Modified Organisms and International Law: An Ethical Perspective
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.