Gently Modified Operations: How Environmental Concerns Addressed through Customs Procedures Can Successfully Resolve the US-EU GMO Dispute

Abstract

Genetically modified organisms ("GMOs") inspire heated policy competition among countries. At the heart of the GMO dispute is a fundamental difference in belief about the impact of GMOs on the economy, the environment, and human health. The GMO exporting world, lead by the United States, encourages and facilitates easy GMO entry into the economy and the food supply. The U.S. sufficiently trusts the science suggesting a limited negative impact of GMOs. The European Union ("EU"), influenced by the precautionary principle that new technology should not be adopted until it can be proven safe,4 desires definitive scientific proof that GMOs will not irreparably damage the environment or human health. The World Trade Organization ("WTO") lends support to the United States' understanding on the matter. The United Nations under the Cartagena Protocol on Biodiversity tends to support a more EU-styled approach to GMO proliferation.

The US and EU perspectives on GMOs clashed at the WTO in 2003. In 1998, the EU commenced a de facto moratorium on allowing GMOs to enter the European food supply. Though a GMO approval regime was in place, no new GMOs gained the requisite permission for importation between 1998 and 2003. GMO exporting countries, the United States, Canada, and Argentina, challenged the EU moratorium under the WTO agreements. The case is known as EC-Biotech. The WTO Dispute Settlement Unit ("DSU") constituted a panel in 2003 and issued its final panel report in 2006. The DSU found the EU in violation of Sanitary and Phytosanitary Measures Agreement ("SPS Agreement"). The EU was given until June 2008 to make changes to its GMO regime in accordance with the WTO DSU recommendation.

This Note assesses the ability of the WTO decision to allow for the easy and successful importation and entry of GMOs into the EU market while addressing the EU's environmental concerns. Part I will outline the environmental threats posed by GMOs. Part II will explain the international agreements affecting trade of GMOs, the EU GMO regulatory regime, and the competencies of the EU Member States regarding GMOs. Part III will outline the international customs system, explain the EU level customs system, and highlight Member States' powers within the EU customs system. Part IV will summarize the EC-Biotech case before the WTO and trace its impact on the GMOs importation and customs regimes in the EU.

Part V will explore possible legal solutions which both allow for the easy and successful importation of GMOs into the EU and address the EU constituencies' environmental concerns. Each proposed solution will also take into account the institutional and political realities of the EU, thereby serving as a gauge for the likelihood of the adoption of each such solution. The final part will summarize and conclude.

Keywords: GMO, customs, international trade, EU, European Union