Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Risk, Science, and Law in the WTO

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Risk, Science, and Law in the WTO

Article excerpt

This panel was convened at 9:00 a.m., Thursday, March 25, by its moderator, John Jackson of Georgetown University, who introduced the panelists: Sungjoon Cho of Chicago-Kent College of Law; Gregory Shaffer of University of Minnesota Law School; Tracey Epps of the New Zealand Ministry of Foreign Affairs & Trade; and Annecoos Wiersema of Moritz College of Law, Ohio State University. *

* Sungjoon Cho did not submit remarks for the Proceedings.


It is sometimes observed that in our complex, technologically dynamic world, legal institutions attempt "to import science into law" and "export law's problems to science." (1) For legal institutions, it is sometimes thought that the expertise of science can help to resolve competing claims in a neutral manner, evade normative judgments with their distributional implications, and legitimize legal decisions through the authority of science. For many, however, this move to incorporate science into legal judgments is highly problematic because it permits judges, who do not understand scientific methods and their limitations, to evade judicial responsibilities. This concern lies at the heart of many critiques of decisions of panels in cases under the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) of the World Trade Organization (WTO). As you will see, in acknowledging this point, I take a complementary institutional tack. In my remarks, I will also extrapolate from what I have learned from my book-length study with Mark Pollack of the international law and politics of genetically modified foods. (2)

One starting point for a WTO panel in a case involving a measure that potentially falls within the scope of the SPS agreement is to ask why there is a reference to science and risk assessment in the agreement. In particular, Article 2.2 of the agreement requires WTO members to "ensure that any [SPS] measure ... is based on scientific principles and is not maintained without sufficient scientific evidence," regardless of whether it is applied equally to domestic and foreign products. Article 5.1, in turn, prescribes" "Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal, plant life or health." The only exception is "where relevant scientific evidence is insufficient," in which case, under Article 5.7, "a Member may provisionally adopt ... measures on the basis of available pertinent information," subject to certain conditions.

It seems clear from the negotiating history of the SPS Agreement that the reason why the references to science and risk assessment were made is because of the negotiators' concern with protectionism, and, in particular, discrimination against foreign agricultural products. Anyone who follows trade policy knows how politically sensitive agricultural trade is. This sensitivity is illustrated by (1) the lack of full incorporation of agriculture under the GATT system; (2) the creation of the Agricultural Agreement and the tariffication of non-tariff barriers, but with the result that there are much higher average tariffs and other trade distortions permitted for agricultural products than for non-agricultural products; (3) the creation of a distinct SPS agreement out of concern that SPS measures may be manipulated to evade the constraints of tariff bindings; and (4) the major concern of developing-country representatives with SPS measures confronting their exports to the United States and European Union, in particular, but also to other developing countries.

A separate starting point, however, is from the perspective of risk regulation itself in an interdependent world in which not only goods, but also harms, cross borders, whether they be harms to the environment or to human health. As social theorists Ulrich Bech and Anthony Giddens have written regarding the modern condition, through science we constantly manufacture new risks which we then attempt to address through science. The concept of risk refers to "the combination of the likelihood (probability) and the harm (adverse outcome, e.g. mortality, morbidity, ecological damage, or impaired quality of life) resulting from exposure to an activity (hazard)." (3) We mainly depend on our national governments and transnational regulatory cooperation to address these risks, complemented at times by specialized international institutions. However, national regulators often disagree. They often disagree based on factors other than environmental and health risks, and it can be difficult to discern the motivating factors.

Where there are disagreements among constituencies regarding the risk of a product, supporters of the product or technology tend to focus on the need for a neutral scientific risk assessment, as per Articles 2.2 and 5.1 of the SPS Agreement. In contrast, skeptics of a technology (such as of genetically modified (GM) products, for example) tend to focus on the uncertainty of its effects, insisting that uncertainty is a different concept than risk, and entails not just differences in degree but of kind. They point to the classic Knightian distinction that risk is something that one can calculate, while uncertainty is something that one cannot. Borrowing from sociologists such as Ulrich Beck, some argue that with such modern industrially produced risks, "the actual consequences ultimately become more and more incalculable." (4) They thus focus on the need for considerable precaution in risk management decisions, such as regarding the adoption of new agricultural production processes. In addition, they argue that risk assessments under uncertainty are inherently value-laden, since the perception of risk itself reflects cultural predispositions, including among scientists, so that risk assessments are not purely technical. Where value claims are raised, disputes gain political salience. In the case of the regulation of GMOs, for example, opponents of the technology emphasize the values of non-industrialized, non-corporate-dominated, non-gene-tampered, "slow food" agriculture. People committed to these views do not wish to engage simply in the discourse of risk assessment.

So what ought a WTO panel to do in light of the texts and conflicting claims? From a first order of analysis, we could view the texts as calling for a double delegation of authority to two non-majoritarian institutions for resolving disputes over risk regulation that affects trade: (1) delegate dispute resolution to a third-party decisionmaker, the panel and Appellate Body; (2) delegate (in part) assessment of the adequacy of a risk assessment to independent scientific experts selected by the panel. This latter delegation is not a complete one, but the scientific expert opinions can sway panels, cognitively shaping the way panelists view the issues.

From a second order of analysis, however, WTO panels and the Appellate Body face interpretive choices of how to weigh science and the application of a risk assessment that will have institutional implications. In terms of the assessment of the risks mentioned in Article 5.1, we can view a panel's choices in terms of three broad options, which are part of a continuum of showing greater to lesser deference to a national administrator:

(1) formal proceduralism. Under this approach, all that would be required is for the national administrator to reference a risk assessment that went through relatively easy procedural hoops, whether the risk assessment is conducted by the regulator or a third party.

(2) review process subject to circumscribed criteria. Here the panel would review the adequacy of the risk assessment along certain minimum substantive criteria defined by the Appellate Body.

(3) independent substantive judgment. This approach would make an independent determination on the weight of the scientific evidence, likely with a margin of maneuver for the national administrator.

Although the WTO panels and Appellate Body maintain that they are following the middle course, they can do so with different degrees of stringency regarding the requirements for a risk assessment. They often will be tempted to get a sense of the bottom line (the third option), even if they do not acknowledge they are doing so.

The panel's interpretive options can be viewed in broader institutional terms in terms of who decides, and how they decide, issues involving social risk. One can see the interpretive choices as implicating different allocations of institutional authority, which I categorize into five ideal types. Each of these choices involves different trade-offs, which likely will weigh differently in discrete cases.

First, a panel can show deference to the national decisionmaker, provided that the decisionmaker went through the formal procedural hoops of a risk assessment. This strategy is tempting for the reasons that Andrew Guzman has articulated. (5) The risk to the WTO system could be great if a panel gets the scientific judgment wrong, and these risks could exceed the benefits of stringent review of SPS measures. Science has gotten some matters dramatically wrong. For example, Francis Galton discovered the regression to the mean which is central to the empirical move in the study of international law (for which there is a panel taking place parallel to this one); yet he also was the founder of eugenics. The downside of complete deference to a national administrator, nonetheless, is the accumulated costs of protectionist abuses and the asymmetric effects that they have on foreigners unrepresented in the domestic decision-making process.

Second, a panel can engage in intensive scrutiny of the scientific justification given by the national administrator, after interrogating independent scientific experts' views. Here, the judicial panel enlists science as an ally and a legitimizing discourse to combat protectionism that has taken the form of a facially neutral measure, but one having disparate impact on foreigners. From this perspective, if there has not been a risk assessment that demonstrates additional risk from a product, and the main challenge to imports is one based on values and ideology (as is arguably the case with the European Union's treatment of many genetically engineered products), then product labeling (a market-allocating form of regulation) may be a better alternative.

Third, a panel could rely on international standards developed through an international political process, with authority shifting to a specialized international political body. The increased importance of standard-setting bodies such as the Codex Alimentarius Commission and the International Plant Protection Commission represent such a development, spurred by the SPS agreement. We nonetheless remain far from an international technocratic administrative law-like system, despite the expressed intent of the SPS agreement's negotiators.

Fourth, a panel could engage in judicial balancing of the concerns at stake. Under this option, the panel would weigh the importance of the national objective at stake behind the measure, the contribution of the measure to obtaining the objective in relation to reasonable alternatives, and the impact of the measure on the trade of third parties. The judicial body would, in other words, explicitly engage in the balancing itself.

Fifth, a panel can engage in more process-based review, reviewing the procedures used in determining the national measure in terms of transparency, due process, and the articulation of reasoned analysis. We see this approach adopted in the U.S. Shrimp/Turtle case (involving a form of risk regulation which engaged scientific experts), as well as in the EC Biotech case. This approach is attractive, as it can spur deliberation based on reasoned analysis. Although this approach faces the risk of procedures being empty and leading to predetermined outcomes, law and science can exercise some normativity, shaping how national administrators develop procedures and apply them. Joanne Scott, for example, has written on the impact on the EU legal order of the WTO SPS agreement and panel decisions under it. (6) The effectiveness of such an approach nonetheless depends on finding a trusty buddy in the domestic system, which will take the required procedures seriously, meaningfully deliberating over the evidence.

Analysis of these challenges should recognize (reciprocally) that WTO panels and the Appellate Body have systemic interests in protecting the WTO system from legitimacy challenges. Such a concern can sometimes drive them to show greater deference to national decisionmaking, especially where a case is politically charged. One can read the Appellate Body's 2008 U.S. Continued Suspension decision in the meat hormone saga in this light.

Ultimately, in my view, the WTO dispute settlement system is designed to help countries resolve disputes between them. It does so by reframing disputes in legal terms, clarifying the terms' meaning through jurisprudence, and requiring certain domestic procedures that enhance deliberation and the use of justification based on evidence. In this way, the dispute settlement systems should be viewed as operating not so much in a binary sense of win/lose or legal/illegal, but rather in an institutionally dynamic one. The interpretive choices of WTO texts in individual cases, however, will remain difficult and contentious, not least because of the substantive and institutional implications they raise.

In conclusion, science and law have become increasingly important modes of social decisionmaking in complex societies. Science, however, should not drive WTO judicial decisions in the sense that panels abdicate interpretive responsibilities to science. Rather, science and risk assessments should be used by panels to inform the institutional choices they ultimately face regarding the amount and type of deference they show to national decisionmakers regarding risk regulation in particular cases in an economically and environmentally interdependent world. The choice of process-based review is typically the best one, since it is one in which judicial panels have relative experience and capacity. Yet it should also be recognized that processes can be easily manipulated and panels need to make judgments about them for which evidence from independent scientific experts is useful. WTO panels have good reason, in other words, also to maintain the option of engaging in more than purely procedural review, while remaining aware of the limitations of scientific methods.

By Gregory Shaffer, Melvin C. Steen Professor of Law, University of Minnesota Law School.



(3) Jonathan B. Wiener & Michael D. Rogers, Comparing Precaution in the United States and Europe, 5 J. RISK RES. 317, 320 (2002).

(4) ULRICH BECK, RISK SOCIETY: TOWARDS A NEW MODERNITY 171 (Mark Ritter trans., 1992).

(5) Andrew T. Guzman, Food Fears: Health and Safety at the WTO, 45 VA. J. INT'L L. 1 (2004).

(6) Joanne Scott, European Regulation of GMOs and the WTO, 9 COLUM. J. EUR. L. 213 (2003).


International environmental law has long grappled with questions about the role of science and risk. Within international environmental law, the precautionary principle has emerged as one means of managing science, risk, and uncertainty. My remarks will address what the World Trade Organization (WTO) can learn from the way this principle has been addressed in international environmental fora.

As we innovate, we take on risk, and we cannot live in a risk-free world. The question then becomes how we should assess that risk and how we should manage it. Typically, those who make decisions regarding risk divide tasks into risk assessment and risk management. This results in a bifurcation of roles. The scientists are involved in risk assessment; the policymakers are involved in risk management. The implication we tend to draw from this division of labor is that risk assessments are themselves value-neutral.

To limit the possibility that political preferences and values will override this apparently value-neutral risk assessment, policymakers are often required to base their risk management decisions on the risk assessments provided by the scientists. This approach is evident in the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement). (1) Under Article 2.2, WTO members are to base any SPS measures on "scientific principles" and ensure that their SPS measures are "not maintained without sufficient scientific evidence." (2)

However, risk and the role of both science and values in risk decisionmaking are more complicated than this division of labor suggests. First, risk assessment requires choices. Risk assessors choose methodologies and make assumptions that can have a significant effect on the outcome of their risk assessment. While calculations of the level of certainty regarding a particular risk assessment can help inform risk managers about some of these issues, even these rely on assumptions and methodological choices.

Second, commentators disagree about why the public may have different risk assessments and risk management approaches from those of the scientists--the "experts." Diverging risk perception may be due not only to lack of information on the part of the public but also to different cultural and social factors. (3) These factors suggest that risk assessment itself is not value-neutral, and may even be culturally constructed. (4)

Third, both risk assessors and risk managers are faced with more than an information deficit. They are faced with inherent uncertainty. Ecologists tell us that we are part of an ecological system with no fixed outcome; that we are in a state of disequilibrium, rather than equilibrium. (5) As a result, there is no baseline to which we can seek to return. Thus, the problem is not that we have a temporary information deficit. The problem is that we can never have enough information to allow us to make value-neutral decisions. In the face of inherent uncertainty, science can only take us so far. All decisionmaking is value-laden.

This inherent uncertainty is the most problematic for decisionmakers seeking to rely on science as the value-neutral source of information on which to base decisions. My remarks deal primarily with this third difficulty.

To address the combination of uncertainty and a fear of irreversible consequences, the precautionary principle has become an important decisionmaking tool in international environmental law. Emerging from the sidelines in 1992, it took on life as Principle 15 of the Rio Declaration on Environment and Development: "In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." (6)

The WTO addressed the precautionary principle--albeit not for the first time--in a dispute about European Community (EC) provisions conceming genetically modified organisms (GMOs), the Biotech case. The WTO panel declined to rule directly on the international legal status of the precautionary principle. Instead, the panel reached its decision largely on procedural grounds, sidestepping the substance of questions about the safety or otherwise of GMOs and related questions about the validity of the European Union's substantive approach to GMOs. (7)

In its brief overview of the precautionary principle, the panel stated: "Notably, there has, to date, been no authoritative decision by an international court or tribunal which recognizes the precautionary principle as a principle of general or customary international law." (8) The panel also rejected the view of the EC that the precautionary principle could be relevant for interpretation following Article 31(3) of the Vienna Convention on the Law of Treaties because of its incorporation into other agreements, namely the Cartagena Protocol on Biosafety and the Convention on Biological Diversity (CBD). (9)

This approach to the role of the precautionary principle was misguided. There is more to the world of this principle than simply whether it has been endorsed by a court or tribunal as a general principle of international law. The precautionary principle pervades the world of international environmental law, particularly in its use in the activity of multilateral environmental agreements (MEAs). The way in which the principle is used in these fora can shed important light on just what the WTO could learn from international environmental law about risk, science, and the precautionary principle.

First, the precautionary principle has been used in MEAs as a stopgap measure, a principle to be applied in the face of a lack of information. (10) This is consistent with the approach of Article 5.7 of the SPS Agreement, which, according to the WTO Appellate Body in Beef Hormones, reflects the precautionary principle. (11) Under Article 5.7 of the Agreement, members are allowed to adopt SPS measures "[i]n cases where available scientific information is insufficient ... on the basis of available pertinent information." (12) These measures are only to be adopted provisionally. Members are required to "seek to obtain the additional information necessary for a more objective assessment of risk" and to "review the ... measure accordingly within a reasonable period of time." (13)

Second, the precautionary principle plays a prominent role in issues that the parties understand involve not just a lack of information, but also inherent uncertainty. Thus, conferences of the parties to the CBD have given the precautionary approach a prominent place in discussions about dealing with invasive alien species and about implementing an ecosystem approach. (14) With regard to the ecosystem approach, for example, the parties have stated that "[g]iven the uncertainty associated with defining the limits to ecosystem functioning under most circumstances, the precautionary approach should be applied." (15)

The Cartagena Protocol on Biosafety, negotiated pursuant to the Biodiversity Convention, is another prominent example. (16) It addresses biosafety--the same issue that formed the subject matter of the Biotech Panel decision--and adopts the precautionary principle. The definition of biosafety published by the CBD Secretariat acknowledges that risk is inherent to this issue. According to the CBD Secretariat, "[t]he concept of biosafety encompasses a range of measures, policies and procedures for minimizing potential risks that biotechnology may pose to the environment and human health." (17)

Use of the precautionary principle for issues where inherent uncertainty is implicitly or explicitly acknowledged can also be seen elsewhere in international environmental law. Debates about the role of the principle in decisions to list species on the appendices of the Convention on International Trade in Endangered Species are driven by implicit assumptions about the reliability and predictability of data regarding species' levels and the effect of trade in those species. (18) Parties with more faith in the predictive capacity of the data often argue against the role of the precautionary principle. Those who are less certain about the data argue in favor of a role for the precautionary principle. In addition, the principle has driven action on climate change, dating as far back as 1992 and, with the Kyoto Protocol, 1997, and continues to support action on climate change in the face of multiple levels of uncertainty. (19)

This short foray into the world of international environmental law suggests that the role of the precautionary principle is far more nuanced than the question of whether it has been recognized by a tribunal or court as a principle of customary international law would suggest. Indeed, the principle is less a clearly defined principle than an approach that recognizes not only the limits of our current knowledge, but limits to what our knowledge can ever provide. As it is used in international environmental fora, the precautionary principle is a tool to stimulate discussion about how to govern where inherent uncertainty is assumed.

This understanding is potentially helpful to the WTO's understanding of the precautionary principle and how the principle could assist in the resolution of complicated disputes. Dispute resolution bodies of the WTO do not need to go beyond the parameters of their own mandate to acknowledge that a full understanding of risk and science and their role in the WTO can be informed by the work of other bodies who deal with risk and science. This approach is consistent even with the Biotech Panel's narrow reading of Article 31(3) of the Vienna Convention on the Law of Treaties, because this work would be "informative." (20) As a result, WTO dispute resolution bodies might come to see that the precautionary principle can play a nuanced and helpful role in navigating risk and science, regardless of whether it has been explicitly and authoritatively recognized by an international court or tribunal.

It may be that WTO dispute resolution bodies are not the institutions best placed to address the complexities of risk and science. Nevertheless, they will sometimes be charged with that task. When those bodies are faced with decisionmaking involving risk and science, an understanding of how international environmental law has addressed similar questions can inform how the WTO navigates the complexities involved.

(1) Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, 1867 UNTS 493 [hereinafter SPS Agreement].

(2) Id. at art. 2.2.

(3) See, e.g., Paul Slovic, Perception of Risk, 236 SCIENCE 280 (1987).

(4) See Sheila Jasanoff, The Political Science of Risk Perception, 59 RELIABILITY ENG'G & SYS. SAFETY 91 (1998); Dan M. Kahan et al., Fear of Democracy: A Cultural Critique of Sunstein on Risk, 119 HARV. L. REV. 1071 (2006).

(5) See Annecoos Wiersema, A Train Without Tracks: Rethinking the Place of Law and Goals in Environmental and Natural Resources Law, 38 ENVTL. L. 1238, 1246 (2008).

(6) Rio Declaration on Environment and Development, para. 15, UN Doc. MCONF.151/5/Rev. 1 (June 13, 1992), reprinted in 31 ILM 874. Even critics of the principle do not necessarily object to the Rio Declaration's formulation of the principle. See CASS SUNSTEIN, LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE 18, 23--24 (1993).

(7) Gregory Shaffer, A Structural Theory of WTO Dispute Settlement: Why Institutional Choice Lies at the Center of the GMO Case, 41 NYU J. INT'L L & POL. 1, 62 (2008).

(8) Panel Report, European Communities--Measures Affecting the Approval and Marketing of Biotech Products, at 340-41, WT/DS291/R, WT/DS292/R, WT/DS293/R (Sept. 29, 2006) (adopted Nov. 21, 2006) [hereinafter Biotech].

(9) Id. at 341-42.

(10) Annecoos Wiersema, Adversaries or Partners? Science and the Precautionary Principle in International Wildlife Treaty Regimes, 11 J. INT'L WILDLIFE L. & POL'Y 211, 218 (2008).

(11) Appellate Body Report, European Communities--Measures Concerning Meat and Meat Products (Hormones), at 46, WT/DS26/AB/R, WT/DS48/AB/R (Jan. 16, 1998) (adopted Feb. 13, 1998).

(12) SPS Agreement, supra note 1, at art. 5.7.

(13) Id.

(14) Conference on Environment and Development, June 3-14, 1992, Convention on Biological Diversity, 31 ILM 818, 822 (June 5, 1992) [hereinafter CBD]; Wiersema, supra note 10, at 220-21.

(15) Convention on Biological Diversity, prin. 6, Dec. VII/11 (CBD COP7, 1994).

(16) Cartagena Protocol on Biosafety to the Convention on Biological Diversity, UN Doc. UNEP/CBD/ExCOP/1/ 3, reprinted in 39 ILM 1027 (Jan. 29, 2000).


(18) Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 UST 1087, 993 UNTS 243. See Wiersema, supra note 10, at 223-28.

(19) Framework Convention on Climate Change (UNFCCC), May 7, 1992, 31 ILM 849 (entered into force Mar. 21, 1994); Kyoto Protocol to the UNFCCC, Dec. 10, 1997, 37 ILM 22 (1998) (entered into force Feb. 15, 2005).

(20) Biotech, supra note 8, at 341.

By Annecoos Wiersema, Assistant Professor of Law, Michael E. Moritz College of Law, Ohio State University.



The establishment of the World Trade Organization's dispute settlement system was undoubtedly one of the most important developments in the Uruguay Round of negotiations, which founded the WTO and its constituent agreements in 1994. The system has also been widely commented upon as a rare example of a successful international legal regime with an enviable compliance record. (1) It is governed by the Dispute Settlement Understanding (DSU), which requires disputing Members to first engage in consultations to seek a mutually agreed solution. Where consultations fail, the Member complaining of a breach by another Member may request establishment of a panel to hear the complaint. Panels are composed of three individuals, nominated by the WTO secretariat, who are generally trade experts with governmental experience. The panel must make an "objective assessment" of the facts; (2) the complaining party or parties must prove the violation has occurred; and the responding party has the burden, if it wishes, to raise a defense. A panel decision may be appealed on points of law by either party to the dispute. Any such appeal is heard by three members of the WTO's Appellate Body, which is a standing body of trade law experts.

Trade disputes cover a wide range of subject matters, including traditional trade measures such as countries' tariff regimes, import quota systems, and industrial subsidies, but also domestic regulatory measures that allegedly restrict trade in violation of the WTO Agreements' various rules and obligations. My remarks reflect on the appropriateness of the WTO dispute settlement model in one particular subset of disputes concerning regulatory measures, namely, those enacted by Member governments to protect human health and safety.

WTO agreements recognize that countries have a right to take measures necessary to protect the health of their citizens. Three agreements are particularly pertinent. The exception in Article XX(b) of the General Agreement on Tariffs and Trade (GATT) allows countries to take measures necessary to protect human, animal, and plant health, even where they otherwise violate the country's obligations under the agreement. The Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) deals specifically with risks arising from additives, contaminants, toxins, and disease-causing organisms, and explicitly recognizes the right of countries to enact trade-restrictive measures to protect against these threats. The Agreement on Technical Barriers to Trade (TBT Agreement) similarly recognizes the right of countries to protect health, while also disciplining countries' implementation of technical regulations and voluntary standards.

The difficulty, from a trade liberalization perspective, with recognizing the right of Members to take health measures that restrict trade is that such measures have potential to be used as a cover for protectionist purposes. In the event of a dispute, WTO panels and the Appellate Body must attempt to sift out protectionist measures from genuine ones.

To address the potential problem of disguised trade restrictions, GATT Article XX(b) explicitly requires that trade restrictive measures enacted to protect health be "necessary" and that they not constitute arbitrary or unjustified discrimination, or a disguised restriction on trade. The SPS Agreement goes a step further in attempting to flush out protectionist measures by relying on science to determine when a measure is necessary. If a country enacts a measure that is not based on international standards, it must show that the measure is not being maintained without scientific evidence (Articles 2.2 and 5.1), and that it is based on a risk assessment that takes into account "available scientific evidence" (Article 5.2). The rationale for these requirements is that requiring scientific evidence provides an objective measure to ascertain whether or not a country's measure is a genuine SPS one. However, experience with the SPS has taught trade diplomats and lawyers what scientists have always known: science is rarely certain, and in most cases will not be able to provide the objective certainty desired by the law.

Some cases have proven more difficult to resolve than others. The remainder of my remarks consider what makes some disputes so difficult. It then discusses concerns about the appropriateness of the WTO dispute settlement mechanism in the context of the more difficult health cases, and whether there are any alternatives to the system as currently designed and applied.


It is helpful to consider "trade and health" cases as lying on a continuum. At each end of the continuum are cases that are actually quite clear-cut. At one end lie cases where there is a clear and serious risk to health (for example, E. coli-infected meat); in these cases, health essentially trumps trade. Where a risk is clear-cut, supporting science will be available as required under the SPS Agreement, and it will likely be a fairly straightforward matter to prove "necessity" under the GATT. At the opposite end of the continuum lie cases where it is easily discernible that the domestic motivation for the trade-restrictive measure is to shelter local industry from imports under the guise of health protection.

Cases become more difficult in the middle of the continuum, particularly where there is a large degree of scientific uncertainty around the risk. Scientific uncertainty is endemic in the field of human health and risk assessment, and it will often be impossible to get a clear answer as to the extent and/or nature of the risk to health claimed by the regulating country. (3) This is a problem because, if the nature and extent of the risk are not known, how can a panel determine whether the risk justifies a trade-restrictive measure?

A factor that greatly complicates scientific uncertainty is public opinion. In some cases, the preponderance of scientific opinion may say there is no risk to health, but the public is convinced that there is. Perhaps the public is relying on reports of minority scientific opinion, or it might have picked up on the uncertainty present. This is especially likely to happen in the case of new technologies, such as genetic modification or nanotechnology. There is a significant body of research showing that the public often overestimates risk because the public bases its judgments on misconceptions, mistakes, or irrational beliefs. (4) The public can also be easily influenced, sometimes by protectionist interests who gain from suggesting that imported products carry a risk. (5) These factors suggest that governments should not be able to justify trade-restrictive measures based on public opinion alone. On the other hand, some commentators suggest that public perceptions of risk, while different from those of experts, are no less valid and should be respected. (6) This is a difficult situation for panels; it is hard to know exactly what has influenced public opinion--protectionist interests or something more genuine? If it is something genuine, what should the panels' response be?


The DSU provides for resolution of disputes and is considered a central element in providing security and predictability to the multilateral trading system. (7) It aims to achieve the prompt settlement of disputes through securing a positive solution. (8) The DSU provides for several methods of dispute settlement. However, in cases concerning health measures, only two methods have been used to date. The first method is that provided in the case of SPS and TBT measures through the SPS and TBT Committees. These Committees meet regularly and have a mandate to hear Members' trade concerns. (9) Countries bring their concerns to the Committee that gives them an opportunity to seek a mutually assured solution. If efforts to reach a solution fail, the issue may escalate to a full-blown dispute, and this is where the DSU comes into play with Members able to request consultations, seek the establishment of a panel, and enjoy the concomitant right of appeal.

Some commentators have suggested that not all disputes are appropriate for submission to resolution by panels. (10) The difficult cases highlighted here are examples of such disputes. There are at least four concerns. First, that the bilateral/adversarial nature of the WTO dispute settlement system is in contrast to the fact that health rules do not simply affect governments but also consumers (this reflects the notion that health is a public good). (11) Second, that WTO panels and the Appellate Body are not equipped to decide on complex scientific evidence, especially where there is no clear answer. (12) Panelists are not scientific experts and, even when they have the assistance of such experts, may still have difficulty in understanding complex scientific issues. Third, it might be argued that the WTO has no place ruling on disputes that are often built upon differing values and cultural perceptions. This is essentially a concern based on issues of accountability and legitimacy. Fourth, countries may be less likely to comply with decisions that are controversial. The type of cases under discussion are classic examples of such cases due to the fact that panels may have to engage in complex matters including interpretation of science, or judgment of national values. Where there is a fundamental point of difference, a cultural touchstone, the respondent country might simply decide to wear the retaliation (arguably this was the case in the EC--Hormones case). The concern is that this may undermine the sustainability and legitimacy of the WTO.


Article 7 of the DSU provides that, before bringing a case, a Member must exercise its judgment as to whether action under these procedures would be fruitful. This leads to the suggestion that complainants should exercise restraint and not bring certain cases. However, this suggestion overlooks the reality that governments face pressure from industry and interest groups that, in some cases, will compel them to engage in WTO dispute settlement, regardless of the sensitivity or complexity of the subject matter. This raises the question whether there are alternatives to resolution by a panel.

The DSU does provide, in Article 5, for the possibility of using the Director-General's good offices, mediation, or conciliation. As well, Article 25 provides for resort to arbitration. However, these options require the parties to agree to their use and they have virtually never been used. Even if parties did agree to use them, a significant problem remains. If two Members ultimately take the positions they do because such views are fundamental to their culture, or because they are under strong political pressure domestically to do so, it is extremely unlikely that these alternative dispute settlement mechanisms will yield any more satisfactory result than would formal dispute settlement.

Further, these alternative methods are essentially private mechanisms, which raises the problem that dispute resolution using good offices, mediation, or arbitration would be taking place in a less transparent forum than the panel and Appellate Body process. This would likely impact the legitimacy of the process. A less transparent dispute outcome risks being more difficult to justify to domestic constituencies than one that is at least relatively transparent. (13)

In the final analysis, it is inevitable that a small number of difficult disputes will occur that will be intractable due to the sensitive issues involved. Further, these disputes will put pressure on the multilateral system and the balance that the Agreements seek between trade liberalization, and domestic regulatory autonomy and recognition of non-trade values. While it is critical to pay attention to values other than trade, it is equally important not to open a Pandora's box of protectionism that would undermine the many gains from trade. Participants in the trading system must accept that there may be little that dispute resolution--of any kind--can really do to resolve certain issues. Certainly a panel can make a decision, but it cannot do so to the satisfaction of all parties, and it cannot force compliance.

Members should accept that, realistically, a very small number of highly controversial cases involving instances of public interest should not be allowed to undermine what is largely an extremely successful dispute settlement system. It is certainly necessary to accept that these difficult cases will occur, and Members and panels should work in a principled way towards resolving these cases. The way a panel handles hard cases is critical, and involves appropriate use of experts, thorough and careful review of the facts, appreciation of the challenges involved in interpreting and judging scientific evidence, and application of an appropriate standard of review that respects domestic regulatory needs without paying undue deference to the country's actions. The manner in which governments handle cases domestically is also important--ensuring that full and frank information reaches the public, rather than allowing the debate over health risks to be dominated by groups seeking to protect their own interests.

(1) See generally Donald McRae, Measuring the Effectiveness of the WTO Dispute Settlement System, 3 ASIAN J. WTO & INT'L HEALTH L. & POL'Y 1 (2008). See also Carlos Manuel Vazquez & John H. Jackson, Some Reflections of Compliance with WTO Dispute Settlement Decisions, 33 L. & POL'Y INT'L BUS. 555.

(2) WTO, Art. 11: Dispute Settlement Understanding, in WTO ANALYTICAL INDEX: GUIDE TO WTO LAW AND PRACTICE (2003) [hereinafter WTO].

(3) The U.S. National Research Council, for example, has noted that "because our [scientific] knowledge is limited, conclusive direct evidence of a threat to human health is rare." NATIONAL RESEARCH COUNCIL, RISK ASSESSMENT IN THE FEDERAL GOVERNMENT: MANAGING THE PROCESS 11 (1983).

(4) See generally Jeremy D. Fraiberg & Michael J. Trebilcock, Risk Regulation: Technocratic and Democratic Tools for Regulatory Reform, 43 MCGILL L.J. 835 (1998); A.M. Weinburg, Science and Its Limits: The Regulator's Dilemma, in 27 DE MINIMUS RISK 37 (C. Whipple ed., 1987).

(5) One way in which the public may be influenced by protectionist interests is via the media. As Slovic notes, the news media "rather thoroughly document mishaps and threats occurring throughout the world." P. Slovic, Perception of Risk, 236 SCI. 280, 280 (1987).


(7) WTO, supra note 2, at art. 3.2.

(8) Id. at art. 3.7

(9) Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, 1867 UNTS 493 [hereinafter SPS Agreement], at art. 12; Agreement on Technical Barriers to Trade, Apr. 12, 1979 [hereinafter TBT Agreement].

(10) See, e.g., Robert Howse, The WHO/WTO Study on Trade and Public Health: A Critical Assessment, 24 RISK ANALYSIS 501, 507 (2004). Howse finds that the EC--Beef Hormones case is a good example of a case that was not appropriately resolved through WTO dispute settlement.

(11) Joost Pauwelyn, The Limits of Litigation: Americanization and Negotiation in the Settlement of WTO Disputes, 19 OHIO ST. J. ON DISP. RESOL. 121, 132 (2003).

(12) See, e.g., Howse, supra note 10, at 507.

(13) Dispute settlement is more transparent than the alternatives, in the sense that panel and Appellate Body reports are public documents, amicus curiae briefs are generally allowed, and, increasingly, panel hearings are opened to members of the public.

By Tracey Epps, Senior Trade Law Adviser, New Zealand Ministry of Foreign Affairs & Trade. These remarks reflect the personal views of the author and in no way purport to represent the views of the government of New Zealand.

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