Biotechnology produces a broad range of biotech products, the most discussed of which are genetically modified organisms (GMOs). Biotech products are more resistant to pesticides and more resilient to global warming than traditional crops. These and other capacities of GMOs enhance their potential to address climate change and to reduce world hunger. Furthermore, the cultivation and commercialisation of biotech products may enhance national economies of importer and exporter states. Accordingly, international trade concerning biotechnology is arguably a means of increasing global economic growth.

However, there is a high degree of scientific uncertainty regarding whether biotechnology may create serious, and sometimes irreversible, risks to human health and the environment. On the one hand, biotechnology can compromise biosafety. Lack of certain evidence on the impacts posed by biotechnology to biosafety can incentivise a precautionary approach towards the international trade of potentially harmful products. On the other hand, under international economic law, governments cannot impose unjustified limitations to the protection of trade. Hence, how to balance those incompatible international legal requirements on states?

Furthermore, the nature of the modifications to genetically modified crops (and other forms of agrobiotechnology) allows for the applicability of patenting law, which enables the legal “enclosure” of the crops’ genetic make-up. This gives rise to contrasting ethical and moral views on the patentability of (vegetable and animals) lives that, in turn, are raising thorny discussions on the essential content of the “Ordre Public and morality clauses” in the field of biotechnology patents.

Despite the human health, environmental and social risks, international trade in biotech products is flourishing. The rules set out under the World Trade Organization (WTO) for their import and export are at the centre of a tension between, on the one hand, norms supporting the unprecedented advancement (and accordingly open trade) of new technologies and, on the other hand, norms protecting human and environmental rights from technological risks. This gives rise to the question of how to solve that tension under the international law framework, which encompasses fragmented systems protecting human rights, intellectual property and international economic law. The current literature has not systematically addressed this question. Specifically, normative tensions between rules of different international law regimes are, to some extent, caused by the fragmentation of international law. The fragmentation of international law is a topic of extensive scholarly debate.Footnote ¹ Scholars differ as to the sources of such fragmentation,Footnote ² arguing that it is (1) conceived as the result of the specialisation of international legal regimes,Footnote ³ (2) described as a child of the decentralised structure of international law,Footnote ⁴ (3) considered the result of the fact that states adopt different legal regimesFootnote ⁵ or (4) deemed the consequence of states’ difficulties managing regulatory measures.Footnote ⁶ Most importantly, in spite of different suggestions for fostering a solution,Footnote ⁷ the fragmentation of international law seems “inevitably destined to increase”.Footnote ⁸

The role of the WTO in this fragmentation is far from marginal. This can be inferred from Trachtman’s suggestion to “recognize and embrace the dominant status occupied by the World Trade Organization’s dispute settlement system” to foster a solution for the defragmentation of international law.Footnote ⁹ However, despite its potential to address the phenomenon of international legal fragmentation, the WTO is still perceived as “the setting in which integration is perhaps least likely to occur, which makes it the most insightful context to study integrationist efforts”.Footnote ¹⁰

This special issue, the articles of which were discussed at the symposium “The Era of Biotechnology: Ethics, Risks, and Limitations to Trade within the WTO Framework”,Footnote ¹¹ aims to show how the WTO can overcome normative and judicial issues caused by the fragmentation of international law so as to become a forum in which a process of harmonisation between WTO law and international law will likely occur. In doing so, the special issue develops into three main parts.

Part I discusses key aspects of the WTO legal responses to technology risks and scientific uncertainty surrounding the international trade in biotechnology. Specifically, Islam’s article purports to highlight the trade-restrictive effects of the scientific emphasis under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and critically comments upon the aversion of this WTO agreement to precautionary measures and the consumer concern of the harmful effects of biotech products that may be necessary to protect public health and safety in a WTO Member State. Fontanelli’s article uses the 2006 WTO Biotech case as a cut-off point to assess how international trade law has evolved since then. Its goal is to observe whether the European Union (EU) and the USA have waged a battle by proxy outside the WTO. In doing so, this paper offers a thorough comparison between the model offered by relevant free trade agreements, such as the Comprehensive Economic and Trade Agreement between the EU and Canada (CETA) and the Canada–US–Mexico Agreement (CUSMA), and the scientific-centric SPS Agreement.

Part II explores the main legal challenges in reconciling economic interests with human rights relating to the international trade in biotechnology. Specifically, the article by Córdoba-Marentes and Londoño-Lázaro casts light on how to reconcile international trade in potentially harmful technology products and human rights. This article addresses the thorny discussion about the essential content of the “Ordre Public and morality clauses” in the field of biotechnology patents and offers suggestions on how to align international legal regulations on trade and economic interests with morality clauses.

Part III examines judicial responses to the main challenges in reconciling the economic and non-economic values carried by biotechnology. In particular, the third part emphasizes the key role that the principle of proportionality may take in aiding decision-makers to deal with the competing nature of the interests in trading biotech products and ensuring biosafety. In this respect, Guida’s article analyses the justifiability and application of proportionality under the WTO framework. It shows that the lack of an analytical structure supporting a reasoned judicial balance between trade and non-trade values under the WTO can be filled by performing a well-structured proportionality analysis. In so doing, the paper demonstrates that the WTO judicial bodies’ adoption of proportionality in the context of biotechnology would allow for the achievement of a balance between competing interests by design rather than by chance.

Drawing together all of the analyses conducted and solutions provided in relation to scientific uncertainties, normative antinomies and judicial challenges surrounding the international trade in biotechnology, the findings emerging from this special issue will contribute to casting light on the timely and topical question of how we find a point of equilibrium between the revolutionary advancement offered by technology and the safeguarding of fundamental human rights from uncertain, although potentially irreversible, technology risks undermining human well-being and environmental protection.