Anti-discrimination and appropriate use of new technologies: Speaking to edifices of International Trade Law

T. K. Naveen, Research Scholar, Department of Law, University of Tilburg

It is such a pleasure to be here.  Originally I had prepared this long list of slides.  But considering that I have a very specialised audience which is widely multi-disciplinary, I thought I rather present my own sets of confusions and couple of tension points that I came across within knowledge society. 

First a quick cursory description of the International Trade Law discipline itself which is relevant for us.

  I am particularly interested in looking at the “principle of non-discrimination” in International Trade Law and how it works and how it affects risk regulatory regimes, even innovation regulatory regimes.
A few caveats for I start: Whether mercantilism is a problem at all.  A lot of us do  carry our own histories of discourse of free trade which underpinned colonialism, imperialism and current day neo-liberal international relations .
Second: whether it is possible to have concerns about mercantilism which is global- South-centric, South- friendly and so on. I mean there is a huge argument which can go against it surely.

Currently the International Trade Framework works ,as you would know,  through the controvertial GATT (General Agreement on Tariffs and Trade). The fundamental principle of the International Trade Forum is that no goods or services can be discriminated against irrespective of its source of origin, the nationality of its origin. It’s another matter how you make the connection between the anti discrimination of goods to equality of people, of human beings and so on. There is a tenuous connection to be made and it’s often to the contrary. 
In any case I just want to pin two or three specific points. One as the report itself will talk about -  what is the entry point for any sort of discriminatory measure.  The gate point for discrimination in most of the GATT framework is either efficacy, harm to health, environmental harm and so on…Risk, which is  in a certain way the current session, seems to be the gateway for us. The problems is: how do you ascertain what is risky - that is where we are at right now. As you can see  there are possibilities within the framework of examining and ascertaining risk in different ways.  Risk could be scientifically ascertained. But it could be ascertained by other means too. The contemporary histories of WTO reports highlight this.  The dispute resolution body of the WTO is a source of risk jurisprudence , of deciding which state has what right.  The problem is how do you ascertain that right of independently asserting what is risky?  and further,  how does it balance with anti-discrimination itself.  

There is the notion in the regulation of how much weight to give to the science of expertiseas oppose to other legitimate factors.  The question I want to raise is “Do we imagine an appropriate mixture of these two different sets of factors in the national or regional sort of regulatory mechanism, claims mechanism and international trade"?. 

While we do agree that, science itself is not enough we also agree that you can’t wish away expertise.  So what is the appropriate mixture for two different levels?  That’s the first point I want to highlight.  Secondly, how does claims, concerns of mercantilism, anti- discrimination  move towards public participation, more democratic decision making? Or rather does it problematize it? Will you have more accusations, genuine concerns and so on? What about the possibility that more public participation in a certain sense, in a more genuine sense would lead to higher mercantilist walls (protectionism)? This is because there are obviously local interest, which can present their case in sophisticated manner.
The same can of course, be asked about science too. When we see STS scholarship, or when we problematize science and regulations, we do see scientist dressed up in a simlar manner ( managing baricades-ed) in the arena of international trade.
Is this all the response the response that we can give or can we go beyond that? Can we start looking  for a different kind of norm -- sort of a hunt for  some sort of objectivity in judicial review?

In the current structure, the only way you can ascertain whether the balance is right is through judicial review. When we look at what is the right norm, we, of course know that science is not working and that we need to go beyond that. But then, how do we reach there? And that’s something which I don’t see in the report again.  It is there, but I think there is a lot more wrestling to do there.  

Thirdly a the point about the fourth hurdle: . For those who haven’t had an opportunity to look at the report, there is a suggestion that apart from risk, efficacy and environmental harm, we look at fourth hurdle: regulation.  If you look at fourth hurdle also as an indicator on anti-discrimination concerns,  how do we move forward in this aspect. The  Fourth hurdle which is the representation of social benefits. The same kinds of problems arise again where you do have a far higher chance of local interests and  mercantilist dominant interest from the global north, dressing up their interest in the garb of  social benefit. How do you tackle that then?

And I see two routes.  One is to effectuate the fourth hurdle. You could obviously use it in the way of analyzing risk and benefits so you bring it into risk in a certain way. Alternatively you could make it as an independent hurdle by itself .  If you make it an independent hurdle, concerns about discrimination shoots up to my own understanding.  Before my time runs out, I want to just plug this point -- I want to present/report in a more general way couple of advancements which has happened in last seven or eight months which people who are interested might not have known.  

It is regarding the EC Hormones II case.  Those of you who have not heard of if -- the EC Hormones I case  was about scientific uncertainty -- about how risky hormone induced beef, and hence food, is for consumption.  It is the starting point of the break down of the transatlantic neo-liberal consensus around this notion of uncertainty and of course the dominant market interests behind that.  Subsequent to the first report which sort of directed EC to carry out certain measures, the EC apparently had carried out certain measures and the issue was taken back to court. What I wanted to highlight is the report of the WTO affiliate body in this matter.  For the first time,  the affiliate body decided that it doesn’t have jurisdiction. An earlier panel had said that the EC has still not completely convinced the Tribunal that there is scientific uncertainty.  I just can’t go into technicalities, but I just want to point out this fact that the affiliate body felt that these kinds of matters need to be decided politically rather than through science.  The question I would pose is: How do take forward this issue to the larger level of anti-discrimination itself.  What is the kind of norm which we need to use as an objective criterion in review? Do we look for new norms or do we decide that there are some things which are supposedly political and just leave it there.
 Thank you.