Introduction

In practice, values, culture and context play a vital role, alongside scientific knowledge, in informing regulatory approaches for health and environmental risk. At the global level, however, this has not limited the appeal of science as a crucial resource for risk decision-making where international laws and institutions seek the acceptance of determinations as neutral and universally valid. The Agreement on Sanitary and Phytosanitary Measures (SPS Agreement), negotiated during the Uruguay trade round that also led to the establishment of the WTO, reflects this faith in science. Its standards invoke scientific evidence and risk assessment as arbiters of the WTO-compatibility of trade-restrictive SPS risk regulatory measures, regardless of whether the measures concerned are discriminatory in nature. Hence members' SPS measures that depart from the standards of recognised international expert bodies, such as the Codex Alimentarius Commission, must be founded on ‘scientific principles’, ‘not maintained without sufficient scientific evidence’ and ‘based on’ an adequate risk assessment if they are to avoid scrutiny through the processes of the WTO.

While introducing novel science-based requirements into global trade law, the SPS Agreement articulates these standards in a form ‘so loose to be essentially unworkable in their own terms’. Accordingly, many early analyses of the SPS Agreement predicted that it would have a benign, if not beneficial, impact on national and global risk regulation.