Lotus Eaters: Reflections on the Varietals Dispute, the Sps Agreement, and WTO Dispute Resolution

Abstract

The Varietals dispute, which seemingly involves nothing other than a straight-forward application of the SPS Agreement, reveals surprisingly much about the function of WTO dispute settlement, the purposes of international trade law, as well as larger questions regarding both globalization and the status and scope of contemporary international law.

The paper examines, inter alia, whether the SPS Agreement unduly restricts states' ability to enact desirable social legislation and different methodological approaches to answering this question. It also discusses the appropriate role of panels and the Appellate Body in food safety and other controversial disputes that pit economic against non-economic interests.

Finally, as suggested by the title, the paper discusses the PCIJ's Lotus decision. Lotus implicitly assumes a world of independent states with few international rules governing their relations. In the Lotus universe, sovereignty is a paramount value, and states' freedom of action is jealously guarded. But the SPS Agreement and the Varietals dispute arise within a radically different legal environment, one where international legal norms proliferate and reach deeply within the domestic structure of the state. Varietals highlights the changing nature and functions of contemporary international law and some of the ways that the legal universe presupposed by the Lotus decision has been inverted.

Keywords: GATT, WTO, trade, SPS, food safety, international trade, international law, international trade law, globalization, dispute settlement, WTO dispute settlement, WTO dispute resolution, World Trade Organization, Varietals, Appellate Body, WTO Appellate Body, Sanitary, Phytosanitary, trade disputes

JEL Classification: F1, K33