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CONFLICTING
PHILOSOPHIES
and INTERNATIONAL
TRADE LAW
Worldviews and the WTO

MICHAEL BURKARD
Philosophy, Public Policy,
and Transnational Law

Series editor
John Martin Gillroy
Lehigh University
Bethlehem, PA, USA
Philosophy, Public Policy, and Transnational Law seeks, uniquely, to
publish new and innovative arguments about global law and policy that
transcend realist/positivist assumptions and the conventions of current
legal/policy discourse. This series means to encourage the application of
systematic philosophical and theoretical arguments to practical policy and
legal issues that combine domestic, comparative or international law. We
will pursue scholarship that integrates the superstructure of the positive law
with its philosophical and public policy substructure, and which, in this
way, produces a more three dimensional understanding of transnational
law and its evolution, meaning, imperatives and future. We seek disser-
tations, solo and edited volumes, as well as innovative reports that integrate
new methods, epistemologies and interdisciplinary perspectives with
practical issues on the full range of policy and legal dilemmas challenging
transnational relations.

More information about this series at

http://www.springer.com/series/14550
 Michael Burkard

Conflicting
Philosophies
and International
Trade Law
Worldviews and the WTO
Michael Burkard
Institute of European
and International Economic Law
University of Bern
Bern, Switzerland

Philosophy, Public Policy, and Transnational Law

ISBN 978-3-319-61066-5 ISBN 978-3-319-61067-2 (eBook)
https://doi.org/10.1007/978-3-319-61067-2
Library of Congress Control Number: 2017947712

© The Editor(s) (if applicable) and The Author(s) 2018

This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher,
whether the whole or part of the material is concerned, specifically the rights of translation,
reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any
other physical way, and transmission or information storage and retrieval, electronic
adaptation, computer software, or by similar or dissimilar methodology now known or
hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publication does not imply, even in the absence of a specific statement, that such names are
exempt from the relevant protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information
in this book are believed to be true and accurate at the date of publication. Neither the
publisher nor the authors or the editors give a warranty, express or implied, with respect to the
material contained herein or for any errors or omissions that may have been made. The
publisher remains neutral with regard to jurisdictional claims in published maps and
institutional affiliations.

Cover credit: imageBROKER/Alamy Stock Photo

Printed on acid-free paper

This Palgrave Macmillan imprint is published by Springer Nature

The registered company is Springer International Publishing AG
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
 FOREWORD

Assessing and managing risks relating to the production and consumption

of food stuffs for humans and to the environment has been one of the most
complex legal issues in WTO law, ever since the Agreement on Sanitary
and Phytosanitary Measures was adopted at the end of the Uruguay Round
and entered into force in 1995. The problem was expounded in a number
of cases. Panels and the Appellate Body adopted different philosophies in
interpreting the agreement and the basic concept of risk assessment. The
latter entails fundamental question of law and science. Different interpre-
tations reflect different underlying perceptions of science and its relation-
ship to the law.
This book, based upon a doctoral thesis adopted by the Faculty of Law
of the University of Bern, Switzerland, and which at the time was sup-
ported by the Swiss National Research Foundation and undertaken in the
context of NCCR International Trade Regulation which I had the pleasure
to direct, undertakes an updated in-depth analysis of these underlying
perceptions. Michael Burkard expounds the essence and differences of
positivism and relativism in philosophy and natural sciences. He clarifies the
relationship of fundamental concepts such as risk, hazards and probability.
This investigation is a remarkable effort on the part of a lawyer keen to
learn more about the fundamentals based upon which the law—often
unconsciously—is operated by the legal profession and the trade com-
munity. Based on these insights, Michael turns to a critical assessment of
jurisprudence both of panels and the Appellate Body. Extensively referring
and discussing the literature, he deconstructs findings and decisions in light
of implied and assumed underlying philosophies and perceptions as to the
v
vi FOREWORD

relationship of law and science, in particular in the field of food standards.

Finding that both positivism and relativism does not provide adequate
answers, he turns to critical rationalism and applies the methodologies of
falsification developed by Karl R. Popper. Critical rationalism allows
combining discourse in science and law and helps preparing the ground for
a new approach to risk assessment and risk management. Linking the
problem to the doctrine of multilevel governance the author develops a
theory allocating risk assessment to international for a while leaving the
matter of risk management to national and democratically accountable
government. While the author throughout the thesis questions the possi-
bility of separating risk assessment and risk management, the thesis offers
new avenues which may assist in structuring a complex and difficult
problem.
The book is of considerable interest to scientists dealing with risk
assessment and policy makers responsible for risk management. It is of
interest to legal theory and the interface of law and beyond food safety, and
finally to the trade lawyer confronted with complex scientific issues in
transnational commerce. It proves the point that in the end nothing is
more practical than theory. The wider dissemination of this work made
possible by Palgrave therefore is most welcome. It completes a
long-standing research effort of the author who today is a practising lawyer.
It was a pleasure to work with Michael during his Ph.D. years at the World
Trade Institute and to learn from his insights.

Bern, Switzerland Thomas Cottier

May 2017
 SERIES EDITOR PREFACE

Where once a scholar interested in studying either the human or natural

world began from the standpoint of philosophical analysis, this trend has
been reversed since the rise of social science and its imperative to replace
philosophy with ‘theory’, that began in the mid-nineteenth century.
A critical reason for the existence of this book series is to reintroduce
philosophical study into the investigation of transnational policy and law.
While there are many ways to do this, what characterises a philosophical, as
opposed to a theoretical, point of view is that the former values compre-
hensive scope over narrow focus and the illumination of the essence of the
law’s inherent logic of concepts over an exclusive concentration on the
parameters of its superficial structure.
Specifically, the comprehensive search for the essence of society and the
natural world has been replaced by the compartmentalised and highly
focused effort to find a specific theory for each independent corner or
contextual problem of the human experience, taken in isolation. Here, the
only use found for the comprehensive philosophy of the past is as dis-
connected conceptual bits and pieces within these new theoretical struc-
tures. Part of the contemporary imperative for reintegrating philosophical
study into transnational policy and law is to both illuminate the wider
context of these theoretical corners and demonstrate how a fuller philo-
sophical understanding of the conceptual essence of the law renders a
higher degree of clarity in the analysis of the specific problems of con-
temporary legal practice. Michael Burkard’s book does both these things
very well.

vii
viii SERIES EDITOR PREFACE

There are two areas of transnational law and policy that have infre-
quently been treated together: the WTO and Environmental Risk. With
calls for making the dispute settlement system of the WTO the foundation
for international constitutional law and as environmental risk persists as one
of the most ubiquitous problems of our age, Michael Burkard’s book is an
especially timely and unique treatment of the epistemological and
methodological dilemmas associated with this legal nexus.
A unique dimension of this book is the meticulous consideration of the
similarities and distinctions between positivism and relativism. These
distinctions are commonly considered to be independent contradictory
points of departure for scientific consideration of risk in transnational law
and the foundational points of departure for modern ‘theoretical’ analysis,
requiring no more fundamental consideration of their conceptual essence.
Burkard’s argument deconstructs these positions to a much more essential
level, exposing their epistemological and methodological dynamics, while
also more adequately illuminating the distinct advantages and disadvan-
tages of each. Burkard’s comparative study of the philosophical substruc-
ture that underlies the ‘science’ of the policy involved is singular in the
literature and should invigorate the practice of transnational risk law.
In addition to working within the positivist—relativist framework of
modern theory and exposing the inherent philosophical logics that
underpin current policy, he also, on the basis of this deeper epistemological
analysis of method, synthesises a more balanced ‘critical’ approach to make
the policy and law of transnational environmental risk regulation more
effective. By first submitting existing positive law to more comprehensive
philosophical analysis, both his critical and constructive arguments expertly
highlight the problems involved in current WTO risk law. From the roots
of conceptual conflicts between the panel and appellate structures of WTO
dispute settlement system that have retarded policy in this critical area
of the law to his more comprehensive and essential analysis of international
legal practice, Burkard’s findings make his recommendation of a
methodological change in the fundamental analysis of WTO law more
persuasive and more powerful than previous work in this area. His con-
clusions merit our very serious attention.
By first distinguishing risk as a particular class of cases pertaining to the
regulation of the environment and then by unpacking the full method-
ological and epistemological essence of relativism and positivism, this book
transforms the consideration of both the adequacy of the WTO dispute
settlement system and the ability of current theoretical constructs to
 SERIES EDITOR PREFACE ix

effectively incorporate the unique characteristics of environmental risk into

international public law. Utilising WTO case law, it is his comprehensive
philosophical analysis of the essence of practice in transnational risk law and
policy that makes Michael Burkard’s book a perfect addition to our series
on PHILOSOPHY, PUBLIC POLICY AND TRANSNATIONAL LAW.
This book sheds new light on a number of questions concerning the role
of the WTO in the contemporary evolution of transnational law. The
philosophical illumination of conventional theory and practice present in
this book, especially in terms of policy questions dealing with those areas of
law that must transcend sovereignty for authority beyond the state, make
this monograph a welcome addition to our series.

Bethlehem, USA John Martin Gillroy

 CONTENTS

1 Introduction 1

Part I Being Determines Consciousness

2 Between Positivism and Relativism 15

References 32

3 Two Concepts of Reality 35

1 Positivist Traditions 38
1.1 The Vienna Circle 38
1.2 From Comte’s Positivism to Empiriocriticism 42
1.3 Pensée Unique 49
2 Relativist Records 57
2.1 Cultural Relativism 58
2.2 Historical Relativism 60
2.3 Romanticism 63
2.4 From Scientific Relativity to Relativism 67
2.5 Postmodernism and Populism 70
3 Globalism vs. Alter-Globalisation 81
References 129

xi
xii CONTENTS

4 Two Concepts of Risk 135

1 A Concept for Entrepreneurs 135
1.1 The Modernist Thesis 137
1.2 The Nautical Novel 138
2 Response from the Risk Society 141
References 153

5 Two Functions of Risk 155

1 Liberalisation 157
1.1 Risk Prevention in Subsistence Farming 157
1.2 Risk Mitigation in Diversified Farming 161
1.3 Risk Management in Commercial Farming 171
2 Regulation 174
2.1 Food Testing on Local Markets 175
2.2 Corporate Food Control by Municipal
Authorities 176
2.3 Food Safety Legislation at National Levels 179
References 205

6 The Battle for Agriculture 209

1 Empirical Versus Rational Agriculture 209
2 Dissenting Objectives 211
2.1 Growth 211
2.2 Equilibrium 215
3 Different Methods 218
3.1 Labour 218
3.2 Resources 221
4 Incongruent Scopes of Protection 224
4.1 Anthropocentric 224
4.2 Ecocentric 226
5 GMOs, the Last Frontier 231
5.1 Product-Based Regulation in the USA 231
5.2 Process-Based Regulation in the European Union 234
5.3 The Political Nature of Regulation 239
References 260
 CONTENTS xiii

Part II The Science-Based Approach of the SPS

Agreement in Particular

7 A Promise for Objectivity 265

1 Freer Trade in Agricultural Products 265
2 Deference to Science 268
3 Resurfacing Swamplands 272
References 285

8 The Panel’s Positivist Position 287

1 A Probabilistic Notion of Risk 288
2 Separating Science and Policy 291
3 Universality of Scientific Standards 297
Reference 301

9 The Appellate Body’s Quest for Middle Ground 303

1 Risk in Human Societies 303
2 Relativism in Standard-Setting 315
3 Panels and the Appellate Body Between
Epistemological Antipodes 324
References 337

Part III Future Prospects for Regulation

10 The Positivist Solution 341

References 346

11 The Relativist Response 347

References 352
xiv CONTENTS

12 A Critical Approach 353

1 Multilayered Risk Governance 363
2 The Criterion of Falsifiability 374
3 Outlook 389
References 426

Annex: Synopsis of Reform Proposals 431

Index 439
 ABBREVIATIONS

AB Appellate Body
ADI Acceptable Daily Intake
AKST Agricultural Knowledge, Science and Technology
ALOP Appropriate Level of [sanitary or phytosanitary] Protection
ATTAC Association pour une taxation des transactions financières pour
l’aide aux citoyens/Association for the Taxation of Financial
Transactions for the Aid of Citizens
BMJ British Medical Journal
BSCC Biotechnology Science Coordinating Committee
BSE Bovine Spongiform Encephalopathy
Bt Bacillus Thuringiensis
CAC Codex Alimentarius Commission
CCCF Codex Committee on Contaminants in Foods
CCFA Codex Committee on Food Additives
CCPR Codex Committee on Pesticide Residues
CITES Convention on International Trade in Endangered Species of
Wild Fauna and Flora
COP Conference of the Parties
DC Developing Country
DG Directorate-General
DG SANCO Directorate General for Health and Consumer Protection
(European Commission)
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the
Settlements of Disputes
EBDC Ethylene bisdithiocarbamate
EC European Communities
xv
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