New Zealand Journal of Environmental Law
Last Updated: 13 February 2023
Sustainable Development of Genetically Modified Organisms
While sustainable development is increasingly becoming a necessary means by which to protect the planetary ecosystem, the objectives of this concept are not necessarily realised in international environmental instruments. This is evident, for instance, through the Cartagena Protocol on Biosafety, which is ultimately a product of compromised decision- making that fails to prioritise the environment. Since developments in genetic modification threaten biological systems, any attempt to preserve the natural environment must recognise and incorporate sustainable development. Furthermore, the components of sustainable development, as elaborated on by the Earth Charter, are directly applicable to the use and development of genetically modified organisms. Nevertheless, the extent to which the Cartagena Protocol on Biosafety reflects sustainable development, as guided by the Earth Charter, is questionable. While the Cartagena Protocol on Biosafety in some instances promotes the components of sustainable development, it fails to exemplify a “strong”, ecocentric model of sustainable development, which is necessary for the preservation of the planetary ecosystem.
In spite of international agreements used to regulate the potential adverse impacts of genetically modified organisms (“GMOs”) on biodiversity, the threat
*Jennifer Stanton is an Assistant Crown Attorney at the downtown Toronto Crown Attorney’s Office in Ontario, Canada. Ms Stanton is also a candidate for the LLM programme at the University of Auckland in New Zealand. She was called to the Bar of Ontario in July 2005 and completed her Articles as a clerk at the Court of Appeal for Ontario. Ms Stanton graduated with a LLB from the University of Windsor Ontario and a BA (High Distinction) from the University of Toronto in Canada.
continues to exist today. In fact, although proponents of GMOs promise increased agricultural yields and better access to pharmaceuticals, suspicion still surrounds the biotechnology industry. Largely, this may result from the fact that genetic modification is an ethical issue. While some international agreements attempt to address pressing environmental concerns, many lack a cohesive, agreed upon set of core values that serve to guide the implementation of their provisions. This is true in the case of the Cartagena Protocol on Biosafety (“the Protocol”).1 While the objective of the Protocol is to prevent the potential adverse effects of living modified organisms (“LMOs”)2 on biodiversity, its provisions encompass the competing values of its negotiating Parties. In particular, the Protocol repeatedly compromises the protection of the environment in order to sustain the national economic and social policies of member States. Clearly, the negotiating Parties did not posses a common goal, as demonstrated by the highly contentious nature of those meetings leading up to the coming into force of the Protocol. The fact that it is a “compromised” agreement is to the detriment of the environment. Considering the indivisibility of the planetary ecosystem, any international agreement that seeks to remedy environmental degradation must
be ecologically focused and sustainable.
Although the necessity for the implementation of “sustainable develop ment” is increasingly being recognised, the concept remains ambiguous and indefinable. This results from its lack of a common, agreed upon set of values and goals. One objective of this paper is to demonstrate that the difficulty in identifying the components of sustainable development may be resolved through
the application of the Earth Charter (“the Charter”).3 The Charter is regarded as “an ethical framework for sustainable development” and a guide to prioritising an ecocentric form of sustainability.4 Considering the increasing international recognition and implementation of the Charter’s principles, it is also a credible means by which to guide sustainable development.
A second objective of this paper is to demonstrate that the principles of the Charter are directly applicable to the development and use of GMOs. Genetic modification continues to threaten the essence of biodiversity
— that is, GMOs have the potential to both fundamentally and indefinitely alter the natural genetic makeup of any number of organisms. In order to preserve biodiversity, any development or use of GMOs must also preserve the integrity of the planetary ecosystem. The Charter considers those principles that act as a vehicle to the goal of “ecological integrity”. These include the precautionary principle, the study of ecological sustainability, and the recognition of the rights of indigenous groups and minorities. Those principles identified in the Charter may also be applicable in deter mining the extent to which current international responses to the threat of GMOs ensure their sustainable development. Thus, a third objective of this paper is to determine whether or not and, if so, to what degree, the Protocol requires the sustainable development, as guided by the Charter, of LMOs. In doing so, this paper attempts to analyse the functioning of the Protocol as a whole; the language of its provisions and their practical effect; the underlying principles it seeks to uphold; and the impact of the negotiating Parties on the outcome of the Protocol. A final objective is to demonstrate the practicality of
applying the Charter as an ethical guide.
Part 1 of this paper will discuss the concept of sustainable development and demonstrate its acceptance as a principle of international law. This part will further show that the Charter is a credible means by which the concept of sustainable development can further be defined. Part 2 will describe the existing threat of genetic modification on biodiversity and analyse the manner in which the Charter may guide the sustainable development and use of LMOs. Finally, Part 3 will examine the Protocol and determine the extent to which it meets the objective of preventing potential adverse effects of LMOs on biodiversity by applying the principles of the Charter. While the Protocol in some instances promotes the components of sustainable development, as guided by the Charter, it fails to exemplify a “strong”, ecocentric model of sustainable development, which is necessary for the preservation of the planetary ecosystem.
297 at 303.
2. SUSTAINABLE DEVELOPMENT AND THE EARTH CHARTER
2.1 The Concept of Sustainable Development
The concept of “sustainable development” has become an increasing priority in the international arena. Sustainable development lacks a single, agreed upon legal definition; however, it is widely understood to be “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.5 This definition, popularised by the report of the World Commission on Environment and Development (the “Brundtland Report”), consists of two parts: (1) “intragenerational justice”, which attempts to redress economic and developmental inequalities between developed and developing worlds by prioritising the world’s poor; and (2) “intergeneration al justice”, which seeks to allocate a fair share of costs and benefits across succeeding generations.6 A further commonly shared aspect of sustainable development is that it “requires the integration of environmental, social and economic objectives”.7 Although critics perceive the Brundtland definition as unhelpful and vague, it nevertheless marks a shift towards development that is ecologically sound.8 Furthermore, despite the lack of agreement concerning its components, sustainable development has gained considerable international recognition as a legal concept.
2.2 The Legal Significance of Sustainable Development
The underlying idea of sustainable development (that being, “sustainability”) has long been featured in international relations. For instance, Sands explains that the concept of “sustainability” is referenced as early as 1893 in the Pacific Fur Seals Arbitration.9 The general principle of sustainable development first
=1163, Principles 3–9 (last viewed on 21 May 2006). See also, generally, the Convention on Climate Change and the Convention on Biodiversity.
appeared in a treaty in the Preamble to the 1992 EEA Agreement.10 Furthermore, the term has been present in various international documents since the 1980s, including the World Conservation Strategy.11 The widespread, international endorsement of the term was subsequently secured by its adoption into and promotion by the 1992 Rio Declaration on Environment and Development and its derivative programme of action, Agenda 21.12
The concept and general principle of sustainable development has since been recognised, directly and indirectly, in numerous international instruments, treaties, and conventions, whereby it “[...] is now well established as an international legal concept”.13 For instance, the Rio Declaration and Agenda
21 initiated the UNCED process, national sustainable development activities, and the application of sustainable development in educational institutions and the business sector.14 A myriad of governments have also adopted sustainable development as policies and strategies.15 Furthermore, sustainable development has been recognised by international organisations “[...] including FAO, IMO, the World Bank, the WTO, and UNDP, as well as other treaty bodies”.16 Finally, the concept has been referenced in the decisions of international courts and other decisionmaking bodies.
The Case Concerning the Gabcikovo-Nagymaros Dam exemplifies that “[t]here can be little doubt that the concept of ‘sustainable development’ has entered the corpus of international customary law [...]”.17 Here, the International Court of Justice (“the ICJ”) invokes the concept in its opinion that “[t]his need to reconcile economic development with protection of the environment is aptly
also Duncan French, International Law and Policy of Sustainable Development (Manchester University Press, Manchester, 2005) 42–43, referencing the following: North American Free Trade Agreement, (1993) 32 ILM 289 and 605, preamble; 1993 North American Agreement
on Environmental Cooperation, (1993) 32 ILM 1480, article 1; 1994 Desertification
Convention, (1994) 33 ILM 1328, article 9.1; 1994 Agreement Establishing the World
Trade Organization, (1994) 33 ILM 15, preamble; 1994 Instrument establishing the Global
Environment Facility, (1994) 33 ILM 1273, article 1.4; 1994 Energy Charter Treaty, (1995)
34 ILM 360, article 19(1); 1998 Aarhus Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters, (1999) 38 ILM 517, preamble; 2000 Cartagena Protocol on Biosafety, (2000) 39 ILM 1027, preamble; 2000 Constitutive Act of the African Union, article 3(j); 2001 Stockholm Convention on Persistent Organic Pollutants, (2001) 40 ILM 532, article 7.3; 2003 WHO Framework Convention on Tobacco Control, (2003) 42 ILM 518, article 26; the Declaration of Barbados and the Programme of Action of the Global Conference on the Sustainable Development of Small Island Developing States (UN Doc A?CONF.167/9, October 1994); 1996 Declaration of Santa Cruz de la Sierre of the Summit of the Americas on Sustainable Development, para 1; and “Message from the Lake Biwa and Yodo River Basin”, para 1 (Ministerial Declaration of the Third World Water Forum, Kyoto, 2003).
expressed in the concept of sustainable development [...]”.18 VicePresident Weeramantry also determined that sustainable development is “one of the most ancient ideas in the human heritage”.19 Sands explains that by invoking the concept of sustainable development, the ICJ indicates that the term has a legal function, a procedural and temporal aspect, and a substantive aspect.20
A further case that references sustainable development is the Shrimp/Turtle dispute. Here, the “WTO Appellate Body noted that the Preamble to the WTO Agreement explicitly acknowledges ‘the objective of sustainable development’, and characterises it as a concept which ‘has been generally accepted as integrating economic and social development and environmental protection’ ”.21 Although the various documents on sustainable development are not legally binding, sustainable development certainly may be categorised as “soft law” considering its widespread acceptance and longterm recognition.22
The ambiguity of the term and lack of consensus respecting its components have made the implementation of sustainable development a challenge. Birnie and Boyle explain “... [that] there remain fundamental uncertainties about the nature of sustainable development, which the Rio Declaration does not resolve, but which have a direct bearing on the question whether sustainable development can in any sense be considered a legal principle”.23 In order for States to support and be held accountable for achieving sustainable development at national and international levels, “[...] the criteria for measuring this standard must be made clear, as must the evidential burden for assessing the performance of individual states”.24
A related limitation is what Bosselmann refers to as the “missing link”
of sustainable development.25 He explains that although the Brundtland definition of sustainable development is valuable in that it acknowledges the need for society to reorganise itself (eg to reduce disparities between the rich and poor), it fails to address what exactly is owed to future generations, particularly with regard to the environment.26 In other words, what are the core concepts of sustainable development? Bosselmann suggests that considering the impossibility of foreseeing the needs of future generations “the reasonable choice ... is for a duty to pass on the integrity of the planetary ecosystem as we have inherited it [...]”.27 On this basis, the “missing link” in the sustainable development debate may be resolved by the “[...] recognition of ecological integrity” (ie the preservation of the integrity of the planetary ecosystem, which represents an “ecocentric” approach to sustainable development).28
Ecological integrity is also the reasonable choice considering the alternative. As it stands, “sustainable development is perceived as a balancing act between economic, social and environmental goals, with tradeoffs as a necessary outcome” (ie a “weak model” of sustainable development).29 This model, according to Bosselmann, will “make little difference to existing unsustainable patterns of production and consumption”30 because it deems it acceptable to compromise the environment for economic reasons. The result of this model may well be the destruction of the environment. Rather, the planetary ecosystem must become the overarching concern in which all other socioeconomic matters are resolved (ie a “strong model” of sustainable development). Ultimately, Bosselmann suggests that a “strong model” of sustainable development can be achieved through the adoption of a set of core ethical concepts (based on “ecocentrism”) within the justice discourse (ie distributing environments between people and generations).31
One relevant international document that adequately addresses the issues identified above is the Charter.32 Birnie and Boyle raise the issue of there being a lack of cohesion respecting the parameters of and criteria for measuring
Environmental Law for Sustainability (Hart Publ, Oxford, 2006) 151.
sustainable development. In response, the Charter has been identified as an “ethical framework for sustainable development”.33 It is a “[...] statement of fundamental or core ethical principles and practical guidelines which express an integrated ethical vision of humanity’s common future”.34 Furthermore, it is the first international document that genuinely encompasses shared ethical concerns that clearly define wellestablished international legal principles.35
The Charter enables relevant groups to consider all values and ethical views when applying its guidelines.36 Such an approach is highly attractive considering that first, sustainable development is largely an ethical and, therefore, subjective concept, which ultimately requires a set of core concepts. Second, that an “integrated ethical vision” will inevitably result in the effective implementation of policies guided by sustainable development because “[...] people are given the opportunity to make personal and collective contributions and commitments to these values”.37 By encompassing the myriad of components of sustainable development in a comprehensive format, the Charter “[...] will serve as a universal code of conduct to guide people and nations toward sustainable development”.38
With respect to the issue of “weak sustainability” raised by Bosselmann, the Charter expressly rejects an anthropocentric definition of sustainable development by placing the environment as the focal point of the development of life.39 It states as its core ethical principles, “respect Earth and life in all its diversity; care for the community of life with understanding, compassion, and love; build democratic societies that are just, participatory, sustainable, and
peaceful; secure Earth’s bounty and beauty for present and future generations”.40 Finally, the Charter is the only international document that expressly contains the concept of “interspecies justice”.41 In doing so, it has the potential to facilitate the implementation of a “strong”, ecocentric model of sustainable development within the justice discourse.42
The Charter “arose most directly out of the failure to get an Earth Charter adopted at Rio in 1992”,43 and has since gained considerable international recognition. “The promotion of its principles in more than 50 national Earth Charter campaigns and the everincreasing number of endorsing institutions are evidence of its success.”44 Numerous governments have adopted the Charter as an ethical guideline in domestic policies.45 Furthermore, the Charter has been recognised by a number of international legal scholars and referenced in scholarly works.46 Finally, the principles underlying the Charter have already been adopted by other international instruments, treaties, and conventions.47
The Charter was publicly cited at the 2002 World Summit for Sustainable Development (“WSSD”) in Johannesburg; its language was also incorporated into the Political Declaration emerging from that Summit (although the Charter was not explicitly referenced).48 Further, in 2003, the UNESCO General Conference plenary resolved to “[r]ecognise the Earth Charter as an important ethical framework for sustainable development, and acknowledge its ethical principles, its objectives and its contents, as an expression that coincides with the vision that UNESCO has [...]”.49
Most recently, the IUCN adopted Resolution CGR3.REC003 at the IUCN World Conservation Congress in Bangkok in November 2004. The Resolution:
Other resolutions adopted by the IUCN in Bangkok include Resolutions WCC 3.020 and 3.022. Respectively, these call for the development of a code of ethics for biodiversity conservation and endorse the Charter as an ethical guide to IUCN policies and programmes.51 These endorsements mark “[...] a significant step towards an international consensus on the ethics of sustainable development”.52 This action “[...] should not only help the Charter gain further endorsements by governments and NGOs but also facilitate attention to the Earth Charter in other international arenas including the United Nations”.53 Although not yet a “soft law” document (although some academics argue that it is already “soft law”54), the Charter is “prima facie a draft legal document”.55 Arguably, it is only a matter of time before the Charter gains universal acceptance as a source of international law.
To summarise: (1) sustainable development is a widely accepted “soft law” principle that is implemented in a myriad of international treaties, conventions, and legal decisions; (2) the Charter rose out of the Rio Process as an attempt to resolve the inadequacies of the Rio Declaration and Agenda 21; (3) the
Charter acts as a universal code of conduct to guide people and nations toward sustainable development; (4) the Charter has the potential to facilitate the implementation of a “strong”, ecocentric model of sustainability; and (5) the Charter has been endorsed internationally and will continue to gain significance as an international legal document. Considering these points, the Charter is a credible benchmark by which to further guide the implementation of sustainable development. Furthermore, considering the IUCN’s commitment to using the Charter as a code of ethics in the area of biodiversity, the Charter will play a significant role in the regulation of this area, as well as the related field of biotechnology.
3. THE EARTH CHARTER AND THE ISSUE OF GENETICALLY MODIFIED ORGANISMS
3.1 The Threat of Genetically Modified Organisms to Biodiversity
Genetic modification56 is an important issue as it theoretically, and potentially in practice, undermines the goals of sustainable development. There are five common concerns regarding the effect of GMOs57 on biodiversity:
Each of these points stems from an overarching concern that GMOs have the potential to alter indefinitely the natural genetic makeup of any number of
organisms. The potential to do so inherently threatens the “ecological integrity” of the environment, contrary to the goal of the ecological sustainability. The issue, then, is to determine whether GMOs can ever be developed “sustainably”.
Proponents of GMOs generally cite those benefits that relate to humans as opposed to biodiversity.59 Commonly referenced benefits of GMOs include decreased use of chemical pesticides and herbicides,60 increased quality of life for agricultural workers,61 and increased general health for human beings.62 One environmental benefit that proponents of GMOs claim is that transgenic plants and other organisms have the potential to repair damaged ecosystems.63 Such benefits, however, do not negate the possibility that GMOs may cause adverse effects on the environment. For example, molecular farming is widely considered to increase crop acreages and, consequently, the medicine being produced.64 Nevertheless, molecular farming also enhances the risk of cross pollination,65 which is potentially detrimental to the environment.66
This point is further illustrated by the inability of Parties at the Cartagena67 negotiations to list those LMOs68 that may be deemed “harmless”. During discussions on the risks posed by LMOs, the negotiating Parties determined that “risk depends on the organism and receiving environment [...]”.69 The climate of the region in which a LMO may be transported, for instance, could determine whether that LMO may have adverse effects on biodiversity. Thus, although the negotiating Parties attempted to create an annex of “harmless” LMOs, they failed to do so because “no one did (or could) suggest a single LMO that was
assessed as globally harmless”.70 This conclusion is relevant when considering the manner in which States should regulate the use of GMOs in light of their potential adverse effects. Even those GMOs that are considered beneficial must be developed “sustainably” considering the difficulty in identifying any GMO that is “harmless”. Furthermore, considering the Charter provides an ecocentric guide to the implementation of sustainable development, its principles may necessarily come into play.
3.2 Genetically Modified Organisms and the Earth Charter
As previously discussed, the Charter is a credible benchmark by which to further guide the implementation of sustainable development. The Charter is particularly relevant to the field of genetic modification considering that:
(1) genetic modification threatens one of the very concepts that the Charter seeks to guide (ie ecological sustainability); (2) the debate surrounding genetic modification is largely an ethical one, and the Charter has been described as an “ethical framework for sustainable development”; and (3) the principles contained in the Charter are directly relevant to the safe use of GMOs.
Section 5(d) of the Charter explicitly references GMOs. It lists as an objective: “[c]ontrol and eradicate nonnative or genetically modified organisms harmful to native species and the environment, and prevent introduction of such harmful organisms.”71 The inclusion of this section denotes the Charter’s concern with the potential adverse effects of genetic modification. Section 5(d), however, uses the qualifying word “harmful” on two occasions and, in doing so, limits its scope. This section seeks to prevent the introduction of GMOs only in the instance that they are “harmful”. Under this analysis, the Charter does not necessarily preclude the further use of GMOs, but attempts to provide a guideline by which GMOs should be used to ensure that the integrity of the environment is not jeopardised.
The Charter also contains a number of general guiding principles relating to the use of GMOs. These include, the precautionary principle, ecological sustainability, and the rights of indigenous peoples and minorities.72 First, the precautionary principle is referred to in Principle 6 (“Prevent harm as the best method of environmental protection and, when knowledge is limited, apply a precautionary approach”).73 The precautionary principle, although an evolving concept, is widely referenced as the following:
Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.74
The Charter regards precaution as a means by which to achieve “ecological integrity” (Principle II).75 The precautionary principle is crucial to the safe development and use of GMOs because the extent of the harm to the environ ment potentially caused by genetic modification is not completely known. Furthermore, genetic modification is an evolving science. Without empirical evidence of the impact GMOs have on the environment, the only method of preventing potential harm is precaution.
The next principle, “ecological sustainability”, is considered in Principle 8 (“Advance the study of ecological sustainability and promote the open exchange and wide application of the knowledge acquired”).76 Ecological sustainability is an “[...] ecocentric conception which includes the recognition of intrinsic value of all forms of life”.77 As such, it “[...] favors environmental sustainability as the concept for a broader community of recipients”, and incorporates nature into the otherwise anthropocentric view of sustainable development.78 The “intrinsic value of all forms of life” refers to the recognition that nature “[...] has value independently from any instrumental values for humans”.79 Ecological sustainability is a necessary guide if the goal is to overcome a “weak” model of sustainable development. If, when making decisions regarding the use of GMOs, society prioritises the environment and acknowledges its worth as a living entity, the threat of harming the ecological integrity of the planetary ecosystem diminishes.
Principle 12 of the Charter, finally, identifies the rights of indigenous groups and minorities (“Uphold the right of all, without discrimination, to a natural and social environment supportive of human dignity, bodily health, and
spiritual wellbeing, with special attention to the rights of indigenous peoples and minorities”).80 The development and use of GMOs may result in adverse socioeconomic consequences related to biodiversity. For example, the use of GMOs may result in the “[...] displacement of cash crops or traditional crops and disruption of small scale farming systems [...]”.81 Not only do GMOs have the potential to alter fundamentally the natural agricultural makeup of certain areas, they simultaneously threaten the ability of entire communities to sustain themselves.82 However, if decisions made about the development and use of GMOs consider, for example, indigenous peoples who rely on traditional agricultural methods, the associated adverse effects may subside.
Although the potential threats of GMOs to biodiversity are not disputable, their total eradication is not necessarily the optimal solution. Proponents identify certain beneficial uses for GMOs, particularly in the medical and agricultural fields. The goal, rather, is to ensure that GMOs are used in sustainable manners that promote precaution, do not undermine the ecological integrity of the planetary ecosystem, and do not threaten traditional uses of lands. The Charter contains a number of ethical principles that specifically address the concerns surrounding GMOs. These principles, in broad terms, are precaution, ecological sustainability, and the rights of minorities and indigenous groups. In some instances, these principles encompass related concepts such as “ecological integrity” and the “value of all life forms”. These concepts can be used to guide the sustainable development and use of GMOs; additionally, they are useful in determining whether current international responses to the threat of GMOs are adequate.
4. THE ADEQUACY OF INTERNATIONAL RESPONSES TO THE THREAT OF GENETICALLY MODIFIED
ORGANISMS IN LIGHT OF THE EARTH CHARTER
4.1 Responses to the Threat of Genetically Modified Organisms
World leaders gathered at the 1992 Rio Earth Summit to agree on a “[...] comprehensive strategy for ‘sustainable development’ — meeting our needs while ensuring that we leave a healthy and viable world for future generations”.83 One agreement adopted at the Earth Summit was the CBD. It generally seeks
to establish “[...] the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits from the use of genetic resources”.84 Article 19, paragraph 3, of the CBD ultimately sparked the commencement of negotiations on a draft protocol on biosafety, “[...] specifically focusing on transboundary movements of any living modified organism resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity”.85 The close relationship between the CBD and the Protocol is evident in their overlapping concerns.
The Protocol’s objective is to “contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of [LMOs]
... that may have adverse effects on the conservation and sustainable use of [biodiversity], taking also into account risks to human health, and specifically focusing on transboundary movements”.86 The language of the Protocol’s objective (ie “[...] the safe transfer, handling and use of [LMOs]”) reflects that of Article 19 of the CBD.87 Additionally, the Protocol seeks to address the impact of LMOs (as opposed to GMOs), as envisioned by Article 19 of the CBD. Finally, the Protocol deals with the “sustainable use of biodiversity”, in addition to the adverse effects of LMOs, which the CBD prioritises. Thus, both documents seek to implement the concept of sustainable development.
The Protocol entered into force on 11 September 2003 and, as of 26 March 2006, 132 instruments of ratification or accession have been deposited with the UN SecretaryGeneral.88 The Protocol is generally regarded a success considering its comprehensive nature, implementation of the precautionary principle, and widespread international support. The Protocol emerged from a process that attempted to gain recognition for and facilitate the implementation of sustainable development. As previously discussed, however, an anthropocentric model of sustainable development (as encompassed by Principle 15 of the Rio Declaration and carried on in its subsidiary documents, the CBD, and the Protocol) represents a “weak” model of sustainability that will not produce the results necessary for the preservation of the planetary ecosystem.
Thus, a further examination of the Protocol’s components through the lens of the principles contained in the Charter must be conducted to determine the following: First, does the Protocol promote a “strong”, ecocentric model of sustainable development as promoted by the Charter? If the answer is yes, to what degree does the Protocol facilitate the implementation of a “strong”,
ecocentric model of sustainable development? Finally, where the Protocol fails to support strong sustainability, how must its provisions be altered to ensure the ecological integrity of the planetary ecosystem is not harmed?
4.2 The Cartagena Protocol and the Earth Charter
In order to determine the above listed items, a closer examination of the Protocol’s components in light of the principles of the Charter is necessary. This section will first determine which aspects of the Protocol support the principles of the Charter and, thus, a “strong”, ecocentric model of sustainable development. Next, this section will consider those parts of the Protocol that are contrary to the principles of the Charter. Finally, this section will discuss those areas in the Protocol that have the potential to advocate strong sustainable development, but which, as a result of the competing values evident throughout the Protocol’s provisions, fail to do so. Consideration throughout this section will address how the Protocol’s provisions must be altered to promote “strong” sustainability.
As previously determined, the broad principles of the Charter which may guide the sustainable development and use of LMOs include the precautionary principle (which is also evident in those parts of the Protocol dealing with “risk assessment”), ecological sustainability (including the underlying concepts of “access to information” and “information sharing”), and the rights of indigenous groups and minorities (which are related to the consideration of “developing countries” in the Protocol). Each will be dealt with in turn.
(a) The precautionary principle
A preliminary issue regarding the application of the precautionary principle in international documents is the tendency for its use to be quite specific. The consequence is that the role for sustainable development is, at best, limited. The Charter, in contrast, provides for a broad application of the principle. In doing so, it better enables international society to prioritise the protection of the planetary ecosystem. It is arguable as to whether or not the Protocol promotes a specific application of the precautionary principle. One commentator describes the Protocol as a reflection of precaution itself. 89 Nevertheless, its application is primarily limited to the following sections: the Preamble, Article 1 (objective
of the Protocol), Articles 10(6) and 11(8), and Annex III (“risk assessment”), para (4).
Both the Preamble and Article 1 confirm that the Protocol’s objective is “in accordance with the precautionary principle as contained in Principle 15 of Rio”.90 In doing so, the Protocol makes precaution an overarching concern.91 It is, however, problematic that Principle 15 of the Rio Declaration supports an anthropocentric view of sustainable development. This does not necessarily mean that the entire Protocol fails; but a “strong” model of sustainability would require an ecocentric definition that considers primarily the role of the environment. Thus, the language of the Preamble and Article 1 would need reformation in this regard. Despite the two preceding issues, aspects of the Protocol represent a significant shift in the implementation of precaution.
For instance, the use of the phrase “may have adverse effects on biodiversity” captured by Article 1 is indicative of a “strong” precautionary principle. The Article essentially states that the Protocol will apply even where there is only a possibility that modern biotechnology will harm biodiversity.92 This objective is furthered in Articles 10(6) and 11(8) of the Protocol, which state that a “Party of import” may refuse to accept a LMO where there is a lack of scientific certainty as to the impact of that LMO on the environment. These Articles are innovative in that “this is the first instance in which the precautionary principle is operationalised in an international environmental agreement”.93 The “operational” aspect of these sections lies in their reference to “potential adverse effects” as a precondition for triggering precautionary measures.94 In this regard, the Articles oppose related international agreements that require empirical evidence of harm in similar circumstances.95
Finally, in its entirety, Annex III to the Protocol promotes the precaution ary principle. Its purpose is to “identify” and “evaluate” the potential adverse effects a LMO may have on the environment and it provides criteria by which to measure this objective. A further discussion on “risk assessment” follows this section.
Arguably, the precautionary principle is supported throughout the Protocol in more subtle manners. For example, Articles 10(3) and 11(3) give Parties
the ability to request further information when determining whether or not to accept a LMO for import. Additionally, Article 12(1) allows Parties to review a decision regarding the importation of a LMO where new scientific evidence becomes available. These provisions represent mechanisms by which the Parties may further evaluate the potential risk of a LMO on biodiversity on an ongoing basis. This is an important inclusion considering the scientific progression of genetic modification and the natural evolution of ecosystems. The nature of these systems inherently requires continuous monitoring and evaluation.
A further means by which the Protocol supports the precautionary principle is through its recognition of customary international law that requires a State to notify other affected States where an incident arising in its jurisdiction may give rise to “significant harm” within the boundaries of others.96 This requirement is reflected in Article 17 of the Protocol, which necessitates that a Party give notification “[...] when it knows of an occurrence under its jurisdiction resulting in a release that leads, or may lead, to an unintentional transboundary movement of a [LMO] that is likely to have significant adverse effects on ... [biodiversity]”.97 Its purpose is to minimise the harm caused to the environ ment because of such transboundary movements. The inclusion of this Article is significant considering the potentially detrimental impact a LMO may have on biodiversity.
However, Article 17 is further significant considering that its scope, relative to that of Article 14(1)(d) of the CBD, is broader. Whereas the CBD requires “imminent or grave danger or damage” to biodiversity prior to notification being made, the Protocol calls for the “likelihood” of “significant adverse effects” on biodiversity.98 It appears as though the Protocol imposes a less stringent standard for notification than related international agreements. Furthermore, it emphasises the environmental aspects of the Protocol by placing a greater onus on member States to take responsibility for their potentially damaging actions. Nevertheless, its ambiguous language limits the application of Article 17, as is the case in many of the Protocol’s provisions. In particular, the words “likely” and “significant” are not defined in the Protocol and, as such, may represent a range of meanings. Although “likely” arguably promotes precaution, it is possible that other words, such as may or potentially, will allow for a broader application. Likewise, the word “significant” is more encompassing than “imminent” or “grave”, but any would increase the applicability of the Article.
Article 17(4) poses a similar problem. It states that the Party responsible for the unintentional transboundary movement of a LMO shall consult affected (or potentially affected) States for the purpose of “minimising significant adverse
effects”.99 However, the words “minimise” and “significant” are not defined.100 Thus, the manner and extent to which the Parties are required to consult for the purpose of minimising significant adverse effects are virtually unknown. Again, these terms would either need to be defined or altered in such a manner as to broaden their application. The Charter, for instance, would require that the responsible Party be “liable for environmental harm”.101 Such an obligation implies that the Parties should take any means necessary to resolve all potential environmental damage. Such obligations are further discussed in the provisions under the Protocol dealing with “risk assessment”.
(b) Risk assessment
“Risk assessment” is a necessary component to the Protocol because it defines the manner and criteria by which the precautionary principle is implemented.102 It is primarily addressed in Article 15 (“Risk Assessment”), Article 16 (“Risk Management”), and Annex III (“Risk Assessment Criteria”). Article 15 requires that risk assessments be conducted in “scientifically sound” manners in accord ance with Annex III, and that they be based on the information required in Article 8 of the Protocol (“Notification”). It encompasses the purpose of risk assessment, which is to “identify and evaluate the possible adverse effects of [LMOs]” on biodiversity.103 Article 16 generally requires that member States establish and maintain appropriate mechanisms to regulate, manage, and control the risks identified in Article 15. Finally, Annex III facilitates the risk assessment process required under Article 15 by outlining the criteria that must be considered when determining whether or not a LMO has potential adverse effects.
The language of the Protocol is such that conducting a risk assessment under Annex III is virtually unavoidable. For instance, Article 15 indicates that risk assessments “shall” be taken out “in accordance with Annex III”. Additionally, if the LMO in question falls under the Advance Informed Agreement proce dure, Article 8(1) indicates that notification “shall” contain, at a minimum, the information required in Annex I; Annex I(k) requires “a previous and existing
risk assessment report consistent with Annex III”. In the case of LMOs intended for direct use as food or feed, or for processing, Article 11(1) indicates that notification must include, at a minimum, the information required by Annex II; Annex II(j) requires “a risk assessment report consistent with Annex III”. If the LMO in question falls under the “simplified procedure”, Article 13(2) indicates that notifications “shall” be the information contained in Annex I (and Annex I(k) requires a “previous and existing risk assessment report consistent with Annex III”). Finally, other provisions allow Parties to require further risk assessments.104 By mandating a widespread application of risk assessment, the Protocol creates a larger role for precaution and coincides with the objectives of Principle 6 of the Charter.
The language of Article 16 (“Risk Management”) is similarly supportive of the precautionary principle. Subsection (2), for instance, states “measures based on risk assessment shall be imposed to the extent necessary to prevent adverse effects of [LMOs...]” on biodiversity. The section uses nonnegotiable language (ie “shall”) and exemplifies a strong use of precaution (ie “prevent[s] adverse effects”).105 Additionally, subsection (4) requires a period of observation prior to a LMO being put to its intended use. The inclusion of this provision is signifi cant considering the nature of LMOs (that being, continuously evolving with inconclusive effects). However, like other provisions dealing with precaution, its scope is limited. For example, subsection (4) is to be applied without prejudice to subsection (2), which requires that measures be taken only to “the extent necessary”. Furthermore, the Parties only must “endeavour” to ensure a period of observation. Finally, the section fails to identify the “appropriate” period for observation.
The failure of the Protocol to define important terms is present throughout its risk assessment provisions, and ultimately has the effect of limiting the application of the precautionary principle. For instance, the Protocol continu ously refers to “scientifically sound manners” of conducting risk assessments, “recognised risk assessment techniques”, and “risk management strategies”, without providing any guidance as to their meaning or underlying concepts. This approach is particularly problematic considering that “risk” is a subjective notion. Inescapably, its meaning “... varies culturally and individually as well as temporally and spatially”.106 Thus, it is a necessary component to any risk strategy to impose firm obligations and duties which do not allow for negotiation or compromise. With respect to the Protocol, this may be achieved through refining its language in a manner that promotes its underlying objectives (rather than placing the onus on the Parties to determine the intricacies of the Protocol’s
provisions); or, to adopt a set of “core values” that emphasise an ecocentric perspective, and that would be referenced in instances where the Protocol’s provisions are ambiguous.107
(c) Ecological sustainability
Neither the concept of ecological sustainability is explicitly recognised in the Protocol, nor is the underlying idea that “all life has value”.108 There are, however, a few instances in the Protocol where these concepts are implied. Paragraph 5 of the Preamble recognises the “rapid expansion of modern biotechnology” and the “growing concern over its potential adverse effects on biological diversity, taking also into account risks to human health”. While this section also acknowledges the potential risk to human health (an anthropocentric concern), the provision is still significant. First, it considers biodiversity as a concern in isolation from any others; second, it places human health as an additional factor following the primary concern of biodiversity.109 This is similar to the Charter, which first addresses environmental aspects of sustainable development, followed by socioeconomic concerns.110
The inclusion of paragraph 7 of the Preamble is vital to the promotion of ecological sustainability. It recognises “the crucial importance to human kind of centres of origin and centres of genetic diversity”.111 In doing so, the Protocol prioritises the conservation of areas in which: (1) a particular organ ism originated and was first brought into use by humans, and (2) there is a high diversity present amongst a particular group of related species.112 The preservation of the “integrity of the planetary ecosystem” is better achieved where the importance of conserving particularly significant and vulnerable areas of the environment is recognised.
The Preamble does not, however, go so far as to acknowledge that life has value regardless of its worth to human beings. Rather, the reason it gives for acknowledging centres of origin and genetic diversity is its “importance to human kind”. This anthropocentric perspective will have limited impact on unsustainable patterns of production and consumption, as well as the preservation of the environment. Rather, this section must be altered to recognise the stake the environment (as opposed to humans) has in preserving centres of origin and genetic diversity, thereby promoting ecological sustainability.
(d) Access to information and information sharing
Two concepts underlying ecological sustainability will be referred to as “access to information” and “information sharing”. Principle 8 of the Charter requires the “advancement of the study of ecological sustainability”. Furthermore, subsection
(c) states the following: “Ensure that information of vital importance to human health and environmental protection, including genetic information, remains available in the public domain.” “Access to information” and “information sharing” in the area of genetic modification are necessary components to the sustainable use of LMOs. In particular, “access to information” enables Parties to make informed decisions respecting the importation and introduction of a LMO into a certain environment. “Information sharing” ensures that the Parties are aware of technological advancements respecting genetic modification, the effects a particular LMO may have on the environment, and methods of promoting the sustainable use of LMOs. These concepts are evident throughout the Protocol.113
The Biosafety ClearingHouse (“the BCH”) is a mechanism that “facilitate[s] the exchange of scientific, technical, environmental and legal information [...]” on LMOs.114 According to Article 20, the Parties must make certain information available.115 This provision demonstrates the recognition by negotiators of the importance of enabling member States to implement the provisions of the Protocol.116 However, Article 20 incorrectly assumes that member States have the capacity to generate such required information. This is demonstrated by the Report of the Third Meeting of the Conference of the Parties, which largely addresses the difficulty experienced by developing country members to both contribute to and access the BCH.117 Furthermore, its
provisions do not specifically require, for example, methods for implementing the sustainable development of LMOs, or manners in which the traditional knowledge of certain society groups respecting sustainable methods of living may be incorporated into national policies. Thus, the “information” aspect of the BCH may be onesided.
Article 23 specifically requires the promotion of public awareness and education, access to information, and public consultation in decisionmaking concerning LMOs. It reiterates the objective of “public participation” in Prin ciple 10 of the Rio Declaration and Article 14(1)(a) of the CBD.118 Furthermore, it reflects the negotiation process of the Charter, which included a myriad of sects of civil society.119 One of the reasons the Charter is considered a successful international document is that it is considered a “people’s treaty”.120 It encom passes the goals and aspirations of global civil society and, in this regard, is a “just” document. Civil society may be more willing to promote an agreement that they helped to negotiate. Thus, the inclusion of public participation in the Protocol may further ensure that it reflects society’s concerns respecting the use of LMOs and that its provisions are upheld.
Aspects of Article 23, however, act contrary to its underlying objectives. For instance, section 1(b) only requires that the Parties “endeavour” to ensure that “public awareness and education encompasses access to information on LMOs to be imported”. This contrasts with section 1(a), which states that the Parties “shall promote” and “facilitate” public awareness, education, and participation concerning LMOs. The combined effect of these provisions indicates that while the State is not required to inform the public regarding potential LMO imports, it nevertheless must promote public awareness respecting the use of LMOs in relation to biodiversity. In order for civil society to form educated opinions respecting LMOs, they need access to all necessary information, including the identity of those LMOs destined for import. This limitation is aggravated by section 2 of Article 23, which states that public consultation and the release of decisionmaking processes regarding LMOs to the public shall be done “in accordance with [the State’s] respective laws and regulations”, as well as Article 21 (“confidential information”). This provision has the potential to eliminate the participation of certain citizens in the LMO debate, depending on their State’s public participation policies.121 The potential for certain societal groups to be alienated as a result of the Protocol’s provisions is further discussed in the next sections.
(e) Indigenous and minority groups
Article 26 of the Protocol allows the Parties to take into account “socio economic considerations”, including “the value of biological diversity to indigenous and local communities”,122 when making a decision on import. The inclusion of this provision is significant considering that it acknowledges the separate and unique impacts that LMOs may have on certain groups.123 For example, it speaks to a commonly held concern regarding the use of LMOs, that “transgenic crops could lead to the displacement of traditional varieties [...]”, considering that local farmers are unlikely to compete and be successful with multinational corporations dealing with LMOs.124 Ultimately, this will “adversely affect the livelihood of farmers cultivating [traditional varieties]”.125 Finally, Article 26 represents one means by which Parties may integrate non empirical evidence into their decisionmaking processes regarding LMOs. This coincides (although not to the same degree) with Principle 12(c) of the Charter, which affirms “the right of indigenous peoples to their spirituality, knowledge, lands and resources and to their related practice of sustainable livelihoods”.126
On a surface level, Article 26 appears to support the objectives of Section 12 of the Charter (“rights of indigenous groups and minorities”); however, its language proves to be less affirmative. The Charter regards the “natural and social environment supportive of human dignity, bodily health, and spiritual wellbeing” as a right of all and, particularly, indigenous peoples and minorities. Normally, a “right” to something is not negotiable; otherwise, a sense of “injustice” would arise. In contrast, Article 26 tends to diminish the value of biodiversity to indigenous groups and local communities. This is evident, first, through subparagraph (1) which indicates that the Parties “may” take into account socioeconomic considerations as long as they are “consistent with their international obligations”.127 However, in order for the underlying objectives of this Article to be realised, the Protocol must require that the value of biodiversity to such groups be taken into account in all instances.
Additionally, Article 26 is limited to “socioeconomic considerations arising from the impact of LMOs [...]” as opposed to socioeconomic considerations in general.128 The language of this section requires that there be “impact” of
a LMO on biodiversity prior to a Party taking into account socioeconomic considerations.129 This limits the scope of the provision’s application and diminishes the prevalence of socioeconomic considerations in the decision making process. Even where socioeconomic considerations are taken into account, the Protocol fails to explain the manner in which Parties should do so.130 Such ambiguities contribute to the difficulty in practically implementing the objectives that Article 26 seeks to advocate. Socioeconomic considerations are further discussed in the following section.
(f ) Developing countries
As discussed, “intragenerational justice” represents one component of the Brundtland definition of sustainable development (that being, concern for the world’s poor).131 Broadly speaking, intragenerational justice includes “all social and minority groups discriminated against by the social and economic system”.132 Specifically, intragenerational justice seeks to recognise conflicts between “rich and poor, white and nonwhite, Western lifestyle and indigenous cultures, and North and South”.133 The Charter addresses intergenerational and intragenerational justice in Parts III and IV (respectively, “Social and Economic Justice” and “Democracy, Nonviolence, and Peace”).134 The Protocol also recognises the concept of intragenerational justice throughout its provisions.
In some instances, the Protocol attempts to address the inequalities that may exist with respect to the ability of developing countries to meet its requirements. For example, the Preamble recognises the “limited capabilities of developing countries to cope with the risks associated with LMOs”.135 Subsections (6) and (9) of Article 11 (LMOs intended for direct use as food or feed, or for processing) make special provision for developing countries that lack domestic regulatory frameworks for LMOs or that require technical or financial assistance.136 Furthermore, Article 22 (“capacity building”) states that
the Parties “shall” cooperate with respect to the “development and/or strength ening of human resources and institutional capacities in biosafety [...]”. Such inclusions are important, as the recognition of intragenerational justice is a “first step” in the process of resolving such inequalities.
Although the Protocol attempts to address the inequality between developing and developed member countries, it nevertheless makes assumptions regarding their capacities. For instance, Article 13 (“simplified procedure”) supposes that the Parties have the ability to determine whether or not “adequate measures” have been taken to ensure the safe intentional transboundary movement of LMOs.137 Article 17 (“unintentional transboundary movements and emergency measures”) presumes that all Parties have the capacity to monitor transboundary movements of LMOs, identify where there may be adverse effects, and communicate that information to other Parties. Furthermore, Article 33 (“monitoring and reporting”) takes for granted that member States have the resources necessary to monitor the implementation of its obligations. Such assumptions demean the objective in the Protocol that takes into account the limited capabilities of certain member States.
The practical difficulties of developing countries implementing the provisions of the Protocol were further recognised at the 2006 Brazil meetings of the Conference of the Parties.138 This can be seen through Decision BSIII/2, which recognises that developing countries have been unable to both contribute to and access the BCH; Decision BSIII/3, through which the Parties adopted an updated Plan of Action for building capacities for the effective implementation of the Protocol; Decision BSIII/4, which recognises the need to strengthen the “roster of experts” available to development countries; and Decision BSIII/11, which acknowledges that developing countries have been unable to develop and implement risk assessment strategies.139 Ultimately, such decisions reflect the failure of the Protocol’s widespread implementation due to capacity issues.
Additionally, the Protocol fails to require that the Parties resolve the inability of developing country members to carry out their obligations. For example, Article 28(4) states that the Parties “shall” take into account the needs of developing countries; but then goes on to say in subparagraph (6) that developed country Parties “may” provide financial and technological resources for the implementation of the Protocol. Such language was further employed in the 2006 Brazil decisions, which “invited” the Parties to make financial contributions to facilitate capacitybuilding strategies.140 Thus, while developed country members must acknowledge that other States may not have the capacity to follow through with the provisions of the Protocol, they are not
required to assist by providing resources or funding. The effect of this Article is counterproductive to the objective of the Protocol, which necessarily requires the participation of all member States (and States of the world) to prevent the potential adverse effects of LMOs. Rather, the Protocol should make obligatory resourcesharing and financial redistribution amongst member States for the purpose of effecting its provisions.
The provisions of the Protocol discussed thus far have reflected those Charter principles guiding the use of LMOs only in a limited manner. In summary, the implementation of the precautionary principle is likely the main vehicle for the sustainable development of LMOs in the Protocol. Some provisions are revolutionary in that they operationalise the principle of precaution; however, in other instances, the language of the Protocol limits the capacity of member States to use the precautionary principle. A similar situation arises in the case of risk assessment. The application of Annex III is extensive, but the failure of the Protocol to define important terms consequently limits its impact. The principle of ecological sustainability is not recognised by the Protocol, but certain provisions acknowledge the importance of biodiversity, as well as “access to information” and “information sharing”. Finally, the Protocol specifically provides for the special circumstances of indigenous groups, minorities, and developing countries. Nevertheless, the language of these provisions often has the effect of subordinating socioeconomic concerns and resource sharing to other priorities in the Protocol. These will be examined next.
The most consistent manner in which the Protocol acts contrary to the principles of the Earth Charter evolves around the concept of “state sovereignty”. This section will, first, examine the components of state sovereignty and, second, discuss those provisions of the Protocol that uphold this concept.
(a) The concept of state sovereignty
“Sovereignty” is the “cornerstone of international law”.141 The term, based in realist theory, refers to the proposition that “each state remains autonomous to the extent that it can make and execute policies for its own national interest”.142 Related is the concept of “territorial sovereignty”, which refers to the right of states to the “unrestricted use and control of natural resources” within their jurisdiction.143 Most international agreements reaffirm the concepts of state
sovereignty and territorial sovereignty, including environmental agreements.144 However, with the rise of globalisation and, particularly, international environ mental law, the prominence of state sovereignty in the international arena has, to a degree, diminished.
Neoliberal conceptions of the international system brought to light “the changing nature of the international arena, through its growing interdependence; a failure of individual states to solve international problems; and an increasing pluralism through the infusion with new ‘nonstate’ actors”.145 This ideology encompasses the notion of the “interdependency of the planetary ecosystem”,146 which recognises that “[w]hat one state does, in and to its own environment, affects not only the territory of other states and common areas but something far larger — the global environment”.147 In other words, the environment cannot be divided into territories where each area may be exploited without any regard to the effects that exploitation has on other territories. Thus, the need for new international institutions arose, particularly in the field of international environmental law, where the interdependency of planetary ecosystems is more evident.
The movement towards neoliberal conceptions of the international system is evident through developments in international environmental law. For example, the Trail Smelter arbitration148 recognised that “no State has the right to use or permit the use of its territory in such a manner as to cause injury [...] to the territory of another or the property or the persons therein”.149 Furthermore, the prevalence of such concepts as the precautionary principle, the “polluter pays” principle, and good faith procedural requirements in international agreements demonstrates the deemphasis on notions of state sovereignty.150 Nevertheless, the principle of state sovereignty still dictates the functioning of the international arena. Under the current system, the State must consent to being bound by international agreements that uphold such principles as precaution or “polluter pays”. This practice continues to be upheld by international documents, including the Protocol, and acts as a barrier to sustainable development.
(b) State sovereignty in the Protocol
The Protocol, while recognising in some instances the interdependency of the planetary ecosystem, nevertheless reaffirms the concept of state sovereignty. Its provisions support state sovereignty in three distinct manners: (1) the Protocol reinforces the objective of noninterference with the obligations that member States may have under other international agreements; (2) its provisions uphold the principle that States cannot be bound by international agreements to which they are not Party;151 and (3) the Protocol’s language facilitates the development and sustainability of national regulatory schemes dealing with LMOs. The fundamental concern that resulted in these inclusions is the potential interference with the sovereign right of States to determine the policies by which they choose to be governed.
The Protocol’s language reflects the obvious concern of negotiating Parties for the potential overlap between the Protocol and other international agreements. For example, Article 2(3) confirms the rights and freedoms of States under the international law of the sea. Article 5 excludes from its scope “the transboundary movement of [LMOs] which are pharmaceuticals for humans that are addressed by other relevant international agreements or organisations”.152 Article 18(3) indicates that the identification, handling, packaging, and transport practices of LMOs will be considered “in consultation with other relevant international bodies”.153 Finally, Article 26 enables the Parties to consider the socioeconomic impacts of LMOs “consistent with their international obligations”.154
Furthermore, the manner in which the Protocol reinforces noninterference with the obligations the member States may have under other international agreements is evident through its apparently conflicting Preambular language. Paragraphs 10, 11, and 12 of the Preamble read as follows:
This Protocol shall not be interpreted as implying a change in the rights and obligations of the Party under any existing international agreements.
The above recital is not intended to subordinate this Protocol to other inter national agreements.
Trade and environment agreements should be mutually supportive with a view to achieving sustainable development.155
The inclusion of these opposing provisions reflects the attempt of negotiating Parties to ensure “an appropriate balance between trade and environmental concerns [...] so that while the specific trade regime [...] promotes biosafety, it also promotes predictability for exporters and importers of these products”.156 The cumulative effect of these three paragraphs is problematic because they essentially enable member States to pursue national trade policies to the detriment of the environment (thereby promoting “weak” sustainability). Furthermore, this demonstrates that the Protocol is not primarily an environmental agreement. As discussed, in order to overcome existing unsustainable patterns of production and consumption, the planetary ecosystem must be the overarching concern. Thus, the Protocol should require that trade and social issues are resolved within the realm of the environment (ie a “strong” model of sustainable development) in order to resolve ecological degradation.
The second manner in which the Protocol reflects the concept of state sovereignty is through the promotion of the principle of international law that a State cannot be bound by international agreements to which they are not Party.157 First, Article 24 allows member States to enter into international agreements regarding the transboundary movement of LMOs with nonParties as long as those agreements are consistent with the Protocol.158 However, the Protocol lacks an enforcement mechanism with respect to its member States
— let alone nonparties engaged in agreements with the Parties. Even if such an enforcement mechanism existed, it would be contrary to the principle of international law that “a treaty does not create either obligations or rights for a third state without its consent” to enforce infringements of the Protocol by third parties.159 Thus, the Parties should be required to cease relations with non
compliant nonparties, and an enforcement mechanism for Parties, at the very least, should be implemented.
Article 25(2) indicates that a Party affected by illegal transboundary move ments of LMOs can request the Party of Origin to dispose of the LMO at its own expense. However, this Article only applies to Parties (as opposed to nonparties) and does not require that the Party of Origin comply with such a request. This Article essentially leaves member States with no guidance as to the problem of illegal transboundary movements of LMOs by nonparties; further, the Protocol provides the Parties with no redress in the instance of such movements by other Parties. As in the case of Article 24, the Protocol requires an enforcement mechanism to ensure compliance with this provision. Finally, Article 39 indicates that member States may withdraw from the Protocol with notice. It also supports the concept of state sovereignty because it recognises that national agendas may change and, as such, States should have the right to withdraw from their international obligations. The issue, of course, with respect to the environment, is the “interdependency of the planetary ecosystem”. Unless all States make the environment an overarching concern, ecological sustainability will not be attained.
The final manner in which the Protocol upholds the concept of state sovereignty is by facilitating the development and sustainability of national regulatory schemes dealing with LMOs. For example, Article 1 states that the purpose of the Protocol is “to contribute” to ensuring an adequate level of protection in the field of LMOs, thereby implying that other protective measures exist, or should exist. Article 4 indicates that the scope of the Protocol is limited to the “transboundary movement” of LMOs, as opposed to their regulation within domestic territories. Article 2(2) imposes additional requirements on the Parties (ie that “development”, “transport”, and “release” of LMOs is undertaken in a manner so as to prevent harm to biodiversity) than is covered by the scope of the Protocol.160 Finally, Article 14(4) explicitly allows a member State to “determine that its domestic regulations shall apply with respect to specific imports to it [...]”.161
One rationale for supporting the national regulatory schemes dealing with LMOs is to further ensure the realisation of the Protocol’s provisions. The
Protocol assumes, however, that member States either have, or will develop, domestic regulatory measures dealing with LMOs. Furthermore, the Parties may impose domestic regulatory schemes that fail to adequately reflect the Protocol’s objectives. Considering that States generally possess unique national agendas, each may prioritise policies regarding LMOs differently and even in opposing manners. The difficulty, again, with LMOs is their allencompassing nature. Thus, it is crucial that all states adopt similar overarching values. While the Protocol may be used as a guide to the domestic regulation of LMOs, the success in doing so diminishes considering that the Protocol encompasses competing values.
Although the concept of state sovereignty is becoming irrelevant in an increasingly interdependent world, it remains a prevalent feature of international environmental agreements such as the Protocol. One of the most problematic features of the Protocol is its attempt to address the potential adverse effects of LMOs on biodiversity, while simultaneously upholding the ability of States to prioritise international trade obligations. Many member States during negotiations were concerned about the extent to which the Protocol would conflict with, for example, WTO agreements. However, the compromised lan guage of the Protocol is to the detriment of the environment. To prevent the potential adverse effects of LMOs on biodiversity, the Protocol must prioritise ecological sustainability as opposed to economic concerns.
Those provisions within the Protocol that produce “mixed results” have the potential to support the principles of the Charter, but are limited in their application. In particular, the Advance Informed Agreement procedure (“the AIA procedure”) describes the practical methods by which the Parties may achieve the objectives of the Protocol; however, its application is limited by Article 11 (“LMOs Intended for Direct Use as Food or Feed, or for Processing”) and Article 13 (“simplified procedure”), among other provisions.
(a) The Advance Informed Agreement procedure
The AIA162 requires that before the first intentional transboundary movement of a LMO into its jurisdiction, the Party of import is: (1) notified of the proposed import, (2) receives information about the LMO in question and its proposed use, and (3) is given an opportunity to decide whether or not to allow importation of that LMO and, if so, upon what conditions.163 As previously
discussed, all decisions under the AIA are subject to a risk assessment, which is supportive of the precautionary principle.164 Furthermore, information obtained through the AIA procedure is stored in the BCH, a mechanism that facilitates “information sharing” and cooperation amongst member States.165 Thus, the AIA procedure also promotes one component of ecological sustainability as listed in the Charter.
Although the AIA procedure is the main vehicle by which to carry out the objectives of the Protocol, its application is limited. According to Article 7(4), the AIA procedure does not apply to LMOs determined by the Conference of the Parties — serving as the meeting of the Parties to the Protocol — as “being not likely to have adverse effects” on biodiversity. These include, “LMOs in transit, LMOs intended for ‘contained use’ ‘undertaken in accordance with the standards of the Party of import’, LMOs ‘intended for direct use as food or feed or for processing’, and ‘intentional transboundary movement of [LMOs] identified in a decision of the Conference of Parties serving as the meeting of the Parties to this Protocol’ ”.166 The wide spectrum of LMOs not applicable to the AIA procedure causes for concern when considering that potential adverse impacts may result from any LMO.167 However, where the AIA procedure is not applicable, other provisions of the Protocol will be relevant.
(b) Limiting provisions
The AIA procedure does not apply to Article 6(2) of the Protocol, that being “Contained use”. This refers to “any operation, undertaken within a facility, installation or other physical structure, which involves [LMOs] that are controlled by specific measures that effectively limit their contact with, and their impact on, the external environment”.168 This provision appears to limit the extent to which LMOs have adverse effects on the environment by eliminating their contact with the external world. However, the language of this provision is disconcerting considering the potential for the word “limited” to be construed as some contact. In other words, Article 6 does not necessarily ensure “no contact” of LMOs with the external environment. Article 6 essentially enables LMOs that have the potential to adversely effect biodiversity to avoid the AIA procedure.
Article 11 lists a separate procedure for LMOs Intended for Direct Use as Food or Feed, or for Processing (“LMOFFP”). LMOFFPs generally consist of agricultural commodities (ie used as food for humans or animals, or for processing), and are considered “unlikely” to cause adverse effects on
168 Supra note 1 at Article 3(b).
biodiversity because they are not intended for introduction into the environ ment.169 This, however, does not necessarily justify subjecting LMOFFPs to a less stringent procedure than that of the AIA procedure.170 For example, LMO FFPs represent a significant percentage of the trade in LMO products, and much of the grain used for food or feed can also be used as seed.171 This increases the risk of LMOs being introduced into the environment (and, therefore, having adverse effects on biodiversity).172 Furthermore, there still exists the potential that, during transport or processing, LMOFFPs may, either accidentally or intentionally, be released into the environment.173 Considering such possibilities, it would be contrary to the principle of precaution to permit the application of a less stringent procedure for such LMOs.174
Finally, Article 13 allows for a “simplified procedure”, whereby a Party may deem certain LMO imports exempt from the AIA procedure.175 Although the Party of import must ensure that “adequate measures” are applied to ensure the safe intentional transboundary movement of LMOs under this procedure, the inclusion of this provision nevertheless increases the potential for adverse effects to biodiversity. As in other instances, the Protocol fails to define “adequate measures”. Thus, the Parties may apply differing standards when determining whether or not certain LMOs should be exempt from the AIA procedure. This, in turn, may result in a lack of cohesion in the system. The Parties may also resort to the simplified procedure for LMOs that previously were subject to the AIA procedure. However, considering the nature of LMOs,176 it is arguably necessary to subject every intentional transboundary movement to the AIA procedure.
176 Ie that even the slightest change in variable may render a LMO potentially dangerous to certain environments.
The AIA procedure represents the manner in which the objectives of the Protocol are operationalised. Nevertheless, the design of the Protocol is such that most LMOs to which its provisions should apply are not subject to the AIA procedure. This “compromise” was largely the result of contentious discussions amongst negotiating Parties, each of whom had differing national agendas. Nevertheless, the limited scope of the AIA procedure is potentially detrimental to the goal of protecting biodiversity from the potential adverse effects of LMOs. Thus, the Protocol must require that all intentional transboundary movements of LMOs be subject to more stringent and exhaustive processes.
On 13–17 March 2006, the Conference of the Parties — serving as a meeting of the Parties — to the Protocol joined in Curitiba, Brazil for their third meeting.177 One of the most concrete (and controversial) commitments made by the Parties was Decision III/10, which deals with the handling, transport, packaging and identification of LMOs (the “labelling requirements”).178 Ultimately, it was determined that the Parties to the Protocol will ensure that documentation accompanying shipments of LMOFFPs, “[...] in commercial production and authorised in accordance with domestic regulatory frameworks, is in compliance with the requirements of the country of import [...]”, and includes the following information:
The decision clarifies that that the expression “may contain” in paragraph
(2) of this section does not require a listing of LMOs of species other than those that constitute the shipment.180 Furthermore, the decision indicates that the specific requirements set out in the above paragraph “do not apply with such movements [as transboundary movements between Parties and nonParties]”.181 However, the transboundary movements of LMOs between Parties and non parties must still be consistent with the objective of the Protocol.
This decision is highly significant when considering, f irst, that the contentious nature of labelling requirements prevented the Parties at the initial Cartagena negotiations from determining the content of Article 18 (“Handling, Transport, Packaging and Identification”). This was largely due to the interests and influences of biotech exporters who sought less stringent labelling requirements.182 Second, Article 18 recognises that labelling is necessary to avoid adverse effects on biodiversity, as well as human health.183 Labelling ensures that the Parties of import are aware of the contents of shipments, as well as the means to acquire further information regarding the LMOFFP in question. Furthermore, labelling facilitates the identification of LMOFFPs involved in unintentional or accidental transboundary movements which may occur, and may aid in minimising the adverse effects of such transfers.
However, this decision, as is the case elsewhere in the Protocol, reflects compromised decisionmaking and differing national priorities. First, paragraph
(2) requires that the phrase “may contain LMOFFPs” be placed on shipments where the identity of the LMOFFP in question is unknown. It is uncertain, based on the language of this section, whether or not the adventitious (ie accidental or nonintentional) presence of LMOs is covered.184 The preference, from an ecocentric perspective, is for a broader application of this provision considering that it would allow for greater safety to biodiversity. Second, the decision that the labelling requirements not apply to the trade of LMOFFPs between Parties and nonparties resulted from Mexico’s concern over its ability to trade with its NAFTA partners.185 Although the Protocol does not require that nonparties adhere to its provisions, this particular inclusion is devastating when considering that the United States and Canada are among the largest exporters of
LMOFFP products in the world.186 As such, the Protocol allows for a significant amount of LMOFFPs traded to avoid the labelling requirements.
5. CONCLUSION AND RECOMMENDATIONS
This paper has sought to demonstrate, first, the applicability of the Charter as an ethical guide to the implementation of sustainable development; second, it has attempted to determine the extent to which the Protocol has promoted the sustainable development of GMOs, as guided by the Charter. In those instances that the Protocol has failed to uphold a “strong” model of sustainable development, this paper has, finally, made recommendations as to the manner in which the provisions of the Protocol should necessarily be altered. In summary, those recommendations follow.
The Protocol should embrace an ecocentric definition of sustainable development, as opposed to the Brundtland definition, which tends to pro mote anthropocentrism. The result may be to facilitate a “shift” in thinking that prioritises the planetary ecosystem and ensures the protection of the environment. In order to further promote the safety of biodiversity, a broader application of the precautionary principle is necessary. While the Protocol operationalises precaution, it tends to do so in limited instances. Such a goal may be achieved through the explicit requirement that the precautionary principle be implemented throughout all aspects of the Protocol. Furthermore, the Parties to the Protocol may facilitate the use of the principle by defining more comprehensively the scope of important terms such as “scientifically sound manners”.187
Additionally, the Protocol should recognise the concept of ecological sustainability and, more specifically, that all life has value regardless of any instrumental value to human beings. Such language may be incorporated, for example, into the Preambular text, which may have the effect of clarifying that the Protocol’s overarching concern is, in fact, the environment. Finally, the Protocol should require that, and explain the means by which, socioeconomic considerations be taken into account by the Parties. Developed country Parties should provide funding, technology, and resources to developing countries so that they may carry out the provisions of the Protocol.
The language of the Protocol that tends to uphold the concept of state sovereignty should be omitted to ensure that competing national values do not override environmental concerns. In particular, the conflicting Preambular language in the Protocol should be replaced with language that affirms the prioritisation of biodiversity. Furthermore, the Protocol requires an enforcement provision to ensure adherence of the Parties to its provisions, as well as mechanisms for liability and redress. Finally, the Parties to the Protocol should be obliged to refrain from trading with nonparties, even if it is to the detriment of trade relations.
Additionally, all transboundary movements of LMOs should be subject to the AIA procedure. This is justified when considering the nature of GMO technology, as well as the potential for LMOFFPs and those LMOs identified by the Parties as “unharmful” to nevertheless have potential adverse effects on biodiversity. The mandatory application of the AIA procedure would further reduce the risks posed by LMOs, but also ensure consistency in their use and development by member States. Finally, the labelling requirements as outlined in Decision III/10 of the Third Conference of the Parties should apply to all LMOFFPs being transported.
Recently, the Parties to the Protocol attempted to address outstanding issues at the Conference of the Parties — serving as a meeting of the Parties
— in Brazil. While the issue of labelling was resolved for the most part, other outstanding matters, such as the lack of mechanisms for compliance, liability, and redress, were left undetermined. Furthermore, the language of the newly adopted labelling requirements encompasses the competing national prerogatives of the negotiating Parties, as has been the case in many of the Protocol’s provisions. The success of this decision, as well as the Protocol, is questionable from an ecocentric standpoint. As demonstrated, and reaffirmed throughout this paper, existing patterns of production and consumption, which contribute to the destruction of the planetary ecosystem, can only demise once the environment becomes the overarching concern.