Michael Burkard

The Positivist Solution

This chpater of the book ‘Conflicting Philosophies and International Trade Law—Worldviews and the WTO’, the floor is given to relativists. Especially looking at the Hormones case, relativists observe that the Appellate Body rejected the Panel’s view that the right to opt for higher levels of protection is an exception. Hence, if the determination of higher levels of protection is considered a sovereign right, then the objective of global harmonisation of SPS measures should be abandoned. By criticising objectivistic attempts of panels, relativists might thus agree with the approach of the Appellate Body to a large extent. For relativists, the objectivistic approach of certain panels went too far. In contrast, relativists tend to suggest that the sovereign right of WTO Members to determine the level of protection deemed appropriate should be made explicit, to the detriment of the objective of harmonisation.

Two Concepts of Reality

This chapter of the book ‘Conflicting Philosophies and International Trade Law—Worldviews and the WTO’, the two basic concepts of risk and their respective epistemological and philosophical origins are discussed. The first risk concept is rooted in the individualistic and rational philosophy of the Enlightenment and early Capitalism. The second risk concept stems from anti-modernist movements associated with romanticism and the alienation of man from nature.

A Promise for Objectivity

This chapter of the book ‘Conflicting Philosophies and International Trade Law—Worldviews and the WTO’ turns to the WTO Agreement on the Application of Sanitary and Phytosanitary Measures, the SPS Agreement, itself. In particular, the so-called science-based approach of the SPS Agreement will be examined. The science-based approach of the SPS Agreement is considered as a particular application of the doctrine of separating facts and values in risk assessment. The science-based approach of the SPS Agreement is perceived as an expression of the positivist belief that science is ‘objective’ and ‘value-neutral’ and, therefore, an appropriate arbiter in trade disputes. Analysing the jurisdiction of panels and the Appellate Body in selected SPS cases, it is shown that panels have tried to establish a rather positivist interpretation of ‘science’ and ‘risk assessment.’ The Appellate Body, on the other hand, has tried to find some middle ground between a positivist and a relativist interpretation of SPS provisions. In terms of a conclusion, it is shown that the application of the science-based approach has led to a resurfacing of problems known from epistemology.

Two Concepts of Risk

In this chapter of the book, Worldviews and the WTO’, the two basic concepts of risk and their respective epistemological and philosophical origins are discussed. The first risk concept is rooted in the individualistic and rational philosophy of the Enlightenment and early Capitalism. The second risk concept stems from anti-modernist movements associated with romanticism and the alienation of man from nature.

The Panel’s Positivist Position

In this chapter of the book, Worldviews and the WTO’ provides an analysis of SPS case law from the perspective of WTO panels. It is questioned whether and how legal approaches aiming at establishing absolute truth are able to cope with the relative nature of scientific endeavours. May legal bodies designed for establishing objective verdicts ever be capable of coping with the intrinsically non-objective, i.e. relative nature of science?

Between Positivism and Relativism

In this chapter of the book ‘Conflicting Philosophies and International Trade Law—Worldviews and the WTO’, lines of thought established by Shrader-Frechette and other scholars are picked up and the opposing positions, i.e. positivism and relativism, are traced further back to respective epistemological and philosophical origins.

Two Functions of Risk

In this chapter of the book ‘Conflicting Philosophies and International Trade Law—Worldviews and the WTO’, it is shown how impacts caused by the two antagonistic notions of risk, as established in the previous chapters, i.e. entrepreneurial and social notions of risk respectively, can be observed on the ground.

The Battle for Agriculture

In this chapter of the book ‘Conflicting Philosophies and International Trade Law—Worldviews and the WTO’, it is pointed out that Agriculture provides an example par excellence for showing how the two opposing worldviews, i.e. positivism and relativism, are approaching the same issue from different perspectives. Based on the two opposing worldviews, two approaches to the agrarian question came in conflict. That conflict was especially intense in the nineteenth century, were the contours of what Mazoyer and Roudart in A History of World Agriculture. From the Neolithic Age to the Current Crisis (2006) called ‘the second agricultural revolutions of modern times’ emerged.

The Appellate Body’s Quest for Middle Ground

In this chapter of the book ‘Conflicting Philosophies and International Trade Law—Worldviews and the WTO’, it is established that the Appellate Body, by rejecting the Panel’s differentiation between risk assessment and risk management, also rebutted a notion of risk characterised as quantitative, i.e. probabilistic.

A Critical Approach

In this chapter of the book ‘Conflicting Philosophies and International Trade Law—Worldviews and the WTO’, a proposal for reforming the SPS Agreement is developed. The proposed approach is inherently critical and advocates for contradictory procedures. The critical approach, as suggested, wants to stimulate scientific self-reflexivity and competition between contrasting scientific arguments. The proposed new approach towards the role of science in WTO law is considered preferable to a positivistic system enforcing ultimate ‘scientific truth’ by means of quasi-mandatory international standards, as well as preferable to a relativistic approach suggesting an ‘anything goes’ attitude in risk regulation.