The previous post (http://fletcherfila.wordpress.com/2008/10/30/international-law-science-broadly-speaking-and-technology/) discusses international law’s relationship with science. It was considered that science plays (and has the potential to play) a significant role in helping lawyers decide if international law has been complied with. One example provided was the SPS Agreement in the WTO. The recent WTO Appellate Body Report in EC-Hormones II (http://www.worldtradelaw.net/reports/wtoab/us-hormonessuspension(ab).pdf) sheds some insight on how this plays out.
In cowardly fashion, I had resisted from blogging about this case until the experts at the International Economic Law and Policy Blog (http://worldtradelaw.typepad.com/ielpblog/) had provided their views.
In this case, the EC claimed that it had removed its illegal measures pursuant to the DSB finding in EC-Hormones I. Accordingly, it alleged that continued suspension of concessions and other obligations by the US and Canada without further recourse to a “compliance panel” pursuant to Article 21.5 of the DSU violated the DSU. Prof. Pauwelyn summarizes the findings at http://worldtradelaw.typepad.com/ielpblog/2008/10/is-the-bloodbat.html. In particular, the Appellant Body held that commencement of proceedings pursuant to Article 21.5 is the duty of all parties to the dispute and that all parties had violated the DSU by failing to do so. The end result: an Article 21.5 “compliance panel” is to be requested and the entire affair re-heard. So far, most commentators have viewed the decision favorably.
What is most indicative is the amount of reliance placed on scientific evidence as a result of the deal struck in the SPS Agreement. Accordingly, adjudication of compliance will turn on expert evidence adduced by litigants. What happens then if the experts disagree (as was the case here)? In order to address this issue, the Appellate Body has placed a distinction between “scientific uncertainty” and “insufficiency of evidence”. Joanne Scott notes the difficulty in making this distinction in her post. (Followed by some discussion on whether this distinction is procedural or substantive) “Is the idea here that scientists can reasonably disagree about how to interpret the results of risk assessment, even when they recognise that the risk assessment is valid?” (http://worldtradelaw.typepad.com/ielpblog/2008/10/2-quick-points.html)
So, to recap, the SPS Agreement embodies a political compromise which allows international law to defer to scientific findings. In a way, science becomes a secondary escape valve for political pressure. (Law being the primary one.) However, a cynic may say that these scientific findings may become politicized where conflicting and opposing experts are relied upon by litigants. Regardless, the Appellate Body tries to reconcile possible conflicting scientific evidence by recourse to legal language.
This begs an institutional question about the SPS Agreement’s place in the WTO DS system then? If science was meant to be the tiebreaker in the SPS Agreement? Why the additional loop back to law? I suppose the DSU and Article 21.5 were intended to cater to broader (less-scientific) disputes. However, if increased litigation over the SPS Agreement is contemplated, would a “carve out” which places final adjudication in the hands of a panel of purely scientific arbitrators be feasible? That way, the DS System may be saved the trouble of distinguishing what is evidentially insufficient and what is scientifically uncertain and can merely defer to this scientific panel.