Application of precautionary principle in international trade law and international environmental law. A comparative assessment

Pages19-43
Date11 March 2014
DOIhttps://doi.org/10.1108/JITLP-04-2013-0006
Published date11 March 2014
AuthorAbdul Haseeb Ansari,Sri Wartini
Subject MatterStrategy,International business,International business law
Application of precautionary
principle in international trade
law and international
environmental law
A comparative assessment
Abdul Haseeb Ansari
Ahmad Ibrahim Faculty of Law, International Islamic University Malaysia,
Gomabak, Malaysia, and
Sri Wartini
Faculty of Law, University Islam Indonesia, Yogyakarta, Indonesia
Abstract
Purpose – The purpose of writing this paper is to present a comparative but critical assessment of
the applicability of the precautionary principle (PP) under the SPS Agreement, which is a part of the
WTO regime by implication, and under the Cartagena Protocol, which has been made under the
Design/methodology/approach – The paper presents an analytical exposition of both the sets of
laws, trade law and environmental law. The methodology adopted is library based. The approach is to
bring about an amicable co-existence of both the laws so that they could serve the dual purpose,
i.e. promotion of trade and protection of “human, animal and plant life and health” and conservation of
the environment.
Findings – The DSB of the WTO should give due importance to the PP and should apply it liberally,
keeping also in view the environmental aspects, so that along with free trade human, animal and plant
health and life, and conservation of the environment are also protected.
Practical implications – It will change the present paradigm and will bring both the sets of laws
together.
Originality/value – It focuses on the life and heath of poor people around the world. It, thus, pleads
for application of strong PP.
Keywords Risk assessment,Biosafety, GMOs, LMOs, MEAs, Precautionary principle
Paper type Research paper
Introduction
Precautionary principle (PP) has been developed over a period of time for protection in
specif‌ic “human, animal and plant life and health” and “conservation of the exhaustible
natural resources”, and protection of the environment in general. It generally means:
if the adverse effect of anything is not determinable, it is better not to introduce it into
the environment or for human consumption. PP has two main aspects: scientif‌ic
uncertainty, and possibility of serious and irreversible damage. It can best be explained
with respect to introduction of genetically modif‌ied living organisms (LMOs) and
non-living materials (GM food and feed), which might cause adverse impact on
“human, animal and plant life and health”. For example, recently, Indian scientists
The current issue and full text archive of this journal is available at
www.emeraldinsight.com/1477-0024.htm
Received 1 April 2013
Revised 8 November 2013
Accepted 27 November 2013
Journal of International Trade Law
and Policy
Vol. 13 No. 1, 2014
pp. 19-43
qEmerald Group Publishing Limited
1477-0024
DOI 10.1108/JITLP-04-2013-0006
Application of
precautionary
principle
19
developed Bt. Brinjal, a genetically modif‌ied species of brinjal that can produce toxin to
kill insects, but the scientists did not give guarantee of its safety. The Indian
Government wanted to introduce it for human consumption within the coun try, and to
make it an internationally tradable item so that it could be a matter of revenue
generation. But because of the safety concern expressed, mainly from scientists and the
NGOs, the government had to order for further repeated lab and f‌ield testing, so that it
could be safe for human consumption. The safety of all GMOs, developed in various
countries, became a matter of international concern, which has prompted development
of PP to be enforced both by international laws and national legislations.
The necessity ofPP was f‌irst felt by the UN General Assembly[1].Its importance was
further realized for attaining sustainable development (SD), which is evident from the
Bergen Declaration[2], and the Rio Declaration on Environment and Development[3].
These international soft laws put on the states two requirements on all to be followed:
there should be adequate reason for safety ofthe LOMs and GM food; and there should
not be intention for a short-term economic gain. It also disseminates ethical values for
the individual scientists and companies engaged with gene manipulation with a
predominant questto have a breakthrough research anddevelop a novel plant or animal
species – especially for human consumption,directly, e.g. oil seeds, or indirectly,e.g. use
of Bt. Cotton seeds formaking edible oils or animal feed – that they should not engage in
such activities only only for name and fame. They have to give priority to the
precautionary measures. There are strong precaution and weak precaution. The strong
precaution, which emanates from the Cartagena Protocol, requires that activities should
not be allowed if there is no guarantee of “no harm”; the weakprecaution, which is there
in the international soft law and SPS Agreement, stipulates that states may adopt
precautionary measure(s) if there is no evidenceof harm. Although the soft international
law points to the softprecaution, most of the developed, developing and least developed
countries stick to the strong precaution when there is question of import of GMOs for
human consumption,as they supply utmost importance to “human, animal and plant life
and health”. However, there are a number of states, especially those, which have vested
interest in GMOs exportsor have concern about the starving worldpopulation, plead for
application of the weak precautionary measures.
In the midst of the two views, rationalists, including the author, have attempted to
strike a balance and opine that if the supply of food is the pressing need of the time, the
weak precaution should be applied; if supply of food is plentiful, strong precau tion
should be the option. And in no case, the safety aspects determined by the GMO
producing company or state should be taken as conclusive. The burden of proving the
safety of the GMO should be of the exporting country. The importing country should
also determine it; and if need be the country may seek safety information from the
exporting country. Both must follow the internationally accepted risk-assessment
standards (Ansari and Parveen, 2011; Ansari and Lekha, 2012; Stephen, 2006). This is
also warranted by the pressing need of a comprehensive approach in international
trade law and international environmental law. This is because in the era of pluralism,
globalization and mutual existence and survival of the people and the environment
requires to emphasize on them rather than moving forward with fragmentation, which
is a decade old approach and which has failed to gather enough support. The approach
suggested by the authors will break the hegemony of protectionism and parochial
approach of trade law (Panaglotis Delimatsis, 2010).
JITLP
13,1
20

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