Environment
Compromise Germ
interview with Christine Noiville, university of Paris

Courrier de la planète: Does the precaution principle, as it is defined in the Biosafety Protocol constitute a new legal standard in the international law, or is it merely a new tool for decision-making?

Christine Noiville: Indeed, a controversy does exist about the precautionary principle value. Shortly, some think it is a political principle merely aiming at guiding State action, others consider it as a legal principle to be forced upon States as well as individuals, which could be used by a judge to declare such measure is illegal or to involve someone’s responsibility. Facing the international law, when the case of the precautionary principle is discussed on whether it is a programmatory principle or a customary principle coming under the international law, it is dealing with the same question. The unequal capacity of States first to successfully implement the precautionary principle in their relationships with other States, and then to draw inferences from this principle.

owever, in the specific case of the Biosafety Protocol, it seems to me that the question of the Precautionary principle’s legal value should be taken differently. Besides this text participates to the operational implementation of precaution on the ground of the marketing of living modified organisms (LMOs) through assessment, management, labeling… procedures, it is understanding precaution as far more than a mere political recommendation even though the preamble clearly refers to it as a "principle". Indeed, to two clauses (articles 10.6 and 11.8) without explicitly mentioning the principle, clearly refer to it and mandate a State to reject or postpone any LMO import if, according to them, scientific uncertainty on its potential risks remains. The Biosafety Protocol does not only prompt the States to cautious, it also provides them with the possibility to apply the principle on their trade relationship with other States. Nevertheless one thing is what the Protocol may allow, another thing is to understand that this legal text on environment should be carefully examined before it finds its specific place into the larger context of the international law as it is directly related to trade.

Courrier de la planète: How precisely does the Protocol’s Precaution Principle work with the approach adopted by the WTO’s SPS Agreement and the Codex Alimentarius? Are conflicts made possible?

Christine Noiville: First of all, one shall understand the stakes related to this matter. Whenever a country rejects importation of LMOs from another State because they consider that doubts exist about this LMO harmlessness, can they base their decision on the Precautionary principle? Legally, we already said it, such a measure is not a problem facing the Protocol itself as provisions were made in that sense. However, although that measure has environmental reasons, it also affects trade. It brings out a double question: should it be compatible with the general rules of international trade, that is to say WTO’s rules? And if so, what exactly follows from this?

About the first question, compatibility between the Protocol and WTO rules was acknowledge as the main difficulty at the very beginning of the negotiations. The question was: to what extend may the protocol derogate to international trade general rules about the LMOs, and will the jurisdiction in charge of a conflict settlement admit that LMOs are then submitted to an exceptional regime? The question sounds far clearer than the solution is. Almost an understatement when we look upon the Protocol’s procrastination. It seems to contradict itself, and finally fails to establish any classification. Nothing has changed since the discussions on trade and environment undertaken a few years ago. The same vagueness is to be found in the clauses on conflict settlement: if a conflict appears, as the protocol only foresees conciliation hypotheses, you must turn to the Convention on Biological safety, which send the conflicts back to the International Court of Justice (ICJ) >Read page 31. However, it vagueness remains since the question of the links between the Protocol and the WTO rules has not been settled.

We generally escape this vagueness by this way: if the conflict occurs between two Member-States of the Protocol, the ICJ should be competent to settle the dispute. Otherwise, if the conflict for instance occurs between a European country and the United States, which did not sign the Protocol, the WTO would then be relevant. Although this view may remain a myth because in fact, it is the WTO that will be concerned whenever major economical stakes are involved; violation of the WTO rules will then be called upon instead of the Protocol’s rules; So finally, this question is addressed to the WTO, it is logically up to the WTO to answer. Should we deplore it?

The second question may deserve a less disastrous answer than the current, dominant opinion aims to convey. On the one hand, the WTO may not ignore the Protocol, which actually settles the specific law on LMO trading, which actors declare to be willing to link it with the other existing rules. On the other hand, supposing they would refuse to take into account the Protocol, and stick to their own rules, a careful study of their latest jurisprudence (hormones, salmons, agricultural products, asbestos…) shows that the different WTO agreements admit of a form of precaution in international trade relationships. This form of precaution is undoubtedly stricter than the protocol’s, even though we would need time to stand back and judge better. Meanwhile, we must not forget that the International Court of Justice, which recently had to give a decision on the precautionary principle, did not think it necessary to to actually apply it…

Courrier de la planète: Will some States use the precautionary principle on protectionist purposes? What are the necessary procedures concerning risk assessment, share of information, etc. to avoid any "protectionist drift"?

Christine Noiville: This risk indeed cannot be denied. Although the precautionary principle’ only original aim is cautiousness, it is obviously tempting for a State to use it on other purposes, and firstly, for protectionist purposes: the risk a country would accept if it were produced on its own territory, they might reject it under cover of precaution as it comes from abroad. The Protocol neither fills this gap as they finally did not lay down any non-discriminatory principle between home-LMOs and foreign LMOs. This leads to a double necessity. In the first place, necessary efforts should be undertaken in terms of assessment, information sharing, etc. in order to harmonize practices on this field, as it was particularly underlined in the Cartagena Protocol, which also takes into account that these efforts may vary according to the technical capacities of each country (thus relating the precautionary principle to the common, though differentiated responsibility principle). In the second place, and more practically, "bounds" should be set, that is to say the conditions of application of the precautionary principle. Regarding this, we must consider the fact that both in Europe and at the WTO various criteria, thresholds, markers are being designed progressively determining the conditions in which it is legal or illegal to restrain trading of a product for precautionary reasons: the risk should at least be plausible, the measure adopted should remain provisional, accompanied with deeper assessment, in proportion to what is known about the risk, etc.

We should even go further and say that these much-needed markers will never meet every difficulty. Especially because "plausible" and "provisional" are subjective criteria. Behind them, there are some value judgments on the need to take the risk for such or such LMO. In addition, the essential point is precisely to know how these value judgments may help reinforce a trade restraint that is definitely for ecological and sanitary purposes. The Biosafety Protocol actually tries to manage with this matter when expressing that "social and economical incidences" of LMOs might be "taken into account" by States prior to any import. However, the legal reach of this disposal remains limited. As for the WTO, today they scarcely admit that this kind of consideration may interact in the appraisal of disguised restraints. Nevertheless, facing uncertainty – occurrence for which the precautionary principle is called to apply - cultural considerations and consumers’ reject for such type of product and risk will inevitably rush behind, more than ever. This lead us to discuss the question whether our way to appraise protectionism should inevitably evolve considering the precautionary principle