Author: Joanne Scott
European Regulation of GMOs: Thinking about 'Judicial Review' in the WTO
This paper examines the role of 'judicial review'in the
WTO, by reference to a case study on the European regulation of GMOs. It argues
that 'judicial review' may, in this setting, be conceived as re-enforcing
rather than negating democracy, by enhancing accountability, and in particular
the external accountability of states. It draws on the work of Robert Keohane,
who understands external accountability as accountability to people who while
situated outside of a given polity are affected by decisions adopted within it.
The paper supports this argument with reference to cases such as Shrimp/Turtle
and, more recently, GSP. It concedes, however that as the Appellate Body of the
WTO comes to elaborate stronger substantive benchmarks for review - rationality
or proportionality type tests - 'judicial review' also raises a democracy
dilemma for the WTO. One aspect of this dilemma concerns the place of public
opinion in risk regulation, and the legal entitlement of Member State
governments to be responsive, in their regulation, to such opinion. This
democracy dilemma presents an audacious challenge for the WTO, and one which
admits of no easy or absolute answers.
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