On 29 September 2006, the WTO dispute settlement panel in European Communities – Measures affecting the Approval and Marketing of Biotech Products (EC-Biotech) issued three consolidated panel reports outlining the Panel’s final decision in the dispute. While the long-awaited decision leaves many questions relating to trade in biotech products unanswered, it nevertheless addressed a number of important issues relating to the applicable WTO law, the scope of the Sanitary and Phytosanitary Agreement (SPS Agreement), as well as a number of questions relating to the obligations contained in the SPS Agreement. The Panel also addressed the relationship between WTO law and multilateral environmental agreements (MEAs), the focus of this note.
In its submissions, the EC argued that the WTO agreements examined in the dispute must be interpreted and applied by reference to relevant rules of international law arising outside the WTO context. It criticized the approach taken by the complaining parties – the United States, Canada and Argentina – which treated the legal issues concerning the authorization and international trade of genetically modified organisms (GMOs) as though they were regulated exclusively by WTO rules, without regard to the relevant rules of public international law adopted to regulate the concerns and requirements arising from the particular characteristics of GMOs. To support its argument, the EC referred to the US–Shrimp decision, in which the Appellate Body – when interpreting the General Agreement on Tariffs and Trade (GATT) – looked at several treaties, including treaties which at least one party to the dispute had not signed or had signed but not ratified. Relying on the Appellate Body’s approach in US-Shrimp, the EC argued that the Panel, when interpreting the relevant WTO rules, was required to take into account the 1992 Convention on Biological Diversity(CBD) (ratified by the EC, Argentina and Canada; and signed by the United States) and the 2000 Cartagena Protocol on Biosafety (ratified by the EC and signed by Argentina and Canada). Specifically, the EC argued that the rules of international law reflected in the Biosafety Protocol on the precautionary principle and on risk assessment should be taken into account to inform the meaning and effect of the relevant provisions of the WTO agreements.