Sound science and trade barriers: Democracy, autonomy and the limits of the SPS agreement
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Morse, Edward A.
This article examines the framework of the Agreement for Sanitary and Phytosanitary Measures (SPS Agreement) and assesses its impacts on domestic autonomy and authority in matters of food and environmental safety. The direct impact of the SPS Agreement appears quite limited, as only a few cases have arisen. The Agreement has not proven to be a pervasive tool for the purpose of overturning domestic policies on food or environmental safety, despite the fact that the WTO Panel or Appellate Body decisions have found that domestic measures violate the terms of the SPS Agreement. Limited enforcement mechanisms provide protection for domestic policies, though perhaps at the price of trade sanctions. Moreover, theoretical literature suggests that the SPS Agreement may indeed enhance democratic values by discounting the influence of special interests and retaining ultimate authority for enforcement within the discretion of domestic government. Important issues nevertheless remain, including the role of the precautionary principle in policymaking and the means to address normative values, such as developing moral consensus on animal welfare, in trade matters. Trade has proven to be a catalyst for change and cooperative development in this context.
Edward A. Morse, Sound Science and Trade Barriers: Democracy, Autonomy, and the Limits of the SPS Agreement, 6 J. Int'l Trade L. & Pol'y 1 (2007), reprinted in International Law and Trade: Bridging the East-West Divide 10 (Sylvia Mercado Kierkegaard ed., Rev. ed. 2007).