Biotechnology and International Law

Abstract

Emerging applications in the field of biotechnology hold great promise for promoting the health and well-being of the global community, especially in developing states. Yet significant concerns have emerged about biotechnology in the transnational sphere, concerns that no doubt will increase in decades to come. The purpose of the article is to assess the strengths and limits of existing international norms and structures designed to address these concerns, and to suggest a means for augmenting current structures to make them more effective. International law develops and regulates transnational behavior in a manner that goes well beyond the development treaty regimes. International law is driven in large part by the self-interest of states, but they also arise from the social interaction of states and non-state actors, and they ultimately must become grounded in national laws and society in order to become effective. This article accordingly emphasizes the need for coordination at different levels of state and non-state behavior as the law develops over time as well as the need for coordination across different treaty regimes. While states should continue to grapple with concerns in the area of biotechnology through incremental tinkering of existing treaty regimes - seen most recently in the adoption of a Biosafety Protocol to the Convention on Biological Diversity - the article argues that the principal emphasis of the global community on episodic and segmented intergovernmental negotiations as a means for addressing these concerns is misplaced, especially since the science in this area is changing rapidly, the behavior to be regulated is highly commercial and private in nature, and transnational regulation affects a wide variety of state and non-state actors who have complex motivations that change over time. At the same time, the many issues raised by biotechnology in the transnational sphere should not be left to the vagaries of the market, to governments alone, or to the initiatives of a few well-financed interest groups, such as biotechnology companies and environmentalists. Instead they need to be addressed by international society as a whole. One approach would be to establish a transnational forum on biotechnology, which could serve as a relatively informal and non-binding means for the transnational "bargaining" of views among a wide range of relevant non-state actors. Such a forum ultimately may be instrumental in achieving consensus on a coherent and effective legal regime to address concerns with transnational biotechnology, one that balances the tremendous opportunities of biotechnology against its potentially severe and adverse transnational effects.