Abstract
The basic obligations for members of the world trading regime have not changed since the GATT 1947 came into being. Members must give equal treatment to exports from all members, and members are barred from discriminating between locally produced and imported products.
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Notes
- 1.
SPS Agreement, Article 2.
- 2.
Article 2.1, 2.2.
- 3.
Article 2.3.
- 4.
Article 3.1.
- 5.
Article 3.2.
- 6.
SPS Agreement, Article 3.3. The SPS Agreement also includes a footnote at this point: For the purposes of paragraph 3 of Article 3, there is a scientific justification if, on the basis of an examination and evaluation of available scientific information in conformity with the relevant provisions of this Agreement, a member determines that the relevant international standards, guidelines or recommendations are not sufficient to achieve its appropriate level of sanitary or phytosanitary protection.
SPS Agreement, Article 3.3 n. 2. Although the obligations and reasoning are a bit convoluted, this footnote has been interpreted as meaning that measures that deviate from international standards are acceptable if based on a risk assessment—that is, if they meet the requirements of Article 5, which includes the requirement of a risk assessment (Article 5.1). In plain language, Article 3 promotes harmonization with international standards, and Article 5 allows countries to escape the straitjacket of international standards, provided that an assessment of risks is the first step in setting such stricter SPS measures.
- 7.
Article 4.1. The SPS Agreement also includes a specific application of the “equivalent” requirement, which is especially important for SPS measures, to pest and disease-free areas. Article 4.1. Countries that can demonstrate that all or some of their country is free from a hazard are allowed to circumvent SPS measures that are intended to block diseases on products from that country. Article 6.3.
- 8.
For commentary on mutual recognition as a strategy for opening markets and its relationship to, See generally Linda Horton, Mutual Recognition Agreements and Harmonization, 29 SETON Hall L. Rev. 692, 708–29 (1998).
- 9.
Articles 5.8, 7 and Annex B.
- 10.
Article 12.
- 11.
Article 14.
- 12.
Article 3.3.
- 13.
Article 2.2.
- 14.
Article 5. EC Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body, 180, WT/DS26/AB/R & WT/DS48/AB/R (Jan. 16, 1998), which argues that “Article 2.2 and 5.1 should constantly be read together. Article 2.2 informs Article 5.1: the elements that define the basic obligation set out in Article 2.2 impart meaning to Article 5.1”. In addition, the same report notes that Article 2.3 must be read together with Article 5.5—the former declares a general obligation, and the latter elaborates “a particular route” for determining whether the general obligation has been met. Ibid., 212.
- 15.
SPS Agreement, Article 5.1.
- 16.
See SPS Agreement, Article 5.2.
- 17.
Article 5.3.
- 18.
Article 5.4.
- 19.
Article 5.5 (emphasis added).
- 20.
Article 5.6.
- 21.
Article 5.6 n. 3.
- 22.
Article 5.1–5.7.
- 23.
The other related provisions are, in particular, Articles 2 and 3 and the definitions in Annex A. See SPS Agreement, Articles 2, 3 and Annex A.
- 24.
Articles 2.1, 3.3.
- 25.
Article 5.5. There is a small qualifier to this statement. Article 3.3 also says that members may impose SPS measures “which result in a higher level of [SPS] protection” if one of the two conditions is met: the measures are based on a “scientific justification” or the measures are in conformity with Article 5. The concept of “scientific justification” is defined in a footnote such that, in practice, “scientific justification” means based on a risk assessment. The provisions for risk assessment are outlined in Article 5 and in Annex A (“definitions”) of the SPS Agreement. Thus the discipline on the level of SPS protection that a country may establish funnels through Article 5, and the only part of Article 5 that explicitly addresses the level of SPS protection is Article 5.5.
- 26.
SPS Agreement, Articles 5.1, 5.2, 5.3, 5.7.
- 27.
This is especially evident in the ECs meat hormones ban and Australia’s ban on imports of fresh and frozen salmon, which are the only two cases where a country’s level of SPS protection has been challenged directly. In both cases, the level of protection that the importing country sought was zero risk because the country had imposed a ban on imports. Thus testing whether the bans were consistent with the requirement to base SPS measures on risk assessment was, de facto, a test of whether the goal of zero risk was based on risk assessment. See generally EC Meat Hormones, Appellate Report, Supra note 14, Australia—Measures Affecting Importation of Salmon, Report of the Panel, 6.1-130, WT/DS18/R (June 12, 1998).
- 28.
The only provision of the SPS Agreement that explicitly applies to national SPS standards that are stricter than international standards is Article 3.3.
- 29.
Two statements in the preamble make this point: “Recognizing the important contribution that international standards, guidelines and recommendations can make in this regard…” and “Desiring to further the use of harmonized sanitary and phytosanitary measures between Members, on the basis of international standards…”. In contrast, the preamble does not mention risk assessment or rules to govern deviations from international standards as principal objectives.
- 30.
See Codex Alimentarius Commission Procedural Manual (9 ed. 1955).
- 31.
John S. Eldred & Shirley A. Coffield, What Every Food Manufacturer Needs to Know: Realizing the Impact of Globalization on National Food Regulation, 52 Food & Drug L.J. 31, 34 (1997).
- 32.
The statements here apply strictly to the International Plant Protection Convention, Dec. 6, 1951, 150 U.N.T.S. 67 (with revisions that came into force in 1991). A new Revised IPPC was adopted by the FAO Conference in 1997. It has now entered into legal force as in 2005.
- 33.
EC Meat Hormones: Complaint by United States, Panel Report, WT/DS26/R/USA, Adopted 13 Feb. 1998, DSR 1998: III as modified by the Appellate Body Report WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998: I.
- 34.
Australia—Measures Affecting Importation of Salmon, Panel Report, WT/DS18/Rev Corr. I, Adopted 6 Nov. 1998, as modified by the Appellate Body Report, WT/DS18/AB/R, DSR 1998:VIII.
- 35.
Japan—Measures Affecting Agricultural Products, Panel Report, WT/DS76/R, Adopted 19 March 1999, as modified by the Appellate Body Report, WT/DS76/AB/R, DSR 1999: I.
- 36.
EC—Meat Hormones, supra note 33.
- 37.
Ibid., pp. 241–245.
- 38.
EC—Meat Hormones, supra note 33, pp. 236–246.
- 39.
Australia—Measures affecting Salmon, supra note 34, 8.91.
- 40.
Ibid., pp. 135–136.
- 41.
Australia—Measures Affecting Salmon, supra note-34, 8.91.
- 42.
Ibid., 8.160.
- 43.
Ibid., 139–178.
- 44.
Japan—Measures affecting agricultural products, supra note 35, Panel Report p. 80.
- 45.
Ibid., Panel Report.
- 46.
Ibid., 2.23–2.24.
- 47.
Ibid., 8.27.
- 48.
Ibid., 8.19–8.27.
- 49.
Ibid., supra note 35, Appellate Body Report, p. 76.
- 50.
Japan—Measures affecting agricultural products, supra note 35, p. 84.
- 51.
SPS Agreement, Article 5.7.
- 52.
Supra note 35, Panel Report 8.49–8.60.
- 53.
Ibid., Panel Report, pp. 8–116 And Appellate Report, p. 108, 143.
- 54.
WT/DS 291, 292, 293.
- 55.
WT/DS 321/R.
- 56.
WT/DS 320/R.
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Koul, A.K. (2018). WTO Agreement on Sanitary and Phytosanitary Measures (SPS). In: Guide to the WTO and GATT. Springer, Singapore. https://doi.org/10.1007/978-981-13-2089-7_26
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