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6-Genetech §§: BIOSAFETY - Analysis of Institute for Agriculture and Trade Policy



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TITLE:  Biotechnology and biosaftey: Batle royal of the 21st
        century
SOURCE: Institute for Agriculture and Trade Policy, USA
        by Kristin Dawkins, kdawkins@iatp.org
DATE:   January 2000

----------------- archive: http://www.gene.ch/ ------------------


Biotechnology and biosaftey: Batle royal of the 21st century

U.S. Secretary of Agriculture Dan Glickman, back in 1997, called
disputes over biotechnology and the patenting of life "the Battle
Royale of 21st century agriculture." In Seattle during the
closing month of the 20th century, the United States and its
cohort of fellow exporters of genetically modified organisms
(GMOs) fired their first shots in this battle and found that they
fizzled. Not only did the World Trade Organization fail to launch
a new round of trade talks, but proposals that the WTO even
consider biotechnology issues never got out of brackets. (In
international negotiations, any proposals still in brackets have
not been agreed.) This could give a boost to efforts to negotiate
a legally-binding Biosafety Protocol under the United Nations
based Convention on Biological Diversity.

The U.S. leads the world in producing GMOs and is desperate to
protect its dominant position in the world grain market.
Consumers in Europe, Japan and elsewhere object to GMOs in the
food supply. Environmentalists fear the spread of genetically
altered DNA throughout ecosystems could trigger potentially
catastrophic problems. The market's reaction to these consumer
and environmental concerns is causing many farmers in the U.S. to
reconsider their plans to sow GMO seed next year, to the dismay
of the agri-chemical-pharmaceutical industry that supplies them.
In fact, the American Corn Growers Association is predicting a
20-25% reduction in the acreage planted in genetically-engineered
crops this spring while agribusiness analyst Dan Basse of
Chicago's AgResource Co. anticipates a drop in GMO-soybean
plantings by more than half.

In Seattle, the U.S. had joined Canada and Japan in proposing a
WTO "Working Party on Biotechnology" whose mandate was unclear.
The U.S. wanted it "to examine approval processes" for GMOs -
taking dead-on aim at the European Union's array of national and
regional restrictions on the import, planting and consumption of
genetically engineered seeds and foods. Japan's proposal was to
have a WTO Working Party look at the benefits of GMOs as well as
health and environmental concerns, whether the WTO's existing
agreements apply to GMOs, and how the WTO might appropriately
deal with other international fora where GMOs are discussed (such
as the Biosafety Protocol negotiations). Canada's proposal was
for the WTO to assess the adequacy of existing rules and the
capacity of WTO members to implement them. In response to these
proposals, a large number of developing countries had objected to
any WTO working party on biotechnology whatsoever. And indeed,
the developing countries never gave in: the final version of the
draft Ministerial Declaration to surface prior to the sudden
announcement on December 3rd that the talks were suspended
contained what was essentially the Canadian proposal for a
Working Party on Biotechnology - but it was still in brackets.

The Europeans' role in negotiating the biotech issue in Seattle
generated a storm of protest with implications for the future of
European Union politics. On December 1st, it was learned that the
lead negotiator for the EU, Commissioner Pascal Lamy, had voiced
EU support for a Working Party without checking with the Heads of
Delegations of the member states. Within hours, five Ministers of
the Environment from EU members - Denmark, the United Kingdom,
Belgium, France and Italy - issued a press advisory objecting to
Lamy's position. Later that night, fifteen Ministers of Trade
objected. Indeed, the EU's position until then had been that
biotechnology should be dealt with by the United Nations through
the Biosafety Protocol, not by the WTO. For Europeans, this issue
has special significance given their ban on imports of beef laced
with growth hormones has been attacked by the U.S. as a "barrier
to trade" that is not "scientifically justifiable." The WTO
dispute panel and appellate body agreed with the U.S. and, in the
run-up to Seattle, EU attempts to include "the precautionary
principle" as a justifiable consideration in WTO policies were
rebuffed. In the Biosafety Protocol talks, the EU has considered
the precautionary principle a non-negotiable clause in the draft
text.

Despite the environmental and trade ministers objections, Lamy
defended his support for the WTO Working Party on Biotechnology.
In a briefing with non-governmental organizations on December
2nd, he said, "My job as a negotiator is how to get the maximum
... I have to spend money to get money. I don't find it a problem
if I can get what I need ... At the end of the day, the Council
[of Ministers] will make their decision." For the WTO, the issue
is moot, for the time being, as officials struggle to define the
legal status of the Seattle negotiations overall, but in Brussels
there is surely a fierce debate raging over the democratic rights
and responsibilities of the European Commission - and
particularly, how it clears its mandate with member states in
future negotiations.

Meanwhile, there is a strong consensus that the failure to launch
a new round of WTO trade talks is due to a deficit of democracy
in WTO procedures. Those most frustrated by the Seattle debacle,
probably U.S. Trade Representative Charlene Barshefsky who
chaired this Third Ministerial Meeting and WTO Director-General
Michael Moore, have been severely criticized for their handling
of the meeting. Most analysts point the finger at their use of
the infamous "Green Room" technique, by which the Director
General invites selected governments into a closed-door session
designed to brow-beat them into a series of trade-offs to get
results on the most contentious issues. While a tried and true
technique in past trade negotiations, it backfired in Seattle. As
a group of Caribbean countries put it, "as long as due respect to
the procedures and conditions of transparency, openness and
participation that allow for adequately balanced results in
respect of the interests of all members do not exist, we will not
join the consensus to meet the objectives of this Ministerial
Conference." This sentiment was expressed by the governments of
African and Latin American countries as well, foreshadowing by
one full day the eventual announcement of December 3rd that the
Seattle talks were ended. Calls for "transparency" have
beleaguered the WTO for years. Ironically, the U.S. has most
emphatically called for more transparent measures for non
governmental organizations (NGOs), such as earlier de-restricting
of documents and their posting on the web, or permitting NGOs to
submit amicus curiae briefs in proceedings of the WTO's dispute
settlement body.

Developing countries, suspicious of the U.S. proposals for
transparency, insist that their own access to WTO processes be
fulfilled before that of the NGOs. Beyond problems with the Green
Room, developing countries suffer a disadvantage in WTO
negotiations based on their relative capacity to send a full
compliment of personnel. The U.S. sent some seventy or more
official delegates to Seattle, while Chad and Cameroon fielded
just three. When several meetings are convened at the same time,
and negotiations go on around the clock, the short-handed
delegations are in trouble. In yet another example, the head of
the Kenyan delegation found out that a new text had been issued
after a member of the press asked him about it! Upon requesting
his own copy at the press center's copy room, this head of
delegation was told he would have to ask the WTO Secretariat for
a copy, since these facilities were reserved for the media!

Despite these glaring flaws, the democratic deficit in Seattle
and in the WTO generally is not the whole story. Significant
substantive issues also enflamed the developing country
delegations, such as the one-sided implementation of numerous
agreements reached in 1994. Developing countries have published a
litany of complaints regarding the rigid and destabilizing
enforcement of Uruguay Round agreements benefiting the
industrialized sector and a systematic failure to implement
agreements benefiting them. In the months preceding Seattle,
acting as a united "Like-Minded Group," these developing
countries staked out negotiating positions to remedy these
matters. In Seattle, however, the U.S. and EU gave short shrift
to these proposals, committing themselves merely to "examine with
particular care" or "take note of concerns" or "prepare a
recommendation" in response, or to make "more operational" or
"more transparent" those matters already agreed.

Other key proposals of developing countries were severely watered
down during the Seattle negotiations. For example, led by the
African Group, developing countries had drafted text amending the
Uruguay Round Agreement on Trade-Related Aspects of Intellectual
Property (TRIPs) so that all living organisms and their parts
would not be patentable, and so the list of exceptions to
patentability would include the list of essential drugs
identified by the World Health Organization. In addition, their
proposal referenced "the Convention on Biological Diversity and
the International Undertaking on Plant Genetic Resources" and the
duty to "ensure the protection of innovations of indigenous and
local farming communities; the continuation of traditional
farming processes including the right to use, exchange and save
seeds, and promote food security." In the last draft to emerge in
Seattle, however, WTO members were merely to "examine, in
cooperation with other relevant intergovernmental organizations,
the scope for protection ... relating to traditional knowledge
and folklore ... and other legal means and practices, both
national and international." Bienniel reviews of TRIPs, however,
is part of the "built-in" agenda, so developing countries will be
able to pursue these reforms in the future.

At least President Clinton, no doubt due to the effective
organizing of ACT-UP and other health-based NGOs, announced to
the Seattle media that the U.S. will in the future respect other
countries' implementation of WTO-legal alternatives to exclusive
patents on essential drugs. Earlier in 1999, these groups had
very publicly challenged Democratic presidential contender Al
Gore for his attack on South Africa's national laws protecting
lower prices for AIDS drugs by implementing compulsory licensing
and parallel imports, two WTO-legal mechanisms to ensure
competition in sectors vital to public health.

There is considerable doubt about what happens next. If the
Seattle meeting was "suspended" rather than adjourned, what is
the authority of the WTO's General Council, charged with deciding
all matters in between the bienniel ministerials? And although
Barshefsky and Moore declared, in calling for a "time-out" in the
negotiations, their intention to "freeze" the results of the
meeting up to the moment, others argue that WTO deals are
constructed as a single package so nothing is agreed unless
everything is agreed. That would mean that none of the agreements
of Seattle - that is, not even the text issued throughout the
week showing that some brackets had been successfully removed -
would be brought forward. Then again, some critics of the Seattle
fiasco have argued that Barshefsky was never even formally
elected to chair the meeting in the first place, nor did she ever
gavel the meeting formally to order! In such a case, the "built
in agenda" agreed at the end of the Uruguay Round of 1994 and
restated at the First Ministerial Meeting of Singapore would seem
to limit the scope of future negotiations, although the General
Council has the right to negotiate anything at any time, subject
to a consensus.

While the WTO and its various authorities dicker over how to
proceed, the next meeting of the Biosafety Protocol negotiations
takes place January 20-28, 2000 in Montreal. These talks were
stalemated last February in Cartagena, Colombia, when the U.S.
and five other GMO grain-exporters refused to allow the Protocol
to include genetically-engineered grains in its scope. However,
the "after-Seattle" political context may be markedly different.
There are at least five reasons why the negotiating dynamic in
Montreal offers more promise now than it did before:

1) GLOBAL: As a result of the Seattle failure, it is now clear
that the WTO has no mandate to negotiate beyond the "built-in
agenda," which does not address biotechnology. This reinforces
the mandate of the Conference of the Parties to the Convention on
Biological Diversity (CBD) to conclude a Biosafety Protocol
establishing binding international rules governing the transfer,
handling and use of all GMOs.

2) NATIONAL: Efforts to negotiate the Biosafety Protocol
heretofore have been stymied by the intransigence of the United
States, Canada, Australia, Argentina, Chile and Uruguay. However,
in Seattle, the initiative of the U.S., Canada, and Japan to
create a WTO "Working Party on Biotechnology" were defeated. Even
in the last draft of the Ministerial Declaration, this proposal
remained in brackets indicating that most national governments
rejected the WTO's taking on this agenda. Again, this strengthens
the mandate as well as the political will of the rest of the
world - more than 160 nations - to achieve a Protocol under the
CBD.

3) IN EUROPE: In an astonishing display of public discord,
European Commission (EC) negotiator Pascal Lamy's support for the
WTO biotech working party elicited opposing statements from five
environment ministers and fifteen trade ministers of EU member
countries. In the Biosafety Protocol negotiations, Europe's
position has been that the Protocol should clearly indicate its
superiority to the WTO in cases of conflict. Europe's internal
debate over the respective roles of the EC and EU member states
will likely strengthen the political will of the EU negotiators
in Montreal.

4) IN THE U.S.: There is dramatic and rapidly growing opposition
in the U.S. to genetically-engineered foods, and the media are
picking up on it. Farmers are reacting to the uncertainty in the
markets: The president of the American Corn Growers, for example,
is actively campaigning to warn farmers of the risk they entail
if they sow GMO-seed this spring. Environmentalists' concerns
have been buttressed by university studies showing that corn
engineered to genetically express the Bt toxin kills the larvae
of monarch butterflies. The U.S. Food and Drug Administration has
been sued for an alleged failure to protect public health from
GMOs, and three public hearings - in Chicago, Washington DC, and
Oakland, California - were flooded with protesters and testimony
expressing concern about the FDA's inadequate safety testing.
Furthermore, a number of the FDA's own staff scientists have
expressed similar concerns. Meanwhile, legislation has been
introduced in the U.S. Congress demanding labels on GMO foods,
while Monsanto has been hit by a class-action suit by farmers.
All of this may lead to changes in U.S. policy in the near term.

5. IN THE PRIVATE SECTOR: Last July, the highly-respected
Deutsche Banc published a report entitled "Ag Biotech: Thanks But
No Thanks!" warning investors that "European concerns are very
real and not merely a trade barrier." An appendix entitled "GMOs
Are Dead" downgraded Pioneer Hi-Bred stock to "sell" and
predicted falling growth rates and valuations for the industry as
a whole. In October, the European Commission proposed making
permanent a moratorium in effect since 1990 against the use of
genetically altered bovine growth hormone. Meanwhile, Japan,
Korea, Australia, and New Zealand have joined the EU in demanding
labels on GMOs. It may be that, rather than trying to accommodate
varied national regulations, the biotech industry itself is ready
for a coordinated international system.

All told, biotech is "the biggest issue in agriculture today" -
as a spokesperson for the U.S. delegation said in a briefing with
non-governmental organizations in Seattle - and there is little
doubt that agriculture has been the most troublesome issue facing
the WTO negotiators since the beginning of the Uruguay Round in
1986. A legally binding Biosafety Protocol - embracing the
precautionary principle for all genetically modified organisms,
ensuring clear procedures to track their movements and to cover
potential damages with strict liability - could resolve this
thorniest of agricultural problems. Otherwise, the GMO
protagonists must bear the responsibility for any number of trade
wars on the brink, as they unconscionably choose to continue
waging the especially costly and risky Battle Royale of the 21st
Century.




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