European Regulation of GMOs: Thinking About Judicial Review in the WTO

Abstract

This paper examines the role of 'judicial review'in the WTO, by reference to a case study on the European regulation of GMOs. It argues that 'judicial review' may, in this setting, be conceived as re-enforcing rather than negating democracy, by enhancing accountability, and in particular the external accountability of states. It draws on the work of Robert Keohane, who understands external accountability as accountability to people who while situated outside of a given polity are affected by decisions adopted within it. The paper supports this argument with reference to cases such as Shrimp/Turtle and, more recently, GSP. It concedes, however that as the Appellate Body of the WTO comes to elaborate stronger substantive benchmarks for review - rationality or proportionality type tests - 'judicial review' also raises a democracy dilemma for the WTO. One aspect of this dilemma concerns the place of public opinion in risk regulation, and the legal entitlement of Member State governments to be responsive, in their regulation, to such opinion. This democracy dilemma presents an audacious challenge for the WTO, and one which admits of no easy or absolute answers.