Institute for Sustainable Development (IISD)
HIGHLIGHTS FROM THE FOURTH SESSION OF THE AD HOC WORKING GROUP ON BIOSAFETY WEDNESDAY, 11 FEBRUARY 1998
On the sixth day of BSWG-4, Plenary met in a brief afternoon
session. Delegates met in two Sub-Working Groups (SWGs) in
morning and afternoon sessions and SWG-I met for an additional
evening session. SWG-I discussed Articles 3-14. SWG-II discussed
Articles 15/16, 21, 25 and 27. Contact Groups met throughout the
In an afternoon Plenary, delegates reviewed and adopted
recommendations to COP-4 (UNEP/CBD/BSWG/4/L.3). Delegates
recommended two options for the dates of a final BSWG meeting
followed by a COP meeting: December 1998, or no later than
February 1999. Delegates also recommended, inter alia, that:
BSWG should handle preparations for the first meeting of the
Parties; COP should establish a deadline of 1 June 1998 for
receipt of government proposals regarding the Protocol; and COP
should ensure availability of funds for future BSWG meetings.
Delegates reviewed and adopted the Draft Report of BSWG-4
Chair Koester then invited the “two sides of the NGO community”
to make brief statements directed to Governments. THIRD WORLD
NETWORK, speaking on behalf of 18 organizations, highlighted the
importance of a provision on liability; suggested creation of a
multilateral compensation fund; and expressed hope that the
Protocol would not confer rights on non-Parties without
attendant responsibilities. EUROPABIO, speaking on behalf of
industry groups, stated that: biotechnology enhances
biodiversity and increases the standard of living; industry
supports the principles of information sharing, cooperative
engagement and capacity building; and provisions on liability
and socio-economic considerations belong in other fora.
SUB-WORKING GROUP I
SWG-I continued preparation of consolidated text for Articles 3-
14, using aide memoires, room documents, and Conference Room
Papers, and finalized most of them for presentation to the
Plenary on Friday. Delegates also considered Annexes I and II on
Advanced Informed Agreement (AIA) and Risk Assessment (RA), and
definitions provided by CG-I.
APPLICATION OF THE AIA (Article 3): Delegates agreed to create a
new article on the scope of the Protocol. Several delegations
supported deleting a paragraph on exemption from AIA, noting
that it is addressed in Articles 9 (Simplified Procedure) and 11
(Bilateral and Regional Agreements).
NOTIFICATION PROCEDURE FOR AIA (Article 4): Minor amendments
RESPONSE TO AIA NOTIFICATION (Article 5): One delegation
suggested deleting language on the need for additional
information and implicit/explicit agreement, stating that
Article 6 adequately addressed these issues. Other delegates
opposed the deletion, preferring to ensure coverage of
importers’ concerns surrounding implicit agreement.
DECISION PROCEDURE FOR AIA (Article 6): Delegates noted
repetitive text in some places and proposed further
consolidation on: importing party conditions; description of
legislative/administrative basis of decision; and
REVIEW OF DECISIONS UNDER AIA (Article 7): Delegates pointed out
that this article covered two main issues: the conditions under
which the Party of Import could review its decision; and the
conditions under which a Party of Export could request review of
a decision. A small group produced consolidated text to reflect
this more concisely.
NOTIFICATION OF TRANSIT (Article 8) and SUBSEQUENT IMPORTS
(Article 10): Delegates proposed some minor text changes and
proposals for consolidation, but noted that the bracketed
options in these draft documents reflected all positions.
SIMPLIFIED PROCEDURE (Article 9): In reviewing revised text, one
regional group questioned the role of the Secretariat in
receiving and disseminating information and requested a
reference to the biosafety database, which could be placed under
Article 19 (Information Sharing/Biosafety Clearing-House).
BILATERAL AND REGIONAL AGREEMENTS
(Article 11): Regarding the title, some delegates preferred
addition of “multilateral” and others preferred “international
cooperation and agreements.” One delegate identified three
objectives of bilateral and regional agreements: to cooperate in
implementing the Protocol; to identify LMOs that may be exempt
from AIA; and to integrate non-Parties into the application of
the Protocol’s AIA procedure. Some delegates supported placing
this article under Article 1 bis (General Obligations) while
others emphasized the need for a separate article.
RISK ASSESSMENT (Article 12): One regional group added text
requiring that RAs be based on the precautionary principle and
socio-economic grounds. Several delegations requested moving to
Article 13 (Risk Management) text that would allow States to
refuse activity with possibly risky LMOs. Delegations replaced
text on RA procedure with a referral to Annex II. One delegation
recalled the individual basis approach upon which the Protocol
was initially based, and requested text stating that RA be
undertaken on a case-by-case basis.
RISK MANAGEMENT (Article 13): One delegate, supported by others,
reiterated an earlier call for inclusion of a provision on
“global risk management.” Delegates modified various clauses in
MINIMUM NATIONAL STANDARDS (Article 14): One delegate noted that
this could be dealt with under Article 1 bis (General
Obligations), while others preferred a separate article. One
delegate reiterated support for a bracketed option calling for
an Annex on measures necessary for contained use of LMOs.
ANNEXES: The Co-Chair of CG-I presented Annex I (AIA) and
“minimum and maximum” options for Annex II. He noted the
divergent content of the Annexes, especially relating to socio-
economic factors, human health and contained uses. The Co-Chair
then requested guidance from SWG-I on: linkages between Annexes
I and II; if RA would be required for AIA in all situations; and
the acceptable degree of duplication between Annex I and II.
Regarding Annex I, delegates noted that information on intended
use and date of export/import would be difficult to provide; and
asked for clarification regarding who would declare information
in the AIA as factually correct. On Annex II, some delegates
requested that even the “minimum” guidelines be shorter and more
general, while others preferred to retain the “maximum” option.
DEFINITIONS: The Co-Chair of CG-I presented draft definitions of
organism and LMO to SWG-I. Some delegates requested that the two
definitions be merged. It was decided to retain a separate
definition of organism, as well as add it to LMO. Regarding
“organism,” the Co-Chair clarified that an entity “able to
replicate” would include sterile organisms. Some delegations
proposed alternative language, including “capable of metabolic
activity.” Regarding LMOs, delegates debated a reference to
“deliberately modified” genetic material, noting that
modification could be unintentional. The Co-Chair clarified that
while modification is deliberate, the result may be
unpredictable, and pointed to the reference to an “expected or
unexpected” outcome to cover this contingency. One delegate
called for novelty of LMOs to mean “traits novel to the species
in the receiving environment.” The Co-Chair informed SWG-I that
legal definitions, including transboundary movement, export and
import, were being transferred to CG-II.
CONTACT GROUP I
CG-I continued discussing definitions of organism, LMO and other
legal terms for presentation to SWG-I at the end of the day (see
SUB-WORKING GROUP II
SWG-II discussed Articles 15/16 (Merged), 21, 25 and 27, using
Conference Room Papers 1.Rev.1, 2.Rev.1, 9 and 10, respectively.
UNINTENTIONAL TRANSBOUNDARY MOVEMENTS AND EMERGENCY MEASURES
(Merged Articles 15 and 16) and HANDLING, TRANSPORT, PACKAGING
AND LABELLING (Article 17): At the urging of Co-Chair Herity,
delegates generally limited comments to whether the revised text
on these articles reflected previously stated positions.
CAPACITY BUILDING (Article 21): One country and a regional
group, previously supporting the article’s removal, indicated
their willingness to retain it.
ILLEGAL TRAFFIC (Article 25): Several countries stated that
consideration of this article was premature as it depends on
decisions with regard to procedures for AIA. A few countries
preferred deletion of the article, while indicating flexibility
on a provision for domestic legislation. Regarding information
dissemination, some delegates questioned the reference to the
biosafety clearing-house, still under discussion in Article 19,
as well as the involvement of the Secretariat.
LIABILITY AND COMPENSATION (Article 27): Noting that
UNEP/CBD/BSWG/4/SWG-II/CRP.10 did not reflect all submissions,
three delegations requested inclusion of their options from
UNEP/CBD/BSWG/4/Inf.2. A few developed countries and one
regional group supported deleting the article, citing, inter
alia, coverage under CBD Article 14(2), and/or domestic
legislation. Many developing countries supported keeping the
article, although in different forms. One delegate suggested a
framework with components on: general principles for liability;
civil liability; compensation; measures of reinstatement;
duration of liability; emergency fund; and exceptions. Noting
little time for proper consideration, a few countries supported
revisiting the issue at the first meeting of the Parties (MOP)
to the Protocol. Some countries questioned how the article would
apply to non-Parties. Delegates also noted differences between
liability of the Party and the exporter. One developing country
stated that profiting from biotechnology while shifting
responsibility for harm to others was unjust.
At the close of the afternoon session, the Co-Chair requested
delegates to consider whether SWG-II should begin work on
Articles 1 (Principles/Objectives) and 1 bis (General
Obligations) or refer text, as is, to BSWG-5.
CONTACT GROUP II
CG-II met to discuss Articles 29 (Secretariat), 30 (Subsidiary
Bodies and Mechanisms) and 31 (Conference of the Parties).
Delegates also began discussing two options for the Preamble,
but disagreed on the level of detail and content to be included.
BRIEFING WORKSHOP ON THE UNEP/GEF PILOT BIOSAFETY ENABLING
Hamdallah Zedan and Paul Chabeda of UNEP (United Nations
Environment Programme) presented a workshop on the UNEP/GEF
(Global Environment Facility) Pilot Project, designed, in part,
to determine what assistance developing countries and countries
in transition will need to implement the Protocol. The project
has two components: assistance with creation of national
biosafety frameworks; and support for regional workshops on
biosafety, specifically on RA, RM and transboundary transfer of
LMOs with novel traits (ONTs). Eighteen countries are
participating in the framework component. Regional workshops
will be held in Africa, Asia/Pacific, Central/Eastern Europe,
and Latin America and the Caribbean.
IN THE CORRIDORS
Given polarization of positions on liability and compensation,
some wondered whether the issue would be left to the final BSWG
meeting in a game of political brinkmanship, or if delegates
would opt out by deferring detailed discussions until the first
MOP to the Protocol.
THINGS TO LOOK FOR TODAY
SUB-WORKING GROUP I: SWG-I will meet at 10:00 am to continue
work on Article 12 and Annexes.
SUB-WORKING GROUP II: SWG-II will meet at 10:00 am to review
revised text on Articles 18, 20, 21 and 24, and possibly, text
on Articles 19 and 26.
CONTACT GROUP I: CG-I will meet at 10:00 am to discuss
definitions and Annexes.
CONTACT GROUP II: CG-II will meet at 1:30 pm to continue work on
PRESENTATIONS: In Room 1.15
1:00 pm: Biotechnology Solutions to Animal Health Problems in
Developing Countries: Rinderpest and Rabies Vaccines.
2:00 pm: Biotechnology: Experiences from the Czech Republic.