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Ecologic Approach to the Institutional Interplay of Biosafety
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Disentangling
9
3.
Interactions between the WTO and the Biosafety Regime
3.1
Overall Assessment: Causal Mechanism, Driving Forces and Conse-quences
In essence, the interaction between the Cartagena Protocol and the WTO is about thejurisdictional delimitation regarding newly emerging issue of international trade in ge-netically modified organisms (GMOs) between the two institutions that are premised ondifferent logics and supported by two different policy communities. The need for such ajurisdictional delimitation had already become increasingly evident throughout the1980s when both economic/trade interests and environmental interests had made firstattempts to span and occupy the newly emerging regulatory field. The Organization forEconomic Development and Cooperation (OECD), the UN Indurstrial DevelopmentOrganization (UNIDO), the World Health Organization (WHO), the UN Food and Ag-ricultural Organization (FAO), as well as the UN Environment Programme (UNEP) allbecame involved in the field (Pythoud/Thomas, 2002: 40; Zedan, 2002: 28-33).
Soon, it became apparent that the issue of international trade in GMOs had two sides toit which were in potential conflict so that their joint regulation was virtually excluded.First, biotechnology created demand for the establishment of an international market sothat GMOs could be traded like other goods. This demand was in line with the objec-tives of the world trade regime – then primarily built upon the General Agreement ofTariffs and Trade (GATT) – and was represented by the trade interests of GMO export-ers. At the same time, the spread of GMOs entailed new, largely uncertain risks for theenvironment as well as existing socio-economic structures creating demand for regula-tion to protect against the related dangers and ensure “biosafety”, i.e. the protection ofbiological diversity (and established socio-economic structures) against the dan-gers/risks associated with the spread of GMOs. Protective regulation would restrictmarkets so that the two demands for market creation and market restriction were point-ing in opposite directions (on the issue in general see e.g. Falkner, 2000: 300-303).
These diverging objectives go a long way towards understanding the competitive questof two institutions for regulatory authority over international trade in GMOs that un-folded, as further detailed in the subsequent sections. With the conclusion of the WorldTrade Organization (WTO) agreements in 1994, the world trade regime secured a first-mover advantage by determining requirements that needed to be met in order for acountry to be allowed to restrict international trade in GMOs. On that basis, however,the Convention on Biological Diversity (CBD) took over the initiative in 1995 bylaunching negotiations on a biosafety protocol, thereby effectively excluding furtherregulatory activity by the WTO. Regulatory efforts for an emerging biosafety regimeoccurred, however, in the “shadow” of existing WTO rules. While some might havepreferred open conflict with the WTO, states members of both institutions were drawntowards accepting provisions that were compatible with WTO disciplines. As a result,the Cartagena Protocol primarily further specifies, interprets and develops pre-existingWTO rules with respect to GMOs/LMOs. It leaves only limited room for incompatibleinterpretations and constrains the further specification and interpretation of rules on
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| | Authors: Oberthür, Sebastian. and Gehring, Thomas. |
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Disentangling
9
3.
Interactions between the WTO and the Biosafety Regime
3.1
Overall Assessment: Causal Mechanism, Driving Forces and Conse-
quences
In essence, the interaction between the Cartagena Protocol and the WTO is about the
jurisdictional delimitation regarding newly emerging issue of international trade in ge-
netically modified organisms (GMOs) between the two institutions that are premised on
different logics and supported by two different policy communities. The need for such a
jurisdictional delimitation had already become increasingly evident throughout the
1980s when both economic/trade interests and environmental interests had made first
attempts to span and occupy the newly emerging regulatory field. The Organization for
Economic Development and Cooperation (OECD), the UN Indurstrial Development
Organization (UNIDO), the World Health Organization (WHO), the UN Food and Ag-
ricultural Organization (FAO), as well as the UN Environment Programme (UNEP) all
became involved in the field (Pythoud/Thomas, 2002: 40; Zedan, 2002: 28-33).
Soon, it became apparent that the issue of international trade in GMOs had two sides to
it which were in potential conflict so that their joint regulation was virtually excluded.
First, biotechnology created demand for the establishment of an international market so
that GMOs could be traded like other goods. This demand was in line with the objec-
tives of the world trade regime – then primarily built upon the General Agreement of
Tariffs and Trade (GATT) – and was represented by the trade interests of GMO export-
ers. At the same time, the spread of GMOs entailed new, largely uncertain risks for the
environment as well as existing socio-economic structures creating demand for regula-
tion to protect against the related dangers and ensure “biosafety”, i.e. the protection of
biological diversity (and established socio-economic structures) against the dan-
gers/risks associated with the spread of GMOs. Protective regulation would restrict
markets so that the two demands for market creation and market restriction were point-
ing in opposite directions (on the issue in general see e.g. Falkner, 2000: 300-303).
These diverging objectives go a long way towards understanding the competitive quest
of two institutions for regulatory authority over international trade in GMOs that un-
folded, as further detailed in the subsequent sections. With the conclusion of the World
Trade Organization (WTO) agreements in 1994, the world trade regime secured a first-
mover advantage by determining requirements that needed to be met in order for a
country to be allowed to restrict international trade in GMOs. On that basis, however,
the Convention on Biological Diversity (CBD) took over the initiative in 1995 by
launching negotiations on a biosafety protocol, thereby effectively excluding further
regulatory activity by the WTO. Regulatory efforts for an emerging biosafety regime
occurred, however, in the “shadow” of existing WTO rules. While some might have
preferred open conflict with the WTO, states members of both institutions were drawn
towards accepting provisions that were compatible with WTO disciplines. As a result,
the Cartagena Protocol primarily further specifies, interprets and develops pre-existing
WTO rules with respect to GMOs/LMOs. It leaves only limited room for incompatible
interpretations and constrains the further specification and interpretation of rules on
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