By Rangarirai Machemedze

History will be made as one of the most controversial international trade disputes will come before a panel of the World Trade Organisation. Although the issue of Genetically Modified Organisms (GMOs) has been sidelined at the agriculture talks in Cancun, the case being filed in Geneva by Canada will test the very fabric of the WTO’s Dispute Settlement system. The outcome of the litigation will for sure determine, in one way or the other, the future of production and trade in GMOs.

Canada has joined the US and Argentina in announcing its intention to request a WTO panel and make its case against the European Union’s effective moratorium on approving new genetically modified products. Canada, having failed to negotiate a solution through consultations, has notified the WTO on the 7th August 2003 of its intention in a document reference WT/DS292/17.

In bringing the case to the WTO Canada is arguing that the 15 member European Union has bowed down to pressure by its national governments and have increased fears among consumers that GM foods were “Frankenfoods”. This originated from a certain movie which featured a Professor Frankenstein who was brilliant in bio-chemistry and in one of his experiments the genetics turned against him and started changing into a devil.

Technically, Canada is insisting that the moratorium on the approval of GMOs was inconsistent with the EU’s WTO obligations and is not based on scientific risk assessments and thus creates an unjustified barrier to trade. In reference to the moratorium, the United States Trade Representative (USTR) Robert Zoellick also insisted that the “moratorium violates basic WTO obligations to maintain a food approval process that is based on sufficient scientific evidence and that acts without undue delay.”

In this sense, Canada is not asking the WTO to adjudicate on whether GM food is good or not but is asking them (WTO) to decide “whether EU’s moratorium on new GM applications is justified, given the scientific knowledge and methodologies currently available to assess risks posed by the GMOs on a case by case basis”. Before the moratorium, GM foods have only been permitted where prior approval had been granted by member states. By blocking the process of approving applications under their internal laws, the member states of the EU effectively enacted a ban on GM products, giving rise to a de facto moratorium.

At a briefing organized by the centre for International Environmental Law (CIEL) in Cancun during the WTO 5th Ministerial Conference, Robert Howse, a professor of law at the University of Michigan in the US, clarified the legal instruments that Canada will use.

“Invoking 19 articles and annexes across four agreements, Canada argues the moratorium is inconsistent with Europe’s obligations under the Sanitary and Phytosanitary (SPS) Agreement, the Agreement on Technical Barriers to Trade (TBT), the Agreement on Agriculture (AoA) and the General Agreement on Tariffs and Trade (GATT). The crux of the dispute falls under the SPS agreement, which concerns health and safety standards for plants, animals and humans, and the TBT Agreement, which covers regulations and conformity assessments”, said Mr. Howse.

Under the Agreement on Agriculture, the issue is market access. Canada feels that the EU ban is a quantitative restriction on agricultural imports. AoA prohibits the use of measures against imports that were to be converted into tariffs or certain non-tariff barriers on entry into force of the agreement.

A victory for Canada in the case would spark widespread discontent and anger in the EU and other developing countries as trade in GMOs is likely to have negative effects in many ways including the destruction of biodiversity and environment and affecting the health of the people. EU consumers clearly harbour legitimate concerns and most of these are shared by many throughout the world.

This case is likely to draw attention of many the world over and the stakes are even greater when the effects of the moratorium on third countries are taken into account. Countries that import agricultural products from Canada and also export to Europe express reservations about having their crops mixed with GM crops. If these countries cannot guarantee against gene contamination then they will be shut out of the European markets.