GMO Trade Wars: The Submissions in the EC-GMO Dispute in the WTO

[The release of the parties' submissions in the long-awaited EC--GMO dispute provides an opportunity to assess the likely implications of this important dispute for the relationship between international trade law and domestic health and environmental regulatory schemes. The dispute raises a myriad of legal questions, many of which have long been thorny issues in the 'trade and environment' context. However, the greatest significance of this dispute may ultimately lie in what it reveals about the capacity of global markets, through the instruments of the World Trade Organization agreements, to shape the way in which WTO Members regulate their own territories, issues of health and environmental risk associated with internationally traded products. We argue that the EC--GMO dispute can be conceived of as a clash between different approaches to the regulation of uncertain risks surrounding genetically modified organisms. Viewing the dispute in this way raises questions as to whether the WTO agreements, applied by the WTO Dispute Settlement Body, are capable of accommodating legitimate regulatory diversity or whether global markets could become the means for harmonising domestic structures for the regulation of health and environmental risk, particularly in countries lacking the economic power to stand outside the WTO system on any one issue.] CONTENTS I Introduction II Overview of the Relevant WTO Agreements A GATT 1994 B TBT Agreement C SPS Agreement III EU Regulatory System for Approving GMOs A Evolution of GMO Regulation in the EU B Approval Process for GMOs IV The Submissions before the Panel A GMO Regulations as SPS Measures B 'Product/Process' Distinctions and Differences in 'Levels of Protection'. C Precautionary Delays or Protectionism? D Relevance of International Agreements to the WTO Regime E 'Sound Science' and Risk Assessment V Looking to the Future I INTRODUCTION Over the short history of dispute settlement in the World Trade Organization, (1) few cases have excited as much anxious anticipation as the current dispute between the United States, Canada, Argentina and the European Communities concerning the latter's 'measures affecting the marketing and approval of biotech products'. (2) The EC--GMO dispute, much like its predecessor regarding hormones in beef, (3) has been slowly simmering away for many years. It finally came to a head in May 2003 when the US, along with other large agricultural biotechnology producers, Argentina and Canada, (4) requested the initiation of formal dispute settlement proceedings against the EC in the WTO. (5) At the heart of the dispute lie fundamentally different regulatory approaches to the assessment and management of possible risks posed by the most controversial products of biotechnology--genetically modified organisms ('GMOs'). (6) At stake is not only the multi-billion dollar agricultural gene technology industry, (7) but also (depending on who you listen to) the viability of organic farming practices, future food security in developing countries, agricultural sustainability, global biodiversity, long-term human health, and national regulatory autonomy regarding health and environmental concerns. (8) The intense public interest in the EC--GMO dispute has prompted the parties to adopt an unprecedented level of transparency regarding their arguments and submissions to the WTO Panel that will initially decide the matter. Canada, the EC and the US have all released their first detailed written submissions, which together total some 470 pages in length. (9) The complainants' submissions are quite carefully framed; they do not purport to attack the EC's GMO regulatory regime as such--indeed Canada argues that all would be well if only the EC would follow its legislated assessment and approval processes. (10) Instead, the complainants argue that excessive delay in the EC approval process and/or bans on genetically modified ('GM') crops maintained by individual Members of the European Union violate the obligations of the EC under several WTO agreements. …

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