Define 'precautionary principle' to avoid clashes over biotechnology under World Trade rules
Need for common approach to assessing risk of biotech-derived products, authors say
Biotechnology-altered foods are the focus of a World Trade Organization ruling scheduled for release this month, a landmark event expected to have a major impact on trade in agricultural products, one of the largest sectors governed by the WTO.
The final report of the WTO Panel in European Communities - Measures Affecting the Approval and Marketing of Biotechnology Products - rules on a dispute founded on differing perceptions about what constitutes legitimate precaution when regulating biotechnology.
Should a country have the unfettered right to refuse trade in such products as genetically-modified grain or hormone-injected beef based on doubts about their safety? Or is such "precautionary" action trumped by World Trade Organization membership obligations?
In other words: when can a nation's interpretation and invocation of "the precautionary principle" be ruled trade protectionism in disguise? And which party should shoulder the burden of scientific proof when the safety of a product is disagreed?
These concerns are prompting a growing number of international trade clashes over the perceived safety of products derived from cutting edge biotechnology and other sciences. Most recently, Japan banned imports of US long-grain rice in August amid reports that traces of a genetically-modified variety had been found in American crops; European Union officials likewise imposed a temporary import ban pending more information. In earlier clashes, Zambia refused a US-AID offer of GM corn over concerns that acceptance would imperil the GM-free status of their exports to the EU. The collapse of the Doha Round means that more of these types of clashes are likely to end up in the WTO.
Averting such conflicts requires a better, common definition and understanding of the "precautionary principle," among other measures, according to the Japan-based Institute for Advanced Studies of the United Nations University. In a report, it calls for international agreement on common approaches to risk assessment and suggests the WTO dispute settlement system is not the "best way in which to resolve disputes in these important areas of policy making."
Prepared by Sabrina Shaw and Risa Schwartz, both professional alumnae of the WTO Secretariat in Geneva, the report warns that disputes over biotechnology products, founded in part on cultural differences, are creating a "trans-Atlantic divide." It highlights similarities and differences between agreements and organizations with respect to precaution - and the consequences of those differences.
According to Gary Sampson, Professor of International Economic Governance at UNU-IAS and author of the recent book, The WTO and Global Governance: "Precaution - not science - lies at the heart of much of the public concern about the regulation of biotechnology products. In the absence of scientific justification for trade restrictive measures, the WTO will increasingly find itself passing judgment on which regulations are 'legitimate' and which are 'unnecessary barriers to trade.' This will put the WTO increasingly between a rock and a hard place to say the least.
"The relative weight assigned to science and societal choice in the determination of standards - or how ''precautionary'' regulations should be - underpins much of the possible future disagreement over the legitimacy of standards relating to genetically modified products within the context of dispute settlement in the WTO," he adds.
"The seriousness of these disputes and the importance of the technology threaten great damage to international cooperation and law," says UNU-IAS Director A.H. Zakri. "More and more commentators are beginning to openly wonder whether the World Trade Organization will be able to survive the full effects of the European Commission -Biotechnology panel, for example."
"How a society chooses to manage the risks of biotechnology will be affected by such factors as confidence in the regulators, acceptance of new technologies, the need for the new benefits and general levels of awareness," says Dr. Zakri.
He notes that several international organizations, often pursuing different objectives, are rushing to regulate biotech, creating "a complex policy and regulatory environment."
The precautionary principle is a central element of several multilateral environmental agreements, a reflection of past instances of underestimated and unanticipated impacts of new technologies - perhaps most famously the industrial release of POPs, a family of organic pollutants subsequently shown to persist stubbornly in the environment - and the use for refrigeration of chemicals later found to destroy atmospheric ozone.
So far, however, the precautionary principle has not been adopted authoritatively beyond international environmental law.
The UNU-IAS report notes differences between Europe and North America are highly pronounced with respect to genetically modified organisms and labeling of GM products, with European concerns about the risks manifested in trade restrictions on biotech goods deemed "acceptable or even desirable in the United States."
Differing perceptions about appropriate levels of precaution for biotechnology was the underlying cause of the WTO dispute where the US and EU disagreed about the safety of beef produced from cattle injected with hormones to bolster their growth. This fundamental difference will drive the US and the EU to the WTO Dispute Settlement mechanism again. US industry has already started lobbying the US Government for a WTO challenge to the EU GM labeling and traceability requirements.
Other earlier disagreements have prevented foods such as unpasteurized European cheeses from entering US markets and past WTO decisions have established that the lack of "absolute certainly" with respect to science cannot be used to justify trade restrictions.
The UNU-IAS report says nations need to determine a common threshold of risk "or, at a minimum, a common practice of risk assessment".
"What is lacking is a uniform description of the precautionary principle in these agreements, leading some critics to argue that the principle is overused without a clear understanding of its meaning and consideration of its implementation," the paper says.
"The flexible definition of the precautionary principle may be its strength, but also one of its greatest weaknesses. Several WTO Members have noted in the Committee on Trade and Environment (CTE) that the difficulty of further integrating precaution in the WTO lies in the lack of an internationally-agreed definition of the precautionary principle."
Says Dr. Zakri: "A clearer understanding of the various uses of the precautionary principle or approach will contribute to a more cohesive and harmonious approach to the regulation of biotechnology at the international level and mitigate some of the damage that is threatened by the current state of affairs."
Says UN Under Secretary-General Hans van Ginkel, Rector of UNU: "There is an important need now to take stock, reassess basic positions, principles and areas of agreement about the precautionary approach before countries initiate a new wave of disputes about biotechnology and the precautionary approach.
"Such a discussion could not be more timely given the recent controversy about genetically-modified contamination of US rice exports, the suspension of the Doha round and the prospect of countries re-examining disputes and grievances in the wake of the upcoming WTO ruling."
United Nations University. September 2006.
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