3 Chi J Intl L 353
Alan O. Sykes

Liberalization of global economic trade has been successful under the auspices of the World Trade Organization and its predecessor. WTO law compels member nations not to allow discrimination against foreign suppliers in order to make certain that agreements abolishing protectionist measures are not frustrated by the implementation of other types of technical barriers to trade. Since unfavorable treatment of foreign suppliers is not always overt, WTO law requires more than simple nondiscrimination. This article focuses on the "scientific evidence requirement" as an example of a broader constraint WTO law imposes. While it serves to prevent protectionist regulations from being adopted ostensibly as health, safety, or environmental regulations by requiring scientific evidence to support its purpose, it also adds barriers for those actually interested in health, safety, or environmental objectives, rather than trade protectionism. However, scientific evidence is not always certain. Thus, when disagreement over scientific evidence arises, the WTO must either defer to the nation's decision on the matter or require more evidence, thereby undercutting regulatory sovereignty. Three major WTO decisions are discussed to illustrate the thesis of the article. It concludes that the WTO's measures to prevent trade restrictions have gone beyond the member nations' ability to deal with scientifically uncertain risks, but few options are available if scientific evidence requirements are to have force.