Cartagena Protocol on Biosafety to the Convention on Biological Diversity (29 January 2000) 39 ILM 1027, also available at <http:// www.biodiv.org> (last visited April 21, 2009) [hereinafter “the Protocol”].

See United Nations Conference on Environment and Development: Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818, at pmbl. (entered into force December 29, 1993) [hereinafter CBD].

See e.g. Ministry for the Environment “GM Current Controls in NZ and the Royal Commission's Recommendations” (October 2001) Press Release; Report of the Royal Commission on Genetic Modification (Royal Commission on Genetic Modification, Wellington, 2002).

See Draft Report of the Extraordinary Meeting of the Conference of Parties for the Adoption of the Protocol on Biosafety to the Convention on Biological Diversity, Conference of the Parties to the Convention on Biological Diversity, 1st ext. mtg. at 10, U.N. Doc. UNEP/CBD/ExCOP/1/L.2/Rev.1 (1999).

Article 1 of the Protocol.

Rio Declaration on Bio Diversity (5 June 1992) A/CONF/151/26/REV1; 31 ILM 874, Art 15.

Article 7(2) of the Protocol clearly sets out that “intentional introduction into the environment” does not refer to GMOs intended for direct use as food or feed, or for processing. Article 11 of the Protocol deals with these types of GMOs.

Cartagena Protocol on Biosafety, Art 7(1) and (2). This means that the Protocol effectively fails to cover 90 per cent of GMO goods.

Robert B. Horsch & Robert T. Fraley, Biotechnology Can Help Reduce the Loss of Biodiversity, in Protection of Global Biodiversity: Converging Strategies 49 (Lakshman D. Guruswamy & Jeffrey A. McNeely eds., 1998) cf. Lakshman D. Guruswamy, “SUSTAINABLE AGRICULTURE: DO GMOS IMPERIL BIOSAFETY?”, 9 Ind. J. Global Legal Stud. 461 at note 41.

Lakshman D. Guruswamy, “SUSTAINABLE AGRICULTURE: DO GMOS IMPERIL BIOSAFETY?”, 9 Ind. J. Global Legal Stud. 461, 469.

Ibid at note 42.

Ibid at 470.

David Hughes, Tim Jewell, Jason Lowther, Neil Parpworth and Paula de Prez, “Environmental Law”, 4th Edn., (2002), p.353.

See Union of Concerned Scientists, Industrial Agriculture: Features and Policy, at http://www.ucusa.org/food/id.ag.htm (last modified Oct. 2008).

Ibid.

Lakshman, Supra note 10 at 474.

Horsch & Fraley, Supra note 9 at 69-70.

John H. Barton, Biotechnology, the Environment, and International Agricultural Trade, 9 Geo. Int'l. Envtl. L. Rev. 95, 95 (1996).

Lakshman, Supra note 10 at 475.

European Community--Measures Concerning Meat and Meat Products (Beef Hormones) (16 January 1998) WT/DS48/AB/R and WT/DS26/AB/R (Appellate Body).

Beef Hormones, para XVI. The United States argued that the EU's refusal breached the SPS Agreement because it was not based on existing international standards or supported by science (para XLIII).

Dorothy Nelkin, Philippe Sands and Richard B Stewart, Genetically Modified Organisms: Forward the International Challenge of Genetically Modified Organism Regulation, 8 NYU Envt’l LJ 523, 534 (2000).

The Presidential and Congressional Commission on Risk Assessment and Risk Management in the United States has been examining a framework for Environmental Health Risk Management. In their reports, published in January 1997 and April 1997, they have produced a framework in which risk management will be conducted by the U.S. Government. Presidential & Cong. Comm'n on Risk Assessment & Risk Management in Regulatory Decision-making, 1 Final Report (1997); Presidential & Cong. Comm'n on Risk Assessment & Risk Management in Regulatory Decision-making, 2 Final Report, supra.

Lakshman, Supra note 10 at 480.

Gary E. Marchant, The Precautionary Principle: An Unprincipled Approach to Biotechnology Regulation, 4 J. Risk Res. 143, 151-52 (2001).

David J Schnier, Genetically Modified Organisms and the Cartagena Protocol, 12 Fordham Envtl L J 377, 413 (2001).

Terence P Stewart and David S Johanson, A Nexus of Trade and the Environment: The Relationship Between the Cartagana Protocol on Biosafety and the Agreement on the Application of Sanitary and Phytosanitary Measures of the World Trade Organisation, 14 Colo J Int’l Envtl L & Policy 1, 25(2003).

Schnier, Supra note 26 at 413.

Rio Declaration on Environment and Development, June 16 1992, princ. 15, 31 I.L.M. 874.

In contrast See the Bamako Convention (30 January 1991) 2101 UNTS 36508, which tends to have lower thresholds of risk to justify precautionary action.

Cartagena Protocol, Supra note 1, Art. 10(6).

Cartagena Protocol, Supra note 1, Art. 10(6).

Ibid.

Cartagena Protocol, Supra note 1, Art.15.

Cartagena Protocol, Supra note 1, Annex III, para 4.

Cartagena Protocol, Supra note 1, Annex III, para 3.

Anais Kedgley Laidlaw, Is It Better to be Safe than Sorry? The Cartagena Protocol versus the World Trade Organisation, 36 Vict. U. Wellington L. Rev. 427,436 (2005).

The Agreement Establishing the World Trade Organization, 1994 WL 761480 (Apr. 15, 1994). The Preamble of the WTO states: “Recognizing that [the Member States] relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.” (Emphasis supplied)

Trade Negotiations Committee, Decision on Trade and Environment, MTN.TNC/W/141 (Mar. 29, 1994).

Daniel C. Esty, Greening the GATT: Trade, Environment, and the Future 53 (1994) (noting that the WTO’s ‘substantive rules, which predate the emergence of the environment as a critical issue, are too narrowly focused on the commercial benefits of trade facilitation and must be updated to reflect environmental considerations.’), cf. Gretchen L. Gaston and Randall S. Abate, The Biosafety Protocol And The World Trade Organization: Can The Two Coexist?, 12 Pace Int’l L. Rev. 107,116 (2000).

Julie B. Master, Note, International Trade Trumps Domestic Environmental Protection: Dolphins and Sea Turtles are ‘Sacrificed on the Altar of Free Trade’, 12 Temp. Int'l & Comp. L.J. 423, 431 (1998).

See Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 (entered into force January 27, 1980), Art. 31.

The resulting saving clause in the Preamble to the Protocol states: Recognizing that trade and environment agreements should be mutually supportive with a view to achieving sustainable development,

Emphasizing that this Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements,

Understanding that the above recital is not intended to subordinate this Protocol to other international agreements.

Vienna Convention Supra note 42, Art. 31(2).

See David B Sandalow, The Biosafety Protocol: What It Does and Does Not Do (United States Department of State International Information Programs, Washington DC, 2000), cf. Anais Kedgley Laidlaw, Is It Better to be Safe than Sorry? The Cartagena Protocol versus the World Trade Organisation, 36 Vict. U. Wellington L. Rev. 427, note 59.

Kristen Dawkins, Biotech - From Seattle to Montreal and Beyond: The Battle Royale of the 21st Century, (February 2000), available at <http:// www.biotech-info.net> (last visited April 18, 2009).

See Biosafety Protocol, Supra note 1, para. 2 allowing non-Parties to participate as observers in the proceedings of the Protocol.

Gretchen L. Gaston and Randall S. Abate, The Biosafety Protocol And The World Trade Organization: Can The Two Coexist?, 12 Pace Int'l L. Rev. 107,121 (2000).

Ibid at 122.

Ibid.

Beef Hormones, Supra note 20, para 28.

Beef Hormones, Supra note 20, para 125.

Beef Hormones, Supra note 20, para 124.

Ibid.

Jan McDonald, Big Beef up or Consumer Health Threat?: The WTO Food safety Agreement, Bovine Growth Hormone and the Precautionary Principle, 15 EPLJ 115, 125 (2000).

Japan--measures affecting agricultural products (Japan case) (22 February 1999) WT/DS76/AB/R (Appellate Body).

Japan case, Supra note 56, para 92.

Japan case, Supra note 56, para 80.

Japan case, Supra note 56, para 89.

Japan case, Supra note 56, para 92.

See “The State of Trade Law and the Environment: Key Issues for the next Decade” (Working paper, International Institute for Sustainable Development, Winnipeg and the Centre for International Environmental Law, Washington DC, 2003) 42,42 and 44.

Laidlaw, Supra note 37 at 453.

WTO Decision on Trade and Environment (Adopted by Ministers at the Meeting of the Uruguay Round Trade Negotiations Committee, Marakesh, 1994).

Supra note 61 at 5.

Ryan Winter, Reconciling the GATT and the WTO with Multilateral Environmental Agreements: Can We Have Our Cake and Eat It Too?, 11 Colo J Int’l Envtl L & Pol'y 223, 241 (2000).

Gregory Shaffer, The World Trade Organisation Under Challenge: Democracy and the Law and Politics of the WTO's treatment of Trade and Environmental Matters, 25 Harv Envtl L Rev 1, 24 (2001).

Ibid at 20.

The Sixth WTO Ministerial Conference was held in Hong Kong from 13 to 18 December 2005.

Laidlaw, Supra note 37 at 462.

WTO Doha Ministerial Declaration (WT/MIN(01)/DEC/1, Geneva, 2001), para 31(i).

Ibid.

Report of the Chairperson of the CTE Special Session to the Trade Negotiations Committee (15 July 2003) TN/TE/7 and Suppl.

Paulette L Stenzel, Why and How the WTO must Promote Environmental Protection, 13 Duke Env L & Pol'y F 1, 20 (2002).

John H Jackson, “The Jurisprudence of GATT and the WTO”, Cambridge University Press, Cambridge (2000) p.432.

Ibid.

Stenzel, Supra note 73 at 29.

Marrakech Agreement Establishing the WTO, (1994) 33 ILM 1168, Art. IX(4).

Marrakech Agreement, Ibid, Art. IX(2).

Laidlaw, Supra note 37 at 465.

Ibid at 466.

World Trade Organisation “World Trade Report” (14 August 2003) Press Release, 186.
Ibid.
A campaign was launched on 11 September 2003 (the date that the Cartagena Protocol on Biosafety entered into force) called "Bite back: WTO hands off our food". The aim of the campaign is to force the WTO to deal with the issue of GE in a way that is consistent with the protection of the environment and consumer choice, cf. Laidlaw, Supra note 37 at note 202.