Genetic Engineering and International Law: Conflict or Harmony? An Analysis of the Biosafety Protocol, Gatt, and the WTO Sanitary and Phytosanitary Agreement
By Brett Grosko
INTRODUCTION
Genetically modified organisms, or “GMOs,” have emerged both as a potential boon to humanity and as a cause for concern among various elements of civil society in the past few years. Worries about genetically modified agricultural products, one of the most widespread uses of this new technology, have generally been more vocally expressed in the European Union (“EU”), where public disquiet has manifested itself in graphic ways1 than in the United States. In February 2001, the European Union's governing bodies approved a set of rules on the testing, planting, and sale of GMOs. In the United States, the Environmental Protection Agency (“EPA”) has proposed that farmers voluntarily create buffer zones around transgenic crops, such as corn, to reduce the likelihood of adverse effects on the surrounding genetic pool or local insect populations. The Food and Drug Administration (“FDA”) also announced three proposed regulatory changes to its biosafety regulations in an attempt to curb consumer fears about genetically modified foods, including a requirement that biotechnology companies notify the FDA four months before marketing a new genetically modified (“GM”) food and provide the agency with research results on the product's safety.
In January 2000, nations dealt with the international trade in certain GMOs by completing the Biosafety Protocol (“the Protocol”) to the Convention on Biological Diversity (“CBD”). As adopted in Montreal, the Protocol provides for the establishment of an Advanced Informed Agreement procedure to allow nations the opportunity to control the import of certain GMOs, known as Living Modified Organisms (“LMOs”), in certain circumstances. The Protocol also incorporates the Precautionary Principle in several places, and requires certain GMO shipments to be labeled as either containing or potentially containing LMOs. The Protocol likewise sets out the process whereby Parties shall begin to elaborate rules and procedures for liability and redress for damage resulting from the transboundary movement of GMOs.
The Protocol serves several purposes, not least of which is to calm the public's nerves about GMOs. Nevertheless, the Biosafety Protocol arguably conflicts with another international treaty, the General Agreement on Tariffs and Trade (“GATT”).
For example, Article XI of GATT forbids nations from setting quantitative barriers to the entry of goods at their respective borders. If a country in the EU, which already does ban the import of some types of GMOs, were to establish such a ban pursuant to the Protocol, the United States could bring an action in the World Trade Organization (“WTO”), GATT's administrative body. In fact, Austria recently instituted a ban on genetically modified maize, citing a lack of long-term analysis of environmental impacts in relevant studies. Additionally, Thailand has requested WTO talks to discuss an Egyptian ban on Thai tuna imports packed with genetically modified soybean oil.
This note will discuss the interplay between the Protocol as finalized in Montreal and several aspects of GATT. Section II offers a brief introduction to the provisions of the Protocol and the potential benefits and risks involved with the use of GMOs. Section III delves into the issue of how the Protocol may interact with GATT Articles III and XI, and the WTO Sanitary & Phytosanitary (“SPS”) Agreement. Section III also considers how various GATT and WTO dispute resolution panel findings bear on the Protocol's consistency with GATT principles.
Genetically modified organisms, or “GMOs,” have emerged both as a potential boon to humanity and as a cause for concern among various elements of civil society in the past few years. Worries about genetically modified agricultural products, one of the most widespread uses of this new technology, have generally been more vocally expressed in the European Union (“EU”), where public disquiet has manifested itself in graphic ways1 than in the United States. In February 2001, the European Union's governing bodies approved a set of rules on the testing, planting, and sale of GMOs. In the United States, the Environmental Protection Agency (“EPA”) has proposed that farmers voluntarily create buffer zones around transgenic crops, such as corn, to reduce the likelihood of adverse effects on the surrounding genetic pool or local insect populations. The Food and Drug Administration (“FDA”) also announced three proposed regulatory changes to its biosafety regulations in an attempt to curb consumer fears about genetically modified foods, including a requirement that biotechnology companies notify the FDA four months before marketing a new genetically modified (“GM”) food and provide the agency with research results on the product's safety.
In January 2000, nations dealt with the international trade in certain GMOs by completing the Biosafety Protocol (“the Protocol”) to the Convention on Biological Diversity (“CBD”). As adopted in Montreal, the Protocol provides for the establishment of an Advanced Informed Agreement procedure to allow nations the opportunity to control the import of certain GMOs, known as Living Modified Organisms (“LMOs”), in certain circumstances. The Protocol also incorporates the Precautionary Principle in several places, and requires certain GMO shipments to be labeled as either containing or potentially containing LMOs. The Protocol likewise sets out the process whereby Parties shall begin to elaborate rules and procedures for liability and redress for damage resulting from the transboundary movement of GMOs.
The Protocol serves several purposes, not least of which is to calm the public's nerves about GMOs. Nevertheless, the Biosafety Protocol arguably conflicts with another international treaty, the General Agreement on Tariffs and Trade (“GATT”).
For example, Article XI of GATT forbids nations from setting quantitative barriers to the entry of goods at their respective borders. If a country in the EU, which already does ban the import of some types of GMOs, were to establish such a ban pursuant to the Protocol, the United States could bring an action in the World Trade Organization (“WTO”), GATT's administrative body. In fact, Austria recently instituted a ban on genetically modified maize, citing a lack of long-term analysis of environmental impacts in relevant studies. Additionally, Thailand has requested WTO talks to discuss an Egyptian ban on Thai tuna imports packed with genetically modified soybean oil.
This note will discuss the interplay between the Protocol as finalized in Montreal and several aspects of GATT. Section II offers a brief introduction to the provisions of the Protocol and the potential benefits and risks involved with the use of GMOs. Section III delves into the issue of how the Protocol may interact with GATT Articles III and XI, and the WTO Sanitary & Phytosanitary (“SPS”) Agreement. Section III also considers how various GATT and WTO dispute resolution panel findings bear on the Protocol's consistency with GATT principles.
