Anomalies at the Precautionary Kingdom: Reflections on the GMO Panel's Decision

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.