The Cartagena Protocol on Biosafety, commonly known as the Biosafety Protocol - so far the only Protocol adopted under the Convention on Biological Diversity - was adopted on the 28th January 2000 after almost six years of painstaking inter-governmental negotiation. The Biosafety Protocol establishes an international regulatory framework - mainly minimum standards to principally control the harm arising from the import1 of genetically modified organisms (GMOs) on the conservation and sustainable use of biodiversity and human health.
The Biosafety Protocol is a product of intense negotiation, late night and last minute comprises reached in Montreal between the main negotiating blocs, namely, the Miami Group representing the major grain exporting countries2, the European Union and the Like Minded Group - representing most developing countries3. Understandably, it contains many shortcomings and loopholes. Nonetheless, for the Like Minded Group, the Protocol vindicates their persistent demands for a specially tailored international environmental agreement that sets international minimum safety standards in order to regulate the trade in GMOs particularly in the face of increasing world trade liberalisation.
The Biosafety Protocol falls squarely within the category of the 20 odd Multi-lateral Environmental Agreements (MEAs) that have trade-related provisions. There is an inherent tension between the provisions of the Protocol and the WTO rules.
The Biosafety Protocol treats GMOs that are imported for planting in field trial experiments or commercial planting differently to those that are intended for direct use as food, feed and processing. The main reason for this, was to give in to the demands of the Miami Group that trade in the latter category of GMOs would not be impeded. In this regard, the Advanced Informed Agreement (AIA) procedure, the core regulatory mechanism of the Protocol applies only to the former category of GMOs and then only to the first shipment. It expressly does not apply to GMOs imported for use as food, feed and processing. What this means is that instead of a country of import receiving prior notification of the import in order for it to give its express consent before the arrival of the particular shipment, it will have to track and locate the shipment via the internet based Biosafety Clearing House.
In order for Parties to utilise this procedure, they would have to employ a full time phalanx of monitors and analysts to painstakingly read and analyse the information on the BSCH. This procedure assumes that the Party of import will have prior knowledge of the country of origin of the export in order for it to track and locate the particular shipment, without having to vet each and every exporter. How will countries in Africa fare? Will they be able to check each and every entry on the BSCH in order to avoid shipments slipping through the net?
Moreover, GMOs intended for use as food, feed and processing do not have to be clearly identified as such when being exported. All the exporter has to do, is identify the shipment as “may contain” GMOs4. The Miami Group vehemently resisted any attempts to impose clear identification requirements for GMOs that are traded for food, feed and processing. They feared that this would indirectly impose costly segregation obligations on them to segregate GM crops from non-GM crops at all stages of the production process and during shipment as well to avoid accidental trace contamination of non-GM grain shipments.
This situation will be reviewed within two years of the Protocol coming into force. But until then, and in the absence of “farm to the plate” identification and traceability5, the Protocol does not in fact uphold the right to know on the part of governments, farmers, processors and consumers about the products containing GMOs coming into their countries in order for them to exercise conscious choices.
The Biosafety Protocol is the first MEA to explicitly operationalise the precautionary principle. In fact the principle of precaution is mentioned throughout the Protocol6. In regard to import decisions, the Protocol states that the lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a GMO on biodiversity (also taking into account the risks to human health) shall not prevent a Party of import from taking a decision, as appropriate, with regard to the import of the GMO in question.
Does this provision allow a country of import to prohibit or restrict a proposed import on the basis of the precautionary principle? Especially where the country of import, after carrying out a risk assessment in accordance with the provisions of the Protocol, concludes that there remains a lack of certainty about the extent of potential adverse effects of the GMO in question, on the conservation and sustainable use of biodiversity, taking also into account the risks to human health?
Any country that is a member of the World Trade Organisation, is automatically bound by the so-called “package” of multilateral trade agreements which limit their right to restrict imports7.
The Protocol suggests that its provisions and those of the WTO Agreements should be “mutually supportive” - thereby sidestepping the highly contentious issue about the primacy of the Protocol vis-à-vis these Agreements. However, this raises the broader issue of the relationship between MEAs and the WTO rules.
At the 4th WTO Ministerial Conference in Qatar, WTO members decided to launch negotiations on the relationship between MEAs and trade rules. The first results of these negotiations will be presented at the next WTO Ministerial Conference in Mexico in mid 2003.
The Biosafety Protocol requires that 50 countries first ratify it before it can come into effect. To date, only 12 countries have ratified. Ratification, however, is only a first small step towards ensuring safety.
During the preparatory process for as well as at the upcoming World Summit on Sustainable Development to be held in JHB 26th August - 4th September 2002, governments should be called upon to:
The importance of protecting the status of MEAs from subordination to the WTO rules is best summed up as follows “what is at stake here is the very question of global governance, where the MEAs represent a rare and strategically important space in today’s international governance architecture to protect people and the planet. They must be defended and strengthened as a countervailing force to the World Trade Organisation (WTO) rules.”9
By Mariam Mayet - environmental lawyer currently working for Greenpeace International. This briefing has, however, been written in her personal capacity.
1 Article 1 sets out the objective as follows “In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of the Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account, the risks to human health, and specifically focusing on transboundary movements.”
2 The Miami Group was formed in Cartagena, Colombia mainly to block the inclusion of genetically modified agricultural commodities from the scope of the Protocol. The Miami Group was led by the United States and consisted of Canada, Australia, Argentina, Uruguay and Chile.
3 Argentina, Uruguay and Chile were part of the Miami Group. Mexico was part of the Compromise Group.
4 Article 18(2)(a).
5 Traceability is defined as the ability to trace GMOs and products produced from GMOs at all stages throughout the production and distribution chains. Apart from providing the possibility of withdrawing products, it is also important for meaningful labelling of GMOs. See http://europa.eu.int/comm/food/fs/gmo/biotech09_en.pdf.
6 See for example, the Preamble and Article 1 both refer to the precautionary approach contained in Principle 15 of the Rio Declaration. Annex III on risk assessment pertaining to the category of GMOs intended for import as food, feed and processing, and the decision-making provisions Articles 10(6) and 11(8), read together with Article 15.
7 These include the General Agreement on Tariffs and Trade (the GATT), the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) and the Agreement on Technical Barriers to Trade (TBT Agreement).
8 See for example, the African Model Biosafety Law drafted under the auspices of the Organization of African Unity-now called the African Union.
9 “Johannesburg Earth Summit must agree that the World Trade Organisation Rules will respect Multilateral Environmental Agreements” joint statement by: Friends of the Earth International, Greenpeace International, WWF International, Third World Network, Northern Alliance for Sustainability (ANPED) and Sierra Club-Press Release, 3 April 2002.