GATEWAYS TO THE PRECAUTIONARY PRINCIPLE IN WTO LAW

The jurisprudence of the WTO Appellate Body concerning the application of the precautionary principle in WTO law remains limited, but a systematic analysis of key decisions to date demonstrates a variety of mechanisms by which it can be introduced through what are described as 'gateway' provisions. Gateway provisions allow non-trade concepts to be incorporated into WTO in three ways—explicit incorporation, the exercise of legitimate discretion by Members, and lastly by reference to external sources such as state practice. The Appellate Body has recognised that the precautionary principle has been explicitly incorporated into the Agreement on Sanitary and Phytosanitary Standards albeit in its own form and subject to limitations, and may also be relevant to risk assessments made by Members. In relation to GATT, decisions show a variety of means by which the precautionary principle can be introduced, depending on the wording and context of each provision. The reasoning of the Appellate Body has suggested that the principle can be accommodated by locating the meaning of justificability in state practice outside the WTO and in the light of sustainable development and contemporary environmental concerns. Issues as to who can invoke the principle and over what subject matter, and the process by which is deemed relevant are considered. There remain ambiguities and unanswered questions which tend to mirror tensions inherent in the principle itself, but the precautionary principle has far more potential impact on WTO law than is commonly realised— though the mechanisms by which it may be introduced are complex, varied and not yet fully understood.