Current Agriculture, Food & Resource Issues
G.E. Isaac
Yet, recognizing that the principle of non-discrimination cannot always apply,
specific trade agreements, such as the Agreement on Sanitary and Phyto-Sanitary
Standards (SPS Agreement), outline the instances where a country can legitimately violate
the PND (Isaac and Kerr, 2003). For example, if Canada has a scientifically sound reason
for banning a particular foreign product because of a risk to human, plant or animal
health, that ban does not have to apply to all foreign and domestic producers of like
products.2 That is, any or all of the three concepts of non-discrimination - like products,
national treatment and most-favoured nation - may be suspended by the importing
country at its own discretion.
When the techniques and procedures of genetic modification produce crops with
production-traits (that is, without any output traits that would make the product
distinguishable from non-GM crops) they are considered to be like products under the
international trading regime. Therefore, due to the absence of scientific justifications for
banning GM crops, the WTO - consistent with the PND - does not explicitly focus on
market access for GM crops as distinct from non-GM crops (Isaac and Kerr, 2003). In
other words, the WTO supports a product-based approach to GM crops (Isaac, 2002).
The Cartagena Protocol on Biosafety
to the Convention on Biological Diversity
Signed in January 2001 and entered into force on September 11, 2003 (after 50 signatory
countries had ratified) is the Cartagena Protocol, an MEA with a mandate to protect
environmental biodiversity from the transboundary movement (i.e., trade) of living
products of modern biotechnology. Two significant differences between the Cartagena
Protocol and the WTO may be identified. The first is that the Cartagena Protocol supports
a process-based approach whereby it is the use of modern biotechnology - regardless of
the impact upon the end like product - that triggers regulatory oversight.
The second significant difference is that while the WTO’s underlying regulatory
principle is the principle of non-discrimination, underlying the Cartagena Protocol is the
principle of advance informed agreement (PAIA). Modelled initially on the Basel
Convention (Isaac, 2002), the Cartagena Protocol essentially treats products of
biotechnology as hazardous waste whereby the government of the importing country
(party of import) must be notified by the government of the exporting country (party of
export) of the intended transboundary movement of living products of biotechnology to
allow the party of import to conduct its own risk analysis and determine the risk to
domestic biodiversity prior to the shipment. Without a link to the international trading
regime or to international scientific organizations, the Cartagena Protocol basically
permits parties of import to set market access bans according to any factors which they
deem fit. Therefore, while the WTO aims at removing governments from the act of
deciding market access, the Cartagena Protocol elevates the role of government, making
the transboundary movement of living modified organisms a government-to-government
activity.
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