THE PRECAUTIONARY PRINCIPLE PROJECT
ONLINE CONSULTATION
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From: Christian Lopez-Silva
Affiliation: Sheffield Institute of Biotechnological Law and Ethics
Remote Name: dyn070175.shef.ac.uk
Time: 15:47:10 +0100
The conceptualization and implementation of the precautionary principle (PP) has to take into account the trade dimension. Globalization and the consolidation of international trade rules, thanks to its binding dispute settlement mechanism, have put the trade system in the privileged position of being the only fully effective and enforceable international legal system.
The broad scope of trade system has reached the PP already, since it has undoubtedly influenced the evolutionary conceptualization of the PP. Evidence of this can be found in the EU where the PP has been strongly advocated. Examples are the EU guidelines on the application on the PP and recent community regulation (v.g. on food safety). In the field of biosafety, where the aim is to minimize the potential adverse effects on biological diversity and human health of genetically modified organisms (GMOs), the PP has a fundamental role. Furthermore, the PP is at the core of the Cartagena Protocol on Biosafety (CPB), the most advanced international agreement in this field to which the international community has given great support.
Important to note is that the implementation of the precautionary principle, even if part of the implementation of an international treaty, such as the CPB or any other MEA, does not operate in the vacuum. Trade considerations are essential in the international dimension of national decision-making, including the application of the PP. Taking the above into account, it is important to understand and learn how to use the trade rules to advance and defend the implementation of national policies. These rules evolve as new agreements are negotiated and according to interpretations and decisions over existing agreements. Thus the analysis must be permanent.
In relation to the PP, there are specially two agreements administered by the World Trade Organization (WTO) that is fundamental to analyze: the Sanitary and Phytosanitary Measures Agreement (SPS Agreement) and the General Agreement on Trade and Tariffs (GATT). The reason to include these two agreements is because they contain the main provisions regulating national measure taken to protect human health and the environment, which are by definition the two areas of concern of the PP.
There are many trade disputes that are relevant to the use of the PP. However, three of them are frequently quoted as fundamental: the cases on Hormones, Asbestos and Apples. There are many important aspects of these disputes to consider, but for the sake of the argument only some will be emphasized. First, it is important to note that basically the three disputes deal with human health. Second, the Hormones case limited the role and efficacy to use the when evaluating it in regard to the provisions of the SPS agreement. In this respect, precautionary measures were to be scientifically based, provisional and maintained only if additional information was sought and used to reviewed decisions. Third, the Asbestos case recognized more leeway for national governments to take certain measures to protect vital values, in that case human health. Fourth, the Apples case decided that the SPS Agreement only refers to uncertainty that can be reduced, therefore limiting the chance to distinguish between different sources of uncertainty.
Thus it has been said that the application of the PP, in relation to human health, despite some degree of national leeway to protect vital values, must be scientifically based, provisional and maintained only if additional information is sought and used to reviewed decisions. In addition, only uncertainty that can be reduced can be taken into account. These are strict and concrete aspects that the implementation of the PP must consider. However, the environmental and social aspects of the PP have not been evaluated fully under trade rules yet and this is crucial.
The rules regulating the protection of the environment are more flexible, do not emphasize the science-model, and do not impose the requirements of gap-filling and revision. Precisely, dealing with these issues, there is another trade dispute currently being studied in the WTO. This one specifically focuses on the role of the PP and the CPB. The dispute was brought by the US, Canada and Argentina against the EC’s 5 year de facto moratorium on biotech products. The outcome of the dispute will be fundamental in the area and should be taken into account for the guidelines we were invited to discuss here. The EC is arguing that it is the environmental provisions of the GATT against which its measures should be evaluated, while the claimants (the biggest biotech producers) argue it is the human health (food safety) provisions of the SPS Agreement the most relevant rules to be studied, with the implications suggested in the paragraphs above. This is important because the PP is the key to the EU argumentation and because the WTO has not, in any previous dispute, been asked to analyze the application of the PP under the environmental provisions of the WTO agreements (basically GATT).
Turning to a more explicit reference to the guidelines, these do not articulate clearly the trade dimension (only briefly grasped in this comment) and specially the limitations that this imposes. Thus guideline #10 and #11 relates only indirectly to the issues of proportionality and review. The issue (requirement) of temporality is not properly explained. They are only addressed insofar they appear to be inherent for an adaptive management tool and that is commendable. However, these issues should be more accurately addressed and referenced to the trade requirements if the guidelines are expected to be helpful for national governments in appreciating the wider implications of implementing the PP. They represent key points of reference for the application of the PP and at the same time they are the clearest points of tension with the trade system.
A last idea on the trade dimension should be a note regarding developing countries. As mentioned before, the use of the PP requires considerable technical and legal expertise, not only in biosafety but also in deciding how to integrate it with trade rules. The fact that most developing countries lack this expertise, on the one hand points out at the need to call for appropriate capacity building and technology transfer mechanisms and projects. Until significant expertise is gathered the possibilities to use the PP and successfully overcome a challenge under trade rules seems low. On the other hand, the integration of biosafety and trade involves a paradox for developing countries. While the environmental dimension of biosafety, and of the PP, is the strongest aspect to be used to defend against trade challenges, the position of developing countries in trade forums has been consistent in perceiving environmental efforts as mere green protectionism from the North.
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