Outstanding Issues of the Biosafety Negotiations

by Tewolde Berhan Gebre Egziabher

The last negotiation session on a Biosafety Protocol was expected to come up with a finalised agreement. It took place in Cartagena, Colombia, in 14-23 February 1999 and made absolutely no progress. In fact, the differences that had previously been felt in a diffused manner became crystallised into three blocks. The Miami group of grain exporting countries (USA, Canada, Australia, Argentina, Chile, Uruguay), wanted no regulation of genetically modified organisms (LMOs). The Like-Minded Group, (developing countries and China excluding members of the Miami Group), wanted the rigorous regulation of LMOs. The European Group often sounded like the Like-Minded Group, but usually reacted to the issues like the Miami Group.

When he realised that progress was not taking place, the Chairman, helped by individuals from some European delegations, came up with a new draft. Helped by individuals he chose, he tried to push it on a "take it or leave it" basis. That draft weakened the Advance Informed Agreement procedure almost to non-existence. In so doing, it merely paid lip service to the Precautionary Principle.

The chairman's text went out of its way to appease the Miami Group, and disregarded most of the issues that are of concern of the South. The European Group went even further than the Chairman's draft. In the following, I will summarise the content of the Chairman's text and the various positions to illustrate my contention.

1. Common Position of the Miami and European Groups

In nearly completely destroying the Advance Informed Agreement procedure, the Miami and European Groups are jointly responsible; the Miami Group going further than the European Group only on commodities. In trying to take advantage of their presumed role as biotechnology exporters, they both oppose the South's desire to have provisions on liability and redress included in the Protocol. The Miami Group openly state that they will have none of it, and the European Group, without opposing so explicitly, want the issue to keep rolling into the distant future. Their opposition to most of the provisions on socio-economic considerations in regulating LMOs is equally selfishly motivated.

In particular, both the Miami and European Groups jointly oppose the Like-Minded Group as follows:

1.1. They want the exclusion of contained use (the use of LMOs in factories and laboratories) from the AIA procedure (Art. 4.2(b))

1.2. They want the exclusion of the transit of LMOs from the AIA procedure (Art. 4.2(b))

1.3. They want the exclusion of LMOs used as pharmaceuticals from the AIA procedure (Art. 4.2(c))

1.4. They want to prevent even in risk assessment, the consideration of products of LMOs (products thereof). It should be noted that inclusion in annex II does not enable risk assessment of products of LMOs per se. It only enables the consideration of the effects of products of LMOs when assessing the risks posed by LMOs. This provision is of no incremental use since the impacts of LMOs could not be evaluated otherwise.

1.5. They want information which is essential for safety to be treated as confidential (Art. 18).

1.6. The provision in the chairman's text does not specify that there will be a strict liability; and the six-year period given is not stated to be the time for completion and adoption , but only a time "with a view to completing the process". A huge gulf may remain between the "view" and the "reality". Even then the EU would want the commitment to start a process "with a view to completing" diluted further; and the Miami Group only want the process to deliberate "whether and how" any liability regime could be established or, preferably, not to be started at all. Both camps see themselves as exporters of LMOs, and it thus makes selfish sense that they do not want any liability regime.

1.7. They want a vague definition of "contained use", one that will enable even many of the deliberate releases to fulfil the criteria for being regarded as under containment.

1.8. They do not want even to consider the responsibility to cooperate financially and technically in correcting the impacts of LMOs on the markets of commodities from developing countries in Article 24 (Socio-Economic Consideration). This is consistent with the steady reneging of even existing commitments since the Rio Summit of 1992.

1.9. They insist on full detail explaining refusal of import (Art. 9.3), which obviates the application of the Precautionary Approach.

1.10. They want the inclusion of non-Parties in trade in LMOs (Art. 21), and the requirements for the non-Parties to be not the fulfilling of the provisions of the Protocol, but merely "the principles", which are not defined.

1.11. They want to restrict what is to be given to a Party of import to a single "previous and existing" risk assessment report of the LMO (Annex I (k)) when all previous risk assessments could be helpful in decision-making.

1.12. The Risk Assessment Annex (Annex II) is seriously flawed because it does not provide for any field trials, or even for any existing reports of trials, of the LMO in the receiving environment or in any similar environment, to be made available to the Party of import. Since there are deadlines in the application of the AIA, the country of import will often find it difficult to meet those deadlines if it is, itself, to do the necessary trials. In this context it is absolutely essential to retain Article 8.3(d), which will enable the Party of import to determine the additional time it requires before deciding to approve or to disapprove an import.

1.13. They want Article 9.4 deleted, and thus they want to refuse a Party the right to require the AIA procedure on additional importation of a LMO.

2. Issues that Relate to the EU Position

The EU took the Chairman's text as good, except with regards to Articles 31 and 15. These two articles are of concern to the South as well. The South took the Chairman's text as good enough only as the basis for negotiations. Though, on most issues, Europe did not oppose the South, it took more the position of a bystander rather than that of an ally. The issues where the South feels that it expects a more pro-active and, as necessary, a change of position, from Europe are the following:

2.1. Tolerance of the Miami Group's desire for the exclusion, contrary to Article 19.3 of the Convention, of commodities from the AIA procedure (Art. 5.1-5.3)

2.2. The circumvention of the Protocol by arrangements between and among states (Art. 11, especially Art. 11.3)

2.3. The rendering nearly meaningless of the right of a Party to become more protective of the environment (Art. 2.6) by the two restrictions:

a) "consistent with the provisions of this Protocol", which removes the freedom to be more protective on the issues covered by the provisions of the protocol; and
b) "other obligations with international law", which opens not only the right, but the whole Protocol, to subordination to extraneous influences, including those that will come in the future.

2.4. The unnecessary qualification of "significant adverse effect", which must be feared if unintentional release is to be notified to Parties which are likely to be affected by the release (Art. 14.1), when "notification" is only a very small obligation.

2.5. The subordination of safety to trade in Article 22.2.

2.6. Yielding to the Miami Group's wishes for the deletion of Article 8.7, which expresses the essence of the Precautionary Principle, and trying to pay lip-service to the principle by referring to it in the preamble only. It should also be pointed out that the Precautionary Principle has been deleted from Article 12, Risk Assessment. To make matters worse, paragraph 4 of Annex II explicitly prohibits the use of the Precautionary Principle in Risk Assessment.

2.7. The provision for a unilateral exemption of LMOs from bearing identifying writing (Art. 15.1 (b)) or labels.

2.8. The acquiescence with the Miami Group to exempt non-Parties who trade with Parties from compliance with the provisions of the Protocol on the measures to take in the event of unintended transboundary movement of LMOs. This is done by deleting reference to Article 11 on multilateral, bilateral and regional agreements and arrangements, from Article 3(j), the definition of transboundary movement. This deletion gives non-Parties (mainly USA) the ability to enter into regional or multilateral arrangements with Parties without complying with the requirements of Article 14, which governs unintended transboundary movement and emergency measures.

3. Issues that Relate to the Miami Group's Position

In addition to opposing the South jointly with the European Group, the Miami Group create the following problems in addition to those they create jointly with the European Group.

3.1. The Miami Group do not want LMOs in transit to be labelled, and they thus want the first reference to Article 15 in Article 4.2(b) deleted. How could transit countries identify and manage accidental releases?

3.2. They want trade with non-Parties to be only "compatible with the objective of the Protocol" (Art. 21.1). The Chairman's text referring to "consistent with the objectives and principles" is already too weak, and trade with non-Parties, unless made under strict conditions, will be the Trojan Horse of the Protocol.

3.3. They want to weaken the Preambular statement on the Precautionary Principle by changing the first word from "Reaffirming" to "Noting", and to delete Article 8.7 (compare with 2.6 and 1.9).

3.4. They want illegal traffic (Art. 23.1) to be defined not by contraventions to the Protocol, but by contraventions to their domestic laws by changing the words at the end of the first sentence from "the relevant provisions of this Protocol" to "the relevant provisions of its domestic law implementing this Protocol". They can then obtain latitude to define illegal traffic as they like.

3.5. They want socio-economic considerations (Art. 24) to be used only in risk management, not in risk assessment. It is difficult to see how it could be used in risk management alone. They have either totally misunderstood the issue, or they are trying to be cynical.

3.6. Article 31 is bad. They want to make it worse by deleting the last phrase, "except where the exercise of those rights and obligations would cause serious damage or threat to biological diversity", meaning that trade would be absolutely paramount even in the face of certain death and destruction.

3.7. They want financial responsibility for risk assessment (Art. 12.3) not to be that of the notifier, but, presumably, that of the Party of import.

3.8. They do not want unintentional transboundary movement to be managed as a risk (Art. 13.2). In other words, they want to pollute the world's environment with no questions asked.

3.9. They do not want LMOs to undergo any observation once released (Art. 13.4). This is consistent with their desire to pollute without questions asked (c.f. 3.8)

3.10. They want Article 7.5 deleted, thus denying the Parties the right to identify the most dangerous LMOs that must always go through the AIA procedure.

3.11. The article on confidentiality of information (Art. 18) is already restrictive of the very information required for safety. They want to go beyond the European Group and strengthen the confidentiality of information further by deleting "in accordance with national legislation" from Article 18.3.

3.12. They want Article 2.2 deleted so that Parties shall not be forced to ensure the elimination or reduction of risks that may be posed by LMOs.

4. Issues that Relate to the Like-Minded Group

4.1. The Like-Minded Group of Countries want the Miami and European Groups' positions (1.1-1.13) changed on the ground that they undermine safety and go counter to Article 19.3 of the Convention.

4.2. They want the Miami Group's excesses curbed and their positions (3.1-3.12) changed.

4.3. With the exception of a few members, they want products of LMOs to be subject to risk assessment, and they do not want trade with non-Parties (c.f. 1.4 & 1.10),

4.4. In all the other issues (2.1-2.8), they want Europe to stop appeasing the Miami Group's irrational greed, to help pressurise the Miami Group to change their positions.

4.5. They have tried to meet the Miami Group part of the way. Even though they want commodities and all other LMOs to be subjected to the AIA procedure at least for the first transboundary movement, they are prepared to accept that Parties may exempt specific commodities from the AIA procedure if they wish. They believe that going further along the line the Miami Group want would seriously compromise the Protocol. They hope that a re-invigorated European Group will join them in this position of self-preservation for the human species.

(Dr Tewolde Egziabher is the General Manager of the Environmental Protection Authority in Ethiopia. At the Biosafety Protocol negotiations, he is the Chairperson of the African group of delegates and a prominent spokesperson for the Like Minded Group which comprises almost all developing countries.)