Return to the UKabc Home Page • Uploaded 8 November 1998
Food Production, Choice, and Security:
THE ROLE OF THE BIOSAFETY PROTOCOL & THE IMPLICATIONS OF GENETIC ENGINEERING
Paper written for the UKabc by:
Richard Tapper, Environment, Business & Development Group
Return to Contents
This paper considers genetic engineering and its implications and outlines progress and possibilities for the final stages of negotiation of a Biosafety Protocol. This Protocol is being developed under the Convention on Biological Diversity. Although it is limited to dealing with "transboundary movements of living modified organisms (LMOs)", the Protocol provides opportunities to address, in an international legal instrument, other issues concerning the wider biodiversity and trade agenda.
A strong Biosafety Protocol would allow States to make their own decisions over import and use of genetically-engineered organisms and/or their products, without those decisions being undermined by the rules of the WTO. Within the negotiations for the Biosafety Protocol, many developing countries are arguing for such strong provisions. The Cairns group along with some other grain exporting countries are seeking to negotiate a weak protocol that would cover little more than international harmonisation of information sharing on trade in genetically-engineered organisms and their products, and for biosafety provisions to be secondary to trade rules in event of any conflicts between the two.
DRAFT POSITION ON THE BIOSAFETY PROTOCOL
Return to Contents
The Biosafety Protocol, currently being negotiated under the auspices of the Convention on Biological Diversity, will be an important international instrument that could, within the specific Jakarta Mandate for the negotiations, help towards ensuring the rights of countries to decide for themselves how they wish to develop their agriculture, to implement sustainable development, to protect their genetic resources, and to ensure food security, in the context of genetic engineering and the growing trade in genetically-engineered organisms and their products.
To achieve this, the Biosafety Protocol should include provisions in its Articles for comprehensive risk assessment and risk management, public participation in decisions concerning LMOs or their products, unintentional as well as deliberate releases of LMOs or their products, and capacity building for biosafety. The scope of the Protocol should cover all LMOs and their parts, including commodities being shipped for food use (eg. soyabeans) and products of LMOs (eg. flour or meal and other processed items).
To be an effective international instrument for biosafety, the Protocol should include Articles providing for the following:
The Precautionary Principle should be a central principle of the Biosafety Protocol, consistent with Principle 15 of the Rio Declaration, and other international and regional environmental conventions. Genetic engineering is a technology with inherent uncertainties and little is known about its effects, despite claims made by companies that are developing and marketing LMOs or their products. The Protocol should make it clear that it is legitimate for States to apply the Precautionary Principle when deciding whether or not to allow the import, introduction, transfer, handling or use of LMOs or their products within their territories, and for States to take into account risks to human health, socio-economic and cultural factors, as well as scientific information, in reaching such decisions.
Liability and Compensation
In the event of harm to the environment, biodiversity, human or animal health or socio-economic welfare, arising as a consequence of LMOs or products of LMOs, the exporter, or the Party of origin of those LMOs or products should the exporter be unable to discharge its obligations, should be strictly liable for that harm and for providing compensation. This strict liability should extend to any failure of LMOs to perform and deliver anticipated benefits claimed by the exporter.
The principle of strict liability is well established, and most treaties dealing with civil liability provide for strict liability. Strict liability means that there is no need for the victim of damage to prove fault on the part of the legal person to be held liable. Strict liability would mean that the exporter, or Party of origin, assumes the risks of harm arising from LMOs or their products, consistent with the Precautionary Principle as set out in the Rio Declaration.
While it is sometimes argued that liability and compensation in relation to biosafety are already covered by existing laws and agreements, the report from the Workshop on Liability and Redress Issues Arising in Relation to the Draft Biosafety Protocol organised by the UK Government and the European Commission in London, 30 June - 2 July 1998, notes that this is not, in fact, the case. Existing domestic legislation on liability and compensation is also patchy, and has not been drafted with the specific issues of biosafety in mind. Inclusion of a clear provision for strict liability and compensation would close the gap in existing laws and agreements in relation to biosafety.
Some delegations from industrialised countries have tried to stall the issue, by raising concerns that there is insufficient time to undertake a negotiation on liability and compensation, given the complexity of the issues and the range of international law on these matters. However, experience in other areas has shown that a failure to include provisions for these matters until after an agreement has been signed, leads to a failure to address them adequately at all. As a compromise, it is suggested that strict liability for harm arising as a consequence of LMOs or their products could be set out in the Articles of the Protocol, with provision for details of the rules and procedures for this to be elaborated as a priority by the Meeting of the Parties to the Biosafety Protocol.
States should be permitted to take full account of socio-economic impacts within their country and its environment, for example through use of social impact assessment, when deciding whether or not to allow the import, introduction, transfer, handling or use of LMOs or their products within their territories.
Maintenance of food security and biodiversity is closely linked to the ways in which economies and societies manage their resources, as, for example, in the activities of indigenous peoples and local communities, in maintaining traditional knowledge, innovation and practices that conserve biodiversity and use it sustainably
Methods for social impact assessment are well developed and in wide use throughout the world. They include the World Bank's social assessment procedures, and provisions of the US National Environmental Policy Act (NEPA). The Protocol should include language that would allow a Party to refuse consent to import any particular LMO based on evidence gathered during a social impact assessment that such an LMO might have negative impacts of any type, including socio-economic impacts.
Conditions for import
States should be permitted to impose limitations and ceilings on imports of LMOs and products of LMOs, and to impose conditions on their use, for example, on where and how they are to be grown and used.
Labelling and Segregation
All LMOs and products of LMOs should be clearly labelled. LMOs and products of LMOs should be segregated from non-LMOs in their handling, storage and transport.
Responsibilities should be placed on exporters, or where an exporter defaults for any reason, on the Party of origin, of LMOs or products of LMOs, for provision of accurate information relating to risk assessment, and to the Advanced Informed Consent procedures; for liability and compensation; for compliance with all relevant provisions of the Biosafety Protocol; and for ensuring that conditions which a State may set for import of an LMO or product of an LMO are met.
In the event of a lack of a response from the Party of import to a notification of a proposed transboundary movement of an LMO or product of an LMO, export should not proceed, and the Party of import should not be deemed to have approved the import of the LMO or product of an LMO, concerned.
The provisions of the Biosafety Protocol should take precedence over the provisions of international trade agreements should there be any conflicts between the two. Articles 24 (Non Discrimination) and Article 34 (Relationship with Other International Agreements) of the draft Protocol, both of which would ensure that trade takes precedence over biosafety issues, should therefore be deleted.
The Protocol should include provisions to require Parties to it, to ensure that any trade with non-Parties is carried out in a way that meets that objectives and provisions of the Protocol; and to take measures to prevent and penalise illegal traffic of LMOs and products thereof.
Monitoring and compliance
The Protocol should include provisions for the implementation of its obligations by Parties to be monitored, and for procedures and mechanisms to promote compliance and to address cases of non-compliance.
Adverse impact reporting
The Biosafety Clearing-House that is to be established under the Protocol, should include a mechanism for reporting and sharing of information on any adverse effects of LMOs or products of LMOs.
GENETIC ENGINEERING, TRADE & BIOSAFETY
Return to Contents
Genetic engineering and its implications
Genetic engineering has huge implications for food production, choice, and security. In particular, the introduction of genetically engineered crops and livestock raises the following issues:
Alongside these broad issues, there are several further factors to bear in mind:
Biosafety, the world trade regime, and genetic engineering
The issues raised by genetic engineering and its use in agriculture and food production are wrapped up with questions of international trade, and the way that the current world trade regime operates. The biosafety protocol will be another multi-lateral environmental agreement (MEA), and will face the same problems as other MEAs in relation to trade rules. Under the present rules, trade wins every time.
The key trade issues that affect biosafety are related to Articles III, XI, and XX of the GATT:
a) necessary to protect public morals
b) necessary to protect human, animal or plant life or health
g) relating to the natural conservation of exhaustible natural resources."
In the context of genetically-engineered products, States that support such export will argue that these products are equivalent to non-genetically engineered equivalents. States wishing to ban the import of genetically-engineered products could therefore face action under Article III, and also under Article XI. Article XX provides a basis for States to ban imports of genetically-engineered products in certain cases. However, it could be difficult to make a strong case against genetically-engineered products that are already available in other countries.
Furthermore, the WTO uses FAO's Codex Alimentarius as the basis for assessing standards in relation to food and human health, and the SPS agreement in relation to other standards. Neither the Codex nor the SPS agreement provide specific standards relating to genetically-engineered products, and could not be relied on to support effective cases under the WTO rules. A case for an import ban in some circumstances "relating to the natural conservation of exhaustible natural resources" might be possible in a limited number of instances, for example, where a genetically-engineered product might be anticipated to have adverse impacts in centres of biological diversity.
It is for these reasons that it is important to achieve a strong biosafety protocol which would allow States to make their own decisions over genetically-engineered organisms and/or their products, without those decisions being undermined by the rules of the WTO.
PRIORITIES FOR THE BIOSAFETY PROTOCOL NEGOTIATIONS
Return to Contents
Whether or not many of the issues concerning consumer choice and health, environmental and socio-economic effects of genetically engineered organisms and their products can be taken into account by States in a trade context, will depend to a large degree on the provisions of the Biosafety Protocol. If the protocol is weak, it will only harmonise procedures for notifying States of impending imports, and for obtaining their Advanced Informed Agreement (AIA) for such imports, subject to 'science-based' risk assessment procedures that the importing State may require, and any conditions which that State may impose.
If the protocol is stronger, it will also include Articles establishing a Liability and Compensation regime, allowing Socio-Economic Considerations to be taken into account, strengthening Risk Assessment and obligations on exporters, and explicitly allowing application of the Precautionary Principle. Its scope would cover products of genetically-engineered organisms, such as partly processed foodstuffs (eg. flour or ground meal), and the Protocol's provisions would take precedence over WTO rules should their be any conflict between the two.
Whether the final outcome of the negotiations is a weak or a stronger protocol depends on the lobbying of Governments between now and the final negotiation session which is scheduled for February 1999 in Colombia. This will be followed immediately by a special session of the Conference of the Parties to the CBD to agree and initiate signature of the Protocol.
The mandate for the present negotiations on a Biosafety Protocol, which are being conducted under the Convention on Biological Diversity, is specifically focused on "transboundary movement of any LMO that may have an adverse effect on human health and biological diversity". There is also scope to include socio-economic considerations, liability and compensation, and financial issues, within the biosafety protocol, but it is up to countries to reach agreement on whether these issues should be addressed, and if so, how, through the biosafety negotiations. The draft Biosafety Protocol includes Articles on each of these issues, but there is no agreement that this wording should remain in the final protocol to be agreed in February 1999: efforts are needed to secure the inclusion of strong wording on these issues in the final Protocol.
Return to Contents
Dr. Richard Tapper
Director - Environment, Business & Development Group
16, Glenville Road, Kingston upon Thames, KT2 6DD, U.K.
Tel/Fax: (+44) 181 549 1988
Return to top
Return to the UKabc Home Page