Abstract
In international trade law countries are allowed to put in place trade barriers and maintain them unless challenged by another country for being in violation of its international obligations. In the case of WTO members these obligations are set out in the WTO agreements. The WTO provides an opportunity for Member States to formally challenge trade barriers imposed by other Members if they believe the barrier does not comply with the provisions of a WTO agreement. The WTO agreements make no specific reference to low level presence. Thus, trade barriers put in place to deal with the presence of unintentionally comingled products must be interpreted on the basis of general WTO rules. Automatic import bans on shipments comingled with unapproved GM-products would appear not to comply with WTO obligations, but as with many differences in interpretation, clarity would have to await a challenge and a ruling from a disputes panel.
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- 1.
It has become common practice in the literature to refer to mingled product as being comingled and I have chosen to follow this unofficial convention here.
- 2.
For a discussion of tolerance levels for common unwanted presences in agri-food trade see Olsen et al. (2001).
- 3.
See Viju et al. (2011) for discussion of the Triffid flax case.
- 4.
The import ban also imposed considerable costs on the import using industry in the EU.
- 5.
The quasi-government regulator of grain quality in Canada. It is important to note that it is not officially part of the Canadian government.
- 6.
The private sector representative of the Canadian flax industry.
- 7.
Examples are various California laws banning the use of certain pesticides in agricultural production (Cash et al. 2003).
- 8.
It has been argued that the actual reason for the reticence of the EU in approving GM products is resistance from groups in civil society, both consumer groups and environmental groups. As the WTO has no direct mechanism to deal with governments wishing to put trade barriers in place due to consumer or environmentalist requests for protection, they have had to attempt to justify their trade restrictions on the basis of existing WTO rules, and in particular the SPS (see Kerr 2010 for an discussion of this issue).
- 9.
The World Organization for Animal Health is a long standing institution—the Office International des Epizootics that has been renamed. When the institution was renamed in 2003 it kept its historic and well known acronym, OIE.
- 10.
See Viju et al. (2012) for a discussion of the EU regime for approval of GM products in the context of compliance with the WTO.
- 11.
In the case of the import ban on beef produced using growth hormones the EU chose not the comply with the Panel’s ruling and instead opted to accept retaliation, as is its right under the WTO. Failing to comply with a WTO Panel’s ruling was an unprecedented decision by the EU and calls into question the credibility of international commitments. See Kerr and Hobbs (2005) for a discussion of the wider ramifications of the EU’s decision to ignore the Panel’s ruling.
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Kerr, W.A. (2016). Low Level Presence Under the WTO. In: Kalaitzandonakes, N., Phillips, P., Wesseler, J., Smyth, S. (eds) The Coexistence of Genetically Modified, Organic and Conventional Foods. Natural Resource Management and Policy, vol 49. Springer, New York, NY. https://doi.org/10.1007/978-1-4939-3727-1_24
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