Pre-empting Precaution: GMO Trade Conflicts, Uncertainty Intolerant Risk Assessment and Precaution-based Risk Management

International trade concerns the exchange of goods and services between countries. Numerous trade conflicts are rooted in the question of whether or not particular goods (might) constitute risks to human health and/or the environment. In such instances, risk assessment is intended to take the sting out of the conflict. Risk assessment is usually considered a technical exercise to be performed by experts, and which will result in an objective evaluation of the risks discussed. Risk assessment is usually viewed as an apolitical stage or endeavour. In this paper, we will challenge such assumptions. Many of the risks at stake in heated trade conflicts are uncertain, andtrade conflicts concerning genetically modified organisms (GMOs) are a case in point. In a trade conflict, does it matter how risk assessments deal with uncertainty? Van Asselt and Vos (2008) have observed that risk assessments can be intolerant of uncertainty: instead of identifying and discussing uncertainties, uncertainties are discarded and evaded. Is it a problem when risk assessments are ‘uncertainty intolerant’? Does this give rise to political implications? Given the uncertainty, the precautionary principle may be invoked, which can be considered a risk management principle and enables risk managers to defend various precautionary measures ranging from monitoring requirements to labelling or bans, whether temporary or permanent. As the current regulatory arrangements require that risk management strategies should be supported by a risk assessment (see Millstone, forthcoming for a critical discussion of this regulatory model), whether or not uncertainties are identified in risk assessments might impact upon the decision makers’ room for manoeuvre. In the late 1990s, the issue of US exports of GMOs to the EuropeanUnion (previously referred to as ‘European Communities’ in the WTO1) became a highly contested issue. Different GMOs were authorized for import into the European Union but various countries issued safeguard measures against GMO release onto their markets or use in their environments. Between 1997 and 2000, countries like Italy, Austria, France, Germany, Greece and Luxembourg refused to allow particular GMOs ontheir territory, although overall consent had been given. The United States claimed that the way the EU dealt with the import of GMOs since 1998 should be characterized as an unofficial de facto moratorium that is unsubstantiated by sound science, while the EU claimed it was legitimate that the precautionary principle be invoked by Member States. In May 2003, the US, Canada and Argentina requested consultations at the World Trade Organization (WTO) and, after the consultations failed to resolve the issue, the US requested the establishment of a WTO Panel to rule on its complaint. The report of the Panel in the European Communities – Measures Affecting the Approval and Marketing of Biotech Products dispute (hereinafter ‘EC-Biotech’) was adopted on 21 November 2006.2 It ruled in favour of the complaining parties. In this chapter, we discuss the EC-Biotech case from the perspective ofwhether it matters for such trade conflicts how uncertainty is dealt with in the risk assessments, and if so, to what extent. We first introduce relevant parts of the WTO regulatory framework and discuss the nine product-specific safeguard measures (precautionary bans) that were the subject of the case. We then analyse the reasoning of the EC-Biotech panel pertaining to uncertainty, risk assessment and precautionary measures.

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