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Gupta, Aarti. 2001. "Advance Informed Agreement: A Shared Basis for Governing Trade in Genetically Modified Organisms?" Indiana Journal of Global Legal Studies, Special Edition on Agricultural Sustainability and Genetically Modified Organisms. 9(1).

Abstract

With its completion in January 2000, the Cartagena Protocol on Biosafety became the first legally binding global regime governing the transnational transfer and use of genetically modified organisms. The existence of this agreement is noteworthy, given persisting normative and scientific conflicts over potential harms (ecological, socioeconomic, or to human health) arising from the use of genetically modified organisms.

As its central governance mechanism, the Cartagena Protocol calls for the “advance informed agreement” of an importing country before transnational transfers of genetically modified organisms. The notion of “advance informed agreement” has its genesis in the better-known concept of “prior informed consent,” which has been relied upon in the international realm to regulate trade in hazardous waste and restricted and banned chemicals. However, in the case of genetically modified organisms, the very existence and nature of hazard remains heavily contested. Under such circumstances, institutionalizing “advance informed agreement” entailed a sustained battle between potential exporters of genetically modified organisms, seeking predictability in trade, and potential importers, seeking flexibility and discretion in national decision-making. How have these competing objectives been reconciled within the Protocol’s governance mechanism of advance informed agreement?

In addressing this question, I focus on the decision criteria underlying advance informed agreement, i.e., the criteria upon which importer decisions about accepting or restricting genetically modified organisms are to be based. Three such decision criteria were debated during the Cartagena Protocol negotiations. These were sound science; the precautionary principle; and socioeconomic considerations. Their definitions, as well as their relationship to one another, remain heavily contested and transcend the issue of biosafety, since they have been disputed in other influential global fora such as the World Trade Organization (WTO), as well. I examine below the nature of conflicts over decision criteria for advance informed agreement during negotiation of the Cartagena Protocol, the final compromise, and the implications for biosafety governance.

 

 
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