Risk analysis has been recognized and validated in World Trade Organization (WTO) decision processes. In recent years the precautionary principle has been proposed as an additional or alternative approach to standard risk assessment. The precautionary principle has also been advocated by some who see it as part of postmodern democracy in which more power is given to the public on health and safety matters relative to the judgments of technocrats. A more cynical view is that the precautionary principle is particularly championed by the European Community as a means to erect trade barriers. The WTO ruling against the European Community's trade barrier against beef from hormone-treated cattle seemed to support the use of risk assessment and appeared to reject the argument that the precautionary principle was a legitimate basis for trade barriers. However, a more recent WTO decision on asbestos contains language suggesting that the precautionary principle, in the form of taking into account public perception, may be acceptable as a basis for a trade barrier. This decision, if followed in future WTO trade disputes, such as for genetically modified foods, raises many issues central to the field of risk analysis. It is too early to tell whether the precautionary principle will become accepted in WTO decisions, either as a supplement or a substitute for standard risk assessment. But it would undermine the value of the precautionary principle if this principle were misused to justify unwarranted trade barriers.
Scientific research is of proven value to protecting public health and the environment from current and future problems. We explore the extent to which the Precautionary Principle is a threat to this rôle for science and technology. Not surprisingly for a relatively simple yet still incompletely defined concept, supporters of the Precautionary Principle come from different viewpoints, including a viewpoint that is at least uneasy with the rôle of science, and particularly its use in risk assessment. There are also aspects of the Precautionary Principle that inherently restrict obtaining and using science. The Hazardous Air Pollutant (HAP) provisions in the US Clean Air Act Amendments are an example of the Precautionary Principle, which both shifted the burden of proof so that the onus is now on showing a listed compound is harmless, and required maximum available control technology (MACT) instead of a primarily risk-based approach to pollution control. Since its passage in 1990 there has been a decrease in research funding for studies of HAPs. Other potential problems include that once MACT regulations are established, it may be difficult to develop new technological approaches that will further improve air pollution control; that by treating all regulated HAPs similarly, no distinction is made between those that provide a higher or lower risk; and that there is a perverse incentive to use less well studied agents that are not on the existing list. As acting on the Precautionary Principle inherently imposes significant costs for what is a potentially erroneous action, additional scientific study should be required to determine if the precautionary action was successful. If we are to maximize the value of the Precautionary Principle to public health and the environment, it is crucial that its impact not adversely affect the potent preventive rôle of science and technology.
The World Trade Organization is currently evolving its approach to incorporating scientific and technological evidence into its dispute-resolution process. In European Communities-Measures Affecting Asbestos and Asbestos-Containing Products, the Panel was faced with a large amount of complex and conflicting scientific evidence presented by the partisan experts. The Asbestos Panel's solution was to appoint independent, nonpartisan experts to help it understand and evaluate the scientific evidence. While this was far better than trying to unravel the conflicting scientific evidence on its own, two aspects of the Panel's adopted procedure merit scrutiny. First, the expert-selection process used by the Panel may not assure that the collective expertise of the appointed experts is broad enough when the dispute involves multidisciplinary scientific issues. Second, the process adopted by the Panel for consulting the appointed experts-which involved individual consultation rather than a consensus process-may leave a panel with a distorted or confused picture of the science. A consensus approach is the best means of obtaining scientific advice from appointed experts; it is most calculated to provide a clear and accurate report of the scientific information needed by a panel to make a fair and informed decision on the dispute before it. The underlying principle of world trade agreements is that it is beneficial to all of us to have free trade. Among other things, this requires an effective means of resolving disputes, and increasingly that includes disputes involving complex scientific and technological issues. This can be achieved only if the parties have confidence that their disputes will be decided in a fair and informed manner, based on the best science available. To achieve this goal, we suggest that future WTO panels depart in certain respects from the procedures utilized by the Asbestos Panel.
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