Risk assessment under WTO law: workable requirement or probatio diabolica?

Abstract

In an effort to eliminate protectionism and unnecessary non-tariff barriers, the WTO/SPS agreement embraced science as the privileged tool to be relied upon in order to distinguish between legitimate and illegitimate Member States’ measures inspired by public health reasons.
However, in adjudicating disputes involving the scientific basis of trade-restrictive measures, the WTO judicial bodies have struggled to turn the SPS scientific discipline into a workable (risk assessment) requirement. As a result, all major SPS cases to date - the Hormones, Salmon, Agricultural products II, Apples and Biotech cases - have been lost by the defending Member because of its failure to comply with the required scientific justification discipline. At a time when the risk assessment requirement seems to have been converted into a probatio diabolica, this paper examines, in the light of the almost 15 years of judicial application of the SPS Agreement, whether its scientific discipline is still a workable requirement, effectively enabling the interpreter to filter protectionism out of SPS measures. Although time and the judicial practice developed under the SPS have partly tarnished science’s promise of value-neutrality, this paper, in the absence of any less arbitrary criterion, ventures to suggest some recommendations to turn risk assessment into a workable requirement.