Whose Science is More Scientific? The Role of Science in WTO Trade Disputes

다국어 초록 (Multilingual Abstract)

This study examines the role of science in resolving trade disputes. After the Great East Japan Earthquake of 11 March 2011 that not only jeopardized the people of Japan, but also put the safety of an entire region at risk, the Republic of Korea (Korea) has imposed import bans as well as increased testing and certification requirements for radioactive material on Japanese food products. Japan has challenged these restrictions at the World Trade Organizations Dispute Settlement Body (DSB). This study aims to explain how international trade agreements and previous DSB rulings have dealt with different scientific viewpoints provided by confronting parties. In doing so, it will contrast the viewpoints espoused by Korean and Japanese representatives, and then analyzes the most similar case studies previously ruled on by the DSB, including the case of beef hormones and the case of genetically modified crops including biotech corn, both between the United States and the European Communities (EC). This study finds that science is largely subordinate to national interests in the case of state decision-making within the dispute settlement processes, and science has largely been relegated to a supportive role. Due to the ambiguity and lack of truly decisive decisions in the Appellate Body in science-based trade disputes, this study concludes that the Appellate Body avoids taking a firm scientific position in cases where science is still inconclusive in any capacity. Due to the panel’s unwillingness to establish expert review boards as it has the power to do, instead favoring an individual-based system so that all viewpoints can be heard, it has also developed a system with its own unique weaknesses. Similar to any court of law in which each opposing party defends its own interests, each side brings whatever scientific evidence it can to defend its position, incentivizing them to disregard scientific conclusions unfavorable to their position. With so many questions that can arise, combined with the problems of evolving science, questions of risk, and social concerns in democratic society, it is no wonder that the panel views scientific information provided by the experts as secondary to the legal and procedural issues. Despite being ruled against the EC on legal issues in two previous cases, the EC essentially won both times because the panel did not address whether its science was correct or not. This failure to conclusively resolve a debate over whose science is more scientific enabled the EC to simply fix the procedural issues, while continuing to enforce trade restrictions based on their scientific evidence. Based on the analysis of the two cases of disputes, Korea may also find itself guilty of imposing an unwarranted moratorium on Japan’s fish exports, only to subsequently pass new restrictions on labelling and certification requirements because Japan may have much scientific evidence at its disposal. However, Korea might be able to create enough uncertainty in the panel to force them to rule exclusively on the legal issues of the case.
This will then equip Korea, like the EC in the past, with a way of working around the ruling, by changing whatever legal procedure they need to while maintaining some, if not most, of its restrictions when the panel fails to address its case on scientific grounds.

참고문헌 (Reference)

• 1 Lindquist, E. A., "What do decision models tell us about information use? Knowledge" 1 (1): 86-111, 1988
• 2 Osaki, T, "WTO backs Japan complaint against South Korea’s Fukushima import ban" The Japan Times
• 3 Reich, M, "Towards long-term responses in Fukushima" 386 (386): 498-500, 2015
• 4 Schrefler, L., "The role of ‘experts’ in international and European decision-making processes: advisors, decision makers or irrelevant actors" Cambridge University Press 63-81, 2014
• 5 Gruszczynski, L, "The role of ‘experts’ in international and European decision-making processes: advisors, decision makers or irrelevant actors" Cambridge University Press 216-237, 2014
• 6 Klabbers, J., "The role of ‘experts’ in international and European decision-making processes: advisors, decision makers or irrelevant actors" Cambridge University Press 82-101, 2014
• 7 Lawrence, Jessica, "The role of ‘experts’ in international and European decision-making processes: advisors, decision makers or irrelevant actors" Cambridge University Press 173-193, 2014
• 8 Boswell, C., "The political uses of expert knowledge: immigration policy and social research" Cambridge University Press 2009
• 9 Weiss, C. H., "The many meanings of research utilization" 39 (39): 426-431, 1979
• 10 Jackson, J. H., "The case of the World Trade Organization" 84 (84): 437-454, 2008
• 11 Watson, J. K. R., "The WTO and the environment: development of competence beyond trade" Routledge 2013
• 12 WTO, "The WTO agreement on the application of sanitary and phytosanitary measures (SPS Agreement)"
• 13 Johnson, R., "The U. S. -EU beef hormone dispute"
• 14 International Centre for Trade and Sustainable Development, "South Korea lifts ban on Canadian beef imports" Bridges
• 15 UNSCEAR, "Sources, effects, and risks of ionizing radiation UNSCEAR 2013 report-levels and effects of radiation exposure due to the nuclear accident after the 2011 great east-Japan earthquake and tsunami"
• 16 UNSCEAR, "Sources and effects of ionizing radiation"
• 17 Flynn, D, "Seoul Dairy is All About Keeping Trust of South Korean Mothers. “Food Safety News: Breaking news for everyone’s consumption.”" Marler Clark
• 18 Millstone, E, "Science in trade disputes related to potential risks:comparative case studies"
• 19 Chung, S. A, "Republic of Korea food and agricultural import regulations and standards-narrative FAIRS country report" USDA foreign agricultural service global agricultural information network
• 20 Chung, S. A, "Republic of Korea agricultural biotechnology USDA foreign agricultural service global agricultural information network"
• 21 Yoo, S. Y, "Republic of Korea 2012 sea products market brief"
• 22 Fukushima Medical University, "Report of the Fukushima health management survey"
• 23 Observatory of Economic Complexity, "OEC"
• 24 Food Industry Affairs Bureau, Ministry of Agriculture, Forestry and Fisheries, Japan, "Lifting and Relaxation of the Import Restrictions on Japanese Foods Following the Accident of Fukushima Daiichi Nuclear Power Plant (54 Countries and Regions)"
• 25 Xiaodong, W, "Japan urged to deal with Fukushima-affected food" China Daily
• 26 Trading Economics, "Japan exports to South Korea of fish, crustaceans, molluscs, aquatics invertebrates"
• 27 Trading Economics, "Japan exports to China of fish, crustaceans, molluscs, aquatics invertebrates"
• 28 Karns, Margaret P., "International organizations: the politics & processes of global governance" Lynne Rienner Publishers, Inc 2015
• 29 Feldman, M. S, "Information in organizations as signal and symbol" 26 (26): 171-186, 1981
• 30 Bonneuil, C, "How does the World Trade Organization know? The mobilization and staging of scientific expertise in the GMO trade dispute" 42 (42): 75-100, 2012
• 31 WHO, "Health risk assessment from the nuclear accident after the 2011 Great East Japan Earthquake and Tsunami"
• 32 WTO, "European Communities-measures affecting the approval and marketing of biotech products report of the panel"
• 33 WTO, "EC measures concerning meat and meat products (hormones)complaint by the United States report of the panel"
• 34 WTO, "DS495: Korea —Import bans, and testing and certification requirements for radionuclides"
• 35 WTO, "DS391: Korea —measures affecting the importation of bovine meat and meat products from Canada"
• 36 WTO, "DS291: European Communities —measures affecting the approval and marketing of biotech products"
• 37 WTO, "DS26: European Communities —measures concerning meat and meat products (ormones)"
• 38 Kennedy, D., "Challenging expert rule : the politics of global governance" 27 : 5-28, 2005
• 39 International Centre for Trade and Sustainable Development, "Canada challenges Korean beef ban at the WTO" Bridges
• 40 Foust, N, "Banned Japanese Fukushima foods mislabeled, sold in Taiwan. The Fukushima Project"
• 41 "Associated Press. Fukushima fallout fears: South Koreans turn their backs on seafood"
• 42 Hanrahan, C, "Agricultural biotechnology: the U.S.-EU Dispute"
• 43 Mercurio, B., "A precautionary approach to decision making: the evolving jurisprudence on article 5.7 of the SPS Agreement" 2 (2): 195-223, 2010
• 44 Trade Policy Bureau of Ministry of Economy, Trade and Ministry, "2017 report on compliance by major trading partners with trade agreements —WTO, EPA/FTA, and IIA-and METI priorities based on the 2017 report"