Document Type

Article

Publication Title

Michigan Law Review

Abstract

Among the most common critiques of globalization is that it increasingly constrains the ability of democratic communities to make unfettered choices about policies that affect the fundamental welfare of their citizens, including those of health and safety, the environment, and consumer protection. Traditionally, free trade rules were about constraining border measures such as tariffs and quantitative restrictions on imports. Increasingly, however, such rules include requirements and constraints addressed directly to domestic regulation. For example, a country's policies with respect to intellectual property rights or its regulatory approach to network industries, such as telecommunications, may now be fundamentally shaped by rules that are made and interpreted at the international level. One of the most visible and controversial areas where trade rules constrain regulatory diversity is that of food safety. The World Trade Organization ("WTO") Agreement on Sanitary and Phytosanitary Measures ("SPS Agreement"), negotiated in the Uruguay Round and enacted in 1994, requires that countries either adopt harmonized international standards or, if they choose to maintain stricter regulations, base these on risk assessment, scientific principles, and scientific evidence. The SPS Agreement also requires that the regulations adopted be the least trade-restrictive available to achieve the desired level of protection. The above provisions apply even to nondiscriminatory regulations that would not run afoul of the Most Favored Nation and National Treatment provisions of the GA TT itself. The SPS Agreement also prohibits "arbitrary" and "unjustified" distinctions in levels of protection in situations that are comparable, where these distinctions lead to "discrimination" or "disguised restriction on trade." The present essay is intended as a response to the "democratic" challenge to the SPS provisions and their interpretation by the WTO dispute settlement organs. I argue that these provisions can be, and should be, understood not as usurping legitimate democratic choices for stricter regulations, but as enhancing the quality of rational democratic deliberation about risk and its control. There is more to democracy than visceral response to popular prejudice and alarm; democracy's promise is more likely to be fulfilled when citizens, or at least their representatives and agents, have comprehensive and accurate information about risks, and about the costs and benefits associated with alternative strategies for their control. If rational deliberation is an important element in making democratic outcomes legitimate, then providing some role for scientific principles and evidence in the regulatory process may enhance, rather than undermine, democratic control of risk. On the other hand, democracy also requires respect for popular choices, even if different from those that would be made in an ideal deliberative environment by scientists and technocrats, if the choices have been made in awareness of the facts, and the manner that they will impact on those legitimately concerned has been explicitly considered.

First Page

2329

DOI

https://doi.org/10.2307/1290307

Volume

98

Publication Date

2000

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