THE POWER TO PROTECT pptx

THE POWER TO PROTECT This book examines the intersection of WTO trade liberalisation rules and domestic health protection, a subject that is of considerable interest to those concerned that the WTO impinges on national regulatory auto- nomy. In analysing the tension between health protection and trade liber- alisation, the book focuses on the way in which this tension is (or is not) resolved through the dispute resolution process. It offers a detailed analy- sis of the relevant WTO rules and case law, identifying particular concerns relating to the ability of WTO Members to take protective action in circumstances of scientific uncertainty and the role of social and cultural factors in the making of health-related regulations. The nature of scientific evidence and the extent to which the scientific process internalises uncer- tainty is further explored, drawing on documentation relating to the theory and conduct of scientific risk assessment. Despite the popularity of the precautionary principle in some quarters, it is suggested that it may not be advisable for the WTO to adopt that principle. Rather, further atten- tion should be paid to the role that the standard of review might play in easing the tensions that arise when a sovereign state’s health regulations are reviewed by the WTO. The origins of the WTO’s ‘objective assessment’ standard of review are explained, but the standard itself is criticised. Options for developing the standard of review are considered, with a ‘reasonable regulator’ standard based on the Asbestos case proposed. The book takes a comparative approach, drawing on ECJ cases reviewing Member State and Community health measures as well as US judicial review and commerce clause cases. Volume 2 in the series Studies in International Trade Law Studies in International Trade Law Titles in this series: Basic Legal Instruments for the Liberalisation of Trade Federico Ortino The Power to Protect: Trade, Health, and Uncertainty in the WTO Catherine Button Appellate Decisions in the WTO Rob Howse The Power to Protect Trade, Health and Uncertainty in the WTO Catherine Button OXFORD AND PORTLAND, OREGON 2004 Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA © Catherine Button 2004 Catherine Button has asserted her right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail: mail@hartpub.co.uk WEBSITE: http//www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1–84113–482–1 (hardback) Typeset by Hope Services (Abingdon) Ltd Printed and bound in Great Britain on acid-free paper by MPG Books, Bodmin, Cornwall Summary of Contents Acknowledgements vii Abbreviations ix Table of Contents xiii Table of Cases xix Table of Documents and Statutes xxvii 1Introduction 1 2 Review of Health Measures under GATT 9 3 Review of Health Measures under the SPS and TBT Agreements 43 4Risk Regulation, Culture and Uncertainty 93 5 The Precautionary Principle, Proportionality and Procedure 119 6 Easing Tensions via the Standard of Review 163 7 Developing the WTO’s Standard of Review in Health Cases 193 8 Conclusion 227 Bibliography 237 Index 251 [...]... The boundary between risk assessment and risk management C Other Legitimate Factors: Social and Cultural Preferences 1 ‘Other Factors’ and the SPS Agreement (a) The use of ‘other factors’ and the requirement that measures be ‘based on’ a risk assessment (b) The consideration of ‘other factors’ within risk assessment (c) ‘Other factors’ and the consistency discipline 2 Distinguishing Between Various... in the years since 1995 This is the story of those difficulties and efforts to resolve them Health regulations constitute non-tariff barriers to trade irrespective of whether they are disguised protectionism (and therefore ‘sham’ health regulations) or whether they are genuinely motivated by a concern to protect health.10 In stipulating that only health regualtions backed by science could survive, the. .. health When the Uruguay Round negotiators gathered at Punta del Este, the reservation of this vital power was never up for negotiation After all, in promulgating such regulations, states are fulfilling a basic duty to protect their citizens.4 The importance of this right to take action to protect health can hardly be overemphasised, yet the appreciable trade effects of health regulations and their susceptibility... since 1995, and with a number of major health cases having passed through the dispute resolution system, it is appropriate to take stock of the relationship between the national right to take action to protect health and WTO efforts to limit the trade impact of health regulations Before the Uruguay Round, the concern was that the international system was ineffective in 7 Fidler notes that, in several... Conclusion on reference to social and cultural factors D Uncertainty and Science-Based Review in the WTO E Conclusion 5 The Precautionary Principle, Proportionality and Procedure A The Precautionary Principle 1 Precaution in the WTO 2 Introducing the European Communication 3 Precaution and the Precautionary Principle 4 The European Commission’s Communication on the Precautionary Principle B The Precautionary... world, we are preoccupied with safety We insist that the food we eat, the toys we give our children and the products we use are all safe, but few actually stop to contemplate the workings of the vast regulatory machinery that supports our safety-conscious ways Protecting the health and safety of people, plants and animals has come to be regarded as one of the core responsibilities of national governments.1... barriers to trade, as the international trading system has developed, the essential right of countries to take action to protect domestic health has not been questioned Since the General Agreement on Tariffs and Trade 3 (GATT) was concluded in 1947, it has been recognised that, in committing themselves to trade liberalisation, countries did not give up the right to limit trade in order to protect health... When the Uruguay Round opened with the Ministerial meeting in Punta Del Este in September 1986, the negotiators were faced with a number of challenges One challenge was to reform the dispute resolution system so that blocking would no longer be possible Another challenge was to develop a set of disciplines to control the proliferation of health-based nontariff barriers With the basic right of states to. .. used simply to identify those health regulations whose negative effects on trade must, according to the agreed norms of the international trade community, be tolerated 10 AO Sykes ‘Regulatory Protectionism and the Law of International Trade’ (1999) 66 UChiLRev 1, 17–18 4 Introduction constraining health-based non-tariff barriers Now, the concern is that the pendulum has swung too far in the opposite... would prevent the Members from taking protective action in circumstances of scientific uncertainty.11 The Appellate Body’s first four decisions under the SPS Agreement did little to dispel such concerns In the first four cases decided under the SPS Agreement, the Appellate Body found that the defending Member’s health regulations were inconsistent with the SPS Agreement The first case was the Hormones case.12 . to Protect: Trade, Health, and Uncertainty in the WTO Catherine Button Appellate Decisions in the WTO Rob Howse The Power to Protect Trade, Health and Uncertainty in the WTO Catherine Button OXFORD. it may not be advisable for the WTO to adopt that principle. Rather, further atten- tion should be paid to the role that the standard of review might play in easing the tensions that arise when. THE POWER TO PROTECT This book examines the intersection of WTO trade liberalisation rules and domestic health protection, a subject that is of considerable interest to those concerned that the