Delayed, but better, Biosafety Protocol

Delayed, but better, Biosafety Protocol

Looking back, it is clear that the collapse of the biosafety negotiations in Cartagena was a blessing in disguise. The growing strength of public concern in the interim, as a result of mounting scientific evidence of the hazards of genetically engineered crops and foods, made possible the conclusion of a more satisfactory Biosafety Protocol at Montreal.

By Chee Yoke Ling

WHEN, in February 1999, the United States and its five other members of the Miami Group (Canada, Australia, Argentina, Chile and Uruguay) brought international negotiations on the Biosafety Protocol to a standstill, it was in one sense a victory for biosafety.

As one delegate said in the early hours of the morning when more than 130 countries agreed to suspend negotiations in Cartagena, ‘It is better to have a stronger Protocol in the future than to settle for an unsatisfactory solution and a weak Protocol.’

The Miami Group had wanted to block the inclusion of genetically engineered (GE) agricultural commodities in the Advance Informed Agreement (AIA) procedure proposed by the draft Protocol. This would have required exporters to firstobtain the express consent of an importing country, after risk assessment is done, before shipping any genetically engineered organisms (GEOs) to that country.

Developing countries insisted that all seeds must be covered by the AIA. ‘A seed is a seed. Whether it is for planting or processing, it will enter into the environment. It will also have health impacts,’ said Tewolde Egziabher, spokesperson for the Like-Minded Group of more than 100 developing countries.

Delegates had arrived in Cartagena at the same time that the story of the UK’s Dr Arpad Pusztai hit the international media. The fact that he was persecuted for publicising the health hazards of GE potatoes in experiments with rats was as much news as the scientific findings.

Since then, there has been mounting scientific evidence of the dangers from GE crops and foods, doubts about supposed higher yields, growing public awareness in more and more countries, and revelations of flawed approval/regulatory systems in major producer countries, particularly the US.

By the time governments reconvened in Montreal in January, there was a strong political momentum for the Biosafety Protocol.

Thus it was that almost a year later after Cartagena, on 29 January of the first year of the new millennium, the Cartagena Protocol on Biosafety was adopted by more than 130 countries.

The merging of public outrage and scientific evidence set the stage for the global agreement to be concluded.

A decade’s journey

The battle for a global legal agreement on biosafety started in 1990/1 when the UN Convention on Biological Diversity (CBD) was being negotiated and Malaysia introduced the biosafety issue to ensure that conservation and sustainable use of biodiversity would not be threatened by genetic engineering and GEOs. After massive resistance and intense debate, particularly from the US, a provision was successfully included to formulate such an agreement. However, the need for a Protocol had to be established first.

(The term ‘living modified organism’ used in the Convention and now in the Protocol, was adopted at the insistence of the US, designed to avoid treating GE organisms as a separate category of organisms with potentially distinct impacts.)

A number of developing countries, armed with critical information on potential problems of genetic engineering, were then instrumental in getting enough support to start negotiations on an international Biosafety Protocol. This coincided with the emergence of scientific evidence on the potential hazards on biodiversity, the environment and human health caused by GE crops, foods, vaccines and materials for environmental clean-up.

After further resistance from a handful of developed countries, mainly the US (the largest commercial producer/exporter), the Conference of the Parties to the CBD finally mandated the negotiations of a legally binding international Biosafety Protocol at its 1995 meeting in Jakarta, Indonesia.

In 1998, the US led Canada, Australia, Argentina, Chile and Uruguay into forming the Miami Group with the specific objective of excluding agricultural commodities from the scope of the Protocol. These were referred to in the agreement as LMOs for ‘food, feed and processing’ as opposed to those for deliberate introduction into the environment (e.g. seeds for planting or genetically engineered soil bacteria).

In February 1999, when negotiations were targeted to conclude in Cartagena, Colombia, the Miami Group stymied the talks, basically on this point.

The inter-governmental Biosafety Working Group met for the sixth and last time from 14 to 22 February in Colombia.

Entrenched and deeply divided positions (with the Miami Group essentially not wanting any Protocol at all) led to a stalemate. The Working Group chairman, Veit Koester of Denmark, issued his own Chairman’s Text by pulling together what he considered to be a compromise. All delegations expressed their dissatisfaction with the process and the parts of the content not to their liking.

The Working Group, which had worked since 1995, was dissolved on 22 February, and the Extraordinary Meeting of the Conference of the Parties was constituted to take over the negotiations. This was chaired by Colombian environment minister, Juan Mayr Maldonado, since Colombia was host of the meeting. From then until dawn of 24 February, talks essentially centred on the issue of agricultural commodities, which the draft text had excluded. While countries could still take national actions, there would be no international framework to deal with this category of GEOs.

The Like-Minded Group of developing countries refused to accept the exclusion of commodities. It was precisely to establish an international obligation on exporters to obtain prior informed consent that a Protocol was sought.

A compromise by the European Union to include commodities but to deal with the issue only after the entry into force of the Protocol, was also rejected by the Miami Group. The insistence by the Miami Group that the Protocol be subordinated to trade agreements under the World Trade Organisation also contributed to the breakdown of the negotiations.

In the end, the Extraordinary COP meeting was suspended. The Like-Minded Group officially put back on the negotiating table its list of issues, many of which it had been willing to surrender in order to bring the Miami Group on board the Protocol process.

Informal talks were then held in September 1999 in Vienna, under the chairmanship of Minister Mayr of Colombia. The stalling of the biosafety negotiations because of trade imperatives had frustrated many countries, with some indicating that the Miami Group should not be allowed to hold the world to ransom. The September informal meeting of biosafety negotiators saw a stronger commitment from European countries (due largely to public pressure and developments within Europe such as the moratorium on new GE crops), with the Like-minded Group remaining a united front.

Three core issues were identified and isolated to be resolved before proceeding to other areas of contention. These were: general scope of the Protocol; scope of the application of the Advance Informed Agreement procedure; and the relationship of the Protocol with other international agreements.

Because the Miami Group had been identified, even by mainstream media, as the stumbling block to the Protocol, and because of increasing consumer pressure, it agreed in Vienna to consider including commodities in the Protocol. However, it was clear that the US and Canada wanted only general information to be posted (via the Internet) of GEOs approved for commercialisation.

It was also clear that the Miami Group wanted the WTO agreements to prevail over the Protocol.

Attempted WTO takeover defeated

With increasing consumer rejection of GE foods and the legal requirement for segregation and labelling in Europe, the biosafety issue has become embroiled with trade matters.

At the same time, the desire to conclude the Biosafety Protocol was also strong amongst both developing and some other industrialised countries.

Thus, it was not surprising that a few weeks before the November Ministerial Meeting of the WTO in Seattle, Canada proposed that a Working Party on Biotechnology be set up under the WTO. The US simultaneously proposed that procedures for decision-making and disciplines under the agriculture sector be examined ‘to ensure that trade in products of agricultural biotechnology is based on transparent, predictable and timely processes’. Japan proposed a forum to address biotechnology issues.

These moves were clearly designed to shift the international debate from the United Nations, where biosafety was being fought out on its own terms, to the WTO, where trade interests and rules would dominate. If those countries had succeeded, they would have paralysed the Protocol process and put biosafety squarely at the mercy of trade interests.

NGO protests and vehement rejection by developing countries blocked the move from the start when the proposals were tabled in Geneva.

Third World Network and the Centre for International Environmental Law prepared detailed assessments of the implications of the US-Canada-Japan initiatives and disseminated them to WTO negotiators and officials in key developing countries. The wider NGO community was also alerted through the Internet, and Northern NGOs in turn galvanised their constituencies.

Protests grew, and this controversial issue became one more strand that broke the Seattle WTO meeting. A number of European environment ministers flew out to Seattle, voicing their objections and openly disagreeing with the European Commissioner for trade who was prepared to concede to the US-Canada-Japan proposals as part of a trade-off on other issues.

The failure to set up the WTO working group on biotechnology and the unprecedented civil society scrutiny of the Seattle meeting were a boost for the resumed Biosafety Protocol negotiations in Montreal in January 2000 which finally saw the adoption of an agreement.

Chee Yoke Ling, a former university law lecturer, is an Environment Representative of the Third World Network.

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