Switch To Genetically Modified Agricultural Products Import Regulatory Issues. Sps Agreement

With the advent and development Genetically Modified Agricultural Products (GMAPs), many legal issues are emerging and need our effort to work out solutions. The major legal issues include: (1) the safety of GMAPs; (2) environmental issues caused by GMAPs; and (3) international trade disputes relating to the importing and exporting of GMAPs. This dissertation focuses on the international trade disputes relating to import and export of GMAPs under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) . The fundamental issue is that whether GMAPs and their traditional counterparts are "like products" under WTO Agreement. If the answer is yes, there shall be no favorable or discriminating treatments to GMAPs; however, if the answer is no, the next question turns to that to what extent GMAPs can enjoy favorable or different treatments and further, how to ensure that those treatments will not be manipulated.The first chapter of this dissertation discusses the basic legal measures which are employed by different countries to regulate the import of GMAP. Those include (1) ban of importing GMAPs; (2) approval procedures for the marketing and importing of GMAPs; and (3) labeling system of GMAPs. Since the last issue is governed by the Agreement on Technical Barriers to Trade (TBT Agreement) , the author will not discuss its details in this dissertation.The second chapter of this dissertation discusses the legislative history and background of the SPS Agreement and the key clauses of the SPS Agreement. Furthermore, the author studies the most important three cases relating to the SPS Agreement, the key issues of which are also the key issues in the GMAPs trade dispute among the United States, Canada, Argentina and the European Union.The third chapter is the main body of this dissertation. In 2003, the United State, Canada and Argentina requested consultation with the European Union for the import of GMAPs under WTO. This was the first case under WTO which relates to GMAPs and also the one which took the longest time for the Panel to decide. This perfectly reflected the complexity of this issue and the prudence of the Panel in deciding this case. The author studies the key legal issues in this case: (1) the applicable scope of the SPS Agreement; (2) the relationship between the SPS Agreement and the other international agreements relating to the import and export of GMAPs; (3) the "undue delay"; and (4) the de facto Moratorium used by the EU when approving the importation of GMAPs. However, the Panel did not two fundamental issues, the first is whether GMAPs and their conventional counterparts are "like products" under WTO Agreement, and the second is the applicability of SPS Agreement and other international agreements governing the importing of GMAPs.The last chapter of this dissertation is the experiences and lessons worthwhile China's attention. The author first discusses the Nescafe-Brand GMOs Case and the PRC legal framework of approval of importing of GMAPs. Then, the author analyzes how to maintain a sound regulatory system under WTO rules: (1) insist on a strict legal framework to GMAPs, like the EU; (2) keep a good balance between the procedural scrutiny and substantial scrutiny; and (3) adopt non-mainstream scientific opinions in risk assessment when necessary. Going forward, the author analyzes that to make room for China's development of biotechnology, manufacturing and trading of GMAPs, China shall (1) employee loose regulatory system to some specific GMAPs, and (2) use its advantageous status of being a developing country under SPS Agreement.