A Critical Assessment of the WTO’s SPS Agreement
Elgar International Economic Law series
Chapter 10: Analysis of Risks: The Role of Science
10.1 INTRODUCTION This chapter contributes to an assessment of the appropriateness of the WTO’s science-based framework by examining the role of science in regulatory decision-making about risk. After some general comments about the relationship between science and law in Section 10.2, it examines the rationale for the SPS Agreement’s scientific evidence test, namely, the claim that science is independent and objective. As the next chapter notes, some critics of the SPS Agreement argue that science suffers from a lack of objectivity which undermines its role as a tool in regulatory decision-making and as a benchmark in international trade rules. Section 10.4 explores the specifics of risk regulatory decision-making through an examination of the risk analysis process (which includes risk assessment, risk management, and risk communication). In particular, it asks whether risk assessment is truly an objective exercise that ought to be elevated to such a position of significance within the Agreement. The final section questions what role public opinion can (and should) play in regulatory decision-making on risk. 10.2 SCIENCE AND LAW The debate over the role of science in the WTO echoes much of what has been said about science’s relationship with the law in domestic legal systems. Debates over the role of science in domestic law concern struggles over the authority of knowledge.1 For example, whose knowledge should count as valid science, according to what criteria, and as applied by whom? When should lay understandings of phenomena take precedence over expert claims to superior knowledge? Should expert views...
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