The Cartagena Protocol on Biosafety has quietly been agreed. A leading African negotiator suggests what developing countries must do to protect themselves from the trade in Genetically Modified Organisms.
As the world's attention was focussed firmly on the Cancun World Trade Organisation summit in September, an important international agreement quietly made its entry on the world stage, holding out immense implications for developing countries.
The Cartagena Protocol on Biosafety, which aims to regulate trade in genetically modified organisms (GMOs), came into force on 11 September after five-year-long negotiations over trade advantages and disadvantages – intractable North-South issues that are set to continue to bedevil the Protocol's implementation.
This is highlighted most forcefully by the US move to take the European Union to the WTO dispute settlement mechanism over the EU's insistence that US exporters clearly label all GM food sold to Europe.
One of its main complaints is that Europe's stand makes Africa reject GM. The elephants that are Europe and US thus fight, and the grass that is Africa gets trampled. The WTO Ministerial Meeting in Cancun, Mexico, which would have had direct or indirect implications on the case, collapsed on 14 September 2003, largely because the South, and especially Africa, refused to accommodate the elephants.
Is this a foretaste of the future of the implementation of the Biosafety Protocol as well? Why do I foresee future difficulties?
The reasons are many, flowing chiefly from the substantive differences between the developing countries and the US over GMO regulation.
The US, which is unlikely to be a party to the Protocol, and the 60 parties to the Protocol start from opposing premises.
The US starts from the premise of 'Substantial Equivalence', which says GM crops are as safe as non-GM ones unless proved otherwise. The EU and the developing world support the 'Precautionary Principle' embodied in the Protocol which states that a GM crop is to be considered possibly risky unless proved to be safe.
From these perceived differences flow implications for implementation.
The Cartagena Protocol requires a country to allow the importation of a GMO only after it has obtained all the necessary information about it and carried out a risk assessment to evaluate the likelihood of harm to human health, to agricultural systems, to its environment and to its socio-economic conditions.
The country of import is first informed by the exporter or by the country of export of the intention to export the GMO.
The country of import, after a risk assessment, then informs the exporter or the country of export in writing whether or not it will allow the import.
In the case of GM commodities intended for food, feed or for processing, the intention to export is notified to all countries in one go through a computerised database system called the clearing-house.
In this procedure, failure to communicate a decision to the country of export or to the clearing-house cannot be taken as an agreement to import. The failure might happen through lack of capacity and the Precautionary Principle would then imply that no exportation takes place.
There are some exceptions to the procedure.
A GMO that is merely transiting through a country is not subjected to the procedure. However, if a country considers any GMO as too dangerous to be allowed even transit, it has the right to register this fact at the clearing-house and prohibit its transiting.
A GMO that is destined for contained use – under conditions from which it cannot escape into the open environment and cannot come into contact with humans or other forms of life – need not go through the procedure before importation.
A GMO for use as a pharmaceutical for humans is subjected to the procedure unless there is another international law or a specified international organisation to govern its import and export authorisation. At the moment, there is no international law other than the Cartagena Protocol to govern the environmental impacts of GMOs. The World Health Organisation is responsible only for the safety to human health of pharmaceuticals – GMOs or otherwise – and not for their environmental impact.
When it comes to implementing and regulating the Protocol, however, developing nations are faced with all kinds of handicaps – for a variety of reasons.
For instance, the Protocol depends on full information for its effective implementation – it requires a labelling and traceability regime to be negotiated once it comes into force. But the US, the biggest producer of GMOs in the world, refuses to label them, so countries will not necessarily know when an unlabelled US GMO is imported into their territories. In the meantime, safety will be compromised.
The poverty of developing countries, especially the least developed among them, mostly in Africa, remains a crucial handicap: they are simply too poor to allocate adequate resources for biosafety. Even more worrying is the fact that, should a risk occur, these countries will find it hard to muster the financial and technical capacity needed to combat it.
One would have thought that, given this situation, socio-economic considerations would constitute a very important component in decisions over whether to import a GMO. But the relevant provision of the Protocol is very weak. However, neither this weakness nor any other international law prevents a poor country from adhering to the Precautionary Principle and making a rigorous socio-economic assessment before importing a GMO.
Risk assessment in the South also becomes complicated because of the complex tropical and subtropical environments. A micro-organism under contained use functions optimally at high temperatures. If it escapes into the open environment in the North, it is unlikely to survive the winter cold. But in the hot tropical and subtropical environments of the South, it may survive and flourish indefinitely.
The South should, therefore, put in place biosafety systems that restrict contained use only to laboratory conditions from which escape of GMOs is impossible.
A major problem is related to the rich biodiversity of the South.
It is a well recognised fact that biodiversity increases Equatorwards and decreases Polewards. The environmental risk GMOs pose is one of passing their genes to wild species. The larger the biodiversity, the more complex and uncertain becomes the evaluation of risks posed by GMOs. And yet, owing to low technical capacity, specific knowledge on the South's biodiversity is very poor. Additionally, most centres of origin of crops are in the South, which makes any mistaken release of a GM crop more devastating in the South.
The Protocol's information and risk assessment requirements recognise this fact and include the centres of origin or genetic diversity.
It should thus be, but is not necessarily seen as, in the interests of the North not to push GM crops into the South, and for the South to resort to caution. After all, virtually all crops of importance in the North have their centres of origin or genetic diversity in the South, which means that the North depends on the South for its future breeding programmes and its future food security.
A more intractable issue, of course, is trade and environment.
Trade rules favour the North. And the international agreement on Trade-related Aspects of Intellectual Property Rights – or TRIPs – makes GMOs especially problematic for the South.
TRIPs makes the patenting of micro-organisms and microbiological processes compulsory. The North is allowing the patenting of GMOs and their sub-cellular components based on this provision. The cellular parts essential for genetic engineering are already patented. This means that any domestic development and use of GMOs will become internationally bureaucratic (negotiating for the tens of subcellular parts) and expensive (paying royalties on each patent).
It also means that GMOs, even when developed in the South, will be controlled by the foreign patent owners of sub-cellular parts.
TRIPs puts the burden of proof of innocence on the person accused of the infringement of a process patent. This could spell trouble when a GMO cross-pollinates with the unmodified crop of a small holder farmer and his crop becomes contaminated by patented genes.
Absurdly, the farmer is assumed to be a process patent infringer. The culprits – the wind and the insects – cannot be summoned to court as witnesses. A South that wants food sovereignty and its farmers to remain innocent of crime can refuse the planting of genetically modified crops in its territories.
Happily, however, at the insistence of the South, there is now a commitment to negotiate a liability and redress regime under the Protocol in case of damages caused by GMOs.
Given these handicaps, is the South going to benefit from genetic engineering? I wonder.
Generally, genetic engineering appeals to the South, which wants to develop fast – the technology promises to put beneficial traits found in living organisms to human use. Conversely, not using this capacity threatens being left even more behind in development.
It has no choice but to stay safe. The South has to put in place biosafety systems firmly based on the Precautionary Principle and develop the capacity – no matter how expensive – to protect itself.
Dr Tewolde Berhan Gebre Egziabher, Director General of Ethiopia's Environmental Protection Authority, was chief African negotiator at the Cartagena Protocol.