Branches of international environmental law - Introduction to International Environmental Law - page 156

genetically modifi ed plants in the world (corn, soy and rape, for example) are
produced in the USA, so it pushed forward with a treaty that secures the
export of these plants.
The participating states disagreed and adopted a treaty based on an advance
informed agreement (offi cial). After conducting risk assessment, the import-
ing party can reject the transboundary transportation of genetically modifi ed
organisms even when there is no scientifi c certainty regarding their harmful
effects. The Protocol on Biosafety is strongly based on the precautionary
principle (Article 10(6)):
Lack of scientifi c certainty due to insuffi cient relevant scientifi c informa-
tion and knowledge regarding the extent of the potential adverse effects
of a living modifi ed organism on the conservation and sustainable use of
biological diversity in the Party of import, taking also into account risks
to human health, shall not prevent that Party from taking a decision, as
appropriate, with regard to the import of the living modifi ed organism in
question as referred to in paragraph 3 above, in order to avoid or mini-
mize such potential adverse effects.
The United States was, of course, dissatisfi ed with this decision and did
not become a party to the Protocol: its view was that the WTO free trade
regulation takes priority in respect of the export of genetically modifi ed
plants.
The United States had already taken the EC to the WTO dispute settlement
in 2003, as the EC had prohibited the import of biotech products. The EC
referred to the precautionary principle as part of the WTO Sanitary and
Phytosanitary Agreement (SPS) but the dispute settlement found in favour of
the USA. The EC also emphasized the importance of the Biosafety Protocol
but since the USA was not a party to the agreement, the WTO dispute settle-
ment bodies could not take it into account.
In the recently adopted Nagoya Protocol , 25 the parties created procedures
to regulate access to genetic resources and the fair and equitable sharing of
benefi ts arising from their utilization. Genetic resources are defi ned in Article
2 of the Biodiversity Convention as genetic material that is or can be valuable.
Genetic material refers to 'any material of plant, animal, microbial or other
origin containing functional units of heredity'.
The Protocol is mainly procedural and requires, inter alia , prior informed
consent (PIC) of the supplier state of the genetic resources. A competent
authority of the state must formally accept the utilization of genetic
resources. If the national legislation acknowledges the rights of indigenous
peoples and local communities to these genetic resources, the competent
authority shall also set the criteria by which the utilizer acquires the prior
consent of these peoples and communities and secures their participation in
the project.