South-North Development Monitor (SUNS) #6481 Monday 26 May 2008
Progress after tough talks on liability regime for GMOs
Geneva, 23 May (Lim Li Lin) — Four years of negotiations on an
international liability and redress regime for genetically modified
organisms (GMOs) under the Convention on Biological Diversity have failed to
conclude as planned. Instead, another two meetings have been scheduled to
conclude the negotiations, in order that the agreement can be adopted at the
next Meeting of the Parties (MOP) to the CBD’s UN Biosafety Protocol in
Japan in 2010.
The last round of negotiations were held prior to and during the fourth MOP
to the Biosafety Protocol in Bonn, which was on 12-16 May. It saw the
emergence of a group of "Like Minded Friends", comprising around 80 Parties.
This group put forward a proposal to break the impasse in the negotiations,
and the proposal will now be the basis for the further work.
Under the Biosafety Protocol, an international regime on liability and
redress addressing damage from the transboundary movement of living modified
organisms (LMOs) (as GMOs are known under the Biosafety Protocol) should be
agreed upon and concluded by 2008.
"Liability and redress" has been a very contentious issue. Towards the end
of negotiations to establish the Biosafety Protocol in 2000, countries could
not agree to include liability and redress provisions. Instead, an enabling
clause was put in place, which specified that the first MOP to the Biosafety
Protocol should start a process to elaborate liability and redress rules and
procedures, and complete this process within four years.
The first MOP was held in 2004, and thus the final liability and redress
regime should have been adopted in Bonn last week.
Five Working Group meetings were held over the years, but no agreement could
be reached. Just before the Bonn MOP, four days of closed door "Friends of
the Co-Chairs" meetings were held. The Co-Chairs are Jimena Nieto of
Colombia and Rene Lefeber of the Netherlands.
This group was constituted in Cartagena in March 2008, at the final meeting
of the Working Group. It comprises 6 representatives each from Asia Pacific,
Africa and GRULAC, as well as 2 representatives each from the EU and CEE,
and Norway, Switzerland, New Zealand and Japan. Other Parties are allowed to
be present, as advisors to the Friends.
During the Friends of the Co-Chairs meeting, a group of six major
biotechnology companies presented their proposal of a contractual
compensation agreement (a "Compact"), which they claimed is intended to
provide an alternative to the compensation funds and financial security
requirements under discussion in the liability and redress negotiations.
The Compact documents threatened that if the fourth MOP does not support
their proposal as an alternative, the companies may decide to withdraw their
offer.
The Compact is an agreement among its corporate members to provide recourse
for "actual" damage to biological diversity if their products are the cause.
The terms and conditions, and its governance are defined by the members of
the Compact. States become "third party beneficiaries" if they consent, and
if their claim is allowed.
Many delegates expressed serious concerns at the industry initiative. The
Compact is proposing to redefine the roles of States and the corporations.
The corporations are attempting to create legal rights and obligations, and
States are allowed, as third parties, to attempt to enforce those rights.
Non-governmental organizations strongly condemned the industry initiative,
as an "empty gesture" aimed at undermining the liability and redress
negotiations.
An NGO statement said: "The industry would become at the same time defendant
and judge of the liability claims for damage", and the privatization of
international law would set "a bad precedent within the whole UN system".
The NGOs called for the Compact to be "dismissed with the contempt that it
deserves".
At the end of the Friends of the Co-Chairs meeting in Bonn, some progress
had been made to reduce the voluminous negotiating text, but delegates
braced themselves for gruelling negotiations during the week of the MOP
itself. A "Contact Group" on liability and redress began meeting on the
first day of the MOP, and continued meeting throughout the week.
The liability and redress negotiations dominated the entire MOP discussions.
The discussion at the Contact Group began with the nature of the liability
and redress regime. This issue had dogged the negotiations throughout; due
to this unresolved issue – whether the instrument or parts of it should be
legally binding – many of the discussions on the substantive issues were
inconclusive.
Most developing countries, and two developed countries, supported a legally
binding liability regime, including civil liability. One grouping supported
a legally binding administrative approach. A few delegates were opposed to a
legally binding regime.
Early in the week, the Contact Group also continued to work on reducing text
options, and completed this task. However, the opposing views on the nature
of the liability and redress instrument that were now finally clearly
articulated, continued to cast its shadow over the negotiations. The
discussions had come full circle, and a deep chasm was visible.
The process then saw the emergence of a group of like minded friends
"representing those countries whose position is that an international
instrument on liability and redress should have binding elements on civil
liability".
On Tuesday, the second day of five-day MOP meeting, the Like Minded Friends
(LMF), led by Malaysia, put forward a proposal to break the impasse. The LMF
group currently comprises around 80 developing country Parties (including
all members of the Africa group) and Norway, The number of countries signing
up to the LMF continued to climb during the week.
The LMF proposal wanted the legally binding instrument to include three main
elements: (1) preserving the right of Parties to put in place domestic laws
and policies on civil liability and redress which should include elements as
stipulated in guidelines to be negotiated; (2) provisions for the reciprocal
recognition and enforcement of foreign judgments; and (3) a clause to review
the guidelines no later than three years after entry into force of the
liability and redress instrument, with a view to consider making them
binding.
It was a heavily compromised proposal, since most developing countries and
Norway have been behind a strong binding civil liability regime throughout
years of negotiations. However, given the divide, the compromise was put
forward in order to bridge the opposing positions.
Two countries registered their opposition to the LMF proposal.
Veiled threats to resort to a two-thirds majority vote to adopt the
liability and redress instrument by amending the Biosafety Protocol, and to
request the countries which opposed the proposal to leave the discussion as
they were not going to ratify the liability and redress instrument anyway
were made. Currently, there are 147 Parties to the Biosafety Protocol.
Two-thirds of that figure is 98.
(During negotiations in Working Group II of the MOP under "Assessment and
Review", New Zealand, and immediately supported by Brazil and Japan
attempted to introduce the following text: "There is no need for amendments
to the Protocol or annexes or to alter compliance procedures at this time".
New Zealand further clarified that the proposal was in the context of the
medium term programme of work which covers the fifth MOP. This was however
resisted by Zimbabwe, Belize, Norway and the EU, and their proposal was
eventually dropped.)
Later in the Contact Group, the Co-Chairs posed three questions: (1) were
there any objections to a legally binding administrative approach? (2) were
there any objections to an article that addressed civil liability in the
legally binding instrument? (3) were there any objections to a non-legally
binding instrument on liability and redress?
To question (1), two countries registered their objection. Consultations
were conducted between Peru and Paraguay, and the Co-Chairs. The two
countries later dropped their objections.
To question (2), one country registered its objection. Bilateral
consultations between Japan and the Co-Chairs were initially conducted,
after which Japan engaged in a bilateral consultation with members of the
LMF, facilitated by the Co-Chairs.
Many countries voiced their objections to question (3).
The bilateral consultations between Japan and members of the LMF were
particularly difficult, lasting until the early hours of the morning, and
for much of the next day. Civil society groups began to campaign against
Japan as the host of the next MOP. Signs declaring "Anywhere but Nagoya" and
"Japan – hostile host" were seen around the convention centre.
In the end, all concerns were accommodated, and an alternative text to the
LMF’s proposal on civil liability was introduced, and later incorporated
into the LMF’s proposal.
The discussion in the Contact Group then centred on whether the current
text, with the proposal of the LMF as amended, could be the basis for
further negotiations. It was stressed by the Co-Chairs that the negotiations
needed to continue in good faith, and that "nothing is agreed until
everything is agreed", as the draft text still contains many square brackets
(indicating no consensus).
It became clear that the final agreement would not be reached in Bonn, and
that further work was required later. Other components of the "package’
included guidelines on civil liability, a supplementary compensation scheme,
settlement of claims, and complementary capacity building measures.
A heated discussion ensued on this issue, and one delegation appeared to
have some difficulties with this proposed way forward. In the end, there was
agreement that the package could be the basis for further negotiations.
The delegation that in the end remained the most resistant put forward broad
caveats that caused many observers and delegates to question the sincerity
of their acceptance to negotiate on the basis of the "package".
The caveats included: that the final agreement must not legitimize
discriminatory trade practices and freeze current international imbalances,
must not result in barriers to trade or to the development of science and
technology, and should be placed in the context of sustainable development,
and the struggle to eradicate hunger and poverty.
One NGO commented that "Brazil almost torpedoed four years of negotiations
to create a legally binding regime to ensure compensation and redress for
damage caused by international trade in GMOs".
The final decision adopted by the MOP on liability and redress mandates a
"Group of the Friends of the Co-chairs" to meet for five days in early 2009,
and if deemed necessary by the Co-Chairs, to meet again for five days in
early 2010. Malaysia and Mexico offered to host the meetings, and Japan
offered financial support.
The timing of the two meetings is carefully scheduled to ensure that there
is a six month gap between the last meeting and the MOP 5 in Nagoya, Japan.
A six month rule on the communication of the instrument to Parties applies
to proposed amendments to the Convention on Biological Diversity, the
Biosafety Protocol, and to adoption and amendment of any of their annexes.
The composition of the Group remains the same as the Friends of the
Co-Chairs group that was originally agreed to in Cartagena. Other Parties
may participate, as advisors to the Friends, and the participation of other
observers in the meeting is at the discretion of the Co-Chairs.
Importantly, the Group will further negotiate international liability and
redress rules and procedures on LMOs on the basis of the text annexed to the
decision. This text contains the compromise package that was agreed to at
the end of the Contact Group. Many square brackets and alternative text had
also been introduced to the proposal by the LMF as amended.
The MOP adopted a total of 18 substantive decisions: a report of the
compliance committee; three decisions on handling, transport, packaging and
identification of LMOs; on the Biosafety Clearing House; capacity building;
notification requirements; socioeconomic considerations; cooperation with
other organizations, conventions and initiatives; public awareness,
education and participation; risk assessment and risk management; monitoring
and reporting; financial mechanism and resources; roster of biosafety
experts; assessment and review; subsidiary bodies; liability and redress;
and the programme budget. +