Socio-Economic Considerations of Living modified Organisms and Impacts on Trade: Evolution of Environmental Disputes at the World Trade Organization

The Convention on Biological Diversity (CBD) is the most important international treaty concerning the conservation of biodiversity and the Cartagena Protocol is a specific instrument to regulate biosafety measures for Living Modified Organisms ( LMOs ). In this Protocol, apart from mandatory environmental and health risk assessments, the Parties can also voluntarily adopt socio and economic considerations ( SECs ) arising from LMOs, as stated in article 26. However, the definition of SECs is still under negotiation, therefore it does not currently have a definite concept and meaning. Also, the last Conference of the Parties proposed to expand SECs by adding extra cultural, traditional, religious and ethical considerations, resulting in an even broader and possibly non-measurable requirement. As for trade, the World Trade Organization (WTO) rules, especially the General Agreement on Tariffs and Trade, the Technical Barriers to Trade Agreement and the Agreement on the Application of Sanitary and Phytosanitary Measures, do have exemptions for stricter standards based on environmental concerns and protection. Although each one is used for a different trade purpose (i.e., bans, tariffs and sanitary measures), they share some common characteristics: science-based and precise language. Hence, as they currently stand in the CBD, it is unclear whether the SECs are aligned with the WTO rules, possibly leading to future trade disagreements if enforced, especially through domestic biosafety laws. In this respect, several countries already have regulations that include provisions to adopt SECs if desired. This study assesses whether the WTO rules and private standards apply and are in accordance with SEC requirements on biosafety regulations. For that, firstly, it is essential to determine if the trade rules and language cover socio and economic concerns or if these concerns only apply to environmental and health impacts per se. Also, this study analyzes whether the COP/MOP decisions to the expansion of SECs by adding cultural, traditional, religious and ethical criteria are helpful or will only cause more incompatibility and enlarge the gap between the CBD and the WTO. In this regard, this study also investigates whether the WTO panels and the Appellate Body, as important actors in pacifying international trade conflicts with their history of jurisprudence, can provide some guidance to answer these questions or perhaps other dispute settlement bodies of International Law can be more responsive regarding environmental and social concerns. This study also indicates how Environmental Law Principles are evolving as sources of International Law. As a consequence, it will become clearer if and how SECs can be an enforceable requirement for biotechnology, improving the lives of farmers and local communities, and just not an arbitrary trade measure used by countries as a new tool for green protectionism, without fulfilling CBD’s goals or society’s needs for more sustainable practices