Aarhus Convention: The Working Group of the Parties failed to reach agreement regarding genetically modified organisms at February 2005 meeting in Geneva, Switzerland

Fourth meeting of the Working Group of the Parties
Geneva, 1-4 February 2005

A central pillar of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters adopted on 25th June 1998 (Aarhus Convention) is to provide for public participation in decision-making on environmental matters. However, decisions on genetically modified organisms (GMOs) are expressly excluded from the binding requirements on public participation set out in Article 6 of the Convention. Instead, Article 6(11) of the Convention provides that Parties shall apply the provisions of Article 6 to decisions on whether to permit the deliberate release of genetically modified organisms into the environment "to the extent feasible and appropriate". This weak provision resulted from a lack of agreement on the issue between the Parties during the negotiation of the Convention.

Attempts to negotiate a binding provision on GMOs

1. Working Group on GMOs

At the First Meeting of the Parties in Lucca, Italy, in October 2002 the Parties set up a Working Group on GMOs. Its mandate was to, inter alia, explore the options for a legally binding approach to further develop the application of the Convention in the field of GMOs, to select and develop the most appropriate options, and to put them forward for possible decision by the Parties at their second meeting. The Second Meeting of the Parties will take place in Almaty, Kazakhstan on 25-27 May 2005.

The Working Group on GMOs met four times to develop and discuss various options with its final meeting in October 2004. This was its last opportunity to fulfill its mandate. However the final meeting was difficult with clear divisions apparent between EECCA countries (the countries of Eastern Europe, Caucasus and Central Asia) and environmental NGOs on one hand, and the EU and the representatives of science and industry on the other. EECCA countries and environmental NGOs supported options that would make public participation on decisions regarding GMOs binding and which set out precise requirements on the nature of the public's participation. The EU was internally divided on the issue, spending much of the time between sessions in special "EU coordination meetings" and appointing the Netherlands to be the sole EU spokesperson in the plenary sessions of the Working Group. Netherlands, on behalf of the EU, appeared to favor a non-binding, broad option that would allow countries considerable domestic flexibility in choosing how public participation should be provided for. Industrial and scientific representatives present also supported a flexible approach.

Little progress was made towards refining the four drafting options brought forward from previous meetings of the Working Group into a final form for transmission to the Parties and, in fact, at the start of the Meeting, the EU introduced two new proposals. On the final afternoon of the Meeting, the EU requested that these two options be referred to the Parties in their original form, disregarding the amendments that had been made during the Working Group. The EU also requested that a "zero option", i.e. the option of making no amendment to the Convention, be maintained. At the close of its final meeting, the Working Group on GMOs agreed to forward four options, including the two EU options, for consideration by the Working Group of the Parties at its February 2005 meeting.

2. The Working Group of the Parties*

The Working Group of the Parties was set up at the First Meeting of the Parties in October 2002, the same time as the Working Group on GMOs. The mandate of the Working Group of the Parties is to, inter alia, oversee the implementation of the Aarhus Convention work programme, to prepare the Meetings of the Parties, to oversee and direct the activities of subsidiary bodies established by the Meeting of the Parties and to make such proposals and recommendations to the Meeting of the Parties as it considers necessary for the achievement of the purposes of the Convention.

To date the Working Group of the Parties has met four times, with its fourth meeting held in Geneva on 1-4 February 2005. At that meeting the Working Group of the Parties considered the four options on public participation in GMO decisions referred to it by the Working Group on GMOs.

Of these four options, Option 1 provides the most extensive public participation in decision-making on GMOs and is the option preferred by EECCA countries and environmental NGOs. Options 2 and 4 set out some specific requirements for public participation but are more limited than Option 1. Of real concern to NGOs and EECCA countries is Option 3, one of the EU's proposals. If accepted, this provision would be even weaker than the current non-binding approach of Article 6(11).

On the first day of the meeting of the Working Group of the Parties the Chair attempted to call on all states to individually nominate which of the four options they preferred to concentrate on for further drafting. NGOs hoped that by forcing EU member states to answer individually, the EU bloc on the issue might be broken up. However, when the Chair called on each EU members to state their preferred option, they each said that they did not know, and had to defer to the EU. The Netherlands thereafter acted as sole EU spokesperson on the GMO issue throughout the meeting.

The Chair set up a special ad hoc working group to progress negotiation of the four options. However, in the ad hoc group the EU refused to discuss NGOs' preferred Option 1, and the EECCA states refused to discuss the EU's preferred Option 3. The ad hoc group did manage to agree some further refining of Options 2 and 4, but a significant amount of text remained in brackets, requiring further negotiation.

In the plenary session the Chair proposed that, given that no further negotiation of Options 1 or 3 had been possible, and with the two options each facing strong opposition from a number of states, they be dropped, thus reducing the options having to be considered by the Meeting of the Parties in May 2005.

The EU, however, protested strongly that its Option 3 remain, saying that the fact that there was now no disagreement over the wording of its option (because other states refused to negotiate on it) it was therefore a very good option to put to the Meeting of the Parties.

Throughout the meeting the strong division between the EECCA countries and environmental NGOs, seeking a binding, precisely worded provision, and the EU, favouring a non-binding, broadly-worded option, continued. At the end of the meeting all four options remained on the table and the Working Group of the Parties agreed to put all four to the Second Meeting of the Parties in Kazakhstan in May 2005 for its consideration.

Where to from here

The outcomes of the Working Group on GMOs and the Working Group of the Parties demonstrated that some EU countries are continuing to block progress towards a provision that would make public participation on decisions regarding GMOs binding and that would precisely set out the nature of that public participation. Considerable groundwork must therefore be done by environmental NGOs and other interested parties in the build-up to the Meeting of the Parties in Almaty in May 2005. Otherwise it seems probable that an imprecise, non-binding provision on public participation on GMOs will be the result.

One further possibility for achieving a binding provision on public participation on GMOs at the Meeting of the Parties would be for an individual Party or Parties to submit its preferred text as a proposed amendment to the Convention under its Article 14 paragraph 2. However, the deadline for proposing an amendment for discussion at the next Meeting of the Parties is 17 February 2005.

Aarhus Guidelines on GMOs

At the First Meeting of the Parties in October 2002 the Parties adopted non-binding Guidelines on Access to Information, Public Participation in Decision-Making and Access to Justice with respect to Genetically Modified Organisms. At that Meeting the Parties agreed that the Guidelines should be monitored and a report made to the Second Meeting of the Parties in May 2005 on their usefulness and progress towards implementation.

The Secretariat was recently mandated to develop and circulate a questionnaire to delegations for their comments on the experience gained with the implementation of the Guidelines. Comments were to be provided by 15 January 2005. Only ten responses were received, six of which came from European Union member states. The Secretariat's preliminary analysis indicated that countries in general had had little practical experience in the implementation of the Guidelines, although non-EU countries had used them in the process of drafting their national biosafety legislation. Responses from the EU member states reported that the Guidelines were not specifically implemented or promoted, and for the most part had not been translated into national languages. They considered that the existing EU and national legislation and regulatory frameworks were sufficient and saw the Guidelines as an important instrument only for those countries that did not yet have relevant legislation in place.

Additional background material: CIEL attends the Fourth Meeting of the Aarhus Convention's Working Group on Genetically Modified Organisms on 18th to 20th October, 2004.

For more information, please contact Marcos Orellana.

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*Participants at the Working Group of the Parties on 1-4 February 2005

Representatives from the Governments of Armenia, Austria, Azerbaijan, Belarus, Belgium, Bulgaria, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Kazakhstan, Krygyzstan, Latvia, Lithuania, Netherlands, Norway, Portugal, Republic of Moldova, Romania, Russian Federation, Serbia and Montenegro, Slovenia, Slovakia, Spain, Sweden, Tajikistan, Turkey, Ukraine, United Kingdom, United States of America and Uzbekistan attended the meeting. The European Commission was also present.

The United Nations Environment Programme, UNEP/GRID-Arendal and the United Nations Institute for Training and Research (UNITAR) also attended the meeting.

The Council for Europe, the Regional Environmental Center for Central and Eastern Europe (REC-CEE), the Regional Environmental Centre for Central Asia and the Regional Environmental Centre for Moldova (REC- Moldova) were also represented.

Non-governmental organizations represented included the Center for International Environmental Law (CIEL), Earthjustice, European ECO Forum, and GLOBE Europe. Business and scientific organizations present were CropLife International and the Institute Plant Biotechnology for Developing Countries (IPBO).