Risk, Science, and Law in the WTO
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.
RISK, SCIENCE, AND LAW IN THE WTO: THE CENTRALITY OF INSTITUTIONAL CHOICE
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. …