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I.INTRODUCTION
The multilateral trading system was founded in 1947. In its earliest years, the General Agreement on Tariffs and Trade (GATT), which later evolved into the WTO, concentrated on reducing tariffs and quantitative restrictions. Soon, however, Contracting Parties recognized that other nontariff measures needed to be tackled.
In 1994, with the creation of the World Trade Organization, several new multilateral agreements were adopted; one of the is the Agreement on the Application of Sanitary and Phytosanitary Measures (SPSAgreement).
Within the WTO framework, the SPSAgreement recognizes the right of Members to adopt science-based measures necessary to ensure food safety; human, animal or plant life or health; or to protect the territory of a country from pests or diseases.
However, such measures shall not be applied in a manner which constitutes arbitrary or unjustifiable discrimination between Members (where similar conditions prevail) or a disguised restriction to international trade.
It is time for us to proceed to an in-depth examination of the SPSAgreement: its objectives, history, structure and scope, as well as its relationship with other WTO agreements, its institutional coverage and temporal application.
II.THE SPSAGREEMENT
II.A.OBJECTIVES
IN BRIEF
The Preamble of the SPSAgreement strikes a balance:recognizing that:
- no Member should be prevented from adopting or enforcing measures necessary to protect human, animal or plant life or health; and
- Members are not required to change their appropriate level of protection of human, animal or plant life or health;
- a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail; or
- a disguised restriction on international trade.
The multilateral framework, which guides sanitary and phytosanitary measures, aims to improve the human health, animal health and phytosanitary situation in all Members, while minimizing negative effects on trade.
To achieve this goal, the SPSAgreement permits Members to take measures that restrict trade, as long as they are based on science. Such measures must be applied only to the extent necessary to protect human, animal or plant life or health and must not be discriminatory, as mentioned above. The Agreement also aims to harmonize the measures applied by different Members by encouraging the adoption of measures based on international standards. As we will learn during this course, WTO Members have considerable regulatory freedom to elaborate, apply and enforce sanitary and phytosanitary measures.
IN DETAIL
The Preamble to the SPSAgreement, which sets out its general objectives, reads as follows:
Members,Reaffirming that no Member should be prevented from adopting or enforcing measures necessary to protect human health, animal or plant life or health, subject to the requirement that these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail or a disguised restriction on international trade;
Desiring to improve the human health, animal health and phytosanitary situation in all Members;
Noting that sanitary and phytosanitary measures are often applied on the basis of bilateral agreements or protocols;
Desiring the establishment of a multilateral framework of rules and disciplines to guide the development, adoption and enforcement of sanitary and phytosanitary measures in order to minimize their negative effects on trade;
Recognizing the important contribution that international standards, guidelines and recommendations can make in this regard;
Desiring to further the use of harmonized sanitary and phytosanitary measures between Members, on the basis of international standards, guidelines and recommendations developed by the relevant international organizations, including the Codex Alimentarius Commission, the International Office of Epizootics, and the relevant international and regional organizations operating within the framework of the International Plant Protection Convention, without requiring Members to change their appropriate level of protection of human, animal or plant life or health;
Recognizing that developing country Members may encounter special difficulties in complying with the sanitary or phytosanitary measures of importing Members, and as a consequence in access to markets, and also in the formulation and application of sanitary or phytosanitary measures in their own territories, and desiring to assist them in their endeavours in this regard;
Desiring therefore to elaborate rules for the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of ArticleXX(b).
As you are probably aware, the preamble of an international treaty provides information about the object and purpose of the treaty. That is, the preamble is important for the interpretation of the agreement, as provided by the customary rules of treaty interpretation referred to in Article3.2 of the WTO Dispute Settlement Understanding.
IF YOU WANT TO KNOW MORE
Customary Rules Of Treaty Interpretation
The customary rules of treaty interpretation are contained in Article31 and 32 of the Vienna Convention on the Law of Treaties (VCLT) of 1969 which can be found at our Digital Library. These two Articles provide that a treaty shall be interpreted in good faith and according to the ordinary meaning of its terms in the light of its object and purpose. Besides the preamble, other instruments serve to determine the object and purpose of a treaty and its contex,t such as other (related) agreements entered into by the same parties.
The Appellate Body, while deciding the case US - Gasoline (WT/DS2), noted that Article31 of the VCLT forms part of the customary rules of treaty interpretation as provided for in Article3.2 of the WTO Dispute Settlement Understanding.
exercises:
1.What is the objective of the SPSAgreement?
II.B.HISTORY OF THE SPSAGREEMENT
The GATT 1947 did not establish a comprehensive legal structure for the treatment of sanitary and phytosanitary measures. However, pursuant to GATT Articles I, III and XX(b), national food safety, animal and plant health measures which affected trade were subject to GATT rules. These rules applied, for instance, to regulations establishing limits for pesticide residues and food additives, as well as to trade restrictions for the purpose of protecting animal or plant health.
RECALL
As you recall, GATT is the General Agreement on Tariffs and Trade, the umbrella agreement for trade in goods which was concluded in 1947 to regulate the international trade of goods. Today it is referred to as GATT1994, which is the original agreement as modified by the UruguayRound(19851994).
During the 1970's, the idea emerged that a specific agreement on technical barriers to trade was necessary. A Plurilateral Agreement on Technical Barriers to Trade (or "Standards Code") was then negotiated during the Tokyo Round (19731979). Although this agreement was not developed primarily for the purpose of regulating sanitary and phytosanitary measures, it covered technical requirements, and among these, those resulting from food safety and human, animal and plant health measures (which include pesticide residue limits, inspection requirements and labelling).
During the Uruguay Round (1985-1994), it was felt that there was a need for more specific rights and obligations with respect to food safety and human, animal and plant health measures affecting international trade. An Agreement on the Application of Sanitary and Phytosanitary Measures was thus negotiated during that round of negotiations in a Working Group under the Agriculture Committee.
In contrast to the plurilateral Standards Code of the Tokyo Round, the SPSAgreement negotiated during the UruguayRound is one of 12 multilateral trade agreements on international trade in goods.
The main differences between the Standards Code and the SPSAgreement are that:
- Under the Uruguay Round's "single undertaking", in signing up to the WTO Agreement, all Members of the WTO automatically signed up to the SPSAgreement as well. This stands in contrast to the plurilateral nature of the Standards Code, which at the end of 1994 had 46 Contracting Parties.
- Another important difference is that the SPSAgreement is subject to the unified dispute settlement provisions of the WTO, while containing some specific additional provisions on the matter. The Standards Code had its own dispute settlement mechanism.
- Under the WTO, two separate agreements have been created – the SPSAgreement on food safety and animal and plant health standards, and the Technical Barriers to Trade (TBT)Agreement, whose combined coverage is roughly the same as that of the Standards Code.
RECALL
Do you recall the single undertaking principle? This is the principle that states that WTO Members are bound by all WTO Multilateral Agreements (ArticleXIV.1 of the Marrakesh Agreement).
II.C.STRUCTURE OF THE AGREEMENT
IN BRIEF
The SPSAgreement disciplines all SPS measures which affect trade. AnnexA contains definitions which are important towards a full understanding of the Agreement - in particular the definition of an SPS measure. Other terms defined in AnnexA include harmonization; international standards, guidelines and recommendations; risk assessment; appropriate level of SPS protection; pest or disease free area; and area of low pest or disease prevalence.
The SPSAgreement consists of a Preamble setting out the general objectives of the Agreement, 14Articlesand three Annexes.IN DETAIL
Provisions of the SPSAgreementPreamble
Article1General Provisions
Article2Basic Rights and Obligations
Article3Harmonization
Article4Equivalence
Article5Assessment of Risk and Determination of the Appropriate Level of Sanitary and Phytosanitary Protection
Article6Adaptation to Regional Conditions, Including Pest – or Disease-Free Areas and Areas of Low Pest or Disease Prevalence
Article7Transparency
Article8Control, Inspection and Approval Procedures
Article9Technical Assistance
Article10Special and Differential Treatment
Article11Consultations and Dispute Settlement
Article12Administration
Article13Implementation
Article14Final Provisions
Annexes
AnnexADefinitions
AnnexBTransparency of Sanitary and Phytosanitary Regulations
AnnexCControl, Inspection and Approval Procedures
Now it is time for us to present the provisions on the scope of application, relationship with other agreements, institutional coverage and temporal application of the SPSAgreement.
II.D.SCOPE OF THE AGREEMENT
The SPSAgreement, pursuant to its AnnexA, applies to all measures taken by a WTO Member to protect:
- animal and plant life or health from the entry, establishment or spread of pests, disease-carrying or disease-causing organisms;
- human or animal life or health from food-borne risks (risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs);
- human life or health from diseases carried by animals, plants or products thereof;
- a Member's territory from other damage arising from the entry, establishment or spread of pests.
Measures taken to protect the health of fish and wild fauna, as well as of forests and wild flora from the risks stated above are also within its scope of application. It is important to mention that "pests" include weeds, while contaminants include pesticide and veterinary drug residues and extraneous matter (Footnote4 to AnnexA).
The SPSAgreement covers measures applied to final products and/or to related processes and production methods. AnnexA states that:
Sanitary or phytosanitary measures include all relevant laws decrees regulations requirements and procedures including interalia end product criteria; processes and production methods; testing inspection certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals or plants or with the materials necessary for their survival during transport; provisions on relevant statistical methods sampling procedures and methods of risk assessment; and packaging and labelling requirements directly related to food safety.Important note
Remember that "sanitary" relates to human and animal health, while "phytosanitary" relates to plant protection.
Being aware of the scope of application of the SPSAgreement is important in order to verify the applicability of the Agreement to a certain measure, since there are other WTO Agreementswhich also regulate non-tariff measures (such as domestic regulations), including the General Agreement on Tariffs and Trade (GATT) and the Agreement on Technical Barriers to Trade.
Regarding the four categories of SPS measures, let's just keep in mind for now that they are all within the scope of application of the SPSAgreement.
Process and Production Methods (PPMs)
Many SPS measures are related to processes and production methods (PPMs), because it is often more effective to ensure the safety of a final product by requiring that it be produced and processed appropriately. Governments, for example, set requirements on the operation of slaughter-houses (abattoirs), requiring certain hygiene measures to be taken at a number of points in the processing chain.
Many governments also require the application of a Hazard Analysis and Critical Control Point (HACCP) system, which is science-based and systematic, and identifies specific hazards and measures for their control at critical points in the food chain, from primary production to final consumption, in order to ensure food safety. HACCP systems focus on prevention rather than relying mainly on end-product testing. A number of the Codex standards recommend the use of HACCP-based systems to ensure the safety of food.
The SPSAgreement refers Members to the work of three international standard setting bodies. The Codex Alimentarius Commission is referred to for food safety. It has developed recommended International Codes of Hygienic Practice that are international standards of relevance to the SPSAgreement, such as those dealing with various processed fruit and vegetable products, poultry, meat, eggs, seafood and milk products. Their purpose is to ensure the safety of the final product, by regulating the way the product is processed and handled.
The first dispute which addressed the SPSAgreement, the EC - Hormones case (WT/DS26 and WT/DS48) dealt with PPMs. The EC requirements prohibited the use of growth-promoting hormones in the production of cattle for meat purposes. This prohibition was questioned by Canada and the United States, in part, because three of the hormones identified in the dispute were naturally occurring hormones, and some level of these was found in all beef, whether or not the cattle had been treated for growth-promotion or other purposes.
Similarly, the measures at issue in the Japan - Varietals case (WT/DS76) and in the Japan – Apples dispute (WT/DS245) dealt with the production and processing requirements imposed by Japan to avoid the entry, establishment and spread of a pest, respectively a disease, within Japan's territory. For instance, in the first case, Japan wanted to avoid the entry of coddling moth, by requiring each variety of fruit to undergo certain testing procedures in order to establish the effectiveness of fumigation treatment. In the second case, Japan aimed at avoiding the bacterium responsible for fire blight allegedly contained in imported apples. Thus, it required,interalia: imported apples to be grown in designated areas of the United States (the exporter), that orchards be surrounded by a buffer zone and undergo several inspections each year, and a certain treatment for the containers and facilities used for the harvest and storage of the apples.
In all of the above disputes, the fact that the SPS measures took the form of production and processing requirements was not at issue, but rather whether the production and processing requirements were scientifically justified and otherwise met the requirements of the SPSAgreement.
exercises:
2.What is the structure of the SPSAgreement?
3.What types of measures are covered by the SPSAgreement?
II.E.RELATIONSHIP BETWEEN THE SPS Agreement AND OTHER RELEVANT WTO AGREEMENTS
II.E.1.BETWEEN THE SPS AND TBTAGREEMENTS
The Agreement on Technical Barriers to Trade (TBTAgreement) is one of 12 multilateral trade agreements dealing with international trade in goods. It covers technical regulations (mandatory requirements), standards (which are non-mandatory) and conformity assessment procedures (procedures to verify compliance with technical regulations and/or standards).
Article1.5 of the TBTAgreement defines the relationship between the SPS and TBTAgreements, and excludes sanitary and phytosanitary measures from the TBT Agreement's scope of application. It reads:
The provisions of this Agreement do not apply to sanitary and phytosanitary measures as defined in AnnexA of the Agreement on the Application of Sanitary and Phytosanitary Measures.Likewise, Article1.4 of the SPSAgreement provides that:
Nothing in this Agreement shall affect the rights of Members under the Agreement on Technical Barriers to Trade with respect to measures not within the scope of this Agreement.The scope of application of the SPS and the TBTAgreement is therefore mutually exclusive. The TBTAgreement covers all technical regulations, standards and conformity assessment procedures, except when these are sanitary or phytosanitary measures as defined by the SPSAgreement.
TIPSometimes a regulation may have more than one objective and, therefore, can be covered by both the SPS and the TBTAgreement. Parts of the regulation (that is, some provisions) can fall within the scope of the SPSAgreementand others within the scope of the TBTAgreement.
Note
For more details on the TBTAgreement see "Understanding the TBTAgreement" on the WTO website.
SPS or TBT?
The SPSAgreement covers all measures whose purpose is to protect human or animal health from food-borne risks; human health from animal or plant-carried diseases; animals and plants from pests or diseases; or to prevent other damage from pests.
AnnexA, Paragraph1 of the SPSAgreement states that SPS measures include:
All relevant laws, decrees, regulations, requirements and procedures including, interalia,- end product criteria;
- processes and production methods;
- testing, inspection, certification and approval procedures;
- quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport;
- provisions on relevant statistical methods, sampling procedures and methods of risk assessment;and
- packaging and labelling requirements directly related to food safety.
Summarizing, SPS measures are those whose objective is specified in AnnexA of the SPSAgreement.
To protect / Fromanimal or plant life or health / the entry, establishment or spread of pests, disease-carrying or disease-causing organisms
human or animal lifeor health / risks arising from additives, contaminants, toxins or disease-causing organisms in their food, beverages or feedstuffs
human life or health / diseases carried by plants, animals or products thereof (zoonoses)
a country / damage caused by the entry, establishment or spread of pests
Table 1:Objectives of SPS measures