The biosafety protocol is being negotiated in the context of the Convention on Biological Diversity (ratified by 169 governments). The mandate of the working group is to `develop a protocol on the safe transfer, handling and use of living modified organisms, specifically focusing on transboundary movements of any living modified organism that may have an adverse effect on biological diversity and human health, setting out appropriate procedures for advance informed agreement'. The negotiation process, started in July 1996, is expected to conclude in December 1998.

Because of its focus on transboundary movements of living modified organisms (LMOs, usually called `genetically modified organisms' or GMOs), as well as the tremendous scope for international trade in biotechnology products, the biosafety protocol can almost be regarded as a trade agreement rather than an environmental agreement. Many of the most contentious issues arise from the difficulty of effectively limiting risks and providing compensation for damage caused by cross-border movements of LMOs without hampering the growth of trade in biotechnology products.

Socio-economic considerations and liability

Developing countries generally favour the inclusion of references to socio-economic considerations in the protocol while developed countries hold a variety of views on the question. This is reflected in the text that will serve as a basis for the next round of negotiations - the draft offers the following options for addressing socio-economic considerations: 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, or not at all.

Disagreement also persists over whether liability and compensation provisions should be written into the protocol or whether these issues should be left to the national legislation of the country where the damage occurs. The EU in particular favours using national liability and compensation legislation. The African group is pushing for a strong liability regime under the protocol, generally holding the exporter liable for compensation unless negligence can be proved on the part of the importer. Many developed countries reportedly fear that along with socio-economic provisions, liability and compensation clauses could be used as justification for protectionist trade measures.

Trade with non-Parties and non-discrimination

North-South divisions are blurred regarding trade measures. For instance, Japan, Haiti, the EU, Ethiopia, Zimbabwe, Australia, Colombia and New Zealand are in favour of addressing trade with non-Parties in the protocol. (Many MEAs contain clauses that restrict or prohibit trade with non-Parties. In view of the fast-growing  importance of cross-border trade in LMOs such restrictions could provide a compelling reason for countries to join the biosafety protocol.) Other countries, however, seem to fear the loss of lucrative markets that could result from severe trade restrictions between Parties and non-Parties. These include countries with already strong biotechnology exports, such as the US, and countries with nascent biotechnology industries such as Malaysia. Negotiators have not agreed on how to deal with illegal traffic, although a slight majority seems to be emerging in favour of national level regulation.

Another WTO sensitivity, non-discrimination, also promises to be controversial. Some countries, including Malaysia and Ethiopia, are against including non-discrimination provisions in the protocol, maintaining that governments should be free to decide the transfer, handling and use of LMOs. Others, including India, consider discrimination allowable if socio-economic concerns warrant it. Countries with strong biotechnology industries advocate strong non-discrimination provisions in line with the WTO's `most favoured nation' and `national treatment' principles. The US, for instance, proposes that non-discrimination be addressed only in the context of Advance Informed Agreement, and should guarantee that foreign LMOs are not discriminated against in favour of domestic LMOs.

Advance informed agreement

Negotiators are working on an Advanced Informed Agreement (AIA) procedure, i.e. a system of notifications on LMO exports and imports. At present, the mechanics of this procedure are far from agreed: the draft text contains twelve elements for the procedure with options listed under each. The scope of application of the AIA procedure is also still under intense discussion. Options include: all LMOs subject to AIA; all first time transboundary movements of LMOs; all LMOs except those (explicitly excluded) (identified in an annex as low risk) subject to AIA; importer state decides whether exporter should apply national regulations or the protocol; LMOs included based on criteria listed in an annex; and LMOs intended for field testing.

The next meeting of the Ad Hoc Working Group on  Biosafety will be held in Montreal from 9-18 February 1998. Another meeting is planned for late July. The last negotiating session, followed by an adoption ceremony is tentatively scheduled for early December 1998.

Contact: CBD Secretariat, World Trade Centre, 393 St. Jacques Street, Montreal, Quebec, Canada H2Y 1N9; tel: (1-514) 288-2220; fax: 288-6588; e-mail: chm@biodiv.org; Internet: http://www.biodiv.org

Pesticide Treaty Inches Forward

The fourth meeting of the intergovernmental negotiating committee preparing an international convention on the `prior informed consent' (PIC) procedure for trade in hazardous chemicals and pesticides, was held in Rome from 20-24 October. The treaty would make the currently voluntary PIC procedure legally-binding. Under the procedure, in practice in 154 countries, exports of twenty-two hazardous chemicals and pesticides  banned or severely restricted in a number of countries  need to be notified in advance to authorities in importing countries. Participating countries must also notify their decisions to ban or severely restrict chemicals domestically (it should be noted that such substances often continue to be manufactured for export). The binding instrument in-the-making aims to clearly spell out the notification obligations of both exporters and importers, establish a liability regime and determine criteria for inclusion of chemicals or pesticides in the `PIC list'. The current list consists of 17 pesticides and five industrial chemicals, including PCBs, Lindane, Aldrin, Dieldrin and other highly harmful pesticides such as Monocrotophos and Parathion. Shipments of these can only proceed once the importing country has indicated its `prior informed consent' to receiving them. 

Negotiations for the convention were to conclude by the end of 1997, but in view of the many unresolved issues, at least one more session will be necessary. Major outstanding clauses include requirements for export notifications, financial resources and mechanisms, the definition of `acutely' hazardous pesticide formulations, compliance and liability regimes, dispute settlement, as well as the future convention's relationship with the multilateral trading system. The export notification requirements, which form the corner stone of the PIC procedure, are difficult to agree upon as mainly importing countries favour frequent and detailed communications, while major exporters resist too cumbersome notification procedures and divulging information that could be regarded as trade secrets.

Regarding international trade (draft Article 4.5), there is disagreement on whether the convention should excplicitly state that measures taken under the convention should be `in accordance with WTO rules' or whether such measures should only avoid creating `unnecessary obstacles to, and/or [...] arbitrary or unjustifiable discrimination or disguised restrictions on, international trade'.

Another not yet agreed article (9.7), paraphrases the GATT's most favoured nation and national treatment principles by stating that when a country bans or restricts chemicals, it must `simultaneously prohibit or make subject to the same conditions the importation of the chemical concerned from any country as well as its domestically produced chemicals'. Moreover, draft Article 12.2 requires Parties to ensure that chemicals exported from their territoires are subject to no less stringent classification, packaging and labelling requirements than those destined for domestic use.

Finally, delegates are still discussing the appropriate form for draft Article 19 bis  the so-called `GATT-saving clause'. It currently reads as follows, square brackets indicating lack of consensus: `The provisions of this Convention shall not affect the rights and obligations of any Party deriving from any [existing] international agreement

[, except where the exercise of those rights or those obligations would cause serious damage or threat to human health or the environment].' 

Delegates agreed in Rome to delete a proposed provision on trade with non-Parties.

Contact: UNEP Chemicals (IRPTC), 15 chemin des Anémones,  Case postale 356, 1219 Châtelaine, Geneva, Switzerland; tel: (41-22) 979-9111, fax: (41-22) 797-3460, e-mail: IRTPC@unep.ch; or Michael Williams, IUC, tel: (41-22) 979-9242; fax: 979-3464.