Beyond the Science/Democracy Dichotomy: The World Trade Organisation Sanitary and Phytosanitary Agreement and Administrative Constitutionalism
CONSTITUTIONALISM, MULTI-LEVEL TRADE GOVERNANCE, AND SOCIAL REGULATION, C. Joerges, E-U. Petersmann, eds., Hart Publishing, 2006
43 Pages Posted: 7 Jun 2006
Abstract
It has become popular to characterise the WTO SPS Agreement as imposing scientific requirements in relation to democratic processes of national risk regulation standard setting. This is an incorrect characterisation of risk regulation standard setting and the role of the SPS Agreement. It is incorrect because risk regulation standard-setting is primarily an activity for public administration and not democratic institutions. As such the SPS Agreement is concerned with regulating administrative action and interpretations of the Agreement rest on assumptions about how legitimate public administration is constituted, limited and held to account, or, in other words, theories of administrative constitutionalism. This is illustrated with examining the different approaches taken to interpreting the SPS Agreement by the Panel and the Appellate Body in EC-Hormones. It is also argued that the present focus on the on the science/democracy dichotomy is dangerous because it is resulting in scholars and lawyers pursuing the wrong lines of inquiry in thinking about the SPS Agreement, dispute settlement and the interface between trade regulation and social regulation.
Suggested Citation: Suggested Citation