From Control to Communication: Science, Philosophy, and World Trade Law

Recently, science has become increasingly salient in various fields of international law. In particular, the World Trade Organization (WTO) Sanitary and Phytosanitary (SPS) Agreement stipulates that a regulating state must provide scientific justification for its food safety measures. Paradoxically, however, this ostensibly neutral reference to science often complicates treaty interpretation. It tends to take treaty interpretation beyond the conventional methodology provided by the Vienna Convention on the Law of Treaties, which is primarily concerned with clarifying and articulating the text of treaties.

The two decades old transatlantic trade dispute over the safety of hormone-treated beef is a case in point. This Article demonstrates that beneath the controversy between the United States and the European Union lurks a critical hermeneutical divergence on the scope and meaning of the relevant risk science, which, this Article argues, a conventional model of international adjudication cannot fully fathom. This Article is a philosophical retelling of what has largely been regarded as a legal-regulatory controversy. Informed by philosophical hermeneutics, the Article concludes that only a continuing dialogue or communication between disputing parties can narrow the hermeneutical discrepancy over risk science.