Public Opinion and the Interpretation of the World Trade Organisation's Agreement on Sanitary and Phytosanitary Measures

Abstract

The WTO system is increasingly finding itself undermined by intractable disputes that involve high levels of public concern about the safety of proposed imports, in particular as seen in the EC-Hormones and the EC - Approval and Marketing of Biotech Products cases. This indicates a systemic problem in the interpretation and application of the SPS Agreement. In addressing this problem, a new starting point needs to be adopted. A democratic approach would suggest that where a Member's population simply does not want to run a given risk, this risk should not be imposed on the population. A careful consideration of the central provisions of the SPS Agreement reveals that there remains considerable scope for greater recognition within SPS jurisprudence of the significance of public opinion in decision-making about risks to human health and the environment, in a way that combines scientific and non-scientific aspects of decision-making about risk. Adopting such an approach will help ensure consistency between international economic law and broader public international law, including international human rights treaties and international environmental law.