Re-Conceptualising the Role of Science in International Trade Disputes

Science has been traditionally characterized as an objective discipline that is free of values and which leads to definitive knowledge. In the GATT/WTO system, science has been elevated as the ultimate arbiter of international trade disputes. This article intends to critically evaluate, and re-conceptualize, the role of science in distinguishing disguised trade protectionism and legitimate government regulation. Drawing insights from psychology and behavioural science, the article first sets forth two normative principles that should be followed where science is to be used as an arbiter in trade disputes. It then proceeds to examine to what extent the current WTO case law has deviated from these normative principles. The article concludes that WTO Members enjoy wide discretion to address pervasive scientific uncertainty. Nevertheless, it remains possible that a rigorous use of science will bring WTO rules into direct conflict with national democracy in some highly value-laden and politically sensitive disputes.