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Forum
Paper Title: Why science is not always the answer: Building a case
for the consideration of non-scientific factors by WTO dispute resolution
bodies in decisions concerning SPS threats (full
text )*
Description of Forum Paper:
This paper represents my initial thinking on the research project
which I am undertaking during my time at NYU as an Emile Noel Fellow. Simply
put, my research project deals with the use (and abuse) of science in the
context of decision-making under the WTO's Sanitary and Phytosanitary Measures
(SPS) Agreement. The SPS Agreement, which deals with measures adopted by WTO
Members for the purposes of plant, animal and human life and health protection,
establishes requirements for Members to undertake a scientific risk assessment
and to ensure that their SPS measures are based on scientific principles and
not maintained without sufficient scientific evidence. My research project is
concerned with the question of how legal decision-makers interpreting these
provisions use science in their decision-making processes and whether their use
of science (especially where it privileges scientific views of risk over
non-scientific concerns) has the potential to constrain the health and
environmental choices Members make in deciding on their 'appropriate level of
SPS protection'.
The paper presented to the forum on 25 September 2003 sets out
some of the questions I am interested in researching in this area and my ideas
on an appropriate methodology. In regards to the latter, I see a close analysis
of the decisions of panels and the Appellate Body in SPS disputes to date as
being an essential part of the study. Since issues of how science is used in
legal decision-making are raised by the topic, I also see literature in the
law/science area as potentially offering useful perspectives for guiding the
empirical analysis.
I would reiterate that the paper attached represents my thinking
on these questions at a very preliminary stage of research and following the
presentation I have developed my ideas considerably. I would ask readers to
bear those provisos in mind when reviewing this initial paper on the topic.
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