Protocol on Biosafety (BSP)
- to ratify or not?
A grain trade perspective
The Australian Government, as part of its preparation for the next BSP (also called the
Cartagena Protocol) meeting in October 2010, will, as a matter of course, review its
current position to determine if it is still the most advantageous to Australia’s interests.
Australian is currently a Non Party to the BSP and the review will determine if Australia
should maintain its current position or seek to become a Party, i.e. to ratify the BSP.
Objectives of this paper
GTA has prepared this discussion paper to inform grain industry participants, government
departments and agencies on specific aspects of the BSP that could impact on current and
future commercial activities within the Australian grain trade.
Submission to GTA
GTA members are encouraged to review the attached and form an opinion. GTA would
appreciate comments from members by COB Friday 27 November 2009.
Further information/comment
Geoff Honey
Grain Trade Australia
PO Box R1829
Royal Exchange NSW 1225
Phone 61 2 9247 6408
Fax
61 2 9247 9153
[email protected]
Grain Trade Australia – 9 November 2009
Executive Summary
The Australian Government, as part of its preparation for the next BSP (also called the Cartagena
Protocol) meeting in October 2010, will, as a matter of course, review its current position to
determine if it is still the most advantageous to Australia’s interests.
Australian is currently a Non Party to the BSP and the review will determine if Australia should
maintain its current position or seek to become a Party, i.e. to ratify the BSP.
Australia, as a major grain exporting country, will be impacted by the BSP and
therefore it is critical that the Australian Government give particular consideration to
the commercial needs of the Australian grain industry.
There is the potential for Australian grain exports to be at a commercial disadvantage
to major competitors such as Canada, United States of America and Argentina who
have not ratified the BSP.
GTA would encourage the Australian grain industry, the broader agricultural sector and the
Australian Government to consider the implications of the following issues relating to the BSP:
1.
“What are the costs to ratification?” Australia must answer that question by a thorough
government lead review, conducted with involvement of the commercial sectors of the grain
industry.
Ratification will have major implications for Australia. The major issue being that Australia
would have to be complaint to the BSP within a “reasonable” time at a yet to be determined cost.
Currently the Australian grain industry is on the same footing as our major competitors,
particularly the United States and Canada. The Australian grain industry is only required to
meet COP/MOP-3 documentation requirements at the speed at which they are introduced by
importing governments and to date that has been a very slow speed.
However, if Australia ratifies the Protocol, then it is reasonable to assume that Australia’s
regulations would soon be in compliance with the Protocol and it follows that the Australian
grain industry must be compliance with Australian regulations. Therefore Australian grain
exports would no longer be on the same footing as exports from the United States, Canada or
Argentina.
2. Precautionary Principle (PP) (Article 10.6) This issue may have unintentional flow on
consequences with other agricultural and non agricultural polices such as quarantine. It is not a
science based approach and hence has potential ramifications for the operation of CODEX.
3. Australia would be signing a Protocol with key Articles, that will have substantial effect on trade,
but are yet to be defined/resolved and thus, the implications are unknown, i.e.
Documentation requirements Article 18.2 (a)
Standards
Article 18.3
Liability & Redress
Article 27
GTA reserves its position on the question of Australian ratification of the BSP until
completion and consideration of the outcome of Point 1 combined with further
consideration of the issues highlighted in Points 2 and 3.
Grain Trade Australia – 9 November 2009
Background
This discussion paper relates to grain destined for food, feed or processing, i.e. grain not for
intentional release into the environment.
The Cartagena Protocol on Biosafety, commonly called the Biosafety Protocol is an international
treaty governing the movement of living modified organisms (LMOs) resulting from modern
biotechnology from one country to another. It was adopted on 29 January 2000 as a supplementary
Protocol to the Convention on Biological Diversity and entered into force on 11 September 2003.
The Australian Government, as part of its preparation for the next BSP meeting in October 2010, will
review its current position to determine if it is still the most advantageous to Australia’s interests.
The major departments involved in this process will be:
Department of Foreign Affairs & Trade; and
Department of Agriculture, Forestry & Fisheries.
DFAT and DAFF will advise their respective Ministers regarding their recommendations which are
then taken to Cabinet for finalisation.
Australia is a Party to the Convention on Biological Diversity but is a Non Party to the BSP which is
also the case with Canada and Argentina. The United States is a Non Party to the Convention on
Biological Diversity. A list of countries who have ratified the BSP is attached at Appendix 1.
Countries who have ratified the BSP agree to be bound by the provisions of the BSP although there
are still aspects of the BSP yet to be determined.
The next meeting of the Conference of the Parties serving as the Meeting of the Parties to the
Cartagena Protocol on Biosafety (COP/MOP 5) will take place from 11 to 15 October 2010 in Nagoya,
Japan.
Australia (DFAT delegation) attends COP/MOP and has observer status. As such they are not able to
address the meetings directly or vote. Australia therefore has no direct input into the development of
the BSP and can only exert influence via countries who have ratified the BSP such as New Zealand
and other trade friendly countries.
The BSP requires that parties to the BSP are required to enact certain provisions of the BSP as a
condition of signing. This has the potential to place Australia at a disadvantage, if it was to become a
party, to other grain exporting countries who are not signatories and hence would have reduced
compliance costs/issues.
GTA is a member of the International Grain Trade Coalition (IGTC) which is an unincorporated
coalition of 22 national and international non-profit trade associations and councils involving more
than 8000 members operating in more than 80 countries that are involved in a high percentage of
the more than 300 million tonnes of grain traded each year from areas of food surpluses to areas of
food deficits.
The IGTC’s purpose is to convene significant expertise and representation to provide advice to
governments from a global perspective on the commercial requirements and economics of the
world’s food, feed and processing industries, including, but not limited to, implementation of the
Cartagena Protocol on Biosafety.
The IGTC recognizes its existence is based on the goal of avoiding disruptions in the international
trade of grain, oilseeds, pulses and derived products. To do so the IGTC endeavours to provide for
the establishment of policies to provide for a regulatory environment supportive of such
international trade.
Grain Trade Australia – 9 November 2009
Potential consequences of ratification
1
Opening comments
The BSP is a fait a compli so it’s not a case of arguing against its introduction. The focus of the BSP
is on movement of GM products across sovereign borders and therefore there are significant
implications for trade in GM grain globally. The international grain trade therefore has a substantial
interest in the direction and outcomes from BSP negotiations.
If Australia was to ratify, then:
1. Australia would be bound by the provisions of the BSP, irrespective of whether there are
provisions that are not in the interests of Australia. The BSP is not a pick and choose protocol –
it’s all or nothing.
2. There are still aspects of the BSP to be negotiated/finalised that will have substantial impacts
on the trade in grain. Australia would be signing up for provisions they would have to honour
without knowing exactly what they are or their implications.
3. Australia would be a target for other export orientated countries and special interest groups,
such as opponents to the introduction of GM technologies. These countries/groups would see
Australia as another signatory they could seek to influence.
4. The Australian delegation would need to recognise that they will at times feel very lonely as
they hold a trade facilitation line in negotiations against strong and determined opponents be
they Parties or substantial NGO’s.
2
Precautionary Principle – Article 10.6
This article espouses the “if you think you have a potential problem” then you, as a sovereign nation,
can take appropriate action in the absence of a science based decision making process. The Principle
as currently drafted has stronger language than the original Article in the overarching UN
Convention on Biological Diversity (1992), Article 15.
Australia in the past has demonstrated a cautious approach to the Precautionary Principle. Also this
approach has been rejected by Codex Alimentarius members in the recent Codex “Working
Principles for Risk Analysis for Food Safety”.
Considerations:
This issue may have unintentional flow on consequences for other agricultural policies such as
quarantine. It is not a science based approach and therefore has potential ramifications for the
operation of Codex.
3
General trade implications
The BSP places requirements on countries who have ratified to implement certain processes be they
import or export requirements. To date only Japan, Mexico, South Korea and the European Union
have implemented these requirements which by the nature of their trade are focussed on import
requirements.
At COP/MOP 5 in October 2010, countries that have ratified will be asked to report to the Meeting
on their experiences in dealing with the provisions of the BSP. Accordingly, it is expected that
countries who have ratified will increasingly adopt the provisions of the BSP to demonstrate
compliance.
If the Australian position was not changed, Australian exporters may still be required to comply with
the provisions of the BSP if so required by an importing country who is a signatory. Note that
industry does not have to be compliant to the Protocol, countries do. Industry must be compliant
with a country’s regulations. This means that industry must become compliant to the Protocol at the
speed at which countries introduce new regulations based on the Protocol’s requirements.
COP/MOP-3 in Curitiba, Brazil in 2006, following a long and rather bitter debate, finally
determined Article 18.2(a) shipping documentation requirements. Today, more than three years
later, very few countries have introduced new regulations to meet these requirements. Therefore
Grain Trade Australia – 9 November 2009
most LMO grain shipments today, other than those shipments to the EU, Mexico and South Korea,
do not meet these requirements.
FOR case:
Therefore, the case could be mounted that it would be better for Australia to ratify and be able to
encourage provisions that are the least disruptive to trade as possible. This position would also be
viewed very favourably by other grain exporting countries, especially Canada and the United States
of America, who would look to Australia as country that is sympathetic to export trade positions.
Currently, Non-Parties such as the United States, Canada, Argentina and Australia have little or no
voice within the Biosafety Protocol negotiations and to have Australia join Brazil and Paraguay as a
Party would dramatically strengthen the negotiating power of pro trade Parties at COP/MOP-5.
AGAINST case
A negative aspect is that ratification would mean that Australia would be required to implement the
requirements of the BSP with the resulting cost overheads due to the additional statutory regulatory
measures. The consequences that could flow may include the:
1. need to identify the type of certification/compliance controls that would be imposed by the
Government; and
2. costs, both in certification/compliance fees to a Government agency, presumably coming under
a revised AQIS and direct costs relating to increased administrative activities by exporters.
The costs identified in the preceding paragraph, could put Australia at an economic disadvantage to
its major grain export competitors, i.e. Canada, Argentina and the United States who would not have
to incur these compliance costs. Australian industry would have to become compliant with decisions
as they are made while industry in Non-Party countries would become compliant at the time
importing governments introduce domestic imports regulations. This issue may or may not have a
substantial financial impact on grain exports.
Considerations/requests
Government resources are required as follows:
Review process
GTA believes that an integral part of the review process undertaken
by the government must require Government resources to participate with GTA and other
like minded organisations to analyze the potential impact upon Australia’s grain industry of
key potential BSP decisions. This would require commercial sector organisations working
with the government to develop draft legislation/regulations that would come into effect
should Australia ratify the Protocol. The objective would be to identify the potential impact
to the grain industry and work with the government to minimize the impact to the
maximum extent possible and still be compliant with the Protocol. This process should not
be focused solely on canola exports but with the view for the potential commercialisation of
other crops.
If Australia was to ratify the Australian Government (with the support of the
commercial grain sector) must be prepared to:
a. engage in outreach extension with Parties to the BSP to gain support for Australian
commercially acceptable positions.
b. to participate with GTA in BSP expert committee meetings on key issues potentially
impacting Australia’s grain industry.
Grain Trade Australia – 9 November 2009
Key (unresolved) aspects of the BSP that relate to
trade in grain
As previously stated, there are outstanding issues relating to the BSP that will impact on the
commercial grain sector. The issues and applicable BSP Articles are:
1. Documentation requirements Article 18.2 (a)
2. Standards (definition of)
Article 18.3
3. Liability & Redress
Article 27
1
Documentation requirements
Article 18.2 (a)
This Article details the documentation requirements that identify the LMO’s present in a shipment.
The central issue is whether exporters need to declare that the shipment:
1. CONTAINS LMO’s – this is categorical declaration that the shipment contains identifiable
LMO’s. This type of documentary regime is being advocated by anti GM countries and
NGO’s such as Greenpeace. This documentary regime would be prohibitively expensive as it
would require testing for all GM events that could possibly be in the shipment. This would
also include “legacy” events, i.e. events that are no longer commercially available. As they
are not commercially available, the technology provider may let their approvals lapse in
either the country of export or import or both.
2. MAY CONTAIN LMOs – this declaration is a pronouncement that the shipment may
contain LMOs and such LMO’s are identified. This regime is favoured by the grain trade as
it is able to be accommodated within existing documentation and compliance regimes.
Further issue is addressed in the IGTC Notice to Trade No 8, released on 15 June 2009. The
following commentary is derived from this Notice.
The following information ia a reminder to the global grain industry of the documentation
requirments for the transboundary movement of living modified organisms (LMOs) for food,
feed or for processing that were taken at COP/MOP-3 in Curitiba, Brazil in 2006. Parties to the
Cartagena Protocol on Biosafety must report on how they are implementing Article 18.2(a)
documentation requirements at COP/MOP-5 in Japan in October 2010.
As a result many countries are expected to implement these recommendations over the coming
months. While industry does not need to be compliant with COP/MOP-3 decisions, the 156
countries that have ratified the Protocol must be compliant.
The trade should not change current documentation until advised by Parties or requested by
importers following discussions with their respective governments. The following is not
intended as legal advice or opinion. However, if the biosafety laws or regulations in either
exporting or importing countries are changed or created, those entities that are impacted by
the Biosafety Protocol (those that are engaged in the international movement of products that
may contain living modified organisms derived from modern biotechnology) are strongly
recommended to contact their legal counsel and regulatory affairs representatives for further
information in order to make necessary decisions concerning the matters in this overview.
The following documentation decisions pertaining to the transboundary movement of LMOs
were taken at COP/MOP-3 and are to be reported on at COP/MOP-5 next year. This
information is presented to the trade to facilitate discussions with your respective governments
on the decisions identified below to determine whether or not your government will be
changing or establishing new biosafety laws/regulations:
•
All transboundary shipments of commodities that may contain LMOs (currently
maize/corn, soybeans and canola are produced with LMOs and therefore may contain
LMOs) must carry the following documentation:
o That the LMOs that may be contained in the commodity are not intended for
intentional introduction into the environment.
o The common, scientific and, where available, commercial names of the LMOs.
o The transformation event code of the LMOs or, where available, its unique
identifier code. (This information may be found on the Biosafety Clearing House
Grain Trade Australia – 9 November 2009
•
•
•
•
•
at http://bch.cbd.int/database/organisms/)
o Contact point for further information (e.g. importer/exporter)
o Internet address of the Biosafety Clearing House (http://bch.cbd.int/)
In cases where the identity of the LMOs is known through means such as identity
preservation systems, the documentation should state that the commodity in the
shipment contains LMOs that are intended for direct use as food or feed, or for
processing.
In cases where the identity of the LMOs is not known through means such as identity
preservation systems, the documentation should state that the commodity in the
shipment may contain one or more LMOs that are intended for direct use as food or
feed, or for processing (meaning bulk, break bulk or container shipments of corn,
soybeans and canola).
Acknowledges that the expression may contain does not require a listing of LMOs of
species other than those that constitute the mixture of the commodity shipped.
It is very important that the above information is included on the commercial invoice
unless instructed otherwise by the importing government. Placing of this information on
other shipping documentation could cause problems.
Transboundary movements of LMOs between Parties (156 countries that have ratified
the Protocol) and non-Parties (countries that have not ratified the Protocol such as
Argentina, Australia, Canada and the United States) shall be consistent with the objective
of the Protocol, and the specific requirements set out above do not apply to such
movements.
Conclusions:
1. Industry should not provide detailed documentation requirements identified above until
requested by governments. (Supplying detailed documentation requirements on shipping
documentation may cause unnecessary delays if government export/import officials do
not expect the information).
2. Rather than placing the general information descibed above on the invoice, industry
should determine the specific wording desired by the countries involved in the
transaction. For example, the specific wording to be placed on the invoice required by
European Union countries is different than Mexican requirments.
3. As Parties may enter into arrangements with Parties or non-Parties containing
documentation requirements different than identified above (such as are contained
within the Mexico / United States / Canada Trilateral Arrrangement), industry should
not provide detailed documentation requirements until the requirements have been
agreed upon bilaterally or regionally.
4. Countries may use the COP/MOP-3 decisions to establish or change their biosafety
regulations. Regulations may differ between countries. Industry should have discussions
with their respective governments to determine if changes are being contemplated to
their biosafety laws governing the export/import of LMOs. It is important for both
exporters and importers to understand the biosafety documentation requirements of the
countries to which shipments are being made in order to avoid costly delays.
2
Standards
Article 18.3
“The Conference to the Parties serving as the meeting of the Parties to this Protocol shall consider
the need for and modalities of developing standards with regard to identification, handling,
packaging and transport practices, in consultation with other relevant international bodies.”
The issue in relation to this article is the reference to “standards”. The reference is vague and does
not hint at the direction this Article may take. All global commercial activity relating to the
export/import of grain is totally reliant on existing and well understood grain standards. Major
exporting countries have long established, well understood (by exporters and importers) and most
importantly globally respected grain standards.
Grain Trade Australia – 9 November 2009
Australia
Canada
United States
Organisation
Grain Trade Australia
Australian Oilseeds Federation
Pulse Australia
Canada Grain Commission
United States Department of Agriculture
Implications for the grain trade
The grain trade would be concerned that a push for the introduction of new grain standards would:
cause confusion to the existing market place resulting in a loss of confidence in contractual
obligations.
be expensive to develop, let alone the long term administrative considerations;
replicate Codex and ISO that already develop international standards; and
would not be able to consider regional/national variances.
3
Liability & Redress
Article 27
To be somewhat colloquial “whose gonna pay” if there is damage to biodiversity? Obviously a
central issue of the BSP.
This issue is currently being negotiated via a Friends of the Chair process which will meet in
February 2010 in Kuala Lumpur with the intention to develop a Supplementary Protocol on
Liability & Redress. The major issue currently being debated is the definition of “operator”, as the
current documentation identifies the “operator” as the organisation responsible for the L & R.
Under Article 18.2(a) of the Protocol living modified grains are being transported for food, feed or
for processing and are not to be intentionally introduced into the environment. Members of the
grain trade are transporting LMO products that have been authorized by exporting countries for the
production of grain for food, feed or for processing and by the importing countries for import for
food, feed or for processing.
• Members of the grain trade from producers through handlers / transporters/
exporters/importers/ processors are simply performing functions intrinsic to trade and have
neither performed risk assessments nor have any knowledge of the inherent qualities of the
traits introduced into the plant materials;
• Members of the grain trade rely on the risk assessments performed by governments and the
appropriate authorizations granted by governments;
• If damage to biodiversity occurs because members of the grain industry intentionally
exported/imported unauthorized material or intentionally sold material authorized only for
food, feed or for processing as seed, or intentionally seeded unauthorized material then they
should be liable; but
• if damage to biodiversity is caused by the inherent nature of the trait introduced into the
seed, then the liability should be directed to the technology developers who developed the
trait.
Implications for the grain trade
If members of the grain trade were held for partial or full responsibility for L& R, this would be a
major decision point as to whether to engage in some or any GM trade depending on the grain
traders assessment of the risks involved in regards to the commodity, the event and the country of
import. At the very least it would significantly inhibit trade.
Grain Trade Australia – 9 November 2009
Appendix 1
157 instruments of ratification or accession have been deposited with the UN Secretary-General from the
following Parties to the Convention on Biological Diversity.
Africa (AFR): Algeria, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African
Republic, Chad, Comoros, Congo, Democratic Republic of the Congo, Djibouti, Egypt, Eritrea, Ethiopia,
Gabon, Gambia, Ghana, Guinea, Kenya, Lesotho, Liberia, Libyan Arab Jamahiriya, Madagascar, Malawi,
Mali, Mauritania, Mauritius, Mozambique, Namibia, Niger, Nigeria, Rwanda, Senegal, Seychelles, South
Africa, Sudan, Swaziland, Togo, Tunisia, Uganda, United Republic of Tanzania, Zambia, Zimbabwe (45
Countries)
Asia and Pacific (AP): Bangladesh, Bhutan, Cambodia, China, Cyprus, Democratic People's Republic of
Korea, Fiji, India, Indonesia, Iran (Islamic Republic of), Japan, Jordan, Kazakhstan, Kiribati, Kyrgyzstan,
Lao People's Democratic Republic, Malaysia, Maldives, Marshall Islands, Mongolia, Myanmar, Nauru, Niue,
Oman, Pakistan, Palau, Papua New Guinea, Philippines, Qatar, Republic of Korea, Samoa, Solomon Islands,
Saudi Arabia, Sri Lanka, Syrian Arab Republic, Tajikistan, Thailand, Tonga, Turkmenistan, Viet Nam,
Yemen (41 Countries)
Central and Eastern Europe (CEE): Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina,
Bulgaria, Croatia, Czech Republic, Estonia, Georgia, Hungary, Latvia, Lithuania, Montenegro, Poland,
Republic of Moldova, Romania, Serbia, Slovakia, Slovenia, The former Yugoslav Republic of Macedonia,
Ukraine (22 Countries)
Latin America and Caribbean (GRULAC): Antigua and Barbuda, Bahamas, Barbados, Belize, Bolivia,
Brazil, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada,
Guatemala, Guyana, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint
Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, Venezuela (28 Countries)
Western Europe and Other Groups (WEOG): Austria, Belgium, Denmark, European Community,
Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, Netherlands, New Zealand, Norway,
Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom of Great Britain and Northern Ireland (21
Countries)
Grain Trade Australia – 9 November 2009