1-5 October 2012
Report of COP-MOP5: Biosafety Protocol Steps Forward
* COP-MOP5 met in Nagoya, Japan from 11-15 October 2010. This is a TWN report on the meeting’s outcomes.
Lim Li Lin, Third World Network and Doreen Stabinsky, College of the Atlantic
The bi-annual meeting of Parties to the UN Cartagena Protocol on Biosafety ended in Nagoya on Friday, 15 October 2010 with a major advance in international law. The meeting saw the adoption of a new environmental treaty – the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety.
A number of significant Decisions of the 5th Conference of the Parties serving as the Meeting of the Parties (COP-MOP5) to the Cartagena Protocol were also adopted. A Strategic Plan for the next ten years (2011-2020) and its multi-year programme of work for the next five years (2012-2016) lay out a plan and vision for its implementation. Key Decisions that take forward issues at the heart of the debate over biosafety – on risk assessment and socio-economic impacts – were also adopted.
[The Cartagena Protocol deals with living modified organisms (LMOs) that may have adverse effects on the conservation and sustainable use of biological diversity, “taking also into account risks to human health, and specifically focusing on transboundary movements”. The Cartagena Protocol uses the term “living modified organisms” for what is commonly known as genetically modified organisms (GMOs). The parent treaty of the Cartagena Protocol is the Convention on Biological Diversity (CBD), which will hold its 11th Conference of the Parties in Hyderabad, 8-19 October 2012.]
Liability and redress
The Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress is a supplementary Protocol to the Cartagena Protocol on Biosafety. Negotiations of the Supplementary Protocol took more than six years, over ten negotiating sessions, and other preparatory meetings. However, having a substantive international liability and redress regime to address damage resulting from LMOs is actually ten years overdue.
When the Cartagena Protocol was adopted in January 2000 in Montreal, developing countries had actually wanted to have substantive provisions on liability and redress included in the Cartagena Protocol itself. During the Cartagena Protocol negotiations, many civil society observers and developing country delegates supported the “No liability, no Protocol” campaign.
However, liability and redress issues proved too contentious to resolve, and the compromise was to negotiate liability and redress rules at a later stage, after the entry into force of the Cartagena Protocol. This process began in earnest in 2005.
The name of the Supplementary Protocol reflects the contribution of two countries to the process: Nagoya, Japan where the negotiations of the Supplementary Protocol were completed and the Supplementary Protocol adopted; and Kuala Lumpur, Malaysia where the first COP-MOP was held in 2004 where the mandate of the first negotiating group was adopted, and where two negotiating meetings were held (and were supposed to be completed).
It was also Malaysia, during the negotiations of the CBD, that had introduced the biosafety issue to ensure that conservation and sustainable use of biodiversity would not be threatened by LMOs.
The negotiations were difficult and were heavily opposed by those with an interest in the production and export of LMOs – the biotechnology industry, biotechnology scientists and non-Parties to the Cartagena Protocol – who had also actively worked to water down the Cartagena Protocol and block the negotiations.
Developing countries and some developed countries like Norway on the other hand, had always maintained that an international regime to deal with damage caused by LMOs was necessary because of the unique risks of LMOs and their transboundary nature, and in order to ensure that those responsible would be held liable. This is necessary to prevent damage to biological diversity, the environment and people, particularly in poor countries. In cases where damage does occur, a liability regime should ensure that financial resources are made available to enable or compensate for necessary measures to redress the damage.
At times, it appeared that there would be no agreement on the Supplementary Protocol. In particular, the issue of the nature of the liability regime had been very difficult to resolve. Most developing countries wanted to have a binding international regime that would set substantive rules on civil liability whereby victims of damage from LMOs can turn to national courts for redress.
Instead, the Supplementary Protocol largely takes an “administrative approach” whereby responses measures are required of the operator (person or entity in control of the LMO) or the competent authority if the operator is unable to take response measures. This would cover situations where damage has already occurred, or when there is a sufficient likelihood that damage will result if timely response measures are not taken.
However, countries can still provide for civil liability in their domestic law and the first review of the Supplementary Protocol (five years after its entry into force) will assess the effectiveness of domestic civil liability regimes. This could trigger further work on an international civil liability regime.
Much has been left to countries to determine and implement at the national level. This reflects the lack of consensus of countries in the negotiations. The process to truly ensure that there is justice when damage to people and the environment occurs is still a long and winding road.
Safe or un-safe?
One of the main dynamics influencing the negotiations in Nagoya was the political rift between those countries that consider that the Cartagena Protocol should be used to prevent damage arising from the risks that LMOs pose to biological diversity and human health and those countries that attempt to downplay those risks because they are, or plan to be, exporters of LMOs and products thereof.
This split was quite evident in discussions on the Strategic Plan, risk assessment and risk management, and capacity building on socio-economic issues. Discussions on the latter two revolved around the establishment or continuation of technical expert groups that would further consider risks of LMOs and provide guidance to Parties on addressing those risks.
Risk assessment and risk management
COP-MOP5 continued and built on work on risk assessment and risk management initiated by COP-MOP4 (held in Bonn in 2008), where Parties established an ad hoc technical expert group (AHTEG) on risk assessment and risk management to: a) develop a “roadmap” on the necessary steps to conduct a risk assessment, b) consider needs for specific guidance documents for different types of LMOs and lay out a plan for developing those guidance documents, and c) develop modalities for producing further guidance documents and testing the roadmap.
The AHTEG met twice during the intersessional period, between Bonn and Nagoya. At COP-MOP5, Parties had before them several products developed by the AHTEG: the roadmap, as well as three guidance documents for conducting risk assessments of different types of LMOs: LM mosquitoes, LM crops with stacked traits, and LM crops engineered for abiotic stress tolerance.
Parties at COP-MOP5 were to consider these results of the AHTEG and determine next steps on risk assessment and risk management under the Cartagena Protocol.
Early in the discussions, divisions emerged between Parties that wished to continue the AHTEG and other Parties that were not happy with the outcomes of the AHTEG process. Conflict emerged on what to do with the roadmap and the guidance documents, on the current membership of the AHTEG, and on the terms of reference for the continued work of the group.
Several developing country Parties led the critique of the outcomes of the current AHTEG. Brazil, India, the Philippines, Paraguay and Mexico emerged at this meeting as strong deniers of the risks posed by LMOs, and either critiqued the composition of the AHTEG or stressed that the AHTEG outcomes should be further reviewed and ‘validated’. Other non-Parties to the Cartagena Protocol such as the United States also expressed their dissatisfaction with the AHTEG outcomes.
After it became clear that there was wide support (from the African Group and many other developing country Parties, as well as developed country Parties such as the European Union and Norway) for continuation of the current AHTEG, the countries that were not happy with the AHTEG and its outcomes fought for its expansion to include persons “with hands-on experience” in risk assessment and risk management, as well as language in its revised terms of reference referring to “peer review” of the roadmap and guidance documents.
A long discussion ensued on whether or not to retain the word “peer” in front of “review,” which was concluded when the Chair replaced the word “peer” with “scientific.” The final COP-MOP Decision provides for the continuing review and testing of the roadmap and guidance documents by the AHTEG, with a view to develop a revised version.
Also during the debate on the issue of risk assessment and risk management, Parties considered modalities to implement two separate Cartagena Protocol provisions regarding identification of LMOs that may and LMOs that are not likely to have adverse impacts on biological diversity.
On the topic of identifying LMOs that are not likely to have adverse impacts on biological diversity, many countries noted that risk assessments must be conducted on a case-by-case basis, and this would preclude any a priori determination of LMOs not likely to cause adverse effects.
On the topic of identification of LMOs that may have adverse impacts, Parties were requested to submit to the Biosafety Clearing-House decisions and risk assessments where potential adverse effects have been identified, to be compiled by the Secretariat and considered at the next COP-MOP.
Under the agenda item on capacity building, Parties considered recommendations from the sixth Coordination Meeting for Governments and Organizations Implementing or Funding Biosafety Capacity-Building Activities regarding capacity building needs for the assessment of socio-economic impacts of LMOs.
The Coordination Meeting had identified lack of capacity as one of the main reasons preventing countries from taking socio-economic impacts into consideration in their decision-making. Socio-economic impact assessment needs identified by a survey conducted by the Secretariat/UNEP-GEF (UN Environment Programme-Global Environment Facility) included food security, coexistence of LMOs with conventional and organic agriculture, impact on indigenous and local communities, and Farmers’ Rights (e.g., control of seeds).
To address these capacity building needs, the Coordination Meeting recommended to the COP-MOP to establish an expert group on socio-economic considerations to, inter alia, develop criteria and guidance to assist Parties in determining which socio-economic considerations to include in their decision-making.
During the COP-MOP discussions on the topic, a split emerged over whether an expert group was necessary at this time. While the African Group and Bolivia were strongly in favor of convening an expert group, the EU, supported by several other countries, considered that it was premature for an expert group to develop guidance on taking socio-economic considerations into account during decision-making, or that an expert group was not the appropriate means to address the topic. Budgetary constraints were also considered in the deliberations.
Negotiations on this item stretched into the final plenary, with an informal group tasked to resolve the issue over whether or not an expert group would be convened. Finally, the compromise was to conduct online forums and hold a workshop on socio-economic considerations, with the results to be forwarded to COP-MOP6 for further consideration. The Norwegian government offered to support the workshop with a $75,000 contribution.
The Strategic Plan for the implementation of the Cartagena Protocol sets out five focal areas: facilitating the establishment and further development of effective biosafety systems for the implementation of the Cartagena Protocol; capacity building; compliance and review; information sharing; and outreach and cooperation.
Under the first focal area, Mexico had wanted LMOs that are not likely to have adverse impacts on biological diversity to be included. This was opposed by Peru, Norway and the EU, and was eventually dropped.
On the issue of scientific and technical advice, the EU opposed provisions on mechanisms for providing scientific and technical advice in the Strategic Plan and the multi-year programme of work. These provisions were deleted.
The issue of socio-economic considerations also reared its head in these discussions. The EU did not want an emphasis on socio-economic guidance or guidelines for Parties in reaching decisions on imports, but rather on research and information exchange. They were strongly opposed by the African Group that wanted a focus on how Parties can take into account socio-economic consideration in their decision-making.
The final language strikes a compromise – “To, on the basis of research and information exchange, provide relevant guidance on socio-economic considerations that may be taken into account in reaching decisions on the import of LMOs”. This is further qualified with the reference to “peer reviewed research” relevant to socio-economic considerations.
[However, in Appendix C of Annex III ‘Consolidated modus operandi of the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA)’ of Decision VIII/10 on the ‘Operations of the Convention’, the Conference of the Parties to the CBD has adopted a Decision that sets out the modalities/activities of “peer review”: “1. Selected reviewers; 2. A wider audience including Parties, other Governments, SBSTTA focal points, experts nominated by Parties, organizations and indigenous and local communities and/or other conventions and their focal points.”]
Finances and resources
COP-MOP5 saw a difficult debate on the issue of the financial mechanism and resources, with many developing countries lamenting the lack of support for implementation of biosafety measures at the national level. Many developing countries called for the establishment of a special biosafety fund within the GEF, to allow for funding of biosafety projects outside the new GEF System for Transparent Allocation of Resources (STAR).
However the EU, represented at the meeting by the German GEF Council member, refused to include such a request to the GEF because it was outside the mandate of the COP-MOP to decide the structural organization of the GEF.
The final compromise language urged Parties to give priority to biosafety when applying for GEF funding under the biodiversity focal area, and urged the GEF to consider, during the next GEF replenishment process, defining specific quotas for biosafety funding for each country.
“Handling, transport, packaging and identification”
During COP-MOP5, Parties considered two issues under the implementation of the Protocol on handling, transport, packaging and identification of LMOs. First, they reviewed documentation requirements for LMOs intended for use as food, feed or for processing and, because of limited experience gained to date in implementation of these requirements, decided to postpone further consideration of this issue until COP-MOP7 (in 2014).
Second, the Parties considered the need for and modalities of developing standards with regard to identification, handling, packaging and transport practices. They agreed to request the Executive Secretary to commission a study analyzing gaps, guidance on the use of existing standards, and the possible need for elaboration of standards under the Protocol, for further consideration of the matter at COP-MOP6.
COP-MOP5 also adopted Decisions on the Compliance Committee; the Biosafety Clearing House; capacity building and the roster of experts; rights and/or obligations of Parties of transit of LMOs; monitoring and reporting; assessment and review; cooperation with other organizations, conventions and initiatives; public awareness, education and participation; and the budget for the Secretariat and work programme until the next COP-MOP.