Global Environmental Law at a Crossroads

An Appraisal of the International Governance of Transboundary Movements of GMO's Twenty Years after Rio

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Biotechnology or the engineering of the genetic material of species can give way to avenues of possibilities for the benefit of people, fauna and flora but also has the potential of untold and undiscovered threats to humanity and living organisms. One of the first attempts to legislate on international rules on biotechnology can be traced back to Article 19 of the Convention on Biological Diversity (CBD) in 1992. The CBD is indeed the first international legal instrument apart from the then European Community’s relevant directives to suggest that biotechnology is a matter of concern for the international community while providing a basis upon which more detailed procedures would be elaborated in the field of biosafety. Whilst the CBD includes international rules on access to genetic resources, access to and transfer of technology, handling of biotechnology and distribution of its benefits, it does not include a detailed regulation on genetically modified organisms (GMOs) and their possible adverse effects on the environment, human and animal health. It was only with the coming into existence of the Cartagena Protocol On Biosafety (Cartagena Protocol) to the Convention on Biological Diversity in 2000, that the safe transfer, handling and use of living modified organisms (LMOs) such as genetically engineered plants, animals, and microbes, were at last being catered for, albeit leaving aside the broader categories of GMOs. Ten years later, rules and procedures on damages resulting from transboundary movements of LMOs was adopted with the Nagoya-Kuala Lumpur Supplementary Protocol to the Cartagena Protocol on Biosafety.

Twenty years after the “Rio de Janeiro Earth Summit” and nine years after the entry into force of the Cartagena Protocol, transboundary movements of GMOs have certainly increased with new categories of GMOs and genetically modified (GM) products. Is the international legal framework for transboundary movements of GMOs adequate for the protection of the environment while taking into account human and animal health? The interaction between direct international legal instruments regulating transboundary movements of LMOs and international trade laws, different interests at stake, the variety of domestic or regional biosafety schemes, authorization, labelling and traceability obligations doubtlessly bring many challenges to the existing international framework. A better governance of transboundary movements of GMOs at the international level would certainly need a consensus on the regulation of transboundary movements of additional categories of GMOs as well as the harmonization of identification and traceability standards, a harmonized risk assessment and management system and a liability and redress regime for damages resulting from transboundary movements of GMOs. Its implementation is limited to the extent that there is a lack of consensus on approaches to be adopted and dispute resolution procedures.

When the Cartagena Protocol came into existence to provide for an international legal biosafety framework, key issues mainly pertained to the scope of the GMOs covered by this protocol and by the Advanced Informed Agreement (AIA) procedure, identification and traceability issues, the relationship of this protocol with other prior international agreements and liability and redress issues. The main purpose of this paper is to analyse key biosafety issues in 2012 by highlighting challenges and opportunities to improve the international governance of transboundary movements of GMOs.