A New Hot Spot in the Trade - Environment Conflict

The Cartagena Protocol on Biosafety to the Convention on Biological Diversity regulates international trade in Living Modified Organisms (LMOs). As the Protocol concerns trade in commodities, e.g. genetically modified seeds and vegetables, it concerns a trade which is of major importance to the world’s economy. The relationship between the Protocol and the World Trade Organization (WTO) is therefore of primary importance. The central point in the Protocol is the Precautionary Principle (PP). This principle is in itself of crucial importance when discussing the relationship between the Protocol and the WTO. Therefore the Protocol must, in more than one sense, be considered a milestone in the discussion about the relationship between trade and environment. The issue of the extent to which the provisions of the Protocol will be respected by the WTO’s dispute settlement mechanism (DSM) might therefore be regarded as decisive for whether it is at all possible to unite trade and environmental interests under the present WTO system. The purpose of this article is to discuss this problem and based upon all the facts, to seek some conclusions. The 1992 Convention on Biological Diversity (CBD) is the first international legally binding instrument containing provisions on biotechnology. These provisions reflect the potential benefits and risks that modern biotechnology entails. One of the provisions, Art. 19(3) contains an obligation for the Parties to the Convention ‘to consider the need for and modalities of a Protocol setting out appropriate procedures, including, in particular, advance informed agreement, in the field of the safe transfer, handling and use of any LMOs resulting from biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity.’ The term ‘transfer’ is meant to cover transboundary movements, i.e. export and import, including non-deliberate movements, while the notion ‘transboundary movement’ was introduced in the Jakarta Mandate (see section titled ‘The start of the negotiations’, below). This provision was the result of a compromise that was only made during the last hours of negotiation and the history of the negotiation reflects the fact that modern biotechnology was a topical issue some ten years ago. This also appears in Agenda 21, the global action plan for environment and development, which was adopted at UNCED in 1992. A whole chapter (16) in this action plan is devoted to the ‘environmentally sound management of biotechnology’. Article 19(3) in CBD resulted in what became the first global environmental agreement in the new millennium, namely the adoption in Montreal of the Cartagena Protocol on Biosafety to the Convention of Biological Diversity on 29 January 2000.