The 2003–2006 WTO GMO Dispute: Implications for the SPS Agreement

Abstract

[Conclusion-Summary] The World Trade Organization (WTO) dispute settlement procedure is a key arena for establishing global legal norms for what counts as relevant knowledge. As a high-profile case, the WTO trade dispute on GMOs mobilized and appropriated scientific expertise in somewhat novel ways. As shown above, the Panel interpreted the SPS framework as a requirement for ‘risk assessment’ – quantifying likelihoods and consequences, and imposing extra burdens upon the defendant to produce evidence. By imposing ‘the narrowest applications to date of the notion of SPS risk assessment’ (Peel, 2010: 244), the WTO Panel further globalised a ‘science-based risk assessment’ narrative that had emerged during the USA’s Reagan administration (Jasanoff, 2011). Early on, the Panel put the dispute under the Sanitary and Phytosanitary (SPS) Agreement through a new legal ontology; it classified transgenes as potential pests and limited all environmental issues to the ‘plant and animal health’ category. For the SPS framing, focusing on the defendant’s regulatory procedures, the Panel staged scientific expertise in specific ways that set up how experts were questioned, the answers they would give, their specific role in the legal arena, and the way their statements would complement the Panel’s findings. Moreover, the Panel operated a procedural turn in WTO jurisprudence by representing its findings as a purely legal-administrative judgement on whether the EC’s regulatory procedures violated the SPS Agreement. Meanwhile the Panel kept implicit its own judgements on substantive risk issues. As this case illustrates, the WTO settlement process constructs a new scientific expertise for the main task – namely, challenging trade restrictions for being unduly cautious.