Conservation and Sustainable Use of the Biosphere - WBGU

Conservation and Sustainable Use of the Biosphere - WBGU

58 D The use of genetic and species diversity

should only protect negative impacts on biological

diversity, and not on human health. Likewise, the

direct legal basis for the development of the protocol,

the operative portion of Decision II/5 of CBD

COP-2, only refers to biological diversity. However,

the considerations expressed in II/5 clearly show that

human health is also a concern that was shared by a

majority of the Parties and that should be addressed

by the protocol. Furthermore, Art. 19 para 3 should

be read in combination with Art. 8(g) of the CBD.

The latter provision calls for Parties to subject the

use or release of LMOs to a national risk control procedure

that should also consider risks to human


From a European point of view it should be

pointed out that Art. 4 of the Directive on the Deliberate

Release into the Environment of Genetically

Modified Organisms (GMOs) (90/220/EEC) obliges

the European Union (EU) member states to ensure

‘that all appropriate measures are taken to avoid

adverse effects on human health or the environment

which might arise from the deliberate release or placing

on the market of GMOs’. Furthermore, it is also

conceivable under certain circumstances and on the

basis of current international law to ban by national

legislation the importation of genetically modified

products with possible dangerous impact on human

health, without violating GATT. According to Art.

XX(b) of GATT it remains the right of the member

states to issue rules to protect the life and health of

people, animals and plants within their own territory

even if these have the effect of restricting trade.

Aware that such broadly defined terms actually

invite hidden restriction of international trade, in

1994 the Agreement on the Application of Sanitary

and Phytosanitary Measures (SPS) was adopted.

According to Art. 2 para 2 of the SPS the measures

taken may only be applied in the degree necessary

for protection ‘on the basis of scientific principles and

[may] not be upheld without sufficient scientific evidence’.

Pursuant to Art. 5 para 7 a member can in

cases in which the scientific evidence in this regard is

insufficient, [...] take provisional sanitary or phytosanitary

measures [...]. An example that would fall

under this exception to the free trade regulation

could – although it is not poised for admission onto

the market – be the ‘genetically modified (GM)

potato’. In a much disputed experiment, a gene was

inserted into potatoes that normally protects snowdrops

from being eaten by insects and had proved

relatively non-toxic in toxicological investigations.

Time-intensive experiments that are at present not

required in trials leading to commercial approval

showed however that the GM potato had significant

effects on the development of organs, metabolism

and immune system of laboratory animals to which it

was fed (Puztai, 1998; Sentker, 1999; Coghlan et al,

1999). One single experiment can certainly not be

taken as sufficient scientific proof in the meaning of

Art. 2 para 2 of the SPS, but Art. 5 para 7 SPS allows

national precautionary measures in the case of a recognized,

scientific, but not yet proven, risk potential.

Scope of application of the protocol’s

protective mechanisms

Opinions differ, first of all, on the extent to which end

products (particularly foods) into which LMOs have

been processed should be included in the protocol

besides ‘living’ modified organisms. Countries that

want to give the protocol very narrow scope base

their arguments on the wording of Art. 8(g) and 19

para 3 of the CBD. These provisions relate only to

LMOs, that is living modified organisms. The opposite

side demands an effective approach that takes

account of the comprehensive goals of the Rio Summit.

This stance is based on a number of scientific

studies according to which, in such cases, too, a damaging

impact on species diversity and human health

cannot be ruled out (Henningsen, 1998b).

Furthermore, it should be mentioned that both

EU Directive 90/220 and German legislation treat

genetically modified organisms and their products

the same (Art. 1 para 1, 2nd indent of the Directive;

Art. 2 para 1, No. 4 of the German Genetic Engineering


There is also lack of agreement on the issue of the

extent to which agricultural mass-produced goods

that are still living that serve as food, fodder or for

further processing should fall under the scope of

application of the protocol. Agricultural exporters

issued a vehement call for these goods to be

excluded. In the current draft of the protocol agricultural

commodities are only excluded from the AIA

procedure. And so, not just the processed food products

are to be excluded (eg cornflakes, soya oil), but

also the living products themselves (maize, soya

sprouts).The danger for biodiversity is in part seen as

low since the foods would not be released into the

environment.The considerable danger of an unintentional

release speaks crucially in favour of their being

included however.

Another question is whether agricultural commodities

constitute a danger to human health.To that

extent, the discussion has to be seen in the context of

the dispute about whether human health enjoys protection

under the protocol. If – as is foreseen in the

draft protocol – this is affirmed, then it would be

illogical to rule out genetically modified foods as a

potential source of danger to human health.

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