Abstract
The protection of human, plant and animal life and health is clearly a duty of all governments within their sovereign sphere. For this purpose, governments have in place regulatory measures aimed at the protection of health1 in their territories against risks contained in food and agricultural products. These health measures can focus on human or animal life or health (sanitary measures) or on plant life or health (phytosanitary measures). Together, they are termed sanitary and phytosanitary (“SPS”) measures and can take many forms. One can think of examples such as regulations setting maximum residue levels for toxins or contaminants,2 approval procedures for additives, quarantine requirements to minimize the spread of pests and diseases, labeling requirements to notify consumers of potentially-harmful foodstuffs (such as allergen-containing products), regulations governing the process or production method whereby the product is made, inspection or certification requirements or outright bans on potentially hazardous products.3 These are all SPS measures.
Formerly Counsellor to the Appellate Body of the WTO. The authors gratefully acknowledge that they have benefited from the comments of Mariëlle Matthee of the Asser Institute on an earlier draft of this chapter as well as from a discussion with Gretchen Stanton of the Agriculture and Commodities Division of the WTO Secretariat. They are also grateful for the valuable assistance of Karla Vanessa Araujo, Jurga Stancuite and Eline Post graduate students at the Universiteit Maastricht. Any errors that remain are those of the authors. This chapter takes account of developments through July, 2004.
For purposes of this chapter, unless otherwise specified, a reference to “health” or “public health” should be taken to mean human, animal or plant life or health. Similarly, “health measures” refer to measures for the protection of human, animal or plant life or health.
The EC’s maximum residue levels for aflotoxins are an example of such an SPS measure.
For example, many countries banned beef imports from the EC in response to the outbreak of foot-and-mouth disease in 2001.
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References
Several studies have been conducted into the trade impact of SPS measures and technical barriers to trade more generally. Some have focused on the impact on developing country exports. Although quantification of the effect of these measures has proved difficult due to the complexity of the impact of standards on supply and demand, it is widely acknowledged that SPS measures can have significant negative effects on trade flows. See for example Tsunehiro Otsuki et al., Measuring the Effect of Food Safety Standards on African Exports to Europe, in The Economics of Quarantine and the SPS Agreement (Kim Anderson, et al., eds. 2001); Tsunehiro Otsuki et al., Saving Two in a Billion: A Case Study to Quantify the Trade Effect of European Food Safety Standards on African Exports, Working Paper, Development Research Group, World Bank (2001); Spencer Henson and Rupert Loader, Barriers to Agricultural Exports from Developing Countries: The Role of Sanitary and Phytosanitary Requirements, 29 World Development 85 (2001); T. Ademola Oyejide et al., Quantifying the Trade Impact of Sanitary and Phytosanitary Standards: What Is Known and Issues of Importance for Sub-Saharan Africa, Paper presented at the Workshop on Quantifying The Trade Effect of Standards and Regulatory Barriers: Is It Possible?, April 27, 2000; John S. Wilson et al., Agriculture in Thewto—The Role of Product Attributes in the Agricultural Negotiations Commissioned Paper number 17, April, The International Agricultural Trade Research Consortium (2001).
The share of trade in agricultural products in world trade in goods amounted to 10.5 percent in 1998 (larger than sectors such as iron and steel, automobiles, textiles and clothing, chemicals). In that year, food products made up eighty percent of total agricultural trade. WTO Secretariat, The Agreement on Agriculture, July 1999.
W. C. K. Hammer, Food Trade and Implementation of the SPS and TBT Agreements: Current Status of Food Trade, Including Food Quality and Safety Problems, Paper presented at the Conference on International Food Trade Beyond 2000: Science-Based Decisions, Harmonization, Equivalence and Mutual Recognition, Melbourne, Australia, October 11–15, 1999, at 1.
Total support for agriculture in OECD countrieswas estimated to beU.S.$327 billion in 2000. Organization for Economic Cooperation and Development, Agricultural Policies in Oecd Countries—Monitoring and Evaluation (2001), quoted in World Trade Organization, Annual Report 2002, 36 (2002).
In 1997, agriculture accounted for three percent of the GDP of developed countries, but 26 percent of GDP for developing countries and fifty percent of the GDP of least-developed countries. Food and Agriculture Organization, Issues at Stake Relating to Agricultural Development, Trade and Food Security, FAO Symposium on Agriculture, Trade and Food Security: Issues and Options in the Forthcoming WtO Negotiations from the Perspective of Developing Countries, September 23–24, 1999, at 12–15.
In developing countries, agricultural exports account for on average 27 percent of total merchandise exports whereas in developed countries this share is only four percent. Thomas C. Beierle, From Uruguay to Doha: Agricultural Trade Negotiations at the World Trade Organization 4, Resources for the Future (2002).
While in developed countries only nine percent of the population is employed in the agricultural sector, in developing countries this is more than fifty percent. Thomas C. Beierle, From Uruguay to Doha: Agricultural Trade Negotiations at the World Trade Organization 4, Resources for the Future (2002) Id.
Vogel discusses a few cases where agreement was reached in bilateral consultations following a challenge on the basis of the Standards Code. David Vogel, Ships Passing in the Night: GMOs and the Politics of Risk Regulation in Europe and the United States, Paper prepared for the Conference on Regulatory Issues of Genetically Modified Organisms, Maastricht, June 24–25, 2002, at 152–153.
Council Directive of December 31, 1985, Prohibiting the Use in Livestock Farming of Certain Substances having a Hormonal Action, 1985 O.J. (L.382) 228. For details of the various EC Directives and proposals on this issue as well as this history of this dispute, see Dale E. McNiel, The First Case under the WTO’s Sanitary and Phytosanitary Agreement: The European Union’s Hormone Ban, 39 Virginia Journal of International Law 89, 99–107 (1998).
Patterson discusses possible reasons why, before the Uruguay Round, disciplines for SPS measures were not negotiated despite the fact that the abuse of SPS measures for protectionist purposes was not new. Briefly, these are the importance attached to national sovereignty in health matters and the fact that agreement on uniform rules is made difficult by the fact that national health priorities differ widely. See Eliza Patterson, International Efforts to Minimize the Adverse Trade Effects of National Sanitary and Phytosanitary Regulations, 24 Journal of World Trade 91, 95–96 (1990).
Ministerial Declaration on the Uruguay Round: Declaration of September 20, 1986, (“Punta Del Este Declaration”) GATT B.I.S.D. 33S/19 (1987).
Punta Del Este Declaration, supra note 21, at 20.
Reasons that have been suggested for this view are the close link between agriculture and SPS standards, the importance of the beef hormone dispute, and the fact that SPS measures were thought to raise problems different from those linked to other technical standards, for example the greater importance of scientific risk assessment, the greater divergence in national approaches to standard setting and the crucial role of national regulatory authorities in deciding on the need for regulation and the measures to be taken. See David A. Wirth, The Role of Science in the Uruguay Round and NAFTA Trade Disciplines, 27 Cornell International Law Journal 817, 824 (1994).
Agreement on Technical Barriers to Trade, Annex 1A to the Marrakesh Agreement, reprinted in Gatt Secretariat, The Results of The Uruguay Round of Multilateral Trade Negotiations: The Legal Texts 6–18 (1994). This Agreement elaborates on and replaces the Tokyo Round Standards Code of 1980. The TBT Agreement goes further than the Standards Code in that it applies to both mandatory technical regulations and optional standards, and extends not only to products but also to related processes and production methods. The TBT Agreement is discussed in Chapter 8 of this book.
Agreement on the Application of Sanitary and Phytosanitary Measures, Annex 1A to the Marrakesh Agreement, reprinted in The Results of The Uruguay Round, supra note 24, at 69–84. The scope of the SPS Agreement and its relationship to the TBT Agreement are discussed infra Part II(A).
Simonetta Zarrilli and Irene Musselli, The SPS Agreement and The developing Countries, World Bank (2002).
Negotiating Group on Agriculture, Submission of the United States on Comprehensive Long-Term Agricultural Reform, MTN.GNG/NG5/W/118 referred to in Negotiating Group on Agriculture, Working Group on Sanitary and Phytosanitary Regulations and Barriers, Synoptic Table of Proposals Relating to Key Concepts: Note by the Secretariat. Revision, MTN.GNG/NG5/WGSP/W/17/Rev.1, May 29, 1990 at Table 3.
Negotiating Group on Agriculture, Sanitary and Phytosanitary Issues—Supplementary Communication for the Cairns Group, MTN.GNG/NG5/W/164 referred to in Negotiating Group on Agriculture, Working Group on Sanitary and Phytosanitary Regulations and Barriers, Synoptic Table of Proposals Relating to Key Concepts: Note by the Secretariat. Revision, MTN.GNG/NG5/WGSP/W/17/Rev.1, May 29, 1990 at Table 3.
Negotiating Group on Agriculture, Submission of the European Communities on Sanitary and Phytosanitary Regulations and Measures, MTN/GNG/NG5/W/146 referred to in Negotiating Group on Agriculture, Working Group on Sanitary and Phytosanitary Regulations and Barriers, Synoptic Table of Proposals Relating to Key Concepts: Note by the Secretariat. Revision, MTN.GNG/NG5/WGSP/W/17/Rev.1, May 29, 1990 at Table 3.
Some significant differences between the Dunkel Draft and the final version of the SPS Agreement were: (1) the addition of a footnote clarifying what the “scientific justification” required whe measure deviates from an international standard is composed of; (2) the change in the initial requirement of Article 5.6 that SPS measures be least restrictive to trade, to indicate that they must be no more trade restrictive that required to achieve their appropriate level of sanitary or phytosanitary protection; (3) the indication in Article 5.3 that the requirement that economic factors be taken into account in a risk assessment does not apply to human health risks; and (4) the extension of the transitional period for implementation of the SPS Agreement from two years to five years, for least-developed country Members. The GATT Uruguay Round: A Negotiating History (1986–1994), Vol. IV: The End Game 44–45 (Terence P. Stewart ed. 1999).
Negotiating Group on Agriculture, Meeting of 27–28 November 1989—Proposal on Special, Differential and More Favourable Treatment for Developing Countries—Communication from Brazil and Colombia, MTN.GNG/NG5/W/132 referred to in Negotiating Group on Agriculture Working Group on Sanitary and Phytosanitary Regulations and Barriers, Synoptic Table of Proposals Relating to Key Concepts: Note by the Secretariat. Revision, MTN.GNG/NG5/WGSP/W/17/Rev.1, May 29, 1990 at Table 6.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, WT/DS48/R/CAN (1997), 8.39 (footnotes omitted); Report of the WTO Panel, EC-Measures
In a recent case the Appellate Body found that a French ban on asbestos products from Canada could be challenged under the TBT Agreement and GATT 1994. See Report of the Appellate Body, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (2001), ¶ 75.
See also McNiel, supra Dale E. McNiel, The First Case under the WTO’s Sanitary and Phytosanitary Agreement: The European Union’s Hormone Ban, 39 Virginia Journal of International Law (1998) note 18, at 112.
See also Joost Pauwelyn, The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Disputes: EC—Hormones, Australia—Salmon and Japan-Varietals, 2 Journal of International Economic Law 641, 643 (1999).
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.12; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.25; Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, WT/DS18/R (1998), ¶ 8.32; Report of the WTO Panel, Japan—Measures Affecting Agricultural Products, WT/DS76/R (1998), ¶ 8.12. Report of the WTO Panel, Japan—Measures Affecting the Importation of Apples, WT/DS245/R (2003), ¶ 4.33. The Panel decisions in each of these cases was appealed. See notes 70, 97, 112, and 141 for citations to the Appellate Body Reports. The Appellate Body finding in the cases are discussed extensively in this chapter.
Report of the WTO Panel, Australia-Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.34.
David R. Hurst, Hormones: European Communities—Measures Affecting Meat and Meat Products, 9 European Journal of International Law 182, 182 (1998).
McNiel, supra Dale E. McNiel, The First Case under the WTO’s Sanitary and Phytosanitary Agreement: The European Union’s Hormone Ban, 39 Virginia Journal of International Law (1998) note 18, at 113.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.23; and Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.26.
Report of the WTO Compliance Panel, Australia—Measures Affecting the Importation of Salmon, Recourse to Article 21.5 by Canada, WT/DS18/RW (2000), ¶ 7.13.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 4.4; and Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 4.3.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.39 (footnotes omitted); Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.36.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶¶ 8.42–8.44 (footnotes omitted); Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶¶ 8.39–8.41.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, ¶ 128.
Concluded in Vienna on May 23, 1969, 8 I.L.M. 679 (1969).
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.25; and Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.25.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 128.
Id. ¶ 129.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.38, and Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.41.
A_detailed discussion on the relationship between the GATT, the SPS Agreement and the TBT Agreement can be found in Gabrielle Marceau and Joel P. Trachtman, The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade: A Map of the World Trade Organization Law of Domestic Regulation 36 Journal of World Trade 811 (2002).
In favor of this position, see Reinhard Quick and Andreas Blüthner, Has the Appellate Body Erred? An Appraisal and Criticism of the Ruling in the WTO Hormones Case, 2 Journal of International Economic Law 603 (1999). See also contra, Pierre Pescatore, The Reconciliation of Interests and the Revision of Dispute Resolution Procedures in the Framework of the WTO, paper presented at the expert meeting Free World Trade and the European Union Academy of European Law, Trier, June 11–12, 1998, at 23 (summarized in Quick and Blüthner, at 627), where it is argued that the SPS Agreement is subordinate to GATT principles and therefore the first question in a dispute should always be whether there is a violation of GATT rules which can give rise to the application of Article XX(b) and consequently to SPS rules.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.42; and Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.45.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.39.
See Quick and Blüthner, supra Reinhard Quick and Andreas Blüthner, Has the Appellate Body Erred? An Appraisal and Criticism of the Ruling in the WTO Hormones Case, 2 Journal of International Economic Law (1999) note 83, at 628.
Quick and Blüthner argue that an interpretation of those SPS rules which are similar to GATT disciplines (such as those in Articles 2.3 and 5.5 of the SPS Agreement), in a way that diverges from that given to the relevant GATT provision (Article XX), would make it possible for a challenging Member who loses the case under the SPS Agreement, to “easily” rebut the presumption of compatibility and pursue its challenge under the GATT. This result would go against the aim of the SPS Agreement to clarify and give further meaning to the relevant GATT provisions (while going further than GATT). Thus they argue that the panels and Appellate Body should interpret these SPS rules in the light of existing GATT jurisprudence to avoid this possibility. Reinhard Quick and Andreas Blüthner, Has the Appellate Body Erred? An Appraisal and Criticism of the Ruling in the WTO Hormones Case, 2 Journal of International Economic Law 603 (1999) Id. At 630–632. On the other hand, Goh and Ziegler claim that where an SPS measure is at issue, the SPS Agreement should apply exclusively, making recourse to the GATT impossible. Gavin Goh and Andreas R. Ziegler, A Real World Where People Live and Work and Die: Australian SPS Measures after the WTO Appellate Body’s Decision in the Hormones Case, 35 Journal Of World Trade 271 (1998). This would imply that the presumption of compatibility with the relevant GATT provisions is irrebuttable.
The likelihood that a similar interpretation will be followed can be inferred from the presumption in Article 2.4 SPS that measures conforming to the SPS Agreement are in accordance with GATT obligations, in particular Article XX(b), discussed supra Part II(A)(4)(b). See in this regard the argument of Quick and Blüthner, set out supra Reinhard Quick and Andreas Blüthner, Has the Appellate Body Erred? An Appraisal and Criticism of the Ruling in the WTO Hormones Case, 2 Journal of International Economic Law 603 (1999) note 87.
The Panel in U.S.—Gasoline identified two requirements for the test of Article XX(b) of the GATT to be met, namely that the policy aimed at by the measure falls within the ambit of policies designed to protect human, animal or plant life or health, and that the measure imposed be necessary to achieve this objective. Report of the WTO Panel, United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/R (1996) ¶ 6.20. The first part of this test is already covered by the definition of SPS measures in the SPS Agreement. Measures not falling within the policy objective of this definition will not be covered by the SPS Agreement. It is the second element of the test that is more interesting here, namely the “necessity” test. To the extent that it has been interpreted in Article XX case law to require the least-trade restrictive measure reasonably available that achieves a Member’s appropriate level of protection, it is already embodied in Article 5.6 of the SPS Agreement. Report of the GATT Panel, Restrictions on Importation of and Internal Taxes on Cigarettes, BISD, 37th Supp. 200 (1991), ¶ 75. However, the Article XX(b) case law also establishes an element of weighing and balancing of factors, including the contribution made by the measure to the aim it pursues, the importance of the common interests of values protected by the measure and the trade restrictive effect of the measure. Report of the Appellate Body, Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R (2000), ¶¶ 162–164; Report of the Appellate Body, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, supra note 54, ¶ 172.We argue that this element will be of importance in the interpretation of the first requirement of Article 2.2 of the SPS Agreement.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 177.
McNiel, supra Dale E. McNiel, The First Case under the WTO’s Sanitary and Phytosanitary Agreement: The European Union’s Hormone Ban, 39 Virginia Journal of International Law (1998) note 18, at 117.
Supra, note 57.
Id. ¶ 8.92.
Id., ¶¶ 8.91 and 8.98–8.99.
Id., ¶ 8.93.
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, WT/DS76/AB/R (1999), ¶¶ 73–74.
Id. ¶ 76.
Id. ¶ 79.
Id. ¶ 80.
Id. ¶ 84.
Report of the WTO Panel, Japan—Measures Affecting the Importation of Apples, supra note 57, ¶¶ 8.101–8.103.
Id., ¶ 8.104.
Report of the WTO Panel, Japan—Measures Affecting the Importation of Apples, supra note 57, ¶¶ 8.169 and 8.176.
The Panel based this finding on its conclusions on the basis of the evidence available to it with regard to mature symptomless apples and other apples. With regard to mature, symptomless apples, it found that infection with fire blight had not been established; that populations of endophytic bacteria have not been found and epiphytic bacteria are very rare; and that the risk of completion of the transmission pathway is negligible. With regard to apples other than mature, symptomless fruit, it held that infected apples are capable of harbouring populations of bacteria which could survive through the various stages of commercial handling, storage and transportation; that risks of errors of handling or illegal actions could legitimately be taken into account, although the experts considered these risks small or debatable; but that completion of the last stage of the transmission pathway (the transmission of the bacteria to the host plant) was not shown to be likely. This was because only a reduced number of bacteria would survive commercial storage, handling and transportation and the existence of a vector (such as rain splash or bees), which could transmit the bacteria from the imported apples to the host apple plant in Japan, had not been established. Report of the WTO Panel, Japan—Measures Affecting the Importation of Apples, supra note 57, ¶¶ 8.136, 8.139, 8.153, 8.157, 8.161, 8.168.
Report of the WTO Panel, Japan—Measures Affecting the Importation of Apples, supra note 57, ¶¶ 8.181
The Panel proceeded to examine two elements of Japan’s measure, namely the buffer-zone requirement and the requirement of inspections three times yearly, as instances of elements most obviously maintained without sufficient scientific evidence either as such or when applied cumulatively with other elements. Id., ¶¶ 8.182–8.197.
Report of the Appellate Body, Japan—Measures Affecting the Importation of Apples, WT/DS245/AB/R (2003), ¶ 164.
Id., ¶ 163.
Report of the Appellate Body, Japan—Measures Affecting the Importation of Apples, supra note 112, ¶ 165.
Vern R. Walker, Keeping the WTO from Becoming the “World Trans-science Organization”: Scientific Uncertainty, Science Policy, and Factfinding in the Growth Hormones Dispute, 31 Cornell International Law Journal 251, 280 (1998).
See Wirth, supra David A. Wirth, The Role of Science in the Uruguay Round and NAFTA Trade Disciplines, 27 Cornell International Law Journal (1994) note 23 at 842. Wirth notes that “there is unlikely to be a single, unique way to analyze even the purely scientific significance of much empirical data... And even if we could somehow get a group of scientists to endorse a consensus position, it would be, in the first place, only tentative and subject to revision with the arrival of new discoveries; and in the second place, it may be entirely wrong. In science, the majority does not rule, as the history of science amply demonstrates”.
Statement of Administrative Action (“SAA”), H.R. Doc. 103–316, at 746, quoted in McNiel, supra Dale E. McNiel, The First Case under the WTO’s Sanitary and Phytosanitary Agreement: The European Union’s Hormone Ban, 39 Virginia Journal of International Law (1998) note 18, at 118.
McNiel, supra Dale E. McNiel, The First Case under the WTO’s Sanitary and Phytosanitary Agreement: The European Union’s Hormone Ban, 39 Virginia Journal of International Law (1998) note 18, at 118. See Report of the Appellate Body, EC-Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 194, where the Appellate Body held (for purposes of Article 5.1) that a risk assessment may embody a minority opinion, provided it comes from a “qualified and respected source”. As Article 5.1 is a specific application of Article 2.2, this finding is also relevant to the interpretation of “sufficient scientific evidence” in the latter article (held in the Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 77).
See Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 84.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 124.
For further discussion of the role of the precautionary principle in the SPS Agreement, see Wirth, supra David A. Wirth, The Role of Science in the Uruguay Round and NAFTA Trade Disciplines, 27 Cornell International Law Journal (1994) note 23, at 838–840.
The precautionary principle is recognized in the following international instruments amongst others: the Treaty establishing the European Community, as amended by the Treaty on the European Union, in Article 174 (with regard to environmental protection), 31 I.L.M. 247 (1992); the United Nations Framework Convention on Climate Change, in Article 3.3, 31 I.L.M. 849 (1992); Agenda 21 of the United Nations Conference on the Environment and Development U.N. Doc.A/CONF.151/26, (1992); the Rio Declaration on Environment and Development, United Nations Conference on the Environment and Development, in Principle 15, U.N. Doc. A/CONF.151/5/Rev.1 31 I.L.M. 876 (1992); and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, in Articles 10.6 and 11.8, 39 I.L.M. 1027 (2000). For an interesting discussion on whether the precautionary principle has emerged as a normof customary international law, see Owen McIntyre and Thomas Mosedale, The Precautionary Principle as a Norm of Customary International Law 9 Journal of Environmental Law 221 (1997).
This definition was adapted from the one appearing in Principle 15 of the Rio Declaration, supra Owen McIntyre and Thomas Mosedale, The Precautionary Principle as a Norm of Customary International Law 9 Journal of Environmental Law 221 (1997) note 124.
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 81.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 125.
Id., ¶ 123. Pauwelyn has criticized this ruling on the grounds that the Appellate Body was obliged to make a finding regarding whether the precautionary principle is part of customary international law or not, since if it is and if it were shown to have emerged later in time than the SPS Agreement and be in conflict with it, it would prevail over the treaty rule, in the absence of an intention to continue applying the SPS Agreement as lex specialis. See Joost Pauwelyn, Conflict of Norms in Public International Law—The Example of the World Trade Organization: Internal Hierarchy and How WTO Law Relates to Other Rules of International Law 312, Doctoral Thesis, Faculty of Law, University of Neuchâtel (2001).
This ruling presupposes a hierarchy or norms in international law where treaty rules have priority over custom. This idea has been criticized. See Pauwelyn, supra Joost Pauwelyn, Conflict of Norms in Public International Law—The Example of the World Trade Organization: Internal Hierarchy and How WTO Law Relates to Other Rules of International Law 312, Doctoral Thesis, Faculty of Law, University of Neuchâtel (2001) note 128, at 60–61, where the wide support for the idea that there is no inherent hierarchy or norms is discussed.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 124.
The Appellate Body in Japan—Agricultural Products, supra note 57, and in Japan-Apples, supra note 112, did not address the effect of this directive for the interpretation of Article 2.2, probably because what was at stake in those cases was a threat to plant health rather than human health whereas the directive is limited to cases of irreversible risks to human health.
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 80.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 180.
Id. ¶ 250.
Id. ¶¶ 180, 212 and 250. The Appellate Body held that further analysis of the relationship between these articles “should await another case.”
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.52.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, WT/DS18/AB/R, ¶ 137.
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 82.
Report of the Appellate Body, Australia—Measures Affecting Importation of Salmon, supra note 141, ¶ 251.
Panel report, op. cit., ¶¶ 8.109 and 8.160 and Appellate Body report, op. cit., ¶¶ 178 and 252. [Footnote in original.]
Report of the WTO Compliance Panel, Australia—Measures Affecting Importation of Salmon, Recourse to Article 21.5 by Canada, supra note 65, ¶ 7.111–7.112.
Report of the WTO Compliance Panel, Australia—Measures Affecting Importation of Salmon, Recourse to Article 21.5 by Canada, supra note 65, ¶¶ 7.113–7.114 (in relevant part).
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 240.
Report of the Appellate Body, Australia—Measures Affecting Importation of Salmon, supra note 141, ¶ 248. The Appellate Body here quoted the Panel’s finding that “given the more general character of Article 2.3, not all violations of Article 2.3 are covered by Article 5.5.” Report of the WTO Panel, Australia—Measures Affecting Importation of Salmon, supra note 57, ¶ 8.109.
(Footnote in original) In European Communities—Hormones we characterized Article 5.5 as “marking out and elaborating a particular route leading to the same destination set out in Article 2.3” (emphasis added). Adopted February 13, 1998, WT/DS26/AB/R, WT/DS48/AB/R, ¶ 212.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 252.
This aim is expressed in the sixth paragraph in the Preamble. It is notable that the preamble makes no mention of scientific disciplines on remaining (not harmonized) SPS measures. See David G. Victor, The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment After Five Years, 32 Journal of International Law and Politics 868, 884 (2000), where the author claims that harmonization is the principal objective of the SPS Agreement. However, after analyzing the interpretation of Article 3 by panels and the Appellate Body, Victor comes to the conclusion that the SPS Agreement will not lead to harmonization of SPS measures and appropriate levels of protection set by Members, but will rather lead to harmonization of national SPS procedures, such as requiring risk assessments. Id. at 936.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 177.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 104.
Id. ¶¶ 170–172.
The problematic nature of developing country participation in international standard setting is discussed infra Part IV(B)(1). In addition, concerns have been raised with regard to the weak role of civil society NGOs as opposed to industry interest groups in the standard-setting process, both as observers and as members of national delegations, in certain standard-setting bodies. See, for example, Natalie Avery et al, Cracking the Codex. An Analysis of Who Sets World Food Standards, National Food Alliance, (1993). These participatory problems call into question the legitimacy of the use of the standards adopted by these standard-setting organisations as benchmarks by the SPS Agreement.
Victor notes that Codex codes of conduct and guidelines are intended to augment the application of core Codex standards rather than to act as main standards themselves and are often adopted by the CAC where agreement cannot be reached on a commodity or residue standard. See Victor, supra David G. Victor, The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment After Five Years, 32 Journal of International Law and Politics (2000) note 154, at 886. It would thus be inappropriate to give these looser norms the same status as applies to commodity and residue standards under the SPS Agreement although this seems to be the intention of the Annex A definition. It should be pointed out that, contrary to the view of Victor, this does not give guidelines “potentially binding application” since no international norms are made binding by the disciplines of the SPS Agreement. This point is discussed infra Part II(C)(1).
Codex Executive Committee, Report of the Forty-Fifth Session of the Executive Committee of the Codex Alimentarius Commission, ALINORM 99/3, June 3–5, 1998, ¶ 44.
Codex Committee on General Principles, Report of the Thirteenth Session of the Codex Committee on General Principles, ALINORM 99/33. September 7–11, 1998, ¶ 54.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.72, Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.69.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.46.
Id. ¶ 7.11.
Committee on Sanitary and Phytosanitary Measures, Clarification of References to Codex Texts: Draft Response to the Codex Alimentarius Commission, Note by the Chairman. Revision, G/SPS/W/86/Rev.1, March 13, 1998, adopted in the decision contained in the report of the SPS Committee meeting of March 12–13, 1998. Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting Held on 12–13 March, 1998, G/SPS/R/10, April 30, 1998, ¶ 50. It should be noted, however, that the CAC is moving away from the adoption of regional standards as much as possible.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.72, and Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.75.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.73 and EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.76.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones, supra note 70, ¶ 163–166
Id. ¶ 163–164.
Id. ¶ 165.
Id.
Before the panels, the EC had argued that CAC members were used to adopting voluntary standards and were not aware that the standards for hormones in beef would in effect become mandatory through the operation of the SPS Agreement. Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.68; and Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.71.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 171.
Id. ¶¶ 176–177.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.76; and Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.73.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 168.
McNiel, supra Dale E. McNiel, The First Case under the WTO’s Sanitary and Phytosanitary Agreement: The European Union’s Hormone Ban, 39 Virginia Journal of International Law (1998) note 18, at 126.
See contra Victor, supra David G. Victor, The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment After Five Years, 32 Journal of International Law and Politics (2000) note 154, at 884, who argues that the requirements of Article 5 apply whether a Member’s standards are stricter or looser than international standards. He states that for manufactured food products, lax standards could have the effect of benefiting local producers who do not have to comply with expensive stricter standards. The SPS Agreement could be used to force a higher level of health protection in these countries. He does acknowledge that such challenges would be rare due to the difficulty of proving a trade effect from weak SPS measures. The correctness of this argument can be questioned, however, since producers in countries with strict SPS standards can, and often do, export food and agricultural products of lesser quality to countries with lower standards. They are thus not bound by high local standards for their exports. Therefore it is doubtful that lax standards could constitute a trade barrier. More compelling, however, is the legal argument that the provisions of Article 3.3 refer only to a “higher level of sanitary or phytosanitary protection”.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 170.
Id. The implications of this presumption for the burden of proof are discussed further infra Part III(D)(1)(a).
Id. ¶ 102.
As pointed out by Quick and Blüthner, supra Reinhard Quick and Andreas Blüthner, Has the Appellate Body Erred? An Appraisal and Criticism of the Ruling in the WTO Hormones Case, 2 Journal of International Economic Law (1999) note 83, at 613, this does not mean that international standards become (either directly or indirectly) binding on WTO members as a result of SPS disciplines. The standards only give content to the provisions of the SPS Agreement. It is the latter provisions that have binding force. However, the effect of the SPS provisions on harmonization is to encourage the adoption of international harmonized standards and thus they do increase the status and relevance of these standards for WTO Members.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 172.
A footnote to Article 3.3 clarifies the term “scientific justification” (quoted supra at note 155). This footnote was not present in the Dunkel Draft but was added to the final text of the SPS Agreement due to controversy regarding the meaning of the “scientific justification” requirement for deviation from international standards. Wirth, supra note 23, at 827.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 175.
Id., ¶¶ 173–175.
McNiel, supra Dale E. McNiel, The First Case under the WTO’s Sanitary and Phytosanitary Agreement: The European Union’s Hormone Ban, 39 Virginia Journal of International Law (1998) note 18, at 126.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 177.
Id.
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 79.
Walker, supra Vern R. Walker, Keeping the WTO from Becoming the “World Trans-science Organization”: Scientific Uncertainty, Science Policy, and Factfinding in the Growth Hormones Dispute, 31 Cornell International Law Journal(1998) note 117, at 275–276.
See Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.84. Here the Panel stated that both Canada and the EC interpreted the first situation as existing where the relevant international standard is outdated, inadequate, faulty or obsolete from a scientific perspective, for example where it in fact does not provide the level of protection it was intended to provide.
See contra Wirth, supra David A. Wirth, The Role of Science in the Uruguay Round and NAFTA Trade Disciplines, 27 Cornell International Law Journal (1994) note 23, at 827, where he argues that the footnote explaining the term “scientific justification” might be taken to mean that there are scientific constraints on the choice of the appropriate level of protection. However, it seems that the scientific analysis mandated by that footnote is directed at the question of whether the international standards are effective in achieving the Member’s chosen level of protection, rather than at the choice of an appropriate level of protection.
Walker, supra Vern R. Walker, Keeping the WTO from Becoming the “World Trans-science Organization”: Scientific Uncertainty, Science Policy, and Factfinding in the Growth Hormones Dispute, 31 Cornell International Law Journal(1998) note 117, at 276.
Jeffrey Atik, Symposium-Institutions for International Economic Integration: Science and International Regulatory Convergence, 17 Journal of International Law and Business 736, 739 (1997).
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 141; Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 132; Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97; and Report of the Appellate Body, Japan—Measures Affecting the Importation of Apples, supra note 112.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 182.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.101; Report of the WTO Panel, EC-Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.98.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 184–186.
Id., ¶ 185.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 186.
See contra Walker, supra Vern R. Walker, Keeping the WTO from Becoming the “World Trans-science Organization”: Scientific Uncertainty, Science Policy, and Factfinding in the Growth Hormones Dispute, 31 Cornell International Law Journal (1998) note 117, at 305. He states that: “On the continuum between a merely speculative risk and a conclusively demonstrated one lies a vast stretch of undemonstrated, unquantified, but scientifically plausible risks. Within that zone, the risk of harm is real so long as safety is unproven.”
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 186.
Id., ¶ 187.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 120.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.72.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 121.
Id. It should also be noted that in Japan—Agricultural Products the Appellate Body once again endorsed this three-pronged test and found that a risk assessment, on which Japan argued it had based its measure, did not refer to any SPS measure which could be taken to reduce the risk, and thus did not comply with the third requirement. Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 113. This test was also used by the compliance Panel in Australia-Salmon. Report of the WTO Compliance Panel, Australia-Measures Affecting the Importation of Salmon, Recourse to Article 21.5 by Canada, supra note 65, ¶ 7.41. In Japan—Apples the Appellate Body again used this test to evaluate Japan’s risk assessment. Report of the Appellate Body, supra note 112, ¶ 196.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 126.
Id. ¶ 123.
Id. n.69. The EC was a third party participant in this dispute.
Adopted February 13, 1998, WT/DS26/AB/R, WT/DS48/AB/R, ¶ 184. [Footnote in original].
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 123.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 124.
Adopted February 13, 1998, WT/DS26/AB/R, WT/DS48/AB/R, ¶ 186. [Footnote in original]. The case cited is: Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 124.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 129.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.83.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 130.
Id. ¶ 124.
It should be noted that the OIE, which is recognized in the SPS Agreement as the relevant standard-setting organization in the area of animal health, defines a qualitative risk assessment as “[a]n assessment where the conclusions on the likelihood of the outcome or the magnitude of the consequences are expressed in qualitative terms such as high, medium, low or negligible”. See OIE, Diagnostic Manual for Aquatic Animal Diseases, 3rd edition (2000), Article 1.4.1.3.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 125 (quoted infra Part II(F)(1)).
Report of the WTO Panel, Australia-Measures Affecting the Importation of Salmon, supra note 57, ¶ 132.
Report of the WTO Compliance Panel, Australia—Measures Affecting the Importation of Salmon, Recourse to Article 21.5 by Canada, supra note 65, ¶ ¶ 7.68–7.70.
Report of the WTO Panel, Japan—Measures Affecting the Importation of Apples, supra note 57, ¶ 8.285.
Report of the Appellate Body, Japan-Measures Affecting the Importation of Apples, supra note 112, ¶ 208 (footnotes omitted).
This comment was made by one of the experts advising the Panel in Japan-Apples. Report of the WTO Panel, Japan-Measures Affecting the Importation of Apples, supra note 57, ¶ 6.177.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 200.
Id. ¶ 201.
Id.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.255; and Report of the WTO Panel, EC-Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.258.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.74.
Id. ¶ 8.58.
Report of the WTO Panel, Japan—Measures Affecting the Importation of Apples, supra note 57, ¶¶ 8.268-271.
Report of the Appellate Body, Japan—Measures Affecting the Importation of Apples, supra note 112, ¶ 204.
Id.
Id., ¶ 202.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 129.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.57.
Id. ¶ 8.71.
Id. ¶ 8.83 and 8.92.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 130.
Report of the WTO Panel, Japan—Measures Affecting the Importation of Apples, supra note 57, ¶ 8.237.
Id., ¶ 8.238.
Id., ¶ 8.240 and note 372. Article 5.2 is discussed infra Part II(D)2.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.71.
Id. ¶ 8.241. In this context, the Panel examined two relevant standards set by the International Plant Protection Convention, ISPM 2 on Guidelines for Pest Risk Analysis, and ISPM 11 on Pest Risk Analysis for Quarantine Pests. The parties agreed that both instruments build upon the same framework, thus the Panel focused on the key issue of whether Japan’s risk assessment sufficiently identified and assessed the possible pathways for the introduction and spread of fire blight through apple fruit and the likelihood for their being realised, as required by both instruments. Id., ¶ 8.244.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 190. This finding was recalled by the Appellate Body in Australia—Measures Affecting the Importation of Salmon, supra note 141, n. 68.
For a more detailed analysis of this distinction, see Walker, supra Vern R. Walker, Keeping the WTO from Becoming the “World Trans-science Organization”: Scientific Uncertainty, Science Policy, and Factfinding in the Growth Hormones Dispute, 31 Cornell International Law Journal (1998) note 117, at 256–277. In addition, risk communication forms part of the risk analysis process. It is defined as follows in Article 1.3.2.7 of the OIE International Animal Health Code: “Risk communication is the process by which information and opinions regarding hazards and risks are gathered from potentially affected and interested parties during a risk analysis, and by which the results of the risk assessment and proposed risk management measures are communicated to the decision-makers and interested parties in the importing and exporting countries. It is a multidimensional and iterative process and should ideally begin at the start of the risk analysis process and continue throughout.” (Emphasis in original). This aspect of risk analysis is party covered by the rules on transparency in the SPS Agreement, dealt with in Part III(A) below.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.98; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.95.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 181.
U.S. Panel Report, ¶ 8.94; and Canada Panel Report, ¶ 8.97.[Footnote in original].
U.S. Panel Report, ¶ 8.95; and Canada Panel Report, ¶ 8.98. [Footnote in original].
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 181.
As will be discussed below, the Appellate Body did overrule the Panel’s decision that risks from failure to observe good veterinary practice and problems relating to detection and control of such failure must be rejected a priori because they are unscientific and thus do not belong under risk assessment. The Appellate Body found that the Panel had misinterpreted the scope of Article 5.2 and that these considerations did, in fact, belong thereunder. Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 187.
U.S. Panel Report, ¶ 8.107; Canada Panel Report, ¶ 8.110. [Footnote in original].
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 187.
Id. ¶ 205.
Id. ¶ 206.
As mentioned previously, this exclusion of human health risks from Article 5.3 in the final text of the SPS Agreement was not present in the Dunkel Draft. See supra note 32.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶¶ 188–209.
Thus, the panel found that the EC could not rely on new scientific evidence regarding the risks posed by hormone-treated beef, published in journals in 1995 and 1996, since it could not have been considered by the EC at the time of imposing the import ban. Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.113; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.116.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶¶ 8.116-8.119; and Report of theWTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.114.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 189.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.120. Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.119.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 193.
Id. ¶¶ 193–194.
McNiel, supra Dale E. McNiel, The First Case under the WTO’s Sanitary and Phytosanitary Agreement: The European Union’s Hormone Ban, 39 Virginia Journal of International Law (1998) note 18, at 134.
Id. at 93.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.102 [footnote omitt
; Report of theWTOPanel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.99.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 129.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.56.
Report of the WTO Compliance Panel, Australia—Measures Affecting the Importation of Salmon, Recourse to Article 21.5 by Canada, supra note 65, ¶¶ 7.76–7.77.
For an interesting discussion on the prevalence of uncertainty in SPS risk analysis and reasons for this, see Mark Powell, Science in Sanitary and Phytosanitary Dispute Resolution, Discussion Paper 97-50, Resources for the Future, 5–11 (1997).
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 16. It is interesting to note that the EC Commission’s recent Communication on the Precautionary Principle, adopted partly as a reaction to the Appellate Body decision in EC—Hormones reflects a departure from the view that the precautionary principle applies to both phases of risk analysis. The communication (at 15) states that the appropriate role for the precautionary principle is in risk management decisions, where scientific uncertainty precludes a full risk assessment. It distinguishes this situation from the prudential approach that scientists take in their assessment of data, in order to deal with the scientific uncertainties inherent in risk assessment. It identifies certain prudential techniques adopted by risk assessors to deal with uncertainties, for example the use of animal models to establish potential effects in humans, adopting a safety factor when evaluating an acceptable daily intake to take account of inter-and intra-species variability, not adopting an acceptable daily intake for recognised carcinogens, etc. See European Commission, Communication from the Commission on the Precautionary Principle, COM(2000)1, Brussels, February 2, 2000. It seems that the Commission’s change in approach is a reaction to the Appellate Body’s refusal in its report in EC—Hormones to see the precautionary principle as allowing deviation from the explicit provisions of Article 5.1 on risk assessment, except as provided for in Article 5.7. It thus cannot influence the application of the risk assessment disciplines. The Commission thus now prefers to view the principle as a risk management tool.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 123.
Id.
Id. ¶ 124.
The Appellate Body appears to be confusing the precautionary principle with the protective principle. The latter principle is a forerunner of the precautionary principle, dealing with the duty of governments to provide protection from risks that have been established scientifically. Thus the ability of a government to set a high level of protection once a risk has been proved falls under the protective principle. The precautionary principle represents a step forward in that it requires government action in the face of suspected risks that cannot be scientifically proven in the current state of scientific knowledge. It evolved precisely due to the need to address the regulatory paralysis that results from a lack of scientific certainty. See H. Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law 10 (1994).
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 125, where it held, “We accordingly agree with the finding of the Panel that the precautionary principle does not override the provisions of the SPS Agreement.”
Id. ¶ 124.
Case Concerning the Gabcícovo-Nagymaros Project (Hungary/Slovakia) I.C.J. Judgment, September 25, 1997 ¶¶ 111–114 (not yet reported in the I.C.J. Reports), 37 I.L.M. 162 (1998)
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 123 and n.93.
There is wide support for the view that there is no inherent hierarchy of norms in international law, and thus that treaty provisions do not necessarily have precedence over customary international law norms or general principles of international law. However, Pauwelyn argues that genuine conflicts between treaty law and custom or general principles of law are exceptional, due to the fact that custom and general principle emerge gradually over time and therefore constitute more a “process” which interacts with other norms of international law, rather than a “rule” with which other norms of international law can conflict. See Pauwelyn, supra Joost Pauwelyn, Conflict of Norms in Public International Law—The Example of the World Trade Organization: Internal Hierarchy and How WTO Law Relates to other Rules of International Law 312, Doctoral Thesis, Faculty of Law, University of Neuchâtel (2001) note 128, at 60–62.
In U.S.—Shrimp/Turtle, the Appellate Body recognised that its task is to interpret the language of WTO agreements “seeking additional interpretative guidance, as appropriate, from the general principles of international law”. Report of the Appellate Body, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (1998), ¶ 158.
This general principle of treaty interpretation was recognised by the Appellate Body in Guatemala-Cement and by a panel in Indonesia-Automobiles with regard to conflicts between different WTO Agreements. Report of the Appellate Body, Guatemala—Anti-Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/AB/R (1998), ¶ 65; Report of the WTO Panel, Indonesia—Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, (1998), ¶ 14.28.
InU.S.—Gasoline, the Appellate Body held that Article 31.1 of the Vienna Convention constitutes customary rules of interpretation of public international law. Report of the Appellate Body, United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, (1996), 17. This finding was confirmed and extended to include the whole of Article 31 and Article 32 of the Vienna Convention in Japan—Alcoholic Beverages and EC—Computer Equipment. Report of the Appellate Body Japan—Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (1996), 11–12; Report of the Appellate Body, European Communities-Customs Classification of Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R (1998), ¶ 84.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 124.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 123.
It is perhaps arguable that the Appellate Body itself recognised this possibility, in a confusing obiter statement in EC—Hormones that in interpreting Article 2.2, a panel should bear in mind that responsible governments act “from perspectives of prudence and precaution” in case of risks of irreversible damage to human health. Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 124. (quoted supra in text accompanying note 122). Although the interpretation of Article 2.2 was not at issue in this case, the Appellate Body seems to have recognised the possibility of interpreting this article in the light of a rather restrictive formulation of the precautionary principle.
And possibly, to a limited extent, to the interpretation of Article 2.2 SPS. See supra note 325.
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 90.
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 91. While it is clear that, since the requirements of the second sentence of Article 5.7 were not met, Japan could not rely on Article 5.7 to justify its measure and it was unnecessary to go on to investigate whether Japan complied with other two requirements of Article 5.7, it would seem more logical to have started the analysis by determining whether Article 5.7 is applicable to the case at all. For this purpose, it would have been useful to examine the first requirement, which triggers the application of this article when “scientific evidence is insufficient.” The EC expressed the view in its third party submission before the Appellate Body in Japan—Agricultural Products that both the requirements of the first sentence are the triggers for the operation of Article 5.7 and should therefore be examined first. Id. ¶ 64.
Report of the WTO Panel, Japan—Measures Affecting the Importation of Apples, supra note 57, ¶ 8.215.
Id., ¶ 8.216. The Panel later concluded that the term “insufficient scientific evidence” in Article 5.7 refers to evidence in general on the SPS question at issue (in this case the risk of transmission of fire blight through apple fruit). Id., ¶ 8.218.
The Panel noted that much relevant evidence had been submitted by the parties and panel experts, and scientific studies and practical experience on the matter had accumulated for the past 200 years. Id., ¶¶ 8.216 and 8.219.
Id., ¶ 8.219.
Id., ¶ 8.219.
Id., ¶ 8.222.
Report of the Appellate Body, Japan—Measures Affecting the Importation of Apples, supra note 112, ¶ 179.
The Appellate Body found these contextual elements in the following: first, the concepts of relevance and insufficiency in Article 5.7 imply a relationship between scientific evidence and something else; second, Article 5.1, obliging Members to base their measures on a risk assessment, contains a key discipline under Article 5 and informs the other provisions of Article 5; and third, Article 5.7 itself refers to “a more objective assessment of risks”. Id., ¶ 179.
Id., ¶ 179.
Id., ¶ 184.
Id., ¶ 185.
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 91, where the Appellate Body held: “We, therefore, conclude that the Panel did not err in its application of Article 5.7 by first examining whether the varietal testing requirement meets the requirements of the second sentence of Article 5.7. Having established that the requirements of the second sentence of Article 5.7 are not met, there was no need for the Panel to examine the requirements of the first sentence.”
This requirement is embodied in most treaties that incorporate the precautionary principle. See James Cameron and Juli Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment, 14 Boston College International and Comparative law Review 1 (1991), for a brief discussion of the treaties that incorporate the precautionary principle.
The EC Commission supports this view (COM(2000)1, supra note 307, at 17), referring to the following statement by the Appellate Body: “In some cases, the very existence of divergent views presented by qualified scientists who have investigated the particular issue at hand may indicate a state of scientific uncertainty.” Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 194.
It could perhaps be argued that the Appellate Body seemed to support this high evidentiary threshold for the use of the precautionary principle outside the framework of Article 5.7, to interpret the requirement of “sufficient scientific evidence” in Article 2.2 when it stated that panels should bear in mind that governments act with precaution when serious (irreversible) threats to human health are at stake. Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 124, discussed supra note 325.
For example, while the Bergen Ministerial Declaration on Sustainable Development in the ECE Region (Bergen, May 16, 1990) required the threat of “serious or irreversible” damage for the application of the precautionary principle (in Article 7), the Convention on the Ban of Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (Bamako, January 29, 1991, 30 I.L.M. 773) incorporates the precautionary principle (in Article 4(3)(f)) without requiring the threat of serious or irreparable harm. Similarly, the Cartagena Protocol on Biosafety (Cartagena, January 28, 2000), not yet in force pending ratification) refers only to “potential adverse effect.” Both the latter conventions specifically relate to threats to humans as well as the environment, which could explain the lower threshold. See further P. Sands, Principles of International Environmental law I—Frameworks, Standards and Implementation 210–211 (1995).
James Cameron and Juli Abouchar, The Status of the Precautionary Principle in International Law in The Precautionary Principle and International Law: The Challenge of Implementation, 44 (Freestone and Hey eds. 1996).
In its Communication on the Precautionary Principle, the EC Commission suggests that recourse to the precautionary principle should be allowed when it can be concluded from an evaluation of existing information that the desired level of protection could potentially be jeopardized by inaction. COM(2000)1, supra note 307, at ¶ 6.2.
Id. ¶ 4. The EC Commission recommends that the evaluation of existing evidence constitute as complete a scientific evaluation as possible, encompassing both an inventory of existing evidence and an identification of the possible gaps in knowledge as well as the degree of scientific uncertainty at each stage (Id. ¶ 6.1).
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 13.
Id. ¶ 26.
The Panel pointed out that the information provided by exporting countries was based on studies designed and carried out to comply with Japan’s varietal testing requirement. Thus they did not examine the appropriateness of the requirement itself. Report of the WTO Panel, Japan—Measures Affecting Agricultural Products, supra note 56, ¶ 8.56. [Footnote added by authors].
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 92.
Id. ¶ 93.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.57.
COM (2000) 1, supra note 307, at ¶ 6.3.5.
Id.
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 93.
The fact that the EC supports this interpretation of a “reasonable period of time” could explain why it has changed its approach from the one it followed in EC—Hormones (where it did not rely on Article 5.7 and thus did not classify its ban on hormone treated meat as a “provisional measure”—fearing that the temporary nature of such a measure would undermine its hormones regime). More recently, in statements claiming that it is now in compliance with the Appellate Body’s ruling in EC—Hormones, the EC averred that its continued ban on meat treated with the relevant hormones (except 17-beta oestradiol, for which it adopted a permanent ban based on conclusions from new studies in 2000) is a provisional measure in terms of Article 5.7, pending the results of studies to determine the effects of the relevant hormones on human health. ICTSD, Dispute Settlement, EC Move Fans the Flames under Beef Row, 21(4) Bridges Weekly Trade News Digest (2000). An additional seventeen studies were conducted regarding the toxicological aspects, potential abuse and control problems and environmental aspects of the six relevant hormones, on the basis of which the EU Scientific Committee on Veterinary Measures relating to Public Health confirmed its previous opinions concluding that no acceptable daily intake could be established for any of the hormones evaluated. See European Commission, Press Releases, Growth Promoting Hormones Pose Health Risk to Consumers, Confirms EU Scientific Committee, IP/02/604, April 24, 2002.
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 80, quoted supra Part II(B)(2)(b).
See contra Victor, supra David G. Victor, The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment After Five Years, 32 Journal of International Law and Politics (2000) note 154, at 883, where he argues that the requirement that measures be based on risk assessments could be interpreted as a requirement that a Member’s appropriate level of protection also be based on a risk assessment. He states, “Indeed, how can one logically assess the risks of SPS measures without assessing the risks associated with the level of protection as well? Levels and measures are two sides of the same coin.”
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.81.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 125.
This point is made by Atik, supra Jeffrey Atik, Symposium-Institutions for International Economic Integration: Science and International Regulatory Convergence, 17 Journal of International Law and Business (1997) note 210, at 737.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.169; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.166.
After five years of deliberation, at its meeting on March 15–16, 2000, the SPS Committee drew up a final draft of guidelines for the implementation of Article 5.5. These guidelines are not legally binding but are intended as aids to assist officials in applying Article 5.5 when deciding on appropriate levels of protection or adopting and implementing SPS measures. These guidelines were provisionally adopted at the following meeting of June 21–22, and Members having objections to the final adoption were asked to make these known by July 14. Since no objections were raised by that date, the guidelines are now adopted. Committee on Sanitary and Phytosanitary Measures, Guidelines to Further the Practical Implementation of Article 5.5, G/SPS/15, July 18, 2000. See WTO SPS Committee Completes Draft on Risk “Consistency” 45 Focus Newsletter Mar.–Apr. 2000 at 12; and ICTSD WTO Meets on SPS and Risk Management, 4(25) Bridges Weekly Trade News Digest, June 27, 2000.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 213.
Id. 214.
These elements were reiterated in the Report of the Appellate Body, Australia-Measures Affecting the Importation of Salmon, supra note 141, ¶ 140.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 215.
The Panel in EC—Hormones noted that both parties agreed that Article 5.5 covers situations which deal with the same substance or the same averse health effect. Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.179; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.176.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 217.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶¶ 8.189–8.190; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶¶ 8.186–8.187.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶¶ 8.211–8.212; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶¶ 8.208–8.209.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.223–8.224; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.221.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 146.
Id. 152.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.126.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.193–8.194; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶¶ 8.190–8.191.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶¶ 8.214–8.215; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶¶ 8.211–8.212.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.229; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.226.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶¶ 8.123–8.124.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, n. 106.
Id., ¶¶ 199–200. This issue is dealt with further infra Part II(F)(3)(b).
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.190; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.187.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 221 (footnote omitted). When comparing the levels of protection for hormones used for growth promotion purposes and hormones used for therapeutic and zootechnical purposes—a comparison not further pursued by the panels—the Appellate Body, referring to the differences in frequency and scale of the two treatments and the strict mode of administration of the latter treatment, found that the distinction in levels of protection “is not, in itself, ‘arbitrary or unjustifiable”’. See ¶¶ 222–225.
Report of the WTO Panel, Australia-Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.137.
As emphasised in Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 213.
In its guidelines on Article 5.5, the SPS Committee has noted that reasons for a significant difference in the appropriate level of protection for human health “may, in exceptional circumstances, include a risk which humans voluntarily accept. Such circumstances might arise with respect to traditional foods or some other products for which consumers knowingly accept a higher risk than that generally considered to be appropriate for food products.” Committee on Sanitary and Phytosanitary Measures, Guidelines to Further the Practical Implementation of Article 5.5, G/SPS/15, July 18, 2000, ¶ A.8.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 240.
Id. 215.
Report of the Appellate Body, United States-Standards for Reformulated and Conventional Gasoline, supra note 320, ¶ 22.
Report of the Appellate Body, Japan-Taxes on Alcoholic Beverages, supra note 320.
In the Report of the Appellate Body, United States-Standards for Reformulated and Conventional Gasoline, supra note 320, ¶ 22, the Appellate Body had found that “arbitrary discrimination”, “unjustifiable discrimination” and “disguised restriction on international trade” in Article XX impart meaning to each other and that the fundamental theme is the purpose and object of avoiding abuse or illegitimate use of the exceptions in Article XX. Thus the same considerations used to determine if a measure amounts to arbitrary or unjustifiable discrimination can be used to decide if the measure is a disguised restriction on international trade. The Appellate Body in EC—Hormones found that the structural differences between the chapeau of Article XX of GATT 1994 and Article 5.5 of the SPS Agreement are too great for this analogous interpretation to be made. In its argument, the EC pointed out that the three elements of the chapeau of Article XX of GATT 1994 are in the alternative, whereas those in Article 5.5 of the SPS Agreement are cumulative. See Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 239. In the Report of the Appellate Body, Japan—Taxes on Alcoholic Beverages, supra note 320, it was held that a large difference in the taxation applied to imports and that applied to domestic products could be sufficient to prove that it was applied so as to afford protection to domestic products, contrary to Article III of GATT 1994. The Appellate Body in EC—Hormones, ¶ 239, distinguished the reasoning in the Report of the Appellate Body, Japan—Taxes on Alcoholic Beverages, regarding tax differentials from the different question in this case regarding different levels of health protection. As tax is always expressed quantitatively and affects the competitiveness of imports, a tax differential necessarily protects domestic products. There is no such link between differences in levels of health protection and the issue of discrimination or a disguised restriction on international trade. The extent of the difference is only one factor among others to be taken into account in determining whether there is discrimination or a disguised restriction on trade. Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, at n.251. Regard must be had to the circumstances of each case.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 240.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.151.
Id. 8.152.
Id. 8.159.
Id. 8.149.
Id. 8.150.
Id. 8.151.
Report of the Appellate Body, Australia-Measures Affecting the Importation of Salmon, supra note 141, ¶ 162.
Id. ¶ 164.
Id. ¶ 166.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶¶ 8.153–8.158.
Id. ¶ 8.160.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 177.
Id. ¶ 167–169. The Panel noted that the substantial distinctions in the levels of protection applied by Australia to salmon products and to herring and finfish were expressed in two different implementing measures, namely import prohibition and import tolerance. It found that as the two products were considered comparable (as “different situations” under Article 5.5) and the risk arising therefrom was the same, the different implementing measures suggested that Australia was effectively discriminating between salmon products on the one hand and herring and finfish on the other. The Panel viewed “disguised restriction on international trade” under Article 5.5 as including restrictions amounting to arbitrary or unjustifiable discrimination between products. Australia contended that the Panel’s concept of discrimination under Article 5.5 was wrong, as discrimination here refers to discrimination between countries.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶ 8.244; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶ 8.241.
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶¶ 8.245–8.246; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶¶ 8.242–8.243.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 245.
Id. ¶ 246.
Id. ¶ 212.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 212.
Id. ¶ 238.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 95.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 194.
Id.
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 95.
Goh and Ziegler, supra Gavin Goh and Andreas R. Ziegler, A Real World Where People Live and Work and Die: Australian SPS Measures after the WTO Appellate Body’s Decision in the Hormones Case, 35 Journal Ofworld Trade (1998) note 87, at 280.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 56, ¶ 8.171. The Appellate Body noted the panel’s “factual finding” in this respect and considered, therefore, that the first element was met. Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 195.
Report of the WTO Compliance Panel, Australia—Measures Affecting the Importation of Salmon, Recourse to Article 21.5 by Canada, supra note 65, ¶¶ 7.146–7.149.
Report of the WTO Panel, Japan—Measures Affecting Agricultural Products, supra note 57, ¶ 8.78
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.173.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 199.
Id. ¶ 200.
Id. ¶ 201.
Id. ¶ 203.
Id.
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 197.
Id. ¶¶ 205–207.
Report of the WTO Panel, Japan—Measures Affecting Agricultural Products, supra note 57, ¶ 8.81.
Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.182; Report of the WTO Compliance Panel, Australia—Measures Affecting the Importation of Salmon, Recourse to Article 21.5 by Canada, supra note 65, ¶¶ 7.150–7.153; Report of the WTO Panel, Japan—Measures Affecting Agricultural Products, supra note 56, ¶¶ 8.79, 8.89, 8.95–8.96 and 8.103–8.104.
In other words, once the efficacy of quarantine treatment for a product has been shown and the product has been approved, no further testing would be required for any other varieties of the product. Report of the WTO Panel, Japan—Measures Affecting Agricultural Products, supra note 57, ¶ 8.73.
This would require that once a particular variety of a product is approved, if it can be demonstrated that the sorption level of an additional variety is not higher than that of the initial variety, the same treatment can be applied to both varieties without further testing or approval requirements. If the sorption level of the additional variety is demonstrated to be higher, further testing could be required. Id. ¶ 8.96.
With regard to the alternative of testing by product, the Panel noted that market access for additional varieties would be automatic as no additional testing would be required. Id. ¶ 8.79. Regarding the alternative of determination of sorption levels, the Panel noted that if the determination showed no higher sorption level for other varieties, no additional testing would be necessary, thus resulting in market access being obtained significantly more easily. If a higher sorption level was shown, additional testing could be required, in which case market access would be obtained in circumstances no more difficult than under the current regime. Id. ¶ 8.96.
As the Panel in this case incorrectly viewed the requirement of heat-treatment for salmon products as the measure at issue (as opposed to the ban on fresh, chilled or frozen salmon), it proceeded to discuss how heat treatment changes the nature of the product and limits its use since heat-treated salmon cannot be consumed as fresh salmon. In contrast, eviscerated, headless and filleted salmon can be consumed as fresh or cooked salmon. Thus the latter requirement is significantly less trade restrictive. Report of the WTO Panel, Australia—Measures Affecting the Importation of Salmon, supra note 57, ¶ 8.182.
The Appellate Body overturned the Panel’s finding with regard to Article 5.6 since the Panel had made its finding on the wrong premise—that the SPS measure at issue was the heat-treatment requirement. There were insufficient factual findings for the Appellate Body to reach a conclusion on whether the actual SPS measure at issue (the import prohibition) was consistent with Article 5.6. Report of the Appellate Body, Australia Measures Affecting the Importation of Salmon, supra note 141, ¶¶ 213 and 241–242.
Report of the WTO Compliance Panel, Australia—Measures Affecting the Importation of Salmon, Recourse to Article 21.5 by Canada, supra note 65, ¶ 7.150–7.151.
For example, the prevalence of particular pests or diseases may differ, as may climatic conditions that may be more or less conducive to the proliferation of pests or the spread of diseases. In addition it has been noted that developing countries may face rather different developmental and technological conditions which also result in differences in SPS measures. See Simonetta Zarrilli, WTO Sanitary and Phytosanitary Agreement: Issues for Developing Countries, T.R.A.D.E. Working Paper 3, 17, South Centre (1999).
Digby Gascoine, Harmonisation, Mutual Recognition and Equivalence—How and What Is Attainable? Paper presented at the Conference on International Food Trade Beyond 2000: Science-Based Decisions, Harmonization, Equivalence and Mutual Recognition, Melbourne Australia, October 11–15, 1999, at 6.
This fact was emphasized in discussions on equivalence in the SPS Committee. Such acceptance occurs on a technical level and is not reflected in formal bilateral agreements. See Committee on Sanitary and Phytosanitary Measures, Equivalence—Note by the Secretariat, G/SPS/W/111, July 4, 2001. An example of this is the determination of the United States Department of Agriculture on December 14, 1999, that 32 of the 36 countries exporting meat and poultry to the United States had an inspection system equivalent to that of the U.S. See USDA, Office of the Inspector General, Food Safety and Inspection Service, Imported Meat and Poultry Inspection Process Phase 1, Rep. No. 24099-3-Hy (2000).
An example of a mutual recognition agreement is that signed by the EU and Argentina in June 1996, where they agreed to full mutual recognition of each other’s sanitary and phytosanitary standards. See Argentina and EU Sign SPS Agreement, 351 Animal Pharm 14, 14 (1996).
See Gascoine, supra Digby Gascoine, Harmonisation, Mutual Recognition and Equivalence—How and What Is Attainable? Paper presented at the Conference on International Food Trade Beyond 2000: Science-Based Decisions, Harmonization, Equivalence and Mutual Recognition, Melbourne Australia, October 11–15, 1999 note 449, at 5.
See Victor, supra David G. Victor, The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment After Five Years, 32 Journal of International Law and Politics (2000) note 154, at 877–878, where the author notes, “Assuming that exporters have an interest in identifying the least trade restrictive measure, this “equivalence” requirement could automatically ensure that SPS rules are not more discriminatory than necessary (...)”. It may perhaps be more correct to say that the result would be rules that are least trade-restrictive, since SPS measures need not be discriminatory at all to fall under the SPS Agreement.
This may be the case either where no international standards exist in the specific area or where the existing international standards are inappropriate since they do not achieve the level of protection chosen by the importing Member. In these cases the principle of equivalence could nevertheless result in open markets. It should be noted that the SPS Committee has emphasized that equivalence does not replace the need for the development and use of international standards. Committee on Sanitary and Phytosanitary Measures, Equivalence—Note by the Secretariat, G/SPS/W/111, July 4, 2001, ¶ 3. See also Victor, supra note 154, at 878, where he refers to the similar concept of “mutual recognition” in the context of the EC single market which “created a strong market-opening dynamic by allowing legal production from any European country into any other European national market.” In this regard he refers to Linda Horton, Mutual Recognition Agreements and Harmonization, 29 Seton Hall Law Review 692, 708–729 (1998).
In the meetings of Members in the SPS Committee regarding equivalence, it was stressed that the purpose of equivalence is to facilitate trade and that the recognition of equivalence should enhance developing country access to export markets, including those in developed countries, by allowing them to meet the importer’s chosen level of protection by means of alternative measures. See Committee on Sanitary and Phytosanitary Measures, Equivalence: Consideration of Article 4 of the SPS Agreement: Summary of Informal Discussions on Equivalence. Second Report by the Chairman, G/L/445, March 21, 2001, ¶ 7.
Committee on Sanitary and Phytosanitary Measures, Equivalence—Note by the Secretariat, G/SPS/W/111, July 4, 2001, ¶ 3.
Johanson and Bryant have noted that, “[i]n practice, the definition of equivalency and criteria for recognizing equivalent practices is likely to emerge from bilateral consultations, regional agreements, and the exchange of views encouraged by the Sanitary and Phytosanitary Committee... ”. David S. Johanson and William L. Bryant, Eliminating Phytosanitary Trade Barriers: The Effects of the Uruguay Round Agreements on California Agricultural Exports, 6 San Joaquin Agricultural Law Review 1, 6 (1996).
Argentina has suggested that all formal equivalence agreements should contain a section establishing general principles, aims and requirements for the recognition of equivalence, and deal with specific products in annexes to the agreement. See Committee on Sanitary and Phytosanitary Measures, Equivalence—Article 4 of the Agreement on the Application of Sanitary and Phytosanitary Measures, G/SPS/GEN/268, August 15, 2001. See also Zarrilli and Musselli, supra note 28, at 8.
Committee on Sanitary and Phytosanitary Measures, Equivalence: Consideration of Article 4 of the SPS Agreement: Summary of Informal Discussions on Equivalence. Second Report by the Chairman, G/L/445, March 21, 2001, ¶ 4.
Committee on Sanitary and Phytosanitary Measures, Equivalence—Note by the Secretariat, G/SPS/W/111, July 4, 2001, ¶ 6; Committee on Sanitary and Phytosanitary Measures, Equivalence: Consideration of Article 4 of the SPS Agreement: Summary of Informal Discussions on Equivalence. Second Report by the Chairman, G/L/445, March 21, 2001.
Committee on Sanitary and Phytosanitary Measures, Guidelines to Further the Practical Implementation of Article 5.5, G/SPS/15, July 18, 2000. These non-binding guidelines relate to the objective of consistency in the choice of appropriate level of protection and are discussed supra Part II(F)(2).
Committee on Sanitary and Phytosanitary Measures, Equivalence—Note by the Secretariat, G/SPS/W/111, July 4, 2001, ¶ 11.
Committee on Sanitary and Phytosanitary Measures, Guidelines to Further the Practical Implementation of Article 5.5, G/SPS/15, July 18, 2000, ¶ A.1.
Id. ¶ B
Report of the Appellate Body, Australia—Measures Affecting the Importation of Salmon, supra note 141, ¶ 205.
Committee on Sanitary and Phytosanitary Measures, Equivalence—Note by the Secretariat, G/SPS/W/111, July 4, 2001, ¶ 19.
This obligation is contained in Annex B.3(d) and was confirmed by the SPS Committee in its meeting of March 13, 2001. Committee on Sanitary and Phytosanitary Measures, Equivalence: Consideration of Article 4 of the SPS Agreement: Summary of Informal Discussions on Equivalence. Second Report by the Chairman, G/L/445, March 21, 2001, ¶ 11(ii).
Id. ¶ 11(iii).
Committee on Sanitary and Phytosanitary Measures, Proposed Format for the Notification of Agreements of Equivalence, G/SPS/W/114/Rev.1, May 21, 2002.
Committee on Sanitary and Phytosanitary Measures, Notification of Determination of the Recognition of Equivalence of Sanitary or Phytosanitary Measures, Decision by the Committee. Addendum, G/SPS/7/Rev.2/Add.1, July 25, 2002.
Committee on Sanitary and Phytosanitary Measures, An Example of Equivalence: Statement by Australia at the Meeting of 14–15 March, 2001, G/SPS/GEN/243, April 9, 2001. Other examples of ad hoc recognition of equivalence were provided by New Zealand. See Committee on Sanitary and Phytosanitary Measures, Experience in Recognizing Equivalence of Phytosanitary Measures: Submission by New Zealand, G/SPS/GEN/232, February 28, 2001.
For examples of the recognition of equivalence in the EU and NAFTA and the mutual recognition agreement between Australia and New Zealand (which has since been replaced by a joint food authority, the ANZFA), see Zarrilli, supra Simonetta Zarrilli, WTO Sanitary and Phytosanitary Agreement: Issues for Developing Countries, T.R.A.D.E. Working Paper 3, 17, South Centre (1999) note 448, at 17–18. The recognition of equivalence by the United States of the new Australian meat inspection system is discussed in J.J. Kastner and R.K. Pawsey, Harmonising Sanitary Measures and Resolving Trade Disputes through the WTO-SPS Framework. Part II: A Case Study of the U.S.–Australia Determination of Equivalence in Meat Inspection, 13 Food Control 57 (2002).
Agreement between the European Community and the Government of Canada on Sanitary Measures to Protect Public and Animal Health in respect of Trade in Live Animals and Animal Products, OJ L071, 3, 1999/03/18. Similar agreements have been concluded with the United States, New Zealand and the Czech Republic.
World Trade Organization, Equivalence: Consideration of Article 4 of the SPS Agreement: Summary of Informal Discussions on Equivalence. Second Report by the Chairman, G/L/445, March 21, 2001, ¶ 5.
See Committee on Sanitary and Phytosanitary Measures, Equivalence: Submission from the United States, G/SPS/GEN/212, November 7, 2000, ¶ 16.
Committee on Sanitary and Phytosanitary Measures, Equivalence—Note by the Secretariat, G/SPS/W/111, July 4, 2001, ¶ 5. See also Committee on Sanitary and Phytosanitary Measures, Equivalence: Submission from the United States, G/SPS/GEN/212, November 7, 2000, ¶ 20.
Committee on Sanitary and Phytosanitary Measures, Equivalence—Note by the Secretariat, G/SPS/W/111, July 4, 2001, ¶ 6.
Committee on Sanitary and Phytosanitary Measures, Review of the Operation and Implementation of the Agreement on the Application of Sanitary and Phytosanitary Measures: Report of the Committee G/SPS/12, March 11, 1999, ¶ 20.
Gretchen Stanton, A Review of the Operation of the SPS Agreement, Paper presented at the Conference on Agriculture and the New Trade Agenda in the WTO 2000 Negotiations, Geneva, October 1–2, 2000, at 5.
It has been noted that in the absence of guidelines on the methodology for judging equivalence, specific bilateral issues are more likely to arise and the methodological concerns of developing countries are more likely to be neglected. Zarrilli and Musselli, supra Simonetta Zarrilli and Irene Musselli, The SPS Agreement and the Developing Countries, World Bank (2002) note 28, at 8.
One of the recommendations resulting from an FAO conference in 1999, under the heading “Food trade and implementation of WTO Agreements,” was the recognition of the urgency of the development of Codex guidelines on the judgment of equivalence, initially in a generic sense and subsequently in relation to specific topics such as equivalence of inspection and certification systems and food hygiene measures. See Food and Agriculture Organization, Report of the Conference on International Food Trade Beyond 2000: Science-Based Decisions, Harmonization, Equivalence and Mutual Recognition, Melbourne, Australia, October 11–15, 1999, at Appendix II A.2. In addition, in discussions on equivalence in the SPS Committee, Members noted with regard to the concern about the time and resources needed to conclude equivalence agreements, that international guidelines for systemic application of the principle would be useful. The progress made by the CAC in this regard was noted. See Committee on Sanitary and Phytosanitary Measures, Equivalence: Consideration of Article 4 of the SPS Agreement: Summary of Informal Discussions on Equivalence. Second Report by the Chairman, G/L/445, March 21, 2001, ¶ 7.
The General Council requested the SPS Committee “to examine the concerns of developing countries regarding the equivalence of SPS measures and to come up with concrete options as to howto deal with them.” See General Council, Minutes of Meeting: Special Session on Implementation, WT/GC/M/59, October 18, 2000, ¶ 12.
The informal meetings on equivalence were held on November 7, 2000, March 13, 2001 and July 9, 2001. The formal meetings where equivalence was considered were those of November 8–9, 2000 and July 10–11, 2001. In addition, two Special Meetings on equivalence were held on September 18–19, and October 24, 2001.
The discussions on equivalence are summarized in Committee on Sanitary and Phytosanitary Measures, Equivalence: Consideration of Article 4 of the SPS Agreement: Summary of Informal Discussions on Equivalence. Second Report by the Chairman, G/L/445, March 21, 2001, ¶ 7.
Committee on Sanitary and Phytosanitary Measures, Decision on the Implementation of Article 4 of the Agreement on the Application of Sanitary and Phytosanitary Measures, G/SPS/19, October 24, 2001.
The Ministerial Conference at Doha took note of this Decision. Ministerial Conference, Implementation-Related Issues and Concerns, Decision of 14 November 2001, WT/MIN(01)/17, November 20, 2001, ¶ 3.3.
As mentioned above, the SPS Committee has since adopted a notification procedure for equivalence agreements or determinations. Committee on Sanitary and Phytosanitary Measures, Notification of Determination of the Recognition of Equivalence of Sanitary or Phytosanitary Measures, Decision by the Committee. Addendum, G/SPS/7/Rev.2/Add.1, July 25, 2002.
Committee on Sanitary and Phytosanitary Measures, Equivalence—Programme for Further Work, Decision by the Committee, G/SPS/20. March 21, 2002.
Committee on Sanitary and Phytosanitary Measures, Decision on the Implementation of Article 4 of the Agreement on the Application of Sanitary and Phytosanitary Measures, Revision, G/SPS/19/Rev.2, July 23, 2004.
For example, in 1995 Ecuador banned the importation of fruit hosts of the oriental fruit fly from the United States after a few oriental fruit flies had been detected in Southern California. This example was noted in Johanson and Bryant, supra David S. Johanson and William L. Bryant, Eliminating Phytosanitary Trade Barriers: The Effects of the Uruguay Round Agreements on California Agricultural Exports, 6 San Joaquin Agricultural Law Review 1, 6 (1996) note 458.
OIE International Committee, Establishment of a List of Foot and Mouth Disease (FMD) Free Countries Where Vaccination is not Practiced, Resolution XI and Procedure for the Recognition of the Foot and Mouth Disease Status of Member Countries, Resolution XII, 63rd General Session, (1995)
International Plant Protection Convention, Requirements for the Establishment of Pest Free Areas, ISPM 4, FAO (1996).
International Plant Protection Convention, Determination of Pest Status in an Area, ISPM 8, FAO (1998).
International Plant Protection Convention, Requirements for the Establishment of Pest Free Places of Production and Pest Free Production Sites, ISPM 10, FAO (1999).
Committee on Sanitary and Phytosanitary Measures, Articles 6(2), 6(3) and Annex A(3)(B): Recognition of the Concept of Pest-or Disease-Free Areas as an International Standard, Guideline or Recommendation: Submission by South Africa, G/SPS/GEN/139, November 2, 1999.
The OIE representative indicated that in May 2004, the OIE would consider for adoption simplified definitions and procedures for regionalization, which would provide Members with recommendations on regionalization for a broad range of diseases of terrestrial animals. Similar work would be undertaken with regard to aquatic animals butwas delayed due to the complexity of the issue. The concept of regionalization is part of existing OIE recommendations for how countries could achieve, maintain, and regain pest-free status for most major diseases. The IPPC representative described the ongoing efforts to develop standards related to the designation of pest-free areas and areas of low pest prevalence. The relevant existing standards are ISPM 4 (containing detailed requirements for the establishment of pest-free areas) and ISPM 10 (containing information on pest-free areas of production) and the draft standard on requirements for the establishment, maintenance and verification of areas of low pest prevalence. However, there is as yet no IPPC procedure for officially recognizing pest-free areas. See Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting Held on 17–18 March 2004, Note by the Secretariat, G/SPS/R/33, May 7, 2004, ¶¶ 109–110.
Committee on Sanitary and Phytosanitary Measures, Draft Decision on the Implementation of Article 6 of the Agreement on the Application of Sanitary and Phytosanitary Measures, Proposal by Chile, Revision, G/SPS/W/140/Rev.1, October 30, 2003.
Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting Held on 17-18 March 2004, Note by the Secretariat, G/SPS/R/33, May 7, 2004, ¶¶ 115.
Report of the Appellate Body, Japan-Measures Affecting Agricultural Products, supra note 97, ¶¶ 105–106.
Committee on Sanitary and Phytosanitary Measures, Recommended Notification Procedures for Implementing the Transparency Obligations of the SPS Agreement (Article 7), G/SPS/7/Rev.2, April 2, 2002, ¶ 6.
Report of the WTO Panel, Japan-Measures Affecting the Importation of Apples, supra note 57, ¶ 8.314. After comparing the two existing measures (which predated the SPS Agreement) with the two new measures, the Panel did not consider that the changes in one measure could have a significant effect on the trade of other Members, and was unable to determine if the changes to the second measure were strictly editorial or introduced substantial changes. It therefore found that the US had failed to make a prima facie case of violation of Article 7 SPS.
Committee on Sanitary and Phytosanitary Measures, Summary of the Special Meeting of the SPS Committee on the Transparency Provisions of the SPS Agreement, 9 November 1999, Note by the Secretariat, G/SPS/R/16, January 20, 2000.
Published inNovember 2000, available at:www.wto.org/english/tratop_e/sps_e/spshand e.pdf. The guidelines are non-binding and are not intended as a legal interpretation of the relevant provisions of the SPS Agreement.
Committee on Sanitary and Phytosanitary Measures, Recommended Notification Procedures, G/SPS/7/Rev.1, November 26, 1999.
Committee on Sanitary and Phytosanitary Measures, Recommended Notification Procedures for Implementing the Transparency Obligations of the SPS Agreement (Article 7), G/SPS/7/Rev.2, April 2, 2002. This revision was adopted at the SPS Committee meeting of meeting of March 19–21, 2002.
Committee on Sanitary and Phytosanitary Measures, Agreement on the Application of Sanitary and Phytosanitary Measures. Proposal by Brazil, G/SPS/W/108, June 22, 2001.
Brazil’s proposal followed a dispute with Canada in February 2001 due to a ban by Canada of Brazilian beef imports due to BSE concerns. The ban was based on a previously notified regulation and was therefore not notified to the WTO although it was applied to Brazil for the first time. ICTSD, SPS Committee Resolves Implementation Issue, Discusses Biotech, 6(11) Bridges weekly trade digest March 26, 2002.
Report of the Appellate Body, Japan-Measures Affecting Agricultural Products, supra note 100, ¶ 137.
These numbers include the 25 Member States of the European Union, together with the European Communities, in respect of which a single Notification Authority, the European Commission Directorate General for Health and Consumer Protection, is responsible for notifications. Separate Enquiry Points have been notified for the European Communities and each of its Member States. See Committee on Sanitary and Phytosanitary Measures, Implementation of the Transparency Obligations as of 18 June 2004, Note by the Secretariat, Revision, G/SPS/GEN/27/Rev.13, June 21, 2004.
Committee on Sanitary and Phytosanitary Measures, Special Meeting of the SPS Committee on the Operation of Enquiry Points held on 31 October 2003, G/SPS/R/32, February 6, 2004.
Committee on Sanitary and Phytosanitary Measures,Australia’s Import Restrictions on Durian: Statement by Thailand at the Meeting of 8–9 November, 2000, G/SPS/GEN/217, November 22, 2000, ¶ 3.1.
Committee on Sanitary and Phytosanitary Measures, Australia’s Import Restrictions on Durian. Response from Australia to Thailand’s Statement at the Meeting of 8–9 November 2000, G/SPS/GEN/218, November 22, 2000 ¶¶ 6–7.
However, at a recent meeting of the SPS Committee in June 2002, Thailand reiterated its concern regarding the cutting requirement and the excessive sample size. Australia indicated that it was willing to consider alternatives to destructive sampling if their efficacy was shown. Joint trials indicated that x-ray technology was promising and Australia agreed to keep the SPS Committee informed in this regard. See Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting Held on 25–26 June 2002, Note by the Secretariat, G/SPS/R/27, August 2, 2002, ¶¶ 133–134.
Criteria used in decisions to grant observer status are: the mandate, scope and area ofwork of the applicant organization and reciprocity with regard to the grant of observer status to the WTO. Committee on Sanitary and Phytosanitary Measures, Criteria for Observer Status, G/SPS/GEN/229, February 23, 2001.
The Secretariat provides a summary of all specific trade-related concerns raised in the SPS Committee, together with an indication of the resolution of the issue, if notified. Committee on Sanitary and Phytosanitary Measures, Specific Trade Concerns: Note by the Secretariat. Revision, G/SPS/GEN/204/Rev.2, February 15, 2002.
Micheal Friis Jensen, Reviewing The SPS Agreement: A Developing Country Perspective, Working Paper 02.3, Centre for Development Research (2002), at 18, table 1.
It is however, significant that almost all developing country complaints come from the developing countries that are part of the Cairns group of agricultural exporting Members and from India andMexico, while African and least-developed country complaints are almost non-existent. Id.
Committee on Sanitary and Phytosanitary Measures, Procedure to Monitor the Process of International Harmonization: Decision of the Committee, G/SPS/11, October 22, 1997.
Committee on Sanitary and Phytosanitary Measures, Decision to Extend the Provisional Procedure to Monitor the Process of International Harmonization: Decision of the Committee of 8 July, 1999, G/SPS/14, July 12, 1999; Committee on Sanitary and Phytosanitary Measures, Decision to Extend the Provisional Procedure to Monitor the Process of International Harmonization, G/SPS/17, July 19, 2001.
Procedure to Monitor the Process of International Harmonization, supra note 546, ¶ 10.
Committee on Sanitary and Phytosanitary Measures, Procedure to Review the Operation and Implementation of the Agreement, G/SPS/10, October 21, 1997.
Committee on Sanitary and Phytosanitary Measures, Review of the Operation and Implementation of the Agreement on the Application of Sanitary and Phytosanitary Measures: Report of the Committee, G/SPS/12, March 11, 1999.
Ministerial Conference, Implementation-Related Issues and Concerns, Decision of 14 November 2001, WT/MIN(01)/17, November 20, 2001 ¶ 3.4.
Committee on Sanitary and Phytosanitary Measures, Proposed Process for the Review of the Operation and Implementation of the Agreement, Note by the Secretariat, G/SPS/W/147, June 10, 2004.
WorldTrade Organization, Report (2003) on the Activities of the Committee on Sanitary and Phytosanitary Measures, G/L/661, November 18, 2003, ¶ 6. This report also notes that in the period January 1, 2003 to October 1, 2003, over 650 notifications were received.
Committee on Sanitary and Phytosanitary Measures, Notification of Determination of the Recognition of Equivalence of Sanitary or Phytosanitary Measures, Decision by the Committee. Addendum, G/SPS/7/Rev.2/Add.1, July 25, 2002.
WorldTrade Organization, Report (2003) on the Activities of the Committee on Sanitary and Phytosanitary Measures, G/L/661, November 18, 2003, ¶ 11.
Committee on Sanitary and Phytosanitary Measures, Questionnaire on Technical Assistance: Note by the Secretariat, G/SPS/W/101, July 23, 1999.
Committee on Sanitary and Phytosanitary Measures, Questionnaire on Technical Assistance, G/SPS/W/113, October 15, 2001.
WorldTrade Organization, Report (2003) on the Activities of the Committee on Sanitary and Phytosanitary Measures, G/L/661, November 18, 2003, ¶ 10.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 97.
Report of the Appellate Body, United States—Measures Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R (1997), 14–16.
In EC—Hormones, supra note 70, ¶¶ 102–105, the Appellate Body dealt with the three grounds for the Panel’s finding in turn. First, it rejected the Panel’s conclusion that the fact that many SPS provisions are worded “Members shall ensure that... ” has any logical connection to the allocation of the evidentiary burden. Second, contrary to the Panel’s ruling, it held that Article 5.8 (pursuant to which a Member may ask for an explanation of an SPS measure from another Member and the latter is obliged to comply with the request) does not address burden of proof issues. Instead Article 5.8 is most likely to be used in pre-dispute situations in order to enable a Member to acquire information that it could later use to meet its burden of proof. Third, the Appellate Body dismissed as a non-sequitur the reverse inference made by the Panel from Article 3.2, that if a measure does not conform to international standards, the Member imposing the measure bears the burden of proving its consistency with the SPS Agreement in case of a challenge.
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶¶ 132–139.
Report of WTO the Panel, Japan—Measures Affecting Agricultural Products, supra note 57, ¶ 8.45.
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 38.
Id. ¶ 137.
This was due to the fact that Japan did not present sufficient scientific evidence that the last stage of the transmission pathway of fire blight from the infected imported apple to the host plant, was likely to be completed. Report of the WTO Panel, Japan—Measures Affecting the Importation of Apples, supra note 57, ¶ 8.168.
Report of the Appellate Body, Japan—Measures Affecting the Importation of Apples, supra note 112, ¶ 157 (footnotes omitted).
This was argued by Japan but rejected by the Appellate Body. Id., ¶ 159.
Report of the Appellate Body, Japan—Measures Affecting the Importation of Apples, supra note 112, ¶ 160. In footnote, the Appellate Body referred to the Appellate Body Report, p. 14, DSR 1997:I, 323, at 335
Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 53, ¶¶ 8.54 and 8.87-7; Report of the WTO Panel, EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, supra note 53, ¶¶ 8.57 and 8.89–8.90.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 104.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 170.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 147.
According to Atik, supra at 757, scientists are more likely to recognize a scientific justification for a measure where the scientific assertion is accepted in the scientific community to which they belong. See Wirth for an interesting discussion on the problematic nature of adjudication in respect of scientific controversies. Wirth, supra David A. Wirth, The Role of Science in the Uruguay Round and NAFTA Trade Disciplines, 27 Cornell International Law Journal 817, 824 (1994) note 23, at 841–845.
Contra see Joost Pauwelyn, The Use of Experts in WTO Dispute Settlement, 51 International and Comparative Law Quarterly 325, 327–329 (2002) and Theofanis Christoforou, Settlement of Science-Based Trade Disputes in the WTO: A Critical Review of the Developing Case Law in the Face of Scientific Uncertainty, New York University Environmental Law Journal 622 (2000).
Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶¶ 120–131.
Report of the WTO Panel, Japan—Measures Affecting Agricultural Products, supra note 57, ¶ 8.74.
Id., ¶ 158.
Id..
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 133.
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, Annex 1A to t he Marrakesh Agreement, reprinted in The Results of the Uruguay Round, supra note 24, at 168–196, (“Anti-Dumping Agreement”) at Article 17.6(i).
This refusal to extend the standard of review laid down in the Anti-Dumping Agreement to other WTO agreements was affirmed in the Report of the Appellate Body, United States—Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R (2000), ¶ 51, where the Appellate Body held that Article 11 of the DSU sets the standard of review for disputes under the Agreement on Subsidies and Countervailing Measures.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70,¶ 114. Further, this standard applies only to the factual assessment of the matter and not to the legal analysis applied thereto.
Id. ¶115.
Id. ¶ 116.
The utility of this “objective assessment” standard has been criticized on the grounds that it does not clarify the required standard of review. See Axel G. Desmedt, Hormones: “Objective Assessment” and (or as) Standard of Review, 1 Journal of International Economic Law 695, 698 (1998).
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 133.
The Appellate Body in EC—Hormones agreed with the EC that the Panel had misquoted the evidence of an EC expert, Dr. Lucien. Further, in response to the EC’s contention that the panel had distorted the views of Dr. Andr’e by stating that they supported those of the other panel experts when, in fact, they rather supported the views of EC scientists, the Appellate Body stated, “Whether or not the views of Dr. Andr’e support statements made by the other Panel experts or the opinions expressed by the EC scientists may be an issue of fact; it does require some technical expertise to deal with it. However, even if the Panel has interpreted the views of Dr. Andr’e incorrectly, we see no reason, and no reason was advanced, to consider this mistake as a deliberate disregard or distortion of evidence.” Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶¶ 138–139. Provided the mistake is not deliberate, it would appear that the Appellate Body grants some leeway to the panel based on its lack of “technical expertise”.
This trend continued in both Australia-Salmon and Japan-Agricultural Products, where errors of the Panel in the appreciation of evidence were not characterized by the Appellate Body as failures to make an objective assessment of the facts, due to lack of an egregious nature. See Report of the Appellate Body, Australia-Measures Affecting the Importation of Salmon, supra note 141, ¶ 266, and Report of the Appellate Body, Japan—Measures Affecting Agricultural Products, supra note 97, ¶ 142.
Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 144.
Report of the Appellate Body, Japan—Measures Affecting the Importation of Apples, supra note 112, ¶ 283.
Korea-Measures Concerning the Shelf-Life of Products (Complaint by the United States), WT/DS5; Korea-Measures Concerning Bottled Water (Complaint by Canada), WT/DS20; Australia-Measures Affecting the Importation of Salmonids (Complaint by the United States), WT/DS21; India-Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products (Complaint by the European Communities), WT/DS96; Turkey-Certain Import Procedures for Fresh Fruit (Complaint by Ecuador), WT/DS237; and Mexico-Certain Measures Preventing the Importation of Black Beans from Nicaragua (Complaint by Nicaragua), WT/DS284.
These eight disputes are the separate complaints by the United States and Canada in EC—Hormones (WT/DS48, WT/DS26) that were heard by separate panels, composed of the same panelists, which issued separate but largely identical reports; the complaint by the United States in Japan-Agricultural Products II (WT/DS76); the complaint by Canada in Australia-Salmon (WT/DS18); the complaint by the United States in Japan-Apples, (WT/DS245), and the separate complaints by the United States, Canada and Argentina in EC-Biotech (WT/DS291, WT/DS292, WT/DS293) which is being heard by a single panel. This count does not include the compliance disputes under Article 21.5 DSU in Australia-Salmon (WT/DS18) and Japan-Apples (WT/DS245).
The dispute EC-Asbestos (WT/DS135) also proceeded to adjudication by a panel and the Appellate Body, but the claims under the SPS Agreement were not pursued in the adjudication process.
See the WTO Panel Reports in EC—Hormones, Australia-Salmon, Japan-Agricultural Products, and Japan-Apples. The findings in these cases have been discussed in previous sections where relevant.
See the Appellate Body Reports in EC—Hormones, Australia-Salmon, Japan-Agricultural Products, and Japan-Apples. The findings in these cases have been discussed in previous sections where relevant.
Croatia—Measure Affecting Imports of Live Animals and Meat Products (Complaint by Hungary), WT/DS297; European Communities—Measures Affecting the Approval and Marketing of Biotech Products (Complaint by Argentina), WT/DS293; Mexico—Certain Measures Preventing the Importation of Black Beans from Nicaragua (Complaint by Nicaragua), WT/DS284; Australia—Certain Measures Affecting the Importation of Fresh Pineapple (Complaint by the Philippines), WT/DS271; Australia—Certain Measures Affecting the Importation of Fresh Fruit and Vegetables (Complaint by the Philippines), WT/DS270; Turkey—Import Ban on Pet Food from Hungary (Complaint by Hungary), WT/DS256; Turkey—Certain Import Procedures for Fresh Fruit (Complaint by Ecuador), WT/DS237; Egypt—Import Prohibition on Canned Tuna with Soybean Oil (Complaint by Thailand), WT/DS205; and EC—Restrictions on Certain Import Duties on Rice (Complaint by India), WT/DS134.
Croatia—Measures Affecting Imports of Live Animals and Meat Products (Complaint by Hungary), WT/DS297; Mexico—Certain Measures Preventing the Importation of Black Beans from Nicaragua (Complaint by Nicaragua), WT/DS284; India—Import Restrictions Maintained Under the Export and Import Policy 2002–2007 (Complaint by the European Communities), WT/DS279; Turkey—Import Ban on Pet Food from Hungary (Complaint by Hungary), WT/DS256; Turkey—Certain Import Procedures for Fresh Fruit (Complaint by Ecuador), WT/DS237; Egypt—Import Prohibition on Canned Tuna with Soy Oil (Complaint by Thailand), WT/DS205; Mexico—Measures Affecting Trade in Live Swine (Complaint by the United States), WT/DS203, Slovak Republic—Measures Concerning the Importation of Dairy Products and the Transit of Cattle (Complaint by Switzerland), WT/DS133; and India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Imports (Complaint by the European Communities), WT/DS96.
In Australia—Certain Measures Affecting the Importation of Fresh Fruit and Vegetables (Complaint by the Philippines), WT/DS270, the Philippines requested the establishment of a panel once, on July 10, 2003. This panel request was blocked by Australia. The Philippines has not yet submitted its second panel request to the DSB (at which time the decision to establish a panel would be taken by reverse consensus in the DSB and could therefore not be blocked), and thus no panel has yet been established to hear this dispute. In Turkey—Certain Import Procedures for Fresh Fruit (Complaint by Ecuador), WT/DS237, a panel request was submitted by Ecuador on June 14, 2002, but a mutually agreed solution was subsequently reached.
This typologywas drawn up by the WTO Secretariat. Committee on Sanitary and Phytosanitary Measures, Technical Assistance Typology: Note by the Secretariat, G/SPS/GEN/206, October 18, 2000.
A compilation of all documents submitted to and drafted by the SPS Committee on this issue was circulated to all Members. Committee on Sanitary and Phytosanitary Measures, Technical Assistance and Capacity Building in the Context of the SPS Committee, Note by the Secretariat, G/SPS/GEN/332, June 24, 2002.
In July 1999, a questionnaire was circulated to Members by the Secretariat, to gather information on technical assistance requested, received or provided under the SPS Agreement but few developing countries replied. Committee on Sanitary and Phytosanitary Measures, Questionnaire on Technical Assistance: Note by the Secretariat, G/SPS/W/101, July 23, 1999. In October 2001 a second questionnaire was circulated regarding technical assistance needs to which 35 Members have responded to date. Committee on Sanitary and Phytosanitary Measures, Questionnaire on Technical Assistance, G/SPS/W/113, October 15, 2001. See addenda to Committee on Sanitary and Phytosanitary Measures, Technical Assistance-Responses to the Questionnaire, G/SPS/GEN/295, February 6, 2002.
See supra note 552.
The first meeting was held in July 2001. Committee on Sanitary and Phytosanitary Measures, Discussion on Technical Assistance and Cooperation—Informal Meeting of the SPS Committee of 9 July, 2001, G/SPS/GEN/267, July 16, 2001 and the second on March 18, 2002 (no report yet derestricted).
General Council, Special Session on Implementation, Actions to Increase the Participation of Developing Country Members in the Work of the Relevant International Standard-Setting Organizations: Report by the Director-General, WT/GC/42, December 11, 2000; General Council, Actions to Increase the Participation of Developing Country Members in the Work of Relevant International Standard-Setting Organizations-Information from Financial Institutions, WT/GC/46/Rev.1, July 16, 2001; General Council, Actions to Increase the Participation of Developing Country Members in the Work of Relevant Sanitary and Phytosanitary International Standard-Setting Organizations, WT/GC/54, November 7, 2001; General Council, Special Session on Implementation, Actions to Increase the Participation of Developing Country Members in the Work of Relevant Sanitary and Phytosanitary International Standard-Setting Organizations: Second Report by the Director General, WT/GC/45, March 7, 2001.
WTO Seminar on Technical Assistance and Capacity Building Related to The Sps Agreement, November 5, 2002, Geneva. The Power Point presentations delivered at this seminar are available at: www.wto.org/english/tratop e/sps e/sem nov02 e/programme e.htm.
WTO Secretariat, Annual Report 2002 (2002). For a list of planned technical assistance activities in the SPS area for 2003, see Committee on Trade and Development, 2003 Technical Assistance Activities, Note by the Secretariat. Revision, WT/COMTD/W/104/Add.1/Rev.1, November 7, 2002, at 33.
In this context, it is worth mentioning that, on September 27, 2002, the World Bank and the WTO established a new fund, called the Standards and Trade Development Facility (“STDF”). This fund aims to provide funding to assist developing countries to meet SPS standards. The World Bank has pledged US$ 300 000 to this fund and the WTO has contributed to it from the Doha Development Trust Fund. In its list of technical assistance activities for 2003, the WTO Secretariat proposed a contribution of CHF 100 000 to the STDF (see supra note 567). The fund will be administered by the WTO. The FAO, WHO and OIE are part of this initiative. See Committee on Sanitary and Phytosanitary Measures, The Standards and Trade Development Facility, Note by the Secretariat, G/SPS/GEN/371, February 18, 2003. See also WTO Press Release 314 World Bank Grant Kicks off Bank-WTO Assistance on Standards, September 27, 2002.
For instance, in the Codex Alimentarius Commission’s Strategic Framework, adopted at its 24th Session in 2001, the issue of improving developing country participation is included as an objective. Codex Alimentarius Commission, Report of the 24th Session, July 2–7, 2001 ALINORM 01/41, Appendix II, ¶ 16. The objectives of the Strategic Framework will be implemented through a Medium Term Plan for 2003–2007. In addition, on February 14, 2003 at the Extraordinary Meeting of the Codex Alimentarius Commission, the Directors General of the FAO and WHO officially launched the FAO/WHO Trust Fund for Participation of Developing Countries and Countries in Transition in the Work of the Codex Alimentarius Commission, which is expected to run for 12 years on a budget of $40 million and aims to help developing countries and countries in transition increase their participation in Codex activities. See Codex Alimentarius Commission, Trust Fund for the Participation of Developing Countries and Countries in Transition in the Work of the Codex Alimentarius Commission, FAO/WHO Project and Fund for Enhanced Participation in Codex. Progress Report, ALINORM 03/25/4, February 13–15, 2003.
Committee on Sanitary and Phytosanitary Measures, Electronic Transmission of Notifications to national Enquiry Points. Note by the Secretariat, G/SPS/GEN/136, August 9, 1999. These lists can be found in the series G/SPS/GEN/* by searching under the keyword “notifications”.
Committee on Sanitary and Phytosanitary Measures, Unofficial Translation, Note by the Secretariat, G/SPS/GEN/487, April 23, 2004.
As background to these discussions, the Secretariat prepared a document summarizing implementation concerns raised at SPS Committee meetings. Committee on Sanitary and Phytosanitary Measures, Special and Differential Treatment: Note by the Secretariat, G/SPS/W/105, May 9, 2000.
See e.g., the statement by India on this point. Committee on Sanitary and Phytosanitary Measures, Implementation of the Provisions for Special and Differential Treatment: Statement by India at the Meeting of 21–22 June, 2000, G/SPS/GEN/197, July 21, 2000.
On May 3, 2000, the General Council adopted a decision to meet in special sessions to address outstanding implementation issues. Special Sessions were held in October and December 2000 and April, July and October 2001. Specific issues were referred to the relevant WTO bodies, including the SPS Committee for further work, which resulted in reports from these bodies to the General Council.
At the Doha Ministerial Conference, the Director-Generals of the WTO, FAO, and OIE and the President of the World Bank declared their commitment to promote the participation of developing countries in international standard setting. Ministerial Conference, Participation of Developing Countries in the Development and Application of International Standards, Guidelines and Recommendations on Food Safety, Animal and Plant Health: Joint Statement Circulated by the Directors-General of the Food and Agriculture Organization of the United Nations, the Office International Des Epizooties, the World Health Organization, the World Trade Organization and the President of the World Bank, WT/MIN(01)/ST/97, November 11, 2001.
Ministerial Conference, Implementation-Related Issues and Concerns, Decision of 14 November 2001, WT/MIN(01)/17, November 20, 2001, ¶ ¶ 3.5–3.6.
Id. ¶ 3.1
Id. ¶ 3.2
This ongoing work in the area of special and differential treatment is mandated in the Doha Ministerial Declaration, which endorses the Work Programme on special and differential treatment set out in the Implementation Decision. Ministerial Conference, Fourth Session, Ministerial Declaration, Adopted on November 14, 2001, WT/MIN(01)/DEC/1, November 20, 2001, ¶ 44; Ministerial Conference, Implementation-Related Issues and Concerns, Decision of 14 November 2001, WT/MIN(01)/17, November 20, 2001, ¶ 12.1. The outstanding issues are to be found in a Secretariat compilation. WTO Secretariat, Compilation of Outstanding Implementation Issues Raised by Members, Revision, JOB(01)/152/Rev.1, October 27, 2001.
Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting Held on 17–18 March 2004, Note by the Secretariat, G/SPS/R/33, May 7, 2004, ¶ 100.
Zarilli, supra Simonetta Zarrilli, Wto Sanitary and Phytosanitary Agreement: Issues ror Developing Countries, T.R.A.D.E. Working Paper 3, South Centre (1999) note 448, at 19.
That is not to say that no technical assistance relating to SPS concerns has been delivered. In fact several Members have submitted papers to the SPS Committee documenting the technical assistance they have provided to developing countries. Amongst others, see G/SPS/GEN/181;Committee on Sanitary and Phytosanitary Measures, Discussion on Technical Assistance and Cooperation—Informal Meeting of the SPS Committee of July 9, 2001, G/SPS/GEN/267, July 16, 2001; Committee on Sanitary and Phytosanitary Measures, Summary of the Replies to the Questionnaire on Technical Assistance: Note by the Secretariat, G/SPS/GEN/143/Rev.1/Add.1, June 16, 2000; Committee on Sanitary and Phytosanitary Measures, Technical Assistance to Developing Countries Provided by the United States: Submission by the United States, G/SPS/GEN/181, June 15, 2000; Committee on Sanitary and Phytosanitary Measures, Technical Cooperation and Assistance: Submission by the United States, G/SPS/GEN/78, June 9, 1998; Committee on Sanitary and Phytosanitary Measures, Quarantine and Other Sanitary and Phytosanitary Capacity Building and Training Activities Undertaken by Australia: Submission by Australia, G/SPS/GEN/124, June 15, 1999; Committee on Sanitary and Phytosanitary Measures, Technical Assistance to Developing Countries: Statement by the European Communities at the Meeting of March 14–15, 2001, G/SPS/GEN/244, April 27, 2001. What remains a concern is the inadequacy of the technical assistance given thus far to overcome the barriers to developing country products created by stringent SPS standards. See Committee on Sanitary and Phytosanitary Measures, Special and Differential Treatment and Technical Assistance: Submission Made by India at the Meeting of June 10–11, 1998, G/SPS/GEN/85, July 23, 1998, at 4.
See Denise Prévost and Mariëlle Matthee, The SPS Agreement as a Bottleneck in Agricultural Trade between the European Union and Developing Countries: How to Solve the Conflict, 29 Legal Issues of Economic Integration 43, 44–45 (2002).
Ministerial Conference, Fourth Session, Implementation-Related Issues and Concerns, Decision of 14 November 2001, WT/MIN(01)/17, November 20, 2001, ¶ 3.4.
Informal discussions by the SPS Committee have focused on the Work Programme on equivalence, and in particular on clarifications of paragraphs 5–7 of the Equivalence Decision. For a summary of the Chairman’s report on these discussions, see Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting Held on 25–26 June 2002, Note by the Secretariat, G/SPS/R/27, August 2, 2002, ¶ V(a). As mentioned supra Part III(C)(3), the SPS Committee agreed to clarifications to ¶ ¶ 5 and 6 of the Equivalence Decision at its meeting of November 7–8, 2002. See supra note 501.
Ministerial Conference, Fourth Session, Implementation-Related Issues and Concerns, Decision of 14 November 2001, WT/MIN(01)/17, November 20, 2001, ¶ 12.1. This work program was endorsed in the Doha Ministerial Declaration. Ministerial Conference, Fourth Session, Ministerial Declaration. Adopted on 14 November 2001, WT/MIN(01)/DEC/1, November 20, 2001
These issues deal with basic matters such as the timeline, the relationship between two tracks that have been identified for the discussions, namely agreement-specific issues and cross-cutting issues and the question whether agreement-specific issues would be more appropriately dealt with in the relevant WTO bodies responsible fort he various agreements. ICTSD, Arduous Process Yields Agreement on S&D Report, 6(28) Bridges Weekly Trade Digest July 24, 2002.
Committee on Trade and Development, Special Session, Report to the General Council, TN/CTD/3 and Corr.1, July 26, 2002.
Id. ¶ 14.
Id.. ¶ 15.
See ICSTD, S&D Review in Limbo as General Council Fails to Adopt Report 7(5) Bridgesweekly Trade News Digest, February 12, 2003.
Until recently, developing countries made little use of this possibility to raise concerns or make suggestions under this agenda item, preferring to keep discussions on special and differential treatment within the CTD. However, it is interesting to note the recent Egyptian and Canadian proposals in the SPS Committee on ways to enhance transparency regarding the provision of special and differential treatment under the SPS Agreement by modifying the recommended notification format to include information on the provision of special and differential treatment, either ex ante (Egyptian proposal) or ex post by means of an Addendum to the notification after bilateral discussions on this issue between the importing and exporting Members (Canadian proposal). Committee on Sanitary and Phytosanitary Measures, Enhancing Transparency of Special and Differential (S&D) Treatment within the SPS Agreement, Submission by Canada, G/SPS/W/127, October 30, 2002. See further supra note 525.
At time of writing, prospects for this seem bleak, as discussions in the CTD regarding the relevant provisions in the SPS Agreement have not led to progress in reaching agreement. Developed countries have indicated that they regard developing country proposals in this regard as unrealistic or impractical, placing too many restrictions on the implementation of SPS measures, thus endangering health, or requiring unlimited funding for technical assistance. Instead, they suggest more effective use of the current provisions on special and differential treatment and further consultations in the SPS Committee when new SPS measures are likely to cause difficulties for developing countries. In addition, developed countries oppose changes to the language of special and differential treatment provisions in the agreements, as this would alter the balance of rights and obligations. Developing countries counter that their proposals do not require lowering SPS standards but rather meaningful and mandatory technical and financial assistance in order to meet new SPS measures. According to developing countries, the current under-utilisation of special and differential treatment provisions is due to the vagueness of the language used therein, which is precisely what was meant to be addressed under the CTD’s mandate. See ICTSD, WTO: S&D Review Struggles for Agreement 6(39) Bridges Weekly Trade News Digest, November 14, 2002.
The relevant discussions and documents circulated in the SPS Committee on technical assistance and capacity building are summarized in a Secretariat document. See Committee on Sanitary and Phytosanitary Measures, Technical Assistance and Capacity Building in the Context of the SPS Committee, Note by the Secretariat, G/SPS/GEN/332, June 24, 2002.
At the SPS Committee meeting of June 2002, the U.S.A., EC, Codex, ITC and IICA highlighted some of their recent technical assistance activities. See Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting Held on 25–26 June 2002, Note by the Secretariat, G/SPS/R/27, August 2, 2002, paras 102–106. More detailed information on some of these activities can be found in G/SPS/GEN/181/Add.2, G/SPS/GEN/335, G/SPS/GEN/344 and G/SPS/GEN/333.
For example, by the gathering of information on the technical assistance needs of developing countries by means of questionnaires. See supra Part IV(A). In the June 2002 meeting of the SPS Committee, the Secretariat drew Members’ attention to the Coordinated WTO Secretariat Annual Technical Assistance Plan for 2002 and indicated that it will do its best to include in its 2003 program the technical assistance requests that emerge from the responses to the questionnaire. However, it pointed out that due to resource constraints, most technical assistance requestswould have to be addressed bilaterally or by other international organizations. See Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting Held on 25–26 June 2002, Note by the Secretariat, G/SPS/R/27, August 2, 2002, ¶ 97.
Committee on Sanitary and Phytosanitary Measures, Discussion on Technical Assistance and Cooperation—Informal Meeting of the SPS Committee of 9 July, 2001, G/SPS/GEN/267, July 16, 2001.
In addition, it should be noted that the Agriculture and Commodities Division of the WTO Secretariat is participating in the creation of a technical assistance database. See Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting Held on 25–26 June 2002, Note by the Secretariat, G/SPS/R/27, August 2, 2002, ¶ 97.
Extraordinary sessions of the Codex Alimentarius Commission and its Executive Committee were convened in Geneva on February 10–15, 2003, to discuss the conclusions and recommendations emanating from this evaluation. A statement resulting from these discussions was adopted for submission to the governing bodies of the FAO and WHO. Further work will be undertaken by the Commission in this regard. See Codex Alimentarius Commission, Report of the 25 th (Extraordinary) Session, February 13–15, 2003 ALINORM 03/25/5, Appendix II.
Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting Held on 17–18 March 2004, Note by the Secretariat, G/SPS/R/33, May 7, 2004, ¶140.
See supra note 625.
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Prévost, D., Van den Bossche, P. (2005). The Agreement on the Application of Sanitary and Phytosanitary Measures. In: Macrory, P.F.J., Appleton, A.E., Plummer, M.G. (eds) The World Trade Organization: Legal, Economic and Political Analysis. Springer, Boston, MA. https://doi.org/10.1007/0-387-22688-5_7
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