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The Impact of Bioethics and Consumer Demand on Process and Production Methods (ppms) in the Wto: Considerations for Colombian Biotrade

Working paper by Calle-Saldarriaga, María Alejandra / Universidad EAFIT, 2011

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This paper aims to contribute to the existing legal studies on Process and Production Methods and their connection to consumer preferences for bioethical and environmentally friendly systems of production, in particular by identifying the case of Colombian biotrade.

Production Methods in the WTO: Considerations for Colombian biotrade.


Maria Alejandra Calle-Saldarriaga
(mcalle@eafit.edu.co)


Magister en Derecho Económico Internacional y Política Comercial Internacional (IELPO) de
la Universidad de Barcelona (España), Estudios avanzados en Diplomacia Comercial ,
Carleton University (Ottawa, Canadá), Magister en Ciencias de la Administración,
Universidad EAFIT en convenio con el HEC en Montreal, Especialista en Derecho
Comercial, Universidad de los Andes (Bogotá, Colombia) y abogada de la Universidad de
Medellín. Coordinadora del Área de Manejo de Conflictos Internacionales del Departamento
de Negocios Internacionales de la Universidad EAFIT. Directora del Centro de Estudios
Colombo Canadienses de la Universidad EAFIT y docente de las materias de Negociacion
Internacional, Derecho Comercial Internacional, Diplomacia Comercial y Resolucion de
Controversias Internacionales . Ha sido consultora para la Conferencia de las Naciones
Unidas para el Comercio y el Desarrollo (UNCTAD) en temas de negociación internacional.


Actualmente estudiante del Doctorado en Derecho de la University College Cork (UCC)
Irlanda.




The Impact of Bioethics and Consumer Demand on Process and Production
Methods in the WTO: Considerations for Colombian biotrade.


Keywords:


Process and production methods, consumer protection, WTO, Dispute Settlement, bioethics,


environmental protection, public participation, transparency, non-state actors, developing


countries, Colombian biotrade, UNCTAD.


Abstract


In international trade, products might face different kinds of concerns related to process and


production methods. Consumer preferences are often driven by the information about the


way in which those goods have been produced (labor standards, fair trade, animal cruelty


and the use of GMOs). Such concerns are grounded in moral, environmental, safety and


quality attributes that consumers increasingly demand not only from producers but also from


their own governments in forms of regulations and trade policy measures (expressed in


technical standards, sanitary and phytosanitary measures, labeling information, etc).


In this sense, consumer access to process information, especially in bioethics concerns


(animal testing, animal welfare, organic products, environmentally friendly processes, GMOs,


biotrade, etc) is expected to lead to regulatory policies and a more inclusive interpretation of


the GATT and the WTO covered agreements in which Process and Production Methods


(hereinafter PPMs1) are restricted to the application of Article XX. The tension between


international trade law and environment /bioethics challenges should to be also analyzed


from the perspective of consumers and not only from the industry or the government as the


traditional actors in international trade negotiations.


This paper intends to identify the role of consumers as demandeurs for trade policy actions


and regulations when implementing bioethical concerns embedded in PPMs, traditionally


considered as Non Trade Barriers and then incompatible with the purpose of WTO member


states obligations, specially taking the Colombian biotrade initiatives as an example. Civil


1 OECD stated this abbreviation in 1994 and 1997.


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participation and the vindication of policy space of Member States in order to protect the so


called “consumer’s right to know”2 (Noah, 1994) should be analyzed as a force that could


lead to regulatory changes and consistent interpretations that include consumers as


important stakeholders of a sustainable and environmentally compatible trading system.


Relevance of this paper


The relevance of the present research paper is based on three specific dimensions:


Firstly, this paper contributes to the existing legal studies on PPMs and their connection to


consumer preferences for bioethical and environmentally friendly systems of production


identifying the case of Colombian biotrade. The existing literature broadly explores the


concept but still it does not address the complexity of bioethics and its relation to consumer


preferences and in addition, the possible convergence or divergence with environmental


concerns (without considering that inside environmental concerns it is possible to identify


different values). This paper will identify different variables when understanding the role of


consumer as demandeurs for trade related measures. This approach aims bring the attention


of WTO scholars for addressing new challenges in terms of interpretation of the WTO


covered agreements (GATT, TBT, SPS) in accordance to consumer awareness and demand


for information.


Secondly, this paper exposes the importance of considering the process of trade negotiation


for developing countries as a meaningful variable when assessing the stakes embedded in


the concept of PPMs, particularly those related to the consumer´s preferences for bioethical


and the environmental process of production. In this sense, considering this kind of


measures as a protectionist measures per se or unnecessary obstacle to trade imposed


against developing countries interest will a matter of a later debate. The novelty of this paper


is be based on the consideration of the perspective of both developing and developed


countries, but identifying the unexplored benefits for Colombia as an example in the Andean


Region, when considering consumers as legitimate demandeurs of policies and legislative


responses on bioethical and environmental issues, specifically when addressing the case of


biotrade.


2 Related to the disclosure of the conditions or method of manufacture.


3




The approach presented by this paper aims to bring the attention of WTO scholars for the


development of new theories and interpretations about the role of consumers in international


trade law (traditionally more focused on producers rather than civil society actors). The dialog


between International Trade Law, Environmental Law, consumer protection and bioethics will


be fundamental for the future of the multilateral trading system and the new challenges that


emerge from an information age and the concerns derived from global warming, considering


issues and stakes for Colombia and other developing countries sponsoring biotrade


initiatives.


Introduction


Many trade related issues are inherently linked to social and cultural identity. Recent trade


disputes dealing with food and the perception about the use of artificial growth hormones in


cattle and the use of biotechnology in the process of production are particularly grounded in


the cultural perceptions and social meaning of food (e.g resistance towards artificial growth


hormones and GMOs is in this sense not strictly science based but also culture based). In


the same way, animal welfare standards or animal-cruelty awareness among consumers is


deeply enrooted in culture and socio economical realities (Brom, 2004)


Thus, it is important to determine if such values and concerns existing in any given country in


which citizens as voters, consumers and taxpayers, have the legitimacy to request legislative


reforms or governmental intervention in order to address or protect their concerns even if


third countries expectations related to trade are at stake.


According to Weiss (2006) “even more is expected of the contemporary world trading system


for which the WTO provides the common institutional framework and its main negotiating


forum increasingly, that system intersects with issues directly affecting peoples’ lives, such as


investment and competition policies, environmental and development policies. Human rights,


labor standards, health, animal welfare, distribution of resources, ethical issues, and even


national security. All these issues are raised with ‘sovereignty of purpose’ by particular


interest groups seeking regulatory intervention, unconcerned about possible ‘limits to the


growth’ and utility of such activity in the global economy” (Weiss, pp. 157, 2006)


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This topic is explored by Kysar (2004) when examining the conceptual distinction between


product-related information (e.g potentially risks associated to the product for human health),


and process-related information, commonly embedded in trade related concerns as fair


trade, animal welfare standards and environmentally friendly production methods. In his


analysis, market and consumer are central to public policy responses, also reflected in


potentially trade measures. In his study, recent developments in international trade law,


environmental, health, constitutional law and safety regulation are considered when affirming


that consumer preferences could be heavily influenced by information regarding the manner


in which products are produced (process information).


Kysar (2004) also demonstrates that the process/product distinction is a prominent element


of the effort to resolve policy disputes that involve the entanglement of consumer regulation


with broader social or environmental questions, and argues in favor of acknowledging and


accommodating process preferences within policy analysis. In addition, the author states that


product labels may become significant venues for the expression and evaluation of policy


issues.


Similar to Nielsen (2005), Kysar (2004) also explores the impact of process/product


distinction within the WTO framework, analyzing the Member States commitments under


GATT and relevant Dispute Settlement Reports (including 1991 GATT reports as


Tuna/Dolphin) in which the concept of “products as such” seems to be one of the legal


cornerstones when analyzing the compatibility of discriminations based on PPMs with WTO


obligations. Such analysis on process-based trade measures under GATT/WTO


jurisprudence had been analyzed during the past decade by John H Jackson (1992), Steve


Charnovitz (1994) and has been particularly criticized by Esty (1994) and other trade law


scholars (Broom, 2004 ; Cameron & Campbell, 1999; Morris Groos, 1999; Hudec , 1998;


Bhagwati, 2001) since the Tuna/Dolphin report in which the panel condemned process-based


trade measures as per se violation of Article XI (in the future just possible to justify under


Article XX3)


3 Moral exception is likely to be invoked in these cases. This exception is expressly listed in both agreements
GATT and GATTS as follows: “Subject to the requirement that such measures are not applied in a manner which
would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions
prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the
adoption or enforcement by any Member of measures:(a) necessary to protect public morals or to maintain public
order
A note has been added to this literal in the WTO website : The public order exception may be invoked only where
a genuine and sufficiently serious threat is posed to one of the fundamental interests of society. (See
http://www.wto.org/english/docs_e/legal_e/26-gats_01_e.htm#ftnt5)


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In this scenario and with the existent WTO Dispute Settlement Reports, the


process/production distinction still poses a serious obstacle to trade measures (using the


labeling schemes). Even if they would be justified under Article XX, labeling initiatives must


also be consistent with TBT4 and SPS5 Agreements. In both cases, measures should not be


more restrictive than necessary and not been considered as a disguised protectionism.


In the view of Alan O Sykes (2002), the SPS agreement “unmistakably elevates the policing


of trade restrictive measures above the ability of national governments to address risk in the


face of scientific uncertainty”, but Kysar (2004) affirms that if even granting that the rules of


the international trading system can improve “democratic rationality” by discouraging


regulatory actions premised on “popular prejudice and alarm”, what is to be made of public


concern that persists despite a lack of scientific evidence to support it?


In this context, this research project is intended to analyze decision making process


embedding consumer’s trade related concerns in three dimensions: national, regional and


multilateral, in particular, those related to preferences for processes in which bioethics6 plays


a pivotal role. Therefore, it would be necessary to identify at what extent the consumer´s


protection/participation mechanisms could be compatible and consisting with International


Trade Law, the new challenges of the WTO and the increasing negotiations of free trade


agreements (WTO+).


The problematic examples described above suggest the importance of identifying new


variables when understanding the increasing awareness in consumers7 that may demand


4 Technical Barriers to Trade.


5 Sanitary and Phytosanitary Measures


6 The traditional concept of Fritz Jahr's (1927) is related to the use of animals and plants for scientific purposes,
nonetheless the concept is extended to a broad field that includes historical, philosophical, theological and
sociological approaches to some issues related to process and production methods that implies the use of life for
human purposes. Animal rights, biopiracy, cloning, genetically modified food, medical research used for
pharmaceutical industry, moral status of animals; among others are issues with potential effect in pattern of
consumption and consumer choices. On the other hand, Peter Singer will have an important role in the current
discussions about animal welfare and the industrial use of animals. It is important to highlight that those bioethics
considerations may influence environmental concerns. Bioethics and environmental aims are interrelated.


7 This research project aims also to analyze the compatibility of consumer concerns related to bioethics (Fritz
Jahr's, 1927; Peter Singer, 2008) with the WTO legal framework, particularly the TBT and SPS agreements and
the consequences for legal interpretation for new bioethical based trade disputes in accordance with the existent
case law provided in Dispute Settlement Reports.


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trade restrictive measures. Such complex phenomena should be matter of consideration by


the WTO adjudicating bodies, especially regarding the requested implementation of the so-


called necessity test (when defendant is using Article XX as the main basis for its legal


defense). Additionally, new insights on the preference for process (PPMs) should be explored


for developing countries; since bioethical and environmental concerns are non necessary


related to certain geographic locations and therefore, consumers from developing countries


could be also demandeurs of such mechanisms.


1. Literature Review


Most of reviewed literature analyzes the topic from the labelling perspective (TBT and SPS)


and its impact for trade liberalization. This very legalistic approach doesn’t consider the


consumer’s influence as a constraint for the Member State when adopting the measure.


Besides of some actions taken by other non-state actors (e.g NGOs) when canalizing public


opinion about certain methods of productions in which the consumer may have an ethical


concern worthy of protection by the government8. For Kysar (2004) “the future significance of


process preferences to civil society in the light of both the seemingly inexorable social and


economical trends of globalization and the growing theoretical importance of private market


behaviour to understand civil participation and government regulation”, and this reality should


not be outside the core of International Trade Law and some environmental treaties that may


have an impact on trade (e.g CITES convention)


Nonetheless as will be discussed later, the question to be addressed is polemical for many


scholars that consider that governments are often forced to defend consumers and other


economic agents by means of non trade barriers. In words of Kerr (2010) “the economic


model that underpins multilateral trade policy-as manifest in WTO agreements-only predicts


that firms will lobby for protection, with no provisions for how governments faced with


requests for protection from other groups can respond. Consequently, governments have


been forced to defend the imposition of trade barriers using spurious justifications; the WTO


dispute mechanism has largely dismissed these justifications, and consumers feel


disenfranchised”


8 As a matter of policy space or the right to regulate for the WTO Member State.


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2. Setting standards and labels: a room for protecting consumer’s bioethical
concerns?


According to Matsushita, Shoenbaum & Mavroidis (2006), there are four schemes in which


trade and market access barriers can be grouped. The first scheme is related to


governmental border measures (tariffs, quotas, customs regulations, import licensing, testing


and certifications). The second scheme includes internal regulations and practices that have


potential protective effects. Those regulations usually include certain conditions related to


product and services, distribution channels, technical standards, subsidies, state-trading


monopolies, and bio-security measures. The third scheme relates to private business


practices and customs affecting business behavior and consumer preferences; whereas the


fourth scheme includes economic and structural characteristics of the importing country


(government credit, macroeconomic, investment and industrial policies).


It is, however not clear if it is upon the WTO to consider all those categories since “the WTO


has tended to concentrate on explicit and obvious governmentally imposed trade obstacles,


such tariffs, quotas and customs regulations and practices. In the later rounds on trade


negotiations, however, notably the Tokyo and Uruguay Rounds, the WTO addressed less


obvious governmental measures, such as import licensing, subsidies and technical barriers


to trade. Nevertheless, many trade barriers remain outside the purview of the WTO


agreements” (Matsushita et al, 2006)


The TBT Agreement seeks to strike a balance between the policy space of Member States


and the discipline that such measures must observe in order to minimize their impact on


trade liberalization. According to the TBT Agreement (Annex 1, para.1), “technical


regulations” are “mandatory laws or provisions specifying the characteristics of products, the


processes or production methods for creating products or the terminology, symbols,


packaging, marking, or labeling requirements for products”. Additionally, “the TBT Agreement


requires the WTO members to apply national treatment and MFN standards with respect to


technical regulations. It also requires WTO members to use international standards when


such standards are available, except when such standards would be an ineffective or


inappropriate means for the fulfillment of the legitimate objectives pursued” (Matsushita et al,


2006).


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Furthermore, technical regulations must fulfill certain requisites in terms of: transparency,


prompt publication (to make them generally available), and shall not create “unnecessary


obstacles to international trade” or been “more trade-restrictive than necessary to fulfill a


legitimate objective9”. It is still problematic if the above-mentioned definition will include the


polemical non-production-related standards and most generally PPMs, in which


environmental and bioethical concerns have a prominent expression


Droge (2011) notes that it is not that clear “whether non-product-related standards, which are


applied in life cycle labeling schemes, are subject to TBT-rules. The definition in Annex 1.2


TBT names ‘products or related processes and production methods’, and thus, further


interpretations have to consider the negotiation history of the agreement (travaux


preparatories). On the other hand, Chang (1997) considers that non-product-related PPMs


were explicitly excluded, already during the negotiation of the amendment to the TBT-


Agreement, and thus cannot be considered when interpreting the text. During negotiations of


the Uruguay-Round, negotiators used the expression ‘or related’ in order to exclude ‘non-


related’ processes and production methods.


In relation to the adoption, preparation and application of standards, the TBT also contains a


Code of Good Practices. In this Code, the term `standard´ is defined as a voluntary guideline


for products characteristics (Annex 1, para.2) and requires Member States to participate and


comply with standards from international bodies like the International Organization for


Standardization (ISO). Nevertheless, this organization is not intrinsically related with green


issues or other bioethical concerns from consumers.


Labeling is becoming popular as a market driven mechanism to pursue ethical values related


to environmental protection or moral concerns. In this sense it is possible to say that ecol


labels are often a market-based environmental policy instrument informing consumers about


environmental characteristics of goods. Labels are granted by different private or


governmental organizations to producers for different product categories.


9 According to the TBT Agreement, those objectives include concerns to: National security requirements,
prevention of deceptive practices, protection of human health or safety, animal or plant life or health and
environment. Those objectives not necessarily include the consumer’s mere concern about certain trade related
values as bioethics, species protection, child labor, labor standards, etc.


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Many so-called eco-labels not only provide information about product quality itself, but also


the whole life cycle, including generation of inputs, production processes consumption and


waste disposal. The number of countries applying eco-labels has been growing constantly.


However, with the increasing international integration, especially growth in trade in goods


and services, consumers as well as producers demand compatibility and transparency of


labels at the international level. Also, eco-labels from industrialized countries are subject to


increasing criticism from developing countries, which regard labels as a new non-tariff trade


barrier.’ (Droge, 2001)


On the other hand the WTO is eager to be considered more democratic and transparent in all


its decision making processes -including public participation- but so far it is not clear in the


literature review or the WTO covered agreements, the mechanisms in which consumers will


facilitate this kind of multilateral standards as they don’t have direct participation in the


negotiation process, the dispute settlement system (besides the polemic amicus curiae


briefs) and standardizing bodies, that not necessarily create standards in accordance with


consumer expectations or concerns.


The case of GMOs would be eloquent in this regard, since there is a divergence about the


mandatory labeling that shall be imposed by law (EU approach) whereas the United States


considers this as an impermissible trade restriction. For the EU the GMOs labeling regulation


is a matter of consumer awareness rather than a safety promotion, and thus the stringent


application of both TBT and SPS may be not entirely compatible with new consumers


concerns beyond health risks.


Hence, under TBT provisions, the regulation enacted by Member States when pursuing trade


related aims should not be more restrictive than necessary (Article 2.2) and additionally,


those regulations must be based on international standards unless the Member State can


demonstrate that such standards are not effective or appropriate (Article 2.4). Nonetheless,


is it possible to talk about international standards for bioethics? Is the Member State allowed


by current interpretation of WTO law to dismiss international standards for not satisfying


domestic consumers on their preferences for processes?


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3. Science, risk aversion and ethical perceptions


Consumer concerns even if not based on scientific evidence could be considered propelled


by culture (e.g uncertainty avoidance) or moral perceptions trough the use of living beings for


trade purposes. It depends on how such group is organized (league of consumers, lobbies,


NGO´s) that this private set of concerns could be considered as an important force behind


the policy10 and law-making process that may interfere with trade obligations for the Member


State under the WTO framework. The emerging dispute European Communities –Measures


Prohibiting the Importation and Marketing of Seal Products, WT/DS400 and WT/DS401 is an


example of consumer’s demands based on bioethical perceptions rather than scientific


assessment or even environmental protection and nonetheless considered by the EU when


enacting the challenged measure.


This case will continue the trade and environment saga that started with US-tuna cases11
and US-Shrimp12, but it is likely that this case will be grounded on moral considerations of


consumers (animal welfare) rather than the umbrella policies of sustainable development


(Nielsen, 2007).


¿Could those considerations increasingly framed as social values or “public morals” validly


be defended by a Member State (as a policy choice embedded in national legislation) under


the language of the general exceptions provided in Article XX of GATT without second


guessing of a DS panel or the Appellate Body13? The question about “moral coherency” may


10 They could be highly involved in this process by lobbing and sharing information accessible trough social
networks and organized boycotts.


11 See United States – Restrictions on Imports of Tuna, DS21/R- 39S/155, Report of the Panel, Sep. 3, 1991,
unadopted, [US – Tuna I]; United States – Restrictions on Imports of Tuna, DS29/R, Report of the Panel, Jun. 16,
1994, unadopted, [US – Tuna II].


12 See United States – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Panel,
WT/DS58/R, May 15, 1998 [US – Shrimp Panel Report]; United States – Import Prohibition of Certain Shrimp and
Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, Oct. 12, 1998 [US – Shrimp Appellate Body
Report]; United States – Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of
the DSU by Malaysia, Report of the Panel, WT/DS58/RW, June 15, 2001 [US – Shrimp 21.5 Panel Report];
United States – Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by
Malaysia, Report of the Appellate Body, Oct. 22, 2001, WT/DS58/AB/RW [US – Shrimp 21.5 Appellate Body
Report].


13 After the Gambling precedent under GATS and the recent panel report on China-Measures Affecting Trading
Rights and Distribution Services for Certain Publications and Audiovisual Entertaining Products we will probably
see how trade-morality conflicts are alike to increase, and even if trade measures related to animal welfare would


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be at stake when selecting the concerns worthy of being protected by the government,


especially if a clash of ethical values and different perceptions about processes for


production could be also always present at the national level.


Nonetheless, a complex set of elements/conditions provided in Article XX of GATT (least


restrictive means and Nondiscrimination) are demanded from a Member Sate to be fulfilled


when designing/implementing trade measures to be defended as a legitimate exception. How


would these conditions be fulfilled when the consumer functioning as the demandeur?


Nielsen (2007) argues it would be more problematic to tackle cases involving process and


production methods (PPMs) under WTO law, than the banning of the product as it happened


in the EC-Asbestos case. Since bans on products do not involve issues of certification of


“acceptable” process or production practices in other countries (asbestos is for example


unacceptable no matter how it was produced.


As presented in the introduction, PPMs deal not only with trade measures that are


environmentally or socially motivated but with the idea of consumer sovereignty (Kysar,


2004) within the international economic system. This topic has been increasingly explored by


scholars in the field of International Trade Law since production methods as a criteria for


product differentiation is posing multiple challenges not only for the adjudicatory body of the


WTO regarding the interpretation of GATT and WTO covered agreements (especially TBT,


SPS) but also for the idea of considering the WTO as a democratic system in which


consumers should play an important role.


Consumers concerns would be multiple and not only focused on their own welfare but


philanthropic or altruistic purposes (Dayly, 1996; Baudrillard, 2001; Woods & Blewett, 2001).


Those concerns are often considered as central in public policy and therefore worthy of being


expressed in domestic regulations (requesting e.g. mandatory labeling, trade bans or even


imposing unilateral standards for foreigner suppliers of goods and services) and also in


corporate strategies with possible effects in the world trading system (voluntary standards,
fit on the public morals domain, the emerging of a “public doctrine” in the DSB would certainly restricts the
sovereignty of Member States when invoking moral issues as proper trade obstacles, especially on the scrutiny
most closely on the “Necessity Test” and the Chapeau of Article XX. Thus a broader interpretation of public morals
can be adequately cabined by applying close scrutiny under two existing mechanism: the trade-restrictive
measures must be the least trade-restrictive means of achieving their stated end, and they must be designed and
applied in a nondiscriminatory fashion. (Marwell, 2006:806)


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voluntary labeling, CSR strategies and self declarations). Such concerns are frequently


related to bioethics and environmental protection, and are therefore not totally extrapolated


from the WTO mandates, since, under paragraph 32 of the Doha´s Declaration, WTO


Members explicitly mandate the Committee on Trade and Environment (CTE) to identify


areas of the WTO which need clarification with respect, inter alia, labeling requirements and


environmental measures (Potts, 2008)


Nonetheless, the concept and aims of PMM´s have received criticism from the critics of


different scholars (Hudec, 1996; Beales, 2002; Howse & Trebilcock, 1996) all of which


consider that accepting the legitimacy of PPMs within international trade law could allow


product regulation to be overcome by an “excess of zeal” ( Hudec, 1996) from moral claims


of consumers and such claims could be also irrational and merely sentimental. In addition,


different concerns about the impact of production methods for developing countries have


been expressed in different scenarios when considering that those preferences are


commonly embedded in unilateral standards imposed by a developed country imposing


ethical preferences (Bhagwati, 2004).


Responses to those critics have increasingly introduced by other scholars (Snape &


Lefkovitz, 1998; Reagan, 2003) that insert the traditional liberal view for international trade


law analysis, according to what the “aims and effects” rationally tests should not consider


consumer’s based measures as a proxy for disguised protectionism, and therefore, DSS


panels should look for a flexible and democratic interpretation that combat the problem of


protectionism without simultaneously eviscerating a nation’s ability to respond to the firmly


held convictions of its consumer citizens (Reagan, 2003)


Additionally, alternative voices within the existing literature recall the importance of this topic


since the presumption that emerge from the above recalled critics in which “mere consumer


concern” about PPMs is an insufficient basis for state action, should be rejected (Kysar,


2004; Adler, 2003; Nussbaum, 1998; Potts, 2007). Nevertheless, the literature is still


insufficient regarding bioethical concerns as a basis for intervention of Member States, this is


particularly important since PPMs are often an expression of diversity and thus


standardization or harmonization is not always a necessary or logical response, as stated by


Jasson Pots in his report on the legality of PPMs under GATT (iisd, 2007)


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4. The complex dynamics of PPMs : issues, stakeholders and trade related concerns


When analyzing the legal consequences of PPMs from the perspective of non trade barriers


there is a complex universe of variables that is missed. Public policy, consumer rights, civil


society movements and different channels for participation in domestic policy making should


be considered when evaluating environmental or bioethical concerns as a trade restrictive


scheme. That is to say, the connection and dynamics between the adoption of national


regulations protecting the consumer right to know in the preference for bioethical and


environmentally friendly processes and its effects on international trade obligations (e.g by


means of labeling or even trade bans). In order to analyze the legal framework of such


dynamics it is important to identify the existing challenges for PPMs aimed to protect the


bioethical/environmental process preferences of consumers.


In this context, a complete multifactor analysis should consider the complexities related to


legislative processes of WTO Member States when considering consumers in their role of


citizens, voters and taxpayers, the intervention of the government when correcting market


failures (as information asymmetries) and the existent tensions on the WTO regarding the


transparency of its procedures when considering civil society demands (amicus curiae


participations) and the desirable new approaches regarding the interpretation of GATT


(Article I:1 , III:4 ,and XI:1 and XX) and other covered agreements in accordance with


consumer interests.


This multifactor analysis would lead to a more flexible interpretation of WTO covered


agreements that is usually focused only on the government action when adopting a


restrictive measure (e.g. environmentally or bioethical motivated), specially due to the


negative trade impact for other Member States’ expectations rather than assessing the


consequences for domestic stakeholders or the decision making process (including political


costs, accountability, legal actions enacted by social groups demanding governmental


actions,etc). In this sense, we should include the following variables as important political


and legal drivers when understanding the architecture of the restrictive measure that may be


challenged at the Dispute Settlement System of the WTO:


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a) Consumer issues are also central for public and trade policy. The preference for


processes (bioethical and environmental considerations) is a legitimate aim that


governments may pursue by means of trade related policy measures.


b) The environmentally or socially motivated trade measures intended to protect the


consumer right to know for processes should not be considered as a proxy for protectionism


under WTO. New interpretations for the criteria of like products and the necessity test (GATT


Article XX) should be explored in order to consider the WTO as a democratic organization.


c) Developing countries are not necessarily affected in a negative way by PPMs related to


bioethical and environmental concerns. In fact, initiatives as biotrade (promoted by


UNCTAD), fair trade, organic and other forms of sustainable production or harvesting (e.g to


replace illegal crops) could give them a competitive advantage and new trade opportunities


by means of FTA´s. Especially considering that the economy of many developing countries


is composed by large numbers of Small and Medium Enterprises, and they may find


business opportunities when addressing trade related concerns as an alternative for


exploring new markets rather than have the expectation of exporting large quantities of a


product (without the expected ethical or environmental credentials). That would be the case


of Colombia and other countries of the Andean Region.


This analysis would lead us to some relevant questions within different levels when


addressing the impact of trade restrictive measures grounded on Product and Production


Methods:


4.1 Domestic level:


Pressure to change in domestic legislation, mandatory labeling, disclosure of


information (correction of market failures)


Tensions and mandates for the Government (attend consumer demands vs. provide


market access) consumers as citizens, taxpayers and voters.


The process of designing policy measures and possible impacts to trade:


implementation of DSS criteria in relation to the necessity test, risk assessment and


15




the Article XX chapeau (less restrictive means and non discriminatory effects) and the


concept of like products provided in GATT and DSS reports after Tuna/Dolphin,


Korea/Beef and China/Censorship. It is there a room for interpretation of what is


necessary in accordance to consumer sovereignty and the obligation for the


government of providing public goods?


The role of the consumers in domestic legislation/trade policy: mechanisms for


participation, competition laws, the consumers right to know as a legal principle to be


protected by legislation (constitutional law, case law), consumer groups and lobbies,


NGO´s and their role in the emergence of new consumer concerns different from risks


for human health (can they contribute to the reduction of information asymmetries in


bioethics and environmental issues?). Relation between activism and opinion groups


in politics.


The possibility of a clash of values when considering green and bioethical concerns


(not all the green consumers are bioethical consumers per se).


Legal and policy tensions for WTO Member States: to satisfy consumer concerns or


private industry demands regarding labeling and trade bans motivated in trade related


issues.


“Trademark effect” in processes related information (seals and certifications could be


associated with the quality, origin and credentials of the products)


4.2 Regional/bilateral level


Consequences for trade liberalization in WTO+ agreements and other preferences


framed in GATT paragraph 2 (c) the Enabling Clause for Developing Countries:


presence of clauses possible embedding PPMs in FTAS or General System of


Preferences provided by developing countries to Andean Countries with a possible


impact for new business opportunities (illegal crops replacement like in the case of


Colombia)


16




Direct or indirect participation of consumers or other non-state actors as NGOs in


regional or bilateral negotiations when process preferences related to bioethical issues


are at stake.


The role of consumers when implementing FTA´s obligations and the possible clash of


values: trade & development/ sustainability & bioethics. The case of biotrade in the


Andean Region (initiative grounded on the Convention on Biological Diversity). Can


environmental and bioethical concerns necessarily follow the same rationale? e.g an


European league of consumer wants to boycott the import of lizard skin due to the lack


of animal welfare standards nonetheless its green credentials (biotrade certificate)


4.3 Multilateral Level


Analytical drivers for a new interpretation of GATT and TBT and the policy space of


Member states when addressing consumers concerns should include: culture,


science, bioethics and environmental protection aims easily identified in Multilateral


Environmental Treaties.


The role of International Standardizing Bodies as ISO when addressing consumer


concerns related to bioethics and environmental concerns: coincidence or divergence


of criteria. (e.g the case of ISO26000 requirements on social responsibility and


animal welfare standards)


Consequences of WTO case law addressing the concept of like products, PPM´s and


GATT Article XX for the interpretation of consumer concerns as sufficient basis for


State action and restrictions for market access (Non Tariff Barriers and policy space of


Member States). Systemic consequences for the WTO and DSS.


Are bioethical PPMs embedded in the restrictive measure a proxy for protectionism


and disguised discrimination against developing countries?


17




Could the specific PPMs embedded in the restrictive measure be considered as an


ally for development and welfare? What kind of opportunities for Developing


Countries may be identified?


5. Colombian Biotrade and Product Production Methods (PPMs): the tension
between trade related concerns and trade liberalization


The biotrade is a meaningful example of the products characterized for incorporating


different trade related concerns in their production methods, particularly the sustainable use


of natural resources and the benefits for vulnerable rural communities participating during the


production process. Biotrade initiatives usually rely on an institutional framework within the


Andean Region and in the Colombian case they involve not only the government but different


stakeholders: epistemic communities, private companies (mainly small and medium


enterprises), NGOs and specially, the initiative of UNCTAD on biotrade (focused on


developing countries).


The following case study will illustrate the relevance of those referenced questions and


issues when addressing the Colombian case for biotrade in the context of PPMs legal


debate.


5.1 Measuring Colombian biodiversity


Colombia has a privileged position in terms of wildlife considering that Central and South


America would be most biologically diverse continent of the world. Colombia has 4th place in


the world’s biodiversity and in terms of taxonomic groups, it is considered the second richest


country in plant biodiversity, the first in amphibians and birds and the fifth in terms of


mammals. Located in one of the most important biodiversity hotspots -the Andean Region


-Colombia is also considered the second richest country in biodiversity after Brazil and it is


possible to say that one out of 10th species of world´s total flora and fauna is located in its


territory. Having approximately 45.000 and 55.000 plant species (1/3 are considered as


endemic species) Colombia also has the third position in the world in terms of vertebrate


animals (2.890), from which 1.721 are birds ( 20% of the total world´s birds) and 358


mammals (7% of the world’s entire collection).


18




Additionally, Colombian geography is vast and diverse: costliness on the Pacific, Caribbean


and Atlantic Oceans, the Andean mountains, the Amazon and Orinoquian lowland are


epicenter of heterogeneous and very vulnerable ecosystems (e.g mangroves, snow-capped


peaks, grasslands, deserts, wetlands, dry forests, cloud forest among others). According to


the Wildlife Conservation Society14 the following facts describe the vulnerability of Colombian


biodiversity. Those facts should be considered when assessing biotrade projects that may be


stimulated by initiatives on trade liberalization and foreign direct investment.


• The country’s most diverse region is also its most highly populated, with about


70 percent of Colombians living in the Andean Mountains.


• More than half of the amphibian species found in the Colombian Andes (6


percent of the world’s diversity) are endangered.


• With globally significant biodiversity levels, the Central and Western cordilleras


of the Colombian Andes support several species that exist nowhere else.


• A dense human population has fragmented cloud forest habitats, with less than


5 percent of original dry forest cover or wetlands remaining in some areas.


• Framed by the towering, snow-capped mountains of three Andean cordilleras,


Colombia has two fertile and highly transformed valleys found at altitudes of


about 3,000 feet.


• Most of Colombia’s agricultural products( coffee, rice, sugar cane, soy) usually


grow at elevations under 6,500 feet but rely on water from higher elevations,


areas already under increasing pressure from an expanding population.


• The dry, montane, and cloud forests of the Colombian Andes support an array


of wildlife, including the pacarama, Andean condor, puma, golden-plumed


parakeet, red howler monkey, Andean bear, mountain tapir, and neo-tropical


otter. Unfortunately, habitat loss, mining, oil exploration, ecosystem


fragmentation, palm oil and coca plantations, poaching, and wildlife trade are


threatening Colombia’s natural heritage.


14 See http://www.wcs.org/where-we-work/latin-america/colombia.aspx.


19




In this context, Colombian biodiversity is facing a different threats in which trade and


investment could be important causes of depletion and extinction but also global warming,


illegal trade on endangered species, introduction of alien species, transformation of habitats


and social internal conflicts related to social inequalities and security issues inside and


outside national borders15 (mostly drugs and terrorism). Therefore, it is possible to predict


that “biodiversity loss often destabilizes and reduces the productivity of ecosystems,


weakening their ability to generate products and services, as well as their capacity to deal


with natural disasters and human-caused stress, such as environmental pollution and


degradation and climate change”16 (UNCTAD, 2005)


Paying attention to patterns of trade in biodiversity is crucial since industrialized countries


legally imported thousands of wild animals (mostly live primates) that are largely used in


scientific research -in addition to the natural ingredients exported as raw material for


pharmaceutical products-; half of those animals were sent to the United States, that counts


as Colombia’s principal trading partner. Animals are also traded for human consumption and


amusement-pet trade-, in particular parrots and reptiles in which Colombia has an important


comparative advantage. There is also a large amount of trade in Colombian reptile skins,


imported by fashion industries- clothes and accessories- being particularly explored as


products for the biotrade initiatives like in the case of Bolivia.


Nonetheless, the importance of biodiversity has been emphasized in every trade negotiation


in which Colombia has been involved. Bilateral trade negotiations (USA, EU and Canada)


have a very detailed environmental chapter in which biodiversity has a pivotal role, specially


taking into consideration that Andean countries should have a similar position when


negotiating trade and biodiversity due to possible impacts of trade negotiations in intellectual


property rights and traditional knowledge of aboriginal communities (this specific topic is


ruled by Andean community law)


Henceforth, environmental domestic policy has a pivotal role when ensuring coherence


between trade agendas and international commitments on trade and trade related matters.


15 Attempts to protect the biologically rich mountainous Cordillera del Condor region in South America, for
example, have been hampered by a border dispute between Ecuador and Peru. See: Mackay, Richard. (2009).
The Atlas of endangered species 3rd Edition. (pg. 42). United Kingdom: Earthscan


16 UNCTAD BioTrade initiative. Implementation Strategy. UNCTAD/DITC/TED/2005/05 .Geneva. March 2005.
Pág i.


20




Competitiveness and development goals are ideally aligned with biodiversity matters and


thus, the idea of sustainable use of natural resources has been one important concern for


Colombia when identifying potential markets for its exports in goods and services (e.g eco


tourism).


Nonetheless, trade liberalization in goods derived from local biodiversity, especially in the


case of Colombian fauna; emerge as a complex bundle of issues that demand particular


attention of epistemic communities and policymakers in Colombia. That is to say that


International Trade Law -GATT, TBT and SPS Agreements-, negotiations on environmental


goods and services in Agricultural and NAMA negotiations (including green box subsides),


competition and Intellectual Property Rights, international business and international


environmental law have a paramount importance when implementing coherent and


sustainable trade and investment agreements ( also biotrade initiatives involving Colombian


animal wildlife)


5.2 About the UNCTAD´s biotrade initiative in Colombia


The UNCTAD´s biotrade program17 is intended to support sustainable development through


trade and investment in biological resources having the convention on Biological Diversity as


its most important legal framework. In this sense, biotrade aims to promote the sustainable


use of native biodiversity and reconciling its own conservation with development aspirations


of local communities in biodiversity-rich areas in developing countries.


This initiative recognizes that biodiversity18 is the source of many products and services used


in the society. Local communities –especially rural communities in developing countries as


Colombia- depend on biodiversity when satisfying basic (e.g food, medicines, income,


17 The Bio Trade Initiative is under UNCTAD’s Section on Biodiversity and Climate Change in the Trade,
Environment and development Branch/Division on Trade in Goods and Services and Commodities. The notion of
BioTrade is thus at the centre of a conceptual framework that guides the action of the BTI, BioTrade regional and
national programmes, and of organizations that produce and commercialize products and services derived from
biodiversity (fig. 1). Within this framework the term BioTrade is understood to include activities related to the
collection or production, transformation, and commercialization of goods and services derived from native
biodiversity (genetic resources, species and ecosystems) according to criteria of environmental, social and
economic sustainability. To complement the definition of BioTrade, the BTI, the BioTrade national programmes
and other national and international partners have defined the BioTrade Principles and Criteria.UNCTAD BioTrade
initiative. Implementation Strategy. UNCTAD/DITC/TED/2005/05 .Geneva. March 2005. Pág 1.


18 Biological diversity, or biodiversity, refers to the variety of life on Earth, including the variety of plant and
animal species, the genetic variability within each species, and the variety of different ecosystems.
(www.biodiv.org)


21




ecosystem services and cultural and spiritual needs). In Colombia, those rural communities


have a very limited governmental assistance (public services, education and security)


especially because some of them are located in conflict regions that are commonly


characterized for having illegal crops, paramilitary presence and guerrillas that generate


forced displacements. Thus, it is important to emphasize that Colombian rural communities


are not the only vulnerable actors in this domestic conflict since environment and biodiversity


are also depleted and deterred by illegal drugs crops and eco-terrorism acts that are mostly


performed in the forests.


Biodiversity is an important source for essential inputs used in different industries of big


relevance in Colombia: agricultural products, natural ingredients for cosmetics and


pharmaceuticals, pulp and paper. Those products have been the main source for biotrade


initiatives in Colombia.


According to the UNCTAD´s biotrade initiative: “the sustainable use of biodiversity is thus


fundamental for long-term sustainable development. Development countries, which are often


endowed with rich biodiversity, face the great challenge of combining poverty alleviation and


economic growth with sustainable use and conservation of biodiversity” (UNCTAD, 2005)


In this context, developing countries need to “find ways for the long-term financing if


biodiversity conservation which is currently financed mostly through external funding. Trade


of products and services derived from biodiversity could be partly the solution to this


problem. Research shows that market interest and demand for biodiversity products and


services is growing, giving countries rich in biodiversity a comparative advantage.”(UNCTAD,


2005)19 Colombia is not an exception to this trend since policy responses involving different


ministries, export promotion agencies, business communities, epistemic communities and


private entities have been slowly incorporated within the biotrade program sponsored by


UNCTAD.


Colombia makes of biotrade one alternative for competitiveness and sustainable


development. This competiveness has not only a domestic dimension in terms of domestic


market but also an international dimension. In other words, Colombia included different


provisions related to market access for goods and services in bilateral negotiations (WTO+


19 UNCTAD BioTrade initiative. Implementation Strategy. UNCTAD/DITC/TED/2005/05 .Geneva. March 2005.
Pág i.


22




Agreements) that may facilitate biotrade initiatives. This strategy would be not only coherent


with competitiveness policies but also with the Andean region environmental agenda and the


regional strategy for biodiversity (that includes the Biotrade Andean Program).


Biotrade initiatives in Colombia are therefore intended to be an important source for


entrepreneurship in the local business community, scientific research when evaluating


potential impacts on species protection of Colombian biodiversity, and an opportunity for rural


communities to alleviate poverty while enhancing traditional knowledge and ancient


sustainable practices. In this sense, Colombia as other developing countries would make of


biotrade a real competitive advantage in its international trade agenda and thus, creating


incentives to protect its own biodiversity.


In doing so, important efforts must be conducted at national and international levels.


According to UNCTAD, the first step is to create and enable a predictable and stable policy


environment at the national, regional and international levels to promote sustainable trade in


biodiversity products and services. Second step will be increasing the supply capacity of


developing countries of goods and services derived (importance of value chains-biotrade


facilitation program).


In the following chapter we will analyze the two above-mentioned steps within the Colombian


experience. We will address the main challenges and stakes for the long-term


implementation of biotrade program in Colombia, especially when assessing the room for


animal wildlife protection in trade liberalization and the possible impacts on emerging PPMs


based on different perceptions of environmental protection or even bioethics.


5.3 Enabling a predictable and stable policy environment in Colombia to promote
sustainable trade in biodiversity products and services


The BioTrade National Program in Colombia (Biocomercio Sostenible) was launched on


1996, being the pioneer in the Andean region. Colombia settled an institutional framework


that sponsored a set of policies and programs related with biotrade . Having the objective of


“create and foster a mechanism that enhance the investment and trade of biodiversity-based


products and services that use sustainable criteria, and complements and supports local and


regional development efforts for the progress of the country”.20 The program initially was


20 See Biotrade initiative- Regional Programs-UNCTAD.
http://www.unctad.org/biotrade/National/Colombia/colombia.htm


23




launched being focused on the following sectors: natural ingredients (often used for


pharmaceuticals and cosmetics), Helicons and Foliage, Amazonian fruits, honey and


derivates, sustainable agriculture, Guadua, seeds, handicrafts and ecotourism. Nonetheless,


the fauna (animal wildlife) doesn’t have the relevance of local flora for Colombian biotrade.


As said before, Colombia is aware of its incredible potential in terms of biodiversity and


therefore included this topic in many of its own policies related to trade, investment,


intellectual property rights and environment protection. An additional fact for straightening the


role of this country as an example of biotrade is that Colombia occupies nearly the 0.7% of


our earth surface but has the 10% of the entire world’s biodiversity-.


In this sense would be considered as the richest country in the world in terms of biodiversity


by square kilometer. And as stated in previous paragraphs, this is an important reason for


having environmental and biodiversity policies deeply enrooted on the umbrella of the


Andean Community from which Colombia is an active member when developing regional


policies and supranational regulations. This regional policy coherence could be considered


as necessary in order to rationalize the depletion of natural resources and native ecosystem


degradation since the Andean region has the 25% of world’s biodiversity and the higher


number of endemic species21.


Since Colombia has been considering biodiversity as a strategic sector for its


competitiveness agenda, the country launched the biotrade project by facilitating the


networking among the government, civil society, academic networks trough the


implementation of competitiveness policies that encourage trade initiatives and biodiversity


protection. Being included in the “Competitiveness National System22” (Sistema Nacional de


Competitividad-SNC-) sponsored by the Colombian presidency of Álvaro Uribe Velez, the


biotrade project is part of a system that includes a technical committee for biodiversity and


competitiveness in which different actors are supposed to have a voice: the academia, the


21 Andean countries are deeply committed with the sustainable use of their biodiversity and in this sense have
implemented since 2002 the Biodiversity Regional Strategy (Decision 523/2002) under the umbrella of the
Convention on Biological Diversity. This strategy covers the following issues: access to Genetic Resources and
Benefit-sharing, equitable sharing of benefits from the utilization of genetic resources, traditional knowledge,
innovations and practices, intellectual Property Rights related to Genetic Resources and/or protection of
traditional knowledge, innovations and practices related to genetic resources.


22 See Decreto 2828/2006


24




biotrade fund23, the Ministry of International Trade and Environment, other governmental


dependencies related with planning, development, education and science, besides the


private sector and the Colombian Congress (fifth Commission)24.


This multi-actor scenario is intended to entails a participative forum in which the inter-


institutional coordination is required especially when facilitating alliances and networking


between the private sector and the Colombian sub-regions25. Under this policy framework,


Civil Society is also encouraged to participate when deciding matters related with


biodiversity, economic development and improvement of living conditions of rural


communities in Colombia. This platform for biodiversity and competitiveness include a


number of core issues that must be addressed to strength Colombia’s biotrade position in


international markets: predictable and stable legal framework, capacity building and value


chains economic and financial incentives, monitoring and evaluation, science, technology


and innovation.


The implementation of this initiative also demands a high degree of international cooperation


and capacity building for enhancing value chain’s aspects26, intra-sectorial organization-


multifactor effective participation- and specially, a consistent negotiation position in


international fora related to trade liberalization for colombian biotrade products and services.


In this sense, business communities (industrial guilds, entrepreneurs and small and medium


enterprises) and the Colombian government must address the necessary consistency when


shaping its international trade agenda (that includes regional, bilateral and multilateral


commitments).


23 Fondo Biocomercio. See: http://www.fondobiocomercio.com/contenido/int.php?dir=quienes/&pag=historia


24 This Technical Committee on Biodiversity and Competitiveness has also a Technical Secretary in which the
following actors are members: Fondo de Biocomercio, COLCIENCIAS, Alta Consejería para la Competitividad de
la Presidencia de la Republica, Ministerio de Medio Ambiente, Vivienda y Desarrollo Territorial, Ministerio de
Comercio, Industria y Turismo, Departamento Nacional de Planeacion, Instituto de Investigación de Recursos
Biológicos Alexander Von Humbolt. Further alliances with the private sector (Asociacion Nacional de Empresarios
de Colombia –ANDI-)


25 Decentralization is one of the most important characteristics of this program. “The so called Regional
Committees for Biodiversity and Competitiveness” are also encouraged by the Colombian Government.


26 Risks, incomes and benefits equitable distribution, biotrade principles incorporation, reduction of transaction
costs and market failures, information systems (traceability), development and implementation of quality and good
service standards, high value added in colombian biotrade products and services.


25




Nonetheless, important challenges arise for Colombian enterprises (that are mostly SME´s)


in relation with asymmetric information when accessing to international markets, specially


“green niches” and “caring/conspicuous” consumers with different concerns in terms of


environmental protection and bioethics when buying local and imported goods, like in the


case of those related to protection, conservation and sustainable use of natural resources,


trade in biodiversity, biotrade, fair trade, organic products and incorporation of animal welfare


standards in goods (most of them could be classified as PPMs concerns). Hence, it is


possible to say that every single concern in form of environmental PPMs entails a different


approach to nature and biodiversity and has a different impact in terms of trade and


investment (not to mention marketing strategies for international business).


It is important to recall that Colombia is a megadiverse country in terms of animal biodiversity


but nonetheless this advantage has been barely explored when prioritizing products and


sectors for biotrade27. However, it is relevant to mention that biotrade initiatives are intended


to promote the sustainable use of biodiversity as a strategy to preserve living and genetic


resources. Whereas protection of biodiversity implies a restricted or event forbidden use of


biodiversity, like in the case of the CITES Convention28 in which species would be listed to be


protected by the means of restricting or forbidding either domestic or international trade.


As stated before, biotrade initiatives in Colombia have been mostly related to flora rather


than animal wildlife (fauna). Animal biodiversity is commonly used as a source for food,


clothing (fashion industry use them for coats and other accessories in which fur, pelts and


leather are essential material), pets, ecotourism (birding) and scientific testing for products


for human use (cosmetics, pharmaceutics and cleaning). Nevertheless, the impact of


biotrade initiatives on native animal biodiversity would be assessed also by evaluating


27 Colombia has considered as its most competitive sectors for biotrade many flora resources: aromatic,
condiment and medicinal plants, essential oils and extracts, fresh plants, exotic fruits, organic crops, wood
resources. Nonetheless, in its Program for Competitiveness and Biotrade, Colombia also includes its native
animal biodiversity as a sector for potential use in productive activities related to biotrade initiatives.


28 This convention protects endangered species by restricting and regulating their international trade through
export permit system. For species threatened with extinction, which are or may be affected by trade (listed in
Appendix I to the Convention), export permits may be granted only in exceptional circumstances and subject to
strict requirements; the importation of these species also requires a permit, while trade for primal commercial
purposes is not allowed. For species which may become endangered if their trade is not subject to strict
regulation (listed in Appendix II), export permits (including for commercial trade) can only be granted if export is
not detrimental to the survival of that species and if other requirements are met. For species subject to national
regulation and needing international cooperation for trade control (listed in Appendix III), export permits may be
granted for specimens not obtained illegally (Cirelli, Pag 7, 2002)


26




environmental impacts of biotrade projects in terms of ecosystem preservation (e.g


sustainable practices). This is would be relevant for the strategy of promoting positive


impacts on biodiversity in the case of industrial activities when incentivizing payment for


ecosystem services and implementing good environmental practices as part of corporate


social responsibility.


Colombia have been prioritizing native species for biotrade more in terms of flora than animal


wildlife, specially because the consideration of higher opportunities for sustainable


development and socio economic perspectives for rural communities. Nonetheless there


have been some initiatives related to the use of Colombian fauna as an alternative for


exports. This is the case of trade in “Babilla” skins and butterflies.


In such scenario, breeding farms are increasingly considered as an alternative for a


sustainable use of Colombian animal biodiversity. This could be percieved as a response to


illegal traffic in native animal species and the increasing demand of exotic skin animals in


international markets. Regional authorities (Corporaciones Autonomas Regionales) are


competent for granting environmental licenses related to use of biodiversity resources.


Therefore, breeding farms (also known as zoocriaderos) have to apply for environmental


licenses in order to be able to experiment on certain species and this first stage would take


two or three years for the companies to be allowed to breed native species. Once the


conditions for sustainable breeding are established, the breeding farms must pay to the


government a royalty of 5% over the annual production.


Nevertheless, as presented in the introduction it is possible to consider certain trade related


issues that would emerge in the course of trade. Those issues are basically bioethical


considerations with special sensitiveness for “green consumers” that support species


protection as a per se value, and that frame the judgment of the production method or the


content of the product in itself. It is vital to stress certain distinctions that could mislead


consumers with particular preferences for “environmentally friendly” products or bioethical


standards, like in the case of animal welfare. The increasingly relevant animal welfare


standards are not necessarily present in biotrade industries and they are certainly not a


requisite or a condition to fulfill in order to classify a product as a “biotrade product”.


Additionally, trade in biodiversity is not necessarily biotrade, considering that it must respect


certain criteria established by the UNCTAD´s BioTrade initiative. In order words, biotrade


27




aims to make a sustainable use of biodiversity, promote fair and equitable sharing of benefits


derived from the use of biodiversity, increase socio-economic sustainability (productive,


financial and market management), ensure the compliance with national and international


regulations, promote the respect for the rights of actors involved in biotrade activities and


clarity about land tenure, use and access to natural resources and knowledge.


The rationale in biotrade initiatives related to the use of Colombian wildlife may be less


environmentally focused rather than pragmatic. The case of Caiman’s breeding in Colombia


(e.g Zoocriadero Los Caimanes) is grounded on the necessity of diversifying agribusiness


rather than being involved in fauna conservation as a main objective. According to Hector


Raigoza (founder of zoocriadero Los Caimanes29) the business associated with caiman’s


breeding is rather easy but the competition with Center America is difficult. Nevertheless,


trade in lizard’s skins and other exotic animals depend of the European fashion trends and


pressures that come from environmental and animal rights NGO´s (reluctant to accept the


use of native species in luxury fashion accessories). Hence, the perception about trade in


products derived from animal biodiversity is therefore divided. Regardless its origin or


purpose (e.g sustainable use of animal wildlife), production methods could be perceived in a


different way in different markets.


The 70% of breeding farms in Colombia are located in the regions of Atlántico, Bolivar,


Antioquia, Huila, Cundinamarca, Cesar, Córdoba, Sucre and Magdalena. The hunt with the


purpose of capturing individuals for breeding farms is regulated in Colombia (in terms of


quotas and species that could be hunted). Breeding farms have to return certain amount of


individuals to their natural habitats as an ecological compensation.


Colombian breeding farms reproduce native species that are sold in international markets as


exotic pets and also as raw material for maroquinerie (e.g fine leather accessories as shoes,


bags and belts). Almost 86 of Colombian breeding farms have commercial purposes30.


Nevertheless it is still not a big industry since it creates less than a 1000 jobs and therefore,


29 This breed farm produce 1000 boas, 22 iguanas and 14.000 caimans per year. “Los Caimanes” also
provides touristic services (eco-hotel). Visitors can get some information about caiman’s breeding and even eat
caiman’s meat.


30 Animals that are commonly exported as products derived from native biodiversity as babilla skins, chiguiro´s
meat and leather, and living animals as iguanas, boas and lobos polleros (all of them are reptiles). Some efforts
have being developed in order to open markets for babilla´s meat and eggs as an alternative source of protein
since the specie is just used for its skin. That would lead to a more efficient and sustainable use of animal
resources according with some biotrade entrepreneurs.


28




its social benefits cant be compared with biotrade initiatives related to the use of native flora


(e.g. Natural ingredients for cosmetics and pharmaceuticals)


On the other hand, babilla´s skin is commonly exported to Asian (Singapore, Thailand and


Japan) European (France and Italy) and American markets; this last market is characterized


for having an important demand on Colombian native and exotic lizards as pets31.


Additionally, the vast majority of pelts and skins are exported as raw materials and not as


finished products.


In this context, the establishment of breeding farms in Colombia has been considered as a


sustainable alternative for entrepreneurs to satisfy international demand without having a


negative impact on native biodiversity. Illegal trade on animal wildlife is one of the most


important causes of extinction in Colombia 32and unfortunately it is also a very lucrative


industry that local environmental authorities have been trying to combat during the last


years33.


Colombia is interested in opening new markets for its products and services derived from a


sustainable use of biodiversity. In 2008 the biotrade exports increased to US $ 7,3 millions.


Butterflies, beetles34, frogs and ornamental fishes (specially native and exotic fauna that is


located at Amazonian region) were the main animal products exported by nearly 1.25035
Colombian SMEs to United States, Canada and to Arab Emirates.


Thence, biotrade initiatives are intended to make from trade in animal wildlife a sustainable


and equitable alternative for the actors involved in the process. On the other hand, trade in


31 As an average one specimen of iguana (lizard) is sell for US $ 1.50 in the US. Market.


32 119 native species are facing this thread of extinction according to the IUCN Red List of Threatened Species
and other Colombian native species 447 are listed in the Convention on International Trade in Endangered
Species –CITES-.


33 In 2008, Colombian authorities confiscated near to 54,000 animals (for domestic and international markets)


34 “Tierra Viva” is a Colombian company that export beetles mainly to Japan and United Arab Emirates. Those
insects are admired and treated with special devotion in those societies. Another important example of Colombian
exports in native biodiversity is the butterflies’ case (mainly butterfly cocoons in transparent urns). Butterflies are
commercialized for ceremonies or as a symbolic gift. Nonetheless, they are also sold for butterflies’ collectors and
as an artisan element that is used in stationary and bookmarkers. The pioneer company on this business has
been “Alas de Colombia”


35 According to data from the state-run export Promotion Fund


29




biodiversity does not necessarily meets the standards in some way established by the


Convention on Biological Diversity (enabled by UNCTAD´s BioTrade initiative) and then


stakes for Colombia are not negligible. For instance, one possible thread for Colombia is that


unique native species are sold in international markets with the mere purpose of animal


breeding in more competitive conditions -in terms of prices- but without guarantying the


sustainable use of animal biodiversity and then respecting the Convention on Biological


Diversity criteria.


In this context it is possible to conclude that Colombia biotrade initiatives related to animal


wildlife have been barely explored not only because most strategic sectors have been found


in flora but because the environmental policy and regulation that is inherently related to fauna


have been more focused in protection of species rather in conservation strategies (not use


vs. sustainable use of natural resources). Nonetheless, biotrade initiatives may have a


mediate impact on animal wildlife when ecosystems and habitats are maintained when using


flora resources for trade36.


Nevertheless, from not having fauna as a strategic sector for biotrade initiatives does not


follows that Colombia has an stringent policy for to wildlife protection (as a sound


environmental policy). As a matter of fact, the possible consequence of this absence is that


international trade in animal biodiversity would exist but without following the UNCTAD´s


criteria for sustainable use of natural resources, in other words, having trade in biodiversity


doesn’t count as biotrade.


In Colombia, trade in wildlife species is mainly the extraction of individual for illegal trade,


with negative effects for natural populations and ecosystem’s dynamics. On the other hand,


legal trade of animal wildlife is mainly based on a very limited variety of species: Cayman


(Cayman crocodilus), Water Pig (Hydrochaeris hydrochaeris), near 200 species of


ornamental fishes, Black Tegu (Tupinambis nigropunctatus), Green Iguana (Iguana iguana),


Boa Constrictor (Boa Constrictor), Rhinoceros Beetles (Dynastes Hercules) and Butterflies.


According to the study of Reyes Garcia and Mancera Rodriguez (2008), in Colombia it is


difficult to find the exact information and statistics about the number of individual captured


control operatives of illegal traffic on fauna or to certify the accuracy of available information


36 Colombia’s has been not only focused in agriculture and mining but specially in Forest Products. 50% of
Colombia´s land is basically composed by forest reserves intended to support forestall development activities and
wildlife conservation plans for certain species. Colombia has 52, 2 millions of forest hectares- 10% are protected
lands- and 1.1 millions of hectares as continental waters.


30




when assessing the dynamics of illegal trade. Thus, the impact of illegal traffic not only on


native species and their ecosystems (domestic an international) in Colombian wildlife


remains unknown37.


Biotrade initiatives in Colombia could be seen as an important tool to avoid natural resources


exhaustion, unsustainable use and breeding of animal species and even unethical practices


that may be otherwise difficult to detect when not associated with the CBD objectives. The


monitoring and traceability allowed by UNCTAD´s BioTrade principles and criteria for


implementation of biotrade strategies (international and national programs and networks,


value chains and organizations, natural resources management) would be also useful to


provide a more transparent and participative accountability of local and international private


companies when profiting from the use of native animal wildlife.


It is important also to mention that in Colombia biotrade initiatives are highly decentralized.


Every region has the competence to identify strategic sectors when promoting specific


biotrade initiatives (founding and entrepreneurship programs) trough Regional Committees


for Biodiversity and Competitiveness38


Nonetheless, promoting biotrade for the use of Colombian wildlife could face additional


considerations worthy of being explored in a legal and policy analysis, especially from the


perspective of the product and production methods and the non physical characteristic of


product, that is to say, the so called PPMs debate presented at the beginning of this paper.


It is important to mention that the empowerment of civil society and the emergence of new


environmental NGOs (domestic and international) could be considered as a possible


challenge for biotrade initiatives related to fauna, specially because as we said before, there


is not a necessary link between animal welfare standards, for instance, considered when


labeling in organic products39 and biotrade in animal wildlife.


37 Even at the domestic market, trade in animal wildlife has been not measured since it is consider as an
“informal sector”. Legal and illegal traffic on fauna don’t seem to be considered in national statistics.


38 The first regional committees that were created as a part of the national strategy for biodiversity and
competitiveness are the following: Santander, Antioquia, Quindío, Caquetá and Cundinamarca. Those committees
are intended to identify and sponsor biotrade value chains trough mechanism grounded in inter-institutional
synergies.


39 IFOAM, the umbrella organization for organic schemes, has recently adopted its four principles for organic
agriculture: Health, Ecology, Fairness and Care. A standard on biodiversity is currently under development, but
has not been used for this comparison, as it is uncertain if it will be finalized. Obviously, the organic movement is


31




Consequently, the perception of trade in native species would be considered in its bioethical


dimensions and thus brings special attention of NGOs. According to Hobbs (2002) concerns


relating to ethical issues in production have increased for some consumers, and therefore


has demands for information concerning production methods also increase. Intense lobbying


efforts NGOs have been the most visible manifestation of those demands, not only in


developed countries but also in developing countries


In this scenario, different ethical concerns related to the use of nature and animal wildlife


may collide regardless the sustainability of the production method as exhibited in the biotrade


case. In other words, bioethics issues (sometimes confused with environmentally concerns)


would be in conflict with biotrade initiatives related to the use of native fauna as


merchandise, for instance when the main concern is not the sustainable use of the specie


but the use in itself (animal protection) or animal welfare standards.


5.4 May biotrade initiatives be in conflict with animal welfare standards?


States often seek to protect fauna as local natural resource and even try to protect animal


wildlife that is remotely located on the grounds of international environmental obligations


related to migratory species (like in the case of the famous trade dispute between Canada


and the European Communities related to the seal hunt). On the other hand, States may also


want to pursue “moral crusades” by enacting domestic regulations and standards intended to


ensure humanitarian treatment to animals -even animals that are not located in their territory-


as a legitimate public policy measure –that might affect domestic and international trade for


certain animal products-. 40


encompassing some elements of the CBD, but these principles partially hide the emphasis on the absence of
contamination by GMOs, chemical pesticides and fertilizers, animal welfare (when the system is applied to
animals or animal products) and the relatively more superficial treatment of the other dimensions. Specifically,
IFOAM has few requirements dealing with benefit sharing, the rights of actors and land tenure (HAUSELMAN,
Pierre pag 5, 2006)


40 Most human interference with fauna takes place within the jurisdiction of sovereign states; e.g., over 90
percent of all fish caught are caught within 200 miles of the coast (Nielsen, 2007:45). The Convention on the


Conservation of Migratory Species of Wild Animals (also known as CMS or the Bonn Convention of 1979) aims to


conserve terrestrial, marine and avian migratory species.


32




Therefore, the aim of an environmental motivated measure may not be grounded on


wellbeing concerns on animal biodiversity but to assure its preservation for future


generations –sustainable use-41 (like in biotrade initiatives) and therefore non granting


animals (as individuals) a per se value. That is to say that the rationale in biotrade may has


instrumental and anthropocentric grounds. As stated by Nielsen: “Flora and fauna protection


often goes hand in hand; they are living natural resources, part of ecosystem and they


contribute to biodiversity. Flora and fauna are thus a part of what is broadly considered the


environment. But even if flora and fauna are part of the environment, they are not per se


protected in a manner that gives all flora and fauna a right to live as individual specimens”


(Nielsen, 2007:44). This particular distinction emerges as relevant criteria when addressing


the differences between environmental protection and animal welfare.


Continuing with to this approach, it is proper to affirm that animals are considered as natural


resources and therefore some protection under international law is given based to the idea of


“species protection” (survival of the species). Notwithstanding, individual specimens are not


protected per se and in that sense animal welfare is generally outside the aegis of


International Environmental Law (Nielsen, 2007:44)


According to Nielsen what would be particularly important when analyzing the legality of a


trade measure related to animal protection (species or individuals) is that this distinction is,


however, not always simple: ‘one example of practical difficulty is that legislation is enacted


all over the world under headings of environmental, agriculture, religion, etc., without any


concern for establishing a clear dividing line between what is environmental protection of


animals and what is animal welfare protection’ (Nielsen, 2007:44)


As stated in paragraphs before, ethical requirements in biotrade does not include animal


welfare standards. According to the Union for Ethical Bio Trade, the main criteria for


“sourcing with respect” is constituted by: maintaining characteristics of ecosystems and


natural habitats, not using directly or indirectly pesticides banned in the Stockholm


Convention on Persistent Organic Pollutants (POPs, transparency in benefit sharing, ethical


41 Additionally, species have considered as part of common concerns, as a matter of fact “within the
international environmental law, the idea of the protection of Nature for future generations begins in a


contemporary setting with the 1946 International Convention for the Regulation of Whaling. This document


recognizes the `interests’ of the Nations of the world in safeguarding for the future generations the great


resources representing by whales” ( Gillespie, 1997: 107)


33




business relations (OECD Guidelines for Multinational Enterprises and UN Convention on


Contracts for the Sale of Goods), economic sustainability, respect for human rights, adequate


working conditions and land tenure in line with relevant regulations.


Biotrade aims to ensure that the product was obtained without causing negative impacts on


the native specie (e.g depleting, hunting animals in extinction, etc), in other words, without


disturbing the ecological equilibrium and enhancing the purposes of Multilateral Environment


Agreements –MEAs- as the Biodiversity Convention or the CITES. Animal welfare is mainly


focused on the wellbeing condition of the specimen (specimen protection) and in that sense


could be looked as a bioethical concern over the “humanitarian condition” of the animal


regardless the thread of extinction. Hence, when the consumer buy a biotrade product


derived from the use of Colombian wildlife (e.g lizard wallet) may reject or boycott the


product since the sustainability in the production is not a guaranty of the humanitarian


treatment of the animal that was used.


Additionally, since PPMs are usually a matter of policy space, governments may easily enact


measures (e.g labeling) that require the disclosure of the animal welfare standards in the


biotrade product. Since animal welfare is increasingly considered as a social value if not a


condition of sustainable developing, it is possible to think that a government may want to


pursue, for instance due to the pressure of citizens, to regulate this kind of trade by enacting


different sorts of non tariff barriers arguably defended if challenged by invoking Article XX (b)


in order to protect public morals42.


Therefore, Colombian companies would be eager to get market access for “environmentally


friendly” products by means of biotrade. Nonetheless, different non trade barriers like SPS or


TBT measures would be just the tip of the iceberg. Animal welfare concerns for wildlife


products categorized as “green” products could be although “ethically” challenged by equally


environmentally conscious consumers.


5.5 The current scenario for biotrade initiatives in Colombia in bilateral
liberalization


42 This is not an abstract hypothesis if we consider cases as the EC-Seals. (European Communities-Measures
Prohibiting the Importation and Marketing of Seal Products, WT/DS400 and WT/DS401.


34




Biotrade flows are increasingly growing in international markets. Approximately US $ 140


billions counts as biotrade exports coming from different sectors in which Colombia has


offensive interests due its comparative advantage in terms of biodiversity: cosmetics,


pharmaceutics and timber products. Colombia is looking for increase its biotrade market,


nonetheless, its participation has been rather modest regardless its advantages counting


only for the 0.05% of world’s biotrade43.


Interested in diversifying its trade patterns, Colombia has been actively negotiating free trade


agreements with strategic partners that go beyond the disciplines and commitments under


the WTO framework (WTO + Agreements). That is to say that matters relative to competition,


investment, intellectual property rights, government procurement and labor and


environmental standards have been incorporated. What is interesting to analyze is that


biodiversity has been a sensitive topic for Colombia and the Andean region in itself (specially


because its relation with intellectual property rights). Nonetheless, the Colombian position in


trade negotiations has been consistent and unified, particularly in the negotiations with


EE.UU, Canada and the EU.


The Colombian position when negotiating trade and environmental matters often includes the


language incorporated in GATT Article XX (g) related to the preserved policy space when


adopting necessary measures to the conservation of exhaustible natural resources and the


definition of its owns levels of protection. Free Trade Agreements, in which Colombia is


involved, generally encourage a high degree of enforceability of domestic regulations and


international environmental commitments. Besides, those agreements stress the importance


of increasing higher levels of environmental protection and cooperation among the parties-


mechanisms to enhance environmental performance-.


The following charts summarize the most relevant provisions in recent FTA´s negotiations


involving Colombia related to trade and environment -wildlife matters-. Such provisions may


have a potential impact when implementing biotrade initiatives and certainly, PPMs and other


non-tariff barriers biotrade related should be also analyzed once those agreements are


ratified.


43 See “Informe de Ejecución y Actividades 2009. Comité Técnico de Biodiversidad y Competitividad”. Pág 43.


35




5.5.1 Colombia-USA Free Trade Agreement


Colombia- USA Free Trade


Agreement


Relevant Provisions With particular Relevance


for Biotrade Initiatives


between the parties


Interim Environmental


Review


Preservation of policy


space when defining own


levels of environmental


protection-encouraging


high levels-


Enforceability of


Multilateral Environmental


Agreements-MEAS-


Not allowance of waivers


that may encourage trade


and investment by


weakening or reducing


protection afforded in the


respective environmental


laws of the parties


Mechanism provision to


enhance environmental


performance (flexible,


voluntary and incentive


based mechanisms)


Partnerships involving


Article 18.1: Levels of


Protection


Article 18.2:


Environmental Agreements


Article 18.3: Enforcement


of Environmental Laws


Article 18.5: Mechanisms


to Enhance Environmental


Performance


Article 18.7: Opportunities


for Public Participation


Article 18.10:


Environmental


Cooperation


Article 18.13: Relationship


to Environmental


Agreements


Article 18.5: Mechanisms


to Enhance Environmental


Performance




(i) partnerships involving


businesses, local


communities, non-


governmental


organizations, government


agencies, or scientific


organizations,


(b) incentives, including


market-based incentives


where appropriate, to


encourage


conservation, restoration,


sustainable use, and


protection of natural


resources and


the environment, such as


public recognition of


facilities or enterprises that


are


superior environmental


performers, or programs


for exchanging permits or


other


36




Business, Local


Communities, NGO´s,


Governmental Agencies or


Scientific Organizations


Market-based incentives


when appropriate to


encourage conservation


and sustainable use of


natural resources.


Environmental cooperation


(straightening capacities


for environmental


performance)


Biological Diversity


(sustainable use of


biological diversity, respect


and preservation of


traditional knowledge of


aboriginal communities). +


Understanding regarding


biological diversity and


traditional knowledge


Importance of MEAS:


Enhancement of mutual


supportiveness (seek to


balance obligations under


both agreements).


Investment and


environmental protection


(considered as legitimate


instruments to help


achieve environmental


goals.


37




public welfare objective


and not constituting


indirect expropriation)


5.5.2 Colombia-EU Free Trade Agreement44


Colombia- EU Free Trade


Agreement45
Relevant Provision With particular Relevance


for Biotrade Initiatives


between the parties


Seeking complementarities


between trade and


environmental policies


Participation of civil society


Biodiversity and intellectual


property rights: protection


of geographical indications


(misappropriation of


genetic resources and


CHAPTER 4


Technical Barriers to Trade


Confirmation and


Incorporation of the


WTO/TBT Agreement


TITLE X


TRADE AND


SUSTAINABLE


DEVELOMPENT


To strengthen compliance


with each Party's labour


and environmental


Article 18 – Collaboration


on animal welfare


The Sub-committee


established in Article 19


will promote the


collaboration on animal


welfare matters between


the Parties.


Article 5


Trade favoring Sustainable


Development


44 The following text has been provided as preliminary text and wont be listed in the bibliography due that was
analyzed while is still to be amended by the parties.


45 Colombia has an FTA with EFTA (the European Free Trade Association that include Iceland, Liechtenstein,
Norway and Switzerland). Those negotiations were launched in early 2007 and were concluded on June 2008.
This FTA is the first concluded between European States and the Andean country. This agreement contains a
section denominated “Measures Related to Biodiversity” (deeply related to Intellectual Property Rights)


38




knowledge, innovation and


associated practices.


Parties agree on a


reciprocal obligation to


adopt protection measures


on that regard)


Specific mention of


products derived from


biodiversity


legislation


to strengthen the role of


trade and trade policy in


the conservation and


sustainable use of


biological diversity and of


natural resources, as well


as the reduction of


pollution in accordance


with the objective of


sustainable development;


Article 2


Right to regulate and


levels of protection


Each Party shall strive to


ensure that its relevant


laws and policies provide


for and encourage high


levels of environmental


and labor protection.


Dialogue and cooperate as


appropriate with respect to


trade related


environmental issues of


mutual interest.


The Parties recognize the


value of international


environmental governance


and agreements


The Convention on


International Trade in


Endangered Species of


2. The Parties shall strive


to facilitate and promote


trade and foreign direct


investment in


environmental good and


services.


3. The Parties agree to


promote best business


practices related to


corporate social


responsibility.


4. The Parties recognize


that flexible, voluntary, and


incentive-based


mechanisms can


contribute to coherence


between trade practices


and the objectives of


sustainable development.


Article 6


Biological Diversity


3. The parties will


endeavor to jointly promote


the development of


practices and programs


aiming at fostering


appropriate economic


returns from the


conservation and


sustainable use of


biodiversity.


6. The Parties shall strive


to strengthen and to


39




Wild Fauna and Flora, the


Convention on Biological


Diversity


Article 5


Trade favoring Sustainable


Development


Article 6


Biological Diversity


Recalling article 15 of the


Convention on Biological


Diversity, the Parties


recognize the sovereign


rights of States over their


natural resources, and that


the authority to determine


access to genetic


resources rests with the


national governments and


is subject to their national


legislation.


enlarge the capacity of


national institutions


responsible for the


conservation and


sustainable use of


biodiversity, through


instruments such as the


strengthening of capacities


and technical assistance.


5.5.3 Colombia-Canada Free Trade Agreement


Colombia- Canada Free


Trade Agreement


Relevant Provisions With particular Relevance


for Biotrade Initiatives


between the parties


Comprehensive FTA


accompanied by parallel


agreement on environment


cooperation -FTA are


subject to the 2001


framework for conducting


Article 4: Public


Information and


Participation


Article 5: Biological


Article 1: Definitions




For purposes of this


Agreement:




“environment law” means


any statute or regulation of


40




environmental assessment


of trade negotiations-


Seeking to enhance and


enforce environmental


laws and regulations


Straightening cooperation


on environmental matters


(in bilateral, regional and


multilateral for a)


To promote sustainable


development trough:


Sound environmental


management, public


participation and


environmental governance.


For the purpose of this


agreement, environmental


law includes the


conservation of biodiversity


( flora and wildlife:


endangered species and


their habitat)


Express remission to


Andean Legislation for the


purpose of defining the


concept of indigenous and


local communities.


Diversity


Importance given to the


criteria established by the


Convention on Biological


Diversity


Article 6: Corporate Social


Responsibility


Section II – Environmental


Cooperation Article 7:


a Party, or provision


thereof, the


primary purpose of which


is the protection of the


environment, or the


prevention of a


danger to human life or


health, through:


(c) the conservation of


biological diversity, which


includes the protection of


wild flora or wildlife,


endangered species and


their habitat, and specially


protected natural areas in


the Party's territory. For


the Republic of


Colombia, conservation of


biological diversity also


includes its sustainable


use;




Article 5: Biological


Diversity (6) The Parties


shall endeavor to


cooperate in order to


exchange relevant


information regarding:




(a) the conservation and


sustainable use of


biodiversity;




41




Preservation of policy


space when defining own


levels of environmental


protection-encouraging


high levels-


Parties shall encourage


the promotion of trade and


investment in


environmental goods and


services


The agreement stress the


importance of the


Convention on Biological


Diversity


Explicit mention to


Corporative Social


Responsibility for


environmental matters


Calling the general


exceptions of GATT Article


XX and XIV


(b) the avoidance of illegal


access to genetic


resources, traditional


knowledge,


innovations and practices;


and




(c) the equitable sharing of


the benefits arising from


the utilization of genetic


resources and associated


knowledge, innovations


and practices.


Colombia is therefore opening new scenarios for biotrade also within FTA´s. Issues and


chapters related to trade and environment, intellectual property rights and technical barriers


to trade are considered like relevant tracks for negotiating biodiversity issues and products


(beside market access in agriculture and NAMA negotiations). Every track entails its own


issues and sensitiveness for the parties in the negotiation and thus, coordination between the


different ministries, regions with and private stakeholders is crucial. And possible level of


sensitiveness among the parties should be evaluated in terms of possible non-trade barriers


42




(as PPMs) for biotrade products. This type of cooperation would be useful for dealing with


the PPM debate at the multilateral level in which it is still to be resolved.


Colombia has been the leader and pioneer of biotrade initiatives in the Andean region,


having a primary domestic structure (as a network) and international cooperation alliances –


centralized and decentralized- to promote biotrade, especially in flora biodiversity.


Nonetheless it is not clear if not including fauna species within its strategic biodiversity


sectors may be a sound policy for protection rather than conservation of wild animal species


or a mere loophole that may potentially favor trade in native species without fulfilling the


“sustainability test” that is included in the CBD and therefore promoted by the BioTrade


UNCTAD´s initiative.


6. Conclusions


As we suggested in previous chapters, the multilateral scenario poses different challenges to


Colombia –as well to other developing countries interested in promoting biotrade-. The WTO


negotiations on environmental goods and services is waiting for its floor when reviving Doha


´s negotiation for agriculture and NAMA, not only in terms of market access46 but also when


dealing with Non Tariff Barriers. This particular issue will have the most prominent relevance


for biotrade interest since different trade measures grounded on the TBT/SPS concerns may


arise. Questions as PPM´s and product specific NTB for biotrade products may be therefore,


the real challenge for developing countries when negotiating environmental goods and


services.


In this context, the negotiation of specific NTBs for biotrade products –especially animal


wildlife products-may be complex. Not only because technical and Scientifics considerations


(specially zoonotic risks under SPS) but the sensitivity that the issue may arise in terms of


trade in wild animals (even if they are not threatened species and listed in Annex I of the


CITES ) and also animal welfare considerations that different Member States may pose as


46 Since biotrade products are not exported in massive quantities, Colombia may not have offensive interest in
market access. Besides, there is not yet a special category for biotrade products in the harmonized tariff system.


43




objections for that kind of products and therefore making even more complex the debate


about PPMs47.


Nonetheless, it is possible to consider that the PPMs issue may be also seen as an


opportunity for a country that is mainly composed by SMEs. Traditional methods of rural and


aboriginal communities in Colombia and their ancestral knowledge applied to different


methods of production that are increasingly as important as the product in itself, should be


explored as alternative ways to fulfill stringent standards imposed by developed countries


when addressing non trade related issues.


Those standards are commonly challenged by developing countries due to their impacts in


the costs of trade. Nevertheless, developing countries should understand that by analyzing


the rationale inside the measure (assuming that it doesn’t come from a not mere


protectionism) there could be additional possibilities precisely to address PPMs as a


business opportunity that may improve welfare (e.g by creating non exiting jobs) of rural


communities and society as whole.


According to Conrade ( 2011), by the turn of the twenty-first century, arguably most legal


scholars writing on the topic of PPMs had repudiated the idea of considering them as illegal


per se under WTO law. In addition it has been said that “with the increasing importance of


non-tariff barriers to trade , and the conclusion of several other multilateral agreements on


trade in goods in the Uruguay Round, the importance of the GATT declined. Questions


relating to traceability of products, potentially falling into the scope of other WTO


Agreements, attracted considerable attention” (Conrade ,2011)


PPMs debate is complex not only because it relies in a bundle of legitimate concerns or


moral values present in any given society (e.g biodiversity protection, sustainable use of


natural resources, animal welfare standards) but because issues as consumer information


are intrinsically related with this debate, and thus, prima facie WTO consistent.


Nonetheless, the principle of Special and Differential Treatment requires cooperation and


assistance for developing countries, and thus is not contradictory or unfeasible to think that a


47 Considering that the biotrade concept entails a PPM (process or production methods) per se and also animal
welfare considerations in products with animal origin. The whole idea of PPM´s is still a legal debate within the
GATT and the WTO covered agreements.


44




developed Member State could analyze the architecture of the regulatory measure (e.g


intended to protect species or specimens) and the aims and effects on the developing


country in order to identify with the support of multiple stakeholders what would be the


opportunities or alternatives given present conditions for the developing country affected by


the measure and then be able to achieve the same legitimate goals by incorporating –if


possible- alternative practices that may lead to the same outcome.


Biotrade products incorporate environmentally driven PPMs but that could be insufficient to


guaranty market access on the basis of WTO framework. Non-tariff barriers related to food


safety (SPS), existing prohibitions on importing certain animal (regardless their inclusion in


CITES) like in the case of the seal products, moral concerns related with the inclusion of


animal welfare standards, etc are mere examples of the policy space of WTO Member States


that has to be analyzed by including the position of different stakeholders on the issue


(particularly civil society and consumers)


Developing countries could be benefited by PPMs when the private sector is aware of their


existence and then, be explored as an opportunity rather than a threat in terms of transaction


costs. New production methods aimed to fulfill bioethical expectations of consumers,


incorporation of the local “know how” when addressing similar issues (e.g by means of


incorporating aboriginal ancestral knowledge when hunting or breeding) could have a


different perception when considering them as a trade barriers per se. Exploring this new


insights when facing the new challenges of international trade law would be useful to avoid


trade disputes that the WTO and the Dispute Settlement Body is perhaps not ready yet to


solve.


45




7. References


Product and Production Methods and WTO


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46




• Howse, Robert and Reagan, Douglas. (2000). ‘The Product/Process Distinction — An


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