A new hot spot in the trade-environment conflict

Environmental Policy and Law

Volumn 31, Issue 2, 2001, Pages 82-94

  Koester, Veit ^a  

^a National Forest and Nature Agency   (Denmark)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL IMPACT; INTERNATIONAL TRADE; SEED;

BIOSAFETY; LIVING MODIFIED ORGANISMS;

BIODIVERSITY;

GENETICALLY MODIFIED ORGANISM; INTERNATIONAL TRADE; PRECAUTIONARY PRINCIPLE; TRADE-ENVIRONMENT RELATIONS; WORLD TRADE ORGANIZATION;

EID: 0035305199     PISSN: 0378777X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (96)

1. The Convention entered into force 29 December 1993. At the beginning of 2001, the Convention had been ratified by around 175 States and the EC.
2. The Convention uses the notion of 'Living Modified Organism resulting from Biotechnology' (LMO) which is a wider notion than 'Genetically Modified Organisms' (GMO). This is mainly a result of opposition from the US, which did not wish to 'expose' GMOs because they, according to the US, did not differ from organisms modified by the means of traditional biotechnology. See also P. Sands (1995): Principles of International Environmental Law, Manchester University, p. 479, about the American statement on biotechnology in connection with Agenda 21 and the section in this article on 'The scope of the Protocol' on how the notion is formulated by the Biosafety Protocol.
3. Neither the CBD nor the Biosafety Protocol covers the transfer of LMOs to areas outside national jurisdiction, i.e. especially the high seas. Setting aside that transfers of this nature will hardly be relevant, it is therefore in this connection necessary to rely on the obligations of the Law of the Sea, i.e. to protect and preserve the marine environment (Art. 192) and to prevent, reduce or control pollution resulting from the introduction of alien or new species which may cause significant and harmful changes thereto (Art. 196). Other relevant provisions are found in the CBD, e.g. Art. 14(1c) on notification, exchange of information and consultation with regard to activities that may have major negative impacts on biodiversity in areas outside national jurisdiction.
4. Veit Koester (1997): The Biodiversity Convention Negotiation Process and some Comments on the Outcome, in Environmental Law-from International to National Law (ed. E. M. Basse), GAD JURA, Copenhagen, p. 222, and in Environmental Policy and Law (EPL), p. 181.
5. Veit Koester (1997): The Biodiversity Convention Negotiation Process and some Comments on the Outcome, in Environmental Law-from International to National Law (ed. E. M. Basse), GAD JURA, Copenhagen, p. 222, and in Environmental Policy and Law (EPL), p. 181.
6. The Protocol was opened for signature and signed by 67 countries at the CBD COP6 in Nairobi on 15 May 2000. It will enter into force 90 days after the fiftieth ratification. This means that the Protocol will probably not enter into force before 2002. As of 1 December 2000 the Protocol had been ratified by Bulgaria and Trinidad and Tobago and had been signed by 78 countries including the EC.
7. The title of the Protocol is wider than its content because the Protocol only contains a few provisions dealing with purely domestic affairs (see the section in this article on 'Risk assessment and risk management' on Art 16). The Protocol can be found at www.biodiv.org.
8. For a more complete account of the negotiation process, including the meeting in Cartagena, the informal consultations thereafter and the final meeting in Montreal in January 2000, see Francoise Burhenne-Guilmin: The Biosafety Protocol is adopted in Montreal, in EPL 2000 p. 46; On the Protocol, see also. Louise Gale (2000): Application of the Precautionary Principle to Biosafety, in IUCN Newsletter, January-April 2000, p. 7; Frances B. Smith (2000): The Biosafety Protocol: The Real Losers Are Developing Countries, National Legal Center for the Public Interest, Vol. 4, No. 3 (ed. James E. DeLong), p. 8; Robert Falkner (2000): Regulating biotech trade: The Cartagena Protocol on Biosafety, in International Affairs, Vol. 76, No. 2, p. 302; Barbara Eggers and Ruth Mackenzie (2000): The Caratagena Protocol on Biosafety, in Journal of International Economic Law p. 252 and Pamela S. Chasek (2001): Earth Negotiations: Analyzing Thirty Years of Environmental Diplomacy, United Nations University Press, p. 206. The two last mentioned references were published after the manuscript of the present article was finished.
9. For a more complete account of the negotiation process, including the meeting in Cartagena, the informal consultations thereafter and the final meeting in Montreal in January 2000, see Francoise Burhenne-Guilmin: The Biosafety Protocol is adopted in Montreal, in EPL 2000 p. 46; On the Protocol, see also. Louise Gale (2000): Application of the Precautionary Principle to Biosafety, in IUCN Newsletter, January-April 2000, p. 7; Frances B. Smith (2000): The Biosafety Protocol: The Real Losers Are Developing Countries, National Legal Center for the Public Interest, Vol. 4, No. 3 (ed. James E. DeLong), p. 8; Robert Falkner (2000): Regulating biotech trade: The Cartagena Protocol on Biosafety, in International Affairs, Vol. 76, No. 2, p. 302; Barbara Eggers and Ruth Mackenzie (2000): The Caratagena Protocol on Biosafety, in Journal of International Economic Law p. 252 and Pamela S. Chasek (2001): Earth Negotiations: Analyzing Thirty Years of Environmental Diplomacy, United Nations University Press, p. 206. The two last mentioned references were published after the manuscript of the present article was finished.
10. For a more complete account of the negotiation process, including the meeting in Cartagena, the informal consultations thereafter and the final meeting in Montreal in January 2000, see Francoise Burhenne-Guilmin: The Biosafety Protocol is adopted in Montreal, in EPL 2000 p. 46; On the Protocol, see also. Louise Gale (2000): Application of the Precautionary Principle to Biosafety, in IUCN Newsletter, January-April 2000, p. 7; Frances B. Smith (2000): The Biosafety Protocol: The Real Losers Are Developing Countries, National Legal Center for the Public Interest, Vol. 4, No. 3 (ed. James E. DeLong), p. 8; Robert Falkner (2000): Regulating biotech trade: The Cartagena Protocol on Biosafety, in International Affairs, Vol. 76, No. 2, p. 302; Barbara Eggers and Ruth Mackenzie (2000): The Caratagena Protocol on Biosafety, in Journal of International Economic Law p. 252 and Pamela S. Chasek (2001): Earth Negotiations: Analyzing Thirty Years of Environmental Diplomacy, United Nations University Press, p. 206. The two last mentioned references were published after the manuscript of the present article was finished.
11. For a more complete account of the negotiation process, including the meeting in Cartagena, the informal consultations thereafter and the final meeting in Montreal in January 2000, see Francoise Burhenne-Guilmin: The Biosafety Protocol is adopted in Montreal, in EPL 2000 p. 46; On the Protocol, see also. Louise Gale (2000): Application of the Precautionary Principle to Biosafety, in IUCN Newsletter, January-April 2000, p. 7; Frances B. Smith (2000): The Biosafety Protocol: The Real Losers Are Developing Countries, National Legal Center for the Public Interest, Vol. 4, No. 3 (ed. James E. DeLong), p. 8; Robert Falkner (2000): Regulating biotech trade: The Cartagena Protocol on Biosafety, in International Affairs, Vol. 76, No. 2, p. 302; Barbara Eggers and Ruth Mackenzie (2000): The Caratagena Protocol on Biosafety, in Journal of International Economic Law p. 252 and Pamela S. Chasek (2001): Earth Negotiations: Analyzing Thirty Years of Environmental Diplomacy, United Nations University Press, p. 206. The two last mentioned references were published after the manuscript of the present article was finished.
12. For a more complete account of the negotiation process, including the meeting in Cartagena, the informal consultations thereafter and the final meeting in Montreal in January 2000, see Francoise Burhenne-Guilmin: The Biosafety Protocol is adopted in Montreal, in EPL 2000 p. 46; On the Protocol, see also. Louise Gale (2000): Application of the Precautionary Principle to Biosafety, in IUCN Newsletter, January-April 2000, p. 7; Frances B. Smith (2000): The Biosafety Protocol: The Real Losers Are Developing Countries, National Legal Center for the Public Interest, Vol. 4, No. 3 (ed. James E. DeLong), p. 8; Robert Falkner (2000): Regulating biotech trade: The Cartagena Protocol on Biosafety, in International Affairs, Vol. 76, No. 2, p. 302; Barbara Eggers and Ruth Mackenzie (2000): The Caratagena Protocol on Biosafety, in Journal of International Economic Law p. 252 and Pamela S. Chasek (2001): Earth Negotiations: Analyzing Thirty Years of Environmental Diplomacy, United Nations University Press, p. 206. The two last mentioned references were published after the manuscript of the present article was finished.
13. For a more complete account of the negotiation process, including the meeting in Cartagena, the informal consultations thereafter and the final meeting in Montreal in January 2000, see Francoise Burhenne-Guilmin: The Biosafety Protocol is adopted in Montreal, in EPL 2000 p. 46; On the Protocol, see also. Louise Gale (2000): Application of the Precautionary Principle to Biosafety, in IUCN Newsletter, January-April 2000, p. 7; Frances B. Smith (2000): The Biosafety Protocol: The Real Losers Are Developing Countries, National Legal Center for the Public Interest, Vol. 4, No. 3 (ed. James E. DeLong), p. 8; Robert Falkner (2000): Regulating biotech trade: The Cartagena Protocol on Biosafety, in International Affairs, Vol. 76, No. 2, p. 302; Barbara Eggers and Ruth Mackenzie (2000): The Caratagena Protocol on Biosafety, in Journal of International Economic Law p. 252 and Pamela S. Chasek (2001): Earth Negotiations: Analyzing Thirty Years of Environmental Diplomacy, United Nations University Press, p. 206. The two last mentioned references were published after the manuscript of the present article was finished.
14. UNEP/Bio.Div/Panels/Inf.4 (1993). The Executive Director at that time was Dr. M. Tolba. It is probably not a coincidence that the Panel's report was never officially distributed, neither at the first COP of the CBD during autumn 1994, nor at the intergovernmental meeting in June 1994, which prepared the COP (Secretariat Paper on Art. 19(3), and UNEP/CBD/IC/12 of 29 April 1994, which does not mention the Panel Report), nor at the meeting of the Open-Ended Expert Group mentioned below. In the meantime UNEP, which was responsible for the Secretariat of the CBD, had a new Executive Director, Elizabeth Dowdeswell of Canada.
15. On the Cairo Panel, the Open-Ended Expert Group and the two COPs references are made to the documents UNEP/CBD/COP/2/7/; UNEP/CBD/COP/1/I/9 and UNEP/CBD/COP/2/Dec./II/5 as well as to Susanne Bragdon (1995): International Hazard Management Other than Nuclear, in Yearbook of International Environmental Law, Vol. 6, p. 275 as well as Birthe Ivars (1998): Observations related to a Biosafety Protocol under the Convention on Biological Diversity, in Trade and the Environment: Bridging the Gap (eds Cameron and Fijalkowsli), Cameron, p. 88. The COP reconsidered the Working Group at COP3 (November 1996). In its decision, UNEP/CBD/COP/3/III/20, COP3 authorized additional meetings of the Working Group and welcomed 'UNEP International Technical Guidelines for Safety in Biotechnology' which had been adopted in December 1995. At COP4 (in May 1998), after four meetings of the Working Group, it was decided to hold two further meetings of the Working Group. The last meeting in 1999 was followed by an Extraordinary COP with a view to adopting the Protocol (decision UNEP/CBD/ COP/4/IV/3).
16. On the Cairo Panel, the Open-Ended Expert Group and the two COPs references are made to the documents UNEP/CBD/COP/2/7/; UNEP/CBD/COP/1/I/9 and UNEP/CBD/COP/2/Dec./II/5 as well as to Susanne Bragdon (1995): International Hazard Management Other than Nuclear, in Yearbook of International Environmental Law, Vol. 6, p. 275 as well as Birthe Ivars (1998): Observations related to a Biosafety Protocol under the Convention on Biological Diversity, in Trade and the Environment: Bridging the Gap (eds Cameron and Fijalkowsli), Cameron, p. 88. The COP reconsidered the Working Group at COP3 (November 1996). In its decision, UNEP/CBD/COP/3/III/20, COP3 authorized additional meetings of the Working Group and welcomed 'UNEP International Technical Guidelines for Safety in Biotechnology' which had been adopted in December 1995. At COP4 (in May 1998), after four meetings of the Working Group, it was decided to hold two further meetings of the Working Group. The last meeting in 1999 was followed by an Extraordinary COP with a view to adopting the Protocol (decision UNEP/CBD/ COP/4/IV/3).
17. The full text can be found in EPL, 1999, p. 138.
18. UNEP/CBD/ExCop1/2 and UNEP/CBD/ExCOP/1/L.Rev.1 and EPL, 1999, p. 84.
19. UNEP/CBD/ExCop/1/INF/3. See also Francoise Burhenne-Guilmin: supra note 7, p. 46.
20. Important examples of instruments which are comparable to the Protocol are CITES 1973, the Montreal Protocol (1987) on Substances that deplete the Ozone Layer, the Basel Convention (1989) on the Control of Transboundary Movements of Harzadous Wastes and Their Disposal, the Rotterdam Convention (1998) on PIC-Procedure (prior informed consent procedure) for Certain Hazardous Chemicals and Pesticides in International Trade, as well as the Convention on Persistent Organic Pollutants (POPs), to be signed in Stockholm in May 2001. There are, however, more multilateral environmental agreements (MEAs), among them the Climate Change Framework Convention (1992), containing possibilities for utilizing trade-related measures. Seventeen MEAs appear in the compilation of relevant MEAs in O.K. Fauchald (1997): The World Trade Organization and Multilateral Environment Agreements, in Environmental Law - from International to National Law (ed. E. M. Basse), GAD JURA, Copenhagen, p. 116. With regard to the different types of trade regulatory instruments, see O.K. Fauchald, p. 74.
21. Important examples of instruments which are comparable to the Protocol are CITES 1973, the Montreal Protocol (1987) on Substances that deplete the Ozone Layer, the Basel Convention (1989) on the Control of Transboundary Movements of Harzadous Wastes and Their Disposal, the Rotterdam Convention (1998) on PIC-Procedure (prior informed consent procedure) for Certain Hazardous Chemicals and Pesticides in International Trade, as well as the Convention on Persistent Organic Pollutants (POPs), to be signed in Stockholm in May 2001. There are, however, more multilateral environmental agreements (MEAs), among them the Climate Change Framework Convention (1992), containing possibilities for utilizing trade-related measures. Seventeen MEAs appear in the compilation of relevant MEAs in O.K. Fauchald (1997): The World Trade Organization and Multilateral Environment Agreements, in Environmental Law - from International to National Law (ed. E. M. Basse), GAD JURA, Copenhagen, p. 116. With regard to the different types of trade regulatory instruments, see O.K. Fauchald, p. 74.
22. See Francoise Burhenne-Guilmin, supra note 7, p. 47 for a more detailed discussion of the scope of the Protocol, as well as Ruth Mackenzie (2000): Cartagena Protocol on Biosafety: Overview, in IUCN Newsletter, January-April 2000, p. 1, 4; and Robert Falkner, supra note 7, p. 306.
23. See Francoise Burhenne-Guilmin, supra note 7, p. 47 for a more detailed discussion of the scope of the Protocol, as well as Ruth Mackenzie (2000): Cartagena Protocol on Biosafety: Overview, in IUCN Newsletter, January-April 2000, p. 1, 4; and Robert Falkner, supra note 7, p. 306.
24. The definitions are in line with the content of the notion of GMO in Art. 3 in the Lugano Convention (1993) on Civil Liability for Damage Resulting from Activities Dangerous to the Environment which, for other reasons, in spite of the fact that only three ratifications are needed, has not yet entered into force. For references to this Convention and on liability and redress for damage resulting from GMOs, see the European Commission White Paper on Environmental Liability (COM (2000) 66 final) of 9 February 2000, sections 4.2 and 5.1, as well Alfonso Ascencio (1997): The Transboundary Movement of Living Modified Organisms: Issues Relating to Liability and Compensation, in RECIEL, Vol.6, p. 293, and Gurdial Singh Nijar (2000): Developing a Liability and Redress Regime under the Cartagena Protocol on Biosafety (eds K. Dawkins and N. Sommsen), Institute for Agriculture and Trade Policy, USA. Because of EC competence in the area covered by the Protocol and because several of the provisions of the Protocol either differ from the present EC legislation or do not appear in the legislation, EC legislation will have to be amended, perhaps by means of a regulation, and subsequently adopted into national legislation, before the EC and its Member States will be able to adhere to the Protocol.
25. The definitions are in line with the content of the notion of GMO in Art. 3 in the Lugano Convention (1993) on Civil Liability for Damage Resulting from Activities Dangerous to the Environment which, for other reasons, in spite of the fact that only three ratifications are needed, has not yet entered into force. For references to this Convention and on liability and redress for damage resulting from GMOs, see the European Commission White Paper on Environmental Liability (COM (2000) 66 final) of 9 February 2000, sections 4.2 and 5.1, as well Alfonso Ascencio (1997): The Transboundary Movement of Living Modified Organisms: Issues Relating to Liability and Compensation, in RECIEL, Vol.6, p. 293, and Gurdial Singh Nijar (2000): Developing a Liability and Redress Regime under the Cartagena Protocol on Biosafety (eds K. Dawkins and N. Sommsen), Institute for Agriculture and Trade Policy, USA. Because of EC competence in the area covered by the Protocol and because several of the provisions of the Protocol either differ from the present EC legislation or do not appear in the legislation, EC legislation will have to be amended, perhaps by means of a regulation, and subsequently adopted into national legislation, before the EC and its Member States will be able to adhere to the Protocol.
26. During the negotiations, several countries insisted on a prohibition of trade with non-Parties, more or less in accordance with the principle of the Montreal Protocol (supra note 13). Such a provision would especially have affected the US, which is one of the very few big countries to be a non-Party to the CBD, and therefore - at least for the time being - cannot become a Party to the Protocol. On the other hand the 'Miami Group' advocated for the weaker provision, that trade with non-Parties should be 'compatible with' instead of what became the final result, 'consistent with' the objectives of the Protocol.
27. Veit Koester (1999): Aarhus konventionen om 'borgerlige rettigheder' på miljøområdet (The Aarhus Convention on 'civil rights' with regard to environmental matters), in Juristen (The Lawyer) Copenhagen, p. 88.
28. Whether this notion includes human health considerations going beyond the effect on human health of adverse impacts on biological diversity is open to interpretation.
29. E.g. S. Charnovitz (1997): The World Trade Organization and the Environment, in Yearbook of International Environmental Law, Vol. 8, p. 105, on the reactions in environmental circles to the first decision in the Tuna/Dolphin Dispute in 1991 which is referred to below.
30. Supra note 13.
31. Under Art. XVI(1) in WTA (Marrakech Agreement Establishing the World Trade Organization) the WTO shall be guided by former decisions and practices. Decisions of the WTO dispute settlement mechanism are made on a case by case basis, and thus are not binding outside the framework of the concrete dispute, re K. P. Ewing and R. G. Tarasofsky (1997): The 'Trade and Environment' Agenda, IUCN, p. 7.
32. Re. J. P. Trachtman (1999): The Domain of WTO Dispute Resolution, in Harvard International Law Journal, Vol. 40, p. 368 about 'the relative infrequency, indeed the speculative nature of possible conflict between MEA obligations and WTO Law'.
33. OECD (1999): Trade Measures in Multilateral Environmental Agreements, p. 192, according to which 'clear political reasons explaining that situation, including the undesirability of calling into question a multilateral treaty signed by many national Governments'.
34. S. Charnovitz, supra note 19, p. 106. and D. Hunter, J. Salzman and D. Zaelke (1998): International Environmental Law and Policy, Foundation Press, p. 1216. See also WTO's website (pr. 16/4 1997) at http://www.wto.org/wto/environ/backgrou.htm.
35. S. Charnovitz, supra note 19, p. 106. and D. Hunter, J. Salzman and D. Zaelke (1998): International Environmental Law and Policy, Foundation Press, p. 1216. See also WTO's website (pr. 16/4 1997) at http://www.wto.org/wto/environ/backgrou.htm.
36. S. Charnovitz, supra note 19, p. 106. and D. Hunter, J. Salzman and D. Zaelke (1998): International Environmental Law and Policy, Foundation Press, p. 1216. See also WTO's website (pr. 16/4 1997) at http://www.wto.org/wto/environ/backgrou.htm.
37. According to OECD, supra note 23, p. 197, the difficulties are centred around the elaboration of provisions which 'precisely qualify the conditions under which trade provisions in MEAs and the multilateral trading system can comfortably coexist'. An effort in this direction is found in O.K. Fauchald, supra note 13, p. 83.
38. E.g. D. Hunter et al., supra note 24, pp. 1167, highlighting the arguments for and against.
39. E.g. D. Hunter et al., supra note 24, pp. 1124 and O.K. Fauchald, supra note 13, p. 77, both advocate such agreements, as well as OECD, supra note 23, p. 1198. It is more important that the WTO system itself, and has both directly and indirectly recommended such environmental agreements. See OECD, p. 192 and J.P. Trachtman, supra note 22, p. 363 and p. 367 about the recommendation from the Appellate Body of WTO in the Shrimp/Turtle Dispute (J.P. Trachtman, p. 359) on environmental measures which are not unilateral as well as the support from the WTO Committee on Trade and Environment (CTE) on multilateral solutions and co-operation with regard to transboundary environmental problems.
40. E.g. M. Lennard (1996): The World Trade Organization and Disputes Involving Multilateral Environment Agreements, in European Environmental Law Review, p. 314 as well as K. P. Ewing and R.G. Tarasofsky, supra note 21, p. 13.
41. J.P. Trachtman, supra note 22, p. 342
42. D. Hunter et al., supra note 24, p. 1212.
43. A provision in the Draft Negotiating Text of the Biosafety Protocol on its application with a view of avoiding unjustifiable discrimination between foreign and domestic products was deleted at the last negotiation meeting as part of the solution of the issue of the relationship between the Protocol and other international agreements (see the section below on 'The Biosafety Protocol and WTO').
44. D. Hunter et al., supra note 24, p. 1182; OECD, supra note 23, p. 193; and, especially with regard to 'like products', M. Lennard, supra note 28, p. 312.
45. With regard to the Tuna/Dolphin Dispute, K. P. Ewing and R. G. Tarasofsky, supra note 21, p. 9; J. P. Trachtman, supra note 22, p. 356; S. Charnovitz, supra note 19, p. 105; and D. Hunter et al., supra note 24, p. 1184; and about the Shrimp/ Turtle Dispute, J.P. Trachtman, p. 356 and James Cameron (1998): Dispute Settlement and Conflicting Trade and Environment Regimes, in Trade and Environment: Bridging the Gap (eds. A. Fijalkowsky and J. Cameron), Cameron, pp. 19, 21.
46. With regard to the Tuna/Dolphin Dispute, K. P. Ewing and R. G. Tarasofsky, supra note 21, p. 9; J. P. Trachtman, supra note 22, p. 356; S. Charnovitz, supra note 19, p. 105; and D. Hunter et al., supra note 24, p. 1184; and about the Shrimp/ Turtle Dispute, J.P. Trachtman, p. 356 and James Cameron (1998): Dispute Settlement and Conflicting Trade and Environment Regimes, in Trade and Environment: Bridging the Gap (eds. A. Fijalkowsky and J. Cameron), Cameron, pp. 19, 21.
47. D. R. Downes (1999): Integrating Implementation of the Convention of Biological Diversity and the Rules of the World Trade Organization, IUCN, p. 11, and OECD, supra note 23, p. 89 about the Montreal Protocol supra note 13). According to D. R. Downes it is, because of the definition of the SPS Agreement of the measures it concerns, more likely that the TBT Agreement will be relevant with regard to the Protocol, in spite of the fact that the objective of the SPS Agreement corresponds with the objective of the Biosafety Protocol. This might be true. However, the Interim Commission for Phytosanitary Measures under the International Plant Protection Convention is a standard setting body vis-à-vis the SPS Agreement So, the role of SPS vis-à-vis the Protocol will to a large degree depend on the division of competence between the Protocol and the IPPC. See A. Cosbey and Stas Burgiel (2000): The Cartagena Protocol on Biosafety: An Analysis of Results (International Institute for Sustainable Development Briefing Note), for an analysis of the relationship between WTO rules and the Biosafety Protocol on the SPS Agreement.
48. D. R. Downes (1999): Integrating Implementation of the Convention of Biological Diversity and the Rules of the World Trade Organization, IUCN, p. 11, and OECD, supra note 23, p. 89 about the Montreal Protocol supra note 13). According to D. R. Downes it is, because of the definition of the SPS Agreement of the measures it concerns, more likely that the TBT Agreement will be relevant with regard to the Protocol, in spite of the fact that the objective of the SPS Agreement corresponds with the objective of the Biosafety Protocol. This might be true. However, the Interim Commission for Phytosanitary Measures under the International Plant Protection Convention is a standard setting body vis-à-vis the SPS Agreement So, the role of SPS vis-à-vis the Protocol will to a large degree depend on the division of competence between the Protocol and the IPPC. See A. Cosbey and Stas Burgiel (2000): The Cartagena Protocol on Biosafety: An Analysis of Results (International Institute for Sustainable Development Briefing Note), for an analysis of the relationship between WTO rules and the Biosafety Protocol on the SPS Agreement.
49. The TBT Agreement also contains (in the format of preambular provisions) exemptions of a similar character. Furthermore, Art 2(2.2) of the Agreement acknowledges that legitimate objectives of rules and standards of a technical nature include considerations corresponding to Art. XX in GATT 1994. Art. 2(2) in the SPS Agreement contains an obligation for member countries to ensure that any sanitary or phytosanitary measure being applied to the extent necessary to protect human, animal or plant life or health 'is based on scientific principles [and] sufficient scientific evidence'.
50. On the problems connected with the application of this provision of the Vienna Convention, see M. Lennard, supra note 28, p. 308, whose conclusion is that there is 'ultimately no rule giving a clear precedence to either MEAs or the GATT even where the Vienna Convention applies as a treaty, much less where the issue remains one of customary law'. S. Suikkari (1996): The GATT/WTO System and Trade Provisions in Multilateral Environmental Treaties, in The Effectiveness of Environmental Agreements, Tema Nord (1996: 513), p. 108, has the interesting viewpoint that agreements 'made in the global public interest, so-called erga omnes agreements, seem to have priority over other agreements'.
51. On the problems connected with the application of this provision of the Vienna Convention, see M. Lennard, supra note 28, p. 308, whose conclusion is that there is 'ultimately no rule giving a clear precedence to either MEAs or the GATT even where the Vienna Convention applies as a treaty, much less where the issue remains one of customary law'. S. Suikkari (1996): The GATT/WTO System and Trade Provisions in Multilateral Environmental Treaties, in The Effectiveness of Environmental Agreements, Tema Nord (1996: 513), p. 108, has the interesting viewpoint that agreements 'made in the global public interest, so-called erga omnes agreements, seem to have priority over other agreements'.
52. J.P. Trachtman, supra note 22, p. 359.
53. J.P. Trachtman, supra note 22, pp. 364, 367.
54. J.P. Trachtman, supra note 22, p. 343.
55. M. Lennard, supra note 28, p. 308.
56. OECD, supra note 23, p. 159.
57. International Public Law does not include a general rule about which dispute settlement mechanism should be applied in order to resolve the dispute if the dispute concerns several international agreements, each of them having their own dispute settlement mechanism; see J. Cameron, supra note 33, p. 17.
58. J. Cameron, supra note 33, p. 18 (at note 44).
59. J.P. Trachtman, supra note 22, p. 366 and OECD, supra note 23, p. 193.
60. J. Cameron, supra note 33, p. 19. O.K. Fauchald, supra note 13, p. 75 is of the opinion that the risk of a country giving in to this temptation is not totally unrealistic. See also the section on 'The provisions adopted'.
61. D. R. Downes, supra note 34, p. 29, noting with regard to a Protocol on biosafety that '[R]egardless of where the Protocol includes a savings clause, another mechanism for reconciliation is to recognize the Protocol as an international standard which is presumed to be consistent with trade principles', and that 'particularly if a large percentage of the Parties to the CBD become Parties to the Protocol, the measures included, as a ratification of the consensus of a large and diverse segment of the international community, should be likely to obtain a differential review at the WTO'.
62. Re the table in OECD, supra note 23, p. 202.
63. One of the exemptions concerns the US not being Party to the Basel Convention (supra note 13). See also OECD, supra note 23, p. 127.
64. E.g. the Rotterdam Convention, supra note 13.
65. The tradition has existed for such a long time that it might be relevant to raise the question of whether it would be correct to rely on Art. 9 of the Vienna Convention (setting out that international agreements are to be adopted with a two-thirds majority) in a situation where no rule on how to adopt the result of the negotiation process exists and where it has not been possible to achieve a consensus in this respect This observation applies irrespectively of whether Art 9 of the Vienna Convention is considered to be international customary law, thereby is also applicable for countries which are not Parties to the Vienna Convention. Francoise Burhenne-Guilmin is the author of this observation. See also Patrick Széll (1996): Decision-Making under Multilateral Environmental Agreements, in Environmental Policy and Law, Vol. 26, No. 5, p. 211.
66. In the final round of the negotiations of the Biosafety Protocol more than 130 States participated.
67. D.H. Hunter et al., supra note 24, p. 1207.
68. The first mentioned clause had the following content: 'The provisions of this Protocol shall not affect the rights and obligations of any Party to the Protocol deriving from any existing international agreement to which it is also a Party except where the exercise of those rights and obligations would cause serious damage or threat to biological diversity', similar to Art. 22(1) in the CBD.
69. The solution which was chosen is with regard to the first consideration fully in line with the solution adopted with regard to the Rotterdam Convention (supra note 13). The second consideration is at the same time both stronger and weaker than the preambular provision of the Rotterdam Convention, which corresponds with the consideration of the Biosafety Protocol. It is stronger because the Protocol uses the wording 'a change' while the Rotterdam Convention refers to 'in any way a change', and weaker because the Protocol refers to 'any existing international agreements' while the Rotterdam Convention only refers to 'any existing international agreement applying to chemicals in international trade and to environmental protection'. With regard to the third consideration the difference between the wording of the Protocol 'subordinate... to other' and the wording of the Convention 'create a hierarchy between this... and other' is probably only semantic. The Convention on POPs (supra note 13) only contains one preambular paragraph on the issue of trade and environment namely: 'Recognizing that this Convention and other agreements in the field of trade and the environment are mutually supportive' - the 'should' in the Biosafety Protocol has been replaced by 'are', i.e. a statement of fact.
70. About 'mutually supportive' see OECD, supra note 23, p. 192, translating the idea into 'due respect must be afforded to both'.
71. P. Sands, supra note 2, p. 118.
72. M. Lennard, supra note 28, p. 314 utilizes the notion of a 'co-habitation clause' as an 'ideal clause' in order to resolve conflicts between GATT 1994 and MEAs. In the Note for the attention of the 113 Committee of 13 June 2000 (MD 248/00), the European Commission observes that the effect of neutralizing the second consideration is that it 'is now assumed that interpreters should normally fall back on the 'later in time' rule in Art. 30(3) of the Vienna Convention, allowing the Protocol to have full legal effect'. Depending to a certain degree on what the Commission understands by 'normally', the conclusion of the Commission seems to be (at least at a first glance) too wide. Inter alia the conclusion seems to overlook the importance of the first consideration. Frances B. Smith, supra note 7, concludes (at p. 22) 'that the three statements taken as a whole are open to the inference that the ... Protocol should take precedence in the future'. This conclusion is based on the argument that the absence in the first clause of a phrase such as 'and facilitating trade... seem to point to the precedence of the biodiversity goal over the trade goal'. However, this interpretation seems to overlook the fact that the notion of 'sustainable development', although nobody knows definitively what it should mean, includes economic, i.e. trade, considerations, as well as environmental considerations.
73. Art 3(2) in 'Understanding on Rules and Procedures Governing the Settlement of Dispute'. The provisions of the mandate of the dispute settlement mechanism are not in themselves modified because of the preamble of the Biosafety Protocol.
74. In J.P. Trachtman, supra note 22, p. 364, the conclusion of the examination of the Shrimp/Turtle Dispute, referred to above is that '...the Appellate Body has retained jurisdiction to address [the relationships between international environmental law and international trade law] and has articulated a standard, balancing test that gives the Appellate Body itself wide flexibility in responding to these problems'.
75. The question of which of the provisions and agreements mentioned might be most relevant in a dispute will not be pursued further in this article.
76. On provisions in the SPS Agreements and GATT 1999 on permissible socioeconomic considerations that might be relevant with regard to the Biosafety Protocol, see the analysis Relationship of the Biosafety Protocol with WTO Agreements prepared by the Australian Department of Foreign Affaires and Trade, with the assistance of advice from the Australian Government Solicitor. The analysis was published by the BioSafety Working Group, Policy and Science Updates #40 Part 1 and 2, November 20, 2000 (see genetics@acfonline.org.au), i.e. after the present article was finished. However, many of the conclusions and observations in this article correspond with those in the Australian paper.
77. E.g. Rio Principle 15: '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'.
78. Overviews of MEAs incorporating the PP and discussions of the content, implications and status of the principle in public international law are found in P. Sands, supra note 2, p. 208; D. Hunter et. al., supra note 24, p. 360; O. McIntyre and T. Mosedale (1997): The Precautionary Principle as a Norm of Customary International Law, in Journal of Environmental Law, p. 221; C. W. Backes and J. M. Verschuren (1998): The Precautionary Principle in International, European and Dutch Wildlife Law, in Colorado Journal of International Environmental. Law and Policy, Vol. 9, No. 1, p. 43; and in P. Martin-Bidou (1999): Le Principe de Précaution en Droit International Public, in Revue Général dû Droit International Public, p. 631; as well as in the Annex to the European Commission Communication on the Precautionary Principle of 2 February 2000 (COM 2000 1 final). To this can now be added the reflection on the precautionary principle in the Convention on POPs (supra note 13) where the PP is referred to in the preambular paragraph: 'that precaution underlies the concerns of all Parties to this Convention and is embedded within it' (i.e. neither as a principle nor as an approach, corresponding to the reference to the PP in Annex C, Part II A(2) as 'consideration of precaution') as well as to the objective of the Convention with its reference to the 'precautionary approach as set forth in Principle 15 of the Rio Declaration...'.
79. Overviews of MEAs incorporating the PP and discussions of the content, implications and status of the principle in public international law are found in P. Sands, supra note 2, p. 208; D. Hunter et. al., supra note 24, p. 360; O. McIntyre and T. Mosedale (1997): The Precautionary Principle as a Norm of Customary International Law, in Journal of Environmental Law, p. 221; C. W. Backes and J. M. Verschuren (1998): The Precautionary Principle in International, European and Dutch Wildlife Law, in Colorado Journal of International Environmental. Law and Policy, Vol. 9, No. 1, p. 43; and in P. Martin-Bidou (1999): Le Principe de Précaution en Droit International Public, in Revue Général dû Droit International Public, p. 631; as well as in the Annex to the European Commission Communication on the Precautionary Principle of 2 February 2000 (COM 2000 1 final). To this can now be added the reflection on the precautionary principle in the Convention on POPs (supra note 13) where the PP is referred to in the preambular paragraph: 'that precaution underlies the concerns of all Parties to this Convention and is embedded within it' (i.e. neither as a principle nor as an approach, corresponding to the reference to the PP in Annex C, Part II A(2) as 'consideration of precaution') as well as to the objective of the Convention with its reference to the 'precautionary approach as set forth in Principle 15 of the Rio Declaration...'.
80. Overviews of MEAs incorporating the PP and discussions of the content, implications and status of the principle in public international law are found in P. Sands, supra note 2, p. 208; D. Hunter et. al., supra note 24, p. 360; O. McIntyre and T. Mosedale (1997): The Precautionary Principle as a Norm of Customary International Law, in Journal of Environmental Law, p. 221; C. W. Backes and J. M. Verschuren (1998): The Precautionary Principle in International, European and Dutch Wildlife Law, in Colorado Journal of International Environmental. Law and Policy, Vol. 9, No. 1, p. 43; and in P. Martin-Bidou (1999): Le Principe de Précaution en Droit International Public, in Revue Général dû Droit International Public, p. 631; as well as in the Annex to the European Commission Communication on the Precautionary Principle of 2 February 2000 (COM 2000 1 final). To this can now be added the reflection on the precautionary principle in the Convention on POPs (supra note 13) where the PP is referred to in the preambular paragraph: 'that precaution underlies the concerns of all Parties to this Convention and is embedded within it' (i.e. neither as a principle nor as an approach, corresponding to the reference to the PP in Annex C, Part II A(2) as 'consideration of precaution') as well as to the objective of the Convention with its reference to the 'precautionary approach as set forth in Principle 15 of the Rio Declaration...'.
81. Overviews of MEAs incorporating the PP and discussions of the content, implications and status of the principle in public international law are found in P. Sands, supra note 2, p. 208; D. Hunter et. al., supra note 24, p. 360; O. McIntyre and T. Mosedale (1997): The Precautionary Principle as a Norm of Customary International Law, in Journal of Environmental Law, p. 221; C. W. Backes and J. M. Verschuren (1998): The Precautionary Principle in International, European and Dutch Wildlife Law, in Colorado Journal of International Environmental. Law and Policy, Vol. 9, No. 1, p. 43; and in P. Martin-Bidou (1999): Le Principe de Précaution en Droit International Public, in Revue Général dû Droit International Public, p. 631; as well as in the Annex to the European Commission Communication on the Precautionary Principle of 2 February 2000 (COM 2000 1 final). To this can now be added the reflection on the precautionary principle in the Convention on POPs (supra note 13) where the PP is referred to in the preambular paragraph: 'that precaution underlies the concerns of all Parties to this Convention and is embedded within it' (i.e. neither as a principle nor as an approach, corresponding to the reference to the PP in Annex C, Part II A(2) as 'consideration of precaution') as well as to the objective of the Convention with its reference to the 'precautionary approach as set forth in Principle 15 of the Rio Declaration...'.
82. Jurisprudence, especially of the Permanent International Court of Justice in the Dispute on the French Nuclear Tests in the Pacific and in the Danube Dams Dispute (see also in this regard EPL 1998, p. 12) is examined in O. McIntyre and T. Mosedale, supra note 63, p. 231. With regard to the Appellate Body's decision in the Hormone Beef Dispute, see the section on 'WTO, the precautionary principle, and the Protocol'.
83. P. Sands, supra note 2, p. 212 is doubtful about whether a PP based on a reversed burden of proof, i.e. that the State wishing to carry out a certain activity either has to prove that the activity will not result in serious damage or has to take preventive action if there is a possibility of causing serious damage, can be regarded as 'a rule of general application'. However at the same time, he concludes with regard to the PP that there is 'a good argument to be made that it reflects a principle of customary law'. O. McIntyre and T. Mosedale, supra note 63, p. 235 observe that it 'would appear to conclusively endorse the principle status as a norm of customary international law'. The Commission Communication, supra note 63, section 4(26), refers to the PP as a 'full-fledged and general principle of international law' (The Commission has almost bitten off more that it can chew, quite natural perhaps in the light of the Hormone Beef Dispute!) About the Commission Communication, see also Frances B. Smith, supra note 7, p. 23. C. Backes and J.M. Verschuren, supra note 63, p. 57, conclude that the principle 'seems to have gradually evolved into a legal norm', which corresponds more or less to operative paragraph 3 in the European Council Resolution (Nice, 7-9 December 2000): '...notes that the precautionary principle is gradually asserting itself as a principle of international law in the fields of environmental and health protection'.
84. P. Martin-Bidou, supra note 63, p. 664 refers to inter alia the lack of precision and clarity with regard to the extent of the obligations as well as doubt about whether the application of the principle has a basis in an opinio juris. P.M. Dupuy (1997): Ou en est le droit internationale de l'environment àla fin du siècle, in Revue Général dû Droit International Public, p. 889 has by and large the same opinion. It looks almost as if there is an Anglo-Saxon and a French school, the former being for and the latter being against! See also Arron Cosbey (2000): A Forced Evolution? The Codex Alimentarius Commission, Scientific Uncertainty and the Precautionary Principle, IISD, Canada, p. 10.
85. P. Martin-Bidou, supra note 63, p. 664 refers to inter alia the lack of precision and clarity with regard to the extent of the obligations as well as doubt about whether the application of the principle has a basis in an opinio juris. P.M. Dupuy (1997): Ou en est le droit internationale de l'environment àla fin du siècle, in Revue Général dû Droit International Public, p. 889 has by and large the same opinion. It looks almost as if there is an Anglo-Saxon and a French school, the former being for and the latter being against! See also Arron Cosbey (2000): A Forced Evolution? The Codex Alimentarius Commission, Scientific Uncertainty and the Precautionary Principle, IISD, Canada, p. 10.
86. P. Martin-Bidou, supra note 63, p. 664 refers to inter alia the lack of precision and clarity with regard to the extent of the obligations as well as doubt about whether the application of the principle has a basis in an opinio juris. P.M. Dupuy (1997): Ou en est le droit internationale de l'environment àla fin du siècle, in Revue Général dû Droit International Public, p. 889 has by and large the same opinion. It looks almost as if there is an Anglo-Saxon and a French school, the former being for and the latter being against! See also Arron Cosbey (2000): A Forced Evolution? The Codex Alimentarius Commission, Scientific Uncertainty and the Precautionary Principle, IISD, Canada, p. 10.
87. Quoted in the Annex to the Commission Communication, supra note 63.
88. It is difficult to imagine that the fact that the notion of 'approach' is utilized instead of 'principle' has a major importance, re Per Mickwitz: Implementation of Key Environmental Principles, Nord 1998: 2, p. 74. The formulation can be regarded as a minor concession to the 'Miami Group' (re 'General environmental law problems' above) which, as an element in the fight against the acceptance in international environmental law of the PP, advocated 'noting' instead of 'in accordance with'.
89. Supra note 34.
90. Cameron, supra note 33, p. 20; O. Spiermann (1998): WTO og Verdenshandlens nye vilkaar - om folkeretten, en ny tvistbilaeggelsesmekanisme og traktatfortolkninger (WTO and New Conditions for the World Trade: On International Public Law, a New Dispute Settlement Mechanism and Interpretation of Treaties), in Juristen (The Lawyer), Copenhagen, p. 345, and Aaron Cosbey, supra note 66, pp. 11.
91. Cameron, supra note 33, p. 20; O. Spiermann (1998): WTO og Verdenshandlens nye vilkaar - om folkeretten, en ny tvistbilaeggelsesmekanisme og traktatfortolkninger (WTO and New Conditions for the World Trade: On International Public Law, a New Dispute Settlement Mechanism and Interpretation of Treaties), in Juristen (The Lawyer), Copenhagen, p. 345, and Aaron Cosbey, supra note 66, pp. 11.
92. The conclusions of the Appellate Body with regard to the status of PPs in international law are to some extent similar to the vocabulary used by P. Sands (see note 65) and could therefore build on a misinterpretation of what this author is saying. I have not read the whole literature about the PP, but in the latest literature (re notes 63, 65 and 66) there are no authors applying the same differentiation as the Appellate Body although, as mentioned in note 66, Francophone authors are generally sceptical with regard to the PP having the status of international customary law.
93. A. Cospey and S. Burgiel, supra note 34. Frances B. Smith, supra note 7, p. 22 seems to be of the view that there is a conflict between the SPS provisions and the Protocol which is characterized as an example of the 'movement away from science-based decisions' (p. 26), noting also that there 'is no guarantee that the WTO and Codex policies relating to the use of scientific principles in resolving trade disputes relating to food safety and human health will remain sacrosanct.' The author of this article agrees with the conclusion but certainly not with its premises. The PP is also science-based and science within the framework of the PP cannot and should not be distinguished from science within the framework of the SPS.
94. Robert Falkner, supra note 7 holds a somewhat different view, arguing that the 'agreement is unlikely to prevent future tension over some important issues that remain unresolved' (PPs are 'defined only insufficiently' and provisions on trade and the environment leave considerable room in interpretation'), p. 300, as well as the Protocol 'does not prevent GMO-exporting countries from using WTO... to clarify existing obligations under the trade regime', p. 317.
95. Supra note 13.
96. See also Thomas Yongo (2000): Towards Implementation of the Biosafety Protocol, in IUCN Newsletter, January-April 2000, p. 12, and Robert Falkner, supra note 7, p. 311. An Intergovernmental Committee for the Cartagena Protocol on Biosafety (ICCP) in order to prepare for the first Meeting of the Parties (MOP) to the Protocol focusing inter alia on the CHM, capacity building and compliance (re Earth Negotiations Bulletin, Vol. 9, No. 173) met in Montpellier 11-15 December 2000. The next meeting of the ICCP will take place in October 2001.