Health Risks, Experts and Decision Making Within the SPS Agreement and the Codex Alimentarius

Abstract

The World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures gives experts an important role in risk regulation. The risks in this Agreement are narrowly framed in terms of mortality, morbidity or economic damage. However, the impact on life and health is not the only normative or justice-related factor that policy-makers may wish to take into account. For example, the fact that a risk affects people who cannot choose or have difficulty avoiding the risk (e.g., children or the poor), that it results in early death of a large number of people or that it is an under-researched risk are also relevant issues.

This chapter develops the view that the rational empirical basis of an SPS policy ought to be judged not only according to the epistemological standards of health experts, but also on the basis of the normative characteristics of the complete regulatory risk. Where a risk presents multiple aspects of justice, the policy maker should be entitled to introduce margins of safety in addition to what the technical health experts deem strictly necessary. These problems of justice may require consulting experts from different scientific domains than those customarily involved in health policy making, such as economists, marketing experts or psychologists, in order to establish a sound factual basis for normative judgment. In contrast, where a health risk presents fewer additional problems of justice, the policy maker should defer to the health expert’s assessment of the risk.

Article 1.1 of the SPS Agreement1 applies to the so-called ‘SPS measures’, which protect against a specific set of enumerated human, animal and plant health risks.As this chapter shows, framing risk in this manner makes it difficult to accommodate the multidimensional nature of risk and results in the circle of relevant experts being drawn unduly narrowly. For related reasons, the Appellate Body's decision in Continued Suspension risks giving either too much or too little policy space. In that decision, the Appellate Body held that a member's level of protection could influence which type of evidence should be sought from the experts and thus ultimately impacts the question whether scientific evidence is sufficient. The problem arises when the policy-maker seeks evidence on aspects of the risk not covered by the definition of a risk assessment in the SPS Agreement. A panel or the Appellate Body might then either have to conclude that the evidence is nevertheless sufficient for the purpose of the risk assessment or give carte blanche to WTO members to ignore the obligations of the SPS Agreement merely upon the invocation of concerns not addressed by the definition of a risk assessment.

Keywords: WTO law, SPS Agreement, experts, risk assessment, appropriate level of protection, Contiuned Suspension

JEL Classification: F15, F19, K33