In order to determine the purposes pursued by Austria T-25, the Panel reviewed several documents: (1) the document entitled “Reasons for the decision of the Republic of Austria to prohibit the placing on the market of GM maize line T25,”
which was sent by Austria to the Commission in support of its safeguard measure, (2) a document submitted by Austria to the Commission for an Experts Meeting held in Brussels in January 2004, and (3) a letter addressed to the Commission in February 2004 by the Austria Federal Minister for Health and Women.
45 Id. para. 7.2556.
46 Id. para. 7.2559.
31
Based on the foregoing documents, the Panel found that the measure was adopted to address four concerns: (1) the spread of pollen to cultivated surrounding fields (co-existence); (2) long-term ecological effects in environmentally sensitive areas; (3) allergenicity and toxicity; and (4) the development of antibiotic resistance.47 After figuring out the purposes of maize T25, the Panel proceeded to examine whether these purposes fell within one of the categories of purposes which characterized SPS measures in Annex A (1) of the SPS Agreement. The first two concerns are discussed and analyzed as follows:
(1) Spread of pollen to cultivated surrounding fields
The Panel first clarified that Austria did not claim that the measure was intended to prevent environmental effects associated with out-crossing between T25 maize and conventional maize. Rather, Austria emphasized the need for “special measures monitoring the possibility; this is mostly regarded as the safe-spread of pollen to fields in the surrounding area which are cultivated with conventional maize.”48 Based on Austria’s statement, the Panel considered that the real concern of Austria was the possible loss of economic value to farmers who can no longer market their crops as non-GMO crops as a result of the existence of unwanted, out-crossed plants
47 Id. para. 7.2572.
48 Id. para. 7.2575.
32
in their fields.49
The Panel recalled that the term “other damage” as it appears in Annex A (1)(d) of the SPS Agreement includes economic damage which arises from the entry, establishment or spread of pests and which is not a consequence of damage to the life or health of plants. Also, the Panel found plants growing where they are undesired can be considered as “pest.” 50 Consequently, the Panel came to the conclusion that this purpose of the measure fell within the scope of Annex A(1)(d) of the SPS Agreement.51
By construing plants growing where they are undesired as “pest”, the Panel seemed to open a wide door for the application of the SPS Agreement. There are two implications embodied in such an interpretation. Firstly, it adopts a quite comprehensive view of the interests protected by Annex A(1)(d). Secondly, by applying this extensive interpretation, more national measures would likely be construed as SPS measures. They then would have to be scrutinized under the complicated and rigid disciplines of the SPS Agreement. Nevertheless, it seems hard to say whether such an approach is more favorable to the members adopting the measures, because while the first implication may favor the responding party, the
49 Id.
50 Id. para. 7.2576.
51 Id. para. 7.2577.
33
second one may give support to the complaining party.
From the view of legal interpretation, it’s worth analyzing whether this broad interpretation is appropriate. Given the issue is the interpretation of the wording,
“pest”, it is necessary to refer to an authoritative dictionary first. According to the Oxford dictionary, “pest” is defined as an insect or animal that destroys plants, food etc.52 Further, according to the common knowledge, pests are natural creatures, which, by their ecological design, are harmful to other kinds of creatures. These creatures are usually hard to control and are unexpected. While GMOs as T25 maize are not as pure as natural plants, such plants growing where they are undesired do have some effects on the characteristic of the given product. Thus, the consumers might take into account such effects when purchasing the goods. The economic loss thus may not be avoidable. The next issue is whether such interests are protected in Annex A (1)(d) of the SPS Agreement.
The Appellate Body in the US-Shrimp case once stated that: “They must be read by a treaty interpreter in the light of contemporary concerns of the community of nations about the protection and conservation of the environment.”53 The Appellate
52 Compact Oxford Dictionary, available at http://www.askoxford.com/concise_oed/pest?view=uk.
The dictionary also pointed out an informal definition of pest as a person or thing that annoys you.
53 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, para. 129 (Oct. 12, 1998) (adopted Nov. 6, 1998) [hereinafter the “US–Shrimp”].
34
Body also referred to the opinion of the International Court of Justice to reveal the importance of the evolutionary principle of treaty interpretation.54 The Appellate Body stated that“…the generic term ‘natural resources’ in Article XX(g) is not ‘static’
in its content or reference but is rather ‘by definition, evolutionary.”55 The jurisprudence aforementioned may provide some inspiration for the instant case.
When drafting the provisions of the SPS Agreement, the concerns on GMOs were not as mature as nowadays. However, in the wake of the new development of bio-science, the concerns about GMOs’ potential risk are becoming increasingly evident. It has been documented that the spread of the pollen to cultivated surrounding fields (co-existence) will result in the growth of GM maize in a conventional maize field. Further, both pests and the GM maize have the same characteristic of causing economic damage that is protected by Annex A(1)(d).
Bearing the evolutionary principle in mind, it therefore would be acceptable to incorporate GM maize into the definition of pest.
(2) Long-term ecological effects in environmentally sensitive areas
There are some concerns that GM plants might crowd out or eliminate other plants, due to a potential competitive advantage, invasiveness or persistence, thus affecting the genetic diversity of remaining plant populations and putting the survival
54 See id., n. 109.
55 Id.
35
of certain plant species at risk.56 The Panel considered that GM plants can be construed as a “pest” since they have such an adverse effect on non-vegetation.
Therefore, such measures are covered by Annex A (1) (a), as it applies “to protect […]
plant life or health […] from risks arising from the entry, establishment or spread of GM plants qua ‘pest’.”57
The Panel regarded the adverse effects that GM plants may cause to the ecology as a basis to include GM plants under the definition of pest. Since they have the same characteristic of eliminating conventional plants,58 it should be appropriate to do so in light of the principle mentioned above.59
Furthermore, the Panel found that “to the extent a measure seeks to avoid adverse effects of GMOs on the environment other than adverse effects on animal or plant life or health, including on geochemical processes, such a measure can be considered to be covered by Annex A(1)(d), inasmuch as it can be viewed as a measure which is applied to prevent or limit ‘other damage’ from the entry, establishment or spread of ‘pests.’”60
Overall, while embracing a broad perspective, the Panel considered the
56 EC–Biotech Products, supra note10, para. 7.2579.
57 Id.
58 Id. para. 7.2580.
59 See supra notes 39-41 and accompany text.
60 EC–Biotech Products, supra note 10, para. 7.2583.
36
objectives set by Austria to avoid potential long-term ecological effects of the release into the environment of T25 maize to meet the definition of both (a) and (d) of Annex A(1) of the SPS Agreement.