The Cartagena Protocol - a battle over trade or biosafety?

The negotiations at Cartagena were doomed to failure, argues Lavanya Rajamani, given the backdrop in which they were conducted. While the US, as one of the biggest producers of bioengineered products, was determined to push them into the European and foreign markets without hindrance, the EU, as a result of consumer pressure and concern, was keen on broadening the grounds on which states could impose restrictions on such imports. The real battle was over trade, not biosafety.

REPRESENTATIVES from over 138 countries around the world met in Cartagena, Colombia in mid-February to bring to close years of discussions on an international legal framework to ensure biosafety in the transboundary movements of genetically engineered organisms.

The much-awaited Cartagena Protocol on Biosafety was, however, not to be. A group of six agriculture-exporting countries (Argentina, Australia, Canada, Chile, the USA and Uruguay), the Miami Group, in a clearly calculated move sabotaged years of incremental and hard-won international progress on the issue. Trade and industry interests clearly ruled the day so much so that frustrated delegates from the developing world could be heard muttering that the negotiations at Cartagena were on 'Biotrade' not Biosafety. With some justification - four days after the scheduled end of the Conference, exhausted and bleary-eyed delegates were still behind closed doors hammering away at the few remaining bones of contention, the elements in the draft negotiating text of the protocol that could seriously affect free trade. They emerged at 4 a.m. on the fifth day only to declare that 'no consensus could be reached,' a statement that in its seeming neutrality cleverly hid the blatant subordination of the environmental interest to the economic one that lay behind it.

The Convention on Biological Diversity, adopted at Rio in 1992, authorised Parties to consider the development of a protocol 'in the field of safe transfer, use and handling of living modified organisms (LMOs) that may have an adverse effect on biodiversity.' Since the landmark 1992 Convention, the international community has considered the issue of biosafety in a series of high-level conferences and meetings, scheduled to result in the Biosafety Protocol in February 1999. The draft negotiating text of the Protocol aims to control the potential risks to biodiversity from the movement of LMOs across borders by instituting a system of information sharing on traded LMOs. It permits countries to prohibit imports of LMOs, where necessary, to ensure biosafety. Every import covered by the Protocol also needs advance express consent.

The main players in the biosafety process are the Miami Group, the EU and the 'like-minded.' The Miami Group, a group of grain exporting countries, called as such because of a meeting held in Miami between them, represent one end of the spectrum. Seriously concerned with the trade implications of various provisions in the Protocol, they maintained hardline and inflexible positions on most issues. The US-led Miami grouping lurking in the background in earlier meetings came out as a distinct interest-based alliance in Cartagena. The unceremonious departure of Argentina, Chile and Uruguay from the ranks of the G-77/China (the conventional developing country alliance) in furtherance of their trade interests suggests that economic imperatives have diminished the value of drawing interest lines based on traditional North-South categories. A strong and mutually supportive relationship seemed to exist between the Miami Group and the industry lobby, represented at Cartagena by the Biotechnology Industry Organisation, so much so that a document circulated by the organisation containing elements essential to a successful Protocol read like the Miami Group position paper.

The 'like-minded,' a large group of developing nations, formed spontaneously after the exit of Argentina, Chile and Uruguay from the G-77/China. The 'like-mindedÕ represent the other end of the spectrum. Fearing a major loss of biodiversity and income from the replacement of traditional farming methods by genetically engineered crops, the 'like-minded' argued for a strong and all-encompassing Biosafety Protocol. The 'like-minded' found strong support in the environmental non-governmental organisations (NGOs) present at Cartagena including the Worldwide Fund for Nature (WWF), Third World Network and Greenpeace.

The EU, due to growing public disquiet in Europe over genetic engineering, purported to take the middle ground on some issues but in the final hours of the negotiation was prepared to accept weaker provisions. This was still unaceeptable to the Miami Group.

The key issues

The intractable conflicts and certainly the deal-breakers in the negotiations in Cartagena centred on those aspects of the draft negotiating text that implicated trade interests. In the final hours of the negotiation delegates considered two key issues - the scope of the Protocol and the relationship of the Protocol to other international agreements. The grain-exporting Miami Group sought to limit the scope of the Protocol to LMOs destined for deliberate release into the environment, excluding LMO-based agricultural commodities, such as those intended for food, feed and processing, and products of LMOs. They feared that in its capacity to create serious paperwork requirements, extension of the Protocol to products of LMOs and LMO-based agricultural commodities would seriously hamper and delay trade in LMO-based agricultural commodities. So insistent were they on limiting the scope of the Protocol that delegates could be heard joking that the result, once various exclusions were accommodated, would be a Cartagena Protocol on animal vaccine.

The Miami Group also strongly supported the inclusion of a provision in the Protocol that would, in effect, elevate World Trade Organisation (WTO) rules above those of the Biosafety Protocol. They were motivated by concerns that the Biosafety Protocol could be used as a protectionist device to favour domestic LMOs over foreign ones. The majority of the nations, however, sought to delete this provision. They believed that a provision privileging other 'international agreements' (read WTO) could handicap governments seeking to protect their consumers and biodiversity from questionable LMOs.

Though the trade interest driving the process revealed itself in all its complexity and magnitude only towards the very end, it cropped up and engendered polarised positions even earlier in the process. The discussions on the need to address 'non-discrimination', insert the precautionary principle and take into account socio-economic considerations in the Protocol were also shaped by the trade agenda.

The pro-trade lobby ensured that a provision obliging parties to 'non-discrimination' between imported and domestically produced LMOs, one of the pillars of the WTO, made its way into the draft Protocol. This, if retained, will be a significant win for the pro-trade lobby as it would commit even non-Parties to the WTO, such as China, to the principle of non-discrimination with regard to LMOs.

Even the discussions on the precautionary principle, that would enable countries to take measures under the Protocol in the face of scientific uncertainty, implicated the trade concern. The Miami Group, concerned that the 'precautionary principle' could be used to legitimise the creation of trade barriers, resisted its inclusion in any operative part of the Protocol. There is a history to this concern. In 1989 the EU sought to ban synthetic hormone-treated beef from entering its borders only to be faced with a WTO challenge by the US and Canada. The EU justified its ban on the basis of precaution and the US its opposition on the basis of scientific uncertainty. Without rejecting the precautionary principle, the WTO dispute panel upheld the US position and required the EU to produce scientific evidence to justify its ban. This essentially left the issue open for debate and certainly the EU and US chose Cartagena as one of the battlegrounds.

Another contentious terrain at Cartagena was a provision enabling countries to take socio-economic considerations into account in taking import decisions under the Protocol. As the social and economic welfare of societies in developing countries is inextricably linked to the maintenance of biodiversity, most developing countries were keen to see this provision included in the Protocol. India's stance on terminator technology, genetic engineering that renders seed sterile, is a case in point. Terminator technology, in forcing farmers to buy new seed every year, impoverishes and disempowers them. The Indian government, fearful of the socio-economic consequences of such technology, recently introduced a complete ban on the entry of terminator genes and technology into India. The pro-trade group, however, concerned that countries could arbitrarily use ambiguous 'socio-economic considerations' to undermine scientifically credible risk assessments and create trade barriers, advocated a rider in the article obliging parties to only take import decisions consistent with their international obligations. Such a provision would in effect subject socio-economic-considerations-based import decisions to WTO requirements.

The politics of biotrade

In the final hours of the negotiation, when no agreement seemed possible, the Miami Group suggested that the negotiations be extended by a period of 18 months. Though this 18-month suggestion was not adopted in the final decision to extend negotiations, it is certainly a telling suggestion. Little, if any, progress is likely to result in the space of 18 months on issues that have eluded resolution for over 3 years. What is however likely to exist at the end of 18 months is a reviewed WTO Agreement on Agriculture, an issue due for discussion in the proposed millennium round of WTO negotiations. While some degree of overlap between the environmental and trade regimes is inevitable, it is indeed disturbing that certain countries believe resolution of environmental questions is better left to trade rather than environmental fora.

Perhaps the negotiations at Cartagena were doomed to failure given the backdrop in which they were conducted. The battle lines between the key players had been drawn even before the parties arrived at Cartagena and the battle was over trade not biosafety.

The US, the driving force behind the Miami Group, is the world's largest producer of bioengineered crops and biogenetic pharmaceuticals. It exports $60 billion of agricultural products a year. It is currently engaged in a trade war with the EU over bananas and is poised to impose 100% tariffs on $520 million worth of products exported by the EU, including Scottish cashmere, Italian ham and German coffee.

A WTO dispute settlement panel has since ruled that the EU banana import regime is indeed WTO-inconsistent. However, the damage suffered by the US was assessed by the panel at $191 million, rather than the $520 million claimed by Washington. It has a history of bad blood with the EU over trade in genetically engineered goods, the beef hormone case being an example.

The EU, due to consumer pressure after the beef hormone case, is keen that the provisions of the existing WTO sanitary and phyto-sanitary agreement be re-examined and broadened to enable restriction of imports based on science plus socio-economic and environmental factors (rather than merely science as currently provided).

The EU is looking for greater flexibility on import decisions on genetically modified and hormone-produced foods while the US is looking to limit that flexibility to further its trade interests. Melinda Kimble, the US Under Secretary of State, clarified the US position: 'We are the largest producer of biotech products...and we have a very big stake in ensuring that trade in these products continues ... Trade liberalisation is a priority for the US, ensuring that we do another round in the new WTO agreement is a priority for the US. Building a free trade agreement in the hemisphere is a priority for the US.... rule-based trade has got to be part of our agenda, and we have to balance the environmental concerns that evolve out of this kind of process.'

It is ironical, however, that the US should spout this free trade mantra at an environmental negotiation. The US does not fight shy of imposing unilateral trade sanctions on developing countries based on environmental considerations.

The US embargoes on Mexican tuna caught using purse-seine nets that involve a high incidental taking of dolphins; and on shrimp caught in countries (India, Malaysia, Pakistan and Thailand) that do not mandate turtle-excluder devices on the fishing vessels are cases in point. In both these instances, when the WTO dispute panel ruled against the US, the US vowed to protect its environmental interests and standards at all costs. Its insistence on advocating environmental concerns in the trade arena and trade interests in the environmental is certainly curious if not downright suspect. At its root may lie the bitter truth that where the environmental issues at stake are domestic in nature, most industrial countries do not need international environmental agreements to protect their environments, most developing countries do. The industrial countries do, however, need international agreements to ensure market access to world economies. ' (Third World Resurgence No. 104/105, April/May 1999)

Lavanya Rajamani, B.C.L (Oxon), LL.M (Yale), is a Doctoral Student at Oxford University, and Project Director of Global Environment and Trade Study, Yale Center for Environmental Law and Policy, and Writer/Editor for the Earth Negotiations Bulletin.