Cartagena Protocol on Biosafety

Submission of the Government of Australia

Request for information regarding experience in the implementation of the requirements of paragraphs 2 (b) and 2 (c) of Article 18

Australia is not a party to the Protocol and therefore has not implemented these requirements as a party.  However, implementation of these requirements by parties to the Protocol that also import Australian agricultural commodities mean that Australian agricultural exporters will need to comply with the requirements of the Protocol as transposed into the domestic law of these parties in order to maintain or gain new market access.

Australia notes that very few countries have implemented obligations under the Protocol, and in particular in relation to documentation requirements.  Discussion of such issues as unique identification, co-mingling of living modified organisms (LMOs) with non-LMO shipments, and any possible relevance of Article 17 (Unintentional movements) are premature.

Australia is of the view that the Open-Ended Technical Experts Group (Open-Ended TEG) should take into account the extensive work already undertaken on this issue, as outlined in the chapeau of the decision BS-I/6 taken at the first meeting of the Parties (MOP-1). 

In this context, Australia supports the recommendations of the most recent Meeting of  Technical Experts on the Requirements of Paragraph 2(a) of Article 18 (March, 2002).  Australia believes this document should form the basis for further work.  However, this does not imply that such documentation is necessary to achieve the objectives of the Protocol.

Australia welcomes the reference in the Executive Secretary’s information note to the June 2004 WTO Trade and Environment Committee to the trade implications of decisions taken at MOP1.  In that note he wrote that in order to avoid unnecessary burden to exporters, MOP1 in decision BS-I/6 had decided to integrate identification requirements for LMOs for feed, food and processing (Article 18.2(a)) in commercial invoices or other relevant existing documentation (para 27, WT/CTE/W/235, emphasis added).  Australia would like to encourage parties to the Protocol to take a similar approach in the implementation of documentation requirements for LMOs under the scope of Article 18.2(b) and 18.2(c).

It should be noted that the tonnage of international trade in LMOs under the scope of Article 18.2(b) and 18.2(c) is much more limited than the commodity trade under Article 18.2(a). In particular, trade that falls under Article 18.2(b) may represent a significant number of transboundary movements of a much broader range of LMOs than under Article 18.2(a), including non-plant LMOs.

It should also be recalled that:

• the documentation is not designed to be a tool for risk assessments. Such documentation is an inadequate basis for risk assessment.
• the documentation is not for a decision to allow importation, as this decision must take place before the first shipment as parties may carry out risk assessments prior to the first shipment in the case of LMOs under Article 18.2(c)  
• the documentation is a tool to provide importers with information to comply with their own country’s  implementation of the protocol.

Australia considers parties to the Protocol can implement their obligations under Article 18.2(b) and 18.2(c) in such a way that:

• will be minimally disruptive to trade by taking account of, and being consistent with, other international obligations, including under WTO agreements
• will not be unduly burdensome or costly to implement or understand, from both the export and import perspective
• will allow required information to be incorporated into existing accompanying documentation
• do not go beyond meeting the requirements explicitly set out in the Protocol
• do not cast the Protocol as an arbitrary thresholds-setting instrument, and
• avoid duplication of on-going work within existing international organisations such as Codex Alimentarius, International Plant Protection Convention (IPPC), and the Office International des Epizooties (OIE) which develop standards on the basis of sound science.

Article 18.2(b)

In relation to documentation requirements under Article 18.2(b), the following information should be contained on existing documentation, which could include, inter alia, bills of lading, letters to the recipient:

• a statement to the effect that the LMOs are destined for contained use
• any requirements for the safe handling, storage, transport and use, and
• a contact point for further information, including the name and address of the individual and institution to whom the LMOs are consigned.

Any requirement beyond these would be neither simple nor practical to implement and would impose a significant additional burden on importers and exporters, many of whom in this case are researchers.

Article 18.2(c)

Prior to a transboundary movement of an LMO for intentional release into the environment, that movement should be consistent with the provisions of Article 7 (Application of the Advanced Informed Agreement Procedure).  In particular, Parties should have carried out a risk assessment as specified in Annex III prior to importation. Having already received a notification, according to Article 8, containing the information specified in Annex I, the importer does not need that information duplicated on documentation accompanying the LMO shipment.   

To meet the requirements of Article 18.2(c), the following information should be included on existing documentation, which could include, inter alia, a commercial invoice:

• a statement to the effect that the LMOs are intended for intentional introduction into the environment
• a statement to the effect that the material is an LMO and specify the identity and relevant novel or modified traits and/or characteristics
• any requirements for the safe handling, storage, transport and use
• a contact point for further information and, as appropriate, the name and address of the importer and exporter, and
• a declaration that the movement is in conformity with the requirements of the Protocol applicable to the exporter.