The challenge facing developing countries

Many developing countries are exporters of conventional agricultural products. They are concerned with export opportunities, especially towards markets like the EU where a GM free label is important. These countries maintain this GM status by refraining from planting any type of GM crop in order to avoid cumbersome documentation and traceability requirements, as well to meet consumers’ expectations.

279 _{Sarah Lively, ‘The ABCs and NTBs of GMOs’ (n 73 ) p. 243.}

280_{Jules Pretty ’contested risks and benefits’ (n 59) p. 250;Maria Lee, EU Regulation of GMOs (n}

132)pp 156–7.

281 _{‘WTO and Genetically Modified Organisms (GMOs)’, Public Citizen,}

http://www.citizen.org/trade/wto/agriculture/gmo/. Accessed 18 August 2009.

282 _{‘African Groups Condemn Bush Administration’s WTO Challenge of European GMO Policies;}

GMOs Not Answer to African Hunger’ Public Citizen (18 June 2003),

136 The EU’s strict import measures have implications for developing countries. Developing countries relying on exports of conventional agricultural products to the EU find it difficult to adopt GMOs for domestic consumption in fear of losing their export opportunities. Maintaining ‘GM-free’ status allows them to avoid cumbersome documentation and traceability requirements, as well to meet consumers’ expectations.283

This perception has contributed to some African countries refusing food aid that includes GMOs. In 2002, Zambia declined an American food aid offer of GM maize. In particular, the ‘[m]ain Zambian concerns relate to uncertainty and regarding the safety of GM maize for human consumption, as well as the possible contamination of local varieties which could allegedly imply rejection by EU Countries of Zambian food exports.’284

In May 2004, the South African Development Community (SADAC) approved guidelines on handling GM food aid. These guidelines fully endorsed the recommendation of the SADAC Advisory Committee on Biotechnology and Biosafety which reflected the concerns of African countries relating both to possible adverse effect on human health and the environment, and to the fact that GM imports may jeopardise exports of conventional agricultural products.285

The US wanted the Biotech dispute’s outcome to ‘serve as a warning to other WTO Members, particularly developing countries, not to restrict access to their markets banning or restricting GMOs.’286_{In a similar case over beef hormones, once the US}

started a WTO trade complaint, no countries took steps to ban them.287

US officials also believed that a challenge was necessary to discourage other countries, especially those in the developing world, from using the EU regulatory approach as the basis for their own regulations on agricultural biotechnology

283 _{Simonetta Zarrilli, National and Multilateral Legal Frameworks, (n 162) p.7.}

284 _{Ibid, p.7.In July 2002, Zambia allowed the food aid into the country provided that it was milled}

immediately upon arrival to avoid any possible contamination of local varieties

285 _{Ibid, p. 8-9.}

286_{‘USTR Seeks Industry Input on Possible Challenge in Biotech Dispute’, Trade Observatory, 19}

February 2002, http://www.tradeobservatory.org/headlines.cfm?refID=17257 access 12 May 2010.

287 _{Neither the U.S. nor Canada has changed its domestic standards for the use of growth hormones}

in meat production, also, the international standards on growth hormones in beef have not been strengthened in response to the European ban, see Sebastian Princen, EU Regulation and

137 products, which could result in even wider-scale disruptions to US trade. President Bush was concerned that stringent EU restrictions led to the refusal of several southern African nations to accept American food aid that included GM corn, further exacerbating famine. EU officials vehemently rejected that charge.288

Palmer argues that ‘GM exporters could use the Panel’s interpretation of the SPS Agreement, and its reasoning on the relevance of international law, to undermine efforts by WTO Members to:

• regulate GM imports;

• implement and negotiate new commitments under the Biosafety Protocol; or • regulate other products that might cause harm to human health and the environment.’289

‘Because plaintiffs almost always win WTO challenges, mere threats of challenges often result in the challenged country changing its policy. In this GMO case, the United States figured that if the claim is to succeed, mere threats against other countries might suffice to quash other similar rules.’290 _{The US already threatened}

to use the WTO dispute procedure against a number of small countries considering GMO legislation or bans, such as Bolivia, Croatia and Sri Lanka. 291

Reports of WTO disputes guide Panels of future WTO disputes, which will in turn influence the future regulatory behaviour of WTO Members.292 _{In other words, the}

findings of the Reports are of importance to other WTO Members wanting to regulate GM imports. The lack of international consensus on how to regulate

288 _{US. vs EU: the Pew Initiative on Food and Biotechnology (n 276) p. 12; Council for Responsible}

Genetics, ’Coalition of the Willing’ (n 110).

289 _{Alice Palmer, ‘The WTO GMO Dispute: Implications for Developing countries and the need for}

an appeal’, GeneWatch UK, (November 2006), p.5-6, available at

http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/WTO_Biotech_case_d csummaryfinal_1.pdf . accessed 21 June 2010.

290 _{The GMO Dispute: Bush Administration Attack on European Food Safety Policy Latest}

Challenge to WTO’s Legitimacy’, Public Citizen (n 174).

291 _Ibid.

292 _{Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R,}

WT/DS11/AB/R, adopted 1 November 1996,adopted Panels Reports ‘create legitimate expectations among WTO Members, and, therefore, should be taken into account where they are relevant to any dispute.’

138 GMOs, made it hard to conclude the Panel Reports. However, when it was finally published, the Report had no clear answers; instead it increased tension at the international level, which most probably led to fragmentation of international law.293 _{Greenpeace explained that developing countries fear WTO enforcement}

mechanisms, and losing a case could cost millions of dollars.294