Wagner on International Trade Law

Markus Wagner has posted Taking Interdependence Seriously: The Need for a Reassessment of the Precautionary Principle in International Trade Law on SSRN with the following abstract:

To date, WTO panels and the AB have relied heavily on positive definitive evidence when a WTO member attempted justifying a measure affecting international trade. Only in rare circumstances has the dispute settlement process allowed for the precautionary principle to become operational in trade disputes. This is especially troublesome in a time when issues such as global climate change, increases in endocrine disrupting compounds and the rapid decrease of fish stock threaten the very livelihood of millions of people. Combined with a persistent and growing disparity between scientific information and the international legal system to respond to it, problems of international economic and environmental governance will continue to persist. It is before this background that it is necessary to reassess the role of the precautionary principle in international trade law. Environmental groups have tried to lay claims regarding the precautionary principle that may be going too far, a majority of WTO members – for a variety of reasons, including the forthcoming of the organization and the largely trade-driven agenda of the WTO – to diminish its importance.

The project aims at operationalizing the precautionary principle in a meaningful and effective manner in international trade law. Not all environmental or health disputes will necessarily have to be analyzed through this lens. However, disputes that involve practices that threaten the livelihood or indeed survival of a large number of individuals should not be held to standards that may be sensible in other instances. The project therefore will propose a layered approach to evidentiary requirements in international trade law. This approach is based on a careful reading of existing case law within international trade law and would reassess existing rulings further in an effort to adequately address issues the true impact of which could not be fully considered at the creation of the WTO in 1995, much less so at the creation of the GATT in 1947. Moreover, it also shines a light on the problems involved in transposing the language and syntax of natural science into a legal system that has so far been static, formalistic and reluctant to concern itself with matters that are perceived to be outside of its core jurisdiction.

ECC