The Cartagena protocol on biosafety

Journal of International Economic Law

Volumn 3, Issue 3, 2000, Pages 525-543

  Eggers, Barbara ^a   Mackenzie, Ruth ^b  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

^b Found Intl Environ Law and Devmt   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0034417573     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/3.3.525     Document Type: Article

References (129)

1. A more comprehensive overview is provided by C. Ford Runge and Lee Ann Jackson, 'Labelling, Trade and Genetically Modified Organisms: A Proposed Solution', 34(1) Journal of World Trade 111 (2000).
2. See, Economist, 'The Biosafety Protocol - A Conventional Argument' (27 January 2000).
3. GM Food Safety: Facts, Uncertainties, and Assessment, The OECD Edinburgh Conference on the Scientific and Health Aspects of Genetically Modified Foods, 28 February-1 March 2000, Chairman's Report, available at http://www.oecd.org/subject/biotech/chairmanreport.pdf, [hereinafter Chairman's Report].
4. John E. Losey, Linda S. Rayor, Maureen E. Carter, 'Transgenic Pollen Harms Monarch Larvae', Nature, vol 399 (20 May 1999), at 214, which was criticized by John E. Beringer, 'Cautionary Tale on Safety of GM Crops', Nature, vol 399 (3 June 1999), at 405.
5. John E. Losey, Linda S. Rayor, Maureen E. Carter, 'Transgenic Pollen Harms Monarch Larvae', Nature, vol 399 (20 May 1999), at 214, which was criticized by John E. Beringer, 'Cautionary Tale on Safety of GM Crops', Nature, vol 399 (3 June 1999), at 405.
6. See Chairman's Report, above n 3, para 9. Concerns over possible adverse impacts of GMOs tend to fall into at least six main categories:
7. potential impacts of GMOs on non-target species, such as beneficial insects;
8. the potential spread of GM crops as weeds;
9. potential for cross-pollination between GM crops and non-GM crops and wild plants (sometimes referred to as 'genetic pollution');
10. potential impacts on soil bacteria and the nitrogen cycle;
11. indirect effects on the environment - for example through changed agricultural practices, particularly herbicide and pesticide use; and
12. potential effects on human health, for example through consumption of food produced using genetically modified crops and their derivatives, or, more specifically, through the potential transfer of antibiotic resistance marker genes.
13. Choong Tet Sieu, ASIAWEEK (21 January 2000).
14. Council Directive 90/220 of 23 April 1990 on the deliberate release into the environment of genetically modified organisms, OJ No L 117/15. Regulation 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients, OJ No L 43/1. Council Regulation 1139/98 of 26 May 1998, OJ No L 159/4; Commission Regulation 50/2000 of 10 January 2000 on the labelling of foodstuffs and food ingredients containing additives and flavourings that have been genetically modified or have been produced from genetically modified organisms, OJ No L 6/15. See Sara Pardo Quintillán, 'Free Trade, Public Health Protection and Consumer Information in the European and WTO Context', 33(6) Journal of World Trade 147 (1999) at 180.
15. Judson O. Berkey 'The Regulation of Genetically Modified Foods', ASIL Insight (October 1999), available at http://www.asil.org/insigh37.htm (visited 25 October 1999).
16. See Economist, 'Sticky Labels' (1 May 1999).
17. Adopted Montreal, 29 January 2000, available at http://www.biodiv.org (entry into force on the ninetieth day after the deposit of the fiftieth ratification).
18. Adopted under the auspices of the United Nations, entered into force 29 December 1993, 31 ILM 818 (hereinafter referred to as Biodiversity Convention or CBD).
19. CPB, Article 1.
20. The Like-Minded Group included the G-77 and China, except Argentina, Chile, and Uruguay.
21. The Miami Group included the USA, Canada, Australia, Argentina, Chile, and Uruguay. The other negotiating groups were the Compromise Group (Norway, Switzerland, Mexico, South Korea, Japan, Singapore, and New Zealand), and the Central and Eastern European Group. For an overview of the negotiation of the Protocol, see Gareth W. Schweizer, 'The Negotiation of the Cartagena Protocol on Biosafety', 6 Envtl. Law 577 (2000); Robert Falkner, 'Regulating Biotech Trade: The Cartagena Protocol on Biosafety', 76 International Affairs 299 (2000); Peter Newell and Ruth Mackenzie, 'The 2000 Cartagena Protocol on Biosafety: Legal and Political Dimensions', Global Environmental Change (forthcoming 2000).
22. The Miami Group included the USA, Canada, Australia, Argentina, Chile, and Uruguay. The other negotiating groups were the Compromise Group (Norway, Switzerland, Mexico, South Korea, Japan, Singapore, and New Zealand), and the Central and Eastern European Group. For an overview of the negotiation of the Protocol, see Gareth W. Schweizer, 'The Negotiation of the Cartagena Protocol on Biosafety', 6 Envtl. Law 577 (2000); Robert Falkner, 'Regulating Biotech Trade: The Cartagena Protocol on Biosafety', 76 International Affairs 299 (2000); Peter Newell and Ruth Mackenzie, 'The 2000 Cartagena Protocol on Biosafety: Legal and Political Dimensions', Global Environmental Change (forthcoming 2000).
23. The Miami Group included the USA, Canada, Australia, Argentina, Chile, and Uruguay. The other negotiating groups were the Compromise Group (Norway, Switzerland, Mexico, South Korea, Japan, Singapore, and New Zealand), and the Central and Eastern European Group. For an overview of the negotiation of the Protocol, see Gareth W. Schweizer, 'The Negotiation of the Cartagena Protocol on Biosafety', 6 Envtl. Law 577 (2000); Robert Falkner, 'Regulating Biotech Trade: The Cartagena Protocol on Biosafety', 76 International Affairs 299 (2000); Peter Newell and Ruth Mackenzie, 'The 2000 Cartagena Protocol on Biosafety: Legal and Political Dimensions', Global Environmental Change (forthcoming 2000).
24. Within simplified procedures permitted by Article 13(1)(b) of the CPB.
25. CPB, Article 7(4).
26. CPB, Article 4.
27. CPB, Article 3(g).
28. CPB, Article 3 (h).
29. CPB, Article 3(i) and (j). This reflects, to some extent, the concept employed by the EC legislation in this area. See, Directive 90/220, Article 2 para 2 and Annex I A Part 1, above n 7.
30. The Biodiversity Convention does not define the term 'living modified organisms' but refers in Articles 8(g) and 19(3) to 'living modified organisms resulting from biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity'. This, read together with the definition of 'biotechnology' in Article 2 of the CBD does not in terms exclude organisms resulting from conventional breeding techniques.
31. Nonetheless, it may be that the definition of LMO used in the Protocol still leaves some room for disagreement on this point in the future.
32. CPB, Article 5.
33. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, done at Rotterdam, 10 September 1998, not yet in force, 38 ILM 1 (hereinafter referred to as Rotterdam Convention) and Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, entry into force 5 May 1992, 28 ILM 657 (hereinafter referred to as Basel Convention).
34. CPB, Article 8 read together with Annex I to the CPB.
35. CPB, Articles 9 and 10.
36. CPB, Article 10(3)(a-d).
37. CPB, Article 10(4).
38. CPB, Article 9(2)(c) and (3).
39. CPB, Article 13, e.g. only requiring notification at the moment of transboundary movement.
40. CPB, Article 14(1).
41. CPB, Articles 9(3), 13(1) and 14(1).
42. CPB, Article 7(1).
43. CPB, Article 6.
44. CPB, Article 7(2). These are subject to a separate procedure. See Article 11 and the discussion below.
45. According to Article 20 of the CPB, the Biosafety Clearing-House will operate as part of the Clearing-House mechanism that has already been established under Article 18 of the CBD. The modalities of its operation will be decided at the first meeting of the Parties to the Protocol.
46. CPB, Article 11(1) read together with Annex II.
47. CPB, Article 11(4).
48. CPB, Article 11(1) and (5).
49. CPB, Article 11(6). Although the Protocol is not explicit on this point, presumably this implies a decision within 270 days of the date of notification with requisite information for carrying out a risk assessment, in line with Article 10(3). It is not clear whether the additional time periods for decision-making provided for in Article 10 also apply for decisions on LMO-FFPs. 41 CPB, Article 10(1) read together with Article 15 and Annex III.
50. See, CPB, Annex III, principle 4.
51. Principle 15 of the Rio Declaration stipulates: 'Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation'.
52. CPB, Articles 10(6) and 11(8).
53. CPB, Article 12(2) and (3). It is noteworthy that Article 12 of the Protocol on Review of Decision does not apply to LMO-FFPs, as it is part of the Protocol's AIA procedure, see Article 7(1). 46 CPB, Article 16 and Annex III Nr 8(f).
54. CPB, Article 26.
55. CPB, Article 18(2a) and (2c). The Protocol also imposes documentation requirements for LMOs destined for contained-use facilities in the Party of import in Article 18(2b).
56. CPB, Article 18(2a).
57. CPB, Article 18(2a).
58. CPB, Article 34.
59. CBD, Article 27.
60. CPB, Article 34.
61. Philippe Sands, Ruth Mackenzie, and Yuval Shany (eds), Manual on International Courts and Tribunals (London, Edinburgh, Dublin: Butterworths 1999), at 319.
62. See generally, Edith Brown Weiss and Harold K. Jacobson (eds), Engaging Countries: Strengthening Compliance with International Accords (Cambridge, MA: MIT Press 1998).
63. Newell and Mackenzie, above n 14.
64. The Rotterdam Convention, according to Article 2(a) only applies to certain chemicals.
65. The Basel Convention, according to Annex III B3, in particular B3060 does not apply to wastes from agro-food industries or other organic wastes.
66. See for an overview, Terence P. Stewart and David S. Johanson, 'The SPS Agreement of the World Trade Organization and International Organizations: The Roles of the Codex Alimentarius Commission, the International Plant Protection Convention, and the International Office of Epizootics', 26 Syracuse J Int'l L & Com 27 (1998).
67. See, Report of the Twenty-Eighth Session of the Codex Committee on Food Labelling, Ottawa, Canada, 5-9 May 2000, ALINORM 01/22, Appendix III and Report of the First Session of the Codex Ad Hoc Intergovernmental Task Force on Foods derived from Biotechnology, Chiba 14-17 March 2000, ALINORM 01/34, available at http://www.fao.org/
68. Nathalie Bernasconi-Osterwalder, 'The Relationship Between the Biosafety Protocol and the Rules of the World Trade Organization' in Edith Brown Weiss and John H. Jackson (eds), Reconciling Environment and Trade (Transnational Publishers, forthcoming).
69. CPB, 9th-11th preambular paragraph.
70. Rotterdam Convention, 8th-10th preambular paragraph.
71. Agreement on Agriculture, Article 20. Decision of the General Council of 24 March 2000, reprinted in Inside U.S. Trade, vol 18, no 13 (31 March 2000). See Agricultural Trade Symposium, 9 Minn J Global Trade 1-119 (2000).
72. Agreement on Agriculture, Article 20. Decision of the General Council of 24 March 2000, reprinted in Inside U.S. Trade, vol 18, no 13 (31 March 2000). See Agricultural Trade Symposium, 9 Minn J Global Trade 1-119 (2000).
73. See, Inside U.S. Trade, vol 17, no 49 (10 December 1999), also the 'Communication of the Commission on the Precautionary Principle', 'COM (2000) 1, and the response of the US', reported in Inside U.S. Trade, vol 18, no 14 (7 April 2000).
74. See, Inside U.S. Trade, vol 17, no 49 (10 December 1999), also the 'Communication of the Commission on the Precautionary Principle', 'COM (2000) 1, and the response of the US', reported in Inside U.S. Trade, vol 18, no 14 (7 April 2000).
75. Agreement on the Application of Sanitary and Phytosanitary Measures.
76. Agreement on Technical Barriers to Trade.
77. SPS Agreement, Article 1 (2) and Annex A Nr 1. See Joost Pauwelyn, The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Disputes', 2 JIEL 641 (1999) at 644.
78. TBT Agreement, Article 1.3 and 1.5.
79. GATT 1994, Articles 111:4, XI, and XX.
80. SPS Agreement, Annex A, 1(a). See, 'Discussion Paper on Agricultural Biotechnology' Inside U.S. Trade (24 September 1999).
81. SPS Agreement, Annex A, 1 (b) covers only food-borne risks resulting from additives, contaminants, toxins, or disease-causing-organisms. 73 SPS Agreement, Annex A, 1, second sentence.
82. Pardo Quintillán, above n 7.
83. However, this does not imply that the Biosafety Protocol only relates to environmental risks, while food safety is exclusively covered by the SPS Agreement and Codex standards.
84. See, John Barceló, 'Product Standards to Protect the Local Environment - The GATT and the Uruguay Round Sanitary and Phytosanitary Agreement', 27 Cornell Int'l L J 755 (1994).
85. SPS Agreement Annex A Nr 3.
86. EC - Measures Affecting Meat and Meat Products (Hormones) ('EC - Hormones'), WT/DS26&48/AB/R, adopted 13 February 1998.
87. Australia - Measures Affecting the Importation of Salmon ('Australia - Salmon'), WT/DS18/AB/R, adopted 6 November 1998.
88. Japan - Measures Affecting Agricultural Products ('Japan - Varietals'), WT/DS76/AB/R, adopted 19 March 1999.
89. See for an excellent overview, Pauwelyn, above n 68. Since then, the Panel Report Australia - Measures Affecting Importation of Salmon, Recourse to Article 21.5 by Canada, (WT/DS18/RW), adopted 20 March 2000, has further clarified the risk assessment requirement.
90. Appellate Body Report, Japan - Varietals, above n 80, para 84.
91. Appellate Body Reports, EC - Hormones, above n 78, paras 186 and 194, and Japan - Varietals, above n 80, para 77.
92. Appellate Body Reports, EC - Hormones, above n 78, paras 186 and 194, and Japan - Varietals, above n 80, para 77.
93. See for the precise conditions Pauwelyn, above n 68, at 646 with further references.
94. Appellate Body Report, Australia - Salmon, above n 79, paras 129-30.
95. Ibid, para 125.
96. Appellate Body Report, Japan - Varietals, above n 80, para 80, brackets added.
97. Ibid, para 89.
98. Ibid, para 92.
99. Ibid, para 93.
100. See Vern Walker, 'Keeping the WTO from Becoming the "World Trans-science Organization": Scientific Uncertainty, Science Policy, and Fact finding in the Growth Hormones Dispute", 31 Cornell Int'l L J 251-320 (1998).
101. Appellate Body Report, EC - Hormones, above n 78, para 109.
102. Panel Report, Japan - Varietals, WT/DS76/R, above n 80, para 8.59.
103. Appellate Body Report, Japan - Varietals, above n 80, para 80.
104. See Pauwelyn, n 68 above, at 660.
105. The parallels and conceptual links between Articles 5.7 and 3.3 of the SPS Agreement would indicate that Article 5. 7 should be grouped together with the autonomous right to go beyond an international standard, as defined by the Appellate Body in EC - Hormones, above n 78, para 104.
106. Craig Thorn and Marinn Carlson, 'The Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Technical Barriers to Trade,' Law and Policy of International Business (2000).
107. EC - Measures Affecting Asbestos and Products Containing Asbestos, WT/DS135. Panel Report not issued at time of writing.
108. See Article 15 (1) of the CPB and compare with Articles 2.2, 5.1 and Annex A 4 of the SPS Agreement. Annex III to the CPB defines risk assessment in a similar way as Annex A 4 to the SPS Agreement.
109. CPB, Articles 10, and 15(1).
110. CPB, Article 16(2).
111. See Panel Report, Japan - Varietals, para 8.36, where the Panel cites the appreciation of the Japanese risk assessment by one of the scientific experts: 'These observations lead them to suspect all existing varieties and even more those of the future, in which, in their eyes, genetic engineering and biotechnology might well create even greater differences. This is not based on any scientific data.'
112. Article 11(4) does not explicitly require a risk assessment for such a decision. Article 11(4) merely requires that a Party's domestic regulatory framework is consistent with the objective of the Protocol. But compare Article 11(6).
113. Compare Articles 2(4), 11(4) and 26(1) of the CPB.
114. CPB, 10th and 11th preambular paragraph.
115. See Elisabetta Montaguti and Maurits Lugard: 'The GATT 1994 and other Annex 1A Agreements: Four Different Relationships?' 3 JIEL 473 (2000) in this issue.
116. Appellate Body Report Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico (WT/DS60/AB/R), adopted 25 November 1998, paras 65 and 66. Panel Reports, EC - Regime for the Importation Sale and Distribution of Bananas (WT/DS27/R/USA), adopted 25 September 1997, para 7. 161 and Indonesia - Certain Measures Affecting the Automobile Industry, WT/DS54, 55, 59 & 64/R, adopted 23 July 1998, para 14.99.
117. Appellate Body Report Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico (WT/DS60/AB/R), adopted 25 November 1998, paras 65 and 66. Panel Reports, EC -Regime for the Importation Sale and Distribution of Bananas (WT/DS27/R/USA), adopted 25 September 1997, para 7. 161 and Indonesia - Certain Measures Affecting the Automobile Industry, WT/DS54, 55, 59 & 64/R, adopted 23 July 1998, para 14.99.
118. Appellate Body Report Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico (WT/DS60/AB/R), adopted 25 November 1998, paras 65 and 66. Panel Reports, EC - Regime for the Importation Sale and Distribution of Bananas (WT/DS27/R/USA), adopted 25 September 1997, para 7. 161 and Indonesia - Certain Measures Affecting the Automobile Industry, WT/DS54, 55, 59 & 64/R, adopted 23 July 1998, para 14.99.
119. See, Economist, 'The Biosafety Protocol - A Conventional Argument' (27 January 2000).
120. Understanding on Rules and Procedures Governing the Settlement of Disputes.
121. DSU, Articles 1. 1 and 3. 2, sentence 1. The DSU covers all Annex 1 Agreements.
122. Appellate Body Report, US - Import Prohibition of Certain Shrimp and Shrimp Products (WT/DS58/AB/R), adopted 6 November 1998, para 130. In para 158 it made explicit reference to Article 31(3)c of the Vienna Convention.
123. Ibid, para 135.
124. Philippe Sands, 'Treaty, Custom and the Cross-fertilization of International Law', 1 Yale Human Rights and Development Law Journal (1998), at 85. See also, Panel Report, Korea - Measures Affecting Government Procurement, (WT/DS163/1), adopted 19 June 2000, para. 7.96.
125. Philippe Sands, 'Treaty, Custom and the Cross-fertilization of International Law', 1 Yale Human Rights and Development Law Journal (1998), at 85. See also, Panel Report, Korea - Measures Affecting Government Procurement, (WT/DS163/1), adopted 19 June 2000, para. 7.96.
126. See Article XIII of the IPPC providing that in case of disputes a committee of experts prepares a report under the IPPC, which might then 'also be submitted, upon its request, to the competent body of the international organization responsible for resolving trade disputes'.
127. As indicated above, the Protocol does not require a biosafety measure to be adopted 'provisionally' and leaves more leeway to the country as to when the measure needs to be reviewed. It clearly obliges the exporting country to provide scientific studies and to carry out the risk assessment. Appendix III of the Protocol also contains more specific definitions and guidelines on Risk Assessment than the SPS Agreement.
128. While the term international standard is defined by Annex A Nr 4 of the SPS Agreement so as to privilege only the standards adopted by Codex, the IPPC, and the OIE, 'relevant international organizations' in Article 5.7 are not legally defined under the SPS Agreement.
129. See Article 7(4) of the CPB that provides for a negative listing approach.