BY ASHISH RANA.
BIOTECHNOLOGY: RISKS AND BENEFITS INVOLVED
Biotechnology & Trade Laws
Biotechnology is a revolutionary technology. It has opened up myriad avenues for the human regime to grow and alter its future. Biotechnology allows the humans to tamper the genetic structure of any organism and thereby making it more compatible and beneficial to human use. To be precise, biotechnology can be defined as any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use. Biotechnology involves the application of in vitro nucleic acid techniques, including recombinant deoxyribonucleic acid (DNA) and directs injection of nucleic acid into cells or organelles, or fusion of cells beyond the taxonomic family.
The use of biotechnology in sectors such as agriculture and medicine has produced a growing number of genetically modified organisms and products from them. However, these alterations and boons do not come cheap and have their own set of risks involved. Its potential effects on biodiversity, humans, animals and the environment as a whole has become a point of moot globally. The draft policies of countries around the world vary and largely depend on factors like cost benefit analysis and their capability of risk assessment of genetically modified organisms.
Some of the transgenic crops that are already being introduced into the markets world over are the BT crops that are protected against insect damage and reduce pesticides use (BT crops contains a special gene taken from a bacterium called Bacillus thuringiensis, which is genetically engineered into the conventional plant variety); herbicide tolerant crops that allows farmers to apply a particular herbicide to control the weeds without harming the crop; disease resistant crops that are armed with a plant equivalent of a vaccine; delayed ripening fruits and vegetables; nutritionally enhanced foods; and high performance cooking oils are some other miracles of biotechnology.
However, there are a number of risks associated with biotechnology. One of the greatest doubts created by biotechnology is the protection and preservation of biodiversity, which seems to be under threat. The genetically altered plants may transfer the genetic material and other associated traits to conventional varieties of plants, weeds and other crops, thereby threatening the ecosystem and biodiversity. Some of the ill effects of the genetically modified crops have been seen in many countries.
As genetically modified organisms represent a new generation of crops and plants and biotechnology is a relatively new technology, there is inadequate legislation, nationally as well as internationally, to govern technology transfer and trade among GMOs.
The Cartegena Protocol On Biosafety
The Cartagena Protocol on Biosafety was adopted in Montreal, Canada on June 29, 2000, and was negotiated under the United Nations Convention on Biological Diversity (Rio de Janeiro, 1992). The protocol is a legally binding instrument governing transfer of living modified organisms from one nation to another. Living Modified Organisms are defined as any living organism that possess a novel combination of genetic material to be obtained through the use of modern biotechnology.
The two main groups that discussed the protocol are the Like Minded Group and the Miami Group. The Like Minded Group consisted largely of developing nations with weak foundations in technology. The developing countries were putting forward their apparent disability to test, assess and manage the harms that GMOs may result in.
In contrast, the Miami Group included the main exporters of genetically modified seeds and crops. The group pushed hard to limit the scope of the protocol by limiting the possibility of referring to the precautionary principle, setting hard terms under the agreement.
Advance Informed Agreement
The AIA covers seeds for planting, live fish for release, micro-organisms for bio-remediations, and other LMOs which are intentionally introduced into the environment. It provides that the exporter, by a notification to the competent national authority of the importing country, shall provide the necessary information like that of modifications introduced, the technique used and the resulting characteristics of the LMO, the regulatory status of the LMO in the country of export and the contact details of the exporter and importer.
Dispute Settlement
The preamble of the Biosafety Protocol clearly indicates that it shall not be interpreted as implying a change in the rights and obligations of a party under any existing international agreements. However, this recital is not intended to subordinate the protocol to other international agreements. This provision clearly marks out the option to the conflicting parties in the area of biotechnology to go to the WTO Dispute Settlement Board. In the event any country feels that her trade interests are better protected under the WTO rules other than the Protocol can go to the WTO Dispute Settlement Board.
Wto Agreements Having Implications On International Trade In Gmos
Agreements having allusion to trade in GMOs are Agreement on the Applications of Sanitary and Phytosanitary Measures (SPS), the Agreement on Technical Barriers to Trade (TBT), and the General Agreement on Tariffs & Trade 1994 (GATT).
The SPS agreement provides for the prevention of international trade from protectionist policies that may be employed by the state. The agreement covers measures adopted by countries to protect human or animal life from food borne risks; human health from plant carried diseases and animal and plants from pest and diseases. Due to lack of scientific certainty about the effects and uses of GMOs the measures regarding GMOs fell into ambit of SPS. Furthermore, the transfer of associated traits to conventional varieties and food borne risks to human health necessitates the inclusion of GMO related measure into SPS.
Under the Technical Barriers to Trade Agreement (TBT) regulations may be imposed for the prevention of deceptive practices and the protection of human, plant, and environmental health. The measures adopted should pass the proportionality test, i.e. the regulations should not be trade restrictive (internationally). It is not yet decided whether an import ban applying to GMOs or GM products could be regarded as a technical regulation falling under the TBT Agreement.
Developing countries have always been at the receiving end in matters related to trade in genetically modified organisms. On the one hand, the developing countries support Article XX, TBT and SPS agreements in order to protect themselves from the unknown effects of GMOs on human, plant or animal health and ecology. However, with multinational corporations having already invested heavily in biotechnology there is an increased pressure on their respective governments to remove the trade barriers across the nations for free movement of GMOs and GM products. In such vague times it has become all the more important for developing countries to enact domestic legislation governing trade laws in biotech products in order to secure food safety for human, plant and animal health.
Conclusion
Biotechnology wavers between widespread acceptance and the common concern about its possible dangers.
The Author is an associate in a Law firm at New Delhi.