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To Trade or Not to Trade . . .

April 2002

Citation: ELR 10512

Author: Deepa Badrinarayana

"I'm Not Dead Yet: Genetic Mutation That Lives Up to Its Name Is Found."1 This heading from the December 15, 2000, New York Times is a precursor to one of the most fiercely debated issues of our times. Genetic modification with the use of biotechnology is now perceived as a goldmine due to the prospects that it holds for combating the problems that were hitherto considered mostly unsolvable. The ability to locate the information contained in the deoxyribonucleic acid (DNA), separate it, and relocate it in another organism through modern biotechnology techniques has opened new vistas for social problems. In addition, the financial promise that biotechnology holds may be tremendous. For example, intellectual property rights may enable patent holders to make high profits on their investment.2 The flip side to this is the legal and cultural differences over the commercial use of biotechnology. Disagreements over genetic modification have emerged between environmental and human rights groups over the possible adverse impacts that genetically modified organisms (GMOs) may have on human health and the environment.3 The promise of innovations that would reduce the use of harmful chemicals and pesticides, increase the productivity of animals and plants at low environmental costs, and cure diseases that have plagued humankind for centuries do nothing to allay fears about the long-term threats that GMOs may pose. The recent outbreak of foot and mouth disease confirms the risk associated with the use of modern science.4 It also brings to the forefront the dangers involved in the trade of GMOs.

The response of the international legal community to the issue can be evidenced in the Cartagena Protocol on Biosafety (Protocol), which was opened for signature in May 1992, during a meeting of the Parties to the Convention on Biological Diversity and was finalized in January 2000.5 The Protocol provides a mechanism to mitigate the risk associated with trade in GMOs. The Protocol essentially establishes an international regime for trade in GMOs, mainly trade in GMO agricultural products. Trade, however, is primarily regulated by the General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO)6 system pursuant to the Sanitary and Phytosanitary Measures Agreement (SPS Agreement).7 While the main objective of the WTO is to ensure free trade in goods, the SPS Agreement allows the imposition of non-tariff barriers on trade in view of plant, animal, or human life and safety.8 Yet there is a difference between the Protocol and the SPS Agreement. While the Protocol is a product of concern for environmental protection, the SPS Agreement is a product of concern for free [32 ELR 10513] and nondiscriminatory practice in trade. This may lead to conflicts over the application of the appropriate law.

This Dialogue examines and compares the two legal instruments. The Dialogue first discusses the SPS Agreement and then goes on to describe the Protocol. The Dialogue then analyzes the compatibility between the two international documents.

Deepa Badrinarayana is a Research Assistant to Prof. Frank Grad at the Columbia University School of Law. She holds a Masters in Environmental Law from Pace University School of Law and a B.A.LL.B.(Hons) from India. The author gratefully acknowledges the encouragement and advice of Profs. Stephen Kass and Nick Robinson and her parents and family. She would also like to thank her friend Gus for giving up genetically modified food—though it resulted in his losing 10 pounds.

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