Biotechnology & Biosafety: Battle Royale of the 21st Century

BIOTECHNOLOGY AND BIOSAFETY:
BATTLE ROYALE OF THE 21ST CENTURY

By Kristin Dawkins <kdawkins@iatp.org>
Institute for Agriculture and Trade Policy
Minneapolis, Minnesota
January 2000

U.S. Secretary of Agriculture Dan Glickman, back in 1997, called disputes
over biotechnology and the patenting of life "the Battle Royale of 21st
century agriculture." In Seattle during the closing month of the 20th
century, the United States and its cohort of fellow exporters of
genetically modified organisms (GMOs) fired their first shots in this
battle and found that they fizzled. Not only did the World Trade
Organization fail to launch a new round of trade talks, but proposals that
the WTO even consider biotechnology issues never got out of brackets. (In
international negotiations, any proposals still in brackets have not been
agreed.) This could give a boost to efforts to negotiate a legally-binding
Biosafety Protocol under the United Nations-based Convention on Biological
Diversity.

The U.S. leads the world in producing GMOs and is desperate to protect its
dominant position in the world grain market. Consumers in Europe, Japan and
elsewhere object to GMOs in the food supply. Environmentalists fear the
spread of genetically altered DNA throughout ecosystems could trigger
potentially catastrophic problems. The market's reaction to these consumer
and environmental concerns is causing many farmers in the U.S. to
reconsider their plans to sow GMO seed next year, to the dismay of the
agri-chemical-pharmaceutical industry that supplies them. In fact, the
American Corn Growers Association is predicting a 20-25% reduction in the
acreage planted in genetically-engineered crops this spring while
agribusiness analyst Dan Basse of Chicago's AgResource Co. anticipates a
drop in GMO-soybean plantings by more than half.

In Seattle, the U.S. had joined Canada and Japan in proposing a WTO
"Working Party on Biotechnology" whose mandate was unclear. The U.S. wanted
it "to examine approval processes" for GMOs - taking dead-on aim at the
European Union's array of national and regional restrictions on the import,
planting and consumption of genetically engineered seeds and foods. Japan's
proposal was to have a WTO Working Party look at the benefits of GMOs as
well as health and environmental concerns, whether the WTO's existing
agreements apply to GMOs, and how the WTO might appropriately deal with
other international fora where GMOs are discussed (such as the Biosafety
Protocol negotiations). Canada's proposal was for the WTO to assess the
adequacy of existing rules and the capacity of WTO members to implement
them. In response to these proposals, a large number of developing
countries had objected to any WTO working party on biotechnology
whatsoever. And indeed, the developing countries never gave in: the final
version of the draft Ministerial Declaration to surface prior to the sudden
announcement on December 3rd that the talks were suspended contained what
was essentially the Canadian proposal for a Working Party on Biotechnology
- but it was still in brackets.

The Europeans' role in negotiating the biotech issue in Seattle generated a
storm of protest with implications for the future of European Union
politics. On December 1st, it was learned that the lead negotiator for the
EU, Commissioner Pascal Lamy, had voiced EU support for a Working Party
without checking with the Heads of Delegations of the member states. Within
hours, five Ministers of the Environment from EU members - Denmark, the
United Kingdom, Belgium, France and Italy - issued a press advisory
objecting to Lamy's position. Later that night, fifteen Ministers of Trade
objected. Indeed, the EU's position until then had been that biotechnology
should be dealt with by the United Nations through the Biosafety Protocol,
not by the WTO. For Europeans, this issue has special significance given
their ban on imports of beef laced with growth hormones has been attacked
by the U.S. as a "barrier to trade" that is not "scientifically
justifiable." The WTO dispute panel and appellate body agreed with the U.S.
and, in the run-up to Seattle, EU attempts to include "the precautionary
principle" as a justifiable consideration in WTO policies were rebuffed. In
the Biosafety Protocol talks, the EU has considered the precautionary
principle a non-negotiable clause in the draft text.

Despite the environmental and trade ministers objections, Lamy defended his
support for the WTO Working Party on Biotechnology. In a briefing with
non-governmental organizations on December 2nd, he said, "My job as a
negotiator is how to get the maximum… I have to spend money to get money. I
don't find it a problem if I can get what I need… At the end of the day,
the Council [of Ministers] will make their decision." For the WTO, the
issue is moot, for the time being, as officials struggle to define the
legal status of the Seattle negotiations overall, but in Brussels there is
surely a fierce debate raging over the democratic rights and
responsibilities of the European Commission - and particularly, how it
clears its mandate with member states in future negotiations.

Meanwhile, there is a strong consensus that the failure to launch a new
round of WTO trade talks is due to a deficit of democracy in WTO
procedures. Those most frustrated by the Seattle debacle, probably U.S.
Trade Representative Charlene Barshefsky who chaired this Third Ministerial
Meeting and WTO Director-General Michael Moore, have been severely
criticized for their handling of the meeting. Most analysts point the
finger at their use of the infamous "Green Room" technique, by which the
Director-General invites selected governments into a closed-door session
designed to brow-beat them into a series of trade-offs to get results on
the most contentious issues. While a tried and true technique in past trade
negotiations, it backfired in Seattle. As a group of Caribbean countries
put it, "as long as due respect to the procedures and conditions of
transparency, openness and participation that allow for adequately balanced
results in respect of the interests of all members do not exist, we will
not join the consensus to meet the objectives of this Ministerial
Conference." This sentiment was expressed by the governments of African and
Latin American countries as well, foreshadowing by one full day the
eventual announcement of December 3rd that the Seattle talks were ended.

Calls for "transparency" have beleaguered the WTO for years. Ironically,
the U.S. has most emphatically called for more transparent measures for
non-governmental organizations (NGOs), such as earlier de-restricting of
documents and their posting on the web, or permitting NGOs to submit amicus
curiae briefs in proceedings of the WTO's dispute settlement body.
Developing countries, suspicious of the U.S. proposals for transparency,
insist that their own access to WTO processes be fulfilled before that of
the NGOs. Beyond problems with the Green Room, developing countries suffer
a disadvantage in WTO negotiations based on their relative capacity to send
a full compliment of personnel. The U.S. sent some seventy or more official
delegates to Seattle, while Chad and Cameroon fielded just three. When
several meetings are convened at the same time, and negotiations go on
around the clock, the short-handed delegations are in trouble. In yet
another example, the head of the Kenyan delegation found out that a new
text had been issued after a member of the press asked him about it! Upon
requesting his own copy at the press center's copy room, this head of
delegation was told he would have to ask the WTO Secretariat for a copy,
since these facilities were reserved for the media!

Despite these glaring flaws, the democratic deficit in Seattle and in the
WTO generally is not the whole story. Significant substantive issues also
enflamed the developing country delegations, such as the one-sided
implementation of numerous agreements reached in 1994. Developing countries
have published a litany of complaints regarding the rigid and destabilizing
enforcement of Uruguay Round agreements benefiting the industrialized
sector and a systematic failure to implement agreements benefiting them. In
the months preceding Seattle, acting as a united "Like-Minded Group," these
developing countries staked out negotiating positions to remedy these
matters. In Seattle, however, the U.S. and EU gave short shrift to these
proposals, committing themselves merely to "examine with particular care"
or "take note of concerns" or "prepare a recommendation" in response, or to
make "more operational" or "more transparent" those matters already agreed.

Other key proposals of developing countries were severely watered down
during the Seattle negotiations. For example, led by the African Group,
developing countries had drafted text amending the Uruguay Round Agreement
on Trade-Related Aspects of Intellectual Property (TRIPs) so that all
living organisms and their parts would not be patentable, and so the list
of exceptions to patentability would include the list of essential drugs
identified by the World Health Organization. In addition, their proposal
referenced "the Convention on Biological Diversity and the International
Undertaking on Plant Genetic Resources" and the duty to "ensure the
protection of innovations of indigenous and local farming communities; the
continuation of traditional farming processes including the right to use,
exchange and save seeds, and promote food security." In the last draft to
emerge in Seattle, however, WTO members were merely to "examine, in
cooperation with other relevant intergovernmental organizations, the scope
for protection…relating to traditional knowledge and folklore…and other
legal means and practices, both national and international." Bienniel
reviews of TRIPs, however, is part of the "built-in" agenda, so developing
countries will be able to pursue these reforms in the future.

At least President Clinton, no doubt due to the effective organizing of
ACT-UP and other health-based NGOs, announced to the Seattle media that the
U.S. will in the future respect other countries' implementation of
WTO-legal alternatives to exclusive patents on essential drugs. Earlier in
1999, these groups had very publicly challenged Democratic presidential
contender Al Gore for his attack on South Africa's national laws protecting
lower prices for AIDS drugs by implementing compulsory licensing and
parallel imports, two WTO-legal mechanisms to ensure competition in sectors
vital to public health.

There is considerable doubt about what happens next. If the Seattle meeting
was "suspended" rather than adjourned, what is the authority of the WTO's
General Council, charged with deciding all matters in between the bienniel
ministerials? And although Barshefsky and Moore declared, in calling for a
"time-out" in the negotiations, their intention to "freeze" the results of
the meeting up to the moment, others argue that WTO deals are constructed
as a single package so nothing is agreed unless everything is agreed. That
would mean that none of the agreements of Seattle - that is, not even the
text issued throughout the week showing that some brackets had been
successfully removed - would be brought forward. Then again, some critics
of the Seattle fiasco have argued that Barshefsky was never even formally
elected to chair the meeting in the first place, nor did she ever gavel the
meeting formally to order! In such a case, the "built-in agenda" agreed at
the end of the Uruguay Round of 1994 and restated at the First Ministerial
Meeting of Singapore would seem to limit the scope of future negotiations,
although the General Council has the right to negotiate anything at any
time, subject to a consensus.

While the WTO and its various authorities dicker over how to proceed, the
next meeting of the Biosafety Protocol negotiations takes place January
20-28, 2000 in Montreal. These talks were stalemated last February in
Cartagena, Colombia, when the U.S. and five other GMO grain-exporters
refused to allow the Protocol to include genetically-engineered grains in
its scope. However, the "after-Seattle" political context may be markedly
different. There are at least five reasons why the negotiating dynamic in
Montreal offers more promise now than it did before:

1) GLOBAL: As a result of the Seattle failure, it is now clear that the WTO
has no mandate to negotiate beyond the "built-in agenda," which does not
address biotechnology. This reinforces the mandate of the Conference of
the Parties to the Convention on Biological Diversity (CBD) to conclude a
Biosafety Protocol establishing
binding international rules governing the transfer, handling and use of all
GMOs.

2) NATIONAL: Efforts to negotiate the Biosafety Protocol heretofore have
been stymied by the intransigence of the United States, Canada, Australia,
Argentina, Chile and Uruguay. However, in Seattle, the initiative of the
U.S., Canada, and Japan to create a WTO "Working Party on Biotechnology"
were defeated. Even in the last draft of the Ministerial Declaration, this
proposal remained in brackets indicating that most national governments
rejected the WTO's taking on this agenda. Again, this strengthens the
mandate as well as the political will of the rest of the world - more than
160 nations - to achieve a Protocol under the CBD.

3) IN EUROPE: In an astonishing display of public discord, European
Commission (EC) negotiator Pascal Lamy's support for the WTO biotech
working party elicited opposing statements from five environment ministers
and fifteen trade ministers of EU member countries. In the Biosafety
Protocol negotiations, Europe's position has been that the Protocol should
clearly indicate its superiority to the WTO in cases of conflict. Europe's
internal debate over the respective roles of the EC and EU member states
will likely strengthen the political will of the EU negotiators in Montreal.

4) IN THE U.S.: There is dramatic and rapidly growing opposition in the
U.S. to genetically-engineered foods, and the media are picking up on it.
Farmers are reacting to the uncertainty in the markets: The president of
the American Corn Growers, for example, is actively campaigning to warn
farmers of the risk they entail if they sow GMO-seed this spring.
Environmentalists' concerns have been buttressed by university studies
showing that corn engineered to genetically express the Bt toxin kills the
larvae of monarch butterflies. The U.S. Food and Drug Administration has
been sued for an alleged failure to protect public health from GMOs, and
three public hearings - in Chicago, Washington DC, and Oakland, California
- were flooded with protesters and testimony expressing concern about the
FDA's inadequate safety testing. Furthermore, a number of the FDA's own
staff scientists have expressed similar concerns. Meanwhile, legislation
has been introduced in the U.S. Congress demanding labels on GMO foods,
while Monsanto has been hit by a class-action suit by farmers. All of this
may lead to changes in U.S. policy in the near term.

5. IN THE PRIVATE SECTOR: Last July, the highly-respected Deutsche Banc
published a report entitled "Ag Biotech: Thanks But No Thanks!" warning
investors that "European concerns are very real and not merely a trade
barrier." An appendix entitled "GMOs Are Dead" downgraded Pioneer Hi-Bred
stock to "sell" and predicted falling growth rates and valuations for the
industry as a whole. In October, the European Commission proposed making
permanent a moratorium in effect since 1990 against the use of genetically
altered bovine growth hormone. Meanwhile, Japan, Korea, Australia, and New
Zealand have joined the EU in demanding labels on GMOs. It may be that,
rather than trying to accommodate varied national regulations, the biotech
industry itself is ready for a coordinated international system.

All told, biotech is "the biggest issue in agriculture today" - as a
spokesperson for the U.S. delegation said in a briefing with
non-governmental organizations in Seattle - and there is little doubt that
agriculture has been the most troublesome issue facing the WTO negotiators
since the beginning of the Uruguay Round in 1986. A legally binding
Biosafety Protocol - embracing the precautionary principle for all
genetically modified organisms, ensuring clear procedures to track their
movements and to cover potential damages with strict liability - could
resolve this thorniest of agricultural problems. Otherwise, the
GMO-protagonists must bear the responsibility for any number of trade wars
on the brink, as they unconscionably choose to continue waging the
especially costly and risky Battle Royale of the 21st Century.