THE CHAIRMAN'S
NON-PAPER
The Chairman of the Extraordinary
meeting of the Conference of the
Parties has issued a draft proposal
for addressing the remaining
"essential core issues" of the
Cartagena Protocol on Biosafety in
the form of a Non- Paper. The
Non-Paper covers: the scope of the
Protocol; the application of the
Advance Informed Agreement Procedure
(AIA) to Living Modified Organisms
(LMOs) intended for direct use as
food or feed or for processing
(commodities); and the relationship
of the Protocol with other
international agreements
This briefing is a response to the
Non-Paper by Friends of the Earth
International, the world’s largest
network of grass-roots citizens and
environmental organisations with
members from 64 countries.
1. Scope of the Protocol
The Chairman proposes retaining
the scope of the protocol as set out
in Article 4 of the draft report, the
"Cartagena text"
(UNEP/CBD/ExCOP/L.2/Rev.1).
Friends of the Earth International
opposes this for the following
reasons:
GMOs "destined for Contained
Use"
The current Article 4(2)(b)
exempts transboundary movements of
LMOs destined for contained use.
However the current definition of
contained use, while attempting to
limit this to LMOs used within
physical structures, is inadequate
because the structures do not have to
be designed to limit contact with,
and impact on the outside
environment. The definition only
requires that the LMOs have to be
"controlled by specific measures".
This could mean that an LMO with a
so-called suicidal or "terminator"
gene (or another non
physical-barrier) intended for
growing in a physical structure, such
as a fenced field, would be excluded
from the entire provisions of the
Protocol.
The flawed definition of
"contained use" would also imply that
exporters could decide that their
product, although destined to be
released into the environment, does
not have to be notified under the AIA
procedure since it comes within the
contained use definition and is
therefore exempt from the Protocol
provisions. The shaky definition of
contained use creates a real "grey
area" between LMOs falling under the
Protocol and those which do not. This
would not only create confusion and
difficulties for implementation but
would also have profound implications
on agricultural economies and create
significant risks to
biodiversity.
Products derived from LMOs
("products thereof")
The current Article 4(1) excludes
products of LMOs - such as GM Soya
Cake or GM Maize Oil, or products
containing such ingredients - from
the Protocol and thereby may deny
information and the right to say no
to countries and people who wish to
avoid these products for biosafety,
health and precautionary reasons.
2. Commodities
The Non-Paper proposes that a
separate and weaker AIA procedure is
created for LMOs referred to as
"commodities" by changing the
Articles relating to AIA, information
sharing and the Annex on information
required in notifications.
Friends of the Earth International
opposes this for the following
reasons:
Twin-track AIA (Art. 9 bis)
There is no biosafety-based
justification for a "twin track" AIA
procedure, or for weaker requirements
for commodities. In practice it will
not always be possible to distinguish
between, for example, LMOs imported
for release into the environment and
LMOs imported as commodities. Both
can potentially present the same risk
to the conservation and sustainable
use of biological diversity if
released to the environment. In any
case, Article 10 already allows for a
simplified procedure in cases judged
to be safe, but, critically, it is
the country of import that makes the
decision.
Implicit consent (Art. 9 bis
(3))
Furthermore the proposed Article 9
bis
(3) would create a system
of implicit consent whereby if the
party of import does not respond
within the given time period of two
hundred and seventy days, implicit
consent is inferred. This would mean
that a transboundary movement could
proceed although the Party of import
has not given its consent. Since Art.
9
bis
does not even require
that the Party of import has actually
taken notice of the approval issued
by the Party of export, the proposed
fast-track procedure would mean that
transboundary movements could take
place without the Parties of import
knowing anything about it. Art. 9
bis
puts a disproportionate
burden on the importer which will be
particularly felt by developing
countries. This could well open the
floodgate for GMO exports along the
paths of least resistance and into
countries which have no domestic
legislation and the least capacity to
manage biodiversity impacts.
First transboundary movements
(Art. 5 (3))
Moreover, the fast-track procedure
proposed by the Chairman would only
apply to
first
transboundary
movements (Art. 5 (3) of the
Non-Paper). However, countries of
import may have very good biosafety
reasons to require notification prior
to every subsequent movement -
particularly in the case of imports
for use in research or trials, which
do not infer blanket approval.
Information requirements (Annex 1
B (new))
The proposed information
requirements omit key areas namely
suggested methods for safe handling,
packaging, labelling, monitoring
methods and contingency procedures,
for example.
3. Relationships with other
International
Agreements/Non-Discrimination
The Chairman proposes to delete
the current "savings clause" (Article
31) which in effect would give other
agreements, including trade
agreements concluded under the WTO,
precedence.
Friends of the Earth International
supports this.
The Chairman proposes new wording
for the Preamble which recognises
that "trade and environment
agreements should be mutually
supportive" and emphasises that "this
protocol and other international
agreements are of equal status".
Friends of the Earth International
supports this and would also add that
the Protocol should not be
subordinate to other agreements.
Finally the Chairman proposes a
new Article 8 (4)
bis
which
essentially sets out that Parties
should give the same treatment to the
"same type" of LMOs irrespective of
their "source". It is totally unclear
what "same type" means.
Friends of the Earth International
opposes both the proposed new
non-discrimination clause and the old
clause included in Article 22 on the
grounds that there is no need for any
such clause in a protocol dealing
with the protection of biological
diversity.
Contacts:
Dan Leskien or Liana Stupples at
the Hotel La Tour Centre Ville on 866
8861 or cell phone 1 514 239
4253.
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