Science for the Environment: Need for Reconsidering Statistical Methodologies

This paper is part of a larger effort to analyze the United States vs. European Union dispute on biotechnology products before the World Trade Organization (WTO) Dispute Settlement Body (DSB). Starting from May 2003, United States, Canada and Argentina requested consultations with the European Communities (hereinafter EC) regarding measures taken by the EC and its member States affecting the marketing of biotech products. According to United States, Canada and Argentina, the measures at issue were inconsistent with certain EC’s obligations under the Sanitary and Phytosanitary (SPS) Agreement, the GATT 1994, the Agriculture Agreement and the Technical Barriers to Trade (TBT) Agreement. The formal proceeding initiated when the consultations ended on February 2004 with the establishment of a panel by the Director-General of the WTO. The dispute, also known as EU-Biotech, concerns the release of Genetically Modified Organisms (GMOs) in the European market. United States, Canada and Argentina accuse the European Union to impose a de facto moratorium on GMOs commercialization, due to “undue delay” in the approval procedure. In particular, the complainants claim that either the analysis of the parties’ risk assessment on GMOs was not reviewed, or the positive results of risk assessment were completely dismissed, for the approval of twenty four GMOs had never reached an end. Thus, in relation to the provisions of the SPS Agreement the European delay accounted for a non-necessary (“more trade restrictive than required”, Article 5.6) and non science-based (“maintained without sufficient scientific evidence”, Article 2.2) restrictive measure to trade. Besides, on the assumption that transgenic products are similar to their natural counterparts, the complainants accused the EC to provide a treatment less favorable than that accorded to like domestic products (Article III:4, GATT 1994) and, thus, to apply inconsistent levels of protections (Article 5.5, SPS Agreement). This dispute is highly controversial in that it fuels the debate about the precautionary principle, which has been adopted as a fundamental part of the European Union environmental strategy. On the other side, the WTO jurisprudence seems to reveal that precautionary measures would not be allowed if not grounded on scientific evidence. Unfortunately, scientific evidence is exactly what is lacking in many environmental concerns, including biotechnologies. But when risk assessment holds that the evidence of possible environmental and health-related harms is not reached “beyond a reasonable doubt”, State-based environmental measures are by default considered disguising restrictive measures to trade, which of course are in principle prohibited within the WTO regime. In the reading of the WTO Panel report on EU-Biotech dispute, recurrent notions such as “scientific knowledge”, “scientific uncertainty”, “statistical significance” seem to be abused both by the complainant (United States, Canada and Argentina) and the defendant (European Union), in that they are employed with no epistemological cognition. The parties’ argumentations result in high confusion, at least about what should be the core issue of the dispute: the legitimate protection of human health and biodiversity. The relevance of the scientific discourse for legal trials in general, and for the EC-Biotech dispute in particular, originates from its crucial, if not adjudicating, role. This consists in helping determining liability of the parties in legal trials, whether this has to be linked to compensation issues or, as in the EC-Biotech dispute, it affects member States policies. Scientific and legal standards, as it is just suggested in this occasion and will be further treated in a second stance, can be mutually supportive, nonetheless they have to be kept separate for their genesis and heuristics are of different nature. The reason of raising this point is that the two standards seem in fact to overlap in the WTO proceeding. Thus, as a first step the aim of this paper is to apprehend the fundamental notions related to scientific knowledge in order to comprehend the stakes of the dispute and to explain their relevance within the legal trial