• International Commerce and Information Review
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• v.10 no.4
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• pp.439-455
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• 2008

The SPS Agreement, concluded in the Uruguay Round for the purpose of controlling SPS risks, has traditionally been recognized to maintain the narrowest scope of application compared with TBT Agreement and GATT in relation with environmental provisions. Contrary to such an understanding on the scope of the SPS Agreement, the panel in the EC-Biotech case found that the SPS Agreement extends to regulate trade-restrictive measures on Genetically Modified Organizations(GMOs) causing health and environmental risks. This expanding scope of the SPS Agreement would have substantial influence on domestic environmental regulations as well as Multilateral Environmental Agreements(MEAs). This paper discusses the consequences of an expanding ambit for the WTO SPS Agreement through the designation of a wider range of health and environmental regulations affecting trade as SPS measures. As a result, not only precautionary measures on GMO risks, but also other health and environmental measures with trade impacts, could be subject to SPS control, and consequently, the institutional rigors of the WTO regime. However, strict and literal interpretation of the SPS provisions to expand its applicable scope would cause concerns about the WTO's intervention on the purely environmental measures. Pursuing harmonized and flexible interpretation of provisions on environment-related conflicts as well as accepting precautionary principle included MEAs will contribute to reduce such kind of concerns.

• Analyses & Alternatives
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• v.2 no.1
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• pp.31-69
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• 2018

This study examines the role of science in resolving trade disputes. After the Great East Japan Earthquake of 11 March 2011 that not only jeopardized the people of Japan, but also put the safety of an entire region at risk, the Republic of Korea (Korea) has imposed import bans as well as increased testing and certification requirements for radioactive material on Japanese food products. Japan has challenged these restrictions at the World Trade Organizations Dispute Settlement Body (DSB). This study aims to explain how international trade agreements and previous DSB rulings have dealt with different scientific viewpoints provided by confronting parties. In doing so, it will contrast the viewpoints espoused by Korean and Japanese representatives, and then analyzes the most similar case studies previously ruled on by the DSB, including the case of beef hormones and the case of genetically modified crops including biotech corn, both between the United States and the European Communities (EC). This study finds that science is largely subordinate to national interests in the case of state decision-making within the dispute settlement processes, and science has largely been relegated to a supportive role. Due to the ambiguity and lack of truly decisive decisions in the Appellate Body in science-based trade disputes, this study concludes that the Appellate Body avoids taking a firm scientific position in cases where science is still inconclusive in any capacity. Due to the panel's unwillingness to establish expert review boards as it has the power to do, instead favoring an individual-based system so that all viewpoints can be heard, it has also developed a system with its own unique weaknesses. Similar to any court of law in which each opposing party defends its own interests, each side brings whatever scientific evidence it can to defend its position, incentivizing them to disregard scientific conclusions unfavorable to their position. With so many questions that can arise, combined with the problems of evolving science, questions of risk, and social concerns in democratic society, it is no wonder that the panel views scientific information provided by the experts as secondary to the legal and procedural issues. Despite being ruled against the EC on legal issues in two previous cases, the EC essentially won both times because the panel did not address whether its science was correct or not. This failure to conclusively resolve a debate over whose science is more scientific enabled the EC to simply fix the procedural issues, while continuing to enforce trade restrictions based on their scientific evidence. Based on the analysis of the two cases of disputes, Korea may also find itself guilty of imposing an unwarranted moratorium on Japan's fish exports, only to subsequently pass new restrictions on labelling and certification requirements because Japan may have much scientific evidence at its disposal. However, Korea might be able to create enough uncertainty in the panel to force them to rule exclusively on the legal issues of the case. This will then equip Korea, like the EC in the past, with a way of working around the ruling, by changing whatever legal procedure they need to while maintaining some, if not most, of its restrictions when the panel fails to address its case on scientific grounds.