Vol. 9 No. 320
SUMMARY OF THE FIRST MEETING OF THE AD HOC
GROUP ON LIABILITY AND REDRESS AND THE SECOND MEETING OF THE PARTIES TO
THE CARTAGENA PROTOCOL ON BIOSAFETY:
The second meeting of the Conference of the Parties to the Convention on Biological Diversity (CBD) serving as the meeting of the Parties to the Cartagena Protocol on Biosafety (COP/MOP-2) was held from 30 May to 3 June 2005, in Montreal, Canada. COP/MOP-2 convened immediately following the first meeting of the Ad Hoc Open-ended Working Group of Legal and Technical Experts on Liability and Redress in the context of the Protocol, held from 25-27 May 2005. Approximately 300 experts participated in the Ad Hoc Group on Liability and Redress. COP/MOP-2 was attended by more than 750 delegates representing Parties to the Protocol and other governments, UN agencies, intergovernmental and non-governmental organizations, academia and industry.
The Ad Hoc Group on liability and redress was established by COP/MOP-1 to: review information relating to liability and redress for damage resulting from transboundary movements of living modified organisms (LMOs); analyze general issues relating to the potential and/or actual damage scenarios of concern, and application of international rules and procedures on liability and redress to the damage scenarios; and elaborate options for elements of rules and procedures on liability and redress, with a view to completing its work in 2007. At its first meeting, the Group listened to presentations on scientific analysis and risk assessment, and State responsibility and international liability, and expanded on options, approaches and issues for further consideration in elaborating international rules and procedures on liability and redress.
COP/MOP-2 considered: handling, transport, packaging and identification (HTPI), including documentation for LMOs for food, feed or processing (LMO-FFPs); options for implementing notification requirements; risk assessment and risk management; socioeconomic considerations; public awareness and participation; liability and redress; and other scientific and technical issues. It also addressed a number of standing issues: the report of the Compliance Committee, including its rules of procedure; operations and activities of the Biosafety Clearing-House (BCH); the status of capacity-building activities and use of the roster of experts; financial mechanism and resources; cooperation with other organizations; and a report of the Executive Secretary on the administration of the Protocol and on budgetary matters.
The meeting achieved a number of successful steps towards the Protocol’s implementation, including robust decisions on capacity building, and public awareness and participation, and constructive discussions on risk assessment and risk management, including agreement to establish an intersessional technical expert group. Nevertheless, the meeting did not succeed in fulfilling its main task laid out in the text of the Protocol itself, namely adopting a decision on the detailed requirements of documentation of LMO-FFPs “no later than two years after the date of entry into force of this Protocol” (Protocol Article 18.2(a)). Despite lengthy negotiations and several attempts at compromise, Brazil and New Zealand recorded their formal reservations during the closing plenary session, and adoption of the decision was deferred to COP/MOP-3. Main areas of disagreement included: requirements to specify which LMOs a shipment may contain; and thresholds for adventitious or technically unavoidable presence of LMOs and whether or not they trigger the documentation requirement. By the closure of the meeting, many expressed the hope that the inability to reach agreement on the critical issue of documentation of LMO-FFPs, which affects a large volume of agricultural commodities, will not overshadow the positive outcomes of the meeting, particularly since these outcomes will contribute to promoting implementation at the national level.
A BRIEF HISTORY OF THE CARTAGENA PROTOCOL
The Cartagena Protocol on Biosafety addresses the safe transfer, handling and use of LMOs that may have an adverse effect on biodiversity, taking into account human health, with a specific focus on transboundary movements. It establishes an advance informed agreement (AIA) procedure for imports of LMOs for intentional introduction into the environment, and also incorporates the precautionary approach and mechanisms for risk assessment and risk management. The Protocol establishes a Biosafety Clearing-House (BCH) to facilitate information exchange, and contains provisions on capacity building and financial resources, with special attention to developing countries and those without domestic regulatory systems. The Biosafety Protocol entered into force on 11 September 2003, 90 days after receipt of its 50th instrument of ratification. There are currently 119 Parties to the Protocol.
NEGOTIATION PROCESS: Article 19.3 of the Convention on Biological Diversity provides for Parties to consider the need for, and modalities of, a protocol setting out procedures in the field of the safe transfer, handling and use of LMOs resulting from biotechnology that may have an adverse effect on biodiversity and its components. A Biosafety Working Group (BSWG) was established to this end at COP-2 (November 1995, Jakarta, Indonesia).
The BSWG held six meetings between 1996 and 1999. The first two meetings identified elements for the future protocol and helped to articulate positions. BSWG-3 (October 1997, Montreal, Canada) developed a consolidated draft text to serve as the basis for negotiation. The fourth and fifth meetings focused on reducing and refining options for each article of the draft protocol. At the final meeting of the BSWG (February 1999, Cartagena, Colombia), delegates intended to complete negotiations and submit the draft protocol to the first Extraordinary Meeting of the COP (ExCOP), convened immediately following BSWG-6. Despite intense negotiations, delegates could not agree on a compromise package that would finalize the protocol, and the meeting was suspended. Outstanding issues included: the scope of the protocol; its relationship with other agreements, especially those related to trade; the treatment of LMO-FFPs; its reference to precaution; and documentation requirements.
Following suspension of the ExCOP, three sets of informal consultations were held, involving the five negotiating groups that had emerged during the Cartagena meetings: the Central and Eastern European Group; the Compromise Group (Japan, Mexico, Norway, Republic of Korea and Switzerland, joined later by New Zealand and Singapore); the European Union (EU); the Like-minded Group (the majority of developing countries); and the Miami Group (Argentina, Australia, Canada, Chile, the US and Uruguay). Compromise was reached on the outstanding issues, and the resumed ExCOP (January 2000, Montreal, Canada) adopted the Cartagena Protocol on Biosafety on 29 January 2000. The meeting also established the Intergovernmental Committee for the Cartagena Protocol on Biosafety (ICCP) to undertake preparations for COP/MOP-1, and requested the CBD Executive Secretary to prepare work for development of a BCH. During a special ceremony held at COP-5 (May 2000, Nairobi, Kenya), 67 countries and the European Community signed the Protocol.
ICCP PROCESS: The ICCP held three meetings between December 2000 and April 2002, and deliberations focused on: information sharing and the BCH; capacity building and the roster of experts; decision-making procedures; compliance; HTPI; monitoring and reporting; and liability and redress.
COP/MOP-1: COP/MOP-1 (February 2004, Kuala Lumpur, Malaysia) adopted decisions on: decision-making procedures; information sharing and the BCH; capacity building; HTPI; compliance; liability and redress; monitoring and reporting; the Secretariat; guidance to the financial mechanism; and the medium-term work programme. The meeting agreed on documentation of LMO-FFPs, pending a decision on detailed requirements, to: use a commercial invoice or other document to accompany the LMO-FFP; provide details of a contact point; and include the common, scientific and commercial names, and the transformation event code of the LMO or its unique identifier. An expert group was established to further elaborate specific identification requirements. Agreement was also reached on more detailed documentation requirements for LMOs destined for direct introduction into the environment. The meeting established a 15-member Compliance Committee, and launched an Ad Hoc Group on liability and redress.
REPORT OF THE FIRST MEETING OF THE AD HOC GROUP ON LIABILITY AND REDRESS
On Wednesday, 25 May 2005, Hamdallah Zedan, Executive Secretary of the Convention on Biological Diversity, opened the meeting of the Ad Hoc Group on liability and redress in the context of the Cartagena Protocol on Biosafety. He noted that the preparatory meeting of the Technical Expert Group on liability and redress (18-20 October 2004, Montreal, Canada) provided a solid base for discussions. Delegates elected René Lefeber (the Netherlands) and Jimena Nieto (Colombia) as Co-Chairs of the meeting, and Maria Mbengashe (South Africa) as the Rapporteur. They adopted the agenda of the meeting and organization of work (UNEP/CBD/BS/WG-L&R/1/1 and Add.1) without amendment.
Co-Chair Nieto presented the report of the meeting of the Technical Expert Group (UNEP/CBD/BS/WG-L&R/1/2), highlighting the lack of regional or international instruments specifically addressing liability for damage resulting from transboundary movements of LMOs.
The Secretariat introduced:
She highlighted relevant documents on risk assessment and management (UNEP/CBD/BS/COP-MOP/2/9) and on socioeconomic considerations (UNEP/CBD/BS/COP-MOP/2/12).
Egypt regretted the absence of Tewolde Egziabher (Ethiopia) due to Canada’s denial of a visa and stressed that host countries are required to facilitate, not hinder, participation. Executive Secretary Zedan informed delegates that the visa has been granted, following discussions with Canadian authorities.
REVIEW OF INFORMATION
On Wednesday, 25 May, the Ad Hoc Group heard presentations relating to liability and redress.
SCIENTIFIC ANALYSIS AND RISK ASSESSMENT: Muffy Koch (AgBios, Canada) and Piet van der Meer (Horizons, Belgium) presented an overview of the scientific analysis and assessment of risks resulting from transboundary movements of LMOs. Van der Meer noted that the objective of risk assessment is to identify and evaluate potential adverse effects of LMOs. He explained that it is generally a two-stage process, involving both the applicant intending to carry out the activity and the competent national authority ruling on the application. Koch described the mechanisms of transboundary movements, which can occur as a result of field trials or of general use, and which can be intentional or unintentional. Koch said that intentional transboundary movements can be legal or illegal, while unintentional movements can result from natural forces or human error. Van der Meer underscored that the determination of acceptable levels of risk is a cultural variable and depends on the release environment. After outlining the methodology and variables of risk assessment, he discussed the main pathways by which LMOs can cause damage, stressing the wide variation in terminology used by countries in assessing risks at different stages. They concluded that risk assessment is a scientifically sound methodical approach, carried out on a case-by-case and comparative basis, and stressed the need for transparency.
A summary of the discussion that followed the presentation is available at: http://enb.iisd.org/vol09/enb09313e.html
STATE RESPONSIBILITY AND INTERNATIONAL LIABILITY: Dan Ogolla (Secretariat) described recent developments in State responsibility and international liability. He focused on the work of the UN International Law Commission (ILC), highlighting its articles on State responsibility. He explained that forms of reparation could include restitution, compensation and satisfaction. He noted that the concept of international liability focuses on reparation of harm arising from acts not prohibited by international law. He outlined the ILC draft articles on preventing transboundary harm from hazardous activities and draft principles on the allocation of loss in the case of transboundary harm from hazardous activities.
Several delegates valued the distinction made by the ILC between State responsibility for wrongful acts and international liability for lawful acts. Co-Chair Lefeber suggested making available to the next meeting of the Ad Hoc Group the text of General Assembly Resolution 56/82 of 2001 (report of the 53rd session of the ILC), and the ILC draft articles and principles regarding transboundary harm.
OPTIONS, APPROACHES AND ISSUES FOR FURTHER CONSIDERATION
The Ad Hoc Group addressed scenarios, options, approaches and issues for further consideration, as identified by the Technical Expert Group on Liability and Redress (UNEP/CBD/BS/WG-L&R/1/2), from Wednesday to Friday, 25-27 May. On Friday, the Ad Hoc Group adopted the report of the meeting (UNEP/CBD/BS/WG-L&R/1/L.1), containing an amended annex, outlining options, approaches and issues for further consideration in elaborating international rules and procedures on liability and redress, including an appendix on scenarios (UNEP/CBD/BS/WG-L&R/1/L.1/Add.1).
The report, including an annex and appendix, is available online as UNEP/CBD/BS/COP-MOP/2/11 at http://www.biodiv.org/doc/meetings/bs/mop-02/official/mop-02-11-en.pdf.
SCOPE OF DAMAGE: On Wednesday and Friday, participants discussed two options on scope of damage: damage caused during shipment of LMOs, preferred by Canada and Argentina; and damage caused during shipment, transit, handling and/or use of LMOs, supported by many delegates, among which Switzerland, South Africa, Cameroon, Mexico and Kenya suggested inclusion of unintentional release. Senegal proposed including transit in both options. On the second option, the EU, supported by many, suggested making activities conditional upon finding their origin in transboundary movements. The US proposed adding time limitations and New Zealand suggested limitations of geographical scope and authorized use. Tanzania proposed changing reference to “damage caused by” to “damage resulting from” transport of LMOs, including transit, or from transport, transit, handling and/or use of LMOs that finds its origin in transboundary movements of LMOs.
Final Outcome: On the scope of damage resulting from LMOs’ transboundary movements, the annex outlines the functional scope as either: damage resulting from transport, including transit; or damage resulting from transport, transit, handling and/or use of LMOs that finds its origin in transboundary movements of LMOs, and from unintentional transboundary movements of LMOs.
Options for geographical scope have been included in the annex as: damage caused in areas within the limits of national jurisdiction or control of Parties, or of non-Parties, or in areas beyond the limits of national jurisdiction or control of States. Time limitations, limitation on the basis of geographical scope, limitation to authorization at the time of LMO import, and determination of the point of LMO import and export have been identified as issues for further consideration.
OPTIONAL COMPONENTS FOR THE DEFINITION OF DAMAGE: Delegates discussed optional components for the definition of damage from Wednesday to Friday, focusing on whether to retain both damage to the environment and damage to conservation and sustainable use of biodiversity, to merge them, or to retain only the reference to damage to biodiversity. Zimbabwe, Switzerland, Malaysia, Senegal and Uganda favored retaining both forms of damage. The EU, Iran, Colombia, Cuba, Mexico, Jordan and New Zealand supported retaining the reference to damage to biodiversity only. Australia proposed including a threshold for damage and criteria for defining damage. Syria and Mali expressed concern about damage to soil and water. Malaysia proposed adding reference to damage to biodiversity components. Delegates agreed on a proposal by New Zealand to postpone identification of sub-items of damage to biodiversity, thus deleting them from the annex. Many delegates suggested retaining a reference to socioeconomic damage, suggesting different possible components. Argentina said that socioeconomic damage is not within the Protocol’s scope, and the US stressed that an impact on biodiversity needs to be established before socioeconomic considerations are taken into account.
Final Outcome: The annex expands the description of four optional components for the definition of damage:
The annex also describes traditional damage, including loss of life or personal injury, loss of or damage to property and economic loss, and retains a component on costs of response measures.
VALUATION OF DAMAGE TO BIODIVERSITY: On Thursday and Friday, delegates discussed possible approaches to valuing damage to conservation and sustainable use of biodiversity. The EU asked that valuation of damage to conservation be based on reasonable measures. On defining biodiversity loss, many delegates stressed the need for baselines and differentiating LMOs from other causes, and requested capacity building for baseline development. Many also called for retaining a reference to the special situation of centers of origin and genetic diversity.
Final Outcome: On valuing damage to biodiversity, the annex identifies the costs of reasonable measures to reinstate the damaged environmental/biodiversity components and monetary compensation. Issues for further consideration include: determination of biodiversity loss, obligations to take response and reinstatement measures, special measures in case of damage to centers of origin and genetic diversity, formulation of quantitative thresholds of damage to conservation and sustainable use of biological diversity, and valuation of all types of damage.
CAUSATION: On Thursday, delegates discussed causation, with the EU suggesting further consideration of the level of regulation at both international and domestic levels.
Final Outcome: On causation, the annex identifies the following issues for consideration: the level of regulation; establishment of the causal link between damage and the activity; and the relevant burden of proof.
CHANNELING OF LIABILITY: On Thursday and Friday, delegates discussed possible approaches to channeling liability, the role of Parties of import and export, and standard of liability. On approaches to channeling liability, Australia, opposed by Egypt, noted that State responsibility and, with the EU, State liability are not appropriate. Cuba, Kenya and Colombia favored primary responsibility of the operator and residual State liability. The EU proposed adding an administrative approach based on allocation of the costs of response and reinstatement measures.
On civil liability, Iran suggested the extent of damage as another factor, proposing strict liability for damage to centers of origin. Argentina, Canada and the US favored fault-based liability. India, Cuba, Malaysia, the Washington Biotechnology Action Council and Greenpeace favored strict liability.
On possible exemptions to, or mitigation of, strict liability, Malaysia, supported by many and opposed by the EU, suggested deleting an exemption based on the activities permitted by an applicable law or a specific authorization. Liberia and others questioned an exemption regarding activities not considered harmful according to the state of scientific and technical knowledge at the time they were carried out. Egypt proposed an additional option providing for no exemptions to strict liability.
Final Outcome: In the annex, options proposed as possible approaches to the channeling of liability are: State responsibility; primary State liability; residual State liability in combination with primary liability of the operator; or no State liability, including civil liability or administrative approaches. The annex also lays out several issues relating specifically to civil liability for consideration: possible factors to determine the standard of liability and the identification of the liable person; standards and channeling of liability; an option for no exemptions and one listing possible exemptions to, or mitigations of, strict liability; additional tiers of liability, and issues for further consideration.
LIMITATIONS OF LIABILITY: On Thursday, delegates discussed limitations to liability, with Malaysia noting that limitations in amounts should be cross-referenced to financial security.
Final Outcome: In the annex, issues for further consideration encompass limitations in time and in amount.
FINANCIAL SECURITY: On Thursday, delegates discussed options for financial security mechanisms, including modes of financial security and collective financial arrangements. Malaysia and Colombia proposed a fund based on contributions from the biotechnology industry. Canada cautioned that controversy over a fund may deter ratification and suggested seeking guidance from the insurance industry on regime options. Switzerland suggested limiting guaranteed compensation to traditional damage.
Final Outcome: The annex states that coverage of liability can include compulsory or voluntary financial security. Four options are identified as supplementary collective compensation arrangements:
Modes of financial security and institutional modalities of operating a fund are identified as issues for further consideration.
SETTLEMENT OF CLAIMS: On Thursday, delegates discussed settlement of claims, including inter-State and civil procedures. The EU suggested considering administrative procedures. Greenpeace highlighted the need for a tribunal accessible to both States and private parties.
Final Outcome: On the settlement of claims, the annex suggests the following optional procedures: inter-State procedures, civil procedures, administrative procedures, and a special tribunal.
STANDING: On Thursday and Friday, delegates discussed issues for further consideration on standing. They agreed to a reference to affected, rather than injured, persons. On the issue of requiring direct involvement in LMO transboundary movement, Egypt proposed consideration of the level of involvement. On issues regarding the type of damage, New Zealand and the EU proposed that standing for claims for costs of response and reinstatement measures also be granted to the entity bearing the costs. Regarding traditional damage, Uganda and Côte d’Ivoire suggested granting standing to persons or groups acting in the interest of affected persons, while Namibia supported extending standing to dependents. Regarding damage to the environment and biodiversity, Uganda highlighted the possibility for affected communities to raise claims. On damage to human health, Ghana and Uganda suggested broadening standing from affected States to affected persons.
Final Outcome: On standing, the annex lists as issues for further consideration: level of regulation, distinction between inter-State and civil procedures, level of involvement in the transboundary movement of LMOs and types of damage. Types of damage have been expanded to include:
NON-PARTIES: On Thursday and Friday, delegates discussed issues for consideration on non-Parties. Malaysia and Uganda suggested an obligation on Parties trading with non-Parties to enter into bilateral agreements setting minimum standards on liability and redress.
Final Outcome: The annex identifies as issues for further consideration special rules and procedures in relation to LMOs imported from non-Parties, such as bilateral agreements requiring minimum standards.
USE OF TERMS: On Friday, delegates agreed to include a new section on issues for further consideration relating to the use of terms, without prejudice to the choice of instrument.
Final Outcome: The annex includes for further consideration the definition of terms such as “use,” “response measures,” “restoration measures” and “reasonable.”
CAPACITY BUILDING: On Friday, delegates considered a new section on capacity building, with many cautioning that it should not replace or delay drafting an international regime on liability and redress. The EU stressed it should assist governments to implement international rules and procedures on liability and redress into their national legislation. Uganda and South Africa suggested it be based on nationally-identified needs and priorities.
Final Outcome: On possible approaches to capacity building, two options are outlined in the annex: use of measures adopted under Biosafety Protocol Article 22 (Capacity Building), and development of complementary capacity-building measures, based on national needs and priorities, for the design and implementation of national rules and procedures on liability and redress.
CHOICE OF INSTRUMENT: On Thursday, delegates considered options on the choice of instrument. Senegal, supported by many, called for a legally-binding instrument. New Zealand, opposed by Malaysia, Mali, Trinidad and Tobago, and Iran, suggested that not having an instrument would an option. The EU preferred a two-stage approach, including developing a non-binding instrument, evaluating its effects, and subsequently considering development of a legally-binding instrument.
Final Outcome: Six options for instruments on liability and redress are identified in the annex:
SCENARIOS: On Wednesday, participants discussed whether the list of scenarios and sub-scenarios identified in the annex is non-exhaustive, suggested additions, and noted difficulties in discussing scenarios in isolation from other annex elements. On Friday, Rapporteur Mbengashe presented scenarios in an appendix to the amended annex.
Final Outcome: The appendix to the annex outlines six, non-exhaustive scenarios with a view to identifying situations for which international rules and procedures may be needed, including:
On Friday, 27 May, delegates considered the future work of the Ad Hoc Group. New Zealand, opposed by many, suggested developing a set of criteria or factors for assessing the effectiveness of possible liability rules. Co-Chair Lefeber proposed requesting governments to submit their views on assessment criteria. Co-Chair Lefeber then identified documents to be made available for consideration at the next meeting of the Ad Hoc Group, including:
The EU called for information on the concept of damage to biodiversity, including case studies, and for information on transnational procedures and institutions, including The Hague Conference on Private International Law. Malaysia, supported by Norway and the EU, suggested submitting proposals on draft text, to be synthesized by the Co-Chairs for discussion at the next meeting.
Rapporteur Mbengashe introduced the report of the meeting (UNEP/CBD/BS/WG-L&R/1/L.1) and the annex on options, approaches and issues for further consideration, including the appendix on scenarios (UNEP/CBD/BS/WG-L&R/1/L.1/Add.1). Delegates approved the report and the annex, as amended. Co-Chair Lefeber then called for comments on the conclusions of the Ad Hoc Group, contained in the report of the meeting. New Zealand suggested that the Co-Chairs prepare a compilation of views. Malaysia, supported by many, reiterated its proposal for a working draft. Following discussion, Co-Chair Lefeber proposed language requesting the Co-Chairs to “synthesize” text proposed by Parties into a “working draft,” with the understanding that it will not be selective.
In its conclusions, the Group requests the Secretariat to gather information on:
It invites submission of views on criteria for the assessment of the effectiveness of any rules and procedures on liability and redress, as well as on approaches, options and issues identified in the annex. It also requests the Co-Chairs to synthesize the submissions and produce a working draft for consideration at its second meeting.
Co-Chair Lefeber expressed satisfaction that the annex submitted by the Technical Expert Group, as built upon by the Ad Hoc Group, provides the basis for future work. He noted that important first steps have been made, but the way forward will be long and difficult. He gaveled the meeting to a close at 7:25 pm.
On Monday, 30 May, Suboh Mohd Yassin, Deputy Secretary-General of the Ministry of Natural Resources and Environment of Malaysia, on behalf of the COP/MOP-2 President Sothinathan Sinna Goundar, Deputy Minister Natural Resources and Environment of Malaysia, opened the meeting. Ahmed Djoghlaf, on behalf of UNEP Executive Director Klaus Töpfer, said combating hunger and achieving food security are laudable goals in the context of development and biosafety. CBD Executive Secretary Hamdallah Zedan noted that 119 countries have ratified the Biosafety Protocol.
Ethiopia, on behalf of the African Group, and Iran, reported problems in the granting of visas. Canada reassured Parties that it will continue working with the Secretariat to ensure delegates can enter the country.
China noted its recent ratification of the Biosafety Protocol. The Netherlands, on behalf of the EU and Bulgaria, stressed that the main objective of the meeting should be to further facilitate the Protocol’s implementation, taking into account the interests of developing countries, and of both importing and exporting countries. Switzerland expressed hope that COP/MOP-2 decisions will encourage more exporting countries to become Parties. Kiribati, on behalf of the Asia and Pacific Group, called for a stand-alone identification document accompanying shipments of living modified organisms for food, feed or processing, and for building capacity for the Protocol’s implementation. India, on behalf of the Like-minded Megadiverse Countries, emphasized: capacity building; the financial mechanism; notification; and, with the African Group and Iran, the need to decide urgently on elements of documentation. Greenpeace, on behalf of several NGOs, presented a case of contamination in Japan involving genetically modified canola shipped from Canada, and urged delegates to adopt stand-alone documentation and an interim regime on liability and redress. The International Grain Trade Coalition expressed concern regarding the Protocol’s impacts on the efficiency and cost of bulk trade in commodities.
The Secretariat said the COP/MOP-1 Bureau will continue serving at this meeting, comprising the following members: Birthe Ivars (Norway), Ronnie Devlin (Ireland), Moustafa Fouda (Egypt), Sergiy Gubar (Ukraine), Zamir Dedej (Albania), Orlando Santos (Cuba), Antonio Matamoros (Ecuador), Tererei Abete-Reema (Kiribati), N. Oyundar (Mongolia) and Sem Shikongo (Namibia).
Ethiopia proposed discussing, under other matters, the issue of accessibility of the seat of the CBD Secretariat to delegates representing Parties and observers. Delegates adopted the agenda and organization of work (UNEP/CBD/BS/COP-MOP/2/1 and Add.1) with this addition. Birthe Ivars and Orlando Santos were elected Chairs of Working Group I (WG-I) and Working Group II (WG-II), respectively. Sem Shikongo was elected Rapporteur.
During the week, COP/MOP-2 delegates convened in plenary on Monday and Wednesday to consider: the report of the Compliance Committee; financial resources and mechanism; cooperation with other organizations; administration of the Protocol and budget; and liability and redress. The plenary established a Friends of the President group on the rules of procedure of the Compliance Committee.
The working groups met from Monday to Friday. WG-I addressed: risk assessment and risk management; handling, transport, packaging and identification; the Biosafety Clearing-House; and other scientific and technical issues. WG-I established a contact group on documentation of LMO-FFPs, which met from Tuesday to the early hours on Friday. WG-II discussed: notification; capacity building; socioeconomic considerations; and public awareness and participation. The COP/MOP-2 closing plenary met on Friday afternoon to adopt decisions and the report of the meeting. This report summarizes discussions and decisions on each agenda item.
REPORT OF THE COMPLIANCE COMMITTEE: In plenary on Monday, Compliance Committee Chair Veit Koester (Denmark) introduced the report of the Committee’s first meeting (UNEP/CBD/BS/COP-MOP/2/2), including its work plan and draft rules of procedure. Brazil, Thailand, Japan and New Zealand expressed concern that some of the draft rules of procedure contradict the Committee’s facilitative role and transparent procedures, as outlined in decision BS-I/7 (Compliance), particularly regarding rule 18 providing for two-thirds majority decision making in the absence of consensus, and rule 14 referring to closed sessions. Delegates decided to convene a Friends of the President group facilitated by Jane Bulmer (UK). The Friends of the President group met on Wednesday and Thursday to discuss rules: 6 (agenda), 11 (conflicts of interest of Committee members), 14 (conduct of business), 18 (voting) and 22 (overriding authority of the Protocol and decision BS-I/7).
On Friday, Chair Bulmer reported to plenary that the group: bracketed rules 6 and 18; requested the Committee to give further consideration to conflicts of interest; reached compromise on closed sessions; and deleted “as the case may be” in reference to the overriding authority of the Protocol and decision BS-I/7. The plenary then considered bracketed text in rule 6, with Cuba and Uganda proposing the removal of brackets. New Zealand agreed, with the understanding that the Compliance Committee will restrict itself to its functions as specified in Decision BS-I/7. On rule 18, Panama and New Zealand reiterated their opposition to two-thirds majority decision making. The EU, Cuba, Uganda and Zimbabwe disagreed, noting that majority voting would facilitate the choice of facilitative measures by the Committee and that additional measures on non-compliance can only be taken by the COP/MOP. On rule 19 (language), Senegal proposed using any one of the UN official languages as the Committee’s working language. The plenary agreed to Senegal’s amendment, removed brackets on rule 6, and adopted the rules of procedure with the exception of rule 18, which remains bracketed.
Final Decision: In the decision (UNEP/CBD/BS/COP-MOP/2/L.14), COP/MOP-2 approves the rules of procedure annexed to the decision, with the exception of rule 18, which remains bracketed.
The rules of procedure, to be read in conjunction with decision BS-I/7, cover: purposes; definitions; dates and notice of meetings; agenda; distribution and consideration of information; publication of documents and information; members; officers; participation in Committee proceedings; conduct of business; voting; language; amendments; and overriding authority of the Protocol and Decision BS-I/7. The rules provide, inter alia, for the Committee to:
The rules also provide that:
COOPERATION WITH OTHER ORGANIZATIONS: The plenary considered cooperation with other organizations on Monday and Wednesday. On Monday, the Secretariat introduced a note on cooperation with other organizations, conventions and initiatives (UNEP/CBD/BS/COP-MOP/2/6). Several participants emphasized cooperation with the: World Trade Organization (WTO); Codex Alimentarius Commission; Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters of the UN Economic Commission for Europe; and World Customs Organization (WCO). On Wednesday, delegates considered a draft decision, and agreed to add references to the International Plant Protection Convention (IPPC) and the Office International des Epizooties. They debated, without reaching agreement, a proposal to encourage development of a memorandum of understanding with the Aarhus Convention. The closing plenary adopted the decision with an amendment to request the Executive Secretary to intensify cooperation with the Aarhus Convention Secretariat on matters of public awareness and participation.
Final Decision: In the decision (UNEP/CBD/BS/COP-MOP/2/L.13), COP/MOP-2 requests the Executive Secretary to:
REPORT ON THE PROTOCOL ADMINISTRATION AND BUDGET: On Monday, the plenary heard a report on Protocol administration and income and budget performance of the three trust funds established to finance activities under the Protocol (UNEP/CBD/BS/COP-MOP/2/7 and Add.1). The closing plenary adopted the decision with an editorial amendment.
Final Decision: In the decision (UNEP/CBD/BS/COP-MOP/2/L.15), the COP/MOP urges: Parties that have not yet done so to pay their contributions to the General Trust Fund; and Parties, non-Parties, intergovernmental and non-governmental organizations and other sources to contribute to the Special Voluntary Trust Funds to support approved activities and participation of developing country Parties and Parties with economies in transition.
FINANCIAL MECHANISM AND RESOURCES: On Monday, the Secretariat introduced a note on the financial mechanism and resources (UNEP/CBD/BS/COP-MOP/2/5). The Global Environment Facility (GEF) reported on its relevant activities. The agenda item was then discussed in WG-II in conjunction with discussions on capacity building. On Wednesday, delegates emphasized: assistance in policy formulation and development of legislation; development and implementation of national biosafety frameworks; and GEF-proposed language on sustainability of capacity building by incorporating follow-up actions into national capacity-building plans. The closing plenary adopted the decision without amendment.
Final Decision: In the decision (UNEP/CBD/BS/COP-MOP/2/WG.1/L.6), the COP/MOP:
SUBSTANTIVE ISSUES ARISING FROM THE MEDIUM-TERM PROGRAMME OF WORK AND PREVIOUS DECISIONS OF THE COP/MOP
HANDLING, TRANSPORT, PACKAGING AND IDENTIFICATION: Documentation for LMO-FFPs (Article 18.2(a)): Documentation for LMO-FFPs was addressed by WG-I on Tuesday, Thursday and Friday, in a contact group from Tuesday to Friday, and in plenary on Friday.
On Tuesday, delegates considered a report of the meeting of the Technical Expert Group on LMO-FFP identification requirements (UNEP/CBD/BS/COP-MOP/2/10) and information documents (UNEP/CBD/BS/COP-MOP/2/INF/2 and INF/3). François Pythoud (Switzerland) presented the report, noting that his annexed revised Chair’s text does not reflect consensus.
Many developing country Parties opposed using the “may contain” language included in Protocol Article 18.2(a), with the African Group stressing that no trace of unapproved LMOs should be contained in any commodity shipment, and that all approved LMOs should be identified. The EC supported allowing importing Parties to decide whether to require documentation in commercial invoices or in a stand-alone document.
Many countries emphasized the need to build capacity in monitoring and testing of thresholds for approved LMOs. WG-I Chair Ivars established a contact group, to be co-chaired by Pythoud and Nematollah Khansari (Iran).
The contact group met from Tuesday to Friday, including night sessions on Wednesday and Thursday. Delegates debated numerous proposals for the application of the “may contain” language in documentation requirements for LMO-FFPs in both the contact group and in several Friends of the Co-Chairs groups. Ultimately, delegates could not reach agreement on the key issues, including requirements to specify the LMOs that may be present in a shipment if the “may contain” language is used, thresholds for adventitious or technically unavoidable presence of LMOs, and a requirement to document that LMOs have been approved in the country of import.
Most of the deliberations focused on the extent to which the Party of export is required to fully specify the list of LMOs that may be contained in the shipment, in cases when it is not known which LMOs a shipment of LMO-FFPs contains. Proposals on this matter included: to specify which LMOs the shipment may contain, when it is presumed to contain LMOs; stating that the shipment may contain one or more of a list of LMOs; and stating that the shipment may contain one or more of the LMOs of the commodity in question that are in commercial production in the country of export and are approved in the country of import. Proposals also differed regarding the need to specify only LMOs approved and/or in commercial production in the exporting country or approved in the importing country. It was repeatedly explained that Article 18.2(a) applies only to LMOs already approved in the Party of import. One proposal provided for a decision by the importing party whether or not to require full specification by the exporter of the LMOs that may be contained in a shipment.
Several Parties stressed that documentation requirements should be flexible and the least restrictive possible, maintaining that requirements for full specification would go beyond the mandate given by Article 18.2(a) and Decision BS-I/6. Many developing Parties that are primarily importers opposed such proposals that would allow exporters to claim that they are unaware of the LMOs in a shipment, or encourage them to list all approved LMOs as a means of evading more precise listings.
On thresholds for adventitious or technically unavoidable presence of LMOs, most Parties agreed that they may be adopted or applied on a national basis, consistent with the objectives of the Protocol. A few opposed, with one Party noting that thresholds do not relate to Article 18.2(a).
Delegates reached consensus on options for documentation, requiring either a commercial invoice, an annex to a commercial invoice, or a stand-alone document. Different views were also expressed on sampling and detection techniques, including the development of criteria. After informal consultations, delegates agreed to further consider the issue at COP/MOP-4 based on experience gained.
On Friday, WG-I Chair Ivars introduced a draft decision produced by the contact group with bracketed references, including on: prior decision by the Party of import; two options on documentation requirements; approval of LMOs in the Party of import; and thresholds for adventitious or technically unavoidable presence of LMOs.
New Zealand, opposed by Iran, Zambia and Cameroon, requested replacing a reference to thresholds with language stating that the adventitious or technically unavoidable presence of LMOs does not trigger documentation and identification requirements under Article 18.2(a). Brazil requested bracketing already agreed text on using a stand-alone document and proposed alternative text on documentation requirements.
Switzerland presented a compromise non-paper without brackets containing a new proposal on documentation of LMO-FFPs, and including a reference to further consideration of the issue by COP/MOP-3. He stressed that the text contains language from the Protocol and decision BS-I/6 on key points of contention and represents a carefully balanced account of proposals brought forward during contact group negotiations.
The EC, on behalf of the EU, Bulgaria and Romania; Ethiopia, on behalf of the African Group; Norway, Cuba, Ukraine, Belize, Japan, Turkey, Venezuela and Colombia supported the proposed non-paper as a compromise package only. Brazil cautioned against a hasty decision and, opposed by Malaysia, suggested continuing negotiations on the basis of the non-paper at COP/MOP-3. New Zealand opposed references to thresholds. Panama opposed use of the “may contain” language. Kiribati, on behalf of the Asia and Pacific Group, and Iran proposed approving instead the draft decision submitted by the contact group, while including the provision to reconsider the issue at COP/MOP-3.
Ethiopia expressed surprise at Brazil’s negotiating stance and deplored its resistance to a better protection of developing-country interests. WG-I Chair Ivars said she would forward the Swiss compromise text to plenary as a Chair’s draft decision.
In plenary, COP/MOP-2 President Sothinathan Sinna Goundar (Malaysia) introduced the WG-I Chair’s draft decision for adoption. Brazil and New Zealand formally objected to the adoption of the draft decision. New Zealand highlighted it lacked clarity. COP/MOP-2 President Goundar noted the decision could not be adopted due to lack of consensus, and proposed recording in the report of the meeting that the meeting was unable to adopt a decision on documentation requirements for LMO-FFPs.
The Netherlands, on behalf of the EU, noted its disappointment, requesting that Article 18.2(a) and decision BS-I/6 be attached to the report. Mexico said that it will, in the absence of international guidance, continue to implement its national legislation.
Draft decision submitted by the WG-I Chair (Swiss compromise proposal): In the draft decision (UNEP/CBD/BS/COP-MOP/2/CRP.4), the COP/MOP: recalls Article 18.2(a) and decision BS-I/6 A; recognizes the potential for thresholds for adventitious or technically unavoidable presence of authorized LMOs as a practical tool for implementing documentation requirements; and recognizes the right of Parties to take more protective action consistent with the objectives of the Protocol.
The COP/MOP requests:
With regard to documentation requirements, the COP/MOP requests Parties and urges other governments to:
Documentation requirements applying to both cases include common, scientific and commercial names of the LMO, and its unique identifier or transformation event code.
The COP/MOP further:
Draft decision submitted by the contact group: The draft decision as submitted by the contact group (UNEP/CBD/BS/COP-MOP/2/WG.1/CRP.5) contains several additional references and a different proposal on documentation requirements. Bracketed references in the preamble include those recognizing: the role of thresholds, potential measures to clarify that only LMOs approved in the country of import are exported, and that transboundary movement shall take place in accordance to prior decision of the importing Party.
On documentation requirements for shipments that are known to contain a mixture of LMO-FFPs, the draft decision contains bracketed language on two options, the applicability of which shall be decided by the importing Party, and notified to other Parties through the BCH.
The documentation should clearly state that the shipment may contain LMOs and, in this case specifies which LMOs have been used to constitute the mixture; or the shipment may contain one or more of the LMOs of the commodity in question that are in commercial production in the country of export and are approved in the country of import.
An additional bracketed reference requires that documentation states that the LMOs have been approved in the Party of import. Documentation requirements applying to both cases include common, scientific and commercial names of the LMO, and its unique identifier or transformation event code.
The operative paragraph on thresholds – identical to that in the Swiss compromise proposal – is bracketed. The draft decision does not include a provision to further review documentation requirements at COP/MOP-3.
Documentation of LMOs destined for contained use or for intentional introduction into the environment (Article 18.2(b) and (c)): WG-I addressed documentation for LMOs destined for contained use on Tuesday and Wednesday. On Tuesday, the Secretariat introduced background documents (UNEP/CBD/BS/COP-MOP/2/10/Add.1 and UNEP/CBD/BS/COP-MOP/2/INF/4). On Wednesday, WG-I approved a draft decision with amendments, including on references to Article 20.3 (making information available to the BCH). The closing plenary adopted the decision without amendment.
Final Decision: In the decision (UNEP/CBD/BS/COP-MOP/2/L.5), the COP/MOP: urges Parties and invites other governments to take necessary measures, taking into account their specific capabilities, to ensure that those elements of paragraph 18.2(b) and (c) as elaborated in decision BS-I/6 B (paragraphs 2(b) and 2(c) of Article 18) are fully complied with; urges Parties to make available to the BCH information on their domestic import and documentation requirements with respect to LMOs for contained use and intentional introduction into the environment; and decides that documentation requirements of Article 18.2(b) and (c) will be considered in the context of the review of implementation of the Protocol, without prejudice to future consideration of a stand-alone document.
NOTIFICATION: WG-II addressed options for implementing notification requirements under Protocol Article 8 (Notification) from Monday to Wednesday.
On Monday, the Secretariat introduced the background document (UNEP/CBD/BS/COP-MOP/2/8). Most delegates suggested keeping the issue under review pending submission of interim national reports. A few suggested that some guidance could be adopted while continuing to benefit from national experiences.
On Tuesday, WG-II considered a draft decision. Delegates debated references to the rights of Parties of transit, and language on exporting countries’ notification requirements regarding Parties of transit. Zimbabwe, South Africa, Rwanda, Kenya and Tanzania stressed the need to provide for notification to the national authority of the Party of transit. Zambia suggested language acknowledging the right of a Party of transit to regulate the transport of LMOs through its territory, including requiring notification in writing to its competent national authority, if so required by its law. No agreement was reached and the reference was bracketed.
On Wednesday, delegates discussed a revised draft decision. New Zealand, Brazil and Australia requested deleting a recommendation to Parties to consider elements on notification, including enforcement measures, use of language determined by the Party of import, and the bracketed reference to rights of a Party of transit. Following informal consultations, delegates agreed to acknowledge that the right of a Party of transit may include “communication” in writing rather than “notification,” to avoid reproducing terms of the advanced informed agreement (AIA) procedure, which does not apply to LMOs in transit, and approved the draft decision as amended. The closing plenary adopted the decision without amendment.
Final Decision: In the decision (UNEP/CBD/BS/COP-MOP/2/L.3), the COP/MOP decides to keep notification under review with a view to elaborating and developing, if appropriate, at COP/MOP-4, implementation modalities of notification requirements, taking into account the information on national implementation and experiences included in the interim national reports, due by 11 September 2005. It also recommends Parties consider: applying necessary measures to enforce the notification requirements; requiring the exporter to use in the notification the language determined by the Party of import; and acknowledging the right of a Party of transit to regulate the transport of LMOs through its territory, including requiring communication in writing to the competent national authority of the Party of transit, if so required by its regulations.
RISK ASSESSMENT AND RISK MANAGEMENT: WG-I considered risk assessment and risk management from Monday to Thursday. On Monday, the Secretariat introduced the background document (UNEP/CBD/BS/COP-MOP/2/9). Many countries supported elaborating guiding principles on risk assessment and management, proposing that they include minimum requirements, allow for national-level flexibility, and not be prescriptive or constraining. Delegates also discussed whether to establish a subsidiary scientific body to elaborate such guidelines. On Wednesday, WG-I considered a draft decision, and delegates discussed an EU proposal to convene an ad hoc technical expert group (AHTEG) on risk assessment prior to COP/MOP-3. Some delegates called for regional capacity-building workshops. On Thursday, after informal consultations, delegates agreed to convene the AHTEG, and move references to the establishment of a permanent subsidiary body to the decision on other scientific and technical issues. They also decided that guidance developed by the COP/MOP should support a harmonized approach in accordance with Protocol Annex III (Risk Assessment). The closing plenary adopted the decision without amendment.
Final Decision: In the decision (UNEP/CBD/BS/COP-MOP/2/L.11), the COP/MOP:
According to the annexed terms of reference, the AHTEG shall: consider the nature and scope of existing risk assessment approaches; evaluate their relevance under the Protocol and identify gaps; identify areas where capacity may be particularly important; and report to COP/MOP-3.
BIOSAFETY CLEARING-HOUSE: On Monday, the Secretariat introduced documents on the operation and activities of the BCH (UNEP/CBD/BS/COP-MOP/2/3), including a draft multi-year programme of work (MYPOW), and on the internal review of the BCH (UNEP/CBD/BS/COP-MOP/2/INF/1).
Many countries welcomed the MYPOW, with its focus on the structure and function of the BCH central portal and on information content and management. Stressing the key role of the BCH in implementing the Protocol, many developing countries emphasized capacity building and non-internet accessibility, and highlighted, inter alia, building national capacities for data collection and making information available in different languages. Delegates discussed interoperability of central, regional and national databases and incorporation of information in formats not currently used by the BCH, including the FAO International Portal on Food Safety, Animal and Plant Health. Some called for regional capacity-building workshops.
On Wednesday, WG-I Chair Ivars introduced a draft decision. During the discussion, delegates adopted an amendment to welcome the continuing efforts of the GEF to expand its support for capacity building, and text addressing the needs of developing countries as well as those of countries with limited capacity that are centers of origin and genetic diversity. WG-I approved the draft decision as amended.
The closing plenary adopted the decision, amending the preamble to thank the UNEP/GEF biosafety team for their cooperation on BCH programmes.
Final Decision: In the decision (UNEP/CBD/BS/COP-MOP/2/WG.1/L.4), COP/MOP-2 adopts a MYPOW with five programme elements:
It invites Parties and other users to identify constraints on making information available, and donors to assist developing country Parties to access and use the BCH. It requests the Executive Secretary to continue supporting capacity-building efforts to meet needs of developing countries for participation in the BCH.
CAPACITY BUILDING: On Monday and Wednesday, WG-II reviewed capacity-building activities, needs and priorities and the implementation of the Coordination Mechanism, and considered draft terms of reference for a review of the Action Plan on capacity building. They also discussed use of the roster of experts.
On Monday afternoon, the Secretariat introduced notes on the status of capacity-building activities and use of the roster of experts (UNEP/CBD/BS/COP-MOP/2/4 and Add.1) and relevant information documents (UNEP/CBD/BS/COP-MOP/2/INF/7-10). On capacity-building needs and priorities, delegates emphasized: developing institutional, financial and technical capacity for implementing the Protocol; risk assessment and management; detection, identification and monitoring of LMOs; storage capacity; and regional and bilateral cooperation. On areas for research focus, delegates suggested strengthening research for country assessments, and prioritizing public research and quick LMO assessments. Others stressed information exchange and data management, including ensuring full participation in the BCH and the need to guarantee the sustainability of capacity-building activities.
Developing country delegates stressed the need to extend GEF funding to address countries’ currently identified capacity-building needs, and urged donor countries to contribute. Many called for simplifying procedures to access GEF and donor support, and for coordinating donor assistance.
Noting that no country had yet used the roster of experts, delegates stressed the need to publicize it and promote awareness of available funding to increase its use. The EU suggested that the questionnaire proposed in the draft terms of reference address constraints in using the roster of experts and the Coordination Mechanism.
On Wednesday, delegates considered a draft decision. On measures to address capacity-building needs and priorities, delegates called for assistance to conduct independent research and emphasized assistance in policy formulation and legislation development. Turkey suggested specific reference to the development and implementation of national biosafety frameworks. The GEF proposed language emphasizing sustainability of capacity building by incorporating follow-up actions into national capacity-building plans. WG-II approved the draft decision as amended. WG-II also approved a draft decision on the roster of experts with minor amendments. The closing plenary adopted the decision on capacity building with minor editorial amendments and the decision on the roster of experts with no amendment.
Final Decisions: The final decision on capacity building (UNEP/CBD/BS/COP-MOP/2/L.7) includes sections on the Coordination Mechanism, capacity-building needs and priorities and possible measures for addressing them, and annexed terms of reference for the review and possible revision of the Action Plan.
On the Coordination Mechanism, the COP/MOP urges Parties, other governments and organizations to: share information through the Coordination Mechanism and BCH; ensure reliable quality of that information; and communicate their biosafety training and education needs to the BCH. It encourages collaborative partnerships, development of national biosafety frameworks, and the identification and communication to the BCH, of biosafety training and education needs.
On capacity-building needs and priorities and possible measures for addressing them, the COP/MOP reminds Parties to submit to the BCH information on their capacity-building needs and priorities, and invites support for developing country Parties in particular for the development and implementation of national biosafety frameworks. It urges prioritizing: development of national strategies, in particular for national biosafety frameworks; and development of sustainable capacity-building plans and programmes, and regional and subregional initiatives and approaches.
According to the annexed terms of reference, the COP/MOP decides to review and, if necessary, revise the Action Plan to ensure it is current, relevant and effective in providing a coherent framework for capacity-building efforts consistent with the needs and priorities of Parties and other governments. Parties and other governments are invited to submit responses to a questionnaire, to be circulated by the Secretariat, no later than three months prior to COP/MOP-3. The Secretariat will prepare a background paper outlining strategic recommendations to be taken into account in the possible revision of the Action Plan and may prepare a draft decision for consideration by COP/MOP-3.
In the decision on the roster of experts (UNEP/CBD/BS/COP-MOP/2/L.8), COP/MOP-2 reiterates its call to use the roster of experts, and requests the Secretariat to promote awareness about the roster and to include in the questionnaire on capacity-building questions to assess the possible reasons behind the limited use of the roster.
LIABILITY AND REDRESS: On Monday, René Lefeber (the Netherlands), Co-Chair of the Ad Hoc Open-ended Working Group of Legal and Technical Experts on Liability and Redress, reported to the plenary on the meeting of the Working Group held immediately prior to COP/MOP-2 (UNEP/CBD/BS/COP-MOP/2/11). On Friday, the closing plenary took note of the report.
Final Decision: In the decision (UNEP/CBD/BS/COP-MOP/2/L.10), the COP/MOP takes note of the report, and agrees that the second meeting of the Group should be held prior to COP/MOP-4. It invites the Group to develop an assessment of progress, with proposals to expedite the process, as needed, for consideration by COP/MOP-3.
SOCIOECONOMIC CONSIDERATIONS: On Tuesday and Thursday, WG-II considered cooperation on research and information exchange on socioeconomic considerations of LMOs. On Tuesday, the Secretariat introduced a background note (UNEP/CBD/BS/COP-MOP/2/12). Many supported: compiling information on policies and laws; building capacities to assess socioeconomic factors; and using the BCH. Malaysia, supported by many, urged a UNEP study on current socioeconomic impacts of LMOs. Some cautioned against creating trade barriers and called for consistency with other international agreements. Brazil highlighted the lack of international agreement on a common methodology for evaluating socioeconomic impacts. Many delegates suggested specific timelines for considering a synthesis of views. The EU considered it premature to submit proposals to COP/MOP-3.
On Thursday, delegates considered a draft decision. They discussed whether references to Protocol Article 26.1 (incorporation of socioeconomic considerations into import decisions) exceed the mandate of COP/MOP-2, which specifically refers to Protocol Article 26.2 (cooperation on research on information exchange on socioeconomic considerations) and, following debate, agreed to remove reference to the Protocol provisions. Delegates debated whether a request for submission of views and case studies on socioeconomic impacts of LMOs would also include possible modalities of incorporating socioeconomic considerations into import decisions. Others wanted to retain the reference, noting that it refers to information gathering and is thus in line with COP/MOP-2 mandate. Following informal consultations, delegates agreed to delete the request for information on modalities of incorporating socioeconomic considerations into import decisions, with the understanding that the wording does not prejudge nor limit information to be submitted. WG-II approved the draft decision as amended.
Final Decision: In the decision (UNEP/CBD/BS/COP-MOP/2/L.12), the COP/MOP invites continued cooperation with other organizations and arrangements, such as those referred to in section III of the background note on socioeconomic considerations prepared by the Executive Secretary (UNEP/CBD/BS/COP-MOP/2/12) and emphasizes the need to research socioeconomic impacts and allocate resources to such research. It invites Parties to share information through the BCH on research methods and results, both positive and negative, and on experiences in taking into account socioeconomic impacts, including in implementing the Akwé: Kon Voluntary Guidelines on impact assessment under CBD Article 8(j). It also requests Parties to provide to the Executive Secretary their views and case studies concerning socioeconomic impacts of LMOs, for consideration by COP/MOP-4.
PUBLIC AWARENESS AND PARTICIPATION: On Tuesday and Wednesday, WG-II considered cooperation between Parties, other States and international bodies on the promotion and facilitation of public awareness and participation regarding the safe transfer, handling and use of LMOs. On Tuesday, the Secretariat presented a background document containing options for cooperation (UNEP/CBD/BS/COP-MOP/2/13). Many delegates highlighted the work of GEF, called for ensuring funding, and supported using the BCH. Delegates debated at length which international bodies were relevant, with some highlighting the importance of the Aarhus Convention, and others opposing importing concepts agreed at the regional level. Delegates also stressed the importance of programme sustainability, educational systems and regional collaboration, adaptation of biosafety information to local languages and situations, and equal opportunities for all stakeholders.
On Wednesday, delegates discussed a draft decision. They deleted text referring only to cooperation with the Aarhus Convention and agreed instead to invite cooperation through frameworks provided by related national and international instruments, in particular the Aarhus Convention. WG-II approved the draft decision as amended. The closing plenary adopted the decision without further amendment.
Final Decision: In the decision (UNEP/CBD/BS/COP-MOP/2/L.9), the COP/MOP encourages leveraging opportunities for cooperation and development, and support for regional and subregional initiatives, and urges development and implementation of national programmes. It invites use of the BCH for information and experience sharing, and reminds Parties to submit their capacity needs to the BCH. It encourages use of the media and other specified CBD tools and UN initiatives, and requests the Secretariat to continue promoting public awareness and education on the Protocol through the Protocol website and the CBD outreach programme. The COP/MOP also decides to consider and review progress on the implementation of Article 23 (Public Awareness and Participation) and asks the Executive Secretary to prepare a synthesis report on the status of implementation of Protocol Article 23.1(a) for COP/MOP-5.
OTHER SCIENTIFIC AND TECHNICAL ISSUES: On Tuesday, the Secretariat introduced documents on other scientific and technical issues necessary for the Protocol’s implementation (UNEP/CBD/BS/COP-MOP/2/14 and UNEP/CBD/BS/COP-MOP/2/INF/6). Delegates discussed the status of documentation requirements for LMOs that are veterinary products. Many delegates stated that all LMO veterinary products are destined for intentional release. New Zealand noted that the Protocol does not exempt LMO veterinary products and suggested that Parties could initially use the simplified procedure of Protocol Article 13 to exempt LMO veterinary products that meet their requirements before the issue of excluding them is raised by the COP/MOP. Delegates also raised the issue of documentation obligations for transit States, with Argentina requesting that obligations apply to exporters only.
On Thursday, WG-I Chair Ivars introduced a draft decision with elements on: obligations and rights of transit States; exchange of information on biosafety research; and exemptions from the AIA procedure. On exchange of information, the EU proposed deleting a request to ensure that the Biosafety Information Resource Centre accommodates information requests. The EU and Malaysia supported deleting the section on exemptions from the AIA procedure. WG-I approved the draft decision as amended.
The closing plenary adopted the decision, including an operative paragraph on submission of views regarding establishment of a permanent subsidiary body to provide scientific and technical advice, including risk assessment and risk management, as had been suggested in the discussions on risk assessment.
Final Decision: In the decision (UNEP/CBD/BS/COP-MOP/2/WG.1/L.4), the COP/MOP invites Parties, other governments and relevant international organizations to: submit views on rights and obligations of transit States; exchange information on biosafety research; and submit views on establishing a permanent subsidiary to provide scientific and technical advice.
On Friday afternoon, 3 June, COP/MOP-2 President Goundar convened the closing plenary session. Bureau member Ronald Devlin (Ireland) presented the report on credentials, noting that 38 delegations whose credentials were not in order have signed a declaration to submit their credentials within 30 days.
OTHER MATTERS: Ethiopia drew attention to a meeting held with the Canadian delegation and officials responsible for visa matters, who promised that delays and denials of visas for delegates will not be repeated, and suggested the issue be closed for the moment.
DATE AND VENUE OF COP/MOP-3: On the date and venue of COP/MOP-3, the Secretariat said it will take place from 13-17 March 2006, in Curitiba, Brazil. Brazil invited all participants to attend CBD COP-8 (20-31 March 2006) and COP/MOP-3 in Curitiba, the “ecological capital of Brazil.”
ADOPTION OF THE REPORT: Rapporteur Sem Shikongo (Namibia) presented the report of the meeting (UNEP/CBD/BS/COP-MOP/2/L.1), which was adopted with the inclusion of a reference stating that no decision was adopted on documentation requirements for LMO-FFPs. The working group reports (UNEP/CBD/BS/COP-MOP/2/L.1/Add.1 and Add.2) were also adopted.
Australia called on Parties to make practical arrangements consistent with other international agreements and expressed concern about the desire of some Parties to expand the Protocol into policy areas outside its core, such as socioeconomic issues, and about the unnecessary haste in establishing a liability regime. She said that not having a decision is better than a bad decision on documentation for LMO-FFPs and stressed that adventitious presence should not trigger documentation. Canada commended Parties on progress made, noting the meeting laid a good foundation for building consensus at COP/MOP-3.
Ethiopia, on behalf of the African Group; the Netherlands, on behalf of the EU and Bulgaria and Romania; India, on behalf of the Asia and Pacific Group; and Norway expressed distress because of the failure to reach agreement on documentation for LMO-FFPs. The African Group urged developing country delegates to develop national legislation to address genetic pollution, noting that the majority of developed countries protect themselves through national legislation. Syria expressed optimism, and Kenya hope, that a solution would be reached at COP/MOP-3. The EU stressed the meeting failed to meet the commitment made during the Protocol adoption to agree within two years after entry into force, and also regretted bracketed language regarding the voting rule under the Compliance Committee’s rules of procedure. The Asia and Pacific Group highlighted the burden placed on the Compliance Committee, which will have to decide each time whether to meet in open or closed sessions. The EU and the Asia and Pacific Group also underlined positive developments regarding public awareness, capacity building, and risk assessment and management. The DPR Korea expressed appreciation to GEF for its sustained financial support.
Friends of the Earth International expressed disappointment that two countries blocked decision making on documentation for LMO-FFPs, and stressed that the Brazil and New Zealand delegations lacked biosafety expertise and arguments to back their position, and served the interests of non-Parties and the biotech industry. He expressed hope that countries will establish national and regional biosafety frameworks.
The Brazilian Institute for Consumer Defense (IDEC), on behalf of NGOs and civil society organizations, stressed the Brazilian delegation does not represent the real interests of the Brazilian people and underlined that the UNEP representative delivered a pro-industry statement. She recalled that the Protocol seeks to ensure biosafety, not promote trade.
The Global Industry Coalition called for balancing the risks and benefits of biotechnology.
COP/MOP-2 President Goundar highlighted progress but noted that important business is left unfinished. Executive Secretary Zedan expressed appreciation to countries contributing financially to the participation of developing countries and countries with economies in transition, and stressed that the lack of consensus on documentation for LMO-FFPs should not overshadow positive achievements.
COP/MOP-2 President Goundar gaveled the meeting to a close at 6:20 pm.
A BRIEF ANALYSIS OF COP/MOP-2
As bleary-eyed delegates to the second meeting of the Parties to the Cartagena Protocol on Biosafety (COP/MOP-2) gathered to adopt the meeting’s decisions, many cast their thoughts back to the Protocol’s adoption in that same room five years before. As was the case in 2000, where negotiations hinged on the agreement that documentation for transboundary movements of living modifying organisms intended for food, feed, or for processing (LMO-FFPs) identify that they “may contain” LMOs, elaboration of more detailed documentation requirements for LMO-FFPs was the core issue on the agenda at COP/MOP-2. Delegates in Montreal faced a deadline arising out of the mandate, laid out in the Protocol, to elaborate these requirements within two years of its entry into force. Despite several late nights and extensive negotiations, delegates were unable to reach consensus on this delicate issue. Nevertheless, progress was made in discussions on risk assessment and management, capacity building, and public participation and awareness. Within this context, this brief analysis will focus on the issues and interests underlying the difficulties in reaching agreement on detailed documentation requirements for LMO-FFPs.
ONE MAN IN HIS TIME PLAYS MANY PARTS: SHIFTING COALITIONS
While the issues confronting the Cartagena Protocol may be as complicated and divisive as ever, there have been some notable changes since the completion of the negotiations in 2000. Coalitions have shifted over time and interests now seem to be reorganized among several clusters. In addition to the increasingly visible alignments of LMO-exporting, LMO-importing and transit Parties, negotiations at COP/MOP-2 also pitted Parties who have already implemented national biosafety frameworks against those still seeking guidance on the matter.
In general terms, exporting countries still represent the minority, and they are primarily concerned that the Protocol’s provisions do not interfere with their access to markets. Transit Parties seek to ensure their sovereign rights, not only to be notified of LMOs in transit but also to control transit of LMOs they have not approved. They are often in the situation of trying to balance their stake in a thriving transportation business with protecting their national biodiversity from unauthorized LMO releases. Importing countries value information on, and seek to ensure control over, LMOs entering their borders. In particular developing countries still lacking national legislation, have repeatedly expressed their fear of ending up as “dumping grounds” of LMOs they have not approved or that are not even approved in exporting countries.
Parties who have not yet developed legislation and infrastructure at the national level often find themselves looking to the Protocol for direction and perhaps even a starting point for national implementation. Thus, they are likely to opt for more detailed agreed guidelines at the international level. Those Parties who have already put in place biosafety laws are less reliant on the protection provided by further developments under the Protocol. In some cases, pre-existing national legislation reduces their flexibility in negotiating at the international level. Some were taken aback as countries, such as Brazil, who were once member of the Like-minded group, and now have a significant volume of LMO trade, realigned their positions according to these evolving realities and no longer found themselves in sync with their former allies.
Several Parties called on more LMO exporters to ratify the Protocol. Some non-Parties admittedly kept their attentive observer status hoping that their presence could ensure that the Protocol does not expand its areas of action beyond its mandate. Other non-Parties, who are rapidly expanding their LMO exporting activities, closely followed the negotiations with ratification in mind and, despite some complaints that non-Party participation in proceedings was not sufficiently facilitated, successfully highlighted ways in which certain COP/MOP-2 decisions could preclude their eventual ratification.
CONTAINS OR MAY CONTAIN, THAT IS THE QUESTION…
The legendary “may contain” provision, the notion that documentation for any shipment of LMO-FFPs identify that it may contain LMOs, was introduced in the final moments of the Protocol’s negotiation by LMO-producers, concerned that they would be unable to comply with detailed documentation requirements at that time. Many opposed the “may contain” formulation and compromise was contingent on specifying, in the text of the Protocol, that the COP/MOP would decide on detailed requirements for this purpose within two years of entry into force, namely by 11 September 2005.
As delegates arrived in Montreal, importing and exporting countries came with widely varying concerns on the need to specify the details of documentation that would accompany transboundary movements of LMO-FFPs. This focus on documentation involves much more than just the design of a commercial invoice, and of most concern was the procedure to follow in the case of uncertainty as to the content of a commodity shipment.
Exporting countries are worried that labeling any shipment that might include LMO-FFPs as containing LMOs might interfere with trade in several ways. Apart from fears that many commodity producers do not have the capability to account for small amounts of LMOs that might be contained in a shipment, there is widespread concern that stricter documentation requirements could either mean setting up expensive segregation infrastructures, or warrant the labeling of all shipments from LMO-producing countries as containing LMOs, even if this is most likely not the case. This could significantly restrict market access and impact LMO-producing countries whose economies rely heavily on agricultural exports.
Importing countries fear that lax documentation requirements will give too much flexibility to exporters and that all shipments they received could include a long list of LMOs the shipment may or may not contain. They are concerned that such an avalanche of uncertain information will make approval procedures for shipments more difficult. Importing countries also placed a premium on a means of assessing the validity of such documentation, in particular as the choice between “contains” and “may contain” relates to shifting the burden of proof from the exporting to the importing country.
NOW IS THE WINTER OF OUR DISCONTENT…
During the meetings of the contact group, co-chaired by Switzerland’s François Pythoud and Iran’s Nematollah Khansari, importers and exporters had many opportunities to discuss virtually every conceivable option on the degree of specificity of documentation requirements. Despite achieving broad consensus on the need for flexibility in the type of document to be used, delegates disagreed on the need for flexibility in the exact formulation of the statement explaining the presence of LMOs.
Recognizing the deadlock on this issue, on Friday, Switzerland introduced a compromise package, drawing on the Protocol text and on the COP/MOP-1 decision on this issue, which provided for an interim solution and the finalizing of discussions at COP/MOP-3. Many Parties noted that this solution represented only a small step forward from the COP/MOP-1 decision, yet were willing to support its adoption in order to fulfill the Protocol’s mandate. However, Brazil and New Zealand were unable to agree to this compromise text. New Zealand opposed the notion that thresholds could be established and require documentation for shipments that contain only traces of LMOs, resulting from adventitious or technically unavoidable sources. Brazil warned against taking a hasty decision on the issue, stressing possible trade implications, and underscored confidence that consensus could be reached at COP/MOP-3, scheduled to be held in Curitiba, Brazil, in only nine months time. In the end, as consensus was impossible even on such a small step, the Swiss compromise proposal was included in the report of the meeting with a note that discussions would resume at COP/MOP-3.
Many countries, regional groups and non-governmental organizations recorded their deep disappointment with the inability to reach a decision on documentation. It was repeatedly highlighted that COP/MOP was not fulfilling the mandate set out in the Protocol, and Ethiopia’s Tewolde Egziabher made a passionate plea to all developing countries to follow the lead of developed countries and, in the absence of international documentation standards, put in place national legislation to control entry of LMOs and documentation requirements.
As delegates left the hall disappointed, many explained that this COP/MOP had really only been convened to address this thorny question and fulfill the Protocol’s mandate. Some even felt that failing to meet this mandate symbolized a gesture of bad faith vis-à-vis the compromise achieved in 2000. Nevertheless a few were hopeful that COP/MOP-3 negotiations could build on some of the options discussed over the course of COP/MOP-2.
TOMORROW, AND TOMORROW, AND TOMORROW…
Many don’t expect much to change in this exceptionally short intersessional period. Some highlighted that the difficulty of resolving this Hamletic dilemma and establishing a standard for determining whether a shipment does or does not contain LMO-FFPs, and determining who bears the responsibility of verifying such a standard, is closely linked to ongoing negotiations under the Protocol on both the operation of the compliance committee and the establishment of a liability and redress regime. Indeed, if a stricter liability regime were in place, then the validity of documentation claims might be of lesser concern. Similarly, if compliance with the Protocol is closely monitored and strictly enforced, then weaker provisions on documentation would be less likely to have a significant impact on the protection of biodiversity.
Monitoring and testing is crucial to establishing the LMO content of any shipment and this necessitates a significant increase in capacity and capability across all countries. Capacity building was universally emphasized in every aspect of the Protocol’s implementation, and much progress has been achieved, with many countries commending joint efforts by UNEP and the Global Environment Facility for their support.
In the end, despite the fact that delegates could not reach consensus on documentation for transboundary movement of LMO-FFPs, many veterans noted that this should not overshadow the accomplishments of COP/MOP-2. Delegates agreed to convene an Ad Hoc Technical Expert Group to discuss risk assessment and management prior to COP/MOP-3, and also succeeded in agreeing on robust decisions on capacity building and public awareness and participation. While it is still uncertain if Parties will be able to reach consensus on documentation at COP/MOP-3, the most optimistic noted that, in light of its young age, the Biosafety Protocol’s implementation was progressing quite briskly relative to other international processes.
E-CONFERENCE ON THE PRECAUTIONARY PRINCIPLE IN BIODIVERSITY CONSERVATION AND NATURAL RESOURCE MANAGEMENT: This web-based conference, organized by IUCN, Fauna & Flora International, Resource Africa and TRAFFIC, will take place from 7-19 June 2005. It aims to generate a broad range of input into the forthcoming project publication, Best Practice Guidance for the Application of the Precautionary Principle in Biodiversity Conservation and Natural Resource Management. For more information, contact: Nicholas Wilkinson, Fauna and Flora International; tel: +44(0)1223-579020; fax: +44(0)1223-461481; e-mail: email@example.com; internet: http://www.pprinciple.net/econference.html
FIRST MEETING OF THE WORKING GROUP ON PROTECTED AREAS: The first meeting of the CBD Ad Hoc Open-ended Working Group on Protected Areas will be held from 13-17 June 2005, in Montecatini, Italy. For more information, contact: CBD Secretariat; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: firstname.lastname@example.org; internet: http://www.biodiv.org/doc/meeting.aspx?mtg=PAWG-01
MEETING ON AGRICULTURAL BIOTECHNOLOGY: TEN YEARS AFTER: The meeting on “Agricultural Biotechnology: Ten Years After,” organized by the International Consortium on Agricultural Biotechnology Research, will be held from 6-10 July 2005, in Ravello, Italy. For more information, contact: Vittorio Santaniello; tel: +39-06-72595843 or +39-06-72595705; fax: +39-06-72595-721; e-mail: email@example.com; internet: http://www.economia.uniroma2.it/conferenze/icabr2005/Default.asp
FIRST MEETING OF THE WORKING GROUP ON THE REVIEW OF IMPLEMENTATION OF THE CONVENTION: The first meeting of the CBD Ad Hoc Open-ended Working Group on the Review of Implementation of the Convention will be held from 5-9 September 2005, in Montreal, Canada. For more information, contact: CBD Secretariat; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: firstname.lastname@example.org; internet: http://www.biodiv.org/meetings/
FIRST DIVERSITAS OPEN SCIENCE CONFERENCE: This conference will be held from 9-12 November 2005, in Oaxaca, Mexico, convening under the theme “Integrating biodiversity science for human well-being.” For more information, contact: Diversitas Secretariat; tel: +33-1-45-25-95-25; fax: +33-1-42-88-94-31; e-mail: email@example.com; internet: http://www.diversitas-osc1.org
ELEVENTH MEETING OF THE SUBSIDIARY BODY ON SCIENTIFIC, TECHNICAL AND TECHNOLOGICAL ADVICE: CBD SBSTTA-11 will take place from 28 November to 2 December 2005, in Montreal, Canada. For more information, contact: CBD Secretariat; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: firstname.lastname@example.org; internet: http://www.biodiv.org/doc/meeting.aspx?mtg=SBSTTA-11
SECOND MEETING OF THE WORKING GROUP ON PROTECTED AREAS: The second meeting of the CBD Ad Hoc Open-ended Working Group on Protected Areas will be held from 5-9 December 2005, in Montreal, Canada. For more information, contact: CBD Secretariat; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: email@example.com; internet: http://www.biodiv.org/meetings/
FOURTH MEETING OF THE WORKING GROUP ON ARTICLE 8(J) AND ACCESS AND BENEFIT SHARING (ABS-4): The fourth meeting of the CBD Ad Hoc Working Group on Article 8(j) and Related Provisions will be held from 23-27 January in Grenada, Spain. It will be followed by the fourth meeting of the CBD Ad Hoc Open-ended Working Group on Access and Benefit Sharing, which will convene from 30 January to 3 February 2006. For more information, contact: CBD Secretariat; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: firstname.lastname@example.org; internet: http://www.biodiv.org/meetings/
SECOND MEETING OF THE COMPLIANCE COMMITTEE UNDER THE CARTAGENA PROTOCOL ON BIOSAFETY: The second meeting of the Compliance Committee under the Cartagena Protocol on Biosafety will be held from 6-8 February 2006, in Montreal, Canada. For more information, contact: CBD Secretariat; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: email@example.com; internet: http://www.biodiv.org/meetings/
SECOND MEETING OF THE AD HOC WORKING GROUP OF TECHNICAL AND LEGAL EXPERTS ON LIABILITY AND REDRESS IN THE CONTEXT OF THE CARTAGENA PROTOCOL ON BIOSAFETY: The second meeting of the Ad Hoc Working Group of Technical and Legal Experts on Liability and Redress in the Context of the Cartagena Protocol on Biosafety will be held in February 2006, in Montreal, Canada. For more information, contact: CBD Secretariat; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: firstname.lastname@example.org; internet: http://www.biodiv.org/meetings/
THIRD MEETING OF THE CONFERENCE OF THE PARTIES SERVING AS THE MEETING OF THE PARTIES TO THE CARTAGENA PROTOCOL ON BIOSAFETY: The Biosafety Protocol COP/MOP-3 will take place from 13-17 March 2006, in Curitiba, Brazil. For more information, contact: the CBD Secretariat; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: email@example.com; internet: http://www.biodiv.org/meetings/
EIGHTH CONFERENCE OF THE PARTIES TO THE CONVENTION ON BIOLOGICAL DIVERSITY: CBD COP-8 will take place from 20-31 March 2006, in Curitiba, Brazil. For more information, contact: the CBD Secretariat; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: firstname.lastname@example.org; internet: http://www.biodiv.org/doc/meeting.aspx?mtg=COP-08