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Journal of International Economic Law Advance Access published online on February 29, 2008
Journal of International Economic Law, doi:10.1093/jiel/jgn011
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© Oxford University Press 2008, all rights reserved

Public Opinion and the Interpretation of the World Trade Organisation's Agreement on Sanitary and Phytosanitary Measures

Caroline E. Foster*

* Senior Lecturer, Faculty of Law, University of Auckland, New Zealand. E-mail: c.foster{at}auckland.ac.nz.


  Abstract

The WTO system is increasingly finding itself undermined by intractable disputes that involve high levels of public concern about the safety of proposed imports, in particular as seen in the EC-Hormones and the EC – Approval and Marketing of Biotech Products cases. This indicates a systemic problem in the interpretation and application of the SPS Agreement. In addressing this problem, a new starting point needs to be adopted. A democratic approach would suggest that where a Member's population simply does not want to run a given risk, this risk should not be imposed on the population. A careful consideration of the central provisions of the SPS Agreement reveals that there remains considerable scope for greater recognition within SPS jurisprudence of the significance of public opinion in decision-making about risks to human health and the environment, in a way that combines scientific and non-scientific aspects of decision-making about risk. Adopting such an approach will help ensure consistency between international economic law and broader public international law, including international human rights treaties and international environmental law.

The author would like to thank the Journal's anonymous reviewers for their comments on this article. The article is based on a paper originally developed for presentation at a workshop held in Prato, Italy, in July 2007 by Monash University and the University of Sydney, and will be published also in a volume comprising the workshop's proceedings to be produced by Edward Elgar Publishing in 2008. The author would also like to thank the workshop organizers and participants for their support, as well as the public international law group at the University of Auckland.


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