TCS Daily

Law and Horror

By Drew L. Kershen - December 20, 2002 12:00 AM

By coincidence on December 14, I received two documents addressing the famine in southern and eastern Africa - the World Bank/International Monetary Fund (IMF) statement on hunger in Africa and the Report of Zambian scientists to His Excellence the President of Zambia, Mr. Levy P. Mwanawasa recommending rejection of United States Agency for International Development (USAID) food aid. The former described the magnitude of the famines in Africa; the latter distorts a pending international agreement to intensify the human suffering from the famines.

The World Bank and IMF project that 14.4 million people will likely be at risk of starvation from January to April 2003 in Lesotho, Malawi, Mozambique, Swaziland, Zambia, and Zimbabwe. For Zambia specifically, the World Bank and IMF estimate that three million Zambians (25% of the population) will need 150,000 tons of cereals to survive until April.

Presently within the borders of Zambia are 50,000 tons of maize (corn) from USAID that could be distributed to hungry Zambians. More USAID maize sits available outside Zambia. The thousands of tons of USAID maize is the identical maize that Americans, Argentineans, Canadians, Chileans, Japanese, Mexicans, South Africans, Uruguayans, and others eat every day. The thousands of tons of USAID maize is the identical maize that the Australian-New Zealand, American, Canadian, European, and Japanese food agencies have approved as equally safe and nutritious as other maize.

In spite of this widespread international acceptance, the Zambian scientists recommended against acceptance of this USAID maize because it is transgenic maize produced with the precise, predictable, and common techniques of modern biotechnology. The Zambian scientists concluded: "The government should maintain the current stand of not accepting GM foods by employing the precautionary principle." As an alternative, the Zambian scientists proposed that the World Food Program (WFP) - the consortium of food relief agencies - remove USAID maize from Zambia while sourcing non-USAID maize for starving Zambians.

WFP's ability to source non-USAID maize may prove difficult because USAID provided 62% of all food aid last year. In addition, William S. Farish (U.S. Ambassador to the UK) has pointed out that world stocks of maize are nearly 25% lower than 2001 while, simultaneously, WFP has received only 56% of its requested monetary pledges for food purchases.

What caught my attention in the Report of the Zambian scientists was not the list of remote, highly-unlikely, hypothetical concerns about transgenic maize related to the environment, food safety, and trade advantage. This list is a standard anti-biotechnology litany that anyone familiar with the agricultural biotechnology debate can probably recite from memory. What caught my attention was a new reason for rejecting USAID food aid - a sophistic, legalistic reason that pierced this lawyer's beating heart.

In the sections of the Report entitled "Ethical Issues" and "GM Maize Currently in the Country," the Zambian scientists cited the Cartagena Protocol on Biosafety - a document proposed for international adoption in Montreal in January 2000 but not yet a legally binding international agreement. The Zambian scientists argued that the WFP use of USAID maize "goes against the spirit of international instruments such as ... the Cartagena Protocol." The Zambian scientists asserted that the Protocol requires advance informed consent for the transboundary movement of transgenic food. In light of this alleged violation of the spirit of the not-yet-adopted Cartagena Protocol, the Zambian scientists claimed that the WFP had acted unethically and illegally by bringing USAID food to starving Zambians. For the WFP to comply with the Zambian scientists interpretation of ethics and law, the WFP must wait for Zambia to develop a regulatory system and, once developed, wait while Zambia follows the Cartagena Protocol procedures permitting a country one-year to make a decision.

The Zambian scientists' assertion that the Protocol's advance informed agreement provisions apply to aid intended for direct food use is questionable. Regardless, the Zambian scientists have corrupted the clearly stated purposes of the Convention on Biological Diversity (CBD) - to protect biodiversity - to deny food to starving people who are eating any plant and animal around in order to survive. The CBD and its subsidiary Protocol demand that Zambians be fed so that they do not in desperation destroy biodiversity.

If the Zambian scientists' legal claim is questionable, their charge that WFP acted unethically is repugnant. Except for a passing reference to "distribution of food to the affected community," the Zambian scientists never mentioned what this lawyer thought might be the ethical issue - providing food to starving people. The Zambian scientists are using the Cartagena Biosafety Protocol to provide sophistic legal cover to their recommendations while labeling the bringing of safe, nutritious food to starving Zambians as unethical and illegal.

During the several years that Zambia can rely upon the Cartagena Protocol to delay or permanently deny USAID food aid, three million Zambians can simply eat "the spirit of international instruments." Unless, of course, the international instruments are printed on paper made from the fibers of transgenic plants, such as transgenic cotton.

Sadly, the Zambian scientists' use of the Cartagena Protocol for legal cover to reject food for starving people may be imitated in eastern Africa. The World Bank/IMF statement projects that Ethiopia will have 14.3 million drought-affected people in 2003. The situation in the Horn of Africa (Eritrea and Ethiopia) is becoming as dire as the situation is presently in southern Africa. The Ethiopian environmental minister is a confirmed opponent of agricultural biotechnology and a leading architect of the Cartagena Protocol. Will Ethiopia, too, label WPF food aid (62% USAID food aid) as unethical and illegal in the face of starvation?

If the spirit of the unadopted Cartagena Protocol can be used to deny food assistance to starving people, a binding Cartagena Protocol would provide even greater legal cover to governmental policies of starvation. No international document should be so divorced from science and modern risk assessment that it permits the starvation of human beings. In light of the suffering that the Cartagena Protocol has caused and will cause to starving people, the Cartagena Protocol should remain unadopted. No government should find legal cover in international agreements for governmental policies of starvation.

Perhaps Tony Hall, the U.S. ambassador to the U.N. food agencies, put it best when he recently criticized African leaders who refuse food aid because of groundless fears of new, improved agricultural technologies. "People that deny food to their people, that are in fact starving people to death, should be held responsible ... for the highest crimes against humanity, in the highest courts of the world."

Drew L. Kershen is Earl Sneed Centennial Professor of Law, University of Oklahoma.

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