• E-mail
• Print
• Comment
• Font Size
• Digg
• del.icio.us
• Discuss article

Genetically Modified Organisms and Justice: The International Environmental Justice Implications of Biotechnology

Posted on: Tuesday, 27 November 2007, 09:00 CST

By Gonzalez, Carmen G

INTRODUCTION On September 29, 2006, a World Trade Organization (WTO) dispute settlement panel issued its final decision (the EC- Biotech decision) in the complaint brought by the United States, Canada, and Argentina against the European Communities (EC) over the EC's alleged moratorium on the approval and marketing of agricultural and food products containing genetically modified organisms (GMOs).1 The panel concluded that the EC had applied a de facto moratorium on the approval of biotech products between June 1999 and August 2003 and that this moratorium resulted in "undue delay" in the EC's GMO pre-marketing approval procedures in violation of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).2 The panel also struck down individual EC Member states' national GMO bans on the grounds that these measures were not based on risk assessments.3

The trade impasse over GMOs has its genesis in the conflicting approaches of the United States and the EC to the regulation of biotechnology.4 The United States has adopted a product-oriented approach, which assumes that the process of transferring genes from one species of plant, animal, or virus to another does not pose greater risks to human health and the environment than conventional plant breeding technologies such as hybridization.5 Consequently, genetically modified products are not subjected to stricter regulatory scrutiny than their conventional counterparts absent some tangible alteration in the physical characteristics and properties of the end product.6 By contrast, the EC has adopted a process- oriented approach, which assumes that genetically altered products may pose novel or unique human health and environmental risks as a consequence of genetic modification.7 Genetically altered products are therefore subject to a pre-marketing approval process involving extensive risk evaluation and public input.8 In addition, genetically modified products must bear a label indicating the presence of GMOs and must be traceable through the production and distribution chain via an elaborate information tracking system.9

The EC-Biotech decision did not resolve the polarized transatlantic debate over the regulation of biotechnology. The panel did not address the safety of GMOs, the right of countries to regulate genetically modified products more stringently than their conventional counterparts, or the consistency of the EC's pre- marketing approval legislation with WTO obligations.10 The panel did not rule on the legal status of the precautionary principle11 or explain why it did not find the leading biodiversity and biosafety treaties relevant to its interpretation of the SPS Agreement.12 Instead, the panel's findings were based primarily on the narrow procedural determination that the EC's moratorium violated Annex C(1)(a) and Article 8 of the SPS Agreement, which prohibit "undue delay" in product approval procedures.13 Maintaining that the moratorium had been lifted in 2004, the EC declared that the panel's decision would have no practical impact on its regulatory practices14 and declined to seek appellate review.15

The ongoing trade and regulatory conflict between the United States and the EC over GMOs has obscured the intense debate in the developing world over the environmental and socioeconomic implications of this technology. Proponents of biotechnology contend that genetically modified (GM) crops will alleviate hunger and protect the environment in the developing world by increasing agricultural productivity, enhancing nutritional quality, reducing the use of pesticides and herbicides, and producing crops that can withstand environmental stresses, such as drought, heat, frost, and soil salinity.16 Opponents of biotechnology have argued that GM crops will increase the use of pesticides and herbicides, irreversibly diminish biodiversity, undermine traditional agricultural practices, accelerate the corporate takeover of the global food supply, and increase hunger and poverty by benefiting commercial agribusiness at the expense of small farmers.17

Developing countries attempting to devise appropriate biotechnology regulation must contend with the economic power and influence of the United States and the EC.18 Although the vast majority of GM crops are grown in the United States, Canada, Argentina, China, and South Africa,19 U.S. agribusiness has been promoting the cultivation of GMOs in the developing world.20 The United States has conditioned bilateral free trade agreements and development assistance on the acceptance of GMOs.21 Indeed, the United States has gone so far as to offer GM seeds as food aid to famine-stricken countries in sub-Saharan Africa, leading to accusations by the EC and by many nongovernmental organizations that the United States was exploiting a humanitarian crisis in order to expand the market for GMOs.22 Many African countries refused the proffered "aid" out of concern about the potential human health and environmental impacts of GMOs.23 Likewise, the EC's stringent food safety rules, particularly the traceability and labeling requirements, have compelled many developing countries to forego all GM crops for fear of losing lucrative EC markets due to the difficulty of segregating GM and non-GM products.24

Developing countries' attempting to regulate agricultural biotechnology must also contend with unresolved legal questions about the relationship between international trade law and international environmental law.25 A substantial body of legal scholarship has examined the overlap and the conflict between the trade and environmental agreements that govern the transboundary movement of GMOs, particularly the SPS Agreement and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity.26 There has been heated disagreement over the extent of the overlap between those agreements and which agreement should prevail in the event of a conflict.27 As explained above, the recent decision in the EC-Biotech case left many questions unanswered.

This article contributes to the trade and environment literature and to the literature on environmental justice by refraining the dispute over GMOs as an environmental justice issue and by placing this controversy in the context of the historic and ongoing dispute between developed and developing countries over the rules governing trade in conventional agricultural products.28 The article argues that GMOs cannot be evaluated in clinical isolation from the larger controversies over agricultural trade and that environmental justice is a useful framework for integrating the environmental, human rights, and trade concerns raised by GMOs. By grounding its analysis in environmental justice, the article seeks to highlight the unique risks and benefits of biotechnology for developing countries, to examine the deficiencies in the existing trade and environmental agreements applicable to GMOs, and to propose an alternative approach compatible with environmental justice.

Part I of the article explains the relevance of environmental justice to the controversy over GMOs and places the GMO debate in historical context. Part II analyzes the socioeconomic and environmental risks and benefits of agricultural biotechnology for developing countries. Part III examines the international regulatory framework applicable to agricultural biotechnology, discusses the WTO dispute settlement panel's decision in the EC-Biotech case, and assesses the adequacy of this regulatory framework for addressing the environmental justice implications of GMOs. Part IV proposes an alternative regulatory framework that promotes environmental justice by better integrating trade, environmental protection, and human rights.

I. ENVIRONMENTAL JUSTICE AND THE GMO CONTROVERSY

In order to explain the relevance of environmental justice to contemporary debates over GMOs, this Part provides a brief overview of the scholarly literature on environmental justice and highlights several themes of particular relevance to an environmental justice analysis of agricultural biotechnology. It then examines the causes of environmental injustice in the developing world by analyzing the relationship among poverty, hunger, and environmental degradation. Finally, it places the controversy over GMOs in historical context in order to underscore the underlying structural inequities in agricultural trade and production that perpetuate environmental injustice in developing countries.

A. INTERNATIONAL ENVIRONMENTAL JUSTICE: INTEGRATING HUMAN RIGHTS AND ENVIRONMENTAL PROTECTION

Environmental justice refers to both a social movement in developed and developing countries29 and an increasingly important paradigm through which to evaluate domestic and international environmental law.30 Much of the environmental justice literature in the United States has emphasized the disproportionate concentration of environmental hazards in poor and minority communities.31 The location of hazardous waste landfills, polluting industry, and other undesirable facilities in these communities exposes the most socially and economically disadvantaged populations to the health risks associated with high levels of air and water pollution.32 Environmental justice is also concerned with the inequitable distribution of environmental amenities (such as parks, recreation areas, and open space)33 and vital environmental services (such as flood control and emergency response).34 For example, the inadequate rescue and relocation of thousands of mostly African-American, public transit-dependent New Orleans residents by federal, state, and local officials in the aftermath of Hurricane Katrina brought into sharp relief the fact that poor people and people of color are disproportionately burdened by environmental hazards, under- protected by governmental authorities, and underserved by public projects and amenities.35 The scholarship on international environmental justice has likewise emphasized the inequitable distribution of the environmental costs of globalization between developed and developing countries and the disproportionate concentration of environmental hazards in poor and marginalized communities in the developing world.36 In the context of the most widely recognized environmental problems (such as the hazardous waste trade, climate change, and deforestation), the development policies and consumption patterns of developed countries are placing unsustainable pressures on the global environment, and developing countries and poor populations across the globe are bearing a disproportionate share of the environmental costs.37

This distributional inequity is most evident in the export of polluting industries and hazardous wastes from wealthy, developed countries to poor developing countries in Asia, Africa, and Latin America.38 Developing countries have become attractive sites for hazardous waste disposal due to weak environmental regulation and lax enforcement.39 Furthermore, poverty and debt create strong incentives for developing countries to sacrifice the health and well- being of their citizens by accepting hazardous waste shipments from wealthy nations.40 While elites in developing countries may be able to insulate themselves from the consequences of the hazardous waste trade by residing in communities with better air and water quality, the poor often live and work in close proximity to environmental hazards.41 Despite efforts by the international community to regulate the hazardous waste trade by treaty, the illegal export of hazardous waste remains a pressing environmental concern.42 In September 2006, for example, thousands of people in the Ivory Coast were exposed to a toxic cocktail of petrochemical waste and caustic chemicals when a Greek-owned tanker leased by a Swiss corporation headquartered in the Netherlands dumped its deadly cargo just outside the city of Abidjan.43

Distributional inequity is also evident in the context of natural resources. The vast majority of the world's poor are located in rural areas in the developing world, and depend on forests, fisheries and agriculture for their livelihoods.44 Ecosystem goods and services (including crops, lumber, fish, and agro-forestry products, as well as services such as flood control and maintenance of soil fertility) are often the only capital assets to which the poor have access.45 Regrettably, rural dwellers in developing countries often find themselves in direct conflict with powerful industries (such as large-scale agriculture, commercial fishing, mining, or logging) over access to natural resources.46 Lacking the ability to obtain redress through government bureaucrats, lawmakers, or courts, these rural dwellers often resort to extra-legal collective action in order to resist environmentally destructive projects that deprive them of the ecological necessities of life, such as food, water, and land.47 Many environmental justice struggles in developing countries have been spearheaded by local and indigenous farming communities in opposition to development strategies that threatened their lands, their livelihoods, and the health of their ecosystems.48 These environmental justice struggles draw their activist base from economically and politically marginalized communities directly affected by environmental degradation who view the environmental conflict as part of a larger struggle for social and economic justice.49

One of the objectives of environmental justice is to promote equitable access to environmental necessities and to ensure that no communities are disproportionately burdened by environmental degradation.50 Human rights law is an important tool for securing environmental justice. Indeed, environmental justice is premised on fundamental human rights, including the rights to life, health, and cultural integrity, as well as the emerging right to a healthy environment.51

Food is the quintessential environmental necessity without which human life cannot be sustained. The right to food is recognized as a fundamental human right in Article 25 of the Universal Declaration of Human Rights52 and in Article 11 of the International Covenant on Economic, Social and Cultural Rights.53 The United Nations Convention on the Rights of the Child also imposes a duty on governments to provide adequate food.54 Food security is therefore an important environmental justice issue.55

Based on the foregoing overview of the environmental justice literature, an environmental justice analysis of agricultural biotechnology must evaluate both the socioeconomic and environmental implications of this technology. It must examine the impact of this technology on food security and on the livelihoods of vulnerable populations in developing countries, such as small farmers and indigenous communities. Finally, it must assess the North-South distribution of the benefits and burdens of this technology.

B. THE ROOTS OF INTERNATIONAL ENVIRONMENTAL INJUSTICE: POVERTY, HUNGER AND ENVIRONMENTAL DEGRADATION

In order to evaluate the environmental justice implications of agricultural biotechnology, it is important to understand both the extent and the underlying causes of hunger and natural resource degradation in the developing world.

Although per capita food production has increased dramatically in recent decades, there are over 800 million people in the developing world who suffer from chronic hunger and malnutrition.56 Malnutrition contributes to the death of nearly six million children every year in developing countries57 and costs developing countries billions of dollars in foregone economic activity.58 Despite the commitment by member countries of the United Nations to halve the number of undernourished people in the world by 2015 (using 1990- 1992 as a baseline), virtually no progress has been made toward this target in recent years.59

Food insecurity in the developing world is often exacerbated by ill-conceived agricultural development projects that favor large- scale, industrial production of crops and animals at the expense of the needs of small farmers.60 These large-scale industrial agricultural projects also generate a wide range of environmental problems that compromise food production, including deforestation, soil degradation, loss of biodiversity, and contamination of surface and groundwater supplies.61 Indeed, according to the United Nations Millennium Ecosystem Assessment Report, natural resource degradation is occurring most rapidly in the world's poorest regions and threatens to increase poverty and exacerbate hunger by disrupting vital ecosystem services, such as water filtration, soil formation, flood control, crop pollination, and food provision.62

Four basic propositions shed light on the underlying causes of hunger and environmental degradation in the developing world and suggest potential solutions.

First, hunger in the developing world is a function of poverty rather than food scarcity. In the last several decades, global food production has far outpaced population growth,63 and many developing countries experiencing chronic malnutrition are net food exporters.64 People go hungry because they are poorbecause they lack the means with which to purchase or grow food.65 Efforts to tackle undernourishment must therefore focus on poverty reduction rather than merely boosting food production.

Second, poverty and undernourishment are predominantly concentrated in rural areas in the developing world. Despite the global trend toward urbanization, some seventy-five percent of the developing world's poor reside in rural communities.66 The majority are small farmers whose livelihoods depend on marketing their agricultural products.67 Consequently, the provision of free or low cost food to developing countries through aid or trade may exacerbate hunger by depressing food prices and undermining the livelihoods of small farmers.68

Third, economic diversification and industrialization are necessary to promote food security at the national level.69 The most food-insecure developing countries are those that depend on the export of a handful of agricultural commodities for a substantial portion of their foreign exchange earnings.70 Adverse weather, pest infestations, market price fluctuations, and the declining terms of trade for agricultural commodities vis-a-vis manufactured goods can depress export earnings and deprive these countries of the resources necessary to finance food imports and productive investment.71 Consequently, developing countries must resist development strategies that reinforce agro-export specialization.

Fourth, biological diversity is necessary for the health and resilience of the world's food supply.72 The replacement of indigenous crop varieties and biodiverse cultivation systems with monocultures increases vulnerability to pests and disease, diminishes soil fertility, promotes dependence on toxic agrochemicals, increases the likelihood of catastrophic crop failure in the event of blight, and adversely affects human nutrition by reducing the variety of foods consumed.73 Even though thousands of crops have been cultivated since the dawn of agriculture, the global food supply currently depends on approximately 100 species of food crops.74 Just four of these crops (corn, wheat, rice and potatoes) supply over sixty percent of the world's dietary energy needs.75 Thus, development strategies that encourage monocultural production techniques render our food supply vulnerable to catastrophic disruptions of the food supply akin to the Irish potato famine.76 In order to appreciate the relevance of these points to the ongoing controversy over GMOs, it is essential to place this controversy in the context of historic and contemporary debates over agricultural trade policy.

C. THE GMO CONTROVERSY IN HISTORICAL CONTEXT

The controversy over GMOs has its genesis in patterns of agricultural trade and production that disadvantage developing countries and contribute to poverty, hunger and environmental degradation.

1. The Colonial Legacy

The saga begins with colonialism, which was based in part on the extraction of the resources of colonial possessions for the benefit of colonizing nations.77 As a consequence of colonialism, most developing countries were integrated into the world economy as producers of natural resources and consumers of imported manufactured goods.78 Economic specialization in agro-export production diverted high quality crop land from food production to cash crop production and encouraged dependence on food imports to satisfy domestic nutritional needs.79 In developing countries that practiced plantation agriculture, colonialism generated poverty and inequality by concentrating land ownership in the hands of the rural elite while relegating small farmers to marginal, ecologically fragile lands.80 Economic specialization in agro-export production also degraded the environment by replacing countless varieties of indigenous crops with genetically uniform crops that required the application of large amounts of agrochemical inputs.81

Colonialism ensured that developing countries would enter the global economy in a structurally disadvantageous position. In order to facilitate colonial rule, colonial authorities discouraged the development of indigenous economic capacity and indigenous government institutions.82 Moreover, the agro-export specialization imposed during the colonial period deprived developing countries of the steady income streams necessary for productive investment by subjecting export revenues to the volatility of agricultural commodity markets and to the declining terms of trade for agricultural products in relations to manufactured goods.83 When political independence was finally achieved, the former colonies, were at an enormous disadvantage in the global marketplace,84 and most continued to specialize in agro-export production and to import manufactured goods.85

In short, colonialism transformed self-reliant subsistence economies into economic satellites of the developed world that remained dependent on the export of raw materials and on the import of manufactured goods. Many of these former colonies were rendered destitute, ecologically vulnerable, dependent on imported food to satisfy domestic nutritional needs, and plagued with poverty and inequality.

2. The Green Revolution

The saga of agriculture in the developing world continues with the Green Revolution. The Green Revolution was a post-World War II philanthropic effort to reduce world hunger by increasing global crop yields.86 With the support of the Ford and Rockefeller Foundations, international crop breeding institutions developed new varieties of rice, wheat, and corn that were more responsive than traditional varieties to the application of synthetic fertilizers and controlled irrigation.87

The Green Revolution was a tremendous success from the standpoint of food production. Food production in the developing world more than doubled between 1960 and 1985 and kept well ahead of population growth.88 However, as explained above, the underlying cause of hunger is poverty, and efforts to address undernourishment must therefore be evaluated on the basis of their impact on poverty and inequality.

The Green Revolution exacerbated hunger in the developing world by aggravating poverty and inequality.89 First, the Green Revolution disproportionately benefited wealthy farmers because many poor farmers could not afford the expensive inputs required to achieve high yields, including synthetic fertilizers, chemical pesticides, and irrigation equipment.90 Second, the glut in world food production resulting from the Green Revolution depressed agricultural prices and rendered many small farmers destitute.91 Third, the Green Revolution's emphasis on boosting food production was often promoted as an alternative to land reform and other redistributive measures-the very measures that have achieved the greatest success in alleviating poverty, promoting economic development, and enhancing food security.92 As one commentator pointedly observed, "The [U.N. Food and Agriculture Organization's] much heralded Green Revolution, with its technologically generated maximum yields, has led in India, Thailand, Mexico and elsewhere to the concentration of land among those with the most capital, and to a veritable army of landless peasants."93

The Green Revolution also produced serious environmental degradation in developing countries. Farmers throughout the developing world abandoned ecologically sustainable low-input agricultural practices in favor of uniform seeds, chemical fertilizers, and synthetic pesticides manufactured by transnational corporations based in the industrialized world.94 The environmental consequences of this dramatic shift to industrial agriculture included loss of soil fertility, depletion of groundwater reserves, agrochemical contamination of surface waters and groundwater, loss of ecosystem biodiversity, loss of traditional food crops, increased pesticide-related illness, narrowing of the genetic basis of the world's food supply, and heightened vulnerability of the global food supply to catastrophic blight.95 Indeed, in many areas of the world, the deterioration in soil quality associated with the Green Revolution ultimately depressed agricultural productivity.96

Finally, the Green Revolution coincided with the concentration of market power in a handful of agrochemical conglomerates that supplied the pesticides, fertilizers, seeds and machinery needed for capital-intensive agricultural production.97

3. Trade, Aid, and Poverty

The plight of small farmers in the developing world was exacerbated by the trade and aid policies of wealthy industrialized countries in the aftermath of World War II. In the post-war period, the United States and Western Europe generously subsidized the agricultural sector and used a variety of tariff and non-tariff import barriers to protect their farmers from foreign competition.98 By contrast, most developing countries taxed the agricultural sector to finance industrialization and lacked the resources to provide farmers with significant subsidies.99 The subsidies and import barriers maintained by developed countries were largely permitted by the 1947 General Agreement on Tariffs and Trade (1947 GATT), which contained a variety of exceptions and omissions that allowed agricultural protectionism to flourish.100

As a consequence of government subsidies and technological innovation, food production in the United States overwhelmed domestic demand, producing a glut on the market and depressing the income of agricultural producers.101 Agribusiness executives and political leaders devised a solution to the problem of overproduction: dispose of the surplus production as food aid, and use the food aid as political leverage and as a means of creating new markets for U.S. agricultural exports.102 Under U.S. Public Law 480 (the so-called "Food for Peace Program"),103 surplus agricultural production was made available to developing countries free of charge or at reduced prices.104 At the same time, the United States continued to subsidize domestic agricultural production and to use tariff and non-tariff barriers to protect its markets from foreign competition.105 Regrettably, Public Law 480 and the subsidies and import barriers maintained by the United States and by other developed countries increased poverty and hunger in the developing world by depressing agricultural commodity prices, undermining the livelihoods of poor farmers, and depriving developing countries of the foreign exchange earnings needed to import food and manufactured products.106

4. The Debt Crisis and the Double Standard in International Agricultural Trade

The debt crisis of the 1980s ushered in a double standard in international agricultural trade that devastated rural livelihoods and accelerated environmental degradation in the developing world. The debt crisis was triggered by the quadrupling of petroleum prices by the Organization of Petroleum Exporting Countries (OPEC) in 1973.107 Many developing countries borrowed money from commercial banks simply to pay for fuel and for petroleum-based agricultural inputs.108 When a second OPEC oil price increase in 1979-80 caused interest rates to skyrocket at a time when agricultural commodity prices had plummeted, many developing countries were unable to repay their debts.109 By the mid1980s, two-thirds of African countries and nearly three-quarters of Latin American countries had adopted structural adjustment programs mandated by the World Bank and the IMF in order to restructure existing debt or to obtain new loans.110

Structural adjustment reinforced the crippling dependency of developing countries on agro-export specialization and inflicted serious environmental damage. Developing countries were instructed to maximize agricultural exports in order to generate the revenue to service their foreign debt.111 The drive to increase agricultural exports harmed the environment by promoting the expansion of chemical-intensive industrial agriculture.112 Ironically, the glutting of world markets by developing country exporters depressed agricultural prices even further and reduced the export earnings available for debt servicing.113 Structural adjustment also introduced a double standard that continues to plague world agricultural trade: protectionism for the wealthy and free markets for the poor. As a condition of debt restructuring, developing countries were required to institute a full range of free market economic reforms, including reductions in government spending, privatization of state enterprises, elimination of subsidies, lowering of tariffs, and elimination of non-tariff import barriers.114 No such requirements were imposed on developed countries. Indeed, developed countries continued to subsidize and protect their agricultural producers115 while benefiting from the relative market openness in developing countries.116 The elimination of tariff and non-tariff import barriers in developing countries exposed their small farmers to ruinous competition from highly subsidized U.S. and European agricultural producers.117 The vulnerability of developing country farmers was compounded by the elimination of subsidized credit, the reduction of extension services, and the withdrawal of government assistance programs.118

The WTO Agreement on Agriculture purported to mitigate these inequities and to "establish a fair and market-oriented agricultural trading system" by gradually dismantling agricultural subsidies and tariffs.119 Regrettably, the Agreement reinforced the international double standard. While ambiguities in the Agreement's key provisions enabled developed countries to maintain high levels of agricultural protectionism, the Agreement did succeed in prohibiting developing countries that did not historically subsidize agriculture from doing so in the future.120

As a consequence of this double standard in the rules governing international agricultural trade, agricultural producers in the United States and the European Union are impoverishing millions of small farmers in the developing world by dumping agricultural commodities on world markets at prices below the cost of production.121 According to studies undertaken by the Minneapolis- based Institute for Agriculture and Trade Policy, the United States exports cotton at 47 percent below the cost of production, wheat at 28 percent below the cost of production, rice at 26 percent below the cost of production, and corn at 10 percent below the cost of production.122

It is unclear, however, that eliminating U.S. and EU agricultural subsidies would be sufficient to raise world market agricultural commodity prices in the absence of measures to address market concentration in the agro-food sector.123 Low agricultural commodity prices are due, at least in part, to the market power of the agribusiness conglomerates that dominate world agricultural trade.124 Three companies carry out 82 percent of all U.S. corn exporting.125 Four companies control 61 percent of U.S. flour milling capacity.126 Four companies own 60 percent of U.S. terminal grain handling facilities.127 The global seed and pesticide markets are similarly concentrated.128 The domination of agricultural markets by a small number of agribusiness conglomerates enables these companies to dictate low prices for agricultural output while charging high prices for inputs such as seeds and pesticides.129 Large growers in the United States are compensated for these distorted prices with generous agricultural subsidies, while family farmers are increasingly driven out of business.130 In addition, these agribusiness conglomerates wield considerable political influence and have persuaded U.S. government officials to demand greater access to developing country markets while maintaining lavish agricultural subsidies in the domestic market.131

In sum, the rural sector in the developing world is in profound crisis. Within the last decades, billions of small farmers have been driven off the land and into urban slums.132 The exodus from rural areas has been so dramatic that urban employment has been unable keep pace with the influx of migrants.133 The double standard in world agricultural trade and the market distortions caused by corporate near-monopolies exacerbate this crisis by undermining the precarious livelihoods of poor farmers. It is in this context that one must evaluate the promise and the perils of biotechnology.

II. GMOs AND JUSTICE: THE ENVIRONMENTAL AND SOCIOECONOMIC IMPACTS OF AGRICULTURAL BIOTECHNOLOGY IN DEVELOPING COUNTRIES

The proponents of agricultural biotechnology claim that GM crops will promote food security and protect the environment by boosting food production, enhancing the nutritional content of food, reducing the use of pesticides and herbicides, and producing crops that can withstand environmental stresses such as drought, heat, frost, and soil salinity.134 The critics of biotechnology contend that GM crops will irreversibly diminish biodiversity, increase agrochemical use, undermine traditional agricultural practices, accelerate corporate domination of the global food supply, and increase hunger and poverty.135

This section draws upon the insights gleaned from the preceding sections in order to assess the impact of biotechnology on the factors that produce hunger and environmental degradation in the developing world. Because GM crops have not been widely cultivated in the developing world, the conclusions drawn are necessarily preliminary. Before embarking on an assessment of the socioeconomic and environmental risks and benefits of GM crops, it is useful to highlight a few features of the biotechnology industry.

While the Green Revolution was a public sector initiative to increase food production in the developing world, the biotechnology industry is driven by profit.136 The industry is highly concentrated and is characterized by oligopolistic competition among a few large corporations.137 Approximately 88 percent of all GM crops grown worldwide in 2004 were the product of Monsanto seeds.138 Six corporations (BASF, Dow, Bayer, DuPont, Monsanto, and Syngenta) control 75-80 percent of the global pesticides market.139 Two corporations (Monsanto and DuPont) dominate world seed markets for corn and soybeans.140

The biotechnology industry maximizes profits by marketing its products to wealthy commercial farmers in affluent countries while devoting scant resources to the needs of poor farmers in the developing world.141 Most of the industry's research is devoted to export crops grown in large-scale monocultures.142 Only one percent of the industry's research targets small-scale producers.143 Despite the diversity of GM crops that could be developed, almost all of the world's GM acreage consists of four crops (soybeans, corn, cotton, and canola), and most of these crops are engineered for herbicide tolerance or insect resistance.144 It is no coincidence that these widely commercialized GM crops are the lucrative export crops cultivated by U.S. agribusiness.145 Finally, because GM seeds are subject to strict intellectual property protection, farmers using these seeds must pay a higher premium for the seeds, and they must forego their traditional rights to save, share, and modify these seeds; farmers are also contractually bound to use agrochemicals of a particular seed manufacturer.146

A. SOCIOECONOMIC IMPACTS OF GM CROPS

1. Marginalization of Small Farmers

The introduction of GM crops in developing countries threatens to exacerbate poverty and inequality by reproducing the anti-poor bias of the Green Revolution. First, GM crops will disproportionately benefit wealthy farmers because most poor farmers will be unable to obtain the cash or credit to purchase the patented seeds and the expensive chemical inputs necessary to cultivate GM crops.147 second, the obligation to purchase new seeds every season, rather than saving seeds for replanting, erodes farmers' traditional rights to save and exchange seeds, and may be financially prohibitive.148 Indeed, farmers may not understand this restriction until the biotechnology industry takes aggressive measures to collect royalties for these seeds.149 Third, small farmers who incur debt in order to purchase the expensive seeds and chemical inputs run the risk of bankruptcy if yields fluctuate or if output prices decline.150 Fourth, even poor farmers who do not purchase GM seeds may nevertheless incur substantial economic losses if the GM seeds boost the yields of wealthy farmers and depress agricultural commodity prices.151 Fifth, GM crops may exacerbate rural poverty by enabling large-scale producers to reduce the use of manual labor (for example, by using herbicide-tolerant crops to reduce the need for manual weeding).152 In developing countries, where labor is abundant, the labor-saving benefits of GM seeds will likely accrue to large commercial farmers at the expense of landless laborers and small farmers who supplement their income through part-time employment on large commercial farms. Finally, if GM crops contaminate non-GM crops, farmers in developing countries who export their crops to countries that restrict GM products (such as EC member countries) could suffer enormous financial losses. In short, GM crops pose significant socioeconomic risks to small farmers.

The adoption of GM seeds also raises a variety of risks associated with the corporate domination of the food supply. Farmers who purchase seeds produced by the biotechnology industry may suffer financial losses because these seeds may not be suitable for local conditions, such as drought and salinity.153 In Brazil and Paraguay, for example, many farmers experienced disappointing harvests and faced mounting debt when their GM soybean crops performed worse than conventional varieties during drought conditions.154 Regrettably, the proprietary nature of GM seeds limits the ability of farmers to modify and adapt these seeds to unique local requirements.155 Furthermore, as farmers become less self-reliant and increasingly dependent on seeds and chemical inputs manufactured by the agrochemical industry, many will lose the cultural knowledge and skills required to grow subsistence crops using traditional methods.156 This loss of skills and cultural knowledge threatens to undermine the cultural integrity of local and indigenous communities and to expose these communities to catastrophic supply disruptions or onerous debt if input prices increase or output prices decline.157 Finally, regardless of whether developing country farmers purchase GM seeds, the biotechnology industry may cause enormous economic dislocations by developing transgenic substitutes for developing country exports, such as cocoa, palm oil, and coconut oil.158 Based on the foregoing analysis, it is unlikely that the introduction of the most commonly commercialized GM crops in developing countries will reduce poverty, promote food security, and enhance the well-being of small farmers. On the contrary, GM crops are likely to be structurally biased against small farmers due to the high cost of the seeds and inputs, the intellectual property protections, and the increasing unavailability (in the aftermath of structural adjustment) of subsidized credit, extension services, and other government-funded programs to provide small farmers with technical and financial assistance.

2. Potential Increase in Food Production

While GM crops have the potential to enhance agricultural productivity, there is widespread consensus that GM crops, unlike their Green Revolution counter parts, have not to date boosted food production.159 Studies suggest that yields are either lower than or at most equivalent to non-GM varieties.160

Even if GM crops did boost food production, poverty might not necessarily decline. As the experience of the Green Revolution illustrates, poor farmers in developing countries will not be able to benefit from this expensive technology in the absence of cash, credit, technical assistance, and access to markets.161 Indeed, increased food production could further marginalize poor farmers by glutting markets and depressing agricultural prices.162

3. Enhancement of the Nutritional Quality of Food

Genetic modifications that enhance the nutritional quality of food could be of considerable benefit to malnourished individuals in developing countries. For example, Golden Rice is a genetically modified rice that produces beta-carotene, a substance that the human body can convert to Vitamin A.163 The proponents of biotechnology claim that Golden Rice can address the problem of Vitamin A deficiency, a condition that kills one million children each year and produces over fourteen million cases of eye damage in pre-school children in developing countries.164 However, critics of biotechnology have raised several important concerns in the context of Golden Rice that are relevant to all genetic modifications designed to enhance nutritional quality. First, it is unclear whether malnourished individuals consume sufficient fat to metabolize the beta-carotene in Golden Rice and convert it to Vitamin A.165 second, the yellow color of the rice may cause it to be rejected for cultural reasons.166 Third, Vitamin A deficiency is a symptom of diminished crop and dietary diversity. Rather than genetically altering the rice consumed by the poor, it might be preferable to address the underlying problem by introducing multi- cropping in rice fields in order to encourage rice farmers to cultivate leafy green vegetables that provide Vitamin A and a whole range of other micronutrients.167

4. Production of Crops That Can Withstand Environmental Stresses

The production of GM crops that can withstand environmental stresses such as drought, heat, frost, and soil salinity would certainly be beneficial to small farmers in developing countries. While research on such crops is taking place,168 the profit-driven nature of the biotechnology industry raises questions about whether such crops will be made commercially available at prices that small farmers can afford.169

B. ENVIRONMENTAL IMPACTS OF GM CROPS

This section examines the environmental impacts of the two types of genetic modifications that account for almost all of the world's GM-planted acreage: herbicide-tolerant crops and insect-resistant crops. Herbicide-tolerant crops are designed to resist the application of broad spectrum herbicides (such as Monsanto's Roundup), thereby enabling the herbicide to kill weeds without damaging the crops.170 In theory, herbicide tolerant crops will require fewer applications of herbicides, will decrease soil erosion by requiring less tilling or mechanical weed control, and will diminish the need for manual weeding.171 Insect-resistant crops incorporate microbial pesticides (such as Bacillus thuringiensis, commonly known as Bt) that kill susceptible pests, thus reducing the need to apply chemical insecticides.172

1. Erosion of Biodiversity

One of the primary concerns about GM crops is that they reinforce the monocultural production techniques introduced during the colonial era and reinforced by the Green Revolution and by structural adjustment. As explained in Part I, the displacement of indigenous crop varieties and biodiverse cultivation systems by monocultures increases vulnerability of crops to pests and disease, depletes the fertility of the soil, increases dependence on synthetic fertilizers and pesticides, increases the probability of catastrophic crop failure in the event of blight, and adversely affects human nutrition by reducing the variety of foods consumed. The cultivation of GM crops is thus inherently inconsistent with the biodiversity necessary to promote ecologically sustainable food production.

2. Acceleration of Resistance to Herbicides and Insecticides

The proponents of biotechnology claim that GM crops will benefit the environment by reducing the use of herbicides and insecticides. The critics contend that GM crops will accelerate the evolution of herbicide- and insecticide-resistance, thereby necessitating the application of greater amounts of toxic agrochemicals.

A comprehensive review of the literature on GM crops published in 2007 by Friends of the Earth International (FOEI) concluded that the cultivation of GM crops in the United States has resulted in a significant increase in herbicide use.173 One of the reasons for greater herbicide use was the evolution of herbicide resistance by weeds, which forced farmers to apply other, more toxic herbicides.174 The authors of the FOEI study suggest that the steep increase in the number of weeds resistant to Monsanto's herbicide Roundup is a direct consequence of the increased and more frequent use of Roundup associated with the cultivation of Roundup-resistant soybeans, cotton, and corn.175 Thus, far from reducing herbicide use, the introduction of herbicide tolerant crops appears to have increased both the quantity and the toxicity of the herbicides applied.

A related concern about GM crops is that the widespread cultivation of Bt-resistant crops might likewise accelerate the development of Bt resistance in insects and result in the use of greater quantities of more toxic insecticides.176 The development of Bt resistance will diminish the utility of Bt not only for farmers growing Bt-resistant crops but for neighboring farmers who use microbial Bt as a natural insecticide on conventional crops.177 Organic farmers and poor farmers in developing countries who cannot afford synthetic pesticides are those likely to be most affected. Consequently, developing countries considering the adoption of Bt- resistant crops should carefully evaluate the socioeconomic implications of potential acceleration of Bt resistance in insects.

3. Genetic Pollution and the Creation of Superweeds

Other risks associated with GM crops are the transfer of genes from GM crops to conventional crops (genetic pollution) and the development of herbicide-resistant or insect-resistant superweeds.

One possibility is that GM crops may themselves become weeds. For example, herbicide-tolerant cotton seeds left in the fields from the previous season's crop may germinate in the current wheat crop, thus necessitating the application of a more potent weed-killer.178

Another possibility is that GM crops might transfer transgenes conferring herbicide resistance or insect resistance to other plants, which could then become superweeds immune to herbicides or to insect predators.179 The ecological consequences of creation and dissemination of such superweeds within the farm and into the broader environment are difficult to predict.180 The control of superweeds immune to the most commonly used herbicides might require the use of more toxic herbicides, resulting in greater environmental harm and higher costs to farmers.181

This risk of gene transfer is particularly high for crops grown in close proximity to wild relatives.182 While there is consensus among scientists that transgenic crops will eventually transfer transgenes to wild relatives, there is disagreement on the seriousness of the resulting consequences.183 Genetic transfers may pose particular threats in countries that are the centers of diversity for certain crops (such as corn in Mexico) if they result in a loss of the genetic variability that future generations will need in order to adapt crops to changing environmental conditions.184 Moreover, plants carrying pharmaceutical and industrial traits, such as plants engineered to produce contraceptives, growth hormones, blood thinners, industrial enzymes, and vaccines, represent the next wave of GM crops.185 The transfer of transgenes from industrial and biopharmaceutical crops to food crops may contaminate the food chain and pose grave human health and environmental risks.186 4. Harm to Non-Target Organisms

Finally, GM crops may harm non-target organisms, including beneficial soil organisms and the natural predators of the target insect pest.187 If the cultivation of GM crops by farmers in developing countries harms natural predators of the target insect pest, those most affected are likely to be neighboring farmers who rely on such predators for insect control because they cannot afford or do not want to use chemical pesticides.188 Similarly, if the cultivation of GM crops by farmers in developing countries harms beneficial soil organisms, those most affected are likely to be farmers who rely on such soil organisms to maintain soil fertility because they cannot afford or do not want to use chemical fertilizers.189 The disruption of natural pest control and the reduction of soil fertility will depress agricultural production.190 Agrochemical use is likely to increase in order to replenish soil fertility and to combat pests-with resulting harm to human health and the environment.191

In sum, the GM crops that promise to diminish agrochemical use may in fact increase the use of chemical pesticides and synthetic fertilizers by accelerating herbicide resistance and insecticide resistance, by harming the predators of target species and by harming beneficial soil organisms. GM crops also introduce novel risks, such as the transfer of transgenes to conventional crops with uncertain but potentially serious consequences. Far from being an alternative to environmentally harmful industrial agriculture, GM crops threaten to reinforce industrial agriculture in the developing world.

C. THE ENVIRONMENTAL JUSTICE IMPLICATIONS OF GMOS

GMOs pose unique socioeconomic and environmental risks in developing countries. Based on the analysis set forth in the preceding sections of this Part, the environmental justice implications of GMOs can be summarized as follows:

First, GMOs pose risks to the livelihoods of small farmers. GM crops may replicate the anti-poor bias of the Green Revolution because many small farmers will be unable to afford the patented seeds (which must now be purchased every planting season) and the expensive agrochemical inputs necessary to cultivate them. Small farmers who incur debt to purchase these costly inputs may face bankruptcy if agricultural commodity prices decline. Furthermore, GMOs may increase poverty and inequality by reducing the need for manual labor, depressing agricultural commodity prices (to the extent that they successfully boost food production), and contaminating the crops that small farmers export to EC member states and other countries that restrict GMOs. Because seventy-five percent of the developing world's malnourished people are rural dwellers, any impairment of small farmers' precarious livelihoods threatens the fundamental human right to food.

Second, the cultivation of GM crops threatens to increase the power of transnational agribusiness over the world's food supply, to deprive small farmers of their traditional rights to save, share and modify seeds, and to accelerate the loss of valuable cultural knowledge about environmentally-friendly traditional cultivation methods.

Third, GMOs pose environmental risks that will disproportionately affect small farmers. The development of insect resistance to the microbial insecticide Bt, the dissemination of herbicide-resistant superweeds, injury to the natural predators of target pests, and harm to beneficial soil organisms will have particularly severe effects on the livelihoods of poor farmers who rely on low-cost, natural methods to control pests and maintain soil fertility and who cannot afford expensive chemical inputs.

Finally, the risks associated with genetic pollution will be higher in developing countries that are the centers of diversity for certain crops (such as corn in Mexico), particularly if the gene transfer results in the loss of genetic variability necessary to adapt crops to changing environmental conditions or in the transfer of pharmaceutical and industrial traits to food crops.

In short, the cultivation of GM crops in developing countries will benefit large commercial farmers and the agribusiness conglomerates that dominate seed and agrochemical markets while imposing serious environmental and socioeconomic risks on small farmers.

The remainder of this article examines the ability of the international legal instruments governing trade in GMOs to address the environmental and socioeconomic concerns raised in this Part and proposes alternative approaches more compatible with international environmental justice.

III. THE INTERNATIONAL REGULATORY FRAMEWORK FOR TRADE IN GMOS

The international trade in GMOs is governed primarily by the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement)192 and by the Cartagena Protocol on Biosafety to the Convention on Biological Diversity (the Biosafety Protocol).193 This Part summarizes the key provisions of the SPS agreement and the Biosafety Protocol, discusses the WTO dispute settlement panel's decision in the EC-Biotech case, and evaluates the ability of this legal regime to adequately address the environmental justice concerns posed by agricultural biotechnology in the developing world.

A. THE SPS AGREEMENT

The SPS Agreement governs health and safety regulations known as sanitary and phytosanitary measures (SPS measures). The SPS Agreement defines SPS measures as measures applied to protect human, animal, or plant life or health within the territory of the WTO member from a series of enumerated risks, including risks arising from additives and contaminants in food and risks arising from the entry or spread of pests, diseases, disease-carrying organisms, and disease-causing organisms.194

The primary purpose of the SPS Agreement is to prevent WTO members from enacting protectionist measures disguised as health and safety regulations.195 The SPS Agreement seeks to achieve this objective by promoting harmonization of international health and safety standards196 and by requiring WTO members who adopt health and safety measures that are more protective than international standards to justify these measures on the basis of sound science.197

Under the SPS Agreement, SPS measures that conform to international standards, such as those established by the Codex Alimentarius Commission, the International Plant Protection Convention, or the International Office of Epizootics, are presumed to be consistent with the SPS Agreement and with the 1994 General Agreement on Tariffs and Trade.198

SPS measures that are more protective than international standards require scientific justification.199 Article 2.2 of the SPS Agreement requires that SPS measures be "based on scientific principles" and "not maintained without sufficient scientific evidence."200 Article 5.1 elaborates on this obligation by requiring that SPS measures be "based on" a risk assessment.201 The risk assessment must take into account the available scientific information202 and will only justify the SPS measure if there is a "rational relationship between the measure and the risk assessment."203 Moreover, the risk assessment upon which a WTO member relies need not have been carried out by that member.204 A WTO member may base its SPS measure on a risk assessment conducted by another member or by an international organization.205

If the "relevant scientific evidence is insufficient,"206 Article 5.7 of the SPS Agreement authorizes the adoption of provisional SPS measures on the basis of "available pertinent information."207 However, the WTO member is mandated to "seek to obtain the additional information necessary for a more objective assessment of risk and review the [SPS measure] accordingly within a reasonable period of time."208 What constitutes a reasonable period of time will be determined on a case-by-case basis.209

B. THE BIOSAFETY PROTOCOL

The Biosafety Protocol is the first binding international agreement that applies specifically to the transnational transfer and use of GMOs.210 The objective of the Biosafety Protocol is to "contribute to ensuring an adequate level of protection in the field of safe transfer, handling and use of biotechnology that may have adverse effects on conservation and sustainable use of biological diversity, taking also into account risk to human health, and specifically focusing on transboundary movements."211

The Biosafety Protocol requires the "advance informed agreement" of an importing country before GMOs intended to be introduced into the environment (such as seeds, fish and microorganisms) may be shipped to that country.212 Like the SPS Agreement, the Biosafety Protocol calls for a "scientifically sound" risk assessment as the central basis for decisionmaking about whether to import GMOs.213

However, the Biosafety Protocol appears to differ from the SPS Agreement in two important respects. First, the Biosafety Protocol expressly incorporates the precautionary principle and permits countries to regulate in the face of scientific uncertainty.214 Articles 10.6 and 11.8 of the Biosafety Protocol provide as follows:

Lack of scientific uncertainty due to insufficient relevant information and knowledge regarding the extent of potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of the living modified organism. . . .215

Second, the Biosafety Protocol permits countries to consider, to a limited extent, the socioeconomic impact of GM crops when making decisions about the importation of GMOs.216 Article 26 of the Biosafety Protocol permits countries to "take into account, consistent with their international obligations, socioeconomic considerations arising from the impact of [GMOs] on the conservation and sustainable use of biological diversity, especially with regard to the value of biological diversity to indigenous and local communities."217 On closer examination, the SPS Agreement and the Biosafety Protocol are not as dissimilar as they first appear. Both agreements privilege science-based decisionmaking over precaution and socioeconomic considerations.

On the question of science versus precaution, the quoted language from Articles 10.6 and 11.8 of the Biosafety Protocol suggests that precautionary measures may be appropriate when there is scientific uncertainty about the extent of an adverse impact posed by GMOs rather than scientific uncertainty about whether an adverse impact exists.218 As one commentator observes, "[t]his emphasis on the extent of an adverse impact can be interpreted as requiring prior scientific evidence of the existence of an adverse impact before precautionary action can legitimately be taken."219 In other words, the Biosafety Protocol can be construed to require a risk assessment before the precautionary principle may be invoked.220

The privileging of science is also evident in the very limited manner in which the Biosafety Protocol addresses socioeconomic considerations. A close reading of the Article 26 language quoted above reveals that the parties to the Biosafety Protocol may take into account only those socioeconomic impacts that result from harm to biodiversity.221 This provision would permit developing countries to consider the impact on small farmers and indigenous communities of harm to non-target organisms (such as the predators of target pests) and of the transfer of transgenes to non-GM crops, provided that the scientific evidence establishes the existence of these impacts. This provision would not permit developing countries to reject GMOs based on socioeconomic considerations not directly related to impacts on biodiversity, such as harm to the livelihoods of local and indigenous communities or increased dependence on proprietary seeds and other inputs produced by transnational corporations.222 Furthermore, the Article 26 proviso that countries may take socioeconomic considerations into account "consistent with their international obligations" suggests that even this very limited recognition of the socioeconomic concerns of developing countries goes no further than what the WTO already permits.223

In short, both the SPS Agreement and the Biosafety Protocol appear to privilege science-based decisionmaking and to preclude consideration of socioeconomic concerns not directly related to scientifically demonstrable actual or potential harm to biodiversity.

C. THE EC-BIOTECH DECISION

An evaluation of the compatibility with environmental justice of the international regulatory framework applicable to GMOs would not be complete without an analysis of the WTO dispute settlement panel's recent decision in the EC-Biotech case. Although the dispute was primarily between developed countries (the United States and the EC), the panel's decision has significant implications for developing countries.

In August 2003, the United States, Canada, and Argentina invoked the WTO dispute resolution mechanism to challenge the European Communities' alleged general moratorium on the approval and marketing of biotech products, the EC's failure to approve certain specific biotech products, and individual EC Member states' prohibitions (safeguard measures) on GMO products previously approved for EC-wide distribution.224 The complainants argued that the EC's general moratorium, the EC's failure to approve certain specific biotech products, and the individual EC member states' safeguard measures violated the SPS Agreement, the 1994 General Agreement on Tariffs and Trade (GATT 1994), and the Agreement on Technical Barriers to Trade (TBT Agreement).225

In its long-awaited September 2006 decision, the WTO panel concluded that the EC had applied a de facto moratorium on the approval of biotech products between June 1999 and August 2003.226 According to the panel, the European Commission and five EC member countries (Denmark, Greece, France, Italy, and Luxembourg) followed a common plan to prevent final approval of biotech products pending the adoption of new EC rules on labeling and traceability of GMOs.227

The panel determined that this general moratorium and the product- specific approval delays associated therewith resulted in "undue delay" in the EC's GMO pre-marketing approval procedures in violation of Article 8 and Annex C(l)(a), first clause, of the SPS Agreement.228 The panel also struck down the individual EC Member states' safeguard measures prohibiting specific GM products on the ground that these states violated Article 5.1 of the SPS Agreement by failing to base these safeguard measures on risk assessments.229

In November 2006, the EC announced that it would not appeal the EC-Biotech decision because the moratorium had been lifted in 2004, and the panel's decision would therefore have no substantive impact on the EC's regulatory practices.230

The key findings of the panel and their implications for the regulatory choices of developing countries are discussed below.

1. Broad Scope of the SPS Agreement

As a threshold matter, the panel examined whether the SPS Agreement applies to the EC regulatory framework for GM food and agricultural products. The panel concluded that the EC pre- marketing approval procedures for GMOs and the individual EC member states' GMO prohibitions are SPS measures covered by the SPS Agreement.231 Based upon an expansive interpretation of the SPS Agreement's definition of an SPS measure, the panel reasoned that the EC legislation and the individual EC member prohibitions fell within the scope of the SPS Agreement because their purpose was to protect the life or health of humans, animals, or plants from the risks enumerated in Annex A(l) of the SPS Agreement.232 The panel did note, however, that measures aimed at providing consumer information or at ensuring that GMO pr

Source: Georgetown International Environmental Law Review

More News in this Category