Public opinion and the interpretation of the World Trade Organisation's agreement on sanitary and phytosanitary measures

Journal of International Economic Law

Volumn 11, Issue 2, 2008, Pages 427-458

  Foster, Caroline E ^a  

^a UNIVERSITY OF AUCKLAND   (New Zealand)

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[No Author keywords available]

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EID: 44949145133     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgn011     Document Type: Article

References (175)

1. Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, WT/DS48/R/CAN, adopted 13 February 1998, modified by Appellate Body Report, WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998:II, 235.
2. Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, WT/DS26/R/USA, adopted 13 February 1998, modified by Appellate Body Report, WT/DS26/AB/R, WT/DS48/ AB/R, DSR 1998:III, 699.
3. Award of the Arbitrator, EC Measures Concerning Meat and Meat Products (Hormones) - Arbitration under Article 21.3(c) of the DSU, WT/DS26/15, WT/DS48/ 13, 29 May 1998, DSR 1998:V, 1833 (hereafter EC-Hormones ABR). The two panel reports are almost identical. The relevant paragraphs of the Canadian report will be referred to with respect to points made in this article (hereafter EC-Hormones PR).
4. See also Canada -Continued Suspension of Obligations in the EC - Hormones Dispute DS321, in which the EC challenges the continuation of retaliatory measures in relation to the findings in this dispute, on the basis that the EC considers it is now in compliance with its obligations.
5. Above, n 1.
6. Panel Report, Australia - Measures Affecting Importation of Salmon, WT/DS18/R and Corr.1, adopted 6 November 1998, modified by Appellate Body Report, WT/DS18/AB/R, DSR 1998:VIII, 3407 (hereafter Australia-Salmon PR);
7. Appellate Body Report, Australia - Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327 (hereafter Australia-Salmon ABR);
8. Panel Report, Australia - Measures Affecting Importation of Salmon - Recourse to Article 21.5 of the DSU by Canada, WT/DS18/RW, adopted 20 March 2000, DSR 2000:IV, 2031 (hereafter Australia-Salmon CPR).
9. Panel Report, Japan - Measures Affecting Agricultural Products, WT/DS76/R, adopted 19 March 1999, modified by Appellate Body Report, WT/DS76/AB/R, DSR 1999:I, 315 (hereafter Japan - Agricultural Products II PR);
10. Appellate Body Report, Japan - Measures Affecting Agricultural Products, WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277 (hereafter Japan - Agricultural Products II ABR).
11. Panel Report, Japan - Measures Affecting the Importation of Apples, WT/DS245/R, adopted 10 December 2003, upheld by Appellate Body Report, WT/DS245/AB/R, DSR 2003:IX, 4481 (hereafter Japan-Apples PR);
12. Appellate Body Report, Japan - Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, 4391 (hereafter Japan-Apples ABR);
13. Panel Report, Japan - Measures Affecting the Importation of Apples - Recourse to Article 21.5 of the DSU by the United States, WT/DS245/RW, adopted 20 July 2005 (hereafter Japan-Apples CPR).
14. Panel Report, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, Corr.1 and Add.1, 2, 3, 4, 5, 6, 7, 8 and 9, adopted 21 November 2006 (hereafter EC - Approval and Marketing of Biotech Products PR).
15. Above, n 1.
16. Above, n 6.
17. For an analysis of one suggestion on how this problem is to be addressed, see Charnovitz Steve, 'An Analysis of Pascal Lamy's Proposal on Collective Preferences', 8 Journal of International Economic Law (2005), 449.
18. Article 2.2 states: Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5 (Emphasis added).
19. Article 5.7 states: In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time (Emphasis added).
20. See Article 3.2 of the Agreement.
21. Article 5.1 states: Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations (Emphasis added).
22. For related discussion, see Green Andrew and Epps Tracey, 'The WTO, Science, and the Environment: Moving towards Consistency', 10 (2) Journal of International Economic Law (2007), at 285-316;
23. and Peel Jacqueline, Risk Regulation Under the WTO SPS Agreement: Science as an International Normative Yardstick? (New York: NYU School of Law, Jean Monnet Working Paper 02/04 2004). Peel takes issue with reliance on science as a normative yardstick in SPS jurisprudence, given the significance of the value-laden questions that are inherent in health and environmental risk regulation.
24. See also Walker Vern R, 'The Myth of Science as a "Neutral Arbiter" for Taking Precautions', 26 Boston College International and Comparative Law Review (2003), at 197.
25. Also note Kerr William A, 'Science-based Rules of Trade - A Mantra for Some, An Anathema for Others', 4 (2) The Estey Centre Journal of International Law and Trade Policy (2003), at 86;
26. and Guzman Andrew, 'Food Fears: Health and Safety at the WTO', 45 Virginia Journal of International Law (2004-5), at 1, advocating deference to national governments in respect of both scientific and non-scientific aspects of decision-making.
27. Above, n 10.
28. EC-Hormones ABR para 124;
29. Japan-Apples CPR para 8.105;
30. EC - Approval and Marketing of Biotech Products PR para 786.
31. Japan-Apples ABR para 179.
32. EC - Approval and Marketing of Biotech Products PR paras 7.3226, 7.3234, and 7.3238.
33. See also para 7.3052f, dealing with the further EC argument that Article 5.1 required a risk assessment 'as appropriate to the circumstances', and this phrase should be taken into account also in determining the insufficiency of the evidence available for a risk assessment under Article 5.7.
34. Korea - Various Measures on Beef ABR paras 54 and 176.
35. US-Gambling ABR para 308.
36. See the Report of the Appellate Body in EC-Hormones.
37. Article 5.6 reads: Without prejudice to paragraph 2 of Article 3, when establishing or maintaining sanitary or phytosanitary measures to achieve their appropriate level of sanitary or phytosanitary protection, Members shall ensure that such measures are not more trade-restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility. * For the purposes of paragraph 6 of Article 5, the measure is not more trade-restrictive than required unless there is another measure, reasonably available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade.
38. EC-Hormones ABR para 186.
39. EC-Hormones PR para 8.250, ABR para 251.
40. EC - Approval and Marketing of Biotech Products PR paras 7.1398-7.1407 and 7.1715-7.1729.
41. Ibid, at para 7.3377.
42. Australia-Salmon ABR para 241;
43. PR paras 8.161 ff.
44. Australia-Salmon CPR para 7.153.
45. Initiated on 31 August 2007 with a request for consultations. Australia- Measures Affecting the Importation of Apples from New Zealand. DS 367.
46. Japan-Agricultural Products II ABR paras 131 and 143(h);
47. PR paras 8.64-8.104.
48. Australia-Salmon CPR para 7.153.
49. Article XX, with relevant subparagraphs, provides that: Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: . . . (a) necessary to protect public morals; (b) necessary to protect human, animal or plant life or health; . . . (d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices;. . . (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;.
50. GATT Panel Report, United States Section 337 of the Tariff Act of 1930, L/6439, adopted 7 November 1989, BISD 36S/345 para 5.26;
51. Thailand-Restrictions on Importation of and Internal Taxes on Cigarettes, adopted 20 February 1990, BISD 37S/100 para 75;
52. Appellate Body Report, Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, DSR 2001:I, 5 (hereafter Korea - Various Measures on Beef), paras 159 ff;
53. Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, 3243 (hereafter EC-Asbestos) paras 170 ff;
54. Appellate Body Report, United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/ DS285/AB/R, adopted 20 April 2005 (hereafter US-Gambling ABR);
55. Appellate Body Report, Dominican Republic - Measures Affecting the Importation and Internal Sale of Cigarettes, WT/ DS302/AB/R, adopted 19 May 2005 (hereafter Dominican Republic - Import and Sale of Cigarettes ABR);
56. Brazil - Measures Affecting Imports of Retreaded Tyres WT/DS332/R 12 June 2007 (hereafter Brazil-Tyres PR).
57. Korea - Various Measures on Beef ABR para 162, citing the Report of the Panel at 675, and 164;
58. Dominican Republic - Import and Sale of Cigarettes ABR para 70.
59. See Regan Donald H. Remarks, British Institute of International and Comparative Law, Sixth Annual WTO Conference, London, 23-24 May 2006
60. and 'The Meaning of Necessary in GATT Article XX and GATS Article XIV: The Myth of Cost-Benefit Balancing', Journal of World Trade Law (2007), at 347-69.
61. Regan argues that in fact no real weighing and balancing takes place at all. He notes that the significance attached by defending parties to the aim in respect of which measure have been adopted, that is to say their chosen level of protection, was respected not only in EC-Asbestos, but also in Korea - Various Measures on Beef, in US-Gambling, and in Dominican Republic - Import and Sale of Cigarettes. Personal copy pp. 19-25.
62. In EC-Asbestos, the Appellate Body observed that the objective pursued by France, the preservation of human life and health, was a value that was 'both vital and important in the highest degree', and then went on to confirm that France could not be expected to employ any alternative measures that would entail an ongoing risk. Reference was made to Members' 'undisputed' right to set their own level of protection against risks. EC-Asbestos ABR paras 172, 174, and 168. In Brazil - Measures Affecting Imports of Retreaded Tyres, decided in mid-2007, the Panel recognized the seriousness of the diseases carried by mosquitoes breeding in discarded imported retreaded tires. The Brazil-Tyres Panel fully acknowledged Brazil's chosen level of protection, which was the reduction of the risks associated with waste tyre accumulation to the maximum extent possible, and this was respected in the Panel's reasoning under Article XX(b). For example, see PR para 7.810.
63. EC-Asbestos ABR para 172;
64. US-Gambling ABR paras 306-7 and Dominican Republic - Import and Sale of Cigarettes ABR paras 66-70.
65. Brazil-Tyres PR paras 7.737 and 7.843.
66. Cheyne Ilona, 'Risk and Precaution in World Trade Organization Law', 40 (5) Journal of World Trade 837 (2006), at 853. Marceau and Trachtman 853.
67. Above, n 13.
68. A threshold established by the Appellate Body in EC-Hormones, ABR para 186.
69. Bernstein Peter L, Against the Gods (John Wiley and Sons Inc, 1996).
70. Starr Chauncey, 'Social Benefit versus Technological Risk', 165 Science (1969), at 1232.
71. Arrow Kenneth J, Essays in the Theory of Risk-Bearing (North-Holland Pub. Co, Amsterdam 1970).
72. Rayner Steve and Cantor Robin, 'How Fair is Safe Enough? The Cultural Approach to Societal Technology Choice', in Löfstedt Ragnar E. and Frewer Lynn (eds), The Earthscan Reader in Risk and Modern Society (Earthscan Publications Ltd, London 1998) 91, 90-91 citing the seminal work of Starr, above n 40.
73. Article 2(a) Articles on Prevention of Harm from Transboundary Activities, 2001. Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No 10 (A/56/10), Chapter V, available at .
74. Above n 43, Commentary on Article 2, para 7. The same approach was adopted by the Commission in 2004, in preparing the Commission's Principles on the Allocation of Loss in the Case of Transboundary Harm arising out of Hazardous Activities. Report of the International Law Commission on its Fifty-sixth Session, 2004, Chapter VII, available on the Commission's website, , under 'Sessions'.
75. See also the 2006 United Nations General Assembly Resolution taking note of the Principles and commending them to the attention of Governments. A/Res/61/36 18 December 2006.
76. The Resolution also decided to include the topic of 'Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of harm' on the provisional agenda for the sixty-second session of the General Assembly in 2007. Now that the ILC's work is complete on both aspects of the topic of transboundary harm, the subjects of prevention of transboundary harm and allocation of loss for transboundary harm will be considered together.
77. Australia-Salmon PR para 8.71, ABR paras 120-21;
78. Japan-Apples ABR para 196;
79. EC - Approval and Marketing of Biotech Products PR para 7.3040.
80. Australia-Salmon PR para 8.55 and 8.80;
81. ABR paras 121-31;
82. CPR paras 7.44-7.47. However, in the context of its reasoning under Article 5.5 the Appellate Body appeared to adopt the opposite point of view: 'We recognize that the definition of a risk assessment requires a risk assessment to evaluate the consequences of the "entry, establishment and spread of a disease". . ..' ABR para 149.
83. Japan-Apples PR paras 8.234-8.280, ABR paras 198-206.
84. See in general EC - Approval and Marketing of Biotech Products PR 7.3027 and, as an example of the application of the approach emphasizing likelihood, PR paras 7.3045-7.3046.
85. EC-Hormones PR paras 8.101 and 8.113.
86. EC-Hormones ABR para 184.
87. EC-Biotech PR paras 7.3047 ff.
88. See for example the FAO Pest Risk Analysis for Quarantine Pests including Analysis of Environmental Risks and Living Modified Organisms 2004 International Standards for Phytosanitary Measures (ISPM No.11).
89. See for example the Guideline for the Conduct of Food Safety Assessment of Foods Produced Using Recombinant-DNA Micro-organisms, CAC/GL 46-2003;
90. Guideline for the Conduct of Food Safety Assessment of Foods Derived from Recombinant-DNA Plants, CAC/GL 45-2003;
91. Principles for the Risk Analysis of Foods Derived from Modern Biotechnology CAC/GL 44-2003.
92. See also the various documents referred to by the Panel in EC-Hormones, at PR para 8.106.
93. See for example the Office International des Epizooties (OIE), World Organisation for Animal Health, Aquatic Animal Health Code 2004, Article 1.4.2.1 Guidelines for Risk Assessment.
94. Guidelines to Further the Practical Implementation of Article 5.5 G/SPS/15 18 July 2000 paras A4 and B2.
95. Emphasis original. A similar point may be made in relation to the provisions of the 'Cartagena Protocol on Biosafety to the Convention on Biological Diversity', 39 ILM (2000) 1027.
96. Article 15 of the Protocol provides that risk assessments are to entail evaluation of the possible adverse effect of living modified organisms on the conservation and sustainable use of biodiversity, including specifically both an evaluation of the likelihood of such effects being realized and an evaluation of the consequences, combining to create an estimation of the overall risk. See Annex III 8d.
97. The risk assessment will then include a recommendation on whether or not the risks are acceptable or manageable, as well as identifying management strategies where necessary. See Annex III 8e.
98. Article 5.3 of the SPS Agreement states that: In assessing the risk to animal or plant life or health and determining the measure to be applied for achieving the appropriate level of sanitary or phytosanitary protection from such risk, Members shall take into account as relevant economic factors: the potential damage in terms of loss of production or sales in the event of the entry, establishment, or spread of a pest or disease; the costs of control or eradication in the territory of the importing Member; and the relative cost-effectiveness of alternative approaches to limiting risks.
99. See, for example, the Communication from the Commission on the Precautionary Principle COM (2000) 1.
100. Amicus Curiae Brief: Submitted to the Dispute Settlement Panel of the World Trade Organisation in the case of EC: Measures Affecting the Approval and Marketing of Biotech Products', Lawrence Busch et al., 30 April 2004 at 12. Available on the website of the Institute for Environmental Philosophy and Public Policy (IEPPP), Furness College, Lancaster University. http://www.lancs.ac.uk/fss/ieppp/wtoamicus/background.htm.
101. An article based on the brief can be found at D. Winickoff et al., 'Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law', 30 Yale Journal of International Law (2005), at 81.
102. See also Foster Caroline, 'Social Science Experts and Amicus Curiae Briefs in International Courts and Tribunals: The WTO Biotech Case' [2005] Netherlands International Law Review, 433-459.
103. See also Epps, above, n 14.
104. Amicus Curiae Brief, above n 58 at 12.
105. Ibid, at 38.
106. As the Appellate Body said 'It is essential to bear in mind the risk that is to be evaluated in a risk assessment under Article 5.1 is not only risk ascertainable in a science laboratory operating under strictly controlled conditions, but also risk in human societies as they actually exist, in other words, the actual potential for adverse effects on human health in the real world where people live and work and die.' EC-Hormones ABR para 187.
107. EC-Hormones ABR para 181.
108. In adopting its final conclusions the Panel stated that it was not making any findings on the safety of biotech products, although noting that there were some documented risks. EC-Biotech PR para 8.5.
109. Article 5.5 states: With the objective of achieving consistency in the application of the concept of the appropriate level of sanitary or phytosanitary protection against risks to human life or health, or to animal and plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade. Members shall co-operate in the Committee, in accordance with paragraphs 1, 2 and 3 of Article 12, to develop guidelines to further the practical implementation of this provision. In developing the guidelines, the Committee shall take into account all relevant factors, including the exceptional character of human health risks to which people voluntarily expose themselves.
110. EC - Approval and Marketing of Biotech Products PR para 7.1419.
111. Ibid, at paras 7.1722 and 7.1728.
112. Ibid, at para 7.3384.
113. Australia-Salmon ABR para 129-78.
114. The compliance Panel in Australia-Salmon found that Australia had come into compliance with Article 5.5, having adopted a less trade restrictive regime for the salmonids at issue and tightened import restrictions on bait fish and live ornamental fin fish. CPR para 7.91.
115. Ibid, at para 213.
116. Ibid, at para 217.
117. Ibid, at para 221.
118. Australia-Salmon CPR para 7.93.
119. The point has also been picked up by the SPS Committee, which has recognized that 'Reasons for a significant difference in a proposed or accepted level of protection for human health may, in exceptional circumstances, include a risk which humans voluntarily accept.' Guidelines to Further the Practical Implementation of Article 5.5 G/SPS/15 18 July 2000, para A8.
120. EC-Hormones ABR para 235.
121. Ibid, at para 245.
122. Ibid, at para 246.
123. Ibid, at paras 226, 231, 232, and 233.
124. Australia-Salmon CPR paras 7.92 and 7.96.
125. Joanne Scott and Ellen Voss advocate the demonstration of the authenticity of public opinion in 'The Juridification of Uncertainty: Observations on the Ambivalence of the Precautionary Principle within the EU and the WTO', in Christian Joerges and Dehousse Renaud (eds), Good Governance in Europe's Integrated Market Joerges (Oxford University Press, 2002) 253 at 286. By way of precedent, the Appellate Body's analysis of the EC's compliance with Article 5.5 in the SPS Agreement in EC-Hormones may be considered. See subsequently.
126. On the potential use of social science experts in international courts and tribunals, see Foster, above, n 58.
127. Article 6, Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade.
128. Article 12, Agreement on Subsidies and Countervailing Measures.
129. Sunstein Cass R, Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press, UK/NY 2005).
130. Cognitive psychologists have established that the lay-person's perception of risks will privilege unduly factors such as, for example, the potential for a catastrophic outcome, and the possibility that individuals and their close family members may be affected. Peel, above, 14.
131. For a critique of Sunstein, building on the work of Mary Douglas and Aaron Wildavsky on the importance of cultural 'worldview' in decision-making about risk, see Kahan Dan M et al., 'Fear of Democracy: A Cultural Evaluation of Sunstein on Risk', Book Review 119 Harvard Law Review (2006), at 1071. Sunstein ultimately accepts that governments should respond to peoples' precautionary preferences: Suppose people believe that a risk is serious even though the number of lives at risk is low; suppose they want government to take precautions because (in their view) we should not live in a nation that exposes certain people to the specified risk. If citizens are not blundering on the facts, but are responding to 'coherent visions of the good society and the virtuous life,' then they are making a perfectly legitimate request.
132. and Sunstein Cass R, 'Misfearing: A Reply', 119 Harvard Law Review (2006), at 1110.
133. See Japan-Apples PR paras 8.181, 8.198.
134. Ibid, at para 163, at 147.
135. EC - Approval and Marketing of Biotech Products Written consultation with experts para 1049.
136. EC - Approval and Marketing of Biotech Products PR para 7.3064.
137. Ibid, at para 7.1388.
138. EC-Hormones ABR para 193.
139. Ibid, at para 208.
140. This may be referred to as the 'take part' clause, while the provision in para (b) of Article 25, which embodies the right to vote in genuine periodic elections, can be called the 'elections' clause. Steiner Henry J, 'Political Participation as a Human Right', 1 Harvard Human Rights Yearbook (1988), at 77. The text of Article 25 reads: Every individual shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:
141. (a) to take part in the conduct of public affairs, directly or through freely chosen representatives;
142. (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
143. (c) to have access, on general terms of equality, to public service in his country.
144. General Comment 25: The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (Article 25).
145. Paragraph 5 of the General Comment states: The conduct of public affairs, referred to in paragraph (a), is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers. It covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels (Emphasis added).
146. 9 ILM (1970), at 673.
147. 213 U.N.T.S. 262.
148. 9 ILM (1981), at 58.
149. U.N. doc. A/810.
150. Steiner, above n 91, at 94;
151. Fox Gregory H, 'The Right to Political Participation in International Law', 17 Yale Journal of International Law, 1992, 539 at 555.
152. Steiner, above n 91 130.
153. Ibid, at 132.
154. Ibid. 'One cannot identify broadly shared and stable views of its import, or even crystallized disputes about appropriate forms of institutionalization or about the types of governmental duties that it imposes.'
155. See also Article 5(e)(iv) of the International Convention on the Elimination of all forms of Racial Discrimination, 1965 660 UNTS 195;
156. Articles 11.1(f) and 12 of the Convention on the Elimination of all forms of Discrimination against Women, 1979;
157. Article 24 of the Convention on the Rights of the Child, 1989.
158. Substantive Issues arising in the Implementation of the International Covenant on Economic Social and Cultural Rights General Comment No. 14 (2000) The Right to the Highest Attainable Standard of Health E/C. 12/2000/4 11 August 2000. The Committee interpreted the right to health as an inclusive right that embraced not only the provision of timely and appropriate health care, but also obligations relating to the underlying determinants of health, such as access to safe drinking water, an adequate supply of food and housing, access to health-related information, and healthy occupational and environmental conditions. General Comment, paragraph 11.
159. Idem, emphasis added.
160. See Fisher Elizabeth and Harding Ronnie, 'The Precautionary Principle: Towards a Deliberative, Transdisciplinary Problem-Solving Process', in Harding Ronnie and Fisher Elizabeth (eds), Perspectives on the Precautionary Principle (The Federation Press, Leichhardt, Australia 1999) 290;
161. Fisher Elizabeth and Harding Ronnie 'The Precautionary Principle and Administrative Constitutionalism: The Development of Frameworks for Applying the Precautionary Principle' in Fisher Elizabeth et al. (eds), Implementing the Precautionary Principle: Perspectives and Prospects (Edward Elgar, Cheltenham, UK 2006) 113;
162. Cameron J, 'The Precautionary Principle: Core meaning, Constitutional Framework and Procedures for Implementation', in Harding and Fisher, ibid, at 56;
163. Klinke A and Renn O, 'Precautionary Principle and Discursive Strategies: Classifying and Managing Risks', 4 Journal of Risk Research, Northhampton MA (2001), at 159.
164. See for example Article 2(2) of the Espoo Convention on Environmental Impact Assessment in a Transboundary Context 1991, 30 ILM (1971), at 802;
165. and Article 13 of the ILC Articles on Prevention of Harm from Transboundary Activities, above, n 43.
166. See also Ebbesson Jonas, 'The Notion of Public Participation in International Environmental Law', 8 Yearbook of International Environmental Law (1997), at 51.
167. See the five person brief referred to above, n 58, at 17-19 and 25.
168. citing National Research Council: Understanding Risk: Informing Decisions in a Democratic Society (Washington, DC: National Academy Press, 1996) at ix;
169. Building Consensus through Risk Assessment and Management of the Department of Energy's Environmental Remediation Program (Washington, DC: National Academy Press, 1994) at 26;
170. Science and Judgment in Risk Assessment (Washington, DC: National Academy Press, 1994) at 267.
171. Emphasis added.
172. Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998, 38 ILM (1999), at 517. The objective of the Aarhus Convention is specified in Article 1 is that: In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention. Emphasis added. Article 3(7) provides that parties are to promote application of the Convention's principles in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment. The Aarhus Convention does not explicitly apply to decisions about the importation of products potentially harmful to health or the environment, but Article 6(1)(b) requires parties to apply its provisions on public participation to all decisions on proposed activities that may have a 'significant effect' on the environment, which arguably could potentially include trade-related decisions. Under Article 6(2)(e) the public is to be informed about such activities, and this provision also states that the public is to be informed when an activity is subject to a national or transboundary EIA. The public is to be allowed to make submissions, in writing or at a public hearing under Article 6(7), and under Article 6(8) a party is to ensure that due account is taken of the outcome of public participation.
173. There has already been an emphasis provision of full and accurate information for some decades. See, for example, Weinberg Alvin M, 'Science and Trans-Science', 10 Minerva 209 (1972), at 222;
174. as well as Fraiberg Jeremy D and Trebilcock Michael J, 'Risk Regulation: Technocratic and Democratic Tools for Regulatory Reform', 43 McGill Law Journal 835 (1998), at 883.
175. For more information on the Bioethics Council, see http://www.bioethics. org.nz/.