Some key issues for MOP1
When the first Meeting of the Parties (MOP1) to the Cartagena Protocol on Biosafety takes place in February 2004 in Kuala Lumpur, many vital issues will be up for discussion and many important decisions will have to be taken. Lim Li Lin considers some of these.
IT is notable that the majority of Parties to the Cartagena Protocol on Biosafety (79, as of 16 January 2004) are developing countries, with the African countries being the largest majority, and Asia and the Pacific, and Latin America and the Caribbean following closely. No members of the infamous US-led Miami Group (also comprising Canada, Australia, Chile, Argentina, and Uruguay – the main producers and exporters of genetically modified organisms (GMOs) and their allies) which blocked progress throughout the Protocol negotiations and watered down the Protocol text, are Parties to the Protocol.
However, the Miami Group presence at MOP1 will undoubtedly still be felt quite strongly, and their views and position articulated and pushed (no less by the GM-industry lobby). The democratic style of UN negotiations permits all countries to participate actively in the negotiations, but only bars non-Parties from a vote (voting has rarely occurred in the CBD as the UN system generally prefers to operate by consensus). Nevertheless, this is surely a golden opportunity for countries which have demonstrated their commitment to the Protocol and to biosafety by becoming Parties to the Protocol, to move the Protocol forward in the best way possible.
Three meetings of the Inter-governmental Committee of the Cartagena Protocol (ICCP) have been held prior to the entry into force of the Protocol. Numerous technical and experts meetings have also been held on the Biosafety Clearing House (an Internet-based system of information exchange), capacity building, handling, transport, packaging and identification (Article 18), liability and redress, and compliance. The UNEP-GEF project for development of national biosafety frameworks is well in progress, with around 120 developing countries participating, and into the second round of sub-regional workshops.
Liability and redress
The issue of liability and redress was so contentious during the Protocol negotiations, that the compromise, in order to move forward and conclude a Protocol, was to postpone agreement on the nature and content of the liability and redress regime. The Protocol requires that MOP1 must adopt a process for the development of the liability and redress regime, and must try to complete this process within four years (2008).
The ICCP has recommended that an open-ended ad hoc group of legal and technical experts should be established to develop the liability and redress regime. This is important, as it means that the meetings to develop the liability and redress regime will be more open. Though the liability and redress discussions are legal in nature, the highly political nature of such negotiations requires a more open, transparent and participatory process.
The ICCP has also recommended that the terms of reference for this group be defined by MOP1. This will set the mandate and define the scope of work for the group. This will undoubtedly be the subject of serious and intense negotiations during the MOP.
The producer/exporter countries are adamantly against having a liability and redress regime, and argue that national product liability laws are sufficient for dealing with the hazards of GMOs. On the other hand, most developing countries argue that there can be no effective regulation of GMOs without a specific international regime on liability and redress which places the responsibility squarely on the shoulders of those who have produced, released and exported the GMOs.
Handling, transport, packaging and identification (Article 18)
In the final hours of the Protocol negotiations, serious disagreement on this provision nearly broke the negotiations for the second time. The Miami Group was unable to agree to allowing GM commodities (for food, feed or for processing – ‘LMO-FFPs’ in Protocol parlance) to be identified as such in shipping documents. It had already been agreed that living modified organisms (LMOs) – the term used in the Protocol – intended for contained use or for deliberate release into the environment (e.g. for planting or field testing) or any other LMO within the scope of the Protocol would have to be clearly identified as such.
The final compromise that secured agreement on the Protocol was to require that a particular shipment ‘may contain’ LMOs that are not intended for intentional introduction into the environment. The Protocol in Article 18 further stipulates that the MOP must take a decision on the detailed requirements in two years from the date of entry into force of the Protocol (2005).
A number of technical experts meetings have been held on this issue, and the discussions at the ICCP have been heated and difficult. At MOP1, a decision to establish an open-ended ad hoc group on identification requirements for LMO-FFPs may be taken. The terms of reference for the group will also be negotiated at MOP1.
A decision on handling, transport, packaging and identification for LMOs for introduction into the environment, for contained use or any other LMO within the scope of the Protocol, will also be negotiated. The main issue disputed here is whether commercial invoices are sufficient as documentation that should accompany such shipments, or whether at the international level, more responsibility must be placed on the exporter to notify the national regulatory authority according to the information specifications in the Protocol.
The unique identification system for transgenic plants that has been developed by the Organisation for Economic Cooperation and Development (OECD) may also be endorsed and incorporated into the Biosafety Clearing House that is managed by the secretariat of the Convention on Biological Diversity. Work in the area of unique identification for genetically modified micro-organisms and animals, is recognised as missing.
Moves to undermine the Protocol
In the meanwhile, 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.
The work of the 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.
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 in commerce 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’.
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.
These can clearly be seen as moves to undermine the Protocol, pre-empt the negotiations at MOP1 and to dictate national law. It assumes and asserts that an importing country does not require prior informed consent for all shipments of GMOs, and that a threshold for contamination has been set at 5%.
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.
Compliance
The experts meeting on compliance failed to reach agreement on this issue, and this lack of agreement has continued throughout the subsequent ICCP meetings. MOP1 will have to consider and approve the procedures and mechanisms to promote compliance with the provisions of the Protocol and to address cases of non-compliance. MOP1 will also have to elect a Compliance Committee to carry out these functions.
One of the main areas still disputed relates to the principle of ‘common but differentiated responsibilities’, which was enshrined in the Rio Declaration on Environment and Development. This principle is a fundamental recognition of the common responsibility of all countries to improve and correct the situation, but the responsibility of each country is proportionate to the economic resources it has, its stage of development, and the share of its historical contribution to the problem.
It is imperative that developed and developing countries are differentiated in designing a compliance mechanism. Lack of resources and capacity is a common reason for non-compliance in developing countries. It is also clearly necessary for a distinction to be made between cases of non-compliance by an exporter country (e.g. for failing to comply with the advance informed agreement procedure – the crux of the Protocol – of the importing country) and by an importer country (e.g. for failing to submit required information to the Biosafety Clearing House).
Another main area of contention is the trigger for a case of non-compliance, and whether when considering a case, information can be received from a source other than the Party concerned. It is still a matter of dispute as to whether any other Party or even the MOP can submit a compliance complaint, and whether any source other than the Party concerned may submit information, for example NGOs or even the Party that has made the compliance complaint.
The measures to promote compliance and address cases of non-compliance are also still the subject of dispute, with only ‘providing financial and technical assistance, technology transfer, training and other capacity building measures’ agreed, while cautions, publishing cases of non-compliance and suspending the rights and privileges of the offending Party under the Protocol remain in square brackets.
Therefore MOP1 has a very crucial role to play in setting up a compliance system that responds to the needs of biosafety and, in particular, the needs of developing countries.
Lim Li Lin is a researcher with Third World Network.