Trade/Scientific Risk NTBs & Non-State Aspects (GMOs Plus)

We now edge into the overlap between international trade law and international environmental law, to be embraced more directly in Unit 9. The risk assessment area constituting our initial foray emerged in practice from two different directions, namely on the one hand through pressure from the life sciences (the 1990s emergence of cloning and genetic modification technology), and on the other hand through a regulatory focus on how to handle the resulting genetically modified organisms (GMOs) in ordinary commerce. Remember those more expensive food products labelled as non-GMO that you see every day in the grocery store? Presumably there is a market for non-GMO goods as a matter of consumer preference, but what is the basis of that preference?

1/5 By way of background, we should acknowledge differences in terms of the mindset behind international trade law, or at least the multilateral international trading system, compared to international environmental law. Trade law is treaty-based and enjoys the relative luxury for legal purposes of the centralized World Trade Organization or WTO. It traditionally enjoys strong support from the private sector, so Chamber of Commerce-types lines up on a different side. There is basically a very different orientation towards domestic regulation in trade law resulting from its bias against protectionism. Lawyers are always concerned close to the surface in trade law discussions that normal regulatory jurisdiction not be perverted as a means to avoid import competition, as opposed to a relatively more open-minded search in making international environmental law for something approaching any quasi-regulatory, parts per million-style solution to environmental issues (although the Chamber of Commerce-types may complain about the additional costs imposed by environmental regulation). International trade law’s current travails belong in another course (LAWS 665), but the overlap of trade and the environment is also a legal question for us, since they call upon sometimes different, but overlapping treaties and law.

2/5 We are implicitly focused here on the overlap between the WTO’s legal structures for defining permissible regulation chiefly of food safety concerns under Article 20(b) of the 1994 GATT/WTO Agreement and the question of risk in dealing with genetically modified organisms (GMOs) also governed by the 1992 Convention on Biological Diversity (CBD), or more specifically the amendment to the CBD as framework convention known as the 2000 Cartagena Protocol on Biosafety (Cartagena Protocol). The shared issue is how to deal with risk and regulation, but the answers are very different.

In the 1998 WTO Beef Hormone Appellate Panel Proceeding, the body rejected the action and arguments of the European Union to exclude importation of feedlot-raised or industrially produced livestock (beef) because of the related use of veterinary hormones to accelerate the livestock’s growth (meanwhile, growing livestock faster and heavier makes it a more competitive product in meat industry terms). The formal trade law agreements applied included Article 20(b) of the 1994 GATT/WTO Agreement, and its subsidiary Sanitary and Phytosanitary Agreement (the SPS Agreement, basically governing regulation of food safety in detail). The SPS Agreement required a risk assessment supported by science before EU regulations excluding such “hormone beef” from ordinary consumption would be accepted as a legal matter. Think of this as a dispute about whether only (expensive) “Whole Foods-grade organic beef” could be exported to Europe, as opposed to allowing also (much cheaper) “Food Lion-grade conventional beef” could be labelled as such, and also sold into Europe.

3/5 There were diverse candidates regarding the EU’s motives for the challenged regulation rejecting the importation of hormone beef. There were firstly suspicions concerning a desire to support the EU’s Common Agricultural Policy as a necessary political pillar for the EU to function (because the hormone beef might undercut the price of European livestock, which as a general matter were not produced via feedlots or industrial scale farms, and so were less competitive in terms of meat prices). There were also political considerations given that Green parties were in, or verging on entering, governing coalitions in different parts of the EU, but particularly in Germany (and the Greens placed a high political priority in their party platforms on the exclusion of GMO products, essentially for ideological reasons). There were also relatively close in the rearview mirror a series of so-called “mad cow disease” political scandals which undercut ordinary Europeans’ confidence in domestic food safety regulation. The problem was that allegedly for political reasons, various European ministers of agriculture or similar officials denied the existence of infected cattle in the European food supply chain in the 1980s-90s, with the result of a highly publicized series of pitiful deaths of consumers in Europe due to mad cow disease (Creutzfeld Jakobs disease) allegedly caused by their consumption of “mad cow” meat slaughtered in Europe. So European voters doubted whatever their domestic politicians said about food safety (because they thought the politicians’ statements were driven more by their concern for the farm vote). There were numerous politically valid concerns in the EU militating towards exclusion of hormone-treated beef, but the problem was the lack of a scientific basis for its exclusion as required by the WTO’s SPS Agreement.

Meanwhile the WTO dispute resolution body also opined in the Beef Hormones proceeding that as a matter of law, the EU’s position that the Precautionary Principle argued for by some in international environmental law circles as proper approach to risk (reaching outside the SPS Agreement) had not become customary law. So the Europeans were formally required to permit the importation of hormone beef, although they chose instead non-compliance and are still incurring trade sanctions in lieu of compliance, presumably because of the initial domestic political rationales for their exclusionary decision. When challenges to GMO food importation reached the WTO, the Beef Hormones decision and coverage of the SPS Agreement seemingly dictated the outcome. In fact, the EU as a tactical matter refused to process food safety certifications for GMO foods for a number of years, until eventually the “non-processing” was itself challenged as administrative trade decision, and the EU was formally required to admit non-GMO foods. The latest development includes a European challenge to applicability of the SPS Agreement (with its requirement that food regulations have a basis in science) to the regulation of GMO foods, in favor of the Technical Barriers to Trade (TBT) Agreement, which coincidentally does not contemplate the application of science. The long-running trade dispute over GMO foods continues.

4/5 Meanwhile, the CBD emerged alongside the UN Framework Convention on Climate Change (Greenhouse Gas Convention) as the other important international environmental law convention to come out of the1992 Rio UN Convention meeting. Unlike the Greenhouse Gas Convention, however, the US never signed the CBD. The reason the US failed to embrace the CBD largely involves ideological opposition– as with LOS– to the convention’s recognition of an inchoate interest of a member country in any genetic material from said country commercialized in any product (targeting Big Pharma theoretically for royalties or similar fees when marketing a killer drug for the treatment of HIV, derived from a fungus initially gathered by bio-prospectors in the Amazon river basin). (We shall talk in greater detail about the CBD in Unit 14 as the chief treaty to address biodiversity in the modern setting, but for now are more interested in the Cartagena Protocol.) The Cartagena Protocol as amendment to the CBD as framework convention specifically addressed the issue of GMOs, in a practical sense treating them as inherently dangerous and so subject to regulation and exclusion upon notice from any member country, due to a perceived risk that the genetic material might escape into that country’s ordinary environment and wreak havoc by propagating itself through its environment. The easy to understand analogy is that GMOs were subjected by the Cartagena Protocol to the standards for cross-border trafficking in hazardous waste applicable under the Basel Convention, which we study in Unit 12.

5/5 Ask yourself a resulting legal question in the following terms. The US is a member country of the WTO (thus far, and we presumably continue as such as a matter of self-interest). Meanwhile, the US is not a member country of the CBD or Cartagena Protocol, despite the obvious international environmental law interests at stake. However, the US may follow the development of GMO treatment and other concerns as a non-member observer in CBD meetings of the parties to further develop the framework convention (although as a non-member, its opinions may not count for much in CBD member state deliberations). What is the legal treatment the US and its nationals would be subject to or enjoy concerning GMOs? Under the WTO the US and its nationals interested in GMOs are effectively protected by the Beef Hormones case jurisprudence. Meanwhile, under the CBD or Cartagena Protocol GMOs are subject to aggressive regulation as though they constituted hazardous waste. Remember those Vienna Convention treaty rules we studied in Unit 6?

Copyright 2020–21 © David Linnan.