Folks, this is quite interesting. The EU member states have just struck a compromise on the GMO regulation by providing individual member states with options to exclude the GMO importation. (This deal is subject to subsequent legislative procedures involving the Commission and the European Parliament.) Note that this is not an outright ban. Those member states “have to ask the Commission to ask companies to exclude them from requests for authorisation for new crops.” The gist of this individual opt-out is that it can be done on the “non-scientific” grounds, such as socio-cultural reasons.
Now, this development reminds us of the recent Seal dispute. As Professor Howse addressed in his co-authored piece at YJIL, there may be two different (“instrumental” and “non-instrumental”) reasons behind any domestic regulation. Although the TBT offers an open list for types of regulations to be justified, its science-based structure (such as international standards and risk assessment) might make it more amenable to a scrutiny based on instrumental (scientific) grounds. On the contrary, GATT Article XX (a) smacks of a scrutiny based on non-instrumental (non-scientific) grounds. Of course, any measure can retain both grounds, but this conceptual distinction still remains valid.
Note that the AB in the Seal dispute refused to apply the TBT. Its rationale for such refusal does not appear to be very persuasive (to me, at least). Perhaps the AB did not wish to touch upon this “scientific” route, which might have led to extensive second-guessing in this highly sensitive regulatory area, more extensive than the quite deferential Brazil-Tyres case law (“capable of making a contribution to the objective”). Also note that Belgium had not originally notified the seal ban under the TBT Agreement a decade ago, while Canada still demanded Belgium’s justification on the risk methodology under the TBT Agreement in the TBT Committee (G/TBT/M/34; G/TBT/M/39; G/TBT/M/40; G/TBT/M/41; G/TBT/M/42; G/TBT/M/43, paras 44-49).
So, we may see more GATT Article XX (a) disputes in the future.