The Cartagena Protocol: Trade related measures as a means to protect biological diversity from risks deriving from genetically modified organisms

Abstract

The rise of modern biotechnology during the 1980s has been associated with various hopes in different fields. At the same time however, this development has also raised serious concerns. To control the risks which this technology might pose to the environment, the international community addressed the issue of biosafety in the Convention of Biological Diversity.As the Convention's general obligations were considered insufficient, states agreed to regulate the field of biosafety in a specific treaty, the Cartagena Protocol which was signed in January 2000 and came into force in September 2003. The Cartagena Protocol focuses on the regulation of trade in LMOs. This has recently triggerd a heated debated in international law about the question of the Protocol's relation to other international trade regulations, specifically to WTO law. While this question considers the Cartagena Protocol essentially from a trade perspective, this contribution approaches the Protocol from a more environmental perspective and asks whether the focus on trade constitutes an efficient mechanism to regulate biotechnology and whether the instruments which the Protocol provides for this regulation are adequate. To answer these questions, the contribution describes the risks and benefits associated with biotechnology to clarify the regulatory object of the Protocol and undertakes a detailed analysis of the central provisions of the Protocol and their functions. Based on this this contribution comes to two conclusions: first, if risks to the biological diversity should occur, these will not be limited to the country in which the LMO was released as an unintentional transboundary movement of these organisms will be hardly avoidable. As a result, the focus on the transboundary pollution caused by trade is insufficient. Second, if one considers the efficacy of the trademeasures as such, one can note that the flow of information especially fromdeveloped to developing countries will strengthen the decisionmaking capacities of developing countries and will thus contribute to a heightened ability of these countries to exercise, in practice, their sovereignty with regard to imports of LMOs. Summing up, one can therefore state that the Cartagena Protocol represents some amelioration with regard to the status quo ante, that the concept of the focus on trade as well as the way in which the AIA regulates this trade, however, remains behind what would have been desirable from an environmental point of view. © Springer-Verlag Berlin Heidelberg 2005.