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Frank E. Loy, Under Secretary of State for Global Affairs and Head of the United States Delegation and David B. Sandalow, Assistant Secretary of State for Oceans, Environment and Science Press Briefing at the Biosafety Protocol Negotiations Montreal, Canada, January 27, 2000

MR. Loy: Thank you very much for coming. I arrived yesterday afternoon, in part because the agreement that we are trying to negotiate here is so important to the United States that we wanted to make sure we had all the horses here that we needed.

I must say that Assistant Secretary Sandalow has been working this issue for a long time now and with great skill, and I'm very grateful to you, David, for the work you have done.

We came up here to Montreal, all of us -- those of us who came yesterday -- but even more important those who came before, because we are committed to try to get an agreement.

I am very impressed with the atmosphere here. I just had a lunch with a number of ministers, and it strikes me that there is a sincere desire to understand everybody's basic needs and why they are expressed and what can be done about them. The atmosphere is good.

I was not at Cartagena, but I gather from a number of my interlocutors that this is in many ways a more fruitful atmosphere than it was then.

We are a long way from having an agreement. I find a lot of very promising elements there, but we have a ways to go and important issues that are unresolved that are being worked on as we speak.

So I do not want to be excessively upbeat about this because so much still remains to be done, but the atmosphere is good and much has been done. I think every group here has made some significant moves toward conciliation.

A number of important issues are on the table now. There was just a meeting of the plenary session that Assistant Secretary Sandalow attended, and he can speak in some detail on that, if necessary, but there are important issues that were raised there and that are being discussed as we speak.

One of those issues is the subject of precaution, and I want to say a few words about that because it is an important issue. It is an important issue to the public, it is an important issue to the negotiators here, and it ought to be.

I am actually rather proud that the United States was among the first countries to understand how important it is to apply precaution in the development and in the enforcement of environmental, health and safety laws.

We have had an application of precaution for over a generation in our regulatory system, and it permeates our statutes and our regulations. For example, anyone seeking to introduce a pesticide in the United States must prove it does not pose an undue risk because...frequently we have evidence that pesticides are a really dangerous substance that you have to deal with.

All the time we seek to assess and manage risks and in doing so make certain that the environment and human health are protected. One of the consequences of that is that in large part the American people have confidence in our regulatory system and its outcomes.

About a decade ago or so, the international community agreed, at the 1992 Earth Summit, that states should apply precaution widely to protect the environment.

The Rio Declaration has, as you know, Principle 15 which has a number of elements, and it states, in part, that lack of full scientific certainty should not be used to postpone cost-effective measures to protect the environment against serious or irreversible threats.

Various other international rules of the road in our trading system and otherwise also have a precautionary element -- for example, those in the Sanitary and Phyto-Sanitary Agreement to permit countries to adopt provisional environmental protection measures on the basis of available scientific information.

And, there are a number of international institutions such as the Codex Alimentarius Commission, WHO, FAO, the International Plant Protection Convention and others that have all incorporated a precautionary principle into their concepts and basic rules.

I think generally precaution needs to be in our international system as it is in our domestic system, but we have to be careful about how we do it, we have to recognize that one size does not fit all and that the context is important.

We have really two processes: we have an assessment of what the risk is, and we have to then decide how to manage it. And risk management does involve dealing with competing claims.

In the very area we are talking about now, in the case of GMOs, we have competing interests. In one case, the question as to whether there are risks to the environment, for example, by reason of the use of GMOs -- in the other case, whether there is possibly a benefit to be gained from being able to grow the same amount of food on less land. Those are competing environmental considerations, and they have to be factored into decisions.

Our view is that countries should be free and are free to set levels of environment protection that they deem to be appropriate, but that those measures have to be consistent with internationally agreed-upon rules. And our sense is that those involve actions based on science... I think it is wise to take into account competing interests such as the ones I suggested.

Among the competing interests in the real world is cost effectiveness, and among the competing interests is to make sure that we don't throttle potentially beneficial technological innovation.

I am not talking about how to balance those, but I am saying they all have to be in the context. And we believe an approach like that can protect the environment, has in the past frequently protected the environment, and that we need to apply it wisely in this case.

Specifically, we think the Biosafety Protocol should refer to the importance of precaution but do so in a manner basically consistent with previously agreed formulations.

There is some misconception some place that the United States opposes the introduction of the concept of precaution into the Biosafety Protocol. That is not correct.

We have said that we accept that not because it is a negotiating issue, but because it is the right thing to do. We have said that it needs to be consistent with accepted formulations of the principle that have, in fact, proven quite effective.

I think a lot of countries agree with that, but how to apply that can be quite difficult. There have been some proposals that we think would redefine the concept. There is some concern that in so doing, whether it was intended or not, would have the effect of justifying restrictions on biotechnology -- including complete import bans -- without any basis. We have to worry about that, and do worry about that.

We recognize that scientific certainty is an impossibility. We live in a world in which scientific certainty is not available; and therefore, we have to find a formulation that takes that into account at the same time it takes into account the need to protect the environment.

Maybe that is enough to say on the subject, subject to your questions, but I wanted to stress that because it is an issue under discussion right now, and because I have the feeling that it's a tricky issue to get right and that the remarks I just made may help.

Chairman Mayr seems to me to be very skillful and very thoughtful in trying to move this Protocol toward a conclusion. We've been trying to be as cooperative as possible.

The Miami Group, which we have been a party to, has been, as a group, very anxious to be cooperative with the chair. It represents countries with different views at times, but we have been very solid in our negotiating posture, because we have an opportunity to talk about our issues, to resolve issues that we have and to present a solid front.

Maybe I'll stop there for a moment and ask you, David, to add any comments you have before we take questions.

MR. SANDALOW: Nothing, thank you very much.

MR. LOY: We are available for your questions.

QUESTION (ANDREW POLLACK, NEW YORK TIMES): How would this implementation of the precautionary principle, the one in 8.7 that you don't like, how would that ... why is that a new formulation inconsistent with the past and, possibly precedent-setting? I'm not quite sure why it's... or how concretely it's different from in the past?

MR. SANDALOW: The language of 8.7, as it is contained in the chairman's text, "rev. 1," is different than the Rio Declaration formulation of the precautionary approach. It fails to refer to several concepts, including cost-effective measures, and comes at the issue in another direction. The Miami Group opposes reformulating the precautionary principle in article 8.7.

MR. LOY: I have some place in my papers the Rio form and other forms, and you can see... it doesn't take a terribly close reading to see that they differ significantly.

QUESTION (BILL LAMBRECHT, ST. LOUIS POST-DISPATCH): In the plenary session, at least to the uninitiated, the Miami Group's announcement that they wanted to revisit some of the articles that we talked about and were quite emotional in Cartagena seem to trigger some concerns by other delegations given the burden of what still needs to be done. Do you have any worries now that, on top of all the other problems, that this may prove to be what I heard one delegate call a "deal-breaker"?

MR. LOY: I do not think the issues that you refer to, putting them on the table is a deal-breaker, no. These are not new issues, they were issues at Cartagena, they were left over from Cartagena. We have no intention of introducing any issue that is not important, we are not trying to introduce marginal or fluffy issues.

These are important. They have not gotten the attention because -- given the way the negotiations have been structured, and the contact groups have been structured -- there was not room for them. The reason that we brought them up is that we wanted to make sure that there was room for those, as there is for the others. We view those as important, as totally legitimate -- in some cases not probably too difficult, in other cases maybe somewhat difficult -- but there is absolutely no reason why they should not be considered just as much as the ones that are being dealt with in the other contact groups.

MR. SANDALOW: ... just to build on that, we are raising these issues because we are committed to a workable, effective Biosafety Protocol for the long term.

These are issues that have been identified by the Miami Group for almost a year and have been raised early in this meeting as being of importance to the Miami Group. We are very grateful to the chairman for his willingness to engage on them and facilitate a discussion about them, today and tomorrow.

QUESTION (BETTY HILEMAN, CHEMICAL AND ENGINEERING NEWS): I don't know exactly what the issues are, I've heard some of them, but I don't know clearly what all of these issues are.

MR. SANDALOW: These issues are about to be discussed and negotiated, so I hope you will understand if I do not get into describing them in detail. There is a paper that has been distributed, and if you do not have it we can help you get it, which identifies all the articles and exactly what changes are being sought by the Miami Group.

For those of you who were in the plenary, the Like-Minded Group also read off a series of issues as well, and let me just point to one article that is important, it is not the only important article, but it is 13.4.

The life-cycle provisions of 13.4 are especially unrealistic and unnecessary, and our experts believe that these provisions could be problematic for long-live plants, such as trees. I want to emphasize that that is just an example of the important issues that we have identified that need to be addressed. We can help you get the comprehensive list, if you don't have it already.

QUESTION (DOUG PALMER, REUTERS): Just related to the savings clause and the proposal that Chairman Yang has put forward that would delete articles 33 and 21 and then have that preamble instead -- one quick question is, in the discussion today, the Miami Group said that they favored the leading Article 21, and that deals with non-discrimination. I don't understand, why is that... or 22, I'm sorry, 22. Why is that a troublesome issue, the non-discrimination clause?

MR. LOY: Let me try ... David may want to elaborate on that. Our hope was and our belief was that the right thing would be to have the provisions that we have talked about and that are now in Ambassador Yang's draft, to have those in the operational part of the agreement rather than in the preamble part.

We want to make sure that everybody understands that those are, in our opinion, important rules of the road. They are in various other agreements, various rules. One of them is non-discrimination, but it is not the only one that we think ought to apply when you have disputes. To pick one of those out and to enshrine it is maybe not the best way to do it, as opposed to pick the collection.

QUESTION (MR. PALMER): Just kind of following up on the same point, I mean there seems to be, you know, in addition to the precautionary principle where countries have a lot of strong feelings, you seem to have strong feelings about the savings clause, and even putting it in the preamble, you know, causes them a lot of heartburn. I mean, you know, is there... is it possible to reach a satisfactory solution on that issue?

MR. LOY: I hope so. I think the answer is yes ... we are willing to take on obligations and we are planning to take on obligations, but I think we are not prepared to write operative language that would in some way have us give up certain rights and obligations that we and everybody else here have undertaken. We think that is not necessary to make this an effective Protocol, and we've said that.

QUESTION (KRISTIN DAWKINS, INSTITUTE FOR AGRICULTURE AND TRADE POLICY): Welcome to Montreal, Mr. Loy. Mr. Sandalow, you, in a couple of other occasions, have been very clear about the willingness of the United States to agree to language that would make the Biosafety Protocol and the WTO equal in status, and so I would like to ask what if... if the United States is equally committed to going to the WTO and insisting there that the Biosafety Protocol is also equal in status, and if so, how would you go about that?

MR. SANDALOW: Our position that environmental agreements and the WTO have equal status applies not just when we speak in this fora but when we speak in other fora as well. I am not the person to ask about what tactics or specific strategies we would use in other fora to advance that objective.

QUESTION (PHILIP L. BEREANO, COUNCIL FOR RESPONSIBLE GENETICS): I'd like to put to you a question that was addressed to delegates of the Miami Group this morning in a meeting by Miami Group NGOs but the US delegation was not there to respond, for reasons I don't understand, but perhaps you could respond to it now.

The U.S., in the past, has indicated its opposition to draft Article 24 on socio-economic considerations, yet the U.S. also repeatedly, in the past five years, has emphasized the importance that the administration holds for GMOs in terms of our trade.

Now trade is an economic consideration that's of importance to us, and I want to ask you what the apparent double standard that is being put forward or has been put forward here over the years by the U.S. that the economic considerations of the wealthy countries ought to be taken into account but that the socio-economic considerations of the other countries that want Article 34 should not be in the Protocol.

MR. SANDALOW: Let me just start by commenting on the meeting this morning. I have had very informative and useful discussions with members of the environmental community for each of the past couple of days, and I appreciate the time that you all were prepared to take to meet with members of the U.S. delegation. I gather there was a schedule mix-up this morning, and we regret that and look forward to having the opportunity to continue the dialogue, here in Montreal, with members of your group.

QUESTION (MR. BEREANO): And I appreciate the opportunity to re-ask the question that you were not there to answer this morning.

MR. SANDALOW: Thanks. With respect to socio-economic considerations, let me emphasize that this is an environmental treaty, and the U.S. position is that our focus should be on environmental issues.

We do not take the position that socio-economic considerations should be ignored, but they should be built upon environmental impacts. So if there is an impact on biodiversity, then the socio-economic aspects of that impact on biodiversity are irrelevant, but...

QUESTION (MR. BEREANO): ... but we do domestically, in other words?

MR. SANDALOW: This is an environmental treaty.

QUESTION (MR. BEREANO): ... But why, then, do you keep talking about the WTO, if this is an environmental treaty? ... Why don't you talk about other environmental international obligations? Why trade ones? That's confusing.

MR. LOY: Well, I don't think it's too confusing. What I've said is we want to make this...

QUESTION (MR. BEREANO): I'm not really confused, that was rhetorical.

MR. FRANK E. LOY: ... we do not believe it is necessary in that process to abdicate or to walk away from both obligations and rights that we have under other agreements. We don't think that's necessary. So the only reason we're talking about other agreements is because we say we do not want to... get in the position where we do what I just said we're not interested in doing.

On the other hand, in back of your question there is something that bothers me, and I know it is a feeling that is held by some that somehow this is a developed country versus developing country issue.

To the extent that that is either the perception or to the extent it is true, I think it is quite unfortunate. There is no question that the developed world in large part today is the producer of biotechnology, but it is not at all clear to me that the beneficiary of biotechnology are the developed countries, period.

In fact, I would suggest the opposite, that there are enormous values there for developing countries, and a lot of developing countries see that. So this is not a case where all the interests are on one side or the other. In fact, it seems to me there are very significant overlaps and our job is to find those.

Thank you.

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