In May last year, the USA (supported by Argentina, Canada and an ephemeral “coalition of the willing”) lodged a formal WTO complaint against the European Communities (EC) for its refusal to authorize any new GMO products since 1998. The complaint charges that this “de facto moratorium” breaches WTO obligations set out in the Sanitary and Phytosanitary Measures Agreement (SPS) and the Agreement on Technical Barriers to Trade (TBT). In defense, the EC initially denied the existence of a moratorium and contended that its GMO risk assessment and approval procedures were consistent with WTO rules.
Defending restrictions on GMOs on the grounds of WTO-compatibility is a risky undertaking. The rules of the WTO, including the SPS and TBT Agreements, were written to reinforce corporate dominance, and the EC’s own agrifood TNCs have benefited enormously from them. The rules are there for a reason. The moratorium is vulnerable to challenge on the basis of WTO jurisprudence, which proscribes discrimination against “like products” and “unreasonable delay” in authorizing the movement of new products across national borders.
Faced with the possibility of multimillion-dollar trade sanctions, the EC has been obliged to seek new arguments. The first written EC submission in the case, dated May 17, therefore signals an important shift in the earlier position.
The submission is contradictory because the European Commission is simultaneously under pressure from the US government (in its role of enforcer for agribusiness), European consumers (who reject GMOs) and Europe’s own biotech corporations (who have consistently sought to undermine the moratorium). Rather than defending the moratorium, the EC still contends that rejecting new GMO applications was consistent with the spirit, if not always the letter, of relevant WTO rules and jurisprudence. There was never an official moratorium, de facto or de jure, the submission argues, so the complaint takes aim at a phantom target. It cites outright bans on GMOs in other countries as evidence of the EC’s intrinsic reasonableness and moderation. You could do much worse, the EC wants to argue, so give us a break.
Because unions were not involved in the submission process – a serious defect considering the direct impact of GMOs on food and agricultural workers – the documentation is incomplete and selective. For example, section 4(a) concerning “Effects on human health” contains no mention of the effects on worker health and safety of the increased agro-chemical applications which have accompanied the spread of pesticide- and herbicide-resistant GMOs. There is not, nor can there be, any discussion of the social threat embodied in GMOs and their role as carriers of corporate concentration, for such a discussion is completely off limits at the WTO.
What is new and significant in the EC submission is the recognition that “There is a serious question as to whether the WTO is the appropriate international forum for resolving all the GMO issues that the Complainants have raised in these cases. The European Communities can only regret that the Complainants have chosen to start a dispute settlement procedure based on flawed premises, rather than to promote international co-operation as a means to build a sound international framework for addressing the GMO issue.”
This recognition fundamentally shifts the terms of debate. We agree: the WTO is not the place for determining the legitimacy and legality of a country’s decision to exercise its right to reject GMOs. The international framework for resisting the imposition of GMOs lies with international human rights law. The EC calls it “international cooperation”. We call it “rights-based multilateralism”, and have drawn attention to the importance of ILO Conventions and the multilateral environmental agreements in this process.*
The core of the issue is not WTO compatibility. It is whether human rights take precedence over the rules governing global trade, or the WTO trumps everything. In its submission the EC contends that “it is not the function of the WTO Agreement to trump the other relevant rules of international law which permit – or even require – a prudent and precautionary approach.” That is precisely one of the main functions of the WTO Agreement. If the EC now has to face the facts, that is a positive development.
We agree with the EC that the Biosafety Protocol to the International Convention on Biodiversity, correctly identified in the submission as “the first international legally binding agreement on the trade of genetically modified organisms”, is the appropriate tool for addressing the GMO issue. The Biosafety Protocol provides a basis in international law for rejecting GMO imports and their release into the environment. But since it is based on the precautionary principle, it can only be enforced over and against the WTO. The key question for unions now is how to make effective use of the Protocol to advance our agenda in this dispute.
While the Protocol has been ratified by the EC (though not by the US, Canada and Argentina), it is only as strong as the national laws and policies required for its implementation. This is the terrain on which European unions must now intervene.
The Protocol provides for the establishment of a Compliance Committee, to be elected by countries that have ratified the Protocol. The Compliance Committee will monitor the implementation of the Biosafety Protocol, investigate non-compliance and resolve disputes. Food unions must insist that they be involved in the establishment of this Committee, and participate actively in its work. Who, if not the unions directly involved in the transport, cultivation and processing of food, is more centrally placed to carry out the monitoring procedures?
The Biosafety Protocol also provides for the creation of a comprehensive liability and redress regime, which includes compensation for losses or damage caused by GMO contamination. Massive GMO contamination is already a fact, not a theoretical possibility. Since the companies know that GMO contamination through transport, cultivation and processing is unavoidable, the threat of serious financial liability has successfully deterred GMO commercialization in the UK and other countries. There should be no delay in preparing a strict liability regime at European level – before the WTO imposes its own sanctions against legitimate action to defend the precautionary principle. Here as well, unions have a vital stake and a claim to involvement at every level.
The de facto moratorium ended on May 19 when the European Commission authorized canned imports of Syngenta’s GMO sweet corn. GMO seed companies will be the first to benefit from this breach, and already have their applications in line for approval. The EC is thus fighting and retreating at the same time. Its reluctance to draw the consequences of its own submission should not deter the trade union movement and its allies from doing so. By calling into question the WTO’s legitimacy to adjudicate in disputes involving fundamental rights, the EC has given a signal for action which goes beyond its limited goal of fending off WTO sanctions. We should use the opportunity to push for a GMO moratorium which is genuine both in name and in fact.
**The argument is set out in the IUF April 2004 paper Towards a Rights-Based Multilateralism for the World Food System.