1.  Genetically Modified Crops, Agricultural Sustainability and National Opt­Outs – Enclosure as the Loophole? Dr. Mary Dobbs m.dobbs@qub.ac.uk Queen’s University Belfast

2. To ban or not to ban?  EU regulation of GM crops:  Highly harmonised… BUT:  Article 26b of Directive 2001/18  Choice for the Member States? Restrict/prohibit and, if so, how?  Consider from perspective of agricultural sustainability.  Whether agricultural sustainability justifies restrictions on GM crops:  Impact of GM crops and industry (enclosure) on AS?  Permissible to restrict/prohibit in light of Article 26b and also WTO law? (Supported by British Academy/Leverhulme Small Research Grant)

3. Challenge for Agricultural Sustainability?  Considerations and indicators? (innumerable!)  Future generations - Ethics/justice  Recognition of finite resources & limited capacity of the environment.  Risk diversification.  Need for biodiversity – crop diversity, including genetic diversity.  Mechanisms? Relationship with GM crops generally?

4. Imprinting enclosure

5. Mechanism 1 - bioconfinement

6. Mechanism 2 - Patents TRIPS, UPOV, CBD Directive 98/44/EC (Biotech Directive) Convention on the Grant of European Patents Broccoli II and Tomato II decisions

7. Mechanism 2 – Patents in context of ‘coexistence’  Article 8 of Biotech Directive  Schmeiser case; Bowman case.  Article 11 of Biotech Directive applicable to purchasers of GM seeds only….

8. Turning the tide?  TRIPS: Article 27(3) (b)  sui generis system permissible, and not just that outlined in UPOV

9. Article 26b?  Option 1? Voluntary restrictions – limitations  Option 2? Unilateral restrictions that are justified:  Public morality?  Avoidance of admixture?  Agricultural & environmental policy objectives? Plus socio-economic impacts  Biodiversity – fictitious or actual?  Prohibit/restrict crops that contain patented/patentable traits/genes?

10. GATT XX(g)  If outright ban, then GATT XX justification required.  N.B. same justification should be used at EU and WTO levels.  If public morality at EU level  then PM at WTO level.  If coexistence/freedom of choice at EU level  then??????  If agricultural sustainability (agri & envt’l policy &socio-economic impacts)  ‘Exhaustible natural resources’?  Scope?  Caveats?

11. Conclusion  Agricultural sustainability: biodiversity is central.  GM crops – great potential, but problematic.  Patenting – protect private interests and also encourage innovation (and thereby also diversity), but captured.  Turn enclosure on its head  justify restrictions at EU and international level.