Biosafety Protocol (Draft Text) 23 February 1999
copy @ Lex Mercatoria
1. Pursuant to article 19, paragraph 3, of the Convention on Biological Diversity, the Conference of the Parties, by its decision I/9 of 9 December 1994, decided to establish an open-ended ad hoc group of experts, nominated by Governments, to consider the need for and modalities of a protocol setting out appropriate procedures, including, in particular, advance informed agreement, in the field of the safe transfer, handling and use of any living modified organism resulting from biotechnology that might have adverse effects on the conservation and sustainable use of biological diversity, and further decided that the group of experts would consider, as appropriate, existing knowledge, experience and legislation in the field of biosafety, including the views of the Parties and of subregional, regional and international organizations, with a view to presenting a report for the consideration of the Conference of the Parties at its second meeting, so as to enable the Conference of the Parties to reach an informed decision as to the need for and modalities of a protocol.
2. The Open-ended Ad Hoc Group of Experts on Biosafety met in Madrid from 24 to 28 July 1995. At its first meeting, the Conference of the Parties also established a panel of 15 government-nominated experts to prepare a background document for consideration by the Open-ended Ad Hoc Group. The Panel of Experts met in Cairo from 1 to 5 May 1995.
3. On the basis of the final report and recommendations of the Open-ended Ad Hoc Group of Experts on Biosafety, the second meeting of the Conference of the Parties, by its decision II/5 of 17 November 1995, established an Open-ended Ad Hoc Working Group on Biosafety to develop a draft protocol on biosafety, specifically focusing on the transboundary movement of any living modified organism resulting from modern bio-technology that might have adverse effects on the conservation and sustainable use of biological diversity. The Open-ended Ad Hoc Working Group on Biosafety held six meetings between July 1996 and February 1999 under the chairmanship of Mr. Veit Koester (Denmark). Its first meeting was held in Aarhus, Denmark, from 22 to 26 July 1996, its second, third, fourth and fifth meetings in Montreal, Canada, from 12 to 16 May 1997, 13 to 17 October 1997, 5 to 13 February 1998 and 17 to 28 August 1998 respectively, and its sixth and final meeting in Cartagena, Colombia, from 14 to 22 February 1999.
4. The first extraordinary meeting of the Conference of the Parties was convened by the Executive Secretary of the Convention on Biological Diversity for the purpose of adopting a protocol on biosafety to the Convention on Biological Diversity, pursuant to decision IV/3 of the Conference of the Parties of 15 May 1998. By paragraph 3 of that decision,.the Conference of the Parties decided that the final meeting of the Open-ended Ad Hoc Working Group on Biosafety and an extraordinary meeting of the Conference of the Parties would be held in February 1999 and that those meetings would be held at the seat of the secretariat of the Convention on Biological Diversity in Montreal, Canada, unless an offer to host those meetings was received by the Executive Secretary no later than 1 August 1998. By paragraph 4 of the decision, the Conference of the Parties further decided, in accordance with rule 13 of the rules of procedure, that the agenda of the extraordinary meeting would address all matters relating to, first, the adoption of the protocol on biosafety and, second, preparations for the first meeting of the Parties to the protocol with regard, inter alia, to interim arrangements, taking into account the budgetary provision made for that purpose in accordance with decision IV/17 of 15 May 1998 on the budget of the Trust Fund for the Convention.
5. At the invitation of the Government of Colombia, the first part of the extraordinary meeting of the Conference of the Parties for the adoption of the Protocol on Biosafety to the Convention on Biological Diversity was held in Cartagena de Indias on 22 and 23 February 1999.
6. Owing to the inability of Mr. Josef Zlocha (Slovakia), President of the fourth meeting of the Conference of the Parties, to complete his assigned term of office, and in accordance with rule 24 of the rules of procedure for meetings of the Conference of the Parties, Mr. Laszlo Miklos (Slovakia) had assumed the office of President. The first extraordinary meeting of the Conference of the Parties was opened by Mr. Miklos, President of the Conference of the Parties, at 10 a.m. on 22 February 1999.
7. The meeting observed a minute of silence in commemoration of the victims of the recent earthquake in Colombia.
8. At the opening ceremony, statements were made by Mr. Andres Pastrana Arango, President of Colombia, Mr. Laszlo Miklos, President of the fourth meeting of the Conference of the Parties, Mr. Juan Mayr Maldonado, Minister of Environment of Colombia, Mr. Hamdallah Zedan, acting Executive Secretary of the Convention on Biological Diversity, and Mr. Klaus Töpfer, Executive Director of the United Nations Environment Programme (UNEP).
9. Mr. Pastrana, President of Colombia, said that, at the beginning of the new millennium, there were two prospects: the extinction of the human race, or sustainable development. The issues of social justice, human rights and the environment could only be viewed from an integrated, global perspective and international cooperation must be revitalized.
Developing countries, especially countries with great environmental wealth, had an obligation to participate actively in the establishment and development of new international environmental law; at the same time, they needed financial assistance and access to modern environmentally sound technologies. Firm political will and true solidarity among nations was required: at stake was the survival of the human race, as had been recognized at the United Nations Conference on Environment and Development in 1992. Science must be subordinated to ethics and to the satisfaction of basic human needs.
10. Colombia, which accounted for nearly 13 per cent of the world's biological diversity, was in the vanguard of environmental protection. In 1974, it had been the first Latin American country to draw up a code on natural resources designed to protect the environment.
He had placedenvironmental protection high on the agenda for national reconciliation, as one of the main pillars of peace. Meanwhile, the cultivation of drug crops and.the use of chemical precursors were posing a serious threat to the environment, which needed to be addressed through alternative, environmentally sustainable development, and international cooperation to prevent the entry of precursors.
11. Colombia strongly supported the Convention on Biological Diversity, and also stressed the need for a protocol on biosafety. The establishment of an appropriate regulatory mechanism for the transboundary movement of living modified organisms was a matter of critical necessity. He urged participants to seek agreement in order to be able to tackle in a responsible manner issues involved in the protection of biodiversity such as world food security, human health and survival and an equitable social and economic future for both the industrialized world and the developing countries.
12. Mr. Miklos said that there was a consensus in the world community that an instrument was needed to regulate the transboundary movement of living modified organisms.
The Conference of the Parties had been confident that the time allotted for the completion of the protocol would be sufficient to resolve the outstanding issues. That time was coming to an end, and the Conference had no mandate to decide on an extension of the regulatory process. It had a historic opportunity to finalize the protocol and the current extraordinary meeting had been convened for that purpose. It must determine whether the outstanding issues really related to the promotion of biodiversity, and whether living modified organisms, or products thereof, posed the greater danger to biodiversity. If the Conference were committed to the promotion of biodiversity, it had to bring out its final product.
13. Mr. Zedan said that the Working Group had the demanding task of finalizing the protocol on biosafety. Flexibility and compromise were critical at the last stages of negotiation.
If no agreement were reached, the Convention on Biological Diversity would be undermined. The international environmental and trade agreements concluded over the past 50 years had overlapping mandates; the international community needed to make sure they worked as a whole, and were mutually reinforcing. The international community must recognize the importance of sustainable development and establish the tools to achieve that end.
14. Mr. Töpfer said that the process of reaching compromise on a protocol should build a secure basis for addressing biosafety issues. It was not possible to resolve all problems related to biosafety, but the process mustbe started with the adoption of the protocol, demonstrating that the international community could use modern biotechnology while taking responsibility for its repercussions.
15. All States were invited to participate in the meeting. The following Parties to the Convention accepted the invitation and participated in the extraordinary meeting of the Conference of the Parties: Albania, Algeria, Angola, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Bahamas, Bangladesh, Barbados, Belarus, Belgium, Belize, Benin, Bhutan, Bolivia, Botswana, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Cook Islands, Costa Rica, Côte d'Ivoire, Croatia, Cuba, Czech Republic, Democratic Republic of the Congo, Denmark, Djibouti, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, European Community, Fiji, Finland, France, Gambia, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guyana, Haiti, Holy See, Hungary, India, Indonesia, Iran (Islamic Republic of), Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya,.Kiribati, Lao People's Democratic Republic, Latvia, Lesotho, Lithuania, Madagascar, Malawi, Malaysia, Mali, Mauritania, Mauritius, Mexico, Micronesia (Federated States of), Mongolia, Morocco, Mynamar, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Oman, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Rwanda, Saint Kitts and Nevis, Saint Lucia, Samoa, Senegal, Seychelles, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Swaziland, Sweden, Switzerland, Sudan, Tajikistan, Thailand, Togo, Tunisia, Turkey, Uganda, Ukraine, United Kingdom of Great Britain and Northern Ireland, Uruguay, Venezuela, Viet Nam, Yemen, Zambia and Zimbabwe.
16. The following States were represented by observers: Saudi Arabia, Thailand and the United States of America.
17. Observers from the following United Nations bodies and specialized agencies also attended: Food and Agriculture Organization of the United Nations (FAO), Global Environment Facility (GEF), United Nations Environment Programme (UNEP), World Intellectual Property Organization (WIPO) and World Trade Organization (WTO).
18. The following intergovernmental organizations were represented by observers:
International Centre for Genetic Engineering and Biotechnology (ICGEB), South Pacific Regional Environment Programme (SPREP) and Arab Centre for Studies of Arid Zones and Drylands (ACSAD).
19. The following non-governmental organizations, industry groups and other bodies were also represented by observers: Afri Net, Ag-West Biotech Inc., AgrEvo Belgium, Alcaldia de San Vicente del Caguan, Alcaldia Mayor de Cartagena, American Agricultural Law Association, Amigrans, BIO-Biotech Industry Organization, BIOTECanada, Bio-technology Industry Organization (BIO), Cambiotech, Canacintra, Canadian Federation of Agriculture, Canadian Pharmaceutical Industry (BCG Inc.), Cardique, Centro de Estudios Realidad Sociál (CERES), Comision Nacional Para La Biodiversidad, Coordinacion Ambiental Bacata Siglo XX, Corperación Madre Tierra, Corporacion Ambiental Bacata XX1, Corperación para el Desarrollo de las Comunidades, Corporación Nuevo Arco Iris, Corporación Verde de Colombia, Council for Responsible Genetics, Deloitte and Touche, Despadio Primera Dama de la Nación, Dupont, Ecodesarollo, Ecofondos, Edmonds Institute, Environmental Services, European Group for Ecological Action (ECOROPA), Forum Environment and Development and its Institute for Applied Ecology, Friends of the Earth International, Fundación Ambiental Grupos Ecologicos de Risaralda, Fundación Ceres, Fundación Ecolucion del Caribe, Fundación Grupos Ecologicos de Risalda, Fundación OKAWA, Fundación Proteger, Fundación Semilla, Fundación Social Viva la Ciudadania, Fundación SWISSAID, German Association of Biotechnology Industries, Good Works International, Green Industry Biotechnology Platform (GIBiP), Greenpeace, Grocery Manufacturers of America (GMA), Grupo Ambientalista de Antioquia, Harvard University, Hoechst Schering AgrEvo GmbH, Hogan and Hartson, Institute for Agriculture and Trade Policy, Institute Colombiano Agrapeduario (ICA), Instituto Colombiano de Derecho Ambiental, Instituto Latinoamericano de Servicios Legales Alternativos (ILSA), International Chamber of Commerce, International Regional Organization for Plant and Animal Health (OIRSA), Monsanto, NEOTROPICO International Centre for the Study of the Neotropics (INCENT), Novartis Seed AG, O'Mara and Associates, Organización Ambiental OKAWA, Parque Nacional Tayrona, Pioneer Argentina, PNN Old Providence, Programme PNN Corales del Rosario y San Bernardo, Pulsar Internacional, Red de Liderazgo Costeño, Research Foundation for Science, Technology and Ecology, Rhone Poulenc Rorer Pharmaceuticals, Servicio Nacional de Aprendizaje (SENA), Society for Wildlife and Nature (SWAN) International, Third World Network,.Trafico Illegal de Fauna, Universidad de Caldas, Universidad del Atlantico, Universidad Nacional de Colombia sede Medellin, U.S. Grains Council, Washington Biotechnology Action Council/Council for Responsible Genetics, Women Environmental Network Organization and World Wide Fund for Nature (WWF).
20. Following a proposal by the President of the Conference of the Parties and in accordance with the practice of previous meetings of the Conference of the Parties, the meeting agreed, by acclamation, that Mr. Juan Mayr Maldonado, Minister of Environment of Colombia, should be invited to be President of the first extraordinary meeting of the Conference of the Parties. Mr. Mayr accepted the invitation. The members of the Bureau continued in office.
21. The extraordinary meeting of the Conference of the Parties adopted the following agenda:
1. Opening of the meeting.
2. Organizational matters.
(a) Adoption of the agenda.
(b) Organization of work.
3. Report on the credentials of representatives to the first extraordinary meeting of the Conference of the Parties.
4. Report of the Open-ended Ad Hoc Working Group on Biosafety.
5. Adoption of the Protocol and related decisions.
6. Adoption of the Final Act.
7. Signature of the Final Act.
8. Closure of the meeting.
22. Owing to the complexity of the issues involved, it had not proved possible to conclude negotiations on the draft text of the protocol before the opening of the extraordinary meeting of the Conference of the Parties. Accordingly, following the opening session and adoption of the agenda, the meeting agreed to suspend its work to allow the Working
Group to consider and adopt the report of its Chair to the Conference of the Parties.
23. The Chair of the Credentials Committee reported that, of the 134 Parties represented at the meeting, 113 had presented credentials in compliance with rule 18 of the rules of procedure. The credentials of 6 Parties required further clarification and 15 Parties had not yet submitted credentials. The Credentials Committee proposed, and the meeting agreed, that those Parties which had not submitted credentials in full compliance should sign a declaration undertaking to do so within 30 days, and that their participation in the meeting should be provisionally approved, on that understanding.
24. The report of the Credentials Committee was adopted.
25. At its 2nd session, on 22 February 1999, Mr. Koester, Chair of the Open-ended Ad Hoc Working Group on Biosafety, on the invitation of the President, presented to the meeting the report on the outcome of the sixth meeting of the Open-ended Ad Hoc Working Group on Biosafety, as contained in document UNEP/CBD/ExCOP/1/2.
26. The Open-ended Ad Hoc Group of Experts on Biosafety, established under decision I/9 of the Conference of the Parties, had met in Madrid from 24 to 28 July 1995. The first meeting of the Conference of the Parties had also established a panel of 15 government- nominated experts to prepare a background document for consideration by the Open-ended Ad Hoc Group of Experts on Biosafety. The Panel of Experts had met in Cairo from 1 to 5 May 1995.
27. On the basis of the final report and recommendations of the Open-ended Ad Hoc Group of Experts on Biosafety, the second meeting of the Conference of the Parties, held in Jakarta, Indonesia, from 6 to 17 November 1995, by its decision II/5, had established an Open-ended Ad Hoc Working Group on Biosafety to negotiate a protocol on biosafety, specifically focusing on the transboundary movement of any living modified organism resulting from modern biotechnology that may have an adverse effect on the conservation and sustainable use of biological diversity.
28. The Open-ended Ad Hoc Working Group on Biosafety had held six meetings between July 1996 and February 1999. He said that it had been a challenging experience and a privilege to have been able to chair all six meetings.
29. At its first meeting, in Aarhus, Denmark, from 22 to 26 July 1996, the Working Group had held preliminary discussions on a number of issues including: the key concepts and terms to be addressed in the process; the form and scope of advance informed agreement procedures; and the relevant categories of living modified organisms resulting from modern biotechnology. The Working Group had also developed a list of possible items to be dealt with in a protocol on biosafety that was to guide work at successive meetings.
30. At its second meeting, in Montreal, Canada, from 12 to 16 May 1997, the Working Group had organized its work strictly in plenary. Country representatives had initiated discussion on the elaboration of a protocol on biosafety and Governments had been invited to propose draft legal text on articles listed in the Chairman's summary of events. The government submissions would form the basis for discussion at the third meeting.
31. At its third meeting, in Montreal, from 13 to 17 October 1997, the Working Group had produced a consolidated draft text that was to serve as the basis for future negotiations. At that same meeting, it had also established its two sub-working groups and two contact groups.
32. At its fourth meeting, in Montreal, from 5 to 13 February 1998, the Working Group had entered into the negotiating phase of its task.
33. At its fourth meeting, held in Bratislava, Slovakia, from 4 to 15 May 1998, the Conference of the Parties, in its decision IV/3, had decided that two more meetings should be held to finalize the biosafety protocol.
34. At its fifth meeting, in Montreal, from 17 to 28 August 1998, the Working Group had managed to focus further the elements and articles that formed the protocol.
35. The sixth and final meeting had been held in the city of Cartagena, Colombia, from 14 to 22 February 1999. The meeting had initially been scheduled to end on 19 February 1999 but, owing to the overwhelming number of outstanding issues, work had continued until 22 February 1999.
36. At the conclusion of its sixth meeting, the Working Group had still been unable to present a consensus text for adoption. Considering that outcome of the process, however, due account should be paid to the immensity of the task facing the Group from the outset and to the fact that it had only had six meetings to complete that task. Furthermore, half of those meetingshad been spent establishing the basis for negotiations, because all the substantive provisions in the draft text were based on submissions from Governments.
37. He stressed that the Group had nonetheless made considerable progress. At its sixth meeting, it had begun by considering a text with over 670 square brackets, reflecting, inter alia, that 15 of the issues most central to the negotiations were still unresolved. By the conclusion of that meeting, it had considerably reduced the number of outstanding issues and, in document UNEP/CBD/BSWG/6/L.2/Rev.2, had prepared a draft text which offered far greater potential for the attainment of a final consensus text. That progress had been made possible by the good will, flexibility and spirit of compromise exhibited by all at the meeting.
38. In conclusion, he expressed his appreciation to all those that had contributed to that progress and, in particular, to the members of the extended Bureau, including the various co-chairs, and of the secretariat, for all their hard work, commitment, advice and support; to the Executive Director of UNEP, for his support prior to and during the course of the sixth meeting; and to the Minister of Environment of Colombia, Mr. Mayr, for his continued optimism and tireless efforts that had been an inspiration to all.
39. At its 2nd session, on 22 February 1999, the meeting decided, on the suggestion of the President, to establish, under the chairmanship of the President, an informal contact group of 10 members representing groups of delegations, which would review outstanding contentious issues in draft articles 4 and 5. The 10 members would represent the group of Central American and Caribbean countries, the group of Central and Eastern European countries, the European Union, the negotiating group known at the meeting as the "like-minded group of countries", comprising four representatives, and the negotiating group known as the "Miami group", comprising two representatives.
40. At its 3rd session, on 24 February 1999, the President reported to the meeting that, despite long and arduous negotiations in the informal group through the entire day and most of the night, in an effort to close the gap between the different positions and to agree on a final text for theprotocol, final consensus on all points had not been reached. Instead, the group had decided to submit, for the consideration of the meeting, two proposals, one from the European Union and the other from the Miami group.
41. The representative of Germany, on behalf of the European Union and its member States, introduced a package proposal on the text of the draft protocol. The elements of that proposal are contained in annex II to the present report.
42. The representative of Canada, speaking on behalf of the Miami group, requested that the report of the extraordinary meeting should reflect the conclusion that consensus had not been reached on either the text of a protocol, as submitted to the Working Group in document UNEP/BSWG/6/L.2/Rev.2 and subsequently placed before the Conference of the Parties in the report of the Chair of the Group (UNEP/CBD/ExCOP/1/2), or the European Union proposals as set forth in annex II to the present report. He conveyed the group's commitment to take part in further informal consultations on the outstanding issues and its confidence that a solution would be found.
43. He introduced a proposal, on behalf of the Miami group, on the text of the draft protocol, the elements of which are contained in annex III to the present report, and recommended, further, that the report of the current part of the first extraordinary meeting of the Conference of the Parties should refer to all the proposals on the table and should also note those articles that had been provisionally adopted by the Working Group.
44. The representative of Ethiopia, speaking on behalf of the like-minded group of countries, introduced that group's proposal. The elements of the proposal are contained in annex IV to the present report.
45. Following the introduction of those proposals, a number of representatives, some speaking on behalf of regional groups, made statements. While regretting the failure of the informal contact group to reach final consensus on the few outstanding issues, many representatives commended the President on the open and transparent manner in which he had conducted the negotiations in the group, as well as on his vision, dedication, courage and patience, thanks to which considerable progress had been made, bringing the meeting very close to consensus. Accordingly, they expressed their confidence that the success which had eluded them at the current part of the meeting would be within their grasp when the meeting resumed.
46. The representatives taking the floor further commended the organizers on the excellent preparations for the meeting and expressed their appreciation to the people and Government of Colombia.
47. Many, pledging their willingness to continue their endeavours to reach consensus, hoped that those endeavours would finally lead to a protocol which would be good for the environment and good for the world.
48. One representative regretted that, in the draft text before the meeting, only lip service was paid to the precautionary approach; that the provisions on scope indicated what was not covered rather than what was covered; that the responsibility for compliance was shifted to domestic legislation; and that the philosophy of the protocol was to protect international trade. Another hoped that the environment and human health would be taken into consideration and that the interests of humanity would prevail over the quest for short-term profits.
49. One representative expressed the view that it was better to defer the solution and to have a stronger protocol in the future than to settle now for an unsatisfactory solution and a weak protocol, while another warned his fellow participants that, if the meeting failed in its task to adopt a protocol, history would not forgive them.
50. The representative of one non-governmental organization, speaking on behalf of 13 non-governmental organizations at the meeting, said that, while the outcome of the negotiations at the current part of the meeting had perhaps been predictable, the meeting's failure boded ill for the future of the planet. At the same time, a weak protocol.would have sent a most undesirable signal to the world and, on the positive side, it was to be hoped that the intensity of the negotiations in Cartagena would encourage countries, especially developing countries, to develop their own legal frameworks in the area of biosafety.
51. At its sixth meeting, the Open-ended Ad Hoc Working Group on Biosafety had provisionally adopted a number of draft articles and annexes. The articles, numbered as in the text of the draft protocol contained in annex V to the present report, are the following: article 16, on competent national authorities and national focal points; article 19, on capacity-building; article 26, on financial mechanism and resources; article 27, on the Conference of the Parties serving as the meeting of the Parties; article 28, on subsidiary bodies and mechanisms; article 29, on the secretariat; article 30, on the relationship with the Convention; article 32, on monitoring and reporting; article 33, on compliance; article 34, on assessment and review; article 35, on signature; article 36, on entry intoforce; article 38, on withdrawal; and article 39, on authentic texts. In addition, the Working Group had also provisionally adopted, under article 3, on the use of terms, the definitions of the terms "exporter", "importer", "living modified organism", "living organism", "modern biotechnology", and "regional economic integration organization" and had also provisionally adopted annexes I and II.
52. The core issues and related issues that remained before the first extraordinary meeting of the Conference of the Parties, as identified in informal consultations under the chairmanship of the President on Monday and Tuesday, 22 and 23 February 1999, were articles 4, 5, 6, 15, 21, 22, 23, 24 and 31. It was agreed by all the negotiating groups at the meeting that the essential core issues among those identified above were articles 4, 5 and 31.
53. At its 3rd session, on 24 February 1999, the meeting adopted two decisions. The first, which had been circulated in document UNEP/CBD/ExCOP/1/L.4, concerned suspension of the first extraordinary meeting of the Conference of the Parties and its reconvening at a date to be decided, as well as interim arrangements. The second conveyed a tribute to the Government and people of Colombia. The text of the decisions is contained in annex I to the present report.
54. The Rapporteur informed participants that, in the light of its decision to suspend the meeting, the report of the meeting would be considered and adopted at the resumed session. The meeting took note of the draft report of the first part of the first extraordinary meeting of the Conference of the Parties, contained in document UNEP/CBD/ExCOP/1/L.2.
55. Following the adoption of the decisions, the Executive Director of UNEP expressed his thanks to all those involved in the organization and conduct of the meeting for their dedication and hard work and, in particular, to the people of Cartagena for their warmth and hospitality. Following the customary exchange of courtesies, the President declared the meeting suspended at 5 a.m. on Wednesday, 24 February 1999.
(To be completed).