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Ecologic Approach to the Institutional Interplay of Biosafety
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Disentangling
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example, a reciprocal WTO decision instructing its dispute-settlement bodies to inter-pret the WTO agreements in ways that respect parties’ obligations under the CartagenaProtocol – the prospect of success may remain low in reality because interactionthrough commitment is unlikely to overcome resistance by the US that is not a party tothe CBD and its Cartagena Protocol and has firmly opposed any step towards acknowl-edging either of these agreements under the WTO to date. Under these circumstances,efforts to coordinate the further decision-making of both regimes, for example by set-ting up a joint committee to elaborate further rules to be adopted by both sides, may alsobe unlikely to succeed.
Finally, the possibility and likelihood of “cognitive interaction” influencing the judicialprocesses of both regimes to some extent strengthens the stance of those interested inbiosafety (and in mitigating tensions with the WTO) at the level of implementation.Biosafety interests may feel encouraged to exploit the remaining room for interpretationwhen implementing the Cartagena Protocol because the request to the WTO implicit inthe Protocol’s preamble is likely to strengthen their case in WTO dispute settlement. Incase of a challenge under the WTO, the party concerned also has the option of submit-ting a concurrent case to the compliance body of the Cartagena Protocol (that allows aparty to trigger the procedure against itself). It could thereby increase the pressure onthe WTO dispute-settlement bodies to take into account and respect the Cartagena Pro-tocol. Such a counter-challenge could also serve the interest in mitigating remainingtensions between both regimes by promoting the rationale for their consistent co-development. With both (quasi-)judicial processes investigating the same case, the pres-sure to enter into some (informal) inter-judicial exchange ensuring compatible findingswould rise. The strengthening of biosafety interests finds its limits in the boundaries ofthe room for compatible interpretations of the WTO and the Protocol. Since theseboundaries remain undefined, bold steps in the implementation of the Cartagena Proto-col may indeed lead to legal challenges under the WTO – with uncertain results.
Overall, there is thus a good chance that both regimes will develop further in consistentways in the future. While far-reaching further political decisions may be unlikely tooccur, political decision-making in either forum is unlikely to result in heightened con-flict. At the same time, the existing rules represent a balance that is ready to be imple-mented. We may thus expect the relationship of both agreements to be worked out fur-ther in their implementation “on the ground”. If this implementation is challenged le-gally under the WTO, judicial decisions will further delimitate the jurisdictions of bothregimes. In this case, the task will be to ensure that the judicial processes under bothagreements can be employed so as to manage the relationship between the WTO and theCartagena Protocol successfully.
5.
Conclusion
Applying our conceptual approach to the analysis of institutional interaction betweenthe WTO and the international biosafety regime provides evidence for its fruitfulness.First, our strategy of disaggregating complex interaction situations into individual cases
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| | Authors: Oberthür, Sebastian. and Gehring, Thomas. |
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Disentangling
19
example, a reciprocal WTO decision instructing its dispute-settlement bodies to inter-
pret the WTO agreements in ways that respect parties’ obligations under the Cartagena
Protocol – the prospect of success may remain low in reality because interaction
through commitment is unlikely to overcome resistance by the US that is not a party to
the CBD and its Cartagena Protocol and has firmly opposed any step towards acknowl-
edging either of these agreements under the WTO to date. Under these circumstances,
efforts to coordinate the further decision-making of both regimes, for example by set-
ting up a joint committee to elaborate further rules to be adopted by both sides, may also
be unlikely to succeed.
Finally, the possibility and likelihood of “cognitive interaction” influencing the judicial
processes of both regimes to some extent strengthens the stance of those interested in
biosafety (and in mitigating tensions with the WTO) at the level of implementation.
Biosafety interests may feel encouraged to exploit the remaining room for interpretation
when implementing the Cartagena Protocol because the request to the WTO implicit in
the Protocol’s preamble is likely to strengthen their case in WTO dispute settlement. In
case of a challenge under the WTO, the party concerned also has the option of submit-
ting a concurrent case to the compliance body of the Cartagena Protocol (that allows a
party to trigger the procedure against itself). It could thereby increase the pressure on
the WTO dispute-settlement bodies to take into account and respect the Cartagena Pro-
tocol. Such a counter-challenge could also serve the interest in mitigating remaining
tensions between both regimes by promoting the rationale for their consistent co-
development. With both (quasi-)judicial processes investigating the same case, the pres-
sure to enter into some (informal) inter-judicial exchange ensuring compatible findings
would rise. The strengthening of biosafety interests finds its limits in the boundaries of
the room for compatible interpretations of the WTO and the Protocol. Since these
boundaries remain undefined, bold steps in the implementation of the Cartagena Proto-
col may indeed lead to legal challenges under the WTO – with uncertain results.
Overall, there is thus a good chance that both regimes will develop further in consistent
ways in the future. While far-reaching further political decisions may be unlikely to
occur, political decision-making in either forum is unlikely to result in heightened con-
flict. At the same time, the existing rules represent a balance that is ready to be imple-
mented. We may thus expect the relationship of both agreements to be worked out fur-
ther in their implementation “on the ground”. If this implementation is challenged le-
gally under the WTO, judicial decisions will further delimitate the jurisdictions of both
regimes. In this case, the task will be to ensure that the judicial processes under both
agreements can be employed so as to manage the relationship between the WTO and the
Cartagena Protocol successfully.
5.
Conclusion
Applying our conceptual approach to the analysis of institutional interaction between
the WTO and the international biosafety regime provides evidence for its fruitfulness.
First, our strategy of disaggregating complex interaction situations into individual cases
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