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Berkeley ESPM 169 - The Evolving CBD - GMOs and IPRs

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The Evolving CBD: GMOs and IPRsESPM 169September 24 2002The Evolving CBD: GMOs and IPRs1. Big Points:a. that regime evolution continues long after the negotiation of the main convention, and that all sorts of factors may intervene to alter the regime's landscapeb. Functional evolution: meetings of various bodies, CoPs, etc - towards detailed and specific obligations under a protocolc. Ideational/political evolution: new issues come up, new voices are heard (eg ldcs, industry), new science, shifts in balances of power, linkages and/or conflicts with other international orders,eg WTO sometimes, but rarely, there's a linear process of regime strengthening - Montreal and ozone. Sometimes there's regime transformation - Basel but sometimes, as is the case with the CBD, it's hard to fit regime developments into a linear schemaUnder CBD: Sagoff makes the argument that the CBD and Agenda 21 essentially commodify BD - "sellingnature to save it" also: focused on Property Rights: the big difference in CBD cf. atmospheric negotiations was the view that property rights can and need to be allocated in the BD case. plus local impacts of biodiversity loss issue of who gets paid for access to genetic and species and ecosystem resources, and how much? hugely controversial1 a shift away from science and species conservation/listing, as many see it underlies the "splintering" of the issue: GMOs, biosafety and IPRs - other issues have contributed to this transformation - eg bioinvasions - all included in original convention: but - linking with other regime (IPRs); developing issue area - question: is the CBD the appropriate venue for these?2. The Evolution of the CBD 4 COPs plus one Extraordinary COP, Feb. 1999 in CartagenaIssues: - TRIPS, WTO and IPRs - GEF and technology transfer - Conservation policy and management trends - Biosafety negotiations - protocol in 1999 - developing information and monitoring - GISEvolving Structure: - permanent secretariat in Montreal - Subsidiary Body on Scientific, Technical and Technological Advice - SBSTTA - GEFRemaining Weaknesses: - clash with WTO - US ratification - biosafety - a smokescreen3. The Biosafety Protocol: 2000, Cartagena (though adopted in Montreal)2 governs trade in LMOs why did it become the "next big thing" for CBD? Seems illogical in some ways - as it appeared that risks to biodiversity from release of GMOs into ecosystems was small - plus argument that it can help protect diversity (or at least doesn't run counter to it) but Southern countries also concerned about the political and economic baggage (eg structure and demands of the biotech industry, plus that they could be used for experiments examples of release into ecosystems: monarch butterfly, taco shells, Ignacio's workGMOs: contain genetic material other than from their own speciesFrom Aarti's paper:"While an earlier version of the definition stated that: LMO means any living organism that contains genetic material which has been modified by modern biotechnology and of which the resulting genotype is [unlikely] [not known] to occur in nature and can confer traits novel to the organism.the final definition read that: LMO means any living organism containing a novel combination of genetic material obtained through the use of modern biotechnology."Difference between LMOs and GMOs:  not much! LMOs adopted as a term to deflect attention from the "genetic" (rather like "climate change" and global warming) also, implies reproduction capabilitiesThe problem of LMOs rise of genetically modified crops in agriculture: from 1.7 m hectares in 1996 to 27.8 m hectares in 1998, mostly in US countries developing regulatory frameworks, and very different ones, governing assessment, use and release of GMOs3Cartagena: mandates need for informed consent of an importing country prior to trade in some GMOs, to allow for assessment of risks to biodiversity and human health in importing country - Advanced Informed Agreement, or AIA process: to be carried out prior to the intentional introduction of LMOs into the environment of an importing country. ,Context: European opposition to imports from US; very grave concern in LDCs (Shiva et al) - trade disputes - popular protests in EuropeNegotiations towards a Biosafety Protocol began in 1995; negotiations in Cartagena took place inearly 1999 - marked by two serious divides:a. Over what LMOs would be included within the scope of the protocol (N-S divide): all LMOs, or just those which came into contact with the environment?b. Over whether or not to use the precautionary principle (between US, Australia, Chile, Argentina, Canada - the Miami Group of agricultural exporters and the EU linked to SPS Agreement under the WTO, which mandates countries to base their sanitary and phytosanitary measures on "sound science" and not the PP. Both these disagreements led to collapse of Cartagena negotiations.What changed to produce a uniformly popular document at Montreal, January 2000? - US popular opposition - Key Miami Group companies introducing labeling(NB: politics of labeling) - baby food companies like Gerber demanding GM free products4Measures under the Protocol:a. Included LMOs: - LMOs intended for deliberate release into the environment - i.e. seeds; full AIA processto apply -LMOs intended for food, feed or processing - modified consent - information sharing ondomestic approvals of LMOs; countries notify biosafety clearing house if they don't want to import a given product - LMOs intended for contained use - e.g. in labs or greenhouses, or, if country allows, field trials - excluded from AIA - LMOs in transit - not AIA but need documentation - finished products derived from LMOs, e.g. corn oil, paper napkins from modified timber: but included in a very limited wayb. Excluded: pharmaceuticals for humans, e.g. insulin, vaccines - as long as regulated in other international forums (opposition from LDCs)c. Biosafety Clearing House - to share information on countries' approval procedures, information about categories of LMOs, etc. d. Dispute over Documentation between US and Europe - EU demanding extensive documentation, US objected (though now moving in that direction anyway)e. Precautionary Principle - first operationalization of a version of the PP in an international environmental agreement - brief history of PP though: relies on risk assessment, rather than other "non-scientific" criteria


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Berkeley ESPM 169 - The Evolving CBD - GMOs and IPRs

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