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Almost a decade after the first hormones case law before the European
Court, the Community's hormones regime came to form the subject matter of WTO
dispute settlement proceedings, following complaints submitted by the United
States and Canada. [66] These complaints
related specifically to the EC ban on the importation of meat and meat products
from cattle treated with six particular hormones for growth promotion purposes.
Although separate panels were established to consider the two complaints, they
both considered the same measures, comprised the same members, and were
assisted by the same scientific experts. Joint meetings were held with the
experts appointed, although in view of claims of prejudice submitted by the
Community, the Community was allowed to address the meeting twice, first
following the submissions of the United States, and again following those of
Canada. Though the panel reports are not identical in every detail, they are
practically so. [67] They reach the same
conclusions and make the same recommendations. The panels requested the
Community to bring its hormones regime into conformity with its obligations
under the WTO Agreement on the Application of Sanitary and Phytosanitary
Measures (SPS Agreement). [68] The Community,
and the United States and Canada, choose to appeal from certain issues of law
and legal interpretation in the panel reports. The Appellate Body issued a
single report. The aim of this paper is to consider the findings of these
dispute settlement bodies. It is not, however, intended to offer a summary of
each and every point or argument considered in the course of this lengthy and
complex dispute, but rather to highlight some of the most important issues
arising. It will focus principally (though not exclusively) on the report of
the Appellate Body (AB).
Both the panels and the AB accepted that the
SPS Agreement was applicable to the dispute. The EC measures were deemed to
constitute sanitary measures within the meaning of Annex A of this Agreement,
and to affect international trade. They agreed, moreover, that the application
of this Agreement was not excluded on the basis that the Community measures,
though still extant, had been enacted prior to the Agreement's entry into
force. The definition of SPS measures laid down in Annex A is interesting and
important in a number of respects. First, a measure will be defined thus only
where it is applied with a view to protecting human, animal or plant life or
health. The ostensible objective of the measure is critical to determining its
status as an SPS measure. Thus, had the European Community sought to justify
the hormones regime in terms other than those relating to the protection of the
life or health of humans or animals, the measures would have fallen for
consideration under a different part of the WTO Agreement. Second, the
definition of SPS measures is explicit in its territorial scope. Measures will
be considered pursuant to this Agreement only where they seek to protect the
relevant interests within the territory of the state adopting the
measure. Third, the definition of SPS measures is broad. It includes
regulations pertaining both to product and process standards (subject to the
territorial caveat above, as well inter alia as packaging and labeling
requirements directly related to food safety. This latter point should be borne
in mind as the following analysis proceeds. Labeling requirements in respect of
hormone treated beef would be subject to the same discipline as an import ban
predicated upon a failure to comply with Community standards. While labeling is
clearly by nature less-restrictive of trade this would be relevant only in
assessing a measure's compatibility with Article 5.6 of the SPS Agreement which
obliges WTO Members to adopt measures which are no more trade-restrictive than
required to achieve the appropriate level of SPS protection. Where, and as will
be seen below this appears to be the case, labeling requirements are deemed
incompatible with other parts of the SPS Agreement, they cannot be 'saved' by
Article 5.6. [69]
As a starting point
it is important to note that the AB, like the panels, found that the EC
measures to be incompatible with the SPS Agreement. However, and this is
crucially important, the AB, unlike the panels, did not accept that there had
been a breach of Article 5.5. While the AB accepted that the European
Community's different treatment of the six hormones under consideration on the
one hand, and two other substances on the other (carbadox and olaquindox), did
represent an 'unjustifiable distinction' within the meaning of Article 5.5, it
did not accept that this resulted either in discrimination or a disguised
restriction on trade. The panel's conclusion in this respect was, according to
the AB, supported neither by the 'architecture and structure' of the hormones
directives and the later carbadox and olaquindox directives, nor by the
evidence submitted by the United States or Canada. [70] The panel's finding in this respect was held to be
unjustified and erroneous as a matter of law. While one might quibble with the
emphasis placed by the AB on the subjective intentions of the Community in
enacting this regime, it remains the case that the EC measures were held to be
incompatible with the SPS Agreement, despite the fact that the regime
was not found to result in discrimination, nor to constitute a disguised
restriction on international trade. The reasoning of the AB was as follows.
The fundamental tenet of the SPS Agreement is laid down in Article
2.2. This is viewed by the AB as constituting the basic obligation and as
informing and imparting meaning to the other parts of the Agreement. Article
2.2. recognizes that Members have a right to enact such SPS measures as are
necessary for the protection of the life or health of humans or animals.
However, these measures must be based on scientific principles and must not be
maintained without sufficient scientific evidence. [71] It is crucial to an understanding of this Agreement to
appreciate the emphasis which it places upon science and scientific reason.
Measures, broadly defined in Annex A, in order to be compatible with the
Agreement, must be susceptible to justification in the language of science. The
legitimacy of SPS measures will be evaluated, in part, in terms of the
credibility of their basis in science. It is to this issue of scientific
rationality, and what it implies in the context of the SPS Agreement, that this
paper will now turn. Looking first at Article 3.3 of the Agreement. This
provides:
Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations, if there is a scientific justification, or as a consequence of the level of sanitary or phytosanitary protection a Member determines to be appropriate in accordance with the relevant provisions of paragraphs 1 through 8 of Article 5....Notwithstanding the above, all measures which result in a level of sanitary or phytosanitary protection different from that which would be achieved by measures based on international standards, guidelines or recommendations shall not be inconsistent with any other provision of the Agreement.
This provision, the AB observes, 'is evidently not a model of clarity in
drafting and communication'. [72] In
particular, on the basis of its language, it appears to identify two situations
in which Members may maintain or introduce higher standards; first where there
is scientific justification for so doing and second, where these higher
standards are deemed appropriate by the Member concerned. It is, however, only
in respect of the second of these that an explicit obligation to comply with
Article 5.5. SPS is established. Nevertheless, the AB, like the panels,
accepted that for a measure to comply with either of these two categories
identified by Article 3.3, it must also comply with the strictures of Article
5, including (crucially as will be seen) Article 5.1 on risk assessment. The AB
justifies this conclusion on the basis of the final sentence of Article 3.3 and
in the light of a footnote to this. This footnote provides that there is a
scientific justification for a higher standard only 'if, on the basis of an
examination and evaluation of available scientific information in conformity
with the relevant provisions of this Agreement, a Member determines that the
relevant international standards...are not sufficient to achieve its
appropriate level of sanitary or phytosanitary protection'. This finding, in my
view justified on the basis of the text, is of critical importance. There can
be no scientific justification in the absence of risk assessment and unless the
higher standards are based on that risk assessment. This concept of risk
assessment lies at the heart of the various reports of the dispute settlement
bodies and, as elsewhere, there is wide disparity between the panels' approach
and that of the AB. The latter is decidedly more nuanced, and undeniably more
politically astute. Before turning, in some detail, to the theme of risk
assessment, it is however important to stress one further point in relation to
the construction of Article 3.3, especially having regard to its relationship
with Article 3.1.
As noted above, Article 3.3 talks of SPS standards
achieving a higher level of protection. 'Higher' in this context refers by way
of comparison to the level of protection that would be achieved had the Member
in question based their measures on existing international standards,
guidelines or recommendations. Article 3.3 is viewed by the panels as
constituting an exception to Article 3.1. The latter provides that Members
shall base their SPS measures on international standards etc. where these exist
'except as otherwise provided for in this Agreement, and in particular in
paragraph 3. According to the panels an SPS measure may be said to be 'based
on' international standards where it achieves the same level of protection as
those standards. Where a domestic measure is based on international standards
in this sense, such measures are viewed by the panels as conforming to such
standards and hence are (rebuttably) presumed to be compatible with the SPS
Agreement and the GATT. It is for the complaining party to rebut this
presumption. Where on the contrary such international standards exist but the
domestic measures in question are not based on them (conforming with them) the
initial burden of proving their that they are justified under the Article 3.3
'exception' rests upon the party introducing the measures.
The AB is
critical of the panels' approach to the question of the role of international
standards within the framework of the SPS Agreement. First, it does not accept
the existence of a rule/exception relationship between the first and third
paragraphs of Article 3. [73] Article 3.3, it
insists, represents an 'autonomous right' and not an exception.
[74] Consequently, even where there are
international standards, and even where domestic measures are not based on
these, the initial burden of demonstrating prima facie that these are
inconsistent with Article 3.3 rests upon the complaining party. A prima
facie case is defined as one which, in the absence of effective refutation
by the defending party, requires a panel, as a matter of law, to rule in favour
of the complaining party...'. [75] Second, the
AB rejects what it takes to be the panels' equation of the terms 'based on' (in
Articles 3.1 and 3.3) and 'conform to' (in Article 3.2), on the basis that the
latter implies 'much more' in terms of the relationship between the measures
than the former. A measure which conforms to an international standard will be
based upon it. However, a measure which is based upon an international standard
may not conform with it, even though it is founded or built upon it.
[76] It justifies this conclusion on the basis
both of language and purpose. It expresses its concerns in this respect
strongly:
To read Article 3.1 as requiring Members to harmonize their SPS measures by conforming those measures with international standards...in the here and now, is, in effect to vest such international standards...(which are by the terms of the Codex recommendatory in form...) with obligatory force and effect. The Panel's interpretation of Article 3.1 would, in other words, transform those standards...into binding norms. But...the SPS Agreement itself sets out no indication of any intent on the part of the Members to do so. We cannot lightly assume that sovereign states intended to impose upon themselves the more onerous, rather than the less burdensome, obligation by mandating conformity or compliance with such standards...'. [77]
It has been argued, and this will be borne out further below, that the
AB 'clawed back' some of the more 'audacious' aspects of the panel reports.
[78] Nowhere is this more clearly the case
than in relation to the role of international standards. There was a certain
logic to the panels' approach, at least in so far as it would have created an
incentive for Members to conform to international standards by virtue of the
shift in the burden of proof which this would provoke. This is consistent with
the aim of the Agreement to harmonize SPS measures 'on as wide a basis as
possible', [79] 'desiring to further the use
of harmonized sanitary and phytosanitary measures between Members, on the basis
of international standards...'. [80] Pursuant
to the AB's conclusions, where domestic SPS measures conform to international
standards, the initial burden rests with the complaining state. Where domestic
SPS measures do not conform to such standards, and where they achieve a higher
level of protection than would be achieved by measures based on these
standards, the initial burden still rests on the complaining party. It remains
to be seen if there is anything to be gained from conforming to international
standards. [81] It is, of course, possible
that in the future the strength of the burden resting on the complaining party
will be greater (than prima facie) in the event of such conformity.
Wisely, however, in view of the considerable controversy surrounding the nature
of international standards and the manner in which they are agreed, the AB
refrains from addressing this point. It is worth noting that the rule/exception
relationship posited by the panels smacks clearly of the approach which
characterizes traditional conceptions of minimum harmonization within the EU.
[82] It would, however, be a mistake to
dismiss international standards as irrelevant in the context of the SPS
Agreement as a result of the more deferential approach exhibited by the AB on
this point. Analysis of scope of the risk assessment obligation attaching to
states will serve to demonstrate just how crucial the existence of
international standards, underwritten by internationally recognized scientific
findings, may prove to be.
Article 5.1 provides: Members shall ensure
that their sanitary or phytosanitary measures are based on an assessment, as
appropriate to the circumstances, of the risks to human, animal or plant life
or health, taking into account risk assessment techniques developed by the
relevant international organizations. [83]It
is perhaps on this issue of risk assessment that the report of the AB departs
most dramatically from those of the panels. Thus, for example, the AB is
critical of the panels' insistence on distinguishing between risk assessment
and risk management. According to the panels, the former involves a purely
scientific examination of data and factual studies and does not encompass
policy, or social value, judgements as to the nature of the risk as conceived
by political bodies. [84] The AB stresses that
this distinction has no basis in the Agreement and hence the distinction 'which
it apparently employs to achieve or support what appears to be a restrictive
notion of risk assessment, has no textual basis'. [85] Somewhat related to this, though not explicitly so, is
the AB's understanding f the range of factors which may be taken into account
in the context of a risk assessment. Having regard to the list in Article 5.2
of the Agreement, the AB notes that it is not legitimate 'to exclude from the
scope of risk assessment...all matters not susceptible of quantitative analysis
by the empirical or scientific laboratory methods commonly associated with the
physical sciences'. [86] Somewhat nebulously,
and a tad theatrically, the AB observes: '...the risk that is to be evaluated
in a risk assessment...is not only risk ascertainable in a science laboratory
operating under strictly controlled conditions, but also risk in human
societies as they actually exist, in other words, the actual potential for
adverse effects on human health in the real world where people live, work and
die'.[87]
This skepticism regarding
the limits to quantitative analysis is reflected moreover in the AB's
construction of paragraph 4 of Annex A to the SPS Agreement. Here the AB is
strongly critical of the panels' conflation of the terms 'probability' and
'potential', speaking as it does of the former where only the latter is to be
found in the Agreement. This, the AB, notes 'creates a significant concern'.
[88] Potential, the AB observes, relates to
possibility and not probability and these two terms mean different things, with
the latter implying 'a higher degree of threshold of potentiality or
possibility'. [89] As a result, the panel
wrongly imports a quantitative dimension into the notion of risk assessment.
This, according to the AB, is also reflected in the panels' recourse to the
language of 'scientifically identified risk' and 'identifiable risk'. '[T]o the
extent that the Panel purported to require a risk assessment to establish a
minimum magnitude of risk' the AB reiterates that 'the imposition of such a
quantitative requirement finds no basis' in the SPS Agreement.
[90]
In the same spirit the AB is
critical of the panels' construction of the term 'based on' in Article 5.1.
Whereas for the panels this is taken to imply the existence of a procedural
obligation to demonstrate that the results of a risk assessment were actually
taken into account when the SPS measure was enacted or maintained, for the AB
this merely implies an obligation to demonstrate the existence of a reasonable
or rational relationship between the SPS measure in question, and the risk
assessment; namely a substantive rather than a procedural obligation.
[91] The AB goes on to examine the scope of
this substantive obligation to ensure an 'objective', 'reasonable' or
'rational' relationship between the risk assessment and the relevant SPS
measure. In its reports the panels had adopted a three prong approach in
construing the substantive obligation in Article 5.1. First, it is necessary to
identify the scientific conclusions reached in each of the scientific studies
referred to by the Community. Second, it is necessary to identify the
scientific conclusion reflected in the SPS measure in dispute. Third, and
finally to yield a result, it is necessary to determine whether the latter can
be considered as being in conformity with the conclusions reached in the
former. [92] The reaction of the AB in this
respect is somewhat laconic. While it accepts, in principle, that such an
approach is useful, it goes on to stress that while 'the relationship between
those two sets of conclusions is certainly relevant; they cannot, however, be
assigned relevance to the exclusion of everything else'.
[93] Article 5.1, the AB stresses, when read
alongside and informed by the basic obligation in Article 2.2., requires 'that
the results of the risk assessment must sufficiently warrant -- that is to say
reasonably support -- the SPS measure at stake'. It is careful to emphasize
that the SPS measure need not be supported by the majority of the relevant
scientific community, and that divergent or non-mainstream) views could
legitimately form the basis for such a measure. 'Responsible and representative
governments may act in good faith on the basis of what, at a given time, may be
a divergent opinion coming from qualified and respected sources'.
[94] Where an SPS measure is based upon
divergent or minority opinion this will not necessarily operate to negate the
reasonableness of the relationship between the measure and the risk assessment.
This, the AB emphasizes, is especially the case 'where the risk involved is
life-threatening in character and is perceived to constitute a clear and
imminent threat to public health'. [95] In
this respect the AB's report is thoroughly infused with an appreciation of the
reality of scientific uncertainty. This further reflects the AB's more nuanced
approach to the relevance of the precautionary principle in the context of the
SPS Agreement. Though this has been 'incorporated and given a specific meaning
in Article 5.7' causing the panels to conclude that it could not override the
explicit wording of Articles 5.1 and 5.2, [96]
the AB found that 'there is no need to assume that Article 5.7 exhausts the
relevance' of this principle. [97] This
principle is further reflected in the preamble (recital 6) and in Article 3.3
of this Agreement. The AB report is consequently infused with the language of
scientific uncertainty and precaution and prudence.
The above
discussion merely gives a flavour of the gulf separating the panel and AB
reports in terms of interpretative approach and tone. The language of the AB is
such as to imply considerable self-restraint and a high degree of deference to
the proper autonomy of WTO Members in exercising sensitive policy choices in
the interests of public health. Nonetheless the AB accepted that, under the
terms of the SPS Agreement, there must be limits to Member State discretion and
that the Community had in fact exceeded these limits in the construction of its
hormones regime. The AB agreed finally with the panels that the European
Community had acted inconsistently with Article 5.1 and that the SPS measures
at hand could not be said to be based on a risk assessment within the meaning
of Article 5.1. Its bark may be muted, but its bite is strong. Two factors in
particular explain the conclusions of the AB in this respect.
First,
the AB's eschewal of a quantitative dimension to risk assessment -- the need to
establish a certain magnitude or threshold level of risk -- is more equivocal
than at first it appears. In particular, the AB, like the panels, acknowledges
that 'theoretical uncertainty' as to the existence of risk is 'not the kind of
risk which, under Article 5.1, is to be assessed'. [98] A hypothetical possibility of risk, arising from the
failure of scientists to demonstrate with absolute certainty that there is no
risk either now or in the future, is not capable of rationally grounding an SPS
measure. While it is incumbent on the complaining party to demonstrate a prima
facie a breach of the Agreement, the burden resting on this party is not such
as to require conclusive proof of the absence of any risk. The initial burden
having been discharged it is for the party adopting the SPS measure to put
forth positive evidence of risk, such as is capable of reasonably sustaining
the measure. Scientific uncertainty thus works both ways: 'if science is not
able to prove the causal relationship leading to possible damage, then
symmetrically it may also be unable to divert the possibility of its existence.
In other words, requiring proof of the absence of risk is asking for something
that science is not able to provide'. [99]
This is a lesson which the AB has taken to heart.
Second, the AB's
eschewal of a quantitative dimension to risk assessment (subject to the proviso
above) is matched by its willingness to import a qualitative dimension. This is
apparent in two respects: a.) in its willingness to countenance measures
adopted on the basis of divergent or minority scientific opinion, where this
comes from 'qualified and respected sources' [100] and b.) in its assessment of the scientific evidence
presented by the European Community and by the experts appointed to assist the
panels and AB. In this respect it is important to observe at the outset that
evidence was submitted to the dispute settlement bodies which classified
'oestrogens as agents which are carcinogenic meaning that there is sufficient
evidence of carcinogenicity in humans; androgens as agents which are probably
carcinogenic; and progestins as agents which are possibly carcinogenic'.
[101] The AB had the following to say in
response: The 1987 Monographs and the articles and opinions of individual
scientists submitted by the European Communities constitute general studies
which do indeed show the existence of a general risk of cancer; but they do not
focus on and do not address the particular kind of risk here at stake -- the
carcinogenic or genotoxic potential of the residues of those hormones found in
meat derived from cattle to which the hormones had been administered for growth
promotion purposes -- as required by paragraph 4 of Annex A of the SPS
Agreement. Those general studies are, in other words, relevant but do not
appear to be sufficiently specific to the case at hand.'
[102]
Moreover, at a joint meeting
held with the appointed scientific experts, [103] a certain Dr. Lucier expressed the following view:
For one in every million women alive in the United States, Canada, Europe today, about every 110,000 of those women will get breast cancer. This is obviously a tremendous public health issue. Of those 110,000 women getting breast cancer, maybe several thousand of them are related to the total intake of exogenous oestrogens from every source, including eggs, meat, phyto-oestrogens, fungal oestrogens, the whole body burden of exogenous oestrogens. And by my estimates one of those 110,000 would come from eating meat containing oestrogens as a growth promoter, if used as prescribed. [104]
This, the AB observes, would, assuming it to be accurate, imply (in a
European Union of 371 million) that there could be up to 371 persons who would
get cancer as a result of eating meat containing oestrogens used as a growth
promoter. Nonetheless, the AB notes that this opinion does not purport to be
the result of scientific studies carried out by Dr. Lucier, nor under his
supervision, focussing specifically on residues of hormones in meat from cattle
fattened with such hormones:
Accordingly, it appears that the single divergent opinion expressed by Dr. Lucier is not reasonably sufficient to overturn the contrary conclusions reached in the scientific studies referred to by the European Communities that related specifically to residues of the hormones in meat from cattle to which hormones had been administered for growth promotion. [105]
These extracts are not intended to mislead as to the nature of the
scientific evidence presented. They are intended rather to illustrate the
willingness of the AB to engage in a qualitative assessment of that evidence,
and its propensity to demand a high degree of specificity in the research
underpinning SPS measures. The Community measures could not be said to be based
upon risk assessment where the only evidence purporting to rationally sustain
these measures was insufficiently focussed upon the precise issue at hand;
namely the dangers arising from residues in meat from animals to which the
hormones concerned had been administered.
It is thus apparent that
under the SPS Agreement, as construed by the AB, it is not rational, and hence
not lawful, for a Member to guard against a 'merely' theoretical or
hypothetical risk where to do so would affect international trade. Until, and
unless, the 'more than merely theoretical' threshold is reached only the
language of science will resonate in the application of this Agreement.
[106] In this sense, the world of the SPS
Agreement is a world inhabited by experts, in which authority to distinguish
right and wrong is the preserve of the 'qualified and respected' scientist. It
is a world of technocracy. It is a world in which the contingency of scientific
knowledge is denied, and in which the values which enter law through science
remain obscured. It is a world in which hypothetical risk must be endured,
regardless of the nature of the risk-generating activity and the social worth
attaching to it. Context, as well as culture, [107] is silenced in this uni-dimensional world of scientific
rationality. This is a world in which law is the servant of science in the name
of free trade; a world in which law as an instrument of other values -- social
order, public confidence, trust, community, rights, democracy or deliberation
-- has no role. It is a world in which the language of power is science and in
which one can be heard only in these terms.
Over the past years much
attention has focussed upon the role of science in law, spawning a large body
of literature by lawyers, scientists, philosophers, sociologists and cultural
theorists. [108] Theoretically
sophisticated, multi-disciplinary and practically important, the future of
science studies within the academy seems secure. One of the central premises of
much of this literature -- though to varying degrees -- has been a rejection of
positivistic conceptions of science as capable of revealing an objective truth;
a version of reality untainted by politics, ideology or exogenous values. There
is a widespread acceptance of the socially constructed nature of scientific
knowledge. As Sheila Jasanoff, an influential voice in law and science studies,
notes:
Although pleas for maintaining a strict separation between science and politics continue to run like a leitmotif through the policy literature, the artificiality of this position can no longer be doubted...Studies of scientific advising leave in tatters the notion that it is possible, in practice, to restrict the advisory process to technical issues or that the subjective values of scientists are irrelevant to decision-making. The negotiated and constructed model of scientific knowledge, which closely captures the realities of regulatory science, rules out the possibility of drawing sharp boundaries between facts and values or claims and context.... [109]
As this conception of science as contingent and uncertain has taken
root, and as public awareness of the 'failures' of regulatory science has
increased, a democratic impulse has emerged as a counterweight to the
'technocratic view'. [110] This is not new,
as the accessible yet pioneering work of the North American sociologist Dorothy
Nelkin demonstrates. [111] Demands for 'more
and better science' in policy-making are matched by demands for participation
and deliberation in the adoption of 'technical' decisions. Such demands rest
not only upon a belief in the capacity of the public to develop sufficient
expertise to engage in the language of science, but also in the 'validity' of
'lay' knowledge, [112] and in the salience
of values imported from beyond the world of scientific reason.
[113] Alongside initiatives intended to
assess the credibility of scientific findings, there have emerged initiatives
designed to foster public participation in a wide variety of forms.
[114] Such experiments may be pursued in the
name of a democratic ideal, and/or they may reflect the political interest in
producing social consensus around public decisions and in defusing controversy
-- something which the application of scientific reason has conspicuously
failed to do. To the extent that such experiments result in the adoption of
decisions which do not find support in at least a version of scientific truth,
they are today under threat from the supremely technocratic world view endorsed
by the SPS Agreement, even as it is construed at the hands of the more
politically circumspect AB.
[66] EC Measures Concerning Meat
and Meat Products (Hormones). The two panel reports and the report of the
Appellate Body can be found on the WTO website, supra n. 30. See also the
Arbitration Award of 29 May 1998 (WT/DES26/15 and WT/DS48/13).
[67] Throughout this paper reference will be
made to the panel reports. Where precise paragraph references are given these
relate to the Canadian report.
[68]
OJ 1994 L336/40.
[69] The panels
declined to address the compatibility of the EC measures with Article 5.6,
deeming this unnecessary in view of its earlier findings of a breach of other
parts of the Agreement. The AB accepted that the panel had demonstrated
appropriate 'judicial economy'. See paras. 8.249-8.250 of the panel report and
paras. 247-252 of the AB report, supra n. 66.
[70] supra n. 66, para. 246 (AB).
[71] Article 2.2 is explicitly subject to
Article 5.7 which provides for the provisional adoption of SPS measures
even where there is insufficient scientific evidence. This is a point to which
we will return.
[72] Supra n. 66 ,
para. 175 (AB).
[73] Ibid, paras.
104, 106 and 157 (AB).
[74] Ibid,,
para. 172 (AB).
[75] Ibid, para. 104
(AB). Though the panels erroneously required the EC to bear the burden of proof
in respect of those hormones for which international standards existed, the AB
found that, 'after careful consideration of the panel record' that the United
States and Canada had succeeded in discharging their burden to make a prima
facie case that the Community measures were inconsistent with Article 3.3.
(See footnote 180 AB).
[76] Ibid,
para. 163 (AB).
[77] Ibid, para. 165
(AB).
[78] Weiler, J., 'The
Constitution of the Common Marketplace: Text and Context in the Evolution of
the Free Movement of Goods' in Craig & de Burca, supra n. 51.
[79] Article 3.1, SPS Agreement.
[80] Recital 6, Preamble, SPS Agreement.
[81] Note, however, Article 5.6 which
imposes a least trade-restrictive means obligation on Members. This is
explicitly 'without prejudice' to Article 3.2; the implication being that where
measures do conform to international standards they shall not be susceptible to
evaluation in the light of this test.
[82] See case study one above.
[83] See also Annex A(3)(4) SPS for a
definition of this concept and Articles 5.2 and 5.3 laying down factors which
shall be taken into account in the context of a risk assessment. In view of the
AB's approach to risk assessment these lists should not be regarded as
exhaustive in nature. Thus whereas the panel excludes consideration of
'non-scientific factors' in risk assessment, such as those arising from
difficulties of control, inspection and enforcement of the requirements of good
veterinary practice and the dangers of abuse in the use of hormones, the AB
concludes that it is a 'fundamental legal error' to exclude such risks on an
a priori basis. Nevertheless, the AB finds that the Community 'did not
actually proceed to an assessment, within the meaning of Articles 5.1 and 5.2,
of the risk arising from the failure of observance of good veterinary practice
combined with problems of control of the use of hormones for growth promotion
purposes' (para. 209 AB). See generally paras. 203-209 (AB).
[84] Supra n. 66, para. 8.97 (AB).
[85] Ibid, para. 181 (AB).
[86] Ibid, para. 187 (AB).
[87] Ibid.
[88] Supra n. 66, para. 184 (AB).
[89] Ibid.
[90] Ibid, para. 186 (AB).
[91] Ibid, para. 189 (AB).
[92] Supra n. 66, paras. 8.120-8.141 (panel).
[93] Supra n. 66, para. 193 (AB).
[94] Ibid, para. 194 (AB).
[95] Ibid.
[96] Supra n. 66, para. 8.160 (panel).
[97] Supra n. 66, para. 124 (AB).
[98] Supra n. 66, para. 186 (AB).
[99] Godard, O., 'Social Decision-Making
under Conditions of Scientific Controversy, Expertise and the Precautionary
Principle' in Joerges, Ladeur & Vos, Integrating Scientific Expertise
into Regulatory Decision-Making (Nomos, 1997), p. 68
[100] Supra n. 66, para. 194 (AB).
[101] This evidence is drawn from the 1987
IARC Monographs upon which the EC placed 'particular emphasis'. Supra n. 60,
para. 8.129 (panel).
[102] Supra
n. 66, para. 200 (AB).
[103] A
transcript of this is contained in an annex to the AB Report.
[104] Supra n. 66, footnote 181 (AB).
[105] Ibid, para. 198 (AB).
[106] Subject, as noted above, to the
application of Article 5.7 which allows for the provisional adoption of
measures pending review within a 'reasonable time'.
[107] For an influential and entertaining
take on 'risk' from the perspective of cultural theory see Adams, J.,
Risk Adams observes that those assessing and managing risk often cast
aspersions on the rationality of those who disagree with them. Cultural theory,
however, teaches that it is not the case that one is rational and the other
not. Rather the participants may arguing from different premises. Responses to
risk will depend, inter alia, on personality: are you an individualist
who views nature as stable and robust and capable of shrugging off the insults
of humankind and rarely 'biting back'? Or are you an egalitarian clinging to
the view of nature as fragile and precarious and desirous that we tread lightly
on the earth.
[108] For a taste of
this see Joerges, Ladeur & Vos, supra n. 93; Jasanoff, S., Science at
the Bar (Harvard UP, 1995); Jasanoff, S., The Fifth Branch: Science
Advisers as Policymakers (Harvard UP, 1990); Jasanoff, Markle, Petersen
& Pinch (eds.), Handbook of Science and Technology Studies (Sage,
1995); Lash, Szerszynski & Wynne (eds.), Risk, Environment and
Modernity (Sage, 1996); Hess, D.J., Science Studies (New York UP,
1997). David Hess's 'advanced introduction' to this subject contains an
excellent bibliography 'additional information' on sources.
[109] Ibid, The Fifth Branch, p. 231.
[110] See generally ibid, pp. 15
ff.
[111] Technological
Decision and Democracy (Sage, 1977).
[112] See, for example, Wynne, B., 'May the
Sheep Safely Graze? A Reflexive View of the Expert-Lay Knowledge Divide' in
Lash et al., supra n. 108.
[113]
See Nelken, D., 'The Truth about Law's Truth' (EUI Working Paper Law No. 90/1).
[114] See supra n. and Sklove, R.,
Democracy and Technology (Guilford, 1995) and for the work of his 'Loka
Institute': http://www.amherst.edu/~loka
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