal with GMO-related issues, and argue that further disciplines are not required; * Note that Article 5.7 of the SPS Agreement allows countries to invoke the precautionary principle and take provisional measures to stop imports. It is then incumbent on them to substantiate their action with the necessary risk assessment. In the area of GMOs, it should be understood that the burden of proof is on the exporter to provide adequate scientific evidence that the products are safe; * Agree that GMO products cannot be treated as 'like products' under the provisions of the TBT Agreement. Therefore, labelling of GMO products cannot be challenged as discriminatory under that Agreement. GMO products are unlike non-GMO products on the basis of the traditional WTO test for determining likeness of products -- consumer's tastes and habits; the products' physical characteristics; and, the products properties, nature and qualities; * Insist that, in view of the linkages between GMOs and IPR protection, the mandated substantive review of Article 27.3 (b) should be completed soon, and that sufficient time (i.e. 5 years from the date of completion of the review) should be given to developing countries to implement this Article. This review should clarify that plants and animals and micro-organisms and other living organisms and their parts, as well as natural processes for their production are not patentable. Moreover, national sui generis systems to protect plant varieties should be compatible with the obligations of countries under the Convention on Biological Diversity and the FAO International Undertaking for Plant Genetic Resources; * Note Japan's characterization of GMOs as a "new issue" and argue against the inclusion, through a Working Group or other mechanism, of such a complex and multifaceted new issue into the WTO at short notice. The introduction of broad discussions on GMOs threatens to overburden developing countries and create imbalance in the agenda of future negotiations; * Consider any proposals (such as that of the United States) to negotiate new rules on agricultural biotechnology products in light of the broader context of cross-issue and cross- institutional linkages. Consideration of possible new disciplines, if any, should be preceded by a successful conclusion of the Biosafety Protocol and balanced by a comprehensive package of measures for developing countries; B. Recommendations related to other organizations/initiatives: * Support the Biosafety Protocol negotiations and push for an early conclusion of this agreement. The Biosafety Protocol provides the appropriate forum for dealing with the GMO-related threats to biodiversity and the environment; * Ensure full coordination at both the national and international level between trade negotiators that attend the WTO, and environmental negotiators that attend the Biosafety Protocol as well as other relevant international fora. Such coordination is essential to ensure that trade negotiators are fully informed of the implications of agreeing to consider GMO-related issues at the WTO; * Take measures to ensure that developing country interests are adequately considered in ongoing discussions at the OECD, and by the European Communities and the United States in bilateral discussions. (SUNS4539) Martin Khor is the Director of the Third World Network. 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 >
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