Application of precautionary principle in international trade law and international environmental law

Author:Abdul Haseeb Ansari
Position:Ahmad Ibrahim Faculty of Law, International Islamic University Malaysia, Gomabak, Malaysia
SUMMARY

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 Convention on Biological Diversity. Design/methodology/approach – The paper presents an... (see full summary)

 
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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 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 country, 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 of PP was first felt by the UN General Assembly1. Its importance was further realized for attaining sustainable development (SD), which is evident from the Bergen Declaration2, and the Rio Declaration on Environment and Development3. These international soft laws put on the states two requirements on all to be followed: there should be adequate reason for safety of the 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 quest to have a breakthrough research and develop a novel plant or animal species – especially for human consumption, directly, e.g. oil seeds, or indirectly, e.g. use of Bt. Cotton seeds for making 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 weak precaution, which is there in the international soft law and SPS Agreement, stipulates that states may adopt precautionary measure(s) if there is no evidence of harm. Although the soft international law points to the soft precaution, 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 exports or have concern about the starving world population, 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 precaution 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 ).

The paper discusses pertinent questions concerning the two standards of PP, the approach adopted by the Dispute Settlement Body (DSB) of the WTO, and establishment of a meaningful balance between pressing need of supply of food to starving population and application of strict precaution when the supply of food is plentiful.

The provisions pertaining to applicability are not the same as they have been designed in different paradigm to serve different purposes. In view of this, the paper presents the analytical approach on both the sets of laws. It identifies the crossing line between them in order to substantiate this.

Cartagena Protocol and SPS Agreement

The Cartagena Protocol on Biosafety (Cartagena Protocol), made to enforce Principle 15 of the Convention on Biological Diversity, prescribes certain measures as PP to be applied to importation of LMOs. Its Article 11(8) demonstrates it as:

Lack of certainty due to insufficient relevant scientific information and knowledge regarding the extent of potential adverse effects of living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account risk to human health, shall not prevent the party from taking a decision, as appropriate, with regard to the import of living modified organism intended for direct use as food or feed, or processing in order to avoid and minimize such potential adverse effects.

It means a Party can prevent the importation of LMOs even if a specific harm resulting from such organisms cannot be identified. This depicts the existing strong precaution, the Sanitary and Phytosanitary Agreement (SPS Agreement) of the WTO legal regime under paragraph 6 of the preamble, Article 3(3) and Article 5(7) prescribes similar but weak precaution to be applied to imports of GMOs (GMOs include LMOs). Section 3(3) states that:

[…] members may introduce or maintain a measure which may result in higher level of SPS measures based on the relevant international standards, guidelines or recommendations, if there is a scientific justification, or as the consequence of the level of SPS protection a member determines to be appropriate in accordance of […].

Under Article 5(7), where relevant scientific evidence in insufficient, Member States may adopt SPS measure on the basis of available pertinent information based on information obtained from international organizations and measures applied by other members. Towards this end, Members may seek additional information within the reasonable period of time. We can notice that the relevant PP provisions in the Agreement have used the word “may”, which leaves the applicability of the precautionary measure on importing on the importing country. And its applicability will depend only on adverse insufficient scientific evidence. The provisions, thus, require soft PP to be applied.

The legal status of PP under the WTO law

Realizing that international trade ( Runge, 1994, p. 11 ) under the WTO may cause impact on the environment, it was necessary to accommodate PP in the WTO system. Besides, if it is carefully designed, national and environmental policies can promote both international trade and environmental protection concurrently ( Dale, 1999 ). It is for this reason that states made appropriate policies and enacted laws in line with the international legal regime to enforce it.

Precautionary approaches can be interpreted as a counterweight to, if not an outright rejection of, wait and see policy that emphasizes on a high degree of scientific certainty as a precondition to adopting policy responses ( David, 1994, pp. 827-828 ). However, the WTO preamble can be used as a legal basis of adopting the PP in the WTO regime. The wording of the WTO preamble clearly states that:

Parties […] while following for the optimal use of the world's resources in accordance with the objective of SD, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their...

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