When elephants fight over GMOs

Tewolde Egziabher

As the world's attention was focusing firmly on the Cancun World Trade Organisation summit in September, an important international agreement quietly made its entry on the world stage, one which holds immense implications for developing countries. The Cartagena Protocol on Biosafety1, which aims to regulate trade in genetically modified organisms (GMOs), came into force on 11 September. The Protocol arrived after five long years of negotiations over intractable North-South issues that are set to continue to bedevil implementation.

The tension around trade issues is highlighted most forcefully by the US' move to take the European Union to the World Trade Organisation (WTO) dispute settlement mechanism over the EU's insistence that US exporters clearly label all GM food sold to Europe. One of the US' main complaints is that Europe's stance forces Africa to reject GM foods and crops. But it is a distortion to blame Europe for Africa's caution in handling GM crops, including those coming as food aid. It must be noted that Africa's awareness of its poverty, low level of technical capacity and environmental complexity moved the African Group on Biosafety to come up with the first proposed draft Biosafety Protocol in 1996, long before any European country did so. This was because Africa is aware of its vulnerability and is thus afraid of GMO adventurism. We find it unfair and repulsive that the US is attempting to use Europe's guilty feelings about Africa to blackmail Eur ope into accepting GM crops. The elephants that are America and Europe must stop trampling on the grass that is Africa and fight elsewhere. Africa must play its part too. The WTO Ministerial Meeting in Cancun, Mexico, which would have had direct or indirect implications on the WTO case, collapsed on 14 September 2003, largely because the South, and especially Africa, refused to accommodate the elephants.

While there is much to welcome in the adoption of the Biosafety Protocol, I worry that the US-EU case offers a foretaste of future problems in implementing the Biosafety Protocol. 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 crops 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 risky unless proved to be safe. From these perceived differences flow implications for implementation.

The 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 risks 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 conducts its assessment and then informs the exporter 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 at once through a computerised database system called the clearing-house. Failure to communicate a decision to the country of export or to the clearing-house cannot be taken as consent to import. This provision is to protect countries that might not have the capacity to undertake a risk assessment. In this case, the Precautionary Principle would be called on to prevent a country from exporting the GMO.
There are some exceptions to the procedure:

The realisation of the Protocol is an extremely important advance, because it offers governments their first legal tool to refuse to grow or import GM foods and products. But when it comes to implementing and regulating the Protocol, developing nations are faced with all kinds of handicaps and obstacles. For instance, the Protocol depends on full information for its effective implementation – it requires a labelling and traceability regime to be put in place. No such thing exists at present. The US, the biggest producer of GMOs in the world, refuses to label GM products, so for the time being, countries do not necessarily know when an unlabelled US GMO is imported into their territories and safety is being compromised.

The poverty of developing countries, especially the least developed (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 hazard arise, these countries will find it hard to muster the financial and technical capacity needed to combat it. Given this situation, socio-economic considerations should be important grounds for refusing to import a GMO. But the relevant provision of the Protocol is very weak. Nevertheless, 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 is complicated by its complex tropical and subtropical environments. The limited risk assessment that has been undertaken for GMOs in the North is based on very different climatological and ecological conditions. Micro-organisms developed in laboratories for industrial purposes function optimally at high temperatures. If a micro-organism 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 well recognised that biodiversity increases towards the equator and decreases towards the poles. One risk GMOs pose is passing their genes to wild species. The greater 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 specifically address the centres of origin or genetic diversity. It should be 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, and the North depends on the South for its future breeding programmes and its future food security.
A more intractable issue is trade and the environment. Trade rules favour the North. 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 allows 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 all the 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 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, 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. We must make sure that this commitment is not hijacked.
Genetic engineering appeals to the South, because it wants to develop fast. The technology promises to put beneficial traits found in living organisms to human use, and not using this capacity threatens to leave them even more behind in development. The South has no choice but to stay safe. It has to put in place biosafety systems firmly based on the Precautionary Principle and develop the capacity – no matter how expensive – to protect itself.

This editorial is adapted from “When Northern elephants fight over GMOs”, published on 29 September by Panos Features.