Biotechnology and Environment: The Issue of loss in Biodiversity - Literature review Example

Biodiversity This paper focuses on the loss of biodiversity as a result of the multiple threats that confront it, most particularly the march towardsbiotechnology. Biotechnology giants like Monsanto have argued that biotechnology improves livelihoods for farmers. As explained in the BT corn example, for instance, farmers will no longer have to purchase pesticides and thus there will be a decrease in their production costs. They have also argued that biotechnology also means cheap food accessible to a great number of people and more nutritious as well. On a more lofty plane of analysis, proponents of biotechnology, laud it as a triumph of human innovation, an example of humankind’s superior knowledge over other organisms in the eco-system. Some even argue that “sustainable agriculture is possible only with biotechnology and imaginative chemistry.” (Schneiderman and Carpenter, 1990). Environmental advocates, on the other hand, warn of the hazards of biotechnology on biodiversity and other life-forms. For example, environmentalists assert that the corn that is keeping pests away is also killing the Monarch butterfly. According to Wilson (1992), “the race is on to develop methods, to draw more income from the wildlands without killing them, and so to give the invisible hand of the free market a green thumb.” the central debate that underpins the biotechnology discourse: balancing the WTO principles on liberalization and the environmental concerns of biotechnology. To quote Herdegen (2010): Biotechnology on the international level, is covered by the said Multilateral Environmental Agreements (MEAs), which build their judicial content upon a precautionary approach. On the other hand, WTO trade law is deemed to focus on the abolition of trade barriers and the combating of protectionism and unjustified discrimination. Therefore there is a potential for conflict between trade law and MEAs, especially in the field of biotechnology. It is this conflict that has made the crafting of an international legal framework for biotechnology so fraught with tensions, and the road to Cartagena so bumpy. The proposal for the international regulation of biotechnology was spawned by a 1986 incident, wherein the United States tested a genetically-modified rabies vaccine in Argentina, without having informed, much less obtained consent, from the Argentine government. This raised fears that with without an international legal framework for biotechnology, developed countries would use developing countries as laboratories, thus putting citizens of the latter at great risk. (Gupta, 2000: 24). There was a pre-existing Convention on Biological Diversity that could be used to serve as a framework for the creation of a convention particularly and specifically addressing biotechnology concerns and issues. Article 8 of the CBD called on Parties to “establish or maintain means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biodiversity, taking also into account the risks to human health.” On the basis of Article 8, the parties to the Convention decided to form a working group to hammer out a protocol acceptable by all. Delegates from 170 nations locked heads in Cartagena to work through the contentious issues being raised and the various points of divergence between nations and stakeholders. In a press release by the United Nations Environment Program (UNEP) in 1999, Klaus Toepfer, executive director of the program, was quoted as saying: “we need a widely accepted protocol that protects the environment, strengthens the capacity of developing countries to ensure biosafety, complements existing national regulations, and promotes public confidence in biotechnology and all the benefits it can offer.” This, however, proved to be easier said than done. Countries from Europe and from the developing world found themselves forming an alliance to push for the precautionary principle, whilst top agricultural exporters such as the United States, Canada and Argentina raised objections that the principle, especially if codified in a Convention, was not in consonance with trade rules under the WTO. In the end, however, an agreement had been brokered and was named the Cartagena Protocol, a supplement to the Convention on Biological Diversity. According to Article 4 of the Protocol, it shall “apply to the transboundary movement, transit, handling and use of all living modified organisms that may have adverse effects on the conservation and sustainable use of biodiversity..” To allay fears that the Protocol would result in unwarranted trade restrictions and be an used an excuse for protectionism, the preamble states that parties “recognise that trade and environment agreements should be mutually supportive”, “emphasise that the Protocol is not interpreted as implying a change in the rights and obligations under any existing agreements”, but also that the parties “understand that the above recital is not intended to subordinate this protocol to other international agreements.” The two different perspectives: the cautionary principle of the EU and the science-based risk assessment of the United States In a nutshell, the precautionary principle states, according to Article 10.6 of the Protocol that: Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of 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 of the living modified organism in question as referred to in paragraph 3 above, in order to avoid or minimize such potential adverse effects. On the other hand, science-based risk assessment relies only on evidence already existing and ascertainable, in order to make a conclusion on the safety of a particular biotechnology product. Available scientific evidence and certainty of risk are the barometers and not perception of risk. Environmentalists all over the world lauded the inclusion of the Precautionary Principle in the Cartagena Protocol in 2000: its inclusion, after all, was something that organisations such as Greenpeace had intensely lobbied for, along with governments from the European Union. While inroads were made in legislation, however, the decisions taken by the WTO with respect to disputes on the restrictions of genetically modified foods and meat with artificial hormones reveals a score card that favours science-based risk assessment over the precautionary principle – a trend that triggers alarm bells for experts that argue that the absence of evidence indicating the risks of biotechnology does not necessarily mean that these biotech commodities are safe, but that there has been no adequate testing for these hazards. (Doyle, 1995.) A good example of these conflicting perspectives is the Beef Hormone controversy. Amidst growing consumer scare in Europe on the use of growth hormones in meat production and most importantly, the mad cow disease crisis, governments in the European Union were under pressure from their citizens to ban the import of meat that contained artificial hormones. Meat producers and cattle ranchers in the United States and Canada were angered at the ban, calling it a violation of WTO rules. They filed suit against the EU in the WTO Dispute Settlement Body, which in 1997 ruled against the EU. The EU filed an appeal. Central to the dispute was a provision under the Agreement on the Application of Sanitary and Phyto-Sanitary Measures that allowed Parties to restrict trade of certain commodities on the basis of health and safety reasons, for as long as this was supported by scientific analysis and evidence. The US and Canada asserted that the hormones in beef had been tested and deemed safe in Northern America for 50 years, and all of the hormones used were legal and licensed for use in the territories of the states bringing suit. In contrast the EU maintained – premising its argument on the precautionary principle – that there was no way to determine with certainty that the use of hormones in meat production would have no adverse effects. At the heart of its contention is that when science is inconclusive, it is better safe than sorry and governments have the right to take precautions it deems necessary to protect the welfare of its citizens. The WTO found for the United States. For many experts, the decision was remarkable, clear-cut, precedent-setting and a guide post of what to expect of future decisions of the World Trade Organization. For Josling, Roberts and Hashan the WTO Panel had managed to strke a balance between protecting free trade as embodied in the WTO framework from protectionism , and the right of countries to look out for the health and welfare of its citizens. In their words, “the EU also found some comfort in the result: the ruling affirmed its right to establish a level of consumer protection that is higher than the level set by international health standards, provided it is backed by an objective risk assessment.” (1999). It made clear that the WTO was not going to side the precautionary principle if such had the end result of erecting barriers where WTO trade rules say there should be none. Scholars like Adler would have most likely found the decision to be a step in the right decision, as his problem with the precautionary principle was that it was not responsive to the threats of biodiversity conservation, because in his words “it could actually increase risks to biodiversity by making it more difficult for farmers to feed a growing global population without clearing more species habitat”. (Adler: 2002). But while the decision has been lauded in many scientific and agri-business circles, it has also undergone heavy criticism not only from environmentalists, Europeans and ardent supporters of the precautionary principle, but also legal thinkers like Zurek (2010) who argued that the WTO’s market-centric perspective and free trade bias have made it disregard other cultural values and norms, from a legal perspective, other treaties that are equally binding, such as the Convention on Biological Diversity. Perhaps a more serious implication of the decision is from Henckel (2006) who argued that “new evidence showing a greater degree of uncertainty regarding risk than that which was previously understood could never trigger a provisional measure.” This means that if a product had been given prior approval as a tradeable commodity, subsequent research findings demonstrating its health and environmental risks will not have any effect whatsoever. Policy Recommendation: Maintain Science-Based Risk Assessment but impose higher penalties for those who threaten biodiversity through biotechnology One of the most recent, if not the most recent, significant developments in the international policy regime governing biotechnology and the environment is the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (hereinafter NKLSP), adopted on October 16, 2010. The legal mandate for the Supplementary Protocol is reposed in Article 27 of the Cartagena Protocol, which reads: The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first meeting, adopt a process with respect to the appropriate elaboration of international rules and procedures in the field of liability and redress for damage resulting from transboundary movements of living modified organisms, analysing and taking due account of the ongoing processes in international law on these matters, and shall endeavour to complete this process within four years. While the NKLSP is a significant step forward in the direction of seeking accountability for damages wrought by biotechnology and its transnational movement, it is immediately discernible that the Supplementary Protocol is still saddled by a number of limitations. A lot of these limitations have to do with the inherent nature of biotechnology that make it difficult to ascertain with any veracity the extent of damage that it has caused, if indeed the causation can be proven in the first place. According to Kmeri-Mbote, “In international law, liability is normally associated with the obligation to provide for compensation for damage caused to persons, property and the environment. Rules of state liability at international law for the fundamental basis for liability and redress in international law. (2004)”. Also, the Protocol must clarify who is covered by it. It must be understood that biotechnology often involves private operators, exporters and businesses like Monsanto are the ones that engage in the transport of biotechnology, not countries like the United States, Argentina and Canada. According to Duall, (2004), “A regime that does not attribute private conduct to the State would significantly reduce the effectiveness of a liability regime and ignores the existence of obligations on States to regulate and control the conduct of private persons within its jurisdiction or control.” Whilst the NKLSP does mandate states to regulate the conduct of private entities under their jurisdiction, there are no consequences for the states for if these provisions are ignored. Conclusion This paper has far from covered the depth and breadth of the nexus between the environment and trade where biotechnology is concerned. What it does demonstrate is that the relationship is a complex one – fraught with tensions and imbalances. There are no easy answers, and there are no fast solutions. Ths is made even more complicated by the fact that the environment is undergoing rapid deterioration. 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(2007.) “The European Communities’ Biotech Dispute: How the WTO fails to consider Cultural Factors in the Genetically Modified Food Debate.” Texas International Law Journal. Vol. 42. P. 345. Read More