* Professor of Law and Sayre Macneil Fellow at Loyola Law School (Los Angeles).
** Professor of Law and Director of International Programs at Boston College Law School.
The authors express their gratitude to Deans John Garvey and Robert Smith, to the participants in the Boston College/Suffolk University Science and International Trade conference, and especially to Marianne Hudec for permission to print Professor Hudec’s remarks.
1 Professor Robert Hudec passed away on March 12, 2003. Daniel Altman, Robert E. Hudec, 68, Expert on Global Trade Dies, N.Y. Times, Mar. 31, 2003. At the time of his death, Hudec was Research Professor of International Law at the Fletcher School of Law & Diplomacy and Professor Emeritus of Law at the University of Minnesota Law School.
2 The Boston College/Suffolk University Conference—Science and International Trade—was held in Boston on October 20, 2000. David Wirth and Jeffery Atik organized the Conference.
3 See David Wirth, The Role of Science in the Uruguay Round and NAFTA Trade Disciplines, 27 Cornell Int’l L.J. 817 (1994).
4 Wirth, supra note 3; Vern Walker, The Siren Songs of Science: Toward a Taxonomy of Scientific Uncertainty for Decisionmakers, 23 Conn. L. Rev. 567 (1991).
5 WTO Appellate Body Report on European Community Measures Concerning Meat and Meat Products, WT/DS26/AB/R; WT/DS48/AB/R (Jan. 16, 1998) (adopted Feb. 13, 1998).
6 See Vern Walker, Keeping the WTO from Becoming the ‘World Trans-science Organization’: Scientific Uncertainty, Science Policy, and Factfinding in the Growth Hormones Dispute, 31 Cornell Int’l L.J. 251 (1998).
7 Vern Walker, The Myth of Science as a “Neutral Arbiter” for Triggering Precautions, 26 B.C. Int’l & Comp. L. Rev. 197 (2003).
8 Todd Weiler, The Treatment of SPS Measures Under NAFTA Chapter 11: Preliminary Answers to an Open-Ended Question, 26 B.C. Int’l & Comp. L. Rev. 229 (2003).
9 Olivette Rivera-Torres, The Biosafety Protocol and the WTO, 26 B.C. Int’l & Comp. L. Rev. 263 (2003).
10 See generally Jeffery Atik, Identifying Antidemocratic Outcomes: Authenticity, Self-Sacrifice and International Trade, 19 U. Pa. J. Intl Econ. L. 229 (1998).
11 The Uruguay Round agreements included a special agreement on SPS measures—the Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments—Results of the Uruguay Round vol. 31 (1994).
12 Wirth, supra note 3; David Wirth, International Decisions. European Communities—Measures Concerning Meat and Meat Products, 92 Am. J. Int’l L. 755 (1988); Jeffery Atik, Science and International Regulatory Convergence, 17 N.W. J. Int’l L. & Bus. 736 (1996–97).
13 WTO Appellate Body Report on Australia—Measures Affecting Importation of Salmon, WT/DS18/AB/R (Oct. 20, 1998) (adopted Nov. 6, 1998).
14 WTO Appellate Body Report on Japan—Measures Affecting Agricultural Products, WT/DS76/AB/R (Feb 22, 1999) (adopted Mar. 19, 1999).
15 For excellent examples, see Steve Charnovitz, The Supervision of Health and Biosafety Regulation by World Trade Rules, 13 Tul. Envtl. L.J. 271 (2000); Joost Pauwelyn, The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Disputes, 2 J. Int’l Econ. L. 641 (1999); and David Victor, The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment After Five Years, 32 N.Y.U. J. Int’l L. & Pol. 865 (2000).
16 The University of Michigan Health, Trade & Ecology Workshop—Risk Assessment in the Context of Trade Disputes: How Well Are Scientific Principles Incorporated into the Resolution of Science-Based Trade Disputes?—was held in Ann Arbor on November 1 & 2, 2001. The Michigan workshop was organized by Prof. Sioban Harlow.
17 Lawyers and public health scholars were matched to examine issues raised by the three initial WTO SPS cases. Scholarship resulting from the Michigan workshop includes Joost Pauwelyn, The Use of Experts in WTO Dispute Settlement, 51 Int’l & Comp. L.Q. 325 (2002); and Jeffery Atik, The Weakest Link—Demonstrating the Inconsistency of “Appropriate Levels of Protection” in Australia-Salmon, Risk Analysis (forthcoming 2003 ).
18 WTO Appellate Body Report on European Communities--Measures Affecting Asbestos and Asbestos-containing Products, WT/DS135/AB/R (Mar. 12, 2001), 40 I.L.M. 1193 (2001) (adopted Apr. 5, 2001).
19 See David Wirth, International Decisions, European Communities-Measures Affecting Asbestos and Asbestos-Containing Products, 96 Am. J. Int’l L. 435 (2002).
20 See Theofanis Christoforou, Settlement of Science-Based Trade Disputes in the WTO: A Critical Review of Developing Case Law in the Face of Scientific Uncertainty, 8 N.Y.U. Envtl. L.J. 622 (2000); Jan Bohanes, Risk Regulation in WTO Law: A Procedure-Based Approach to the Precautionary Principle, 40 Colum. J. Transnat’l L. 323 (2002).
21 Robert Howse, Democracy, Science, and Free Trade: Risk Regulation on Trial at the World Trade Organization, 98 Mich. L. Rev. 2329 (2000).
22 North American Free Trade Agreement, Dec. 17, 1992, U.S.-Can.-Mex., arts. 1102, 1103, 1104, 107 Stat. 2057 (1994), 32 I.L.M. 605 (1993).
23 Id. art. 1105(1).
24 Id. art. 1110(1).
25 Were Weiler’s vision to come to pass, it would be an example of “post-discriminatory” international trade law decried by Hudec in his keynote remarks presented herein. Robert Hudec, Science and “Post-Discriminatory” WTO Law, 26 B.C. Int’l & Comp. L. Rev. 185 (2003).
26 WTO Dispute Settlement Body Report on United States—Restrictions on Imports of Tuna, DS21/R—39S/155 (1991) (circulated but never adopted).
27 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan. 29, 2000, 39 I.L.M. 1027.
28 Suffolk University law dean Robert Smith was the other “host dean.”
29 John Garvey, Science and International Trade, 26 B.C. Int’l & Comp. L. Rev. 183 (2003).
30 The road to an academic’s hell is paved with good intentions of future projects. That said, David Wirth and Jeffery Atik are at work on a jointly-authored book on Science and International Trade.