A GMO by any other name... might be an SPS risk!: Implications of expanding the scope of the WTO sanitary and phytosanitary measures agreement

The lengthy WTO Panel report, recently issued in the EC-Biotech dispute, contains many noteworthy findings, Perhaps the most extraordinary and potentially far-reaching are those regarding the scope of the SPS Agreement. This Agreement has been the focus of much attention because of the requirement for scientific justification of national SPS measures, thereby casting doubt on the WTO validity of precautionary regimes like the EC's GMO regulations at issue in EC-Biotech. The Panel found that the SPS Agreement extends to trade-restrictive measures addressed to a range of health and environmental risks, even where those risks only indirectly relate to the introduction of 'pests' into a Member's territory. This article considers the consequences of an expanding ambit for the WTO SPS Agreement through the designation of a wider range of health and environmental regulations affecting trade as 'SPS measures'. The author contends that the EC-Biotech Panel's findings, if upheld, have the potential to work important changes in the relationship between the SPS Agreement and environmental regulatory regimes, both domestic and international. As a result, not only GMO regulations, but also other health and environmental measures with trade impacts, could become subject to SPS oversight, and consequently, the institutional rigours of the WTO regime.