THIRD WORLD NETWORK BIOSAFETY INFORMATION SERVICE

24 March 2005

Dear friends and colleagues,

RE: NO AGREEMENT AT BIOSAFETY PROTOCOL EXPERTS' MEETING

Decision BS-1/6 of the First Meeting of the Parties (MOP 1) to the Cartagena Protocol on Biosafety established an open-ended technical expert group on identification requirements of living modified organisms that are intended for direct use as food or feed, or for processing (LMO-FFPs).

The expert group met in Montreal from 16-18 March 2005, where it was supposed to prepare a draft decision to assist the MOP in taking the decision as required in paragraph 2(a) of Article 18.

Article 18.2(a) deals with the identification requirements in the documents that should accompany shipments of genetically engineered commodity grains, known in the Protocol as LMO-FFPs. It was one of the most contentious issues to be discussed during the Protocol negotiations.

As a compromise, in order to obtain agreement on the whole Protocol text, countries were forced to accept that documentation accompanying LMO-FFPs must clearly identify that the shipment "may contain" LMOs and are not intended for intentional introduction into the environment. The documents must also provide a contact point for further information. The MOP must take a decision on the detailed requirements for this purpose, no later than 2 years after the Protocol's entry into force (i.e. by Sept. 2005).

Although the majority of countries favour clear, unambiguous and detailed identification of LMO-FFPs in a shipment, the expert group's meeting ended with no consensus on the text to be transmitted to the MOP, and disagreement over the process by which this text was developed and the form in which it would be transmitted.

A controversial "Revised Chair's text" will now be the basis for further negotiations on Article 18.2(a), and it is expected that countries will open up the text during negotiations on the issue in MOP 2, given that there was no agreement at the experts' meeting.

We are pleased to share with you a report on the outcome of the expert group's meeting. This report is based on an article first published in the South-North Development Monitor SUNS, #5766, Wednesday 23 March 2005.

With best wishes,
Lim Li Ching
Third World Network
121-S Jalan Utama
10450 Penang
Malaysia
Email: twnet@po.jaring.my

REF: Doc.TWN/Biosafety/2005/E

Environment: No agreement at Biosafety Protocol experts' meeting

Montreal, 18 Mar (Lim Li Lin and Lim Li Ching) -- An experts' meeting under the Cartagena Protocol on Biosafety to work out detailed requirements for documents that should accompany shipments of genetically engineered (GE) commodity grains ended without agreement and with a controversial "Revised Chair's text" as a basis for future negotiations.

While experts from the majority of countries wanted clear, unambiguous and detailed identification of the GE organisms in a shipment, and for this to be provided in a specific "stand-alone" document, a small minority group of countries that produce and export GE organisms blocked the consensus.

Even more troubling for the majority of participants was the practice of the Chair of the meeting, Francois Pythoud of Switzerland, to conduct bilateral consultations on his own second draft text of the meeting's conclusions (which many felt was skewed towards the minority's positions), instead of having the text debated by all parties in the open (which is the usual style in the Biosafety Protocol process).

At the end of the meeting, there was disagreement as to whether the controversial text, on which there was no consensus, could be transmitted to the next Meeting of the Parties (MOP) to the Protocol, as a draft decision of the experts' meeting. This was opposed by many participants, and in the end the text will be described as a "Revised Chair's text."

What troubled participants was the attempt to import methods used recently at the World Trade Organisation (of the Chair of a committee or Council conducting his own bilateral consultations and transmitting "Chairman's texts" on which there was little agreement to the next stage of negotiations) to the Biosafety Protocol process, which up to now has been characterized by much more transparent and participatory methods of work.
 

Experts from governments, non-governmental organizations and industry had gathered in Montreal on 16-18 March for a meeting of the 'open-ended technical expert group on identification requirements of living modified organisms intended for direct use as food or feed, or for processing.'

Its aim was to help the Parties to the Cartagena Protocol on Biosafety take a decision at the Second Meeting of the Parties (MOP 2) in May 2005, on the detailed requirements in the documentation that should accompany shipments of GE commodity grains. These commodities are known in the Biosafety Protocol as living modified organisms that are intended for direct use as food or feed, or for processing (LMO-FFPs).

This same topic had been among the most contentious issues during negotiations for establishing the Biosafety Protocol and was in fact the final issue to be decided at the meeting that adopted the Protocol in Montreal in 2000. The disagreements on it almost caused the negotiations to break down.

The Biosafety Protocol is an international agreement negotiated under the UN Convention on Biological Diversity which regulates GE organisms, and lays down detailed requirements to govern their transboundary trade and movement between countries.

The major exporters and producers of GE organisms and their allies, then known as the Miami Group (comprising the US, Canada, Australia, Argentina, Uruguay and Chile), had refused to put in place clear identification and documentation requirements for LMO-FFPs. This was because they did not want to impose segregation or identity preservation obligations, or require testing of commodity shipments of grain before they are exported.

In contrast, other countries take the position that the documentation accompanying LMO-FFP shipments are an important means of identifying and tracking their transboundary movement. They are a key element for importing countries to know whether they are receiving GE organisms in a shipment, and what types of GE organisms are contained in the shipment.

As a compromise, in order to obtain agreement on the whole Protocol text, the other countries were forced to accept that documentation accompanying LMO-FFPs must clearly identify that the shipment "may contain" LMOs and are not intended for intentional introduction into the environment. It must also provide a contact point for further information. The MOP must take a decision on the detailed requirements for this purpose, no later than two years after the Protocol's entry into force (i. e. by September 2005).
 

Five years later, it is apparent that positions have not shifted, and that the producing and exporting countries do not have the intention to properly identify their exports of GE commodity grains. At the Montreal meeting, although the majority of countries were insistent on wanting to move forward and work out the detailed requirements, the view of the powerful minority prevailed in the text prepared by the Chair.

The US, Canada, Australia, Brazil, Argentina, and Paraguay are some of the main producers and exporters of GE organisms. Only Brazil and Paraguay are Parties to the Protocol. New Zealand, which is a Party, does not commercially produce or export GE organisms but was a part of and one of the most vocal members in this grouping.

On the second day of the meeting, a first Chair's text, which was meant to help the experts prepare a draft decision for the next MOP, was tabled. Countries were given the opportunity to make their comments on the text.
 

The majority of experts, including those from Malaysia, India, Ecuador, Venezuela, Panama, Ukraine, Romania, the African Group, Norway and the European Union (who are all Parties to the Protocol) were clear that they did not want the "may contain" language to remain as it is. Some even asked for the paragraph which referred to this to be deleted.
 

However, the exporting countries want the shipments to continue to be labelled as "may contain" LMOs only, and they are prepared to label all shipments of commodity grains that are known to have GE varieties in commerce as "may contain".
 

This means that the exporting countries do not need to segregate and test their commodity shipments before exporting to other countries. Instead, this places the burden on importing countries to find out whether there are GE organisms in the shipment, and what types of GE organisms are contained in the shipment, and to conduct the tests themselves.

The position of some exporting countries is that the co-mingling that occurs in the storage and transport of grains between GE and non-GE varieties, and the contamination of non-GE by GE varieties in the field and during handling, do not need to trigger identification and documentation requirements, possibly even if the levels of contamination and co-mingling may be very high.
 

The first MOP (MOP 1) in Kuala Lumpur in February 2004 had, after difficult negotiations, provided further guidance in order to take the interpretation of the relevant Article in the Protocol forward. It encouraged Parties and other Governments to require exporters to declare unambiguously that their shipments contain LMO-FFPs (not "may contain"), if they are "known to intentionally contain" LMO-FFPs.
 

Thus, the majority of experts wanted the documents to clearly specify that a shipment contains LMO-FFPs, if it is known that they indeed do so.
 

MOP 1 had also specified that the information provided in all the documents should include the common, scientific and where available, the commercial name of the LMO-FFP, as well as the transformation event code and where available, the unique identifier code. This would provide as much information as possible about the LMO-FFP in a shipment.

However, the Chair's text only linked these information requirements with cases where shipments were "known to intentionally contain" LMO-FFPs, and not also with cases where some countries felt that the term "may contain" could be applied. Experts who were willing to accept the "may contain" language, in certain cases, argued that the information should be provided in both cases.
 

The MOP1 decision also considered the use of more detailed "stand-alone" documents in future, although commercial invoices or other existing documents were identified, in the first instance, as documentation that should accompany LMO-FFPs.
 

Again, most of the experts who expressed their strong preference for clear and detailed identification of GE commodity grain shipments were insistent on the necessity of a "stand-alone" document, except for the EU which was more concerned about the substance rather than the form.
 

A "stand-alone" document is seen by the majority of countries to be critical, in order for the competent authority responsible for biosafety to be able to gain access to and have oversight over the document. A "stand-alone" document would be clearer and more easily identifiable, while commercial invoices are also often confidential, and not accessible to the public.

Crucially, incorporating the identification requirements into a regular commercial invoice would mean that the information is only in a private, contractual agreement between the shippers, rather than explicitly governed by the competent national authorities on biosafety, who are guided by national biosafety requirements and the obligations of the Biosafety Protocol.

The revised Chair's text issued the next day (the final day of the meeting) was a great disappointment to the majority of countries. A number of experts from developing countries stated that the text was even worse than the Chair's first text.

In the most contentious parts and where there was little agreement (on "may contain" and "stand-alone" documentation), the revised text blatantly supported the view of the minority. The majority of countries were also unhappy about the text on other issues.
 

The meeting was delayed as the Chair consulted bilaterally with countries including Brazil, Ecuador, Ethiopia, the European Commission, India, Malaysia, Netherlands (on behalf of the European Union), New Zealand, Norway and Ukraine. The consultations with the Chair were conducted individually, with countries or clusters of countries holding similar views.

The rest of the experts were left to wait around during the consultations, and many expressed their unhappiness with the process. This process of exclusive bilateral consultations with the Chair was described by some of the experts who were involved as a "confessional" whereby the experts simply reiterated their views, while the Chair listened and sometimes defended his text.

This was reminiscent of methods that have been used during WTO negotiations (to the great unhappiness of many countries in the WTO negotiations), whereby countries find themselves negotiating with the Chair, rather than with each other, so that the Chair maintains a tight rein over the text.

At the conclusion of the consultations, the Chair announced in the plenary session that because views were so polarized and time was limited, he would not open the revised Chair's text for comments, and that the text would be transmitted to MOP 2 in May 2005, as a "draft decision" coming from the experts' meeting.

This led to an intense debate about whether a Chair's text could be submitted as a "draft decision", particularly when there was clearly no consensus on the text.
 

The exporting countries and their allies expressed how happy they were with the revised Chair's text, and that it was entirely appropriate for a Chair's text to be transmitted as a "draft decision", even though there was no consensus, as the mandate for the experts' group was to develop a draft decision to be considered by MOP 2.

However, the rest of the countries were adamant that there had been no consensus on the document, and that a revised Chair's text that had not been opened for comments and discussion could not be transmitted as a "draft decision" from the experts' meeting.
 

The expert from Ethiopia concluded that: "We have failed. Failure is reportable. We are requesting that the document informs MOP 2 that this group has failed".
 

In the end it was decided that the document would carry the sub-title "Revised Chair's text" and language "recognizing that this text does not represent consensus" would be included, and that the draft decision submitted to MOP 2 would "provide elements for further consideration".

Countries were then allowed to make general comments, flagging their main concerns about the text as it stands, which would be reflected in the report of the meeting.
 

This was not the ideal solution for many countries, as the revised Chair's text remains a severely unbalanced text that comes out in favour of the producer and exporting countries of GE organisms, whilst the views of the majority are not adequately represented in the text.
 

This was also observed by many experts, with comments such as, "Our general impression is that the most critical parts [of the text] do not reflect the majority of views", and observations that the text "does not support the majority of experts' views", and "reflects the views of a few only".

Many experts were bitterly disappointed by the outcome of the meeting, having hoped that such a clear mandate from the Biosafety Protocol itself to resolve this issue by September this year should have meant that quick progress must be made, as a decision needs to be taken by MOP 2, which is the only MOP that can adopt a decision before September 2005. So much so that a developing country expert said, "the text sets us back to a stage we thought we had surpassed in Kuala Lumpur".

It is anticipated that this issue will be the most difficult issue to be negotiated at MOP 2, and that a contact group will begin negotiating on the first day of the five-day meeting in May.