Pre-Emptive Strike by Exporting Countries

Pre-emptive strike by exporting countries

(Third World Resurgence No. 163-164 Mar/Apr 2004)

Moves by some countries that export genetically engineered commodities to agree on a common approach for bilateral arrangements with importer countries, can be seen as undermining the Biosafety Protocol. These moves, including a trilateral agreement signed between two non-Parties and a Party to the Protocol, were made before the Parties met for the first time and set standards, including on issues not yet discussed by the Parties.

By Lim Li Lin

AT the initiative of the US, Canada and Argentina, two meetings of exporting countries were held in March and June 2003 to seek agreement on documentation requirements for LMO-FFPs (living modified organisms for food, feed or processing). This 'Article 18 (2)(a)' issue (on handling, transport, packaging and identification of GM commodities) has been one of the most difficult issues in the Biosafety Protocol negotiations.

The work of these two meetings concerned specific elements for a common approach on bilateral arrangements with importing countries, assigning responsibility for provision of documentation accompanying a shipment, resolution of issues and adventitious (accidental) presence.

The outputs from the meetings are a proposed framework and model arrangement for bilateral agreements between exporter and importer countries. The stated intention is for these exporting countries to make similar deals with importing countries in order to facilitate GMO trade now that the Protocol is in force, and to influence decisions at the MOPs.

The Protocol recognises that major exporters such as the US are unlikely to ratify the agreement. It does allow bilateral and regional agreements with non-Parties which have to be consistent with the objectives of the Protocol, do not result in a lower level of protection, and have to be deposited with the Biosafety Clearing House.

New Zealand, Brazil, Chile, Australia and Uruguay are also a part of this initiative. Canada has also approached 'priority' importing countries to agree to bilateral arrangements with it. Japan, China, South Korea, Mexico and Egypt have been approached.

Mexico has already signed a trilateral agreement with the US and Canada.

The agreement reached between these exporting countries on the 'Proposed Framework for Bilateral Arrangements' and the 'Model Bilateral Arrangements to Implement Article 18.2(a) of the Cartagena Protocol on Biosafety' basically envisages that documentation for LMO-FFPs ('may contain' LMOs) is only triggered in transboundary movements of LMO-FFPs which are authorised in or sold from a country of export, except where an exporter or importer may have contractually defined, in accordance with the regulatory requirements of the importing country, that a shipment of 95% non-GMO content is a 'non-LMO shipment', and for shipments which the exporting country does not have in commerce any LMO of that species.

These exporter countries had difficulty in agreeing on whether adventitious presence, for example, an unintended presence of a GMO that has not been approved for commodity shipments, may trigger the same documentation requirements. It was decided at these meetings that this has to be dealt with in the specifics of any bilateral arrangement.

Moves to undermine the Protocol

These can clearly be seen as moves to undermine the Protocol, pre-empt the negotiations at the MOPs and other meetings on this issue, and to dictate national law. It shifts the burden of monitoring, identification and testing to the importing countries.

Setting a threshold level of 5% for triggering identification, when none has been discussed in the meetings of the Protocol, and interpreting the 'may contain' requirement in this manner, is nothing short of an attempt to globalise these rules, before the Parties to the Protocol can decide themselves. Already, a meeting was held for Latin American countries, with the participation of the US and Canada, in early February (just before MOP 1) in Argentina to discuss the framework and model arrangements and the trilateral agreement between the US, Canada and Mexico, among other issues.

It is also very dangerous, as the US has stated that it is open to the possibility that agreement may be reached with an importing country that would not require such formal documentation. This may mean that such arrangements and agreements may not be subject to the Protocol requirement that they do not result in a lower level of protection than that provided for by the Protocol. It may also mean that such agreements and arrangements between the US and a Party may not be notified to the Biosafety Clearing House.

Trilateral agreement - win, win, and a loss for Mexico

In October 2003, Mexico signed a trilateral agreement with the US and Canada on documentation requirements for LMO-FFPs.Mexico is a Party to the Protocol, while the other two countries are not.

Incidentally, the Coordinator of International Affairs of the Secretary of Agriculture, Livestock, Rural Development, Fisheries and Food of Mexico who signed the agreement, and who has been called up to explain this issue by the Mexican Congress, has also deftly out-manoeuvred other Latin American and Caribbean countries, to become a member of the Compliance Committee.

The trilateral agreement is basically the framework model arrangement plus the agreement that adventitious presence of LMOs in a non-LMO shipment should not be a trigger for the 'may contain' documentation.

During the MOP, the US and Canada publicly announced this trilateral agreement in side-events. According to the US official, the definition of adventitious is that the contamination is accidental or inadvertent, that it is low-level contamination, and that the contamination could not have been avoided. However this is still being discussed, and as yet, there is no definition nor guideline for what this means. In effect this could mean that 100% contamination by another GMO would still not trigger identification requirements, as long as it is classified as 'adventitious'.

A threshold for contamination has also been set at 5%. As long as the shipment is 95% GMO-free, and has been contractually defined as a non-GMO shipment and does not conflict with the regulations of the importing country, identification requirements are not triggered. In other words, up to 5% contamination is accepted as no contamination, and if the contamination is adventitious, the identification requirements are also not triggered.

According to the Canadian official, all exports from the US of soya and corn, of which a large percentage is genetically engineered in the US, will be labelled as 'may contain' LMOs. For Canada, all exports of corn, soya and canola will be labelled as 'may contain' LMOs, as genetically engineered varieties of these crops are grown in Canada. Only a small percentage (e.g. 2% of soya in Canada) will not be labelled as 'may contain' LMOs, as these are identity-preserved organic crops.

Already, conventional varieties of canola are known to have been widely contaminated in Canada, as oilseed rape (canola) is an open-pollinated crop.

The declaration 'may contain' will simply be placed on all shipments of these seeds, as part of the commercial invoice. Already, MOP 1 has gone further in its clarification of these issues, by acknowledging that national laws may require more detailed 'stand alone' documents, by urging countries to require that the documentation includes the common, scientific and commercial names, the transformation event code or its unique identifier code, and by encouraging all countries to require their exporters of LMO-FFPs to declare unambiguously that their intentional shipments contain LMOs, their identity and any unique identification.

Will this now be an issue for the Compliance Committee?

There will be no monitoring or enforcement of the trilateral agreement by the authorities; instead everything will be left to the commercial buyers and sellers to implement.

The announcement of the side-event indicated that it was organised jointly by the US, Canada and Mexico. However, Mexico distanced itself from the side-event, and later organised its own side-event. All this has also reflected the internal dilemmas and lack of consensus within the Mexican government itself on this issue.

Mexico has the most to lose from this agreement. Already, in a country which is the centre of origin and diversity for maize, local varieties of maize have been contaminated by transgenes. This happened most likely because of the planting of GM maize that was imported for food, feed and processing. Mexico had a ban on the import of GM maize for planting, but as experience has shown, this is an artificial and unworkable distinction for biosafety.

Now, with this trilateral agreement, Mexico has further increased her burden of monitoring and testing, and will be faced with the impossible task of biosafety regulation, as the authorities will not be able to do proper biosafety assessments on all GMOs approved or otherwise in Mexico, Canada or the US that will be slipping through her borders. There are no permissible thresholds for biosafety.

How will Mexico comply with the biosafety laws of other countries that she exports to?

Mexico has exposed herself to further contamination even from unapproved, experimental and illegal GMOs from Canada and the US, and this may well be seen as an attempt to legitimise the maize contamination in Mexico, as well as further contamination events that are likely to occur.

Who will be liable for this? Will there and can there be redress?

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BOX 1

US-Mexico-Canada trilateral agreement: A 'model' for evading the Biosafety Protocol

The following is the text of a joint NGO statement distributed at MOP 1 on 26 February.

THE first meeting of the Parties to the Cartagena Protocol on Biosafety has the purpose of discussing issues that upon signing of the Protocol remained open or undefined and that affect the effective implementation of its provisions.

In this first meeting, crucial issues are being defined, such as identification of LMOs in shipments, liability and compensation in cases of damage and measures for ensuring compliance with the Protocol.

Confronted by the coming into force of the Protocol, GMO-exporting countries that are members of the Miami Group, led by the United States and following the proposals of the International Grain Trade Coalition, met to define a strategy for continuing trade in transgenics without restrictions. They have organised meetings with representatives of various Latin American countries; and in the first week of February 2004, with the assistance of the Interamerican Institute for Cooperation in Agriculture (IICA), they organised a meeting in Buenos Aires, with the goals of:

1) encouraging Latin American countries to adopt a bilateral or regional agreement, based on a draft template written by the USA, that interprets the obligations on identification that will be discussed in Kuala Lumpur, in order to prevent the effective implementation of the Protocol, and

2) proposing this agreement as a model for the rest of the countries of the world, undermining the central provisions of the Protocol.

The agreement already signed between the United States, Canada and Mexico states that a shipment is not considered transgenic if it contains up to 5% GMOs and therefore it is not necessary to identify it as such. In the case of 'adventitious' presence of transgenics, a shipment destined for export is not required to be identified with a label stating it 'may contain' transgenic organisms. The agreement also establishes that the 'may contain' language should be included in the commercial invoice and not in a separate document with more detailed information.

These parameters are arbitrary and attempt to set unacceptable precedents for future discussions on identification and labelling, undermining in practice the right of Parties to establish adequate norms for the control of transboundary movements.

The model agreement designed by the United States and its allies gives cause for great concern because it leaves countries without the protection for biodiversity or health that they would as signatories to the Cartagena Protocol. To accept a level of contamination up to 5% is in practice to accept the entrance of transgenics with no evaluation of the risks. It seriously jeopardises the subsequent export possibilities of Latin American countries.

This type of agreement only serves to facilitate and increase the uncontrolled exports from producer countries and imports of transgenics into our countries, and serves to accelerate the genetic contamination of our region that is rich in biodiversity and a centre of origin of many crops.

Particularly worrying is that with this 'uncontrolled' percentage in the shipments, there could be unapproved varieties. There could be varieties unapproved for human consumption in the United States, such as StarLink, or crops engineered for non-consumptive uses (drugs or industrial chemicals). Beyond this, exporters are essentially free from assuming liability and eventual compensation for damages, as the weak contamination standards of the trilateral agreement would allow the exporter to simply declare that it did not know about the presence of transgenics.

Without labelling of shipments it is also impossible to obtain information about their origin and handling, such as data on responsible contact persons, which means there is no ability to establish traceability systems.

In the case of Mexico, the decision to participate in this accord was only discussed in very restricted circles and behind the backs of civil society, peasants and the legislature. For this reason, the Mexican Congress decided 18 February to call Dr Victor Villalobos (signer of the trilateral accord) and the Secretary of Agriculture of Mexico, to appear before the Houses to give explanations on this topic. In addition, they called upon the President of the Republic to comply completely with the Cartagena Protocol.

It is particularly serious that Mexico, being a centre of origin of maize, one of the principal food crops for the world, and where there is already evidence of contamination of traditional varieties of maize with transgenics, instead of applying the principle of precaution and promoting a strict regime for liability and compensation for damages, is renouncing with this accord the protection of its biodiversity, agriculture, and human and animal health and has ignored the demands of campesinos, indigenous peoples and civil society to shine light on and stop the contamination.

Being a Party, Mexico has particular obligations to other Parties that it is undermining; while discussions on Article 18 have not yet concluded, they should not be signing any agreement outside the ambit of the Protocol. Also, this creates an unacceptable precedent for future compliance with the Protocol.

Finally, this type of agreement will undoubtedly have a 'domino effect' on all the provisions of the Protocol. It threatens the mechanisms being developed to guarantee protection of biodiversity and human health as well as a future liability and redress regime.

We call upon the countries of Latin America and the Caribbean to reject this type of agreement and guarantee complete compliance with the objectives of the Protocol. We call on all countries to reject this 'model of implementation and compliance' that evades the Protocol and only favours the commercial interests of countries that have not ratified the Protocol.

Signatories:

Amigos de la Tierra de AmericaLatina y el Caribe

Bloque Centroamericano de Resistencia a Transgenicos

Centro Humboldt, Nicaragua

COECOCEIBA, Costa Rica

Econexus, UK

Edmonds Institute, USA

ETC Group

Friends of the Earth lnternational

Fundacion Sociedades Sustentables, Chile

Gene Campaign, India

GeneEthics Network, Australia

Greenpeace

Grupo de Reflexion Rural, Argentina

Institute for Agriculture and Trade Policy, USA

Institute for Science in Society, ISIS, UK

Jaran, Center for Law and Policy Initiatives, Thailand

Red por una America Latina Libre de Transgenicos

REDES AT, Uruguay

SEARICE, Philippines

SOS Selangor, Malaysia

SEEDS, UK

Third World Network

Washington Biotech Council, USA

49th Parallel Biotech Consortium, USA

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