Index

Expert Opinion: Biotechnology and the Multilateral Trading System

By Gustavo Alanís- Ortega

The multilateral trading system is in real danger. And negotiators, public officials and civil society from around the world seem to be disregarding this. They are letting inertia and legaloid meandering strip away the system from its usefulness and relevance.

The latest culprit? The overblown “biosecurity” menace put forward by the “immoral,” “vicious” and “greedy” biotechnology multinationals. The contention is that with their “reckless” flooding of international markets with diverse biotechnology products, they constitute the most refined form of “Frankenstein” science that, along with an open system of trade, will produce catastrophes of a global scale, from food security to biodiversity loss and social instability.

If this were really true, what should we do about it?

If the current strategy of several key players in this controversial debate sheds any light on this matter, the answer would be to introduce the “precautionary principle” into the exceptions provisions of the WTO. Should we do that? Let’s explore this question.

It is, of course, true that there is a long history of scientific “breakthroughs” that eventually reveal a sinister side. It could be that the biotechnology boom may prove to be more of a nuisance than a blessing. And of course, civil society has a duty to point this out and help exhaust every source of doubt, however minimal. And it is the purpose of public policy to develop and enforce regulation that offsets any undesired effects on society as a whole of any technological advances. Furthermore, if a transboundary, regional or global case appears, public policy must address this on the appropriate level.

A first step in addressing the potential “sinister” side of biotechnology on a global scale is the Convention on Biological Diversity’s (CBD) Cartagena Protocol on Biosafety, which includes the “precautionary approach” to decision-making regarding potential biosafety hazards, even if the relevant decision relates to trade. This is a remarkable and major triumph in the development of multilateral environmental agreements (MEAs).

The Cartagena Protocol could be a success story if it got enough support and scrutiny from civil society. Unfortunately, it is not getting the support it deserves. It would represent an unforgivable mistake on all sides if efforts like the Cartagena Protocol and other MEAs were not taken to their full potential. Nevertheless, more needs to be done; this is where the multilateral trading system comes into play. But what should be done?

It is essential to clarify the relationship between the multilateral trading system and multilateral environmental agreements, which use trade measures to be effective. This could mean that certain “approaches” or “principles” that countries agreed to on a specific environmental matter could be fully recognized, in one way or another, within the multilateral trading system. However, little has been advanced since the issue appeared in the Doha agenda. The excuse of “no negotiation until agriculture” has been used to sideline important issues relevant to all countries and, in many cases, these issues have gone directly to dispute settlement instead of the negotiating table.

While the Biotech dispute at the WTO did little to clarify the role of the precautionary principle or approach in the WTO, the possibility of such a clarification through future disputes cannot be ruled out. It is worrisome that this would occur without negotiations on the part of the WTO membership as a whole. The point is: there is a strong possibility for a major precedent to be set that could change the way trade is conducted, but in the absence debate and negotiations within potentially affected parties.

How crucial is this potential precedent? It is worth noting that no system based on nondiscrimination and equal treatment can function under the principle of “precaution.” If the multilateral trading system has any value for its Members, it is its reliance on non-discrimination. Any deviation from this principle should at least be the result of negotiations among the entire WTO membership, and not the result of a single case of dispute settlement.

On the other side, it is also a fact that environmental agreements cannot function without discrimination. That is why negotiation is so important, and hence the issue of clarifying the relationship between the WTO and MEAs. Unfortunately, after the initial thrust from organized civil society that helped put the environment on the negotiating agenda at WTO, follow-up has dwindled and what little remains of the efforts from civil society has gone instead to influence dispute settlement outcomes.

This shift in strategy from many civil society organizations has two awkward results for global environmental stewardship.

First, this shift in strategy tends to focus on the multilateral trading system as one of two extremes: either a “solution to all problems,” or an “entity of evil.” The first vision tries to induce substantive change into the system (such as the introduction of the precautionary principle). On the other hand, proponents of the second vision work to undermine the system. The result, in the best of cases, will be a dysfunctional and irrelevant multilateral trading system as well as an incompetent multilateral environmental system.

Second, this shift in strategy diverts attention away from MEAs by disregarding them as a matter of principle. MEAs are the best tool for global environmental stewardship that we have as of now. True, MEAs are perfectible; yet, the key contributions from civil society— effective participation and scrutiny—have practically disappeared.

There is no doubt that biotechnology—and its potential crimes and misdemeanors—is a major concern with respect to the need to safeguard both the environment and trade. However, biotechnology should not be an excuse to disregard environmental negotiations and eventual agreements. And it must not be a stumbling block towards a more fair and equitable negotiated multinational trading system. Furthermore, it should serve as a reminder for organized civil society that more involvement and scrutiny are necessary if we want a better system of environmental governance and a more accountable way of managing its relationships with the trading system.

Gustavo Alanís-Ortega is President of the Centro Mexicano de Derecho Ambiental (CEMDA) and teaches environmental law at the Universidad Iberoamericana in Mexico City.