Presentation of Programme and Outstanding Reports & Presentation by Department on Biodiversity

PRESENTATION OF PROGRAMME AND OUTSTANDING REPORTS & PRESENTATION BY DEPARTMENT ON BIODIVERSITY

Documents handed out:
Convention on Biological Diversity: Protocol on Biosafety
Declaration by Members of Parliament regarding the process of implementation of the United Nations Convention to Combat Desertification

DETAILED MINUTES
The programme for the last sitting of parliament for the committee was presented and discussed. The parliamentary officer, Mr. Mashamba, noted that the Department of Environmental Affairs and Tourism was planning a bill which would amend the Conservation Act. He added this would be the only legislation presented by the department.

Dr Benjamin (ANC) reminded the committee of a mariculture project that was presented to them last year, and which would need a follow up. The Chairperson, Ms Mahlangu (ANC), asked Dr Benjamin to look into the issue, and report back to the committee.

Ms Chalmers (ANC) requested that the committee ask the department for a report on the progress of the pollution and waste management policy after the publication of the white paper, and for further information on the issue of the environmental impacts of the Spatial Development Initiatives.

Mr Le Roux (NNP) commented that there was a court case pending on the Marine Living Resources Act, and queried whether the Portfolio Committee should not wait for the outcome of that case before receiving a briefing on the issue, as was planned in the Agenda for the 17 February. The Chairperson noted that she thought it would be a good idea to receive that briefing as soon as possible, especially in light of the court case. After a brief discussion in the Committee, it was agreed to leave the briefing at the said date, or to look at moving the briefing forward.

Ms Mabudafhasi (ANC) referred back to the deliberations on the National Environmental Management Act, and noted that the Portfolio Committee had not had a report back on the status of an Appeal tribunal. The Chairperson agreed, and said she would look into it.

The committee moved on to the tabling of reports from members of the committee. The Chairperson tabled a report on her trip to Dakar, as the representative of the Speaker of the House. She attended a conference, on behalf of the Speaker, which dealt with Parliaments around the world reaffirming their commitment to the Convention to Combat Desertification. The conference ended with a declaration by members of Parliaments, which was tabled.

The committee moved on to its next order of business. Commissioner De Beer, and Lieutenant Lategang of the Endangered Species Protection Unit (ESPU) presented a report on the recent Project Jumbo operation. The project consisted of members of the ESPU force touring 12 Southern African countries investigating the capacity of the countries to control illegal trade in endangered species. The project was funded by the International Fund for Animal Welfare (IFAW). The ESPU delegates tabled a report, and read a short summary of the findings. In general the countries studied, including South Africa, lack the capacity to control illegal trade in endangered species. Lieutenant Lategang stated the project did not deal with CITES and the position of elephants on the CITES lists, but dealt exclusively with enforcing illegal trade. The Committee members were urged to read the report by the time of the CITES briefing on the 17 February.

Ms Chalmers (ANC) asked if the ESPU was recruiting people who had previously been poachers to aid in law enforcement. Lieutenant Lategang replied that the team had not recruited poachers, but worked closely with grassroots level people in order to get inside the organised crime rings involved in poaching.

Mr Villakasi (ANC) congratulated the ESPU on their work. He asked whether the foreign donor issue would in any way compromise the report. The lieutenant replied that the report was a factual document, and the ESPU would not be influenced nor pressurised in reporting findings. He requested that organisations read the report before criticising the work.

The Chairperson asked whether the monitoring of illegal trade was possible in South Africa. The lieutenant stated that monitoring and policing of illegal trade was a most difficult task, and required large amounts of money and sophisticated equipment. The project however did not find an increase in elephant poaching or illegal trade. He added that one of the shortcomings of the CITES framework was that it relied heavily on academic research, and did not take enough input from law enforcement sources.

The Chairperson noted that there was a CITES meeting on the 17 February, and hoped that the ESPU would be able to attend. She added that she would undertake to invite other relevant organisations, such as TRAFFIC.

The remainder of the meeting was taken up by a briefing by the Department of Environmental Affairs and Tourism on the Negotiating position of South Africa on the Convention on Biological Diversity. The department read and tabled a report (attached). The question and answer session was not recorded.

Appendix
DEPARTMENT OF ENVIRONMENTAL AFFAIRS AND TOURISM

1. PURPOSE

To inform the Parliamentary Portfolio Committee on the Environment of the international Protocol on Biosafety under the auspices of the Convention on Biological Diversity, and the political, economical and financial implications of such an instrument for South Africa.

2. SUMMARY

Negotiation of the protocol on biosafety will be concluded in February 1 999 in Cartagena, Colombia. The protocol on biosafety 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 protocol aims to set into place mechanisms and procedures to control the transboundary transfer, handling and use of Living Modified Organisms (LMO's). Parties to the protocol will be obliged to observe provisions relating to advanced informed agreement, risk assessment, risk management and information sharing. Provisions addressing liability issues, socio-economic considerations and trade with non-Parties are also being considered.

The implications of the protocol for biotechnology development, trade and transport of commercial products of biotechnology and the provision of proprietary information has to be seriously considered. The as yet unresolved issue of whether or not to include "products of LMO's " in the protocol has tremendous potential impact on trade of everyday commodities such as maize meal. Even the issues of liability, redress and socio-economic considerations return to the issue of trade and economic interests/penalties.

3. DISCUSSION

Article 19.3 of the CBD obliges Parties to consider the need for a biosafety protocol. The process of reaching consensus through negotiation by the Ad Hoc Working Group on Biosafety (BSWG) was mandated by Decision 11/5 of the Second Meeting of the Conference of the Parties (COP II) to the (CBD). Negotiation of the protocol commenced at the First Meeting of the BSWG (BSWG1) in Aarhus, Denmark in July 1996 and will be concluded at the BSWG-6 in Cartagena, Colombia in February 1999. Following the conclusion of the negotiating process, an extraordinary COP of the CBD will adopt the protocol on biosafety, whereafter it will be opened for signature and ratification.

3.1 Development of the Protocol: The First Meeting of the Conference of the Parties (COP I) to the CBD established an Open-ended Ad Hoc Group of Experts on Biosafety, which met in Madrid, Spain in 1995 and proposed the development of an international framework on biosafety.

At the COP II in Jakarta, November 1995, delegates reached a compromise, calling for "a negotiation process to develop in the field of safe transfer, handling and use of living modified organisms (LMO's), a protocol on biosafety specifically focusing on transboundary movement of any LMO, that may have an adverse effect on biological diversity". COP II also established an Open-ended Ad Hoc Working Group on Biosafety (BSWG) to elaborate the need for and modalities of a protocol based on elements of the Madrid report. Other terms of reference for the BSWG state that it shall: "elaborate key terms and concepts; consider advanced informed agreement (A IA) procedures; identify relevant categories of LMO's; and develop a protocol that takes into account the precautionary principle and requires that Parties establish national measures"

The Conference of the Parties in Decision 11/5 recognized the urgent need for a protocol on biosafety within the international framework for biosafety, and this urgency can only increase with the passing of time following the development and adoption of the protocol. The number of LMO's under development and already in commerce is increasing rapidly. Many of these entities are also moving into international commerce and could be subject to the protocol. As the numbers increase, in the absence of such an international instrument, the level of uncertainty regarding the risks, and the management of such risks associated with LMO's in transboundary movement, including into areas of high biological diversity also increases. There is competition between the need for the benefits that such products may bring to society, and in particular to developing countries, and the need for governments to have a process to establish a basis for decision making with regard to the protection of biodiversity, taking also into account human health.

There has been clear momentum in the international community to support the development of the biosafety protocol. This political momentum needs to be maintained to ensure that the conditions necessary to allow ratification and implementation are established in a timely and transparent fashion. For many developing countries these conditions include enhanced efforts in capacity building in three areas; information exchange and acquisition, training in risk assessment and risk management, and putting in place the necessary institutional mechanisms.

The momentum can also be maintained through the voluntary implementation of the protocol, or elements of the protocol. This approach carries with it a degree of risk in that if the necessary elements for implementation, such as establishment of the Biosafety Clearing House, sufficient national and CBD Secretariat capacity, and resolution of pending issues within the protocol are not achieved expeditiously, there is a danger that the protocol could be seen as ineffective and inefficient.

While the objectives of the protocol are related to protection of biodiversity, its implications for trade and transport of commercial products and provision of proprietary information cannot be ignored. issues such as confidentiality of information, trade with non-Parties and relations with other international agreements, most notably the World Trade Organization (WTO), have direct bearing on international trade and obligations in this respect. The as yet unresolved issue of whether or not to include "products of LMO's " in the protocol has tremendous potential impact on trade of everyday commodities. Even the issues of liability, redress and socio-economic considerations return to the issue of trade and economic interests/penalties.

Dynamics within the BSWG have given rise to a range of regional interest groups. It has become clear that two strong negotiating groups, the European Union and a "coalition" of the United States, Canada and Australia are becoming increasingly active in promoting own interests. The increasingly divisive splits in some traditional negotiating groups such as G77 & China and GRULAC also have become more apparent. Such divisions among the developing world with its differing levels of economic development and biotechnological capacity are by no means clear and tend to shift according to the issues at hand. The panoply of interests and demands is clouding the bargaining picture and rendering difficult an analysis of where trade-offs may lie in ultimately reaching a consensus document.

3.2 South Africa's Position: South Africa's negotiating position in the work of the BSWG has been based on the outcome of three workshops participated in by stakeholders from national and Provincial Government, the industry and NGO sectors. The workshops were held in Pretoria during July 1996, September/October 1996 and April 1997. The results of these workshops led to the drafting of negotiating text of a South African Draft Protocol on Biosafety, which was submitted to the BSWG and taken up in the official documentation.

The South African position in the negotiations is based on the recognition of the beneficial potential of gene technology as contributing factor to improvement of life, while being cognizant also of the inherent and potential dangers to biodiversity and human health. Based on these considerations, the South African position seeks to achieve a balance between the needs of development, food security and trade on one hand and the need for precautionary control measures to ensure a sufficiently high protection of South Africa's rich biodiversity heritage and human health, without establishing an unmanageable bureaucratic process, placing excessive administrative burden on the State or the private sector.

Following each meeting of the BSWG, South Africa's negotiating position is reassessed in view of the outcome of the BSWG, and based also on bilateral discussions with other Parties as well as consultations with national stakeholders. South Africa's negotiating position essentially is in agreement with that of the African Group. On the issues of trade with non-Parties, socioeconomic considerations and liability and redress, the South African position, although in agreement with the African position of inclusion in the protocol, takes a less strict and more inclusive approach than that forwarded by many African delegations. However, on the issue of whether non-living "products of LMO's" should be included in the scope of the protocol or in the definition of an LMO, South Africa's position is at variance with that forwarded by Ethiopia on behalf of the African Group. Careful consideration needs to be given to the implications these provisions in the protocol would hold for implementation constraints at national and international levels, as well as potential impacts on international trade and countries' obligations under other international agreements.

3.3 Implications of the Biosafety Protocol: It is not difficult to see that a protocol with very strong provisions may increase the costs both in time and money of implementing a legal regime, and could have an impact on the number of countries willing to ratify. A protocol with weaker, ambiguous provisions may not necessarily provide the inspiration to draw more signatories, but may also not provide sufficiently for conservation and sustainable use of biological diversity. Finding the balance between these two extremes is essential to guarantee a protocol that accommodates and engages the broader international community, while ensuring the effective national implementation of an international regulatory instrument without justifiable constraints on economic growth and development.

It is further clear that the biosafety protocol will 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. Taking into consideration the interactive complexity of, and depending on the specific provisions set by especially the issues on scope and definition of LMO; application of advanced informed agreement (AlA), notification and risk assessment procedures; and trade with non-Parties as contained in the final protocol, this may be equally true whether South Africa ratifies the protocol or decides not to do so.

The South African position, in agreement with that of the African Group and the majority of the G77 and China, is that all living organisms produced through application of modern gene technology should be included in the protocol. This approach, allowing for exclusion only on national basis, will ensure sovereignty in decisions on allowing entry of LMO's into a country. It would also ensure that all LMO's would be subject to risk assessment and AlA whenever transboundary transfer, release and use of such LMO's occur.

However, the provisions relating to documentation and time-frames for notification and AlA hold serious implications for implementation of the protocol if non-living "products of LMO's" were to be included in the scope of the protocol. Considering the fact that LMO products 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 AlA for every transboundary movement of these products are simply staggering. Not only would such provisions in the protocol impact detrimentally on international trade in everyday commodities such as maize and maize meal, but it would also lead to a situation where Parties to the protocol would be required to monitor and enforce the provisions of the protocol on downstream products containing some derivatives of LMO's such as clothing, meals and beverages etc. The implications with respect to impact on the national economy and capacity requirements for implementation become self-evident. In addition to the above considerations, constraints placed on international trade would also have implications with respect to countries' obligations in terms of international trade agreements.

On the issue of trade in LMO's with non-Parties, South Africa's position supports an inclusive rather than an exclusive approach, favoring a provision allowing trade provided the provisions of the protocol are adhered to. This will not only ensure that the largest number of movements of LMO's will take place in accordance with the objectives of the protocol, but will also form a structure within which non-Parties' actions in this regard can be noted. This view is also recommended to the African Group by the AMCEN Expert Consultation meeting held in Nairobi 28-29 January 1999. The implications of a too restrictive provision of this nature for international trade is obvious, resulting in countries' decisions on ratification of the protocol being based on trade considerations rather than protection of biodiversity and biotechnological safety, thereby defeating the object of the protocol.

3.3.1 National implications: Apart from the implications to the national economy resulting from international trade (see Sect. 4.3.2), the implications of the biosafety protocol for South Africa at national level will be minimal and relate almost entirely to the implementation of the provisions of the protocol. Handling (including research and development) and use (including release) 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 and which comes into effect in 1999. South Africa's negotiations on the biosafety protocol continually aimed at, and achieved, provisions in the protocol which would facilitate integration with the GMO Act. Implementation of the provisions relating to risk assessment and approval of handling and use of LMO's are therefore already integrated into the functions of the institutional structure created in the Department of Agriculture for administration of the GMO Act, fulfilling the function of the Biosafety Competent Authority as required by the protocol.

A Biosafety Focal Point and Biosafety Clearing House Mechanism (CHM) will need to be created and will be located within the Department of Environmental Affairs and Tourism, as line function department responsible for the Convention on Biological Diversity. In view of the implications for international trade, the benefits of implementing the provisions of the protocol, even if South Africa was not to ratify the protocol, are obvious and should provide sufficient incentive for creating an effective institutional structure to enable implementation of the protocol's provisions.

3.3.2 International implications: At international level the biosafety protocol potentially may impact on South Africa's foreign trade and political relations and access to modern biotechnology. Strict and exclusive provisions in the protocol with respect to the scope of the protocol, particularly including non-living products of LMO's", and prohibiting trade with non-Parties would seriously impact on South Africa's trade obligations inter alia under SADC and WTO agreements, rendering South Africa's ratification of the protocol under these conditions extremely difficult. Conversely, non-ratification of the protocol would also then prevent trade with Parties to the protocol by a provision in the protocol prohibiting trade with non-Parties.

In view of the fact that the need for a biosafety protocol originated mainly from the developing State Parties to the CBD, it is conceivable that considerable pressure will be brought to bear on members of SADO and the OAU to ratify the protocol after its adoption and coming into force. The complexity of potential conflicting trade and political relations of South Africa with its SADC and OAU member partners, and that of its trade partners in the developed world, particularly the US and EU, becomes evident and requires careful consideration.

4. ORGANISATIONAL AND PERSONNEL IMPLICATIONS

Implementing the protocol on biosafety will require a collective effort from the Department of Agriculture and the Department of Environmental Affairs as well as the cooperation of several other Government Departments and civil society.

The institutional requirements to implement the protocol on biosafety will consist of a Biosafety Focal Point with associated Biosafety Clearing House, and a Biosafety Competent Authority. The latter component essentially is already in existence within the Department of Agriculture as the Executive Council and Advisory Committee under the GMO Act, to become functional early in 1999.

A Biosafety Focal Point and associated Biosafety Clearing House Mechanism (BCH) will need to be created within the Department of Environmental Affairs and Tourism, as line function department responsible for the Convention on Biological Diversity. The functions of the focal point and BCH will be the exchange of information, coordinating capacity building and public education and awareness with the Competent Authority, and liaison at national and international levels on matters related to biosafety and the protocol. The staffing of the Biosafety Focal Point and BCH will ideally require the creation of two posts, one Assistant Director and one Environmental Officer, with concomitant budgetary implications and effective date 1st January 2000.

5. FINANCIAL IMPLICATIONS

The full and effective implementation of the protocol on biosafety will require increased budgetary commitment in the form of recurrent staff funding of the operational budget of the Biosafety Focal Point. If South Africa ratifies the protocol; GEF and other donor funding will become available for setting up a CHM, staff training and in general facilitating implementation of the protocol.

6. CONSTITUTIONAL AND LEGAL IMPLICATIONS

Chapter 2: Bill of Rights, Section 24 of the Constitution of the Republic of South Africa (Act No.108 of 1996) states that:

"Everyone has the right

(a) to an environment that is not harmful to their health or well-being, and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that-

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development,

In accordance with the constitutional obligations in this regard, the White Paper on the Conservation and Sustainable Use of South Africa's Biological Diversity states the obligation of Government to: "Regulate the transfer, handling, use and release of genetically modified organisms in order to minimise the potential risks to biodiversity and human health" The Biodiversity White Paper further commits Government to:

(a) "Review, streamline, and if necessary strengthen existing and proposed legislation to establish effective management and control measures to regulate the transfer, handling, use and release of genetically modified organisms in order to minimise the potential risks to biodiversity and human health; and

(b) Continue to participate in international efforts to develop a Biosafety Protocol for the safe handling, use and transfer of genetically modified organisms."

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, to come into effect in

1999. Implementation of the biosafety protocol in South Africa will be integrated and harmonised with the GMO Act to avoid duplication of function and/or institutional structure.

CONTACT PERSON

Dr G.T. Willemse Te: (012) 310-3836 & Fax: (012) 320-7026 Department of Environmental Affairs and Tourism.

decision 11/5 of the Second Conference of the Parties (COPI) to the Convention on Biological diversity (CBD) gives effect to Article 19(3) of the CBD by establishing:

a negotiation process to develop, in the field of safe transfer, handling and use of living modified organisms, a protocol on biosafety, specifically focusing on transboundary movement, of any living modified organism resulting from modern biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity, setting out for consideration, in particular, appropriate procedure for advanced informed agreement, " and

"an Open-ended Ad Hoc Working Group under the Conference of the Parties which shall operate in accordance with the terms of reference in the annex to this decision"

In accordance with decision 11/5, amended by COP IV, the BSWG will complete its work at the Sixth Meeting in February 1999, whereafter the Biosafety Protocol will be adopted at an extraordinary session of the COP. South Africa's draft position on the component elements identified and elaborated in the work of BSWG to date are as follows:

South Africa's negotiating position in the work of the BSWG has been based on the outcome of three workshops participated in by stakeholders from National and Provincial Government, the industry and NGO sectors. The workshops were held in Pretoria during July 1996, September/October 1996 and April 1997. The results of these workshops led to the drafting of negotiating text of a South African Draft Protocol on Biosafety, which was submitted to the BSWG and taken up in the official documentation. After BSWG-5 the negotiating text was again distributed for comments and input to all stakeholders and interested parties including the non-governmental oganisation sector, industry and relevant government Departments. Discussions around the South African positions also took place amongst the members of the official delegation and were taken into account in the drafting of the final negotiating paper.

The South African position in the negotiations is based on the recognition of the beneficial potential of gene technology as contributing factor to improvement of life, while being cognizant also of the inherent and potential dangers to biodiversity and human health. Based on these considerations, the South African position seeks to achieve a balance between the needs of development, food security and trade on one hand and the need for precautionary control measures to ensure a sufficiently high protection of South Africa's rich biodiversity heritage and human health, without establishing an unmanageable bureaucratic process placing excessive administrative burden on the State or the private sector.

SOUTH AFRICA'S DRAFT POSITION ON COMPONENT ELEMENTS OF THE

CONSOLIDATED DRAFT NEGOTIATING TEXT OF THE OPEN-ENDED AD

HOC WORKING GROUP ON BIOSAFETY

PREAMBLE

The preamble sets the background for, and framework within which, the Protocol is intended to function. It is for this reason that the preambular paragraphs refer to previous decisions and components of international instruments, which relate to the issues to be addressed. It is not an integral component of the functional instrument and has no legal standing in itself; therefore negotiations should focus more on the substantive core articles of the Protocol. However, the framework set by the Preamble provides the basic terms of reference for the functional components and careful attention needs to be given to the specific wording of the text to ensure that terminology, such as "products of LMO's" is not used in the text of the Preamble out of context with the specific objective of risk assessment.

OBJECTIVES

The objectives of the Protocol should reflect the objectives of the Convention on Biological Diversity (CBD) with regard to Living Modified Organisms (LMO's), as set out in Art. 8(g) and paras.3&4 of Art. 192 of the CBD, i.e. to ensure an adequate level of protection with regard to possible adverse effects of LMO's on the conservation and sustainable use of biodiversity. Inclusion of socio-economic considerations under the objective of the Protocol will depend on the outcome of Article 27 on socio-economic considerations.

GENERAL OBLIGATIONS

The general obligations set the base requirements for implementation of the Protocol to achieve the objectives, and may contain obligatory or optional elements. Care should be taken that structure of the text and inclusion of specific elements into the text of General Obligations is consistent with the scope of the Protocol and is compatible with all its

Article 8(g): Establish or maintain means to regulate, manage or control the risks associated with the use and release of living mod fled organisms resulting from biotechnology which are like/v to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking a/so into account the risks to human health.

Article 19(3) The Parties shall consider the need for and modalities of a protocol setting out appropriate procedures, including, in particular, advance informed agreement, in the field of the 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 bio logical diversity.

(4) Each contracting Party shall, direct/v or by requiring any natural or legal person under its jurisdiction providing the organisms referred to in paragraph 3 above, provide any available information about the use and safety regulations required by that Contracting Party in handling such organisms, as well as any available information in the potential adverse impact of the specific organisms concerned to the Contracting Party into which those organisms are to be introduced.

provisions. In particular, consideration should be given to the reference to "products thereof" should be removed. Also taking into account a Party's right to implement stricter provisions with regards to the conservation and sustainable use of biodiversity as long as it is in compliance with the provisions of the Protocol.

USE OF TERMS

The crucial issue regarding the definition of an LMO is the inclusion or exclusion of 'products of LMO's containing non-living genetic material". Dealing with the potential dangers of these "products thereof" without excessive bureaucratic constraints could better be served by making specific provision for this aspect in the risk assessment procedure required. Terminology that adequately captures all self-replicating entities should be considered in the definition of an LMO.

SCOPE OF THE PROTOCOL

Scope is a critical element in the Protocol and is central to establishing to what the Protocol will apply. All LMO's should be included in the scope of the Protocol. The potential of adverse effects can only be assessed with full risk assessment. Exclusion of LMO's from some provisions in the Protocol should be the sovereign prerogative of individual importing countries, for which exclusion lists (simplified procedure) at national level, could be provided for in the Protocol. Commodities may present a problem in terms of volume or numbers and some Parties are supporting that commodities should be excluded from the Protocol. This approach would negate the sovereign right of Parties being centers of endemism of any live LMO commodities, to regulate these LMO's under the Protocol and should not be supported.

Including "products thereof" either in the Protocol or in the definition of an LMO could not be considered. Living products of LMO's, including commodities, are already included in the scope of the Protocol and therefore "products thereof" has specific reference to non-living products of LMO's. Assessment of potential adverse effects of products derived from LMO's should be an integral part of risk assessment, the basis for decision-making.

The practicalities of products traded within Southern Africa, Africa and globally, and produced from LMO's or likely to be produced from LMO's, do not allow for adequate implementation of the Protocol without undue administrative burden of notification and AlA. Within Africa and Southern Africa products such as maize meal, soybean products, beer, cotton, sugar etc. provide ample examples. Article 19(3) of the Convention on Biological Diversity also provides a mandate only for LMO's, not "the products thereof" which are not LMO's.

ADVANCE INFORMED AGREEMENT (AlA)

Separating the scope of the Protocol and AlA provisions allow for the scope of the Protocol to be broader than the range of LMO's, or conditions, to which the AlA procedures apply. The AlA procedure is intended to ensure that the receiving Party must first have the opportunity to assess the risks and reach an informed decision to permit or prohibit the import and/or release of an LMO.

The provision for a decision in terms of the AlA should embody the principle of:

· the sovereign right of the importing Party to decide on import of LMO's,

and should satisfy the requisite requirements of:

· an explicit agreement by importing Party before export is allowed by the exporting Party and,

· specified requirements for information, time limits on response and procedures for risk assessments.

In simplified terms, a notifier must provide to the competent authority of the receiving Party, (through the relevant focal points), minimum specified information that would allow a decision to be reached whether to permit or disallow the transboundary transfer of the LNIO in question. Within a specified time, the competent authority must respond to the notifier, (through the relevant focal points), with a decision to permit, with or without conditions, the transboundary transfer, to disallow the transboundary transfer, or to request more information. The criteria for decision by the Party of import should be based on scientific evidence in terms of protection of biodiversity and human health. The terms of the decision and timeframes, including terms of (provisional) agreement or postponement of decision should be clearly set out in the text. Careful consideration should be given to the responsibility for initiating notification and subsequent actions (importer/exporter or importing Party/exporting Party).

All LMO's upon first transboundary transfer should be subject to the full AlA procedure, except for those LMO's appearing on a national exclusion list, maintained by the national competent authority and available through the Clearing House Mechanism (CHM). Exclusion lists should be based on appropriate risk assessments, the results of which should also be made available through the CHM. The implications for commodities already commonly traded, capacity and time frames to implement the provision need to be carefully considered and adequately provided for.

Provision should be made for a review of decisions by the importing Party and the same principles and provisions as for the original decision procedure should apply. It is arguable whether a separate article is needed for the review; this could possibly be part of the decision procedure set Out for AlA.

The article on AlA should at all times be in accordance with the article on notification.

NOTIFICATION

Notification of intended transboundary transfer is essential. The existing negotiating text provides only for notification of [first] intentional transboundary transfer, addressing notification of subsequent and unintentional transboundary transfer elsewhere in the text. The procedures could be simplified by requiring the same notification procedure for first subsequent intentional, as well as unintentional transboundary transfers. Annex I could then provide for informational needs of first intentional and unintentional transboundary transfer, and notification of subsequent transboundary transfer could be exempted from the Annex I information requirements through either a provision in the text of the Protocol, or the CHM of the Party of import. Careful consideration needs to be given to the necessity of a requirement for notification of subsequent transfers. Notification of unintentional accidental transfer could also only be expected to be given after it has become known that the transfer has taken place.

Parties of import should require the exporter or the importer to notify. A deadline of 90 days from receipt of notification for acknowledgement may be excessive and a 60-day period may be more appropriately considered. A provision in the Protocol allowing for the domestic regulatory framework as an alternative to the provisions of the Protocol could be considered only if the provisions of the domestic regulatory framework are stricter than that of the Protocol.

Since it is our opinion that the article on notification makes adequate provision for simplified procedures a separate article on simplified procedure is not needed and could be deleted.

MULTILATERAL, BILATERAL AND REGIONAL AGREEMENTS [OR ARRANGEMENTS] [OTHER THAN THE PROTOCOL]

A provision for agreements/arrangements within the ambit of the Protocol could be justified only if the objective was in accordance with the objectives of the Protocol. Agreements/ arrangements between Parties should be supported only if the objectives of the Protocol are not defeated.

RISK ASSESSMENT AND RISK MANAGEMENT

The procedural requirements of the Protocol have to include that risk assessment be performed for LMO's subject to the Protocol. The risk assessment must be based on the minimum information identified in an annex; to be provided with the notification to the importing Party, or performed or acquired at the discretion of the importing Party for a decision on import or release and use. The implications of financial responsibility need to be considered and appropriately addressed. Similarly, in accordance with Art. 8(g) of the CBD, the Protocol should require that appropriate mechanisms be put in place to regulate and manage the risks identified in the risk assessment.

Parties should implement appropriate measures to regulate and manage risks as identified during the risk assessment. These measures shall apply to both contained use and deliberate release.

UNINTENTIONAL TRANSBOUNDARY MOVEMENT AND EMERGENCY MEASURES

A provision outlining requirements to notify and provide information to affected or potentially affected parties of incidents of unintentional of accidental transboundary movement has to be considered. It will be crucial during the negotiations to ensure that the final text embodies the principles and criteria of precaution, reaction and information sharing.

HANDLING, TRANSPORT, PACKAGING AND LABELING

The protocol must provide for labeling of LMO's. Codex Alimentarius makes provision mostly for products rather than LMO's and therefore cannot be seen as adequately addressing the issue, as claimed by some Parties. Furthermore, the discussions within the Codex forum are not progressing satisfactorily. Standards for handling, packaging and transport will not be developed within the time available for negotiation of the Protocol and provision will have to be made for development of these at a later stage.

CONFIDENTIAL INFORMATION

Confidentiality of proprietary information is relevant to the objectives of the Protocol which should contain provision to protect the confidentiality of information if necessary. This should nevertheless be dependent on agreement between the provider and the receiver. Parties should be obliged to establish a process and legal framework to ensure confidentiality of information and be prepared to sign a confidentiality agreement which respects Intellectual Property Rights

CAPACITY-BUILDING, INFORMATION SHARING AND PUBLIC AWARENESS

These issues are embedded in the CBD and are germane to the Protocol, requiring specific provisions in the Protocol. These provisions and the relevant Articles are interconnected through the requirements for a Biosafety Clearing House, which is the vehicle for achieving objectives of communication, information sharing, public awareness and some aspects of capacity building under the Protocol.

NON-PARTIES

South Africa holds the view that the relationship with non-Parties needs to be defined in the Protocol. To place an outright ban on the export to or import from non-Parties of living modified organisms is in our view not the best option. An inclusive rather than an exclusive policy should be followed as far as non-Parties are concerned, as this will at least create some form of structure within which non-Parties' actions can be noted. It will also ensure that the largest number of movements of living modified organisms will be done in accordance with the objectives of the Protocol.

South Africa's position is that the export and import of living modified organisms to and from non-Parties should be considered within five years of the date of entry into force of the Protocol by the Parties. The details of the decision following such consideration shall be elaborated in an annex, which will include the measures and conditions applicable to the relationship with non-Parties. In the interim, the possibility should be created for the participation of non-Parties that have submitted data and that were determined by the Parties to be in full compliance with the provisions of the Protocol.

In order to achieve the objectives of the Protocol, it will be necessary to require trade with non-Parties to be subject to all the provisions of the Protocol, including especially liability and redress (see Art. 28).

NON-DISCRIMINATION

This item may be included in an instrument for the purpose of clarity in relation to how trade in an item from different sources will be dealt with. An article on nondiscrimination could, indeed, run counter to the objectives of the Protocol in the sense that a country would be forced to allow the entry of LMO's on the grounds of common identity even if this may not necessarily be the case. Since the aim of the protocol is not to negotiate nor facilitate trade, an article on non-discrimination should not be necessary. The article should therefore be deleted.

ILLEGAL TRAFFIC

A provision setting out the criteria and procedures dealing with illegal traffic should be contained in the Protocol. This would necessitate the definition of "illegal traffic" and assigning responsibility/authority for actions and associated costs.

SOCIO-ECONOMIC CONSIDERATIONS

Socio-economic considerations inevitably vary from country to country and it would be very difficult to devise provisions in the Protocol that would satisfy all circumstances. Therefore, only a general provision concerning socio-economic considerations may be taken up in the Protocol with the clear understanding that socio-economic considerations are closely linked with national circumstances.

Socio-economic considerations relating to biosafety are an important element to be taken into account during the assessment and management of risks. The risk assessment process should therefore consider as an important element all the socio-economic considerations, including the impacts thereof, that stem from biotechnology.

As empirical data and research results on socio-economic impacts of biotechnology are relatively limited and uncertainties prevail, the need for cooperation between all Parties in research on socio-economic considerations relating to biotechnology as an essential aspect should be addressed in the Protocol.

LIABILITY AND REDRESS

There can be no doubt that the question of liability and redress within the biosafety context is of great importance. It is also a well-known fact that the issue of liability and redress is fraught with political, technical and legal difficulties and a matter to be treated with the necessary sensitivity. A significant issue to address is who should be held liable, and how to administer any regime on liability and redress.

Experience in international environmental negotiations has shown that the subject matter is highly contentious and that the result of these negotiations can be taken as an indication of the general views that States have in this regard. The time available for the conclusion of the negotiations is too short to elaborate a detailed and appropriate liability and redress regime in the field of biosafety. Much uncertainty still exist, several essential principles are still unresolved and the danger looms that a regime could be adopted that would be inefficient or unimplementable and therefore worthless. It might also stall the process of adopting a Protocol if the position of some of the major negotiation partners is taken into account, namely that the inclusion of such a regime should not even be considered as it is an aspect that falls outside the ambit of the mandate for the elaboration of the draft Protocol.

At this stage therefore, the creation of a detailed liability and compensation regime is not considered to be feasible. It would be more practical at least in the present text to create the broad framework and introduce the essential building blocks from which the Meeting of the Parties of the Protocol could develop a liability and redress regime in the near future.

The text of the protocol should reaffirm the duty of states to observe the obligations placed on them and also confirm their liability if they fail to do so. It also needs to place an obligation on Parties to ensure that resources are available in accordance with their legal systems for prompt compensation in respect of damage caused by the use, handling and transfer of living modified organisms. Finally the opportunity to further develop a liability and compensation regime should also be created in the Protocol. Such an approach is from South Africa's point of view the most appropriate and a legally sound one.

Since the Protocol is part of the CBD which specifically states that liability provisions should be made, this article should be in accordance with and not preceding or preempting the implementation of Article 14.2 of the Convention.

RELATIONSHIP WITH OTHER INTERNATIONAL AGREEMENTS

This item is commonly contained in international instruments for the purpose of clarity.

The provisions of the CBD apply to the Protocol and therefore an article setting out this relationship, if necessary, should repeat the text of Art. 22(1) of the CBD.

COMPLIANCE

In any regulatory process there is a need to establish a compliance mechanism, otherwise the success of the Protocol in achieving its objective would be difficult to validate. This is especially true if there is a provision on liability.

ANNEXES:

It is imperative that the number of annexes be limited to the essential only. Annexes are meant to be, and should be designed, to facilitate implementation and should be reserved for setting Out administrative, technical or procedural details necessary to facilitate implementation of the Protocol. The proposal of some Parties to include in the Protocol an annex on LMO's which are to be excluded from the AlA or other provisions of the Protocol would require consensus on the list included in this annex, an almost impossible objective to achieve. It would also require consensus before any LMO's could be removed from such an annex.

Article 22(1). The provisions of the Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.

Annexes to the Protocol should include only:

1. Information for notification

2. Risk Assessment

Appendix 2
DECLARATIONDECLARATION BY MEMBERS OF PARLIAMENTS

Regarding the process of implementation of the

United Nations Convention to Combat Desertification

_______________________________________________________________

I. We, the Parliamentarians invited to meet in Dakar, Senegal on 7 December 1998 by the Convention Secretariat, the National Assembly of Senegal and the Inter-Parliamentary Union in the context of the second session of the Conference of the Parties to the United Nations Convention to Combat Desertification in those countries Experiencing serious Drought and/or Desertification, particularly in Africa, declare that:

1. We are deeply alarmed by the impact of desertification which affects 3,600 million hectares, representing 70 per cent of the potential productive land in arid zones. The rapidity of this progression means that there is a loss of 6 million hectares annually. We are conscious of the gravity of the situation in different regions of the world as in Africa, a continent where deserts or arid zones constitute two thirds of the total land area and 73 per cent of the arid land is already seriously or moderately degraded; in Asia where around 1,400 million hectares are affected by desertification, which corresponds to 71 per cent of the arid land of the continent which is moderately or severely degraded; in Latin America, where nearly three quarters of the arid land is moderately or severely degraded and the Mediterranean, where almost two thirds of the arid land is severely degraded; the countries of Central and Eastern Europe, where 40 per cent to 80 per cent of the arid land is severely degraded;

2. It is intolerable that at the beginning of the twenty-first century near 1 billion men, women and children, are permanently threatened by desertification; that hundreds of millions of people suffer from a chronic shortage of basic necessities such as water; and that millions of "environmental refugees" are forced to abandon their native land to seek relief elsewhere;

3. We share fully the founding premise of the United Nations Convention to Combat Desertification, according to which sustainable development cannot be attained unless:

(i) it is oriented towards people in protecting the interests of the affected populations and eradicates poverty;

(ii) it involves these populations fully in the decision-making process, in measures for the protection of the environment and in the struggle against desertification;

(iii) it includes the dimension of the fight against poverty.

4. We believe that desertification, poverty, famine, social and political disturbances, wars, migration and the displacement of populations, which have led many times to new and most serious degradation of the natural environment, are all interconnected;

5. We take note of the serious budgetary constraints of the poorest affected countries, which still have to devote a considerable proportion of their scant financial resources to debt repayment and servicing.

II. Affirming our total commitment, as Parliamentarians, to contribute fully to the implementation of the Convention, in countries that are Parties to the Convention.

6. We support where necessary the adoption or the strengthening of legislation concerning the fight against desertification and the preservation of the ecosystems in all the affected countries;

7. We subscribe to the promotion of policies and the strengthening of appropriate institutional frameworks for the favourable development of cooperation among the countries affected by desertification and their partners in development;

8. We support the strengthening of social, education, health and policies through public awareness campaigns about the negative effects of desertification as well as the participation of youth and women in the development programmes;

9. We subscribe to the integration of the main provisions of the Convention in national policies for sustainable development;

10. We subscribe to the initiative that the year 2000 be the starting point of the decade to combat desertification;

11. We support fully the initiatives of agencies, donor countries and civil society to mobilise financial assistance for the promotion of sustainable development in poorest countries with fragile ecosystems, through the Convention's Global Mechanism.

III. We undertake to promote in our respective Parliaments:

12. The follow-up to implementation of the Convention, making full use of the mechanisms available in our Parliaments to monitor government action and thus ensure that the Convention is fully implemented;

13. The formulation of national legislation and its harmonization with the provisions of the Convention;

14. The inclusion of the combat against desertification in the overall agendas of our national governments so as to make the combat a priority matter for our countries as for our regional and subregional organizations;

15. The formulation of national action programmes covering water management and applied agricultural research in the poorest countries affected by desertification and others as necessary, and their financing in accordance with the provisions of the Convention;

16. The adoption of practical measures to include environmental education, in particular the fight against desertification, in school curricula.

IV. We are deeply convinced of the need to undertake far-reaching action with the main priorities:

17. To promote forms of regional and subregional cooperation, favourable to improving relations between our relevant intergovernmental organizations;

18. To set up, at the local level, action programmes based on the reforestation and rehabilitation of land which involves all stakeholders in the field, in particular the education system and representatives of civil society, especially youth and women's associations;

19. To define action programmes involving international organizations, including United Nations agencies, donors, national institutions, elected representatives, NGOs, and the local population, in particular resource users, both men and women, to promote the objectives of the Convention;

20. As appropriate in the case of poorest affected countries to expand debt-for-nature swaps for land rehabilitation and reforestation.

V. We Parliamentarians address an urgent appeal:

21. To all relevant participants in civil society, such as financial institutions, personalities in the fields of finance, commerce, sport, the media and the arts, to support the mobilization of financial resources to support the fight against desertification which is under way in the developing countries most seriously affected by desertification and drought;

22. To academic institutions, the scientific community and research centres for their support in the various tasks of implementing the Convention in affected countries with particular regard to the needs of developing countries;

23. To the Inter-Parliamentary Union to give the widest publicity possible to this Declaration and, notably that it be transmitted to all national parliaments for their attention;

24. To the Secretariat of the United Nations Convention to Combat Desertification to continue the actions taken up to this time to support the countries affected by desertification, and to take all necessary measures to the present declaration universally known;

25. To the secretariats of the CCD and the Inter-Parliamentary Union to take follow-up action on the present meeting and organise similar meetings in conjunction with future conferences of the Parties.

Dakar, 7 December 1998

CONVENTION ON BIOLOGICAL DIVERSITY: PROTOCOL ON BIOSAFETY