Domestic Regulation, Sovereignty, and Scientific Evidence Requirements: A Pessimistic View

The World Trade Organization ("WTO") and its predecessor, the General Agreement on Tariffs and Trade ("GATT"), have been extraordinarily successful at liberalizing trade in the global economy. The process of liberalization has entailed a series of negotiations resulting in reciprocal commitments to reduce or eliminate tariffs, quotas, and other traditional instruments of protectionism. To ensure the integrity of those commitments, it has been necessary since the inception of GATT to prohibit member nations from substituting other protectionist devices for those which they promise to forego. Domestic regulations, in particular, can disadvantage or exclude foreign suppliers from export markets. Such regulatory obstacles to exports are known as "technical barriers to trade." A number of legal principles have evolved in the WTO system to discipline technical barriers.1 Regulations that discriminate against foreign suppliers are the most obvious source of undesirable technical barriers, and WTO law imposes an obligation on the regulators of member nations to avoid discrimination that disfavors foreign suppliers.2 Facially nondiscriminatory regulations that impose IMAGE FORMULA5 relatively greater compliance costs on foreign suppliers can have the same effect as discriminatory regulations, however, and WTO law thus includes an array of constraints on domestic regulation that go beyond simple nondiscrimination requirements.3 One such constraint may be termed a "scientific evidence requirement"-a requirement that certain regulations, generally those enacted for the purpose of protecting health, safety, or the environment, be based on scientific evidence. The scientific evidence may go either to the existence of a risk, or to the efficacy of the regulation in reducing the risk. The logic of scientific evidence requirements is obvious. If a regulation that is ostensibly aimed at protecting health, safety, or the environment nevertheless has the effect of restricting trade, and there is no scientific evidence of any danger to be avoided or of any reduction in risk as a result of the regulation, then the suspicion arises that the regulation is disguised protectionism. In effect, a scientific evidence requirement aids in motive review, and helps to sort regulations between those that are protectionist and those that seek to promote some legitimate, non-protectionist regulatory objective.4 But scientific evidence requirements can also create hurdles for regulators who sincerely pursue objectives other than protectionism. Depending on the context, scientific evidence may be inconclusive or its conclusions highly tentative or preliminary. Convincing scientific proof of certain types of risk, particularly low level risks, may be difficult to produce. And scientists may well disagree about the existence of a risk or the efficacy of various ways to reduce it. In the face of such scientific uncertainty, scientific evidence requirements may stand in the way of honest regulatory efforts to manage risk. These concerns are not merely hypothetical. As shall be seen below, they surface clearly in WTO disputes. The uncomfortable interface between scientific evidence requirements and conditions of scientific uncertainty poses serious challenges for the WTO system, which has always billed itself as respectful of national regulatory "sovereignty." The WTO agreements, as well as decisions pursuant to its dispute resolution process, are replete with references to the right of each member nation to decide on the level of risk that it wishes to tolerate within its jurisdiction. This deference to national sovereignty has played an essential political role in quieting opposition to the WTO IMAGE FORMULA9 and thus in facilitating its core mission. Ideally, one might hope for an accommodation between scientific evidence requirements and "sovereignty" that allows both to be respected under WTO law. …