Makane Moïse Mbengue

The Precautionary Principle: Torn between Biodiversity, Environment-related Food Safety and the WTO

At the WTO, the precautionary principle/approach is considered as a protectionary mechanism, i.e. and alleged justification for potentially WTO-illegal trade restrictions. This article presents a survey of some pronouncements of the WTOs Dispute Settlement Body including two case studies at opposite ends of the spectrum with regard to the operationalisation of the PP. The Cartagena Protocol on Biosafety has gone further than any other multilateral environmental agreement in specifying the application of precaution. It regulates the measures a member country may take in order to limit or ban the importation of living modified organisms such as seeds or GM commodities. On the other hand there is the Codex Alimentarius that is the WTOs reference point for food safety. Although it has discussed precautionary measures extensively, consensus looks unlikely here in the near future. We shall limit our discussion of the Codex to environment-related food safety, specifically GM food.

The Settlement of Trade Disputes: Is There a Monopoly for the WTO?

This article examines the question of whether the WTO enjoys a monopoly over the settlement of trade disputes by examining the historical context of the Dispute Settlement Understanding of the WTO, including early dispute resolution under the GATT and the goal behind the transformation leading to the WTO of curbing potential unilateralism within the trade regime. It argues that this culminated in the intention to create a centralized rule-based system for the settlement of disputes, rather than an intention to create a monopoly for the WTO. The article examines potential threats to the so-called monopoly, in particular with the proliferation of Regional Trade Agreements (RTAs) and the development of Mutually Agreed Solutions (MAS). It also addresses relevant case law to demonstrate that the WTO does not and was not intended to enjoy a monopoly over trade disputes. Rather, the WTO pursues the objective of strengthening the multilateral trading system rather than encouraging unilateral trade action, which would not appear to be undermined by resort to the dispute settlement mechanisms of relevant RTAs or other dispute settlement mechanisms.