European Regulation of GMOs: Thinking About Judicial Review in the WTO (original) (raw)

2004, Current Legal Problems

This paper examines the role of 'judicial review'in the WTO, by reference to a case study on the European regulation of GMOs. It argues that 'judicial review' may, in this setting, be conceived as re-enforcing rather than negating democracy, by enhancing accountability, and in particular the external accountability of states. It draws on the work of Robert Keohane, who understands external accountability as accountability to people who while situated outside of a given polity are affected by decisions adopted within it. The paper supports this argument with reference to cases such as Shrimp/Turtle and, more recently, GSP. It concedes, however that as the Appellate Body of the WTO comes to elaborate stronger substantive benchmarks for review-rationality or proportionality type tests-'judicial review' also raises a democracy dilemma for the WTO. One aspect of this dilemma concerns the place of public opinion in risk regulation, and the legal entitlement of Member State governments to be responsive, in their regulation, to such opinion. This democracy dilemma presents an audacious challenge for the WTO, and one which admits of no easy or absolute answers. European Regulation of GMOs The European approach to the regulation of genetically modified organisms (GMOs) is predicated upon the concept of prior approval. The legal framework for prior approval is finally in place. Amidst a mass of legislation, two instruments stand out as central, viz. the 2001 Deliberate Release Directive, 1 and the 2003 GM Food and Feed Regulation. 2 As may be exemplified by specific reference to the latter, European Union law performs a threefold function in relation to the prior approval of GMOs. * Reader in European Law, University of Cambridge. Visiting Professor, Columbia Law School (Spring 2004). This paper is based upon a lecture given at University College London in December 2003. It will be published in (2004) Current Legal Problems which is published on behalf of the UCL Faculty of Law. Many thanks to Jane Holder and Michael Freeman for the invitation to present this lecture, and to Lord Hope of Craighead in his capacity as Chair. Thanks also to them and to all present for their thoughtful comments and questions. Gráinne de Búrca, Jeffrey Dunoff, Rob Howse, Maria Lee, Petros Mavroidis, Bill Simon and Margaret Young kindly read a draft of this paper and provided valuable comments; not all of which I have been able to take on board in this paper. Errors and misconceptions definitely remain my own. 1 Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms OJ [2001] L106/1 By way of background reading see T. Hervey, Regulation of Genetically Modified