Politicisation of Science in the Process of Dealing with Manufactured Risk
AbstractPoliticisation of Science in the Process of Dealing with Manufactured RiskAn Interdisciplinary Case StudyA key feature of modern society is the emergence of new characteristics of risks, which have been conceptualized by U. Beck as ‘manufactured risk’.1 Whereas in the past, risks principally consisted of natural hazards, which were limited in both time and space, manufactured risks are man-made, have a global effect, are potentially catastrophic, and can only be assessed speculatively. The global dimension of these risks has rendered apparent the latent divergence in the conceptions of risks that exist among different nations and regulatory regimes, thus resulting in tensions at and between national, regional, and international levels. One of the entities where these conflicts are most visible is the World Trade Organisation’s (WTO) dispute settlement body, which has recently been faced with several cases relating to manufactured risk.2 In these situations, and partially due to the WTO’s need to legitimize its going beyond national sovereignty, science has gained paramount importance in providing for a neutral and objective international normative yardstick for decision-making.3 Indeed, such function of science is exemplified in the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), which indicates that, in order to leave to Member States their discretion to set the levels of protection, the WTO only ‘disciplines’ the existing risk assessments, thus ensuring that the risk regulations are appropriately based on science. In this respect, a clear-cut distinction is made between risk assessment, which provides for objectivity and authority, and risk management, which is expected to appropriately respond with policy decisions.4 The undisputed reliance on science, in case of manufactured risk, is problematic concerning two central aspects. Firstly, ‘risk’ is stil mainly conceptualised according to the traditional theory, which states that risk can be managed by rationally evaluating the probability of its occurrence and measuring it against the extent of the harm that might be caused by a disaster.5 However, due to the speculative characteristic of manufactured risk, no historical data exist regarding the probability, the form, or even the existence of these risks. As these aspects can only be evaluated retrospectively, a mere positivistic6 description of what manufactured risk consists of is drastically jeopardised. Secondly, the way science is being used as an ‘internationallyardstick’ fails to acknowledge and problematize the ways science may be politicised, thus potentially leading to a misuse of scientific knowledge when dealing with manufactured risk. Consequently, this paper will investigate some potential effects of the current use of science with regard to manufactured risk. To start with, the WTO’s approach towards science and its limiting definition of risk, appears not only incomplete vis-à-vis emerging forms of risk, but also ignores the practical inability of science to be used as a decisive tool in dispute settlement. Subsequently, the demeanour of displaying scientific knowledge as complete, unequivocal, and authoritative as well as disregarding the existence of various forms of uncertainty results in a de facto impediment of Member States’ freedom to “determine their own appropriate level of sanitary protection”.7 Therefore, this paper will empirically analyse how scientific knowledge is being politicised in the process of dealing with manufactured risks. For this purpose, the interdisciplinary analysis of a case concerning the selected genetically modified organism (GMO), Bt-176,8 will be presented. This specific GMO was banned in Germany, Austria, and Luxembourg, accepted by the European Communities (EC, now: European Union),9 and assessed in the WTO Dispute Settlement on the Measures Affecting the Approval and Marketing of Biotech Products (EC-Biotech).10 On this basis, the authors will, in the first part, propose a conceptual framework significant in evaluating how the relevant authorities at the national, EU, and WTO levels approach scientific knowledge when dealing with manufactured risks. In the following section, the paper will analyse the various facets on which the scientific evidence presented by Member States and the EC agencies conflict. Finally, the way the WTO Panel ‘disciplined’ the risk assessments, according to applicable law, will be investigated. Based on the analysis of the EC- Biotech case, diverging manners by which science is being politicised will be identified. In particular, the paper will investigate how different types of uncertainty are being ignored or disregarded, thus ultimately leading to the limitation of available evidence on which Member States can base their safeguard measures. In conclusion, the argument substantiated in this paper is that, due to the characteristics of manufactured risk and the inherent politicisation of science, under no circumstances should science be used as the most important normative yardstick in the WTO decisionmaking process. Additionally, this paper claims that in order to appropriately deal with manufactured risk and its speculative characteristic, scientific risk assessment should not only attempt to positively assess the risk, but as well attribute a major importance to all identified forms of uncertainty.