The question of whether genetically modified organisms (GMOs) are helpful or harmful has persisted since the 1970s, but reached no solid conclusion. As the U.S. Supreme Court is poised to hear oral arguments on Tuesday, February 19 in Bowman v. Monsanto Co. that will have far-reaching implications for the GMO debate: whether self-replicating technologies can be patented. If the court sides with Monsanto, a patent holder will be able to enforce their patents and control the subject matter of the patent in perpetuity. In relation to GMO seeds as is at issue in the case at bar, Monsanto would effectively have monopolistic control over much of U.S. agriculture. This would also have the effect of promoting the interests of GMO proponents.
Central to this debate is whether or not GMOs are safe and sustainable methods employed in agriculture and animal husbandry. GMO plants and animals are engineered for human consumption, and many of the genetic traits chosen for expression relate to increasing the resistance or immunity of the target organisms to pesticides or herbicides. The aim is to meet the demands of a growing world population and to end hunger. At the same time, nearly twenty-five years of development and fifteen years of commercialization have not resulted in transgenic or GMO crop yield increases, while advances in traditional methods have. Still, intellectual property protections have been given ten multinational corporations who now control approximately sixty-five percent of all seed for major crops and one company controlling ninety-five percent of all genetically modified seed.
The first genetically modified organisms beyond the utilization of artificial selection include a cross-kingdom experiment expressing genes from a toad in bacteria, transgenic mice, and genetically engineered tobacco plants. The major factors fueling the drive behind the creation, promotion, and use of GMOs are interrelated: the progress of scientific method and understanding, the increase of profitability and yield of agribusiness, and providing enough food for the growing world population. The primary arguments against the use of GMOs include: unsafe or unknown risks in human consumption of GMO products, the loss of biodiversity, and the increase of invasive species, genetic pollution, and genetic erosion.
The rise of the genetic modification of plants, animals, and other products used for consumption by humans or other plants or animals postdates the development of international human rights law. The issue thus had to be worked into the existing framework to reconcile the competing conceptions of human rights, which afforded primacy to some of the issues central to the GMO debate, and unfortunately pigeonholed the larger issue into the framework of certain human rights, but not others. In the end, the promise of working towards scientific methods that would eliminate world hunger, which also promised to reach the same rights-ends through different means, became the majority position on the issue. GMOs were then presumed beneficial unless proven otherwise, and human rights dialogue dealt with GMOs through protecting the intellectual and cultural property of the owner(s) or author(s) rather than characterizing those objecting to the use of GMOs as victims whose human rights such as the rights to health, food, environment, and information needed vindication.
Perhaps the injury to such complainants is hardly cognizable in such a way that redress of the grievance is called for. In other words, the possibility that GMO seeds that “terminate” and will not germinate if replanted a second time could cross-pollinate other plants, which would sterilize those crops, at an indeterminate place and time in the future is not (judicially and politically) cause for concern. The hard work and legal protection acquired by corporations in developing such GMOs being freely acquired by unwitting farmers through inviolable natural processes is a more immediate legal injury that can be more readily addressed through the award of money damages or injunctive relief.
At the international level, the treatment of the same issues is similar. More abstract legal entitlements, however fundamental in the philosophy of human rights, are not afforded consistent treatment or protection. The right to peace is only in early stages of development, in spite of the human rights movement emerging out of the post-WWII development of the U.N. system of promoting and maintaining peaceful international relations. The Committee on Economic, Social, and Cultural Rights’ 2002 General Comment 15 on the Right to Water reveals that the right to water, essential to human life and well-being, is only implicated indirectly through the raising of other rights. The right to adequate food can focus on the quantity of food, likely favoring the status quo of legal entitlements, or the quality of food, likely disfavoring employment of GMO technologies.
Perhaps the biggest human rights battleground concerning GMO issues is in relation to the right to information: labeling. On one side, opponents of GMOs want such products to be clearly labeled as such, or at least to allow non-GMO products to be clearly labeled as such. Proponents of GMOs maintain the opposing position believing, like the U.S. Food and Drug Administration, that genetic modification does not materially alter food and other GMO products. Under this rationale, requiring or allowing labels either way creates an unfair assumption that there is any nutritional or health-related difference between GMO and non-GMO products. The U.S. successfully argued this position before the World Trade Organization, claiming the EU’s requirement that genetically modified food products to be labeled as such. Agreement has been more forthcoming in relation to determining what constitutes an organic product, demonstrated by the U.S.-EU organic equivalence arrangement, but this is more of a trade agreement than a legal instrument in the international human rights legal corpus.
No significant or direct precedent on these issues has been created in international jurisprudence, though some international organizations have taken a clearer position. The International Labour Organization (ILO) stated in a series of trade union education manuals for agricultural workers “GMO pesticides are not treated as a safer alternative to chemical pesticides.” Though the ILO admits that the science is yet unsure of the safety of GMOs, the organization remains skeptical of GMOs as they are not subjected to similar, “rigorous risk assessment and evaluation.”
The bulk of the rights implicated by the GMO issue fall into the economic, social, and cultural rights side of the spectrum, and an individual complaints mechanism for vindicating and redressing these rights at the international level will only begin in May of 2013, when the optional protocol to the International Covenant on Economic, Social, and Cultural Rights will enter into force. The existing international and national legal frameworks and doctrines will stand as an obstacle to the greater enshrinement of protective human rights related to food, health, environment, and information, for intellectual property law was much quicker than human rights laws to respond to the rapid expansion of biotechnologies.
Intellectual property right-holders therefore have the higher ground in relation to holders of other human rights: a patent-holder’s right to use and promulgate the subject matter of their patent will enjoy a presumption of validity over claims for information regarding the patent, to prevent its use, and to prevent the final product’s dissemination into the marketplace, ecosystem, or gene pool. Following the lead of the U.S., other major patent-producers such as the EU and Japan began issuing biotechnology patents on “new plant varieties, nonnaturally occurring nonhuman multicellular living organisms, including animals, and discoveries of naturally occurring human gene sequences.”
If the Supreme Court of the U.S. is a weathervane or harbinger of what lies ahead for GMOs, the Bowman case possesses a great potential to shift the framing of these issues in human rights rhetoric back towards the rights categories of health, environment, food, and information and also to extricate some degree of corporate interests and influence out of policy- and law-making. This would help to avoid situations like that of Argentina over the last fifteen years.
Genetically modified soy crops were introduced to Argentina in 1997. By 2004, Argentine farmers and citizens were widely claiming it was degrading to both the environment and health. By 2010, scientists had confirmed these claims as far back as 2002, but the importance of soy to Argentina’s agriculture and international trade has resisted any move away from GM soy. Argentina has subsequently approved the newest Monsanto GM soy seeds in August of 2012.
Disfavoring corporate interests and GMO proponents in this instance may prompt other corporations, governments, and international organizations to reexamine their policies on the use of GMO products. That result would also promote greater consciousness of the valid and competing human rights of farmers, consumers, and individuals, which have largely been trodden over.
