Two quick points in relation to the decision in Hormones II:
I’ve always found it quite difficult to understand the distinction between scientific uncertainty and insufficiency of evidence in relation to Article 5.7. Does the AB do a better job of explaining it here (para. 677)? For the AB there is merely uncertainty but not insufficiency when there are divergent views in the scientific community in relation to risk. Insufficiency might, however, arise there are deficiencies in the body of scientific evidence attesting (or not) to the existence of risk. The support of a single scientific voice, counting as a qualified and respected source, can suffice to substantiate the existence of deficiencies. Is the idea here that scientists can reasonably disagree about how to interpret the results of risk assessment, even when they recognise that the risk assessment is valid? This does not bring Article 5.7 in to play. Article 5.7 only comes in to play when the disagreement is not one of interpretation relating to results universally acknowledged as valid results, but is a disagreement about the validity of the results. Doubts about validity would include doubts which relate to the adequacy or otherwise of the ‘scope and methods’ of risk assessment (685).
Though the AB seems to re-emphasise the importance of qualitative insufficiency, stressed rhetorically but not recognised in practice by the Panel in EC – Biotech, it should not be overlooked that the AB erects a high threshold for reliance on Article 5.7. ‘When determining whether such deficiencies exist, a Member must not exclude from consideration relevant scientific evidence from ANY qualified and respected source’. (677, emphasis added). Note also, the AB’s observation that provisional measures would be unwarranted ‘where there is no pertinent scientific information available indicating a risk’ (681). Am I wrong in thinking that by contrast to the Article 5.1 threshold, we don’t really know yet what this demands. What does seem clear is that Article 5.7 shouldn’t only be viewed as being about risk (despite the word ‘more’ in relation to assessment of risk), and that pertinent available information attesting to the existence of a hazard, absence any further information about exposure, should sometimes suffice for the adoption of provisional measures.
Second, in my book on the SPS Agreement (OUP, 2007, soon forthcoming in paperback, chapter 7), I take issue with the suggestion sometimes made that Article 3 SPS obliges Members to comply with international standards, giving them room for upwards movement but no room for movement downwards. I do so in part because the idea that such standards might be unequivocally binding on Members, as minimum harmonisation measures, regardless of their suitability for a particular country, seems inappropriate and wrong; not least because of concerns about the capacity of developing countries to participate effectively in the work of the standard setting bodies, and the suggestion that developing country data is sometimes overlooked in the promulgation of standards. I would still defend this view! That said, the AB does again and again stress that Article 3.3 permits Members to refrain from basing their measures on international standards when their measure results in a HIGHER level of protection than the international standard (for example, paras. 532 and 685). It could just be that in this case the contested measure is one pursuing a higher level of protection, or that the AB is just loosely abbreviating the first part of Article 3.3 without adding the nuance of the second part which talks about a different rather than higher level of protection, but read literally the AB doesn’t seem to have any doubt about its interpretation of Article 3 on this point, and it seems likely that it will be cited to this effect. Time will no doubt tell.
