Wybe Th. Douma
Chapter 9 looks at the manner in which the precautionary approach has been regulated, and allegedly limited, at international level by analysing WTO Panel cases and the Appellate Body cases (involving the EU but also countries like Australia, Japan and Korea), as well as those of arbiters in the Investor-State Dispute Settlement context. The precautionary principle is a general principle of EU law, which is explicitly institutionalized in the environment title of the TFEU – it is applied in other areas as well, such as the protection of human health. The case law of the Court of Justice, as well as the guiding role of the European Commission, provide insights into the application in practice of the principle. Such practice, however, stands in contrast to the law of the World Trade Organization (WTO), to which the EU is a party. In this respect, the EU approach to precautionary measures has been put under pressure, most notably in the field of beef hormones and GMOs. This chapter establishes, first, the key lesson of the relationship between the EU precautionary principle and WTO law. Second, attention is given to bilateral trade agreements with third countries, in which the EU is facing similar challenges since such agreements are linked to WTO law. By focusing on the Comprehensive and Economic Trade Agreement (CETA), which has been presented as the gold standard for future trade agreements, this chapter describes how the links to WTO law limit the Union in maintaining or adopting precautionary measures. In the context of dispute settlement, it is investigated how public participation, facts and feelings, and precautionary measures flowing from other trade and investment agreements have been take into consideration by arbiters. By examining these aspects of CETA, and comparing them to other trade regimes, it is discussed whether this agreement sufficiently anchors and safeguards the possibility for its parties to maintain and adopt precautionary measures, and the possibility for citizens to be involved in the shaping and defending of public policy measures.