Genetically Modified Rules: The Awkward Rule-Exception-Right Distinction in EC-Biotech

Abstract

The arcane distinction between rules, exceptions and autonomous rights has troubled WTO dispute settlement since its earliest days, primarily with respect to procedural burden-of-proof questions. Yet in its report, the EC-Biotech panel relied on a techno-textual understanding of this distinction to interpret the substantive applicability of Articles 2.2, 5.1 and 5.7 SPS - the WTO's fundamental rules on the degree of scientific certainty of risk required to allow a state to restrict imports of goods due to human, animal or plant health or life concerns. This article critiques the panel's approach on the backdrop of WTO jurisprudence and deontic logic, arguing that the norm-category of autonomous rights - as resorted to by the panel - does not actually exist; that the Article 2.2-5.1/5.7 SPS relationship should be more straightforwardly construed than the panel's convolutions would suggest; and that the disorderly and incoherent outcome of the panel's analysis of the questions involved serves as a cautionary tale against excessive textualism in WTO dispute settlement.

Keywords: Genetically Modified Organisms, Burden of Proof, deontic logic, WTO, dispute settlement