III. Crosscutting Principles

Several of the critical “crosscutting” principles that are recognised as such throughout the concepts of conservation and sustainable use, apply within the biosafety arena in a rather unique way – necessitating, in some cases, a careful balancing process. The most relevant of such principles are “precaution” and “development.”51 In addition, current focus of attention on intellectual property rights (IPRs) relating to genetic resources and traditional knowledge, and the role of bilateral and multilateral aid and assistance programmes present particular and unique problems, when applied to GMOs.

It is not the role of this paper to reiterate well-understood principles or to provide a general discussion of the current controversies relating to them. It is assumed that the reader is aware of these, or has access to some of the voluminous writing on these issues. What is relevant to this paper is the somewhat unique manner in which the precautionary principle, the “development principle,” IPRs, and aid programmes operate in the area of biosafety, and the manner in which they are affected by factors such as the extent of public concern about GMOs, and the belief that GMO technology is insufficiently understood and potentially unsafe. For this reason, these concepts are briefly summarised below.

A. Precautionary Principle/Approach

The precautionary approach has been adopted in a very direct way in the biosafety area, through its inclusion in the Cartagena Protocol on Biosafety. As stated there, the precautionary concept embodies an apparent recognition that determining what is an acceptable level of risk is a matter for scientists, expressly stating that “lack of scientific consensus should not necessarily be interpreted as indicating a particular level of risk, an absence of risk or an acceptable risk.”52 Thus, where researchers have failed to investigate a potential risk because they assume it is low, this fact should not necessarily constitute evidence that the risk is zero or negligible.

The application of the precautionary approach in the realm of biosafety has been integrally connected with risk management and transparent decision-making, however that connection is also the basis of contention. In some cases, it has been stated that national reliance on stringent EIA requirements stands as the implementing mechanism for the precautionary approach, so that no further reference to precaution is necessary. Even in these instances, however, the recognition of the importance of precaution is clear. In Parliamentary debate on this point in New Zealand, the then-Minister for the Environment, the Hon. Simon Upton, in general a proponent of the assessment-is-precaution position stated:

[The]“ precautionary approach”...is a question. It is a way of thinking. It is a way of approaching uncertainty. I really would be stunned if anybody could disagree with the words of this clause, which simple states that people "shall take into account the need for caution in managing adverse affects where there is scientific and technical uncertainty about those effects." I ask whether there is any business in New Zealand that would say: "Where there is technical uncertainty we shouldn’t have any regard for caution." I think that would be a most unbelievably cavalier approach. I think it would run against the grain of good business practice in every respect. These are just plain common-sense words, and no baggage or superstructure is attached to them. We should apply due caution in the light of our knowledge, and that is what everybody does every date of their lives.53

Despite these words, the fact remains that the application of precaution is still a controversial topic with regard to GMOs. Concerns escalate where, as generally, the governmental decision-maker’s expert analysis of risk and the adequacy of existing information comes primarily (directly or indirectly) from the proponent of the GMO. Thus, an element of precaution in many controlled primarily by the private sector, whose incentives for development and marketing may be greater than for assessing potential problems, and who are heavily invested in the Watson-Crick view of genetic modification.

For these critics, a statement that the GMO licensing process is a codification of precaution, is tantamount to eliminating the application of precaution for GMOs. They stress the importance of considering, in every case, the particular level of scientific certainty or consensus and evaluating the risks individually. Proponents of this argument posit a governmental obligation to implement precaution on a case-by-case basis, as an essential check on profit-motivated activities.

B. Development

The precautionary approach, however, is not the sole transcendent principle on which GMO related decision-making must rely. In many countries and contexts other principles are seen as equally relevant and are increasingly accepted as such in law and policy. Of these, the concept of sustainable development may be pre-eminent. Consequently, many commenters (particularly those from developing countries) argue that it is inappropriate to apply the precautionary approach as an inviolable rule; one must balance it against other needs.54 Where the advocate of precaution notes that lost species and ecosystems can never be recovered for future generations, the development-focused environmentalist would note that future generations may not come into being to appreciate those ecosystems without effective action on development imperatives.

Seen in this context, precaution is just one aspect of a multifaceted approach to environmental management. Education, information, recycling, clean production, waste management and adaptive management are all elements of this system. The strict precautionary approach of northern application is seen in many southern regions as a simplistic tool that is insufficient to address a very complex problem. Any decision in fulfilment of the precautionary approach would need to be based on an assessment that takes into account not only issues of uncertainty and conservation, but also the objectives of resource management.

At base, this contrasts strongly to the northern approach, under which use precaution serves as an initial “filter” to eliminate proposals that present undue risk due to lack of information. Increasingly, southern writers are instead seeing precaution as a part of the risk management decision, rather than an overarching principle – a ‘threshold question’ used to determine whether to proceed to risk management.

C. Intellectual Property Rights, Indigenous Knowledge, and Traditional Agricultural Practices

Ongoing global negotiations and practices in the area of intellectual property rights to biological and genetic information are a major component of the current discussions and controversies surrounding GMOs. Global attention to this issue arose, to some extent, out of the concepts of “access and benefit-sharing” and “traditional knowledge” under the CBD. For this reason, the focus on IPRs for biodiversity was initially on the creation of such a right. In particular, developing countries and indigenous groups emphasised the need to adequately recognise and compensate

Over time, however, another side of the IPR issue has taken the limelight - the use of IPRs as a means of preventing developing country farmers from applying conventional farming methods (especially seed saving and seed exchange) in their use those varieties.55 Concerns have often been expressed regarding the spread of this practice, as farmers in other regions begin to grow (and save) GMO seeds, which are increasingly being made a part of aid packages or provided as part of “benefit-sharing” arrangements.56

On one side, these controversies are integrally tied to the commercial viability of the GMO industry, whose R&D costs are very significant, necessitating some efforts to ensure the continuity of markets for their new products while they are under patent. On the other, there may well be significant socio-cultural and economic costs where lawsuits alleging IPRs infringement (normally an issue that arises between two or more sophisticated entrepreneurs or corporate entities) evolves into a conflict between multi-national corporations and traditional farmers.

The intractable difficulties of protecting GMO-based intellectual property rights has been one of the reasons cited for the introduction of a type of GMOs that is specifically designed to prevent these traditional activities (so-called “genetic use restriction technologies” (“GURTs”) or “terminator” seeds.) Clearly these and similarly intended products and activities may be a source of much wider socio-cultural economic and environmental effects, given that the significant change they introduce is directed at a basic element of human life (agriculture).

One legal provision that has been cited as a possible basis on which to resolve this growing problem is found in Article 27.3 of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights, which gives countries the right to “exclude from patentability… plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.” The full consequences of Article 27.3 are currently matters of intense international debate, however, it seems evident that the GMO discussion will be interlinked with the IPR issue, until this question (and the related issues of creating and implementing a “sui generis system” relating to the application of intellectual property rights to the use of genetic material) are finally resolved.

D. Bilateral and Multilateral Aid and Technical Assistance Programmes

Yet another difficult crosscutting issue relates to the role of GMOs in international development assistance projects. In a number of recent and well-publicised examples, the provision of assistance (in some instances direct food aid and famine relief) has been conditioned on the recipient country’s willingness to accept GMOs.

There are very differing views of these activities. Some contend that this approach is justified by desires to overcome progress-paralysing resistance to a technology intended to address and resolve the world crises of hunger and poverty. The counter-perception, however, is of manipulation – using a time of national crisis as a tool for forcing governments to take action against national principles and public opinion. In effect, these offers are seen as attempts to take true policy- and decision-making (weighing risks and benefits) out of the hands of national governments, by giving them an impossible choice – accept GMOs or starve. Until some level of consensus arises concerning the various questions of scientific understanding, environmental and economic impact and socio-cultural effects, these attempts at removal of a country’s unfettered right to make such a decision will appear to follow in older modes of “aid”– under which products which were banned from sale in the provider country, were then sent to developing countries as part of assistance packages. Regardless of the motivations underlying the offer, the fact remains that a decision to allow GMO introduction into the uncontrolled environment may well be irretrievable, once made. Hence, it is an essential part of the respect owed to any sovereign government that external efforts to influence that government’s decisions should involve the provision of unbiased scientific evidence and expertise, including clearer evidence regarding the ability of GMOs to achieve the benefits claimed for them, particularly in the areas of food security and agricultural productivity.

51Many identify poverty alleviation as another relevant principle, however that issue is adequately dealt with in other elements of this paper.

52Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Nairobi, 2000) Article III.4.

53New Zealand Royal Commission, 2000.

54Katerere, 2001

55In recent years, a number of cases have been filed by GMO-producing companies against farmers who are growing GMOs, without purchasing them. Most recently a farmer was sued who claims the seeds came to his land unintentionally from nearby farms (possibly in the form of wind-borne transgenic pollen or other natural transfer to non-GMO crops. (One article about this is headed, “Monsanto: Trouble in Bio-Paradise,” http://www.lamontanita.com/docs/newsletterarticles/2000/Jul2000/geneticallymodifiedorganisms.htm); however, for a more balanced view, it may be best to search the internet for the name of this farmer “Percy Schmeiser.”)Other cases, however, involved suits against traditional cultivators who intentionally “saved seeds” after having been given GMO seeds the previous year. These issues are currently being examined in North American courts (see, for example, “Seeds of Doubt” at 41–69 reprinted in the Soil Association website at http://www.soilassociation.org/web/sa/saweb.nsf/a71fa2b6e2b6d3e980256a6c004542b4/9ce8a24d75d3f65980256c370031a2d0/$FILE/SeedsOfDoubt_3of3.pdf. Further examination of the extent of current legal actions is found in “Monsanto still suing farmers for seed saving”, (Associated Press story dated 8 July, 2001) reprinted at http://www.organicconsumers.org/Monsanto/SeedSavingSuits.cfm)

56It is also suggested that these same approaches may be used to limit the uses of traditional varieties by farmers who have been paid by GMO developers for “access” to those varieties.

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