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.