Reconciling the Incongruence between the Cartagena Protocol on Biosafety to the Convention on Biological Diversity and the GATT/WTO Rules

The increasing emphasis on environmental protection and/or conservation, over the past decades, which could be measured by the rise in the number of Multilateral Environmental Agreements (MEAs) in force, seems to bring to the fore the trade and environmental protection conflict. One MEA that highlights the conflict between trade and environment is the Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Biosafety Protocol)—an MEA regulating the movement of Living Modified Organisms (LMOs). The article exposes the inherent conflict between trade and environment as exemplified by the seeming tension between the General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO) rules and the Biosafety Protocol. This article appraises the trade-restrictive provisions of the Biosafety Protocol vis-à-vis the GATT/WTO rules and exposes the incongruence between both instruments. The article therefore seeks to answer the following questions: (I) what are the inherent conflicts between the Biosafety Protocol and the GATT/WTO rules? (II) how could the conflicts be addressed in a way that preserves the sanctity of the Biosafety Protocol? The Article finds that there is tension between the 2 regimes and that the tension would be more pronounced when national measures are adopted by countries to implement the Biosafety Protocol. The Article also finds that the means to avoid the conflict between the 2 regimes could be by strategically interpreting the trade-restrictive provisions of the Biosafety Protocol and subsequent national measures developed upon the Biosafety Protocol’s foundation, to prevail over and/or be regarded as exceptions to the GATT/WTO rules and the chapeau to Article XX of the GATT, 1994.