Merits of Ratifying and Implementing the Cartagena Protocol on Biosafety
The Merits ofthe CartagenaProtocol
Merits of Ratif ying and Implementing the Cartagena Protocol on Biosafety
Jonathan A. Glass 0
0 Thi s Comment is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Law & Business by an authorized administrator of Northwestern University School of Law Scholarly Commons
Part of the Food and Drug Law Commons; and the Health Law Commons
The Merits of Ratifying and
Implementing the Cartagena Protocol
The trade of genetically modified organisms ("GMOs") has become a
source of controversy around the world. While industrialized countries
generally argue for limited regulations on GMOs to facilitate trade of these
products, most nongovernmental organizations ("NGOs") and developing
countries have called for the adoption of a stringent protocol that regulates
the trade of GMOs.' Under the Convention on Biological Diversity
("CBD"), an international multilateral environmental agreement established
to regulate biodiversity, 130 countries have developed and adopted a
bio'J.D. Candidate, May 2001, Northwestern University School of Law, B.A., 1996,
Washington University. I would like to thank Professor Anthony D'Amato and Marybelle Ang
for their helpful comments and suggestions for this article. I would also like to thank Elissa
Germaine and my family for their constant loyal support.
' See Thomas P. Redick et al., PrivateLegal MechanismsForRegulating The Risks of
Genetically Modified Organisms: An Alternative Path Within The Biosafety Protocol, 4
ENvT. LAW. 1, 7-8 (1997).
safety protocol that establishes standard international regulations governing
the transboundary movement of living modified organisms ("LMOs").2
In a meeting in Cartagena, Colombia in February 1999, parties to the
CBD, known as the Conference of the Parties ("COP"), could not agree on
the proposed biosafety protocol drafted in prior meetings.3 However, in
January 2000, in a meeting in Montreal, the parties to the CBD finally
adopted the draft protocol, naming it the Cartagena Protocol on Biosafety
("Cartagena Protocol or Protocol"). 4 When the Cartagena Protocol opened
for signature at the CBD's COP meeting in Nairobi in May 2000, sixty-four
eighty-one parties have signed the Protocol, while only two have raPtriefiseedntilty.,6
governments and the European Union signed the Protocol.
Hraotiwfieevdeirt,. 7the Protocol will only enter into legal force after fifty parties have
This comment argues that each party to the COP should ratify and
implement the Protocol as soon as possible. This comment also critiques the
provisions of the Protocol and alternatives to the Protocol, namely the
voluntary regulation of GMOs. Part II begins with a discussion of the
background of GMOs. Next, Part III discusses the World Trade Organization's
Agreement on the Application of Sanitary and Phytosanitary Measures
("SPS Agreement") and its agricultural safety provisions. Part IV continues
with a description of the CBD, the history of the development of the
Cartagena Protocol, and a discussion of important Protocol language. Part V
analyzes the merits of the Protocol and why it should be ratified and
implemented. Finally, this comment concludes with a discussion of
alternatives to the Protocol, with an emphasis on voluntary regulations.
2 See Bill Lambrecht, Compromise Is ProposedForPactOn GeneticallyAltered
Products; New Rules Could Exempt Some Farm Commodities, ST.Louis POST-DISPATCH, Feb.
22, 1999, atA5.
4Press Release, Convention on Biological Diversity, Cartagena Protocol on Biosafety
Adopted (29 Jan. 2000), at http://www.biodiv.org/press/pr-2000-01-28-biosafety.htmn/cbdre
pi.html (last visited Feb. 8,2001) [hereinafter Cartagena Protocol Press Release].
5George Mwagni, Environmental-SafeguardsAgreed On, ASSOCIATED PREss, May 26,
6Cartagena Protocol on Biosafety to the Convention on Biological Diversity (29 Jan.
2000), at http:llwww.biodiv.orgfbiosafe/protocol/signinglist.asp (last visited Feb. 8, 2001)
[hereinafter Cartagena Signing List].
7Cartagena Protocol Press Release, supra note 4.
A. Genetically Modified Organisms
Genetically modified organisms ("GMOs") include plants and animals
that scientists have genetically altered.8 Living modified organisms
("LMOs") 9 are defined as "any living organism[s] that possess[1 a novel
combination of genetic material obtained through the use of modem
biotechnology."10 By manipulating DNA, scientists can engineer plants and
animals to have particular traits." Scientists can use gene-splicing
technologies, transferring genes from one plant to another to create a
"transgenic" plant, one with new characteristics.12 For example, Monsanto
Corporation, of St. Louis, Missouri, manufactures Roundup Ready soybean
seeds that are genetically engineered to be resistant to certain insects.
There are two methods of genetically engineering plants: (
seed systems and (2) transgenic seeds.14 First, enhanced seed systems allow
the seed and a chemical to work in conjunction with one another.' 5 For
example, Monsanto's Roundup Ready soybeans are designed to be resisUtaltnrta.t'o6
glyphosate, a chemical used in Monsanto's herbicide Roundup
Thus, farmers of Roundup Ready soybean crops can use Roundup Ready
Ultra herbicides on their fields without killing the soybeans.17 Second,
transgenic seeds produce plants "designed to kill predators or to enhance a
certain property, such as oil or sugar content."' For example, Bacillus
8 Redick et al., supranote 1,at 6.
thuringiensis corn hybrid (Bt corn) is designed to destroy the European corn
borer, an insect that plagues corn fields across the world.' 9
There are only a few major manufacturers of GMOs.2 Monsanto, the
world's second-largest seed and third-largest agrochemical company, is the
world leader in the production of GMOs.2' Opposition to the release of
GMOs into the environment often targets its protests against Monsanto. 22
However, other companies, such at Novartis, a Swiss Company, and
AgrEvo, a German company, also use gene-altering technologies to produce
After companies produce GMOs, they attempt to sell their products to
customers who will use them. Experts refer to the use of GMOs as
deliberate release.2 4 Deliberate release is the introduction of GMOs into the
enviromnent. Controversy stems from the deliberate release of GMOs,
including both enhanced seed systems and transgenic seeds.26
B. Potential Benefits of GMOs
Monsanto and other GMO manufacturers market their products as tools
to feed the world and protect the environment.2 7 A current global
environmental concern is how to create an adequate food supply as the world's
population increases.2 1 Monsanto argues that if farmers use genetically
altered seeds that are resistant to pests and plant viruses, they can increase
crop yield without having to convert additional lands for agricultural uses.2 9
Scientists genetically engineer crops to resist plant viruses that would
otherwise destroy part of the crop.30 Thus, genetically modified crops contain
less viral contamination than unmodified crops, increasing both crop yield
and quality.3 1 Biotechnology companies also contend that future
technology may allow for the creation of more nutritious foods and perhaps even
foods that could prevent or treat illness3 2
19See Meyer, supranote 14, at 102.
20 See Redick et al., supranote 1, at 59.
21Epstein, supranote 13, at A14.
24 Anne Marie Solberg, GeneticallyEngineeredProduce Travels North America Under
NAF25TIAd:. An Issue RipeforConsideration,18 HAmIlNE L. R.Ev. 551, 555 (1995).
26 See id.
27 Tom Rhodes, BitterHarvest: The Real Story ofMonsanto and GM Food, SuN. TINEs
(LoN28DoN), August 22, 1999, at 1.
Redick et al., supranote 1, at 7.
30 Solberg, supranote 24, at 554.
32 See David Barboza, Biotech Companies Take On Critics of Gene-AlteredFood, N.Y.
TIMEs, Nov. 12, 1999, atAl.
In addition, farmers and consumers are concerned with the amount of
herbicides and pesticides used in farming practices today.33 Scientists have
used biotechnology to develop herbicide and pest-resistant crops that can
potentially decrease the amount of pesticides and herbicides released into
Farmers may also gain an economic benefit by using genetically
altered seeds. For example, in the United States, Canada, and Argentina,
farmers grow genetically altered soybeans commercially in order to
increase crop yield.3 5 Thus, in countries like Brazil, which also compete as
world leaders in the soybean market, farmers argue for the use of
genetically altered crops to maintain a competitive edge in crop yield.36
Potential Dangers of GMOs
Opponents to the deliberate release of GMOs argue that there are
potential dangers in the use of GMOs--specifically, dangers to human
health and the environment. 37 The biological and ecological sciences
38cannot surely predict that the deliberate release of GMOs will be harmless.
While supporters of GMOs argue that their release will benefit
humans, opponents contend that there are risks of potential side effects on
human health.39 For example, in August 1999, the Codex Alimentarius
Commission, the United Nations Food Safety Agency, ruled unanimously
to enforce a 1993 European moratorium on Monsanto's genetically
engineered hormonal milk ("rBGIT). 4° The European Commission's public
health committee confirmed that the genetic alteration of rBGH increased
levels of naturally occurring Insulin like Growth Factor One ("IBF 1") in
milk.41 Those increased levels of IBF 1 both potentially increased the risks
of cancer and promoted the growth of cancer cells in humans. 42
Another potential problem for human consumption stems from the
alteration of proteins in foods derived from genetically engineered crops. 43
Genes encode proteins, and when scientists alter the genetic makeup of
33Solberg, supranote 24, at 553.
35 Epstein, supranote 13, at A14.
37 Solberg, supranote 24, at 555.
38 Id. at 554-555.
39 See id. at 556.
40 Press Release, Monsanto's Genetically Modified Milk Ruled Unsafe by the United
Nations, Chemical Business Newsbase, (Aug. 25, 1999).
43Solberg, supranote 24, at 556.
seeds, new proteins may form. 4 Changes in the level and form of proteins,
in addition to increases in the levels of other constituents that affect protein
absorption, may inhibit the way the human body absorbs proteins. 45
Genetic engineering could also increase levels of toxins in crops. 4
Plants produce natural toxins, and foods generated from non-engineered
plants contain a safe level of toxins.4 7 Genetically engineered plants may
manufacture new proteins that could potentially increase the level of these
naturally occurring toxins.48 Thus, food from genetically engineered crops
may contain levels of toxicity dangerous to human health.49
Finally, genetic modification can dangerously change the level of
allergens in foods.5 0 For example, scientists found soybeans modified from
brazil nuts to contain brazil nut allergens, posing potential health problems
for those allergic to nuts. 1
27% more trypsin-inhibitor,Oathmerajmorodalilfeiergdesno,ytbheaannsunwmeorediffoieudnds otoybceoanntsa.i5n2
Therefore, consumers must consider the potential danger of allergens when
eating genetically altered foods.
In addition to potential dangers to human health, some scientists argue
that the deliberate release of GMOs poses potential threats to the
environment 3 The greatest source of apprehension for ecological scientists is the
potential danger of the introduction of non-native organisms into foreign
One danger is the hybridization of GMOs and naturally occurring
microorganisms-a process called outcrossing.5 5 Genetically engineered
microorganisms have the potential to exchange genetic material, or hybridize,
with natural occurring microorganisms.5 6 This hybridization, or
outcrossing, can potentially disrupt the ecology of an environment 7 For example,
wheat that is genetically engineered to resist certain pests can pass this
characteristic onto weeds, potentially creating a more powerful weed and
449 ISdo.lberg, supranote 24, at 556.
50 Holly Saigo, AgriculturalBiotechnology and the Negotiationofthe Biosafety Protocol,
12 GEo. INT'L ENvTL. L. REv. 779, 792 (2000).
53 See Judy J. Kim, Out of the Lab andInto the Field:
HarmonizationofDeliberateRelease Regulationsfor GeneticallyModified Organisms,16 FoRDHAm INT'L L.J. 1160, 1163
54 See id.at 1166.
55See id.at 1168; see also Saigo, supranote 50, at 787.
56 Kim, supranote 53, at 1167.
57 See id.at 1168.
disrupting the environment.58 Although outcrossing commonly occurs in
conventional agronomy, a recent study has discovered that genes from
transgenic plants may be twenty times more likely to hybridize into relative
species than a plant's natural genes.5 9
Another potential danger of the deliberate release of GMOs is the risk
to wildlife.6 For example, English Nature, a British environmental group,
has posited that releasing untested GMO crops could cause bird species,
such as the skylark, corn bunting, and linnet, to become extinct because
GMO crops may displace the seeds and insects they eat.61
Because of these potential health and environmental dangers, the
parties to the CBD should ratify the Protocol in order to implement the
standard set of regulations established in the Protocol. These regulations should
reduce the potential dangers of the release of GMOs into the environment,
while allowing the trade and development of GMO products to continue in
a controlled manner.
m11. THE WORLD TRADE ORGANIZATION'S AGREEMENT ON THE
APPLICATION OF SANITARY AND PHYTOSANITARY MEASURES
Treaties that govern international trade include provisions to protect
human, animal, or plant life or health.62 However, while these regulations
provide helpful guidance in the creation of a biosafety protocol, they do not
specifically address the dangers accompanied by the trade of GMOs. 63 For
example, in 1994, the World Trade Organization ("WTO"), an international
world trading regime, was established to increase free trade amongst its
parties.64 Under the WTO umbrella agreement, parties established the WTO
structure, including the General Agreement on Tariffs and Trade
("GATT"), the Agreement on the Application of Sanitary and Phytosanitary
Measures ("SPS Agreement"), and other agreements to which all member
states must subscribe. 65 Under GATT, member states must "enter into
'reciprocal and mutually advantageous arrangements directed to the substantial
reduction of tariffs and other barriers to trade and to the elimination of
discriminatory treatment in international commerce." '66
The WTO governs the trade of agricultural products under the SPS
Agreement.67 The SPS Agreement allows its members to establish
regulations to protect human, animal, and plant life from the potential dangers
posed by agricultural trade, such as pests, contaminants, toxins, or
diseasecarrying organisms6. It provides "a legal framework which can address the
fundamental issue of whether a measure validly exists to protect consumers
or is merely a sham to protect domestic producers. 69
The SPS Agreement gives its member countries some discretion in
determining which sanitary and phytosanitary measures to use to protect plant
and animal life.70 A member country determines the specific risks of
animal or plant pests or disease in a particular region, taking into account
available scientific evidence. 71 That country can then adopt sanitary or
phytosanitary measures to adequately address the possible danger, as long as
those measures do not "result in discrimination or a disguised restriction on
international trade." 72
Because the WTO is an effort to loosen trade restrictions amongst
member countries, it allows member countries to maintain some autonomy
in establishing their own safety standards. 73 However, to achieve
harmonization, the SPS Agreement requires that members base their measures on
international standards where those standards exist.74 In addition, members
must accept measures from other countries if an exporting member can
prove to an importing member that its measures are equivalent, achieving
the same appropriate level of protection.75
While the SPS Agreement requires members to model their measures
after international guidelines, it still allows members to apply "measures
which will result in a higher level of sanitary or phytosanitary protection
than would be achieved by measures based on the relevant international
standards, guidelines, or recommendations . ,76 However, if a member
66 See id. at25.
67 See id. at 145.
68 See id.
70 See id. at 145; see also SPS Agreement, supra note 62, art. 2.
7' Id. art 5.
73 See id.; see also TREBILcOCK & HOWSE, supranote 64, at 147.
74 See id. at 145; see also SPS Agreement, supra note 62, art. 3(
75 See SPS Agreement, supra note 62, art. 4(
76 See id. arts. 3(
country decides to adopt more stringent standards, it must base its rationale
upon a scientific justification.77
Under the SPS Agreement, representatives from member countries
form a Committee on Sanitary and Phytosanitary Measures that must
convene regularly or as the need arises .78 The Committee must "implement the
provisions of this Agreement, ... encourage and facilitate ad hoc
consultations or negotiations among Members on specific sanitary and
phytosanitary issues, ... and monitor the process of international harmonization [of
sanitary and phytosanitary measures] ...,.79
The adopted Protocol, which is analyzed later in this comment, has
wisely borrowed some of the flexible safety principles implemented in the
SPS Agreement. Like the SPS Agreement, the adopted Protocol sets a
minimum standard of regulation, but allows its members to maintain some
national political sovereignty and policy autonomy in establishing their own
regulations as long as those regulations are at least equivalent to the
minimum requirements.80 In addition, both the SPS Agreement and the Protocol
illustrate how countries can maintain the goals of economic growth through
cooperation, while establishing human and environmental protections.
However, as discussed later in an analysis of the adopted Protocol,
there is a need for a protocol that specifically addresses issues surrounding
the trade of GMOs. For example, because the SPS Agreement requires
members to adopt measures based on scientific evidence, it makes it
difficult for members to adopt measures when there are potential dangers
that scientists have yet to prove. Because the trade of GMOs involves
many potential, yet scientifically unproven dangers, the SPS Agreement
does not adequately address those issues.
IV. THE CONVENTION ON BIOLOGICAL DIVERSITY
While the WTO has established provisions to regulate agricultural
trade amongst its members, countries from around the world have made
attempts to establish an international agreement to regulate biodiversity. In
June 1992, countries met at the Earth Summit in Rio de Janeiro to discuss
various environmental issues. 81 Out of the Earth Summit, parties formed a
Northwestern Journal of
International Law & Business
multilateral treaty2, the Convention on Biological Diversity ("CBD"), to
The CBD establishes a method for countries to work together "to
encourage sustainable development and to slow the destruction of
biodiversity." ° There are currently 179 parties to the Convention.8 4 While the
United States is an observing participant, it is not a party to the treaty and
therefore has no voting rights regarding the provisions of the CBD."5 Thus,
the United States can participate in negotiations, but it does not have a final
vote in the adoption of any measures taken by the CBD, nor is the United
States required to abide by the CBD.
A. Biosafety Protocol
One of the goals of the CBD is to create a "biosafety protocol" to
regulate the trade of GMOs.16 Specifically, the parties to the CBD want to
estthaabtliGshM"Omsinairmeusmaferefgourltahteoreynvsitraonndmarednst faonrdthheu mexapnohrtesalothf.G7MOs" to ensure
To establish the biosafety protocol, parties to the CBD continued to
deal with key controversial issues, such as advanced informed agreement
("AIA"), risk assessments, and information exchange.8 s A proposed AIA
provision would have required prior governmental approval for every
exchange of GMO products among scientists and every shipmenatnodf cwoirdne.l'y9
traded commodities containing GMOs, including soybeans
There was disagreement among parties on whether consent should be
necessary for every shipment and on whether both the importing country and
the exporting country must complete risk assessments.' Another issue was
the creation of more effective information technology to enhance the
exchange of information about GMOs.91
B. Debate Over Biosafety Protocol
There has been great controversy over the final establishment of a
biosafety protocol. 92 Developing countries and many NGOs generally argue
83See Redick et al., supranote 1,at 16.
84 The Convention on BiologicalDiversity has 179 Parties: 178 Countriesandthe
European Union, at http://www.biodiv.org/conv/cbd-ratification.asp?date (last visited on Jan. 17,
85 Redick et al., supranote 1,at 16.
86 See id. at 5.
87 Id. at 5-6.
8'See id.at 21.
89See supranote 81.
90 See Redick et al., supranote 1, at 21.
92 See id. at 7.
for the establishment of a biosafety protocol with international standards
that all countries must meet in order to release GMOs into the
environment.93 Because these developing countries do not have the resources to
conduct proper risk assessments on GMOs, they support universal standards
that require risk assessments, labeling requirements, and other safety
measures. 94 Many NGOs are wary of the possible risks that GMOs pose to the
environment, specifically the risk of disruption of the ecological balance of
areas where they are introduced. 95
However, many industrialized countries, such as the United States,
advocate voluntary guidelines rather than a biosafety protocol to regulate the
international trade of GMOs.9 6 Because industrialized countries have used
GMOs for some time, they are more familiar with the risks and benefits of
GMOs.97 Industrialized countries and biotechnology companies in those
countries contend that because many biotechnology companies already
comply with existing standards under the International Bio-Industry Forum
("IBF") Pledge, the risks of GMOs are insignificant and preventable. 98
Industrialized countries also call for less stringent, voluntary standards
regulating GMOs because of the agricultural benefits of GMO crops, such as
genetically engineered resistance to certain insects. 99
C. Meetings Under Convention on Biological Diversity
Prior to CBD, the United Nations Environmental Programme
("UNEP") had already begun to debate whether a biosafety protocol should
be established)0 0 In 1993, a UNEP panel of scientific experts found that
there was inadequate scientific evidence to warrant a scientific protocol.'0 '
However, the UNEP experts did concede that a biosafety protocol "could
harmonize regulations."'1 2
After these UNEP findings, parties to the CBD met for the first time at
the first Conference of the Parties ("COP I") in Nassau, Bahamas from
November 28 to December 9, 1994.' 0 At COP I, NGOs in attendance
proposed a moratorium on the export of GMOs until a biosafety protocol was
9'See id. at 7-8.
95 See id. at 7.
96 See Redick et al., supranote 1, at 8.
"' See Redick et al., supranote 1,at 37.
0 2 Id.
103Id., citing Report of the First Meeting of the Conference to the Parties to the
Convention on Biological Diversity, United Nations Environment Programme (UNEP), at http://
vww.biodiv.org/copl/cbdrepi.htnl (last visited Oct. 31, 1999) [hereinafter Cop I Report].
established.' 4 The parties did not grant the moratorium 0 5 During COP I,
the parties created an open-ended ad hoc working group of experts to
consider the issue of biosafety ("Ad Hoc Group").' The purpose of the Ad
Hoc Group was to consider the merits of a biosafety protocol and to discuss
the potential risks that GMOs posed to biodiversity and the various risk
assessment procedures to control potential risks.'0 7
In an attempt to achieve its goals, the Ad Hoc Group met from July 24
to July 28, 1995 in Madrid, Spain. 108 Because of its "open designation," the
meeting included attendees from eighty-four countries, seven UN bodies,
two intergovernmental organizations, and twenty-two NGOs.' °9 The debate
between industrialized and developing countries ensued." 0 As discussed
previously, while most industrialized nations argued for a voluntary system
of regulation of GMOs, developing countries and NGOs argued for a global
ban of GMOs."' While the parties did not reach an agreement on this
issue, they did agree that a protocol should be established to regulate GMOs
with possible adverse effects on biodiversity." 2 In addition, they agreed
that there was a need for risk asses3sment and management procedures and
methods of information exchange."
At its second meeting in November 1995 ("COP II"), the COP created
a new working group, the Open-Ended Ad-Hoc Working Group on
Biosafety ("Biosafety Working Group"). 14 The parties created this working
group "to begin addressing AIA and the transboundary movement of
D. Sixth Meeting of the Biosafety Working Group
On February 22 and 23, 1999, in Cartagena Columbia, the Biosafety
Working Group met for its sixth and final meeting to date." 6 One hundred
and thirty countries, various UN organizations, intergovernmental
organiza104 Redick et al., supranote 1, at 38.
107 Id.; see also COP I Report, supranote 103.
'08 Redick et al., supranote 1, at 39; see alsoReport of the Open-ended Ad Hoc Group of
tions, and NGOs attended to negotiate a compromise on a biosafety
protocol." 7 They drafted a protocol that would exempt gene-altered farm
commodities and pharmaceuticals from regulation."' This exemption was the
focus of debate amongst the parties.'1 9 While the Miami Group, a
conglomeration of countries including the United States, Canada, Australia,
Argentina, Uruguay and Chile argued that strict regulations on GMO crops
and pharmaceuticals would hinder international trade, Europe and most
developing nations argued for stricter rules that would include the regulation
of these products.12
On February 24, 1999, negotiations collapsed as the parties could not
reach a compromise on a biosafety protocol."' Although more than
countries had agreed on a potential protocol, the Miami group blocked i1t.1022
The United States and its supporters were concerned with strict regulatory
measures, such as labeling requirements, included in the proposed protocol
by European and developing countries.'23 European countries and
developing countries proposed the strict safety standards to prevent potential
environmental and health problems associated with the deliberate release of
GMOs.' 24 Many European countries advocate a ban or a serious restriction
on the release of GMOs for reasons of environmental and human safety,
and ethical objections to the manipulation of DNA in foods. 125 Although
talks ceased, the Biosafety Working Group agreed to continue to negotiate a
protocol before or during the May 2000 Conference of the Parties in
E. Montreal Meeting-January 24 to 29, 2000 and Beyond
After five years of negotiations, officials from the 130 CBD countries
finalized a legally binding protocol, the Cartagena Protocol on Biosafety
("Cartagena Protocol or Protocol"), to regulate the international trade of
GMOs at a CBD meeting in Montreal. 27 Over 700 delegates from
governments, intergovernmental organizations, and NGOs attended the meeting to
negotiate the Cartagena Protocol, named for the place where it was
" 8 Id.; see alsoLambrecht, supranote 2, at A5.
19 See Lambrecht, supranote 2, at A5.
121Bill Lambrecht, Talks Collapse on Rules for Genetic Crops; U.S., Allies Blocked
InternationalAccordS,T. Louis POsT-DIsPATCH, Feb. 25, 1999, at Al.
125 See Larnbrecht, supranote 12, at Al.
26Angela Sanchez, Environment: New Delay for Biosafety Protocol, INTER PRESS
SERVICE, Feb. 25, 1999.
27 See Cartagena Protocol Press Release, supranote 4.
drafted.128 The CBD opened for signature the agreed text of the Cartagena
Protocol at its COP meeting in Nairobi on May 15 to 26, 2000 (Fifth
Session of the Conference of the Parties to the Convention on Biological
Diversity----"COP 5").129 At COP 5, sixty-four governments and the European
Union signed the Protocol, indicating their general support for the
agreement and their intention to be become legally bound by it 30 Since COP 5,
a total of eighty-one parties have signed the Protocol. However, only two
parties, Bulgaria and Trinidad and Tobago, have ratified it, thus becoming
legally bound to adhere to its principles. 2 Upon the ratification of the
Protocol 3b3y fifty CBD countries, the Protocol will take legal force for its
1. Safety Measures in the CartagenaProtocol
The Cartagena Protocol contains many safety provisions to protect
biodiversity1 34 The parties premised the Protocol on the "precautionary
approach," as contained in the Rio Declaration on the Environment and
Development, which permits parties to act absent clear scientific evidence or
based on non-scientific criteria. ' 5 Thus, parties can act to prevent potential
damage from the release of GMOs before that damage is definitively
proven. For example, Article 1 of the Protocol states:
In accordancewith the precautionaryapproachcontainedin Principle 15 of the
Rio Declarationon Environmentand Development, the objective of this Protocol
is to contribute to ensuring an adequate level of protection in the field of the safe
transfer, handling and use of living modified organisms resulting from modem
biotechnology that may have adverse effects on the conservation and sustainable
use of biological diversity, taking also into account risks to human health, and
specifically focusing on transboundary movements.'3 6
In Articles 7 through 10, the Protocol defines the Advance Informed
Agreement procedure ("AA"). 37 At its meeting in Montreal, the parties
agreed that these strict AIA procedures only apply to seeds, live fish, and
130 See Mwagni, supra note 5; see also FrequentlyAsked Questionsaboutthe Cartagena
Protocol on Biosafety, at http://www.biodiv.org/biosafe/protocol/FAQs.html (last visited
Dec. 13,2000) [hereinafter FrequentlyAsked Questions].
132 See id.
134 See Cartagena Protocol on Biosafety to the Convention on Biological Diversity, at
(last visited on Dec. 13,
2000) [hereinafter Cartagena Protocol Text].
135 See Hagen & Weiner, supranote 77, at 710.
136 Id. (emphasis added); see also Cartagena Protocol Text, supranote 134, art. 1
(emphas3i7s SaededeCda)r.tagena Protocol Text, supranote 134, arts. 7-10.
potohseerdLtoMLOMs Othsatinwtielnldbede ifnotrednitrioecntaullsye ianstrfoodoudceodr fteoedth.1e38environment as
Under AIA requirements, the exporter of GMOs must ensure
notification in writing to the importer prior to the international trade of potentially
dangerous GMOs1 39 As stated in Article 8 and Annex I, information
required in notifications includes the identity of the GMO, the characteristics
of both the recipient and donor organisms related to biosafety, a description
of the genetic modification, the quantity of the goods, suggestions of safe
handling, storage, transport and use of the GMOs, and the regulatory status
of the GMOs in the country of export.14° After receiving notification, the
party of import has ninety days to acknowledge the receipt of the
notification and communicate to the notifier whether the transboundary movement
may proceed under Articles 9 and 10.141 In addition, the party of import has
270 days from the date of receipt of notification to communicate its
decision whether to proceed to the party of export and to the Biosafety
Clearing-House, an international information clearing-house mechanism to
facilitate the exchange of information regarding GMOs. 142
Article 12 states that a party of import "may at any time, in light of
new scientific information on potential adverse effects [of LMOs] ..
.review and change a decision regarding an intentional transboundary
movement."' 143 In turn, the party of export has an equal opportunity to dispute the
changed decision by requesting the party of import to review its decision.'44
The parties to the CBD wisely included these strict requirements in
order to prevent the accidental release of potentially dangerous GMOs.
The adopted Protocol also contains labeling requirements. 145 Under
Article 18, when shipping LMOs that are intended for intentional
introduction into the environment, parties must provide accompanying
[Cilearly identifies them as living modified organisms; specifies the identity and
relevant traits and/or characteristics, any requirements for the safe handling,
storage, transport and use, the contact point for further information and, as
appropriate, the name and address of the importer and exporter; and contains a
declaration that the movement is in conformity with the requirements of this
Protocol applicable to the exporter.1 46
138 Cartagena Protocol Press Release, supranote 4.
139 See Cartagena Protocol Text, supra note 134, art. 8.
141Id.art. 8, annex I.
141 See id. art. 9.
142 Id.art. 10.
144Cartagena Protocol Text, supranote 134, art. 12.
14S1ee id.art. 18.
Parties should use these labeling requirements to avoid any potential
adverse effects on biodiversity, including risks to human health, by the
release of LMOs into the environment.' 47
However, at the Montreal meeting, the United States negotiated a
concession with respect to the labeling requirement: bulk shipments of goods
for food, feed, or processing only require a label that states that the products
"may contain" GMOs. 4 This concession only weakens the labeling
requirement measure slightly because the dangers of transboundary
movement of food, feed, or processing goods does not warrant the specific
labeling requirements necessary for more experimental GMOs, such as
GMO seeds, intended for intentional introduction into the environment.
However, the Protocol's labeling requirements for food do not address the
concerns of consumers who want to make conscious decisions about
whether to ingest GMO foods; the label is only seen by the actual producers
and buyers of shipments and not by the consumers.
Not only does the Protocol require parties to label LMOs, it also
requires parties to establish and maintain risk management procedures to
regulate potential risks of the transboundary movement of LMOs.'49 Under
Article 16, each party must adopt measures that require risk assessments to
be conducted prior to the initial release of an LMO. 5 ° In addition, each
party must ensure that "any living modified organism... has undergone an
agpepnreoraptriioantetipmereiobdefoofreobitseisrvpauttiotno itthsatinitsencodmedmuesnes.u''rate with its life-cycle or
The Protocol contains a retroactive safety provision, Article 17, which
discusses the unintentional transboundary movements of LMOs and
emergency measures addressing these unintentional movements. 152 If a party
unintentionally releases LMOs into the environment, it must immediately
notify affected and potentially affected countries, the Biosafety
ClearingHouse, and, where appropriate, international organizations with jurisdiction
in the affected area or areas.153 Moreover, the party responsible for the
release must consult with the affected or potentially affected parties to
determine any appropriate emergency measures to minimize adverse effects on
"' See Bill Lambrecht, Nations OK Pacton GeneticallyModified Foods; Treaty
Regulates Technology butAllows Its Use; Monsanto, GreenpeaceHailAccord, ST. Louis
POSTDISPATCH, Jan. 30, 2000, at Al; see also Cartagena Protocol Text, supranote 134, art. 18.
14S9ee Cartagena Protocol Text, supra note 134, art. 16.
152 See id. art. 17.
Finally, the Protocol also requires the establishment of procedures for
liability and redress under Article 27.155 The Protocol calls for the adoption
of "a process ...of international rules and procedures in the field of
liability and redress for damage resulting from the transboundary movement of
living modified organisms" within four years.'5 6
2. FacilitationofProceduresin the Protocol
contains provisions that facilitate the transboundary movemmeenatsuorfeLs,MiOtsa.l1s5o7
Not only does the Protocol provide various safety
Article 13 of the Protocol provides a simplified procedure for the
transboundary movement of LMOs previously established as safe.158 The party
of import may specify in advance to the Biosafety Clearing-House cases in
which the transbounda5r9y movement of LMOs and the notification can take
In addition, under Article 14, the adopted Protocol allows parties to
enter into multilateral, bilateral, and regional agreements and arrangements
with other parties and non-parties that can substitute for adherence to the
Protocol.160 These agreements must include safety provisions that "do not
result in a lower level of protection than that provided for by the
Protocol.",161 Parties must inform each other, using the Biosafety
ClearingHouse, of any such agreements.' 62 The provisions of the Protocol will not
affect intentional transboundary movements under these bilateral, regional,
or multilateral agreements. 61 This article also allows a party to determine
whether its own domestic regulations should apply to specific imports to it,
as long as the party notifies the Biosafety Clearing-House of its decision) 64
Under Article 20, the Protocol encourages free exchange of
information regarding LMOs. 6 As discussed above, the Protocol establishes a
Biosafety Clearing-House in order to "[fjacilitate the exchange of scientific,
technical, environmental and legal information on, and experience with,
living modified organisms.', 166 This free exchange of information addresses
the inability of developing countries to make informed decisions on
whether to permit the import of LMOs and how to implement the
Proto155See Cartagena Protocol Text, supranote 134, art. 27.
157 See generallyCartagena Protocol Text, supranote 134.
158See Cartagena Protocol Text, supranote 134, art. 13.
160See id.art. 14.
163 See id.
164 See Cartagena Protocol Text, supranote 134, art. 14.
161 See id. art. 20.
Northwestern Journal of
International Law & Business
Col.1 67 The Biosafety Clearing-House serves as the means to provide access
to information made available by the parties. 168 The Clearing-House will
use the Internet as a main vehicle to distribute information. 169 This
information includes national regulations for the implementation of the
Protocol, information required in AIA procedures, any multilateral,
bilateral, and regional agreements, summaries of risk assessments or
environmental review of LMOs, and final decisions regarding the import of
specific LMOs.170 Under the Cartagena Protocol, governments will indicate
whether they are willing to accept imports of agricultural goods that contain
LMOs by communicating their decisions to this Internet-based Biosafety
Finally, Article 22 of the Protocol addresses capacity-building. 172 The
parties recognize that for the purpose of effectively implementing the
Protocol, they must develop and strengthen human resources and institutional
capacities in biosafety in developingcountries, especially in least developed
and small island developing states. When addressing this issue of
capacity-building in biosafety, parties must consider a developing country's
needs for financial resources and access to, and transfer of, technology.' 74
Thus, for developing country parties to meet the requirements of the
Protocol, all parties must facilitate the development of institutional resources in
those countries with both financial and technological support.
3. FinancialMechanismfor the Protocol
An analysis of the financial mechanism behind the Protocol is also
important to determine whether the Protocol will be effective. Before the
Protocol is implemented, it is difficult to determine whether its funding is
adequate to implement the day-to-day procedures (e.g., filing documents,
maintaining the Biosafety Clearinghouse, keeping records of dangerous
GMO products) necessary to enforce the procedures established under the
Protocol. This section gives a brief description of some of the funding
already set aside to implement the Cartagena Protocol to give readers a basic
understanding of its financial mechanism. 175
167 see id.
168 See id.
169 See Cartagena Protocol Press Release, supranote 4.
170 See Cartagena Protocol Text, supranote 134, art. 20.
171 See Cartagena Protocol Press Release, supranote 4; see also Cartagena Protocol Text,
supranote 134, art. 20.
172 See id. art. 22.
173 See id.
174 See id.
175 Please note that the following is only a brief summary. It was difficult to obtain
complete information on the subject of funding. In addition, a complete analysis of funding
would go beyond the scope of this article.
In Article 28, the parties define the financial mechanism and resources
for the Protocol.' 6 The Protocol incorporates the financial resources and
mechanism provisions of the Convention on Biological Diversity, Articles
20 and 21 respectively."
Article 20 of the CBD states that each contracting party to the CBD
must provide "financial support and incentives" for national activities that
attempt to achieve protection of biodiversity. 178 In addition, developed
countries must provide additional financial resources "to enable developing
country Parties to meet the agreed full incremental costs to them of
implementing measures which fulfil[sic] the obligations of this Convention." 179
In addition to requiring financial support, Article 20 encourages voluntary
contributions from parties as well18 Finally, developed countries may also
provide financial resources to developing countries through bilateral,
regional, and other multilateral channels.
Article 21 provides for a financial mechanism "for the provision of
financial resources to developing country Parties... on a grant or
concessional basis. 182 The mechanism functions under the authority and guidance
of the Conference of the Parties ("COP"). 8 3 At its first meeting, the COP
decided that the Global Environmental Facility ("GEF") would conCtinBuDe. 1a8s4
the institutional structure to operate the financial mechanism of the
The GEF is a restructured financial institutional structure, "established to
forge international cooperations and finance action to address four critical
threats to the global environment... [including] biodiversity loss ....,,185
dAervtieclloepe2d1 caolsuontrreyitpearrattieess aenndcobuyraogtehmerecnotufnotrrievsolaunndtasroyurccoenst.r1i8b6utions from
Article 28 of the Protocol also addresses the need for financing
capacity-building of developing countries, as described above.18 7 It requires the
176 See Cartagena Protocol Text, supranote 134, art. 28.
17"Convention on Biological Diversity - Convention Text: Article 20. Financial
Resources, at http:/vvww.biodiv.org/chmlconv/art20.htm (last modified May 25, 2000)
[hereinafter CBD Article 201.
180 See id.
185What is the GlobalEnvironment Facility?,at http://www.gefweb.org/What-is-theG
EF/wvhatisjthe gef.htmnl (last visited Jan. 18, 2001) [hereinafter What is the GEE].
18S6ee CBD Article 21, supranote 182.
18S7ee Cartagena Protocol Text, supranote 134, art. 28.
COP to take into account the financial needs of developing countries,
including least developed and small island developing states, in their efforts
to implement their capacity-building requirements."'
Adhering to its Article 28 requirements, the COP reconfirmed its
approved year 2000 budget of US$ 1,078,800 for the Protocol on Biosafety at
its January meeting in Montreal. s9 The COP also noted funds received
from the Special Voluntary Trust Fund ("BE") for Additional Voluntary
Contributions in Support of Approved Activities, a trust of voluntary funds
discussed above, in the amount of US$ 306,000 for 1999-2000.190 The COP
used these voluntary funds for meetings, the Biosafety Clearing-House, and
a roster of experts in fields relevant to risk assessment and management. 19'
At its meeting in Nairobi in May 2000, the COP set its budget for the
biennium 2001-2002.192 The budget includes the following funding for the
Biosafety Protocol: US$ 100,000 per year for regional meetings of the
Biosafety Protocol, US$ 483,600 per year for the ICCP, an undecided
amou19n3t for implementation, and an undecided amount for biosafety in
4. Relationshipwith OtherInternationalAgreements
One of the most disputed issues that the parties negotiated when
establishing the Cartagena Protocol is the relationship between the Protocol and
other international agreements, specifically agreements under the World
Trade Organization (,"WTO"). 19 4 The dispute stems from the different
premises on which the agreements operate. 195
While environmental agreements [like this Protocol] are premised on the
precautionary principle (which states that potentially dangerous activities can be
resdtercicisteiodnsevuenndebreftoraredethlaewy c[WanTbOeJ srceiqeunitriefic"asullfyficpireonvtesnciteontciafiucseevsiedreinocues."d1a96mage),
8 See id.
189 See Decisions of the Conference of Parties, Montreal 2000: EM-I/3. Adoption of the
Cartagena Protocol and Interim Arrangements, at http://www.biodiv.orgldecisionsfExCOPl/
html/excop-l-dec-03-e.htm (last visited Dec. 13, 2000) [hereinafter EM-113 Decision].
' 90 See id. § IV.
91 See id. §§ IV, II.
192 See Decisions Adopted by the Conference ofthe Parties to the Convention on
Biological Diversity at Its Fifth Meeting, Nairobi, 15-26 May 2000: V/22. Budget for the
Programme of Work for the Biennium 2001-2002, at http:lwww.biodiv.orgldecisionslcop5/
html/COP-5-Dec-22-e.htm (last visited Jan. 18, 2001) [hereinafter V/22 Decision].
'93See id.Table 1.
194 See Cartagena Protocol Press Release, supranote 4.
Under the Cartagena Protocol, the Protocol and the WTO "are to be
mutually supportive." 97 However, the Protocol is not to affect "the rights and
obligations of a Party under any existing international agreements." ' '
This subordination to existing international agreements may reduce the
effectiveness of the Protocol. For example, if WTO trading laws do not
require the strict safety measures adopted in this Protocol, WTO members,
even if they are also parties to the CBD, may be able to avoid compliance
because of the subordinate position of the CBD. In addition, WTO and
CBD members could also claim that one of their members is using a
Protocol restriction, without scientific evidence, as a mere guise for trade
Because the United States is not a party to the CBD, and thus not
required to follow the Protocol, the effectiveness of the Protocol may also be
weakened. However, American industry must comply with the Protocol
rules when exporting to countries that are parties to the CBD because if
American companies do not comply, party countries will not accept
American shipments. 99 In addition, federal United States officials at the Montreal
meeting stated that the United States would honor the treaty.200 This
promise raises the issue of whether the United States can be trusted to honor a
treaty without being legally bound to it.
V. ANALYSIS OF THE PROTOCOL
Now that they have adopted the Cartagena Protocol, the parties should
ratify and implement it. The two main factions, industrialized countries and
developing countries, have sensibly negotiated a protocol to regulate the
transboundary movement of GMOs. A compromise that establishes basic
regulatory standards, like the Cartagena Protocol, will benefit both
factions.20' There are numerous reasons to ratify this Protocol.
First, the deliberate release of GMOs is an international issue. 20 2
Because the deliberate release of GMOs in one country could potentially affect
the population or environment of another country or countries, international
standards should be established. 203 For example, as discussed previously,
197 Id.;see also Cartagena Protocol Text, supranote 134, preamble.
198Cartagena Protocol Text, supranote 134, preamble; see also Cartagena Protocol Press
Release, supranote 4.
9'9 See Andrew Pollack, 130 Nations Agree on Safety Rules for Biotech Food, N.Y.
TIMEs, Jan. 30, 2000, at 1.
201See Kim, supra note 53, at 1162. "Harmonization of international regulations for the
deliberate release of GMOs into the environment is needed to encourage the development of
genetically engineered products, to promote international trade, and to protect human health
and the environment with common safety standards." Id.
202 See Kim, supranote 53, at 1168.
203 See id.at 1169.
wheat grown in one country that has been genetically altered to resist
pesticides could pass its pesticide-resistant genetic qualities onto weeds growing
in another country, potentially disrupting the ecological cycles of the latter
country's environment. 2° Thus, if the COP can ratify international
standards for the deliberate release of GMOs, all countries will receive greater
protection from the potential dangers of the release.20 5
Second, because there are many potential risks to both the environment
and human health from the deliberate release of GMOs, the COP should
ratify the Protocol to manage these potential risks.206 The COP rightfully
invoked the "precautionary approach" when establishing the Cartagena
Protocol. Because scientists have not been able to predict the future harms
of GMOs with certainty, 207 and these harms may not be easily halted or
reversed,20 8 the COP should implement strict regulations until the safety of
specific GMOs can be scientifically proven.
As stated in Article 4 of its text, the Protocol regulations apply only to
LMOs "that may have adverse effects on the conservation and sustainable
use of biological diversity, taking also into account risks to human
health., 20 9 Thus, once scientists have proven that a specific LMO may not
pose an "adverse effect," that LMO will no longer be subject to the
regulations of the Protocol.210 This gives biotechnology companies, like
Monsanto, incentives to conduct scientific research to prove the safety of their
products. While scientists conduct research on the safety of LMOs, the
Protocol allows a loosening of regulations, such as its simplified procedures
for transboundary movement of LMOs, "provided that adequate measures
are applied to ensure the safe intentional transboundary movement of living
modified organisms.,' 2 "
Third, the COP should ratify the adopted Protocol because it provides a
central information clearing-house to disperse information about LMOs.
As previously discussed, under the Protocol, the Biosafety Clearing-House
becomes the central body with information about LMOs, such as potential
risks and scientific studies. Thus, the free flow of information mandated
in the Protocol can assist developing countries without information about
GMOs in making informed decisions about whether to allow GMO
imports.1 3 In addition, the COP should implement the Biosafety
Clearing214 See id. at 1168.
115 See id. at 1200.
206 See id.. For a discussion of potential risks, see supra Section IC.
207 Kim, supranote 53, at 1200.
208 Id. at 1169.
209 Cartagena Protocol Text, supranote 134, art. 4.
210 See id.
House immediately in order to make information readily available for
countries to establish their own laws on the regulation of GMOs until the
Protocol can be ratified. 1 4 As use of the Internet continues to expand globally,
the Biosafety Clearing-House should use the Internet as a main source of
Fourth, the Protocol should be ratified because it provides a minimum,
uniform standard of regulation.215 This uniform standard has benefits for
both importing countries and biotechnology companies. 1 6 An international
protocol allows for the safe trade of GMOs across international borders,
while it benefits companies by establishing one set of uniform regulations
that the industry must follow. 21 7 Presently, companies marketing a new
GMO must abide by the regulations of each country, raising the cost of
marketing the product around the world.218 Adoption of a uniform standard
would reduce these marketing cost trade barriers to make GMOs more
readily available to consumers in the global marketplace.219
The Cartagena Protocol also maintains flexibility as it allows countries
to adopt equivalent standards to those in the Protocol.220 Under the WTO's
SPS Agreement, member countries have discretion to establish their own
trade regulations as long as those standards are equivalent to the importing
country's appropriate level of protection.221unSeitmhPirltacrlly, under the Protocol,
parties can establish outside agreements regarding the transboundary
movements among themselves as long as those agreements do not result in
a lower level of protection provided in the Protocol.222
Fifth, by establishing a uniform protocol, the COP can stop the
exploitation of countries with less stringent regulations or countries without
regulations. 223 Currently, biotechnology companies often choose to conduct
field testing and marketing in countries with little or no regulation of
GMOs.224 Usually, developing countries do not have regulations because of
a lack of information or a lack of financial resources to establish
regulations.22 Under the Protocol, because all countries, both industrialized and
214 See Sanchez, supra note 126. "Ifand when it is adopted, the Cartagena Protocol must
be ratified by each signatory government, meaning it could take three or four years to go into
effe2ct15...S."ee Kim, supranote 53, at 1202.
216 See id.at 1200.
218 See id.at 1196.
219 See id.at 1200.
220 See Cartagena Protocol Text, supranote 134, art. 14.
221 See SPS Agreement, supranote 62, art. 4.
222 See Cartagena Protocol Text, supranote 134, art. 14.
223 See Kim, supranote 53, at 1197.
2 See id.
developed, would have established regulations, biotechnology companies
would have less incentive to continue to use developing countries as testing
grounds for their products.
Sixth, the ratification of the Protocol may decrease public opposition to
GMOs. In countries around the world, people are publicly opposing GMO
foods. 26 For example, in Europe, critics of GMO food have sabotaged test
plots of GMO crops. 7 In June 1999 in Brazil, a federal judge banned the
sales of Monsanto's Roundup Ready soybean seeds until the Brazilian
government could set up biosafety regulations.2 8 Various representatives from
the Brazilian government have questioned the safety of transgenic foods .229
For example, Rio Grande do Sul Governor Olivia Dutra stopped
transgenicseed production at 79 test sites, claiming the sites lacked
environmentimpact studies.2 0 Since Brazil is the world's second-largest soybean
producer, Monsanto wants to market its transgenic soybean seeds there.23 If
the COP can ratify and implement the Protocol, public opposition to GMO
foods may decrease, opening up markets, such as Brazil, to transgenic
VI. AN ALTERNATIVE TO THE PROTOCOL-VOLUNTARY REGULATIONS
In addition to an international protocol, there have been other
alternatives proposed to regulate the international trade of GMOs. The Aspen
Institute advanced the "alternative path" concept to environmental regulation
in 1993 22. In their article, Private Legal Mechanismsfor Regulating the
Risks of GeneticallyModified Organisms:An Alternative Path Within the
Biosafety Protocol,Thomas Redick, William Reavey, and Dirk Michels
argue that the parties to the CBD should permanently adopt the "alternative
path" concept to the regulation of the deliberate release of GMOs into the
environment. 233 Under the two-track approach to managing the risks of
GMOs, already agreed to by the parties to the CBD, companies who could
demonstrate a net environmental benefit to the release of GMOs would be
subject to a voluntary monitoring system rather than the stricter
case-bycase analysis under the Protocol. 14
226 See Barboza, supranote 32, at Al.
228 Epstein, supranote 13, at A14.
229 See id.
231 See id.
232 See Redick et al., supranote 1, at 56 (citing Dorothy P. Bowers, The AlternativePath:
A New Blueprint,ENvmL. F., Mar./Apr. 1997, at 36-7).
233See Redick et al., supranote 1, at 55.
The authors discuss various alternatives to regulate GMOs, such as
already existing programs, the ISO series of standards, and the possibility of
the creation of a new corporate ethic.?35 Many corporations have already
developed self-regulating environmental protection programs because of
conscientious executives or because of the cost-effectiveness of
selfregulation. z6 For example, Johnson & Johnson has established an
environmental program where a steering committee, consisting of vice
presidents, meets to discuss the incorporation of new environmental protection
methods into the company's strategic plan.3
The authors also suggest that intellectual property licensing
agreements, another already existing mechanism, could help regulate
environmental risks.2 8 For example, Monsanto Corporation has already
established a licensing agreement for Bollagard® cotton, where cotton
growers must agree to create a buffer zone of non-genetically altered crops
surrounding an area of genetically altered crops.' 9 These buffer zones
diminish the exposure of insect populations to the genetically engineered
crop in order to prevent the development of insect resistance to the 2
Another alternative discussed is the ISO series of standards.24 The
ISO 14000 Series of Environmental Contract Specifications are
international standards for environmental management.: 42 Redick, Reavey, and
Michels suggest that the ISO series "could provide the biotechnology
industry with standardized legal provisions for internal environmental corporate
policies.' 2 43 Under these provisions, a party may adopt third party
certification, where an outside firm confirms the party's compliance
mental regulations as part of an environmental management sywsteitmh
Finally, the authors consider the possibility of multinational
biotechnology companies as catalysts for environmental "sustainability. 245
"'Sustainability' is generally defined as the management of 'natura,l,,4s6-ystems for
the perpetuation of the human species now and in the future. They
encourage "conscientious consumers .... developing nations, and
multina2 5 See id.
236 See id.at 57.
237 Id. at 59.
M See id. at 60.
23' See id. at 60.
241 See id. at 62.
213 Id. at 62-63 (citing Henry P. Baer, Jr., Note, ISO 14000: PotentialCompliance and
Prevention GuidelinesforEPA and DOJ,7 FORDHAMENVTL. L.J. 927, 934 (1996)).
244 See Redick et al., supranote 1, at 63.
245 See id. at 72.
246 Id. (citing Celia Campbell-Mon, Objective and Tools of Environmental Law, in
SUSTAINABLE ENVmONiENTAL LAW: NTEGRATING NATURAL RESOURCES AND POLLUTION
ABATEMENT LAW FROM RESOURCES TO RECOVERY (Celia Campbell-Mohn et al. Eds., 1993)).
Northwestern Journal of
International Law & Business
tional corporations creating sustainable GMOs" to come together "to
promote the use and consumption of sustainable GMOs."2 47 Biotechnology
companies, such as Monsanto, argue that the dissemination of "new
information technology may be the key to sustainable development."2 4 For
example, because of discoveries in new information technology, scientists can
genetically alter crops to be insect resistant, eliminating labor hours and
toxic residues connected to the production and disbursement of
pesticides. 249 Thus, the authors argue for a biosafety protocol "that encourages
eNxGpoOrtasnodfiGndMuOstrsyainndterreeqstusiriens sienafrocrhmfaotiroan sduisstsaeinmaibnlaetifount"urien."o' r0der to "unite
B. Analysis of Voluntary Regulations
A voluntary system of self-regulation of GMOs will not lead to
compliance for numerous reasons. First, there is too much money involved in
the production and sale of GMOs to allow private companies, whose
primary interest is to profit, to self-regulate. For example, American Home
Products, which acquired Monsanto in June 1998, made over US$ 2 billion
in net agricultural sales in 1998 and projected just under US$ 2 billion in
net agricultural sales in 1999.21 Because of this large financial interest,
biotechnology companies, such as Monsanto, may be guided by economics
rather than environmental safety. For instance, after a Cornell University
study showed that genetically altered corn could stunt the development of
the monarch butterfly, creating greater controversy regarding the safety of
GMOs, some of the large biotechnology companies financed a scientific
conference to discuss the safety of gene-altered corn.2 2 However, prior to
the conference, conference staff members issued a press release announcing
that the conference would show that genetically engineered corn does not
harm the monarch butterfly, although many scientists acknowledged that
their research was incomplete.2 3 Announcements like this indicate that
private biotechnology companies cannot be left to self-regulate.
Second, biotechnology companies' efforts to hire influential United
States governmental officials in order to improve public opinion of GMO
foods also indicates that the industry cannot be trusted to regulate itself.
For example, in the fall of 1998, when the debate on the safety of GMO
foods percolated in Ireland, Monsanto flew a group of Irish journalists to
247 Redick et al., supranote 1, at 75-76.
2481d. at 74 (citing Joan Magretta, Growth Through Global Sustainability:An Interview
with24M9SoenesRanedtoic'skCeEtaOl.R,soubperratBn.otSeh1a,paitro74,H-7A5.v. Bus. REv., Jan.-Feb. 1997, at 78, 82).
250 See id. at 76.
251David J. Morrow, MarketPlace: Three Drug CompaniesareMoving to Dump their
AgriculturalUnitsas Worldwide SalesDecline, N.Y. TnEms, June 29, 1999, at C12.
252 See Barboza, supranote 32, at A26.
the United States to tour its labs. 4 While in the United States, the
journalists received a surprise visit to the Oval Office of the White House,
coordinated by Marcia Hale, an employee of Monsanto, who was the President's
director of intergovernmental affairs. 5 Thus, Monsanto's efforts, and
similar efforts by other biotechnology companies, to improve public
opinion of GMO foods by doling out special favors also indicate that the
biotechnology industry cannot be trusted to regulate itself.
In conclusion, the dangers of the unregulated transboundary movement
of GMO products calls for standard international regulations. The parties to
the CBD have adopted a protocol that can curb these dangers, while still
allowing for the continuation of free trade of GMOs. While the compromises
in the Protocol still leave potential problems unanswered, in its entirety, the
Cartagena Protocol provides sound international regulations of GMOs.
Thus, because of the merits of the Cartagena Protocol, the parties to the
CBD should ratify and implement it as soon as possible.
254 See Lambrecht, supranote 12, at A8.
9The Protocol uses the term "living modified organisms". This article uses the terms "genetically modified organisms" and 'living modified organisms" interchangeably - a common practice used in public debate on the subject .
10 Report of the Sixth Meeting of the Conference to the Parties to the Convention on Biological Diversity, United Nations Environment Programme (UNEP) , at http://www.biodi v.org/excopl/cbdrepi.html (last visited Oct. 31 , 1999 ) [ hereinafter BSWG Report 6].
1 Redick et al., supranote 1 ,at 6.
12 Bill Lambrecht , World Recoils atMonsanto's Brave New Crops; The St. Louis Company'sPoliticalCloutHasTurnedthe PresidentandCabinetSecretartiesinto Pitchmen ,ST. Louis POST -DISPATCH, Dec . 27 , 1998 , at Al.
13 Jack Epstein. BrazilBattles OverBan on Altered Beans , WASH. Tuvms, Aug. 30 , 1999 , atA14 .
14Susan Boensch Meyer, Land and Resource Management: GeneticallyModified Organisms , 1998 CoLo. J. INT'L ENvTL. L . & POL'Y Y.B . 102 ( 1998 ).
17Id. at 102-03.
1Id. at 103 (quoting Ronald E. Yates, GeneticEngineeringMoves into Corn, Soy Beans, "Break-through" Seeds Likely to Boost Yields, Transform Industries ,Ciu. Tam., Mar . 17 , 1996 , at Cl).
59 Saigo, supranote 50 , at 787.
60See Meyer, supranote 14 , at 102.
62See, e.g., Agreement on the Application of Sanitary and Phytosanitary Measures, Apr . 15 , 1994 , Marrakesh Agreement Establishing the World Trade Organization, Apr. 15 , 1994 [hereinafter WTO Agreement], Annex IA , reprinted in JOHN H . JACKSON , WILLIAM J. DAVEY , & ALAN 0 . SYKES, JR., 1995 DocmrMNrs SUPPLEMENT TO LEGAL PROBLEMS OF INTERNATIONAL ECONOMIC RELATIONS , at 121 (3rd ed. 1995 ) [hereinafter SPS Agreement]; see also Solberg , supra note 24 , at 561- 564 (for a similar discussion regarding NAFTA's sanitary and phytosanitary standards).
63 For a discussion of how the Cartagena Protocol specifically addresses these dangers, see infra Section V.
6 See MICHAEL J. TREBILCOCK & ROBERT HoWsE , THE REGULATION OF INTERNATIONAL TRADE 25 (2d ed. 1999 ).
6 See id .
77See id. art. 3 ( 3 ); see also Paul E. Hagen & John Barlow Weiner, SYMPfOSIUM ARTICLE : The CartagenaProtocolon Biosafety: New Rules forInternationalTrade in LivingModifiedOrganisms, 12 GEo . INT'L ENvm. L. Rlv . 697 , 710 ( 2000 ) (stating that while the SPS agreement also permits WTO members to take interim measures in the absence of scientific evidence under article 5,parties generally cannot do so).
78See SPS Agreement , supranote 62 , arts. 12 ( 1 ), 12 ( 7 ).
7- Id . arts. 12 ( 1 ), 12 ( 2 ), 12 ( 4 ).
soSee TREBILCOCK & Howsa, supra note 64, at 147; for a more lengthy discussion of flexibility of regulations, see infra Section IVE2 .
S ,See Biosafety ProtocolCouldHinderInternationalBiotech Trade,Says Analyst, FOOD LABELING NEws , (Information Access Company Newsletter Database), Nov. 18 , 1998 , at 6. 93 Id.
18 Convention on Biological Diversity - Convention Text: Article 21 . Financial Mechanism, at http:/Ilvwv.biodiv.org/chmnconv/art2l.htm (last modified May 25 , 2000 ) [hereinafter CBD Article 21].
183Id.; see also FinancialMechanism, at http://vww.biodiv.orgtfm/frm.html (last modi-