Chicago Journal of International Law


My thesis in this essay, however, is that such an accommodation is exceedingly difficult if not impossible. Meaningful scientific evidence requirements fundamentally conflict with regulatory sovereignty in all cases of serious scientific uncertainty. WTO law must then choose between an interpretation of scientific evidence requirements that essentially eviscerates them and defers to national judgments about "science," or an interpretation that gives them real bite at the expense of the capacity of national regulators to choose the level of risk that they will tolerate. The only middle ground lies in the rare cases where scientific uncertainty is remediable quickly at low cost. I further argue that "consistency" requirements cannot likely supplant scientific evidence requirements in a way that satisfactorily accommodates the tension between the desire to weed out protectionism on the one hand, and the desire to respect regulatory sovereignty on the other. A close examination of pertinent WTO decisions to date, most importantly the decision in the "beef hormones" dispute and its unsuccessful effort to accommodate scientific evidence requirements with deference to domestic regulators, will provide the bulk of the argument. Section I provides some general background on WTO law, while section II considers the cases. [CONT]