The Import party shall make its decisions in accordance with scientifically sound risk assessments. The Protocol establishes principles and methods for conducting a risk assessment. In the event of a lack of relevant scientific information and knowledge, the importing Party may take precautionary measures in its import decisions. Parties may also take into account socio-economic considerations when making decisions on the import of LMOs, in accordance with their international obligations. The Convention on Wetlands of International Importance, in particular on Waterfowl Habitat, was concluded in Ramsar, Iran, in 1971. This makes it one of the oldest international agreements for the protection of nature. The Ramsar Convention entered into force in Switzerland in 1976. The Secretariat of the Ramsar Convention is located in Gland (Canton of Vaud). This first fault line developed over the four years of negotiations. Over time, different interest groups have emerged in the negotiation process. Most developing countries are still trying to develop a comprehensive instrument. In direct contrast to this first group, the so-called Miami Group emerged, which consisted of an alliance of industrialized and developing countries with significant participation in international trade in agricultural products.
The Miami Group, which included various States such as Argentina, Chile, Canada and the United States, wanted to avoid imposing excessive restrictions on international trade in LMOs. A third group, the “compromise group”, consisted of various states such as Japan, Mexico, Norway, South Korea and Switzerland, which usually had positions between the other two groups and tried to resolve issues that blocked an agreement. It proved impossible to reach agreement at the extraordinary session for the adoption of the Protocol in Cartagena in February 1999, in particular on the scope of LMOs and the Protocol`s relationship with the World Trade Organisation (WTO). In early 2000, following the failure of trade negotiations at the WTO Ministerial Conference in Seattle, the Protocol`s negotiators met in Montreal in a more conciliatory spirit and succeeded in bringing the negotiations to a conclusion. Representatives from 170 countries are currently negotiating international regulations for the shipment and use of biotech products. These provisions, officially known as the “Biosafety Protocol”, are intended to impose uniform international requirements to ensure the safe transport and use of these products. The Protocol could provide a framework to guide countries where there is currently no national regulatory system for biotech products. The Protocol should not create an international system of liability.
Existing national and regional legal systems should be used to determine what gives rise to legal liability for damage to biodiversity, the nature and extent of the damage that can be compensated, and the procedural system for obtaining redress from the parties responsible. The Cartagena Protocol aims to regulate the cross-border movement of LMOs by defining the conditions under which trade may take place. This takes the form of a `prior informed agreement` (AEOI) procedure. In essence, the AEOI procedure grants the importing State the right to refuse entry to LMOs covered by the procedure on the basis of a risk assessment in accordance with the provisions of the Protocol[8]. In other words, importing countries have the right to restrict imports in order to minimize possible negative effects on the conservation and sustainable use of LVO biodiversity. As already mentioned, the AEOI procedure only applies to LMOs that have not been excluded from its scope. In practice, this means that the AEOI procedure will mainly apply to seeds and micro-organisms, which represent only a small percentage of all LVO traded. In addition, FAO provides its Member States with technical advice on biotechnological applications and biosafety in agriculture, fisheries and forestry; while the Organisation for Economic Co-operation and Development has published consensus papers on biosafety. The protocol should provide for the protection of confidential business information and other intellectual property rights. The Protocol contains clear and appropriate procedures for the designation and protection of confidential information and intellectual property, which are shared in conjunction with the Protocol`s notification provisions.
Dispute resolution procedures relating to requests for confidentiality relating to protected and privileged information should also be defined in the Protocol. In the absence of protection offered by such procedures, companies and institutions will be reluctant to engage in trade, international product development or the exchange of research equipment with the participation of LMOs covered by the Protocol. At the end of 2002, Zambia, Zimbabwe, Lesotho, Malawi, Mozambique, Angola and Swaziland were facing widespread food shortages, threatening up to 13 million people with hunger. The international community responded with food aid through the World Food Programme, but it was later learned that 75% of the maize donated by the United States could be genetically modified. The corn was not ground because the U.S. refused to grind it before exporting it, which meant it could be planted. The Nagoya-Kuala Lumpur Additional Protocol was adopted in Nagoya in 2010 as a supplement to the Cartagena Protocol on Biosafety. The Additional Protocol establishes international rules and procedures on liability and redress for damage to biodiversity caused by genetically modified organisms (GMOs). Switzerland ratified the Additional Protocol on 27 October 2014. The Additional Protocol is still in force, but its provisions are harmonized with the applicable Swiss Genetic Engineering Act (GTA RS 814.91).
The Cartagena Protocol on Biosafety, also known as the Biosafety Protocol, was adopted in January 2000 after an ad hoc open working group on BIOSAFETY met six times between July 1996 and February 1999. The Working Group submitted a draft protocol for consideration by the Conference of the Parties at its first extraordinary meeting, convened with the express purpose of adopting a protocol on biosafety to the CBD. After some delays, the Cartagena Protocol was finally adopted on 29 January 2000[5]. The Biosafety Protocol aims to protect biodiversity from the potential risks posed by living modified organisms resulting from modern biotechnology. [6] The Protocol establishes two sets of procedures to regulate transboundary movements of LMOs. The first concerns LMOs intended to be introduced directly into the environment, such as seeds or trees, and is called the Advance Information Procedure (AEOI) (Articles 7 to 10). The second concerns the LMO-FFP (Article 11). The place of the protocol in international law was one of the difficult issues that the negotiators were trying to resolve, but which, in the end, could not resolve clearly. The preamble contains two separate clauses on the relationship between the Protocol and other instruments of international law.
He stressed, first of all, that the Protocol did not entail any modification of the rights and obligations of States under existing international treaties. This clause was inserted at the request of countries concerned that the Protocol would be interpreted as modifying the obligations contained in wto treaties. The second clause emphasises that the Protocol is not subject to other international agreements. It should be stressed that, although the commitments undertaken within the framework of the WTO are not affected by the Protocol, the former should not divert attention from the content of the new commitments undertaken under the Protocol. .
