TCS Daily

Precaution Into Law

By James Pinkerton - September 13, 2003 12:00 AM

Editor's Note: This is the first of a two-part series.



CANCUN, Mexico -- September 11 will be remembered for many things, of course, but something that happened on 9/11/03 will also be remembered. The world may mourn -- or not -- the attack on the US two years ago, but the world environmental movement has definitely moved on. Here at the World Trade Organization meeting, the assembled multitude, both pro-trade and anti-trade, was confronted by the coincidence that Thursday marked the first day in which the Cartagena Protocol on Biosafety entered into force. Right here, right now, there are more urgent issues for WTO-ers to discuss, but it won't be long before the Cartagena Protocol makes itself felt. So what is it, exactly?


The Protocol is the first legally binding agreement concerning the transnational movement of living modified organisms (LMOs), such as seeds and animals, resulting from modern biotechnology. According to the Montreal-based Secretariat of the Convention on Biodiversity, a sub-unit of the United Nations Environmental Programme, the Protocol seeks to "ensure an adequate level of safety in the transfer, handling and use of LMOs which may have adverse effects on the conservation and sustainable use of biological diversity, also taking into account potential risks to human health." To many, all that verbiage might sound innocuous -- who's for risks to human health? -- but the Protocol is far more than warning labels or safety caps. Instead, it represents a new front in the Greens' never-ending battle to seize control of international trade. Such trade currently runs about $6 trillion a year, although, of course, it would be considerably less if the Greens had their way with it.


Maybe you don't remember reading about the United States agreeing to this Protocol; that's because we haven't agreed. Even the Clinton Administration wouldn't sign it when it came open for national signatures in 2000, even as 103 countries did ink it. Of those signatories, barely more than half -- 59, to be exact -- have gone on actually to ratify it. The Protocol took on legal force when the nation of Palau -- you know all about Palau, don't you? -- became the 50th ratifying country. But, you might be thinking to yourself, the United Nations has 191 member states. So isn't it a bit strange that international law comes into force when it's embraced by a quarter of the nations of the world? That's what I think, too. But welcome to the world of Green law, which would be regarded as merely wacky if the stakes weren't so high.


To be sure, countries that haven't acceded to the Protocol aren't bound by it, but here comes the rub: what happens when a Protocol country bumps up against a non-Protocol country? France, for example, is all signed up. Is it possible to imagine the French getting into a trade tiff with the United States? Or, to put it another way, the Protocol provides Paris with one more opportunity to pick a fight? In such a case, any dispute will likely end up in the lap of the WTO.


We'll consider the WTO's role later, but first, a point or two about the thinking -- maybe ideology is a better word -- behind the Cartagena Protocol.


Greens and other Cartagena-heads say that everything they do is in the name of "sustainability." But of course, there's much more to it than that. Readers of this space might recall that I've looked at both "sustainable development" and "sustainable trade," noting that these eco-buzz-phrases are manipulatable in the hands of manipulators. But here's another snatch of happy-talk to watch for: The Precautionary Principle (TPP).


When we speak of TPP, we might lower our voice a bit, because we're getting close now to the Holy Grail of Greenianity. TPP transports Green believers to a level above -- or below, your choice -- science. TPP takes Greenianity to the level of faith. And faith is hard to argue, let alone litigate.


The Preamble to the Cartagena Protocol, in which TPP makes its first of four appearances in the text, reads blandly enough; it claims that it is merely "reaffirming the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development."


OK, so what's the Rio Declaration? That was the document issued at the end of the "Earth Summit" in Brazil in June 1992. Here's what Principle 15 says, in full: "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." Let's dwell on some of this language a bit, because the implications are enormous.


Here's that last clause again: "lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." Perhaps I could put this another way: "Lack of proof won't stop us from taking action." Or maybe this: "Just because we don't know what we're doing won't stop us from doing it." Am I being too harsh?


Well, how else can one assess something that doesn't rely on objective measures? Who will guard the guardians if they are not guided by objective, transparent law? Of course, if you say that the risks of human action are so great that we can't permit knowledge to moderate our fears and modulate our actions, then you agree with the Greens. Now, all you have to do is trust Greenpeace & Co. to administer the rest of your life.


Think I'm exaggerating? Consider the Kyoto global warming agreement, the official name of which is the Kyoto Protocol to the United Nations Framework Convention on Climate Change; note that "Protocol" word again. The Kyoto Protocol, signed by then-Vice President Al Gore in 1997, is such a radical document that the US Senate voted 95-0 to reject it -- alas, in a non-binding, non finalizing resolution. And if you don't believe that the Kyoto deal is a big deal, read this. And this. And this.


In comparison to Kyoto, the Cartagena Protocol is modest; this is, after all, just its second day of existence. But of course, every giant oak tree starts out as an acorn, and so it's hard to tell how the Cartagena Protocol will grow up. But some observers have some clues.


Fred Smith, president of the Competitive Enterprise Institute, maintains that "soft language becomes hard fact." That is, over time, even the windy and hortatory rhetoric of preambles has a way of working itself into international law. Just as American lawyers ingeniously pluck rationales and precedents from anywhere they can be found -- the Supreme Court cited experiments comparing children's preferences for white dolls over black dolls in its 1954 Brown vs. Board of Education decision -- so, too, with international lawyers. Smith notes that the European Union barely waited for the Protocol's ink to dry before it started citing Cartagena's TPP language as justification for its anti-LMO actions. In other words, even now, TPP, in all its all-over-the-placeness, is being codified into international law. And how will people adjudicate cases in which proof is not required? Good question. Maybe you've heard of the phrase, "might makes right"? Now try "Green makes right."


And so the contours of future politico-economic battlefields can be espied through the rhetorical fogging and pettifogging. Gary Horlick, former chief of the US Commerce Department's Import Administration, now a lawyer in Washington, sees some leading indicators about the Cartagena Protocol in past cases in which TPP was invoked.


One such case is beef hormones. In 1988, the EU prohibited the use of six different growth hormones in imported beef. The United States and Canada contested the prohibition, and, a mere nine years later, a WTO panel ruled that the EU's action was out of bounds, because it was not based on sound science. Indeed, Horlick points out, three of the growth hormones are natural -- so natural that it's impossible to tell whether or not an animal has even received them. Moreover, even as it banned American beef, the EU was still allowing EU cows to be treated with the same hormones. And most absurdly, the EU allowed contraceptives onto the market that contained 17,000 times -- that's right, 17,000 times -- the hormone level of banned beef.


Yet the Europeans had dug in their Green heels. To this day, the EU restricts the beef, even though, having lost the case in the WTO, it now must pay the penalty, in the form of retaliatory American duties on European exports. But of course, a free market economist would call this a lose-lose. Yes, America may be legally entitled to impose retaliatory duties, but the effect of those duties is to raise prices for American consumers.

But now, with The Precautionary Principle embedded in the Cartagena Protocol, the EU might feel emboldened to take another look at no-no-ing imports, for just about any reason. After all, when you have TPP, you don't need proof.

And if the EU feels emboldened, imagine what the Greens must be thinking. They see that the world -- or at least the World Trade Organization -- might yet be their prize.  

Tomorrow:  the Battle for the World.


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