Re-Conceptualising the Role of Science in International Trade Disputes

Abstract

Science has been traditionally characterized as an objective discipline that is free of values and which leads to definitive knowledge. In the GATT/WTO system, science is elevated as the ultimate arbiter of international trade disputes. This article intends to critically evaluate, and re-conceptualize, the role of science in distinguishing disguised trade protectionism and legitimate government regulation. Drawing insights from psychology and behavioral science, I first set forth two simple normative principles that should be followed where science is to be used an arbiter in trade disputes. I then proceed to examine to what extent the current WTO case law has deviated from these normative principles. I conclude that, contrary to popular claims against the WTO’s intrusion into domestic regulatory sphere, WTO members enjoy wide discretion to address pervasive scientific uncertainty. Nevertheless, it remains possible that a rigorous use of science will bring WTO rules into direct conflict with national democracy in some highly value-laden and politically sensitive disputes.

Keywords: Science, World Trade Organization, Deliberative Democracy, the SPS Agreement