Law and science: risk assessment and risk management in the WTO agreement on the application of sanitary and phytosanitary measures

Assessing and managing risks relating to the consumption of food stuffs for humans and to the environment has been one of the most complex legal issues in WTO law, ever since the Agreement on Sanitary and Phytosanitary Measures was adopted at the end of the Uruguay Round and entered into force in 1995. The problem was expounded in a number of cases. Panels and the Appellate Body adopted different philosophies in interpreting the agreement and the basic concept of risk assessment as defined in Annex A para. 4 of the Agreement. Risk assessment entails fundamental question on law and science. Different interpretations reflect different underlying perceptions of science and its relationship to the law. The present thesis supported by the Swiss National Research Foundation undertakes an in-depth analysis of these underlying perceptions. The author expounds the essence and differences of positivism and relativism in philosophy and natural sciences. He clarifies the relationship of fundamental concepts such as risk, hazards and probability. This investigation is a remarkable effort on the part of lawyer keen to learn more about the fundamentals based upon which the law – often unconsciously – is operated by the legal profession and the trade community. Based upon these insights, he turns to a critical assessment of jurisprudence both of panels and the Appellate Body. Extensively referring and discussing the literature, he deconstructs findings and decisions in light of implied and assumed underlying philosophies and perceptions as to the relationship of law and science, in particular in the field of food standards. Finding that both positivism and relativism does not provide adequate answers, the author turns critical rationalism and applies the methodologies of falsification developed by Karl R. Popper. Critical rationalism allows combining discourse in science and law and helps preparing the ground for a new approach to risk assessment and risk management. Linking the problem to the doctrine of multilevel governance the author develops a theory allocating risk assessment to international for a while leaving the matter of risk management to national and democratically accountable government. While the author throughout the thesis questions the possibility of separating risk assessment and risk management, the thesis offers new avenues which may assist in structuring a complex and difficult problem

Market Access in Switzerland and in the European Union for Agricultural Products from Least Developed Countries

The introduction of the so-called “duty free quota free” treatment (DFQF) for all products from least developed countries (LDCs), in particular by the European Communities (EC) and by Switzerland, raised expectations of increased agricultural exports for these 49 countries. Despite the high tariff differential LDCs now enjoy over their competitors, especially for agricultural products and particularly in Switzerland, the results until 2007 are dismal: with the exception of sugar exports to the EC, LDCs have not been able to substantially increase their agricultural exports to Europe. This study analyses the result-ing tariff situation and the remaining non-tariff barriers. In many instances it is not cus-toms duties but the sanitary and phytosanitary barriers which turn out to be the single most important hurdle preventing trade. For instance, almost no LDC-based company can supply animal-based products. Similarly, certain private standards set by proces-sors and retailers prevent imports, particularly from LDCs, far more effectively than tar-iffs. Several gateways into this “European cordon sanitaire” are proposed. Only if offered in the context of a package of various carefully coordinated measures, DFQF could yet have a real impact on trade from LDCs. As it stands, this treatment constitutes only a nice-to-have but still largely ineffective instrument of trade development.