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Update on the Granada Meeting: Moratorium on Terminator Technology Reaffirmed, But Weakened

Wednesday, February 1, 2006

By Biosafety Info Service at the Third World Network

The fourth meeting of the Ad Hoc Open-ended Intersessional Working Group on Article 8(j) and related provisions of the Convention on Biological Diversity, which ended on 27 January, 2006, saw Parties clashing repeatedly over the issue of Genetic Use Restriction Technologies (GURTs).

The 8(j) Working Group reaffirmed the Convention on Biological Diversity's (CBD) existing "de facto" moratorium on GURTs. However, this was weakened by the inclusion of language in another paragraph, at the insistence of Australia, that further research and studies on potential impacts and other aspects of GURTs, be undertaken on a case by case risk assessment basis.

GURTs are also popularly known as Terminator Technologies. Terminator Technology is a genetic engineering technique that renders seeds sterile at harvest, thus preventing farmers from saving and re-using seed, a practice carried out by millions of farmers, particularly in developing countries. Apart from these socio-economic impacts, there are also serious threats posed to agrobiodiversity and biodiversity.

In 2000, the CBD adopted Decision V/5 (Agricultural biological diversity) section III, paragraph 23, which recommends that Parties not approve GURTs for field-testing or commercial use, until transparent scientific assessments of its impacts are made and its socio-economic impacts validated, thereby establishing a "de facto" moratorium on GURTs.

The 8(j) Working Group met in Granada, Spain from 23-27 January, and one of the issues on its agenda was on the potential socio-economic impacts of GURTs on indigenous and local communities. On the final day of the meeting, the Working Group finalized its recommendation on GURTs, which will be forwarded to the eighth meeting of the Conference of the Parties to the CBD, to be held in Curitiba, Brazil in March 2006. Parties to the CBD would still have an opportunity to strengthen the decision on GURTs at COP8, which will make the final decision.

One of the most contentious issues in the recommendation had to do with the inclusion of language recommending case-by-case risk assessments for further research and studies on potential impacts and other aspects of GURTs. The drafting group that was formed to draft the recommendation had adjourned the day before (26 January) without agreeing on this, and had placed the paragraph in brackets. However, informal consultations were made among the contending Parties as the Sub-Working Group went into plenary, and there they approved the removal of the brackets.

Paragraph 2(b) of the decision reads: "2. Invites Parties, other Governments and relevant organizations and stakeholders, to:

(b) Promote cooperation and synergies between agencies and experts in order to undertake further research and studies on potential impacts and other aspects of genetic use restriction technologies, including their ecological, socio-economic and cultural impacts on indigenous and local communities, including on a case by case risk assessment basis with respect to various categories of GURTs technology subject to the precautionary approach."

The reference to case by case risk assessments could undermine the "de facto" moratorium, as it may open the door for the countries pushing to field test and commercialize GURTs, to do so at their national level.

However, the reference to case by case assessments has been subjected to a qualification, through the inclusion of a footnote to Paragraph 2(b) of the recommendation. The EU, in the final plenary meeting, explained the details. The footnote reads as follows: "this is meant to be with respect to different variations within different categories of GURTs technologies."

When the Philippines asked for clarification on what this meant, Australia said it was "to enable greater clarity, to make it quite clear" what these assessments would be all about.

An NGO delegate representing the Federation of German Scientists had a different view, saying these assessments would be "further down the road," and in the meanwhile this will lead to national level decision-making on GURTs, a scenario which may not be good, as most governments do not have national biosafety regulations to deal with these issues.

Norway also spoke about its grave concern about this point but given the qualification, it believed it could go along with such a footnote. Uganda also voiced its support for the footnote.

The Chair of the Working Group, Amb. Jose Cuenca of Spain, instructed the Rapporteur to take into account these observations in his final report of the Meeting. It is however unclear whether the footnote qualification will be sufficient to roll back the danger posed by including the reference to case by case risk assessments for GURTs.

In any case, it is clear that the "de facto" moratorium on field-testing and commercialization of GURTs remains. Furthermore, countries could, as sovereign nations, still enact national legislation that bans GURTs.

Even farmers as well as indigenous and local communities would now be assisted, through, among other things, capacity-building activities that will enable them to apply Decision V/5, part III on GURTS, within their communities and territories.

Australia had won the inclusion of the wording on case by case risk assessment by using it as a bargaining chip, in return for dropping its initial insistence during the drafting group discussions, that reference to the precautionary approach be removed in the preambular paragraph of the then draft decision.

During those discussions, the Philippines, the EU, and Norway opposed Australia's proposal, as it would have meant that any decisions relating to GURTs would not be guided by the precautionary principle, one of the cornerstones of the Rio Declaration as well as the Convention on Biological Diversity. The drafting group eventually came to consensus when it was agreed that the references to Principle 15 of the Rio Declaration, as requested by New Zealand, would be couched in language that will also refer to the Preamble of the Convention on Biological Diversity.

Discussions on the draft recommendation saw many other clashes between Parties. One disputed item delved on whether the socio-economic impacts of GURTs were a mix of both positive and negative. Australia, together with the US on the floor, and a pro-industry scientific group, wanted this, along with the word "aspects," which most of the delegations opposed. Uganda pointed out that even the title of the agenda item used the word "impacts" rather than "aspects." Australia insisted "aspects" was broader, which was greeted by dissatisfied grunts from those observing the drafting group.

The delegates agreed to remove both the words "positive and negative" and settled to have both the words "impacts" and "aspects" in the text. References to the "potential benefits such as increasing productivity" were also removed without much debate after this agreement.

However, tempers flared when Australia wanted to replace the word "Reaffirms" in the first preambular paragraph with either "notes" or "recalls," referring to the 2000 decision of CBD COP V, which many observers see as a decision that imposed the "de facto" moratorium on GURTs. Australia, helped along by Canada and New Zealand, claimed that there was nothing wrong with the words "notes" or "recalls," though some observers said that it is absurd for a COP to take note of its own decision, as if it is not aware that it has made such decision in the first place.

As discussions dragged on, the delegate from the Philippines reminded the delegate from Canada that in the Friends of the Chair meeting in Bangkok in 2004, where both of them were present, there was an agreement then to revisit the 2000 decision of the COP in the light of new technologies and related developments. Thus there is a need to determine whether some of the conclusions of the 2000 decision are still valid at this present time, and hence the need for a reaffirmation of whether that decision is still valid or not.

Canada then did not insist on changing the word "reaffirms" but Australia was adamant that both the words "reaffirms" and "recalls" be placed in brackets, to show that such words were not agreed upon by the delegates and would need to be revisited at some future time by the COP of the CBD. Eventually, the desire of the majority prevailed, and the final recommendation from the Working Group reaffirms the previous CBD decision.

Another difficult item centered on the invitation for CBD Parties, governments and relevant organizations to respect the rights of farmers to save and use seeds. Canada suggested that some references to its national legislation be made to reflect its situation, but the Philippines opposed it as the impression made was that Canada was trying to bring in language from the International Treaty on Plant Genetic Resources for Food and Agriculture, of which Farmers‚ Rights in its Article 9 is still made subject to national legislation.

Canada clarified that they are not doing so but the Secretariat inserted language that made it appear that such farmers‚ rights should be made in accordance with national legislation, leading some indigenous leaders in the room, to shout, in their own language, that that formulation was simply unacceptable. A delegate from Africa said that the words in the text should refer to farm-saved seeds, which again elicited protests from the indigenous leaders in the room, as they said that not all the time do they save and use seeds only from the farm.

Language was then proposed to specify that the rights of farmers and indigenous and local communities to save and use seeds would be respected. Canada again harped that their national situation needed to be taken into account, thus their insistence on language that takes account their national law on this matter of saving and re-using seeds.

Finally, it was agreed to keep intact, as a general principle, the right of farmers and local and indigenous communities to save, use and exchange their seeds, and to just take into account Canada‚s situation in a separate clause, within the same paragraph.

Another contentious item referred to technology transfer but got mixed up in the sharp verbal exchanges between the Philippines and Australia on whether capacity-building relating to GURTs would include the enablement of farmers and local and indigenous communities to implement Decision V/5, the 2000 COP decision which set the "de facto" moratorium on GURTs.

Australia simply went ballistic over the word "implement," saying this simply could not be done at the local level. The Philippines asserted that that was precisely what needs to be done, as most farmers and indigenous and local communities simply have no idea about these international discussions and the capacity-building efforts should simply apprise them that there is a moratorium at the international level and that they should be helped to act, in accordance with their customary rules and practices, to take steps to put this moratorium into effect within their communities and territories. The EU mediated between the two and the word "implement" was changed to "application," Thus, there is language in the final recommendation that capacity building efforts would help farmers and local and indigenous communities apply the moratorium.

There was also some discussion on whether to call on Parties to ensure the participation of local and indigenous communities in future deliberations of the CBD on this issue. However, the Secretariat told the meeting that the Parties could not be forced or compelled to allow indigenous and local communities to join their CBD delegations; it was a matter of sovereignty whether a Party wanted to include indigenous and local communities in their delegations.

Final discussions centered on whether to call on WIPO, UNESCO and the Human Rights Commission to investigate the patent record on GURTs and assess its ethical and spiritual implications. The WIPO representative said that it would be out of their mandate to tackle the ethical and related aspects, but Egypt insisted that it would be up to these international bodies, to act within their mandate to examine this request. He said that if the international organizations find that it is out of their mandate, then it should just tell the CBD such fact, and work on the request in accordance within its mandate.

Many observers familiar with the processes of WIPO said that it would take some time for WIPO to decide on this, especially if the request is seen as something out of their mandate, and there could be a possibility that they would reject this request, which may effectively set back the data-gathering exercise on the patent landscape on GURTs. But, ultimately, it is up to the WIPO General Assembly to decide on what to do with this request.

Read the Policy Brief, Grim Sower: Renewed Calls for Ban on Terminator Technology

* Lim Li Ching, Senior Fellow at The Oakland Institute, works with the biosafety programme at Third World Network (TWN), an international NGO based in Malaysia. TWN is involved in efforts to bring about a greater articulation of the needs and rights of peoples in developing countries; a fair distribution of world resources; and forms of development which are ecologically sustainable and fulfill human needs.