• Trade and MEAs

Trade and MEAs

This paper assesses the trade in genetically modified organisms (GMOs), with a special focus on international legal frameworks. It highlights that there is lacking conclusive scientific evidence on the actual or potential impact of agricultural biotechnology on human and animal health and on the environment, that the debate on GMOs continues to be vocal and emotional, and that countries continue to hold rather diverging views about the risks and opportunities that agro-biotechnology may bring.

The attitudes of countries towards agro-biotechnology are classified into three main categories:

• Adopting the equivalence principle: these countries have authorised most GM products for production and consumption, and strive for easy and reliable access to foreign markets for their biotechnology exports
• Adopting the precautionary approach: these countries are imposing strict rules on approval and marketing of GMOs and GM products
• Still evaluating the risks and benefits: these countries are striving to develop comprehensive regulatory systems on the issue, and their main trade-related preoccupation at present is to prevent GM-related regulations and concerns from having negative repercussions on their agriculture exports, including exports of conventional products.

The paper further highlights that:

• developed countries have established their national frameworks to deal with agro-biotechnology and bio-safety focusing primarily on domestic priorities and strategies
• instead of enjoying the freedom to assess risks and benefits that agro-biotechnology may bring about and act accordingly, developing countries increasingly seem to be expected to set up their national regulatory schemes based on the requests and expectations of their main trade partners
• the legislation on GMOs and GM products enacted in some regions, and especially in the European Union, is hampering international trade in those products, and it is also claimed to be having indirect negative implications on the trans-boundary movement of conventional agricultural products
• the lack of scientific certainty vis-a-vis the possible impacts of agricultural biotechnology on health and on the environment and the complexity of the legal framework applying to it – along with the huge economic interests involved, give rise to many controversies
• the two main legal frameworks applying to trade in agro-biotechnology products are the WTO framework, which is not specific to biotechnology and was actually developed at a time when biotechnology was not an issue, and the Biosafety Protocol which, on the contrary, is a more recent multilateral instrument specifically targeted at GMOs and GM commodities
• the two legal frameworks do not seem to be fully consistent with each other
• in the event of trade disputes, it is rather uncertain which legal arguments might prevail as they are likely to be different depending on whether GMOs for intentional introduction into the environment, GMOs to be used as food, as feed or for processing, or consumer products derived from GM material are at stake
• it is very uncertain what role the Biosafety Protocol may play in informing WTO disputes because the role of non-WTO law within WTO dispute settlement has always been controversial.

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