Online Forum March-April 2013

I. Background Notes

The current online discussions may be considered as a continuation of the discussions that were held in the past few years. Previous discussions are archived and can be accessed here. Those who are participating in the current discussion actively are highly recommended to look at the archived materials from the previous discussions.
The current discussions are intended, ultimately, to feed into the work of a subsequent ad hoc technical expert group which is supposed to develop conceptual clarity on socio-economic considerations in the context of paragraph 1 of Article 26 of the Protocol.
From the reading of paragraph 1 of Article 26, it is possible to identify and further examine the following elements with a view to contribute towards the development of conceptual clarity:
1. “in reaching a decision on import under this Protocol or under domestic measures implementing the Protocol”;
2. “consistent with their international obligations”;
3. “socio-economic considerations arising from the impact of living modified organisms on the conservation and sustainable use of biological diversity”;
4. “especially with regard to the value of biological diversity to indigenous and local communities”.
The Secretariat has prepared, on the basis of the elements above, guiding questions to help facilitate the discussions. There are four sets of guiding questions followed by some notes. Each set of questions will be open for discussion in the order presented in II below. The first set of questions will be open for discussion on 11 March 2013. Each set of questions will remain open for discussion for a week. Question 3 will exceptionally remain open for two weeks to take into account the Easter holiday. Accordingly, the time table for each set of questions is as follows:
Q1: 11 – 17 March 2013;
Q2: 18 – 24 March 2013;
Q3: 25 March – 7 April 2013;
Q4: 8 – 14 April 2013;

Open forum: 15 and 16 April 2013.

II. Guiding questions for the online discussion group

1. What is your understanding of “a decision on import”? How do you understand its scope? Does it matter whether a decision is taken under the Protocol (Article 10) or under domestic measures implementing the Protocol?

	Some provisions of the Protocol to consider: A Party to the Cartagena Protocol on Biosafety may take a decision on import of living modified organisms that are intended for: (i) intentional introduction into the environment (paragraphs 2(c) of Article 9, and Article 10 and 13); (ii) direct use as food or feed, or for processing (paragraphs 4 and 6, Article 11). The Protocol also refers to, “right of a Party to subject all living modified organisms to risk assessment prior to the making of decisions on import” (Article 5), and “right of a Party to subject all living modified organisms to risk assessment prior to decisions on import and to set standards for contained use within its jurisdiction” (paragraph 2 of Article 6). As regards import of living modified organisms for intentional introduction into the environment, the Party of import has the option to take decision according to: (i) its domestic regulatory framework, or (i) the procedure specified in Article 10 of the Protocol. The domestic regulatory framework that may be used as a basis for taking a decision on import of living modified organisms, including those for direct use as food, feed or processing, is required to be consistent with: (i) the objective of the Protocol, according to paragraph 4 of Article 11; (ii) the Protocol, according to paragraph 3 of Article 9 of the Protocol. According to paragraph 1 of Article 2, each Party is required to take necessary and appropriate legal, administrative and other measures to implement its obligations under the Protocol. It is also provided under paragraph 4 of the same Article that “nothing in the Protocol shall be interpreted as restricting the right of a Party to take action that is more protective of the conservation and sustainable use of biological diversity than that called for in this Protocol, provided that such action is consistent with the objective and provisions of this Protocol and is in accordance with that Party’s other obligations under international law”.

2. What are “socio-economic considerations arising from the impact of living modified organisms on the conservation and sustainable use of biological diversity”? What is your understanding of the wording “arising from the impact”?

	Some notes to consider: Decisions taken with regard to the import of living modified organism for intentional introduction into the environment shall be in accordance with Article 15 of the Protocol (paragraph 1, Article 10 of the Protocol). Risk assessments undertaken pursuant to the Protocol shall be carried out in a scientifically sound manner. Such risk assessments shall be based on information provided by the notifier and other available scientific evidence in order to identify and evaluate the possible adverse effects of living modified organisms on the conservation and sustainable use of biological diversity (paragraph 1, Article 15 of the Protocol). The Conference of the Parties to the Convention on Biological Diversity (COP) has adopted guidelines on impact assessment. These include the “Guidelines for incorporating biodiversity-related issues into environmental impact assessment legislation and/or processes and in strategic environmental assessment” contained in the annex to decision COP-VI/7. According to these guidelines, the purpose of impact assessment is to predict and identify the likely environmental impacts of a proposed project or development taking into account inter-related consequences of the project proposal, and the socio-economic impacts. The other guidelines that COP has adopted are the “Voluntary guidelines on biodiversity-inclusive environmental impact assessment” contained in the annex to decision VIII/28. The guidelines focus on how to promote and facilitate a biodiversity-inclusive environmental impact assessment process.

3. How could the value of biological diversity to indigenous and local communities be measured or determined?

	Some relevant guidelines to note: The “Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments regarding Developments Proposed to Take Place on, or which are likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities” (Item F, decision VII/16 of the seventh meeting of the COP). The text of these guidelines is available online at: http://www.cbd.int/decision/cop/?id=7753#_ftn57 and also the brochure at this link: http://www.cbd.int/doc/publications/akwe-brochure-en.pdf The decision by the eighth meeting of the COP on “Incentive measures: application of tools for valuation of biodiversity and biodiversity resources and functions” (decision VIII/25)

4. 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?

	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.

Open forum for any other relevant comments, questions and suggestions