The Special Vulnerability of the Developing Countries to Genetically Modified Organisms

By Tewolde Berhan Gebre Egziabhei; Chief Negotiator in the Biosafety Protocol for the Africa Group and the Like-Minded Group 11 September 2003

1. Introduction
The Cancun meeting on trade and the coming into force of the Cartagena Protocol on Biosafety take place within the same week, The Cancun meeting, which is expected to try to reconcile conflicts between environmental and trade agreements, will directly or indirectly deal with the disagreement between the USA and the EU on genetically engineered (GE) commodities. This obviously fortuitous coincidence is uncanny because trade considerations caused the greatest complications during the negotiations of the Cartagena Protocol, and will, no doubt, continue to cause on its implementation.

The central focus of the Cartagena Protocol on Biosafety is ensuring the safety of the movement between -and subsequent use within - countries of organisms changed through the artificial (or in vitro) modification of nucleic acids, e.g. recombinant DNA technology and chimeraplasty, or through cell fusion. The Protocol refers to these genetically engineered organisms (GEOs) or genetically modified organisms (GMOs) as living modified organisms (LM Os).

Such artificial modifications, by virtue of being new to nature, may create equally new promises of usefulness to humans or hazards to humans or the environment. Their potential usefulness makes them appealing for development. But their potential harm makes regulating their development absolutely essential.

Both the development of and trade in GMOs, and therefore their regulation, present developing countries with difficulties that must be overcome if they are to be protected from serious environmental and socio-economic crises. It is even possible that some of them could be targeted with GMOs designed to affect or kill specific ethnic groups. They need to also maintain a level of economic growth so as not to be left behind developed countries. Let us look at these difficulties,

2. Poverty
Developing countries, especially the least developed among them, have very limited financial resources. Therefore the money they can allocate for biosafety is bound to be inadequate. Even more worrying is the tact that, should a risk materialize, combating it requires financial and technical capacity that the countries do not have. The Protocol recognizes this fact in its Preambular Paragraph 8.

3. Information
Information is essential for effective management. It would, therefore, seem logical that the Protocol would make the availability of information about GMOs and their products a central issue. That is why it has an article (Art 21) on the distribution of information through a clearing-house mechanism. But, the United States of America and five other countries allied to ii: opposed the labelling of GMOs and their products. Therefore, attempts to make labelling a requirement failed during the negotiations of the Protocol, thus limiting the usefulness of the information distributed through the clearing-house mechanism. However, the Protocol does intend to have a labelling regime to be negotiated as soon as possible (Article 18.2(a)).

4. Socio-economic Considerations
One would have thought that, given this situation, socio-economic considerations would constitute a very important component when deciding whether to import a GMO or not. But the relevant provision of the Protocol, Article 26, is very weak owing to pressure by industrialized countries to protect their structural advantages in trade and development. However, neither this weakness nor any other international law prevents a poor country from adhering to the precautionary principle and making a rigorous socio-economic assessment before importing a GMO.

5. Complex Environment
A micro-organism under contained use functions optimally at high temperatures. If it escapes into the open environment it is unlikely to survive the winter cold of industrialized countries. In the hotter tropical and subtropical environments of developing countries, it may survive and flourish indefinitely. Other aspects of risk assessment in developing countries also become complicated because of the complex tropical and subtropical environments.

And yet, the Protocol fails to subject GMOs destined for contained use to the Advance Informed Agreement (Al A) procedure. However, it does allow a country to determine what it accepts as contained use. Developing countries should, therefore, put in place biosafety systems that restrict the term "contained use" only to laboratory conditions from which escape of GMOs is impossible.

6. Richer Biodiversity
It is a well recognized fact that biodiversity increases towards the equatorwards and decreases polewards.

The environmental risk GMOs pose is one of passing their transgenes (and possibly other genes) to wild species. Therefore, the larger the biodiversity is, the more complex and uncertain becomes the evaluation of risks posed by GMOs.

And yet, owing to the low technical capacity of developing countries, specific knowledge on their biodiversity is very poor. This makes the evaluation of risks posed by GMOs to their environments time consuming, difficult and unreliable. However pressure on them to accept many GMOs without adequate risk assessment is growing. They have to resort to caution. But even Europe is now under pressure from America through the WTO because it had to have time to put in place the measures necessary to protect human life and the environment. That is why Europe’s fight in this is the fight of the Developing countries as well

7. Centres of Origin and Genetic Diversity of Crops
Crops were domesticated and diversified in certain regions of the world, but not equally everywhere. Most centres of origin and diversity of crops are in developing countries. It is, therefore, obvious that a mistaken release of a GMO crop variety is more likely to introduce the unwanted gene or genes into the crop’s gene pool for good in a developing than in a developed country. This would jeopardize future prospects for food production in the world.

That is why in its Preambular Paragraph 7, the Protocol recognizes this fact, and the information requirements (Annex I & 11) as well as the risk assessment (Annex III) all include the centres of origin or genetic diversity. Refraining from the introduction of crop GMOs into countries of crop genetic diversity therefore should be in the interest of industrialized countries, even though. at present, the reverse seems to be the norm.

8. Greater Diversity of Environment-related Health Problems
There are more agents that cause or transmit diseases in humans in the tropics and subtropics, where developing countries are found, than in the temperate areas, where industrialized countries are found.

This makes evaluating the risks to human health posed by GMOs (Art. 1 & 15.1) in a developing country much morn complex than evaluating them in an industrialized country. Of course, the lower financial, technical and scientific capacity in the developing country makes the task onerous, and thus also greater caution essential.

9. Trade and Environment
Trade rules favour industrialized countries. The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs) is especially problematic for developing counties in the context of modern biotechnology and GMOs.

Article 27.3 (b) of TRIPs makes the patenting of microorganisms and microbiological processes compulsory, and the patenting of other life forms optional. Industrialized countries are allowing the patenting of GMOs and their subcellular components based on this article. The cellular parts essential for modern biotechnology are already patented. This means that any endogenous modern biotechnology development and use will become bureaucratic and expensive, having to negotiate access to these patented parts from tens of patent holders as well as having to pay royalties on them. It also means that GMOs, even when developed in a developing country, are controlled by these foreign patent owners of subcellular parts, infringing on their use for sovereignty in food production, medical application etc.

Article 34 of TRIPs puts the burden of proof of innocence on the person accused of the infringement of a process patent. This means that when a GMO cross pollinates with the unmodified crop of a smallholder farmer, his crop becomes contaminated by genes from the GMO. Most absurdly, he is assumed to be a process patent infringer. The culprits, the winds and the insects, cannot be summoned to court as witnesses. A developing country that wants food sovereignty and its farmers to remain innocent of crime can refuse the planting of GMOs of crops in its territories. But if WTO rules are used to force countries to import the seeds of GE crops albeit as food, feed or for processing, it would not take more than the accidental or uninformed spilling or planting of one or two of these seeds to wrest control of agricultural production from the local farmers' hands to El distant corporation in a foreign land.

10. Liability and Redress
It would seem logical that if a GMO causes damage, its owner/ developer should become liable to pay compensation for that damage. The industrialized countries do not want to rectify damage their GMOs might cause. But at the insistence of developing countries, there is now a commitment to negotiate a liability and redress regime under the Protocol (Art 27).

11. Concluding Remarks
Given these disadvantages, are developing countries going to benefit from modern biotechnology in their attempts to develop? I wonder. But they have no choice but to stay safe. They have no choice but to combat possible ethnic targeting through GMO1s. Therefore, they have to put in place biosafety systems firmly based on the precautionary principle, which is allowed by the Protocol (Preambular Paragraph 4; Art. 1, 10.6,11.8; Paragraph 4 of Annex Ill and Article 2.4) and to develop a commensorate genetic engineering capacity (Article 22.1).