ES5600-ES5607 Coursework task:

The view about precautionary principle expressed by the WTO appellate body in
‘European Communities-Beef Hormones’ (WT/DS/26/AB/R, at paras 124-125) is
wrong in law and /or policy. Critically Discuss.

Introduction
One of the most difficult agricultural disputes to resolve since the World Trade
Organization's (WTO) founding is beef hormone dispute.

In the media, it has been referred to as a "beef war" in the same way that the UK-EU
beef conflict over the mad cow disease issue, which has caused misunderstanding
due to the timing of the two wars.The importation of meat containing artificial cattle
growth hormones[a] that were authorised for use In 1989, the European Union
banned and administration in the USA. Six such hormones were initially included by
the ban, but it was changed in 2003 to only restrict one hormone permanently—
estradiol-17—while allowing the use of the other five only under certain conditions.
According to WTO regulations, such prohibitions are allowed, but only when a
signatory can demonstrate via credible scientific research that the ban is necessary
for public health and safety. Canada and the United States challenged the EU's
restriction at the World Trade Organization's Dispute Settlement Body. The Dispute
Settlement Body of the WTO ruled against the EU in 1997.

"Precaution" has been a major subject in recent years in international relations,

particularly in situations involving the environment and public health. Concerns
about issues like stratospheric ozone depletion, climate change, and genetically
modified food have drawn a lot of attention to the idea of cautious decision-making.
The possibility, scope, and gravity of potential future repercussions are all
surrounded by scientific ambiguity.Early policy action is advised by a global call for
"precautious" decision-making to prevent unknown or poorly understood
consequences.

In this form, precaution as a decision-making paradigm is based on such common-

sense maxims as "an ounce of prevention is worth a pound of cure," "a stitch in time
saves nine," "look before you leap," and "better to be safe than sorry."
The term "precautionary principle" is used in the area of international law to
describe an idea that aims to prevent or reduce risks to the environment or to
human health. Policies must be based on the principle of safety in order to ensure
healthy development. Environmental controls must predict, halt, and counteract
environmental degradation's core causes. Lack of comprehensive scientific
understanding should not be used as a justification for postponing environmental
protection activities if there is a chance of suffering severe or permanent damage.
States must use the precautionary principle as extensively to protect the
environment, people should be as effective as they are able to be. Lack of
comprehensive scientific understanding shouldn't serve as an excuse to postpone
cost-effective efforts to prevent environmental degradation where there is a risk of
major or irreversible damage.The World Trade Organisation (WTO) appeal body's
decision on the precautionary principle, as expressed in the case known as
"European Communities - Beef Hormones," has been the source of much dispute. In
this essay, we will assess whether or not the opinion of the WTO appellate body is
erroneous in terms of law and/or policy.

Facts: A total of six hormone that were legal in the US but illegal in the EC were at
the centre of a trade dispute in this case. This resulted from widespread worry over
these growth-promoting hormones, of which three were generated naturally and
the other three were synthetic1, which were regarded to be having an adverse
effect on people's health among European consumers. As a consequence, directives
were issued prohibiting the use of beef grown with the application of growth
hormones, as well as the receive of the same from other countries.

Only cases of therapeutic need or doctor certification2 qualified for the use of these
hormones This started with hormonal concerns and bad health consequences in
children assumed to be caused by poultry, with these growth boosters discovered in
veal industries in France and even Italy, leading to the EC Agriculture Ministers
making a statement in favour of this prohibition, This resulted in a European Council
Directive restricting the manufacture and import of beef containing these growth
hormones in 1981.

The US invoked the GATT dispute resolution procedure within the agreement known
as which is the Tokyo Round Technical Barriers to Trade Contract, in reaction to this
embargo, which led to the export of certain goods i.e beef products from the USA
and Canada to drop significantly 3.
This included threats to impose additional tariffs on imports from the EU, so the
European Commission retaliated by saying that they were entitled the right to use a
zero-risk strategy that is preventative and was backed by consumer resistance
throughout the nation. In addition, America said that there was insufficient scientific
evidence to warrant the prohibition, and that as a result, a technical Experts Group
(TEG) should be established in accordance with Article 14.5 of the TBT Agreement.
Following the prohibition in 1989, the US imposed retaliatory duties on a number of
imports from the EU, which lasted until 1996.In 1995, a new WTO was established,
introducing stronger regulations for trade restrictions based on sanitary and
phytosanitary (SPS) considerations as well as a new dispute resolution process.
Restrictions on trade have been imposed under the SPS Contract of the Global Trade
Organisation were permitted where a nation believed that imports posed a threat,
provided that such restrictions were only temporary.

Following this, both the US and Canada requested WTO conflict panels to examine
the EU hormone problem in 1996 after that the United States suspended its punitive
measures. In 1997, a WTO tribunal found in favour of the United States, concluding
that this prohibition did not violate that country's duties under the SPS Agreement.
Following that, the EU lodged an appeal, citing specific legal interpretations
previously disclosed under Article 16 of the DSU, that resulted in it being presented
for debate to the appellate authority in Nov 1997, which released its decision in
February 1998.

What precisely does "the precautionary principle" mean?

The precautionary principle refers to the idea of exercising reasonable caution in the
lack of compelling proof to the contrary. It is a basic tenet of international law. It is
based on the idea that Lack of total scientific assurance shouldn't be used as an
excuse to put off implementing cost-effective steps to stop environmental
degradation when there is a danger of catastrophic or irreparable damage or harm
to human health.

UE scientific risk evaluations

The EU approved Directive 2003/74/EC to alter its prohibition on beef growth

hormones after the SCVPH claimed in 2002 that their use might be harmful to public
health. Contrary to their positions, both the United States and Canada asserted that
the European Union had not adhered to WTO standards for risk science.
The EC asserted scientifically that the hormone 17-beta estradiol, which is used to
cure cattle, stays in the tissue. Despite this data, the EC determined that there was
no direct connection between the other five hormones that were temporarily
outlawed and human health hazards. The EC has also discovered significant
hormone levels in regions with a high density of cow lots. Waterways and the local
wild fish have been impacted by this rise in hormones in the water. Yet, hormone
poisoning of North American subsidiaries would not directly damage European
customers and their well-being.

Judgment of WTO in 2008

During November 2004, the EU requested WTO consultations, stating that the US
should stop its punitive measures now that the EU had stopped those which were
determined to have been WTO-incompatible in the first case. The EU initiated new
WTO dispute resolution proceedings both the United States and Canada in 2005,
and a March 2008 panel report finds faults with the three parties (US, EU, and
Canada) on a variety of substantive and procedural concerns. In a confusing ruling
issued in October 2008, the WTO Appellate Body permitted the EU to maintain its
prohibition on the entry of hormone-treated cattle while permitting the US and
Canada to keep imposing trade sanctions on the EU. After the USTR solicited input
on a possible change to the list of EU items liable to additional duties within the
conflict, the EU launched a fresh WTO complaint in November 2008. The United
States Trade Representative then announced modifications in the list of EU items
susceptible to increased duties in January 2009. As part of a compromise approach,
the European Commission and the United States signed a memorandum of
understanding in September 2009 that created a new EU duty-free import quota for
grain-fed, high grade beef (HQB). But given persistent concerns over US beef's
accessibility to the European market, the US took steps in the last month of 2016 to
reinstate retaliatory levies on a list of EU goods affected by the dispute. In August
2019, they agreed to create a first duty-free customs duty-rate quota of 18,500 tons
per year, phased up to 35,000 tones (worth about US$420 million) of the EU's forty-
five thousand tones allocation of non-hormone treated cattle over a seven-year
period.

European Union policy implications

When it comes to food safety, the EU frequently follows the precautionary approach
with extreme rigour. According to EC Regulation 178/2002, the precautionary
principle allows the government to take appropriate actions that are commensurate
to the danger where there is scientific uncertainty. After the 2003 Mad Cow crisis,
the EU kept its 1996 ban on US beef imports in place. A more thorough risk analysis
concluded that the danger was inadequate to outlaw some hormones while
maintaining the prohibition on others. Another possibility was to label meat,
however according to the standards outlined in the SPS, or sanitary and
phytosanitary agreement , warnings were also insufficient. Members are free to use
policies with a scientific foundation to safeguard the public's health. Under the
Article 4 Equivalence Provision, which stipulates that "an importing country must
accept an SPS measure which differs from its own as equivalent if the exporting
country's measure provides the same level of health or environmental protection."
As a result, even if the EU is a big supporter of labelling and the prohibition of meat
containing growth hormones, expecting the US to follow suit would have been
against the terms of this agreement.

Effects on American public perception

The US Beef Hormone Dispute had the consequence of piqueing the public's interest
in the topic. Not all of this attention was against the EU. For instance, in 1989, the
Centre for Science in the Public Interest and the Consumer Federation of America
both pushed for the establishment of a ban in the US that was comparable to the
one in the EU. Consumers in the US don't seem to be as concerned about synthetic
chemicals being used in food production. Due to the current regulation, which
permits all beef regardless of whether it was raised using hormones or genetically
modified organisms, US customers must now use their own discretion when making
purchases. However, 85% of respondents to a research conducted in 2002
demanded that beef produced with growth hormones be labelled as such. Several
factors influence the general public's decision to buy organic or natural meats. The
organic food industry is $23 billion, and the fastest-growing agricultural sector is
organic meats and poultry, which had a rise of 77.8% between 2002 and 2003.
Case- The European Union and Beef Hormones

The European Union's restriction on the introduction and sale of hormone-treated

beef was contested by the USA and Canada in a case referred as "European
Communities - Beef Hormones." Due to concerns about the appropriateness of the
beef for human consumption, the European Union banned hormone-treated beef in
1988. Both the US & Canada contended that the embargo violated World Trade
Organisation (WTO) principles because it was not backed by scientific evidence.

The WTO's Appellate Body found that the EU's  banning on hormone-treated cattle
violates the standards of the WTO since it wasn't justified by scientific data. The
court that heard the appeal also concluded that the European Union breached the
precautionary principle when it prohibited hormone-treated beef without
considering the probable economic ramifications of this decision.

Is the WTO Appellate Board's Position on the Precautionary Principle Wrong in

Terms of Law and/or Policy?

One might criticise the WTO legal body's position on the precautionary concept
based on both legal and policy reasons.

Legally speaking, the WTO appellate body's position has been called into doubt since
it ignores the principle's intent and formulation. The precautionary principle is a
policy tool that should be used in situations when there is a significant degree of
scientific uncertainty; it is not meant to be a scientific standard. The viewpoint of
the appellate body, according to which the precautionary principle must be
supported by scientific evidence, is thus incorrect.

Politicians have criticized the WTO appellate body's viewpoint for prioritizing
commercial considerations over environmental and public health protections. This
critique stems from the viewpoint's tendency to place economic factors first. By
concluding that the precautionary principle must be founded on scientific evidence,
the appellate court essentially prioritized financial considerations over concerns
about public health and the environment. This goes against the precautionary
principle's intention to safeguard the environment and public health in situations
when there is a lack of solid scientific proof.
Conclusion
In conclusion, the viewpoint of the WTO appellate authority on the
precautionary principle, as represented in the case known as "European
Communities - Beef Hormones," is incorrect in both legal and policy contexts.
The conclusion of the appeal court concluded that the principle of caution is
essential to be founded on scientific evidence is wrong, because the
precautionary concept is not intended to be a scientific standard. In addition,
the viewpoint if the appellate court's finding breaches the intent of the
safeguarding principle since it places a higher value on economic concerns
than it emphasises the upkeep of people's well-being and the wellness of the
earth. As a result, it is obviously apparent that the position of the WTO
appellate board on the precautionary principle is incorrect with regard to both
law and policy.

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