Scientific Evidence Rule under the SPS Agreement

In determining legitimacy of Members’ domestic SPS measures, particularly, in cases where the protection levels chosen by Members are higher than that of international standards, scientific evidence has been employed as an essential yardstick by the dispute settlement body. Generally, sufficient scientific evidences should include conducting of proper risk assessments that evaluate the degree of risks related to SPS measures and the rational or objective relationship between the risk assessment and the measure at issue. The judicial interpretation of the term of “scientific evidence” under the SPS Agreement has generally been attempted to be made liberally. The Appellate Body reviewed that “sufficient scientific evidence” is not a static or determined set of knowledge, but rather an integrated consideration of proportionality between Members’ SPS measures and the level of protection they prefer to adopt, as well as those non-scientific factors including economic situations and social values. However, those attempts of the Appellate Body directing to a liberal interpretation ended up with a fairly narrow and strict application in real disputes by adding other stringent requirements that is barely easy to meet. The current interpretation and application of the term “sufficient scientific evidence” has arguably been criticized to be too severe by the free-trade supporters, and at the same time, too obscure by the health-related environmental protectionisms. To make interpretation of the term “sufficient scientific evidence” truly liberal, providing Members with more deference on adopting their SPS measures, the Appellate Body shall clarify a point of equilibrium where it can properly realize the dual objectives of promotion of liberalized trade and the improvement of the public health of its Members at the same time, and then, to establish a set of detailed standards that would be helpful to achieve such objectives.