WTO Public Symposium 2003: Session XIV- GM Food / Bio-Safety Protocol

Organized by University of Geneva

Moderator - Urs Thomas, University of Geneva

With the Cartagena Protocol slated to come into force in September 2003, the WTO must decide the role multilateral environmental agreements and biosafety protocols will play in the trade organization’s rules and dispute settlement. Currently, WTO rules on biosafety are covered by the Sanitary/Phytosanitary (SPS) Agreement and the Technical Barriers to Trade (TBT) Agreement. The aim of the SPS and TBT agreements is to ensure that regulations put in place in the name of biosafety are not guises for protectionism. Each agreement calls for the use of scientific evidence, impact assessments, and proof of the necessity of the regulation. The agreements also strongly encourage the use of international standards, formed by organizations such as the Food and Agriculture Organization (FAO), the Codex Alimentarius, and the International Organization for Standardization (ISO).

Against this framework, the Cartagena Protocol could come into conflict with the WTO. The Cartagena Protocol, which regulates trade in genetically modified organisms to protect biodiversity, is based on the Precautionary Principle that allows countries to restrict potentially dangerous activities before they can be scientifically proven to cause serious damage. In contrast, the SPS agreement demands “sufficient scientific evidence” to restrict or prohibit trade. The nature of the relationship between the Cartagena Protocol and the WTO is ill-defined; one clause in the protocol asserts that the new pact will not override rights or obligations under other international agreements, while another demands that the protocol not be subordinated to other agreements but considered as a complement. Thus, the WTO’s task will be to decide to what extent it will reference multilateral environmental agreements when settling disputes, and how it will reconcile cases brought against countries that have employed the precautionary principle to restrict trade. Some issues currently being discussed include: granting observer status of multilateral environmental agreement secretariats, reforming dispute settlement procedures, and increasing involvement of developing countries in standard-setting.

Panelists and Viewpoints

Makane Mbengue, Faculty of Law, University of Geneva, “The Role of the Precautionary Principle in WTO case law”

The precautionary principle continues to play a role in many controversies based on its status in the realm of international treaties. Instead of talking about a precautionary "principle" or "approach", we should refer to "precaution" as a legal technique or norm that allows states to act or not act in the context of a scientific uncertainty. We achieve the same result whether we see it as a principle (an obligation or constraint) or as an approach (a recommendation): an obligation or recommendation can have similar legal effects. In the context of the WTO, this means that regardless of the legal treatment international law gives the idea of precaution, it allows countries to take restrictive measures in international trade, for sanitary or environmental protection, in the name of scientific uncertainty. Contrary to some who have made passionate arguments, the precautionary principle was not debased by the "Hormones" dispute. Instead, this dispute raised the precautionary principle in the ranks of positive rule of law in the WTO Agreements by its inclusion in Article 5:7 of the SPS Agreement. It seems that the "Hormones" dispute reinstated the practice of clinical isolation. A future disagreement on genetically-modified organisms risks highlighting the limited applicability of the preacautionary principle in the WTO system. The Cartagena Protocol with its wide-ranging view of the principle and the Doha Declaration with its segmented approach to rules and principles in the Multilateral Environmental Agreements could also cloud the conflict.

Jerri Husch, World Health Organization, “The 2002 Evaluation Process of the Codex Alimentarius”

The Codex Alimentarius Commission conducted an evaluation in 2002 to identify the overlaps and inefficiencies within the organization. The Evaluation will provide the 2003 Commission meeting with detailed analysis of the problems and its specific recommendations as the foundation for a strategy to: increase accountability, improve transparency, and boost the participation of developing countries in standard-setting. With regards to the contentious debate on genetically modified foods, there needs to be a forum for discussion that gives equal voice to developing and developed countries. Hopefully, the Codex could provide that forum as an organization that represents international food cultures with their complex webs of producers and suppliers.

Prof. Richard Braun, University of Berne, Microbiologist, emeritus former director of Gen Swiss Foundation

Developed countries such as the US and Canada have been the leaders in GM food production. However, developing countries such as Argentina, China, and South Africa are emerging as producers of GM foods as well. Some farmers have embraced GM crops because they have a higher yield and they are more pest-resistant. In the future, GM crops will be drought-resistant as well. The environmental and social implications are great: greater pest-resistance means less use of pesticides, higher yield and drought-resistance will allow farmers to produce enough to feed the burgeoning world population without having to cut down more forests. Public resistance to GM foods runs contrary to public acceptance of genetic-engineering in medicine. While some people oppose GM foods for reasons of health and safety risks, most are merely afraid of the unknown. Thus, there must be case by case risk analysis and a continuation of ethical studies on the issue of GM foods. The Cartagena Protocol will hopefully spur an in-depth, international discussion on the consequences of non-action and the role of the Precautionary Principle.

Julian Edwards, Director-General, Consumers International, United Kingdom

Consumers’ wariness about GM foods does not mean they are not opposed to new technologies. Instead, it reflects the deep religious, cultural, personal, and health-related reasons why consumers are nervous about any food related technology. Furthermore, GM foods have had relatively little testing except for the case of GM tomatoes that were tested on the general public without getting informed and willing consent. Once the FDA approved them, it opened the gate for other GM foods that had not been tested. Thus, consumers want GM foods to be labeled as such so that they have the choice of what they eat. They also demand better traceability and better principles of risk assessment. The Codex is currently working on new standards for assessment that will be considered WTO compatible.

On the benefits of GM foods, some are not proven and others may be outweighed by potential problems. For example, the economic benefits are not uniformly distributed along the food production chain. In fact, some food growers may benefit very little if at all, while the profits fall on middle men and purveyors of GM seed. As for the social benefit, high-yield or fortified GM foods beg the question of why millions starve each year. There is no shortage of food in the world; the problem is its distribution. Thus, instead of addressing the real issue, GM foods are an illusory panacea.

There are three main questions being asked of GM foods:
1. What is the impact of GM seed on small scale farms?
2. Will the food chain come under corporate control?
3. Will there be a loss of biodiversity and consumer choice?

Environmental concerns include:
1. the possibility of difficult to control, super-weeds and products of cross-contamination between wild types and GM varieties
2. the promotion of monoculture by limiting the production of myriad wild varieties in favor of GM food
3. the unknown, long-term biological/ecological impact

Safety concerns include:
1. new allergies to GM foods
2. health issues inherent in unknown bio-technology

Further Comments by Panelists and Delegates

Precautionary Principle’s compatibility with WTO agreements

Codex’s Activities relating to GM Foods

Soil Contamination