THIRD WORLD NETWORK BIOSAFETY INFORMATION SERVICE

13 March 2004

REF: Doc.TWN/Biosafety/2004/G

Dear friends and colleagues,

TRILATERAL AGREEMENT A PRE-EMPTIVE STRIKE BY EXPORTING COUNTRIES

At the initiative of the US, Canada and Argentina, two meetings of exporting countries were held in March and June 2003 to seek agreement on documentation requirements for LMO-FFPs (living modified organisms for food, feed or processing). This “Article 18 (2)(a)” issue (on handling, transport, packaging and identification of GM commodities) has been one of the most difficult issues in the Biosafety Protocol negotiations.

The work of these two meetings concerned specific elements for a common approach on bilateral arrangements with importing countries, assigning responsibility for provision of documentation accompanying a shipment, resolution of issues and adventitious (accidental) presence. The outputs from the meetings are a proposed framework and model arrangement for bilateral agreements between exporter and importer countries. The stated intention is for these exporting countries to make similar deals with importing countries in order to facilitate GMO trade now that the Protocol is in force, and to influence decisions at the MOPs.

The Protocol recognises that major exporters such as the US are unlikely to ratify the agreement. It does allow bilateral and regional agreements with non-Parties which have to be consistent with the objectives of the Protocol, do not result in a lower level of protection, and have to be deposited with the Biosafety Clearing House.

New Zealand, Brazil, Chile, Australia and Uruguay are also a part of this initiative. Canada has also approached ‘priority’ importing countries to agree to bilateral arrangements with it. Japan, China, South Korea, Mexico and Egypt have been approached.

Mexico has already signed a trilateral agreement with the US and Canada.

The agreement reached between these exporting countries on the “Proposed Framework for Bilateral Arrangements” and the “Model Bilateral Arrangements to Implement Article 18.2(a) of the Cartagena Protocol on Biosafety” basically envisage that documentation for LMO-FFPs (“may contain” LMOs) is only triggered in transboundary movements of LMO-FFPs which are authorised in or sold from a country of export, except where an exporter or importer may have contractually defined, in accordance with the regulatory requirements of the importing country, that a shipment of 95% non-GMO content is a “non-LMO shipment”, and for shipments which the exporting country does not have in commerce any LMO of that species.

These exporter countries had difficulty in agreeing on whether adventitious presence, for example, an unintended presence of a GMO that has not been approved for commodity shipments may trigger the same documentation requirements. It was decided at these meetings that this has to be dealt with in the specifics of any bilateral arrangement.

This can clearly be seen as moves to undermine the Protocol, pre-empt the negotiations at the MOPs and other meetings on this issue, and to dictate national law. It shifts the burden of monitoring, identification and testing on the importing countries.

Setting a threshold level of 5 % for triggering identification, when none has been discussed in the meetings of the Protocol, and interpreting the “may contain” requirement in this manner, is nothing short of an attempt to globalise these rules, before the Parties to the Protocol can decide themselves. Already, a meeting was held for Latin American countries, with the participation of the US and Canada, in early February (just before MOP 1) in Argentina to discuss the framework and model arrangements and the trilateral agreement between the US, Canada and Mexico, among other issues.

It is also very dangerous, as the US has stated that it is open to the possibility that agreement may be reached with an importing country that would not require such formal documentation. This may mean that such arrangements and agreements may not be subject to the Protocol requirement that they do not result in a lower level of protection than that provided for by the Protocol. It may also mean that such agreements and arrangements between the US and a Party may not be notified to the Biosafety Clearing House.

Trilateral agreement-win, win, and a loss for Mexico

In October 2003, Mexico signed a trilateral agreement with the US and Canada on documentation requirements for LMO-FFPs. Mexico is a Party to the Protocol, while the other 2 countries are not.

Incidentally, the Coordinator of International Affairs of the Secretary of Agriculture, Livestock, Rural Development, Fisheries and Food of Mexico who signed the agreement, and who has been called up by the Mexican Congress to explain this issue, seemed to have out-manoeuvred other Latin American and Caribbean countries, to become a member of the Compliance Committee.

The trilateral agreement is basically the framework model arrangement plus the agreement that adventitious presence of LMOs in a non-LMO shipment should not be a trigger for the “may contain” documentation.

During the MOP, the US and Canada publicly announced this trilateral agreement in side-events. According to the US official, the definition of adventitious is that the contamination is accidental or inadvertent, that it is low-level contamination, and that the contamination could not have been avoided. However this is still being discussed, and as yet, there is no definition or guideline for what this means. In effect this could mean that 100% contamination by another GMO would still not trigger identification requirements, as long as it is classified as ‘adventitious’.

A threshold for contamination has also been set at 5%. As long as the shipment is 95 % GMO free, and has been contractually defined as a non-GMO shipment and does not conflict with the regulations of the importing country, identification requirements are not triggered. In other words, up to 5 % contamination is accepted as no contamination, and if the contamination is adventitious, the identification requirements are also not triggered.

According to the Canadian official, all exports from the US of soya and corn, of which a large percentage is genetically engineered in the US, will be labelled as “may contain” LMOs. For Canada, all exports of corn, soya and canola will be labelled as “may contain” LMOs, as genetically engineered varieties of these crops are grown in Canada. Only a small percentage (e. g. 2% of soya in Canada) will not be labelled as “may contain” LMOs, as these are identity preserved organic crops.

Already, conventional varieties of canola are known to have been widely contaminated in Canada, as oilseed rape (canola) is an open pollinated crop.

The declaration “may contain” will simply be placed on all shipments of these seeds, as part of the commercial invoice. Already, MOP 1 has gone further in its clarification of these issues, by acknowledging that national laws may require more detailed ‘stand alone’ documents, by urging countries to require that the documentation includes the common, scientific, and commercial names, the transformation event code or its unique identifier code, and by encouraging all countries to require their exporters of LMO-FFPs to declare unambiguously that their intentional shipments contain LMOs, their identity and any unique identification.

Will this now be an issue for the Compliance Committee?

There will be no monitoring or enforcement of the trilateral agreement by the authorities; instead everything will be left to the commercial buyers and sellers to implement.

The announcement of the side event indicated that it was organised jointly by the US, Canada and Mexico. However, Mexico distanced itself from the side-event, and later organised its own side-event. All this has also reflected on the internal dilemmas and lack of consensus within the Mexican government itself on this issue.

Mexico has the most to lose from this agreement. Already, as the centre of origin and diversity for maize, local varieties of maize have been contaminated by transgenes. This happened most likely because of the planting of GM maize that was imported for food, feed and processing. Mexico had a ban on the import of GM maize for planting, but as experience has shown, this is an artificial and unworkable distinction for biosafety.

Now, with this trilateral agreement, Mexico has further increased her burden of monitoring and testing, and will be faced with the impossible task of biosafety regulation, as the authorities will not be able to do proper biosafety assessments on all GMOs approved or otherwise in Mexico, Canada or the US that will be slipping through her borders. There are no permissible thresholds for biosafety.

How will Mexico comply with the biosafety laws of other countries that she exports to?

Mexico has exposed herself to further contamination even of unapproved, experimental and illegal GMOs from Canada and the US, and this may well be seen as an attempt to legitimise the maize contamination in Mexico, as well as further contamination events that are likely to occur.

Who will be liable for this? Will there and can there be redress?

With best wishes,

Lim Li Lin and Lim Li Ching

Third World Network

121-S Jalan Utama

10450 Penang

Malaysia

Email: twnet@po.jaring.my

Website: www.twnside.org.sg