Whither Science into Dispute Settlement?

Leiden Journal of International Law, 21(2008), p. 823-846.

Posted: 15 Oct 2015

Date Written: December 13, 2008

Abstract

This article understands risk dialectically as a decision-making resource stressing probability but as also giving rise to further uncertainties. It shows that the panel report in EC-Biotech reflects an understanding of risk as decision-making that is deterministic and leaves little room for the application of precautionary approaches and non-scientific factors. It submits that such an approach is unsuitable for novel technologies with limited background knowledge and reduces the accountability of risk regulators. A different approach is put forth, which allows members greater scope for precautionary action while preventing trade protectionism. The article concludes that law can enhance its authority and epistemic validity through scientific evidence but only if it recognizes science’s epistemic and its own limitations. Law has to approach science as contested knowledge and risk regulation as political decision-making, leading – inevitably – to more indeterminate solutions to legal conflicts.

Keywords: genetically modified organisms, precautionary principle; SPS Agreement; WTO law, EC-Biotech

JEL Classification: F15, F19, K33

Suggested Citation

Herwig, Alexia, Whither Science into Dispute Settlement? (December 13, 2008). Leiden Journal of International Law, 21(2008), p. 823-846., Available at SSRN: https://ssrn.com/abstract=2673864

Alexia Herwig (Contact Author)

University of Antwerp ( email )

Prinsstraat 13
Antwerp, 2000
Belgium

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