Most countries were happy that some kind of agreement was reached. The Protocol allows countries to ban the import of genetically modified organisms (GMOs) based on the precautionary principle, though it places the burden on importing countries to monitor a newly established biosafety clearinghouse and conduct a risk assessment before taking such measures against GMO food commodities. The agreement also leaves unclear the relationship between the World Trade Organization and the Protocol.

The Protocol, which is set to be signed in Nairobi in May, will go into effect after 50 countries ratify it, a process that may take as long as two years.

The United States and other "Miami Group" members (Canada, Argentina, Australia, Uruguay and Chile) blocked an agreement at the last round of negotiations a year ago in Cartagena, Venezuela by refusing to allow inclusion of any provision that would impede their free export of genetically modified commodities [See "Unsafe in Any Seed: U.S. Obstructionism Defeats Adoption of An International Biotechnology Safety Agreement," Multinational Monitor, March 1999].

This time delegates were under immense political and public pressure to reach agreement on the draft text. Approximately 40 environmental ministers arrived mid-week, providing an extra political push towards agreement.

Officials from both the EU and the United States have warned that a dispute over genetically modified foods could cause a trade war between the two economic powerhouses. Under consumer pressure stemming from fears about biotech foods, the European Union has not approved any new genetically modified crops since April 1998. Genetically engineered varieties accounted for about 25 percent of corn and 40 percent of soybeans planted in the United States in 1999.

The failure of the WTO meeting in Seattle -- where the United States sought to create a special WTO working group on biotechnology -- left Montreal to resolve the differences. [See "The International Food Fight: From Seattle to Montreal," Multinational Monitor, January/February 2000]. Although the United States is not a party to the Convention because the U.S. Senate has not yet ratified the treaty, it was a major player in the negotiations, acting through its surrogates in the Miami Group, especially Canada.

When the dust finally settled after six furious hours of last-night bargaining, the rules for the identification of living modified organisms for direct use as food, feed or for processing were weakened to accommodate the Miami Group's position.

Under the Protocol, exporters will be required to apply the label "may contain living modified organisms" to all shipments containing genetically altered commodities, a provision which allows for continued co-mingling of GMO and non-GMO commodities. The Protocol also allows for a conference of the parties to revise that labeling policy after two years.

In addition, less direct notification to importing countries is required for living modified organisms intended for direct use in food, feed or for processing than for those produced for release into the environment.

The National Corn Growers Association (NCGA), whose representatives advised U.S. negotiators in Montreal, put a positive spin on the outcome. "We can trade [GMO] corn under this protocol today," says Susan Keith, NCGA senior director of public policy. "Nothing in this agreement should dissuade U.S. farmers from using biotechnology."

Others contend that the Protocol permits countries to ban GMO imports, posing the prospect that countries will block grain shipments where GMOs are co-mingled with non-GMOs.

The Protocol, which is intended to protect the environment from damage due to genetically modified organisms, also received support from environmentalists, who worry that, like exotic species, bioengineered plants, animals and bacteria could wipe out native strains.

The Protocol will enable importing countries to limit the import of genetically modified organisms intended for direct release into the environment, even when there is a lack of scientific certainty that such releases could prove dangerous. For this reason it was greeted by supporters as the most extensive application yet in international law of the precautionary principle as defined in the 1992 Rio Earth Summit Declaration.

Dozens of organizations demonstrated their support for the completion of the Protocol in freezing temperatures.

Greenpeace, which constructed a giant monster corn outside the convention center where the negotiations were taking place, responded to the final Protocol with cautious approval. Greenpeace campaigners suggest that the advanced informed procedures which would require countries to register any new GMOs and notify countries before exporting them there, might prove satisfactory provided critical elements of notification, information and explicit consent are included.

But Greenpeace campaigners said the Protocol suffers from other, less curable, flaws.

"Distinguishing between procedures for living modified organisms that are intended for intentional release into the environment, such as seed, and another procedure for living modified organisms that are intended for direct use as food, feed or for processing is not ideal since grain can be used interchangeably as seed or for food, feed or processing," explains Beverley Thorpe, a Greenpeace genetic engineering campaigner.

Another concern for many environmental and consumer groups is that WTO rules do not recognize the precautionary principle -- which allows regulatory action for public health and environmental purposes even in the face of scientific uncertainty over risk -- and countries adopting rules based on the precautionary principle are vulnerable to trade sanction-authorizing challenges at the WTO.

The U.S.-led Miami Group failed to get explicit language into the agreement which would have subordinated the Protocol to the WTO. Instead, compromise language was inserted into the preamble. This provision emphasizes that the Protocol should not be interpreted as implying a change in the rights and obligations of countries under any existing agreements, but also says the Protocol should not be subordinated to other international agreements.

Yet international agreement preambles are not generally considered to be binding.

Lim Li Lin of the Third World Network reported from Montreal that any trade restrictions on GMO foods will probably still be tested through the WTO dispute settlement process. "Given the difficulties that developing countries will face in assembling and conducting scientific assessments of their own" to satisfy WTO requirements, "they may find their particular individual measures easily declared illegal by the WTO panel system which is weighted against the developing world."

Greenpeace pointed out that under customary international law, the Biosafety Protocol would be considered the most recent and the most relevant international rules dealing with biotechnology and biodiversity, and should therefore be the legal instrument that applies in cases of conflict between the Protocol and other international agreements.

But "the protocol emphasizes there aren't changes to the rights and obligations under existing international agreements such as the World Trade Organization," NCGA's Keith emphasizes.

In addition, the United States not ratified the biodiversity treaty that oversees the new Protocol, and is therefore not bound to honor it. And it does not appear the United States is on track to ratify either the treaty or the Protocol soon.

U.S. politicians such as Senator Richard Lugar, R-Indiana, an outspoken proponent of biotechnology, have already attacked the labeling provisions of the Protocol even though they require no segregation.

-- Charlie Cray