Biosafety Protocol Reaches Agreement on Documentation for GMO Shipments

Historic agreement on documentation for GMO shipments

Curitiba, 19 Mar (Lim Li Ching and Lim Li Lin/TWN) — Agreement has finally been reached on international documentation requirements for bulk shipments of genetically modified commodity grains.

After five days of intense talks under the Cartagena Protocol on Biosafety, there are now international minimum standards that will better protect importing countries, which will urgently need to put these standards into operation in their national biosafety laws, particularly if they are importing from non-Parties to the Protocol. The majority of the exporters of commodity grains are non-Parties, including the US, Canada, Australia and Argentina.

A decision was adopted that requires clear and detailed identification requirements for shipments of genetically modified commodities (known as "living modified organisms that are intended for direct use as food or feed, or for processing" (LMO-FFPs) in the Cartagena Protocol). A two-stage approach is set out for cases where the identity of the LMO shipment is not known.

In situations where the identity of the LMO is known through “means such as identity preservation systems”, the shipment must be identified as one that “contains” LMOs that are for direct use as food, feed, or for processing.

In cases where the identity of the LMO is not known through “means such as identity preservation systems”, the shipment can be identified as one that “may contain” one or more LMOs that are intended for direct use as food or feed, or for processing. This requirement is subject to review and assessment at MOP 5 (2010), “with a view to considering a decision” at MOP 6 (2012) to ensure that the shipment “contains” LMO-FFPs.

In both cases, the common, scientific and, where available, commercial names of the LMOs must be provided, together with the transformation event code of the LMO, or where available, the unique identifier code.

This two-stage approach was essentially a compromise position put forward by Brazil, although it was weakened from an interim period of 4 years to 6 years, when the “contains” requirement should come into effect. The language was also weakened from “with a view to adopting” to “with a view to considering” a decision. Nevertheless, and importantly, it is clearly stated that the final decision after the interim period is to “ensure” that the documentation “clearly states that the shipment contains LMOs that are intended for direct use as food or feed, or for processing”.

The Third Meeting of the Parties (MOP 3) to the Cartagena Protocol met in
Curitiba, Brazil from 13 to 17 March 2006. The main work of the meeting was about taking a final decision on the detailed requirements for how to identify and document shipments of LMO-FFPs.

Delegates and observers to the meeting heaved a collective sigh of relief when the decision was adopted at the final plenary, which closed at about 10 p.m. on Friday, 17 March after a nail-biting few hours when it was unclear if agreement would be reached or not. All other decisions on the agenda of the meeting had already been adopted earlier in the evening, and this issue was the final decision under discussion.

The Cartagena Protocol is an international law that regulates the transboundary movement of genetically modified organisms. It entered into force on 11 September 2003.

Article 18.2(a) of the Protocol deals with the detailed requirements in the documentation that should accompany shipments of LMO-FFPs. This same topic had been among the most contentious issues during the Protocol negotiations, and has repeatedly proven to be a major source of disagreement between exporting and importing countries.

During the Protocol negotiations, as a compromise in order to obtain agreement on the whole Protocol text, countries were forced to accept that documentation accompanying LMO-FFPs must clearly identify that a particular shipment "may contain" LMOs and is not intended for intentional introduction into the environment. This was a dilution of the original majority demand for shipments to be identified as "shall contain" LMOs which would then require exporters to segregate genetically modified commodities, and exporters would need to have an "identity preservation" system established to trace such commodities.

In deciding on the detailed rules to implement Article 18.2(a), the majority of Parties have always maintained that identifying a shipment as one that "may contain" LMOs is not sufficient. They argue that this poses legal uncertainty, as a shipment may or may not contain a particular LMO. Even if the term "may contain" is used together with the provision of a list of LMOs that could be in the shipment, this potentially means that an exporter could simply list a whole range of LMOs that may be in the shipment. Both scenarios will not allow for traceability, or for product recall or ascertaining liability in case it becomes necessary.

Most Parties thus wanted a decision on Article 18.2(a) to require that documentation accompanying shipments of LMO-FFPs clearly states that they contain LMOs and to also provide further details of their identity. In addition, they wanted an assurance that only LMOs approved in the importing countries are shipped out. These steps would help to ensure that the burden of assessing the LMO content of a shipment is placed on the exporter, not on the importer, many of which are developing countries that lack the necessary resources and regulatory and monitoring capacities. At stake is the right of importing Parties to know precisely what is entering their countries, and equity, in ensuring that the burden of obtaining information about the LMO-FFP shipments is placed on exporting, not importing countries.

In contrast, the major LMO-producing and exporting countries, such as the
US, Canada, Australia and Argentina, which are not, as yet, Parties to the
Protocol, wanted the "may contain" language to remain. This position means that shipments of commodity grains need not be segregated nor tested before leaving the country of export. Shipments of commodity grains can consist of mixtures of non-LMOs with LMOs, and different varieties of approved LMOs. Shipments can even contain unapproved LMOs, because of contamination by experimental LMOs which has happened before. "May contain" would simply mean business as usual and would allow genetic contamination to continue.

Many Parties were acutely aware of the importance of MOP 3 reaching agreement on Article 18.2(a), as negotiations had collapsed on this very issue in MOP 2 in 2005, because two Parties – Brazil and New Zealand – had blocked consensus then. The failure to take a decision at MOP 2 occurred despite Article 18.2(a) mandating a decision no later than two years after the Protocol’s entry into force (i.e. by September 2005). Parties were concerned that another failure to fulfill the mandate would not bode well for the future of the Protocol and its implementation.

New Zealand, which had blocked consensus on Article 18.2(a) at MOP 2, seemed to strike a more conciliatory tone in the Curitiba talks, although it remained insistent that the issue of thresholds and adventitious (or technically unavoidable) presence of LMOs not be discussed under Article 18.2(a). New Zealand was adamant that documentation requirements should only apply to the intentional, not actual (but unintentional), content of a shipment.

Brazil was under intense pressure to be flexible and to compromise, particularly as it was the host of the meeting. Domestically, commercial approval of genetically modified soya has meant that it needed to balance competing interests. Many civil society organisations, together with the Environment Ministry and a few other Ministries, wanted to see Brazil join the rest of the world in achieving consensus on Article 18.2(a) and to have a stringent position on the issue, including requiring that documentation accompanying an LMO-FFP shipment identifies that the shipment contains LMOs. Due to disagreements between the different ministries with a stake in the issue, the final decision was left to President Luiz Inacio "Lula" da Silva.

The Environment Minister, Marina Silva, announced Brazil’s position on national television on the first night of the meeting, with an official statement issued that same day (13 March). The Brazilian position comprised the following elements:

* the LMO-FFPs subject to trans-boundary movements must be approved both in the exporting and importing countries;

* the word "contains" should be used when there is identity preservation;

* a transition period of four years should be established to give countries time to implement identity preservation systems;

* in these cases, during the transition period, the expression "may contain" could be used, along with a list of the transformation events approved in the exporting country; and

* after the transition period, all transboundary movement of LMO-FFPs would use the word "contain" with the specification of the transformation events contained in the exported product.

Brazil articulated its position in proposed draft text, which it introduced to the Contact Group set up to further discuss Article 18.2(a), at the end of the Contact Group’s discussions on Tuesday night (14 March). The Contact Group had first met on Monday night, and was co-chaired by Francois Pythoud from Switzerland and Luiz Alberto Machado from Brazil. Discussions until then had merely been of a general nature, with Parties and non-Parties clarifying certain issues and trying to come to a more common understanding.

Brazil’s proposed draft text thus came at an opportune time, and when the
Contact Group met again on Wednesday afternoon, it decided to use Brazil’s proposal as the working document, over which negotiations on a draft decision would occur. Many Parties were pleased that Brazil had shown good faith and were willing to negotiate. The idea of a transition period in the
Brazilian proposal was a compromise, trying to balance the demands of exporting and importing countries, although many delegates and observers were unhappy with such an unnecessarily long transition period. But because
Parties were keen to secure agreement on this very important issue, most were willing to compromise.

However, during the Contact Group discussions on the draft text, Paraguay and Mexico did not agree to the text. In particular, Paraguay insisted that the "may contain" language be retained and that for it, "contain" was not an option. In addition, it proposed that in cases where "may contain" is used, no further details (such as the common, scientific and where available, commercial names of the LMO, and the transformation event code or where available, the unique identifier of the LMO, which was already agreed to at
MOP 1 as information that should be provided in the documents) would be provided apart from a declaration that the LMO-FFPs are not intended for intentional introduction into the environment.

Paraguay argued that if more information was needed, a Party could go to the Biosafety Clearing House (BCH) to get that information. In that respect,
Paraguay proposed that instead of Parties taking measures to ensure that documentation accompanying LMO-FFPs contain clear and precise identification requirements, that Parties and other Governments only be required to take measures to ensure that the BCH contains the detailed information.

Paraguay’s proposals provoked co-chair Francois Pythoud to remark at one stage that the Contact Group needed to move forward from the decision of MOP 1 on Article 18.2(a), and not backwards.

Mexico also proposed that by 2010, the MOP review the experience gained, instead of concretely shifting Parties’ obligations to ensure that documentation accompanying LMO-FFP shipments clearly identify that they contain LMOs, as articulated in Brazil’s proposal.

Text proposals were provided by countries (some of which were not discussed at the Contact Group meeting but submitted in writing) and a consolidated text with many square brackets was produced. Although Paraguay kept insisting that it had text to put on the table, it did not seem able to produce such text in a timely manner, leading co-chair Pythoud to remark several times that he had "already indicated that you write the text down and bring it here to the table".

Observers at the Contact Group noticed that there was frequent passing of papers and consultations between Paraguay and Argentina. Argentina is not a
Party to the Protocol and therefore could not effectively participate during the Contact Group negotiations.

A "Friends of the Chair" drafting group – comprising Brazil, China, Ethiopia, the EU, India, Japan, Malaysia, Mexico, Namibia, New Zealand, Norway, Paraguay, Peru, South Africa and Zimbabwe – was then set up to produce an agreed text.

The Friends of the Chair met on Wednesday night and continued negotiating all day on Thursday, 16 March. When they resumed again on Thursday evening, they were reminded of the importance of their work – the youth at MOP 3 held a large banner in front of the room where they were meeting, saying, "This document contains our future".

Negotiations continued in the Friends of the Chair throughout Thursday night. The group stopped work at 6subsection_370 a. m. on Friday morning with square brackets (indicating no consensus) still remaining in the text of the draft decision. Weary and tired delegates were frustrated that three Parties – Paraguay, Mexico and Peru – were blocking consensus.

There were two key issues of contention; the first was over the issue of the role of the BCH, with Mexico especially proposing that the detailed information be provided in the BCH, and not in the documentation accompanying the LMO-FFP shipments. Secondly, while there was agreement that a review of the experience gained with the implementation of the detailed requirements should be conducted at MOP 5, Paraguay was insisting that MOP 6 only "assess the feasibility of" adopting a decision to move the obligations to the "contain" language, instead of stronger language on adopting a decision. Peru was also still insisting on "may contain", and refused to accept "contain" as an option, even after an interim period of 6 years to implement the documentation requirements.

NGOs attending the meeting, outraged by the behaviour of Paraguay, Mexico and Peru in blocking consensus, carried out a silent protest on Friday morning outside the Working Group meeting room, holding up placards in English, Spanish and Portuguese, saying, "Paraguay, Mexico, Peru, the world will hold you accountable", reflecting the mood of many delegates.

Despite not sleeping at all, the Friends of the Chair resumed work at 10 a.m. on Friday to try and remove the square brackets. They were unsuccessful, and the Chair of the Working Group, Birthe Ivars from Norway, then decided to use her prerogative and proposed to submit an amended text on her own responsibility to the plenary, which deleted the paragraph dealing with the BCH and struck a compromise on the issue of the transition period, with language proposing review and assessment of the experience gained at MOP 5, with a view to considering a decision at MOP 6.

In a surprise move, Peru agreed with the consensus, and supported the amended text as proposed by the Working Group chair. Peru’s intervention was greeted by a long round of applause from delegates and observers to the meeting, who were happy that Peru had changed its stance from the previous night and was not blocking consensus anymore.

Mexico however remained intransigent, and objected to the Chair’s proposal.
Instead, it proposed that the whole paragraph dealing with the detailed requirements be now bracketed. Mexico wanted the specific information relating to an LMO to not be on the documentation, but merely in the BCH.
This drew reactions of angry surprise from other Parties, as that paragraph had already been agreed to during the long night of negotiations. Paraguay supported Mexico and also did not agree with the Chair’s proposal.

Despite these objections, a compromise text without square brackets was submitted as proposed by the Chair of the Working Group, for adoption by the plenary. During the plenary, New Zealand, allaying fears to the contrary, made a strong intervention reiterating its support for stringent bio-safety regulation and endorsing all aspects of the Chair’s proposed text. This was also greeted with a long round of applause.

However, Mexico proposed further substantive changes and amendments, agreeing to drop its insistence on a paragraph defining the BCH’s role, if it could weaken the paragraph on the detailed requirements, by "urging" Parties and "inviting" other Governments, instead of "requesting" and "urging" them respectively. This would have brought the decision below an already agreed MOP 1 decision on the issue, as pointed out by the EU.

Furthermore, in exchange for accepting the Chair’s proposal on the review at the end of the transition period, Mexico wanted to change agreed text that "may contain" does not require a listing of LMOs of species other than those that constitute the shipment, to read "Acknowledges that the expression ‘may contain’ does not require a listing of LMOs". This would have meant that where there is no identity preservation, there would have been no need to even list the possible LMOs in the shipment, that have at least been approved in the Party of export. Mexico also wanted a reference to Article 24 of the Protocol dealing with trade with non-Parties, to be added in the preamble.

To the relief of many delegates and observers, Paraguay was willing to accept the proposed text, if it could clarify some issues relating to identity preservation. The Chair of the plenary then invited Mexico, Paraguay, the EU and other interested Parties to hold consultations, with a view to resolving the remaining differences.

With Mexico being the only Party objecting to the draft decision, delegates were hopeful that agreement could be reached on Article 18.2(a). However, the plenary, which resumed at 710 p. m., had to endure suspense, as possible agreement was announced several times over the night, only to be undone at the last moment.

The final sticking point for Mexico was that the decision on Article 18.2(a) would commit it to obligations that went beyond its other obligations, e. g. the trilateral agreement on this issue that it has agreed with the US and Canada. To resolve this issue, Mexico and the EU finally agreed on text which noted Article 24 on trade with non-Parties, and further noted that the specific requirements in the paragraph dealing with the detailed identification requirements does not apply to such trans-boundary movement. This could be understood to be simply a restatement of Article 24 and a general principle of international law as clearly non-Parties cannot be bound by a decision of the Biosafety Protocol. However, the chapeau of the paragraph stipulates that the documentation must comply with the requirements of the Party of import, hence, Parties who are trading with non-Parties can still set up their domestic legislation to ensure that strict requirements are put in place, which will affect both Parties and non-Parties. In addition, another sentence was added to restate the provision in Article 24, encouraging non-Parties to adhere to the Protocol.

With that, the decision text was finally adopted amidst considerable applause.

The trade implications of these provisions need to be further examined, particularly in the light of the current push for bilateral free trade agreements by the US (a non-Party), and in the context of the WTO agreements and disputes, bearing in mind the recent interim decision on the WTO GMO case brought by the US, Canada and Argentina against the EU.

Other decisions were adopted by MOP 3, including on liability and redress; cooperation; operations and activities of the Bio-safety Clearing House; handling, transport, packaging and identification of LMOs destined for contained use and LMOs intended for intentional introduction into the environment; standards with regard to identification, handling, packaging and transport practices; risk assessment and risk management; capacity-building; monitoring and reporting; assessment and review; compliance; transit; and subsidiary bodies.


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