The International Biosafety Regime and the World Trade System after Ten Years of the Cartagena Protocol

Abstract

After ten years with the Protocol in force, it is necessary to draw up a balance, now that the uncertainties which justified the regime in Protocol appear to have become considerably less extensive. Apart from a large growth in the area under GMO crops, there has also been a considerable increase in their geographical spread. Moreover, it is possible to see a change in the state of affairs in which there is well-established practice among States and very limited conflict. In this new reality, the question of the debate about the relationship to international trade remains on the plane of an ex ante determination of a possible solution though examination of the substantive criteria of compatibility of the measures with the principles of the WTO and consideration of the procedural standards established by the most recent international practice, especially in the EC-Approval and Marketing of Biotech Products dispute. In view of the Panel's report, it must be accepted that choice taken was to isolate the WTO regime, rather than to adopt any more integrating conception of international law, as it subordinates the Cartagena Protocol relative to WTO Agreements.