While recognising the rights of countries to adopt the standards they deem appropriate, the OBT agreement seeks to ensure that rules, standards, testing and certification procedures (which vary from country to country) do not create unnecessary barriers. WTO members are not prevented from taking the necessary steps to ensure compliance with their standards. To avoid too much diversity, the agreement encourages countries to apply international standards where they are appropriate, but does not require them to change their level of protection in this way. Trade-related measures related to biosecurity fall under three WTO agreements – the Agreement on the Application of Health and Plant Health Measures (SPS), the Technical Barriers to Trade Agreement (CTO) and the 1994 General Agreement on Tariffs and Trade (GATT). There is a hierarchy of agreements, the 1994 GATT being the most general and the most comprehensive, minus the TBT agreement and the most specific SPS. The agreement that would apply to a trade-related biosecurity measure would therefore depend on the purpose of that measure. For example, if the political objective of labelling genetically modified foods is to protect human health, the measure would fall under the SPS agreement, which is the most specific agreement and deals with the protection of plants, animals and human health. Biosecurity is a term used to describe efforts to reduce and eliminate potential risks associated with biotechnology and its products. For the purposes of the biosecurity protocol, this is based on the precautionary approach, in which the lack of complete scientific security should not be used as a pretext to postpone measures in the event of a threat of serious or irreversible damage (see “What is the precautionary approach?”).
While developed countries, which are at the heart of the global biotech industry, have established national biosecurity systems, many developing countries are only beginning to set up their own national systems. Non-discrimination is a central trade principle that applies to the WTO. For example, members should not apply a measure that would constitute a means of arbitrary or unjustified discrimination between countries. Therefore, biosecurity legislation, which has trade-related measures, should not distinguish between the different Member States, i.e. an importing country concerned about GMO imports cannot ban, for example, products from the United States, but allow the importation of the same products from the EU, for example. The Cartagena Biosecurity Protocol was negotiated under the strong threat of major exporting countries to violate World Trade Organization (WTO) trade rules. Although the relationship between the protocol and other international agreements is not definitively addressed in the protocol, its physical provisions are in line with WTO obligations. 160 The basic principle of treaty compliance, pacta sunt servanda, is reflected in Article 26 of the Vienna Convention, see 66, which states that “any existing contract is binding on the parties and must be implemented in good faith by the contracting parties.” Moreover, on the principle of effective interpretation, the provision of a treaty should not be construed as annihilating the effect of another treaty.