Genetically Modified Crops, Agricultural Sustainability and National Opt­Outs – Enclosure as the Loophole?

This paper will investigate whether and how the new ‘opt-out’ clause for genetically modified crops within the European Union (EU) can be used to promote biodiversity and thereby agricultural sustainability in accordance with both WTO and EU law, through relying on the very techno-legal means that pose the initial challenge to agricultural sustainability.

In principle GM crops have the potential to promote agricultural sustainability through increasing biodiversity. However, the applicability of intellectual property law to both the original GM crops and its progeny leads to the potential enclosure of the crops’ genetic make-up, thereby simultaneously risking undermining sustainability and indeed food sovereignty.

The paper will proceed to consider the potential mechanisms for Member States to restrict GM cultivation, including the new ‘opt-out’ clause that enables voluntary and unilateral restrictions where the relevant criteria are met. Although voluntary restrictions are feasible, some Member States (including Ireland) have not requested them for the current GM crops prior to the applicable deadline. Further, there is no guarantee that biotech companies will continue to agree to such restrictions for future authorisations. Consequently, the potential to impose unilateral restrictions is of significant value as an independent mechanism and in order to strengthen requests.

One key potential justification, permitted under WTO law would be through protecting exhaustible natural resources (Article XX GATT). Although international intellectual property law and specifically TRIPS and UPOV facilitate the development of techno-legal protection of GM crops by biotech companies, it is argued that such extensive protection undermines agricultural sustainability and thereby justifies proportionate restrictions in order to protect biodiversity.