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Risk and Randomness in International Legal Argumentation

Published online by Cambridge University Press:  01 December 2008

RENÉ URUEÑA
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Abstract

The idea of randomness is mostly excluded from international legal argumentation. If we need law at all, we are told, it is precisely to avoid arbitrary fortuity. Nonetheless, the exclusion of randomness renders international law structurally incapable of dealing with general risk issues, be they external or manufactured. The core of the problem is the notion of causation. International law seems to be infused by a model of causation that excludes any consideration of randomness. The law of state responsibility and certain elements of international trade law bear witness to this point. Randomness, however, is Janus-faced, and risk is its correlate aspect. By excluding randomness, risk is also left out. Therefore the model of causation embedded in international legal language makes that very language incapable of framing the ideas that a risk society needs to express. It is not surprising, then, that risk societies turn to other languages to express their needs, as is evidenced by the WTO SPS disputes. In this context, international law seems to become a broker of expertise, which refers to the relevant epistemic community that is needed to ‘get the job done’, and abandons any aspiration to holding an independent normative pull in itself.

Keywords

causation in international lawlegal causationrandomnessrisk societySPS Agreement
Type
ARTICLES
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Leiden Journal of International Law , Volume 21 , Issue 4 , December 2008 , pp. 787 - 822
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Copyright © Foundation of the Leiden Journal of International Law 2008

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References

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5 See J. Mouawad, ‘Fund Accused of Manipulating Gas Markets’, New York Times, 26 July 2007.

6 Mongolia's GDP (purchasing power parity, PPP) in 2006 was US$6,082 million (See World Development Indicators database, available at http://go.worldbank.org/B5PYF93QF0 (last visited 12 February 2008).

7 Beck, supra note 1.

8 Ibid., at 21.

9 Ibid., at 35.

10 A. Giddens, ‘Risk and Responsibility’, (1999) 62 Modern Law Review 1, at 3.

11 See A. Giddens, ‘Living in a Post-Traditional Society’, in U. Beck, A. Giddens, and S. Lash (eds.), Reflexive Modernization: Politics, Tradition and Aesthetics in the Modern Social Order (1994) 1.

12 See U. Beck, ‘The Reinvention of Politics: Towards a Theory of Reflexive Modernization’, in Beck et al., supra note 11, at 56.

13 U. Beck, ‘Misunderstanding Reflexivity’, in U. Beck, Democracy without Enemies (1998), 84, at 90.

14 Ibid. (emphasis in original).

15 For example, see Beck, supra note 1, at 27.

16 Ibid., at 20.

17 B. S. Bernanke, ‘Nonmonetary Effects of the Financial Crisis in the Propagation of the Great Depression’, in B. Bernanke, Essays on the Great Depression (2000), 41.

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19 A. Giddens, Affluence, Poverty and the Idea of a Post-scarcity Society (1995), at 2. External risk is also the idea that underlies most of the discussion on risk outside the risk society paradigm. The other great work of the 1990s on risk, Bernstein's Against the Gods, is a good example of such an approach, according to which risk is a force that is bravely dominated by human reason through increasingly complex mechanisms, as one would dominate, for example, solar energy or the seas; see A. T. L. Bernstein, Against the Gods: The Remarkable Story of Risk (1996). On the same line of external risks, but with a more sceptical tone, see N. Taleb, Fooled by Randomness: The Hidden Role of Chance in Life and in the Markets (2001); and N. Taleb, The Black Swan: The Impact of the Highly Improbable (2007).

20 Beck, supra note 1, at 38.

21 Ibid., at 22.

22 See Giddens, supra note 19, at 4.

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24 Social facts are ontologically subjective if their mode of existence depends on their being perceived by subjects. See J. R. Searle, The Construction of Social Reality (1995), 8.

25 See Giddens, supra note 10, at 3.

26 Beck seems to acknowledge such subjectivity when he argues that unawareness has five dimensions, all evidently subjective in their effects. Indeed, according to Beck, unawareness of the hazardous side effects of modernization has five different dimensions: (i) selective reception and transmission of the knowledge of risk; (ii) uncertainty of knowledge; (iii) mistakes and errors; (iv) inability to know; and (v) unwillingness to know. See Beck, supra note 13, at 93.

27 See I. Gately, Tobacco: A Cultural History of How an Exotic Plant Seduced Civilization (2003), 204.

28 For a good discussion on the gap between scientific and popular knowledge in general see A. Wildavsky, But Is It True? (1997).

29 See generally MacKay, J. and Crofton, J., ‘Tobacco and the Developing World’, (1996) 52 British Medical Bulletin 206CrossRefGoogle ScholarPubMed.

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31 World Bank, Curbing the Epidemic: Government and the Economics of Tobacco Control (1999), 10.

32 On the reasons see WHO Report, supra note 30, at 21.

33 U. Beck, ‘Politics of Risk Society’, in J. Franklin (ed.), The Politics of Risk Society (1998), 12.

34 For a good non-mathematical introduction see C. Trowbridge, Fundamental Concepts of Actuarial Science (1989), 7.

35 In his Groundwork of the Metaphysics of Morals, Kant argues that ‘[a] good will is not good because of what it effects or accomplishes, because of its fitness to attain some proposed end, but only because of its volition, that is, it is good in itself . . . Even if, by a special disfavor of fortune or by the niggardly provision of a stepmotherly nature, this will should wholly lack the capacity to carry out its purpose – if with its greatest efforts it should yet achieve nothing and only the good will were left (not, of course, as a mere wish but as the summoning of all means insofar as they are in our control) – then, like a jewel, it would still shine by itself, as something that has its full worth in itself. Usefulness or fruitlessness can neither add anything to this worth nor take anything away from it’. I. Kant, Groundwork of the Metaphysics of Morals, ed. and trans. M. Gregor (1998), 4:394, at 8.

36 See T. Nagel, ‘Moral Luck’ (1976) 50 Aristotelian Society Supplementary 136. My discussion of the control principle and the problem of moral luck is based on the debate between Thomas Nagel and Bernard Williams, initially published in (1976) 50 Aristotelian Society Supplementary. Revised versions of both papers are published in D. Statman (ed.), Moral Luck (1993).

37 See H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (1988), 129.

38 For a general view on the role of fortuity in legal reasoning see Note, ‘The Luck of the Law: Allusions to Fortuity in Legal Discourse’, (1988–9) 102 Harvard Law Review 1862.

39 Ibid., at 129.

40 Most commentators addressing the issue seem to agree that the difference in punishment is irrational. For further-references to those who hold that view see Moore, M. S., ‘The Independent Moral Significance of Wrongdoing’, (1994) 5 Journal of Contemporary Legal Issues 237, at 238Google Scholar. There are, however, others who argue that we are responsible for the consequences of our actions, even if those consequences are fundamentally determined by chance. For the arguments in favour of this latter approach see Christopher, R., ‘Does Attempted Murder Deserve Greater Punishment than Murder? Moral Luck and the Duty to Prevent Harm’, (2004) 18 Notre Dame Journal of Law, Ethics and Public Policy 419Google Scholar.

41 See Nagel, supra note 36, at 140.

42 Ibid.

43 For an introduction to the main issues see Hart, supra note 37, at 130.

44 For an introduction to the main issues in this different area see Umari, B. A., ‘Is Tort Law Indifferent to Moral Luck?’, (1999) 78 Texas Law Review 467Google Scholar.

45 Ronald Dworkin has considered luck in his desert island parable. See R. Dworkin, Sovereign Virtue: The Theory and Practice of Equality (2000), s. 1. Against this approach see Epstein, R., ‘Decentralized Responses to Good Fortune and Bad Luck’ (2008) 9 Theoretical Inquiries in Law 309, at 322Google Scholar.

46 For further examples of references to chance in legal discourse see Note, supra note 38, at 1866.

47 See Kurki, M., ‘Causes of a Divided Discipline: Rethinking the Concept of Cause in International Relations Theory’, (2006) 32 Review of International Studies 189CrossRefGoogle Scholar.

48 D. Hume, Treatise of Human Nature (1978 [1739]),166.

49 See H. L. A. Hart and T. Honoré, Causation in the Law (1985), 13.

50 Ibid., at 14.

51 Ibid.

52 Ibid., at 19.

53 See Koskenniemi, M., ‘Between Impunity and Show Trials’, (2002) 6 Max Planck Yearbook of United Nations Law 1CrossRefGoogle Scholar. On the deterrence argument see Klabbers, J., ‘The Deterrence Argument in International Criminal. Law’, (2001) 12 Finnish Yearbook of International Law 249Google Scholar.

54 On the risks of using the courtroom as a history lesson see M. R. Marraus, ‘History and the Holocaust in the Courtroom’, in R. Smelser (ed.), Lessons and Legacies, Volume V, The Holocaust and Justice (2002), 215.

55 Osiel, M., ‘Ever Again: Legal Remembrance of Administrative Massacre’, (1995) 144 University of Pennsylvania Law Review 507CrossRefGoogle Scholar.

56 Interestingly, Hart and Honoré place lawyers and historians on the same side of the causation problem, against scientists and philosophers. Yet they do not suggest that historians may usefully apply a legal notion of causation, rather that lawyers and historians share the same use for the general notion of causation: to determine how one event is the ‘result’ of other: see Hart and Honoré, supra note 49, at 8, 12.

57 Ibid., at 109, where strict adherents to the ‘but for’ test are labelled ‘minimalists’.

58 Ibid.

59 For arguments on the second block of objections see ibid. In fact, the bulk of Hart and Honoré's discussion in Causation is precisely why the ‘but for’ test does not reflect all the nuances derived from the problem of legal causation.

60 H. Kelsen, Pure Theory of Law (2005) at 6.

61 Ibid., at 7.

62 H. Kelsen, ‘Causality and Imputation’ (1950) 61 Ethics 1.

63 Ibid., at 6.

64 Ibid., at 7.

65 R. Dworkin, Taking Rights Seriously (2007), 31.

66 The fire example is taken from Hart and Honoré, supra note 49, at 17.

67 Kelsen, supra note 62, at 6.

68 J. S. Mill, A System of Logic Ratiocinative and Inductive, Being a Connected View of the Principles of Evidence and the Methods of Scientific Investigation, Book III, Ch. V, § 3 [1843], in J. S. Mill, The Collected Works of John Stuart Mill, ed. J. M. Robson (1974), VII, at 327.

69 Ibid. This argument has been also used to question the ‘but for’ test proper. See Hart and Honoré, supra note 49, at 11.

70 Mill, supra note 68, at 328.

71 Ibid. My reading of Mill here closely follows Hart and Honoré, supra note 49, at 20.

72 Hart and Honoré, supra note 49, at 22.

73 The same argument is used for a different purpose in ibid., at 37.

74 T. Becker, Terrorism and the State: Rethinking the Rules of State Responsibility (2006), 289.

75 Hart and Honoré, supra note 49, at 307.

76 Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the ILC on 10 August 2001 in Report of the International Law Commission, Fifty-Third Session (2001), UN Doc. A/56/10, Ch. IV. The General Assembly took note of the Articles, recommended and annexed them to GA Resolution 56/83 (10 December 2001), and deferred until 2004 the question of whether the articles should be adopted as a multilateral convention. The question was deferred twice more, on 2 December 2004 (GA Res. 59/35) and on 6 December 2007 (GA Res. 62/61).

77 This fact has been noted before, in Straus, M., ‘Causation as an Element in State Responsibility’, (1984) 16 Law and Policy in International Business (now retrievable as Georgetown Journal of International Law) 893, at 902Google Scholar.

78 I. Brownlie, System of the Law of Nations. State Responsibility, Part I (1983), 12.

79 F. V. García-Amador, First Report on State Responsibility, UN Doc. A/CN.4/96, 1956.

80 F. V. García-Amador, Second Report on the Responsibility of the State for Injuries Caused in Its Territory to the Person or Property of Aliens, UN Doc. A/CN.4/106, 1957.

81 See L. B. Sohn and R. R. Baxter, ‘Responsibility of States for Injuries to the Economic Interests of Aliens: II. Draft Convention on the International Responsibility of States for Injuries to Aliens’, (1961) 55 AJIL 548.

82 See R. Ago, First Report on State Responsibility – Review of Previous Work on Codification of the Topic of the International Responsibility of States, UN Doc. A/CN.4/217, 1961, and Corr.1 and Add.1.

83 R. Ago, Second Report on State Responsibility – The Origin of International Responsibility, UN Doc. A/CN.4/233, 1970, para. 53.

84 Ibid. For an introduction to the differences between primary and secondary obligations see J. Crawford and S. Olleson, ‘The Nature and Forms of International Responsibility’, in E. Evan (ed.), International Law (2006), 452 at 463.

85 Ago, supra note 83, para. 54.

86 It should be noted that the problem of causation and harm is different from (and actually the inverse of) the issue of fault, alternatively called ‘strict liability’, ‘objective responsibility’, or ‘faultless responsibility’. Causation as an element of state responsibility asks the question: do we need an effective harm to hold a state responsible for unlawful conduct? A faultless responsibility regime asks: do we need unlawful conduct to hold a state responsible for an effective harm? The difference is important: in a faultless-responsibility regime the proof of harm is required, while that proof is, by definition, not required in a regime not based on the causation of harm (such as state responsibility). This means that, ultimately, there cannot be a regime of responsibility that is at the same time faultless and not based on the causation of harm. On the discussion of faultless responsibility in state responsibility see Brownlie, supra note 78, at 37.

87 Ibid.

88 See Hart and Honoré, supra note 49, at xlvi. But see H. Kelsen, Principles of Public International Law (1966), 199.

89 In the same sense see Commentaries to the ILC Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (hereinafter Commentaries), Ch. IV, Commentary to Art. 2, para. 9.

90 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), [1980] ICJ Rep., at 3.

91 Ibid., paras. 56 and 69.

92 Ibid., para. 58.

93 Ibid., para. 60.

94 Ibid., para. 61.

95 J. Crawford, Third Report on State Responsibility, UN Doc. A/CN.4/507, 2000, para. 29.

96 Ibid., para. 28 (footnotes omitted).

97 Ibid., para. 28 (footnotes omitted).

98 See, generally, T. Bingham, ‘The Alabama Claims Arbitration’, (2005) 54 ICLQ 1.

99 Ibid., at 3.

100 Ibid., at 1.

101 F. W Hackett, Reminiscences of the Geneva Tribunal of Arbitration (1911), 160. According to Hackett's account, the British Saturday Review characterized US claims as ‘perverted and spiteful’, and a ‘malignant composition’.

102 Notes, ‘Alabama Claims’ (1869) 4 American Law Review 31, at 34.

103 See F. T. Hill, Decisive Battles of the Law: Narrative Studies of Eight Legal Contests Affecting the History of the United States between the Years 1800 and 1886 (1907), 176.

104 See T. W. Balch, The Alabama Arbitration (1900), 124.

105 Statement of Count Sclopis on 19 June 1872, as reproduced in Hackett, supra note 101, at 393.

106 Bingham, supra note 98, at 1.

107 The GDP (PPP) of Sweden in 2006 was US$288.9 billion; that is, around £144 billion as at March 2008: see World Development Indicators database, available at http://go.worldbank.org/B5PYF93QF0%20 (last visited 12 February 2008).

108 Bingham, supra note 98, at 25.

109 Although the causation requirement is present in all three measures, the wording of such a requirement is different in each regime, following its specific characteristics as defined in each substantive provision: (i) countervailing: Art. 15(5) of the Agreement on Subsidies and Countervailing Measures; (ii) anti-dumping: Art. 3(5) of the Antidumping Agreement; and (iii) safeguards: Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Article XIX(1)(a) (hereinafter General Agreement on Tariffs and Trade 1994 or GATT 1994); and Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Article 4.2 (b) (hereinafter Agreement on Safeguards or AS).

110 There are few examples of explicit causation analysis undertaken by WTO Panels or the Appellate Body (hereinafter AB); however, whenever the analysis has been undertaken, the two-step test has been present. Each of the three areas features a landmark case on causation which applies the two-step test, and serves in turn as the basis for posterior adjudication. In countervailing measures, the landmark case is United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, Report of the Appeals Body, 2003–6, WTO Doc. WT/DS257/AB/R, 19 January 2004 (hereinafter US – Softwood Lumber IV), paras. 7.135–7.137. In anti-dumping, the case is United States – Antidumping Measures on Certain Hot Rolled Steel Products from Japan, Report of the Appeals Body, 2001–2, WTO Doc.WT/DS184/AB/R, 23 August 2001 (hereinafter US – Hot Rolled Steel), paras. 221–236. Finally, in safeguards, the case is United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the EC, Report of the Appeals Body, 2000-10, WTO Docs WT/DS166/AB/R, 22 December 2000 (hereinafter US – Wheat Gluten Safeguard), paras. 68–78.

111 See, for example, US – Softwood Lumber IV, supra note 110, para. 7.137.

112 United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the EC, Report of the Panel, WTO Doc. WT/DS166/R, 31 July 2000.

113 Vital wheat gluten is a sticky, paste-like substance, 75 per cent of which is protein. It derives from wet milling that fully separates wheat starch from wheat gluten. Starch is used in glues and ethanol production. Gluten, in turn, is dried and sold as a free-flowing powder, mainly for food and feed items. Gluten raises the protein content of flour, thereby increasing the protein content of dough. Thus wheat gluten is a substitute for the inherent protein in wheat kernels. This is important, as protein-rich flour is needed for end products that require stronger, more flexible dough (e.g. frozen products or high-protein breads, such as bagels). See Balzer, B. and Stiegert, K., ‘The European Union–United States Wheat Gluten Policy Dispute’ (1999) 30 Journal of Food Distribution Research 1Google Scholar.

114 Source: US Department of Commerce, quoted in Balzer and Stiegert, supra note 113, at 3.

115 GATT 1994, supra note 109.

116 Agreement on Safeguards, supra note 109.

117 US – Wheat Gluten Safeguard, supra note 112, para. 9.2.

118 US appellant's submission, para. 54, as reproduced in US – Wheat Gluten Safeguard, supra note 112, para. 64.

119 Ibid.

120 US appellant's submission, para. 73, as reproduced in US – Wheat Gluten Safeguard, supra note 112, para. 11.

121 Ibid.

122 US – Wheat Gluten Safeguard, supra note 112, para. 44.

123 Ibid., para. 79.

124 Ibid.

125 Ibid., para. 80.

126 Ibid., paras. 81, 85, 87, 91.

127 Indeed, in US – Shirts and Blouses the AB held that safeguard measures are not an exception to the general principle according to which it falls upon the complaining party to prove that the conduct of the respondent is not in accordance with the relevant legal provisions; see United States – Measures Affecting Imports of Woven Wool Shirts and Blouses from India, Report of the Appeals Body, 1997-1,WTO Doc. WT/DS33/AB/R, 25 April 1997.

128 Rio Declaration on Environment and Economic Development, UN Doc. A/CONF.151/26, 1992 (Vol. I) (hereinafter Rio Declaration).

129 J. B. Wiener, ‘Precaution’, in D. Bodansky, J. Brunnée, and E. Hey, The Oxford Handbook of International Environmental Law (2007), 602.

130 Ibid., at 605.

131 Sandin, P., ‘Dimension of the Precautionary Principle’, (1999) 5 Human and Ecological Risk Assessment 889CrossRefGoogle Scholar.

132 See Wiener, supra note 129, at 604.

133 Garrett, N., ‘Life Is the Risk We Cannot Refuse: A Precautionary Approach to the Toxic Risks We Can’, (2004) 17 Georgetown International Environmental Law Review 518, at 523Google Scholar.

134 Beck, supra note 1, at 63 (emphasis in original).

135 See infra, section 4.

136 Marrakesh Agreement Establishing the World Trade Organization, Annex 1A (Agreement on the Application of Sanitary and Phytosanitary Measures).

137 Ibid.

138 Australia – Measures Affecting Importing of Salmon, Report of the Appeals Body, 1998-5, WTO Docs. WT/DS18/AB/R, 6 November 1998 (hereinafter Australia – Salmon), paras. 137–139.

139 For example, see L. Prior, A. T. Glasner, and R. MacNally, ‘Genotechnology: Three Challenges to Risk Legimitation’, in U. Beck, B. Adam, and J. Van Loon (eds.), The Risk Society and Beyond: Critical Issues for Social Theory (2000), 105, and E. Beck-Gernsheim, ‘Health and Responsibility: From Social Change to Technological Change and Vice Versa’, in ibid., at 122.

140 The five cases are (i) European Communities – Measures Concerning Meat and Meat Products, Report of the Appeals Body, WTO Doc. WT/DS26/AB/R, WTO Doc. WT/DS48/AB/R, 13 February 1998 (hereinafter EC – Hormones); (ii) Japan – Measures Affecting Agriculture Products (Apples), Report of the Appeals Body, 1998-8, WTO Doc. WT/DS76/AB/R, 19 March 1999 (hereinafter Japan – Agriculture Products); (iii) Australia – Measures Affecting Importing of Salmon, Report of the Appeals Body, 1998-5, WTO Doc. WT/DS18/AB/R, 6 November 1998 (hereinafter Australia – Salmon); (iv) Japan – Measures Affecting the Importation of Apples, Report of the Appeals Body, WTO Doc. WT/DS245/R, 10 December 2003 (hereinafter Panel Japan – Apples); (v) European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Panel Report, WTO Doc. WT/DS291, 292, 293/R, 21 November 2006 (hereinafter EC – Biotech). As for literature, one of the best introductions can be found in Pauwelyn, J., ‘The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Disputes’, (1999) 2 Journal of International Economic Law 641CrossRefGoogle Scholar. For a good critique of certain elements in EC – Hormones, along the lines proposed here, see Thomas, R. D., ‘Where's the Beef? Mad Cows and the Blight of the SPS Agreement’, (1999) 32 Vanderbilt Journal of Transnational Law 487Google Scholar. See generally J. Scott, The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary (2007).

141 Indeed, the AB has held that where a violation of Art. 5 (1) of the SPS Agreement is found, one can presume that a more general violation of Art. 2(2) has also taken place: see Australia – Salmon, supra note 140, paras. 137–138. Such preponderance of risk has been underscored by the AB in EC – Hormones, supra note 140, paras. 179–180.

142 Australia – Salmon, supra note 140, para. 125.

143 Beck, supra note 1, at 62 (emphasis in original).

144 It continues to be endlessly reproduced in the relevant literature as the conflict between SPS and the precautionary principle. See G. Sampson, The WTO and Sustainable Development (2005), 118, 148.

145 Beck, supra note 2, at 2.

146 EC – Hormones, supra note 140.

147 Ibid., para. 2.

148 European Communities – Measures Concerning Meat and Meat Products. Complaint by the US. Report of the Panel, WTO Doc. WT/DS26/R/USA, 13 February 1998, para. 8.94. The same argument can be found in the Report of the Panel on the Canadian complaint, WTO Doc. WT/DS48/R, 13 February 1998, para. 8.97.

149 Ibid., para. 8.155 (United States) and para. 8.149 (Canada).

150 EC – Hormones, supra note 140, para. 187.

151 Ibid., para. 123.

152 For a summary of the arguments against the AB's decision see Chang, H. F., ‘Risk Regulation, Endogenous Public Concerns, and the Hormones Dispute: Nothing to Fear but Fear Itself?’, (2004) 77 Southern California Law Review 743Google Scholar; see also Thomas, supra note 140, at 503, and generally Howse, R., ‘Democracy, Science, and Free Trade: Risk Regulation on Trial at the World Trade Organization’, (2000) 98 Michigan Law Review 239CrossRefGoogle Scholar.

153 See A. Orford, ‘Trade, Human Rights and the Economy of Sacrifice’, in A. Orford, International Law and Its Others (2006), 170.

154 EC – Hormones, supra note 140, para. 208.

155 For a similar counter-argument regarding a different reading of the structure of the international legal argument see M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2006), 592.

156 EC – Biotech, supra note 140

157 Ibid., para. 7.438.

158 Ibid., para. 7.2529.

159 Annex A(4) of the SPS Agreement provides that risk assessment is ‘the evaluation of the likelihood of entry, establishment or spread of a pest or disease within the territory of an importing Member according to the sanitary or phytosanitary measures which might be applied, and of the associated potential biological and economic consequences; or the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs’.

160 EC – Biotech, supra note 140, para. 7.3053.

161 See J. Peel, ‘A GMO by Any Other Name . . . Might Be an SPS Risk! Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreement’, (2006) 17 EJIL 1009, at 1024.

162 Beck, supra note 1, at 62.

163 F. Ewald, ‘The Return of Descartes' Malicious Demon: An Outline of a Philosophy of Precaution’, in T. Baker and J. Simon (eds.), Embracing Risk: The Changing Culture of Insurance and Responsibility (2002), 295.

164 Beck, supra note 1, at 64.

165 Strict liability is a recurring proposal in the law of international responsibility for environmental torts; for an early example see L. F. E. Goldie, ‘Liability for Damage and the Progressive Development of International Law’, (1965) 14 ICLQ 1189.

166 F. Ewald, supra note 163, at 277.

167 Ibid., at 290.

168 Ibid., at 298.

169 See infra, section 4.1.

170 An international legal precedent of such line of reasoning is the debate stirred by Thomas M. Franck's Fairness in International Law and Institutions (1995). Franck's theory of legitimacy drew fire as it seemed to presume what it intended to prove – state compliance with international law: see Kohane, R., ‘International Relations and International Law: Two Optics’, (1997) 38 Harvard International Law Journal 487, at 493Google Scholar.

171 This point has been made before, in C. R. Sunstein, The Laws of Fear: Beyond the Precautionary Principle (2004), at 53.

172 Ibid., at 14.

173 Once again, literature on SPS is useful in this respect; see J. Peel, ‘Risk Regulation under the WTO SPS Agreement: Science as an International Normative Yardstick?’, Jean Monnet Working Paper 02/04, available at www.jeanmonnetprogram.org/papers/04/040201.pdf (last visited 21 March 2008), at 86; and Green, A. and Epps, T., ‘The WTO, Science, and the Environment: Moving towards Consistency’, (2007) 10 Journal of International Economic Law 285, at 288CrossRefGoogle Scholar.

174 This concern has been expressed, among others, in the context of an emerging global administrative law; see N. Krisch, ‘The Pluralism of Global Administrative Law’, (2006) 17 EJIL 247, at 256.

175 See Wagner, J. M., ‘The WTO's Interpretation of the SPS Agreement has Undermined the Right of Governments to Establish Appropriate Levels of Protection against Risk’, (2000) 31 Law and Policy in International Business (now retrievable as Georgetown Journal of International Law) 855, at 857Google Scholar.

176 U. Beck, ‘Conflicts over Progress: The Technocratic Challenge to Democracy’, in U. Beck, Ecological Politics in an Age of Risk (1995), 158 (originally published in Gegengifte: Die organisierte Unverantwortlichkeit (1988)).

177 Ibid., at 184. The same point is made in Beck, supra note 1, at 228.

178 C. R. Sunstein, ‘The Laws of Fear’, (2002) 115 Harvard Law Review 1119, at 1121.

179 Ibid., at 1120.

180 See Krisch, supra note 174, at 257; and Paterson, J., ‘Trans-science, Trans-law and Proceduralization’, (2003) 12 Social and Legal Studies 523, at 529CrossRefGoogle Scholar.

181 Kennedy, D., ‘Challenging the Expert Rule: The Politics of Global Governance’, (2005) 27 Sydney Law Review 5 at 12 (emphasis in original)Google Scholar.

182 Haas, P., ‘Introduction: Epistemic Communities and International Policy Co-ordination’, (1992) 46 International Organizations 1, at 3CrossRefGoogle Scholar (hereinafter Introduction: Epistemic Communities). See further Haas, P., ‘Banning Chlorofluorocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone’, (1992) 46 International Organizations 187CrossRefGoogle Scholar; P. Haas, ‘Obtaining International Environmental Protection through Epistemic Consensus’, in I. Rowlands and M. Greene (eds.), Global Environmental Change and International Relations (1992); and P. M. Haas, ‘Social Constructivism and the Evolution of Multilateral Governance’, in J. Hart and A. Prakash (eds.), Globalization and Governance (1999). Ernst M. Haas (incidentally Peter's father) has also used the concept of epistemic communities, most importantly in When Knowledge Is Power (1990); however, his approach will not be used here.

183 Haas, ‘Introduction’, supra note 182, at 3.

184 Ibid., at 9.

185 P. Haas, ‘Epistemic Communities’, in Bodansky, Brunnée, and Hey, supra note 129, at 802.

186 See R. Urueña, ‘This Is an Exception: Humanitarian Legal Expertise and Its Role in Anti-terrorist Policy’, in K. Padmaja (ed.), Humanitarian Laws and Obligations (2008), ch. 5.

187 Although affected in other ways; see e.g. Peel, supra note 161, at 23.

188 This view of law, however, is not novel in legal theory. For a readable introduction to this view's evolution in the United States see Riles, A., ‘Property as Legal Knowledge: Means and Ends’, (2004) 10 Journal of the Royal Anthropological Institute 775CrossRefGoogle Scholar.

189 For a recent discussion on such an instrumental view see Nardin, T., ‘Theorising the International Rule of Law’, (2008) 34 Review of International Studies 385CrossRefGoogle Scholar.

190 I have explored the consequences of this approach in the context of anti-terrorist policy in Urueña, R., ‘International Law as Administration: The UN's 1267 Sanctions Committee and the Making of the War on Terror’, (2007) 4 International Organizations Law Review 321CrossRefGoogle Scholar.

191 Anthropological research on international human rights lawyers suggests that this ‘instrumentalist’ view of law is fairly common among members of that group. See Riles, A., ‘Anthropology, Human Rights, and Legal Knowledge: Culture in the Iron Cage’, (2006) 108 American Anthropologist 52CrossRefGoogle Scholar.

192 J. Bolton is commonly named as a key proponent of such a strategy: see Bolton, J., ‘Is There Really “Law” in International Affairs?’, (2000) 10 Transnational Law and Contemporary Problems 1Google Scholar. For a critical overview cf. Mansell, W. and Haslam, E., ‘John Bolton and the United States' Retreat from International Law’, (2005) 14 Social and Legal Studies 459CrossRefGoogle Scholar. This argument is commonly followed through, either explicit or implicitly, to Carl Schmitt; see e.g. G. Noll, ‘Force, Partisanship, Dislocation: An Essay on International Law in the State of the Exceptional’, in J. Petman and J. Klabbers (eds.), Nordic Cosmopolitanism: Essays in International law for Martti Koskenniemi (2003), 207.

193 See R. B. Stewart, ‘Instrument Choice’, in Bodansky, Brunnée, and Hey, supra note 129, 148.

194 ‘Pigouvian taxes’ are levied on negative externalities of an activity, e.g. a tax on polluting emissions or on cigarettes. Their name derives form Arthur Cecil Pigou (1877–1959), a British economist who is a key figure in welfare economics.

195 See Stewart, supra note 193, at 153.

196 J. L. Borges, Deutsches Requiem, in J. L. Borges, El Aleph (2006), 62.