by Amb. Alberto Sz�kely
I am grateful for this opportunity to provide what I would like it to be a
critical look at the emerging international legal regime governing modified
organisms in international trade. I will refer to this matter in the context of
the great concerns which were originally expressed from the social corner of the
world, and which went largely unheard in the recent international negotiations
on the matter; even when apparently the last to notice that were, precisely,
those whose concerns were disdained. Anybody who is acquainted with the
literature on the subject, knows that biosafety is a subject that sparks all
sorts of radical, passionate responses, which for some are inspired on delicate
ethical considerations and, for others, the mere result of ignorance and
ecological terrorism.
For me, the topic of biosafety in international law remains a case of deception
and deceit, where the powerful interests of a few have prevailed over the
interests of humankind at large, and what is worse, with the connivance and
complicity of most of the world� s governments.
During the golden era of codification and progressive development of
international environmental law, the international community was able to agree
on certain important principles, which are of direct relevance to the topic at
hand today, even when they seem to have been clearly forgotten.
The United Nations General Assembly adopted at least 7 major Resolutions
(626/VII, 1952; 1803/XVII, 1962; 2158/XXI, 1966; 2692/XXV, 1970; 3016/XXVII,
1972; 3129/XXVIII, 1973; 3171/XXVIII, 1973), supporting the principle of
�permanent sovereignty over natural resources�. The historical Resolution
1803/XVII of 1962 declared four crucial provisions: 1) that �The rights of
peoples and nations [not States] to permanent sovereignty over their natural
wealth and resources must be exercised in the interest of their national
development and of the well-being of the people of the State concerned�, 2) that
�The exploration, development and disposition of such resources, as well as the
import of the foreign capital required for these purposes, should be in
conformity with the rules and conditions which the peoples and nations freely
consider to be necessary or desirable with regard to the authorization,
restriction or prohibition of such activities�, 3) that �The free and beneficial
exercise of the sovereignty of peoples and nations over their natural resources
must be furthered by the mutual respect of States based on their sovereign
equality� and 4) that �Violation of the rights of peoples and nations to
sovereignty over their natural wealth and resources is contrary to the spirit
and principles of the Charter of the United Nations and hinders the development
of international co-operation and the maintenance of international peace�.
This principle also found its way into many equally historic international
treaties, incorporating it into hard law even as a specific human right.
Articles I paragraph 2 of both the 1966 International Covenants on Civil and
Political Rights and on Economic, Social and Cultural Rights, provided that �All
peoples may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and
international law�.
At Stockholm in 1972, the United Nations Conference on the Human Environment
adopted in its Declaration Principle 21, now a principle of international
customary law, which for the first time balanced the above principle with the
responsibility not to cause damage to the environment: �States have, in
accordance with the Charter of the United Nations and the principles of
international law, the sovereign right to exploit their own natural resources
pursuant to their own environmental policies, and the responsibility to ensure
that activities within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national
jurisdiction�.
More than a decade and a half followed with intense international activity to
enshrine that principle in numerous general, regional, sub regional and
bilateral treaties. In keeping with the Stockholm mandate, a sort of review
conference was programmed to take place in 1992, for which a preparatory World
Commission on Environment and Development was set up, to organize the event and
lead it to conclude a major environmental law convention (in the idea of the
United Nations Conference on the Law of the Sea), as well as other international
instruments urgently needed to deal with the most important and threatening
environmental concerns of the international community, such as deforestation,
climate change and biodiversity.
The road to the 1992 Rio Conference on Environment and Development was caught up
and detoured by two unexpected international developments, which arrested or
cancelled the promise that the so-called �Earth Summit� held for many people
around the planet. The crumbling of the Soviet bloc in Eastern Europe and its
impact on the dramatic change in the balance of political forces in the
international arena, particularly in the United Nations, and the emergence of
neo-liberalism and globalization as the commanding concept and force behind the
new international economic order, based on free markets and on the generation of
wealth at all costs, significantly cooled the interest of both developed and
developing countries alike, in engaging in further international environmental
obligations, which were now contemplated as undesirable hindrances to their
ability to compete in the world market. The rather poor Rio Declaration, the
largely weak Conventions on Climate Change and Biodiversity, as well as the
ridiculous �Declaration on Non-legally Binding Authoritative Statement of
Principles for a Global Consensus on the Management, Conservation and
Sustainable Development of All Types of Forests�, were the meager results of a
Summit which signaled the decay in the codification and progressive development
of international environmental law. Particularly, the Biodiversity Convention
failed to become the international legal instrument to ensure the conservation
of the world� s living natural wealth that would have been expected. In the end,
it became a successful vehicle for the developed countries to secure access to
the biodiversity of the developing countries, gained through the deceitful offer
of access to technology.
Since then, a major struggle has taken place between two variables, which, in
the letter of millions of pages in international documents, are supposed to be
reconciled, namely environment and development. In the sustainability arena,
however, many would allege that the environmental variable has consistently lost
ground.
Nature itself, however, has come back with a vengeance, as had already happened
in 1985 with the initially weak Convention for the Protection of the Ozone
Layer, and at least in the field of climate change, and as a response to the
first threatening effects felt from global warming, the international community
felt compelled to move ahead, albeit modestly, through the adoption of
additional protocols and schemes. The turn came to the Biodiversity Convention
that has now been supplemented by the Cartagena Protocol on Biosafety, adopted
less than two months ago. To start with, I must confess to you that I have been
truly amazed at the irresponsibly na�ve reaction expressed by the NGO community
to this recent development.
Even for Greenpeace, who thought that the Protocol was a major defeat for the
U.S., the results of the session in Montreal last January seemed strikingly
contrasting and something to welcome and be celebrated, particularly after the
breakdown of the negotiations in Cartagena in February 1999. Many observers felt
that the adopted Protocol, through supposedly hard law provisions that were
apparently unthinkable a few months before, had created a regime which has
advanced the practice of the precautionary principle and of the procedure of the
advance informed agreement, and subjecting transboundary movements to more or
less mandatory risk assessments, all of which had been staunchly resisted by the
United States and the other members of the so-called �Miami Group� (Canada,
Argentina, Chile, Uruguay and Australia).
Strangely, many failed to appreciate the grave implications of the fact that the
Protocol excluded pharmaceuticals for humans, that the way to deal with the
relationship with the Protocol and international trade agreements (WTO) was
handled in a mischievous and tricky fashion through the Preamble, and that the
transit and contained use and the movements of living modified organisms
intended for direct use as food or feed, or for processing, were subject to a
separate, weaker regime. However, some critics would say that even the wash
downed versions of the precautionary principle, of the advance informed
agreement procedure and of the risk assessment provisions in the Protocol are
meaningless, particularly if one takes into account the almost total lack of
capacity, financial and human resources and know how in the vast majority of
developing countries, which lack even the most elementary national laws and
regulations to take advantage of them.
A careful legal expert reading of the negotiated texts that made the adoption of
the Protocol possible, indicate that the precautionary principle was shamefully
twisted around and reversed upside down, that the �advance informed agreement�
concept simply does not correspond to the �previous informed consent� of the
Convention, that not only the matter of liability was postponed, but that the
question of State responsibility was totally overlooked, and that �risk
assessment� does not match with the concept of �environmental impact assessment�
that should have prevailed and resorted to. All these matters were easily
swallowed by many in the NGO community for a lack of competent international
legal expert advise.
Thus, I am sorry to say that the quality in the meaning and drafting of the
Protocol does not herald the beginning of a reversal of the trend, about which I
have been writing more or less extensively (�Compliance with Environmental
Treaties: The Empirical Evidence�, United Nations International Law Commission,
1996; �A Commentary on the Softening of International Environmental Law�, 1997
ASIL Proceedings), where I pointed with alarm at what I chose to call a
�worrisome expertise� among contemporary diplomats, �in drafting a new
generation of soft law provisions, aimed at preventing any semblance of
enforceable obligations, that one would certainly not want to see become
widespread in other international legislative efforts�. Not exactly a popular
subject either in diplomatic or academic circles, by the way.
My interest in the international regime governing living modified organisms
(LMOs) is, however, broader than the very limited scope of the Cartagena
Protocol, which was basically restricted to transboundary movements. After the
Protocol, we are left with the very scant provisions in Articles 8 (g), 17 and
19/3 and 4 of the Biodiversity Convention.
My concern has to do with some more fundamental ethical considerations regarding
the trend in the contemporary development of international law in this field, or
rather the lack of such development, resulting from the overruling of any degree
of basic human consideration for the social victims to favor the commercial
interests of the largest and most powerful corporations in the world.
A biosafety regime is badly needed to control, apart from mere transboundary
shipments, the very science, business, market and economics of modifying living
organisms itself, which are designed by multi-million dollar corporations to
take over world agricultural production, replacing biological agriculture and
traditional varieties through a myriad of highly questionable schemes, such as
the use of genetic engineering to program the extermination of seeds in the
second generation (which force farm workers to buy new seeds each year), the
creation of dependency through the initial offering of cheap seeds and
agrochemicals, until the farm workers loose their traditional systems of seed
supply, soil fertilization and pest control, so that immediately afterwards,
once the dependency is secured, prices are elevated that compensate for the
previous subsidies involved in the low prices offered to hook them.
Then, the corporations involved make the seeds more and more dependent on
agrochemicals, which they sell, with adverse consequences for the environment.
Despite the Convention, the biotechnology industry takes biodiversity from
anywhere they please, to patent it and profit from it, denying any benefits to
the local indigenous communities, which developed the varieties in the first
place. Hundreds of cases of biopiracy proliferate on a daily bases from the
North in the South, despite the Convention, involving incredible injustices. For
instance, the original producers of basmati rice, which are small farm workers
in India, are loosing their market in favor of the United States, just because
US companies have had the money and the daring to patent basmati rice. On the
basis of the WTO Trade Related Aspects of Intellectual Property Rights (�TRIPs�)
Agreement, which hinders �third� parties from producing, using, offering for
sale, selling or importing patented products, those companies can bloc the
export of any basmati rice from India or Pakistan.
These are the matters, which need international regulation on the basis of
principles of the international legal order. The dilemma is: should we go back
to the track of an international law of which we can be proud, as a vehicle to
protect the common interests, rights and heritage of humankind, as we were doing
in the Sixties and Seventies, or should we be accomplices of a new international
legal system that makes a mockery of the principle of �permanent sovereignty
over natural resources� and, consequently, of international law, as we inherited
it from the previous generation of international jurists and diplomats.
