GMO's in a Post-Cancun World
How do the Catagena Protocol, Codex Alimentarius and WTO fit together?
by Phil Bereano

Although promises of technological utopias still spill regularly from publicists’ pens, people throughout the world have been too often disappointed by the reality.

Genetically modified organisms (GMOs) embody contradictions between marketers’ promises of bountiful harvests for the world’s starving and the entrenched realities of agricultural subsidies and biased trade rules which immiserate the developing world. This tension erupted at the recent Ministerial meeting of the World Trade Organization (WTO) in Cancun, Mexico, which collapsed after the United States and European Union refused to discuss eliminating farm subsidies which make their crops cheaper than local produce in Third World marketplaces.

The WTO privileges the maximizing of profit over any other values. Concerns about human health, social justice, and environmental protections are routinely sacrificed to the demands of capital. The U.S. complaint in the WTO against the E.U.’s refusal to import genetically modified (GM) crops express this impatience with social considerations. However, new international agreements — the Cartagena Biosafety Protocol, which became active in September, 2003, and risk evaluation procedures for GM foods proposed by a United Nations agency called the Codex Alimentarius — run counter to this imbalance.

The Weakening WTO

Every country has a sovereign right to control its borders and what passes across them. The World Trade Organization’s agreements consist of member governments mutually waiving this right in the hope of profiting from transnational trade. Most countries have not profited, and their citizens increasingly see that the privileging of economic considerations over all other values has hurt their ability to obtain basic services, maintain their health and well-being, and protect their environments.

At the 1999 WTO meetings in Seattle, protesters flooded the streets outside while non-governmental organizations (NGOs) worked with delegates from developing nations to bring about a stalemate and then the collapse of the talks. The WTO retreated to the isolated and repressive shores of Doha, Qatar for its 2001 meeting. There the resistance of Third World governments to exploitative policies was put under brutal pressure with economic enticements and threats from industrialized countries until they agreed to a declaration that, while weak, allowed the industrialized countries to claim success. In Cancun, however, despite a massive police presence and military show of force, the “inside-outside” strategy of Seattle, augmented by the bitter lessons NGOs and developing countries had since learned, was successful again.

Trade agreements were not strengthened in Cancun, and although some countries — especially the United States — will attempt to revive negotiations, a large block of developing nations’ governments refuse to negotiate further until the U.S. and E.U. end their agricultural subsidies, which have been protected from WTO dispute procedures by an agreement expiring in December, 2003. Given the U.S. administration’s track record of pandering to farm state agricultural corporations, it is unlikely that the U.S. will seriously consider reductions. Also corroding the institutional legitimacy of the WTO is the fact that the economically strongest countries often ignore the WTO when it rules against them. One example is the European Union’s refusal to allow the import of hormone-laden U.S. beef. Dispute resolution mechanisms are meaningless if their orders are not obeyed by losing parties.

At Cancun, a group of developing countries insisted that a reduction of industrialized nations’ agricultural subsidies, one of the few beneficial agreements to be reached in Doha, be carried out before any new topics would be discussed. Cancun was plastered with posters describing each cow in the E.U. annually receives around $3,000 in subsidies, while the incomes of sub-Saharan families is around $600 per year. Thousands of peasants in the developing world have killed themselves over the past few years because they cannot support their families; others have sold their organs to raise money. The suicide of Korean farmer Lee Kyung-hae at the security barrier commanded attention throughout Cancun.

Faced with E.U. and U.S. recalcitrance, many African delegates simply walked out, and the Mexican chair terminated the meeting rather than trying to cajole participants into continuing discussions which would not be resolved. Consumer, green, and peasant NGOs were jubilant.

Mainstream commentators subsequently lamented what they called a terrible loss for the world’s poor. The Atlantic Monthly Online described it, with a slight colonialist nostalgia, as “a grievous setback” which “will leave developing countries poorer and with far less say in their own future” yet offered no evidence that participating in the WTO had increased either their wealth or power. The author wonderingly observed that “many of the developing world’s governments are celebrating” and asked, “How is this seeming madness possible?” But Caroline Lucas, a Green United Kingdom member of the E.U. Parliament, saw things differently: “The democratically expressed wishes of the majority of WTO members have been upheld at last,” she said.

Walden Bello of the Global South organization, a recent recipient of the Right Livelihood Award — also known as the “Alternative Nobel Prize” — said the Cancun collapse “severely damaged” the WTO. He decried any notion that the WTO is a neutral “set of rules and machinery that, with the appropriate balance of forces, can be invoked to protect the interests of the developing countries.” He praised global civil society groups for assisting developing countries in navigating the political and technical intricacies of the negotiations.

The United States and the European Union are pressuring countries to abandon their resistance, and strategizing how to restart negotiations this winter. However, the core countries of Brazil, India, China, and South Africa will stand firm. By themselves they represent almost half of the world’s population. Their ranks will only grow, and they will have no interest in maintaining the WTO’s current exploitative structure. It is into this context that the Cartagena Biosafety Protocol and Codex Alimentarius Commission’s guidelines have entered.

The Cartagena Biosafety Protocol

Last autumn, the Cartagena Biosafety Protocol came into force to regulate the international transfer of “living modified organisms.” The Protocol asserts that trade considerations need not always be accorded primacy over other national objectives. It establishes procedures for exporters of engineered organisms to notify the country of intended import, which may require a prior risk assessment before allowing them to enter. It also allows importing nations to invoke the Precautionary Principle and deny importation if they judge the scientific information necessary for a proper assessment to be insufficient. Almost eighty countries have joined the Protocol, and will have their first meeting in Kuala Lumpur, Malaysia, in February, 2004.

The Protocol is ambiguous about how to resolve conflict between the regulatory rights of an importing country and the WTO obligations that country may have not to impede trade. The Protocol’s explicit use of the Precautionary Principle is claimed by trade interests to run counter to the WTO mandate. The Protocol text reflects this controversy by including three somewhat inconsistent provisions in its Preamble. Many countries are not members of the Protocol, including the U.S., Canada, Argentina, and Australia — the largest growers and exporters of GMOs. The Protocol’s provisions regarding trade in GMOs between members and non-members does not require that its procedures be followed; how such trade might evolve is an open question. Power politics will certainly play a role. Canada is already encouraging members to weaken the Protocol’s implementation measures in exchange for its membership.

The Codex Alimentarius

Just before the Cartagena Protocol became effective, another set of guidelines for evaluating GMO risks was enacted under the auspices of the Codex Alimentarius, a little-known United Nations agency. The Codex was established in 1963 by the Food and Agricultural Organization and the World Health Organization to implement their Joint Food Standards program. The official purposes of the organization are "protecting the health of consumers and ensuring fair practices in the food trade." Guided by this dual mandate, the Codex drafts voluntary international food guidelines through negotiations which take place in approximately thirty committees and task forces. A handful of consumer groups and over one
hundred industry organizations participate as "observers" with the ability to speak and distribute documents (although Codex officials, in the interest of “efficiency,” are discussing restricting observers.)

The World Trade Organization decided in 1995 that Codex norms would be the reference point in evaluating the legitimacy of food regulations that are suspected of violating WTO trade agreements. This linkage means that Codex guidelines now have important legal significance for WTO members. In July, 2003, with the consensus of its 168 member nations, the Codex produced the first international guidelines for assessing and managing health risks posed by genetically modified foods, which were prepared after four years of deliberations by an Ad Hoc Task Force on Foods Derived from Modern Biotechnology. These risk analysis guidelines call for safety assessments to be conducted on all GM foods prior to their market approval. While this may seem like common sense to most people, it has not been the policy in countries such as the United States — the world’s largest grower of GM crops, and home to Monsanto, world’s largest biotechnology company.

One especially important provision of the new Codex rules says that “Risk managers should take into account the uncertainties identified in the risk assessment and implement appropriate measures to manage these uncertainties.” This language appears to validate a precautionary regulatory approach. Other provisions call for a “transparent” safety assessment, communicated to “all interested parties,” who will be ensured opportunities to participate in an “interactive” and “responsive consultative processes” where their views are “sought” by the regulators.

This non-scientific element of the rules is consistent with the second leg of the Codex mandate: to deter deceptive practices — such as, for example, selling GM foods to consumers without informing them of the alteration, even though surveys have consistently shown that the large majority of consumers want this information. Indeed, the Codex Commission has recognized that there are "Other Legitimate Factors” than those purely based on science, and that these are still a valid basis for regulations.

There is an inherent contradiction to WTO attempts to reduce the ability of countries to limit trade except in cases of extreme, unusual circumstance, and these other Codex considerations. That is why the U.S. and other GMO-exporting countries have argued vigorously that only scientifically proven, objective health claims should be the basis for regulating GM foods. They want the second Codex mandate, the Other Limiting Factors, and precautionary regulations of any kind to be superseded by WTO rules. However, the industry and relevant governments refuse to fund research into the scientific risks presented by GMOs, thus making actual assessment difficult.

An Uncertain Future

Trying to understand how the Cartagena Protocol, Codex Alimentarius, and World Trade Organization mesh together can be very confusing, and is only made more difficult by supposing that there exists a rational, Platonic ideal of overall international rules which guided the development of these agreements. These compacts were produced at different historical times by delegations from different national ministries with different missions — trade, development, environment, agriculture, and health. There is no grand plan. Despite the existence of some language in their texts about “harmonization,” they exist separately, and it is only through their applications that countries will be forced to work out accommodations.

However, since Codex guidelines are shielded from WTO attack, they may have a significant impact on what governments might require of producers and exporters of GM foods, and could reduce the level of risk to which consumers are exposed. For example, in response to the United States’ attack on its refusal to import GM crops, the European Union will likely cite the new Codex risk analysis guidelines to show that it has acted in accord with evolving international norms. Europe is also likely to claim that the Cartagena Protocol
justifies its approach, though the decision on whether to accept any of these defenses will be made by the WTO.

Political power will, of course, be a major determining factor in the outcome — the power of the different governments, their will to pursue certain goals, and the power of civil society organizations to educate the public and influence governments. After all, most E.U. government officials are not intrinsically opposed to genetically modified crops; they are simply responding to well-organized constituents. (The importance of Green parties, facilitated by proportional representation electoral laws, also cannot be underestimated).
Justice Oliver Wendell Holmes observed that “the life of the law has not been logic, it has been experience.” The public can affect how governments press their positions and, just as environmental considerations slowly permeated the thinking of U.S. judges in the 1970s and 80s, might eventually alter the consciousness of the WTO decision-makers as well. Of course, if the WTO system is indeed weakening, it is possible that another major defiance by a loser in its judicial arena, coupled with the floundering legislative elements seen in Seattle and Cancun, could render the whole institution essentially defunct.

All in all, that might not be such a bad outcome.

Philip L. Bereano, JD, is Professor of Engineering (technology and public policy) at the University of Washington. He is the former Director of the University’s Program in Social Management of Technology, a founding member of the Washington Biotechnology Action Council, a founding member of the Council for Responsible Genetics, and a national board member of the American Civil Liberties Union.