By David Hathaway

August 23, 1998

For the past week, since August 16, delegates from over 100 countries have been attempting to craft a consensus over binding rules to govern international trade in "Living Modified Organisms" (LMOs), a euphemism coined by the 1992 Biodiversity Convention for genetically-engineered, transgenic plants, animals and micro-organisms such as viruses and bacteria.

The media in general is paying no attention to the process, in which diplomats and their scientific, trade and legal advisers painstakingly negotiate the terms of articles, paragraphs, concepts and definitions. Yet representatives both of private global biotech cartels that sell biotechnology products, as well as of civil society organizations who opposed them are present and paying close attention to the details of debates underway, scheduled to adjourn on Friday, August 29.

The Biosafety Protocol negotiations were begun in 1996, under a "mandate" given by a November 1995 meeting in Jakarta of the governments that have ratified the Convention on Biological Diversity (CBD). Considerable political pressure had been brought to bear by NGOs and by southern governments to push parties to the Convention towards implementation of their commitment (article 19.3 of the CBD) to at least "consider" adoption of an adjunct agreement, or "protocol," to the Convention. The protocol, if adopted, should lay out explicit rules for all countries to obey regarding "the safe transfer, handling and use of living modified organisms resulting from biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity."

While the Convention had set out that rather broad scope for a Biosafety Protocol in 1992, the 1995 "Jakarta Mandate" responded only partially to the CBD commitment and trimmed the objective down from the "field" of transfer, handling and use, to focus "specifically" on only the "trans-boundary movement" of LMOs, that is, on international trade in genetically-engineered organisms (decision II/5 of the CBD). No international rules would be set governing the actual use of hazardous transgenic plants or dangerous microscopic pathogens in any country, and even the rules on their "handling" would be restricted to their transportation between one country and another, but not domestically.

That second, top-level Conference of the Parties (or COP) to the Convention in Jakarta created a Biosafety Working Group (BSWG) open to all CBD members and observers to negotiate the terms of the Protocol, which it hoped would be concluded by late 1998. The Working Group has met five times since 1996, and in fact it is now committed to holding its sixth and final session in February 1999 in Cartagena, Colombia. An extraordinary session of the COP is scheduled to formally adopt the Biosafety Protocol in its final form, after which governments will actually be able to sign and ratify it.

Since the negotiations began in 1996, delegates from the countries who first pushed for the protocol have been seeking ways to have it respond to their original motivations, which were left purposely vague in the Convention itself (due to pressures from Northern industrialized countries such as the US, Canada and Japan, backed by global corporations such as Monsanto and Novartis) and then entirely left out in the Jakarta decision. Southern countries (led particularly by Ethiopia and Colombia, with the sometimes outspoken support of European governments such as Norway and Austria), along with the civil-society NGOs (mainly Northern-based NGOs, international NGOs and the Third World Network) have over the past two years focused particularly on the need for the Biosafety Protocol to deal with and put a priority on such issues as:

• environmental concerns under this convention, versus the World Trade Organization’s "free-trade" rules (particularly for Sanitary and Phytosanitary Measures),
• the right of all governments to fully assess the desirability of allowing LMOs into their countries, before freely deciding whether or not to consent to allow imports,
• human health as an allowable concern for importing countries’ assessment criteria, in the defense of biological diversity and its sustainable use,
• the admissibility of social, cultural and economic risks posed by the introduction of LMOs in the decisions to be made by importing countries,
• the formal accountability of LMO exporting countries and companies (through legal liability provisions), if anything "goes wrong" with the genetically-engineered organisms and products they have sent abroad,
• who will be held responsible for illegal, unauthorized or even accidental "transborder movements" of LMOs, and how,
• the terms under which countries that sign the Protocol may—or may not—trade in LMOs with countries that are not party to it,
• the very concept and definition of "living," "modified" "organisms" and whether their biological components (e.g. strands of DNA or plasmids) or "products thereof" (e.g. grain shipments from transgenic crops) may also represent a biohazard to importing countries, even when not apparently "living" (as opposed to the Northern governments’ position, which holds these parts and products to be simply "beyond the scope" of the Protocol, whether risky or not).

At this fifth meeting of the BSWG in Montreal, many negotiating options on each of these points are effectively being narrowed and the size of the draft protocol is being considerably reduced. Yet it still seems unlikely that many of these most controversial issues will actually be resolved here. The Working Group’s final meeting in Cartagena next February will face the daunting task of finalizing a text that all parties can actually adopt. Industrialized governments want a protocol they can believe will not "shackle" their biotech industries, and offer a shroud of legitimacy to their exports of transgenic food and pharmaceuticals, stamped "SAFE" by the Protocol on Biosafety. Importing countries, particularly in the South, on the other hand, will need to be convinced that this new agreement under the Biodiversity Convention can offer them more self-defense tools than current WTO arrangements, in order to make it worth signing at all. Several southern delegations are quite pessimistic at this point.

David Hathaway

Member of the Greenpeace International delegation in Montreal, and advisor to AS-PTA (Assessoria e Serviços a Projetos em Agricultura Alternativa) in Rio de Janeiro and to Greenpeace Brazil.