The World Trade Organization Dispute Over Genetically Modified Organisms: The Precautionary Principle Meets International Trade Law

Abstract

“Precaution” is increasingly accepted as a basis for governmental policy in the areas of public health and environment on both the domestic and international levels. A precautionary perspective counsels action to avert danger or threats in situations of scientific uncertainty or incomplete information. Precautionary approaches find expression in internationally harmonized formulations as non-binding exhortations, binding treaties, and meta-level principles. Precaution is a particular challenge to free trade agreements, whose purpose is to eliminate unjustified barriers to trade. In that context, precaution as a justification for a challenged governmental measure may appear to be nothing more than a pretext for protectionism. This article traces the treatment of precaution in the jurisprudence of the World Trade Organization, and particularly under the Uruguay Round Agreement on Sanitary and Phytosanitary Standards. From this perspective, the piece analyzes a number of controversial disputes, including those over hormone-treated beef and genetically modified food and crops, and makes recommendations for an alternative treatment of this important question by the WTO’s Appellate Body.