See related PhD Dissertation:

Prévost, Denise. 2009. Balancing Trade and Health in the SPS Agreement: The Development Dimension. PhD Dissertation. Nijmegen, The Netherlands: Wolf Legal Publishers, 1060 + clix p.

http://www.wolfpublishers.com/book.php?id=475

See also the closely related subsection
'Precautionary Principle' in the same section.

The Faculty of Law of the University of Geneva has presented a festschrift in 2009 to Prof. Anne Petitpierre-Sauvain which includes a chapter on the relationship between science, uncertainty and the SPS Agreement; it builds to some extent upon the first Special Edition published by EcoLomic Policy and Law (2006) on "WTO Law, Science, and Risk Communication," edited by Prof. Laurence Boisson de Chazournes and Urs P. Thomas. Risk Communication, which is part of Risk Analysis, has been very much neglected in the literature. The Special Edition addresses this question in the comprehensive overview (phase II see below); furthermore, Makane Moïse Mbengue and Urs P. Thomas propose a conceptual framework for the analysis of  Risk Communication which consists of notification procedures, informing the public, and ongoing monitoring.

The question of GM regulations and their ramifications with WTO law has been at the center of two research projects over five years (2001-06) at the Law Faculty of the University of Geneva (Anne Petitpierre et al.). See Phase II 2004-2006; Phase I 2001-2004 English Version; and a somewhat different French version. Financed by the Swiss National Science Foundation, it concludes that the narrow science-based approach essentially limited to risk assessment, as stipulated under WTO law, is more and more difficult to maintain in view of the more comprehensive  methodologies of the Biosafety Protocol and the Codex Alimentarius which in addition to science and risk assessment also emphasize risk management, risk communication, and precautionary trade measures under certain conditions.

How does the WTO deal with the interface between law and science? How does its Dispute Settlement Body judge whether trade-restrictive measures of an importing country are based on scientific evidence which is adequate to justify them according to the relevant agreements of the trade regime? What is the role of international standards and what instruments of risk management does an importing country enjoy under the WTO agreements? A Colloquium jointly organized in Geneva on October 11, 2005 by Prof. Anne Petitpierre and Prof. Laurence Boisson de Chazournes of the University of Geneva's Faculty of Law and by Mr. Hussein Abaza, Head of the UNEP Economics and Trade Branch, has addressed these questions; the Report of this Colloquium is now available here. Those issues are also part of the wider theme of this site's main section Biosafety, the Precautionary Principle, and the EC-Biotech Dispute, and of the subsection on Risk Communication.

The Panels of the WTO' Dispute Settlement Body which are set up for each individual dispute have wide-ranging powers to search for scientific evidence, information and expertise, and subsequently to use this information as the panel members consider appropriate. This information may include quantitative as well as qualitative risk assessments,  and scientific majority views as well as diverging opinions from competent and qualified scientists (For an overview of these and related aspects of the law and science interface see The Precautionary Principle’s Evolution in Light of the Four SPS Disputes, by Makane Moïse Mbengue and Urs P. Thomas.)

In view of the highly dynamic nature of scientific research and the fact that it often displays controversies among peers it is easy to understand that the Panel members who usually do not have a professional scientific background face a considerable challenge in science-related disputes in grasping the scientific complexities, stakes and uncertainties which they are called to rule upon. It should be noted that the Panel's ruling cannot be appealed at the scientific level, the Appellate Body, according to the Dispute Settlement Understanding's (DSU) Art. 17.6, has rather  constrained  powers: "An appeal is limited to issues of law covered in the panel report and legal interpretations developed by the panel" (the DSU represents the charter of the WTO's Dispute Settlement Body).  The fact-finding process and the role of scientific experts therefore represent undoubtedly one of the most sensitive aspects of the WTO's dispute settlement procedures.

The articles posted here examine GM and other science-related regulations, including import restrictions, risk assessment provisions and labelling requirements. Furthermore, they assess to what extent mandatory traceability and labelling requirements may be trade-restrictive. In the US in particular, the lack of sufficient research carried out by public scientific institutions early in the registration process, and of transparent  communications both between the relevant agencies and with the other key stakeholders, hamper the strategic planning and policy coordination that are necessary to gain the public's confidence.