1. Third Generation Human Rights

Academic literature on the Rights of peoples generally refers to: (i) the right to food, (ii) the right to a decent environment, (iii) the right to development and, (iv) the right to peace.¹ In addition, César Nava Escudero writes that “The doctrine and the domestic law of many countries have included also the right to self-determination into the solidarity rights or into third generation human rights.”² First generation human rights are set out in the International Covenant on Civil and Political Rights (ICCPR), and second generation human rights are outlined in the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The laws for the protection of the environment have increasingly been influenced by, and been seen in the perspective of, laws relating to development and human rights.³ Thus, the majority of the international community considers that the right to a clean and healthy environment be included as a collective/solidarity right or integrated into third generation rights. Patricia Birnie, Alan Boyle and Catherine Redgwell explain that today there exists an international human right to a clean environment.⁴ Nevertheless, Birnie et al. mention that not all human rights lawyers favour the recognition of third generation rights, arguing that this devalues the concept of human rights, and diverts attention from the need to fully implement existing civil, political, economic and social rights. In addition, the authors claim that environmental rights do not fit neatly into any single category or generation of human rights and therefore can be viewed from three perspectives:

David Boyd writes: “The suggestion that there are three generations of rights is controversial, and no global Human Rights treaty recognizes third-generation rights in the same way that the two International Covenants enshrine civil, political, economic, social and cultural rights.”⁶ It follows that the evolution and development of international environmental principles had an important impact after 1970. There are two international treaties, which have been adopted some environmental principles enshrining environmental law worldwide: (i) the 1972 Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration),⁷ and (ii) the 1992 Rio Declaration on Environment and Development (Rio Declaration).⁸

On the one hand, the Stockholm Declaration states that:

On the other hand, the Rio Declaration establishes that:

The most important principles ruling international environmental law arising from these two declarations include:

The precautionary principle, the preventive action principle and the principle of international cooperation are the foundation of the environmental principles.⁹ It is important to mention that human rights considerations, nor the right to a clean and healthy environment were addressed in the context of development before the 1990´s,¹⁰ rather, this is a trend that began after the end of Cold War. Antonio Cassese explains that “the environment has come to be regarded as a common amenity, as an asset in the safeguarding of which all should be interested, regardless of where the environment is or may be harmed.”¹¹

Needless to say, the 1997 Kyoto Protocol¹² and the 2015 Paris Agreement¹³ are of crucial importance to understand the right to a clean and healthy environment, because they regulate international level the emissions of Greenhouse Gases, (GHGs), which make up part of the impacts on human, plant and animal health. The seven main GHGs are:

The essence of the Kyoto Protocol seeks to cut back the emissions of industrial and transition economies so that their emissions fall to five per cent below 1990 levels, and to freeze them at that level, while allowing developing countries the right to emit unlimited emissions.¹⁴ This was designed to assist countries in adapting to the adverse effects of climate change and to guarantee the right to a clean and healthy environment. The Kyoto Protocol places a heavier burden on developed countries under the principle of common but differentiated responsibilities because they are mainly responsible for the high levels of GHG emissions in the atmosphere as a result of more than 150 years of industrial activity.¹⁵ Its first commitment period started in 2008 and ended in 2012. During this second period from 2013 to 2020, Parties committed to reduce GHG emissions by at least 18 per cent below 1990 levels over the eight-year period. For instance, the EU´s internal 20 per cent target is also the basis for its international commitments under the Kyoto Protocol´s second comminment period.¹⁶ “The Kyoto Procol is seen as an important first step towards a truly global emission reduction regime that will stabilize GHG emissions.”¹⁷

The Paris Agreement was adopted on 12 December at the twenty-first session of the Conference of the Parties to the United Nations Framework Convention on Climate Change (COP 21), and entered into force on 4 November 2016. It states in Preamble 11 that “Climate change is a common concern of humankind, therefore, the international community should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights to indigenous peoples, local communities, the right to development, as well as gender equality, empowerment of women and intergenerational equity.”¹⁸ To date, of 197 Parties to the Convention, 168 have ratified.¹⁹

In this context, the United Nations Framework Convention on Climate Change (UNFCCC)²⁰ states “the long-term objective is to stabilise atmospheric GHG concentrations at a level that would prevent dangerous anthropogenic interference with the climate system.” In order to reduce GHGs, the international community must adopt and implement at national, regional and local levels the approaches adaptation and mitigation. The Intergovernmental Panel on Climate Change (IPPC) defines adaptation as “adjustment in natural or human system in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities.”²¹ In addition, it defines mitigation as “an anthropogenic intervention to reduce anthropogenic forcing of the climate system. It includes strategies to reduce greenhouse gas sources and emissions and enhancing greenhouse gas sinks.”²² Thus, one of the main goals of the Paris Agreement is the implementation of the approaches explained above in order to reduce GHGs and to protect the environment, human, plant and animal health, as well as the planet earth.

As aforementioned, the right to a clean and healthy environment is considered a third generation human right, and therefore must be seen as other human rights, because human rights are universal, indivisible, interdependent and interrelated. As the environment can be considered as a common amenity, it must be protected so that human beings can enjoy a safe, clean, healthy and sustainable environment. Environmental damage has negative implications on human health, directly and indirectly. Thus, for the effective enjoyment of such human rights, including the right to life, the right to the enjoyment of the highest attainable standard of physical and mental health, the right to an adequate standard of living and its components, (such as the right to food, and the rights to safe drinking water and sanitation, and to adequate housing), the right to a clean and healthy environment must be protected at local, regional and international levels.²³

2. The Right to a Clean and Healthy Environment and its Enjoyment as a Human Right in Mexico and the European Union

1. Global Status of Commercialized Biotech/GM Crops Worldwide

Genetically Modified Organisms (GMOs) are organisms whose genomes incorporate and express genes from another species. Genetically modified (or transgenic) individuals are created by genetic engineering, using suitable vectors to insert the desired foreign gene into the fertilized egg or early embryo of the host.³⁸ Transgenic organisms are the result of biotechnology. Its application in sectors such as in medicine (red biotechnology) and agriculture (green biotechnology) has produced a growing number of GMOs and products derived from them. The environmental safety and risks of GMOs are based on the characteristics of the host organism, the introduced traits, the environment into which the organism is introduced, and the interaction between all of these factors, as well as the intended application of GMOs.³⁹

The International Service for the Acquisition of Agri-biotech Applications (ISAAA) notes: ^”Global hectarage of biotech crops in 2016 increased to 185.1 million hectares compared with 179.7 million hectares in 2015, equivalent to 3% or 5.4 million hectares.”⁴⁰ The ISAAA continues: “A total of 26 countries, 19 developing and 7 industrial countries, planted biotech crops in 2016”. The top ten countries, each of which grew over 1 million hectares (39% of global total, similar to 2015), Brazil with 49.1 million hectares (27%), Argentina with 23.8 million hectares (13%), Canada with 11.6 million hectares (6%), India with 10.8 million hectares (6%), Paraguay with 3.6% million hectares (2%), Pakistan with 2.9% million hectares (2%), China with 2.8 million hectares (2%), South Africa with 2.7 million hectares (1%), and Uruguay with 1.3 million hectares (1%).⁴¹

For this article, it is important to mention that Biotech DroughtGard™ tolerant maize was first planted in the US in 2013. The cultivation of this GM Maize increased from 50,000 hectares in 2013 to 275,000 hectares in 2014 and to 810,000 hectares in 2015.⁴² This reflects the farmer acceptance of this biotech maize crop and the need to use the GM Maize in the arid zones of the USA. This kind of GM-Maize could be introduced in Mexico but only in the arid zones of the country. However, if this were the case, it would be necessary to implement biosafety measures and monitoring before its release takes place, in order to avoid another introgression in Mexico as occurred in Oaxaca in 2001. This introgression will be explained in the third section of this article.

According to some authors Mexico has between 41, 59 and 65 varieties of maize,⁴³ therefore Mexico does not need to cultivate GM Maize or transgenic maize containing a gene from the bacteria Bacillus thuringiensis (BT Maize). José Antonio Serratos Hernández⁴⁴ details 65 varieties of maize in Mexico,⁴⁵ which demonstrates the genetic diversity as well as the need to protect these varieties from contamination.

In order to protect the genetic diversity of maize, it is necessary to protect more than two million small scale of marginalized farmers in the country, because they are the guardians of the native germplasm of maize: they retain, maintain, and even modify the genetic diversity present in their territories through exchange, gene flow, and the testing of new seeds.⁴⁶

2. Benefits and Risks of the Release of GMOs into the Environment and its Effects on Human, Animal and Plant Health

There are exists benefits and risks of the release of GMOs into the environment. This was and is still being discussed at national and international levels, but the perception of benefits and risks differs from country to country.⁴⁷ On the one hand, advocates of biotechnology argues that Biotech crops contribute to food security, sustainable development and mitigating climate change. The ISAAA explains that benefits of planting Biotech Crops include”: Increase productivity that contributes to global food, feed and fiber security; Self-sufficiency on a nation´s arable land; Conserving biodiversity, precluding deforestation and protecting biodiversity sanctuaries; Mitigating challenges associated with climate change; and Improving economic, health and social benefits.”⁴⁸

On the other hand, the potential of risks associated with GMOs include introduction of allergenic or otherwise harmful proteins into food, transfer of transgenic properties to viruses, bacteria or other plants, as well as potential detrimental effects on non-target species and the environment.⁵⁰

To understand the problem in Mexico with regards to maize, it is important to consider that maize is a totally (100%) open-pollinated (cross-fertilising) crop species, thus a coexistence between GM Maize and native landraces of maize cannot exist. The contamination in Oaxaca in 2001 is evidence of this.⁵¹ The Mexican Secretary of Agriculture (SAGARPA) imposed a de facto moratorium on the experimental cultivation of GM Maize in 1998, because there was an uncertainty about potential consequences for maize diversity. However, the de facto moratorium did not prevent the planting of transgenic maize, and introgression took place. The 2004 Report of the Commission for Environmental Cooperation (CEC) analysed: (i) gene flow and transgenic maize, (ii) the impact of Living Modified Organisms (LMOs) on biodiversity and on health, (iii) socio cultural impacts of LMOs in Mexico.⁵² The group of experts from the CEC concluded that one explanation for the appearance of GM Maize in Mexico was the fact that farmers may have planted imported maize from the United States for the use in Tortillas, unaware that the grain was from GM crops. The CEC recommended the restriction of maize imports and their monitoring, preservation in-situ and ex-situ of maize, as well as its conservation, due to the fact that Mexico is a Centre of Origin and Genetic Diversity of Maize. The appearance of contamination demonstrated the complexity of the management of biosafety measures in Mexico, as well as the lack of control at border customs when GM maize is imported from the USA without label or identification.⁵³

The release of GM Maize into the environment in Mexico should only be permitted in arid zones and if biosafety measures are implemented. Otherwise, the effects on biological diversity and changes to agricultural and industrial practices, including an increase in environment pollution, would be severe and irreversible. It is expected that the release of GM maize worldwide will increase, and therefore the loss of biodiversity will take place, i.e., native species could be replaced by exotic species. In order to avoid the loss of biodiversity and the loss of maize varieties, Mexico should prohibit the release of GM maize in its territory, except in its arid zones, where there is not genetic diversity to protect, and only if biosafety measure are in place and can be implemented.

Nevertheless, the major concern about the effects on human, animal, and plant health, and about allergies and toxicity. Glyphosate, is the world´s most widely produced herbicide, by volume. It is used extensively in agriculture. This chemical is an ingredient in Monsanto´s weed killer product Roundup, and glyphosate has become more popular with the increasing market share of crops that are genetically engineered to be tolerant to the herbicide.⁵⁴ World Health Organization (WHO) cancer authorities and the International Agency for Research on Cancer (IARC) recently determined that glyphosate is “probably carcinogenic to humans” (Group 2A). Glyphosate can cause the following conditions in humans: obesity, cardiovascular disease, colitis, Alzheimer´s disease, Parkinson´s disease, autism and depression among others.⁵⁵

1. In Mexico

Mexico is considered a megadiverse country, it belongs to a selected group of nations that possess the greatest number and diversity of animals and plants, or nearly 70 per cent of global species diversity. There are 18 megadiverse countries: Australia; Brazil, China; Colombia; Congo; Ecuador; India; Indonesia; Madagascar; Malaysia; Mexico; Papau New Guinea; Peru; the Philippines, South Africa; the USA; Venezuela; and Zaire.⁵⁶ In addition, Mexico ranks fifth worldwide with 23,424 Vascular plants, 535 Mammals, 1,096 Birds, 804 Reptiles and 361 Amphibians.⁵⁷ Mexico is also a Centre of Origin⁵⁸ and a Centre of Genetic Diversity⁵⁹ (COD) of crops including: chilli pepper; beans; squash; papaya; cotton; tomato; guayaba; cacao; agave; amaranth, and maize.

Mexico faces a major problem with the cultivation of GM maize due to the fact that Mexico has to comply with international environmental commitments and hence has the obligation to protect, conserve and preserve its biodiversity and its maize. Maize is not only the staple food of Mexicans but it has cultural, nutritional, historical, environmental, symbolic, religious, social, and economic significance.⁶⁰ For this reason, Mexico made a declaration against GM maize, which may limit its use for human consumption. The statement establishes that:⁶¹

We invite all countries that are Parties, as well as all countries that are not Parties to the Cartagena Protocol to think about the use of edible crops, especially in centers of origin, as factories for products that limit its properties as food.

Following this, it is crucial for Mexico to prohibit both experimentation and release to the environment of GM maize that has been modified to obtain pharmaceutical products, vaccines, industrial oils, plastics, or any modification that limits or affects its properties as food because maize is, as mentioned before, the staple food in Mexico. In 2005 Mexico enacted a biosafety law⁶² and then passed a regulation⁶³ of this law in 2008. Together, these are considered the most important regulatory developments on biosafety and biotechnology in Mexico.

Table number 2 shows the annual permits for the release of GM maize into the environment in Mexico. The permits for pilot and experimental programs ran from 14 June 2005 to December 2015.

It is important to note that under Mexican Biosafety Law 202 permits have been granted for the release of GM maize into the environment.⁶⁵ This reflects a lack of protection of maize, even as a COD. Nevertheless, Table 2 shows that between 2013 and 2015, permits for the release of GM maize into the environment were not granted. This happened because of the pressure on behalf of environmental organizations including the organization “Sin Maíz no hay País” and “Greenpeace”, as well as researchers, farmers, citizens, and so forth. Contamination of maize took place in Oaxaca in 2001, and these organizations and researchers do not want to have another introgression. They continue to demand the implementation of a de facto moratorium and want the government to prohibit the cultivation of GM maize in Mexico, due to the negative effects that this type of maize provoke on human, animal and plant health as well as into the environment.⁶⁶

Researchers and authors recommended the re-installation and maintenance of the release of GM maize in Mexican territory because:

Recently, Elena Álvarez-Buylla published in Gaceta UNAM that Glyphosate was present in the maize food chain in Mexico, at rates of almost 30%.⁶⁷ She and other authors published in Agroecology and Sustainable Food System⁶⁸ that they have found glyphosate and AMPA residues in 27.7% of samples assayed for herbicide presence. They also stated:

In Mexico there are no set limits for glyphosate residues in processed food, and the concentration of such herbicide is not assayed by official entities. This study suggests that given yhe high level of maize consumption in Mexico, the latter issue should be further considered.

Our results imply that transgenic maize varieties, produced abroad under industrial agricultura are finding their way into the food manufacturing industrial networks inMexico. Another possibility is that domestic seed stocks, that are supposed to be free of transgenic materials, contain at least some GM maize, which suggests that currently applied biosafety guideines should be profoundly revised at the COD of Maize: Mexico.⁶⁹

As has been demonstrated, Mexico did not learn from the introgression in Oaxaca in 2001. Sixteen years later (2017), Mexico has not applied biosafety measures properly, as there is a presence of GM maize into the maize chain food in Mexico. This indicates that the regulations in place do not work as they should.

2. The European Union

The European Union has established a strict regime regarding the cultivation and consumption of genetically modified organisms. Directive 2001/18/EC of the European Parliament and of the Council and Regulation 1829/2003 of the European Parliament and of the Council establish a comprehensive legal framework for the authorization of GMOs, which is fully applicable to GMOs to be used for cultivation purposes throughout the Union as seeds or other plant-propagating material (GMOs for cultivation).⁷⁰ Under that legal framework, GMOs for cultivation are to undergo an individual risk assessment before being authorized to be placed on the Union market in accordance with Annex II to Directive 2001/18/EC taking into account the direct, indirect, immediate and delayed effects, as well as the cumulative long-term effects, on human health and the environment. The aim of this authorization procedure is to ensure a high level of protection of human life and health, animal health and welfare, the environment and consumer interests. In addition, the precautionary principle should always be taken into account.⁷¹

The Directive (EU) 2015/412 states:

Member States have the possibility to restrict or prohibit the cultivation in all or part of their territory of a GMO or of a group of GMOs defined by crop or trait, once authorized, on the basis on town and country planning, land use, socioeconomic impacts, coexistence and public policy.⁷² But there is a restriction for Member States. Once a GMO is authorized for cultivation purposes in accordance with the Union legal framework on GMOs and complies, as regards to the variety that is to be placed on the market, with the requirements of Union law on the marketing of seed and plant propagating material, Member States are not authorized to prohibit, restrict, or impede its free circulation within their territory, except under the conditions defined by Union laws.⁷³

It is important to mention that the cultivation of GMOs is an issue addressed at the level of Member States, but issues related to importing and placing GMOs on the market should remain regulated at the European Union level, so as to preserve the internal market.⁷⁴

In order to guarantee a high level of consumer protection, Member States and operators should also take effective labelling and information measures pursuant to Regulation (EC) No 1829/2003⁷⁵ and Regulation (EC) No 1830/2003 of the European Parliament and of the Council to guarantee transparency with regard to the presence of GMOs in products.⁷⁶ Article 26b, 3 of the Directive (EU) 2015/412 states:

A Member State may adopt measures restricting or prohibiting the cultivation in all or part of its territory of a GMO, or a group of GMOs defined by crop or trait, once authorised in accordance with Part C of the Directive (EU) 2015/412 or with the regulation (EC) No 1829/2003, provided that such measures are in conformity with Union law, reasoned, proportional and non-discriminatory and, in addition, are based on compelling grounds such as those related to:

Those grounds may be invoked individually or in combination, with the exception of the ground set out in point (g) which cannot be used individually, depending on the particular circumstances of the Member States, region or area in which those measures will apply, but shall, in no case, conflict with the environmental risk assessment carried out pursuant to the Directive (EU) 2015/412 or to Regulation (EC) No 1829/2003.

In the European Union only four countries continued to plant biotech crops in 2016 led by Spain, Portugal, Slovakia and Czech Republic. They experienced a combined increase of 17 per cent in 2016 at 136,363 hectares, compared to 116,870 in 2015. Romania decided not to plant GMOs in 2016 due to onerous government requirement.⁷⁷ As mentioned, Mexico has not yet reached its objective to protect maize because it lacks the infrastructure for the control of GM maize. In addition, programs for the protection and conservation of maize have been not developed. In the European Union, Member States of the EU may adopt measures restricting or prohibiting the cultivation in all or part of its territory of a GMOs, as well as ensuring they have been labelled to guarantee a high level of consumer protection.