Treaties in Collision? The Biosafety Protocol and the World Trade Organization Agreements

Abstract

On January 29, 2000, over 130 countries adopted the Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Biosafety Protocol or Protocol). 1 The Protocol establishes international procedures applicable to the transboundary movement of bioengineered living organisms (referred to in the Protocol as "living modified organisms," or "LMOs"). The adoption of the Protocol marked the close of over four years of intensive, contentious, and often emotional negotiations regarding the multibillion-dollar trade in bioengineered organisms. Human beings have genetically modified plants and animals through domestication and controlled breeding for some ten thousand years with little controversy. 2 Since 1973, however, modern biotechnology techniques have enabled the transfer of genes from one species to another unrelated species. 3 For example, genes from a flounder known to survive in frigid waters have been transferred to tomatoes to make them resistant to frost; 4 and genes from a natural soil bacterium (bacillus thuringiensis) have been transferred to potatoes and corn to make them resistant to certain insects. 5 These modern techniques and the products created by them have generated considerable debate. 6 Some commentators have raised ethical and religious concerns that these techniques enable human beings to play God. 7 Others have raised health concerns that genetic modifications might produce foods that trigger allergies. 8 Still others have asserted that economic considerations argue against genetically modified crops because they might disrupt small-scale farming systems and encourage monoculture. 9 Most important as regards the Biosafety Protocol, a multilateral environmental agreement, are environmental concerns that transgenic plants might transmit their genes to other crops or wild plants through pollen dispersal or may evolve into invasive species as their superior traits allow them to out-compete other plants. 10 Thus, the objective of the Biosafety Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of Hosted by The Berkeley Electronic Press

Free and Open Source Software and Technology for Sustainable Development

“…The lack of coherence across international IP agreements and regimes has created loopholes in the agricultural biotechnology sector that are now being exploited by multinational corporate interests in most developing countries. The CBD, for instance, has been criticized for not recognizing IP protection within the context of TRIPS (Safrin, 2002). This undermines the CBD's role in conserving biodiversity and managing genetic resources.…”

Pluralism in Global Risk Regulation: The Dispute over GMOs and Trade

“…After long negotiations, the Biosafety Protocol addresses the issue in two contradictory clauses in the preamble: one emphasizes that the Protocol is not intended to change rights and obligations under other agreements, while the other insists that this proviso is not meant to subordinate the Protocol to other agreements. 22 …”

Analysis of open source biotechnology in developing countries: An emerging framework for sustainable agriculture

“…The lack of coherent international agreements has created loopholes for agricultural IPRs, particularly in the area that relates to agricultural biotechnology, therefore creating more opportunities for multinationals to exploit loopholes in legal agreements with developing countries [29]. For example, CBD was criticised for not recognising the IPRs agreement within the context of TRIPS.…”

“…Typically, law is being enforced through collaboration between national and international institutions on a global scale. Furthermore, the developing countries are under obligation in line with the TRIPS agreement for the protection of plant varieties either by patent or by other means of the IPRs system [29]. This agreement was done without necessarily considering its beneficial effects on consumers or producers and its possible impact on food security in developing countries.…”

“…The existing intellectual property rights (IPRs) relevant to agricultural biotechnology are complex [29]. Most of the international agreements focus on different aspects of agricultural IPRs that are governed by different sets of rules, guidelines and policies.…”