Melbourne. Law School. Legal Studies Research ... 7, a three-member panel of the World Trade Organization (WTO) issued a confidential interim report on the ...
Melbourne Law School Legal Studies Research Paper No. 146
June 2006 Leaked WTO report on European ban of GMOs highlights important issues Tania Voon
This paper can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=906541.
Leaked WTO report on European ban of GMOs highlights important issues Tania Voon (The Lawyers Weekly 31 March 2006) On Feb. 7, a three-member panel of the World Trade Organization (WTO) issued a confidential interim report on the complaints of Canada, the U.S. and Argentina against the European Commission’s alleged moratorium on approving products containing genetically modified organisms (GMOs) (European Communities– Measures Affecting the Approval and Marketing of Biotech products, WT/DS292, 291, 293). This long-awaited decision raises a range of critical issues in relation to WTO members’ sovereignty in addressing health and environmental risks, the role of scientific evidence in domestic policymaking and potential conflicts between WTO law and other areas of public international law.
The interim report was provided only to the parties, to give them an opportunity to comment before the panel finalises it. However, details appear to have been leaked to the press, and on Feb. 28 the “Friends of the Earth” even made the full report available on their website.
This case forms part of a series of health-related WTO disputes involving Canada as a complainant, including its successful challenges to the EC’s import ban on meat treated with certain growth hormones and to Australia’s import ban on salmon from Canada. More recently, Canada lost a case against the EC regarding a French prohibition on manufacture, sale and import of asbestos fibres. In the present case, Canada challenged the EC’s general suspension from 1998 to 2003 of its approvals process for “biotech products” (food products of agricultural biotechnology containing or produced from GMOs, and GMOs intended for release into the environment), as well as delays in approving specific biotech products, and bans imposed by Austria, France, Greece and Italy on the import, sale or marketing of biotech products that had already been approved. According to Canada, the challenged measures violate various provisions of the WTO’s Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), Agreement on Technical Barriers to Trade (TBT Agreement), General Agreement on Tariffs and Trade 1994 (GATT 1994), and Agreement on Agriculture.
Panels don’t normally make major changes to substantive aspects of their reports at the interim review stage, which is what makes the leaked version of the interim report so interesting. In it, the panel determines that the EC violated article 8 of the SPS Agreement by imposing a de facto moratorium and in its treatment of the specific biotech products. It also finds EC violations of SPS Agreement articles 2.2 and 5.1 through the bans of the four member states. However, in relation to Canada’s other claims, the panel declines to rule or rules in favour of the EC. Moreover, as
regards the moratorium, the panel makes no recommendation to the WTO’s Dispute Settlement Body for the EC to take any action because the moratorium has ceased.
In the course of its analysis, the panel tackles certain unsettled questions going to the core of the relationship between WTO law and public international law. The panel rejects the EC’s request that it take into account the Cartagena Protocol on Biosafety in interpreting the WTO obligations at issue, noting that not all the parties to the dispute, let alone all WTO members, are party to the protocol.
The panel also concludes, as in the previous hormones dispute, that the status of the “precautionary principle” in international law is unresolved. Accordingly, these factors do not influence the panel’s reasoning pursuant to article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), which requires a treaty interpreter to take into account “any relevant rules of international law applicable in the relations between the parties”. Nevertheless, the panel suggests that international law, as well as official documents and guidelines of international organisations, may be relevant in identifying the “ordinary meaning” of a term under VCLT article 31(1). The panel was established in August 2003, and its estimate for providing the final report to the parties has gradually shifted from the end of March 2005 to the end of March 2006. Missing the six- to nine-month deadline set out in the WTO’s Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) is usual, but a lapse of more than two and a half years between establishment and issuance is rare. The reasons for the delay, according to the panel, include the parties’ request for additional time to prepare submissions, the large number and complexity of issues raised by the parties and the provision of substantial amounts of scientific and technical evidence from independent experts. No doubt adding to the time required are the highly controversial nature of GMOs and the fact that the parties include the world’s heavyweight traders.
Once the final panel report is issued to the parties, it will be around three more weeks before it is officially circulated among the WTO’s 149 members and released to the public. After that, the parties will have 20-60 days to appeal the report to the seven-member Appellate Body of the WTO. In the meantime, Canada may celebrate a limited success.
