The SPS agreement and its application in the WTO dispute
settlement
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Note: Footnotes Omitted
Part
II. The SPS Agreement
In
the Uruguay Round, Sanitary and Phytosanitary measures received particular attention, because such measures
were thought to raise difficulties distinct from those associated
with technical standards generally, such as the greater
importance of scientific assessment of risk. The Uruguay Round separately addressed
these measures, and thus resulted in the SPS Agreement which,
along with the Agreement on Agriculture, brings all measures
affecting import access and export competition for agricultural
products within international rules for the first time in
the history of GATT.
The basic concepts of the SPS agreement could
be summarized as follows:
1. General Provisions
The Agreement applies to ¡°all sanitary and
phytosanitary measures which may, directly or indirectly,
affect international trade.¡± The Preamble and the first part of the text set out that all
Members have the rights to protect human life and health,
as well as animal or plant life and health.
This is subject to the requirement that these measures
are not applied in a manner which would constitute a means
of arbitrary or unjustifiable discrimination between Member,
or place non-national suppliers of goods or services at
a disadvantage vis-a-vis domestic suppliers.
2.
Rights and Obligations; Harmonization
It is important to note that the Agreement does
not deal with any specific sanitary and phytosanitary measures
(or ¡°SPSMs¡±). Rather
it provides general disciplines that apply to the development
and application of all SPSMs.
Members remain free to develop and implement their
own specific measures subject to these disciplines.
Article sets out the Agreement¡¯s four basic obligations. For harmonization of measures, the Members
are required to harmonize their measures on as wide a basis
as possible and to base them on international standards,
guidelines and recommendations.
In addition, the Agreement expects the Members to
play a full part in the relevant international organizations
and subsidiary bodies.
Specific mention is made of the Codex Alimentarius
Commission, the International Office of Epizootics and the
regional organizations operating within the framework of
the International Plant Protection Convention.
3. Equivalence
Article 4 of the Agreement requires for the
acceptance, as equivalent, of non-national SPSMs, if they
do not breach the national level of protection. This provision allows the importing country
to inspect the products ¨C as well as other relevant procedures
¨C in the exporting country.
In addition, with the goal of achieving bilateral
or multilateral agreement on recognition of equivalency,
on request, Members are required to enter into consultations
on such agreement.
4. Risk Assessment and Appropriate Levels of
Protection
Members are required to ensure that all SPSMs are based on an
appropriate assessment of the risks to human, animal or
plant life or health.
In assessing such risks, Members are required to
take a number of factors into account, including the available
scientific evidence, control and inspection method, environmental
conditions, the existence of disease- and pest-free areas,
and quarantine and other treatments.
Members also must consider economic consequences,
such as the
potential
damage to domestic production posed by a disease, pest,
or toxin, when establishing acceptable levels of risk. In
the event that relevant scientific evidence is lacking or
incomplete, a government may establish a provisional SPS
standard using available information; it is then incumbent
on the government to seek additional scientific evidence
and to review subsequently the provisional standard.
When determining appropriate risk levels, members
should attempt to minimize negative effects on trade, and
SPSMs shall not be more trade-restrictive than necessary
to accomplish a desired level of health and safety protection.
Governments must avoid "arbitrary or unjustifiable
distinctions" in establishing acceptable levels of
risk "if such distinctions result in discrimination"
against imported products.
Thus, members may not mandate a low level of risk
on domestically produced products while imposing a zero
risk on similar imported products.
5. Other Issues
Article 6 requires Members to take regional
conditions into account. The Members are also obliged to take into
account of the special needs of the non-industrial countries. Disputes are to be referred to the DSB. A Committee on Sanitary and Phytosanitary
Measures is responsible for information and consultation. This Commission is entrusted with carrying
out the functions necessary to implement the provision of
the Agreement.
