The WTO Biotech Case, Revisited

TemasEtUnam

A few weeks back I discussed here the significance of the biotechnology dispute case at the World Trade Organization (WTO) for the nations of Latin America and the Caribbean (LAC). 

Well, the United Nations Food and Agriculture Organization (FAO) just released as part of its Legal Papers Online series an analysis of that case and its significance done by a former legal consultant to FAO who is now an Economic Affairs Officer at the WTO — in other words, well placed to offer some insights on the issue. 

Although the paper carries the usual disclaimer about being his own opinions and "do not necessarily reflect the views of the WTO," I think it is safe to presume that his views will not be greatly at odds with those of his current employer. 

The writing is, well, pretty much what you might expect of a legal review, but not quite as stilted and dense as most. However, the author does take quite awhile (as do most writing legal reviews) in setting up the background and "facts of the case," and not as long as I'd like in discussing the lessons and implications drawn.  Nonetheless, there are some useful tidbits, such as:

Although the precautionary principle thus finds some reflection in Article 5.7, the Appellate Body on several occasions noted that insufficient scientific evidence is not the same as scientific uncertainty. They should be regarded as two different concepts. It also noted that inconclusiveness of scientific evidence cannot, in itself, justify the application of Article 5.7 and that scientific uncertainty always exists.

and

…the Agreement does not require the importing country to carry out the risk assessment itself. It can use an assessment done by the exporting or another country or by an international organization, as long as it is appropriate. In particular in the case of food safety assessments (i.e. the bulk of GMO trade) it might be practical to rely on other assessments. If a GM product is known to have negative effects on human health, it makes little difference if the humans in question live in Vietnam, Switzerland or the US. The situation would be different in the case of risks to plant and animal health or the environment, since disease conditions, climate, geography, etc. would usually be different. Although seeking scientific evidence is ultimately the responsibility of the importing country, exporters could be requested in the national legislation of the importing country to submit all the relevant documentation in order for the importing country to be able to perform a proper risk assessment. In terms of cost, Annex C allows Members to impose fees for the procedures on imported products - as long as the fees are equitable in relation to fees charged on "like" domestic products and no higher than the actual cost of the service.

and

Countries have a sovereign right to set their appropriate level of protection (ALOP), i.e. decide to be more or less risk-averse. Where a risk assessment can only be based on scientific evidence and take into account a limited list of economic factors (in the case of animal and plant health), the process of deciding whether the identified risks are acceptable provides countries with a possibility to take other "socio-economic" considerations into account - as long as governments are open and avoid the acceptance of higher levels of risk in one case and lower levels in another if this is arbitrary and results in a disguised restriction to trade.

Worth checking if you follow biotech/biosafety policy.

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