biotech_briefing

special briefing - friends of the earth / royal society for the protection of birds

biosafety protocol update

Summary

Informal negotiations have begun on the Biosafety Protocol in Montreal. The key issues on the table are the scope of the Protocol, how the Protocol deals with ‘commodities’, the relationship of the Protocol with trade rules and the precautionary principle.

It was always clear that trade was going to be one of the most contentious issues to resolve but, as the formal talks are set to begin, it already looks like, by Friday, the EU could be caught between a rock and a hard place.

In order to protect the Protocol from being subordinated to trade rules it may have to bargain with the precautionary principle. However, the EU must not accept this ‘Hobson’s Choice’ and instead stand firm in its defence of biosafety and the public good.

Process Issues

Since Thursday 20 ^th January, delegations have been meeting informally to discuss negotiating group positions for the coming Extraordinary Conference of the Parties.

Most of these discussions have concerned reactions to the Chairman’s ‘Non-Paper’ that was released prior to this meeting. This ‘Non-Paper’ was an attempt to suggest a possible way that the most contentious issues (scope, commodities, and the Miami Group’s proposal to subordinate the Protocol to WTO rules - i.e the so-called ‘savings clause’) could be dealt with in the text.

As well as meetings within negotiating groups, there have also been bilateral meetings between delegations. For example, on Thursday, the US Government asked for meetings with Brazil, Mexico, Japan, New Zealand and Chile. This was probably an attempt (with the first four) to persuade those most likely to sympathise with the Miami Group position to ‘switch sides’. The inclusion of Chile in the invitation perhaps indicates that Chile – already a member of the Miami Group - is wavering.

On Saturday, the Chairman reconvened the ‘Vienna process’ where the 5 negotiating groups meet in plenary. It was agreed by all that the Non-Paper was a basis to continue discussions and that two ‘contact groups’ would be formed. These groups would be based on ‘clusters’ of current or proposed Articles that concern ‘scope’ and ‘commodities’. These two groups met on Sunday for initial discussions.

The Chair proposed a final cluster on the ‘savings clause’ but a contact group was not formed because of disagreement over the fact that the proposed cluster included the Articles on ‘socio-economics’, ‘non-discrimination’ and the precautionary principle. Such a cluster means that if the contact groups make progress on commodities and scope this will leave trade-offs to be made between precaution and the savings clause. This mixture of issues presents real political difficulties for the EU because it is where there is most disagreement with the Miami Group and also where the EU has made most political commitment, for example in the EU Environment Council Conclusions.

The Chair, the Miami Group and the EU seem keen to ensure that other aspects of the Cartagena draft text - such as the wording on liability and compensation - will be left alone.

Substance

The Non-Paper - A Mixed Bag

In political terms, the Chairman’s Non-Paper is essentially a 2-1 win to the Miami Group.

On the plus-side, the proposal on trade will eliminate the so called "savings clause" and so allow this protocol to protect Biosafety and work alongside other international agreements, such as those on trade under the World Trade Organisation (WTO), rather than be subordinate to them. The Miami Group will almost certainly reject the proposed changes.

On the minus side, however, the proposal creates a separate system for commodities, putting the burden on importers to alert themselves to new GMOs and giving them just one chance to say no within short time periods. Crucial to the proposal is that if importers do not respond in a given period then the exporter can proceed. Known as ‘implicit consent’, this is a major concession to the Miami Group.

This means that the bulk of GMO exports and imports (around 90%) will have weaker controls even though they may present an equivalent biosafety threat. This proposal favours the interests of GMO exporting countries (and the Miami group in particular) over those of the environment and people, particularly those in the developing world.

In response to the Non-Paper, the Miami Group has tabled its own proposal on commodities, which is little more than an information sharing process. The Like Minded Group has also tabled a proposal on commodities, largely based on the Chair’s ‘Non-Paper’ but requiring ‘explicit consent’ from importers.

The EU delegation seems to have accepted in principle that there can be two different processes for taking decisions on imports of LMOs for deliberate release and LMO commodities. The key question is whether the EU will make good on its commitment to help developing countries and support the Like Minded Group concerning ‘explicit consent’ for commodities.

A second minus is that the Chairman’s proposals on the scope of the Protocol would continue to exclude GMOs that are claimed to be for "contained use" or that are "products of" GMOs. This could mean that GMOs such as Terminator seeds and GM foods will not be controlled despite the risks they may present to agricultural economies, wildlife and consumers.

Precautionary Principle - In Jeopardy

Left out of the ‘Non-Paper’ but equally contentious is the status of the precautionary principle in the protocol.

The likely objective of the Miami Group is to delete any reference to the Precautionary Principle in the text, have a weak reference to the Precautionary Approach (perhaps in the preamble), and weaken any detailed description of what constitutes precaution to ensure that effective precautionary action cannot be taken.

The Miami Group fears that reference to the Precautionary Principle will give added weight to the argument (used by the EU and others) that the principle has become ‘customary international law’. Canada - in the hormone-beef case at the WTO - argued instead that "the ‘precautionary approach’ or ‘concept’ is an ‘emerging principle of law’ which may in future crystallize into one of the ‘general principles of law recognized by civilized nations’". Reference to the ‘approach’ in the Biosafety Protocol will further undermine the status that the ‘principle’ currently has.

In terms of the detail, Article 8.7 of the draft text currently describes how scientific uncertainty or lack of scientific consensus on potential impacts shall not prevent a country from prohibiting the import of an LMO. The Miami Group will attack this wording, either demanding full deletion (as they did in Cartagena), or modification to water it down.

Although the EU delegation is committed to the Precautionary Principle it will not commit to defending the current text of Article 8.7.

Authors:

Adrian Bebb ∓ Liana Stupples (Friends of the Earth)

Pete Hardstaff (Trade Policy Officer, RSPB)