GMO Trade Regulation and Developing Countries
| Jurisdiction | South Africa |
| Citation | 2009 Acta Juridica 320 |
| Date | 15 August 2019 |
| Published date | 15 August 2019 |
| Pages | 320-380 |
| Author | Richard B Stewart |
GMO Trade Regulation and Developing
Countries
RICHARD B STEWART*
New YorkUniversity
I INTRODUCTION
Commercial adoption of genetically modified (GM) foods and crops (also
called ‘genetically modified organisms’ or ‘GMOs’) created through
recent innovations in agricultural biotechnology has triggered widespread
controversy over the environmental and economic benefits and risks of
GMOs as well as a wider range of social, cultural, and ethical values.
Differences among nations in their assessments of GMO costs and benefits
and in their interests and values have led different countries to adopt quite
different environmental health and safety (EHS) regulatory programmes
for GMO foods and crops. These differences in turn have produced sharp
trade conflicts. GMO agricultural exports from countries that favour
GMO technologies, such as the US, have been blocked by GMO
regulations in jurisdictions, such as the EU, that oppose or are sceptical of
GMOs. Moreover, the advent of domestic labelling and traceability
requirements for food imports, such as those recently adopted by the EU,
may seriously inhibit the use of GM crops in exporting countries even
where those crops are consumed internally or exported to third countries.
The advent of dramatically higher food prices and the threat to
developing country agriculture posed by climate change has enhanced
interest in the use of GMO crop varieties and led to some softening of
regulatory restrictions and consumer attitudes in Europe and some
developing countries, but sharp differences and conflicts over GMOs
remain. Such conflicts have posed a severe challenge to the international
authorities that deal with GMO trade and regulation – including the
WTO, international environmental and health standard-setting bodies
such as the Codex Alimentarius Commission, and the Biosafety Protocol.
In analysing this challenge, this article focuses particular attention on its
implications for developing countries. Unlike many international envi-
ronmental issues, the divide on GMOs is not North/South. There are
* University Professor and John E Sexton Professor of Law, New York University;
Director, Hauser Global Law School Program.
This paper is based on a Project on International GMO Regulatory Conflicts, funded by the
Rockefeller Foundation, which I directed. The support of the Rockefeller Foundation is
gratefully acknowledged. I also thank my colleagues in the project, Ernestine Meijer (who
provided much of the research reflected in this paper) and Jane Stewart, my NYU colleague
Rob Howse for helpful comments, and Jeremy Marwell and Nikhil Dutta for excellent research
assistance.
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sharp differences in GMO policies and regulations among developed
countries – most notably between the US and Canada on the one hand,
and Europe, Japan and South Korea on the other. There are also sharp
differences among developing countries. A number of important devel-
oping countries have, with varying degrees of caution, embraced GMO
crops, but many developing countries are on the fence and a few are
strongly opposed.
In Africa, South Africa and Egypt are the only countries with autho-
rised commercial plantings of GM crops; South Africa, in particular, is
regarded as a leader on GM crop issues in Africa.
1
In 2006 South African
farmers planted GM crop varieties on 1.4 million hectares, making the
country the eighth in the world in GM acreage. GM varieties accounted
for 92% of South Africa’s cotton, 44% of corn, and 59% of soybeans.
2
There is, however, domestic opposition to GMOs from environmental
and church groups. The government is taking a rather cautious regulatory
approach to GMOs. It recently denied approval for GM sorghum and
cassava for food and for GM corn to produce biofuel because of concerns
over containment of gene flow to non-GM varieties.
3
Eight other African
countries, namely Burkina Faso, Kenya, Morocco, Senegal, Tanzania,
Uganda, Zambia and Zimbabwe, have conducted field trials of GMO
crops. Twenty countries have some form of GMO research and develop-
ment programme.
4
There is, for example, a marked degree of emerging
interest in GMOs in Zimbabwe.
5
And even countries that remain
unwilling to plant GMOs have become more amenable to the prospect of
importing such crops. Kenya’s agriculture minister, for instance,
announced in August 2008 that Kenya would begin importing genetically
modified foods in response to food shortages.
6
There is, however, significant opposition in many developing coun-
tries to GMOs on economic and environmental health and safety (EHS)
1
‘Egypt approves BT corn cultivation’ International Service for the Acquisition ofAgri-
Biotech Applications Crop Biotech Update (25 April 2008). For a detailed if slightly dated
report on GMO policies and regulation in South Africa, see RA Wolson ‘South Africa: GMO
Regulation and Policy’ (Rockefeller Foundation Project on International GMO Regulatory
Conflicts, 2006).
2
GlobalAgriculture Information Network, US Department of Agriculture ‘Biotechnology
Annual Report 2007’(2007).
3
See M Mayet ‘No gateway to Africa’s sorghum’ (African Centre for Biosafety, 10 July
2006); T Kahn ‘Keep modified cassava behind glass – regulators’Business Day (Johannesburg, 22
March 2007); M Gosling ‘SouthAfrican government rejects modified maize’ Independent Online
(29 March 2007).
4
See M Mayet ‘The new green revolution in Africa: Trojan horse for GMOs?’ (African
Centre for Biosafety,2007).
5
See S Tsiko ‘Biotech can boost developing economies’Herald (Harare, 8 October 2007);
‘Cotton industry urged to invest in biotechnology’Africa News (14 February 2007).
6
‘Kenya to import genetically modified foods, says Minister’ Agence de Presse Africaine (18
August 2008).
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grounds, as well as out of concern that GM crops would threaten
traditional agriculture. Zambia, for example, has maintained implacable
opposition to commercial use of GM crops despite calls for a group of
scientific, agricultural and nongovernmental organisations to use GMOs
to reduce poverty and hunger.
7
At the same time, unauthorised plantings
of GM crops may be occurring in Southern Africa as GM seeds can easily
cross borders.
8
Developing countries have much more at stake in resolving these
conflicts than do developed countries.
9
The potential economic and
environmental benefits and risks are often greater for developing than for
developed countries. GMO crop varieties can potentially meet the food
security needs of developing countries and enhance crop exports. They
can also address the challenges of droughts and other impacts of climate
change,
10
and provide environmental benefits by reducing use of agricul-
tural chemicals and reducing the need to clear forests to expand crop
acreage. At the same time GMO crops may pose ecological risks that
developing countries are often ill-equipped to manage. GMO crops
grown by developing countries may also encounter consumer resistance
and regulatory restrictions in many developed countries.
The ability of most developing countries to chart their own course on
GMOs is limited. They have been trapped in the crossfire of conflict
between the EU and US, which has also prevented international trade
regulatory bodies, including the WTO, Codex Alimentarius, and Bio-
safety Protocol regime, from providing meaningful guidance on GM
trade regulatory issues. South Africa and other like-minded developing
countries interested in the responsible use of GMO crops need to develop
their own international forum in order to promote their interests. The
growing power of developing countries in international trade policy,
reflected in the Doha round collapse and the resultant weakening of the
WTO, makes such an initiative more realistic and likely.
II GM CROPS AND FOODS
The new GM agricultural biotechnologies, developed in the past 20 years
rely on gene-splicing to transfer traits from one plant or animal species to
another and other techniques to modify crop plants genetically with the
goals of making the crop plants resistant to pests, herbicides, diseases,
drought, and other stresses, including stresses from climate change,
7
See M Malakata ‘ZambiaAdamant: No GM’ SciDev.Net (3August 2007).
8
See S Tsiko‘GMO Products Spread in SADC – Study’ Herald (Harare, 22 May 2007).
9
See generally E J Meijer & R B Stewart ‘The GM cold war: How developing countries
can go from being dominoes to being players’ (2004) 13(3) Review of European Community and
International Environmental Law 247.
10
See H Pienaar ‘Drought-resistant maize trials to start soon in South Africa’Genetics News
(22 October 2007).
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