THE CARTAGENA PROTOCOL ON BIOSAFETY FOR THE AFRICAN NATURAL ENVIRONMENT AND AFRICAN DEVELOPMENT*
Kevin lie s"
Abstract
The Cartagena Protocol on Biosafety, concluded in terms o f the Convention on Biological Diversity, regulates the trade, transfer, use and transboundary m ovem ent o f living genetically modified organisms. With certain lim ited exceptions, and despite the potential environmental benefits and benefits for African agricultural development, African nations have not embraced genetically m odified crops. The regulatory regime created by Cartagena is also beyond the financial, technical and administrative capacity o f most African nations. When analysed in its constituent elements, the formulation o f the precautionary principle in Cartagena is seen to be an absolutist form ulation equivalent only to the formulation o f the principle used in waste conventions. It is proposed that the costs/benefits analysis used in the Convention on Biological Diversity should also be employed w hen interpreting the precautionary principle in Cartagena and that objective scientific evidence o f risk should be a precursor to the invocation o f the principle.
1 Introduction: Background to the Cartagena Protocol
The Convention on Biological Diversity (CBD)1 entered into force on 29 December 1993.2 To date 190 nations are party to the CBD.3 Article 19(3) o f the CBD requires the parties to the Convention to consider the need for and modalities o f a protocol to regulate the safe transfer, handling and use o f any living modified organism resulting from biotechnology that may have an adverse effect on the conservation and sustainable use o f biological diversity.4
* This paper was made possible by funding from the Ismail M ahom ed Fellowship, a University o f Cape Town Exchange Scholarship, a Kram er Law School Grant and the Manuel and Luby W ashkansky Scholarship which all funded my studies at Duke University, N orth Carolina, USA. I am grateful to Professor Salzman and to the SAJELP reviewers for comments on earlier drafts o f this paper.
" BSc H ons LLB (UCT) LLM (Duke); Associate, Bowm an Gilfillan Inc.
1 Convention on Biological Diversity, 5 June 1992, UN Doc UN EP/Bio.Div/N7-INC.S/4 31 IL M 818. The text is also available on the Convention for Biological Diversity website m aintained by the Secretariat for the CBD, http://www.biodiv.org/convention/articles.asD (accessed 1 O ctober 2007).
2 D Hunter, J Salzman and D Zaelke International Environm ental Law a n d Policy (2002) 933. 3 The count was taken from the CBD website (n l), http://www.biodiv.org/world/Darties.asp (accessed 16 M arch 2007).
4 CBD (n l).
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Preparations for a protocol were initiated in 1995, principally supported by the developing nations.5 A draft protocol was prepared between July 1996 and February 1999 by a working group in which over one hundred nations participated6 and the current form o f the text was adopted on 29 January 2000.7 The resultant text, the Cartagena Protocol on Biosafety, regulates the trade, transfer, use and transboundary movement of living modified organisms8 and aims to provide an international regulatory framework for the environmentally sound application o f biotechnology.9 Living modified organisms (‘LM Os’) are defined in the protocol as ‘any living organism that possesses a novel combination o f genetic material obtained through the use o f modem biotechnology’.10 The Cartagena Protocol is the first attempt by the international environmental community to move beyond a narrow range o f goods posing readily recognisable environmental risks to regulate a core component o f international trade with a large economic growth potential.11 It is therefore not surprising that the Protocol has been extremely controversial and has generated a significant amount of academic commentary and debate.12
In 1993, before the first Conference o f the Parties had even met to consider the need for a biosafety protocol, a United Nations Environmental Program scientific panel had concluded that a protocol regulating LMOs would serve no clear purpose and would ‘divert scientific and administrative resources from higher priority needs; and ... delay the diffusion o f techniques beneficial to biological diversity, and essential to the progress of
5 Hunter et al (n2) at 955.
6 P Hagen and J W einer ‘The Cartagena Protocol on Biosafety: New Rules for International Trade in Living M odified O rganism s’ (2000) 12 Georgia International Environm ental Law Review 697 at 701.
7 See the background to the protocol on the CBD w ebsite (n l), http://www.biodiv.org/biosafetv/background.shtml (accessed 16 M arch 2007). For the full text o f the Protocol see (2000) 6 1LM 1027 or the CBD website (n l), httn://www.biodiv.org/biosafetv/protocol.asp (accessed 16 M arch 2007).
8 Cartagena Protocol, article 1, (n7).
9 D Collier ‘Access to and control over plant genetic resources for food and agriculture in South and Southern Africa: How many wrongs before a right?’ (2006) 7 M innesota Journal o f Law, Science & Technology 529 at 539-540.
10 For an explanation o f the scientific process by which plants are genetically modified see JA Thomson Genes f o r Africa: Genetically M odified C rops in the D eveloping World (2002) 11-26.
" Hagen and W einer (n6) at 712-713. This paper will not attempt to explore the relationship between the Cartagena Protocol and the international trade agreements formed under the auspices o f the GA TT and the WTO, or the trade implications o f Cartagena. For a discussion o f this subject see M M cDonald ‘International Trade Law and the US-EU GM O Debate: Can Africa w eather this storm?” (2004) 32 Georgia Journal o f International and Comparative Law 501; D Schnier ‘Genetically M odified Organisms & the Cartagena Protocol’ (2001) 12 Fordham Environm ental Law Journal 377; and Hagen and W einer (n6).
12 See, for example, J Ellis ‘Overexploitation o f a valuable resource? N ew literature on the precautionary principle’ (2006) 17 European Journal o f International Law 445.
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human health and sustainable agriculture’.13 When the Conference o f the Parties decided at its second meeting in November 1995 to establish a working group to prepare a draft protocol there was already a broad scientific consensus that LMOs were no more dangerous to human health and the environment than conventionally produced foods.14
However, the concerns of European consumers over food safety15 led the European Union (EU) to adopt a de facto moratorium in 1998 on the authorization o f new genetically modified plant releases into the environment pending domestic regulation of LMOs.16 The European nations therefore came to Cartagena in February 1999 seeking a strict protectionist agenda on LMOs and advanced informed agreement procedures which would include the precautionary principle and which would extend to LMOs destined for food, feed or processing.17 The United States and other agricultural exporting nations, the so-called Miami Group, were concerned about the impact o f stringent LMO regulation on world trade, especially trade in commodities, which then totalled 90% o f all genetically modified organisms and pharmaceuticals.18 The Miami Group were the smallest in number but represented the largest grain commodity and LMO exporting countries. They sought to have commodities excluded from the protocol or, at a minimum, at least from the advance informed agreement procedures, and generally favoured a less restrictive protocol.19
Most African nations fell into what was labelled the Like-Minded Group, a group o f 77 developing nations plus China. In general, African culture is characterised by the idea that knowledge belongs to a community and is not capable o f private ownership. Plant genetic resources for food and agriculture are the common heritage of mankind and technology which is used to improve seeds and plants are generally in the public domain.20 Many African nations were therefore concerned about the impact of intellectual property rights protection on food security and poverty and did not wish to have their food production beholden to foreign multi-national corporations.21
13 JH Adler ‘The Cartagena Protocol and Biological Diversity: Biosafe or B io-Sorry?’ (2000) 12 Georgetown International Environm ental Law Review 769.
14 Ibid.
15 RL Paarlberg The Politics o f Precaution: Genetically M odified Crops in Developing Countries (2001) 5.
16 CP N ielsen and K Anderson Golden Rice a n d the Loom ing GMO Trade Debate: Implication f o r the P oor (2003) Centre for International Economic Studies, U niversity o f Adelaide,
D iscussion Paper 0322 at 9.
17 Schnier (nl 1) at 404-405; Hagen and W einer (n6).
18 Schnier ( n i l ) at 403-405; Adler (n l3 ) at 761. The M iami Group consisted o f Argentina, Australia, Canada, Chile, Uruguay, and the USA.
19 Schnier ibid.
20 Collier (n9) at 533-537.
21 See, for example, the similar submissions by African nations in regard to the review o f article 27.3(b) o f the TRIPS Agreement which requires intellectual property protection for plant
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The Like-Minded Group favoured a strong biosafety protocol which would require exporting nations to notify the nation of import about the genetic modifications concerned and receive their permission to import before doing so. The de facto EU moratorium fuelled African concerns about the health and environmental safety o f modified food - if Europeans weren’t prepared to eat it, why should Africans? Accordingly, like the EU, they favoured a strong statement o f the precautionary principle.22 The impasse between the groups prevented a consensus from being reached.23
When formal negotiations resumed in January 2000 there was an abundance of scientific literature supporting the safety of LMO technology24 and several prominent scientists had placed themselves on record in a formal petition declaring their personal faith in both the safety and potential benefits o f LMOs.25 Environmental activists remained unconvinced by the assurances, however, and contended that LMOs would cause harm to both the environment and human health.26 Nevertheless, a consensus was achieved amongst all the parties on the products derived from LMOs,27 a compromise was struck with respect to LMOs destined for food, feed and processing as well as with respect to documentation and labelling28 and the Cartagena Protocol on Biosafety was thus finally adopted on 29 January 2000.29 If entered into force on 11 September 2003.30 140 states, including
varieties. Taking F orw ard the Review o f Article 27.3(b) o f the TRIPS Agreem ent - Joint Communication from the African Group, W TO Doc. IP/C/W /404 (June 26, 2003) at 1-5.
22 Schnier (n l 1) at 403.
23 Ibid at 401; A dler (n l3 ) at 701. 24 Adler ibid at 762.
25 Ibid. The journal Science had also reported the first successful development o f a second- generation m odified food. The first LM Os to be developed, first-generation LM Os, were engineered to display resistance to insects, herbicides and viruses and still comprise the vast majority o f comm ercial agricultural LM O plantings today. They were technically the easiest to produce and were intended to benefit the seed companies and fanners by displaying drought- tolerance, herbicide-resistance, insect-resistance or some other such characteristic which made them easier or cheaper to cultivate. They were not intended to benefit the consumer. Second generation LM Os carry direct benefits to the consum er such as enhanced nutritional value or enhanced flavour. See Nielsen and A nderson (n l6 ) at 2; Thomson (nlO) at 28, 50-59; Adler (n l3 ) at 762.
26 Environm ental activists erected a six-metre high com cob to protest genetic pollution during the M ontreal negotiations and held a protest march in the streets calling for ‘Life before profits’ (Adler ibid at 762-763). Thomson has argued that the existence o f an alarmist environmental and social m ovement cam paigning against LM Os exists because o f poor comm unication between scientists and the public (Thomson ibid at 1). This explanation fails, however, to account for organizations like Greenpeace which have a strong anti-LM O campaign despite contrary scientific advice from their own scientific advisors (Thomson ibid at 100).
27 The Like-M inded Group had wanted these included in the scope o f the protocol but it was agreed that products derived from LM Os would not pose a risk to biodiversity and that many governments had lim ited capacity to deal with imports and exports.
28 Schnier (n l 1) at 405-406; Adler (n l3 ) at 703.
29 Cartagena Protocol (n7); Hagen and W einer (n6) at 697. 30 M cDonald ( n i l ) at 523.
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39 African states, are parties to the protocol.31 The United States, despite its initial participation in the process, has not ratified the protocol.32
The environmental lobby aside, the bulk o f scientific opinion both now and at the time of the Cartagena negotiations, is that LMO technology poses little risk to human health and no greater risk to the environment than conventional plant breeding and food production techniques.33 This paper will not enter into this scientific debate.34 Instead, its aim is to explore the consequences and implications o f the Cartagena Protocol for developing countries in Africa. After a brief overview o f the national stakeholders in the cultivation of GM foods, there is a review of the impact of GM crops on the conservation o f biological diversity. The substantive provisions o f the Cartagena Protocol are reviewed with a particular emphasis on the precautionary principle. Cartagena is shown to contain one o f the most easily triggered formulations o f the precautionary principle in international environmental law. The formulation o f the precautionary principle used in Cartagena has had significant adverse effects on African development and will potentially inhibit, rather than promote, the conservation o f biodiversity in Africa. In conclusion, the paper will offer some proposals to mitigate the adverse impact o f the protocol on African development and environmental diversity.
2 A brief overview of LMO crop plantings
The first generation of GM foods35 were developed in the private sector at the start o f the 1980s.36 These crops were engineered for herbicide and insect resistance and were released in six countries between 1995 and 1996.37 The first plantings occurred in the United States,38 followed rapidly by Argentina39 and Canada.40 In 1996 the global area of transgenic crops was
31 Count taken from the CBD website (n l) on 11 April 2007, htto://www.biodiv.org/biosafetv/signinglist.asDX?sts=rtf&ord=dt.
32 Canada and Argentina, the other m ajor cultivars o f LMOs, have signed the protocol but have not yet ratified it.
3 For discussions o f the risks o f LM O technology see K Amman The Im pact o f Agricultural Biotechnology on Biodiversity (2004) Botanic Garden, University o f Berlin; Thomson (nlO) at 80- 81; D K atz ‘The M ismatch between the Biosafety Protocol and the Precautionary Principle’ (2001) 13 Georgetown International Environm ental Law Review 949 at 967-977; Schnier ( n il) ; and A dler (nl3).
34 For the details o f the scientific debate see the references ibid. 35 See (n25).
36 Paarlberg (n l5 ) at.2. 37 Ibid.
38 Hagen and W einer (n6) at 698. 39 Thomson (nlO) at 3.
40 Paarlberg (n 15) at 3.
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1.7 million hectares.41 By 1999 this area had risen to 40 million hectares of commercial LMO cultivation42 and to 67.7 million hectares by 2003.43 Today, approximately 102 million hectares have been planted with modified crops by 10.3 million farmers in 22 countries.44 More than 99% o f these plantings are engineered to exhibit insect resistance,45 herbicide resistance or, to a lesser degree, some combination o f both.46 The function o f this genetic modification is not to increase crop yields but rather to reduce the costs o f production.47
By far the bulk of LMO cultivation has occurred in the United States. By 1999 the USA had planted 29 million hectares of transgenic crops including 54% of its total soybean cultivation.48 By 2000, 74% of the cotton crop and 1/3 o f the com crop consisted o f LMOs.49 In 2003 the USA held 72% o f the global LMO plantings.50 Today, however, that figure has dropped to approximately 50% largely due to increases in LMO crop plantings in developing countries, especially India.51 Since 1999, 84% o f the increase in GM plantings has occurred in developing nations.52 By 2006 Argentina had expanded its plantings o f modified crops to 18 million hectares (as compared to 54.6 million hectares in the USA and 6 million hectares in C anada)3 and
41 Indian Council o f M edical Research Regulatory Regime f o r Genetically M odified Foods: The Way A head (2004) 3 (hereafter Indian Council); Nielsen and Anderson (n l6 ) at 3.
42 Nielsen and Anderson ibid. Other countries with significant commercial LM O plantings were Argentina, Australia, Canada, China and South Africa.
43 The proportion o f global plantings in 2003 stood at USA 63%, Argentina 21%, Canada 6%, Brazil 4%, China 4%, South Africa 1% and a remaining 1% comprised o f Australia, Mexico, India, Germany, Spain, France and the Philippines combined. Indian Council (n41) at 3-4; Nielsen and Anderson (n l6 ) at 4. The most important comm ercially cultivated m odified crops include canola, cotton, maize, potatoes, rice, soybean, tomatoes, and squash. Indian Council (n41) at 4; N ielsen and Anderson (n l6 ) at 4.
44 This is according to the GM O Compass website http://www.gmo- compass.org/eng/agri biotechnology/gm o planting/257.global gm planting 2006.html (accessed 11 April 2007).
45 Insect resistance is conferred by inserting a gene from the bacterium Bacillus thuringiensis (Bt). The gene manufactures a non-toxic protein in the cell o f the plant that, when eaten by certain insects, combines with an enzyme in the digestive tract o f the insect to produce a toxin that kills the insect. See Thomson (n 10) at 29.
46 GM O Com pass website op cit n44 at http://www.gmo- compass.org/eng/agri_biotechnology/gmo_planting/145.gmo_cultivation_trait_statistics.html (accessed 11 April 2007); Indian Council (n41) at 4.
47 N ielsen and A nderson (n l6 ) at 4. 48 Paarlberg (n l5 ) at 3.
49 Ibid. 50 Ibid at 4.
51 According to GM O Compass (n44) the cultivation areas for m odified crops in 2006 in million hectares were: the USA (first) with 54.6; A rgentina with 18.0; Brazil with 11.5; Canada with 6.1; India with 3.8; China with 3.5; Paraguay with 2.0; and South Africa with 1.4.
52 Ibid; Thomson (nlO) at 172. 53 GMO Com pass (n44).
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by 2006 a total o f approximately 40 million hectares were being grown in developing nations (just less than 40% o f the entire global plantings).54
3 The impact o f LMOs on the environment
African crop-land has the lowest productivity per unit o f land in the world and produces less than half of the global average yield per hectare.55 Farmers in sub-Saharan Africa lack both water and fertilisers.56 Because nutrient levels in the soil are low and because farmers cannot afford fertilisers, they have to grow organic matter and plough it back into the soil before planting their crops.57 Where productivity is low there is less organic matter post-harvest to return to the soil before planting.58 As a result, one o f the only ways for African nations to increase production is therefore to clear more land for cultivation. Given that the greatest cause of biodiversity loss is habitat conversion,59 LMOs offer a way of potentially increasing productivity without expensive agricultural inputs and with reduced land clearing, thereby improving the conservation of biodiversity in Africa.60
Spraying with either herbicides or insecticides is an inefficient process. Most spraying on commercial farms is done by means o f aircraft, meaning that an area larger than the cultivated ground is exposed to the herbicide or pesticide.61 In developing countries spraying is performed by hand, exposing farm workers to direct contact with the pesticides and herbicides. Pesticides are particularly inefficient and destructive as they are often non-specific and therefore act on pest-insects as well as non-pest insects.62 In addition, some o f the most important agricultural pests damage crops from the inside o f the plant, thus rendering the pesticide completely ineffective where the pests concerned have already penetrated the plant.63 In contrast, plants engineered to exhibit insect resistance do not produce toxins, but rather contain an enzyme that is converted to a toxin by metabolic processes inside of pest insects.64 There is therefore no spraying involved, no toxins are produced, and so there is no harm to humans or animals. The enzyme also does not harm unrelated insects.65
54 Indian Council (n41) at 3; N ielsen and Anderson (n l6 ) at 4. 55 Thomson (nlO) at 156.
56 Ibid at 155. 57 Ibid at 156. 58 Ibid.
59 Adler (n l3 ) at 764-768.
60 Using LM O technology to do nothing more than control viral disease would potentially double agricultural productivity in Africa. Thomson (nlO) at 156.
61 Ibid at 29. 62 Ibid. 63 Ibid. 64 Ibid. 65 Ibid at 30.
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Maize, cotton and potatoes engineered in this way were first introduced commercially in 1995 and 1996, and have expanded from 4 million hectares in 1997 to approximately 39 million hectares today.66 Studies have shown a high level of satisfaction amongst farmers with the crop, significantly higher yields and fewer insecticide treatments.67 Studies from the US in 1998 showed that insect resistant transgenic com saved the equivalent o f 2 million hectares from being sprayed for European com borer. Similarly, transgenic cotton saved the spraying of an equivalent of 5.3 million hectares which amounts to a total o f 0.9 million kilograms o f insecticide saved. A yield increase o f 38.6 million kilograms was measured, giving the US cotton growers a net benefit o f $92 million.68 In addition to the economic benefits o f reduced herbicide and pesticide use, there is an obvious environmental benefit from reducing the quantity of toxic chemicals entering the environment. In addition, a reduction in herbicide and pesticide use means a corresponding reduction in the production and transportation o f herbicides. In the case o f herbicides, the herbicides that are being spared are also often the most harmful and persistent.69
The seeds o f GM crops are more expensive than conventional seed because o f the need to recoup the research, development and technology investment costs incurred in the production o f LMOs.70 Most contracts for the sale o f genetically modified seeds contain a technology fee and certain contractual restrictions on the use or re-use of the seed.71 These contracts can be particularly onerous for farmers in developing countries and may raise the cost o f the seed or even the cost of production itself in the case of subsistence farmers.72 The seeds have, however, remained popular with
66 GM O Compass (n44); Thomson ibid at 31. 67 Thomson ibid.
68 Ibid at 31-32. A t least one o f the studies relied upon by Thomson was comm issioned by Monsanto, a developer and marketer o f insect-resistant cotton and com. These results have been confirmed, however, by independent studies also cited by Thomson.
69 Paarlberg (n l5 ) at 3. 70 Ibid.
71 Ibid. In South A frica fanners pay a technology fee o f $104 on a 25kg bag o f genetically modified cotton seed in addition to the cost o f the seed which is $49 a bag. Science in Africa Is G M fa rm in g fea sib le? httn: //www. scienceinafrica. co.za/2004/march/gm.htm (accessed 17 April 2007).
72 Science in A frica ibid. See, however, C ollier’s criticism o f a Bt-cotton pilot project conducted amongst subsistence fanners on the M akhathini flats in Kw aZulu Natal. See (n9) at 560-562. H er criticisms are directed at the process which was followed to introduce Bt-cotton to the area, the destruction o f the crop by flooding, the contractual clauses which the farmers were required to sign, the failure adequately (or at all) to explain the contracts to the fanners, the cost o f accessing the cotton crop, the lack o f monitoring and inadequate risk assessment. She does not take issue with the success o f the crop in reducing pesticide usage. It m ust also be noted that Collier’s commentary on the M akhatini Flats project relies largely on a report by Elfrieda Pschom -Strauss w ho at the time o f writing that report was a m em ber o f Biowatch, a non- gonvermental organisation opposed to genetic engineering o f agricultural crops.
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farmers in developed countries even at the higher prices.73 Even with no increase in yield, farmers have been able to save on average $6 per acre on herbicide costs.74 Studies in South Africa have shown an increase in the use o f Bt-cotton75 from 7% o f cotton farmers in 1997 to 90% o f cotton farmers in 2002, with this increase in use being attributable to pesticide savings.76
4 The impact of the Cartagena Protocol on African development
Sub-Saharan Africa is home to 600-million people.77 Current estimates are that 200-million people are chronically undernourished and 40-million people severely underweight.78 More than 50-million people (the majority of them children) suffer from vitamin-A deficiency and 65% o f women of child-bearing age are anaemic.79 The Southern African food crisis in 2002-2003 affected 15-million people.80
The so-called ‘Green Revolution’81 that contributed to improved agricultural yields in many nations failed in most o f Africa. The reasons for this failure are complex, but can be attributed in part to the fact that the technology that emerged from the Green Revolution was not suited to African growing conditions, nor to Africa’s soil quality or water availability, nor developed for Africa’s staple crops.82 Because o f their relative poverty, African nations are not able to satisfy their food needs through the world market, as Europe or the United States can.83 There is therefore greater pressure on African nations to increase agricultural productivity than there is on the developed world.84 One would therefore expect Africa to have embraced LMO technology and yet, as the description o f LMO cultivation in section 2 above indicated, this has not been the case.
73 Thomson (nlO) at 31-32. 74 Ibid at 40-42; Paarlberg (n l5 ) at 3. 75 See (n45).
76 Science in A frica (n71). 77 Thomson (n 10) at 3. 78 Ibid.
79 Ibid.
80 S Hansch, A Schoenholtz, A Beyninson, J Brown and D Krum m Genetically M odified F ood in the Southern Africa F ood Crises o f 2002-2003 Institute for the Study o f International M igration, Georgetown University School o f Foreign Service, at 14. Zimbabwe, due to its political circumstances, was the worst hit in the region. Life expectancy in Zimbabwe dropped to 35 years and 60% o f the population required food aid with 3 800 deaths occurring per week. See K lies (2004) ‘The Food Crisis in Z im babw e’ 5(2) ESR Review 13.
81 The Green Revolution occurred in the 1970s when intensive scientific breeding programs shared with farmers resulted in improved strains o f wheat, rice and maize. Hansch et al (n80) at 5.
82 Thomson (nlO) at 3; J Asiem a ‘A frica’s Green R evolution’ (1994) 19 Biotechnology and Developm ent M onitor 17; C M ann ‘Reseeding the Green R evolution’ (1997) 277 Science 1038; F W am bugu ‘Why Africa needs agricultural biotech’ (1999) 400 Nature 15.
83 Ibid.
84 Paarlberg (n l5 ) at 148-157.
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There are many reasons for Africa’s reluctance to embrace LMO technology. Many African governments have expressed concern over the commercial interests, property rights and intellectual property rights aspects of LMOs and fear foreign multi-national ‘intrusion’ into domestic food production.85 African reluctance to engage with LMO technology may also arise from environmental and health fears. Some LMO-food research and LMO field trials are being conducted in African countries including Kenya, Tanzania, South Africa, Zimbabwe, Nigeria and Uganda.86 South Africa remains, however, the only commercial grower of modified food and even then this food is primarily for use as animal feed, and South African law requires a complete separation of modified food from non-modified food.87
Another reason often cited for Africa’s reluctance to engage with LMO crops, although so far not by any African nation itself, is the strict protectionist regime implemented in the EU. The EU policy on LMOs involves a strict approval process for GM foods, genetic tracing, certification and labelling.88 The certification and labelling requirements impose high costs on any country seeking to export modified foods to the EU.89 In a country with commercial LMO plantings, an LMO-free certification requires identity preservation systems for the export crop, coupled with a complete separation of the LMO-free crops from any modified crops for the entire length o f the production chain from planting through to transportation, processing and packaging.90 Because o f the cost such a separation involves, any developing country looking to export food to the European market is required, in effect, to remain LMO-free.91 The desire o f many African nations eventually to benefit as agricultural exporters to the EU is therefore said to have resulted in them electing to remain LMO free.92
85 Ibid; TRIPS Review (n21). The global commercial seed market has a turnover o f approximately $23 billion per annum. LM O -product development is concentrated in a handful o f large companies which jointly control one-third o f this market. Hansch et al (n80) at 6, 10. Paarlberg (ibid) contends, however, using K enya as a case study, that this explanation is not sufficient to account for the attitude o f the developing nations in every case.
86 Hansch et al (n80) at 7.
87 Genetically M odified Organisms Act 15 o f 1997.
88 N ielsen and A nderson (n l6 ) at 9; Paarlberg (n l5 ) at 3-6; M cDonald (nl 1) at 508, 527. The E U requires that any food product, food additive or food flavourant containing 1% or m ore o f genetically m odified m aterial be labelled (see N ielsen and Anderson ibid at 10).
89 Even where the requirements are satisfied, there remains little, if any, market for m odified foods in Europe as European supermarkets have agreed to pay a premium for LM O -free food. N ielsen and A nderson ibid 8, 18; M cDonald ibid 508; Hansch et al (n80) at 9.
90 N ielsen and A nderson ibid. J
91 Brazil, the second largest producer o f soybeans .after the U nited States, has declared itself LM O-free in an apparent attempt to replace the United States as the supplier o f the European market (Nielsen and Anderson ibid).
92 M cDonald (nl 1) at 505, 506, 528; Indian Council (n41) at 8. For an analysis o f the effect o f an agricultural exporting economy in A frica generally, see C Gonzalez ‘Trade Liberalization, F ood Security, and the Environment: The neoliberal threat to sustainable developm ent’ (2004) 14 Transnational Law and Contem porary Problem s 419.
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Finally, as will be discussed below, Cartagena has created a regulatory regime beyond the financial, technical and administrative capabilities o f most African nations. This has effectively halted any transboundary movements o f LMOs in Africa.93 The CBD and the Cartagena Protocol provide for capacity development programs, resource and expertise sharing mechanisms and funding mechanisms to assist nations in implementing Cartagena’s procedures.94 Most o f the assistance to Africa has been provided by European nations which, influenced by their own strict protectionist regimes, has resulted in the creation o f complex regulatory regimes in many African states.95
5 The Cartagena Protocol
Article 1 o f the Cartagena Protocol states that the objective o f the Protocol is:
[t]o contribute to ensuring an adequate level o f protection in the field o f the safe transfer, handling and use o f living m odified organisms resulting from m odem biotechnology that m ay have adverse effects on the conservation and sustainable use o f biological diversity, taking also into account risks to hum an health, and specifically focusing on transboundary movements.
‘Transboundary movements’ are defined by article 3(k) as any movement o f an LMO from one party to another party. Human pharmaceuticals that are addressed by other relevant international agreements or organisations are not covered by the Protocol.96 Neither does the Protocol cover non-living derivative products o f LMOs.97
The Protocol draws a distinction between LMOs destined for release into the environment and LMOs which are to be used in food, feed or processing.98 Where an LMO is intended to be released into the environment
93 Hagen and W einer (n6) at 715; M cD onald ibid at 530-531. The consequences o f a desire to remain LM O-free have been devastating for some African nations. A majority o f the food supplied to the W orld Food Program comes from the United States and is genetically modified. Despite the food crisis in Africa, some African leaders have not been willing to accept m odified food. M cD onald ibid at 505-506, 528; Hansch et al (n80) at 6; Indian Council (n41) at 8. In Tanzania and Uganda, the rejection o f m odified food resulted in internal conflict. The situation was exacerbated by some US officials stating that African leaders who refused food aid should be tried for crimes against humanity. For a discussion o f the difficulties o f m odified foods in African food aid programs, see Hansch et al ibid and M cDonald ibid at 508.
94 Articles 11, 22 and 28 o f the Cartagena Protocol (n7).
95 Paarlberg (n l5 ) at 148-157 found in a 2001 study that India, Brazil and Kenya had adopted stricter LM O regulatory regimes than the European Union. In Kenya, for example, the complexity o f the domestic regulatory regim e has m eant that approval o f internal genetically m odified food field-trials now takes two years to complete.
96 Article 5 (n7).
97 Hagen and W einer (n6) at 703. Derivative products are products which have been produced using LM Os, such as blue jean clothing m ade from genetically modified cotton or beverages brewed from genetically modified maize.
98 Article 7 (n7).
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an advance informed agreement (AIA) procedure applies to the first intentional transboundary movement of that LM O ." Where the LMO is to be used directly in food, feed or processing the AIA does not apply.100
The AIA procedure is the heart o f the Cartagena Protocol. In terms of this procedure a party (the party of export) exporting an LMO to another party (the party o f import), for the first time, must provide the party of import with an advance notice in writing o f the intended transboundary movement.101 This notice carries a legal requirement o f accuracy and must contain, amongst other things, details o f the genetic material introduced into the organism; the intended use o f the organism; a previous and existing risk assessment report; and suggested methods o f safe handling, transport and use.102 The risk assessment report is the most important part o f the notice. The risk assessment must identify any novel genotypic and phenotypic characteristics in the organism that may have adverse effects on biodiversity or human health and must evaluate the likelihood o f these adverse effects being realised, the consequences if those risks are realised, an estimation of the overall risk, recommendations as to whether this risk is manageable, and recommendations o f strategies to manage these risks.103
After receiving this notice the party o f import has ninety days in which to acknowledge receipt of the notice.104 Failure to acknowledge receipt within the ninety days may not be taken as consent to the import.105 There is no provision enforcing the time limit106 and ninety days is a lengthy period considering that an acknowledgement o f receipt is all that is required o f the party o f import at this stage. The acknowledgement will inform the party o f export whether it may proceed in terms of the party o f import’s domestic regulatory framework (which must be consistent with the Protocol) or whether it may only export the goods after the party of import has given written consent following the decision making procedure in Article 10.
The Article 10 decision making procedure permits the party o f import to refuse the import, set conditions on the import or request further information from the party of export.107 Before making a decision, the Cartagena Protocol requires the party o f import to perform a risk assessment along the
" i b i d .
100 Article 10 ibid. I f the parties to the Protocol agree that an LMO is not likely to ‘have adverse effects on the conservation and sustainable use o f biological diversity’ that particular LM O may be excluded from the AIA procedure (article 7 ibid).
101 Article 8 ibid.
102 Article 8, read with A nnex I, ibid. 103 Annex III ibid.
104 Article 9 ibid. 105 Ibid.
106 Adler (n l3 ) at 771. 107 Article 10 (n7).
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same lines as was required o f the party of export.108 Article 10(6) permits the use o f the precautionary principle when performing this risk assessment. Article 26 further provides that when a party o f import is reaching a decision on import it may take into account ‘socio-economic considerations arising from the impact o f living modified organisms on the conservation and sustainable use of biological diversity, especially with regard to the value of biological diversity to indigenous and local communities’. What precise factors this article allows a state party to take into account and whether it can be used to block the import o f LMOs where these threaten domestic agricultural production is not yet clear.109
The party o f import has 270 days within which to conduct the risk assessment. Once again, however, there is no provision enforcing the time limit110 and the period is open to extension by the party o f import. As with the ninety day acknowledgement period, failure to reply within 270 days does not amount to consent to import.111 The party of import has to justify whatever decision it reaches in terms o f Article 10 with reasons and must make a summary o f its risk assessment and final decision available through a ‘Biosafety Clearing-House’.112 Bilateral, multilateral or regional arrangements may be used as alternative procedures to the AIA procedure, provided that they do not result in a lower level o f protection than that provided for in the Protocol.
The Protocol also establishes several other substantive obligations including the obligation to manage risks associated with the use, handling and transboundary transport o f LMOs;113 to provide notice o f and information for dealing with unintentional transboundary movements of LMOs;114 to assist with human resource and capacity building;115 to promote public education and awareness on biotechnology;116 and to prevent illegal transboundary movements o f LMOs.117 The Protocol calls for a separate
108 Article 15 ibid. This is an unclear provision. It seems to imply a separate risk assessment process to the one undertaken by the party o f export is required as it says that the costs o f the assessment can be placed on the party giving notice and it requires the party o f import to make use o f the information supplied to it in the notice in perform ing its ow n risk assessment. However, the article also allows the party o f import to require the party o f export to perform the risk assessment. How this w ould differ from the first risk assessment perform ed by the party o f export is not clear.
109 Hagen and W einer (n6) at 711. 110 Adler (n l3 ) at 771.
1,1 Article 10 (n7).
112 Articles 9, 10 and 20 ibid. 113 Article 16 ibid.
114 Article 17 ibid. 115 Articles 22 and 28 ibid. 116 Article 23 ibid. 117 A rticle 25 ibid.
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agreement on liability rules for damages arising from transboundary movements o f LMOs.118
6 An analysis of the precautionary principle in the Cartagena Protocol
The precautionary principle is formulated on the premise that administrators should be permitted to avoid or minimize risks whose consequences are as yet uncertain but potentially serious, by taking anticipatory regulatory action.119 The soundness of the principle has been the subject of several critiques,120 but the intention o f this paper is not to examine the principle in general, but rather the particular formulation o f the principle as contained in Cartagena.
The most authoritative formulation121 o f the precautionary principle is that contained in Principle 15 o f the Rio Declaration on Environment and Development (‘the Rio Declaration’).122 Principle 15 o f the Rio Declaration reads as follows:
[i]n order to protect the environment, the precautionary approach shall be w idely applied by States according to their capabilities. Where there are threats o f serious or irreversible damage, lack o f full scientific certainty shall not be used as a reason for postponing cost-
effective m easures to prevent environmental degradation.
Appelgate has characterised the precautionary principle according to four discrete elements: the trigger defines the initial degree and certainty of future harm that justifies the regulatory response; the timing is the relationship between the initial understanding o f the hazard (the trigger) and the taking of regulatory action; the regulatory response describes the range o f actions which the administrator is permitted to take in the light of the trigger; and finally iteration, which presumes that as the regulatory response was necessarily tentative, some measures will be taken to reduce the levels of
• 1 2 4
uncertainty.
This article will follow a variation o f Appelgate’s characterisation and will consist of three elements. Appelgate’s ‘trigger’ will be divided into its two discrete elements, namely the degree o f risk required to trigger preventative
118 Article 27 ibid.
119 SG Wood, SQ W ood and RA W ood ‘W hither the precautionary principle? An American assessment from an administrative law perspective’ (2006) 54 Am erican Journal o f Comparative Law 581 at 581.
120 Ibid.
m J S Appelgate ‘The tam ing o f the precautionary principle’ (2002) 27 William and M ary Environm ental Law a n d Policy Review 13 at 13.
122 Rio Declaration on Environm ent and Development, Report o f the United Nations Conference on the Human Environment, Stockholm 5-16 June 1972, httn://www.unep.org/D PDL/Law/PD F/Rio D eclaration.pdf(accessed 16 August 2007).
123 Ibid.
124 Appelgate (n l2 1 ) at 17-18; J S Appelgate ‘The Prometheus principle; U sing the precautionary principle to harmonize the regulation o f genetically m odified organism s’ (2001) 9 Indiana Journal o f G lobal Legal Studies 207 at 249.
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action and the magnitude of harm required to trigger preventative action. The third element will be consideration o f the extent to which the benefits of the conduct or costs in taking preventative action are to be taken into account in taking regulatory action.
Cartagena’s formulation o f the precautionary principle is contained in identical terms in Articles 10(6) and article 11(8) which read as follows:
[l]ack o f scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent o f the potential adverse effects o f a living m odified organism on the conservation and sustainable use o f biological diversity in the Party o f import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import o f the living m odified organism ... in order to avoid or m inimize such potential adverse effects.
The CBD, Cartagena’s parent instrument, does not contain the precautionary principle as a substantive element, but only as a statement in the preamble. The precautionary principle in the CBD is therefore an interpretive guide rather than an instruction to take any particular action. The formulation in the CBD reads as follows:
[njoting also that where there is a threat o f significant reduction or loss o f biological diversity, lack o f full scientific certainty should not be used as a reason for postponing m easures to avoid or minimize such a threat, ...
6.1 Degree of risk
The statement o f the precautionary principle in the Rio Declaration and the CBD permits regulatory action when there is a lack of ‘full scientific certainty’. This formulation implies that, before invoking precautionary action, there must be some scientific basis for contending that the harm might occur. In other words, while the scientific community might not be presently certain whether the risk is real or not, there must be some objective scientific grounds for believing that a risk exists. The Cartagena formulation omits the ‘full’. This omission implies that regulatory action is permissible in terms o f the principle even where the scientific community has less confidence about the possibility of harm arising.
6.2 Magnitude of harm
The formulation o f the precautionary principle in the Rio Declaration requires a threat of ‘serious or irreversible damage’ before regulatory action can be taken. Slight damage to the environment is not sufficient, the damage must be ‘serious’. Similarly, Articles 7(c) and 8(1) in the CBD authorise a regulatory response in the face of ‘significant adverse effects on biological diversity.’ In the Cartagena Protocol a broader term, namely ‘adverse effects’, is used. In other words, while the CBD and the Rio Declaration only mandate action in cases o f significant environmental harm,
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precautionary action can be taken under Cartagena for any environmental harm, no matter how marginal the potential harm.
In addition to environmental harm, article 26 o f the Cartagena Protocol, also permits parties to take into account ‘socio-economic considerations arising from the impact o f LMOs on the conservation and sustainable use of biological diversity’ when deciding whether or not to take regulatory action. To some extent article 26 is redundant. Articles 10(6) and 11(8) only require an ‘adverse effect’ with no stipulation o f a minimum magnitude o f harm. Parties can therefore invoke the precautionary principle where any environmental harm occurs, regardless of magnitude.
6.3 The cost of regulatory action
In terms of the Rio Declaration, states are only required to apply the principle according to their domestic capabilities and where the measures to be taken are cost-effective. In other words, a nation can refuse to take precautionary action even when faced with clear environmental harm if it considers the economic savings from not taking action more important than the environmental cost. The precautionary principle in the CBD is not attached to substantive obligations, but the substantive obligations in the CBD are all qualified by the state’s socio-economic conditions and capabilities.125
Cartagena operates in reverse and imposes a mandatory AIA procedure on all nations as the necessary regulatory action; regardless of whether or not the nation considers LMO technology risky, and regardless o f the cost to the state of implementing the AIA procedure.1 6
7 The precautionary principle in international environmental law
No single formulation of the precautionary principle will be suitable for all areas o f environmental law. The principle will need to be tailored according to the subject matter it governs.127 In addition to modifying the timing, regulatory response and iteration elements o f the principle, as characterised by Appelgate,128 the degree o f risk, magnitude o f harm and cost o f taking action can also be adjusted so as to make the principle less or more easy to trigger.
125 See (n l).
126 It is perhaps also worth noting that Article,, 14(l)(a) o f the CBD encourages public participation in risk assessment procedures. No mention is made o f public participation in the Cartagena AIA procedure. Although states m ay1 presumably create a space for public participation in their domestic AIA procedure, the Protocol does not explicitly require this.
127 K atz (n33) at 956. i:
128 Appelgate (n 121) at 17-18.
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Table 1 examines each o f these three features o f the precautionary principles in a range o f international environmental instruments. Each one of the features in the precautionary principles listed in the table have been marked as less strict than Rio (-) (more easily triggered), equal to Rio (=) or more strict than Rio (+) (less easily triggered).129
Table 1: The strictness of various formulations of the precautionary principle in international environmental instruments relative to the Rio Declaration
CON VENTION Degree o f risk M agnitude o f Harm Inclusion o f costs / benefits
R io D eclaratio n on E n v iro n m e n t a n d D evelopm ent
In order to p rotect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats o f serious or irreversible damage, lack o f fu ll scientific certainty shall not be used as a reason fo r postponing cost-effective measures to prevent environm ental degradation
There m ust be a ‘threat’ even though there is a lack o f ‘full scientific certainty’
There m ust a threat o f ‘serious or irreversible dam age’
The precautionary approach is to be applied according
to States
capabilities and the m easures w hich they take are to be cost-effective.
129 For a similar classification and comparison o f embodiments o f the precautionary principle see Katz (n33) at 956-957. The classification and comparison presented here was compiled independently o f the analysis by Katz.
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CONVENTION Degree o f risk Magnitude o f H arm Inclusion o f costs / benefits
1982 W o rld C h a r te r fo r N a tu re, General Assembly Resolution 37/7 (28 O ctober 1982), Principle 11:
A ctivities which m ight have an impact on nature shall be controlled, and the best available technologies that m inimize significant risks to nature or other adverse effects shall be used; in particular;
(a) A ctivities which are likely to cause irreversible damage to nature shall be avoided;
(b) A ctivities w hich are likely to pose a significant risk to nature shall be p receded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, a n d w here potential adverse effects are not fu lly understood, the activities should not proceed;
(c) A ctivities w hich m ay disturb nature shall be p receded by assessment o f their consequences, and environm ental impact studies o f developm ent p rojects shall be conducted sufficiently in advance, and i f they are to be undertaken, such activities shall be p la n n ed a nd carried out so as to minimize potential adverse effects;...
M ust minim ize ‘significant risks’ to nature in particular, activities ‘which are likely to cause’ damage or which are ‘likely
to pose a
significant risk ’ or w hich ‘m ay’ disturb nature.
The principle goes to activities which have ‘an impact on nature’ or ‘other adverse effects’, particularly activities w hich cause ‘irreversible damage’,
‘significant risks’ to nature or which ‘disturb’ nature.
The ‘best available technologies’ shall be used and, in particular, where action which is likely to pose a significant risk is to be taken, the proponent must show that ‘potential benefits outweigh potential damage’ but, even then, the activity may not go ahead if the potential adverse effect is not fully understood. Equal to Rio
except for the ‘m ay’
requirem ent in (c), but this is not attached to true precautionary action in the sense that the activity is to be completely forgone.
Classification: =
Sub-principles (a) and (b) are equal to Rio. (c) is less strict but is not a true precautionary principle. The introductory words to principle 11 are less strict than Rio, however.
Classification:
-States are not required to do more than is available to them and harmful activities may proceed where the costs outweigh the benefits. The caveat that activities may not proceed where the risks are not understood does not detract from
this as a
costs/benefits analysis cannot be properly
undertaken where the risks are not properly
understood.
Classification: =
CONVENTION Degree o f risk Magnitude ofH arm Inclusion o f costs / benefits
1991 B am ak o C onvention on the Ban o f the Im p o rt into A frica and the co n tro l o f T ran s b o u n d a ry M ovem ent and M an ag em en t o f H a za rd o u s W astes w ithin A frica, Article 4(3)(f):
Each Party shall strive to adopt and implement the preventive, precautionary approach to pollution problem s which entails, inter-alia, preventing the release into the environm ent o f substances which m ay cause harm to humans or the environm ent without waiting fo r scientific p r o o f regarding such harm. The Parties shall co-operate with each other in taking the appropriate m easures to implement the precautionary principle to pollution prevention through the application o f clean production methods, rather than the pursuit o f a perm issible emissions approach based on assimilative capacity assum ptions ...
The principle prevents the release o f substances which ‘may cause harm ’ without waiting for scientific p ro o f regarding such harm.
‘H arm ’ to hum ans or the environment is sufficient.
N o costs/benefits analysis.
Classification: - Classification: - Classification:
-1992 C onv en tio n on Biological D iversity, Preamble:
N oting also that where there is a threat o f significant reduction or loss o f biological diversity, lack o f fu ll scientific certainty should not be used as a reason fo r postponing measures to avoid or m inim ize such a threat, ...
A ction is taken in the face o f a ‘threat’ even if there is ‘lack o f full scientific certainty.’
A ction is taken where the threat is o f ‘significant reduction or loss o f biological
diversity’.
Substantive provisions o f the
Convention are prefaced with ‘as far as possible and as appropriate’ Classification: = Classification: = or
+
Classification: =
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