Forum discussions

The guiding question for theme 2 is "What other international obligations may Parties need to follow when taking socio-economic considerations into account in their decision-making on living modified organisms?"

Let me introduce myself. My name is Jose Falck-Zepeda. I am a Research Fellow at the International Food Policy Research Institute (IFPRI). I have been working with the economic, social and institutional assessments of agricultural biotechnologies, Living Modified Organisms and more conventional agricultural research and development activities such as classical plant breeding since 1991.

I have conducted -or have provided technical backstopping- economic impact studies of these technologies in the U.S., Mexico, Uganda, Ghana, Honduras, Bolivia, Colombia, Philippines and at the regional level in West Africa and the COMESA region. We at IFPRI are now conducting studies examining the potential introduction of insect protected cotton in Kenya and Malawi, as well as, examining the relationship between gender and LMOs adoption and use in Burkina Faso and the Philippines. I have published extensively not only on economic impact methods and studies in different venues, but also on the relationship between economic assessment and Article 26 of the CPB.

I am looking forward to this discussion and will contribute with additional resources as time goes by.

Kind regards,
Jose Falck-Zepeda
Research Fellow
IFPRI
2033 K Street NW
Washington, DC 20006-1002
USA
email: j.falck-zepeda@ccgiar.org
IFPRI personal data site: http://www.ifpri.org/staffprofile/jose-falck-zepeda
List of publications and bio:http://josefalckzepeda.pbworks.com/w/page/9007235/FrontPage
Skype: josefalck

The main obligation that Parties will need to consider is whether implementation of Article 26.1 is consistent with current rules contemplated under World Trade Organization (WTO) especially those that may be considered under the Sanitary and Phytosanitary Measures (SPS) and the Technical Barriers to Trade (TBT).

I think this issue may need to be expanded a bit to discuss what type of guidance any type of assessment may follow as a "state-of-the-art" or "quality standard" to follow in order to judge specific submissions to the competent authority. Contrary to those procedures governing food/feed assessments which can follow Codex Alimentarius, there is no international guiding standard for socio-economic consideration assessments. Most practitioners and evaluators will judge quality based upon attribute such as replicability, significance, study design and others used to evaluate scientific quality.

I describe these quality standards in a bit more detail in a paper I published in AgBioForum in 2009,

Good morning Kathryn, good morning/afternoon/evening, indeed, to
everybody,

First of all, I thank Kathryn and the SCBD team to have initiated these
discussions, as well as all the national representatives who accepted to
participate to these complex but, let us hope, interesting and fruitful
discussions.

Before entering the interesting and complex reflexion launched by Dr.
Hartmut Meyer, I shall open the theme 2 discussion by suggesting some of
the international obligations that Parties can/must refer to if taking
socio-economic considerations into acount in their decision-making on
LMOs.

For Parties that are members/have signed or ratified the following
international agreements/instruments, they should take into account:

- text/provisions/decisions of the Convention of Biological Diversity (
CBD ); in particular, article 8j of the CBD has a substantial and
historical link with Article 26.1 of the Protocol ( see also documents
joined by Dr. Hartmut Meyer ) .
Text of article 8j :

"Each contracting Party shall, as far as possible ans as appropriate:
......
J) Subject to its national legislation, respect, preserve and maintain
knowledge, innovations ans practices of indigenous and local communities
embodying traditional lifestyles relevant for the conservation and
sustainable use of biologial diversity and promote their wider
pplication with the approval and involvement o the holders of such
knowledge, innovations and practices and encourage the equitable sharing
of the benefits arising from the utilization of such knowledge,
innovations and practices;"


- The issue of the new Nagoya Protocol on Access and Benefit Sharing,
linked to the CBD and in particular to its Art. 8j , can have
relationships with the text of Article 26.1 .

N.B: In the context of the Protocol, there is indeed no definition of
"socio-economic impacts". Under the CBD ( of which the Protocol is a
specific additional instrument ), "Akwe:Kon " Guidelines define
socio-economic indicators ( involving a.o. social considerations
relative to indigenous and local communities) to take into account in
impact assessments.  


- The UN Declaration on the Rights of Indigenous People.

- WTO agreements. 


Welcome to further discussion.

Lucette Flandroy


GMO & Biosafety expert - National focal point for the Cartagena Protocol
Federal public Service Health, Food Chain Safety & Environment
1060  Brussels - BELGIUM





 



Disclaimer : http://www.health.belgium.be/eportal/disclaimer/index.htm

Posted on behalf of Carlos Almendares:

Dear Friends:

I believe that socio-economic aspects should be considered taking into account the national legislation, respecting the decisions of the indigenous communities but also respecting the rights of farmers to have a choice of new practices that will enable better results in their activity.

Additional information derived from study of the development of a new variety is already in the registers of varieties from different countries, normally, this information is taken into account prior to the decision to release a variety, if in addition to this variety inserts a gene, which should interest us is to know what the risk or impact to be measured by this fact.

By attempting to include economic considerations in a mandatory risk assessment does not meet the primary objective of it.

Best regards!
Carlos Almendares

I couldn’t agree more that choice is essential to current and future innovations in agriculture. The problem is that so many NGOs have created elaborate campaigns of fear and misinformation, that choice is not available to so many subsistent producers. Without choice, the options facing these producers are limited to those that they have historically had, that is, the ones that enslave them to a life of subsistent agriculture.

To enable producers to have choice, a rapid and efficient science-based regulatory system is required. Systems such as these are in place in numerous countries and the producers in those countries enjoy the choice to grow the crops and the varieties they so desire. Encumbering a regulatory system with socio-economic considerations, which have no benchmarks, no definitions and are unquantifiable, simply over burdens regulatory systems that are already operating at the margins. The time delays for approval of new crop varieties sends a very strong market signal in terms of investment to the developers of new varieties. The higher the degree of market uncertainty, the lesser the likelihood of investing in those technologies.

By demanding that socio-economic considerations be incorporated into regulatory systems, the advocates of such rationale may actually being enabling greater harms than good. The additional time and cost demands of socio-economic considerations could easily be the tipping point for the agriculture development sector. With the inability to quantify what these costs might be, the signal to these firms is one of considerable market uncertainty and therefore, reduced investment in all agricultural research. This not only harms the subsistent producer but consumers as well.

The increasing demands for zero risk in regards to innovation and its products are not realistic. Zero risk has never been part of our regulatory systems and never should be. The costs of a zero risk regulatory system would be astronomical and the end result would be no choice. It is unfair of regulatory systems to not provide choice, especially to those that need it the most, subsistent producers.

Stuart Smyth
Research Scientist
Department of Bioresource Policy, Business & Economics
University of Saskatchewan

Dear colleagues
Article 26 allows countries to include socio-economic considerations in their decision making particularly National Strategies and action plan, National report on Biodiversity need to deep the discussion and international regulations must include also multilateral agreements like the European Union and ACP Agreements for trade

My name is Mihaela Antofie and I was officially working for biosafety couples of years for Romania (2004-2009). Today I am working in University Lucian Blaga from Sibiu Romania.
First I congratulate you for taking the lead in further development of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity.
According to my opinion we have also refer to the ITPGRFA or Plant Treaty (in force since 2006) and other instruments signed under FAO (for animal) which are targeting the conservation of genetic resources. I also propose to fallow for discussions the road map adopted during the Hague Conference in October last year on Agriculture, Food Security and Climate Change
http://beta.searca.org/kc3/index.php/news/global/99-agriculture-food-security-and-climate-change-conference-produces-roadmap-for-action

I also think that the most important international obligations in the context of SEC are certain rules of the WTO. I am not an expert in WTO agreements and the way how to implement them. But I have the feeling that a closer investigation of those cases that where brought to the dispute settlement mechanisms because of disputed SEC in national decision making procedures (on other issues than LMOs) might shed some light on how SEC should or should not be applied under WTO rules.
And I further agree that the UN Declaration on the Rights of Indigenous Peoples (attached) is certainly another international standard in the context of SEC, although it is not a legally binding treaty but nevertheless constitutes human rights that can be of importance in LMO decision making processes.

Dear all,
Besides taking into account the all the text/provisions/decisions of the CBD (see the documents uploaded by dr. Hartmut Meyer) and the important international obligations of the WTO, I believe that that it is important to take the “International Treaty on Plant Genetic Resources for Food and Agriculture” into account. Article 9 on farmers' rights is especially relevant to SEC, as it includes the recognition of the contribution that the local and indigenous communities and farmers have made for the conservation and development of genetic resources. Under the Treaty, the parties agree that the national  governments have the responsibility for realizing Farmers’ Rights, including: the protection of traditional knowledge relevant to plant genetic resources, the right to equitably participate in sharing benefits and the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture. The Treaty can be downloaded here: http://www.planttreaty.org/texts_en.htm

Dr. Meyer raises a crucial point for this debate, which is, the role of the WTO. The Agreement on Sanitary and Phytosanitary Measures (SPS) of the WTO establishes the use of science as the decision-making criteria as the justification for barriers to trade in cases of human, animal and plant health and the environment. Three standards setting organizations are the basis for this: Codex; the Office International des Epizooties (OIE), which is now known as The World Organization for Animal Health; and the International Plant Protection Convention (IPPC).

These three organizations provide the technical standards  framework for the SPS. If an International Standard for Phytosanitary Measures (ISPM) established by the IPPC (available at https://www.ippc.int/index.php?id=ispms&no_cache=1&L=0) allows for a trade barrier, then every member country of the WTO is allowed to implement this standard into their domestic regulatory framework without fear of challenge. If a WTO member country implements a regulatory standard that contravenes the IPPC standards, then that country may be accused of using a trade barrier in a case brought to the WTO by any other member country.  Countries may have higher standards than the IPPC but only if there is a scientific justification and a risk assessment that satisfies SPS commitments.

To determine the relationship between socio-economic consideration and the IPPC, one must look at ISPM  No. 5 (https://www.ippc.int/file_uploaded/1273490046_ISPM_05_2010_E.pdf), Supplement No. 2 that provides the guidelines on understanding the potential economic importance and the related terms of reference for environmental considerations. Economically unacceptable impact and/or environmental damage relates to the unintended introduction of a plant pest. Nowhere in the 34 ISPMs is there an allowance for socio-economic considerations.

Based on the definition of economic damage provided by ISPM No. 5 of the IPPC and therefore as part of the SPS Agreement of the WTO, any country that incorporates socio-economic considerations into their domestic regulatory system should know that this will be a deemed a barrier to trade and said country should expect to have a disputes case brought to the WTO to have this barrier removed.

Posted on behalf of Motlalepula Pholo:

Socio-economic considerations are the most pivotal factors of inclusion for international agreements and obligations. However, there are also very importance to national levels to facilitate their ease implementations. LMOs  is a anew development that should not be in isolations hence associated with other international treaties/agreements/obligations that recognize potential benefits to rural developments especially in developing countries, contribution to biodiversity conservation and sustainable use. Pursuant of the above, international agreements such as WTO agreements, precautionary Principle, International Treaty on Genetic Resources and the recent Nagoya protocol on access and benefit Sharing forms the basis for  socio-economic considerations in decision making on LMOs. TPGRFA provides for “sharing the benefits of using plant genetic resources for food and agriculture through information-exchange, access to and the transfer of technology, and capacity-building. It also foresees a funding strategy to mobilize funds for activities, plans and programmes the help, above all, small farmers in developing countries. This funding strategy also includes the share of the monetary benefits paid under the Multilateral System”. Moreover Farmers' Rights, which include the protection of traditional knowledge, and the right to participate equitably in benefit-sharing and in national decision-making about plant genetic resources. TPGRFA already is in accordance to Article 26 (2) of CPB on research and information sharing and exchange to indigenous and local communities. Therefore objectives of the TPGRFA and the Nagoya protocol on ABS should be given a through look when making decisions on LMOs.

Many thanks for the rich and interesting discussions
Iwould like to come back on capacity building process in developing countries which have no decision-making regarding LMOsimport and in this context national biosafety framework must be improved by including SEC as indicated in article26.2 through regional workshops or meetings of parties for sharing experience , information and appropriate guidance materials .

Good day everybody and thanks for an active discussiojn.

I would like to thank Mr. Mahaman Gado Zaki for bringing up this critical issue of countries with no decision-making regarding LMOs imports. These countries have no experiences on issues of concerns such like SE ones.However, experinces in that regard might be through technologies which have been introduced before like hybrids and how they have affected the indigenous and local communities. other national obligations that deals with rural community developments and agricultural policies can be of great value. On the other hand this is an opportunity/advantage for those coutries because they are in a position to integrate SEC issues in thier obligations hence taking an proactive approach rather than the reactive one. capacity building is also very vital hence the developing countries must make sure that the house in kept in order prior to activities of importation/exportation of LMOs.Therefore capacity building forms one pillar of the socio-economic consideration of LMOS.

Hi all, I’d just like to point out that first and foremost, the implementation of socio-economic considerations within the biosafety frameworks at the national level would involve a complex piecing together of the national policy with regard to socio-economic considerations in the context of biosafety (which is determined by national needs and priorities), together with the rights and obligations that a country is committed to at the international level. A Party to the Protocol would first have to consider its national laws and policies, then its rights and obligations under the Biosafety Protocol as the primary international legal instrument on biosafety. The next step is to then integrate into national biosafety implementation other biosafety-relevant legally binding obligations or alternatively, those that establish international norms (e.g. human rights).

I agree with many other commentators that the latter are, inter alia, the following:
- Convention on Biological Diversity (CBD) particularly Article 8j, with which Article 26 of the Biosafety Protocol has historical connections;
- International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), particularly Article 5 on Conservation, Exploration, Collection, Characterization, Evaluation and Documentation of Plant Genetic Resources for Food and Agriculture; Article 6 on Sustainable Use of Plant Genetic Resources; and Article 9 on Farmers’ Rights.
- the relevant WTO Agreements
- UN Declaration on the Rights of Indigenous Peoples

With respect to the WTO Agreements, which are legally-binding for its Members, and over which there is some concern about whether decisions which take into account socio-economic considerations are WTO-consistent, it is worth pointing out that the WTO is not about “trade at any cost”. WTO Agreements have a context for trade. For example, the preamble of the Marrakesh Agreement Establishing the World Trade Organization (1994) affirms “…the objective of sustainable development, seeking both to protect and preserve the environment…”.

Article XX of the General Agreement on Tariffs and Trade (GATT) 1994, which provides general exceptions to trade liberalization, is also of importance. Article XX contains several general exceptions, among them for trade-restricting measures:
- “necessary to protect public morals”;
- “necessary to protect human, animal and plant life and health”;
- “relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption”.

This means that WTO Members may adopt or enforce measures for these purposes, even though they restrict trade. Thus, there is scope for WTO Members to take protective measures and to restrict trade of certain products, including agricultural products, for moral, environmental and health purposes.

How this will play out in the case of a dispute involving socio-economic considerations for LMO products has yet to be tested, as there has been no such case yet. The WTO Agreements do not a priori exclude socio-economic aspects, although more analysis is needed on the specific agreements to identify the flexibilities and policy space available.

For example, risk assessment under the SPS Agreement can already involve a mix of scientific and economic considerations. When assessing risks to animals and plants, “Members shall take into account as relevant economic factors: the potential damage in terms of loss of production or sales in the event of the entry, establishment or spread of a pest or disease; the costs of control or eradication in the territory of the importing Member; and the relative cost-effectiveness of alternative approaches to limiting risks” (Article 5.3). (There is no similar reference to economic concerns in relation to impacts on human health.)

Lim Li Ching
Third World Network

Dear all,

I would just like again to reply to a few questions and remarks of some
participants.

The question of which local and indigeneous populations are concerned in
Art. 26 is indeed important.
Without precision in the text of the Protocol, the logic would be that
all local and indigeneous populations affected, in their local
environment and way of life, by the impact of the concerned LMOs ( their
cultivation, consumption and/or transformation, ... ) on biodiversity
would be concerned, even if these LMOs are not precisely cultivated,
consumed or transformed in their own local environment.

Concerning WTO agreements: WTO agreements indeed contain articles
allowing restriction to trade.
It should be noticed that part of the reasons evoked in Art. XX of SPS
agreement should be handled by the biosafety risk assessment, in
particular, protection of human, animal and plant life and health, isn'
t it ?
Concerning public morals: one question is: wouldn' t this be a difficult
reason to argue and let accept by WTO ? 

I would like to make also a general remark: we should not forget that
this article of the Protocol is valuable for all kinds of LMOs, and not
only for the most developed and commercialized till now, which are
plants.

Best regards.

Lucette Flandroy




Disclaimer : http://www.health.belgium.be/eportal/disclaimer/index.htm

Dear all
Many thanks to Miss MOTLALEPULA PHOLO for her support, contribution and important comments on the SEC in the case of the less developing countries.
I want to join Ms Flandroy to agree that local and indigenous populations are submitted in their life conditions and environment by impact of LMOs depending mainly on Biodiversity, hence CBD article 8j,relevant WTO agreements and the UN Declaration on the Right of Indigenous People must be taken into account.

Greeting to all! On behalf of the Plurinational State of Bolivia, it is a
pleasure to follow up and participate in these enriching discussions. I
would like to mention that the comments to be posted in this e-forum are
agreed with the Bolivian focal point to the CBD/CPB, reason why they might
not be so frequent and they refer to a common rather than a personal
opinion.



Several questions and comments have been posted on the interpretation,
objective, scope, limitations, etc. of Art. 26 of the CPB. All of them
relevant and useful for further discussions. However, we would like to agree
with Ms. Lucette Flandroy and Dr. Hartmut Meyer in the sense that after a
long process of discussions and compromise, socioeconomic considerations
(SEC) related to LMOs are integral part of the CPB. Accordingly, at this
juncture, Parties (and of course practitioners, as well) need to analyze the
options, experiences and needs to effectively include SEC in their biosafety
decision-making. Here I would like to mention that under the Bolivian view,
SEC is not exclusive to LMO-related issues, but relevant to all
environmental decision-making processes, particularly to biodiversity since
we are a mega-diverse country and center of origin and genetic
diversification of several flora species (this is rooted in the provisions
of the New Political Constitutions of the State  - which recognizes the
close inter-relation Nature-Society - and the Law No 071 on the Rights of
Mother Earth).



Accordingly, going back to the question posted by the Secretariat, as Party
of the CPB we think that the socio-economic considerations that Parties may
take into account in the context of Article 26 of the Biosafety Protocolare,
*inter alia*:



-       Changes in livelihood linked to the potential adverse effects along the
transfer, handling and use of LMOs on the conservation and sustainable use
of biological diversity, taking into account human health.



-       Changes in the knowledge systems.



-       Potential impacts on public health, in light of the objective and
scope of the CPB.

* *

-       Potential risks to the environment. SEC play an important role in
ecologic dynamics, e.g. seed saving and exchange that may influence gene
flow.



-       SEC in light of public participation.



These SE considerations imply that:



-       The objective and scope of the CPB should also frame the inclusion
of SEC in biosafety decision-making processes. Meaning that SEC are not
restricted to the potential effects related to the release of LMOs into the
environment only, but to the whole range of activities along the transfer,
handling and use of LMOs. This includes the intrinsic technological package
of some LMOs (e.g. herbicide tolerant crops).



-       Application of precautionary approaches in light of sustainable
development and livelihood, which calls for long-term ecological and social
welfare.



-       Particular attention in welfare changes should be given to two
social groups: 1) *local and indigenous communities* in general, but
specifically in mega-diverse countries and countries that are part of
centers or origin and genetic diversity (e.g. potential collateral impacts
to local and indigenous communities from the genetic contamination of native
biodiversity, resulting in the development of new characteristics not
adequate for consuetudinary uses, either as food or in cultural practices).
2) *Vulnerable and marginalized groups*, such us rural women, rural youth,
populations with tendency or chronic health and nutritional disorders.



In terms of methodological approaches for adequately including SEC in
biosafety decision-making, we think that:



-       Economic impacts assessment based on the cost-benefits rationale has
limitations. Can we assess all – or at least the most relevant – SOCIAL
costs related to adverse effects on the conservation and sustainable use of
biodiversity?



-       Based on the previous, we would like to have more input on
methodological pluralism for SE assessment, including quantitative and
qualitative methodologies.



-       The effective inclusion of the “social” component in the
“socioeconomic” considerations in the context of the CPB is restricted. As
mentioned by other participants, currently the majority of the information
available in the literature focuses mostly on “economic” impacts, several
times addressing considerations that (somehow) are not fully in line with
the scope of the CPB (e.g. reduction on production costs, consumer
acceptance, impacts on trade).



-       Normalization of methods and approaches do not necessarily means
improvement in the transparency of SEC methods. Transparency – which we
agree is crucial in ALL biosafety processes – is accomplished by timely
disclosure of information and methods, and public participation.
Normalization of methods does not guarantee this. In fact, we have some
concerns about this osrt of normalization since seems to be based in the
notion of “one fits all”. We agree with Mrs. Lim Li Ching that framing
national laws – including assessment approaches – need to be set according
to realities of the different Parties. We support instead the agreement of
principles and guidelines for adequate SE assessment approaches and SEC into
biosafety decision-making.



-       We agree with Dr. José Falck Zepeda that regulatory frameworks need
to be workable and feasible to implement. In this sense, to restrict SEC to
robust scientific information is not feasible to biosafety decision-making
processes. We believe that* *relevant and reliable information, including –
but not restricted to – scientific information is needed in biosafety
decision-making, as well as the application of precautionary approaches.



Many thanks!

Good morning to all!
It is a great pleasure to follow up and participate in these enriching discussions. I am the Assistant of the National Coordinator of the regional Biosafety Program of West African Economic and Monetary Union (RBP-WAEMU) in Rep. of Benin and also the Deputy  National Focal Point of Cartagena protocol on biosafety.
The socio economic considerations that Parties may take into account in the context of article 26 of Biosafety Protocol should  focus on   aspects concerning   producers,  users  and intermediaries and the environment   But basically the key aspects must take into account the points  underlined by M. Koffi  Dantsey

Trade distorting measures within the WTO are defined by three ‘boxes’ or categories. Green box subsidies are allowed, but only if there is minimal trade distortion. These are typically government funded programs that support production. There are also allowances for environmental protection. Amber box subsidies are those that distort trade and are targeted for reduction. In agriculture, developed nations are allowed support up to 5% of agricultural production and in developing countries 10%. The final box is Red box and these are not allowed in agriculture. Virtually all of the allowable trade distorting measures are government funded production subsidies.

When it comes to the regulatory framework required to approve products for import or production in a country, the regulatory framework must comply with the standards established by the various standard setting institutions of the WTO. These standards have to be based on sound science. These standards have been established based on the science that results from doing risk assessments on new products. For example, a buffer zone between two fields can be established at the optimal distance by using the scientific data from pollen flow studies, such as 10 meters.

Countries are allowed to include regulatory standards that exceed those of the WTO, but again, this must be based on science. For example, a country could have an eco-zone that requires a wider buffer and so for the area around the eco-zone the buffer might increase to 100 meters. If a scientific risk assessment is done that finds there is quantifiable data to support the increase in distance, this form of regulatory deviation is accepted.

What would not be acceptable under WTO protocol is to include a socio-economic assessment. For example, if a socio-economic assessment included the benefits to society or the ethics of allowing a product approval for import or production, these would be a barrier to trade. There are no established methodologies that science could readily use to gather the data required to satisfy such a condition. If scientific rational can not be used to establish the inclusion of a regulatory standard and it distorts trade, then such a standard is in contravention of the WTO.

Stuart Smyth
Univeristy of Saskatchewan

I want only to add that Science in Laboratory or even Technical Measures seen under International Instruments or even under the Competent Authority is different from the local communities perspective – the real life. If from scientific point of view the pollen is traveling for x km than contamination has not only the scientific charge but also a social component belonging to the local population - traditional knowledge – know how – education level – etc – to properly work in the plots areas under unpredictable climate conditions. Thus the real life is unpredictable at least now under the climate change threat. Scientifically it might be possible to explore the errors for buffering eco-zones according to the education level, technology, etc.,and this might not be a barrier to trade but a safety rule for the trade support

Dear Stuart,

Thanks for your interventions thus far in the discussion groups. I agree that WTO Members have an obligation to base their sanitary or phytosanitary measures on international standards, guidelines or recommendations. And in the context of the WTO SPS Agreement, the term ‘international standards, guidelines or recommendations’ refers to those developed by the Codex Alimentarius Commission, the World Organisation for Animal Health (OIE) and the International Plant Protection Convention (IPPC).

Looking at the standards of these three bodies, though, does not one also find allowances for the inclusion of socio-economic considerations in risk assessment?

I note that both the Aquatic Code and the Terrestrial Code of the OIE define risk and risk assessment to include economic consequences.

Similarly, the IPPC’s International Standard for Phytosanitary Measures (ISPM) number 11 on ‘Pest Risk Analysis for Quarantine Pests including Analysis of Environmental Risks and Living Modified Organisms’ requires, as part of the pest risk assessment, that there be clear indications that a pest is likely to have an unacceptable economic impact (see section 2.1.1.5 of the ISPM). The IPPC’s Glossary of Phytosanitary Terms includes a supplement that elaborates on this concept. It states that one of the criteria to be met before a plant pest is deemed to have ‘potential economic importance’ is “a potential harmful impact on plants, for example: ... some other specified value, for example recreation, tourism, aesthetics.”
 
Best wishes,
Kathryn Garforth

Legal Officer, Cartagena Protocol on Biosafety
Secretariat of the Convention on Biological Diversity

References:
Glossary of the Terrestrial Animal Health Code: http://www.oie.int/index.php?id=169&L=0&htmfile=glossaire.htm#sous-chapitre-2 

Glossary of the Aquatic Animal Health Code: http://www.oie.int/index.php?id=171&L=0&htmfile=glossaire.htm#sous-chapitre-2

ISPM No. 5: https://www.ippc.int/file_uploaded/1273490046_ISPM_05_2010_E.pdf. The relevant supplement is at pages 20-23.

ISPM No. 11: https://www.ippc.int/file_uploaded/1146658361551_NIMF11.pdf

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<p>I want to thank the Secretariat for allowing me to participate in this important on-line discussion about this important topic.  I am a lawyer who works for a non-profit consumer organization and believe I can contribute to this discussion.<br>
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I believe that WTO rules and agreements are extremely important to consider when trying to implement Article 26 at the national level.  <font size="4" face="Times New Roman">In general, WTO rules emphasize procedures for decision-making that primarily rely on scientific risk assessments and greatly limit the ability to make decisions based on non-safety concerns.   Those rules clearly could be interpreted to greatly restrict the role that socio-economic considerations can play in LMO decision-making and act as obstacles to countries who are concerned about the broad range of effects that could arise from imported LMOs, not just the concerns specific to indigenous people.  </font><br>
<br>
<font size="4" face="Times New Roman">WTO rules sometimes do allow the narrow use of non-safety concerns.  For example, the SPS Agreement does set forth a risk assessment procedure that includes both scientific and socio-economic considerations..  Some of the relevant economic factors under the SPS Agreement include: “the potential damage in terms of loss of production or sales in the event of entry, establishment or spread of a pest or disease; the costs of control or eradication in the territory of the importing Member; and the relative cost-effectiveness of alternative approaches to limiting risks.”  That exception, however, is narrowly defined and primarily allows for a cost/benefit analysis to play a role in certain decisions.  Therefore, to be consistent with WTO rules, countries that include socio-economic considerations in their domestic biosafety regulatory systems probably need to tailor what they will consider to only what is allowed by Article 26 (e.g. socio-economic concerns directly linked to impacts on biodiversity) which can be analyzed in a quantitative cost/benefit analysis.</font><br>
<br>
Gregory Jaffe<br>
Director, Biotechnology Project<br>
Center for Science in the Public Interest<br>
</body></html>

I also support the idea to first see the legally binding requirements under WTO and after that to go for developing SEC. Regarding the farmers’ rights under the ITPGFRA art. 9 I have to tell you that this article is not legally binding but it only recommends to Partis what “should” do. Still only art. 9.3 is legally binding [Nothing in this artricle shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate]. Still I will try to underline the legally binding requirements for Parties to the ITPGRFA in the context of other articles such as 5, 6, 7, 9.3, 10, 11, 12, 13,17, … Finally it is advisable to first consider the legally binding instruments in relation to SEC. I also agree Lucette that we should consider that not only plants should be in discussion.

Posted on behalf of Koffi Dantsey:

Under Article 26 of the Protocol, Parties may take into account , when desiding to import LMOs, socio economic considerations arising from the impacts of LMOs on the conservation adnd sustainable use of biodiversity. The Proyocol higlight in particular the need to take into account the potential impact on the value of biological diversity to local and indigenous communities .
Risk assessment under the SPS Agreement of WTO also involves a mix of scientific and socio economic considerations.
Other international oligations Parties may follow is UN Declaration on Rights of Indigenous people

Posted on behalf of Hana Jirakova and Milena Roudna:

Socio-economic considerations and rules are treated by several international organizations and forums of which the most relevant to decision-making on living modified organisms are the following:
CBD – esp. Article 8j
FAO – esp. its ITPGRFA and IPPC
WTO
OIE – World Organization for Animal Health
UN Declaration on the Rights of indigenous People.
Besides these already mentioned by participants of this discussion group I propose to take into consideration:
WIPO – World Intellectual Property Organization, especially results of Intergovernmental Committee on International Property and Genetic Resources, Traditional Knowledge and Folklore, as well as experience from some of 24 treaties administered by WIPO
UN FCCC and results of on-going negotiations due to socio-economic consequences of predicted climate change (warmer temperatures, heatwaves, severe droughts and wild fires)

Milena Roudna
National UNEP-GEF Project Coordinator, Adviser – Ministry of the Environment,
Czech Republic

The Cartagena Protocol recognizes that risks involved with respect to LMOs and products thereof have broader spectrum than the environment and health effects. This is acknowledged by article 26.
The range of socio-economic considerations indicated in Article 26 includes those arising from the impact of LMOs on the conservation and sustainable use of biological diversity, especially with regard to the value of biological diversity to indigenous and local communities. Thus, where the introduction of LMOs affects biological diversity in such a way that social or economic conditions are affected, a party can use Article 26 to justify taking such impacts into account for purposes of making decisions either for domestic application or imports. Socio-economic considerations with respect to the value of biological diversity to indigenous and local communities may also refer to the impact of introduction of LMOs on the ability of those communities to make use of the biological diversity upon which their survival and traditional livelihood depends.
  Socio-economic considerations can also be taken into account in taking decisions regarding measures for implementation of the Protocol. In the case of indigenous and local communities, some think that possible ways of taking socio-economic considerations into account could include procedures for assessing and addressing socio-economic impacts in risk assessment and management and prior public consultation processes with respect to decisions on import, especially with respect to communities that will be directly affected by the import.
Using socio-economic considerations while taking a decision on LMOs should be consistent with the country’s other international obligations.  Other international obligations include, interalia:
-The CBD: In addition to article 8j, the text of the CBD highlights the importance of components of biological diversity important for its conservation and sustainable use and the annex 1 of the CBD provides an indicative list for those components (1. Ecosystems and habitats: containing high diversity, large numbers of endemic or threatened species, or wilderness; required by migratory species; of social, economic, cultural or scientific importance: or, which are representative, unique or associated with key evolutionary or other biological processes: 2. Species and communities which are: threatened: wild relatives of domesticated or cultivated species; of medicinal, agricultural or other economic value; or social, scientific or cultural importance: or importance for research into the conservation and sustainable use of biological diversity, such as indicator species) and in most countries those are considered as protection goal
-ITPGRFA: Especially  Article 5 on Conservation, Exploration, Collection, Characterization, Evaluation and Documentation of Plant Genetic Resources for Food and Agriculture; Article 6 on Sustainable Use of Plant Genetic Resources; and Article 9 on Farmers’ Rights.
-International trade agreements, such as the Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS) of the WTO

Dear all,

As for topic 1 this is a joint reply from several of the participants nominated by Norway. Dr. Casper Linnestad of the Ministry of the Environment, Dr. Anne I. Myhr from GenØk - Centre for Biosafety and Dr. Nina Vik from the Directorate for Nature Management have discussed this topic.

In the discussion so far international obligations according to WTO, ITPGRFA, CBD (incl the Nagoya Protocol) and the UN Declaration on the Rights of Indigenous Peoples are among the ones mentioned and we agree that these may all be relevant to consider when including Article 26 in national decisions.

With regards to obligations according to the WTO we would just like to refer to pages 14-15 in the proceedings of the International Conference on GMOs in European Agriculture and Food Production, 25-26 Nov, 2009, The Hague, The Netherlands. These pages refer to the presentation "The GMO Debate Under the Rules of the World Trade Organization" by Mr. Joost Pauwelyn (Professor of International Economic and WTO Law, Graduate Institute of International Studies, Switzerland). We include here the reference to Mr. Pauwelyn's presentation in the proceedings:

"The WTO allows more regulatory measures by national governments than is generally perceived. Mr. Pauwelyn highlighted that WTO rules do not allow any discrimination in favor one of several sources of the same product. Any measure should be rationally motivated, that is, related to a legitimate objective and based on scientific or other evidence. In developing their line of argumentation countries need to define socioeconomic aspects as risk-, health- or trade-related to make them subject to either of three WTO Agreements, each of which represents a specific ‘box’ of arguments.

1. The WTO Agreement on Sanitary and Phytosanitary Measures (the SPS Agreement)
2. The General Agreement on Tariffs and Trade (GATT)
3. The Agreement on Technical Barriers to Trade (the TBT Agreement)

Examples showed that restrictions based on concern for “public morale” are sometimes allowed under the WTO.

In the discussion, specific aspects of both legal frameworks were covered. It is clear that in WTO terms, “risk” has to be defined ‘in the real world’, beyond laboratory tests. Socio-economic criteria are not a priori excluded, as long as they are verifiable
and transparent".


Best regards,

As there was a specific question regarding particular cases that have used the GATT 1994 Article XX exceptions, I'd just like to point out that in the 'shrimp-turtle case', it was clearly reiterated that WTO members have a right to take to protect human, animal or plant life and health and to take measures to conserve exhaustible resources. The WTO secretariat summarizes the case on its website, and says, "In its report, the Appellate Body made clear that under WTO rules, countries have the right to take trade action to protect the environment (in particular, human, animal or plant life and health) and endangered species and exhaustible resources). The WTO does not have to “allow” them this right."
(http://www.wto.org/english/tratop_e/envir_e/edis08_e.htm)

There have been several disputes involving environmental measures, and  key questions in these disputes are not about this right, but about e.g. whether there is a connection between a measure and the objective (of environmental protection), how a measure is applied, whether it is non-discriminatory, whether it is not more trade restrictive than necessary, etc.

Furthermore, in support of the post by Dr Nina Vik, I would like to also refer to this recent publication "Assessing Socio-Economic Impacts of GMOs: Issues to Consider for Policy Development" by Dr Armin Spoek, and published by the Austrian Federal Ministry of Health and Federal Ministry for Agriculture, Forestry, Environment, and Water Management (pg. 9):

"WTO legislation does not a priori exclude socioeconomic aspects as long as they are verifiable, transparent, and non-discriminating. In developing their line of argumentation, countries need to define socioeconomic aspects as risk-, health- or trade-related to make them subject to any of the three WTO Agreements. Since the WTO dispute, GMOs have been considered almost exclusively in the context of the SPS Agreement as if no other possibilities exist. In fact, both the TBT- and the GATT Agreement provide more scope for addressing socioeconomic factors compared to the SPS Agreement. The recent WTO dispute on GMOs concluded that it is possible to base measures on more than one agreement. Overall, it seems to be possible to meet the key requirements, i.e. a legitimate objective, based on scientific or other evidence, not more trade-restrictive than necessary, and non-discrimination when making a case for socioeconomic consideration."

The document referred to above is attached here for ease of reference. It also covers many other issues relevant to our current and future discussions on this forum!

Lim Li Ching
Third World Network