1. Introduction
In light of the predicted negative impacts of climate change on food production,Footnote 1 genetically engineered climate-resilient crops are increasingly being proposed as a possible adaptation strategy.Footnote 2 Climate-resilient crops are intended to increase crop yields, and thereby provide a means of adapting to diminishing crop yields in the face of droughts, higher average temperatures, and other climatic conditions associated with climate change. In December 2011, a genetically engineered drought-resistant type of maize, developed and patented by Monsanto, was approved for commercial use on the US market.Footnote 3 Although it has hardly received international media attention, this event provides the starting point for this article.
In discussions on climate change adaptation, some participants actively promote genetically engineered climate-resilient crops, whereas others are extremely critical.Footnote 4 Even though Monsanto's drought-resistant maize was approved for commercialization in the US, there is little evidence to-date that genetically engineered crops are more ‘climate-resilient’ than conventionally bred crops.Footnote 5 Discussions about climate-resilient crops take place in the context of larger debates about genetically engineered foods and the role of private seed corporations in developing adaptation strategies within the international climate change regime.
This article explores what international climate change adaptation law has to say about genetically engineered climate-resilient crops as a proposed adaptation strategy. Although there are many discussions about climate-resilient crops, there has been little attention to the role of international law.Footnote 6
The article starts by setting out the increasing importance of climate change adaptation and sketching an understanding of international climate change adaptation law. The second section elaborates on the predicted impacts of climate change on agricultural crop yields and on climate-resilient crops as a possible adaptation strategy. The third section of the article explains some of the main controversies surrounding genetically engineered crops. The fourth section contains the main analysis of this article. The argument will be made that international climate change adaptation law – as it is framed and invoked – contributes to promoting genetically engineered climate-resilient crops as adaptation tools and, moreover, creates an enabling environment for the active engagement of the private sector in devising adaptation strategies.
2. Climate change adaptation and international law
Climate change is one of the biggest challenges of our time. The first World Climate Conference was held in Geneva in 1979. The intention behind this conference was to gather scientific evidence relating to climate change and global warming, and to develop policy accordingly. In 1988, the World Meteorological Organization and the United Nations Environment Programme set up the Intergovernmental Panel on Climate Change (IPCC). Its stated aim is ‘to provide the governments of the world with a clear scientific view of what is happening to the world's climate’.Footnote 7 The IPCC attempts to realize this aim in part through the publication of assessment reports, providing ‘full scientific and technical assessment of climate change’. The first IPCC assessment report was published in 1990.Footnote 8 These reports are considered highly authoritative in the field of global climate change policy, and influence the policies devised to deal with the impacts of climate change.
An international legal framework on climate change was established soon after. During the second World Climate Conference in 1990, preparations were made for the creation of an international treaty on climate change. The United Nations Framework Convention on Climate Change (UNFCCC) came into being in 1992.Footnote 9 The aim of the UNFCCC is ‘to cooperatively consider what [States Parties] could do to limit average global temperature increases and the resulting climate change, and to cope with whatever impacts were, by then, inevitable’.Footnote 10 Five years later, in 1997, the Kyoto Protocol was adopted.Footnote 11 It aims primarily at making States Parties commit to realizing emissions reductions to mitigate climate change. The UNFCCC and the Kyoto Protocol together constitute the international legal framework on climate change.Footnote 12 This international legal framework on climate change does not create clear obligations on states; however, it can be seen as a regulatory framework within which responses to climate change are negotiated.Footnote 13
As the objectives of the UNFCCC indicate, climate change policy includes mitigation (limiting the impacts of climate change) and adaptation (adjusted to those impacts that are already occurring or inevitable). Early responses focused heavily on mitigating climate change. Emphasis on mitigation is reflected in earlier IPCC assessment reports, as well as in the texts of the UNFCCC and the Kyoto Protocol. The Convention's ‘ultimate objective’ is the stabilization of greenhouse gas concentrations, in other words, mitigation.Footnote 14 The Kyoto focuses on reducing carbon emissions and mitigating further climate change impacts. Despite accentuating mitigation, the legal framework on climate change also seeks to regulate ‘State obligations to conduct adaptation measures and thus enhance adaptive capacity’.Footnote 15
The urgency to focus on adaptation strategies to impacts that were already inevitable became particularly clear with the publication of the third IPCC assessment report in 2001, in which adaptation was addressed in a separate volume.Footnote 16 By this time, there was a general consensus that climate change could not be completely averted or sufficiently limited. The need to devise adaptation strategies became unavoidable. The fourth assessment report from 2007 stated that ‘[f]or impacts that already show or will show in the very near future, adaptation is the only available and appropriate response’.Footnote 17 The fifth and latest IPCC assessment report, published in 2014, likewise includes a separate volume on adaptation – namely the contribution of Working Group II.Footnote 18 The importance of adaptation is recognized also outside of the IPCC reports. A paper published by the Organisation for Economic Co-operation and Development (OECD) in 2011 stated that ‘[a]daptation to climate change is now widely recognised as an equally important and complementary response to greenhouse gas mitigation’.Footnote 19
Climate change affects many sectors on different levels and in different ways. Adaptation to these various impacts therefore must necessarily encompass different types of measures.Footnote 20 In order to implement and enforce adaptation measures on a global scale, an international legal regime is needed.Footnote 21 Jan McDonald has stated clearly that ‘[l]egal institutions and instruments will play an important role in climate change adaptation’ and ‘[l]aw can facilitate adaptation’.Footnote 22 The UNFCCC and the Kyoto Protocol have been identified as the international legal framework on climate change, including adaptation. There are, however, a few general references to adaptation in the texts of the UNFCCC and the Kyoto Protocol. Article 4(1)(b) UNFCCC and Article 10(b) Kyoto Protocol stipulate obligations for States Parties to ‘[f]ormulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures . . .to facilitate adequate adaptation to climate change’.Footnote 23 Article 4(1)(e) UNFCCC urges states parties to ‘[c]ooperate in preparing for adaptation to the impacts of climate change’.Footnote 24
Even though the UNFCCC and the Kyoto Protocol constitute the international legal framework for climate change adaptation, the texts contained therein are very broad and open-ended. The texts oblige states to ‘facilitate adequate adaptation’, but do not specify what is meant by ‘facilitate’ and ‘adequate’. The open-endedness of stipulations on adaptation can be attributed in part to the initial emphasis on mitigation, the uncertainties surrounding the course and consequences of future climate change, and the need to capture a wide range of adaptations across sectors and regions.
On account of the open-endedness of adaptation regulations in the UNFCCC and the Kyoto Protocol, and the diversity of climate change impacts and adaptation measures, many authors view international adaptation law more broadly. Jouni Paavola and W. Neil Adger refer to the ‘climate change regime’ as ‘the collection of principles, norms, rules, and decision-making procedures around which actor expectations converge’ in the field of climate change.Footnote 25 In a later article, J.B. Ruhl and James Salzman refer to international climate change adaptation law as ‘a collection of fields independently adapting to climate change – rather than organically coalescing into a new and distinct field’.Footnote 26
The texts of the UNFCCC and the Kyoto Protocol can be seen as the international legal framework on climate change adaptation. However, other ‘principles, norms rules, and decision-making procedures’ are involved in interpreting what ‘facilitating adequate adaptation measures’ means. In this article, ‘international climate change adaptation law’ is understood as a ‘regime’, including the framework convention and its additional protocol, as well as relevant reports, initiatives, discourse, institutions, and decision-making procedures that give meaning to the broad framework of ‘adequate adaptation’. This article focuses on IPCC assessment reports, international adaptation initiatives, and special reports and papers commissioned by the UNFCCC and the IPCC.Footnote 27 The main international adaptation initiatives are the Cancun Adaptation Framework (CAF),Footnote 28 the Nairobi Work Programme on Impacts, Vulnerability and Adaptation to Climate Change (NWP),Footnote 29 and the National Adaptation Programmes of Action (NAPAs).Footnote 30
This article explores the role that international climate change adaptation law – understood in this broad fashion – plays for drought- and other climate-resilient seeds and crops as one proposed adaptation strategy. The next section will elaborate on the predicted adverse impacts of climate change on agriculture, and introduce drought-resilient crops as an adaptation strategy.
3. Climate-resilient crops as an adaptation strategy to the adverse impacts of climate change on crop yields
Agriculture is one of the sectors predicted to be most severely affected by the impacts of climate change. The fifth and latest IPCC Assessment Report indicates that it is highly likely that the impacts of climate change – including higher average temperatures, more (severe) instances of drought, and higher levels of precipitation – will adversely affect food production.Footnote 31 The 2014 Climate Summit held in September at the UN Headquarters in New York gave particular attention to agriculture. Agriculture was one of the ‘action areas’ during this summit, and experts emphasized that ‘the warming of the planet is already affecting yields of crucial crops’.Footnote 32 The website of this summit stated that ‘[f]ood production will need to increase by at least 60 per cent over the next 35 years to provide food security for the 9 billion people expected to be living on the planet by 2050’.Footnote 33 At least in part, losses of important crop yields are attributed to changing climatic conditions. These seem to be inevitable consequences of climate change that require adaptation strategies to cope.
The accent in discourse about climate change impacts on agriculture is on declining crop yields. The most obvious way to adapt is to find ways in which to maintain, or even to increase, crop yields. The UNFCCC, in Article 2, names as one of its objectives the adequate availability of food.Footnote 34 One adaptation strategy that has gained popularity in recent years is the development and use of seeds and crops that are resistant to certain climate-related stresses. These ‘climate-resilient’ or ‘climate-ready’ crops are intended to produce higher crop yields in the face of climatic conditions associated with climate change, and particularly drought.
3.1. Climate-resilient / Climate-ready crops
The call for developing crops to be resistant to abiotic stresses related to climate change comes from various actors. By far the most dominant players in the research and development of climate-ready crops are the biggest agricultural biotechnology corporations.Footnote 35 Their interest in developing climate-resilient crops is evident in part in the rising number of patent applications filed on such climate-related crop traits. In a 2009 report, the OECD stated that annual patent applications on adaptation-related biotechnology ‘have increased from fewer than 10 in 1995 to almost 200 by 2007’.Footnote 36 This ‘adaptation-related biotechnology’ includes engineering seeds and crops for specific climate-resistant traits. Civil society organization ETC Group in a report from 2008 stated that large seed corporations had filed 532 patent applications on ‘climate-ready’ genes at patent offices around the world.Footnote 37 A later ETC Group report from 2010 notes that a further 1663 patent documents for abiotic stress tolerance in plants were filed between 2008 and 2010.Footnote 38 This organization has estimated that 90 per cent of patent applications on abiotic stress-resistant traits in seeds come from private corporations, and only 10 per cent from the public sector.Footnote 39
While private sector corporations play a leading role, public sector international agricultural research institutions are collaborating with private corporations in developing climate-resilient seeds and crops. One example of such collaboration is a project called ‘Water Efficient Maize for Africa’ (WEMA) by the African Agricultural Technology Foundation. Monsanto is a partner institution in this project.Footnote 40 Another example is a project called ‘Improved Maize for African Soils’, led by the International Maize and Wheat Improvement Centre (CIMMYT) and in partnership with Pioneer Hi-Bred (DuPont).Footnote 41
The CIMMYT is one of the research centres of the Consultative Group on International Agricultural Research (CGIAR). The CGIAR is the largest conglomerate of international agricultural research, including 15 research centres. This consortium of (public) international agricultural research institutes also promotes the research and development of climate-resilient crops. In a press release from 2006, the CGIAR explicitly names ‘climate-ready crops’ as a possible adaptation strategy.Footnote 42 The news report states that the CGIAR is contributing to ‘refining a comprehensive climate change agenda that is already generating climate-resilient innovations, including crops bred to withstand heat, salt, submergence or waterlogging, and drought’.Footnote 43
A multitude of reports and other literature is actively promoting the need for adaptation measures that will contribute to increasing food production in the face of adverse climatic conditions. The International Food Policy Research Institute (IFPRI), in a report on adaptation strategies for climate change impacts on agriculture, concludes with a recommendation that ‘[c]rop and livestock productivity-enhancing research, including biotechnology, will be essential to help overcome stresses due to climate change’.Footnote 44 An article that appeared in The Economist in 2006 focused on efforts to increase yields of rice in adverse climatic conditions using genetic modification by the International Rice Research Institute (IRRI).Footnote 45 This article iterates the predicted increase in droughts as a result of climate change, and the adverse effects it will have on rice yields in Asia. Scientists from the IRRI voice doubts that conventional breeding alone will be enough to sustain rice yields, and advocate the use of genetic engineering techniques to develop more drought-resistant rice.Footnote 46 A more recent article in The Economist argues that ‘[g]enetic research holds out the possibility of breakthroughs that could vastly increase the productivity’ and that GM (genetically modified) crops ‘are more resistant to the vagaries of climate change’.Footnote 47
Academic authors, coming from different perspectives, also reinforce the necessity of climate-resilient crops. Robert Paarlberg makes a strong case for agricultural biotechnology in the fight against hunger, particularly in his book Starved for Science, in which he promotes the use of agricultural biotechnology in Africa. He argues that ‘[t]he science of genetic engineering has significant potential to help rural Africa, particularly since it can now speed the development of crop varieties better able to tolerate stress factors such as drought’.Footnote 48 In a book on fairness in climate change adaptation, one of the authors includes ‘[e]ngineering seeds to make them cope better with altered climates’Footnote 49 as one of a range of adaptation strategies.
This brief overview is by no means intended to paint a complete or detailed picture of the actors involved in the development and promotion of climate-resilient crops as a proposed adaptation strategy. The purpose is merely to illustrate that various actors promote climate-resilient seeds and crops as potential adaptation strategies. While the general discourse includes a variety of climate-resilient traits, recent attention has focused on drought-resistance.
3.2. Drought-resistant crops and Monsanto's DroughtGard
One of the biggest challenges for agriculture in the context of climate change is the increasing incidence of droughts.Footnote 50 Water is one of the main limiting factors in food production, so a loss of water is potentially devastating for agricultural crops yields.Footnote 51 For this reason, corporations and agricultural research institutes are particularly interested in developing drought-resistant traits in crops.Footnote 52 Biotechnology corporations have presented themselves as some of the main providers of these seeds, investing vast amounts of funds into the research and development of crops that are able to grow with less water.Footnote 53
Bill Niebur, vice president and general manager for DuPont Pioneer China, has been quoted as saying about the development of drought-resistant crops: ‘Drought is a global problem and we recognize the threat that comes with climate change. We've got our top talent in our organization working on this.’Footnote 54 At the Food and Agriculture Organization's ‘High-Level Conference on World Food Security: the Challenges of Climate Change and Bioenergy’ in 2008, biotechnology corporations promoted their drought-resistant technologies.Footnote 55 Among those was Monsanto, who announced its commitment to contribute to increasing food production, for instance by developing drought-resistant seeds.Footnote 56
Breeding crops to thrive in particular climatic conditions is not new. Farmers have since the beginning of agriculture chosen those crops most suitable to the environment.Footnote 57 What is different about today's drought-resistant crops is that some of these crops are developed using genetic engineering techniques. Genetic engineering allows single genetic traits to be extracted from the seed or plant, and inserted into another seed or plant. Until now, genetic engineering in agriculture has been used mostly to make crops resistant to herbicides and pesticides, often also developed by the same corporations.Footnote 58 While many drought- and other climate-resilient crops are developed using conventional breeding methods,Footnote 59 large corporations such as Monsanto are increasingly relying on genetic engineering techniques to develop drought-resistant crops.
Monsanto has been very active in the research and development of drought-resistant maize using genetic engineering techniques. One type of drought-resistant maize developed by Monsanto is called ‘MON 87460’ or ‘DroughtGard’. Monsanto developed DroughtGard in the context of severe droughts in the United States. This variety of maize is promoted to adapt to drier conditions and sustain or even increase yields of maize. In December 2011, the United States Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) approved this first genetically engineered drought-resistant maize for commercial use on the US market Footnote 60
Although DroughtGard was approved for commercialization in the US domestic market, it is nevertheless a landmark event for climate-ready crops as an international adaptation strategy. Monsanto and other large seed corporations are the main players in the research and development of climate-resilient crops as a proposed adaptation to adverse climatic conditions. The decision by APHIS is a great commercial success for Monsanto, and moreover reinforces the idea that drought-resilient crops are desirable and necessary in the struggle to adapt to the impacts of climate change.Footnote 61 Monsanto's success has, however, not abated fierce discussions over genetically engineered and climate-resilient crops.
4. Controversies over climate-resilient crops
Despite increasing attention for climate-resilient seeds and crops as a possible adaptation strategy,Footnote 62 and notwithstanding the recent commercial success of Monsanto's DroughtGard in a domestic context, there is a great deal of criticism surrounding climate-resilient crops. Three lines of contentions will be explored here. Namely, controversies over genetically engineered and patented crops, doubts about the effectiveness of climate-resilient crops and technological fixes more generally, and criticisms of the dominant role played by the private sector.
4.1. Genetically engineering food: the big debate
Until now, the cultivation of genetically engineered crops is primarily taking place in five countries, which concentrate on four types of crops, and two main traits.Footnote 63 There is, however, evidence of increasing use of genetically engineered crops worldwide,Footnote 64 and this is coupled with a growing number of patent applications.Footnote 65 Notwithstanding this rise, there is a great deal of resistance against the use of genetically engineered crops. This resistance takes a number of angles, including ethical questions and food safety concerns. There is also particular opposition against corporate domination of genetically engineered seeds through patents. Arguments are often made that these seed corporations concentrate on commercially viable crops,Footnote 66 and not necessarily on those crops that are used by farmers in developing countries.Footnote 67 The scope of this article does allow for a detailed analysis of the debates surrounding genetically engineered food, but will instead highlight some of the key contentions.
Genetically engineered (or modified) foods are described by the World Health Organization as ‘foods derived from organisms whose genetic material (DNA) has been modified in a way that does not occur naturally, e.g. through the introduction of a gene from a different organism’.Footnote 68 One line of criticism in relation to genetic engineering of living organisms – including food crops – is an ethical criticism. There are critics who argue that genetic engineering is ‘playing God’.Footnote 69 Such arguments are often based on contentions that even though it may be technically possible to genetically engineer food, the wider consequences of modifying living things that have developed over thousands of years cannot be overseen.Footnote 70 The term ‘Frankenfoods’ is sometimes invoked to describe genetically engineered foods;Footnote 71 this term refers to any food that is genetically engineered and alludes to its ‘unnatural’ origins.Footnote 72
Another big issue related to genetically engineered food focuses on food safety concerns. These concerns are illustrated most clearly through consumer fears, especially evident in Europe. Consumer fears heightened particularly in the 1990s as a result of a number of food safety crises, including Bovine Spongiform Encephalopathy (BSE), more commonly known as Mad Cow Disease.Footnote 73 Although this was unrelated to genetically modified foods, such large-scale food safety crises seriously affected consumer attitudes towards genetically engineering foods. Safety concerns are often coupled with disagreement about the labelling of genetically engineered foods.Footnote 74 Some of these concerns are highlighted in current debates surrounding the Transatlantic Trade and Investment Partnership (TTIP) between the US and the EU. Groups within the EU express fears that the TTIP could open the door for genetically engineered foods in Europe.Footnote 75
Another controversial issue relates to the application of patent rights on genetically engineered crops, as made possible especially by Article 27.3(b) of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS).Footnote 76 A particular concern is voiced by developing countries, whose territories contain most of the world's genetic resources. These countries consider it highly unfair that seed corporations supported by developed country governments are able to apply for exclusive patent rights on seeds and crops that have been genetically engineered using plant genetic resources as their raw material. Developing countries do not receive similar benefits from offering these genetic resources.Footnote 77
‘No patents on life!’ and ‘no patents on seeds!’ are popular slogans that signal resistance to subjecting plants and living things to intellectual property protection.Footnote 78 The coalition of ‘No Patents on Seeds!’ has recently published an appeal to European governments to stop the application of patent rights on genetically engineered food crops.Footnote 79 A spokesperson for the coalition has stated that:
Farmers, food producers and consumers will be severely impacted by the negative consequences. Patents on plants and animals give corporations the power to decide what is grown in the fields and which price we all have to pay for it.Footnote 80
The contemporary debate on the legal treatment of plant genetic resources has been referred to as ‘Seed Wars’. This term was first used in a 1984 Wall Street Journal report. Keith Aoki and Jack Kloppenburg have written extensively about seed wars, articulating the controversies over intellectual property protection on seeds.Footnote 81 Vandana Shiva of Navdanya has argued that ‘[t]he only reason crops have been genetically engineered is to take patents on seeds, and collect royalties’.Footnote 82
Many of the climate-resilient seeds developed by seed corporations are genetically engineered. Therefore, debates about climate-resilient seeds as possible adaptation measures should be viewed against the backdrop of larger discussions and controversies about genetically engineered foods. On top of questions about ethics, food safety, and patent rights more generally, there are also doubts about the effectiveness of genetically engineered climate-resilient crops.
4.2. Climate-resilient or not so climate-resilient?
When we accept that drought- and other climate-resilient crops are necessary adaptation measures in the face of adverse climatic conditions, and put aside the ethical concerns over genetically engineered foods, a more practical criticism is to question whether these crops in fact produce higher yields. The main concerns about climate change impacts on agriculture relate to significant loss in crop yields.Footnote 83 If climate-ready seeds are a proposed adaptation strategy, then logically their principal rationale must be to increase crop yields. Despite calls for the necessity of genetically engineered, climate-resilient crops, uncertainty remains about whether these crops actually produce more food. These doubts can be viewed in a broader context of scepticism about technological solutions.
The CGIAR has contributed to discourse promoting the use of climate-ready crops.Footnote 84 In the same press release that advocates climate-ready seeds, there is also the recognition that ‘there are limits to the ability of new varieties to counteract the effects of heat, drought, and submergence’.Footnote 85 These limits become very clear in two reports by the Union of Concerned Scientist (UCS).Footnote 86 In a report published in 2009, the UCS presents findings that genetically engineered crops have to date not produced higher yields than conventionally bred crops.Footnote 87 Following the general report on genetically engineered crops, the UCS published another report in 2012 – after DroughtGard was approved for commercialization on the US market – looking specifically at drought-resistant crops.Footnote 88 This report highlights the lack of success to date in terms of ‘improved water use efficiency’ of genetically engineered corn varieties.Footnote 89 Moreover, the limited drought-resistance is not deemed to hold up against the costs invested in their development. The number of field trials done with drought-resistant crops in the US, the UCS argues in this report, has not increased significantly over the years, casting doubts from the perspective of these scientists on whether drought-resistance is really a priority of biotechnology research.Footnote 90
Part of the critique in the later report is based on Monsanto's and APHIS's own acknowledgements about the limitations of DroughtGard. APHIS in its final assessment report of this drought-resistant corn variety wrote that ‘equally drought resistant corn varieties produced through conventional breeding techniques are readily available and may be cultivated in lieu of MON87460’Footnote 91 and that ‘reduced yield-loss phenotype of MON87460 does not exceed the natural variation observed in currently-available corn varieties’.Footnote 92 This drought-resistant maize variety may not really be very drought-resistant at all, and in any case no more drought-resistant than non-GM varieties.Footnote 93
GM WatchFootnote 94 wrote after the approval for commercialization of Monsanto's DroughtGard:
Despite all the hyperbole about the promise of GM drought resistant crops, it took until December 2011 for the first GM drought resistant crop to be approved for marketing anywhere in the world. [. . .] By contrast, non-GM plant breeding has achieved success after success in producing a variety of drought resistant crops, including a whole series of drought resistant maize varieties, and these have been made available in many countries, including developing countries that are particularly vulnerable to drought.Footnote 95
Scepticism about the effectiveness of genetically engineered, climate-resilient crops can be viewed within a broader context of apprehension towards technologically-informed solutions.Footnote 96 In a commentary in Nature, Daniel Sarewitz and Richard Nelson caution against using technological fixes out of context. They argue that not all problems can be solved using technology, and perhaps more importantly, that technology by itself is not enough.Footnote 97 John Bellamy Foster echoes these criticisms specifically regarding technologies as used in climate change strategies. He writes that ‘the dominant response [to climate change] is to avoid all questions about the nature of our society, and to turn to technological fixes or market mechanisms of one sort or another’.Footnote 98 Bellamy Foster argues that technology alone will not suffice in addressing the problems caused by climate change, but that a ‘revolution of our social system’Footnote 99 is required, as well.
Jack Heinemann reinforces this view by writing that ‘[t]he current failures to feed the world are not due to limitations of technology, but to social choices’.Footnote 100 He underscores the findings by the Union of Concerned ScientistsFootnote 101 in confirming that there are to date ‘no commercially available GM plants with traits that reduce the effects of abiotic stress’.Footnote 102 There are serious questions, therefore, about the effectiveness of genetically engineered climate-resilient crops specifically and, more generally, about the potency of technology in adapting to the impacts of climate change.
4.3. Private sector monopoly of climate-ready crops: Gene Giants
Private sector seed corporations are the main players in the research and development of climate-resilient crops.Footnote 103 Leaving aside general controversies over genetically engineered foods and more specific doubts about the effectiveness of genetically engineered, climate-resilient crops, a third significant line of criticism is directed at private sector dominance. The principal concern is that private sector corporations are primarily interested in making profits. Consequently, they focus on research and development of commercially viable crops, which are not necessarily the crops grown and used in the developing world that suffers the most from climate change impacts.Footnote 104
Henry Shue writes that ‘[i]f there were lots of profit to be made in solving the world's hunger problem, market forces would presumably have sent people rushing in to solve it long ago’.Footnote 105 This observation can be applied to private sector dominance in climate-resilient crops. This does not mean that private actors can have no contribution to addressing problems of crop losses in the face of climate change; the point is simply that this is not their primary goal. In an article about biotechnology and hunger that discusses the problem of private control over plant genetic resources, the journalist cites Ethiopian plant ecologist Tewolde Berhan Gebre Egziabher as saying the following:
It's not the nature of genetic engineering itself that's the problem; it is the way genetic engineering has evolved. Early on, it came under the control of the private sector and is now being developed almost solely by that sector. By definition, the private sector's goal is to make money. It will not focus its attention on the needs of the poor, except as a way to sell its products.Footnote 106
Additionally, there are concerns about the growing number of patent applications on climate-resilient crops that may obstruct access to these seeds to those who need them most. The ETC Group has been very vocal of what they perceive as a private sector monopoly over climate-resilient crops, referring to large seed corporations as ‘Gene Giants’.Footnote 107 In a 2010 report about climate-ready seeds, they state their policy goals as follows:
There is no societal benefit when governments allow six corporations to monopolize food. The pretext of indispensible [sic] so-called climate-ready genes will increase farmer dependence on GM crops, jeopardize biodiversity, and threaten global food sovereignty.Footnote 108
These critical words make clear that there are doubts not only about the effectiveness of genetically engineered climate-resilient crops, but also serious concerns about the purported private sector monopoly through patent applications.
Onora O'Neill in an article on ending world hunger has written that ‘[t]echnological innovation, even if successful, may not benefit those who need it most’.Footnote 109 This observation can also apply to climate-resilient seeds and the private sector monopoly. As private corporations are focused on commercially viable crops and moreover increasingly applying for exclusive patent rights that may prevent poor farmers to purchase the seeds, there are concerns that climate-resilient crops will not benefit those who suffer most from the impacts of climate change on crop yields. London-based International Institute for Environment and Development (IIED) writes in this regard that ‘farmers in developing countries are losing one of their best hopes to limit the impacts of climate change because of growing corporate control of the seeds they plant’.Footnote 110
A fundamental concern in terms of international law – and, in this case, particularly climate change adaptation law – is that it creates obligations for states, and not for private corporations. It may therefore be difficult to regulate climate-resilient crops as a global adaptation measure if they are almost exclusively in the hands of private sector seed corporations. The next part of this article returns to international climate change adaptation law, and explores how these key controversies and concerns related to climate-resilient crops are addressed in law.
5. International climate change adaptation law is conducive to climate-resilient crops as adaptation measures
Section 1 of this article discussed the growing awareness that some impacts of climate change are already inevitable, and therefore adaptation is now considered equally urgent as mitigation. It also outlined the international legal framework on climate change adaptation. Climate-resilient crops are often presented as a possible adaptation measure. The main argument of the article will be made in the following sections, to the effect that international climate change adaptation law creates an enabling environment for the private sector to develop genetically engineered climate-resilient crops as adaptation measures. In a subtle but powerful manner, international climate change adaptation law, in how it is framed and invoked, largely foregoes serious considerations of the controversies related climate-resilient crops. In making this argument, reference will be made to Articles in the UNFCCC and the Kyoto Protocol, as well as IPCC assessment reports, international adaptation initiatives, and special reports written under the auspices of the UNFCCC.
5.1. Climate-resilient crops as a necessary adaptation strategy
The texts of the UNFCCC and the Kyoto Protocol regarding adaptation – being very open-ended – could easily be interpreted to include genetically engineered climate-resilient crops as adaptation measures. Article 4(1)(e) of the UNFCCC stipulates that States Parties should ‘cooperate in preparing for adaptation to the impacts of climate change’ and specifically refers to areas ‘affected by drought’.Footnote 111 Article 10(b)(i) of the Kyoto Protocol specifically names agriculture as one of the sectors that requires the formulation and implementation of national and regional programmes containing measures to adapt to climate change.Footnote 112 These references, in addition to the broader stipulations about adaptation, open the way for the development of adaptation measures that address the problems facing agriculture.
Article 4(5) of the UNFCCC creates an obligation for developed states parties to ‘promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and knowhow to other Parties’. Although not mentioning any particular technologies, this reference indicates at least an acceptance that technologies can play a valuable role in adaptation.
The IPCC in its assessment reports identifies biotechnologies as a possible tool in adaptation. The fourth assessment report states that ‘[e]ffective planning and capacity building for adaptation to climate change could include: [. . .] improved crop, forage, livestock, forest and fisheries germplasm, including via biotechnology [. . .].’Footnote 113 The same assessment report makes an explicit reference to stress-resilient crops. Under the heading of sector-specific adaptation strategies in agriculture, the report mentions the ‘[d]evelopment of agricultural bio-technologies’ and specifically the ‘[d]evelopment and distribution of more drought, disease, pest and salt-tolerant crop varieties’Footnote 114 as one way to adapt to predicted decrease in agricultural yields as a result of climate change. The synthesis report of the fifth and latest IPCC assessment report includes ‘biotechnology and genetically modified crops’ as possible adaptation options aiming to ‘enhance drought-resistance’ and ‘enhance yields’.Footnote 115 These references in the authoritative assessment reports reinforce the idea that genetically engineered climate-resilient crops are valuable adaptation strategies.
Various international adaptation initiatives have also explicitly recognized the value of technologies. The Cancun Adaptation Framework states that all parties to the UNFCCC will ‘research, develop, and diffuse technologies, practices and processes for adaptation’.Footnote 116 The adaptation advice and decisions by the Nairobi Work Programme must be taken based on a ‘sound scientific, technical and socio-economic basis’.Footnote 117 These adaptation initiatives therefore link adaptation with technology. The CAF aims to support and enable least developed countries to develop national adaptation plans.Footnote 118 The National Adaptation Programmes of ActionFootnote 119 provide information from these least developed countries on adaptation needs and proposals.Footnote 120
The texts of the NAPAs submitted by least developed countries also include references to technologies. A browse through the texts of these country-specific reports on adaptation strategies reveals that ‘technologies’ are often cited.Footnote 121 There are general references to the use of technologies for adaptation, such as ‘technology transfer for mitigation and adaptation’,Footnote 122 ‘use of the new technologies capable to guarantee adaptation to the era of climate change’,Footnote 123 and a call on developed states to ‘facilitate the transfer of needed technology and resources so that effective adaptation can continue to take place’.Footnote 124 In several NAPA reports, there are specific references to technologies for agriculture. These include: ‘use of appropriate technologies to achieve higher farm productivity, food security and farm income’,Footnote 125 ‘improving crop production through the use of appropriate technologies’,Footnote 126 and ‘use of technologies for fertility improvement’.Footnote 127
There are moreover some specific references to climate resilient crops in NAPAs, including: development of ‘climate change resilient cropping systems’,Footnote 128 ‘introduction of new more productive agricultural varieties, with a wide spectrum of climate tolerance’,Footnote 129 ‘introduc[ing] and scal[ing] up existing innovative technologies to deal with flood, drought and salinity’,Footnote 130 and applying ‘genetic improvement programs through introduction of drought-, salinity-, heat-, disease- and pest resistant/tolerant varieties/crops’.Footnote 131 Although these adaptation initiatives are not strictly speaking ‘law’, they do contribute to a perception of what could be considered ‘adequate adaptation’.
In the same vein, the information produced by the IPCC also contributes to filling in the gaps of what ‘adequate adaptation’ entails. In addition to assessment reports, the IPCC also publishes special reports. These special reports focus on specific issues in relation to climate change. In 2000, the IPCC published a special report on ‘Methodological and Technological Issues in Technology Transfer’. This report was prepared by Working Group III, dealing with responses to climate change, ‘in response to a request by the Subsidiary Body for Scientific and Technological Advice (SBSTA) to the UNFCC’.Footnote 132
Section 11.3.3 of this report is titled: ‘Genetic Improvements Critical to Climate Adaptation’.Footnote 133 This section describes the need for genetic improvements in agriculture to increase production in the face of climate change. It presents agricultural biotechnologies as important means through which to increase production and notes that half of the increases in crop yields in recent years are attributable to ‘genetic improvements in crop varieties’.Footnote 134 The report also states that: ‘In the future, biotechnology may offer significant opportunities to address the need for crop adaptation to changing climate across all countries’.Footnote 135
The special report expresses concern about the decline in public funding for agricultural biotechnologies research. Section 11.3.5 of the report discusses institutional barriers related to controversies over transgenic crops as major concerns with regard to climate change adaptation. The authors argue that such barriers should be removed to allow genetically engineered seeds and crops to be used as part of the adaptation strategies in all countries, and especially the most vulnerable developing regions likely to be most affected by climate change. The report states that ‘[d]eveloping countries will have to interact with an increasingly concentrated private agricultural (primarily seed) biotechnology industry’.Footnote 136
Like the IPCC, the UNFCCC also publishes reports and papers that discuss specific issues related to climate change adaptation. These include technical papers, many of which focus on responses to climate change in the form of new technologies and transfer of technology. Technical papers are commissioned by the secretariat of the UNFCCC and prepared by a group of experts in the field.Footnote 137 Disclaimers to these papers state that their content ‘does not necessarily reflect the views of the secretariat’. Despite this disclaimer, the fact that technical papers are commissioned and published by the UNFCCC suggests that the information contained in them is along the lines of the UNFCCC's climate change strategies.
The technical paper entitled ‘Application of Environmentally Sound Technologies for Adaptation to Climate Change’ published in 2006 provides an overview of available technologies that may be used in adapting to the present and future consequences of climate change.Footnote 138 The recommendations in this report can be seen as more detailed articulations of what ‘adequate adaptation’, as stipulated in the UNFCCC and Kyoto Protocol, may look like.
This technical paper is based on, and builds upon, the IPCC special report from 2000.Footnote 139 An interesting preliminary observation to make on this paper is the authors’ explicit recognition of the limitations of technologies. At paragraph 53, the paper states that ‘[t]he idea of using technology to solve or alleviate an adverse situation is deceptively appealing’, and highlights that technology is only one part of the solution. This reflects recognition that technological fixes alone will not be enough to adapt to the impacts of climate change.Footnote 140 Notwithstanding this awareness of the limits of technology, the main argument of the paper is that ‘many technologies exist to adapt to natural weather related hazards and that these technologies can also play an important part in reducing vulnerability to climate change’.Footnote 141 The essence of the paper's argument is that while the authors recognize and acknowledge the limitations of technologies, they nevertheless suggest that technologies play an important role in adapting to the impacts of climate change.
The advantage of employing biotechnologies in the quest to devise adaptation strategies to climate change impacts on agriculture has already been recognized in early climate change discourse. One of the first UNFCCC technical papers mentions biotechnology in relation to seed development as a possible adaptation option.Footnote 142 Referring back to the first IPCC assessment report of 1996, the 2006 technical paper states that ‘[t]he ability of world agriculture to meet the needs of an ever expanding population has been due to the development and adoption of new technologies, rather than to the expansion of cultivated land’.Footnote 143
The 2006 UNFCCC technical paper explicitly names ‘genetically modified organisms’Footnote 144 and ‘drought-resistant seeds’Footnote 145 as options in a range of agricultural biotechnologies that can contribute to adaptation. Table 8 under paragraph 206 of the paper also lists the conducting of ‘research to develop new crop varieties’ as an example of ‘adaptation opportunities vis-à-vis climate change impacts on agricultural systems’. Paragraphs 216 and 221 again mention biotechnology, and more specifically gene technologies. Paragraph 216 states that:
[T]o address adverse effects of global warming it is necessary to have a new generation of varieties. Breeding will continue to be important, but gene technology will help to speed up the process.Footnote 146
Moreover, this paragraph cites research that demonstrates the potential of genetic engineering in developing drought-resistant crop varieties.Footnote 147 The subsequent paragraphs go on to predict that genetic improvements to crops ‘are likely to play an even greater role’ in the future, and that biotechnology ‘may offer important opportunities to address the need for crop adaptation to changing climate across all countries’.Footnote 148 The overall gist of the report seems to be that new genetic engineering technologies in agriculture are necessary adaptation tools.
The texts of the UNFCCC and the Kyoto Protocol contain few directions on what ‘adequate adaptation’ entails. International adaptation initiatives regulated by the UNFCCC and reports and papers commissioned by the IPCC and the UNFCCC explicitly name genetically engineered climate-resilient crops as a possible adaptation strategy. The argument here is that, even though there is no hard and clear international law on this matter, there is a tendency in those parts of the climate change regime that deal with adaptation, to promote the development and use of these crops.
5.2. Law's invitation to private sector engagement in adaptation
International law, including international climate change adaptation law, creates obligations for States Parties. In the words of Roda Verheyen, the UNFCCC and the Kyoto Protocol govern ‘only public adaptation measures and [do] not prescribe any particular activities by private entities’.Footnote 149 The text of the UNFCCC does not once mention the word ‘private’.Footnote 150 The Kyoto Protocol mentions the private sector in Article 10(c) where it states that parties shall co-operate in the ‘creation of an enabling environment for the private sector, to promote and enhance the transfer of, and access to, environmentally sound technologies’.Footnote 151 This article refers specifically to the transfer of technologies, and does not say much about private sector involvement in adaptation in general.
Strictly speaking, therefore, international law on climate change adaptation does not create any obligations or restrictions for the private sector; it simply does not address the private sector. While the text of the UNFCCC makes no mention of the private sector, adaptation initiatives introduced under its umbrella create a welcoming and enabling environment for private sector engagement in adaptation. Some initiatives explicitly mention genetically engineered, climate-resilient crops as possible adaptation strategies.
Christiana Figueres, Executive Secretary of the UNFCCC, has stated that ‘[a]daptation to climate change is no longer the exclusive ambit of the public sector’.Footnote 152 Adaptation initiatives introduced at the international level reinforce this perspective. In Article 34, the Cancun Adaptation Framework explicitly invites a large number of stakeholders, including the private sector, to undertake and support action on climate change adaptation.Footnote 153 The Nairobi Work Programme has moreover launched the Private Sector Initiative (PSI) in 2011/2012, which:
[A]ims to catalyze the involvement of the private sector in the wider adaptation community. The unique expertise of the private sector, its capacity to innovate and produce new technologies for adaptation, and its financial leverage can form an important part of the multi-sectoral partnership that is required between governmental, private and non-governmental actors.Footnote 154
Private sector engagement is valued especially for its expertise and financing capacities, particularly with regard to research and development of new (agricultural bio-) technologies. The PSI invites private sector parties to submit case studies showcasing how they are engaging with, and adapting to, climate change. These case studies include examples of adaptation strategies for agricultural crops, submitted by some of the large agricultural biotechnology corporations. The following is an overview of the private adaptation initiatives included in the PSI database that involve genetically engineered crops.Footnote 155
• BASF submitted an initiative with the title ‘New technologies for climate change adaptation’. It is aimed at improving food security by providing an adaptation strategy for the agricultural sector. It mentions the development of stress-tolerant plants. (No date is specified for this initiative.)Footnote 156
• Bayer submitted an initiative under the name ‘Developing stress-tolerant plants’. The focus area of this initiative is Europe. In this submitted case study, Bayer highlights the growing demand for food and the strain on resources. It advertises Bayer's contribution to developing adaptation technologies for the agricultural sector. (No date is specified for this initiative.)Footnote 157
• BASF, in collaboration with Monsanto, submitted an initiative named ‘Help crops adapt to changing climates’ in 2012. It focuses on research and development of drought-tolerant maize as an adaptation strategy to climate change.Footnote 158
• Bayer submitted an adaptation initiative entitled ‘Provide seed treatment for more efficient resources use’ in 2012. It briefly describes two technologies that are in the pipeline, one of which is the development of stress-tolerant crops.Footnote 159
• In 2013, Syngenta submitted an initiative called ‘Boosting crop yield for every drop of water’. The description includes the slogan ‘grow more from less’ and highlights the company's efforts in developing drought-tolerant crops.Footnote 160
Although the Nairobi Work Programme does not create obligations for the private sector nor does it judge on the value of the private sector initiatives in the database, it does create a platform for corporations to showcase their proposed adaptations. It is important to underscore here that the intention is not to judge the effectiveness or the value of these adaptation initiatives proposed by seed corporations; such an endeavour goes beyond the scope of this article. Rather, the objective is to demonstrate that the UNFCCC, through its PSI, provides a podium for corporations to promote their proposed adaptation initiatives, and that corporations make use of the podium.
A browse through the National Adaptation Programmes of Action received by the UNFCCC is also illustrative of the invitation extended to the private sector by individual countries. Many NAPAs name the private sector as an important stakeholder, and some reports present the lack of private sector involvement in adaptation as problematic. For instance, the following references are made in NAPAs: ‘private sector development’ is one way in which to create an ‘enabling framework for successful implementation of NAPA projects’,Footnote 161 ‘government, non-government and private institutions that should contribute to the implementation of the NAPA project’,Footnote 162 part of the implementation strategy of the NAPA is for ‘government to encourage and promote the involvement of the private sector’,Footnote 163 and ‘the NAPA team comprised of experts from various government institutions . . . and private institutions and NGOs’.Footnote 164 Angola's NAPA mentions the ‘lack of involvement by the private sector in questions related to climate change’ as a ‘potential barrier to implementation’ of adaptation policy.Footnote 165 While the text of the UNFCCC makes no mention of the private sector, adaptation initiatives introduced under its umbrella create a welcoming and enabling environment for private sector engagement in adaptation.
In addition to adaptation initiatives, the IPCC special report and the UNFCCC technical paper, discussed in relation to adaptation technologies in the previous section, also allude to private sector engagement. In paragraphs 69 and 436, the special report mentions the need to ‘stimulate private sector investment’ in various adaptation options.Footnote 166 Paragraph 130 states that the private sector can extend its role in adaptation ‘when provided with the right incentives’.Footnote 167 Paragraphs 230 and 231 subsequently address the inadequacy of intellectual property protection for plants as barriers to incentivizing private sector investments.Footnote 168 Finally, paragraph 317 states that ‘[i]ncorporation of the private sector, identified as an important source of funding, should be a major focus of efforts aimed at the transfer of technologies’.Footnote 169 The UNFCCC technical paper underscores some of the same points. Namely, section 11.3.4 of this paper names the lack of intellectual property protection for plants as a limitation to private sector investments. The paper also predicts that ‘[I]n the future, biotechnology may offer significant opportunities to address the need for crop adaptation to changing climate across all countries’.Footnote 170
The main argument here is that, even though international climate change adaptation law is not directed at the private sector and does not create obligations for the private sector, the private sector has almost unnoticeably become part of adaptation policy. Adaptation initiatives, reports, and papers published with the backing of the UNFCCC and the IPCC in a subtle but indisputable way incorporate the private sector into the adaptation regime. International climate change adaptation law contributes to creating an enabling environment for the engagement of the private sector and for promotion of genetically engineered climate-resilient crops as adaptation tools.
6. Conclusion
It is increasingly acknowledged that at least some climate change impacts are by now inevitable, and that international co-operation is needed to devise effective adaptation measures. The predicted climatic changes are already having and will continue to have adverse effects on agriculture and food production in some regions of the world. One proposed adaptation strategy that is being promoted is the development and use of crops that are genetically engineered for resistance to certain climatic stresses, notably drought.
With increased attention for climate-resilient crops as climate adaptation tools, comes a great deal of criticism. Controversies relate to more general debates about genetically engineered food and the application of patent rights, as well as specific concerns about the effectiveness of climate-resilient crops. A genetically engineered drought-resistant type of maize, developed by Monsanto, was the first such crop approved for commercialization on the US market in late 2011.Footnote 171 This development, in combination with the growing sense of urgency to devise adaptation strategies and the emergence of a distinct legal regime on climate change adaptation, spurred this exploration. The intention in this article was to explore the role that international climate change adaptation law may have in stimulating or opposing genetically engineered climate-resilient crops.
A distinct area of international law that governs climate change adaptation does not yet exist. However, there is increasing attention in legal discourse for adaptation. ‘International climate change adaptation law’ as understood in this article includes the international legal regime on climate adaptation (mainly the UNFCCC and Kyoto Protocol), as well as reports, discourse, and initiatives taken within the broader climate change regime. This emerging area of international law creates an enabling environment for private sector seed corporations to be actively engaged in the development of genetically engineered climate-resilient crops. Therefore, notwithstanding the criticisms of this proposed adaptation strategy, the way in which international adaptation law is developing seems to promote climate-resilient crops.
The intention in this article was not to say that genetic engineering is not potentially of great value; it was not to say that climate-resilient crops are not a potentially effective and necessary adaptation strategy; and it was not to say that the private sector cannot play an important role in developing adaptation strategies. The point here is to highlight that despite significant controversies related to the development and use of genetically engineered climate-resilient crops as adaptation, international climate change adaptation law in a subtle manner creates a conducive context in which to promote both genetically engineered climate-resilient crops and private sector engagement. Actors in the discussions, by invoking international climate change adaptation law, perhaps unintentionally, reinforce the value of climate-resilient crops and the position of the private sector in adaptation.
