GMOs are created by transferring genetic material from one organism to another. This process is called genetic engineering, or biotechnology. Although the transfer of genetic material has long occurred through selective breeding and other techniques, new technologies permit more controlled transfers, and transfers of genes from completely unrelated species. Although citizens and governments in different countries all want to ensure that these GMOs do not pose a threat to human health or the environment, they do not agree on the best way to protect against these potential threats.
Trade problems arise when countries have different regulations regarding the testing and approval procedures necessary to place GMOs and their products on the market, or when they disagree about labelling and identification requirements. Some countries ban imports and sales of GMOs and their products altogether. In other countries, a large part of the production of some crops, such as maize or soybeans, is from genetically modified seeds, and is mixed with non-modified varieties during storage, transport and processing. These countries argue it would be unnecessary and very costly to keep GMOs separate, and consider that labelling requirements or import bans are unnecessary trade barriers.
So far, no trade dispute over GMOs has been examined by a WTO dispute settlement panel. Several WTO agreements could apply to the topic, including SPS, but also the TBT Agreement, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and the GATT. An international agreement on living modified organisms, the Biosafety Protocol, was negotiated in the year 2000 under the Convention on Biodiversity of the United Nations.
GMOs and SPS back to top
Under what circumstances does the SPS Agreement apply to GMOs? According to the definition of an SPS measure, the agreement applies to measures taken
|human or animal life||risks arising from additives, contaminants, toxins or disease-causing organisms in their food, beverages, feedstuffs;|
|human life||plant- or animal-carried diseases (zoonoses);|
|animal or plant life||pests, diseases, or disease-causing organisms;|
|a country||damage caused by the entry, establishment or spread of pests.|
In the discussion of GMOs, the first and last definitions seem relevant, i.e. protection from food safety risks and invasive species risks from genetically modified plants. In the case of food safety, however, the SPS Agreement applies to risks from additives, contaminants, toxins or disease-causing organisms, and it is not clear if potential risks from GMO foods fit into one of those categories. If the SPS Agreement did apply, regulations on GMOs would have to conform to the provisions of the Agreement, such as scientific risk assessment and least trade restrictive measures.
Countries could also argue that relevant scientific evidence is insufficient, and adopt a provisional measure according to Article 5.7, based on the available pertinent information. They would then be obliged to actively seek the additional information needed for a more objective risk assessment, and to review the measure within a reasonable period of time. What might be “reasonable” would have to be determined on a case-by-case basis.
The SPS Committee has not discussed GMOs in any detail. However, the United States circulated a paper in June 2000 which pointed out the lack of consistency in notifications. Some countries notified GMO-related regulations under SPS, others under TBT, and sometimes under both. Thailand has also brought to the Committee’s attention Egypt’s restrictions on its canned tuna, allegedly because of concerns that the tuna was canned in genetically modified soy oil, and in September 2000 requested official consultations with Egypt. For an update on the state of play of WTO disputes, go to the WTO website at http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm#news.
Other WTO Agreements back to top
To the extent that the SPS Agreement did not apply to GMO regulations, the TBT Agreement may apply. The TBT Agreement allows governments to take measures if they have a legitimate objective, such as protecting health or the environment. TBT measures should not be more trade-restrictive than necessary. In addition, the TBT Agreement does not allow for discrimination between like products. If a panel were established, it would thus have to decide whether the measure had a legitimate objective, whether it was more trade-restrictive than necessary, and whether GMOs and their products were substantially the same as their non-modified counterparts. In the case of processed foods, for example mayonnaise containing oil from modified soybeans, the “like product” consideration might be difficult. The TBT Committee has discussed GMOs mostly in relation to labelling requirements.
The TRIPs Agreement requires countries to provide a minimum level of protection for certain intellectual property rights. However, only new inventions have to be patentable, not discoveries. Even where a patent is granted, the government can still regulate or ban a product from sale. With respect to GMOs, countries may exclude from patentability plants and animals as well as essentially biological processes for the production of plants and animals. However, they must provide protection for microorganisms and non-biological and microbiological processes. The TRIPs Agreement also allows temporary exclusion from patentability when necessary to protect human, animal or plant life or health or to avoid prejudice to the environment. The TRIPs Agreement would normally not be invoked in a conflict regarding market access for GMOs, but it might be invoked in a dispute on intellectual property protection related to GMOs.
Finally, Article XX of GATT provides for exceptions from GATT rules in order to protect health or the environment. Here, again, the issue of “like” products would arise. In addition, a country would have to show that it is necessary to violate the GATT to achieve the desired health or environmental protection.
In preparations for the Ministerial Conference in Seattle in 1999, several Members proposed the establishment of a working group in the WTO to study GMOs. This group might examine GMOs and their relationship with the different WTO Agreements, and evaluate the need for further action. However, no such working group has been established, and since the Seattle Ministerial at the end of 1999, the issue has not been discussed. In the context of the negotiations on agriculture which began in 2000, the United States has submitted a proposal (G/AG/NG/W/15) calling for disciplines to ensure that processes covering trade in products developed through new technologies are transparent, predictable and timely. All proposals for the agriculture negotiations and other related documents can be found on the WTO website at http://www.wto.org/english/tratop_e/agric_e/negoti_e.htm.
GMOs and the “Three Sister Organizations” back to top
The three sister organizations have begun work on GMOs, and any standards, recommendations and guidelines they develop will be international standards in the sense of the SPS Agreement.
Codex has established an ad hoc task force on foods derived from biotechnology. The task force is developing general principles for risk analysis for GM foods, and specific guidance on risk assessment. It is also examining the analytical methods available for detection of GMOs in foods. To support the work of the task force, there has been a joint FAO/WHO expert consultation on safety aspects of genetically modified foods of plant origin in May/June 2000, and further expert consultations are planned on the safety of genetically modified foods from animals and micro-organisms, plus a working group on testing methods.
Some of the standards developed by the OIE deal with diseases that have human health and biosafety significance. These standards are approved by the OIE member countries and published in the OIE International Animal Health Code. The OIE also publishes the Manual of Standards for Diagnostic Tests and Vaccines. A few of the tests and vaccines use genetically modified organisms. The OIE has had a working group on biotechnology since 1996.
The IPPC has formed an open-ended working group on phytosanitary aspects of GMOs, biosafety and invasive species. It will develop standards for risk analysis as applied to environmental hazards.
The Cartagena Protocol on Biosafety back to top
In January 2000, negotiations on a Biosafety Protocol, under the Convention on Biological Diversity of the United Nations, were completed in Montreal. The protocol lays down rules for international trade in living modified organisms, or LMOs. LMOs are basically GMOs that have not been processed, and that could live if introduced into the environment, such as seeds.
Under the protocol, a country which wants to export LMOs for “intentional introduction into the environment” (such as seeds for planting) must seek advance informed agreement from the importing country before the first shipment takes place. Exports of LMOs which are to be used for food, feed or processing do not have to go through advance informed agreement; rather, trading partners will inform each other of their policies through a “biosafety clearing-house”. The protocol provides for decisions to be based on risk assessment. Under certain circumstances, importers can ask the exporter to carry out the risk assessment. In addition, the protocol contains provisions related to identification of LMOs in international trade.
If a dispute is brought to the WTO, the panel can only judge compliance with WTO Agreements. In doing so the Cartagena Protocol would presumably be taken into account as a relevant international treaty. The relationship of the protocol with the SPS Agreement and other international agreements is not clear.
The Cartagena protocol will enter into force ninety days after it has been ratified by at least fifty countries. More information about the protocol can be found at http://www.biodiv.org/biosafety.