Institute for Sustainable Development (IISD)
HIGHLIGHTS FROM THE FOURTH SESSION OF THE AD HOC WORKING GROUP
ON BIOSAFETY TUESDAY, 10 FEBRUARY 1998
On the fifth day of BSWG-4, delegates met in two Sub-Working
Groups (SWGs) in morning and afternoon sessions and in Contact
Groups throughout the day. SWG-I discussed Articles 3 and
6-14, definitions and annexes. SWG-II discussed Articles 15-18,
20-24 and 26.
SUB-WORKING GROUP I
SWG-I discussed Articles 7, 8 and 10-14 based on
UNEP/CBD/BSWG/4/Inf.1 and Articles 3, 6 and 9 based on SWG-I
Conference Room Papers 4, 5 and 6, respectively.
APPLICATION OF AIA PROCEDURE (Article 3): Delegates debated
whether scope of the Protocol should be included in this
article; and whether scope of the AIA procedure should be
defined by a �positive� or �negative� list, i.e., whether to
have a list of LMOs covered by or excluded by an AIA.
DECISION PROCEDURE FOR AIA (Article 6): Following comments on
duplication in the draft text, the Co-Chair invited a small
group to prepare a more concise version.
REVIEW OF DECISIONS UNDER AIA (Article 7): Delegates considered:
situations where new information about LMOs may allow Parties of
export to request Parties of import to reconsider; unilateral
declaration to change a decision; and the Exporter�s right to
review an Importer�s decision. Some delegations supported, and
others opposed, the provision of finances for risk assessment
costs to the receiving party.
NOTIFICATION OF TRANSIT (Article 8): Several delegations viewed
the article as unnecessary. Some delegations preferred text that
would require the Party of export to obtain consent from Party
and non-Party states through which LMOs would be transported, as
well as text that would establish responsibility for accidents
occurring in transit.
SIMPLIFIED PROCEDURE (Article 9): One regional group opposed
this article, noting that all LMOs should be subject to AIA.
Another regional group proposed options for further
SUBSEQUENT IMPORTS (Article 10): Several delegations supported
deleting this article, which would result in mandatory risk
assessment for all LMOs, unless otherwise specified by the Party
of import. One delegation stressed the importance of continual
AIA because the application of and environment for LMOs may
change. Other delegates preferred addressing the issue in
Article 6 or 9.
BILATERAL AND REGIONAL AGREEMENTS (Article 11): Delegates noted
the importance of such agreements for implementing the Protocol.
One regional group stressed the need for capacity building,
regional information exchange, codes of practice, and monitoring
of risks from LMOs. Some delegates supported exemption of AIA
through such agreements so long as the Protocol�s standards
would be maintained.
RISK ASSESSMENT (Article 12): Delegates consolidated text on the
aim, application, parameters and financial responsibility of
risk assessment (RA). Most delegates supported an annex to
detail parameters. Some delegations supported financing of
minimum RA by the exporter, while others deemed it the recipient
country�s responsibility. One delegation supported requiring
parties to determine RA procedure based on national legislation.
One delegation requested retaining the no article option until
the Protocol is finalized.
RISK MANAGEMENT (Article 13): Several delegations said risk
management is a domestic concern and preferred no article. Some
delegates stressed the article�s importance because risk
management measures vary by country. Others highlighted the need
for global and regional risk management.
MINIMUM NATIONAL STANDARDS (Article 14): Some delegations
opposed the article because of sovereignty issues. One
delegation supported fulfillment of the requirements of the
Protocol as a minimum.
DEFINITIONS AND ANNEXES: The Co-Chairs of CG-I presented
definitions and Annexes to SWG-II. Regarding the definition of
LMO, a number of delegates proposed deleting �deliberately�
prior to �modified.� One delegation recommended including the
phrase �traits novel to the species in a receiving country� in
defining the novelty element of LMOs. The Co-Chair noted that
this would make definition of an LMO contingent upon where it
was being sent. Regarding Annexes, the Co-Chair of CG-I noted
that the group had prepared minimum and maximum lists of
information required for an RA, but emphasized the need for
guidance from SWG-I regarding the status of Annex II, its
relationship to Annex I, and the level of detail desired.
CONTACT GROUP I
CG-I resumed discussion of a definition of LMO. The Co-Chair
noted that the current definition consists of two parts: the way
in which an LMO is produced, and novelty of the resulting
organism. Delegates first sought to clarify what constituted an
LMO �resulting from modern biotechnology.� Some delegates
proposed �modified by in vitro gene technologies,� while others
objected to use of the term �gene,� noting that other
technologies might also be used to produce LMOs. Regarding
novelty of the resulting organism, some delegates preferred a
reference to the presence of �foreign� genetic material in an
LMO, while others questioned whether this restricted the
definition�s scope. Delegates also differed on how to link two
key phrases regarding novelty -- �is unlikely to occur in
nature� and �confers one or more novel traits� -- since using
�and� or �or� between them would determine whether a narrower or
a broader category of organisms would be defined as LMOs.
SUB-WORKING GROUP II
SWG-II reviewed Articles 15-18, 20-24 and 26, using SWG-II
Conference Room Papers 1-8, and a Co-Chair�s aide memoire. Co-
Chair Herity invited Katharina Kummer, Co-Chair of CG-II, to
present the CG�s deliberations on legal definitions. CG-II
recommended not including definitions for non-Party, as the term
is obvious, and for non-discrimination, since it could be
detailed under Article 24. The group requested substantive
guidance on Article 25 (Illegal Traffic) prior to defining the
Delegates briefly reviewed text on UNINTENTIONAL TRANSBOUNDARY
MOVEMENT (Articles 15) and EMERGENCY MEASURES (Article 16). SWG-
II then considered text on HANDLING, TRANSPORT, PACKAGING AND
LABELLING (Article 17). One delegate requested that the subject
of this article be LMOs �and their derivatives.� One developing
country requested language addressing action required in the
event of an accident.
COMPETENT AUTHORITY/FOCAL POINT (Article 18): Two delegates
supported general provisions on responsibilities, stating that
such tasks should be detailed under national systems. One
developing country supported specific guidelines for those
without such systems. Two countries supported a single competent
authority. One delegate suggested language requiring those with
multiple authorities to detail their areas of coverage.
CONFIDENTIAL INFORMATION (Article 20): Some delegates questioned
whether the text adequately addressed, inter alia: how
confidential information would be treated under specific
situations, and what information should not be considered
confidential. One delegation suggested specifying an expiration
date for confidential treatment. Richard Owens, World
Intellectual Property Rights Organization, speaking at the
invitation of Co-Chair Ahuja, said that limits on
confidentiality might compromise protection afforded under
general principles of international intellectual property law.
CAPACITY BUILDING (Article 21): One country and a regional group
supported removing the article, noting existing coverage under
the CBD and other international processes. The regional group
reserved its right to make an additional statement later. All
other delegates taking the floor supported retaining the
article, although support for specific provisions varied widely.
One delegate suggested categories on: general commitments;
financial mechanisms; major elements of capacity building; and
developed country commitments. Several developing countries
stressed language on �new and additional financial resources.�
Two delegates requested reference to the GEF.
PUBLIC AWARENESS/PUBLIC PARTICIPATION (Article 22): Most
delegations supported the article�s inclusion, while there were
differences on content. Several developing countries favored
facilitation of public participation in risk assessment
decisions; promotion of national, subregional and regional
public awareness programs; and public involvement in approval
processes for LMO releases. Some delegates stressed the need for
cooperation with other Parties and IGOs.
NON-PARTIES (Article 23): Several delegates supported merging
the article�s Preamble into its text. One regional group
proposed consolidation into three options, including: (1)
removing the article; (2) provisions on no trade of LMOs with
non-Parties; trade equal with and non-favorable to non-Parties;
and trade conducted under a regulatory framework as stringent as
the Protocol�s; and (3) consideration of trade restrictions with
non-Parties after five years. Several countries noted the no
trade option could not be merged.
NON-DISCRIMINATION (Article 24): A number of delegates strongly
opposed inclusion of this article, citing, inter alia:
sufficiency of existing international agreements;
appropriateness of discrimination where a State concludes its
biodiversity may be imperiled; need to reach agreement on Non-
Parties (Article 23) before addressing this issue; and
impracticability of enforcement. Several delegations favored
moving reference to this issue to General Obligations (Article1
SOCIO-ECONOMIC CONSIDERATIONS (Article 26): Delegates used the
Co-Chair�s aide memoire as a basis for discussion. Several
developing countries stressed the importance of this provision
and requested language addressing, inter alia, research on
socio-economic considerations relating to the use, handling and
transfer of LMOs. One of the delegations opposed to the
provision stated that socio-economic concerns vary too widely
from State to State to make implementation practical. Several
others favored treatment of this issue in the Preamble.
CONTACT GROUP II
CG-II reviewed recommendations to COP-4 by BSWG. Delegates
discussed scheduling for the final BSWG meeting and agreed that
BSWG make no recommendations regarding an ordinary or
extraordinary COP session. CG-II proposed recommending a final
meeting in December 1998, with an alternative date in early
1999. Delegates also considered BSWG�s role in preparing for the
first meeting of the Parties. In an evening session, delegates
continued discussions on this item, and were expected to review
text on Monitoring and Compliance (Article 35) and legal
IN THE CORRIDORS
There was speculation as to the pace and urgency of negotiations
as options were actually increasing in several Articles. One
participant questioned whether refinement in the wording of
options actually reflected progress in negotiations or just
helped to further demarcate already known positions.
THINGS TO LOOK FOR TODAY
PLENARY: Plenary will meet at 3:00 pm in Assembly Hall 1 to
review institutional and procedural articles (32, 33, 37, 38,
39, 40, 42 and 43).
SUB-WORKING GROUP I: SWG-I will meet at 10:00 am to continue
work on Articles 4-6,12, and possibly Annex II. SWG-I will also
meet in the evening.
SUB-WORKING GROUP II: SWG-II will meet at 10:00 am to discuss
Articles 19, 25 and 27. SWG-II will meet again at 5:00 pm.
CONTACT GROUP I: CG-I will meet at 10:00 am to discuss
definitions of LMO.
CONTACT GROUP II: CG-II will meet at 1:30 pm to discuss articles
on COP, Subsidiary Bodies and the Secretariat.
BRIEFING WORKSHOP: UNEP/GEF Pilot Biosafety Enabling Activity
Project at 1:30 pm in Assembly Hall 2.
PRESENTATIONS: In Room 1.15
1:00 pm: Biotechnology and Export Commodity Crops from
Developing Countries: Case Study � Oil Palm.
2:00 pm: Biotechnology Solutions to Animal Health Problems in
Developing Countries: Rinderpest and Rabies Vaccines.