Safe Until Proven Harmful? - Risk Regulation in Situations of Scientific Uncertainty: The GMO Case - Casenote and Comment

Abstract

In 2003, the USA, Canada and Argentina requested consultations with the European Communities [EC] concerning certain measures taken by the EC and its Member States. They asserted that the moratorium applied by the EC on the approval of genetically modified organisms [GMOs] had restricted imports of agricultural and food products. They also claimed that a number of EC Member States (Austria, Germany, France, Italy, Greece and Luxembourg) maintained national marketing and import bans on biotech products even though those products had already been approved by the EC itself.

The focal point of the discussion exposed the major difference in approach between the USA and the EC as to the proper regulation of GMOs. The most significant aspect of this case, beyond the interpretive technicalities of the SPS agreement itself, concerns the way in which the Panel dealt with other overlapping international legal obligations. The EC’s defense was largely based on its obligations under the Convention on Biodiversity, the Biosafety Protocol and the precautionary principle, a defense which was not accepted by the Panel. The case is interesting since it arose out of a clash between the European and American regulatory policies (and the ideas and theories behind those policies), resulting in a victory for the latter. The question remains whether the Panel’s treatment of the EC’s defense contributes towards more coherence in international law.

Keywords: EC – Biotech, GMO, public international law, international dispute settlement, WTO law, systemic integration, precautionary principle, fragmentation