ICTSD Outputs and Activities on Biotechnology, Trade and Sustainble Development

Biotechnology: Addressing Key Trade and Sustainability Issues

B.3 Cartagena Protocol on Biosafety

Q18 In case of conflict, would WTO rules override the Cartagena Protocol on Biosafety?

Although the differences between WTO and MEA (multilateral environmental agreement) dispute settlement procedures are recognised, and while the WTO is seen by many as far from the appropriate forum to rule on conflicts between environmental and trade rules, it is likely that such conflicts would indeed be brought before the WTO by the complainants. Decision BS-I/7 of the Conference of the Parties (COP) acting as the Meeting of the Parties (MOP) established procedures and mechanisms to promote compliance and to address cases of non-compliance under the Protocol, which could address disputes arising between parties to the Protocol. Nevertheless, nothing in the Protocol would impede the complainant from challenging the measure at issue at the WTO – if of course both parties are also Members of the WTO – where the dispute settlement system is binding and includes the possibility of retaliation. Moreover, given that none of main producers or exporters of LMOs, including the United States, Canada, Argentina, China and Australia, have ratified the Protocol, disputes are more likely to arise between parties and non-parties to the Protocol. In these cases, it is certain that the complainants would bring the measures alleged to violate WTO rules before the WTO.

In disputes between parties, the text of the Preamble of the Biosafety Protocol, which addresses the relationship of the Protocol with other international agreements, would be relevant. The terms of the Preamble, however, are rather ambiguous. First, the Preamble recognises that trade and environment agreements should be mutually supportive with a view to achieving sustainable development. Second, it emphasises that the Protocol should not be interpreted as implying a change in the rights and obligations of a party under any existing international agreements. Third, it clarifies that the preceding statements are not intended to subordinate the Protocol to other international agreements. The clauses, particularly the last two, “cancel each other out” in some opinions (Rivera-Torres, 2003). Others, however, believe they establish a “savings clause” that preserves parties’ rights and obligations under earlier agreements (Safrin, 2002).

The vagueness of the language responds to the controversy surrounding this issue in the negotiation of the Protocol. During negotiations, several countries, including the main exporters of GMOs assembled in the so-called Miami Group, insisted on a clear statement that the Protocol would not alter parties’ existing international rights and obligations. The position responded to concerns that the new rules might be used to undermine existing trade rules because, under the rules of customary international law, in case of conflict between two agreements relating to the same subject matter, the latter prevails. The “savings clause” requested was thus aimed at overcoming such a presumption. Other countries, however, including countries of the EU and several developing countries, considered that a “savings clause” would establish an inaccurate hierarchy, subordinating the Protocol to WTO rules. The compromise has been described as giving all sides what they wanted (Cosbey and Burgiel, 2000). It is unclear, however, how this compromise will play out in case of a dispute.

However, it should be noted that, in cases where a dispute is brought before the WTO (whether or not the countries concerned are all parties to the Protocol), the WTO dispute settlement system could only apply WTO law as it is contained in WTO agreements, and would thus resort to the trade rules (Dispute Settlement Understanding, at Articles 3.2 and 19.2). WTO rules, however, are not read in clinical isolation from public international law (WTO, 1996). Customary international law, recognised by the WTO dispute settlement system, requires that WTO agreements be considered as a part of the broader corpus of international law and principles, which would clearly include the Protocol. In the EC-Biotech case, however, the Panel noted it did not have an obligation to take the Biosafety Protocol into account since given that not all parties in the WTO dispute are also parties to the Cartagena Protocol and the CBD. Nevertheless, the panel noted that it certainly had the option of doing so, as had been done in previous dispute settlement cases. However, the panel did not feel that the provisions cited by the EU in its defence were relevant in this case.