1. See “To Plant or not to Plant”, The Economist, 15 01 2000, p.30.Google Scholar

2. Source: Biotechnology Industry Association, Washington D.C. as reported by USA Today, 13 Jan. 2000, p.1.

3. “Sticky Labels”, The Economist, 1 05 1999, pp.75–76Google Scholar. In the United States, three governmental agencies regulate the introduction of genetically-modified plants and foods: the U.S. Department of Agriculture has responsibility for protecting plants and American agriculture under the Federal Plant Pest Act, 7 U.S.C. ss.150aa–190jj; the Food and Drug Administration regulates novel foods under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C ss.301–395; and the US Environmental Protection Agency regulates genetic techniques to develop plants that produce their own pesticides under the Federal Insecticide, Fungicide, and Rodemicide Act, 7 U.S.C ss.136–136y.

4. An entomological study indicated that monarch butterfly caterpillars could be killed by pollen from GM corn crops planted in the vicinity of the milkweed plants on which the caterpillars feed. This conclusion was debated at a Monarch Butterfly Research Symposium hosted by the U.S. Environmental Protection Agency in Chicago, 2 Nov. 1999. Peer reviewers minimised the problem, but research is continuing on possible “sub-lethal” effects on caterpillars, 22 Int'l Envt. Rptr, (BNA) 822 (Current Developments, 10 Nov. 1999).

5. A study carried out in the United Kingdom which concluded that GM potatoes have negative impacts on the health of rats was criticised by scientists as “half-baked” and “hopelessly confused” because of procedural flaws. The Economist, 16 October 1999, p.85.

6. The case is Bruce Pickett, et al. v. Monsanto Co., Case No. 1:99CVO3337 (Antitrust), United States District Court for the District of Columbia.

7. Susan Boensch Meyer, “Genetically Modified Organisms” YB Colo. J. Int'l Envt. L. & Pol'y 102, 111 (1998).

8. For perhaps the most comprehensive review to date of the issues and problems as well as recommendations for future research, see Genetically Modified Pat-Protected Plants: Science and Regulation (U.S. National Academy of Sciences, 2000).Google Scholar

9. Legal Texts of the Uruguay Round 69 (WTO, 1994).

10. Conference of the Parties to the Convention on Biological Diversity, First Extraordinary Meeting, Montreal, 24–28 Jan. 2000, Draft Final Text.

11. This was duly predicted by Barton, John H., “Biotechnology, the Environment, and International Agricultural Trade”, 9 Geo. Int'l Envt'l L. Rev. 95, 112–115 (1996).Google Scholar

12. 30 Oct. 1947, TIAS No. 1700, 55 UNTS 188. As a result of the Uruguay Round of trade negotiations, this was repromulgated as “GATT 1994”. Legal Texts, supra at 481.

13. GATT, Article XX(b). This is specifically referred to by the SPS Agreement, Article 2:4.

14. SPS Agreement, Arts.3.1 and 3.2.

15. Id. Art.5.1–5.3.

16. Id. Art.5.4.

17. Id. Art.5.5

18. Id. Art.5.6.

19. Id. Art.5.7.

20. European Communities, Measures Concerning Meat and Meat Products, WTO Doc. WT/DS 26/AB/R & WT/DS48/AB/R (World Trade Organization Appellate Body, 16 Jan. 16, 1998). (“Hormones”).

21. Id., para.lO9.

22. Id., paras.118–119.

23. Id., paras. 123–125.

24. Id., para.177.

25. Id., para.174.

26. Id., paras.175–176.

27. Australia—Measures Affecting Importation of Salmon, WTO Doc. WT/DS18/AB/R (World Trade Organization Appellate Body, 6 Nov. 1998). A similar case was decided by a WTO Dispute Settlement Panel, which ruled that Japan violated Articles 2.2 and 5.6 of the SPS Agreement by maintaining phytosanitary measures without sufficient scientific evidence and failing to ensure that they were not more trade restrictive than necessary. Japan also breached its duty of transparency under paragraph 1 of Annex Band Article 7 of the SPS Agreement. Japan Measures Affecting Agricultural Products, WTO Doc. WT/DS76/R (World Trade Organization Panel Report, 27 Oct. 1998).

28. Id., paras.128–138.

29. Id., paras.141–178.

30. Id., para.211.

31. Biosafety Protocol, Preamble.

32. Id.

33. Id., Art.20.

34. Id., Art.10.

35. Id., Art.8.

36. Id., Art.9.

37. Id., Art.10.

38. Id., Art.15.

39. Id., Art.10.6

40. Id., Art.16.

41. Id., Art.5

42. Id., Art.6.

43. Id.

44. Id., Art.7.1–7.2.

45. Id., Art.7.4.

46. Id., Art.11.

47. Id., Art.11.8.

48. See discussion accompanying notes 53–56, infra.

49. Id., Art.18.

50. Id., Art.18(b).

51. Id., Art.17.

52. Id., Art.25.

53. Id., Arts.28–31.

54. Id., Arts.33–35.

55. Id., Art.27.

56. Id., Art.37.

57. BSP, Arts.11 and 20.

58. Id., Art.18.

59. Id., Art.18.2(a).

60. The “precautionary principle” appears in a number of international documents and agreements, but has never been definitively codified, and scholars differ in the content and whether it is an emerging norm of international law. A version of the precautionary principle was adopted as Principle 15 of the Rio Declaration on Environment and Development, a non-binding declaration adopted in 1992. See Weiss, Edith Brown, McCaffrey, Stephen C., McGraw, Daniel B., Szasz, Paul C. and Lutz, Robert E., International Environmental Law and Policy 127–135 (1998).Google Scholar

61. U.N. Doc. A/Conf. 39/27 (1969), 8 I.L.M.679 (1969)Google Scholar. Done in Vienna on 23 May 1969, entered into force on 27 Jan. 1980.

62. Article 30 reads as follows in relevant part: “2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty will prevail. 3. When all parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.”

63. See the definition in Annex A of the SPS Agreement.

64. SPS Agreement, Annex A, Definition 1. See the discussion in Quintillan, Sara Pardo, Free Trade, Public Health Protection and Consumer Information in the European and WTO Context, 33 j. World Trade 147, 171–172, and 190–191 (1999).Google Scholar

65. BSP, Art.34.

66. Article 27 provides as follows:

1. In the event of a dispute between Contracting Parties concerning the interpretation or application of this Convention, the parties concerned shall seek solution by negotiation.

2. If the parties concerned cannot reach agreement by negotiation, they may jointly seek the good offices of, or request mediation by, a third party.

3. When ratifying, accepting, approving or acceding to this Convention, or at any time thereafter, a State or regional economic integration organization may declare in writing to the Depositary that for a dispute not resolved in accordance with paragraph 1 or paragraph 2 above, it accepts one or both of the following means of dispute settlement as compulsory:

(a) Arbitration in accordance with the procedure laid down in Part 1 of Annex II;

(b) Submission of the dispute to the International Court of Justice.

4. If the parties to the dispute have not, in accordance with paragraph 3 above, accepted the same or any procedure, the dispute shall be submitted to conciliation in accordance with Pan 2 of Annex II unless the parties otherwise agree.

5. The provisions of this Article shall apply with respect to any protocol except as otherwise provided in the protocol concerned.

67. See the Report of the U.S. Academy of Sciences, supra note 10, at 6.

68. For details, see “U.S. Split on Approach to Precautionary Principle in Codex”, Inside U.S. Trade, Vol.28, No.7, p. 1 (April 28, 2000).