ABSTRACT

Limiting the Jurisdiction of Dispute Settlement Panels: The WTO Appellate Body Beef Hormone Decision

By Layla A. Hughes

This note explores the problem of the reach of the World Trade Organization's (WTO) jurisdiction over environmental disputes, as exemplified by the Beef Hormones dispute. The note describes the WTO dispute resolution process, reviews the holdings of the WTO Panel and Appellate Body with respect to the requirement of scientific justification under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), and its interpretation of the precautionary principle. Problems with an alternative to the requirement of scientific justification, the "necessary" test, are also discussed.

The author believes that the WTO and SPS Agreement can only inadequately address the conflicts inherent in disputes involving trade and health or the environment, as evidenced by the Appellate Body's analysis in the Beef Hormones dispute. The author concludes that the SPS Agreement's requirement of scientific evidence invites a panel to investigate information that it is not competent to investigate. Furthermore, requiring a scientific justification cannot depoliticize the international trade issues or help reconcile the conflicts between trade and environmental goals since political and socio-economic factors must also be taken into consideration in national regulatory decisions since a risk assessment also incorporates a country's determination of what level of risk to accept. Thus, the author recommends limiting the WTO's jurisdiction over environmental and health-related disputes by involving both environmental and trade dispute resolution bodies, rather than allowing unilateral jurisdiction by one or the other.