Transboundary movement of living modified organisms under the cartagena protocol and the SPS agreement: a legal analysis with special reference to the precautionary principle

Abstract

The thesis examines the implementation of precautionary principle (“PP”) on transboundary movement of living modified organisms (“LMOs”) under the Cartagena Protocol, the SPS Agreement and its enforcement by the World Trade Organisation (“WTO”) dispute settlement process, pertaining to issues of adverse impacts of LMOs on the environment and human health. The thesis emphasises that PP has various definitions and its scope covers different aspects of law. However, the core elements of PP in the various definitions are the same. To this end, the thesis specifically addresses the legal and regulatory frameworks with regard to PP under the Cartagena Protocol and the SPS Agreement, PP as a customary international rule in international environmental law and the WTO Law, the impact of the existence of the saving clause in the preamble of the Cartagena Protocol on the enforceability of the PP, and the issue of enforcement of PP in the WTO dispute settlements pertaining to the SPS Agreement. The methodology employed in addressing these issues is library-based research. Treaty norms, guidelines and other legal instruments were explored and analysed to understand the application of PP in transboundary movement of LMOs and to discuss relevant provisions of the Cartagena Protocol and the SPS Agreement. Furthermore, in order to understand the enforceability of PP in the WTO dispute settlements relating to SPS Agreement, the five evolution cases of SPS Agreements have been examined. The thesis finds that there is a fundamental difference in the application of PP under the Cartagena Protocol and the SPS Agreement. The PP under the Cartagena Protocol is justified by scientific uncertainty, while the PP under the SPS Agreement is premised on insufficient scientific evidence. However, this distinction affects the enforceability of PP under both frameworks. In the enforcement process, the ineffectiveness of the PP provisions under the SPS Agreement has been demonstrated by a number of facts, including the implicit adoption of PP in the SPS agreement provisions and the strict interpretation of risk assessment based on scientific evidence by the Panel and the Appellate Body, whereas the failure of all the respondents in the SPS-related cases to invoke PP successfully is triggered by the narrow and textual interpretation of the SPS provisions by the Panel and the Appellate Body. Besides that, the ruling of the Panel and the Appellate body is also affected by the existence of the saving clause in the preamble of the Cartagena Protocol and the lack of comprehensive knowledge of the Panel and the Appellate Body pertaining to protection of human, animal or plant life or health and the environment. The thesis therefore suggests that both conceptual and practical reforms be carried out in the SPS Agreement and the Dispute Settlement Body. Conceptually, the PP provisions should be explicitly reflected in the provisions of the SPS Agreement. However, in order to make PP enforceable in the WTO dispute settlements, the requirement of scientific uncertainty in PP can be substituted by insufficient scientific evidence in the SPS Agreement. In this regard, the Panel and the Appellate Body should interpret the SPS Agreement provisions along side with Multilateral Environmental Agreements (MEAs), including the Cartagena Protocol. Practically, members of the Panel should enhance their knowledge in environmental law so that they can give a comprehensive picture of both trade law and environmental law. In all, the Islamic perspective also complements the above conclusion where the thesis finds that the application of PP in Islamic law (sadd al-dharÊ‘ah) and maÎlaÍah mursalah (public interest) can be used to justify the extent of validity and limitations of the manufacturing and transboundary movement of LMOs.