October 2004
By Fiona Marshall, Fellow, Center for International Environmental Law
A central pillar of the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the 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.
Aarhus Guidelines on GMOs
At the First Meeting of the Parties in Lucca, Italy 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 on their usefulness and progress towards implementation. The Second Meeting of the Parties will be held on 25-27 May 2005 in Almaty, Kazakhstan.
The Secretariat has recently been mandated to develop and circulate a questionnaire to delegations for their comments on the experience gained with the implementation of the Guidelines. Comments are to be provided prior to 15 January 2005.
The Working Group on GMOs
The First Meeting of the Parties (October 2002) also 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 Working Group on GMOs met four times to develop and discuss various options, with the fourth and final meeting being held on 18-20 October 2004. The October meeting was the Working Group’s last opportunity to complete its mandate to develop the most appropriate options for a legally binding approach to public participation in decisions on GMOs. 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 industry and biotechnology associations on the other. EECCA countries and environmental NGOs supported options that would make public participation on decisions regarding GMOs mandatory 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 latitude domestically when choosing how public participation should be provided for. Industry and biotechnology associations present also supported a non-binding, broad 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. Of real concern was that the first of the EU’s new proposals was even weaker than the current non-binding approach of Article 6(11), limiting coverage to decisions on GMOs regarding deliberate release and placing on the market and including a broad exception
for “confidential information”. The Working Group agreed to discuss the EU’s additional options and the plenary worked on them during the Meeting. However, on the final afternoon of the Meeting, the EU requested that its 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.
There may be other indications that the EU wishes to lessen the Aarhus Convention’s role in ensuring public participation in the field of GMOs. At the First Meeting of the Parties (October 2002) the Parties agreed that the Aarhus Convention provides “the most appropriate international framework for further developing access to information, public participation and access to justice in the field of GMOs”. However, at the final meeting of the Working Group on GMOs, the EU requested that the wording “an appropriate framework”, rather than “the most appropriate framework”, be used. Furthermore, the first of the EU’s new proposalswas stated to be without prejudice to requirements developed under the Cartagena Protocol on Biosafety. Article 23 of the Cartagena Protocol requires Parties to the Protocol to promote and facilitate public participation in GMOs. Article 23 is an important provision. However, as the Cartagena Protocol focuses specifically on the transboundary movement of GMOs, Article 23 is of a more limited application than the Aarhus Convention. The Protocol is also yet to be implemented. It is therefore imperative that the public participation requirements under the Aarhus Convention are developed as fully as possible.
At the close of its final meeting, the Working Group on GMOs agreed to put forward four options, including the two unamended EU options, to the Working Group of the Parties. The Working Group of the Parties will consider the various options at its next meeting on 1-4 February 2005.
Where to Go from Here
As mentioned above, the various options will next be discussed at the Working Group of the Parties to be held in Geneva on 1-4 February 2005. The outcome of the Working Group on GMOs demonstrated that some EU countries are effectively blocking progress towards a provision that would make public participation on decisions regarding GMOs mandatory and that would precisely set out the nature of that public participation. Considerable groundwork must therefore done by environmental NGOs and other parties interested in greater transparency prior to the February meeting and thenin 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.
*Participants
Representatives from the Governments of Armenia, Austria, Azerbaijan, Belarus, Belgium, Bulgaria, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Ireland, Italy, Krygyzstan, Latvia, Netherlands, Norway, Republic of Moldova, Slovakia, Spain, Sweden, Switzerland, Tajikistan, Ukraine, United Kingdom and United States of America attended the meeting. The European Commission was also present.
The United Nations Environment Programme – Regional Office Europe (UNEP-ROE) Programme’s Global Environment Facility (UNEP/GEF) Development and Implementation Project on National Biosafety Frameworks were also represented at the meeting.
Regional environmental organizations present consisted of the Regional Environmental Center for Central and Eastern Europe (REC-CEE) and the Regional Environmental Centre Russia.
Non-governmental organizations represented included the European ECO Forum, the Center for International Environmental Law (CIEL), Earthjustice, and GLOBE Europe. Industry and biotechnology organizations present were the Black Sea Biotechnology Association (Russian Federation) and CropLife International.
For more information, please contact Marcos Orellana.