Summary report, 13–17 October 1997
3rd Session of the Open-ended Ad Hoc Working Group on Biosafety (BSWG-3)
The third session of the Open-ended Ad Hoc Working Group on Biosafety (BSWG-3) met from 13-17 October 1997 in Montreal. Dele- gates produced a consolidated draft text that will serve as the basis for negotiations for a biosafety protocol at the next session. Chair Veit Koester (Denmark) stated that the entire text should be viewed in “mental brackets,” explaining that “nothing is agreed until everything is agreed.”
The meeting established two Sub-Working Groups to address the core articles of the protocol. Delegates also created a contact group on institutional matters and final clauses, and extended the mandate of the existing contact group on definitions established at BSWG-2 to address annexes. In Plenary, delegates identified elements to be included in draft articles on the following outstanding issues: socio- economic considerations; liability and compensation; illegal traffic; non-discrimination; trade with non-Parties; as well as objectives, general obligations, title and preamble for the protocol.
Delegates decided to carry forward of the structure of work adopted at this meeting to BSWG-4. In addition to agreeing to hold their next meeting from 8-19 February 1998 in Montreal, delegates agreed, subject to approval at the fourth meeting of the Conference of Parties (COP-4) to the Convention on Biological Diversity (CBD), that two additional BSWG meetings be held and an extraordinary meeting of the COP be convened for the adoption of the protocol in December 1998. Thus, BSWG-3 succeeded in establishing a definitive structure in order to facilitate the process toward adopting a protocol, provided governments demonstrate both the necessary political will and intel- lectual discipline to meet their deadlines.
A BRIEF HISTORY OF THE BIOSAFETY ISSUE
Since the early 1970s, recombinant DNA technology -- the ability to transfer genetic material through biochemical means -- has enabled scientists to genetically modify plants, animals and micro-organisms rapidly. Modern biotechnology can also introduce a greater diversity of genes into organisms, including genes from unrelated species, than traditional methods of breeding and selection. Organisms genetically modified in this way are referred to as living modified organisms derived from modern biotechnology (LMOs).
Although modern biotechnology has demonstrated its utility, there are concerns about the potential risks to biodiversity and human health posed by LMOs. Many countries with biotechnology indus- tries already have domestic legislation in place intended to ensure the safe transfer, handling, use and disposal of LMOs and their products; these precautionary practices are collectively known as "biosafety". However, there are no binding international agreements addressing situations where LMOs cross national borders.
UNEP GUIDELINES: The United Nations Environment Programme (UNEP) Panel of Experts on International Technical Guidelines for Biosafety met in Cairo, Egypt from 11-14 December 1995 to adopt a set of international technical guidelines for biosafety. The UNEP Guidelines are intended to provide a technical framework for risk management commensurate with risk assessment, without prejudice to the development of a biosafety protocol by the Conference of the Parties to the Convention on Biological Diversity.
An International Workshop to Follow-up the UNEP Guidelines was held in Buenos Aires on 31 October - 1 November 1996. The nine- teenth meeting of the UNEP Governing Council, held from 27 January
- 7 February 1997 in Nairobi, adopted Decision 19/16 on biosafety. The decision urges governments and subregional and regional organi- zations to promote the implementation of the Guidelines by desig- nating focal points in countries to apply the Guidelines, and urges governments to promote safety in biotechnology by contributing rele- vant information to UNEP's International Register on Biosafety. The Governing Council also requested the Executive Director to: continue to promote the implementation of the UNEP International Technical Guidelines for Safety in Biotechnology, particularly in developing countries; explore with other UN and international bodies the mutual sharing of information about organisms with novel traits; and organize within two years a second international workshop on the state of the art of the implementation of the Guidelines.
BIOSAFETY UNDER THE BIODIVERSITY CONVENTION
The Convention on Biological Diversity, which was negotiated under UNEP’s auspices, was adopted on 22 May 1992 and opened for signature at the Earth Summit in Brazil on 5 June 1992. The treaty entered into force on 29 December 1993 and there are currently 169 Parties to the Convention. Article 19.3 of the Convention provides for Parties to consider the need for and modalities of a protocol setting out procedures, in particular advance informed agreement (AIA), and to ensure the safe transfer, handling and use of LMOs that may have an adverse effect on biodiversity and its components. The first Confer- ence of the Parties (COP-1) to the CBD, which was held in Nassau, the Bahamas from 28 November - 9 December 1994, established an Open- ended Ad Hoc Group of Experts on Biosafety. This Group met in Madrid from 24-28 July 1995. According to the report of the meeting (UNEP/CBD/COP.2/7), most delegations favored the development of an international framework on biosafety under the Convention. The proposed elements of such a framework, as drafted in Madrid, are divided into two categories -- those favored unanimously and those favored by a subset of delegates representing primarily developing countries. In the annex to the report, paragraph 18(a) lists the former elements, which include: all activities related to LMOs that may have adverse effects on biodiversity; transboundary movement of LMOs, including unintended movement; release of LMOs in centres of origin/ genetic diversity; mechanisms for risk assessment and management (RAM); procedures for advance informed agreement; facilitated infor- mation exchange; capacity-building and implementation; and defini- tion of terms. Paragraph 18(b) lists the latter elements, including: socio-economic considerations; liability and compensation; and finan- cial issues.
COP-2: At the second meeting of the Conference of Parties (COP- 2), which took place in Jakarta, Indonesia, from 6-17 November 1995, delegates met in a contact group to consider the need for and modali- ties of a protocol on biosafety. From the outset, it was clear that dele- gates intended to set in motion a negotiation process to develop a protocol on biosafety under the CBD. While most developed country delegations wanted such a protocol to focus on “transboundary transfer of any LMO,” developing countries preferred a protocol “in the field of the safe transfer, handling and use of LMOs.” The compro- mise language that was adopted by the COP (Decision II/5.1) calls for “a negotiation process to develop in the field of the safe transfer, handling and use of living modified organisms, a protocol on biosafety, specifically focusing on transboundary movement of any LMO that may have an adverse effect on … biological diversity, setting out for consideration, in particular, appropriate procedures for advance informed agreement.”
COP-2 also established an Open-ended Ad Hoc Working Group on Biosafety (BSWG) to meet to "elaborate, as a priority, the modalities and elements of a protocol based on appropriate elements from para- graph 18(a)” of the report of the Madrid meeting, and to “consider the inclusion of the elements from paragraph 18(b) as appropriate.” Other terms of reference for the BSWG state that it shall: elaborate key terms and concepts; consider AIA procedures; identify relevant categories of LMOs; and develop a protocol whose effective functioning requires that Parties establish national measures and that takes into account the precautionary principle. The BSWG shall also: develop a protocol that provides for a review mechanism and seeks to minimize unnecessary negative impacts on biotechnology and does not hinder unduly access to and transfer of technology; take into account gaps in the existing legal framework; develop a protocol with a view to the largest possible number of ratifications; and use the best available scientific informa- tion. The BSWG is expected to conclude its work in 1998.
BSWG-1: At its first meeting, held in Aarhus, Denmark, from 22- 26 July 1996, the BSWG began the elaboration of an international protocol on safety in biotechnology. Although the meeting produced little in the way of written results, it represented a forum for defining issues and articulating positions characteristic of the pre-negotiation process. The meeting revealed several interesting dichotomies, including a fracture in the G-77/China bloc over elements to be included in the protocol, as well as strikingly divergent perspectives on biotechnology. Nonetheless, governments listed elements for a future protocol, agreed to hold two meetings in 1997, and outlined the infor- mation required to guide their future work.
COP-3: At its third meeting, the Conference of Parties (COP-3) adopted Decisions III/5 (additional guidelines to financial mecha- nisms) and III/20 (biosafety issues). In so doing, the COP affirmed its
support for a two-track approach through which the promotion of the application of the UNEP International Technical Guidelines for Safety in Biotechnology can contribute to the development and implementa- tion of a protocol on biosafety, without prejudicing the development and conclusion of such a protocol. COP-3 also endorsed Recommen- dation II/5 of SBSTTA-2 with regard to capacity-building in biosafety.
BSWG-2: The second meeting of Biosafety Working Group was held from 12-16 May 1997 in Montreal. Working from aide-memoires tabled by Chair Veit Koester, delegates discussed a range of issues, including: objectives; AIA; notification procedures for transfers of LMOs; competent authorities/focal points; information-sharing and a clearing-house mechanism; capacity-building, public participation and awareness; risk assessment and management; unintentional trans- boundary movement; handling, transportation, packaging and transit requirements; and monitoring and compliance. Governments were invited to submit legal text on any of the above issues by 1 August 1997. Moreover, governments that had already submitted text prior to BSWG-2 were encouraged to revise it in light of the discussions. It was also agreed that the Secretariat would develop draft articles on a series of institutional and financial matters as well as on final clauses.
BSWG-2 also convened a contact group to consider proposals on defi- nitions of key terms and decided that the Secretariat should compile an alphabetical list of terms requiring definition, as submitted by coun- tries, for consideration at the next meeting. Delegates also identified other possible elements of a protocol for consideration at their next session.
REPORT OF BSWG-3
BSWG Chair Veit Koester opened the third session on Monday, 13 October 1997, noting that the objective of the BSWG at this session was the production of an effective summary draft protocol that would serve as the basis for future negotiations. Citing a decision taken at COP-3, which mandated the BSWG to complete its work by 1998, Koester underscored the Working Group’s heavy workload. Further citing CBD Article 28 on Adoption of Protocols, the Chair stated that a “consolidated draft negotiating legal text” would need to be presented to COP-4 in May 1998, in order to allow for the requisite six-month period for consideration of a draft protocol to elapse before a special session of the COP for the adoption of the protocol can be convened.
Reuben Olembo, Deputy Executive Director of UNEP, saluted governments for their cooperation in submitting text for inclusion in the draft protocol. He said the lack of human resources, institutional capacities and infrastructure needed for an effective interchange on biosafety-related issues should be considered in drafting the protocol. He noted the importance of including all groups in the protocol devel- opment process. He noted that monetary contributions from the private sector are now four times as great as those from official development circles, and recommended that the protocol development process be open to participation by industry in addition to civil society.
Calestous Juma, Executive Secretary of the CBD, noted the signifi- cance of the BSWG’s elaboration of the precautionary principle, reflected in the CBD preamble, through the protocol’s emphasis on AIA, risk assessment and risk management. He said the COP’s deci- sion to initiate the protocol process marked a turning point for the Convention, as it reinforced it as an important rule-making and stan- dard-setting environmental forum. He also stressed the importance of the BSWG’s emphasis on procedures, and not solely rules, and called on the introduction of procedure-based enhancements to international law.
AGENDA: The provisional agenda (UNEP/CBD/BSWG/3/1) was introduced to the Plenary and adopted without discussion. Introducing the organization of work, Koester underscored that the prime objective at this stage is not to negotiate per se, but rather to produce a consoli- dated text for future negotiations. To this end, the Chair identified four “component parts” that would need to be consolidated into a draft legal text:
- Articles or issues addressed by country submissions (UNEP/CBD/ BSWG/3/3 and Add. 1-3 as well as UNEP/CBD/BSWG/3/5 and Add.1);
- Draft articles developed by the Secretariat concerning institutional matters and final clauses (UNEP/CBD/BSWG/3/4 and Add.1);
- Definitions and annexes compiled by the Secretariat on the basis of country submissions (UNEP/CBD/BSWG/3/Inf.1 and annexes to UNEP/CBD/BSWG/3/3); and
- Outstanding issues, grouped into the following three categories: socio-economic considerations, liability and compensation, and monitoring and compliance; illegal traffic, trade with non-parties, and non-discrimination; and the title, preamble, objectives and general obligations.
ORGANIZATION OF WORK: On the basis of a proposal by the Chair, delegates agreed the following organization of work. Two parallel open-ended sub-working groups (SWG) were established to address the core substantive articles of the protocol, as contained in the Government Submissions on Draft Text of Selected Items (UNEP/ CBD/BSWG/3/3 and Add.1-3). SWG-1 would consider Articles 1-10 and 12-14 regarding advance informed agreement (AIA) and risk assessment and management; and SWG-2 would address Articles 11 and 15-22 pertaining to a broad set of issues. Delegates further agreed that each of the five regions would nominate four representatives to assist in the drafting process. The Chair added that “groups may decide for drafting reasons that only some representatives take part in that part of the meeting.”
SWG-1 was co-chaired by Sandra Wint (Jamaica) and Eric Schoo- nejans (France) and included representatives from Kenya, Seychelles, Guinea and Ethiopia (for the African Group); Japan, the Republic of Korea, India and Malaysia (for the Asia and Pacific Group); Colombia, Brazil, Bahamas and Argentina (for the Latin America and Caribbean Group (GRULAC)); Belarus, Lithuania, Czech Republic and Hungary (for Eastern and Central Europe); and Australia, Canada, Norway and the European Commission (for the Western Europe and Others Group (WEOG)).
SWG-2 was co-chaired by David Gamble (New Zealand) and Hira Jhamtani (Indonesia) and included representatives from Mali, Egypt, Zimbabwe and Ghana (for the African Group); Philippines, Singapore, Iran and China (for the Asia and Pacific Group); Venezuela, Costa Rica, Colombia and Brazil (for GRULAC); Hungary, the Russian Federation and Poland (for Eastern and Central Europe); and Canada, US, UK and the European Commission (for WEOG).
Delegates also agreed to establish two open-ended contact groups (CGs) to review the Secretariat’s Draft Text on Selected Items (UNEP/ CBD/BSWG/3/4). The mandate of the Contact Group on Definitions established at BSWG-2 would be expanded to include Annexes (CG- 1) and a new contact group would be created to consider institutional matters and final clauses (CG-2). The CGs would meet outside normal working hours, at the discretion of the Co-Chairs (one each from G-77/ China and WEOG). Following regional consultations, it was agreed that CG-1 would be co-chaired by Gert Willemse (South Africa) and Piet van der Meer (Netherlands), and that CG-2 would be chaired by John Ashe (Antigua and Barbuda), since WEOG did not nominate a Co-Chair.
The Chair proposed the following mandates for the SWGs and CGs (UNEP/CBD/BSWG/3/CRP.1), modified to specify the articles or text to be addressed by each group. The objective of each group was to develop a “consolidated draft negotiating legal text,” under the guid- ance of and modus operandi developed by the Co-Chairs. Taking into account the views of the participants, and reviewing the submissions of governments and any additional information, the mandate of the groups was to “identify the various options that could be in a consoli- dated text.”
In response to a query by ETHIOPIA regarding the status of non- Parties in the negotiation process, and, in particular, of their proposals in the drafting process, the Chair cited the terms of reference for the BSWG, as contained in the annex to COP Decision II/5, which provides for the participation of experts nominated by “governments” (instead of “Parties”).
The Monday evening Plenary was devoted to roundtable discus- sions chaired by Hamdallah Zedan (UNEP). Noting that BSWG-2 had agreed to hold roundtable discussions on issues relevant to the
biosafety process as a “factual exercise,” the Chair emphasized that these were not to serve as negotiating sessions nor as a platform to comment on positions. John Herity (Canada) introduced the round- table on Global Commodities Trade, during which formal presenta- tions were made by Piet van der Meer of the Netherlands and Douglas Much of the Canada Grain Council. Tewolde Berhan Eqziabher (Ethi- opia) introduced the roundtable on Socio-Economic Issues Related to Modern Biotechnology, during which a formal presentation was made by Philip Bereano, Professor of Technology and Public Policy at the University of Washington-Seattle.
Over the course of the week’s Plenary sessions, delegates addressed a series of issues that were carried forward from BSWG-2 for consideration at this meeting: socio-economic considerations; liability and compensation; illegal traffic; trade with non-Parties; and non-discrimination. In order to guide the Plenary’s deliberations on these “outstanding” issues, the Chair presented a series of aide- memoires, consisting of specific questions on each item, so that issues identified during Plenary could serve as a basis for the development of “Elements” papers. With a view to transforming these papers into draft articles/text, the Chair proposed three methods: government submis- sions; draft articles prepared by the Secretariat for the next meeting; or developing legal text at this meeting.
The EU and BRAZIL underscored the importance of the outstanding issues and expressed a desire that they be addressed on an equal footing with those issues considered in the sub-groups.
SOCIO-ECONOMIC CONSIDERATIONS: The Chair’s aide-memoire on socio-economic considerations posed the following topics: the need for a provision to address socio-economic consider- ations; scope of content of any provisions; development and applica- tion of socio-economic criteria; and potential socio-economic impacts from the development of biotechnology products based on Southern countries.
MALAYSIA called for a provision on socio-economic consider- ations, explaining that risk assessment (RA) need not be solely a scien- tific activity, but should also contain elements subject to value judgment. BELARUS proposed that socio-economic considerations be addressed in the preamble as well as in articles pertaining to risk, and that these be linked to liability of countries. JAPAN stated that socio-economic concerns should not be addressed in the binding part of the protocol per se but perhaps in the preamble. He added that indi- vidual countries could establish appropriate national policies based on scientific studies of the socio-economic effects of LMOs
Asserting that governments must balance both positive and nega- tive socio-economic impacts, SOUTH AFRICA supported a protocol provision with the proviso that it emphasize national procedures based on minimum standards. The EU stated that socio-economic consider- ations are related to sustainable development in general and, therefore, are more appropriately addressed in documents such as Agenda 21.
INDIA maintained that socio-economic considerations should be included in the risk provisions of the protocol with suitable exceptions in the non-discrimination clauses to allow Parties to make decisions regarding importing technologies.
The RUSSIAN FEDERATION stated that socio-economic issues should be addressed on a bilateral basis between importing and exporting Parties, not in specific provisions of the protocol, which should be a technical tool for harmonizing transfers. ARGENTINA underscored the importance of socio-economic impacts, especially on communities, but stated that these should not be addressed in a protocol. INDONESIA, noting both its strength and vulnerability as a major custodian of biodiversity, called for socio-economic and ethical considerations to be addressed within the risk provisions of the protocol and for capacity-building to manage biosafety.
AUSTRALIA noted its heavy dependence on trade in the agricul- tural sector, but expressed its reluctance to see the protocol serve as a new pretext for protectionist measures. COLOMBIA stated that socio- economic considerations were especially vital to centres of diversity and should be addressed within the AIA provisions of a protocol. She added that exporting countries should supply importing countries with
all relevant information regarding possible socio-economic impacts. NEW ZEALAND expressed concern that the protocol not preclude the possibility of addressing impacts on indigenous people, but stated that it was not yet clear whether such concerns could be addressed within the risk provisions or whether they required a separate article.
ETHIOPIA underscored the vital importance of socio-economic concerns to Africa and stated that although such concerns are largely national in nature, those that are specific to modern biotechnology should be addressed in an international protocol to provide an “enabling environment” in which individual countries could secure their legitimate interests. TOGO stated that if socio-economic consid- erations are not addressed in a protocol, “weaker” countries, which do not have the means to effectively monitor and control the introduction of LMOs, will become “areas of experimentation,” citing the toxic waste trade by way of example.
The EDMONDS INSTITUTE, speaking on behalf of 31 American public-interest groups, stated that the protocol should allow for a Party to reserve the right to ban LMOs on the basis of their own national assessment of socio-economic impacts, and later called for a morato- rium on the release of all LMOs until an appropriate biosafety protocol is in effect. In response to characterizations of industry as having carte blanche, the BIOTECHNOLOGY INDUSTRY ORGANIZATION asserted that biotechnology research and development is subject to greater scrutiny than any other field in human history.
Vandana Shiva, speaking on behalf of the THIRD WORLD NETWORK, cited “Mad Cow” disease as an example of the fallibility of science and asserted that socio-economic concerns are too serious to be relegated to trade-related footnotes. In a subsequent intervention, another representative of the same organization highlighted the absurd prospect of a biosafety protocol that prohibits Parties from excluding imports on ethical grounds, especially in view of the fact that world leaders are currently speaking out against human cloning.
On the basis of country interventions, the Chair summarized the range of positions on how socio-economic considerations might be addressed in the protocol: in the preamble; in articles or annexes on advanced informed agreement or risk assessment and management; as an exception to non-discrimination provisions; on a bilateral basis; in national legislation; and no consideration at all. Stating that these views would be reflected in the report of the meeting, the Chair envis- aged a consolidated draft that would set out options proposed in government submissions on this matter.
LIABILITY AND COMPENSATION: The Chair’s aide-memoire framed key issues by highlighting the following topics: adequacy of CBD Article 14.2 (which provides for the COP to examine the issue of liability and redress, including restoration and compensation, for damage to biodiversity, except where such liability is a purely internal matter); inclusion of these issues in the protocol; scope and initiation of any provisions; relevance of existing interna- tional agreements; establishment of criteria for assessing liability and compensation; inclusion of such criteria in the protocol itself or listed in a separate annex; and application of national legislation in cases of harm due to transboundary movements of LMOs.
JAPAN and ARGENTINA maintained that the issues were adequately covered by the CBD, with the latter urging support for the commencement of studies on the issue of liability and compensation. INDIA, SOUTH AFRICA, ZIMBABWE, NORWAY, UGANDA,
HAITI, MALAYSIA, BRAZIL and MEXICO stated that Article 14 provided a starting point for addressing the crucial issues of compensa- tion and liability. INDIA, SOUTH AFRICA, COLOMBIA, UGANDA and the RUSSIAN FEDERATION said these issues should be addressed in the protocol, and MALAYSIA stressed the need for current action given the potential for harm to human health in addition to biodiversity. The EU cautioned against including substantive provi- sions, given the difficulty of attempting to harmonize, on an interna- tional level, national principles of liability and compensation.
Regarding whether the protocol should only recognize the impor- tance of these issues and call for later work, most of the participants who favored development of specific provisions did not support a delay. The World Intellectual Property Organization (WIPO) described the Budapest Treaty on Deposit of Micro-organisms and noted the potential relevance of its Article 5 regarding imports and exports.
The RUSSIAN FEDERATION and SOUTH AFRICA opposed development of criteria in the protocol to assess liability and compen- sation, while MALAYSIA said such criteria were a possibility, but whether they should be in the protocol or a separate annex was imma- terial. COLOMBIA maintained that any annexes should be formulated presently. INDIA, COLOMBIA, MALAYSIA and the EU supported the application of national legislation to liability and compensation issues regarding transboundary movements of LMOs. SOUTH AFRICA expressed qualified support for this position, explaining that it depended on the content of national legislation as well as a country’s commitment to implementation of international law.
ZIMBABWE and COLOMBIA raised the issue of determining the identity of involved Parties and authorities, and JAPAN noted that the country of origin is not necessarily liable. UGANDA, supported by BRAZIL, said the exporter of an LMO should be liable for compensa- tion to the importer or other affected parties, absent negligence on the part of the importer. COLOMBIA suggested establishing the scope of and standards for kinds of compensation. In response to a concern raised by G-77/CHINA regarding treatment of liability and compensa- tion, the Chair assured delegates that this would be given equal consid- eration with other issues.
FRIENDS OF THE EARTH INTERNATIONAL called for a strict liability regime, following the “producer pays” principle. ECOROPA said that liability was a crucial citizen’s issue and that the precau- tionary approach was the obligation of those who transfer, handle and hold LMOs.
On the basis of country interventions, the Chair proposed that dele- gates adopt an options-based procedure similar to that agreed for socio-economic issues.
ILLEGAL TRAFFIC: The Chair’s aide-memoire on illegal traffic identified the following issues: need for and scope of a provi- sion on illegal traffic, and definition of illegal traffic as traffic that deliberately circumvents national law that implements the protocol. With the exception of the US, all delegations that intervened on this issue (the EU, AUSTRALIA, COLOMBIA, DEMOCRATIC REPUBLIC OF CONGO, ZIMBABWE and the AFRICAN GROUP) expressed a common understanding of what is meant by illegal traffic. The EU and US expressed a preference to allow individual govern- ments to define and address illegal traffic. The AFRICAN GROUP, AUSTRALIA, SOUTH AFRICA, MALAYSIA and CUBA indicated they had provided legal text on this item.
GREENPEACE INTERNATIONAL highlighted four main issues related to illegal traffic: non-Parties; enforceability; relationship to the World Trade Organization (WTO); and a nation’s right to ban or limit imports of LMOs based on domestic laws.
On the basis of country interventions, the Chair said he would prepare a draft Elements paper. Delegates agreed to amend SWG-2’s mandate so that it could prepare consolidated text for this item.
NON-PARTIES: The Chair’s aide-memoire on non-Parties framed the following issues: need for a protocol provision; restrictions on trade with non-Parties; and restrictions on trade with non-Parties who are in full compliance with the protocol.
JAPAN, HAITI, the EU, ETHIOPIA, ZIMBABWE, AUSTRALIA, COLOMBIA, UGANDA and NEW ZEALAND were in favor of addressing the issue of non-Parties in the protocol. JAPAN maintained that the protocol should provide a mechanism for inte- grating non-Parties into membership, but also noted that integration with non-Parties could occur though bilateral and multilateral arrange- ments, provided information on such agreements was made available to Parties. The EU stated that in principle it should be more advanta- geous to join the protocol than to stay outside it. The EU also high- lighted the 1996 WTO report of the Committee on Trade and the Environment, which stated that the application of trade measures to non-Parties should be considered in the negotiation of multilateral environmental agreements. ZIMBABWE, AUSTRALIA, COLOMBIA and NEW ZEALAND agreed that trade with non-Parties should be permitted, provided the safe movement of LMOs is in compliance with the protocol.
While MALAYSIA agreed that trade with non-Parties should be permitted, the transfer of LMOs to non-Parties should not be allowed. Although the US was not in favor of addressing non-Parties in the protocol, in the event the protocol contains such a provision, it should be flexible and allow trade with non-Parties. ARGENTINA said it was premature to include such a provision, but did not rule out addressing the issue at a later stage in the development of the protocol.
The EDMONDS INSTITUTE suggested using a slightly amended version of Article 4.4 of the 1987 Montreal Protocol on Ozone- Depleting Substances as a model for treatment of non-Parties to the protocol.
Noting the wide range of opinions expressed by delegates, even within regions, the Chair observed that this was a somewhat sensitive issue. On the basis of country interventions, the Secretariat was mandated to develop an Elements paper, which could be included in the consolidated draft under proposed Article 23 on non-Parties. The Secretariat text, which was tabled in the following Plenary session presented a series of options under its two elements, one pertaining to non-Parties, the other pertaining to trade with non-Parties. In the closing Plenary, the Chair requested removal of the element referring to relevant provisions of the Montreal Protocol as a working model for this protocol on trade with non-Parties, on the grounds that the element was an NGO proposal.
NON-DISCRIMINATION: The Chair’s aide-memoire on non- discrimination raised the following issues: need for and scope of protocol provisions; bases for discriminating between LMOs; and consistency in permissible restrictions on LMOs.
MALAYSIA opposed a provision on non-discrimination and asserted the sovereign right of each receiving country to make its own decision regarding the transfer, handling and use of LMOs. The EC stated that a number of issues could be addressed under non-discrimi- nation. ETHIOPIA asserted that Parties should be able to discriminate. INDIA said discrimination against LMOs should be permitted if socio- economic considerations warrant it. JAPAN, supported by AUSTRALIA, said that Most Favored Nation (MFN) and National Treatment principles should apply to LMOs. The US, MEXICO, ARGENTINA and NEW ZEALAND said that, while non-discrimina- tion should be addressed in the protocol, Parties should not be able to discriminate against LMOs. However, the US added that non-discrimi- nation should be addressed within the protocol solely within the context of AIA, and that non-discrimination includes discrimination against foreign LMOs in favor of domestic LMOs, as well as between foreign LMOs.
On the basis of country interventions, the Chair will prepare a draft Elements paper. As with the issue of illegal traffic, delegates agreed to refer the matter of non-discrimination to SWG-2 so that it could prepare consolidated text for this item.
OBJECTIVES: The Chair’s aide-memoire on objectives of the protocol addressed the following topics: need to reflect the language from COP Decision II/5, which refers to a biosafety protocol “specifi- cally focusing on transboundary movement of any living modified organism resulting from modern biotechnology (LMO) that may have adverse effects on the conservation and sustainable use of biological diversity”; and breadth of objectives regarding protection of biodiver- sity, the environment as a whole and human health.
AUSTRALIA, ARGENTINA, BRAZIL and the US stated that an article on objectives should reflect the relevant language in Decision II/5. The EU agreed and also proposed that the objectives take into account risks to human health. SWITZERLAND stated that the objec- tive should reflect, but not limit itself to, the aspects addressed in deci- sion II/5. AUSTRALIA’s statement that it should be made clear that biodiversity covers human health was supported by BRAZIL. NEW ZEALAND stated that the protocol should aim to protect the environ- ment, biodiversity and human health. Citing Decision II/5 as well as CBD Article 19.3, the US objected to including a reference to human health. Several delegations, including MALAYSIA, ETHIOPIA, CUBA and COLOMBIA, emphasized socio-economic conditions in addition to human health.
The Chair noted that most of the ideas raised were reflected in proposals already submitted by the African Group, Australia, Brazil, Japan, Malaysia, Norway, South Africa and Switzerland. On the basis of country interventions, the Chair will prepare a draft Elements paper. As with the matters of illegal traffic and non-discrimination, delegates agreed to refer the issue of objectives to SWG-2 so that it could prepare consolidated text for this item.
GENERAL OBLIGATIONS: Delegates were guided by the Chair’s aide-memoire that considered Parties’ general obligations in the following areas: emergency plans in case of accidental or unin- tended transboundary movements; and legal, administrative and other measures to implement and enforce the protocol.
AUSTRALIA, COLOMBIA, ETHIOPIA, NEW ZEALAND, NORWAY and UGANDA agreed that the protocol should establish general obligations regarding both matters. The EU stated that provi- sions for general obligations should be defined either by specific oper- ational provisions (e.g., AIA) or by general principles (e.g., adoption of national measures to implement the protocol).
COLOMBIA proposed a provision requiring each Party to apply the AIA procedure with regard to the transboundary movement of LMOs, with the receiving Party ensuring confidentiality of informa- tion provided. AUSTRALIA stated that the article should also cover AIA measures that are based on scientific principles and evidence, and not more restrictive than domestic measures nor disguised restrictions on international trade. AUSTRALIA added that Parties may impose additional requirements provided that these were consistent with the protocol and other relevant international agreements.
Expressing the view that general obligations constitute provisions that do not find a home elsewhere in the protocol, CANADA noted the proposed obligations were already addressed in draft Articles 15 (Unintentional Transboundary Movements), 16 (Emergency Measures) and 17 (Handling, Transport, Packaging and Labeling).
ARGENTINA stated that emergency provisions should be addressed on a case-by-case basis, rather than under general provisions.
ARGENTINA also questioned the need to introduce an explicit obli- gation pertaining to legal, administrative and other measures, given that Parties would need to adopt national legislation in order to imple- ment and enforce the protocol.
After identifying the African Group, Australia, Brazil, Colombia, Norway and South Africa as having submitted proposals on the matter, the Chair invited further government submissions. The US noted that any prior submissions by governments were in contravention of a deci- sion taken by BSWG-2 that these should follow, rather than precede, a discussion of elements.
PREAMBLE: The Chair proposed that the Secretariat be mandated to draft text for the preamble on the basis of his aide- memoire. ARGENTINA requested that the drafting process be guided not solely by the aide-memoire, but by all relevant texts and submis- sions. Without offering any further explanation, the Chair asserted that it must be drafted on the basis of the aide-memoire or government submissions. CANADA proposed that the precautionary principle be addressed in the preamble.
During the following evening’s Plenary, delegates accepted the Chair’s offer to produce a draft preamble for consideration at the next meeting. ETHIOPIA noted that the AFRICAN GROUP had submitted written text on this and expressed the hope that the Chair would take this into consideration during his drafting exercise.
TITLE: On the basis of the Chair’s proposal, delegates mandated the Secretariat to keep a running list of possible titles to be submitted by governments for consideration at BSWG-4.
SUB-WORKING GROUP 1
Sub-Working Group 1 (SWG-1), co-chaired by Sandra Wint (Jamaica) and Eric Schoonejans (France), met off and on for several sessions from Monday afternoon, 13 October, to Thursday afternoon, 16 October. SWG-1 was established by the BSWG with the objective
of developing a consolidated draft negotiating legal text for draft Arti- cles 3-10 and 12-14, respectively: Advance Informed Agreement (AIA) (3); Notification Procedure for AIA (4); Decision Procedure for AIA (5); Response to AIA Notification (6); Notification of Transit (7); Review of Decision Under AIA (8); Simplified Procedure (9); Subse- quent Imports (10); Bilateral and Regional Agreements (12); Risk Assessment (13); and Risk Management (14). SWG-1 used as a basis for discussion the Compilation of Government Submissions of Draft Text on Selected Items (UNEP/CBD/BSWG/3/3); additional informa- tion on draft Articles 3 and 6 from countries not contained in the compilation (UNEP/CBD/BSWG/3/3/Add.1); List of Country Submissions By Article (UNEP/CBD/BSWG/3/3/Add.3); List of Countries that Made Submissions (UNEP/CBD/BSWG/3/5/Add.1); and the handout, Matrix of Country Submissions by Articles. A Chair’s text on the relevant draft articles was not provided.
At its first meeting on Monday afternoon, 13 October, SWG-1 debated how to proceed with its work, specifically, whether its drafting group should meet before, after, or in parallel to each SWG-1 session. In an effort to expedite the process, delegates agreed that drafting of text was to be done solely by the drafting group, which was limited to the 20 regional representatives, four from each region, so that the varied interests of each region would be represented. At SWG-1’s brief second meeting on Tuesday afternoon, delegates decided that the drafting group should initiate the drafting process on an article-by- article basis and, upon completion of draft text, SWG-1 would convene to review and approve the text for submission to the Plenary. The Co-Chairs said the drafting group meeting was open to observers; however, they reiterated that participation in the actual drafting of text was limited to regional representatives.
At the first meeting of the drafting group, later Tuesday afternoon, the Co-Chairs reminded representatives that, rather than reviewing each paragraph individually, its goal was to consolidate text by identi- fying concepts that could be merged. However, the Co-Chairs also noted that, as this was still a pre-negotiation exercise, country options could not be deleted, unless the author so agreed, although new options could be proposed.
RISK ASSESSMENT AND RISK MANAGEMENT (draft Articles 13 and 14): The drafting group began its work Tuesday after- noon with the drafting of text for proposed Articles 13 and 14. Instead of a Chair’s text, the drafting group used as a basis for discussion a concepts paper prepared by the Secretariat, which summarized key elements of (1) risk assessment: temporal obligations; aims; basic parameters; further specifications concerning parameters; subsequent risk assessments; information to be provided; and responsibility for risk assessment; and (2) risk management: cases when risk manage- ment is pertinent; consequences of risk management; basis for risk management; and further arrangements.
At the outset, the drafting group engaged in lengthy procedural discussions. After some initial consolidation work, some regional representatives complained that previous suggestions had not been accurately reflected in subsequent draft texts. Midway through the morning session on Wednesday, at the request of one regional repre- sentative from the drafting group, NGOs were excluded from observing the meeting. The drafting group continued to consolidate draft Articles 13 and 14 and presented its results to SWG-1 on Wednesday in a late afternoon session.
Draft Article 13 listed a series of options under each of the concept headings for inclusion in the protocol. During the SWG-1 session, the EC, COLOMBIA and the US identified options they considered redundant. COLOMBIA suggested that countries with similar options meet and find ways to consolidate text. Draft Article 14 contained 16 options that were not grouped under concept headings. MALAYSIA noted that the options were not mutually exclusive and that several reflected her country’s position. BRAZIL, supported by INDIA, suggested that the first option, which proposed no article on risk management, be juxtaposed as a separate option to the other para- graphs, which advocates various degrees of risk management measures.
Noting the procedure used to draft proposed Articles 13 and 14, SWITZERLAND suggested that SWG-1 change tactics and meet first for a general discussion, after which the drafting group could incorpo- rate proposals into its drafted text. ARGENTINA, supported by MAURITIUS, suggested that SWG-1 and the drafting group meet in parallel. However, the Co-Chairs, the EC and COLOMBIA noted that SWG-1 decided at the outset to draft first and then hold discussions based on the drafted text. SWG-1 agreed to continue with its current process for drafting text for the remaining nine articles, taking into account lessons from the drafting of Articles 13 and 14.
On Thursday afternoon SWG-1 revisited draft Articles 13 and 14, which had incorporated SWG-1’s amendments from the previous evening, for final approval before submission to the Plenary.
Concerning draft Article 13, SWITZERLAND proposed that a “no provision required” option be added under the concepts “information to be provided” and “financial responsibility.” Draft Article 14 contained two options, one of which was a “no article” provision and the other with 13 paragraphs. Regarding an option that would require producers to phase out all antibiotic resistance marker genes in LMOs by the year 2002, COLOMBIA’s proposal to either remove this specific reference or to list all possible themes was rejected by NORWAY on the basis that this was an important point in their proposal. The UK’s proposal to merge two options was rejected by MALAYSIA on the grounds that the first option’s reference to CBD Article 8(g) imbues the paragraph with a different meaning. SWG-1 agreed to table both draft articles at the Plenary.
OTHER DRAFT ARTICLES: SWG-1 met in the late afternoon on Thursday, 16 October, for slightly more than an hour to review and approve the entirety of the drafting group’s consolidated text for submission to the Plenary. While SWG-1 had reviewed the drafting group’s efforts concerning Risk Assessment (Article 13) and Risk Management (Article 14) the day before, this was the first time that SWG-1 as a whole had the opportunity to comment on the draft text of the remaining nine articles comprising its mandate, with three hours remaining to prepare its report for submission to the Plenary. Delegates expressed confusion as to the role of SWG-1, since only additions or mergers of options were permitted. ARGENTINA reiterated its suggestion for SWG-1 and drafting group to meet in parallel at its next meeting and further suggested that all interested delegations be allowed to participate in the drafting process.
ADVANCE INFORMED AGREEMENT (Articles 4,5, 6 and
8): The drafting group consolidated four draft articles into a single draft text on AIA: Notification Procedure for AIA (Article 4); Deci- sion Procedure for AIA (Article 5); Response to AIA Notification (Article 6); and Review of Decision Under AIA (Article 8). The elements of the AIA procedure were divided into 12 subsections, with a series of options listed under each. SWITZERLAND suggested inserting “no provision is necessary” as an option to the subsection “responsibility for accuracy of information,” and under the “safeguard clause.” COLOMBIA supported a proposal by the SEYCHELLES to employ “or living products thereof” in relation to LMOs, noting that the contact group addressing definitions decided that the concept of living products should be treated within the definition of LMOs. The Secretariat said the Jakarta Mandate specifies that the scope of the protocol pertains to LMOs, and the extension of the definition is “LMOs and products thereof.” The draft text was approved by SWG-1 for submission to the Plenary.
NOTIFICATION OF TRANSIT (Article 7): Options for draft Article 7 on Notification of Transit are divided into four sections: requirements; acknowledgment/response; treatment of goods in transit; and no specific provisions under this article. One minor amendment was proposed and the draft text was approved by SWG-1.
SIMPLIFIED PROCEDURE (Article 9): Draft Article 9 contained 10 options, including an option for no provisions for simpli- fied procedure. No substantive discussion ensued and the draft text was approved by SWG-1.
SUBSEQUENT IMPORTS (Article 10): Options for draft Article 10 are divided into three sections: notification; application; and regulation. There were no comments on the draft text, which was approved by SWG-1.
BILATERAL AND REGIONAL AGREEMENTS (Article 12): Options for draft Article 12 were divided into five sections: no provi- sion; type of agreements or arrangements; notification of agreement or arrangement; international cooperation; and regional economic inte- gration organizations. Types of arrangements were further divided into bilateral, regional or multilateral; multilateral; and bilateral or multi- lateral. Organizational amendments were suggested by the EU and JAPAN and the draft text was approved by SWG-1.
SCOPE OF APPLICATION OF THE AIA PROCEDURE: The drafting group presented a streamlined draft text of options for Scope of Application of the AIA Procedure, organized under the following sections: all LMOs subject to AIA; all first time trans- boundary movements of LMOs; all LMOs except those (explicitly excluded)(identified in an annex as low risk) subject to AIA; importing State decides whether exporter should apply national regulations or Protocol; LMOs included based on criteria listed in annex; and LMOs intended for field testing, or first field growth or banned/no regulatory decision. However, SWITZERLAND questioned the usefulness of the document as it seemed to cause confusion between the fields of appli- cation and procedure. Nevertheless, the draft text was approved by SWG-1.
SWITZERLAND said it was not completely satisfied with the results of SWG-1. The EC noted that, while more could have been achieved, the drafting group did a “good job.”
Regarding the working arrangements for the SWG-1 drafting group, AUSTRALIA, supported by CHILE and the US, asked that it be put on record Australia’s view that SWG-1 must operate on the basis of open-ended discussions so that all delegations can participate if they so choose. Co-Chair Wint said that, due to time constraints and the SWG-1’s heavy agenda, the methodology of regional representa- tion was the only possible way to conduct their work. The EC said that, given the complexity of its mandate, SWG-1 achieved a remarkable result in spite of its difficult beginning. A representative of the Green Industry Biotechnology Platform (GIBiP/Assinsel), expressed his regret that the working arrangements of SWG-1 prevented his industry from expressing its views and warned that such an approach may exclude other industries with necessary technological information from future negotiations.
On Thursday evening, Co-Chair Wint presented SWG-1’s report on Articles 3-10 and 12-14 to the Plenary. With the exception of Article 3, consolidated texts had been prepared. Noting that SWG-1 had been aware at the outset that fulfilling its mandate would be diffi- cult, she said SWG-1 had succeeded in producing a document for inclusion in the consolidated draft.
The SEYCHELLES noted that its earlier amendment to an option in the draft Article on AIA concerning the concept of living products was not reflective of the African Group submission, and asked that the word “living” regarding “products thereof” be removed. He said there should be no reference to LMOs, only modified organisms. He noted that while the SWG-1 Co-Chairs interpreted the Jakarta Mandate to be applicable to only LMOs or suitable products, from his perspective, it also refers to use of LMOs, and not LMOs exclusively. Chair Koester agreed to revisit the issue at later meetings and in the meantime advised delegations to refer to CBD Article 19(3) on LMOs.
SUB-WORKING GROUP 2
Sub-Working Group 2 (SWG-2), co-chaired by David Gamble (New Zealand) and Hira Jhamtani (Indonesia) met for six sessions to prepare draft consolidated text on proposed Articles 11 and 15 to 22, on the following issues, respectively: Confidential Information (11); Minimum National Standards (15); Unintentional Transboundary Movements (16); Emergency Measures (17); Handling, Transport, Packaging, and Labeling (18); Competent Authority/Focal Point (19); Information Sharing/Biosafety Clearing-House (20); Capacity Building (21); and Public Awareness/Public Participation (22). Partici- pants had before them a compilation of government submissions of draft text (UNEP/CBD/BSWG/3/3) and the Chair’s draft text, which was an initial distillation of country submissions (UNEP/CBD/ BSWG/3/Inf.4).
On Monday, 13 October, Co-Chair Gamble opened the first session by recalling that the group’s mandate was not to negotiate draft text but to identify options for future negotiations. He proposed working on an article-by-article basis, with drafting work to commence immediately after discussion of each article. He also raised the “delicate question” regarding whether to create a core group of drafters, reminding partici- pants that the answer must be a consensus decision. Given the time constraints, the RUSSIAN FEDERATION and NORWAY supported restricted participation for drafting legal text. SWITZERLAND called for a flexible process so that options could reflect the full range of participants’ ideas, including those of environmental NGOs and industry. SOUTH AFRICA and the US recommended beginning with the whole group, and moving to a smaller drafting group if necessary.
At its second session, on Tuesday, 14 October, delegates began the consolidation process with full and open representation. For each article, participants expressed their positions on which articles should be retained. Options included: no article; country submissions or the Chair’s draft text in its entirety; distinct sections of existing text; modi- fications and/or additions to existing text; and combinations of these positions. The US noted that the Chair’s draft text appeared to be a summation of country submissions, as opposed to specific coherent proposals, because it contained mutually exclusive options.
CONFIDENTIAL INFORMATION (Article 11): Draft text on Article 11 addressed, inter alia: protection of intellectual proprietary rights; confidentiality of information relevant to LMOs; procedures to ensure confidentiality; and roles of competent authorities. Options retained included the Chair’s draft, with and without a US proposal to add text regarding, inter alia, procedures to ensure comparable treat- ment for imported versus domestic LMOs. Several delegations supported the EU text option, with BRAZIL adding a provision that would require exporters to provide all information requested by an importing Party. Some differences among final options included: spec- ificity of responsible parties, and scope of information covered and justifications required for denying confidential treatment.
After consolidating text on Article 11, the RUSSIAN FEDERA- TION’s motion for creation of a drafting group was supported by the UK, but defeated by SWITZERLAND, POLAND, ARGENTINA,
BRAZIL and CHINA, who emphasized the importance of reducing options.
MINIMUM NATIONAL STANDARDS (Article 15): This draft article concerned establishment of national administrative and regula- tory systems to assess and manage risks associated with LMOs.
ZIMBABWE requested recognition that some countries may require assistance to develop such standards. Many delegations argued against a separate article on this issue, including ARGENTINA, the EU, AUSTRALIA, the US and COLOMBIA. JAPAN said that appropriate standards should be determined by each contracting Party. Delegates supporting retention of a separate article included the RUSSIAN FEDERATION, NORWAY, POLAND and ARGENTINA. CANADA
added text allowing imposition of more stringent requirements, based on scientific consideration. Final options included the Chair’s draft text, Canada’s text, and no article.
UNINTENTIONAL TRANSBOUNDARY MOVEMENTS
(Article 16): HAITI suggested that confirmation of such unintentional movements should be conducted by an independent group of experts. JAPAN favored no article on this issue, noting it was adequately covered under the CBD. BRAZIL, ZIMBABWE, INDIA and CANADA favored inclusion of the Chair’s draft text. The US and AUSTRALIA supported modifications to the Chair’s text, while the EU supported its own text as an option. Some differences among options included: the type of unintentional movements that would trigger notification requirements; and the scope of action required, such as whether a Party of origin must minimize impacts.
EMERGENCY MEASURES (Article 17): This draft article would establish national emergency measures and notification proce- dures for accidental transfers of LMOs that pose risks to the environ- ment or human health. The RUSSIAN FEDERATION, supporting the views of JAPAN, the US and POLAND, said this article was unneces-
sary, explaining that these measures are covered under national stan- dards. Delegates identified the Chair’s draft as the other option for this article.
HANDLING, TRANSPORT, PACKAGING AND LABELING (Article 18): This draft article would address national measures for transboundary handling, transport, packaging and labeling of LMOs, and the rights of receiving Parties to impose environmentally protec- tive terms and conditions. There were 13 country submissions on this issue and SWG-2 reduced the options to six: the Chair’s text (HAITI, INDONESIA, BRAZIL); the Chair’s text with a variety of proposed modifications (AUSTRALIA, SOUTH AFRICA, ZIMBABWE, US);
Japan’s text; Norway’s text (ARGENTINA); new text proposed by CANADA; and a new proposal by the EU. The options ranged from one that called for a general requirement of safe transport to another that would establish specific documentation and labeling procedures. Some options called for development of standards by the COP, while others drew upon existing international standards.
COMPETENT AUTHORITY/FOCAL POINT (Article 19): This draft article would require establishment of national competent authorities and/or focal points to receive notifications and communi- cate decisions on LMOs. Some participants expressed concern regarding determination of competency, while others sought greater clarity on the distinction between competent authorities and focal points. CHINA, MAURITANIA and ZIMBABWE highlighted the need for more specific language on capacity building. SWG-2 consoli- dated 18 country submissions into six options: the Chair’s text; the Chair’s text with various modifications (CHINA, MAURITANIA, HAITI, MALI); Australia’s text (ARGENTINA, COSTA RICA, BRAZIL, COLOMBIA, US); Japan’s text; and the EU’s text (RUSSIAN FEDERATION and POLAND). The options varied in specificity and scope of responsibility and authority. Some options establish specific obligations, such as risk assessment, or grant authority to impose appropriate conditions relative to the protection of the environment on the transfer, handling or use of LMOs.
INFORMATION SHARING/BIOSAFETY CLEARING-HOUSE (Article 20): SWG-2 narrowed the options from 19 to seven, although these contained numerous variations. ARGENTINA high- lighted the importance of information exchange for confidence building, especially with regard to new technologies and, for this reason, supported India’s text. Other options identified included: the Chair’s text; sections of and modifications to the Chair’s text; the US’ text; Colombia’s text; Switzerland’s text; Japan’s text; Canada’s text; and the EU’s text. Differences among proposed options included, inter alia: recognition of special needs of developing countries; program- matic location and structure of a clearing house/information center; specificity of information to be handled by a clearing-house; and extent of access to such information.
The second session of SWG-2 concluded with participants expressing general satisfaction with the work accomplished, and with a general expectation that further refinement would occur through a drafting process.
Delegates began the third session, on 15 October, by consolidating text on draft Article 21.
CAPACITY BUILDING (Article 21): This draft article would address capacity building in biosafety and/or biotechnology. Several delegations, including the RUSSIAN FEDERATION, JAPAN and the EU acknowledged the importance of capacity building to the effective functioning of a biosafety protocol, but observed that a general obliga- tion to participate in capacity building already exists under other inter- national frameworks. ZIMBABWE expressed strong support for inclusion of the article, and, with MOROCCO, highlighted the impor- tance of training in biotechnology in addition to biosafety. Many other delegations supported a separate article on this issue, including: the PHILIPPINES, AUSTRALIA, BRAZIL, MALAYSIA, SOUTH
AFRICA and VENEZUELA. CHINA concurred, drawing attention to the issue of Risk Assessment and Management, an area in which many developing countries have weak capacity. ARGENTINA said inclu- sion of the article would help encourage cooperation between coun-
tries, not only on North/South lines but also South/South lines, and stressed the need for better information on temperate and tropical ecosystems.
SWG-2 narrowed submissions from 17 to five options, including the “no article” option. The other options included: the Chair’s entire draft text; portions of it, with and without amendments from the EU text. Prominent differences among options included: the degree of clarity on financial and programmatic responsibility for capacity building; inclusion of capacity development in biotechnology as well as biosafety; and emphasis on capacity in risk assessment and manage- ment procedures.
PUBLIC AWARENESS/PUBLIC PARTICIPATION (Article 22): This draft article generated a discussion on the merits of its inclu- sion, although all speakers favored the general concept. The RUSSIAN FEDERATION stressed the importance of public aware- ness, particularly with regard to new technologies, but suggested use of a preambular statement, since this issue is also addressed in draft Article 20 on information sharing/biosafety clearing-house. The EU said the CBD adequately covers this issue. Participants speaking in favor of retaining the article included: AUSTRALIA, DOMINICAN REPUBLIC, PHILIPPINES, MALI, SWITZERLAND, JAPAN, ZIMBABWE, ARGENTINA, US and BRAZIL. Final options included: no article; preambular text; the Chair’s text in its entirety; portions of the Chair’s text with and without modifications; and texts submitted by Switzerland, Japan and India. Some options encouraged measures “as appropriate” and “within a country’s capacity” to ensure public awareness. Others would establish specific procedures, such as opportunity for public hearings during the approval processes for LMOs.
At the beginning of the afternoon session, delegates considered whether to attempt further consolidation of the draft text. Some partici- pants thought additional reduction of overlap could be achieved.
Others identified the following difficulties: the working text was avail- able only in English; consultation with capitals should precede further refinement; further progress would entail negotiation; and creation of a core drafting group should precede any attempts at improvement. The US suggested the group consider additional work on draft Article 19 regarding competent authorities, where there appeared to be a fair amount of overlap. Delegates agreed. As the close of the afternoon session loomed without a clear resolution, ZIMBABWE suggested that perhaps, now, it was finally appropriate to consider working as a smaller drafting group. SWG-2 agreed to create a drafting group at its next session, comprised of SWG-2’s regional representatives who were nominated during the Monday afternoon Plenary. Its work was to be limited to consolidating obvious commonalities among options for Article 19; and the entire group would review the new draft consolida- tion. Co-Chair Gamble reminded participants that any smaller drafting group was to be open, unless the group decided otherwise by consensus. SWG-2 opted for an open-ended drafting group, with speaking rights for all governments.
Decisions made at the evening Plenary, on Wednesday, 15 October, forced SWG-2 to reevaluate its remaining work. Its rapid progress on consolidation was rewarded with the charge of developing consoli- dated text for four outstanding issues. For this reason, SWG-2 never convened a smaller drafting group to pursue additional work on Article
19. The group completed a final review of the proposed articles at its sixth session. Co-Chair Gamble presented to the Plenary on 16 October a report that contained consolidated draft text for Articles 11 and 15-22, expressing confidence that the options covered a range of positions over which negotiations could take place. He especially recognized the cooperation and positive work of the non-English speaking delegations. On behalf of SWG-2, he requested the report be incorporated into the proposed consolidated draft being prepared for consideration and negotiation at BSWG’s next session.
SWG-2 also prepared a set of reports on the following outstanding issues: illegal traffic; non-discrimination; objectives; and general obli- gations. For each of these items, SWG-2 had aide-memoires, a Chair’s draft for Elements papers, and government submissions. Co-Chair Gamble noted that this was the first review of these items, and acknowledged that some delegations were disadvantaged since text
was only available in English. Against this background, SWG-2 limited its review of each item to consolidating elements, where possible, and ensuring that the draft elements fairly reflected the discussions held in the Plenary. SWG-2 also approved a chapeau drafted by CANADA for each item that described their process of review and invited additional government submissions on the topic. At the evening Plenary on 16 October, Co-Chair Gamble presented reports on these issues in the form of options, which governments were invited to use as a basis for future submissions.
CONTACT GROUP ON DEFINITIONS AND ANNEXES
The Contact Group on Definitions and Annexes (CG-1) met for three sessions under the co-chairmanship of Piet van der Meer (the Netherlands) and Gert Willemse (South Africa). As a basis for its discussion, CG-1 referred to the Compilation of Definitions and Terms Relevant to a Biosafety Protocol (UNEP/CBD/BSWG/3/Inf.1), comprising some 80 terms elaborated by the Contact Group on Defini- tions established at BSWG-2 (UNEP/CBD/BSWG/2/5). The group first identified some 30 terms that need to be defined as a priority, with the understanding that other items could be identified in the course of negotiations. These are: accidental release; competent authority; contained use; deliberate release; export and import; exporter; field trial; focal point; illegal traffic; importer; liability; living modified organisms; notification; novel traits; organism; party of export; party of import; party of transit; party concerned; party of origin; potential receiving environment; product; receiving party; transboundary move- ment; transboundary release; unconfined release; unintended release; and unintended transboundary movement. The following terms were initially selected as priority items but were later either dropped from the list or merged with the ones listed above: advance informed agree- ment; information exchange; open environment; precautionary prin- ciple/approach; and transboundary transfer.
CG-1 then determined whether the use of terms presented in the submissions could be merged (in the case of a convergence of the submissions) or should be presented as separate options (in case of a divergence). On this basis, the Co-Chairs prepared a consolidated draft text that was considered by the group at its second and third sessions, during which CG-1 conducted a term-by-term review, bracketing text and proposing further options. Notably, following consultations with Chair Koester and as a result of concurrent discussions in SWG-1, the Co-Chairs proposed to employ the term “living products thereof” in conjunction with the term LMOs. However, the proposal was defeated on the grounds, as some delegates argued, that determining such use would exceed its mandate and prejudice the work of SWG-1 regarding the scope of the protocol. Later, in presenting CG-1’s text on Use of Terms to Plenary, Co-Chair van der Meer explained that further discus- sion may take place as to whether and to what extent this term could be replaced by “LMOs and products thereof”.
As a basis for their discussions on annexes to the protocol, CG-1 referred to the BSWG Chair’s draft text on possible contents (UNEP/ CBD/BSWG/3/Inf.4), which contains the following five annexes: information required in order to obtain advance informed agreement (Annex I); risk assessment parameters (Annex II); risk management schemes (Annex III); function of focal points/competent authorities (Annex IV); and information to be provided to the Secretariat under information-sharing/clearing-house (Annex V). At the first session, Co-Chair Willemse proposed that a consolidated draft text be prepared for the first two annexes, which CG-1 could characterize as “neces- sary” annexes, leaving the remaining three as “potential” annexes to be developed as the need arose. However, after a brief discussion at its first session, CG-1 agreed to retain all five annexes. Without discussing the actual content of any of these, CG-1 agreed that these draft annexes may or may not ultimately form part of the protocol and that the list of annexes, including those proposed in government submissions, would remain open to any future additions. To this end, the group identified the following potential annexes that would remain on the agenda for future consideration: guidelines/requirements for use of LMOs in contained facilities; information requirements for uninten- tional release/transboundary movement; information requirements for notification; information requirements for simplified procedures; lists of and criteria for LMOs, genes/traits and activities with LMOs to which the protocol shall not apply; relevant information on LMOs; and cases of explicit consent.
CG-1’s consolidated draft text, comprised of “Use of Terms” and “Annexes”, was adopted in Plenary and will go forward to BSWG-4 as a basis for future negotiations.
CONTACT GROUP ON INSTITUTIONAL MATTERS AND FINAL CLAUSES
The Contact Group on Institutional Matters and Final Clauses (CG-2) met for three sessions under the chairmanship of John Ashe (Antigua and Barbuda). As a basis for deliberations on institutional matters, relevant sections of the Secretariat’s Compilation Draft Text
on Selected Items (UNEP/CBD/BSWG/3/4) were replaced with a half- page text that addressed the four following items: Trust Fund; Finan- cial Mechanism and Resources; Institutional Framework; and Meet- ings of Parties. At the first session, CG-2 engaged in a broad and preliminary exchange of views on these matters.
At its second session, the Chair presented a two-page text containing the following sections: Financial Mechanism and Resources; Conference of the Parties; Secretariat; Subsidiary Bodies and Mechanisms; and Final Clauses. A non-Party to the CBD proposed replacing the term “Conference of Parties” to the CBD with “Meeting of Parties” to the protocol. This same government later reconsidered its initial proposal to remove references to the CBD itself, but retained brackets around the draft article that provided that non-Parties could make reservations to the protocol.
When the Chair also tabled text on monitoring and compliance procedures, several delegates dismissed it as both premature and unso- licited, and requested that it be withdrawn. Also tabled was an Informal Note by the BSWG Chair on Compliance Mechanisms for the Protocol. Although delegates were not prepared to consider the document at this meeting, they indicated their willingness to take it back to their respective capitals for further consideration at the next meeting.
CG-2 prepared draft text outlining its proposals on the following institutional matters: Monitoring and Compliance; Financial Mecha- nism and Resources; Conference of Parties; Secretariat; Subsidiary Bodies and Mechanisms; and Relationship with Other International Conventions.
In addition to the text introduced by the Chair, several alternatives were presented under each of the main headings. With the exception of the draft article on Reservations, none of the final clauses were the subject of discussion in CG-2. These are: Relationship with the Convention; Signature; Ratification, Acceptance or Approval; Acces- sion; Entry into Force; Reservations; Withdrawals; and Authentic Texts. CG-2 also recommended an examination of the CBD, in partic- ular Articles 21-42, in order to determine the extent to which provi- sions on institutional matters would need to be included in the protocol.
In presenting the results of CG-2’s work to Plenary, Chair Ashe stated that although the text contained no brackets per se, the entire text should be viewed with “mental brackets” since all options were still open. The draft text was adopted in Plenary and incorporated into BSWG-3’s consolidated text, with the understanding that the matters under its consideration would need to be reviewed at BSWG-4, perhaps on a paragraph-by-paragraph basis.
In response to requests by ETHIOPIA, on behalf of the African Group, and SWITZERLAND to have their respective submissions on institutional matters included in the consolidated text, the Chair stated that it would have been useful for governments and regional groups to channel their submissions through the relevant SWGs and CGs. Chair Koester further explained that governments who made submissions at this stage were in contravention of the decision taken at BSWG-2 that draft articles to be developed by the Secretariat were to serve as the basis for work at this meeting. ETHIOPIA’s subsequent offer to with- draw the regional submission (with the proviso that it could be submitted at a later stage) was countered the DEMOCRATIC REPUBLIC OF CONGO, and it was retained.
FUTURE WORK AND MEETINGS
During an evening Plenary, on Thursday, 16 October, the Chair presented an aide-memoire on future work in which he outlined the following procedural elements: character of the consolidated draft; continuation of the present structure; work to be undertaken until the next meeting; and character of the next meeting.
In response to the Chair’s recommendation that the present struc- ture and mandates of the SWGs be maintained for the next meeting, AUSTRALIA conveyed the unwillingness of JUSSCANNZ (Japan, US, Switzerland, Canada, Australia, Norway and New Zealand) to continue to operate on the basis of four regional representatives given that in one SWG, this arrangement served as a basis to deny some countries the right to speak. The Chair maintained that the regional representatives were not intended to serve as spokespersons for the region but rather to facilitate the effective participation of smaller dele- gations; any decision to limit speaking rights would need to be taken by consensus. On the basis of this explanation, delegates agreed to maintain the regional system. BURKINA FASO recorded its reserva- tion to continuing with two distinct SWGs as the BSWG moves into negotiations.
In order for the BSWG to complete its work by the end of 1998, an aide-memoire from the Bureau made several recommendations regarding future meetings. Notably, the Bureau recommended the COP consider the necessary mechanism by which two additional meetings of the BSWG, as well as an extraordinary session of the COP for the adoption of the protocol, could be held in 1998.
Delegates deliberated the number, timing and duration of these meetings during Plenary sessions on Thursday evening and Friday morning. On the basis of the BSWG’s decision to hold its next meeting from 9-18 February 1998, delegates agreed a deadline of 1 December 1997 for government submissions in all official languages. Stating that the time for general statements had passed, the Chair encouraged governments to limit their submissions to legal text either for amend- ments to the options already presented in the consolidated text or for new draft articles under the following sub-headings: Socio-economic considerations; Liability and compensation; Illegal traffic; Non- discrimination; Non-Parties; Objectives; and General obligations.
On the basis of a suggestion by SWEDEN, on behalf of the EU, the Secretariat was instructed to communicate information to all focal points, with copies to all Heads of Delegation, about the financial implications of three meetings. JAPAN stated that the budgetary impli- cations of additional meetings were a matter for consideration at COP-
4. In view of the need to distribute the budget by January, if it is to be realistically considered at COP-4, delegates agreed the budget should be based on a two-week summer meeting, with the understanding that it could be reduced to six working days pending progress achieved at the February meeting. Delegates agreed that BSWG-5 would be held sometime during the last two weeks of July 1998, deferring to the Secretariat to determine exact dates in light of other intergovernmental meetings and conference facilities. Delegates also agreed that the final meeting of the BSWG and adoption ceremony should be held some- time in early December 1998.
In the final Plenary, delegates considered the Chair’s draft report of the meeting (UNEP/CBD/BSWG/3/L.1). The Chair proposed an amendment to clarify the consensus process that would be required in the event that a SWG or CG sought to limit governmental participa- tion. The EU stated that, in the future, the systematic use of drafting groups will be necessary to reduce the numerous options in the current draft text, and encouraged delegations to consult in an effort to merge options. Noting that additional funding is required for the three biosafety meetings necessary for the BSWG to meet its deadline, the representative called on countries for financial contributions.
Speaking on behalf of G-77/CHINA, INDONESIA’s salute to the Secretariat and interpretors was met with general applause. Several delegations expressed their appreciation for the Chair’s expert facilita- tion of the meeting.
CBD Executive Secretary Calestous Juma thanked Chair Koester for his support to the Secretariat, and noted the timely transmissions by governments, which allowed the Secretariat to improve upon the quality of the documents. He also thanked several countries for their financial contributions, which allowed many delegates from devel- oping countries to attend.
In closing the meeting, Chair Koester thanked the Bureau, Co- Chairs, technical advisors, interpreters, translators, report writers, the Secretariat and the delegations, particularly those represented by a single person, for their hard work and patience. The meeting adjourned at approximately 1:30 pm on Friday, 17 October 1997.
A BRIEF ANALYSIS OF BSWG-3
Chair Veit Koester opened the third session of Open-ended Ad Hoc Working Group on Biosafety (BSWG) by outlining the extensive amount of work the group must accomplish if it is to fulfill its mandate to produce a protocol by the end of 1998. He underscored the need to prepare draft text in legal terms, signaling that, except on the so-called “outstanding issues,” such as socio-economic considerations and liability and compensation, the process had moved beyond issue defi- nition and element identification, which characterized the two previous meetings of the BSWG. Throughout the session, delegates were reminded that their task was not to negotiate, but to produce a consolidated text upon which future negotiations would be based. In the course of consolidating the voluminous government submissions, areas of divergence and convergence among country positions were further distilled, thereby accentuating some of the major obstacles to negotiating an effective protocol.
GROUP DYNAMICS: One of the obstacles relates to group dynamics and especially the fact that opinions on biosafety do not necessarily vary along North-South lines. This had an impact both on the negotiation dynamics within the two Sub-Working Groups as well as within regional groups.
The two Sub-Working Groups presented a study in contrasts, as one group established a drafting group composed of regional represen- tatives, while the other withstood pressure to follow suit, instead main- taining full and open representation throughout its working sessions. Some participants privately noted that SWG-1’s drafting group floun- dered in procedural issues and, perhaps more importantly, unneces- sarily alienated some delegations by deciding to deny speaking rights. However, some participants felt the regional representation process itself should not be faulted, only its implementation, since such a system, in theory, provided a voice for their concerns at the drafting table. Although SWG-2 enjoyed acclaim for its “workman-like” progress on text consolidation, one delegate expressed frustration over not being able to make further progress in a smaller drafting group.
Others maintained that comparison of the two groups was unrealistic, given the contentiousness of Advance Informed Agreement (AIA) provisions addressed by SWG-1, and the availability of working text provided by the Chair for SWG-2 issues. In any event, it is crucial that SWG-1 develop an effective modus operandi, especially since, as many believe, the issues under its care will ultimately make or break the protocol.
Others postulated that SWG-1’s difficulties may have stemmed more from splits in regional groups than procedural flaws. The split within the G-77/China, and particularly the Latin American and Carib- bean Group (GRULAC), witnessed at previous meetings of the BSWG was paralleled only by divisions within the Western Europe and Others Group (WEOG), and particularly JUSSCANNZ (Japan, US, Switzer- land, Canada, Australia, Norway and New Zealand), at this meeting.
The latter group’s overt resistance to regional representation was not simply of matter of principle or procedure; it reflected substantive and substantial differences within the group. Such differences led one observer to quip that the number of positions in the group is roughly equal to the number of its members.
FROM CONSOLIDATION TO NEGOTIATION: A second obstacle that emerged at this session was the transition from consolida- tion to negotiation. If BSWG-2 provided a platform for governments to present their respective positions, BSWG-3 offered an opportunity
to consolidate them, thereby allowing for a better identification of areas of divergence and convergence. However, the line between consolidation and negotiation was not clearly drawn at this meeting, a reflection of the fact that the process of identifying and reducing options that will serve as a basis for negotiation is an intensely political exercise.
Several participants observed that the work of this meeting only required governments to ensure that their preferred options remained fully represented in the draft text and that the difficult negotiations had yet to be embraced. Nevertheless, some participants took full advan- tage of the opportunity to safeguard their positions by bracketing seemingly minute nuances in every arena, effectively increasing rather than consolidating the draft options in some cases. It was acknowl- edged that the hesitation of some nations, in particular those with nascent biotechnology industries, to embrace definite positions is a reflection of the cutting-edge nature of the issue-area itself: some countries are cautious about committing to international rules which may preclude future possibilities.
Although Chair Koester admonished participants to restrain them- selves from further embellishments on the agreed text, delegates continued to seek assurances until the closing minutes of BSWG-3 that their preferred options were indeed available. While flexibility within the negotiation process is essential to ensure that a biosafety protocol is adopted and ratified by as many Parties as possible, continued expan- sion of the options in the draft text will certainly hamper BSWG’s ability to negotiate a protocol by the end of 1998.
OBSTACLES TO AN EFFECTIVE PROTOCOL: While many delegates are optimistic about the prospect for completing a biosafety protocol on schedule, many reserve judgment as to whether it will be an effective protocol. Such concerns can be evidenced from repeated calls for reassurance that the outstanding issues on which no substan- tive draft text has been prepared will receive equal treatment before completion of the protocol. It is feared that the protocol’s effectiveness will be hampered if future negotiations do not provide the opportunity for a full airing of the issues.
One industry representative maintained that the “excessive expec- tations” of some G-77 countries reflects a failure to conduct a sound cost-benefit analysis of biotechnology. Developing country demands for provisions regarding socio-economic considerations and liability and compensation are tantamount to applying a disproportionately high entry fee to biotechnology. Such concerns were expressed by several developed countries, particularly about the prospect that the protocol would serve as a new pretext for protectionist measures.
In a statement to Plenary, the representative of the EU framed the challenge to BSWG as it enters the next phase of its work: the advan- tages of joining the protocol must outweigh the disadvantages. The development of a biosafety protocol represents a critical attempt to operationalize one of the key and most contentious elements of the Convention on Biological Diversity. Whether the biosafety protocol follows in the steps of the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, by becoming more important than its parent convention, remains to be seen. However, unless some of the obstacles currently facing the negotiations are overcome, the successful comple- tion of the biosafety protocol will be of greater concern than its poten- tial fame.
THINGS TO LOOK FOR
WORKING GROUP ON BIOSAFETY: The fourth session of the Open-ended Ad Hoc Working Group on Biosafety will take place in Montreal from 9-18 February 1998. Delegates have also agreed that BSWG-5 should be held sometime during the last two weeks of July, deferring to the Secretariat to determine exact dates in light of other intergovernmental meetings and conference facilities. Delegates also agreed that the final meeting of the BSWG and adoption ceremony should be held sometime in early December. For more information contact the CBD Secretariat, World Trade Centre, 393 St. Jacques Street, Montreal, Quebec, Canada H2Y 1N9; tel: +1-514-288-2220; fax: +1-514-288-6588; e-mail: [email protected]; Internet: http:// www.biodiv.org.
TRADITIONAL KNOWLEDGE WORKSHOP: A workshop on the implementation of Article 8(j) (traditional knowledge) of the Convention on Biological Diversity is scheduled for 24-28 November 1997 in Madrid. Venue: Municipal Convention Centre (Palacio Municipal de Congresos, Avenida de la Capital de Espana, Madrid, s/ n, Campo de las Naciones, 28042 Madrid, tel: + (34-1) 722-0400; fax: + (34-1) 721-0607. For more information, contact the CBD Secre- tariat.
REGIONAL WORKSHOPS ON THE CLEARINGHOUSE MECHANISM: The Asian Regional Workshop is tentatively sched- uled for 3-5 November 1997 in Kuala Lumpur, Malaysia. The African Regional Workshop is tentatively scheduled for November/December 1997 in a venue to be determined. The Workshop for countries with economies in transition is tentatively scheduled for November/ December 1997 in Gödöllö, Hungary. For more information, contact the CBD Secretariat.
PREPARATORY MEETINGS FOR COP-4: The Asian Preparatory Meeting is tentatively scheduled for January 1998 in Beijing, China. The African Preparatory Meeting is tentatively scheduled for February 1998 in Morocco. The Latin American and Caribbean Prepa- ratory Meeting is tentatively scheduled for February/March in a venue to be determined. The Preparatory Meeting for countries with econo- mies in transition is scheduled for March 1998 in Almaty, Kazakstan. For more information, contact the CBD Secretariat.
FOURTH CONFERENCE OF THE PARTIES TO THE CONVENTION ON BIOLOGICAL DIVERSITY: COP-4 is scheduled for 4-15 May 1998 in Bratislava, Slovakia. For more infor- mation, contact the CBD Secretariat.
BIODIVERSITY CONSERVATION AND CONTROLS ON ACCESS TO GENETIC RESOURCES WORKSHOP: This work-shop will be held on 31 October 1997 North York, Ontario. The Cana- dian Institute for Environmental Law and Policy (CIELAP) and environmental law centres in the US, Costa Rica, Ecuador, Colombia, Peru, Paraguay and Argentina have completed a series of reports detailing each country’s legal and policy mechanisms addressing these provisions in the Biodiversity Convention. Workshop participants will hear and discuss the findings of these reports. For further logistical information and background please contact: Kumarie Khadoo (CIELAP); tel:+1 (416) 923-3529; fax: +1 (416) 923-5949; e-mail: [email protected]
WORKSHOP ON BIODIVERSITY AND SUSTAINABLE DEVELOPMENT IN LATIN AMERICA: This workshop will be held from 27 - 28 November 1997 in Amsterdam, the Netherlands. For more information, contact CEDLA Workshop 1997, Keizersgracht 397; Amsterdam, 1016 EK, the Netherlands, fax: +31-20-625-5127; e- mail: [email protected]
THIRD CONGRESS OF THE CONSERVATION OF CARIBBEAN BIODIVERSITY: This conference will be held from 14-17 January 1998 in Santo Domingo, Dominican Republic. For more information, contact the Univeridad Autonama de Santo Domingo, DR; tel: +1 (809) 686-3348; fax: +1 (809) 687-5766.
INTERNATIONAL CONFERENCE ON MEDICINAL PLANTS CONSERVATION, UTILIZATION, TRADE AND BIOCULTURES: This meeting is scheduled from 16-20 February 1998 at the National Institute of Advanced Studies, Indian Institute of Science Campus, Bangalore, India. The meeting will focus on the issue of medicinal plants for survival. For further information, contact the Foundation for Revitalization of Local Health Traditions (FRLHT), No. 50, 2nd Stage, MSHLayout, Anandnagar, Bangalore 560 024, India; tel:+91 80 333 6909/0348; fax:+91 80 333 4167; email: [email protected]
EIGHTH SESSION OF THE COMMISSION ON GENETIC RESOURCES FOR FOOD AND AGRICULTURE: The next session of the CGFRA will take place during the second half of April 1999. For more information, contact FAO: Viale delle Terme di Cara- calla, 00100 Rome, Italy; tel: +39-6-52251. Also try http:// www.fao.org or http://web.icppgr.fao.org.