Online Forum March-April 2013

Some information to note:

International obligations have their origin, primarily, in customary international law or treaties. International trade rules represent one of the most important sets of international obligations. The primary concern of international trade rules is reducing tariff and non-tariff barriers to trade. Members of the World Trade Organization (WTO) assume various international obligations. The most important principles that form the foundation of these international obligations are most-favoured nation treatment – non-discrimination between trading partners; and national treatment – treating foreigners and locals equally.

The Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) of the WTO recognizes each country’s right to adopt the standards it considers appropriate — for example, for human, animal or plant life or health, for the protection of the environment or to meet other consumer interests. In assessing the risk to animal or plant life or health and determining the measure to be applied for achieving the appropriate level of sanitary or phytosanitary protection from such risk, Members of the WTO “shall take into account as relevant economic factors: 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” (paragraph 3, Article 5, SPS).

The last three paragraphs in the preamble of the Cartagena Protocol on Biosafety shed some light on how the relationship between the Protocol and other international agreements may be understood.

As independent observer, I have been following the posts and discussions on this forum with great interest. I would like to commend the contributors for their time investment to this forum and general clarity of thought and expression on some issues I’ve pondered in doing mainly ex post socio-economic impact assessments of GM crops in South Africa.
Regarding Question 4, and specifically the first section (..criteria that a Party may apply in order to ensure ……are consistent with international obligations?): We’ve been doing some work on the labour impacts of HT maize amongst smallholder maize farmers in South Africa. In observing the real (actual) impacts in SA (there is a substantial positive labour impact – less weeding labour for especially female farmers and female household members) and considering the potential impacts for the rest of Africa, I have come across the International Labour Organisation’s convention 169 - Indigenous and Tribal People’s Convention (1989). It refers to non-discrimination and government responsibility for developing co-ordinated and systematic action to protect the rights of indigenous and tribal peoples (Article 3) and amongst others also ensuring that appropriate mechanisms and means are available (Article 33).
My knowledge on this convention and ‘international obligations’ is limited, and I was wondering whether this ILO convention might present some ‘acceptable’ grounds / or rather place a responsibility on government in the regulation of new technologies. This convention has however been ratified by only a couple of countries, mainly in South America.
I share my countryman, Ben Durham’s, general views and specifically (adding my own interpretation) that where GM crops have been deemed to be safe for general release (through a scientific assessment) farmers and the market should be given the choice to adopt, not-adopt or dis-adopt in an enabling and (potential) socio-economic damage limiting environment.

Regards

Marnus

Colleagues
Another interesting question, in trying to answer it I should flag that my comments below represent my interpretation of the legal situation rather than a lawyer’s perspective.

Perhaps the most obvious international obligation that would seem relevant here is the General Agreement on Tariffs and Trade which sits under the WTO. Article III.4 of the 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.  Separately, Article XX on General Exceptions allows for restricting  measures to be introduced by parties under a range of grounds. The following 3 seem most relevant to LMOs and could potentially be used to justify import restrictions if they are:
“a) necessary to protect public morals;
b) necessary to protect human, animal or plant life and health, or;
g) relating to the conservation of exhaustible natural resources“

However, in justifying such a restriction under one of these 3 measures the party would need 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”.
So the legality of any import restriction would appear to hinge upon whether or not an LMO import is ‘like’ a domestic good/product and upon the demonstration that any restriction is justifiable.

Justifying an import restriction under public morals may be difficult, particularly if, for example, a party is trying to restrict the import of a GM crop intended for cultivation in their territory whilst simultaneously they import the same (or any other) GM crop for food/feed/industrial uses.

In terms of the other two grounds above similar difficulties can also be envisaged. A number of international systems for regulating LMOs are based upon the principle that, following a comprehensive scientific risk assessment, it is demonstrated that an LMO is as safe as its conventional counterpart. This principle of substantial equivalence might make it difficult for any parties to demonstrate that an LMO is not ‘like’ it’s conventional counterpart – particularly if that LMO is being used to any great extent in other countries.

Another difficulty concerning LMOs, and particularly crops, is that many of the traits which biotechnology can deliver (such as herbicide tolerance or insect resistance) can also be bred into crop varieties conventionally. If a party sought only to apply import restrictions to genetically modified varieties and not conventionally bred varieties  with the same trait then it might be harder to justify that this did not constitute unequal treatment.

So, whilst there is some latitude within international obligations to allow for import restrictions, the general purpose of rules under - for example - the  WTO,  is to facilitate free trade, not prevent it.  As such, any decision to apply an import restriction needs to be approached with caution. Anything which may be constituted as unjustifiable discrimination is likely to be challenged, and I think it would be very difficult to say ex ante whether or not an import restriction is likely to withstand such challenge as it would depend on the individual detailed circumstances of each case.

Regards

Mike Rowe,
Department for Environment, Food and Rural Affairs
United Kingdom

Dear colleagues,

I read Mr. Mike Row’s posting regarding the obligation under the WTO agreements with great interest. Understanding this is very important for regulators so they don’t contradict agreements,  if their countries are signatories to the  Cartagena Protocol but also to  other international agreements.

An important topic of instruction during my training in risk analysis (by USDA/APHIS) of pest and diseases was understanding  Sanitary and Phtyosanitary (SPS) issues  and the relevant  articles of the WTO for phytosanitary concerns.

The biosafety “reglamento”  (rule or guidelines) for  agricultural biotechnolgy in  Honduras  sits under the Phytosanitary Law and the Phytosanitary law is very clear in it’s guidelines of what constitutes legitimate trade barriers and what would be considered illegal.

Argentina seems to have a lot of experience in these matters. I wonder if any of our Argentinian colleagues would like to comment on the law suit, or something on that nature, that Argentina and other countries filed against the European Union moratorium against GMOs. Whatever the reasons or the outcome, regulators have much to learn from this experience.

Best regards,

Maria Mercedes Roca

Dear colleagues

Very useful posting by Mike Rowe.

A key issue, however, that I have noticed over the years, is the difference between theoretical principles of international agreements and practical reality. (Noting that I too am not a lawyer, nor am I that familiar with trade issues)

For example, LMO's commodities (food/feed) can only enter a country if there is a entity in that country that is wanting to import such commodities and willing to obtain, where necessary, the appropriate permits. If the consumers of that country, in the opinion of the importer, are unlikely to want GMOs, that importer is unlikely to source GMO commodities, regardless of international agreements. So consumer preferences will predominate (as I believe they should providing there is freely available, evidence-based and useful information). In this case - clearly a socio-economic issue  - it would appear to run 'below the radar' of GATT principles of free trade (?).

In other countries, such as South Africa, price is the overriding (to generalize) consideration, and providing there is regulatory approval (related particularly to human & animal health), then if a GMO commodity can be sourced at a cheaper price than a non-GMO (generally the case), it will receive preference.

One could imagine, as for SA, that there is a mix of importers and imports catering to the differing consumer preferences.

What is less clearly related to 'free trade' (at least to me) is the development and introgression of GMO traits within a country (usually, but not always, by the multinationals) into local varieties. This is not really a trade issue (although it clearly has trade implications), and so can be regulated under domestic law, with little (?) regard to trade agreements (noting that our domestic Biosafety law does include scope foe SEC's)

I'd greatly appreciate comments on this, particularly on how this interfaces with the posed question...

Regards

Ben Durham

I can see how Ben Durham gets to the conclusion that "consumer preferences will predominate", but I find it a bit strange for these reasons:

I do not think that anyone can argue that GMOs have been developed  in response to consumer demand. (I realise Ben Durham is talking about importation.) In the US, producers of GMOs have blocked every effort to inform consumers that a product is GM (through labelling).  If GM food were a response to consumer demand, this would make no sense.

However, imported GM food may well be cheaper for South Africa, because: the US has refused to confine or segregate effectively, so especially from that food-production area it is impossible to get non-GM supplies of certain foods; and because consumers elsewhere, where GM food must be labelled, don’t want it--with this drop in demand and need to get rid of (subsidised) supply, the price drops.  I realise that Ben Durham is saying that it is the discounting rather than the GM content that can result in consumers (hypothetically) preferring it, but it would be misleading to construe this as a consumer preference for the GM variety, as it actually derives from a consumer preference for non-GM!

Thanks for the rich debate!

With respect to the comments by Dr Joanna Goven (#4838): I could imagine their validity in a developed world or European context, where the vast majority of consumers can afford the luxury of choice. But we are debating this here in a global forum because there are differences across the globe. 

Three points (one made earlier):
1) in Europe, Consumers can be seen as a different subset of the population from Farmers. I think I've read, for example, that 2% of the French population are farmers.  European/developed world consumers may therefore not see a benefit of GMOs, where the benefits -at present- focus on Farmer benefits.  But at least here in Africa, where well over 50% of the population are rural, the majority of consumers grow food for their family's/community's consumption. The benefits of GMOs (eg. insect/disease resistance) thus can/could be directly appreciated by African consumers because they are also farmers.
2) I think the statement that GMOs have not been developed in response to consumer demand is at least misleading. One could say the same about cell/mobile phones- the consumer at some stage probably wasn't aware of technological advancements that could allow GM or cellphones.  But the wildly successful uptake of both cellphones & GM (the latter tracked by ISAAA) is surely reference to "consumer" need/demand?  (I am aware that some may see this as conflating demand for food supply with GM demand, but the remarkable inroads of GM into non-GM technologies does defend this point). It can be noted that GM growth is particularly steep in the developing countries, where the luxury of choice may not exist for many, and where GM crops are a more cost effective means of putting food on the table.  Surely this is demand?
3) I must respectfully disagree with the implication that Dr Goven makes which suggests the only reason that GMOs may be cheaper is due to lack of demand.  While I of course agree that poor demand will contribute to deflated prices, it makes no economic sense that a technology has been developed AND adopted that increases food prices. Why would farmers prejudice their possibility of selling their products at inflated prices (together with the perceived negative sentiment against GM) by using a GM crop? The farmers may not want to pass on the cost saving to consumers, but the increasing supply will have that effect.

Regards
Ben Durham

While I certainly agree that in a market economy those with more money have more choice, I do not see what this comment about the “luxury of choice” has to do with my posting.  My comments were made in response to Ben Durham’s statement that “consumer preferences will predominate”, and in South Africa this means that “if a GMO commodity can be sourced at a cheaper price than a non-GMO (generally the case), it will receive preference.”  I provided reasons why actual consumption of GMOs is not necessarily a reflection of consumer preference for GMOs, whether we are talking about developed or developing countries.

Regarding point 2, I certainly agree that consumer demand for many products is created after the product has been put on the market, rather than driving the creation of those products.  Indeed, the enormous advertising industry should make us question any simple notion of consumer demand driving the menu of choices in market economies.   I do not think the spread of GM (in particular crops and countries) can be assumed to be demand-driven, though of course it may be, at least in part.  My point about denying consumer choice by refusing to label still stands, however.  As does my point in a separate post about the impact of one individual producer’s choice on another’s.

Regarding point 3,  I did not actually imply that the ONLY reason GM food is cheaper is lack of demand; I said it was a contributing factor. This was in response to Ben Durham’s statement that it is “generally the case” that “a GMO commodity can be sourced at a cheaper price than a non-GMO”.  Similarly, I did not say that GM technology “increases food prices” -- though in fact it is not difficult to imagine how the development and adoption of GMOs could result in higher food prices in the medium or long term, if we take into account socio-political context, the structure of the global agri-food industry, and monopoly power.  It is perhaps worth remembering here a point made in earlier discussions about the loss of access to non-GM seeds.

Mr. Rowe's information is very useful. Socioeconomic considerations may not be used as a barrier to trade. In my opinion such considerations should be applied when a country designs policies  to develop a certain region. Import or not importing a specific LMO can be an instrument for this development policy.

POSTED ON BEHALF OF Carlos Almendares, Honduras:

Dear Colleagues:

In response to Question 4, for us it is important to establish that we intend to apply Article 26.1 as it is defined (non-mandatory), starting from that premise, we are able to answer the general question by saying that there is no international treaty obliges signatory countries to adopt “economic considerations” in their import decisions under that provision, no clutch, there is an international agreement that gives the discretion to countries that want to use these considerations in their import decisions, for this, the Secretariat need to do a work to facilitate the use of these concepts to the countries concerned and to be consistent with the universal rights of access to knowledge, free trade treaties, among others.

As a recommendation, I suggest differentiating the topics of a risk assessment of the socioeconomic aspects that I have noticed in this forum that there is a tendency to confuse and mix, all those fears related to the environment and health are addressed in the risk assessment and can not serve as an argument to justify reason of the socioeconomic considerations.

With this I close my participation thanking in advance to the Secretary General and his staff mainly Mrs. Paola Scarone for all the facilities provided to my participation wishing to generate a document that can support the needs of the parties without prejudice to their decisions.

Best regards.

Carlos Almendares
PFP-Honduras

Dear international colleagues,

I took finally a true post-Easter free end of week, last monday included, and could thus not participate in the very end of the preceding session, leaving some participants alone with remarks I made on some of their postings........(  I shall very briefly answer them in a following message ).

Some comments on the question of this week.

The Secretariat and Mike Rowe pointed already main articles of the GATT and of the SPS Measures of the WTO which are related to our discussion, and which are: Art. 5.3 of SPS, Art. XX of the GATT , accompanied by the Art. III.4 of the GATT ...........

Indeed, WTO and the GATT do not by principle allow restriction of trade for pure economic reasons.

But the SEC concerned in Art. 26.1 are 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." ( And various postings in preceding sessions illustrated that such SECs can arise even in cases where current official ERA processes lead to the conclusion that there is no evidence for important harm to biodiversity by the concerned LMOs ).

With this in mind, Art. 5.3 of SPS is indeed important to pinpoint as foreseeing a mix of biosafety and SECs to allow trade restriction measures. The 3rd bullet of Art. 5.3 ( "the relative cost-effectiveness of alternative approaches to limiting risks ") in particular allows to call for ex. for alternative agricultural ( or eco-agro-food ) systems able to solve the problem presented to be solvable by a particular LMO and to compare the cost-effectiveness of the different systems ( again, having in mind the sustainability notion ).

Concerning Art. XX of the GATT - that also allows to take measures to reduce import of products in various cases - , I agree with Mike Rowe that the bullet " necessary to protect public morals" could be difficult to accept if LMOs are refused on that base as import for cultivation but are accepted as import for food/feed/products. ( I personally find that this would look like a NIMBY syndrome ......... ). However, this Art. could be applicable for countries refusing LMOs for all uses, " especially with regard to the value of biological diversity to indigenous and local communities." This "value" can indeed be related to "public morals".

If the bullet of Art. XX  ( that allows to reduce import of products and take measures ) " necessary to protect human, animal or plant life or health " should normally be overcome by the RA process, the bullet " relating to the conservation of exhaustible natural resources ......" could very closely be applicable in relation with Art. 26.1 of the Protocol, precisely in cases where the ERA process does not cover all potential considerations for the protection of exhaustible natural resources, ( and in particular with regard to the value of biological diversity to indigenous and local communities ), part of which is sometimes covered by other national legislations.
The end of this bullet is saying: " ..........if such measures are made effective in conjunction with restrictions on domestic production or consumption. "  This means a.o. that same LMOs should not be produced inside the non-importing Party, which would obviously be protectionism. ( Logically, the countries that would refuse the import of LMOs for reasons relating to the conservation of exhaustible natural resources would also probably not develop and use this LMO inside the country ).

About the famous Art. III.4 of the GATT ................
As mentioned by Mike Rowe, he gave his own interpretation and not this of a lawyer's perspective, and so do I. But I precisely believe that is article is one that can give fun and work to lawyers during weeks, months or years ( and it has already ........ )  ..............

This article indeed says that " the products .......imported ...... shall be accorded treatment no less favorable than that accorded to like products of national origin".
The "like products" of natural origin could be either 1) similar LMOs produced inside the country, or 2) non-LMO counterparts.
In the 1st case, we are back to two § above.
In the 2nd case, would this thus mean that no maize could be sold and eaten anymore in Mexico if Mexico would refuse the import of LM maize?

I went again to the dictionary and look for the definition of "like products" , that can definitively allow various interpretations. To make it brief, "like" can mean " identical, equal, same, ...   " but also  " looking like, equivalent, analogous, approaching.....". "Like" is often translated by " similar" which has in itself an ambiguous meaning, but which is explained in some definitions by " of the same nature" .

Obviously, LMOs are looking like, have something in common with their non-LMOs counterparts.
But, they are by definition not identical to their non-LMOs counterparts, at least by the presence of the transgene.

As said by Mike, in some cases, analogous characteristics as these given by the transgene can exist in organisms obtained by conventional crossing; but these organisms neither are "identical" to the concerned LMOs.
In the context of the Cartagena Protocol, and thus for the Parties to the Protocol, LMOs precisely differ from organisms obtained by conventional crossings: they are defined as having " a novel combination of genetic material obtained through the use of modern biotechnology" .
Modern biotechnology is defined itself in the Protocol, as overcoming natural physiological reproductive or recombination barriers and being made of techniques not used in traditional breeding and selection. One could thus consider that LMOs and their non-LMOs counterparts are not "of the same nature". And the Protocol and the Parties to the Protocol consider that this difference in itself between LMOs and non LMO counterparts is enough to deserve special RA and legislations .

Concerning the principle of "substantial equivalence" evoked by Mike, this again is not a principle of "chemical equality" but of "nutritional analogy" and it is not a principle universally accepted as a basis for RA, neither by scientists neither by legislations.

In summary, I personally believe that these articles of the GATT and of the SPS measures of WTO should logically allow without problem, if adequately formulated ( explaining well the basis of the decision of non-import as not being trade barrier, protectionism, and that the refusal of import is necessary to achieve the legitimate objective pursued ) , to take measures to restrict import of LMOs on the basis of Art. 26.1, when the trade would be between Parties to the Protocol.
Where there could be conflicts around the use of these articles, and where the conclusion of the conflict could be at the discretion of the judge, could be when the exporter would be a non-Party that has another interpretation of the difference/similarity between LMOs and non LMOs counterparts and where in particular LMOs have been deregulated.

With best regards to all of you.

Lucette Flandroy


PS: Concerning the last question of Ben Durham, related to introgression of GMO traits within a country, I am not sure to understand totally clearly the question, which is in any case surely important.







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

Good day!

Some observations regarding the relationship between the CPB and other international treaties

1) The real potential that the inclusion of socioeconomic considerations can become or be used as a barrier to trade would be a red flag for countries to carefully consider if and how to include socioeconomics in their decisions on imports.

There are several issues to consider for avoiding entering into a trade dispute situation. We discuss some of these issues in the upcoming article “Socio-economic Considerations and International Trade Agreements” in the Estey Centre Journal of International Law and Trade Policy coauthored with Stuart Smyth of the University of Saskatchewan in Canada (available upon request):

<STARTQUOTE>
“As we discuss in this article, especially with regard to the EU biotech case, the inclusion of SECs in biosafety decision-making will have to be non-discriminatory, will have to minimize trade barrier impacts and will have to be based on scientific principles recognized in accepted international protocols, probably based on a risk assessment. Since there is no international protocol on socio-economic assessments, such as those for food/feed safety assessments included in Codex Alimentarius, we speculate that to minimize the possibility of non-compliance with the SPS measure rules, any SEC inclusion will need to comply with those elements of best practice that experts in the field have set forward in guidelines and other documents. This may require further negotiations under the CPB and a ruling by the WTO Dispute Settlement mechanism to fully determine whether this is sufficient to comply with the technical requirements such as those in the risk assessment procedures.

Another issue for the potential inclusion of SECs is that any issues included in the assessment may be judged under the standard of scientific evidence and thus would require a scientifically-based assessment for inclusion. The WTO Panel report indicated that the procedures needed to conduct a risk assessment would have to be specific and compliant with the specific protocol steps to ensure a robust risk assessment. Indirect evidence such as peer reviewed publications, although contributing to a robust risk assessment, would not be sufficient scientific evidence unless they meet the requirements of assessment procedures considered best practice.” <ENDQUOTE>

2) Issue of membership: There are countries who are parties to one protocol and not another. Most countries are parties to the WTO. Rules for trade between parties and non-parties are then subject to bilateral and/or limited multilateral agreements. Inclusion of SEC under these circumstances will have to be clearly spelled out and negotiated to avoid trade disruptions.

3) CPB does not have a dispute settlement mechanism. An importer can unilaterally impose a import decision that may become a trade barrier based on SEC issues without the exporting countries having any recourse to appeal such decision. If both countries are members of WTO, any trade related dispute arising from the inclusion of SEC under the CPB between countries will likely have to be resolved by the WTO settlement mechanism under WTO rules.

4) SPS measures are quite specific in their application and scope. As we describe in our paper with Stuart Smyth:

<STARTQUOTE>“SPS member countries have the right to implement SPS measures to protect human, animal and plant life within their territory. This is not an unlimited right as the SPS Agreement requires that any measures used to protect human, animal or plant life or health be necessary for protection. SPS measures have to be based on scientific principles and maintained over time based upon scientific evidence such as those in a well-defined and accepted risk assessment procedure. Annex A.4 of the SPS Agreement defines risk assessment as:

-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.-

SPS measures cannot be arbitrary or discriminatory and cannot be a disguised trade restriction, nor can they be more than necessary to allow protection while minimizing trade restrictions. In those cases, where there is insufficient scientific evidence, the SPS Agreement allows temporary measures for protection based on available and pertinent information, but members are mandated to review temporary measures in a reasonable period of time by seeking additional information necessary to conduct an objective risk assessment.  The conditions under which temporary measures are allowed are considered to be cumulative and equally important in defining whether temporary measures are compliant with a SPS measure.”

<ENDQUOTE>

I will see if I can publicly share the article with Stuart Smyth as it goes into a lot of detail  about these issues.

Two really useful articles discussing a lot of the background and issues are

Sabrina Safrin. "Treaties in Collision? The Biosafety Protocol and the World Trade Organization Agreements". The American Journal of International Law, Vol. 96, No. 3, pp. 606-628, July 2002. Available here http://papers.ssrn.com/sol3/papers.cfm?abstract_id=658561

Anna L Hobbs, Jill E Hobbs, William A Kerr. "The Biosafety Protocol: Multilateral Agreement on Protecting the Environment or Protectionist Club?" Journal of World Trade
39(2) : 281±300, 2005. Available here https://www.cbd.int/doc/articles/2005/A-00435.pdf

Other interesting references are:

Peel, J. 2007.  A GMO by Any Other Name . . . Might Be an SPS Risk!: Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreement. The European Journal of International Law 17: 5: 1009-1031.

Zarrilli, S. 2005. International Trade in GMOs and GM Products: National and Multilateral Legal Frameworks. Policy Issues in International Trade and Commodities, Study Series No. 29, UNCTAD, United Nations, New York.

Isaac, G.E. 2003. The WTO and the Cartagena Protocol: International Policy Coordination or Conflict? Current Agricultural and Food Resources Issues, Canadian Agricultural Economics Society, N u m b e r 4 / 2 0 0 3 / p . 1 1 6 - 1 2 3.

WTO and all of its associated agreements and guidelines including SPS are political, not technical or scientific, instruments.  The same is true of national regulatory agencies and their processes.  They are political processes, reflecting societal power and conflicting interests, that selectively draw on science.  The science that is available to draw upon is also a “selection” of scientific knowledge that could hypothetically be available because real-world science (especially what science does and doesn’t get done, by whom, and how) is a product of political and economic power-laden processes.  While it is not within the power of participants in this discussion to change this, we should not confuse our own thinking by equating the products of these inherently political processes with abstract “science” or with some kind of apolitical technical knowledge. It is, in my view, ill-advised to use such products to obstruct meeting legitimate policy goals.

Dear international participants again,

As announced this morning, here first some brief reply to late postings of Dr. Zepeda and of Ben Durham of last week.

2 remarks" :

1)      My statement in posting n° 4733 : " But I do not agree with him that local communities, farmers, should just be allowed to test these technologies without proper information and without first assessment by independent experts helping policy makers" , that Dr. Zepeda did not recognize in his posting n° 4734 as reflecting any of his comments, was indeed not directed towards him but towards a comment of Ben Durham ( whom I mentioned in the sentence preceding that statement ) in his posting n° 4708 finishing by " we should rather let the communities/individuals test and decide by themselves. "

2)      While Ben Durham is recognizing a well-reasoned plea of mine ( in posting n° 4689 ) for better and more sustainable environmental management, he considers that my conclusions in that posting overemphasize the role of GMOs; I guess he means the "bad" role of GMOs. I just want to precise that in § 5 of my posting n° 4689 I said that " LMOs  should not be considered as engaged in a sustainable agricultural system WHEN they go in the same direction as conventional agriculture, etc....  " ; I did not say : " .......... BECAUSE they go in the same direction .......... "; so, I recognize indeed that all LM plants are not automatically engaged in an agricultural system unsustainable for the environment.



Further, I take the opportunity of this message to add some international agreements in complement to all those already mentioned, that Parties should implement and to which they could refer when they want to take SEC related to Art. 26.1 of the Protocol into account. These are:

-           the Aichi Biodiversity Targets approved by Parties to the CBD in 2010, that foresee different strategic goals and actions to reach the targets of the new Strategic Plan of the Convention by 2020, a.o. the development of participatory National Biodiversity Strategy in each Party, the integration of biodiversity values into national and local development and poverty reduction strategies and planning processes, the development and implementation of strategies to safeguarde genetic diversity of cultivated plants and farmed and domesticated animals and wild relatives, the restoration of ecosystems  and their services, .........

-          the decision 32 of COP10 of the CBD, relative to Sustainable Use of biodiversity, referring to Guidelines for the Sustainable Use of Biodiversity annexed to Decision 12 of COP VII, calling for cross-sectoral integration and coordination of different related sectors to fully account for the value of biodiversity and ecosystem-services in decision-making, for incorporating customary use of biological diversity into national biodiversity strategies, policies, .......

-          the decision 34 of COP10 of the CBD relative to Agricultural Biodiversity, recognized as important for food security and nutrition including by FAO and to reach MDGs 1 and 7, that asks a.o. for on-farm conservation of agricultural biodiversity and for support to farmers for in-situ conservation of traditional and local varieties, for consideration of underutilized crops and wild relatives of cultivated plants to improve human nutrition, that emphasizes the maintaining and restoration of agro-ecosystems and the biodiversity within them as an opportunity for sustainable increase in agricultural productivity, for further action on reducing nutrient loading caused by some agricultural practices, for coherence between work on agricultural biodiversity and work on sustainable use of biodiversity ( recognizing the importance of agro-ecosystems for the conservation and sustainable use of biodiversity ), ......

-          the decisions 40, 41 and 42 that foresee measures to allow the effective participation of indigenous and local communities in the work of the Convention and measures to ensure the respect of their cultural and intellectual heritage.

So far for now.
Kind regards.

Lucette Flandroy


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Dear Lucette,

I believe my preferred option would be that once the event/product has undergone a risk assessment (proportional to the risk involved) and has been deemed by the competent authority to be safe based on the agreed-upon standard, then to let producers decide what the value of such technology is to them as they are the first ones who will reap the benefits of the technology.

This of course implies promoting the necessary flows of information/knowledge about the technology including its use, impact and all the relevant market information flows. There have been quite a bit of issues with these information/lknowledge flows -which we have documented and flagged in many of our publications- which will need to be proactively addressed especially in the plans for ensuring long term use. Those of us who work in the international not-for-profit public sector, will have to have a much proactive role in helping these information/knowledge flows reaching farmers in developing countries.

Dr. Falck-Zepeda [#4799] wrote in response to Lucette Flandroy [#4797]…”I believe my preferred option would be that once the event/product has undergone a risk assessment (proportional to the risk involved) and has been deemed by the competent authority to be safe based on the agreed-upon standard, then to let producers decide what the value of such technology is to them as they are the first ones who will reap the benefits of the technology”.  So how does this assessment occur, and who decides what is admissible evidence – whose experts – the USDA God forbid? Also, what was not said was – and society pays for any mistakes and environmental damage -- and besides what recourse is there.  For example, a St Louis Post-Dispatch newspaper editorial wrote that before the Agriculture Appropriations Bill (HR 933) in the USA was passed to be signed by President Obama, special interest riders got included without debate (specifically Section 735 put by Sen. Roy Blunt, Republican of Missouri where Monsanto is headquartered). This news article is compelling reading (http://www.stltoday.com/news/opinion/columns/the-platform/editorial-blunt-s-monsanto-protection-act-undermines-legislative-process/article_9ebdf98a-950c-5e84-a1b4-ab9462b32db4.html). The article states that “The upshot of this rider is that GMO corn and soybean seed — most of it Monsanto seed for crops resistant to Monsanto’s Round-up herbicide — already in the ground can stay in the ground, no matter what any court might say. It orders the Department of Agriculture to ignore any federal court decisions that would block use of USDA-approved seed containing genetically modified organisms.” This article is an interesting counter point of the truly powerful to the vignette posted by Dr. Mercedes Roca [#4802] concerning a newspaper (La Tribuna 20 august 2004) that  printed an article by a politician supposedly  funded by the Via Campesina supposedly conflating GMO and AIDS, and the benefits of a green field to a happy farmer. How unfortunate! Via Campesina is not a well-funded group by any standards, but is at the leading edge in protecting the socio-economic rights of indigenous people and the environment that need to be considered as we plunge headlong into the homogenization of their and our agriculture.

All the implementation discussions of the Cartagena Protocol on Biosafety and the approaches followed by those countries who are non-parties recognize a competent authority who does the risk assessment, makes a recommendation and in some cases even makes a decision regarding LMOs. Most countries that I am aware of have either a National Biosafety Commission (Committee, Agency, or Authority) or a set of Ministry/Department level agencies to perform such functions.

These regulatory processes are usually described in existing laws and regulations, or in biotechnology/biosafety specific laws and regulations. Questioning this approach is a matter of personal opinion as it would go against current practice. Do regulatory systems need improvements? Sure, by nature regulatory systems undergo never ending improvements partially based on new challenges as there is no best approach to regulation.

Although the issue of Section 735 of HR 933 in the USA is a matter of internal discussion, you can find an alternative view on the matter in the Genetics Literacy Project here http://www.geneticliteracyproject.org/2013/04/01/monsanto-protection-act-separating-the-facts-from-the-fury/

I presume that when you define Via Campesina as an organization at the forefront of defending socioeconomic rights you do recognize that it is a pressure group and thus has its own set organizational objectives and thus representing one view of the world being one more stakeholder which allegedly represents other stakeholder.

The Mercedes Roca post did not cause me personal distress, rather I worry that individuals could publish such things (no I don't need a copy) and that it would used as supporting argument. Via Compesina is an advocacy group for indigenous and poor farmers as much as group like the Genetic Literacy Project are pro-biotech industry advocates  that dismiss and explains away valid concerns over GMOs. Section 735 of HR 933 in the USA is more that a local issue - more than "...a tiny provision attached to a massive agricultural spending bill signed into law ....". Why was it needed? Why wasn't it debated in the legislature? it is  symptomatic of the gross economic asymmetry that is evolving in the USA with implication for the world.

Further, as an applied ecologist/analyst, I am concerned that research on field and health aspects of GMOs is grossly insufficient (economic panel data analyses aside), constrained by IPRs, and that international trade agreements will trump socioeconomic and environmental considerations.

Regarding leaving adoption of GM crops to the individual choice of producers: one difficulty with leaving adoption to individual choice is that (as we have seen) many GM crops cannot be, or will not be, completely contained/confined.  So one individual’s choice to cultivate GM crops may effectively remove a neighbouring individual’s choice not to.  This may have significant consequences for the second individual, in terms of, for example, markets for his/her crop and ability to save seed.

Dear All

Regarding another posting of Dr Goven (#4839) about impossibility of containment between farmers with adjacent fields.  I fully appreciate the financial implications that may accrue to the non-GM farmer - s/he may be required to sell the product at a lower price precisely because they may no longer be labelled as non-GM (and his/her profits further eroded as the costs for cultivation may have been higher than the GM variety.)

However, what is the situation in certain developing world contexts, specifically in relation to subsistence or community food production, where gene flow happens? (Noting (1) that there are far higher levels of subsistence in developing world contexts, and (2) that, nevertheless, there are huge commercial farming interests in the developing world too.)

We must assume both varieties (grown in adjacent fields) are commercially/socially available.  This means that the GMO has been approved as 'safe' for human consumption, and is considered to be 'safe' for the environment, and the non-GM variety can be considered 'safe' because the crop probably has a long history of use.  As these are primarily for subsistence (with perhaps some local community trade), does it in fact make a difference if there is any gene flow?  When there is no pest infestation, the non-GM farmer may be better off (financially) as the GM farmer would have paid a premium for his/her seed.  If there is a pest infestation, the GM farmer would be better off because s/he still would have a crop.  But at the subsistence level, there is not a financial cost resulting from growing GM or non-GM - the outcome/result is food that supplements whatever meager / non-existent income s/he makes.

I hope this illustrates that we need to allow for a far more sophisticated view of regulating GM crops as there are likely to be more exceptions than generalities, and principles that are strongly held in one region may be radically different from those strongly held in another. When this comes to globally agreed principles, these will have to be at a high level such that they do not prejudice the varying interests particularly of indigenous and local communities.

A last point: to simplify an earlier posting.  If one assumes 'consumer preference' to be a socioeconomic issue, then socioeconomic issues have a very strong effect on world trade, despite WTO/GATT agreements.

Regards,

Ben Durham

Ben Durham makes a good point that strictly subsistence farmers need not fear price impacts of GM contamination.  But presumably the right to save seed is very important to many subsistence farmers.  This was the second of the two examples I gave of the impact of one producer's individual choice on another producer.  I do not think it can be safely assumed that GM-seed companies would be happy to see farmers get that unpaid-for "extra benefit", resulting from contamination, year after year.  Indeed, they have shown that they are not -- they have prosecuted farmers for violation of their IPR in such circumstances.  (I realise that GM crops may be developed by non-profits who waive their IPR, but as most of the examples in this forum are of proprietary GM crops imported into developing countries, the behaviour of these companies is a relevant consideration.)

Dr Goven raises the important point of seed saving in the subsistence context, and with potential IP consequences to geneflow from GM to non-GM.  The latter was also raised by Dr Gutierrez (although not in relation, I think, to subsistence).

I haven't managed to get my hands on a reliable South African figure for seed saving (does it exist?), but I have been given estimates of 10% to 30% (seed savers) for maize. Such practices are, I assume, probably largely limited to subsistence farmers (as generally our commercial farmers use hybrid seeds and/or GM hybrids).  I consider it very unlikely that the multinationals would pursue prosecution of subsistence farmers because of geneflow in South Africa.  I like to think that our constitution, policies and laws (i.e. not biosafety-specific laws) would safeguard their (subsistence farmers) interests. 

Indeed, the fact that the multinationals are willing to allow (or are actively pursuing) royalty-free licensing of their technologies for (products for) small scale and subsistence farmers, would suggest that prosecution of subsistence farmers is the last thing on their minds.

The issue - as we are aware - is very different in the Developed World, but again argues for sophistication in our approach to GM regulation...

Regards

Ben Durham

Dear Jose,

Many thanks for the useful references you posted.

Having participated in training activities in risk assessment (first as a student, later as an instructor), it is my impression that many regulators in developing countries, especially those that come from the Ministries of Environment, are not very familiar with international trade agreements (WTO, SPS measures, Codex, etc) since their background and work mandate  is more in ecology related issues. Indeed, many focal points to the CP on biosafety come from Ministries of Environment that normally have little to do with agricultural trade.

Although CTNBios (biosafety committees) need to be multidisciplinary and also have an agricultural outlook, an ecological outlook tends to dominate many biosafety committees, with less regard for food security agendas and economic development through agricultural activity.

Training agendas for risk assessment need to take into consideration training in  international trade agreements, or regulators will be stuck in their jobs.  

I look forward to reading these interesting and important articles.

Best regards,

Maria Mercedes Roca

Thanks Dr. Roca for your contribution. In fact, this is the rationale for other Ministries such as Agriculture, Science/Technology and others to be active participants in these discussions as their expertise would help clarify many of these issues.

Clearly, the CPB is not only about environmental/biodiversity protection as it bases the outcome of its decisions on modifying trade. By focusing on imports it really forces the discussion to consider the lines of causality by which to attribute impacts.

Your observation and suggestion has quite important implications in terms of capacity building/strengthening efforts which in our Program for Biosafety Systems (PBS0 and through other programs such as the Latin American Biosafety Project (LAC-Biosafety), African Biotechnology Network of Experts (ABNE) abscribed to the NEPAD/AFrica Union, RAEIN Africa and others service providers have attempted to bridge somewhat, although we have barely touched the surface of these discussions.

Forthcoming paper. This is an accepted draft that has some minor reviews and additions pending including discussion on membership in agreements, CPB lack of a dispute settlement mechanism, and a clarification of the way we use "narrow" scope of Article 26 in the article...narrow in the sense that the SEC relevant under Article 26 are those derived from the impact on biodiversity value to local and indigenous communities from the adoption of an LMO. Impacts themselves can be many and broad.

Smyth, Stuart and J. Falck-Zepeda. 2013 (forthcoming). Socio-economic Considerations and International Trade Agreements. Estey Centre Journal of International Law and Trade Policy.

Regarding the flow of information being discussed by Jose and Lucette, on what information  reaches farmers and  consumers,  and letting farmers decide on the benefit on the technology, I have a few interesting/disturbing anecdotes to share with you.

In Honduras, a main newspaper  (La Tribuna 20 august 2004)  printed an article by a well known politician being  funded by the Via Campesina (European NGO working with indigenous and local communities).  The headline of the article is : “Maize with gene associated to HIV-AIDS is being cultivated in Honduras – transgenic variety introduced by transnational”. The article is one page long, has big colorful photographs of Monsanto’s GM maize and goes on and on about the many “dangers of GMOs documented by science”, including the very real possibility of contracting AIDS by eating this GM maize or any sub product.  I cannot tell you the upheaval and concern this article caused in the general population, since maize is a staple in the Honduran diet – and how much time I personally had to spend on the phone of a radio station who invited me,  to answer calls from concerned citizens wanting to know if this was true.  A colleague of mine from the National University  and also from the CTNBio and myself, wrote a rebuttal (to this nonsense), which was printed as a very small article in the last pages of the same paper a few weeks later. Probably nobody read our article, while tens of thousands read the front line news about the “HIV maize”. People still talk about the HIV maize.

Anti GM-campaigns are very effective – and they are very well funded and orchestrated by external funds from industrialized countries.  Regulators see and absorb the content of these campaigns. They know what effect they have on the minds of the general public,  who will judge them later.
   
Last year, I stopped by a small farmer’s field (less than 2 hectares) while travelling with my children in a rural area, as the greenness and health of his plot struck my attention. I wandered if it was transgenic maize.  When I asked the farmer what variety he was using, he cocked his head and sheepishly and almost in a whisper he said: “well, it is one of those seed they call “transgenic" -- I know they say it has molecules from spiders and scorpions and it is meant to be really bad for you and for the land… but…I get really good results with them and don’t need to apply any poison to kill the bugs or sweat under the sun to weed". Once he decided he could trust me, since I was not launching into criticism of his choice, he asked: “are these varieties really as bad as they say”?  I asked my teenage daughter to make a little video of this exchange using her cell phone. Por governments and local  universities don’t have resources and budgets to work on  extension services to ensure that   “the flow of information” is accurate for farmers.

Reagrds,

Maria Mercedes Roca

If my esteemed collegue Dr. Guitierrez would be interested, I would be happy to send an email to his personal address of  a scan of the article posted in la Tribuna in Honduras on the 20 August 2004. I apologize if this touched a raw nerve (I sense it did and it was not my intention to upset anyone). Dr. Gutierrez could see for himslef that, at least the politician in question claims links to la Via Campesina, or the author of the article erroneously says so.  The reader is led to belive that important representatives of  this NGO have something to say about the GMO issue.  I am a humble academic and IPM practitioner  (now turned regulator) and I try to avoid the nasty games of politics.

For the record,  the first paragraph of the newspaper article reads as follows: "En el país se están cultivando 2,000 Ha de maíz transgénico que posee un gen que puede tener relación con el el VIH-SIDA, denunció ayer el diputado del Partido de Unificación ....xxxx  y dirigente campesino....xxxxxxx (better avoid citing names).El también vicepresidente de la organización mundial "Via Campesina" basó su denuncia a medios de comunicación social en el Congreso Nacional en un informe responsabilizando por el demnominado "Grupo de Ciencia Independiente en Nombre de un Mundo sin Transgénicos". 

Sadly, a lot of people beleive  what they hear and what they read. Regulators have a duty not be influenced by any pressure that may influence their work - this of course goes  both ways:   independence  of thought from"for- and agaisnt" GM lobbies.  In the couse of his/her work, regultors and policy makers  may see for themselves that  a specific technology, considered very dangerous by some,   may actually hava societal  benefits, so  they need to balance this in the risk assessment and desision-making.  A case-by case approach is essential.

Apologes again Dr. Gitierrez if my remark casued you some distress.

Can you think of any criteria that a Party may apply in order to ensure that the socio-economic considerations that it takes into account in reaching import decision are consistent with international obligations? Are there international obligations which exclude socio-economic considerations or limit the scope of such considerations?

Apologies for not participating in this rich debate, but I've been this week in fieldwork.

There are three types of international agreements that are relevant to the subject at hand:

1. Environmental treaties, among which is included the Cartagena Protocol
2. Trade agreements, including intellectual property
3. Human rights treaties

Environmental agreement on the Convention on Biodiversity (the mother of the Protocol), several articles supporting countries to take into account socio-economic considerations in their decision-making on GMO imports

The objective of the Convention is to the objectives of this Convention,

to be pursued in accordance with its relevant provisions,   the conservation of biological diversity,

(g) Establish or maintain means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health.

Sustainable use of biodiversity and human health are socio-economical considerations

(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological.

The whole Art. 10 deals with Sustainable Use of Components of Biological Diversity

In relation with trade treaties, these impose many limitations for a country to take steps to protect the health and the social and economic interests of its people, but opens some doors,  for example  Art. 13 and 27.2 of the TRIPs, Art. 2 of the Article 10. Sustainable Use of Components of Biological Diversity

In relation with Human Right Conventions, there is plenty of legislation which can help a country to take decisions that may help to ensure the right to health, to a healthy environment, to food of quality.

Thanks Mr Bossou Mensah for your contribution both in french and english . It is important for NGOs , civil society and other government institutions to bring their experience and expertise in discussions . Capacities building on natural resources management particularly negative impacts of production systems in developping countries  and local population participation are   important issues
In response to your post,  8 West African countries have an integrated trade system, the Moneteray west african union ( UEMOA ) In this regional space, there is a regional biosafety  common programm  with directives ( regulations ) for import and export with the objective to regulate and control risk associated to species in cross-border situation .
Regards
Dr Gado

Dear all

To take into account socioeconomic considerations, consistent with international obligations, 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 integrate into national biosafety implementation other biosafety-relevant legally binding obligations and those that establish international norms (e.g. human rights). These are, inter alia:

- Convention on Biological Diversity (CBD) particularly Article 8j, with which Article 26 of the Biosafety Protocol has a relationship;
- 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

The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) further provides a definition of “international standards, guidelines and recommendations”:

(a) for food safety, the standards, guidelines and recommendations established by the Codex Alimentarius Commission relating to food additives, veterinary drug and pesticide residues, contaminants, methods of analysis and sampling, and codes and guidelines of hygienic practice;
(b) for animal health and zoonoses, the standards, guidelines and recommendations developed under the auspices of the International Office of Epizootics;
(c) for plant health, the international standards, guidelines and recommendations developed under the auspices of the Secretariat of the International Plant Protection Convention in cooperation with regional organizations operating within the framework of the International Plant Protection Convention; and
(d) for matters not covered by the above organizations, appropriate standards, guidelines and recommendations promulgated by other relevant international organizations open for membership to all Members, as identified by the Committee.

It is worth pointing out that the WTO Agreements have a context for trade. Rhe 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…”.

I will say more about the issue of ‘like’ products (Article III of GATT) in a separate posting. Leaving this issue aside for now, the question is whether WTO members can rely on other WTO rules to justify trade measures on GMO related products. I will argue that the answer is yes, based on Article XX of GATT and the SPS Agreement.

Article XX of the General Agreement on Tariffs and Trade (GATT) 1994 provides general exceptions to trade liberalization. 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”.

The chapeau of this article also says that such measures must not imply “arbitrary and unjustified discrimination between countries where the same conditions prevail or a disguised restriction on international trade.”

A biosafety measure can therefore arguably be taken under Article XX provided it meets certain criteria: 

- It must not be arbitrary or unjustified discrimination or a disguised restriction on trade. Thus the rationale of the biosafety measure has to be shown.
- For article XX (b), the necessity of the measure to protect human, animal or plant life has to be shown. 
- For article XX (g), the necessity standard is not asked for.  However the biosafety measure has to be shown to be “related to conservation of exhaustible natural resources”.  For example, the case is to be made that biodiversity is such an exhaustible natural resource, that would be threatened by the product.

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 various purposes, some of which have socioeconomic dimensions.

A WTO Member intending to apply trade measures (laws, regulations, requirements, procedures, decrees) to protect human, animal and plant life has to comply with the SPS Agreement.  

WTO Members can set their own standards as long as the measures are applied to the extent necessary to protect human, animal and plant life;  are based on scientific principles with sufficient scientific evidence, are not a disguised trade restriction, do not arbitrarily or unjustifiably discriminate between members, and are not more trade restrictive than required to achieve an appropriate level of protection.

WTO members are encouraged to use international standards, guidelines or recommendations - i.e. those standards set by Codex Alimentarius Commission (on food safety), World Organization on Animal Health (for animal health and zoonoses) and the International Plant Protection Convention (for plant health). However they may use measures that result in higher levels of protection if there is scientific justification (if they have conducted an examination and evaluation of available scientific information and have decided the international standards are not sufficient to achieve their appropriate level of protection). 

Alternatively there needs to have been a risk assessment conducted according to the SPS provisions for the measure to be regarded as achieving the appropriate level of protection from the risk concerned. It is important to point out that risk assessment under the SPS Agreement can involve a mix of scientific and socio-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).

A general import ban on GMOs and GM products will likely not be allowed under the SPS agreement unless it can be shown that GMOs are inherently dangerous.  Individual bans may be justified by scientific evidence and risk assessment. In general a WTO Member would have to demonstrate that any import bans have a rational basis, supports a legitimate policy objective, are no more trade restrictive than necessary to achieve that objective, and not not applied in an arbitrary and discriminatory manner.

Temporary bans are allowed if they are provisional measures allowed under Article 5.7 of SPS, which has elements of a precautionary principle. A provisional measure can be taken subject to specific conditions: where relevant scientific information is insufficient; it is adopted on the basis of available pertinent information; the Member will seek to obtain additional information needed for a more objective risk assessment; the measurer must be reviewed in a reasonable time.  All four requirements have to be met.

How all this will play out in the case of a dispute involving socio-economic considerations for GMO products has yet to be specifically tested. 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.

Finally, I respectfully disagree with the statement that the Cartagena Protocol does not have a dispute settlement mechanism [#4793]. This is because, in accordance with Article 32 of the Protocol, the dispute settlement mechanism of the Convention on Biological Diversity contained in its Article 27 and Annex II, applies. Thus in the event of a dispute arising between two Parties to the Protocol, they will have recourse through Article 27 of the CBD.

kind regards
Lim Li Ching
Third World Network

On the issue of whether products containing GMOs can be considered a different product from products that do not contain GMOs, I thank legal experts from Third World Network and the South Centre for this analysis:

This is an important issue as it will influence whether a country can restrict or ban the import of a product that contains GMOs.

Article III (on national treatment) prohibits WTO members from taking measures that directly or indirectly discriminate between like products on the basis of their country of origin.

There is currently no WTO jurisprudence that says that GMOs are “like”, in the sense of GATT Art. III:4, to their non-GMO counterparts. The Panel in the EC Biotech case did not rule on this issue at all.

According to established GATT practice, the four general criteria which provide a framework for analysing the “likeness” of particular products are: (i) similarity of physical properties; (ii) similarity of end-uses; (iii) consumers’ tastes and habits; and (iv) tariff classification.

The Appellate Body in the Japan Alcoholic Beverages case said that “there can be no one precise and absolute definition of what is ‘like’. The concept of ‘likeness’ is a relative one that evokes the image of an accordion. The accordion of ‘likeness’ stretches and squeezes in different places as different provisions of the WTO Agreement are applied. The width of the accordion in any one of those places must be determined by the particular provision in which the term ‘like’ is encountered as well as by the context and the circumstances that prevail in any given case to which that provision may apply.” That is, “likeness” essentially depends on the circumstances.

The key issue with respect to “likeness” in relation to WTO law is simply whether the imported GMO products and domestic non-GMO products (i.e. conventional products) are ‘like products’. In the EC Biotech case, the USA, Canada and Argentina sued on the basis that there is no difference between GM products and their non-GM conventional counterparts. The EC, as the respondent, took the approach that the only ‘like’ product to a given imported GM product is the same GM product cultivated or processed domestically. However, the EC Biotech Panel did not rule on which approach should be used under WTO law.

In the case of GMOs and GM commodities and their conventional counterparts, two of the traditional criteria (i.e. end-use and tariff classification) would point to “likeness”, and two (i.e. consumers’ perceptions and properties of the products) would point to “non-likeness”.

However, it could be argued that GMOs are not “like” their non-GMO counterparts on the basis of:

(1) The fact that an international normative regime has been developed to govern GMOs – e.g. the Cartagena Biosafety Protocol in relation to the transboundary movement of GMOs as well as the various guidelines issued by the Codex Alimentarius Commission with respect to GMO food products; and

(2) The scientific uncertainty relating to the risks (to human, animal, or plant life and health, and to the environment) posed by GMOs which is not present with respect to their non-GMO counterparts.

Of course, it would be clear that domestically produced GMOs and imported GMOs would be considered as like products – e.g. domestic and imported Bt corn or GM soya would be considered as like products. The question of likeness only arises, for example, if Bt corn is to be treated the same or differently as regular corn, for example, in import policy.

Hence, to the extent that a WTO Member treats imported and domestic GMOs in the same way, it would be able to pass the national treatment test under GATT Art. III (which incorporates the like product test). For example, if a WTO member imposes a ban or restriction on the production and sale of a specific product containing a GMO, then it could justify a ban or restriction on the import of that product.

Furthermore, to the extent that a WTO Member is able to provide scientific justification for the level of risk that they are seeking to enforce through their GMO regulations with respect to conditions that are applicable only to that country, it would also be able to justify these regulations under the SPS Agreement. Therefore there is a crucial importance in scientific work and findings, including findings on risk assessment, on risks to health and the environment. The Appelate Body of the WTO has also found that “evidence relating to the health risks associated with a product may be pertinent in an examination of likeness” (EC-Asbestos Report of the Appelate Body, para 113)

Also, the factor of consumer perception, behaviour, preference and taste is important, as one of the four factors the WTO panels are likely to consider. To the extent that consumers and the public in a given country perceive there is a difference between products containing GMOs and that do not contain GMOs, this will help determine if the products are “like” products or otherwise.

kind regards,
Lim Li Ching
Third World Network

Dear All!
This again is very interesting round of discussion.

As some reference has been made to the EC Biotech case at the WTO which was filed by the USA, Canada and Argentina and to the “likeness” of GMOs and non-GMOS I want to add a few thoughts:

1)In the EC biotech case the main issue was that the EU did not fulfill its obligations set under EU-law and that that this is causing a undue delay in authorizations which constituted together with a moratorium a trade restriction. Another point was that some countries of the EU invoked restrictions which were not based on a SPS compatible risk assessment. In all these points the WTO ruled against the EU. However, issues like the validity of (the very strict) EU regulations or the likeness of GMOs and non-GMOs were not discussed or decided upon by the Panel. So unfortunately the EC-Biotech case is no precedent in this matter.

2)In the EU we were discussing over the last year a legal possibility for Countries to restrict GMO cultivation on their territory based on socio-economic justifications. I guess everyone can imagine that one of the mayor issues discussed was the compatibility with WTO obligations. In the course of the discussions statements of the legal services of the three main EU institutions (Commission, Council and Parliament) were published. Basically the lawyers of all three agreed that the main issue of compatibility is the issue of Art III of the GATT, the “likeness” of products. As has been pointed out also by others, if GMOs and non-GMOs are not considered to be like products, countries are allowed to invoke measures, as long as they treat domestic and imported products alike. In this case it is not necessary to use justifications according to the Art XX GATT or the SPS agreement. The latter only apply if GMOs and non-GMOs are considered to be like products. In this case, as has been pointed out already a justification will be much more difficult though not impossible.

There is a lot of evidence to justify that GMOs and non-GMOs are not like products, but there are also other concepts, like the substantial equivalence. The scientific discussion on this is going on for many years now, and I guess that there will be no agreement on that soon.
As long as there is no case-law on an international level settling this dispute, it remains pure speculation if measures invoked on the basis of non-likeness of products are compatible with the WTO.

Regards
Andreas Heissenberger
Environment Agency Austria

Some comments/observations to your post. My comments are directed to clarifying the conditions under which these issues may be considered under trade rules at WTO or its treaties.

- Article 5.3 of SPS agreement is about economic measures/indicators not socioeconomic impacts. Indicators are pretty much economic in nature, connected to trade impacts themselves.
- Temporary measures are indeed temporary. Members are mandated to review temporary measures in a reasonable period of time by seeking additional information necessary to conduct an objective risk assessment.  The conditions under which temporary measures are allowed are considered to be cumulative and equally important in defining whether temporary measures are compliant with a SPS measure.
- Parties to the Cartagena Protocol can use the dispute mechanism described in Article 27 and Parts 1(Arbitration) and Part 2 (conciliation) of Annex II. However, this approach appears to be a soft non-compulsory approach has many limitations as described in Goh (2007) who describes the limitation of not having a third party binding compulsory dispute settlement mechanism and the distinct possibility that the ICJ or inter-state arbitration may not be necessarily the most appropriate dispute settlement mechanism.  Burgiel (2004) opinion is that “One of the limitations of the (CBD) Convention is undoubtedly the fact that it is a framework treaty with no dispute settlement process or enforcement mechanism. This means that in practice, member states are bound only weakly by their obligations.” The later statement may in fact be an issue for some countries, as they have ignored decisions made by the dispute settlement body of WTO, which is a binding and compulsory process. I would be a bit skeptical about the robustness of this approach
- The CBD itself in Article 22. Relationship with Other International Conventions has the savings clause of compliance with prior agreements, unless there is a situation of serious damage or threat to biological diversity.

22.1. 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.

- Article 27 and Annex II (Parts 1 and 2) would not be useful when having disputes between a party and a non-party to the CPB/CBD. In fact, there may be an issue if a party to the CBD but not to the CPB has a dispute with a party to both. If both sides are indeed parties to the WTO, then my statement stands, that it would be settled under WTO and under WTO rules.

“Dispute Settlement in International Space Law: A Multi-door Courthouse for Outer Space .” 2007  by Gérardine Meishan Goh.

“Convention on Biological Diversity: a progress report” by Stas Burgiel. SciDev Policy Briefs. http://www.scidev.net/en/policy-briefs/convention-on-biological-diversity-a-progress-repo-1.html

Dear all,
I was a bit puzzled by the narrow question put forward by the Secretariat as they only provide information about the WTO agreements and also just ask for inputs regarding international obligations which EXCLUDE socio-economic considerations or LIMIT the scope of such considerations. The preamble of the protocol also emphasis "that this Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements". Thus, thanks a lot to Dr. Elizabeth Bravo for highlighting the fact that there are several sets of international agreements of which some INCLUDE obligations to take socio-economic considerations.

In regard to environmental treaties, I would like to stress the relevance and importance of the International Treaty for Plant Genetic Resources for Food and Agriculture. Homogenization of agriculture makes crops far more vulnerable to changes in climate and more susceptible to pests and diseases. Crop failure can imply huge economic costs as well as social ones. Therefore, contracting parties to the plant treaty have committed to halt genetic erosion and conserve and sustainably use PGRFA.

In parallel to sustainable use in CBD as Elizabeth refers to, the Plant Treaty has provisions on sustainable use (art.6 of the treaty): "6.1 The Contracting Parties shall develop and maintain appropriate policy and legal measures that promote the sustainable use of plant genetic resources for food and agriculture." Such measures may include: pursuing fair agricultural policies that promote the development and maintenance of diverse farming systems that enhance the sustainable use of agricultural biological diversity and other natural resources and strengthening research which enhances and conserves biological diversity by maximizing intra- and inter-specific variation for the benefit of farmers, especially those who generate and use their own varieties and apply ecological principles in maintaining soil fertility and in combating diseases, weeds and pests.

Also the provision on Farmers' Rights (art.9) is relevant. For example, Contracting Party should, as appropriate, and subject to its national legislation, take measures to protect and promote Farmers' Rights, including 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. Thus, the views of farmers are very relevant when making decisions on LMOs.

In relation to Human Rights conventions, the Right to Food is important. The United Nations Special Rapporteur on the Right to Food also defined the right to food: "The right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensure a physical and mental, individual and collective, fulfilling and dignified life free of fear." Thus, also the views of consumers are very relevant when making decisions on LMOs. The right to participate in decision making on environmental matters is also included in the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus convention).

The broad opposition among major stakeholders and more or less all actors who participated in public hearing was also given major weight in the justification by the Norwegian government, when they banned the import of GT73 canola last year.

Just brief comments on previous posts:

-          Mike Rowe says that import restrictions under public moral may be difficult if a party is allowing the import of the same GM crop for food/feed/industrial use. He seems to agree that it's ok to ban import of LMOs if a country also bans the import of processed products. Public moral could include taking into consideration of production circumstances, e.g. ban of products produced by child labor. Thus, the production circumstances of LMOs are also relevant when making SEC.



-          I agree with Lucette that the principle of "substantial equivalence" evoked by Mike, is not a principle universally accepted as a basis for RA. The US Food and Drug Administration is by the way not consistent in following this principle either. E.g. when they approved Monsanto's MON 87769 soy with allegedly higher content of omega-3, they referred to the concept of GRAS «Generally recognized as safe» since the whole point of this soy was to be different from other soy (not any longer substantial equivalent).


-          The main obligations for WTO members are to be non discriminatory and based on national law. SECs are included in the Norwegian Gene Technology Act:

§ 1 Purpose of the Act
The purpose of this Act is to ensure that the production and use of genetically modified organisms and the production of cloned animals take place in an ethically justifiable and socially acceptable manner, in accordance with the principle of sustainable development and without adverse effects on health and the environment.

§ 10 Requirements relating to approval
The deliberate release of genetically modified organisms may only be approved when there is no risk of adverse effects on health or the environment. In deciding whether or not to grant an application, considerable weight shall also be given to whether the deliberate release will be of benefit to society and is likely to promote sustainable development.




********************************************************
Svanhild-Isabelle Batta Torheim
Advisor, Department for Policy and Information
Development Fund
Grensen 9b, 0159 Oslo
Norway
http://www.utviklingsfondet.no
phone (office): +47 23 10 95 88
phone (mobile): +47 41 12 34 04

With respect to Ms Batta Torheim's posting, some interesting insights, particularly related to input from farmers.

I wondered, however, whether there was an error in translation of the Norwegian Gene Technology Act #10, where it states "...GMO's may only be approved when there is no risk of adverse effects....".

No risk would imply that there will never be an opportunity for Norway to release GMOs.  If this is correct (?), why would the there be reference to "... considerable weight shall also be given to whether the deliberate release will be of benefit to society..."  It appears contradictory.  Does such stringency apply to any other introductions/imports?

Thanks!

Ben Durham

The Preamble states clearly that while the Protocol “shall not be interpreted as implying a change
in the rights and obligations of a Party under any existing international agreements”, this statement “is not intended to subordinate this Protocol to other international agreements”.  To me, this means that the least-restrictive (to the Protocol’s goals) interpretation of those international agreements should be—or at least can legitimately be—adopted.  As we know, and as the discussion has illustrated, there are many ways to interpret international agreements (such as those under WTO); indeed, this lack of precision is deliberate, as it is the only way to get agreement to the agreements!  Parties to the Protocol have the right to use this interpretive flexibility to enable them to meet the goals of the Protocol, as others will also use it to meet other goals.

Dear colleagues,

In discussions on socio-economic considerations on LMOs, the question of how this relates to international agreements such as WTO is a recurring and important issue. The issue of whether LMOs and their non-modified counterparts should be considered as ‘like’ products has been raised as a key element in considering how any measures addressing socio-economic aspects would relate to WTO, in particular the GATT. Having heard explanations and views from many sources, ranging from legal experts to dictionaries, I can only agree with others that trying to determine ex-ante how this issue would be dealt with in the case of a WTO dispute would be a matter of speculation. 

Ideally, of course, the question would not arise at all, simply because no measures are taken that are disruptive to trade. Trade restrictions are not necessarily the best, and certainly not the only way to address socio-economic aspects of LMOs.

If restrictive measures are deemed necessary to obtain certain goals, such as sustainability, it could well be that to reach those goals, measures addressing only LMOs turn out to be ineffective. The reports I referred to in an earlier post make clear that many of the socio-economic considerations that can arise when looking at LMOs, could just as validly be raised in relation to non-modified crops. In an ideal world, therefore, measures addressing socio-economic aspects would be aimed at furthering sustainability of both LMOs and conventional products. It seems to me that this would not only circumvent the issue of ‘like’ products in GATT terms, but also do more justice to the fact that many socio- economic issues are not solely linked to LMOs.

That said, the question of ‘likeness’ is just one element in considering whether a measure is a trade restriction and whether it is justifiable in the WTO context. Other challenges and dilemma’s could arise for parties trying to be true to their commitments to both free trade and sustainability. Discussions in the context of the Biosafety Protocol can help identify, analyse and find solutions for such challenges. This makes the discussions on this issue all the more interesting.

Ruben Dekker
Ministry for Infrastructure and Environment
The Netherlands

Dear colleagues,

Trying to answer the Secretariat questions and taking into account the previous postings, I think we can focus on socio-economic considerations from two points of view, positive and negative.
First we have to accept that every LMO that could be imported has passed favorably a risk assessment, so that the risks arising from their use have been considered similar to its counterpart.

Once we have accepted this statement, we can asses the use of the LMO from a socio-economic point of view, so if the LMO could be used in a positive sense, for the various stakeholders (farmers, seed industry, feed industry and population), from a neutral point view, socio-economic considerations would be on our side.

However in case that one or various of the stakeholders perceived the LMO as not beneficial, and he/them are able to transfer their opinion to decision makers level, then come into play socioeconomic considerations as a barrier to imports, which brings us to Article XX GATT, with three options, (in brief, moral, health and environmental rehaznos) each of them have their respective regulatory developement, in a broad sense,  Human Rights, Codex, SPS ... etc.

Therefore, and answering to the Secretariat, yes, there are criteria that a Party may apply to ensure that socio-economic considerations are taking into acccount in import decisions. This criteria are international treaties listed in previous post.

Omar del Río
Ministry of Agriculture, Food and Environment.
Spain.

Dear all,

In Article 26, the phrase “consistent with their international obligations” was included for the instance of countries concerned that the use of socioeconomic considerations for purposes of making decisions on import of LMOs may create a trade barriers. This indicates that where a party is a Member of WTO that party is also expected to ensure that its obligations are not violated as a result of any application of socio-economic considerations in making import decisions on LMOs.
Several other international bodies and organizations carry out activities that are relevant to the trade and environmental aspects of LMOs. A brief overview of these bodies is provided below;

-International Plant Protection Convention: The International Plant Protection Convention (IPPC; http://www.ippc.int) is a multilateral treaty for international cooperation in plant protection. It aims to protect plant health while facilitating international trade. The IPPC applies to cultivated plants, natural flora and plant products and includes both direct and indirect damage by pests (including weeds). The IPPC was adopted by the Conference of the FAO in 1951. There are currently 173 contracting parties to the IPPC.

The governing body of the IPPC is the Commission on Phytosanitary Measures (CPM). The CPM has adopted a number of International Standards for Phytosanitary Measures (ISPMs) that provide guidance to countries and assist contracting parties in meeting the aims of the convention. The IPPC is recognized by the World Trade Organization as the relevant international standard setting body for plant health. Application of ISPMs is not mandatory; however under the WTO-SPS Agreement phytosanitary measures based on international standards do not need additional scientific or technical justification.
ISPM No. 11 (IPPC, 2004) describes the factors to consider when conducting a pest risk analysis (PRA) to determine if a pest is a quarantine pest. The main text of the standard  and particularly Annex 3 of this ISPM includes guidance on conducting PRA on LMOs.


- Codex Alimentarius Commission: The Codex Alimentarius Commission (CAC; http://www.codexalimentarius.net) is a subsidiary body of the FAO and the World Health Organization (WHO) established in 1961-63 to protect the health of consumers and ensure fair practices in food trade. It currently has 166 members.

Codex Alimentarius, which means "food code", is a compilation of standards, codes of practice, guidelines and recommendations on food safety prepared by the Commission. In the area of foods derived from biotechnology, the Codex provides guidance on human health risk analysis in its “Principles for the Risk Analysis of Foods Derived from Modern Biotechnology” (CODEX, 2003) and in its “Working Principles for Risk Analysis for Food Safety for Application by Governments” (CODEX, 2007).

- Food and Agriculture Organization: The Food and Agriculture Organization (FAO; http://www.fao.org) of the United Nations also carries out activities on biosafety and biosecurity. Among these, the FAO Working Group on Biosafety is responsible for two of FAO’s Priority Areas for Interdisciplinary Action (PAIAs), namely “Biosecurity for Agriculture” and “Food Production and Biotechnology Applications in Agriculture, Fisheries and Forestry”.

- World Organisation for Animal Health: The World Organisation for Animal Health (OIE; http://www.oie.int) is an international intergovernmental organization founded in 1924 for improving animal health worldwide. As of June 2010, the OIE had 176 member countries.
The objectives of the OIE are to: (a) guarantee the transparency of animal disease status world-wide; (b) collect, analyze and disseminate veterinary scientific information, (c) provide expertise and promote international solidarity for the control of animal diseases; and (d) guarantee the sanitary safety of world trade by developing sanitary rules for international trade in animals and animal products.

Within the mandates of the OIE, the principal aim of import risk analysis is to provide importing countries with an objective and defensible method of assessing the disease risks associated with the importation of animals, animal products, animal genetic material, feedstuffs, biological products and pathological material.

- Organisation for Economic Co-operation and Development: The Organisation for Economic Cooperation and Development (OECD; http://www.oecd.org) provides a setting where governments compare policy experiences, seek answers to common problems, identify good practice and coordinate domestic and international policies.

With regard to risk assessment, the OECD has published the “Recombinant DNA Safety Considerations” (OECD, 1986) and consensus documents, which focus on the biology of the recipient organisms or introduced traits and are useful in background preparation for an LMO risk assessment.

World Trade Organization: The World Trade Organization (WTO; http://www.wto.org) is an international organization responsible for establishing the rules of trade between nations. It has a number of agreements that affect the trade of LMOs. One such agreement is the international treaty of “Agreement on the Application of Sanitary and Phytosanitary Measures”, also known as the SPS Agreement.

The SPS Agreement concerns the application of sanitary and phytosanitary measures for food safety and animal and plant health regulations and may apply to LMOs. Article 5 of the SPS Agreement is of interest in the context of this training material since it addresses risk assessment and the determination of the appropriate level of sanitary or phytosanitary protection. Article 3 of the SPS Agreement recognizes the standards, guidelines and recommendations set by IPPC, OIE and Codex Alimentarius Commission.
Other WTO agreements, such as the Technical Barriers to Trade (TBT) Agreement, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and the General Agreement on Tariffs and Trade (GATT) may also apply to LMOs.

Bilateral, regional and multilateral agreements: In addition to international treaties and standards, countries may engage in bilateral, regional and multilateral agreements, such as free-trade agreements (FTAs), provided they are consistent with the objective of the Protocol and do not result in a lower level of protection than that provided for by the Protocol. Such agreements could also be used to undertake shared responsibilities in assessing risks to facilitate decisions on LMOs.

Warm regards,
O.A.ElKawy

I agree with the points made by O.A.ElKawy
I think the analysis of SE provision should also be considered as per the stage of production. We have some relevant issues like

What is the socio economic dynamics in which the LMOs is introduced and might increase the potential for adverse effects on the conservation and sustainable user of biodiversity?

What are the socioeconomic factors that might increase the possibility of failure of the safe handling and use of the LMOs? (Catacora vargas)

Pre Production
•Impact on yield
•Agronomic Studies
•Impact on genetic diversity and local knowledge, seeds from local varieties, control over other tools of production.
•Impact on local economy, agricultural practices, labour and employment practices
•Trade Concerns
•Impact on Nutrition

Production
Issues considerations while developing frameworks for SECs:
(a) long term yield benefits,
(b) increased income benefits,
(c) change in the input requirements,
(d) extension services and diffusion of technology for appropriate adoption,
(e) deciding on the trait value of LMOs,
(f) compensation to farmers when there is crop failure,
(g) impacts of the byproducts of LMOs

Marketing
•Consumer acceptance
•Market acceptance

Post- Production
•Economic impact (including on changes in inland use/food security/labour/employment)

Capacity Building
•Different capacities will be required in a country that only requires a relatively narrow economic assessment such as impacts on trade or financial impact incurred by farmers, when compared to another country that will require broader social and economic assessments

Dear all,

The Cartagena Protocol relative to the time of taking a decision on the import of an LMO, the international agreement most likely to place restrictions on the scope of the application of economic considerations are the agreements under the World Trade Organization (WTO), such as the Agreement on Technical Barriers to Trade (TBT) and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).

It is also important to recognize that:

- The Cartagena Protocol and the WTO agreements are not inherently opposed, on the contrary, both regulate international trade in LMOs and the Protocol's provisions have been drafted so as not to come into conflict with the WTO.

- The WTO, like the Cartagena Protocol recognizes the precautionary measures in the decision-making processes (eg Article 5.7 of the SPS Agreement allows precautionary measures when they are provisional, are taken based on relevant information available, it is in the process of obtaining additional relevant information, or required a reasonable time to review some extent).

- The Cartagena Protocol, also has a relationship and complementarity with other relevant international agreements, such as: i) Convention on Biological Diversity, particularly with Art 8.j ii) United Nations Declaration on the Rights of Indigenous Peoples therefore, the notion that the "Protocol shall not be interpreted as modifying rights and obligations of a Party under other international agreements already in force", also applies to the agreements listed in relation to socio-economic considerations .

Regarding the criteria for verifying the consistency between Article 26 of the Protocol and the WTO agreements, these are:

- Non-discrimination rules, ie, that the legal framework does not exist biosecurity measures that discriminate directly or indirectly to like domestic products or imported, to the detriment of imported products. For example, if a Party to the Protocol prohibits the production of LMOs which is the center of origin and genetic diversity with food and cultural value to indigenous and local communities, the ban on import of LMOs with such features would be a decision not discriminating (for consistency in the treatment of domestic and imported), hence no contradiction with the WTO.

- Establishment of measures "are not more restrictive than necessary to trade." The Article 2.2 of the TBT Agreement "which are not prepared, adopted or applied technical regulations that have the purpose or effect of creating unnecessary obstacles to international trade. To this purpose, technical regulations shall not be more trade restrictive than necessary to fulfill a legitimate objective, taking into account the risks that non-fulfillment would bring. " Are recognized as legitimate targets "the protection of human health or safety, life or animal or plant health, or Mother Earth." The protection of health is socioeconomic consideration per se. For example, for a country of origin and genetic diversity can be a legitimate aim of protecting local diversity and native species of certain crops that are important to maintain local food, biodiversity, therefore health systems of life and human health. To this end, in the light of current knowledge, may declare the moratorium LMOs without interrupting the TBT Agreement.

Additionally, within the WTO agreements general exceptions exist for the protection of life and human health, animal and plant. The Cartagena Protocol objectives of conservation and sustainable use of biological diversity, taking also into account human health, consistent with these objectives could be as follows:

- Protection of human life and health, animal and plant health (Art. XX GATT b), when it meets the following criteria: i) The objective of the policy is based on the measure restricting import of an LMO has a explicit scope of protection of life and health of the people and biodiversity (plant and animal language as GATT), and ii) the extent (eg, restricting import of an LMO) is necessary to achieve the objective of protecting the life and health of people and biodiversity.

- Conservation of exhaustible natural resources (Article XX GATT g), when criteria are met: i) The policy objectives based on the restriction of import of an LMO, is explicitly related to policies conservation of exhaustible natural resources, ii) The measure restricting import of an LMO is related to the conservation of exhaustible natural resources, and iii) the extent of restriction of import of an LMO has to be implemented in conjunction with similar restrictions applied to the production or consumption.

In other words, the basic criterion for smooth application of the scope of the Cartagena Protocol and the WTO agreements, is consistency in national policies and their implementation in relation to a possible restriction of import of an LMO. This is entirely feasible within domestic biosafety policies and their implementation, therefore there is no a priori international obligations in which economic considerations are excluded or limit the scope of such considerations. Finally, it is important to note that to date, there has been no case of complaint to the WTO by restricting imports of LMOs low socioeconomic arguments. That is, there is no experience that can point to inherently constitute a restriction or barrier to trade.

Regards to all,

Sorka Copa Romero

Dear Participants:

Some of the interventions related to this last question have portrayed SEC as a barrier to free trade. The idea is that knowing the SEC of adopting a given LMO can lead any Party to refuse importing the product and therefore fail in their international obligations. Yet, the problem can be posited in the opposite sense. Not knowing the SEC can lead to authorize the import of a LMO that results in a conventional product losing its export market due to consumer preferences, which would be those of not buying products that have used LMO in their production process. Thus, a GM cultivation becomes a barrier for free trade of conventional products, which already had a market niche. This is not a hypothetical case; it is now happening in Mexico as I pointed out in my first intervention in this forum (#4443) when discussing the case of transgenic soybean farming in the honey producing Maya regions in Mexico.

In this context, and in order to answer question 4, it is not possible to take ignorance as a criterion for being consistent with international obligations. Not undertaking SEC studies, and having these not taken into account by decision-makers, is an extremely limited position. In my opinion, basing decisions on more knowledge about its implications will lead to a greater degree of biosafety  that will ensure they lead to social inclusion and not exclusion. I do not think SEC should be taken into account in RA necessarily, but they ensure decision-makers have the information; it will be their choice to take them into account or not.
Warm regards,
Michelle Chauvet

Argentina's approach to risk assessment is interesting because this country includes the analysis of potential impacts on foreign trade (particularly on exports) before giving authorizations for import, environmental release or use of LMOs.
It is important to consider that one relevant criterion is that any consideration is properly supported by verifiable information.

Dear Fellow Participants,
I apologise for having been unable to participate in the exchanges as actively as their quality and importance deserves, but having followed by reading most of the posts, I feel I need to make some comments on one or two point that have come up for this Question before it closes. Thanks to everyone for this densely rick set of thoughts.
Here I would like to respond to Dr Chauvet's observations (#4874) about the legitimacy of SEC being included in a decision, using her earlier post's (#4443) example of the Mayan honey farmers of Mexico losing their market niches from GM soy farming's impacts in illustration of her point. I wish first to register my strong agreement with her.

Then I also make the further more general observation arising from this, that the WTO SPS Agreements, even if those were for some reason to be considered the sole or primary international obligations deserving respect in such decisions,  are themselves an artificial reduction of the more complex realities and range of real risk-delivery and exposure that embody the impacts of such technologies. Thus we need to pay attention to the developing case-law on interpretation of the SPS Agreements of the WTO over the years, in Disputes Panel and Appellate Body resolutions, the Appellate Body being the de-facto ultimate court of global appeal on such questions. Such case-law development in interpretation is necessary precisely because the 'scientific' definitions of risk assessment of the SPS Agreements are ambiguous, imprecise, and incomplete. The Appellate Body in various cases  has consistently interpreted the SPS formal risk assessment (RA) definitions in Annex A.4 of the Agreements, in a more broad-ranging and inclusive manner than have some parties in prosecuting cases under those SPS Agreements and their RA rules. The Appellate Body has for example affirmed that the list of factors to be taken into account in risk assessments for environmental and health risks as given in the Agreements is not an exhaustive list but an indicative one, open to any party to add to according to circumstances case-to-case. Moreover in a 1998 ruling from the EC-US animal growth hormones case, the Appellate Body stated that risk should be “not only risk ascertainable in a science laboratory operating under strictly controlled conditions, but also risk in human societies as they actually exist, in other words, the actual potential for adverse effects on human health in the real world where people live and work and die". (European Communities — Measures Concerning Meat and Meat Products, Report of the Appellate Body, WT/DS26/AB/R (Jan. 16, 1998). Later rulings including a 2008 return to the Hormones case have continued this broadening of the WTO SPS risk definitions, to gradually approximate them from their utterly artificial starting point in the original Agreements, towards the realistic complexities biological, social, and physical, under which risks and harms are actually created and delivered, as with the Mayan honey farmers and countless similar cases which are typically ignored. This has been documented by legal speclaists in trade-law and risk, for example A Arcuri, 2010, "Food Safety at the WTO After ‘Continued Suspension’: A Paradigm Shift?" (July 1, 2010). THE EUROPEAN UNION AND GLOBAL EMERGENCIES: A LAW AND POLICY ANALYSIS, Antonis Antoniadis, Robert Schütze and Eleanor Spaventa, eds., Hart Publishing. Available at SSRN: http://ssrn.com/abstract=1633390

My point in offering this is that even if we were to accept the premise that the WTO free trade principles and rules are the most important prevailing international ones with obligations for decision-makers to align with, these are not at all realistically-defined and validated as they are made out to be by free-trade fundamentalists, and in the spirit of the important intervention in an earlier Question by our Norwegian government colleague, that we are here involved in a historical learning process, existing forms of extremely reductionist risk assessment are being slowly but surely extended and enlarged to accommodate reality, rather than laboratory and controlled field artificiality. This enlargement includes, properly, social and economic impacts - harms and benefits. To exclude these from a developing process of better definition and appraisal as the Article 26 Principles offer, would be to celebrate ignorance just because no knowledge (including scientific risk knowledge) can be perfect.

Thanks once again to all, and to the Secretariat for their facilitation and support,
Brian Wynne

These do not seem to be socioeconomic considerations. Many of these elements are part of the assessment of the actual performance of biotechnology crops in a certain environment that leads to conclude on the productive benefits but it would be very difficult to draw sound conclusions on the socioeconomic impact