Author: Jacqueline Peel

Title: Risk Regulation Under the WTO SPS Agreement: Science as an International Normative Yardstick?

Abstract:

Processes of scientific risk assessment, carried out by specialized agencies, are a familiar part of health and environmental regulation in countries like the United States, and increasingly, in the trans-national decision-making structures of the European Union. Challenges to risk regulatory measures, mounted through the courts, present judicial decision-makers in both systems with similar problems as they attempt to grapple with issues arising at the interface of law and science. In an era of globalization, tradeoffs reached in domestic risk regulatory processes are also likely to be subject to international scrutiny, in no case more than when governments are asked to defend their risk regulatory measures under the Sanitary and Phytosanitary Agreement of the World Trade Organization. This Agreement, with its requirement for regulatory measures to be scientifically justified and based on a risk assessment, echoes the quest for science-based, rational decision-making on questions of health and environmental risk found at the national and trans-national levels. These similarities suggest the potential for comparative borrowing where the models for managing law and science interactions developed in the US or EU would serve as guides for WTO decision-makers reviewing the credibility of scientific theories underlying national SPS measures, and their connection to an adequate risk assessment. This paper examines the 'law and science' models that have emerged from the jurisprudence of the American and European courts which, despite employing a very different rhetoric, take similar, broadly deferential approaches to the review of science-based risk regulatory measures. However, deference to the judgment of regulators balancing social against scientific considerations has not been a feature of the SPS case law to date. This jurisprudence - notwithstanding attempts by the WTO Appellate Body, in some cases, to permit flexibility in domestic risk assessment processes and preserve Members' rights to establish risk regulatory measures according to their own, societally-accepted levels of SPS risk - continually returns to a position that gives a privileged role to science, and the views of scientists, in determining the proper scope of risk regulation. The paper argues that the different direction taken by WTO decision-makers in the SPS context, when compared with their judicial counterparts in the US and EU, reflects the absence of normative reference points in the international trading system which could guide WTO decision-makers in striking a "balance … between the shared, but sometimes competing, interests of promoting international trade and of protecting … life and health (Beef Hormones)." The result, increasingly, in SPS cases is a move away from recognizing the legitimacy of Members' risk management policies motivated by domestic social considerations towards the seemingly more neutral and universal criterion of science. The irony, however, is that the value-laden questions inherent in much health and environmental risk regulation are thereby delegated to a body of knowledge whose claims to authority rest on its very lack of normative content.

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