International Environmental Liability and Barriers to Trade: Market Access and Biodiversity in the Biosafety Protocol. By KAREEN L. HOLTBY, WILLIAM A. KERR and JILL E. HOBBS

Abstract

This is a little gem of a book. It weighs in at only 150 pages but still manages to give one of the best accounts available of the tensions inherent in the Biosafety Protocol as well as a potential solution to resolve some of those tensions. It gives a succinct but effective review of the many purposes that lie behind the Protocol, from protecting trade, restricting trade, promoting development and protecting the environment. It also explains how the diverse motivations of different State groups contributed to the negotiation of the Protocol and shaped its controversial provisions. There follows a useful summary of how the different groups achieved some but not all of their objectives. The discussion helps to explain and clarify a number of features of the Protocol, for example, the advanced informed agreement procedure, scope of the precautionary principle and the criteria to be used in risk assessment. The authors also evaluate the Protocol in four potential roles: trade inhibitor, trade facilitator, promoter of economic development and trade dispute weapon. This offers a valuable framework within which to analyse the potential effects of the Protocol. The role of trade dispute weapon is perhaps the most interesting as it raises not only the possible interpretation of the Protocol but also the wider issues of whether it could or should prevail over the obligations of the WTO. Here, the authors do a credible job of identifying the legal issues although, from a lawyer's perspective, it would have been strengthened by using a wider range of sources. However, this is a minor quibble given the purpose of the book. The authors cannot come to a firm conclusion about the nature and effect of the Protocol but they sensibly point out that much depends on decisions still to be made, such as how the precautionary principle should apply, how regulations and procedures are designed and implemented nationally and internationally, and how the Biosafety Clearing House functions in practice. They also point out the dangers of uncertainty about the effect of the Protocol for countries that export genetically modified organisms and for the international trade regime, and propose that a liability regime might help safeguard international trade at the same time as promoting environmental protection.