CARTAGENA PROTOCOL ON BIOSAFETY
Speech - Australia’s Position
The Biosafety Protocol - Biosafety and Trade in Living GMOs. Speech by Ralph Hillman, Australian Ambassador for the Environment, to the ABARE Outlook 2000 Conference, Canberra, 2 March 2000.
Introduction
The Biosafety Protocol was adopted on 28 January 2000 after almost five years of negotiation. It establishes the first international regime specifically dedicated to the environmental impact assessment of transboundary movements of living (genetically) modified organisms or LMOs.
Background
The negotiation of the Biosafety Protocol was mandated by the Convention on Biological Diversity. Negotiations commenced in 1995 and by 1998 positions had begun to polarise around the key issues of the treatment of LMO commodities and the relationship of the Protocol to other international agreements. At this time agricultural exporting countries, including Australia, began to caucus informally to ensure the interests of agriculture exporters were taken into account. This negotiating group became known as the Miami Group and in addition to Australia included traditional Cairns Groups allies Argentina, Canada, Chile and Uruguay and also included the USA.
Other negotiating groups included the Like Minded Group of developing countries, which wanted the Protocol to address their lack of regulatory capacity to assess the potential impact of LMOs on their environment. The European Union was another major group and saw the Protocol as a further opportunity to push its trade and environment agenda.
Australian Position
As one of the twelve mega-diverse countries in the world with a significant agricultural and trading economy, Australia’s negotiating position was informed by both environmental and economic interests. We sought to ensure that the Biosafety Protocol would be consistent with existing international rights and obligations, particularly under the World Trade Organization and would not limit Australia’s ability to protect its own biological diversity, public health and agriculture through its own regulatory framework for LMOs.
We were also mindful, subject to consumer attitudes, that LMOs are likely to comprise an increasing proportion of Australian agricultural trade in the future. We therefore sought to ensure the Protocol did not impose unnecessary additional requirements on Australian exporters of LMOs, nor on Australia as either an importing or exporting country. Furthermore, we were conscious that if our key trading partners become Parties to the Protocol, Australian trade in LMOs would be affected by the Protocol regardless of whether we became a Party.
Brief Overview
The Protocol establishes an international regime to ensure countries have sufficient information to make informed decisions on the environmental impact of transboundary movements of LMOs.
It is important to remember that the Protocol applies to living modified organisms such as seed, fish, trees, animals and commodities. The Protocol does not apply to processed foods derived from LMOs such as vegetable oils, peanut butter or corn flakes.
The key feature of the Protocol is a prior notification and consent regime for trade in LMOs for direct introduction into the environment (such as seed, fish, trees, animals). This involves the exporter notifying the importer of the first shipment of the LMO. The importing country would then make a decision on the import of the LMO on the basis of a science-based assessment of the risk to the environment. That is however only a small part of the overall trade in LMOs.
For the bulk of trade in LMOs, that is LMO commodities for food, feed or processing, there is no requirement for the exporter to notify specific shipments of LMO commodities. It will be sufficient for countries to have notified a Biosafety Clearing-House of their own approval for domestic release of LMO commodities that may enter international trade. Potential importing countries would receive forewarning of LMO commodities and be able to respond according to their domestic regulatory arrangements. Regulatory guidance is provided for certain countries that may not have such domestic frameworks in place.
For LMOs for direct introduction into the environment, the Protocol contains definitive documentation requirements, including identity specification and unique identification of the specific LMO. For LMO commodities, agreement was reached on an interim measure which would require shipments of LMO commodities to be identified in accompanying documentation as "may contain" LMOs and as not intended for intentional introduction into the environment. This requirement will take effect from the date of entry into force of the Protocol. The details of a definitive documentation regime for LMO commodities are to be negotiated no later than two years after entry into force.
Montreal
The negotiating environment for the final session in Montreal was markedly different from the meeting one year earlier in Cartagena. In Cartagena, negotiations were characterised by wide differences of view and broke down when the Miami Group, including Australia, refused to accept an outcome that required countries to sign on to an agreement whose core provision - the treatment of LMO commodities - was left to a subsequent decision by the Parties.
Montreal, on the other hand, was characterised by the willingness of the major negotiating parties to conclude the Protocol. The biotechnology industry in particular saw an outcome in Montreal as helping to reassure consumers that a global regulatory regime for LMOs was in place. This impacted on the negotiating stance of the major LMO exporters - Canada and the USA. For them a further delay in the negotiations may well have led to renewed protests against LMOs and would have been a further set back to consumer acceptance of biotechnology.
The negotiations in Montreal focussed on three issues:
- the treatment of LMO commodities;
- the relationship of the Protocol to other international agreements and the application of the precautionary approach; and
- documentation of shipments of LMO commodities.
Commodities
The first issue - commodities - was a key issue for the Miami Group which was concerned not to tie up global trade in agricultural commodities. Developing countries on the other hand wanted full exporter notification of each shipment of LMO commodities. The compromise - as described above - to notify potential shipments of LMO commodities via the Biosafety Clearing House avoided the need for shipment by shipment notification. It also recognised that it was neither feasible nor practical to apply the Protocol’s prior notification and consent regime to shipments of LMO commodities.
Relationship to other international agreements and the precautionary approach
A major issue for negotiation was the nature of the wording on the relationship of the Protocol to other international agreements and also the precautionary approach and its placement in the text of the Protocol.
The Protocol’s preambular statement of how the Protocol relates to other international agreement has led to some uncertainty as to how the Protocol will operate vis-a-vis the WTO when the Protocol comes into force. While our preliminary view is that any measure taken by a country under the Protocol must be implemented in ways that are fully consistent with that country’s obligations under the WTO, this issue will require further detailed analysis.
The outcome on the precautionary approach has also led to uncertainty. The EU succeeded in including precautionary language in the operational provisions of the Protocol. This language provides that lack of scientific certainty due to insufficient scientific information and knowledge shall not prevent a decision on the import of an LMO. Our preliminary view is that this is compatible with existing WTO rights and obligations that allow governments to take provisional sanitary or phytosanitary measures in cases of insufficient scientific information, as part of a science-based decision making process. This issue will also require further detailed analysis. In any case, we will need to remain vigilant to ensure that those references are not abused or misused to impose unjustifiable restrictions on trade in products of biotechnology and to weaken the current scientific basis of risk assessment.
Human Health / Socio-economics
Two related issues are the references in the Protocol to "risks to human health" and also "socio-economic considerations". There has been some concern expressed over possible ambiguities in the interpretation of the references to these issues. Our view is that the references to "risks to human health" and "socio-economic considerations" arise in the context adverse effects on the environment. "Risks to human health" should therefore be interpreted as risks to human health that arise from an adverse effect on the environment. Similarly "socio-economic considerations" should be interpreted as the socio-economic considerations that arise from an adverse effect on the environment. Furthermore, the consideration of these issues in decision making on imports of LMOs under the Protocol must be consistent with the importing country’s rights and obligations under the WTO.
Documentation
On the third issue - documentation - the definitive provisions for LMO commodities remain to be negotiated. The US, Canada and Argentina - the world’s major exporters of LMO commodities - focussed their efforts on avoiding an outcome on documentation that would impose significant and immediate costs on their exporters by requiring segregation and identity preservation of LMO commodities. The outcome on documentation, as described above, responds directly to those concerns.
Further work
Like the Kyoto Protocol before it, the Biosafety Protocol is incomplete and a number key issues for implementation have been left for further negotiation:
- A definitive documentation regime for LMO commodities;
- Standards for identification, handling, packaging and transport of LMOs;
- Liability and redress; and
- Compliance.
The time-frame for the negotiation of these issues varies.
Where to from here?
The text of the Protocol was adopted in Montreal and it will be open for signature from 15 May 2000 until 4 June 2001. It will enter into force following ratification by 50 countries and we estimate that this will take approximately two years.
The Government is carefully assessing Australia’s interests in the Protocol, in close consultation with industry and other groups, in the context of a decision on whether to sign the Protocol. These interests include:
- the future production and export of LMO commodities in Australia;
- our own domestic arrangements for the environmental and human health regulation of genetically modified organisms, including for export;
- the regulation of LMO commodities in our key export markets, including under the Protocol; and
- the uncertainties as described above, that is, how the Protocol will operate in relation to the WTO, the references to the precautionary approach and the key issues that have been left for further negotiation.
The attitude of other agriculture exporting countries will also be important.
Contact
Environment Branch
Department of Foreign Affairs and Trade
Phone: + 61 2 6261 2705
Fax: + 61 2 6261 2594