These two SNSF programs of which certain projects are made available online here were carried out by a small group of researchers at the Law Faculty of the University of Geneva between 2001 and 2006. They are all situated in the trade and environment context, specifically in the domain of the interactions between WTO agreements and multilateral environmental agreements (MEAs) and focus on the role of science in the determination of the WTO compatibility of trade-related environment measures which an importing country may institute in order to limit or ban certain imports.

Phase one especially benefited from cooperation with the Swiss Federal Office for the Environment (FOEN). Both programs emphasized the importance of the Cartagena Protocol on Biosafety and of the Codex Alimentarius for the regulation of genetically modified products. The Biosafety Protocol does not really differ from the WTO in its scientific approach to risk assessment except that in both the assessment and the management of risk it contains provisions regarding the application of the precautionary principle. At the same time it leaves open or subject to further negotiations several issues such as liability and redress, labelling, compliance, socio-economic considerations, or the acceptance of risk.

As far as the Codex Alimentarius is concerned, the group limited itself to environment-related food safety, specifically GM food. The Codex is closely related in spirit to the SPS Agreement thanks to its heavy reliance on scientific risk assessment with relatively detailed and highly procedural provisions. On the other hand some of the unresolved issues are the same in the Codex and the Biosafety Protocol, especially the politically thorny question of the labelling of GM food which is considered to be misleading and unnecessary by the US especially, but necessary by most other countries, especially in Europe where adequate information on all products, particularly food products, is considered an unalienable consumers’ right. The Codex traditionally emphasizes truthfulness and commercially relevant information in its labelling whereas the Protocol has gone a step further by introducing a temporary solution which stipulates that shipments containing raw GM food or feed crops for processing must be labeled as “may contain” living modified organisms. The Codex has not found a solution yet on the two very divisive issues of GM labeling and of precautionary trade restrictions.

Phase one of this research concludes that the international community needs to arrive at a reconciliation of principles, rules, standards and procedures which have been negotiated under disparate legal frameworks with often divergent objectives. The presently established relationship between on one hand the complexities of risk assessment and risk management regarding threats to biodiversity and certain aspects of food safety, and on the other hand the relative simplicity of import restrictions allowed under WTO agreements based on traditional science-based risk assessment procedures is becoming more and more difficult to maintain. It does not take into consideration the nature of recent scientific discoveries and processes. We can see a wide consensus over the need to work toward the twin notions of mutual supportiveness and legal agreements that pay deference to each other in their respective domain of authority such as biodiversity and trade in the cases of the Biosafety Protocol and the WTO. Our research shows that this objective is not only legally coherent but also politically legitimate and realistic.

The second phase of this research emphasizes the related question of the role of scientific standards on environmental and public health issues in the context of trade restrictions. The global regulation of trade in genetically modified organisms (GMOs) through multilateral negotiations and organizations is at the center of both research programs, but the second phase has further emphasized the study of the relationship between WTO Law and science, and it covers new ground with regard to the communication of risk, an issue area that has been very much neglected in the literature. Risk communication is specifically considered as a distinct element of the risk analysis process (defined by the Codex Alimentarius as consisting of risk assessment, risk management and risk communication).

The need to communicate scientific knowledge to decision-makers is not only linked to the need to make sure that the decision-making process is based on sound scientific evidence, but also to a basic requirement of democracy. The regulation of risks is part of the basic functions and mission of a democratic system of rules and governance. Consequently, scientific experts cannot decide alone on important science-related policy issues. Besides, scientific controversies should also be brought to the attention of the public. We can easily find at the heart of this reflection the persistence of scientific uncertainty in hazardous situations where the extent of risk may range from a hardly conceivable potential to a statistically verified percentage. In addition, industrial risk assessment techniques are often, if not always, somewhat biased in favor of avoiding false positives, i.e. they tend to downplay findings which would increase costs on technological developments. The public might therefore have a different “risk assessment” and “risk management”. The scarcity of research into risk communication in comparison with the quite abundant literature on risk assessment and risk management raises the question as to what may have caused this unbalance in the amount of attention given to the three pillars of risk analysis. Based on negative experiences which underestimated the importance of building up the public’s trust, the traditional top down and closed decision-making process inherent science policy is increasingly being replaced by better possibilities for the public to participate early in the decision-making process.

The issue of inadequate information disclosure in the face of uncertainty is located at the core of the relationship between law and science and related issues such as especially environmental governance. Withholding information, however, can have very serious consequences as shown by the European Environment Agency (EEA) in the case of the widespread use of asbestos products over many decades: "Information was not used, or ignored: or we were all taken by ‘surprise.’" The 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters is an attempt to sensitize the decision-makers in environmental matters about the importance of public participation and risk communication.