Hyderabad, 9 October (Lim Li Ching and Doreen Stabinsky) – There was a palpable sigh of relief as Parties to the Cartagena Protocol on Biosafety closed their sixth meeting following the adoption of key decisions.
After difficult negotiations, key decisions were adopted on socio-economic considerations and risk assessment. While these may have been weaker than what many Parties would have liked, they advance the work of the Protocol on these issues.
The sixth Conference of the Parties to the Convention on Biological Diversity serving as the Meeting of the Parties (COP-MOP6) to the Cartagena Protocol on Biosafety was held in Hyderabad, India from 1st to 5th October 2012.
[The Cartagena Protocol is a protocol under the Convention on Biological Diversity and is the only international treaty specifically regulating genetically modified organisms, or living modified organisms (LMOs) as they are known under the Protocol.]
The decision on socio-economic considerations establishes an Ad Hoc Technical Expert Group (AHTEG) to develop conceptual clarity on the issue. The AHTEG will submit a report to COP-MOP7 in 2014, with a view to enabling Parties to the Cartagena Protocol to deliberate and decide upon appropriate further steps towards the development of guidance for Parties on socio-economic considerations.
The decision on risk assessment commends the progress made on the Guidance of Risk Assessment of Living Modified Organisms, which has been developed and improved following numerous rounds of peer review, over the last four years by an open-ended online forum on risk assessment and the AHTEG on Risk Assessment and Risk Management. However, it stopped short of endorsing or commending the Guidance itself. Nonetheless, the decision also extends the existing online forum and establishes a new AHTEG that will serve until COP-MOP7, to conduct further work related to risk assessment.
Other important decisions were also taken on Article 17 (unintentional transboundary movements and emergency measures), which has links to the risk assessment discussions.
The issue of socio-economic considerations was one of the most controversial issues during the negotiations of the Cartagena Protocol on Biosafety. Developing countries wanted to preserve their right to take socio-economic considerations into account when taking a decision on imports of LMOs. Some developed countries opposed this, and did not view the issue as important, giving it low priority.
The compromise is contained in Article 26 of the Cartagena Protocol. Article 26.1 in particular states that “Parties may take into account, consistent with their international obligations, socio-economic considerations arising from the impact of LMOs on the conservation and sustainable use of biological diversity to indigenous and local communities, in reaching a decision on import under the Protocol or under its domestic measures to implement the Protocol”.
At COP-MOP5 in 2010, attempts by developing countries to have a decision that established an AHTEG on socio-economic considerations were thwarted. Instead, COP-MOP5 only called for an online forum to discuss the issues, supplemented by online regional conferences and a workshop on capacity building for research and information exchange on socio-economic impacts of LMOs, which was held in New Delhi, India in November 2011. This was the first time intersessional work (between COP-MOP sessions) on socio-economic considerations was conducted under the Cartagena Protocol.
Twelve years after the Cartagena Protocol was adopted in 2000, Parties have finally adopted a decision at COP-MOP6 that advances the issue of socio-economic considerations further.
A principal difference between Parties during the negotiations in Hyderabad was whether or not to set up an AHTEG to carry out further work towards developing guidance on taking into account socio-economic considerations in the context of national decision-making. Parties such as Bolivia, Mexico and Norway were eager to establish the AHTEG and to start substantive work, given the urgency of work needed and in light of already documented adverse socio-economic impacts in some countries growing genetically engineered crops.
Several Parties, notably Paraguay, were fundamentally opposed to the AHTEG as the way to move forward. A number of Parties, including Japan, were concerned about the budgetary implications of an AHTEG.
Other Parties, such as the European Union (EU), Japan and Paraguay, noted the need to proceed in a stepwise manner, rather than immediately initiate development of guidance as the next step. They noted the need for “conceptual clarity” on what constituted socio-economic considerations, as the first step to be taken.
The work at COP-MOP6 to develop a decision on socio-economic considerations was taken into a Contact Group, co-chaired by Gurdial Singh Nijar of Malaysia and Ruben Dekker of the Netherlands. The Contact Group met three times and steady progress was made in outlining what work was necessary in the next intersessional period and which entities would appropriately carry out the work.
The Contact Group concluded with an outline for a multi-step process. First, the Executive Secretary of the Convention (and its Cartagena Protocol) would be requested to compile, take stock of, and review information on socio-economic considerations arising from the impact of LMOs on the conservation and sustainable use of biological diversity, especially with regard to the value of biological diversity to indigenous and local communities. The stocktaking exercise would include a review of existing institutional frameworks, capacity-building activities, existing expertise and experience, and other policy initiatives concerning social and economic impact assessments, in order to develop a global overview.
Online discussion groups and regional online real-time conferences would then be established to facilitate and synthesize the exchange of views among Parties, other governments, relevant organizations and indigenous and local communities.
Finally, an AHTEG would be established to examine the outcomes of the stocktaking exercise and online forums, to develop conceptual clarity on socio-economic considerations. The report of the work of the AHTEG would be submitted to COP-MOP7 for further deliberation and a decision on possible next steps towards developing guidance on taking socio-economic considerations into account in national decision-making on imports of LMOs.
Because of the reluctance of some Parties to explicitly mention the development of guidance, the decision does not do so, but instead relates the next steps to Operational Objective 1.7 of the Strategic Plan of the Cartagena Protocol on Biosafety for the period 2011-2020, and its “outcomes”. Operational Objective 1.7 is “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 living modified organisms.”
This delicate compromise was then taken forward to Working Group 1 for adoption. One bracket remained, as Japan had raised its concern that Parties, other Governments (that are not Parties) and relevant organizations should not be “urged’ to make funds available to organize a meeting of the AHTEG, but rather be “encouraged” or “invited” to do so. Co-Chair Nijar had wryly observed that “pray” might be a better verb to use. The final decision “encourages” the making available of funds for the AHTEG meeting.
At the Working Group discussion, the governments of Norway and South Korea announced they would provide funding to enable the AHTEG on socioeconomic considerations to meet and carry out its work, alleviating somewhat the concerns of Japan. Furthermore, at the closing plenary, Bolivia, which had been championing the issue, made the offer to host the meeting of the AHTEG on socio-economic considerations, demonstrating its commitment to furthering the work on the issue.
Risk assessment and risk management
Risk assessment and risk management are at the heart of the Cartagena Protocol. Annex III of the Protocol provides a general framework for environmental risk assessment of LMOs. However, Parties have long felt that further guidance is necessary. At COP-MOP4 in 2008, Parties established an AHTEG on Risk Assessment and Risk Management to develop further guidance on specific aspects of risk assessment.
Over the four years since then, the AHTEG, with the assistance of an open-ended online forum, has developed a package of guidance material – the Guidance on Risk Assessment of Living Modified Organisms – which includes the ‘Roadmap’ on steps to take when conducting a risk assessment, along with guidance on living modified (LM) abiotic stress-tolerant plants, LM plants with stacked genes and LM mosquitoes. These initial documents were welcomed by Parties to the Protocol at COP-MOP5 and have benefited from numerous rounds of feedback, peer review and testing. The AHTEG then developed new guidance on LM trees and monitoring of LMOs released into the environment, themselves subject to several rounds of review.
Nonetheless, when Parties came to discuss the issue at COP-MOP6, resistance to endorsing the Guidance and continuing the work of the AHTEG was strong. While all Parties acknowledged the improvements made to the Guidance since COP-MOP5, and that the Guidance was a living document that needed continuous updating and would benefit from testing at the national and regional levels, they disagreed on several fundamental points.
Given the diverging opinions, a Contact Group, co-chaired by Helmut Gaugitsch from Austria and Eliana Fontes from Brazil, was established. The Contact Group met twice during the week.
Discussion first pivoted on whether or not the Guidance should be “endorsed” by COP-MOP6. A seeming conundrum arose, with some Parties like the Philippines, New Zealand, Mexico, Paraguay, Brazil and Japan claiming that since the Guidance was still to be tested, it was incomplete and should not be endorsed. Other Parties such as Bolivia, Norway, Moldova speaking on behalf of the Central and Eastern European (CEE) group, the EU speaking on behalf of its 27 Member States and Croatia, Peru and China wanted to endorse the Guidance so that it could then be used and tested at the national and regional levels.
Another major point of contention was whether or not the AHTEG, established by COP-MOP4 in 2008, should continue, and if so, in what composition, with what mandate and for how long. While there was universal agreement with the AHTEG playing a role in the testing of the Guidance, some Parties were reluctant to agree to the integration of the Guidance with the training manual on risk assessment produced by the Secretariat, while others were adamantly against assigning the AHTEG the task of developing guidance on new topics of risk assessment and risk management.
The eventual compromise weakened the language on integrating the Guidance and the training manual, to aligning them in a coherent and complementary manner. This was further qualified by the phrase “with the clear understanding that the Guidance is still being tested”.
On the issue of guidance on new topics of risk assessment and risk management, the AHTEG is only to “consider” its development. Moreover, the related expected outcome was only a recommendation on how to proceed with respect to the development of further guidance on specific topics of risk assessment, and not guidance in itself, even though several Parties had proposed that the AHTEG take up the development of guidance on at least one new topic.
Given the strong opposition, the final decision adopted by COP-MOP6 was a carefully balanced compromise package. It commends the progress made on the Guidance of Risk Assessment of Living Modified Organisms, but stopped short of endorsing or commending the Guidance itself. However, the decision also extends the open-ended online forum on risk assessment and establishes a new AHTEG, which should have a balance of current and new members, to serve until COP-MOP7.
The terms of reference of the open-ended online forum and new AHTEG on Risk Assessment and Risk Management sets out three tasks, in order of priority: (a) to provide input to assist in the structuring and focusing of the process of testing the guidance, and in the analysis of the results gathered from the testing; (b) to coordinate the development of a package that aligns the Guidance with the training manual in a coherent and complementary manner and (c) to consider the development of guidance on new topics of risk assessment and risk management, based on the Parties’ needs, and their experiences and knowledge concerning risk assessment.
The Working Group 2 session that adopted the text for forwarding to COP-MOP6 ended on Thursday night (4 October) at about 10.30pm. It was a tense session, with a near unraveling of the compromise package. Moldova had proposed the addition of the word “and” in operational paragraph 1, so that the sentence would read, “…commends the progress made on and the resulting Guidance on Risk Assessment of Living Modified Organisms”. This addition would thus commend both the progress made on the Guidance, and the Guidance itself. (Several Parties did not want to commend the Guidance as such.)
Brazil immediately responded that if anyone started to open up text it would also make its additions and changes to the compromise package. Moldova eventually withdrew its suggestion, but only after stressing how they had wanted to strongly endorse the Guidance and this was really a compromise for them.
Bolivia, however, added to paragraph 3(c) of the terms of reference of the AHTEG, a reference to Operational Objectives 1.3 and 1.4 of the Strategic Plan of the Cartagena Protocol on Biosafety and its outcomes. Operational Objective 1.3 relates to risk assessment and risk management and its outcome is guidance on risk assessment and risk management. Operational objective 1.4 relates to LMOs or traits that may have adverse effects, with outcomes spelled out as modalities to identify these LMOs, for which the related indicator is guidance on such LMOs.
This therefore clearly ties the expected outcome of the AHTEG on a recommendation on how to proceed with respect to the development of further guidance, with the relevant outcomes of the Strategic Plan that are in effect, new guidance. This addition will help the AHTEG in its deliberations to proceed on the development of new guidance.
The compromise package on risk assessment was thereafter adopted by the Working Group and eventually by the plenary, with no further changes.
Unintentional transboundary movements
The objective of the Cartagena Protocol is to contribute to ensuring an adequate level of protection in the field of safe transfer, handling and use of LMOs, specifically focusing on transboundary movements. Central to ensuring this protection are both knowing the risks of the LMO in the receiving environment, through a risk assessment, and the advance informed agreement of the Parties of import to accept or reject those risks in their territory and design appropriate risk management procedures in the case of import.
Parties continued in Hyderabad with discussions over the implementation of an important provision of the Protocol related to transboundary movement: Article 17 on Unintentional Transboundary Movements and Emergency Measures.
As unintentional transboundary movements circumvent the central mechanisms for ensuring an adequate level of protection – a risk assessment in the receiving environment and advance informed agreement for importation in light of these risks – consideration of how to prevent such movements is critical for achieving the objective of the Protocol. Parties were guided in their consideration of Article 17 by the operational objective for this work outlined in the current Strategic Plan, which requires Parties to develop tools and guidance that facilitate the implementation of Protocol provisions. The outcome envisaged in the Strategic Plan is guidance to assist Parties to detect and take measures to respond to unintentional releases of living modified organisms.
Japan contributed to the consideration of the agenda item with a brief intervention on its experience in 2011 with unintentional transboundary movements, specifically with the identification of illegal papaya growing in the country from seeds imported from Taiwan. They noted that the more information that is provided in a timely manner, the less mitigation cost an importing country has to take. They noted their position that while existing guidance in the form of decisions and the risk assessment guidance are useful, it is not sufficient to address or prevent unintentional transboundary movements, and they suggested that actual procedures needed to be developed.
Discussion continued among the rest of the Parties as to whether new guidance was needed or whether existing guidance in relevant decisions, rules and guidelines for implementing Article 17 was adequate. The Republic of Korea agreed with Japan that guidelines were needed for emergency measures. Several developing countries, including Jordan, Uganda, Malaysia and Tunisia emphasized that capacity was crucial in order to both detect and respond to unintentional transboundary movements.
Another point of discussion linked with negotiations over the AHTEG on risk assessment, and whether or not the existing Guidance on Risk Assessment of Living Modified Organisms developed by the AHTEG should be referenced in the decision. Paraguay was opposed to the reference. This opposition was overcome after consultations. Paraguay eventually agreed to the reference to the Guidance following the insertion of a preambular paragraph noting that the Guidance is not prescriptive and does not impose any obligations on Parties. This language was part of the compromise package agreed in the decision on risk assessment.
The final decision reflects recognition that the ability to detect unintentional transboundary movements was an important step in prevention and response to such movements, and invited cooperation in building capacity, transferring technology and exchanging information necessary to detect and response to unintentional transboundary movements. The issue will be further considered at COP-MOP7, with a consideration of “challenges and experiences relating to the implementation of Article 17 or the Protocol and on the scope and elements of possible guidance or tools that may facilitate appropriate responses” to unintentional transboundary movements.
It was thus with bated breath that the two key decisions on socio-economic considerations and risk assessment were adopted by COP-MOP6, with fears that the delicate balance achieved could be unraveled at any point. Together with the decision on unintentional transboundary movement, these place great importance on the intersessional period over the next two years in advancing these issues, with a heavy burden put on COP-MOP7 to make the right choices for biosafety