Democracy, Science, and Free Trade: Risk Regulation on Trial at the World Trade Organization

Among the most common critiques of globalization is that it increasingly constrains the ability of democratic communities to make unfettered choices about policies that affect the fundamental welfare of their citizens, including those of health and safety, the environment, and consumer protection. Traditionally, free trade rules were about constraining border measures such as tariffs and quantitative restrictions on imports. Increasingly, however, such rules include requirements and constraints addressed directly to domestic regulation. For example, a country’s policies with respect to intellectual property rights or its regulatory approach to network industries, such as telecommunications, may now be fundamentally shaped by rules that are made and interpreted at the international level. One of the most visible and controversial areas where trade rules constrain regulatory diversity is that of food safety. The World Trade Organization (“WTO”) Agreement on Sanitary and Phytosanitary Measures (“SPS Agreement”), negotiated in the Uruguay Round and enacted �n 1994, requires that countries either adopt harmonized international standards or, if they choose to maintain stricter regulations, base these on risk assessment, scientific principles, and scientific evidence. The SPS Agreement also requires that the regulations adopted be the least trade-restrictive available to achieve the desired level of protection. The above provisions apply even to nondiscriminatory regulations that would not run afoul of the Most Favored Nation and National Treatment provisions of the GATT itself. The SPS Agreement also prohibits “arbitrary” and “unjustified” distinctions in levels of protection in situations that are comparable, where these distinctions lead to “discrimination” or “disguised restriction on trade.”