US objection to the Expert Panel IV Report

Despite its mandate to aid the COP in deciding on a bio-safety protocol to the CBD, as well as to the assessment of biotechnology in general, the Report of Expert Panel IV has been neglected in intergovernmental negotiations. Many delegations and NGOs at the second meeting of the Intergovernmental Committee on the CBD (ICCBD), one of two preparatory meetings for the first meeting of the COP, were surprised that the Panel Report was not submitted as a background document, despite its direct relevance to the work of the ICCBD. The United States objected to the recommendation of the Interim Secretariat of the CBD (viz. UNEP) that the Report should inform the Parties' deliberations, on grounds that it was not a "consensus document." The objection was sustained, since apparently the Interim Secretariat was functioning on the assumption that all the background documents for the ICCBD should receive the unanimous approval of the Parties present. The ommission of the Report evoked strong criticism from a number of delegations and NGOs. There was more protest when the Interim Secretariat's eventual background paper on bio-safety (UNEP/CBD/IC/2/13) was not only the briefest of the set of such documents but also conspicuously emphasized the positive contributions of biotechnology, making only general and tentative remarks about its hazards. Delegates from Sweden, Norway and India pointed out that the concerns expressed in the Expert Panel IV Report were not adequately reflected in the Interim Secretariat's document. Moreover, arguments that the Report needed to be a consensus document are untenable. Numerous background papers and notes that do not represent a total consensus are circulated at the intergovernmental meetings on the CBD for the use of delegations and NGOs. Nonetheless, the decision to omit the Report restricted its circulation and prevented it from being incorporated in the official background documents for the COP. The US continues to to rationalize its stance by maintaining that the Report should have represented a consensus or that there was never any expectation or obligation that the Report should be a background document for the Parties' decisions.

Official US rationales notwithstanding, commercial motivation for such an objection is evident. The main political force behind President Bush's refusal to sign the CBD at UNCED was the biotechnology industry, which was worried about the status of intellectual property rights and the regulation of biotechnology under the CBD. At the time of the adoption of the final text of the CBD--just two weeks before the signing ceremony at UNCED--the United States made a formal declaration that stated, inter alia:

"As a matter of substance, we find particularly unsatisfactory the text's treatment of intellectual property rights; finances, including importantly, the role of the Global Environment Facility (GEF); technology transfer and biotechnology."

President Clinton signed the CBD in June of 1993, one year after UNCED. The Clinton administration was able to placate the concerns of the domestic biotechnology industry, in large part because it submitted the CBD to the Senate for advice and consent with a set of "interpretive statements." The statements consisted of comments on each article and suggested language for eventual inclusion in the US instrument of ratification. The United States was the only Party that issued such a formal written interpretation of the provisions of the CBD, and many governments and nongovernmental organizations saw this document as all but a list of reservations to the Convention. Reservations per se are forbidden by article 37 of the CBD. The United States made it clear in the interpretive statements that it does not feel compelled to apply the provisions of the Convention to any private entity under US jurisdiction. It understands the CBD as applying only to Contracting Parties, i.e. national governments.

The US administration now treats bio-safety at best as a non-issue, the problems of the scope of the CBD and its impact of the CBD on intellectual property rights supposedly having been resolved by publication of its official interpretation. Nonetheless, though many biotechnological companies, individually and collectively, have endorsed US ratification of the CBD, their support has often been conditional, and many remain skeptical of the entire process. In a letter dated March 9, 1994, to Senator Pell, Chairman of the Senate Committee on Foreign Relations, Carl Feldbaum, President of the Biotechnology Industry Organization (BIO), wrote:

"We urge the Senate to obtain a[n] ... assurance ... that the United States will not seek, and will in fact oppose, the development of a biosafety protocol under the convention. We believe that the creation of any such entity would not result in scientific oversight to ensure human safety, but rather in promotion of a political agenda serving a purpose other than science."

"We believe it is essential that the U.S. position on the protection of intellectual property, the rights of parties under existing contracts and the undesirability of creating a formal biosafety protocol be appropriately represented at the Geneva Meeting [i.e. the second ICCBD]."

Ironically, the present analysis, which means to illustrate the need for a bio-safety protocol, also fully endorses the exhortation of Mr Feldbaum (loc. cit.) that the administration "should publicly commit to ... insistence on a factual, science based approach to regulation as the essence of any national regulatory scheme for biotechnology processes and products...." We have endeavored to frame the analysis here in the science of the CBD: a complex understanding of the relations between ecosystems, species, genetic components and the physical environment. Such an understanding is not necessarily the same as the "science" of industry.

Shortly before the US Senate failed to give its advice and consent to ratification of the CBD in 1994, Cabinet Secretaries Babbit (Interior), Christopher (State) and Espy (Agriculture) sent a Memorandum of Record to Senate Majority Leader George Mitchell which represented the administration's views "as expressed" during consultations with "several agricultural organizations." It contains industry's refrain about the need for a bio-safety protocol to be "science based":

"Ill-conceived regulation of biotechnology can place restriction on U.S. exports of biotechnology products whether in the agicultural of pharmaceutical areas. One of the many reasons the U.S. biotechnology industry and the Administration believe it essential ot promptly ratify the Convention is to ensure that any biosafety protocol, should one be developed under the Convention, is scientifically based and analytically sound, and does not place undue restrictions on U.S. export of biotechnology products."

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