(Main Source : Earth Negotiations Bulletin)
The Convention on Biological Diversity (CBD) was negotiated under the auspices of the United Nations Environment Programme (UNEP). It was adopted in May 1992 and was opened for signature at the United Nations Conference on Environment and Development in Rio de Janeiro on June 5, 1992.
To date, 175 of the 183 countries in the United Nations system have ratified or otherwise acceded to the Convention. The United States did not sign the CBD yet due to concerns with its intellectual property rights, technology transfer, and finance provisions.Article 19.4 of the Convention provides for Parties to "consider the need for and modalities of a protocol, including advance informed agreement (AIA) in particular, to ensure the safe transfer, handling and use of living modified organisms derived from modern biotechnology that may have an adverse effect on biological diversity and its components".
The first Conference of the Parties to the CBD (COP-1), which reviews the implementation of the CBD, establishes an Open-ended Ad Hoc Group of Experts on Biosafety.
During this meeting, most delegations of the Open-ended Ad Hoc Group of Experts on Biosafety favor the development of an international framework on biosafety under the CBD, including all activities related to LMOs that may have adverse effects on biodiversity, transboundary movement of LMOs, release of LMOs in centers of origin/genetic diversity, mechanisms for risk assessment and management, procedures for advance informed agreement (AIA), information exchange, capacity-building and implementation.
At COP-2, delegates meet to consider the need for and modalities of a protocol on biosafety. While developed country delegations want to focus on "transboundary transfer of any LMO", developing countries prefer a "protocol on biosafety in the field of the safe transfer, handling and use of LMOs." The compromise language that is adopted by the COP 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 appropriate procedures for advance informed agreement."
The decision also establishes an Open-ended Ad Hoc Working Group on Biosafety (BSWG) to "elaborate, as a priority, the modalities and elements of a protocol based on appropriate elements from paragraph 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 the Working Group 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 Working Group 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 information.
In another meeting relevant to the biosafety process, the UNEP Panel of Experts on International Technical Guidelines for Biosafety adopts a set of international technical guidelines for biosafety (UNEP Guidelines). 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 COP of the CBD.
BSWG-1 begins the elaboration of a global protocol on safety in biotechnology. Although the meeting produces little in the way of written results, it represents a forum for defining issues and articulating positions characteristic of the pre-negotiation process. The meeting reveals 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 list elements for a future protocol, agree to hold two meetings in 1997 and outline the information required to guide their future work.
By adopting decisions III/5 (additional guidelines to financial mechanisms) and III/20 (biosafety issues), COP-3 affirmes 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 implementation of a protocol on biosafety, without prejudicing the development and conclusion of such a protocol, and endorses recommendation II/5 of SBSTTA-2 (the Subsidiary Body on Scientific, Technical, and Technological Advice) with regard to capacity-building in biosafety.
An International Workshop is held to follow-up on the UNEP International Technical Guidelines for Safety in Biotechnology
The nineteenth meeting of the UNEP Governing Council adopts decision 19/16 on biosafety. The decision urges governments and subregional and regional organizations to promote the implementation of the UNEP Guidelines by designating focal points in countries to apply the Guidelines, and urges governments to promote safety in biotechnology by contributing relevant information to UNEP's International Register on Biosafety.
The Governing Council also requests 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.
After a first meeting characterized by some as "talk shops", BSWG-2 begins to move from generalities to specifics and takes substantial steps toward a protocol. Despite this progress, some fundamental disparities of opinion, particularly regarding the scope of the protocol, remain, which threaten to derail the process when negotiations get underway. However, some delegations that previously appeared adamantly opposed to the development of a protocol provides cautiously constructive interventions. While it is far too early to assume an emerging consensus on a protocol or a successful outcome, the behavior of some delegations exhibites an acknowledgement of the importance of being "at the table" as the negotiations unfold and consensus on its necessity emerges.
BSWG-3 results in the production of a consolidated draft text as a basis for negotiations for a biosafety protocol at the next session. The meeting establishes two Sub-Working Groups to address the core articles of the protocol, as well as a contact group on institutional matters and final clauses, and extends the mandate of the existing contact group on definitions established at BSWG-2 to address annexes.
In the course of consolidating the draft text, areas of divergence and convergence among country positions are further distilled, thereby accentuating some of the major obstacles to negotiating an effective protocol.
One of the obstacles relates to group dynamics and especially the fact that opinions on biosafety do not necessarily vary along North-South lines but reflect substantive and substantial differences within regional groups, particularly G-77/China, the Latin American and Caribbean Group (GRULAC), and JUSCANZ (Japan, US, Switzerland, Canada, Australia, Norway and New Zealand).
A second obstacle that emerges at this session is the transition from consolidation to negotiation, the line between the two remaining unclear, 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.
During BSWG-4, delegates builds upon the work of BSWG-3 by further consolidating options contained in the draft text, while beginning the process of negotiation to clearly define divergent positions and to identify common ground for moving forward. The meeting continues to follow the structure from BSWG-3, using two Sub-Working Groups to address the core articles of the protocol and two Contact Groups on definitions and annexes and on institutional matters and final clauses. By the end of eight working days, even if major differences remain on key provisions of the protocol, delegates have consolidated text on most of the articles for a Protocol on Biosafety, including provisions on highly contentious issues, such as scope, advance informed agreement, risk assessment, and consideration of liability and socio-economic impacts.
One interesting characteristic of the meeting is the increasing number of informal inter-regional meetings, helping delegates assess potential areas of compromise on issues that seemed unbridgeable in formal negotiating sessions.
Delegates also adopt recommendations to COP-4 regarding the dates of the next two meetings of the BSWG and a meeting of the COP to adopt the Protocol.
In Decision IV/3, "Issues related to biosafety", COP-4 extends the deadline for the negotiation of a Protocol from the end of 1998 to early 1999 and establishes an extra meeting to be followed by an Extraordinary Conference of the Parties to the CBD to adopt the Protocol in 1999. In Decision IV/15, the COP also stresses the need to ensure consistency in implementing the CBD and other international agreements, like the WTO agreements.
The main result of BSWG-5 is the development of a revised consolidated draft of 40 articles. Looking at the final draft, one could say this meeting achieved the objective BSWG Chair Veit Koester (Denmark) set out at its beginning: consolidation of the text into a single option for each article. But closer evaluation reveals that the options still remain, in the form of brackets. Moreover, thirteen articles remain entirely bracketed, indicating that delegates still have not agreed on the elements of the protocol, let alone what the articles' contents shall be.
Polarized positions continues to emerge during discussions over several contentious issues: potential inclusion in the protocol's scope of "products thereof"; distribution of burdens and responsibilities between importers and exporters; questions of liability and redress; interlinkage between trade (WTO agreements) and environment within the protocol; whether and how to address a range of social and economic concerns.
Negotiations reveals a panoply of interests and demands, reflecting a range of regional and interest groups (Miami Plus, Valdivia, Cairns, G-77/China, GRULAC, WEOG, the African Group, Asian Group, Central and Eastern European countries, JUSCANZ, and industry) and negotiating tactics.
Over 600 participants representing 138 governments, business and environmental NGOs and the scientific community, attempt to finalize a protocol on biosafety during BSWG-6 for adoption by the extraordinary COP (ExCOP). Despites ten days of non-stop debates, delegates can't reach consensus and the Chair's text finally adopted to be forwarded to the ExCOP still contains contentious issues mainly relating to trade aspect like treatment of commodities and relationship with the WTO agreements. Chair Veit Koester appeals to delegates to continue seeking agreement during the ExCOP, stating that even a basic Protocol will be better than none.
At the opening of the ExCOP-1, newly elected ExCOP President Juan Mayr (the Colombian Environment Minister) takes the initiative of establishing an informal working group, the "Group of 10", including representatives of common interest groups (the EU, the "Miami" Group consisting of Argentina, Australia, Canada, the US and Uruguay, and the "Like-minded Group" consisting of the G-77/China less the developing countries members of the Miami Group). During two days, the group debates the Chair's text adopted at BSWG-6. A "package" proposal on the outstanding issues is presented by the EU and, after discussion, supported by all other Parties but the Miami Group. As no consensus is reached, ExCOP finally decides to suspend its first meeting, to prolonge the process and to resume no later than the fifth meeting of the COP (May-June 2000). The ExCOP also decides to name the future Protocol the "Cartagena Protocol on Biosafety to the Convention on Biological Diversity".
On 1st July 1999, H.E. Mr. Juan Mayr, Minister of Environment of Colombia and President of the first ExCOP chairs an informal consultation in Montreal between representatives of the negotiating groups aimed at planning for the resumed session of the ExCOP to adopt the Biosafety Protocol. At this meeting, all representatives express their commitment to the conclusion of a Biosafety Protocol and confirme that there exists the political will to have the Protocol. To this end, it is agreed to held in September 1999 an open-ended informal consultation involving all Parties and Governments which have participated in the negotiations on a Biosafety Protocol.
These consultations aimed at preparing the resumed session of the ExCOP for the adoption of the Protocol on Biosafety, involve all Parties and Governments which have participated in the negotiations. The first two days are devoted to consultations within the negotiating groups and the third day to informal exchanges between the groups. The last two days are conducted under the chairmanship of H.E. Mr. Juan Mayr, Minister of Environment of Colombia and President of the first ExCOP, along the format of the meeting used in Cartagena. All negotiating Groups reconfirme their political will to conclude the Protocol. Although a number of important outstanding issues remain, the groups succeed in making some progress on a conceptual basis on two very critical issues: the treatment of genetically modified agricultural commodities and the relationship between the Protocol and other international agreement.
Based on the results of the informal consultations, the resumed session of the ExCOP take place in Montreal along the following broad outline: two days of informal consultations within Groups, one day of informal consultations between Groups, one day break to allow delegations to communicate with their capitals, and five days of formal negotiations within the ExCOP including two days of high-level ministerial segment. During these days, including late evening and early morning sessions, delegates debate the remaining core issues (scope, procedure relating to commodities, and relationship with other international agreements), as well as some other outstanding points. Finally, after a last minute compromise on the provision regarding documentation, delegates adopt the Cartagena Protocol on Biosafety in the early morning hours of 29 January 2000.