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Cartagena Protocol on Biosafety - 3nd Meeting of the Parties (MOP-3)

While countries at the third Meeting of the Parties (MOP-3) to the Cartagena Protocol on Biosafety -- convening from 13-17 March in Curitiba, Brazil -- managed to resolve most agenda items relatively quickly, negotiations on documentations requirements for shipments of living modified organisms (LMOs) proved highly contentious, requiring many hours of negotiations in contact and 'friends of the Chair' groups. The discussions saw deep divisions between a number of Latin American countries, while New Zealand -- which had been one of the strongest opponents of stringent documentation requirements at MOP-2 -- appeared to play a much less prominent role. The final decision clearly constituted a compromise, with some parts left vague enough to accommodate the differing interests.

Article 18.2(a) | Other issues

Parties widely welcomed the agreement on documentation requirements reached in Curitiba and expressed relief that this thorny issue, which had repeatedly bogged down the negotiations of the Protocol itself, had been resolved. While many civil society groups also cautiously welcomed the agreement, they attacked the biotech industry and the trade interests of some Parties for blocking progress towards more stringent requirements. The key question for the future implementation and effectiveness of the Protocol will now be whether the labelling decision is sufficiently broad to persuade biotech exporting non-Parties to join the pact.

LMO commodities in the spotlight

The negotiations on documentation requirements for LMOs for use in food and feed and for processing (LMO-FFP) aim to further elaborate on the provisions of Article 18.2(a) which requires LMO-FFPs to be labelled as "may contain" LMOs and as not intended for release into the environment. African countries in particular have pushed for deleting the word "may", instead calling for a mandatory requirement to declare all LMOs contained in a shipment. At MOP-2, the EU had been willing to accept a reference to "may", provided that a clear specification of the LMOs that may be contained in the shipment was included. These proposals, however, had proven unacceptable for some countries, notably Brazil and New Zealand, and Parties in end had to postpone the negotiations to MOP-3. Other contentious issues include whether to us an existing document (such as the commercial invoice) or a stand-alone document to provide the required information; and what additional information, such as a unique identifier code, should be provided.

In the absence of agreement at MOP-2, countries continue to operate based on an interim decision adopted at MOP-1. The decision elaborates somewhat on Article 18.2(a), but simply "urges" Parties to implement additional requirements while still leaving a number of options open for some of the more controversial issues. Beyond the Article 18.2(a) requirements, the interim decision urges Parties and other governments to require information on the name of the organism and the transformation event or unique identifier code. No new draft text has been put forward for discussion at MOP-3 at this time. Instead, the Secretariat's paper on the issue outlines three options, namely to base discussions on the Chair’s texts adopted at the Open-ended Ad hoc Technical Expert Group and at MOP-2; only on the MOP-2 Chair’s text; or the interim decision adopted at MOP-1.

Discussion at MOP-3

"may contain" versus "contain" -- leaving the options open

In a second attempt after their failure to agree at MOP-2, Parties managed to finalise a decision to elaborate further on documentation requirements for LMOs for use in food and feed and for processing (LMO-FFP). These negotiations had been mandated under Article 18.2(a) which only required LMO-FFPs to be labelled as "may contain" LMOs and as not intended for release into the environment. Much of the debate again focused on the use of "contain" versus "may contain", with biotech importers, in particular the African countries, advocating the former while biotech exporters pushed for the latter. In the end, the decision provides for two options, as proposed by Brazil early on the negotiations. Thus, in cases where the identity of the LMO is known "through means such as identity preservation systems", the shipment should be labelled as containing LMO-FFPs. In cases where the identity is not known, the "may contain" label would continue to apply. In both cases, exporters would be required to provide the common scientific or where available commercial names of the LMOs as well as the transformation event or unique identified code.

These provisions apply to LMO-FFPs that are "in commercial production and authorised in accordance with domestic regulatory frameworks". The decision leaves open whether these frameworks refer to those of the exporting or importing countries, and how they would cover countries that do not have a regulatory framework in place. Also, given that the trigger for the "contain" label was not further elaborated, the choice of which of the two labelling options to apply is likely to largely rest with the exporter.

An initial proposal by Brazil to require "contain" labelling of all shipments by 2010 was watered down by deciding to review experiences gained with the documentation requirements at MOP-5 "with a view to considering a decision" at MOP-6 to require the "contain" label.

Indirect references to accidental presence of LMOs

The provisions on documentation requirements are further qualified by "acknowledging" that the expression "may contain" does not require listing of LMOs of species "other than those that constitute the shipment". This article marked a compromise on the question to what extent the rules should also cover the 'adventitious' (i.e. accidental, non-intentional) presence of LMOs in shipments. In particular the African countries have been advocating strongly in favour of the broader scope, which would effectively shift the burden of testing for accidental presence to the exporting countries. The EU would have liked to see at least a reference to thresholds that may be adopted on a national basis for adventitious presence to provide multilateral backing for its exiting domestic legislation. These proposals where met with opposition by New Zealand and Brazil -- both major players in the push for further agricultural trade liberalisation.

The final wording seemed vague enough to allow for different interpretations that suited the different interests. Some felt that adventitious presence was not covered by the rules while others interpreted the provision as applying to the accidental presence of all LMOs. Most non-governmental observers took the view that adventitious presence would be covered for LMOs of the same species (such as different types of genetically modified soy), but not for other species (such as GM corn in GM soy shipments).

Mexico concerned over trade with NAFTA parties

A last-minute intervention by Mexico in the closing plenary had threatened to derail the talks and the plenary had to be suspended several times to allow for further informal consultations. Mexico, along with Paraguay, had been pushing for less stringent documentation requirements and for shifting much of the information sharing to the Biosafety Clearing House. Many observers attributed this position to Mexico's concerns over how the provisions would impact its trade with the US and the trilateral agreement on documentation requirements reached with the US and Canada -- all partners in the North American Free Trade Agreement (NAFTA) -- prior to MOP-1.

To accommodate Mexico's concerns, a new paragraph was inserted in the decision to address trade with non-Parties. The text notes that "transboundary movement of LMOs between Parties and non-Parties shall be consistent with the objective of the Protocol", adding that the "specific requirements set out in [paragraph 4 outlining the documentation requirements] do not apply to such movement". The new provision also calls on Parties to "encourage non-Parties to adhere to the Protocol". While the immediate implication of this provision appears somewhat unclear, many delegates felt that the paragraph simply reiterates what is already known, namely that the Protocol's provisions are not obligatory for non-Parties, and was in fact superfluous.

Emphasis on capacity building

At the insistence in particular of some Latin American countries, the final decision places strong emphasis on the need for capacity building to help developing countries to implement and benefit from the documentation requirements. This emphasis reflects the interests of biotech exporting developing countries, such as Brazil and Paraguay, which have pointed to their limited capacities to implement the labelling rules. Trade considerations are also likely to underlie these concerns, with some countries fearing that the cost of putting systems in place to comply with the Protocol's provisions could place them at a competitive disadvantage vis-à-vis countries that are not Parties to the Protocol, notably the US, Canada and Argentina.

Changing of the guard?

Discussions at MOP-3 witnessed a marked shift in negotiating dynamics compared to previous meetings. While Brazil and New Zealand had largely led the charge against stringent documentation requirements at MOP-2, this role now fell to Paraguay, Peru and Mexico. Brazil, which had drawn up the initial draft text on which the final decision was based, was widely lauded for its spirit of compromise, while New Zealand appeared to be taking an increasingly constructive backseat in the talks. Speculations were rife over Brazil's change of position. Some attributed their stance to the lengthy internal consultation process that had preceded the talks, a stronger stance of the environment ministry and the political stake in concluding the negotiations in Curitiba. Other more cynical voices saw trade motivations as the driving force behind this shift, speculating that Brazil might be counting on gaining a competitive advantage, in particular vis-a-vis other Latin American countries, by being able to put in place systems that will allow Brazilian exporters to segregate biotech from conventional products.

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Other issues at MOP-3

A number of other issues have been placed on the agenda of MOP-3. Among them, Parties debated the need for standards on the identification, handling, packaging and transport practices in LMO trade as mandated by Article 18.3 of the Protocol. In preparation for MOP-3, the Secretariat reviewed the suitability of existing rules and standards, including, among others, those provided by the WTO, FAO, the World Organisation for Animal Health (OIE), the WHO, the OECD and the International Organization for Standardization (ISO). The review concludes that none of these standards comprehensively cover the scope of Article 18. The paper notes that most of the existing standards aim to protect human, animal or plant health rather than biodiversity per se; that many labelling requirements deal with food products that are largely outside the scope of the Protocol; and that many of the rules and standards are limited to certain geographical or political regions (such as the EU or the OECD). The paper suggests that Parties should proceed by soliciting views on potential gaps in existing frameworks by MOP-5 and to continue gaining experience on implementing the Protocol’s current provisions (under Article 18).

How to deal with cases of repeated non-compliance of the Protocol is also expected to come up at MOP-3. This question had proven controversial at MOP-1, in particular the use of trade sanctions as a possible compliance measure. Also on the agenda are issues related to risk assessment and risk management, including the need for additional guidance and capacity building on risk assessment. Issues related to liability and redress -- a particular concern of many African countries -- will also be touched on at MOP-3 although substantive discussions on a possible legally binding regime are likely to be left to the Ad Hoc Open-ended Working Group which at MOP-1 was tasked with elaborating options for elements of rules and procedures by 2007.

Discussion at MOP-3

In relation to documentation requirements for LMOs for contained use and introduction into the environment (Article 18.2 b and c), Parties took up the question of whether to use a stand-alone document to provide the required information, as advocated in particular by Norway. While the Parties in the end agreed to postpone a decision on this question until the next MOP, they explicitly recognised Parties' right to require such documents, thereby providing some breathing space for countries that have implement or are planning to implement such a system. Given that similar discussions have also taken place under Article 18.2(a), progress on this issue under any of the subparagraphs is likely to be linked.

Regarding the need for standards on the identification, handling, packaging and transport practices in LMO trade (Article 18.3), Parties simply agree to gather further information from Parties and relevant international bodies on existing rules and standards for discussion at MOP-4 and MOP-5.

Parties furthermore agreed to change the MOP meeting schedule from annual meetings to meetings every two years. MOP-4 will be held in conjunction with the ninth Conference of the Parties (COP) to the Convention on Biological Diversity, the date and venue of which will be discussed at COP-8, convening from 20-31 March also in Curitiba.

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