1 Kirsch, S “A defense of the US position on labelling GMO” (2000) 1 International and Comparative Environmental LawGoogle Scholar 21 at 21; Van Beuzekom, B et al. OECD Biotechnological Statistics (2009, Organisation for Economic and Cooperation Development) at 9–10Google Scholar.

2 Zarrilli, S “International trade in GMOs and GM products: National and multilateral legal frameworks” (2005) 29 Policy Issues in International Trade and Commodities Study SeriesGoogle Scholar (United Nations) 1 at 1; Buechle, K “Great, global promise of genetically modified organisms: Overcoming fear, misconceptions, and the Cartagena Protocol on Biosafety” (2001) 9 Indiana Journal of Global Legal StudiesGoogle Scholar 283 at 319–20; Redick, T “Cartagena Protocol on Biosafety: Precautionary priority in biotech crop approvals and containment of commodities shipments” (2007) 18 Colorado Journal of Environmental Law and PolicyGoogle Scholar 51 at 63.

3 Adler, JH “Cartagena Protocol and biological diversity: Biosafe or bio-sorry” (2000) 12 Georgetown International Environmental Law ReviewGoogle Scholar 761 at 762.

4 Cartagena Protocol on Biosafety to the Convention on Biological Diversity (29 January 2000, entered into force 11 September 2003) 39 International Legal Materials 1257.

5 Convention on Biological Diversity (5 June 1992, entered into force 29 December 1993): UN doc UNEP/Bio.Div/N7-INC.S/4 reprinted in 31 International Legal Materials 818.

6 The OAU became the African Union (AU) in 1999; see: <http://www.africa-union.org/About_AU/au_in_a_nutshell.htm> (last accessed 2 May 2012).

7 The first draft was developed by experts from Africa and other developing countries in Addis Ababa during a workshop organized by the OAU in June 1999. In May 2001, this draft was finalized by an AU working group in Addis Ababa, which gathered 50 representatives of 28 African governments, 34 representatives of NGOs, scientific institutions and the biotechnology industry, as well as five representatives of the AU and UN Environment Programme (UNEP). This draft was reviewed several times and was finalized in 2008; see: <http://www.africa-union.org/root/au/AUC/Departments/HRST/biosafety/AU_Biosafety_2b.htm> (last accessed 2 May 2012). The draft law is available at: <http://www.africa-union.org/root/au/AUC/Departments/HRST/biosafety/DOC/level2/DraftRevAMLBS_Jan08_EN.pdf> (last accessed 2 May 2012).

8 Any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology and is capable of replication as per art 3(g) of the Cartagena Protocol. An LMO is a sub-category of the broader category of GMOs. The Cartagena Protocol refers to LMOs rather than GMOs because there was controversy on the scope of GMOs to be covered during the negotiation of this protocol. It was finally agreed that the protocol will cover only transboundary movements of LMOs to the extent that they may have a potential impact on biological diversity while not all GMOs as a broader category may have any impact on biological diversity. Both terms are used in this paper.

9 Building Capacity for the Implementation of the Cartagena Protocol on Biosafety (2002, UNEP / Global Environment Facility (GEF)) at 15.

10 After having ratified the Convention on Biological Diversity on 17 August 1992, Mauritius acceded to the Cartagena Protocol on 11 April 2002. The national focal point as per art 19(1) of the protocol is the Ministry of Agro Industry, Food Production and Security. See: <http://bch.cbd.int/protocol/parties/> (last accessed 2 May 2012).

11 Puchooa, D “Biotechnology in Mauritius: Current status and constraints” (2004) Electronic Journal of Biotechnology 7.Google Scholar

12 G Chan Final Report on the Integrated Farming Pilot Project at Union Sugar Estate (1997, Ministry of Agriculture technical report) at 3–8 ; G Chan Le Jardin de Porcs à St Martin [The Pig Garden at St Martin] (1998, Ministry of Agriculture technical report) at 1–4.

13 The agricultural services of the Ministry of Agriculture, the Mauritius Sugar Industry and Research Institute, the Food and Agricultural Research Council (FARC), the Agricultural and Research Extension Unit, the University of Mauritius and Microlab.

14 Convention on Biodiversity: Third National Report for the Republic of Mauritius (2006, Ministry of Environment and National Development Unit).

15 J Ramkissoon “Biotechnology RTD in Mauritius: Chronology of the policy and development process” (2002, FARC technical paper) at 1–3.

16 Annual Report: Micropropagation of New and Promising Clones (2002, Mauritius Sugar Industry Research Institute); S Moola and V Munnik GMOs in Africa: Food and Agriculture Status Report (2007, African Centre for Biosafety) at 50.

17 One of the NSSSP's objectives is to create a national agricultural biotechnology institute and a food laboratory; see: <http://www.absfafrica.org/index.php?option=com_content&view=article&id=45:mauritius&catid=7:status&Itemid=12> (last accessed 2 May 2012).

18 Convention on Biodiversity: Fourth National Report for the Republic of Mauritius (2010, Ministry of Environment and Sustainable Development) at 23.

19 Neeliah, H et al. National Policy Regarding Commercial GM Imports and the Potential Farm-level Impact of GM Crops (2006, Mauritius Regional Approach To Biotechnology Policy in Southern Africa Project)Google Scholar.

20 Brace, MJ “Regulation of genetically engineered foods under the Federal Food, Drug and Cosmetic Act” (1984) 33 American University Law ReviewGoogle Scholar 899 at 911; Ewing, JF “Agricultural biotechnology: Is the international regulation of transgenic agricultural plants for the birds (and the bees)” (2002) 25 Suffolk Transnational Law ReviewGoogle Scholar 617 at 635.

21 Fernandez, RR “Monsanto and the requirement for real risks in GM food regulation” (2006) 28 Loyola of Los Angeles International and Comparative Law ReviewGoogle Scholar 335 at 336; Kohm, KE “Shortcomings of the Cartagena Protocol: Resolving the liability loophole at an international level” (2009) 27 University of California Los Angeles Journal of Environmental Law and PolicyGoogle Scholar 145 at 153; Schnier, DJ “Genetically modified organisms and The Cartagena Protocol” (2001) 12 Fordham Environmental Law JournalGoogle Scholar 377 at 393.

22 Doyscher, CL “Genetic engineering: Revolutionary technology or environmental catastrophe” (1986) 7 Hamline Journal of Public Law and PolicyGoogle Scholar 239 at 243; Ludlow, K “Gene technology regulation and the Environment Protection and Biodiversity Conservation Act 1999” (2004) 30 Monash University Law ReviewGoogle Scholar 165 at 168.

23 Other concerns raised over GM crops relate to those which are used as feedstuffs and their effects on animal health, especially poultry or cattle, inevitably impacting human health by entering the human food chain.

24 Government of Mauritius / UNEP / GEF “Pilot biosafety enabling activity project: National Biosafety Guidelines for the Safe Development and Introduction of Genetically Modified Organisms in Mauritius (1999)”, available at: <http://www.gov.mu/portal/sites/ncb/moa/farc/NationalBiosafety.htm> (last accessed 2 August 2012).

25 Act 3 of 2004.

26 Cartagena Protocol, art 1.

27 GMO Act, sec 6(2)(b).

28 Act 10 of 2006.

29 Act 1 of 1998.

30 GMO Act, sec 2.

31 An organism means a cellular or non-cellular biological entity, capable of metabolism, replication, reproduction or of transferring genetic material and includes a microorganism. Art 3(h) of the Cartagena Protocol defines a “living organism” as “any biological entity capable of transferring or replicating genetic material, including sterile organisms, viruses and viroids”.

32 Art 1 of the draft African Model Law on Biosafety includes the “products of a GMO” which it defines as “any material derived by processing, or otherwise, from any genetically modified organism or from a product of a genetically modified organism”.

33 GMO Act, sec 3(1)(a).

34 Id, sec 3(1)(b).

35 Id, sec 3(1)(c).

36 Id, sec 3(2).

37 Id, sec 2.

38 Ibid.

39 A “facility” means any place where activities involving GMOs are carried on (for instance a building, laboratory, greenhouse, insectary or field).

40 See the first sched of the GMO Act. Category A enumerates the different kinds of trials targeted: laboratory experimentation, greenhouse trial, small field testing and large field trial.

41 Ibid. See the request for approval of a GMO permit: category B food and feedstuffs.

42 Neeliah et al National Policy Regarding Commercial GM Imports, above at note 19 at 5.

43 Seto, RC “Selling the pharm: The risks, benefits, and regulation of biopharmaceuticals” (2004) 27 Environs - Environmental Law and Policy JournalGoogle Scholar 443 at 444–45.

44 The model application form provided in annex I of the draft African Model Law on Biosafety does include pharmaceuticals.

45 Nuffield Council on Bioethics “The use of genetically modified crops in developing countries: A follow-up discussion paper” (2004) at 42–43.

46 All designated national focal points are registered in the biosafety clearing house in accordance with art 19 of the Cartagena Protocol.

47 The International Centre for Genetic Engineering and Biotechnology in collaboration with the Faculty of Agriculture of the University of Mauritius and the FARC held a three day stakeholder workshop on biosafety risk communication in June 2011. FARC, which operates under the Ministry of Agro Industry and Food Security, held (with the support of UNEP and GEF) a one day workshop on public information and participation regarding biosafety issues in March 2011. A two day workshop on handling applications for GMO permits was held in March 2009. Details are on file with the author.

48 GMO Act, sec 4(1).

49 The minister may revoke appointments in accordance with powers given to him under sect 4(2)(b) of the GMO Act, for any reason specified in sec 37(3)(b) of the Interpretation and General Clauses Act 33 of 1974.

50 See the second national report for Mauritius submitted in September 2011, available at: <http://bch.cbd.int/database/record.shtml?documentid=102328> (last accessed 7 May 2012).

51 GMO Act, sec 2.

52 Id, sec 19(2).

53 Id, sec 7.

54 Id, sec 7(3)(a).

55 There should be advance informed consent before the export of GM products in accordance with art 7 of the Cartagena Protocol and art 1 of the draft African Model Law on Biosafety.

56 Cartagena Protocol, art 11.

57 Art 13(1) and 13(2) of the draft African Model Law on Biosafety mention the need for a threshold below 0.9% for adventitious presence of GMOs.

58 GMO Act, sec 16(2).

59 Neeliah et al National Policy Regarding Commercial GM Imports, above at note 19 at 16.

60 Plant Protection Act 2006, sec 18.

61 Id, secs 22 and 23.

62 Id, sec 24.

63 Cartagena Protocol, art 23.

64 GMO Act, second sched.

65 Art 10(6) of the Cartagena Protocol acknowledges that there are scientific uncertainties due to lack of information and relevant scientific knowledge on the extent of negative effects of an LMO on conservation and sustainable biodiversity.

66 Adler “Cartagena Protocol and biological diversity”, above at note 3 at 767; Murphy, SD “Biotechnology and international law” (2001) 42 Harvard International Law JournalGoogle Scholar 47 at 56.

67 Ewing “Agricultural biotechnology”, above at note 20 at 635.

68 Compton, MM “Applying World Trade Organization rules to the labelling of genetically modified foods” (2003) 15 Pace International Law ReviewGoogle Scholar 359 at 377; N De Sadeleer “Les avatars du principe de précaution en droit public: Effet de mode ou révolution silencieuse” [The evolution of the precautionary principle in public law: Following the trend or silent revolution] (2001) Revue Française de Droit Administratif 547 at 547.

69 Environment Protection Act 19 of 2002, sec 5.

70 The following are also included: impacts likely to occur as a result of substituting traditional crops, products and indigenous technologies through modern biotechnology out of their agro-climatic zones; anticipated social and economic costs due to loss of genetic diversity, market opportunities and, in general, means of livelihood of the communities likely to be affected by the introduction of the GMOs or products and; possible effects which are contrary to the social, cultural, ethical and religious values of communities arising from the use or release of the GMO.

71 GMO Act, sec 18.

72 Id, sec 20.

73 Id, sec 20(2)(a) and (b).

74 Id, sec 20(1).

75 Strategic Options in Crop Diversification and Livestock Sector (2007–15) (consultation draft, 2007, Ministry of Agro Industry and Fisheries) at 60.

76 Id at 58.

77 GMO Act, sec 21(1).

78 Food Regulations 1999, made by the minister under sec 18 of the Food Act 1998.

79 See id, sec 2: “pre-packed food” means “food, including cooked and uncooked which has been packed in a container before being sold to [sic] ultimate consumer, and which is sealed in such a manner that the contents cannot in any way be altered without the package being opened or undergoing perceptible modifications”.

80 Id, sec 3(1)(m).

81 See draft African Model Law on Biosafety, annex II C; Van Tassel, KA “Genetically modified plants used for food, risk assessment and uncertainty principles: Does the transition from ignorance to indeterminacy trigger the need for post-market surveillance” (2009) 15 Boston University Journal of Science & Technology LawGoogle Scholar 220 at 222.

82 Codex Alimentarius “General Standard for the Labelling of Prepacked Foods (1985)”: CODEX STAN 1-1985, available at <http://www.codexalimentarius.org/standards/list-of-standards/> (last accessed 30 November 2013).

83 Art 18(1) of the Cartagena Protocol refers to international rules and standards.

84 Draft African Model Law on Biosafety, art 13(2).

85 Neeliah et al National Policy Regarding Commercial GM Imports, above at note 19 at 16.

86 Previously the labelling of GM foods was based on regulation (EC) 258/97 on novel foods and novel food ingredients (Official Journal L43, 14 February 1997 at 1–6) but regulation (EC) 1829/2003 on genetically modified food and feed (Official Journal L268, 18 October 2003 at 1) provides a more comprehensive regime on the labelling of GM food and feed products.

87 Compton “Applying World Trade Organization rules”, above at note 68 at 385.

88 See the Swiss Federal Law relating to Non-Human Gene Technology (2003) Recueil systématique 814.91.

89 Coffield, SA “Biotechnology, food and agriculture disputes or food safety and international trade” (2000) 26 Canada-United States Law JournalGoogle Scholar 233 at 237.

90 Reg 7 (GN no R 293 of 1 April 2011) in terms of sec 120(1) of the Consumer Protection Act 68 of 2008.

91 Act 32 of 1977.

92 GMO Act, sec 11.

93 Id, sec 10.

94 Id, sec 23(1).

95 Mauritian Civil Code, arts 1382 and 1383.

96 The Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety, adopted in October 2012, available at: <http://bch.cbd.int/protocol/supplementary/> (last accessed 2 May 2012).

97 See GMO Act, sec 24(1): the minister may make any regulation he thinks fit for the purposes of the act.

98 Only secs 1–5, 6(1)(a)–(c) and 24 have been proclaimed; they entered into force on 1 January 2005.