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8-Misc: Biotech - From Seattle to Montreal and beyond



----------------------------- GENET-news -----------------------------

TITLE:  Biotech - From Seattle to Montreal and beyond:
        Battle Royale of the 21st century
SOURCE: Institute for Agricultural and Trade Policy, USA
        by Kristin Dawkins
DATE:   February 2000

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


Biotech - From Seattle to Montreal and beyond: Battle Royale of the 
21st century

Two key intergovernmental meetings at the turn of the millenium have 
raised hopes that the seemingly unstoppable train of globalisation 
may actually be forced to slow down after all. The US and its 
globalisation disciples were thwarted in their efforts to get the 
World Trade Organisation to take on biotechnology issues in Seattle 
and in their attempts to handcuff developing countries into adopting 
the unrestricted trafficking of genetically modified products at the 
biosafety negotiations in Montreal. As a result, governments, 
industry, NGOs, farmers and civil society groups are now positioning 
themselves for a major showdown over the role of biotechnology in 
agriculture.

Back in 1997, US Secretary of Agriculture Dan Glickman described 
biotechnology and the patenting of life as"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 
Organisation (WTO) fail to launch a new round of trade talks, but 
proposals for the WTO to consider biotechnology issues also flopped. 
In the first month of the new century, the US and other GMO exporters 
lost another round - their eight-year campaign to avoid a new 
international treaty to help safeguard the environment and public 
health related to the GMO trade. The "Cartagena Protocol on 
Biosafety," agreed in Montreal, establishes an international 
regulatory regime based on the precautionary principle to manage the 
unique risks of GMOs. These two events have put the brakes on the 
globalisation bandwagon, at least for a while, and offer hope for 
governments and civil society organisations pushing for a saner 
approach to the management of biotechnology and a more sustainable 
approach to agriculture.


Seattle's spectacular failure

In Seattle, the biotech lobby was seriously let down. The US joined 
Canada and Japan in proposing a WTO "Working Party on Biotechnology" 
whose mandate was unclear. The US wanted it "to examine approval 
processes" for GMOs - taking dead aim at the European Union's (EU) 
array of national and regional restrictions on the import, planting 
and consumption of genetically engineered seeds and foods. A large 
number of developing countries objected, however, largely on grounds 
that the proper place to debate the matter was at the biosafety 
negotiations a month later, not at the WTO - and they never gave in.

As the obvious target of the WTO proposal, the EU was initially in 
agreement that biotechnology should be dealt with through the 
biosafety negotiations. EU delegates therefore reacted with outrage 
when the lead negotiator for the EU, Commissioner Pascal Lamy voiced 
EU support for a Working Party. Lamy defended his position by saying, 
"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."

With the collapse of the Seattle meeting, the biotech issue is 
probably moot at the WTO, at least for the time being. But in 
Brussels there is surely a fierce debate raging over the democratic 
rights and responsibilities of the European Commission. For 
Europeans, the issues of democracy and food safety mingle in a 
profound way. Last year, the WTO overturned their ban on imports of 
beef laced with growth hormones, agreeing with the US that the ban is 
not "scientifically justifiable" and acts as a "barrier to trade." EU 
attempts to include the precautionary principle as a justifiable 
consideration in WTO policies were rebuffed by the US and its friends.


Patents on Life and TRIPs Are Also on the Table

Several key proposals from developing countries were severely watered 
down during the Seattle negotiations. One of the most important of 
these was text developing countries, led by the African Group, had 
drafted amending the Uruguay Round Agreement on Trade-Related Aspects 
Of Intellectual Property (TRIPs). The text proposed modifications so 
that "all living organisms and their parts cannot be patented; and 
those natural processes that produce living organisms should not be 
patentable" and the list of exceptions to patentability would include 
the list of essential drugs identified by the World Health 
Organisation. In addition, they called for revisions 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 merely 
pledged to "examine, in cooperation with other relevant 
intergovernmental organisations, the scope for protection - relating 
to traditional knowledge and folklore - and other legal means and 
practices, both national and international." While this draft is now 
scrapped, along with the rest of the Seattle compromises, on-going 
reviews of the TRIPs Agreement are part of the WTO's "built-in" 
agenda, so developing countries will at least have a chance to pursue 
their proposals for reforms in the future.


Taking on the bullies

The lack of democracy in Seattle was one of the main reasons for the 
failure to launch a new round of WTO trade talks. Developing 
countries complained of a systematic failure to implement those 
elements of the Uruguay Round agreements that benefited them, while 
those benefiting the industrialised sector have been rigorously 
enforced. In the months preceding Seattle, the Like-Minded Group 
staked out negotiating positions to remedy these matters. At the 
meeting, however, the US and EU gave short shrift to these proposals, 
committing themselves merely to "examine with particular care" or 
"take note of concerns" in response, or to make "more operational" or 
"more transparent" those matters already agreed.

Fingers were also pointed at US Trade Representative Charlene 
Barshefsky and WTO Director-General Michael Moore for Seattle's 
failure, who resorted to the infamous "Green Room" technique, 
inviting selected governments into a closed-door session designed to 
brow-beat them into a series of trade-offs on the most contentious 
issues. While a common 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 echoed by African and Latin American 
countries as well, foreshadowing by one full day the eventual 
announcement of December 3rd that the Seattle talks were ended.

There is no doubt that the fifty thousand or more citizens who 
dominated the streetscape of Seattle and the news reports worldwide 
also had an impact on the results. Trade unionists, religious and 
peace activists, consumer and environmental advocates, and thousands 
of young people fed up with corporate globalisation and the 
dictatorial behaviour of the WTO made it clear that "business as 
usual" was unacceptable. Some of them were back a month later, this 
time to lobby their governments at the biosafety protocol meeting in 
Montreal. Hundreds of citizens also poured into the streets in frigid 
windy weather to march and hold overnight vigils and otherwise 
demonstrate their objections to Canadian complicity in the US-led 
attempts to sabotage the meeting. Again, these groups can take some 
of the credit for the qualified success of the Montreal meeting.


A biosafety protocol at last

The Cartagena Protocol on Biosafety establishes an international 
regulatory regime based on the precautionary principle to manage the 
unique risks of GMOs. All national governments' rights to regulate 
all GMOs are affirmed, while developing countries and countries in 
transition (the former Soviet states) may use the Protocol to 
regulate commodities even before national policies are in place. The 
protocol will become enforceable once 50 nations ratify it through 
their domestic legislative processes. Legally, the United States 
cannot become a party to the new Protocol until it ratifies the 
parent treaty, the Convention on Biological Diversity (CBD). But the 
rest of the world made sure that it will have to follow the rules: 
the new law says that GMO trade between parties and non-parties 
"shall be consistent" with the Protocol's objectives and that parties 
"shall encourage" non-parties to comply.

In addition to environmental impacts, human health and socio-economic 
factors are recognised as valid considerations in determining whether 
to accept or reject GMO imports. A permanent centralised information 
center called the "biosafety clearinghouse" will be set up on the 
Internet, and work will continue to further develop the terms of the 
Protocol. Within two years, details on the documentation required to 
accompany shipments of GMO commodities must be worked out: at 
present, they need only be labeled with words advising that they "may 
contain" genetically engineered grains.

At the same time many at Montreal felt that too much had to be given 
in to appease the US and the Miami Group. For example, one big 
loophole in the new treaty affects commodities - that is, GMOs 
"intended for direct use as food or feed, or for processing." 
Commodities are not subject to the full "Advanced Informed Agreement" 
procedure, whereby an importing country's government is notified of 
each impending shipment and then has the option to accept it or not. 
Instead, notification of a new approved GMO in one country is posted 
at the biosafety clearinghouse. Each potential importing government 
has the burden of monitoring the site for all new GMOs all the time, 
whether or not they are on their way to that country, or whether or 
not the importing country has the resources to set up complex 
electronic Internet monitoring systems. They can, however, still 
inform the exporting country that they will not accept any shipments 
of that GMO, based on the precautionary principle, as long as risk 
assessment procedures have been followed.

While this is a significant loophole, it is important to remember 
that the US and its five allies - Canada, Australia, Argentina, 
Uruguay and Chile - deadlocked what was supposed to be the final 
negotiation in Colombia in February 1999 over the issue of 
commodities. Calling themselves the "Miami Group," these six grain 
exporters demanded that commodities be altogether outside of the 
Protocol's scope on grounds that their regulation would be a barrier 
to trade. The rest of the world argued that genetically-engineered 
commodities carry the same biological risk as GMOs intended for 
direct release into the environment, like seed, and therefore must be 
just as carefully managed. As the Ethiopian spokesperson Tewolde 
Egziabher explained for what became known as the "Like-Minded Group" 
of some 100 or more countries, a bag of feed corn is just as likely 
to spill off a truck during transit as a bag of seed corn, and 
farmers with a field to sow are unlikely to notice whether a bag of 
corn is labeled "seed" or "feed."

So polarised was the debate that Chairman Juan Mayr, Colombia's 
Minister of the Environment, called a special "informal" meeting in 
Vienna some months later to try to work through the most intransigent 
issues. Perhaps this process helped: virtually all observers agree 
that Chairman Mayr's diplomatic skill and commitment to achieving a 
protocol were instrumental in breaking through the deadlock. Another 
factor could be an increase in consumer and environmental concern in 
the Miami Group countries, including a series of high-profile 
lawsuits filed against the US Food and Drug Administration, the US 
Environmental Protection Agency, and the Monsanto Company and the 
other other so-called life-science conglomerates. It is also likely 
that the WTO's debacle in Seattle had its effect. Whatever the 
factors, the Cartagena Protocol on Biosafety (named in recognition of 
Chairman Mayr and the Colombian people's extraordinary hospitality 
last year) finally establishes - although still quite short of many 
peoples' hopes and expectations - a global framework for GMO 
regulation.


Caution prevails

In the lead-up to Montreal, the EU insisted that the precautionary 
principle was a non-negotiable demand. Its steadfastness paid off. 
The Cartagena Protocol articulates what may be the most advanced 
expression of the precautionary principle in any international 
agreement. It states that, "lack of scientific certainty due to 
insufficient relevant scientific information and knowledge regarding 
the extent of the potential adverse effects shall not prevent [a] 
party from taking a decision, as appropriate, with regard to the 
import" of a GMO.

The science of genetic engineering is still quite young and it is 
widely agreed that both proof of harm and proof of safety are as yet 
lacking. Given the risk of a potentially catastrophic scenario such 
as the annihilation of honey bees due to the spread of Bt toxins, the 
precautionary principle could be seen as necessary protection for 
governments to enable them to restrict GMO imports should they be 
challenged at the WTO by zealous exporters. However, the compromise 
struck in Montreal is so delicate and well balanced, lawyers may 
never be able to sort out whether one or the other treaty should 
prevail. In exchange for the precautionary principle, the EU conceded 
a weird recitation of clauses in the preamble of the Protocol 
regarding its relationship to the WTO. These read:
- "Recognising that trade and environment agreements should be 
mutually supportive with a view to achieving sustainable development,
- "Emphasising that this Protocol shall not be interpreted as 
implying a change in the rights and obligations of a Party under any 
existing international agreements,
- "Understanding that the above recital is not intended to 
subordinate this Protocol to other international agreements"

While these phrases may seem internally contradictory, they could 
also give lawyers at the WTO an excuse to ignore the Protocol 
altogether. However, a further subtlety that was key to the 
compromise was the EU's insistence that the placement of the 
precautionary principle and the so-called "relationship issue" be 
switched: in earlier drafts, references to a "precautionary approach" 
appeared in the preamble, which is not considered legally-binding, 
while the relationship clauses used to be in the legally-binding 
operational text.


The trade:environment conundrum

At the heart of these legalistic shenanigans is a longstanding 
ambiguity in international law: the relationship between a 
multilateral environmental agreement (MEA) and a trade agreement with 
inherently contradictory purposes and terms. The WTO's Committee on 
Trade and Environment has grappled with the problem unsuccessfully 
since 1994. The Cartagena Protocol carves out new legal and 
institutional ground in the international policy framework, though 
only time will tell to what extent it will help in establishing MEA 
predominance on environmental matters. The protocol clearly 
distinguishes between GMOs and non-GMOs, and establishes regulations 
to protect animal, plant and human life and health. At least so far, 
no dispute has as yet been filed at the WTO staking terms of an MEA 
against terms of the WTO. But many suspect that the US has had plans 
to challenge the EU's array of GMO regulations as soon as the 
Biosafety Protocol was agreed (assuming the Miami Group were 
successful in lobbying for it to be subordinate to or, at a minimum, 
equal to the WTO). Whether the ambiguous language in the Protocol 
will enable the WTO to ignore the Protocol's terms may soon be known. 
In the glare of recent negative publicity, private interests may 
decide that the WTO is no longer the right place to seek and expand 
corporate rights over human rights.

Indeed, less familiar settings for international deal-making have 
already put the issue of GMOs on their agendas. For example, the 
Codex Alimentarius Commission - a body of the UN's Food and 
Agriculture Organisation and the World Health Organisation that once 
set guidelines for food safety regulations but was annointed by the 
WTO as the presumptive standard-setting body - has set up a 
"Committee on Bio-engineered Food." And the Trans-Atlantic Economic 
Partnership is set up to devise executive level "Mutual Recognition 
Agreements" to harmonise US and EU regulations, bypassing the normal 
regulatory processes of each country. How these international 
agreements would relate to the Protocol, the WTO and each other adds 
greater dimensions of complexity to the contemporary challenge of 
multilateral governance and achieving global democracy.


Great minds think - and act - alike

In Montreal, the Like-Minded Group - representing well over 80% of 
the planet's population and at least 80% of its biological diversity -
 was steadfast in its commitment to biosafety. They insisted that all 
GMOs can have potentially harmful interactions within a given 
specific ecosystem, and that there is no substitute for case-by-case 
risk assessment and no substitute for nationally-determined risk 
management. They also insisted that the scope of the Protocol be 
comprehensive, and it is - despite a number of loopholes. They were 
especially adamant about commodities, and despite the Miami Group's 
most vigorous objections, commodities are included. Thanks to their 
unwavering unity as a negotiating bloc, the mostly developing country 
members of the Like-Minded Group were largely successful in achieving 
their aims.

In the last hour of the Montreal meeting, the government of France 
offered to host the first intergovernmental meeting to prepare for 
the entry into force of the Protocol "before the end of 2000." France 
having some of the strongest regulations against GMOs, and French 
farmers being among the most militant in the world, it should be an 
interesting meeting! Already, citizens are mobilising to go to Paris 
and support the call for ever more effective regulations of GMOs at 
all levels of government.


Next stop Paris?

There is considerable uncertainty about what happens next - but also 
a renewed spirit of public optimism. As history unfolds, the 
spectacular failure in Seattle may have a galvanising effect on the 
developing world's leadership as well as on civil society worldwide. 
There is a growing sense that not only the WTO but all of the 
entrenched bureaucracy of corporate globalisation is vulnerable to 
citizen action. And it seems altogether probable that the Seattle and 
Montreal events will have a dampening effect on US enthusiasm for a 
WTO dispute over GMOs. If the dispute settlement body were to agree 
with the US that European regulations on GMOs are illegal, the 
public's reaction could be fierce enough to seriously damage the 
WTO's credibility.

In Geneva, negotiators are back at the drawing table working on 
agriculture issues. This was a requirement of the Uruguay round: in 
2000, to start negotiations towards the long-term objective of 
"fundamental reform - taking into account the experience to that 
date" and "non-trade concerns" such as the environment and food 
security. There is no mandate for the WTO to consider biotechnology, 
although there may be more momentum than before to settle the 
perennial question of the WTO:MEA relationship. The required review 
of the TRIPs Agreement should also go forward. Support for the 
African and Like-Minded Groups' proposals could help ensure that 
economic and political justice as well as the social and cultural 
rights of rural communities over their genetic resources are 
reinstituted.

In follow-up to the Cartagena Protocol, it is already time to plan 
for the meeting in France that will take place this year. Farm 
organisations, consumer groups, environmentalists, and others should 
begin preparations for this event. Research into the liability and 
labeling issues must go forward, in the international as well as 
national contexts, to ensure that each country's delegations have a 
clear mandate in advance.

The Conference of the Parties to the Convention on Biological 
Diversity will meet in Nairobi in May 2000, to review progress 
towards not only the Cartagena Protocol (which will open for 
signature there) but also towards implementation of the obligation to 
"respect, preserve and maintain knowledge, innovations and practices 
of indigenous and local communities" and more generally promote the 
sustainable conservation and use of biological resources and the 
equitable sharing of their benefits. Similarly, the UN's Food and 
Agriculture Organisation will continue its efforts to reach agreement 
on an international treaty regarding the management of genetic 
resources for food and agriculture later this year, a treaty that 
could become yet another protocol to implement the 1992 Convention on 
Biological Diversity.

Citizens in many countries are becoming more aware, more alarmed and 
more organised in their objections to GMOs. Supermarkets and other 
buyers in the commercial chain from producer to consumer are 
declaring themselves GMO-free or offering premiums for GMO-free 
products. More and more farmers are opting to plant non-GMO seeds in 
the North, while in the South farmer organisations openly reject 
transgenic crops as an option for increased food security and 
sustainable development. Many national regulatory agencies in the 
South and North are preparing more rigorous procedures for evaluating 
GMO safety.

In the United States, which as usual has acted as an outlaw in the 
world community of nations, there is dramatic and rapidly growing 
support for positive action regarding genetic engineering and the 
protection of genetic resources (see Sprouting Up on p ), which may 
lead to changes in US policy in the near term. Meanwhile Europe is 
becoming more frigid to biotech's touch. Last July a highly-respected 
Deutsche Banc's report entitled "Ag Biotech: Thanks But No Thanks!" 
warned investors that "European concerns are very real and not merely 
a trade barrier." 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 having failed to deflect the labelling ussue, 
the biotech industry itself may opt for a co-ordinated international 
system rather than trying to find its way through a maze of varied 
national regulations.

All told, biotech is "the biggest issue in agriculture today" - as a 
spokesperson for the US delegation said in a briefing with non-
governmental organisations 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. The 
Cartagena Protocol on Biosafety will help resolve this thorniest of 
agricultural problems.

-------------------------------------------
This article was written by Kristin Dawkins of the Institute for 
Agriculture and Trade Policy, Minneapolis, Minnesota. She can be 
contacted by email at kdawkins@iatp.org. For more information on both 
the Seattle and Montreal events, and related policy developments and 
documentation, visit the IATP web site at http://www.iatp.org

------------------------------------------

Kristin Dawkins
Institute for Agriculture and Trade Policy
2105 First Avenue South
Minneapolis, MN 55404
USA

Central tel: +1 (612) 870-0453
Direct tel: +1 (612) 870-3410
Fax: +1 (612) 870-4846
kdawkins@iatp.org

http://www.iatp.org
http://www.wtowatch.org 

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