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Checkbiotech: The WTO and the Biosafety Protocol
Posted by: DR. RAUPP & madora (IP Logged)
Date: September 24, 2004 06:53AM ;

As global trade has blossomed, nations have struggled with rules to balance
the goal of free trade with the goal of protecting environment and public
health, September2004 .

For example, under the basic trade framework of the World Trade
Organization (WTO) agreements, any trade restrictions imposed for the
purposes of protecting health and safety must be based on science.
Otherwise, regulations purporting to protect public health could simply be
thinly-disguised efforts at protectionism. Disputes about the scientific
basis of food safety restrictions are settled by reference to standards set
by the Codex Alimentarius Commission (Codex), a group formed in 1962 by the
UN's World Health Organization (WHO) and the Food and Agriculture
Organization (FAO).

Sometimes, trade intersects with environmental issues as well. For example,
global trade increases the movement of living organisms, which can threaten
areas of biodiversity. The UN Convention on Biological Diversity, a separate
international environmental agreement, is intended to help nations protect
their unique areas of environmental biodiversity.

Not surprisingly, the global controversy over genetically modified (GM) food
has emerged in the context of current discussions in these two separate
international frameworks. The EU has adopted strict regulations on biotech
food products which the US has objected to as barriers to trade. Codex is
considering several food labeling provisions and other proposals that could
eventually determine whether the EU rules violate the WTO trade agreements.

The GM food debate has also emerged in the Biological Diversity Convention.
Seeds of GM crops, for example, are covered under the Convention's Cartage?a
Protocol on Biosafety, which allows a country to require prior consent
before importing any "living modified organism" (LMO). Can this authority be
used to allow nations to ban the import of GM seeds, and how would such
authority mesh with WTO agreements? These and other issues are currently
under debate.

Biosafety Protocol: Seed or Feed?

As Silvia Ribeiro of Erosion, Technology & Concentration (ETC) Group, a
US-Mexican-Canadian public interest advocacy group, explains, "Theoretically
[the Biosafety Protocol] is not totally about food."

The Biosafety Protocol is intended to help governments control the
unauthorized transboundary movement of LMOs that could hurt efforts to
conserve and use biodiversity sustainably. GM fish, insects, trees, plants,
microbes, and livestock intended for release into the environment are
examples of LMOs potentially covered by the Biosafety Protocol. Under the
Biosafety Protocol, exporters are effectively required to seek consent from
an importing country before the initial shipment of an LMO ? referred to as
the "advanced informed agreement" (AIA) requirement.

However, there was a November 2003 compromise pushed by the Miami Group ? a
group of leading GM crop exporting countries that includes the US, Canada,
Australia, Argentina, Chile and Uruguay. The Miami Group compromise
restricts a country's right to refuse shipments of LMOs intended: 1) for
food, feed, or processing; 2) for use in contained places, like
laboratories; 3) for the production of drugs for humans, or 4) to enter a
country during shipment to another final destination ? in other words, if
it's just passing through a country.

Therefore, the Biosafety Protocol doesn't apply to GM food or feed products
that have been processed so that they can't reproduce in the environment,
such as corn gluten derived from GM corn. And the advanced informed
agreement requirement does not apply to LMOs that are not intended for
release into the environment ? such as contained uses, or use in food, feed,
or processing. In the latter case, shippers of bulk commodities that might
contain GM varieties (for example, corn, soybeans, or cottonseeds) need only
to state on shipping documents that the shipment "may contain" LMOs and that
the shipment is not intended for intentional introduction into the

But despite the intention of the shipper, some commodities such as corn can
be used both as human or animal food and as seed. Ribeiro highlights the
ambiguity when she explains that under the Biosafety Protocol, "If you
introduce [GM] corn into Mexico but only for food, then you only have to
notify the government that it contains GMO material." She explains that the
notification process does not provide the recipient country with an
opportunity to deny the import, as does the AIA, and consequently, you can
ship and sell food and feed in Mexico. Conversely, she says, if you call the
very same corn "seed," it is suddenly covered by the Biosafety Protocol
because it is intended to be grown and kept alive and Mexico can reject the
shipment ? no questions asked.

Supporters of the Biosafety Protocol, including Ribeiro, feel that these
exclusions dramatically handicap the agreement as a whole. The US
government, on the other hand, has argued that such provisions are needed to
prevent unnecessary restraints on trade in bulk agricultural commodities.

A second concern raised by the US government, which is not a party to the
Biodiversity Convention, is the basis on which an importing nation can
refuse to import a LMO. The Biosafety Protocol includes a version of the
"precautionary principle" which would allow a nation to ban the import of a
LMO in the face of scientific uncertainty. This provision appears to
conflict with the requirement of existing WTO obligations that health and
safety restrictions be strictly based on science.

Mark Mansour, an attorney who has worked on Codex and closely follows
Biosafety Protocol developments, argues that the Biosafety Protocol enables
any country to refuse anything regardless of whether there is any scientific
reason; instead they only have to invoke the precautionary principle. "It's
very political and the Europeans admit it," says Mansour. "There's not a lot
science going on here. It's a flat out effort by activists to try and kill
biotechnology," he adds. "It's basically going to put sand in the gears in
the entire grain trade."

Ribeiro disagrees that the precautionary principle imposes an inappropriate
burden. "The only thing you have to prove is that it is safe," says Ribeiro.

Whether the Biosafety Protocol will actually be implemented in a way that
conflicts with WTO agreements remains an open question, since it also
contains a provision that says that a nation's use of precaution in
decision-making must be consistent with nation's other trade obligations.

CODEX: Science and Precaution

The relationship between national laws intended to protect public health and
safety and international trade obligations are spelled out in the Agreement
on the Application of Sanitary and Phytosanitary (SPS) Measures and the
Agreement on Technical Barriers to Trade, two WTO agreements that emerged
from the Uruguay round of trade talks that ended in1994. In essence, those
agreements permit nations to adopt restrictions on trade for the purposes of
protecting health and safety only to the extent that such restrictions are
based on science.

To help resolve scientific disputes over food safety, the WTO looks to the
42-year-old Codex Alimentarius Commission, which sets baseline safety
standards for all sorts of substances that might be found in foods. All
those standards, says Mansour, are based on laboratory science and are
updated periodically. "Essentially those standards save lives," says
Mansour. "They are based on rigorous analysis."

Say, for instance, Chile wants to export apples to the US, which have a
small residual of DDT ? DDT is banned in the US. If the US challenges the
import, the disagreement over the matter goes to the WTO, which looks to
Codex standards to determine if the DDT level is safe or unsafe. Once the
WTO makes a determination on the matter, it is binding for the US and Chile.

While Codex food safety standards do not have the force of law, they
effectively set the international minimum standards for food safety. Nations
or businesses that do not comply with Codex guidelines would likely have a
hard time in the international marketplace, Mansour says.

The importance of Codex to the international trade dispute process explains
why the US government and some business groups are concerned about several
current Codex proposals which could introduce "non-scientific" factors into
the process. Specifically, the EU has been advocating mandatory labeling and
traceability requirements for foods derived from biotechnology, much in the
same manner as regulations recently adopted by the EU.

The EU has also been promoting the use of the "precautionary principle" in
Codex's framework for risk analysis. The US government and some business
groups have opposed these efforts, stating that Codex standards need to be
based on objective, risk-based scientific analysis. The introduction of
non-scientific cultural, political, and social considerations would restrict
trade without consumer benefits and "clear the way for the E.U. to erect
trade barriers against biotechnology foods" without violating WTO
agreements, according to the Biotechnology Industry Organization (BIO).

The current debates in Codex and in the Biosafety Protocol negotiations are
evidence that the international debate about GM foods is having a major
impact on efforts to come to agreement on balancing the rights of nations to
set health and safety standards and their obligations to promote free and
fair trade. The outcome of these negotiations are likely not only to affect
the future of trade in GM foods, but in all foods ? and could help determine
what shows up on tomorrow's dinner plate.

For more information, please visit the Codex Alimentarius; the Cartege?a
Protocol on Biosafety; the ETC Group;and the Biotechnology Industry
Organization online.


Can there be a peaceful coexistence between the codex alimentarius and the
biosafety protocol in managing risks for international trade in
By L. Val Giddings and Gregory Jaffe September 2004.

The Codex Alimentarious and the Biosafety Protocol (BSP) are cast as two
widely different approaches to managing trade and GMOs, and the question is
asked "Can there be a peaceful coexistence?"

Though some wish it were otherwise, in actuality, neither Codex nor the BSP
were intended or designed to regulate international trade. One might as well
ask if shovels and rope ladders can peacefully coexist. In fact, they are
distinct vehicles designed for very different purposes that need not be
forced into conflict. Codex is recognized by the World Trade Organization
(WTO) as a standard-setting body for food safety. The WTO enforces trade
agreements related to food in accordance with the standards set by
committees of technical experts that work within Codex.

The Biosafety Protocol is an addendum to a multilateral environmental
agreement ? the Convention on Biological Diversity (CBD). The purpose of the
CBD is to advance the conservation and sustainable use of biological
diversity and ensure sharing of the benefits derived therefrom. The
objective of the BSP is to protect against potential threats to biodiversity
that may occur from the trans-boundary movement of living modified
organisms ? primarily seeds of biotech crops. The BSP was cobbled together
to serve this objective not through the management of trade, but rather by
facilitating the sharing of information, and by providing a framework for
science-based regulation (consistent with obligations under other
international agreements, such as the WTO).

Codex has a long track record of relying on the best available science and
scientific principles in establishing food safety standards that are widely
respected. On the other hand, neither the BSP nor the CBD have as yet
compiled a track record or level of credibility approaching that enjoyed by

It is the hope of the agricultural biotechnology industry that that over
time, BSP and CBD may become as credible as Codex. Developments during the
implementation of the BSP over the next few years should clarify what will
in fact come to pass.

For more information, visit the Biotechnology Industry Organization.

Safety is the Common Goal

The way Gregory Jaffe sees it, there isn't much conflict between the Codex
Alimentarius and the Cartage?a Biosafety Protocol (BSP). Both help countries
manage risks associated with GMOs, either before they are released into the
environment or consumed by people. "I see more commonality than difference
between the two," Jaffe says. Both are designed to ensure that there is a
premarket or prerelease analysis of the risks associated with the GMO,
whether it is a GE tree or a tin of GE tomatoes.

"The biggest difference between the two is their scope," Jaffe says. "The
Biosafety Protocol deals primarily with the environmental and biodiversity
impact of genetically modified organisms. The Codex deals with primarily
with food safety. The two agreements, however, have similar approaches to
conducting risk assessments before release on the market or into the

"That's not to say there isn't overlap between the two [protocols]," Jaffe
says, pointing out that GMOs with potential risks to human health and GMO
grains used for food and feed can fall under both. And, he notes, the BSP is
different from Codex because it clearly authorizes using a precautionary
approach when assessing risks with incomplete scientific information.

"One problem with the BSP's precautionary approach is countries have very
different ideas about what it is and how it should be applied," Jaffe says.
"For example, the United States is opposed to the BSP's precautionary
approach yet many regulatory systems in the US and many government decisions
on specific products follow a precautionary approach. In my mind, a
precautionary approach means that, if you have some scientifically valid
concerns about a risk but no definitive scientific proof, you can prevent
import while evidence is gathered."

Jaffe says, "It is a very positive development that countries will be able
to use the risk assessment guidelines of the Codex and the BSP on GMOs. It
is in decision-making and risk management where we will have to wait and see
under what circumstances the precautionary principle is invoked."

"Around the globe, it is imperative that we set up legally enforceable
regulatory systems that can address the possible risks of GMOs to the
environment and to human health," Jaffe says. "Anytime you are negotiating
an agreement between 150 or more nations, there will be some compromises.
The important thing is to make sure the framework is capable of analyzing
potential risks before you release GMO foods onto the market or into the
environment. Both the Biosafety Protocol and the Codex Biotechnology
documents give countries a legal framework and risk assessment guidance that
will help ensure safety."

For more information, []

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