Introduction

History of the Convention on Biological Diversity

Article 1 of the Convention on Biological Diversity (CBD) states that its purpose is the "conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources...." This statement of purpose resulted from the confluence of two processes: (1) the drive to create a convention that would build upon existing agreements and treaties and create a framework for conservation of genes, species and ecosystems, informed by the rapidly developing science of biological diversity; (2) the movement to integrate human development strategies with environmental conservation, especially in the poor and environmentally vulnerable developing world, a large part of which comprises some of the most abundant and diverse ecosystems.

For many years various United Nations bodies and nongovernmental organizations (NGOs) had been discussing the merits of a framework convention that would link the provisions of the many regional and global conservation treaties (e.g. Convention on International Trade in Endangered Species, Migratory Species Convention, Ramsar Wetlands Convention, World Heritage Convention) and fill the gaps between them. In particular they thought it important that the insights of the expanding study of biological diversity (or "biodiversity") be included in such an instrument, in order better to conserve genomes and ecosystems, as much as species. The International Union for the Conservation of Nature (IUCN; now the World Conservation Union), following the recommendations of its General Assembly in 1984, began to draft articles of an international convention of such scope. By 1987 the United Nations Environment Programme (UNEP) recognized the need to expedite the effort to protect biodiversity and so established an ad hoc working group to investigate the "desirability and possible form of an umbrella convention to rationalize current activities in this field, and to address other areas which might fall under such a convention." In the meantime the UN Food and Agriculture Organization (FAO) had been drafting articles relevant to access to genetic resources and sharing of the benefits of their exploitation, especially in relation to farmers' rights. Developing countries had made it clear to the FAO and other intergovernmental organizations that if there were to be an international instrument on biodiversity, it should address issues of human rights and development, such as resource exploitation, technology transfer, intellectual property rights, regulation, liability and redress, and the eradication of poverty. (q.v. Glowka et al. 1994)

By the time the text of the CBD was completed and adopted, its purview included measures for the conservation of wild and cultivated biological resources, as well as provisions for access and rights to cultivated species and their genetic components. The CBD was signed by over 150 nations at the United Nations Conference on Environment and Development (UNCED). Since then the number of signatories has exceeded 160, of which over 110 have ratified through their respective law-making institutions. In the end the Convention comprised sections on national planning and decision-making; environmental impact assessment; identification, monitoring and research; aspects of trade in biological resources; new and additional sources of funding; and protection and restoration of ecosystems. The last of these categories includes article 19, "Handling of Biotechnology and Distribution of its Benefits," paragraph 3 of which states:

"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 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."

UNEP Expert Panel IV

On May 22, 1992, the Conference for the Adoption of the Agreed Text of the CBD agreed to three resolutions. Resolution 2 invited UNEP to "identify processes and activities which have or are likely to have an adverse impact on biological diversity...." (2.a.ii.). In particular it invited UNEP to consider article 19.3 of the CBD. UNEP responded to the Parties' invitation by establishing four expert panels. The Executive Director of UNEP requested that one of these, Expert Panel IV, "consider the need for, elements for inclusion in, and modalities" of a bio-safety protocol. The Expert Panel consisted of approximately fifteen members, representing the seven UN geographical regions. It met three times between 1992 and 1993, twice in Nairobi and once in Madrid. The panel members were acting in their "personal capacities," representing neither their nations nor UNEP. The work of the panel was not to preempt the eventual decision on article 19.3 by the Conference of the Parties (COP) to the CBD. The final Report of Expert Panel IV (UNEP/Bio.Div./Panels/Inf.4), subject of the present paper, was published in April of 1993.

The Report is divided into five chapters and several annexes. Chapter 1 contains preliminary remarks, including UNEP's mandate to Expert Panel IV and a summary of relevant articles of the CBD and references to background documents. Chapter 2 deals with the need for a bio-safety protocol. Significantly, it includes both arguments for and against a protocol, the former being the opinion of the majority, the latter that of the minority. Since the arguments therein persist to the present day, the chapter is an excellent document for comparing opposing opinions in the continuing debate on bio-safety. Chapter 3 concerns elements and modalities of a possible protocol, including definitions and scope, national and international authority, information exchange and advance informed agreement. Chapter 4 is a summary of the Expert Panel's recommendations, while Chapter 5 is an explanation of the minority's opinion. The section of this paper beginning on page 11 is a review and critique of the minority position.

Purpose of the present analysis

Given the comprehensiveness and continuing relevance of the Report of Expert Panel IV, the present analysis is aimed at reviewing its salient points, instantiating with recent evidence and documentation the arguments in favor of a bio-safety protocol, criticizing arguments against a protocol and providing new information and perspectives to the debate on the ecology and safety of biotechnology. We hope that future meetings on bio-safety under the auspices of the COP will reintroduce the Report as an official background document, and that they will take into account all relevant recent scientific, legal and political issues, including those presented in this paper.

Next section/The relationship of the CBD to bio-safety

First page/Table of contents