THE ACADEMIC EXPERTS BRIEF FOR THE WTO GMO DISPUTE: a summary
http://www.lancs.ac.uk/fss/ieppp/wtoamicus/

An international team of scholars of science, technology and society from the US and UK has submitted an Amicus Curiae brief to the WTO disputes resolution panel on the Biotech Products (EC: Measures affecting the Approval and Marketing of Biotech products) case. The Brief

FULL ACADEMIC EXPERTS' AMICUS BRIEF

1.)  The background to the WTO GM dispute
2.)  The analysis
3.)  Recommendations to the WTO panel
4.)  Biographical details of the academic expert authors (in alphabetical order)
 

1.)  The background to the WTO GM dispute
http://www.lancs.ac.uk/fss/ieppp/wtoamicus/background.htm

In disputes launched in the World Trade Organisation (WTO) in 2003, the US, Canada and Argentina are challenging the European Union over its de facto moratorium on the approval of genetically modified (GM) foods and crops (European Communities – Measures Affecting the Approval and Marketing of Biotech Products WT/DS 291, 292 and 293). The complaining countries are the largest producers of GM crops and argue that the European Union’s has violated WTO Agreements.

Australia, Brazil, Chile, China, Chinese Taipei, Colombia, El Salvador, Honduras, Mexico, New Zealand, Norway, Paraguay, Peru, Thailand and Uruguay have registered their interest in the disputes as third parties affected by the outcome.

A three person Panel of trade experts has been appointed to adjudicate the three disputes as a single panel (the 'WTO GM dispute'). The parties will have filed their submissions by the end of May 2004, and the first oral hearing is expected in early June. A decision is expected in the latter part of 2004, which may be followed by an appeal on points of law to the Appellate Body of the WTO.

At least two independent groups acting in the public interest are intervening in the dispute settlement process by making submissions to the WTO Panel in the form of amicus curiae ( or 'friend of the court') briefs. One is a trans-Atlantic group of expert academics (1) and the other an international coalition of public interest groups spanning Europe, the US, Canada, Argentina, Chile and India.(2) In different but complementary ways, these groups are arguing that international trade and risk assessment rules should not be interpreted by the WTO so as to thwart the capacity of countries to establish the environmental, social and health standards, and risk assessment processes for GM crops and food, that they judge to be necessary in their particular national circumstances. [Details about the challenges are contained in the accompanying notes.]

The WTO

Headquartered in Geneva, the WTO was established in 1995 to oversee the regulation of international trade under the WTO Agreements – a package of international treaties aimed at promoting global trade liberalisation (see www.wto.org). The WTO has over 140 Member countries, including the union of countries that make up the European Communities (as it is known for WTO purposes).

WTO Members who feel that their trade benefits under the WTO Agreements have been undermined by another Member may complain to the WTO’s Dispute Settlement Body. The Dispute Settlement Body – comprising all WTO Members – resolves disputes with the assistance of ad hoc panels of experts and, on appeal, Members of a permanent group of seven international trade lawyers known as the Appellate Body.

The case against Europe

In the WTO GM dispute, the complaining countries argue that:

What has been happening in Europe?

By 1998, there was growing public opposition to GM crops and food across Europe and increasing debate about the risks of genetic modification. In their discussions of applications to import or grow GM crops, several Member States were expressing concern at the levels of uncertainty and the potential for harmful effects. As a result, no new approvals of GM products were agreed after 1998 and new environmental and food safety rules for GM food and crops were negotiated:

Since 1998, research has been conducted into a range of GMO risk issues. If such research had not been done, these GM crops may have been allowed to be grown and the environment damaged as a result.

The significance of the case

At a time when GM food continues to cause controversy worldwide, and the legitimacy of the WTO itself has come under question, the WTO GM dispute looks set to be one of the most challenging in the WTO’s history. The outcome of the WTO GM dispute will have major ramifications for the development of on the environmental, social and health aspects of trade policy and is likely to have both substantive and symbolic importance worldwide.

The consequences of the European Union losing these cases include:

Other challenges in the WTO may follow, including an attack on the European Union’s underlying regulatory framework requiring monitoring and labelling of GM products

1 Professors Brian Wynne and Robin Grove-White of Lancaster University; Professor Sheila Jasanoff and Mr David Winickoff of Harvard University; and Professor Lawrence Busch of Michigan State University. All are internationally respected social scientists in the science-in-society and GMO risk evaluation fields; two of them are lawyers.

2 GeneWatch UK ; Foundation for International Environmental Law and Development (FIELD, UK); Five Year Freeze (UK); Royal Society for the Protection of Birds (RSPB, UK); The Center for Food Safety (USA); Council of Canadians; Polaris Institute (Canada); Grupo de Reflexion Rural Argentina; Center for Human Rights and the Environment (CEDHA - Argentina); Gene Campaign (India); Forum for Biotechnology and Food Security (India); Fondacion Sociedades Sustentables (Chile); Greenpeace International.

2.)  The analysis
http://www.lancs.ac.uk/fss/ieppp/wtoamicus/analysis.htm

The Biotech Products dispute centres on the interpretation of key provisions of the Sanitary and Phytosanitary Agreement, especially those concerning 'scientific justification' and 'risk assessment.' As exemplified in the US submission, risk assessment has been conventionally understood as a factually grounded, objective, and value-free, analytic exercise requiring (1) precise identification of possible harms to human health and the environment, and (2) use of formal, expert-based assessments of the likelihood of such harms. Public values and concerns are thought to be relevant and appropriate only in the phase of risk management, which is perceived to follow risk assessment and remain separate from it.

By contrast, the Brief shows that recently both national and international regulatory frameworks have been developing in ways that call into question this account of risk assessment. Key problems for the 'conventional' account of risk assessment include:

The Brief offers – and urges the WTO now to rely upon – a characterization of risk assessment that adequately embraces recent scholarship and practice (which the US submission has failed to do).

'Low certainty, low consensus'

Risk assessment is neither a single methodology, nor a 'science'. Rather, 'risk' situations lie within a matrix defined by two variables: certainty and consensus. At one extreme are cases characterized by high certainty with respect to the knowledge base to be relied upon, and high consensus with respect to the parameters of the scientific issues to be addressed, the analytic methods to be applied, and the values to be protected. At the other extreme are low certainty and low consensus on such matters. The nature and adequacy of any risk assessment will depend on the position of an issue within this matrix - and GMO technologies fall squarely in the low certainty, low consensus range:

Previous WTO dispute cases such as Importation of Salmon (1998) and Prohibition of Asbestos and Asbestos Products (2001) were characterized by high certainty and high consensus with respect to the basic parameters, scientific knowledge, analytic methods, and values relied upon in risk assessment.

3.)  Recommendations to the WTO panel
http://www.lancs.ac.uk/fss/ieppp/wtoamicus/recommendations.htm

1. Relevant scholarship: full consideration should be given to the range of relevant scholarship, prominently including the social sciences, for helping interpret the meanings of key terms such as 'risk', 'risk assessment', 'rational', 'objective', and 'sufficient scientific evidence.'
2. Necessary limitations of science: full recognition should be given to the fact that risk assessments of GMOs conducted within specific national or institutional settings are necessarily limited and partial, being constrained by the decision-making cultures within which such assessments are produced.
3. Public deliberation and cultural context: risk assessment is not a singular concept but one that has to vary with context. Thus processes of public deliberation and review are often essential components of risk assessment, especially for low certainty, low consensus technologies such as GMOs, and most especially in relation to the transfer of the technological products across national borders.
4. No 'undue delay': in light of the developing status of risk assessment techniques associated with GMOs; the important role of public confidence in regulating new food technologies; and the time which the European Commission has committed to collecting additional necessary information for better risk assessment of GMOs (in order to conduct, e.g., farm-scale trials and public consultations), the alleged European moratorium should not be deemed an “undue delay”.
5. WTO's role: the appropriate role of the WTO dispute resolution panel should be that of an administrative tribunal reviewing the adequacy of executive decision-making processes – not that of an adjudicatory body reviewing the substantive merits of the parties' risk assessments.

4.)  Biographical details of the academic expert authors (in alphabetical order)
http://www.lancs.ac.uk/fss/ieppp/wtoamicus/

Lawrence Busch is University Distinguished Professor of Sociology, Director of the Institute for Food and Agricultural Standards, and Director of the Partnerships for Food Industry Development – Fruits and Vegetables project at Michigan State University. He is coauthor or coeditor of a number of books including Plants, Power, and Profit: Social, Economic, and Ethical Consequences of the New Biotechnologies, as well as more than 100 other publications. He is past president of the Rural Sociological Society and past president of the Agriculture, Food, and Human Values Society. He recently was named Chevalier de l’Ordre du Mérite Agricole by the French government and has been long been a consultant to the International Service for National Agricultural Research and the Food and Agriculture Organisation of the United Nations.

Robin Grove-White is Professor of Environment and Society at Lancaster University, within the Institute for Environment, Philosophy and Public Policy. He is also a member of the UK Government’s Agriculture and Environment Biotechnology Commission, and has been a Board Member of the UK Forestry Commission, an adviser to the Royal Commission on Environmental Pollution on GM crop regulation, and a specialist adviser to several Parliamentary committees.

Sheila Jasanoff is Pforzheimer Professor of Science and Technology Studies at Harvard University’s John F. Kennedy School of Government. She has held faculty appointments at Yale, Oxford, Kyoto and Cornell, where she founded and chaired the Department of Science and Technology Studies. She has been a Fellow at the Berlin Institute for Advanced Study (Wissenschaftskolleg). Her research centers on the use of science in legal and political decisionmaking, with particular emphasis on risk management and science advice. Her books on these topics include The Fifth Branch, Science at the Bar, and Designs on Nature (forthcoming), a comparative study of biotechnology policy in Europe and the United States. Jasanoff has served on the Board of Directors of the American Association for the Advancement of Science and as President of the Society for Social Studies of Science. She has advised the European Commission, the US Environmental Protection Agency, and the US Congress on issues raised by this brief.

David Winickoff is Adjunct Lecturer in Public Policy at Harvard University’s John F. Kennedy School of Government, and in July 2004 he will become Assistant Professor of Bioethics and Society at the University of California at Berkeley. His research focuses on the convergence of law, science and ethics, especially in the areas of international trade, biotechnology, public health, and the environment. He holds degrees from Yale University, Cambridge University and Harvard Law School.

Brian Wynne is Professor of Science Studies and a member of the Centre for the Economic and Social Aspects of Genomics at Lancaster University. He has published widely in the international peer-reviewed literature on risk, scientific knowledge and public policy, and public responses to risk and other scientific knowledge. He was Research Leader on Risk at the International Institute for Applied Systems Analysis, and between 1994 and 2000, a member of the Management Board and Scientific Committee of the European Environment Agency. He is currently a member of the London Royal Society's Science in Society committee, and chair of the advisory board of the UK Economic and Social Research Council's ‘Science in Society’