Online discussion 2015 - Discussion Groups

Welcome to the online discussions on socio-economic considerations. As described on the information page regarding this forum, discussions on the 5 issues identified in paragraph  5 (b) of decision BS-VII/13 will be moderated by members of the AHTEG on socio-economic considerations. I thank them all in advance for contributing their time and expertise to these discussions.  This week’s discussions on international obligations that may be relevant to socio-economic considerations, will be moderated by Mr. Andreas Heissenberger. Comments may be posted until next Monday, 6 April, at 1:00pm GMT.

I look forward to your lively discussions!

Kind regards,

Paola

Dear Participants of the online discussions on socio-economic considerations,

Welcome to the first round of discussions of the online discussion implementing the Decision BS VII/13 of COP/MOP7.

It is an honour and pleasure for me to have been selected as moderator for the first week of our discussions.

As mentioned in the information presented by the Secretariat, the first round of our discussion will focus on “international obligations that may be relevant to socio-economic considerations”. As you will be aware we have discussed this issue already twice in online discussions in 2011 and 2013.
In order not to repeat the discussions we already had, I would kindly ask you to keep the results of these discussions in mind (a link to protocols is provided in the guiding questions). A list of international agreements which may be relevant in the context of socio economic considerations, and which have been identified by the participants to the previous discussions, has also been presented by the Secretariat. During these first two rounds we have already collected quite a number of points of view and information of a more general nature.

However, as this issue is of great relevance to most of the Parties, I believe that it is important to continue the discussion but to focus  more on the practical aspects and provide more detailed information.

The second guiding question as presented above brings us to the core of this weeks discussion: How might the agreements listed below and the obligations they contain be relevant to Parties taking socio-economic considerations into account in their decision-making on LMOs pursuant to Article 26 of the Protocol?
In order to move forward I would appreciate it very much if we could stick in our discussion as close as possible to this question, and do repeat the more general discussions we had on this issue already.

In addition to this, the first question is aimed to get additional information on other international (and regional) agreements. In referring to this question I would kindly ask you to explain accurately, why you think that the respective agreement, you want to add to the list, is relevant in the context of Article 26 of the protocol, and also its relevance in decision making.


With that I am looking forward to a fruitful discussion!

Best Regards
Andreas

As evidenced by the list of relevant international agreements, many international agreements will be relevant to socio-economic assessments, with some agreements being relevant to many SECs and many SECs being addressed by the same agreement. The lack of hierarchy amongst international laws and lack of a centralized court/dispute resolution body adds to the complexity.
      The Vienna Convention on the Law of Treaties 1969 is an important starting point for reconciliation of these different obligations. In brief - it provides that where treaties concern the same subject matter, one treaty may specify that it is subject to or not incompatible with another treaty. If there is no such provision, the earlier treaty applies but only in so far as it is compatible with the terms of the later treaty; if there is conflict, the later treaty prevails. But adding to the complexity, these 'rules' apply only if the two treaties being considered have the same parties.
      Participants are reminded of the ambiguity of statements in the Protocol's Preamble regarding these matters.

Dr Ludlow's comment is importantly qualified by the concept of "where treaties concern the same subject matter".  The WTO agreements and the Protocol arguably do NOT "concern the same subject matter", snce the former is about reducing barriers to trade and non-discrimination in trade measures and the latter is about conserving biodiversity and protecting human health.

Even if one were to conclude that they do,  as another colleague has noted, the SPS contains the Precautionary Principle as does the Protocol. So a lack of scientific information is not a bar (ie, not a restraint of trade)  to a Party refusing an importation permit.

Yes, under SPS research should be done on the subject. Of course, when most of the important relevant information is held as "proprietary" by the corporation producing the LMO, the country of import needs to require its release in order to do a proper assessment.  If the corportaion refuses, it should be estopped from later claiming that the party is somehow violating the SPS mandate. 

And I appreciate Dr Falck-Zepeda's reference to the TBT agreements, but it is not clear that they are relevant to this discussion: " The provisions of this Agreement [TBT] do not apply to sanitary and phytosanitary measures as defined in Annex A of the Agreement on the Application of Sanitary and Phytosanitary Measures." (Art 1.5)  And plant and animal health (biodiversity health) is exactly what SPS focuses on.

Aarhus convention: « Convention on access to information, public participation in decision-making and access to justice in environmental matters » :
Link : http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf

The Convention is about the rights of every person to have access to “environmental information” held by public authorities in order to make informed “environmental choice” and to ensure sustainable adequate environment for health and well-being [see article 2(3a) and Article 5(8)].

The public authorities have the obligation to actively disseminate the information about “environmental elements”, and the information to be provided is relative to the state of the environment, policies or measures taken, or the state of human health and safety where this can be affected by the state of the environment (access to information). This applies also to SEC in relation to GMO dissemination since they are expressly cited among the “environmental elements” [Article 2(3a)].

Easy access to information is meant to foster public participation in the environment decision-making process via formal or informal processes (participation in decision-making). Such participation will in turn contribute to the clarification of SEC while forcing stakeholders to take into account socio-economic preoccupations, among others, of target or indigenous populations regarding the preservation of their culture and environment, if deemed to be be adversely affected by an uncontrolled dissemination of a given GMO.

Pursuant to this convention, the public affected by official environment-decisions has the right to challenge public decisions that have been made without regard to the two previous elements of the Convention (access to justice). Decisions on the dissemination of GMOs would have an unacceptable socio-economic impact on specific populations that may then use their right to access to justice according to the Aarhus convention providing that the country is a Party to it.

As mentioned by Dr. Ludlow, according the terms of the Vienna Convention, the CPS has to comply with the World Trade Organization (WTO), particularly the Sanitary and Phyto-Sanitary (SPS) Agreement. The fundamental operating principle of the SPS Agreement is that any domestic regulation enacted on plants or animals has to be based on scientific proof of risk. This means that if allowing a specific plant (a GM crop, for example) into a country can scientifically be shown to impact human or animal health or the environment, then regulations preventing import are compliant with the SPS Agreement and thus the WTO.

However, if scientific proof cannot be offered that documents the increased risk from allowing the GM crop to be imported, produced and consumed, then it is a trade barrier and has to be removed or the country will expect to face trade retaliation.

By its very definition the Aarhus Convention is about public participation, therefore any resulting regulatory action that would hinder the approval of a GM crop that is not science-based, would be viewed as violating that countries WTO obligations.

Article 26.1 of the CPS is explicitly clear when it states that nations may take SECs into consideration provided they are "consistent with their international obligations". Given this language, the drafters of the CPB clearly recognize the supremacy of the WTO and the SPS Agreement to the CPB and the use of SECs in biosafety regulations.

The first step for countries considering incorporating SECs into a biosafety framework is to determine if the proposed SEC complies with the WTO. If it does not, then it would violate that countries international obligations and be a barrier to trade.

Unfortunately, Dr Smyth does not take into account that Art 26 on SEC is not an independent-standing provision.  It comes into play only IF a Party is doing an assessment as the basis for its decision.  It says that, in the range of impacts of the decision under consideration, SECs may be included as well as other impacts on biodiversity and human health.

Assuming that the analysis of those impact chains dealing with SECs is scientifically sound (social sciences, not only harder natural sciences), there is absolutely no conflict between the Protocol and the WTO SPS Agreement. This is the bottom line of the WTO Dispute Resolution in the US/EU GE case (which held that the EU did not use a scientific basis for its policies).

Since the proponents of a LMO are always--directly or indirectly--arguing that the LMO would be profitable for their business, and since the WTO is based on economic considerations, it is inconsistent to argue that non-ecological concerns are somehow outside the scope of the assessment of the LMO recognized in the Protocol. The Party is considering ALL costs/ risks/ and benefits when deciding, (including, BTW, on whom they fall since all citizens and groups are not affected equally).  Indeed, the SPS provisions are recognition that impacts other than profitability are legitimate factors for a State to take into account when doing an assessment; they are NOT limitations on the sovereignty of a nation to exercise its responsibilities to care and protect for the well-being of its people and its natural environment.

See “SANITARY AND PHYTOSANITARY MEASURES: INTRODUCTION
Understanding the WTO Agreement on Sanitary and Phytosanitary Measures,” https://www.wto.org/english/tratop_e/sps_e/spsund_e.htm

"members may use measures which result in higher standards if there is scientific justification. They can also set higher standards based on appropriate assessment of risks so long as the approach is consistent, not arbitrary"
. . . .
"The basic aim of the SPS Agreement is to maintain the sovereign right of any government to provide the level of health protection it deems appropriate, but to ensure that these sovereign rights are not misused for protectionist purposes and do not result in unnecessary barriers to international trade.  "

The goals of SPS "of ensuring food safety and animal and plant health" are clearly consistent with the goals of the Protocol to protect biodiversity (the health of plants and animals within vibrant ecosystems), taking also into account human health. The only thing that SPS requires is that:
"Measures to ensure food safety and to protect the health of animals and plants should be based as far as possible on the analysis and assessment of objective and accurate scientific data. "

So SEC considerations can be totally compatible with the SPS.

Dr. Bereano is correct in saying that SEC factors can be compatible with the SPS Agreement, provided they can be scientifically quantified through a risk analysis. To be science-based, a risk assessment has to quantify the increase in risk to human or animal health or the environment. The SPS Agreement defines risk assessment in Article 5.3 (Annex A) as: 
   "Risk assessment — The evaluation of the likelihood of entry,  establishment or spread of a pest or disease within the territory of an importing Member according to the sanitary or phytosanitary measures which might be applied, and of the associated potential biological and economic consequences; or the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs."

Science-based risk assessments can be used to justify trade barriers. For example, most countries will not allow the import of live cattle that contain mad cow disease as if the animal was allowed to be imported, it would cost substantial economic losses to the countries beef industry. In this example, science-based risk assessment demonstrates that there is an increase in risk to human and animal health if this animal were allowed to enter the country so a trade barrier can be enacted that complies with the SPS Agreement. Social concerns are not a justifiable risk as changes in labour, trade effects or consumer acceptance (for example) have no correlation to measuring risk of human or animal health or the environment.

As Dr. Bereano correctly identifies, the EU lost their case regarding the EU GM crop moratorium because there was no scientific basis to this policy. The same will hold true for all SEC policies that are proposed to be implemented that cannot demonstrate via quantifiable science-based evidence of an increase in risk to human and animal health or the environment.

Unless a SEC factor can comply with the SPS definition of risk above, the resulting biosafety regulation would result in that country violating its international obligations to the WTO.

I appreciate Dr Smyth's agreeing with my posting, but he takes his argument too far when he says "Dr. Bereano is correct in saying that SEC factors can be compatible with the SPS Agreement, provided they can be scientifically quantified through a risk analysis. To be science-based, a risk assessment has to quantify the increase in risk to human or animal health or the environment. "

While a "scientific" assessment should embody as much "quantified" data as possible, it may often have to use qualitative data if that is all that is available. Smyth equates the two terms, scientific and quantified, which is not justified. That is why the Protocol (and the SPS) specifically include the Precautionary Principle--which is a very early stage assessment, of course and often is invoked in the absence of complete numerical information.  In addition, even after all the obtainable quantified data is amassed, there still may be areas where numbers are unknown; precaution allows the decision-maker to delay acceptance of the risk based on the universal folk-wisdom that "it is better to be safe than sorry."

Why is this important?  Because there is little or no data about many important aspects of the biodiversity/health consequences of using LMOs--eg, what are the speicies in the reciving environment, how would they be affected over long periods of time, would any of these effects present a risk to human health especially of most vulnerable populations such as children/elderly/immune suppred, etc.

And this is also very true about SECs in the assessments of LMOs.  Even in economics, the "hardest" of the social sciences, there is strong controversy over the validity of competing models.  Real impacts get even less quantifiable as regards human behaviors ("social").

I don't believe the word "quantifiable” appears in the operative provisions of the Protocol; at least my computer’s search function could not find it. The same for “quantify.”  So let’s not try to add restrictive provisions to the Protocol at this late date! To “consider” social and economic considerations (eg, impact on farmers’ incomes, effect on driving rural people off the land, etc, etc) does not demand quantification.

As is stated in Article 26.1 of the CPB, countries may consider SECs as they relate to "conservation and sustainable use of biological diversity...". Consistent with this interpretation is that any evaluation conducted on biodiversity impacts must quantify how biodiversity is impacted. One technology might have a substantial impact, the next technology minimal. Without the quantification of impacts, policy makers are left with no means of making an informed decision about how biodiversity is being impacted. Therefore it is consistent with the language of the Protocol that any SEC being considered for a biosafety risk assessment have a proven and reliable methodology that results in a quantifiable outcome.

Additionally, only SECs that have strict relation to human or animal health or the environment are capable consideration within a SEC assessment. Topics such as those suggested by Dr. Bereano like farmer incomes or migration patterns are in no way connected to biodiversity, let alone human or animal health. Including items such as those suggested by Dr. Bereano would undoubtedly violate a countries WTO obligations.

Dear Colleagues--

I understand the desire to move from a concentration on the WTO/SPS, but these comments in regard to Dr Smyth's posting are applicable to all considerations of SEC.

Article 26 specifically legitimizes risk assessors considering a BROAD range of impacts from the proposed introduction of LMOs.  Indeed, as I have already mentioned, since it is fiscal concerns that motivate the proponents of LMOs (and underlie the WTO/SPS agreements), it is absurd to suggest that fiscal considerations should not be among the impacts considered.

Now doing impact analysis is something I have taught and researched for many decades. But Dr Smyth--who, according to his webpage, "holds the Industry Funded Research Chair in Agri-Food Innovation at the University of Saskatchewan"--is presumably not so familiar with what such assessment entails. So let me just note that to consider the impacts of an action means to look not just at the DIRECT consequences but also to consider the effects of those impacts as well (i.e., INDIRECT impacts).  In addition, it is not just to look at the benefits/costs/risks but at the parties which bear them, since they are differentially DISTRIBUTED and this makes all such decisions "political" or social ones.  Yes, I am sorry to say that these are not solely "scientific' or "quantifiable" decisions.  "Considerations" includes important real world factors which may not be expressible in numbers.

For example, Monsanto's announcement recently that it is giving USD 4 million  (a paltry sum, really) to efforts to protect the Monarch butterfly (from the effects of widespread use of glyphosate applied to its Roundup Ready crops, although the company would not state this motivation), illustrates an "secondary or higher order impact" (as the literature in my field would put it) of using LMOs.

I apologize that the examples I used in my earlier posting--which I thought were obvious as possible "consequences" of LMO introduction --were scoffed at by Dr Smyth. But if we think of WHY we want to protect biodiversity (and have created an international Protocol to effectuate such protection), one of the many arguments is economic--because biodiversity supports the livelihood of so many people. (Yes, there are many other sorts of arguments--aesthetic, spiritual, ecological, etc). Thus, one possible "consideration" if an ecosystem is disrupted is that farmers' incomes maybe lost and that rural communities depending on an element of biodiversity which is being decimated may have to migrate.  Indeed, we have examples of such phenomena.

The WTO does not prevent a State from protecting its people from such calamities.  And the Protocol allows, in Art 26, States taking into account the possibility that such impacts may occur.

Dear Colleagues:
Greetings! I agree with Ms. Erica Mattos’s question that “we need to  have a clear understanding of to what extent would a protocol under the auspices of the CBD be fully subjected to  WTO Agreements and procedures”.  Although there is no consensus on the SE impacts to be considered on SE considerations, the approach would nevertheless differ according to the bio diversity and the dependence on agriculture for livelihoods. Obviously not all the factors can be readily quantifiable and the ‘logical social factors’ need to be assessed before weighing the benefits of LMO based on the quantifiable economic considerations.  As LMOs are arrived at after considerable amount of research and resources, the economic interest to derive the maximum from the invention in the short run, should not lead to  information on bio and human safety  to the larger public is compromised. The international treaty on sharing the information needs to be fully respected and the information should be diffused through appropriate channels.  Countries that have considerable dependency on a  particular crop or plant variety for which a inadequate information on a LMO, would  resist  introduction of  LMO until such information is made available. Such cases cannot be brought under the clause of barriers to trade. 
Regards
lalitha

The provision of a documented scientific proof of the extent of risk that the use or dissemination a GMO would induce to human or animal health, or the environment is required whenever possible. In the case of transboundary movements of GMOs, such proof is normally provided with the first notification for the exportation/importation of a GMO on a case-by-case basis, according to the Cartagena Protocol. 

The question is: Would the risk assessment provided in the notification be valid for the evaluation of the socio-economic impact of GMOs, e.g. in the case of ethnic groups and specific localities with particular ecosystems? Or should another risk assessment be specifically conducted for such cases to meet socio-economic considerations? I believe that this would be particularly daunting to conduct in the case of health issues for ethnic groups.  

Further, it may not always be possible to provide sound scientific proofs of the risk associated with the use, production or dissemination of a GMO, the alternative to no face pursuits in the dispute settlement body (DSB) of the WTO for TBT violation is to use the "Precautionary principle, PP" (SPS article 5.7); yet, the PP is assorted with specific provisions to limit abusive usage including a limited period of embargo (a moratorium) waiting for more convincing scientific proofs to be generated, among others (proportionality, non-discrimination, non-arbitrary, etc.)

Therefore, it would be appropriate to appreciate whether or not the same rigorous risk assessment procedure is required to take into account the impact of a GMO on human and animal health, and the environment as part the socio-economic considerations, and if not, what would be the alternative?

The three preambular paragraphs of the Cartagena Protocol relating to the relationship between the Protocol and other international agreements were very carefully balanced. Nothing in the Protocol text suggests that “the drafters of the CPB clearly recognize the supremacy of the WTO and the SPS Agreement to the CPB and the use of SECs in biosafety regulations.”

In fact, the eleventh preambular paragraph of the Protocol, “Understanding that the above recital is not intended to subordinate this Protocol to other international agreements” clearly seeks to counterbalance any implication of the preceding preambular paragraph (“Emphasizing that this Protocol shall not be interpreted as implying a change in the rights of obligation of a Party under any existing international agreements”) that the WTO and other existing agreements would necessarily prevail in the case of a conflict.

See "An Explanatory Guide to the Cartagena Protocol on Biosafety". IUCN Environmental Policy and Law Paper No. 46.

SPS, TBT, ITPGRFA or some national regulations as Protection of Plant Varieties and Protection of Farmers Rights Act (PPVFRA) in India have some common issues with CBD/ CPB. But each agreement has its own niche without any conflict (as explained by Dr Bereano). Moreover there is no place of supermacy of one over the other. Rather these are complimentary to each other. Following are some arguments in support of this;
1. Art 26 of CPB to be read with Art 1, there is exclusivity of purpose. SECs under CPB are more to compliment SPS and TBT with focus on research, capacity building and policy development
2. SPS and TBT are for trade, once product is traded, only these apply for measures
3. SPS is silent on 'environment', thus responsibility under CPB is more that other agreements
4. TBT speaks about 'environment' but its more concern with technical regulations, standards and procedures. The issue of 'Like product', as explained by my friend Dr Jose Falck-Zepeda would still be applicable for LMOs as per TBT provisions only. TBT would also cover products beyond 'sanitary' and 'phytosanitary' such as LMO vaccines
Dr SK Soam, NAARM, Hyderabad, India

The role and applicability of the Preamble to international treaties and agreements is a subject that has been the focus of much legal debate. The result of these debates is there is agreement with the position put forth by the International Union for Conservation of Nature, which states:
"Under general rules of treaty interpretation the preamble is not considered to be part of the legally binding or “operative” text of the agreement. Instead the preamble forms part of the “context” in which the agreement's obligations must be interpreted. It often recalls and refers to any related international agreements that may have provided the mandate for the negotiations or that the negotiators felt were in other ways relevant to the agreement."

The conclusion is that the Preamble to the Protocol has no bearing on the actual Articles of agreement.

Clearly, the drafters of the CPB intended the CPB to be compliant to the WTO as the lack of a dispute settlement mechanism within the CPB precipitates this. The CPB suggests that in the event of a dispute between two members, negotiation be used and failing this to use the International Court of Justice. The problem with this is that in the post-WWII rebuilding process, the GATT was established to address international trade issues, meaning that the ICJ would not be the international body to resolve a trade dispute.

The fact that the WTO has a binding dispute settlement mechanism (DSM) where countries that do not feel that the justification for a trade barrier is valid can complain and have their complaint adjudicated. The WTO DSM is binding: if a country does not comply with a dispute-panel ruling, then the WTO can authorize the use of trade sanctions by the country suffering the economic loss arising from the trade barrier. The fact that the Protocol has no capacity to manage disputes is further evidence that the drafters of the Protocol fully intended the WTO to be the international body arbiter for the CPB, therefore meaning that any SECs intended for inclusion in biosafety regulations have to be compliant with the science-based risk assessment allowed for through the SPS Agreement. Should a SEC fail to comply, it would be viewed as a trade barrier.

In my view while the international law dimensions in SEC are important we need to understand that as implementation of treaties undergo changes on account of case law, changes in views on goals and means to achieve them the scope for complementary and conflict between Article 26 of CPB and other treaties/conventions should be understood. As CPB is a Protocol under CBD clarity in relationship between CBD and other treaties/conventions particularly the WTO Agreements is important. We have to take into account the evolving regime complexes also in this. SEC can be considered as a trade barrier but there are no easy answers as what is meant by 'science based risk assessment' is a hotly disputed issue. Similarly interpreting Article XX is also an contentious issue and the question is whether the measure is commensurate with the stated objective or is it a  discriminatory measure in disguise. I hope that in the coming days the discussions will throw more light on some of the issues raised.
krishna ravi srinivas
The views expressed need not necessarily be construed as views of RIS

Dear Specialists,

The ongoing discussion raised some doubts I kindly request to be clarified.

The first question is:
In what extent would a Protocol under the auspices of the CBD (an environmental Convention) be fully subjected to WTO Agreements and procedures? Is that a common understanding? Does it really exist, such a hierarchy between the SPS Agreement and CPB? Would it be accurate to affirm that the absence of a dispute settlement mechanism within CBD implies that CPB would adopt the WTO structure, rules and procedures?

The second question:
Bearing in mind the fact that some colleagues are affirming that the justification adopted by a country must be quantifiable, I would like to understand how this assertion correlates with the objective (art. 1st) of the CPB itself, which states that:

“In accordance with the PRECAUTIONARY APPROACH contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements.”

As well as with the fact that the SPS Agreement itself adopts the precautionary approach in its paragraph 5.7.

Many thanks in advance,

Erika

About your second question I don’t see any problem when colleagues said that is important to quantify a decision. I really don’t believe that it is necessary because countries have sovereignty above them on genetic resource (CBD) and can take any decision to avoid damage on this resources. So if a country based on a cultural approach decide not to produce or import a GMO other country can’t disagree. But there are many away to with solid scientific based approach to quantify socioeconomic impacts. Social sciences and economic sciences have statistical analyses and quantifiable methodologies and are possible to evaluate many aspects. As some example we can quantify relationship between  gmo use and genetic erosion, gmo technologies and the concentration of seed value chain, low level presence and international trade impact. There are just some example of SC impacts that are easy quantifiable.

I am pleased to attach the following publication from Third World Network, ‘Socio-economic considerations in GMO decision-making: International agreements in context’. It is also available online at http://www.biosafety-info.net/file_dir/100460222543b716ea9409.pdf

We have undertaken a legal analysis of the relevant WTO provisions and case law relevant to the application of socio-economic considerations. We consider the Marrakesh Agreement; the GATT (in particular Article XX(a), XX(b) and XX(g)); the SPS Agreement; and the TBT Agreement. We conclude that “there is room for applying socio-economic considerations on the basis of the existing provisions of those [abovementioned] texts.” Four different types of measures have been identified as the most relevant in the field of LMOs: measures related to social intrinsic values, health-related socio-economic measures, economic-related measures and socio-economic measures related to environmental protection.

In addition, an analysis of the Codex Alimentarius Commission, OIE and IPPC, international standard-setting bodies identified in the SPS Agreement shows that, in principle, the door is open in those bodies for a growing incorporation of socio-economic considerations into their risk analysis processes.

Importantly, we also analyzed international obligations not related to trade, e.g. as contained in human rights law, in the field of agriculture and biodiversity. In particular, we looked at the International Covenant on Economic, Social and Cultural Rights; ILO Convention No.169; the International Treaty on Plant Genetic Resources for Food and Agriculture; the CBD; and the Aarhus Convention. These legally-binding treaties contain obligations of a socio-economic nature that should be taken into account (inter alia related to the fulfillment of the right to food, the right to work, the right to the enjoyment of the highest attainable standard of health, indigenous peoples’ rights and farmers’ rights).

The above is only a brief summary of the document and we would like to put the document on the table as our contribution to this topic.

Kind regards,
Lim Li Ching
Third World Network

Dear colleagues,

additional to the mentioned conventions and agreements that have tangency to the SEC of LMOs, I would also suggest to consider the followings:

Convention on Climate Change
Convention to Combat Desertification
International Covenant on Economic, Social and Cultural Rights
World Health Organization
World Trade Organization
Intellectual Property Rights Organization
Convention on the Organisation for Economic Co-operation and Development
Convention on Fishing and Conservation of the Living Resources of the High Seas
Food and Agriculture Organization 
Regional conventions:
Convention on the conservation of European wildlife and natural habitats (Bern Convention)
Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention).

Some of the listed conventions brings considerations to conservation of biodiversity, landscapes, ecosystems, ecosystem services issues that have as social and also economic values.

Kind regards,
Angela
MD

Dear friends and colleagues
In the following few lines, I try to highlight the articles of other relevant legally binding treaties/ agreements including socioeconomic considerations that may be taken into account when implementing Article 26.1
- International Convention concerning Indigenous and Tribal Peoples in Independent. (ILO C169): Article 14.1 and Article 15.3
- Covenant on Economic, Social and Cultural Rights (ICESCR): Article 7, Article 11 and Article 12
- International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA): Article 5, Article 6(1), Article 9(2) and Article 9(3)
- The World Trade Organization (WTO) General Agreement on Tariffs and Trade (GATT) 1994: Article XX and Article XXXVI
- The World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS): Annex A 1

It is also important to mention that socio-economic considerations within the Protocol are not restricted to Article 26. One of the most important socio-economic issues addressed in the Protocol is explicitly stated in all the relevant provisions of the CPB, particularly its Article 1 (Objective) and Article 4 (Scope) which emphasize the need to take into account the risks to human health when considering the possible adverse effects of LMOs. The issue of public health in itself has a strong socio-economic dimension.
Warm regards,
O.A.El-Kawy

Dear friends and colleagues
I have been following the discussion on the issue of the relationship between the trade related agreements and the Cartagena protocol and wanted to highlight the following facts:
1. The CPB, as any other protocol, is related to its parent treaty, the CBD, through substantive, procedural, and institutional links; accordingly, it must comply with the Convention’s provisions when implemented. Moreover, Parties to the Protocol have to also be Parties to the CBD (Article 32 of the CBD). Thus, the CPB cannot be read separately from the CBD, but in conjunction with each other since the Protocol implements the Convention.
2.  Article 22 of the CBD establishes the Relationship with Other International Conventions/agreements and the language it uses is very clear in this regards “The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.”
3. The preamblar text of the protocol also emphasizes that trade and environment agreements should be mutually supportive with a view to achieving sustainable development and highlights that this recital is not intended to subordinate this Protocol to other international agreements,
4. All trade related agreements establish an ultimate and crosscutting objective of remarkable socio-economic nature: Human wellbeing. The General Agreement on Tariffs and Trade (GATT), the Agreement on Technical Barriers to Trade (TBT) and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) under the WTO umbrella do not prevent the application of socio-economic considerations to justify a measure; on the contrary, they are valid so long as they are formulated with the appropriate justifications, defendable under available information, consistent with national regulations and do not lead to arbitrary or unjustifiable distinctions. The fulfillment of these conditions arguably make socio-economic considerations on biosafety WTO-consistent.
5. Important socioeconomic considerations are even highlighted in the following WTO agreements:
 Article XX: The World Trade Organization (WTO) General Agreement on Tariffs and Trade (GATT) 1994
- The right to take justifiable non-discriminating measures, inter alia: Necessary to protect public morals; Necessary to protect human, animal or plant life or health; Relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption,

 Article XXXVI: The World Trade Organization (WTO) General Agreement on Tariffs and Trade (GATT) 1994
- The raising of standards of living and the progressive development of the economies of all contracting parties.
- The concept of enabling less-developed contracting parties to use appropriate special measures to promote their trade and development.

 Annex A 1: The World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS)
- Protecting animal or plant life or health from risks arising from the entry, establishment or spread of pests, diseases, disease carrying organisms or disease-causing organisms;
- Protecting human or animal life or from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs;
- Protecting human life or health from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or
- Preventing or limiting other damage from the entry, establishment or spread of pests.


Regards,
O.A.El-Kawy

SEC is an integral part of any country’s development agenda and therefore country specific based on needs and circumstances. It is not unique to LMOs.  Article 26 (i) of CPB therefore provides an enabling provision for integrating SEC in the decision making process for LMOs.  It is not a mandatory provision.

The question under discussion is relevance of various international and regional agreements and their obligation to Parties in taking into account SEC in the decision making on LMOS. In this context a list of international agreements have been identified during the course of discussions as relevant to Article 26.  Most of these agreements are pre-CPB phase. In spite of this fact, the only international agreement   that was the focus of discussion and discontent among negotiators during the formulation of CPB was the relationship between the protocol and provisions of WTO agreement.  The focus of discussion on this aspect has continued during the various online discussion forum on SEC and the AHTEG. 

Further all countries are not Parties to all the international agreements listed during the discussion. Therefore broadening the scope of discussion to all international agreements may only add complexity to a complex issue.

As far as the clause of “consistent with their international obligations” is concerned, the international protocol where objections are most likely to be raised is the WTO. With respect to the WTO and especially the Agreement on Sanitary & Phyto-sanitary Measures (SPS), we should note that as long as a criterion is transparent, verifiable and non-discriminatory, it cannot be challenged at the WTO. Moreover, the SPS is not the only agreement of the WTO which bears upon SECs. The Technical Barriers to Trade (TBT) is another agreement which allows for a broader interpretation of SECs, and is something that can be explored in order to remain consistent with “international obligations”.

In this regard, it is also important to note that the FAO “Towards a Code of Conduct for Plant Biotechnology as if affects the Conservation and Utilization of Plant Genetic Resources” issued by the Commission on Genetic Resources for Food and Agriculture (2002) allows for the consideration of socio-economic impact.

To conclude, there is no reason why countries cannot take an expansive view of SECs in line with their domestic regulation. Members have the freedom to define SECs broadly in line with their specific circumstances and international obligations are not likely to pose a problem with interpreting SECs expansively. At the level of the CPB, all Members may agree to minimum criteria that are practical keeping in view sustainability principles. Individual Members will have the freedom to institute more criteria domestically, so long as the minimum criteria are met.

Dear All,

Greetings!

I would like to begin with the following points regarding the overarching  theme which revolves around the deliberations on socioeconomic considerations under the protocol.

1) Article 26 provides an enabling framework for incorporating SE (socio-economic)  considerations in decision making. For developing countries, this is important as it takes into account their concerns about the potential adverse SE impacts including impacts on biodiversity.
2) While many countries have incorporated SE considerations in their regulatory framework/decision making process not all countries that have ratified CPB have given effect to Article 26 in practice.
3) While some countries have developed a comprehensive approach to SE considerations, some countries require limited analysis of SE impacts, often technical risk analysis. To bifurcate technical risk analysis from decision making some countries have resorted to establishing separate bodies for doing technical risk analysis and for decision making.
4) The scope of SE considerations varies and some countries take into account environmental, social and cultural factors/impacts or mandate studies on them. Although there is no consensus as to what SE impacts should be considered for SE consideration, the rules and practices are evolving, reflecting the concerns and issues considered important in the respective countries. Some of the countries in Europe have developed a comprehensive approach towards SE impact analysis.
5) The EC Directive 90/220/EEC provides for an approval process and labelling and packing requirements for all GM food and the objective is  to avoid the negative effects on human health and the environment that could arise out of  release of LMOs into the environment or food chain. Under the recent law passed by European Parliament national governments can invoke factors like protecting a particular ecosystem, huge cost of GM contamination for farmers cultivating non-GM varieties to block cultivation of a GM variety. This indicates the importance of SE impacts and SE analysis in decision making in European countries.
6) Besides EU, the African Union and the Andean Community also provide regional approaches for the socio-economic analysis but their approach is not identical to that of European Union.
7) It is important to have conceptual clarity on SE considerations. It equally important to develop methodologies for collecting relevant information on SE considerations. Having vague and ill-defined categories in SE assessment will result in difficulties in implementation and the studies could be inadequate to generate the relevant data. Ideas like sustainable development and social utility are important but incorporating them in SE considerations raises many challenging questions.
8) In SE considerations if sustainable development is considered as an important factor/objective to evaluate the impact of GMOs, then it is better to identify the relevant criteria and map the linkages.
9) The analysis of countries experiences with SE considerations indicates that there is no ‘one size fit all’ and the socio-economic, factors involved in the analysis vary across countries and situations.
10) Still some aspects are relevant for all the countries in different stages of commercialization i.e. pre-release, production and marketing phases.
11) For the regulator the two stages - testing for environmental and health safety, and, testing for effectiveness - are important. Traceability and labeling and long term monitoring are relevant for SE consideration.
12) Capacity building in SE assessment is important. Thanks to decisions in CPB and initiatives by UN agencies like FAO and UNEP efforts have been taken in this regard. While more needs to be done, the issue of SE considerations will continue to be an important aspect of CPB.

Best regards,

Prof. Sachin Chaturvedi
DG, Research and Information System for Developing Countries (RIS), New Delhi, India.

Dear All,

Greetings!

Regarding the theme of the present question 1, I would like to mention some of the following Conventions/Laws which are/may of having some influence on discussions on socioeconomic considerations under the protocol.

International Plant Protection Convention, 1997:

Article V on Phytosanitary Certification: “Each contracting party shall make arrangements for phytosanitary certification, with the objective of ensuring that exported plants, plant products and other regulated articles and consignments thereof are in conformity with the certifying statement that phytosanitary certificates, or there electronic equivalent where accepted by the importing contracting party concerned, shall be as worded in the models set out in this Convention and these certificates should be completed and issued taking into account of international standards.”

Article VII on Requirements in relation to Imports: “Contracting parties shall institute only phytosanitary measures that are technically justified, consistent with the pest risk involved and represent the least restrictive measures available, and result in the minimum impediment to the international movement of people, commodities and conveyances.”

Rural Workers’ Organizations Convention, 1975:

Article 4: “It shall be an objective of national policy concerning rural development to facilitate the establishment and growth, on a voluntary basis, of strong and independent organizations of rural workers as an effective means of ensuring the participation of rural workers in economic and social development and in the benefits resulting there from.”

International Treaty on Plant Genetic Resources for Food and Agriculture, 2009:

Article 5: Conservation, exploration, collection, characterization, evaluation and documentation of plant genetic resources for food and agriculture

Article 6: Sustainable use of plant genetic resources: “pursuing fair agricultural policies that promote, as appropriate, the development and maintenance of diverse farming systems that enhance the sustainable use of agricultural biological diversity and other natural resources.”….”promoting, as appropriate, plant breeding efforts which, with the participation of farmers, particularly in developing countries, strengthen the capacity to develop varieties adapted to social, economic and ecological conditions, including marginal areas.”

Article 9: Farmers’ Rights: “The contracting parties agree that the responsibility for realizing farmers’ rights, as they relate to plant genetic resources for food and agriculture, rests with national governments. In accordance with their needs and priorities, each contracting party should, as appropriate, and subject to its national legislation, take measures to protect and promote farmers’ rights.”

Indian Law: The Protection of Plant Varieties and Farmers’ Rights Act, 2001

Chapter VI: Farmers’ Rights
“39. (1) Notwithstanding anything contained in this Act, - (i) a farmer who has bred or developed a new variety shall be entitled for registration and other protection in like manner as a breeder of a variety under this Act; (ii) a farmer who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation shall be entitled in the prescribed manner for recognition and reward from the Gene Fund. Provided that material so selected and preserved has been used as donors of genes in varieties registrable under this Act; (iv) a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act; Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.”

Chapter VII: Compulsory Licence
“47. (1) At any time, after the expiry of three years from the date of issue of a certificate of registration of a variety, any person interested may make an application to the Authority alleging that the reasonable requirements of the public for seed or other propagating material of the variety have not been satisfied or that the seed or other propagating material of the variety is not available to the public at a reasonable price and pray for thee grant of a compulsory licence to undertake production, distribution and sale of the seed or other propagating material of that variety.”


Best regards,

Prof. Sachin Chaturvedi
DG, Research and Information System for Developing Countries (RIS), New Delhi, India

Dear colleagues,
In addition to all the  International Agreements that have been mentioned  I would also like to emphasize the Nagoya Protocol, which is relevant  taking into account socioeconomic considerations  in the decision-making  on the LMOs pursuant to article 26 of the Protocol. I totally agree with Mr Noreddine Benkerroum. The Nagoya Protocol recognizes the value of genetic resources, regulating access and benefit sharing arising from their use and associated traditional knowledge. Nagoya Protocol cannot be separated from the Convention on Biological Diversity (CBD), which aims to conserve biological diversity, the sustainable use of its components and the fair and equitable participation of the benefits that can be derived  from genetic resources (Article 1 of the CBD). Under the scope of Nagoya Protocol is the regulation for the  access to genetic resources which aim conducting research and development of its composition and biochemistry, through the application of biotechnology techniques. They are very important, as elements of biodiversity, and because of their use for research purposes.
Best regards

Just to enhance the discussion I would like to include the Codex allimentariun as an agreement to be considered as an international agreement related with SCC. The art 26 talk about human health
Other document is important to be considered by this AHTEG is the International Assessment of Agricultural Knowledge, Science and Technology for Development (IAASTD). This assessment is a result of a very long discuss process and there is good information about SC issues. This result should by highlight and help countries on SC consideration decision make. This document organized many possibilities of how SCC can be evaluated. As an example of impacts that can be evaluated we have the shift of landrace use related to GMO use. The increase of new diseases, or diseases that was not a problem and today they are,  as we are living now in Brazil with the Helicoverpa sp, or analyses of how the benefits arisen form GMO technologies achieve  indigenous peoples, local communities and family farmers, these are some examples that how is possible to quantify, with a scientific base, socioeconomic impacts.   
Other agreement we should take into account is the UNFCCC. So in a more deep analyses climate change problems can be consider as a SC consideration. If a OGM technology increase Greenhouse gas emission, because this GMO need more pesticide,  this can be used by a country to take a decision to approval or not a GMO technology, so the UNFCCC should  be include in the list of relevant agreements  related with SCC

regards

In regard to the Codex, all of the guidance documents regarding "Foods Produced by Modern Biotechnology"  issued after many years of committee meetings, etc are compiled in a single booklet:
ftp://ftp.fao.org/codex/Publications/Booklets/Biotech/Biotech_2009e.pdf

Dear friends and colleagues,

We agree on the importance of The Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) since it must comply with the World Trade Organization (WTD). However, we were not clear about if it is applicable in the field of SEC. This is an agreement on sanitary and phytosanitary measures. For this reason, it could be included in the area of risk assessment (Article 15) of Cartagena Protocol.
Best regards,

The Agreement on Technical Barriers to Trade (TBT) under the WTO may apply in the case of LMO regulations and SECs. The application of TBT measures is limited to those areas that are not related to sanitary and phythosanitary issues (where SPS measures apply), but where the implementing country has legitimate concerns, which may lead to the implementation of a technical barrier to trade. The different steps to validate whether a country’s concerns are legitimate including those protecting public health and the environment include demonstrating that TBT measures:
1) Are appropriate
2) Are not unnecessarily trade restrictive
3) Are based on a risk assessment
4) Are not discriminatory to other like products

Important to highlight that there may be some potential coverage of SECs under Article XX of GATT, which include specific concerns related to the protection of public (human, animal and plan) health, public morals and exhaustible resources.

All the WTO related treaties (SPS, TBT, GATT) have a common set of operating/procedural parameters or disciplines which need to be met by the implementing country to demonstrate consistency in the application of measures. The implementation of temporary measures include those situations predicated on set of cumulative steps where the implementing country proves that  1) there is no sufficient scientific information available, 2) where pertinent information is available, 3) More information will be collected to make a more rigorous assessment, and 4) conduct a review of the adopted measure within a prudent timeline.

Dear all,

There are some important points already raised by many participants including the discussions held on 2011 and 2013. Having those points on mind I´d like to agree with the consideration of WTO agreements as relevant for the decision of import under Art. 26. Those agreements defined legal hurdles that any SEC-related import restriction would have to clear for a country not to be accused to use a trade barrier.

In practical terms that means that the list of potential SEC (UNEP/CBD/BS/REGCONF-SEC/2/INF/1) will need to fulfill two requirements to be take into account in the decision-making:

- be in the scope of Article 26 (be related with the impact of LMO on the conservation and sustainable use of biological diversity)
- be consistent with international obligations (WTO agreements)

More specifically the WTO agreements that are related with SEC are:

- SPS: member countries have the right to implement SPS measures to protect human, animal and plant life but this is not an unlimited right. Those measures are based on scientific principles and not maintained without suficient scientific evidence (Art. 2.2) and must be based on a scientific risk assessment of risk (Art. 5.1). Members also have to ensure that measures are not arbitrary or discriminatory and do not constitute a disguised restriction on trade (Art. 2.3). Measures must be no more trade-restrictive than necessary to achieve a Member´s appropriate level of protection (Art. 5.6.). 

- TBT: technical regulations and standards not covered by the SPS Agreement (Art. 1.5). It has a broader scope of applications than SPS with similar set of implementation requirements (a member country cannot implement measures that are discriminatory with like products, must have a specific and legitimate objective based on a well-defined risk assessment and not be more trade restrictive than necessary - Art. 2.1 and Art. 2.2).   

- GATT: sets out the national treatment principle and under it imported products that are considered to be ‘like’ a domestic product must not receive less favourable treatment (Art. III.4). In addition, Art. XX introduces an exception from GATT rules to protect health or the environment by allowing balancing of trade and non-trade issues, however,  in justifying such a restriction it´s necessary to satisfy the condition from the same article that: “such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade”.

The WTO agreements emphasize measures based on scientific risk assessments and evidence which tend to limit decision-making based on non-scientific issues (only the Art 5.3 of the SPS Agreement take into consideration the economic factors - in certain context and togehter with a scientific risk assessment as definied in the Annex A.4). 

In conclusion the inclusion of SECs in reaching a decision on import under Art. 26 will need to be based on a well-defined assessment to identify and evaluate the SEC as a risk for the biological diversity. 

Precaution is not a substitute for science but is to be exercised as part of science-based system. Both the Protocol and the SPS Agreement reflect this fact by requiring science-based risk assessment (Sabrina Safrin, http://papers.ssrn.com/sol3/papers. cfm?abstract_id=658561).

Best regards,
Luciana
Ministry of Agriculture, Livestock and Food Supply / Brasil

Dear participants!
The Convention on Biological Diversity defines "sustainable use" as "the use of components of biological diversity mode and pace such that do not lead in the long run, the reduction of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations. "

Bearing in mind, as well, how much has the art. 26 of the Cartagena Protocol, there is no doubt that "to make a decision on import" of GMOs, the Parties may only impose restrictions when scientifically identified, in fact, any impact that may pose a threat to the "conservation and sustainable use of biological diversity ", which endangers thus" its potential to meet the needs and aspirations of present and future generations ", where included, therefore," the indigenous and local communities. "

Even the WTO agreements emphasize measures based on scientific risk assessments, tending to limit the decision-making based on non-scientific issues, as well emphasized by Dr. Pepper Luciana Ambrozevicius.

In these terms, also alinhamo us the weights externadas by Dr. Stuart Smyth, University of Saskatchewan, when he says that art. 26 PCB houses a very clear clause in the sense that nations can highlight up, take into account SECs if they are "consistent with their international obligations", recognizing, of course, the supremacy of the WTO and the SPS Agreement on own protocol and the use of SECs in biosafety standards, failing to characterize a non-tariff trade barrier incompatible with other obligations, to raise righteous retaliation for their violation.

Dear participants,
as discussed by Drs. Luciana Pimenta, Lydia Miranda and Stuart Smytho, the protocol on your art. 26 is clear when he points out that CAN take into account SECs, when "consistent with their international obligations." As the WTO is agreement directed to trade, there is no question of its applicability (as well as SPS) on the Protocol. Importantly, any position derived from this ATHEG try to avoid the use of devices to impose non-tariff trade barrier incompatible with other obligations, to raise righteous retaliation for their violation.

Dear participants!
First I want to thank all of you for the interventions and the interesting discussion so far.

However, I noticed that the discussion, like the ones in 2011 and 2013, focusses very much on the WTO agreements (GATT, SPS; and TBT)
I completely agree that WTO is important – and maybe the most relevant international agreement in the context we discuss right now. However, I think that we all have to realize that there is, besides the EC-Biotech case (which did not deal with decision making), no WTO case law on LMOs. As long as such case law doesn’t exist there will be room for interpretation and discussions among lawyers, regulators and scientists and those differences cannot be resolved here.

However, there are other agreements which have been mentioned in previous discussions and also in the current one as being relevant when taking socio-economic considerations into account in decision making. Our task in this discussion is to find out what Parties need to be aware of when doing so. I really would like to encourage all of you to bring in concrete examples.
Just to give one which is simple and came up in several discussions: one of the main issues of WTO/GATT is the non-discrimination principle. When a Party takes a decision on LMOs, it is therefore important, that the decision which applies to LMOs from other countries also applies to domestic LMOs. There must not be a distinction in decisions on LMOs related to its origin.

Parties have asked at COP/MOP7 to convene online discussions in order to provide a basis for the work of the AHTEG and to develop the discussion further towards developing guidance.

Therefore I would like to encourage all of you to provide some concrete arguments, which international agreements (other than the WTO agreements) are relevant for decision making on LMOs under Article 26 and why and, if possible, give some examples.

Thank you very much.

Best regards
Andreas

Dear colleagues,

Thank you very much for the approach and the first interventions on this so interesting discussion. So on, I agree with the preliminary comments on the relevance and interactions on WTO and others international agreements, but we cannot lose the perspective on the interactions and relevance approaches that are need for a more holistic focus beyond just only economic perspectives alone.  On this, we are discussing just only “economic” or chrematistic discussions or this is, as the parties have been asking for a “social and economic approaches” (SEC).
I agree with Andreas comments, on the relevance and importance of consider that there are other agreements as being relevant when considering socio-economic considerations in decision-making.
On this approach and taking in considerations the needs and demands from the Parties - and the current efforts in other instances - that involves too, SEC and in particular, methodologies, instruments and tools, IPBES CBD documents could be a contribution for thinking too. An approach and effort on an integration and contextualization, as a contribution for the current discussion that involves international agreements and perhaps that until this moment has not been or been partially considerer.

Best regards,

Walter Pengue
Argentina

Nagoya Protocol (NP), as presently enforced, establishes a framework for fair and equitable sharing of benefits arising from utilization of genetic resources and associated traditional knowledge. The Protocol emphasises the need to share benefits arising from the use of such material or knowledge with indigenous and local communities. The NP considers, among other issues, that benefits generated from the “utilization of genetic resources” in scientific research including the application of biotechnology, e.g., to develop GMOs [Article 2(c) and (d)], should also be shared with the locals of the region from where such material/knowledge originates.
Please find the link: https://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf

In addition, the he Kuala Lumpur-Nagoya Supplementary Protocol, after its entry into force (which is not presently the case), would have a significant impact when taking SEC into account to use, cultivate or trade GMOs. The supplement specifically addresses the issue of liability and redress for damage (health, environment, and economic loss) resulting from the transboundary movements of GMOs. In particular, it will enable countries importing GMOs to make the responsible producer in the exporting country liable for any possible damage caused by the imported GMOs. Therefore, it may be worthwhile to anticipate taking into account this Protocol in the context of the socio-economic considerations of GMOs, as an additional international instrument beside the Nagoya Protocol and those already mentioned by other participants during discussions in this forum.
Please see the link: https://bch.cbd.int/protocol/NKL_text.shtml

Socioeconomic considerations arising from the impact of living modified organisms on the conservation and sustainable use of biological diversity consistent with their international obligations is the mandate under Article 26 of the Cartagena Protocol on Biosafety. Sustainable use of biological diversity is significantly influenced by the International and national Intellectual Property (IP) regimes. Broadly IP may influence:

(1) Research and Development (R&D) in LMOs, using indigenous / imported genetic material
(2) International trade related agreements related to LMOs.

R&D in LMOs is as significant as trade. Most of the biodiversity rich developing countries are caching up with R&D in LMOs. Big companies with access to the necessary technology and funds, the biotechnology offer scope for turning the previously unowned genetic resources into very large profits, which is sometime referred to as ‘the privatization and commodification of the genetic commons’. Commercial exploitation of LMOs and its impact on socioeconomic considerations hence largely depend upon the IP regimes. Currently there are number of research networks exchange genetic materials globally through Material Transfer Agreements (MTA) for non-commercial research. An MTA is a contract that governs the transfer of materials from the authorized licensee to a third party for internal research purposes only. Materials may include cultures, cell lines, plasmids, nucleotides, proteins, bacteria, transgenic animals, etc., The Intellectual Property (IP) rights associated with such transfers have impact on the socioeconomic considerations through restrictions on the commercial exploitation of the outcome of such researches.  Many commercial providers frequently attempt to claim outright ownership of IP generated by the recipient for themselves or to ask for free licenses to the research results. Such agreements mean that, if an invention is developed and commercialized, there is no return to the inventor for their contribution. However, it is also reasonable for the provider to be offered some consideration for the supply of the materials.

Patentability of LMOs itself is governed by national laws. In this context the Patent Cooperation Treaty (PCT) which assists applicants in seeking patent protection internationally for their inventions can influence the national governments to have an IP regime which facilitates sustainable use of biological diversity.
In international trade, TRIPs Agreement requires countries to provide a minimum level of protection for certain intellectual property rights. Already there is good discussion on this topic. The fundamental issue is that while all countries want to ensure that LMOs do not pose a threat to human/animal health or the environment, they also see an opportunity in getting solutions to many problems like stagnating yield, resurgence of pests and other biotic stress like drought in the context of climate change.

TRIPS agreement offer exemptions from patentability plants and animals other than microorganisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. Trade problems arise with respect to testing and approval procedures, labeling and identification requirements. Different nations have different laws with respect to patentability of LMOs. The Indian patent law excludes patents on GMOs – exploitation of which could be contrary public order or morality or prejudicial to human, animal or plant life or health or to the environment. This means only genetically modified micro-organisms (GMOs) which do not fall under the above mentioned categories are patentable.

Dear all,

Many regards from Bolivia!

In relation to the current discussion topic, it is important to mention that:

- “International obligations” in the context of the Cartagena Protocol (both in the preamble and operational text) refer to the broad spectrum of international agreements that a Party may be signatory. Accordingly, it does NOT inherently prioritize or place on the highest hierarchy to trade-related obligations in relation to the implementation of the any of the Protocol´s provisions, including Art. 26. This is clarified in the preamble, which indicates that the Protocol text has been agreed by:

“Recognizing that trade and environment agreements should be mutually supportive with a view to achieving sustainable development,

Emphasizing 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,”

- Since the Convention on Biological Diversity (CDB) is the “mother treaty” of the Cartagena Protocol, the latter is subject to the CBD in its full extent. In other words, the Protocol should be interpreted and implemented in a consistent manner to the CBD. Among other topics, this applies to socio-economic considerations particularly in relation to sustainable use of biological diversity (e.g. CBD Art. 7 and Art. 10) and knowledge and practices of indigenous and local communities (i.a. CBD Art. 8.j).

- Examples of international agreements relevant to the implementation to the Protocol´s Art. 26 are:

--- Indigenous and Tribal Peoples Convention (ILO Convention No. 169), e.g. Art. 14.1, Art. 14.3, Art. 15.1 and Art. 15.3.

--- “Akwé: Kon Voluntary Guidelines for the conduct of cultural, environmental and social impact assessment regarding developments proposed to take place on, or which are likely to impact on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities”, adopted by the CBD COP7 (Decision VII/16).

--- International Covenant on Economic, Social and Cultural Rights (ICESCR), e.g. Art. 6.1, Art. 7, Art. 11.1, Art. 11.2, and Art. 12.

--- International Treaty on plant Genetic Resources for Food and Agriculture (ITPGRFA), e.g. Art. 5.1, Art. 5.2, Art. 6.1, Art 9.2, Art. 9.3.

--- The World Trade Organization (WTO) General Agreement on Tariffs and Trade (GATT) 1994, Art. XX (a), (b) and (g), and Art. XXXVI.

--- The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) Annex A.1.

--- Regional agreements regional are also relevant to Art. 26 of the Protocol. This is the case of the Bolivarian Alliance for the People´s of Our America – People´s Trade Treaty (ALBA-TCP, according to its name in Spanish), adopted by eleven Latin American and Caribbean countries. This regional agreement is related to socio-economic considerations through Principle 7 on “Actions to promote sustainable development through rules to protect the environment”, Principle 10 on “Protection of Latin American and Caribbean culture and identity of the peoples of the region” and Principle 11 on “Measures for intellectual property rules”.

--- The Nagoya-Kuala Lumpur Supplementary on Liability and Redress to the Cartagena Protocol (when entering into force).

- Finally, WTO and The Cartagena Protocol provisions are not inherently opposed. Meaning that socio-economic considerations when reaching a decision on import of an LMO under the Protocol and domestic measures implementing the Protocol are not by default a trade barrier. As far as socio-economic considerations in LMO-biosafety decisions are inline with domestic regulations, based on good quality evidence (i.a. scientific information) and consistent with other trade related provisions (e.g. not discriminatory between foreign and domestic like products, and not more trade-restrictive than necessarily) may be applied in the context of WTO agreements and in relation to social-, economic- and health-related measures.

Kind regards,

Georgina Catacora-Vargas

Dear All
The discussions are interesting. While WTO agreements are important I would urge that we should look beyond WTO agreements to understand the international law aspects of SEC. At the same time as SEC is mostly an issue in decision making in countries which are Parties to CPB, the national dimension and the national sovereignty aspect of SEC is very important. As there has been no dispute before WTO on SEC one can draw inferences from WTO cases like tuna, Asbestos to understand how Panels and Appellate Bodies have interpreted the WTO provisions. In any case it is important that SECs are backed by methodologies and criteria to assess which SE aspects are important . As pointed out in  the discussions countries can draw their guidelines and methodologies and use frameworks and points discussed on issues relating to biodiversity and biotechnology. In my view understanding the international law dimensions of SECs are necessary but not sufficient to implement effectively Article 26.

For a better understanding of international environmental law aspects of SEC we can use the idea of regime complex and also look out how parties can use different fora for dispute settlement and resolution of conflicts in case of mismatch between obligations under Article 26 and relevant provisions of other international treaties/conventions.
krishna ravi srinivas

Posted on behalf of Andreas Heissenberger:

Dear participants!

Our discussion is now coming to an end and I want to thank all of you for your participation, your contributions and the lively discussion we had over the last week.

Please allow me to give a brief summary of this discussion. This summary should be understood as a first impression and my personal point of view and not as an official summary provided by the Secretariat.

      As in all the discussions we had so far on this topic, the main issue was the relation of the Cartagena Protocol on Biosafety (CPB) and the various WTO-agreements (GATT, SPS, TBT). To me it seems that there is at least to some extent an agreement on two points:

- Socio-economic considerations (SEC) can be used in decision making under SPS (at least when following certain provisions – there was no agreement on that part).

- The precautionary principle/approach is part of both agreements.

     However, as in previous discussions, there are many points of disagreement (some of them quite fundamental). Some of those which came up several times are:

- Is there supremacy of the WTO agreements over the CPB, are they complementary or do we have to see them as independent agreements (e.g. environment vs. trade)?

- Does “science based assessment” include social science or only “hard” natural science? Is there an obligation to provide quantitative data?

- How does the issue of “like “products (GATT) influence the relation of the agreements?
In my point of view the current, but also the previous discussions, show that there are many unresolved issues which definitely need further elaboration. However, I believe that at this point neither a general discussion forum nor the AHTEG can make much progress on this topic, as some fundamental points as mentioned above do require detailed legal expertise and a comprehensive analysis we cannot provide in the mentioned formats. I also think that such an analysis might be useful in order to satisfy the often tabled need by the Parties to the CPB.
We also had some contributions mentioning other agreements, e.g. the Aarhus Convention, ITPGRFA, CODEX Alimentarius, UNFCC, …  In most cases, the relevance of these agreements for decision making on LMOs was only discussed at a more general level. I think that we might need more details on that in the future.

    There was also reference made to the agreements directly related to the CPB, namely the Convention on Biodiversity (CBD), the Nagoya Protocol, and the Nagoya-Kuala Lumpur Supplementary Protocol. Some interventions provided good reasons, why there is a need to explore that in more detail. In my opinion, it would be worthwhile to look into that further, as it might provide useful insights for Parties when implementing Art. 26 of the Protocol.

    With that, let me say that I really enjoyed the discussions we had last week and I’m looking forward to the discussions on the other topics. I hope you’ll stay with us and provide your opinions, as they are crucial for bringing us closer to reach the objectives of the Strategic Plan.

Best regards,

Andreas

Discussion on question 1 will now close. Thank you all very much for your contributions to date. Kindly be advised that if you would like to add any other comments or views on this issue, you may do so at the end of the discussions during the three days of open discussion in May. For more information, please refer to the information page available at: https://bch.cbd.int/onlineconferences/portal_art26/online_dicussion_info/ 

We also take this opportunity to thank Mr. Andreas Heissenberger for moderating this week’s discussions and for his continued contribution to this process.

We look forward to your continued participation.

Kind regards,

Paola