Current Agriculture, Food & Resource Issues
G.E. Isaac
Combining the process-based approach with the principle of advance informed
agreement results in a highly precautionary protocol that treats the products of modern
biotechnology as hazardous wastes such that parties of import have sufficient room to
make unilateral market access decisions while exporters and parties of export have
virtually no recourse.
Transatlantic Differences
The incongruence between the WTO and the Cartagena Protocol’s approach to the
international regulation of biotechnology is reflected in the current transatlantic regulatory
regionalism which prevents consensus on how to appropriately regulate products of
modern biotechnology. On one hand, the United States (along with Canada) essentially
favours a product-based approach triggered by scientific evidence of risk or hazard that is
consistent with the WTO approach. On the other hand, the EU favours a process-based
approach triggered by the precautionary principle that is consistent with the Cartagena
Protocol. The differences in approach led to a request to the WTO (May 13, 2003) by the
United States and Canada, along with Argentina and Egypt, for a consultation on the EU
moratorium on market approval of GMOs, which had been in place since 1998. In late
July the EU announced that it would end the moratorium as new regulations were put into
place. The WTO request was not withdrawn, because the EU’s moratorium was only a
symptom - the real problem is the transatlantic regulatory differences, which the new EU
regulations did not bridge (they maintained a process-based approach fundamentally at
odds with the U.S. approach). It is most likely that the consultation will evolve into an
acrimonious trade dispute pitting the North American against the EU approach. The
consequences are significant because the implicit conflict will be between the WTO’s
approach to biotechnology regulations (as supported by the United States) and the
Cartagena Protocol’s approach to biotechnology regulations (as supported by the EU).
That is, for the first time there will be conflict between the WTO and an MEA.
WTO, Cartagena Protocol and Transatlantic Differences
Given the differences outlined above, it is clear that the factors conducive to a harmonious
trade-environment relationship are not present with respect to the two multilateral
paradigms for regulating biotechnology products. Moreover, there appears to be very little
likelihood of convergence because it would require either side to abandon their
fundamental regulatory approaches. Given the significant commercial lead enjoyed in
North America it is unlikely that the regulatory structure will revert to a precautionary,
process-based approach that would treat biotechnology products as hazardous or toxic
wastes. Inversely, given the politicization of the GMO issue, it is unlikely that the EU will
undertake a dramatic withdrawal from the process-based system and allow for widespread
market access of what are largely considered to be foreign technologies (Isaac, 2002).
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