Kyoto Protocol and Cartagena Protocol


19 February 2002
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Meeting report

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The aim of this report is to summarise the main events at the meeting and identify the key role players. This report is not a verbatim transcript of proceedings.

Environmental affairs and tourism portfolio committee
19 February 2002

Ms G. Mahlangu

Documents handed out:
Cartagena Protocol Executive Summary (Department of Environmental Affairs and Tourism) (See Appendix)
Cartagena Protocol on Biosafety to the Convention on Biological Diversity
Kyoto Protocol to the United Nations Framework Convention on Climate Change

The Committee was briefed on the Kyoto Protocol and given an opportunity to ask questions and discuss its value to South Africa. The members agreed to recommend that the National Assembly approve it. The members were then briefed on the Cartagena Protocol, but it was decided that much more reading and discussion would be necessary before the Committee would be in a position to make an informed decision on it. Additionally, the Chairperson stated that they would have to meet with the Portfolio Committee on Trade and Industry to discuss it at some stage as it was an issue that involved that committee as well.

The Chairperson stated that the Speaker of the National Assembly had referred the Kyoto Protocol to the Committee, so the next step in moving towards accession was up to them. Though they were still short of the quorum necessary to make any decisions, she suggested that they proceed with the presentation on the Kyoto Protocol that would then be followed by a briefing on the Cartagena Protocol.

Kyoto Protocol
Mr F. Leboyera, Director of Climate Change for the Department, proceeded to brief the Committee on the Kyoto Protocol beginning with background information on the process leading up to its creation and its current status. He elaborated on the implications that accession to the Protocol would have on South Africa and the advantages it would offer. Following this, he discussed briefly the process of accession and related legal issues.

Mr Leboyera stated that the Kyoto Protocol was the product of efforts to take strong action against global warming, and it came out of the United Nations Framework Convention on Climate Change (UNFCCC). South Africa ratified the UNFCCC in 1997, and Kyoto was adopted by the third Conference of Parties to the UNFCCC at the end of that year, but South Africa did not sign the Protocol within the time period allowed. Because of this, South
Africa would now have the option to accede to the Protocol rather than ratify it.

Mr Leboyera then elaborated on the main aspects of Kyoto, its purpose, and what it called for. The purposes were to promote sustainable development by enhancing energy efficiency, protect and enhance sinks and reservoirs of greenhouse gases, promote sustainable forms of agriculture, and increase uses of new and renewable forms of energy. Kyoto would not enter into effect unless 55 parties, accounting for at least 55% of 1990 carbon dioxide emissions from industrialized countries, ratified it. He then mentioned that acceding to this agreement would allow South Africa to participate and influence important debate on the issues involved and on related projects aimed at assisting developing countries in reducing emissions and promoting sustainable development. All key stakeholder had been consulted, and accession of the Protocol was supported by the National Commission on Climate Change. The Chief State Law Advisor had reported that the Protocol did not conflict with international law or any of South Africa's international obligations.

In conclusion, Mr Leboyera recommended that the Committee accept the Kyoto Protocol before the World Summit on Sustainable Development, as it was necessary to send the correct signal that South Africa was seriously dealing with sustainable development issues.

Questions and Discussion
The Chairperson reminded the Committee that the Constitution required endorsement from them on this issue if South Africa was to accede. Even though a quorum was not yet present, it was important for them to discuss it.

Ms J. Semple (DP) asked if South Africa was considered a developing or industrialized nation and inquired as to the percentage of greenhouse gases that were attributed to South Africa. She also asked if the Committee was to support the Protocol because South Africa wanted to accede or because the World Summit on Sustainable Development was approaching.

Mr Leboyera replied that South Africa was classified as a developing country, so it would not be subjected to the same commitments that industrialized countries party to the Protocol were. He added that South Africa contributed less than 2% of the total greenhouse gas emissions, but this was high considering its population. However, because it was considered a developing country, South Africa's actions under the Protocol would be basically the same as those under the UNFCCC. He then stated that the push to accede was not because of the World Summit, as the government had been in favor of moving on with the issue already, but the World Summit had created a deadline to beat.

Mr J. Le Roux (NNP) said that he was concerned because the US did not want to sign, and the US did more than other countries to stop emissions. He was concerned that they were missing a major point in their decision.

Mr Leboyera stated that the US had signed but had not yet ratified. He attributed the pull out to the change in administration and President Bush's support from big industries opposed to the Protocol. Additionally, climate change would harm developing countries more than anyone else, so South Africa had a stake in supporting the efforts.

Ms J. Chalmers (ANC) was also concerned about America's position and referred to the alternative strategy that President Bush was supporting where business dealt with their own emissions. She then asked about the national response strategy and how it would affect provincial and local levels. Finally, she asked where South Africa's emissions came from and whether studies had been done.

Mr Leboyera responded that studies had been done, and the reports had been used to highlight vulnerable emissions areas. Some contention in other departments had delayed the publication of these studies, but the issues had been resolved, so they would be published soon. In putting the studies together, various stakeholders had been consulted.

The Chairperson wanted the issue of projects between developing and industrialized countries to be clarified for the members.

Mr Leboyera said that the projects would be investments by other countries to help reduce emissions, but any projects to be conducted in a country had to be cleared by that country first.

Ms R. Ndzanga (ANC) stated that the advantages of the Protocol would restore dignity to the people and assist the rural communities. It would bring power to the people as the government hoped to do.

Mr J. Arendse (ANC) wanted clarification on the difference between signing and ratifying the Protocol. He also believed that the government should look into the alternative announced by the US.

Mr M. Moss (ANC) followed up asking what South Africa had done with regard to the Protocol and what South Africa still needed to do.

Mr Leboyera explained the process beginning with nations deciding to deal with an issue and instigating discussions. After discussions, text would be produced and then adopted. Nations would then take the text home to discuss and sign if they chose to do so. Signing would not bind a country, but it would indicate a desire to ratify at a later date following further investigation. If a nation failed to sign by a certain date, the option to ratify would no longer be available, but the nation could decide to accede to the agreement. Both accession and ratification, however, would bind the country to the agreement. He then proceeded to the issue of the US stating that, of 178 countries, it was the only one that chose to pull out. This did not mean that other countries were no longer considering it. The process could not be stopped merely because the US was not participating.

Ms Semple asked how successful operation of the Protocol would be without the US since it produced 25% of greenhouse gas emissions.

The Chairperson mentioned that the decision had been a White House decision that did not enjoy the support of a number of Congressmen. The process should be continued, but the US should continue to be encouraged to get involved again.

Mr Leboyera said that the fears expressed were real, and the process would be affected, but the US had not completely left the discussion. The issue in the US was political, and the issue of greenhouse gas emissions still needed to be dealt with. He stated that other major players, such as Japan and Russia, now needed to be encouraged to act quickly to counteract the weakening caused by the US decision. He added that the US was not likely to come on board at the moment because their interests were focused elsewhere.

The Chairperson stated that the discussion on the Kyoto Protocol was concluded, and it was tabled with the Committee. South Africa always had a desire to lead by example, and this was a good opportunity, especially in light of the upcoming Summit. She then said that enough members of the National Assembly had joined the Committee to produce a quorum. All members present agreed that the Kyoto Protocol would be beneficial to the country, so the Committee decision was to recommend that the National Assembly approve it.

Cartagena Protocol
Mr G. Willemse, the acting Director for Biodiversity Management for the Department, briefed the Committee on the Cartagena Protocol on Biosafety to the Convention on Biological Diversity. South Africa had ratified the Convention on Biological Diversity, and the Cartagena Protocol would place obligations on parties to the Convention regarding protection of biodiversity and biosafety issues. The obligations of the Convention were very wide, and the Protocol narrowed them considerably. He proceeded to elaborate on the procedure by which the Protocol was created, and the final text was adopted in January 2000. Again, South Africa had not signed in time, so the question was now that of accession, but the country had been intimately involved in the development of the Protocol.

Mr Willemse then discussed objectives including ensuring an adequate level of protection and the safe use and handling of living modified organisms. He explained that living modified organisms (LMOs) had been chosen as the subject over genetically modified organisms (GMOs) because GMOs could be dead, and such products were not included in the realm of the Protocol. Additionally, only third generation biotechnology was included, again narrowing the realm of the agreement to a feasible and useful level.

Mr Willemse proceeded with a discussion on the provisions of the Protocol. One major provision was advanced informed agreement required for the transfer of LMOs to other countries. He elaborated on particulars of the conditions and discussed the circumstances in which simplified procedures could be used upon the agreement of the importing country. According to the Protocol, laws would have to be created on both sides in order to facilitate this process. He then discussed the biosafety clearing house and its role.

Mr Willemse continued by presenting the implications of accession on South Africa. Because most of the provisions were already provided for in South Africa, only minor amendments would be necessary to the current legislation. The capacity and resource commitment, however, would be significant, and a steering committee would be set up with the relevant ministers to take the process forward. Also, it was believed that the Protocol would not impede biotechnology. The impact on trade could be significant and would likely be one of the biggest determining factors on whether or not South Africa would accede as it was possible for other countries to use provisions of the Protocol as non-tariff barriers. Concerning compliance and liability, he stated that these issues had not yet been concluded, and solutions were in the process of being developed.

Mr Willemse then told the Committee that over 170 countries had been involved in developing the Protocol, and it had been open for signature for a year. It would enter into force 90 days following the completion of 50 ratifications, but only 10 countries had ratified it to date. Of these 10, only 2 were developed countries, and those countries would not actually be affected by the provisions at the moment.

Questions and Discussion
The Chairperson told the Committee that they had not been requested to ratify the Protocol that day, because they still had to confer with Trade and Industry.

Ms Semple asked about the difference between LMOs and GMOs and what they actually were.

Mr Willemse replied that any organism that had been genetically modified would be included in GMOs. The difference between a modified organism and a product of a modified organism was that the latter could not reproduce. Genetic material was loose everywhere in the world, and horizontal transfers did occur in nature, but that was minimal. He added that there was no evidence of danger ever occurring from horizontal gene transfers. Though there were situations where gene transfers had produced negative results, these had always been picked up in risk assessment.

Ms Chalmers stated that Mr Willemse was referring to safety issues, but she wanted to know about safety to biodiversity, such as an instance of a hybridised protea and a non-hybridised one.

Mr Willemse said that GM products would never be released in the area of origin because of the biodiversity dangers possible. Applications that risked this were refused.

Mr Le Roux remarked that he knew very little and certainly not enough to make a decent decision on the matter. He suggested that the Committee have a session where Mr Willemse could explain it better and more explicitly for those confused. He added that he was not even certain whether Mr Willemse thought the Protocol was a good thing.

Mr Willemse responded that he would welcome a more detailed discussion. He was in support of the Protocol, but he said that there was good and bad in everything.

The Chairperson said that the lack of commitment of developed countries concerned her.

Mr Willemse replied that developed countries were only taking their time in researching the issue because it could make or break the trade of some countries, but it was not a lack of commitment.

The Chairperson stated that other countries were being careful, and South Africa should be as well. Another meeting would be held with Trade and Industry, but the Committee was more informed on the issue following this meeting. She suggested that much remained to be read, and the issue should be discussed in the various parties as well. She added that the other issues that had been on the agenda would not be discussed at that meeting as none of the tourism representatives could be present.



History and Objectives

The negotiations of the Cartagena Protocol on Biosafety (CPB) that started in Aarhus, Denmark in 1997, culminated in adoption of the CPB at an extended session of the Extraordinary Meeting of the Conference of Parties (ExCOP) to the Convention of Biological Diversity (CBD) in Montreal, Canada in January 2000. The CPB was opened for signature and ratification at the Fifth Meeting of the Conference of the Parties (COP V) to the CBD in Nairobi, Kenya in June 2000 and remained open for signature at the United Nations in New York until June 2001. The CPB will enter into force when 50 State Parties have ratified or acceded to the CPB.

Negotiation of the Cartagena Protocol on Biosafety (CPB) was concluded in January 2000 in Montreal, Canada and opened for signature in June 2000 in Nairobi, Kenya. The CPB gives effect to Article 19.3 of the Convention on Biological Diversity (CBD) "…setting out appropriate procedures, including, in particular, advance informed agreement, in the field of safe transfer, handling and use of any living modified organism resulting from biotechnology, that may have adverse effect on the conservation and sustainable use of biological diversity. The CPB sets mechanisms and procedures to control the transboundary transfer, handling and use of Living Modified Organisms (LMO's). Parties to the protocol are obliged to observe provisions relating to advanced informed agreement, risk assessment, risk management and information sharing. Provisions addressing compliance and liability issues are still to be elaborated upon.

The Draft National Biotechnology Strategy for South Africa contemplates third generation biotechnology to be one of the most important growth sectors nationally and also within the Millenium Africa Recovery Plan. This document highlights the fact that South Africa has largely failed in the utilisation of third generation advances in biotechnology characterized by the emergence of the genetics and genomics sciences.

It is in this context that Cabinet was approached to approve accession to the Cartagena Protocol on Biosafety, with the proviso that: (a) a capacity building plan and (b) an implementation strategy are developed and implemented before the instrument of accession is deposited.


The CPB requires inter alia of contracting parties to take appropriate measures to ensure:
Advance notification of intended transboundary transfer of LMO's, including minimum information as set out in an annex to the protocol, to the importing country which has to inform of its decision to allow the intended transfer within a specified time.
An advance informed agreement (AIA) to be entered into between country of export and country of import before transboundary transfer of LMO's may commence. In addition to the AIA requirements for LMO's in general, the protocol also provides for a simplified procedure for LMO's intended for food, feed or processing (LMO-FFP's).
Risk assessments, at a minimum in accordance with the requirements set out in an annex to the protocol, to inform approval of activities involving LMO's including transboundary transfer, handling and use.
Take legislative measures to ensure the effective implementation of the CPB including the legal obligation for accuracy of information provided.
Designation of one or more dedicated competent national authorities, a national focal point and a national biosafety clearing house.

The biosafety protocol will thus have wide ranging implications not only for the conservation and sustainable use of biodiversity, but also for the development and use of LMO's resulting from modern biotechnology. These potential implications will inevitably impact on South Africa's sectors of agriculture, forestry, trade and industry (particularly the food industry) and possibly also health.

The provisions relating to documentation and time frames for notification and AIA hold serious implications for implementation of the protocol. Considering the fact that LMO's already commonly used or being traded on the open market in South Africa and globally include maize, cotton, soybean, yeast used for production of alcoholic beverages etc., the implications of having to carry out risk assessments and obtaining AIA for transboundary movement of these products are considerable. Even given the simplified AIA procedure for LMO's to be used for food, feed and processing the implications with respect to possible impact on the national economy and capacity requirements for implementation become self-evident. In addition to the above considerations, constraints placed on internationa trade in the event of ineffective and inefficient implementation of the provisions of the CPB would also have implications with respect to South Africa's obligations in terms of international trade agreements.

The direct implications of the CPB for South Africa at national level will relate almost entirely to the implementation of the provisions of the protocol. Import, handling (including research and development) and use (including release for commercial production) of LMO's in South Africa (LMO=GMO) is regulated by the Genetically Modified Organisms (GMO) Act (Act No. 15 of 1997), administered by the Department of Agriculture. Throughout the negotiations of the CPB, South Africa's position sought to ensure the provisions in the protocol would facilitate integration with the GMO Act.

Implementation of some of the provisions relating to risk assessment and approval of development, handling and use of LMO's are already integrated into the functions of the institutional structure created in the Department of Agriculture for administration of the GMO Act, fulfilling in part the function of a Competent National Authority as required by the protocol.

At international level the biosafety protocol potentially may impact on South Africa's foreign trade and political relations and access to modern biotechnology.

Implementing the Cartagena Protocol on Biosafety will require a collective effort from the Department of Environmental Affairs and Tourism, Department of Agriculture and Department of Health, as well as the cooperation of several other national government departments and civil society.

The core institutional component(s) required for the implementation of the CPB is one or more Competent National Authorities. The latter component is already partly in existence within the Department of Agriculture as the Executive Council and Advisory Committee under the GMO Act, 1997. However, if South Africa accedes to the CPB, the functions and mandate of the GMO Executive Council would need to be revised in accordance with the CPB provisions. Alternatively additional institutional structures, including an additional Competent National Authority, provided for in the protocol, may be created for this purpose. A Biosafety Focal Point and Biosafety Clearing House (BCH), as a component of the National Biodiversity Clearing House Mechanism (CHM), will also need to be created.

A communication strategy to inform on the development and use of LMO's (=GMO's) and to ensure continued public awareness of biosafety issues has already been developed by the Department of Agriculture. This communication strategy could be extended to include issues pertaining ot the CPB and its implementation.

As part of the law reform programme of the Department of Environmental Affairs and Tourism, a Biodiversity Bill is being developed to legislate the White Paper on the Conservation and Sustainable Use of South Africa's Biological Diversity. A chapter of the Biodiversity Bill makes provision for the institutional framework and provisions of the CPB.

Development and release of genetically modified organisms in South Africa is controlled by the Genetically Modified Organisms (GMO) Act (Act No. 15 of 1997), administered by the Department of Agriculture. Implementation of the biosafety protocol in South Africa will need to be integrated and harmonised with the GMO Act, 1997 to avoid duplication of function and/or institutional structures. The GMO Act, 1997 may need to be amended to make provision for additional aspects of the CPB.

3. Domestic and international law (opinion from Senior State Law Advisor)

The State Law Advisers remark to the acceptability of the CPB where that:
The Protocol on Biosafety to the Convention on Biological Diversity was scrutinized with a view to possible conflict with the domestic law of the Republic of South Africa, and (that the State Law Advisers) are of the opinion that there appears to be no such conflict.

However, the Department's attention should be drawn to the provisions of section 231 of the Constitution of the Republic of South Africa, 1996 (Act No 108 of 1996), which must be complied with.

4. Self-executing provisions

Self-executing provisions under the Cartagena Protocol which do not require legislation include:
Article 20: Information Sharing and the Biosafety Clearing-House.
Article 22: Capacity-Building
Article 23: Public Awareness and Participation

5. Financial implications

The full and effective implementation of the Cartagena Protocol on Biosafety will require increased budgetary commitment from national government. In view of the fact that implementation of the CPB would need to be integrated into the existing institutional structures, and the need for sharing of functions between government departments, the magnitude of additional budgetary commitment cannot be determined as yet. In order to determine this aspect in detail, it is proposed that it be included in the terms of reference of the Steering Committee that is recommended to take the process forward.

Should you wish to submit any comments regarding the content of this meeting to the members
of the parliamentary committee, kindly email them to and we will ensure that they are hand delivered to the members.

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