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Science and the New Constitution of Health Environment

Winickoff, David
University of California - Berkeley
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  1. To analyze the role and authority of scientific experts in shaping the outcomes of international legal disputes involving health and environment and in allocating power across the global, federal, state, and local levels.
  2. To analyze the rules and practices surrounding the selection and use of scientific experts in dispute settlement processes at the global level.
  3. To analyze change over time in the interpretation and formation of the "science-based" provisions of World Trade Law, and how these changes give rise both to new norms and to new sciences.
  4. To analyze the international standardization of risk assessment in ways that reframe norms of "precaution" and the distribution of regulatory power, especially in the face of climate change and the development of new "geoengineering" techniques.
  5. To assess how WTO law has expanded the role and power of international regulatory agencies such as the Codex Alimentarius Commission, and to assess the implications of these changes for health and environmental governance at multiple scales.
  6. To analyze and characterize the role and impacts of non-state involvement in WTO dispute settlement, including the submission of amicus briefs and the interventions of non-government organizations, in providing a knowledge basis for legal decision-making.
  7. To pay particular attention to the local, national, and international governance dimensions of "geoengineering": the intentional application of technologies to remediate global climate change.
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NON-TECHNICAL SUMMARY: This project concerns justice, institutions and the life sciences, but focuses on international regulation and trade. I seek to examine the role of science in the development of global administrative regimes of health and environment, studying science and technology as both the subject of international disputes, and as a resource for settling them. Despite trends toward global standardization, strong regional and cultural differences have emerged around new technologies in the biomedical and agricultural life sciences: Europe refuses to import GMOs without strong labeling and traceability requirements; developing countries demand, on humanitarian grounds, the right to import cheaper pharmaceuticals from India and Brazil in apparent violation of trade rules. In the face of regulatory harmonization at the global level, how are these differences manifesting themselves, and how are science and law used to resolve them Focusing on the World Trade Organization and the Codex Alimentarius Commission, I seek to examine how science and expertise affect the distribution of power across multiple scales of governance and theorize the relation between science and law in international health and environmental regulation. I seek to provides an account of the policy trade-offs happening within the technical discourses of law and science, in order to address issues of global equity and political culture in the face of globalization. From a policy point of view, the project will provide innovative ideas for the appropriate use of science and expertise within regulatory institutions at the global level. To date, this stream of work has centered on the regulation of food safety and the international trade regime. Intense trade wars and recent scandals have made food safety an especially important topic for analysis and policy.

APPROACH: A. Legal research. First, this project will involve traditional methods of legal research, which entails the close reading and analysis of legal treaties, case opinions and other legal materials. In this project, analysis of the role of science and scientific experts in regime formation at the international level, especially involving the WTO, and will require the review and analysis of: (1) secondary literature - I will continue to review secondary literatures on legal globalization, trade constitutionalism, international environmental and health law, WTO and health, environment and science. Reading will focus special attention on treaties and contexts around climate change and climate remediation technologies such as carbon sequestration and capture, solar radiation management technologies. (2) treaty texts and negotiating history - a thorough review of international legal texts that explicitly address the use of science and experts. (3) case law - a thorough analysis of the legal opinions to date within the WTO dispute settlement system in which scientific experts have been appointed and used by adjudicatory tribunals at the lower court (Panel) and upper court (Appellate Body) levels. (4) scientific testimony - thorough comparative analysis of appointment, testimony, use of expert testimony, and amicus briefs in the cases enumerated above. (5) function and use of international scientific agencies within international case law, such as the IPCC and the Codex Alimentarius Commissions. I will analyze how standards from these bodies are imported into international treaties, and also whether the new status of these organizations in the trading regime has shifted their structure and function. This latter set of questions will be examined not only through document research, but also interviews and fieldwork at those bodies. b. Interviews and fieldwork. Traditional legal research methods will be supplemented with traditional qualitative research methods drawn from the social sciences, especially interviewing and field research at the organizations at issue. Interviews will target judges and scientific panelists who have played roles in the adjudication of science-based disputes at the WTO, organization officials, and other experts. Interviews and fieldwork will also center on various non-governmental organizations that have emerged as participants in international legal processes, such as the Center for International Environmental Law and the International Center for Trade and Sustainable Development, both in Geneva. c. Write-up and output. I will produce a series of peer-reviewed articles on this work, leading up to a book. This work product will have immediate relevance for actors in California dealing with agricultural biotechnology, food safety, environmental, and health policy.

Funding Source
Nat'l. Inst. of Food and Agriculture
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Sanitation and Quality Standards
Bacterial Pathogens
Risk Assessment, Management, and Communication