Yesterday I happened to hear a lecture about the "Protection of family property against creditors in the enlightenment era court of chancery". Nothing to do with GMOs, but listening to a learned analysis of late 18th century jurisprudence made me wonder - what would future generations, say, in 250 years, make of a decision like EC-Biotech? I say "would", not "will" - the ongoing disregard of the precautionary principle may have an impact on the chance that legal historians in the 23rd century will have an opportunity to study the jurisprudence of today...
Anyway, in addition to those previously posted, here are two more working-paper attempts to understand different aspects of the GMO report, contemporary legal history, if you will:
Oren Perez, Bar Ilan University, "Anomalies at the Precautionary Kingdom: Reflections on the GMO Panel's Decision", available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=940907:
Abstract: the case before the WTO panel is a reflection of a wide-ranging social discontent. At the heart of this discontent lies the question of the risks genetically modified organisms ("GMOs") pose to human health and the environment. A prominent feature of this discontent was the unrelenting anti-GMO campaign, which was led by several transnational environmental groups, such as Greenpeace and Friends of the Earth. The idea of precautionary action has played a key role in this campaign. It was invoked as a ground for imposing stricter regulatory controls on the release of GMOs to the environment and their placement on the market. The precautionary principle, entangled with the concept of risk, stands then at the core of this conflict, at both the social and legal levels. However, the notion of precaution is a contested and highly vague concept. Environmental groups have not succeeded in developing a coherent understanding of this notion, and neither, as I will argue below, has the Panel. This comment has two main goals. First, it offers a critique of the Panel's interpretation of the precautionary principle and its WTO version - Article 5.7 of the Agreement on the Application of Sanitary and Phytosanitary Measures, arguing that the Panel's view is incoherent. Second, it develops an alternative approach for interpreting the precautionary principle and incorporating it into the law of the WTO.
Tomer Broude, Hebrew University of Jerusalem, "Genetically Modified Rules: The Awkward Rule-Exception-Right Distinction in EC-Biotech", available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949623:
Abstract: The arcane distinction between rules, exceptions and autonomous rights has troubled WTO dispute settlement since its earliest days, primarily with respect to procedural burden-of-proof questions. Yet in its report, the EC-Biotech panel relied on a techno-textual understanding of this distinction to interpret the substantive applicability of Articles 2.2, 5.1 and 5.7 SPS – the WTO's fundamental rules on the degree of scientific certainty of risk required to allow a state to restrict imports of goods due to human, animal or plant health or life concerns. This article critiques the panel's approach on the backdrop of WTO jurisprudence and deontic logic, arguing that the norm-category of autonomous rights - as resorted to by the panel - does not actually exist; that the Article 2.2-5.1/5.7 SPS relationship should be more straightforwardly construed than the panel's convolutions would suggest; and that the disorderly and incoherent outcome of the panel's analysis of the questions involved serves as a cautionary tale against excessive textualism in WTO dispute settlement.
