In more peaceful days (just a month ago, in fact), the Hebrew University of Jerusalem hosted a roundtable on the EC-Biotech case. Participants were Rob Howse, Mary Footer, Gareth Davies,Oren Perez, Christiane Conrad and myself. It's a bit odd to publish commentary on a Panel Report before it has been issued, but the papers don't need to be translated into Spanish, so here are the first two, available on the Hebrew University International Law Forum SSRN Research Paper Series.
Gareth Davies of the University of Groningen has written on Morality Clauses and Decision-Making in Situations of Scientific Uncertainty: The Case of GMOs :
Abstract: The WTO dispute over European resistance to importation of GMOs centred on the risks that these might, or might not, present, and their accurate assessment. Academic discussion also emphasises the importance of respecting democratic decision-making within states. This paper argues that neither an emphasis on science nor on democracy offer an adequate explanation of the nature of the dispute or a way to resolve it. The science is inconclusive, and reliance on it leads to empty positions, while democracy arguments are incompatible with binding agreements.
Really, when states disagree about matters like this they are not disagreeing about what they know, but about the proper reaction to not knowing. Differences of opinion about this are rooted in different perceptions of when and why it is justified to take risks, and who should be allowed to do so, which are rooted in turn in perceptions about the relationships and obligations that different persons and institutions have to each other. The best description of these kinds of disagreement is in terms of morality, and so the best form of legal exceptions to rely on are public morality clauses.
This paper considers how such arguments can be accommodated within the framework of the GATT, TBT, and SPS agreements. It suggests that the panel report in the GMO case leaves room for such arguments to be made.
Christiane Conrad of Bern, Bremen and Georgetown wrote about PPMs, the EC-Biotech Dispute and Applicability of the SPS Agreement: Are the Panel's Findings Built on Shaky Ground? :
Absract: Despite striking similarities between processes and production methods (PPMs) and genetic engineering, the EC-Biotech panel report is silent on the points of contention raised in the debate on PPMs. The reason is that in EC-Biotech, the panel decided the dispute based on the SPS Agreement, and not based on the GATT or the TBT Agreement. This decision, if not revoked, may well pre-determine the lines of reasoning along which future disputes on national regulations of biotech products will be decided. In this paper, the author critically analyzes the panel's arguments for applying the SPS Agreement. She detects three fundamental concerns: a) the panel interprets the scope of the SPS Agreement in an overly broad manner; b) it fails to address that the contested measures differ considerably from those in previous SPS disputes, and c) it omits exploring the full meaning of environmental protection and biodiversity. Given these doubts about the applicability of the SPS Agreement to regulations of biotech products, the author sets forth the argument that in this particular situation the rule of the minimum of obligations should be applied. With this rule, it can be determined whether the definitions of SPS measures, which in turn decide on the scope of the SPS Agreement, should be interpreted in a broad or rather a narrow manner. Methodologically, the rule requires a comparison of the substantive disciplines on regulations of biotech products contained in different WTO agreements. The author concludes that given the ambiguity of the scope of the SPS Agreement with respect to measures on biotech products, the agreement with softer disciplines provides a more solid legal basis for decisions in respective international disputes.
Other papers will address the role of science and amicus briefs, burden of proof and norm classification, interpretation and the precautionary principle.
T.
