Lawscape
The issue of GMO and Biosafety
Shafiqur Rahman Khan
There is a great deal of controversy revolving the methods of biotechnology and genetically modified organisms. People might have been modifying plants and animals through breeding and domestication for thousands of years without raising much of a storm, but since the introduction of modern biotechnological techniques in the 1970s this has changed. Biotechnology and so called genetic engineering are manmade methods that enable the development of new kinds of plants, animals and micro-organisms. The purpose of biotechnology might be similar to traditional breeding, which is developing plants that better suit our wants and needs. The methods used and the plants they result in are however very different. The new organisms are “constructed” through the transplantation of genes from one species to another unrelated species and the method has been compared to the scenario where the entire natural world has become like a store where scientists can pick out the characteristics they prefer and tailor make species after preference. For example, genes from fish that are known to survive in cold waters may be transferred to tomatoes in order to make these frost resistant, and genes from bacterium can been transferred to potatoes and corn to make these crops resistant to certain insects.
The technologies used and the products that have been created have caused quite a debate and the controversy around GMOs is not decreasing. The advocators claim that biotechnology has the potential to offer mankind great benefits which, for instance, includes healthier and longer lives with plenty of food for the people. GMOs are seen to be very useful in food-production and the promoters claim that the use of them will greatly enhance yields at the same time as the production costs are lowered. GMOs are said to do this by, for example, enhancing the tolerance of weed-killing herbicides and enhancing insect-resistance in food crops, which in turn allows a greater production per acre and overall reduces the need for pesticides and chemical fertilizers. “Better” crops equals more crops to a lower cost. In 2003, the US president George W. Bush went so far as to claim that the application of biotechnology could help reducing the hunger in Africa:
We can also greatly reduce the long-term problem of hunger in Africa by applying the latest developments of science. (…) By widening the use of new high-yield bio-crops and unleashing the power of markets, we can dramatically increase agricultural productivity and feed more people across the continen.
The future profits that will be derived from GMO production are also said to provide medical and nutritional benefits to consumers in the shape of foods with less fat and a higher nutritional value instead. Finally, spokesmen for biotechnology say that by introducing biotech products not only leads to better and bigger yields, but the use of less insecticide and herbicide will result in a “cleaner” agriculture (First Submission of the United States 2004: 12). In addition, the use of biotech crops reduces the amount of fertilizers used, requires less water and allows farmers to employ conservation techniques that reduce soil disturbance and erosion (First Submission of the United States 2004: 13).
Quite simply, the advocators see a win-win situation. However, biotechnology is said to be a threat to the environment by others in the international community and it is believed to pose great risks to human-, animal- and plant life. The critique of genetically modified organisms has many dimensions and to some extent addresses issues not illuminated by the promoters. One of the issues is based on ethical and religious grounds and critical voices have been raised on the matter of man playing God and rebuilding nature after his own liking. Others have put forward health-related arguments concerning the risk that genetic modifications might produce foods that trigger people's allergies and that the antibiotic resistant genes inserted into plants could even spread to people.
Economic factors are raised, as others argue that widespread biotechnology in agriculture will only benefit a few large multinational companies and allow them to establish a global cartel to the disadvantage of the consumers and farmers of the world and that this in turn might disrupt small-scale farming systems. Critics in developing countries argue that the use of GM seeds will disrupt traditional farming practises and make the farmers dependent on seeds provided by biotechnical companies, with the result of farmers' costs being raised. But the most important of the issues raised might be the environmental concerns that revolve around the risks of genetically modified plants invading native ecosystems and transmitting their genes to other crops or wild plants through cross-pollination and that the GMOs may successfully out-compete other plants as their superior traits allow them to evolve into invasive species. In addition GMOs could affect the population of insects and birds feeding upon genetically modified plants in ways we still do not know about.
Key provisions of the WTO agreements on GMO related trade
The WTO agreement is an umbrella agreement and can be said to be the heart of the multilateral world trading regime. Since the adoption of the original General Agreement on Tariffs and Trade (GATT) in 1947, the core obligations for the members of the world trading system have not really changed. Most of the WTO agreements of today are the result of the 198694 Uruguay Round negotiations, signed at the Marrakesh ministerial meeting in April 1994.
The WTO agreements provide certain possibilities to ascertain a sustainable use of the world's resources. Consequently, exceptions from GATT rules are said to be allowed for measures necessary to protect human-, animal- and plant life or health and countries may adopt restrictive trade measures on national level. However, the right to take these measures is only approved if they are not applied in a manner which would result in arbitrary or unjustifiable discrimination between countries, or a disguised restriction on international trade (www.wto.org). The WTO strives for a harmonization of national legislation governing trade and refers to the role of existing international standards, guidelines and recommendations to serve as a base when establishing national measures.
The WTO agreement which is one of the most relevant when addressing the potential risks concerning trade with GMOs is the agreement on the Application of Sanitary and Phytosanitary Measures (SPS). One fundamental requirement applied through this agreement is that imported agricultural products are safe and do not pose risks to human-, animal- and plant health. The agreement further states that to ensure food safety and to avoid the introduction of diseases through trade, countries may impose regulations to protect human and animal health (sanitary measures) and plant health (phytosanitary measures) (www.wto.org). The agreement is said to allow countries to set their own food safety-, animal- and plant health standards. However, the SPS agreement requires that such regulations are based on science.
Again, science is an unsure business and to a point this seems recognized within the SPS agreement since the Agreement clearly allows for the implementation of precautionary measures, however not without clear boundaries. The right to adopt these measures is based on the fulfilment of four conditions: 1) that the relevant scientific proof is insufficient, 2) that the measure is based on available pertinent information, 3) that the measures have a provisional character and 4) that the member state seeks to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time (www.wto.org, Matthee and Vermersch 2000: 64). So in spite of the fact that the WTO recommends basing national measures on existing international ditto in order to optimize harmonization, countries still have the right to determine their own level of protection if fulfilling the conditions stated in the SPS agreement.
Finally, while we await the world recognising scientific uncertainties, strengthening the right of individual states to apply national safeguard measures could place the Precautionary Principle on equal footing with trade-deregulating principles. Remembering that although striving for harmonization of national legislation governing trade, the WTO acknowledged countries to some extent having the liberty to determine their own level of protection when addressing the potential risks concerning trade with GMOs. This liberty can be seen as to correspond to imported agricultural products being unsafe and posing risks to human-, animal- and plant health.
The Writer is teaching law at Jagannath University, Dhaka.
