The United Kingdom
Environmental Law Association
United Kingdom Environmental Law Association
Registered Charity Number 29949
Biotechnology Working Party
Ukela Biotechnology Working Party
Submissions In Respect Of:
Annex D - AEBC Consultation Paper on Future Scenarios for the Uptake of GM in
Agriculture: June 2001
Annex D of the AEBC’s consultation paper proposes a number of scenarios for debate to
assist the AEBC in understanding perspectives on how agriculture and the environment might
be affected by using, or not-using, biotechnology in the UK and Europe. The scenarios
proposed for debate are:
A.
The UK aims for market-led development and take-up of biotechnology (GM and/or
other technologies), with no policy guidance or regulatory constraint on the kind of
products that are brought forward by technology providers.
B.
The UK aims for development and take-up of biotechnology consistent with the aims
of ‘sustainable agriculture’, with technology providers being given incentives,
guidance or regulatory requirements to produce certain types of products.
C.
The UK, or any of the regions within the UK, rejects biotechnology while the rest of
Europe and the rest of the world accepts it.
D.
All of Europe rejects biotechnology, while the rest of the world accepts.
These scenarios illustrate that the global biotechnology industry’s options for strategic
development are dependent on the continuance of free-market principles, recognising the
critical role that regulation plays in facilitating or impeding such development. Measures
ostensibly put in place to protect human health and/or the environment may result in effective
barriers to trade. An example is the the EU’s long-standing de facto moratorium on further
approvals of GM products1.
Argued by some to be justified on the ground of the ‘precautionary principle’ (e.g. on the ground that the risk
of contamination to existing crops should be avoided), nevertheless the moratorium calls to mind Adam Smith’s
observation in his ‘Inquiry into the Nature and Causes of the Wealth of Nations’ (1776), that: “By restraining,
either by high duties or by absolute prohibitions, the importation of such goods from foreign countries as can be
produced at home, the monopoly of the home market is more or less secured to the domestic industry employed
in producing them”.
1
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Questions such as whether the UK or even Europe as a whole should be declared GMO-free
zones (as suggested in the AEBC’s proposals for debate) raise important legal issues. For
example, would such a move to reject biotechnology at either national or community level be
inconsistent with EU, WTO or other international trade rules and thus challengeable on a
legal basis? If so, on what grounds principally?
The purpose of this paper is not to answer such questions. It is rather to highlight issues that
merit further research and consideration. Key aims of this paper are to draw attention to the
legal foundations for the free trade system of the European Community (both internal market
and international trade) and to emphasise that EC and/or UK regulatory measures in the field
of biotechnology are capable of constituting real barriers to the effective maintenance of such
trading systems. The legality of such measures is an issue. This paper should be read
primarily as a reference to various relevant legal principles that need to be factored into the
debate.
Free trade principles
WTO Agreement
GATT
Regional free trade, custom unions and common market arrangements (EU and other)
Discussed in “The World Trading System”, by John Jackson (2nd ed, MIT Press, 1997)
TRIPS?
Bonn CSE Document (OSCE website) – EU/EC external agreements often contain
reference to ‘economic conditionality’
Barriers to trade
WTO Agreement on Technical Barriers to Trade (TBT)
WTO Agreement on Sanitary and Phytosanitary Measures (SPS)
May rely on derogations, provided you can justify such restrictions.
Look at the EUobserver.com
Look at www.wto.org/english/tratop_e/envir_e/edis00_e.htm
EC Measures Containing Meat and Meat Products (Hormones) (Appellate Body
Report)
De Burca’s & Scott’s paper on ‘The Impact of the WTO on EU Decision-Making’
Trade & the environment: an internal market perspective (European Union):

If Community legislation establishes a ‘floor’ of rights and duties, the Treaty
represents a ‘ceiling’ beyond which neither the Community nor its Member States
may lawfully venture.
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
There are limits to Member State regulatory autonomy in the environmental sphere,
arising from the application of Articles 30-36 EC.

The nub of the trade/environment debate is to what extent, and under what
circumstances, may a Member State restrict trade in the Community in order to
reinforce (or render effective) domestic environmental preferences? Is there a conflict
between the Community preferences and WTO rules?

Article 30: prohibits ‘quantitative restrictions’ on imports and ‘all measures having
equivalent effect’. Article 34 imposes an equivalent prohibition in respect of exports.
However, discrimination between goods destined for the domestic market and those to
be exported, is a sine qua non in the application of Article 34.

Article 30 extends not only to import bans and quotas, but to all ‘trading rules enacted
by Member States which are capable of hindering, directly or indirectly, actually or
potentially, intra-Community trade’: see e.g. Cases 8/74 Procureur du Roi v
Dassonville [1974] ECR 837. It applies both to rules which discriminate between
domestic and imported products, and to those which apply equally to both, regardless
of origin. That is to say, ‘distinctly’ and ‘indistinctly’. These are mandatory
requirements.

Article 36 lays down explicit Treaty-based exceptions. The list of headings which it
encompasses is regarded as exhaustive. As with mandatory requirements, scrutiny of
national measures is predicated upon the application of three related concepts:
necessity, proportionality and least restrictive means. These are value-laden concepts.
It is for the importing State to discharge the burden of proof implicit in these freemovement exceptions.
Trade & the environment: the external dimension (International):

The external dimension raises questions pertaining to the role and status of the WTO
in the Community legal order, and the substantive constraints which this imposes on
the Community in contemplating recourse to external trade-related environmental
measures (TREMs). What is their legal classification? The Community enjoys
competence both in the sphere of external trade under Article 133 (common
commercial policy) and in relation to environmental policy by virtue of Article 175.
Under each it enjoys power both to enact legislation and to enter into international
agreements. Yet the competence that it can claim in respect to each is qualitatively
different.

The Community enjoys a priori exclusive competence in respect of common
commercial policy. The Community, on the contrary, enjoys merely concurrent
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competence in respect of environmental policy. Community measures, once enacted,
take the form of minimum harmonisation measures and Member States may maintain
or enact more stringent protective measures. Hence the choice of legal basis for
TREMs impinges not only at the level of legislative procedure, but also in terms of
the residual autonomy of Member States.

TREMs are regulated within the framework of the GATT 1994 and other associated
agreements on trade in goods. In the case of the WTO agreements on trade in goods, it
is the Community, rather than its Member States, which are answerable before the
WTO dispute settlements bodies in the event of a complaint by another contracting
party. This gives rise to the possibility that the Community will be condemned, under
GATT law, for the wrong-doing of a Member State. Yet, in so far as the WTO
Agreement constitutes a part of Community law, it is binding also upon the Member
States. It is for the Community to take steps, according to its own enforcement
procedures, to ensure that the Member States respect the terms of this agreement.

The European Court, in its WTO Opinion (Opinion 1/94 [1994] ECR I-5267),
accepted that the European Community, on the basis of Article 133, was exclusively
competent to enter into the TBT, SPS and other agreements regulating trade in goods.
The Community is a party to these agreements and they are binding upon the
institutions of the Community. Has this direct effect? It is at least debatable that it
does.

GATT is premised upon the principle of non-discrimination. Article III establishes the
concept of national treatment as regards internal taxes, charges and regulations.
National measures may be applied to imported products provided that they are
accorded treatment that is not less favourable than that accorded to ‘like’ domestic
goods, and that national measures are not applied in such a manner as to afford
protection to domestic production. Article II lays down the most favoured national
principle (MFN) that precludes discrimination as between contracting parties.

In assessing the lawfulness of a national measure under GATT, it is necessary first to
determine whether it is protected under Article III. The concept of ‘like’ products is
adjudged on the basis of the intrinsic characteristics of the products in question.
Production process is not relevant, as it does not differentiate domestic and imported
goods; differential treatment on the basis of difference in process will amount to
discrimination treatment. Having failed the national treatment test, the measure will
fall for consideration under Article XI. An import ban, clearly being a quantitative
restriction, is to be evaluated in the light of Article XX exceptions: e.g. Article XX(h)
“necessary to protect human, animal or plant life or health”; Article XX(g) “relating
to the conservation of exhaustible natural resources if such measures are made
effective in conjunction with restrictions on domestic production or consumption”.
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These exceptions have been strictly construed by GATT panels and by the WTO
Appellate Body.

The second tuna/dolphin panel (United States Restrictions on Imports of Tune 33 ILM
834 (1994)) concluded that:
“…measures taken so as to force other countries to change their
policies, and that were effective only if such changes occurred, could
not be primarily aimed either at the conservation of an exhaustible
natural resource, or at rendering effective restrictions on domestic
production or consumption, in the meaning of Article XX(g). [Nor
could they be considered ‘necessary’ for the protection of animal life
or health in the sense of Article XX(b).]” (pp 894 & 898).
Hence, while this panel did not accept that there was any territorial limitation inherent
in Article XX, and held that parties are entitled to seek to protect an environmental
resource situated beyond its territorial jurisdiction, it posited the need for a direct
causal connection between the measure and the environmental objective pursued.
Where a measure is capable of achieving its desired effect only were it to be followed
by changes in the policies and practices of exporting states, it cannot fall within the
parameters of Article XX. Thus, one state may not restrict the entry of goods,
originating in the global commons or in another state, based on the manner in which
that good has been produced; at least so long as the importing state does not enjoy
jurisdiction over the party procuring the goods. The same cannot be said where the
environmental hazard is associated with intrinsic product quality. Here, a trade
restriction is capable of directly protecting the environment of the importing state, and
is consequently not contingent upon a change of policy on the part of a third state.
More often than not, in practice, territoriality is going to define the limits to Article
XX, albeit that extra-territorial jurisdiction is accepted, up to a (by no means certain)
point in international law.

The WTO Agreement, even in so far as it regulates trade in goods, encompasses more
than merely the GATT 1994. Annex 1A includes 12 additional multilateral
agreements whose status is defined in a General Interpretive Note: both the GATT
1994 and another Annex 1A agreement may be simultaneously applicable, in so far as
they are not incompatible, and in so far as the relevant agreement does not explicitly
provide otherwise. E.g. SPS and TBT Agreements are mutually exclusive in their
scope of application. The former covers measures aiming at the protection of animal
or plant life or human health, including those regulating, inter alia, the risks arising
from additives, contaminants, toxins or disease-carrying organisms, in food,
beverages and feedstuffs. The latter covers all other product standards, which may be
applied in so far as they are non-discriminatory, necessary to fulfil a legitimate
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objective (including protection of the environment) and do not create unnecessary
obstacles to trade.

Both Agreements emphasise scientific reason and evidence. For example, the SPS
Agreement provides that Members are to ensure that any measures applied be based
on scientific principles and are not maintained in the absence of sufficient scientific
evidence. This is qualified to the extent that where relevant scientific evidence is
insufficient, a Member may provisionally adopt SPS measures on the basis of
available pertinent information, including that from international organisations and in
the light of the measures applied by other Members. This reflects a commitment to the
precautionary principle. Seen on the Community’s ban on the introduction of
hormone treated meat and meat products. The panel concluded in the beef hormones
case, inter alia, that the community had failed to justify its departure from
international standards. The Community had neither based its decision upon a proper
risk assessment nor demonstrated scientifically the existence of an identifiable risk to
humans.

Each time the Community enacts measures regulating the quality of goods to be
placed on its market, it must consider not only whether these afford protection to
domestic goods, but also whether the justification for such measures would stand up
in WTO dispute settlement proceedings and before scientists called to assist the
dispute settlement bodies. WTO law impinges upon the Community’s sovereignty not
merely in respect of TREMs as traditionally conceived, but also in the sphere of
internal market harmonisation.
Some thoughts on ‘soft’ law as an important underlying policy driver:

“From a policy perspective, one might claim that trade liberalization pursues a “deregulatory” strategy, to remove perceived barriers to trade, while sustainable
development and environmental protection pursue a “regulatory” strategy to
internalise external environmental costs and otherwise keep economic activity within
the limits of the biosphere.”2 The middle ground conclusion is that trade and
environmental goals are in some tension but trade off can be made to make these
competing public aspirations more mutually compatible.

The advance of the ideas of sustainable development and sustainable use3, ultimately
led to the acceptance of sustainable development as an underlying principle of the
Earth Summit’s Rio Declaration4 and is seen in the document referred to as the
2
Hunter, Satzman and Zaelke, International Environmental Law and Policy, Foundation Press, 1998, page 1179.
The concept of sustainable use is also known as sustainable utilisation.
4 Rio Declaration, UNCED . UN Doc. A/CONF 151/5/ 1992. 7 May.
3
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Environmental Law Association
Brundtland Report5 as well as Caring for the Earth: A Strategy for Sustainable
Living6.

Principle 4 of the 1992 Rio Declaration calls for the integration of environmental
considerations into trade policies, affirming that in order to achieve sustainable
development “environmental protection shall constitute an integral part of the
development process and cannot be considered in isolation from it”.7 In its preamble,
“the integral and interdependent nature of Earth, our home”, and Principle 7,
recognise the necessity to “conserve, protect and restore the integrity of the Earth’s
ecosystem”.8 In 1992 at the Earth Summit, Agenda 21 further stated that trade and
environment ought to be mutually supportive in order to achieve both environment
and development goals9 and that “increased ethical awareness in environmental law
and development decision-making should help to place appropriate priorities for the
maintenance and enhancement of life-support systems for their own sake.”
Environmental priorities tend nowadays to be transboundary or global problems and
therefore can be better tackled at the international rather than at the national level.
This is recognised by Principle 12 of the Rio Declaration, which states that:
“unilateral actions to deal with environmental problems should be
avoided and environmental measures addressing transboundary or
global environmental problems should, as far as possible, be based
on an international consensus”.

Development-related agreements or instruments should therefore aim at integrating
environmental considerations with trade, economic and moral issues in order to
advance the more equitable distribution of the welfare of the world’s resources
because the problems of the world economy are conceived as systematic; and as an
economy depends on law, international agreements should assume a vital importance
in confronting what is understood to be failure of the international economy to serve
the whole of international society, the society of all human beings. As Philip Allott
has stated:
“the international economy has been unable to ensure the sustained
and accelerating development of all its subordinate societies, the ever
increasing well-being of the whole human race”.10
The World Commission on Environment and Development: “Our Common Future” 43 (1987).
Caring for the Earth: A Strategy for Sustainable Living 211 (1991). Some of this ‘soft law’ has been recognised as of
influence in preambles to certain Directives, such as the Habitats Directive.
7 Rio Declaration, Principle 4, reprinted in (1992) 31 ILM 874.
8 Rio Declaration, Preamble, Principle 7, reprinted in (1992) 31 ILM 874.
9 Agenda 21, UNCED Doc. A/CONF 151/4. Paragraph 2.3, reprinted in (1992) 31 ILM 818.
10 Eunomia, p355, OUP, 1990. Quoted in The effectiveness of International Environmental Agreements: A survey of existing
Legal Instruments. The United Nations Conference on Environment and Development, Sand, Grotius
Publications Limited, 1992.
5
6
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Environmental Law Association

Reference should also be made to Principle 3 of the Rio Declaration, which states that
“the right to development must be fulfilled so as to equitably meet development and
environmental needs for the present and future generations”11.

An important role of international law, and the organisations associated with
implementing the law, is to deter and discipline those who threaten the normative
order that is the society of states. This normative order rests on some notion of a
common purpose, or what Nardin calls “purposive association”12, which is based upon
the moral integrity of the individual within a cultural specific, social environment that
includes a commonly held view of the “good life”. However because of cultural
diversity and the existence of states, Nardin argues that there is another mode of
relations, namely that which pursues divergent as well as shared purposes. These are
the non-purposive rules of ‘practical association’. Such rules require no commitment
to shared purposes or values, but they do provide a formal unity, an association of
states, based upon restraint and accommodation. Practical association occurs when
those who fail to get others to adopt their own values ‘have little choice but to tolerate
the existence of differences they are unable to eradicate’.
It is noted that the AEBC’s Work Plan, September 2002, states that the “Commission is
interested in examining the potential for trans-boundary effects from modern biotechnology
developments, looking initially at how well regulations as they stand can be implemented.”
We would urge the AEBC to give proper weight to trade law in its considerations of the
regulatory context in which trans-boundary movements of GMOs occur.
Martha Grekos &
Daniel Lawrence
Joint Convenors of the
UKELA Biotechnology Working Group
London
25 October 2002
11
12
Rio Declaration, Principle 3, reprinted in (1992) 31 ILM 874. See also note 25, regarding the Bruntland Report.
T. Nardin, Law, Morality, and the relations of States, Princeton, 1983, page 5.
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