An ongoing debate in legal theory related to trade policy is the use of the so-called "precautionary principle," variably formulated as "better safe than sorry" or "putting the burden of proof" on industry before it introduces new medicines, technologies or processes on the market.
Consumer and environmental groups tend to invoke this principle, based on the notion (however articulated) that corporations, left to their own devices and ability to sway policy outcomes, will advocate for courses of action that devalue human suffering or environmental damage in the name of making a buck. But some legal scholars don't like the precautionary principle. In The New Republic's Cass Sunstein's words:
The precautionary principle should be rejected, not because it leads in bad directions, but because it leads in no direction at all. The principle is literally paralyzing - forbidding inaction, stringent regulation, and everything in between. The reason is that in the relevant cases, every step, every inaction, creates a risk to health, the environment, or both.
Happily for Sunstein and comrades, the precautionary principle is not what prevails under our trade law. The WTO's Sanitary and Phytosanitary Standards agreement - one of 17 that the WTO maintains - reads:
Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence [emphasis added]
There's a lot of background on how to define what is "necessary" under international trade law, but suffice it to say that it's a lot more restrictive than how it reads here. Europe has been learning the hard way about how some of their food policies influenced by the precautionary principle have taken a beating at the WTO.
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... 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 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.
The problem with these assessments is not that they are internally inconsistent or lacking in value. No, if one accepts the implicit model of the world propping up the theoretical edifice, these essays are rather insightful. The problem is, the vision of the world presented here will be utterly alien to anyone who has worked in politics, organizing, or indeed even has an analysis of the way power and information operate in a classist society like our own.
In the real world, the production of scientific knowledge (on which truth claims and arguments about sanitary standards are required to be based under the WTO) is heavily influenced by corporations with vested interests, and by academics operating in pseudo-privatized academic institutions who must avoid running afoul of potential benefactors. Consumer advocacy groups - or anyone interested in the health and wellbeing of the majority - are literally playing for more time, until the overworked minority of scientists who are willing to investigate the truth without regard to profit can make final determinations. Thus both the tactical and substantive justification for the PP.
And unequal access to power and the halls of deliberation are if anything GREATER at the transnational level. While Howse acknowledges some of these problems in passing, an analysis of deliberation in the real world must START from this problem, and try to explain it as a defining structural feature. WHY is it, HOW is it, that power has been increasingly transferred in the last generation from fora where working people have somewhat more access (unions, Congress) to fora where they have less (WTO, etc.)? How have our elected officials themselves become even less responsive to democratic demands over this period? Could it be that the perfect technocratic world envisaged by these scholars could actually have a class bias?
There's another line of argument underlying a lot of the neo-liberal scholarship, which is that the WTO and other trade pacts don't prohibit regulation, they just require that it be crafted in a way that doesn't interfere with trade. Again, the problem with this analysis is that, in a world where consumers and workers are losing bargaining power vis a vis corporations, the very few regulatory victories they are able to claim (yes, even in Democratic administrations) come necessarily from a very-far-from-technocratic-perfect law-making process that produces highly imperfect laws.
Just for the sake of argument, let's say that the WTO doesn't pose any real threat to regulation, but that it requires they be scrubbed free from ANY provisions that could limit market access or (in effect even if not in intention) discriminate against foreign businesses. In other words, regulation in this world is not made via the dirty legislative process - so full of unintended consequences and messy compromises - but by perfect technocratic machines. The reality that this kind of legislation if often unattainable is why many policy-makers are just taking a pass and refusing to even put together regulation. The recent CPSC battle
shows that fairly clearly.
The solution to these problems, of course, lies in our side increasing our bargaining power, which requires organization and mobilization - along with greater intellectual and scientific resources. At that point, the deliberation COULD (but not necessarily will) reflect these theories. But a more perfect substitute democracy the WTO ain't gonna an shouldn't gonna deliver.