GATT1994
TBT Agreement applies to where SPS Agreement does not apply according to Article 1.5 of the TBT Agreement, which provides that the provisions of this
14 See MARK A.POLLACK &GREGORY C.SHAFFER,WHEN COOPERATION FAILS,THE INTERNATIONAL
LAW AND POLITICS OF GENETICALLY MODIFIED FOODS, 146 (2009).
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Agreement (i.e. the TBT Agreement) do not apply to sanitary and phytosanitary measures as defined in Annex A of the Agreement on the Application of Sanitary and Phytosanitary Measures. However, Article 1.5 of the TBT Agreement is not as clear as it looks like, especially in the circumstances where both SPS objective and non-SPS objective are embodied in a single measure. Panel in the EC-Biotech Products encountered the issue that whether a law, or a requirement contained therein,
may be deemed to embody an SPS measure as well as a non-SPS measure.15 This issue is especially significant in the implementation of recommendation.16 If yes, then such single act, which is found inconsistent with SPS Agreement but consistent with TBT Agreement, might be maintained under the TBT Agreement while the responding member is still obliged to bring the underlying measure into consistency with the SPS Agreement. On the contrary, if the answer is no, then such single act, once found inconsistent with the SPS Agreement, might not be maintained anymore in order to be consistent with SPS Agreement even if it is possibly TBT consistent.
The Panel, after conducting its analysis by using a hypothetical example, found that
15 Panel Report, EC-Biotech Products, supra note 10, paras. 7.150-7.174.
16 EC in the EC-Biotech Products also pointed out the significance of this issue from the perspective of the implementation of recommendation, see Panel Report, EC-Biotech Products, supra note 10, para.
7.153.
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we consider that to the extent the requirement in the consolidated law is applied for
one of the purposes enumerated in Annex A(1), it may be properly viewed as a
measure which falls to be assessed under the SPS Agreement; to the extent it is
applied for a purpose which is not covered by Annex A(1), it may be viewed as a
separate measure which falls to be assessed under a WTO agreement other than the
SPS Agreement. It is important to stress, however, that our view is premised on the
circumstance that the requirement at issue could be split up into two separate
requirements which would be identical to the requirement at issue, and which
would have an autonomous raison d'être, i.e., a different purpose which would
provide an independent basis for imposing the requirement.17
Under the Panel’s approach, the application of the TBT Agreement and the SPS Agreement to a disputed measure would be not necessarily exclusive. Without further commenting on the Panel’s opinion on this issue, we would like to make a remark that the ambit of SPS Agreement against TBT Agreement still matters even after EC-Biotech Products. Under such approach of the Panel, the significance of Article 1.5 of the TBT Agreement would lie on the prevention of duplicate application of the requirement of TBT Agreement and SPS Agreement where these two agreements are overlapped (Article 1.5 of the TBT Agreement would be meaningless
17 Id.. para. 7.165.
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where TBT Agreement and SPS Agreement do not overlap because in such circumstances, these two agreements do not concurrently apply). The broader the purposes of the SPS measure are construed, the greater chances the TBT Agreement and the SPS Agreement will overlap. To the extent of the overlap of these two agreements, SPS Agreement will still exclude the application of TBT Agreement, which manifests the importance the appropriate ambit of SPS Agreement.
The relationship between SPS Agreement and GATT 1994 is provided in the SPS Agreement and further elaborated by the Panel in the EC Measures Concerning Meat and Meat Product (Hormones) (the “EC Hormones”)18 which clarified the independent application of the SPS Agreement without a requirement of the existence of a GATT 1994 violation first and the sequence of review of a specific measure’s compliance with SPS Agreement and GATT respectively.19
The last paragraph of the preamble of the SPS Agreement first address this issue by stating that “Members Desiring therefore to elaborate rules for the application of
18 See Panel Report-EC-Hormones, WT/DS48/R/CAN, paras. 8.34-8.44, circulated to all Members on August 18, 1997 and was then appealed by the EC on September 24, 1997. The Appellate Body report thereof, WT/DS26/AB/R, WT/DS48/AB/R, was circulated to Members on January 16, 1998 and adopted February 13, 1998 [hereinafter EC-Hormones]. Although the Panel Report of EC-Hormones was appealed subsequently, the Panel’s analysis on the relationship between the SPS Agreement and GATT 1994 was not appealed. Therefore, for the purpose of this issue, the Panel Report is still referable.
19 Id., para 8.44.
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the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b).” Article 2.4 of the SPS Agreement provides the assumption of conformity with GATT 1994 for SPS measures consistent with SPS Agreement20. Article 3.2 thereof provides that Sanitary or phytosanitary measures which conform to international standards, guidelines or recommendations shall be deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant provisions of this Agreement and of GATT 1994 [emphasis added].
Based on the above provisions, the Panel in the EC-Hormones found that “to presume that one set of obligations (in casu GATT) is met because another set of obligations (in casu the SPS Agreement) has been fulfilled, seems to imply that the latter set of obligations imposes at least as many as, and probably more obligations than, the former.”21 After finding that “many provisions of the SPS Agreement imposed substantive obligations which go significantly beyond and are additional to the requirements for invocation of Article XX(b)” of GATT, the Panel came to the conclusion that “while both agreements (i.e. SPS Agreement and GATT 1994) may
20 Article 2.4 of the SPS Agreement provides that that that Sanitary or phytosanitary measures which conform to the relevant provisions of this Agreement shall be presumed to be in accordance with the obligations of the Members under the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b).
21 Paragraph 8.43 of Panel Report-EC-Hormones, supra note 18.
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apply in a given factual situation, the foregoing provision (i.e. Article 3.2 of the SPS Agreement) nonetheless establishes the SPS Agreement as an agreement which imposes obligations which are different from those imposed by GATT.”22 Considering that SPS Agreement specifically addresses the measure in dispute (i.e. a SPS measure) and that in any event the Panel would need to examine the consistency of the measure in dispute with the SPS Agreement since no assumption of consistency with SPS Agreement is provided if the measure is found consistent with GATT 1994 while the other way round does, the Panel concluded that it shall first examine the measure under the SPS Agreement as it is the most efficient manner.23
Unlike SPS Agreement’s explicit reference to the GATT 1994, let alone the further assumption of the consistency with the GATT 1994, TBT Agreement does not set forth its relationship with the GATT 1994. Nonetheless, the Panel of the European Communities-Trade Description of Sardines (the “EC-Sardines”)24 further illustrated the order of review of TBT Agreement and GATT 1994 based on the
“specialty” of the TBT Agreement compared to the generality of the GATT 1994.
22 Id.
23 Paragraph 8.45 of Panel Report-EC-Hormones, supra note 18.
24 Panel Report, European Communities- Trade Description of Sardines, WT/DS 231/R circulated to Members on May 29, 2002 and was subsequently appealed by EC on June 28, 2002. The Appellate Body report was circulated to Members on September 26, 2002 and adopted by DSB on October 23, 2002 [hereinafter EC-Sardines].
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The panel recalled the Appellate Body in EC — Bananas III, which suggested that
“where two agreements apply simultaneously, a panel should normally consider the more specific agreement before the more general agreement.”25 Considering that
“the TBT Agreement deals ‘specifically, and in detail’ with technical regulations”, the Panel reached the conclusion that “if the EC Regulation is a technical regulation, then the analysis under the TBT Agreement would precede any examination under the GATT 1994.”26
In summary, TBT Agreement applies to where SPS Agreement does not apply but these two agreements might apply to a single measure concurrently but separately where such measure encompasses both SPS objective and TBT objectives. With respect to their relationship with the GATT, a SPS-Agreement consistent SPS measure is assumed to be consistent with GATT and for the purpose of efficiency, the analysis under SPS Agreement shall go first than the same under GATT. The analysis under TBT Agreement shall also be precedent to the same under GATT because TBT Agreement is special to the GATT.
B. THE LEGITIMATE PURPOSE AND THE KEY ELEMENTS OF THE SPSAGREEMENT,
TBT AGREEMENT AND GENERAL EXCEPTION UNDER GATT 1994
RESPECTIVELY
25 Id. para. 7.15.
26 Id. para. 7.16.
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After analysis of the relationship between the SPS Agreement, TBT Agreement and GATT based on the texts thereof and the elaboration of the Panels in prior disputes, in order to fully understand the application of these three agreements, it is necessary to take a close look at the content of thereof, especially the legitimate purposes and the key elements thereof, which form the boundary of these three agreements respectively and might further shed some lights on the determination of the appropriate scope of the SPS Agreement as discussed in subsection C hereof below.
1. The legitimate purposes
According to Annex A of the SPS Agreement, Sanitary or phytosanitary measure
means any measure applied
(a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms;
(b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs;
(c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or
(d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests.
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Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, requirements and procedures including, inter alia, 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. [emphasis added]
In summary, the legitimate interests to be protect by SPS measure include (1) human life or health, (2) animal life or health, (3) plant life or health and (4) prevention of other damage against the risks of (1) from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; (2) additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs, as applicable.
The legitimate purposes of the technical regulations under TBT Agreement is
provided in Article 2.2 thereof, which stipulates that
Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are, inter alia:national security requirements; the prevention of deceptive practices;
protection of human health or safety, animal or plant life or health, or the
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environment. In assessing such risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing
technology or intended end-uses of products.
Compared to the close-ended list of the legitimate purposes of the SPS measures under the SPS Agreement, the legitimate purposes of technical regulations under the TBT agreement are in an illustrative and open-ended list, which is manifested by the language “inter alia.” In addition, as far as the regulations on GMOs are concerned, the illustrative examples of the legitimate purposes includes not only protection of human health or safety, animal or plant life or health (which are almost the same as the same under the SPS Agreement), but also “the environment”, which is not explicitly referred to in the SPS Agreement.
Article XX of the GATT, titled as General Exceptions, lists out ten legitimate purposes for the Members to take the exceptional measures. As far as regulations on the GMO is concerned, the most relevant general exception provided under Article XX of the GATT is paragraph (b) thereto, which permits Members to take measures that are “necessary to protect human, animal or plant life or health,” which can be also found under the SPS Agreement. In addition, under paragraph (a) thereof, measures
“necessary to protect public morals” are also permitted, which might come into play in the GMO resistant battle, where the ideology toward GMO is different in different
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countries.27
It is worth noting that due to special design for the provision structure under the SPS Agreement, the broader interpretation of the legitimate purposes of the SPS measures does not put the responding party (i.e. the Member taking SPS measures) in a better position. The provision structure under the SPS Agreement is that only those falling within the definition of the SPS measure will be subject to the SPS Agreement.28 The legitimate purposes of the SPS measures forms part of the definition of the SPS measure as defined under Annex A of the SPS Agreement.
Therefore, under the SPS Agreement, a broad interpretation of the legitimate purposes of the SPS measures will subject more measures to the scrutiny with the SPS Agreement, which are more stringent than the TBT Agreement as discussed in the following section. On the contrary, the legitimate purposes under the TBT Agreement and the GATT for the technical regulations and exceptional measures works as one of the element of the legality of the measure at issue29 instead of
27 See Brian Wynne, Creating Public Alienation: Expert Cultures of Risk and Ethics on GMOs, 10(4) SCIENCE AS CULTURE 445 (2001).
28 According to Article 1.1 of the SPS Agreement, SPS Agreement applies to all sanitary and phytosanitary measures which may, directly or indirectly, affect international trade. Such measures shall be developed and applied in accordance with the provisions of this Agreement. Therefore, measures satisfying the two elements: (1) falling within the definition of sanitary and phytosanitary measures; (2) which may, directly or indirectly, affect international trade.
29 See Article 2.2 of the TBT Agreement as quoted above.
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determining the nature (such as whether such measure constitutes a technical regulation etc.). The broader interpretation of the legitimate purposes under these two agreements, the easier the Members taking the measure in dispute might overcome the challenges against it.
2. The key elements
Articles 2 and 5 are the core provisions of the SPS Agreement, and have become the hot issues in the SPS Agreement related disputes.30 Article 2 requires a SPS measure to be (1) “necessary” for the protection of human, animal or plant life or health; (2) based on scientific principles and is not maintained without scientific evidence unless otherwise permitted under Article 5.7; (3) not constituting arbitrary or unjustifiable discrimination or disguised restriction on international trade. Article 5 further provides the assessment of risk and determination of the appropriate level of sanitary or phytosanitary protection.
In the case of TBT Agreement, Article 2 thereof is the most crucial provision, which was cited in the request for consultation in 37 cases, among the 41 cases citing TBT Agreement. Article 2 of the TBT Agreement requires, among others, national treatment and most-favored-nations treatment, no more trade-restrictive than
30 According to the statistic information provided on the WTO website, among the 37 cases citing SPS Agreement in the request for consultations, 28 cases involve Articles 2 and 5 thereof. The importance of these two provisions is evident.
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necessary, harmonization and transparency.31
Among these statutory requirements under the SPS Agreement and TBT Agreement, the main difference between them in the requirement of scientific evidence, which constitutes a stringent requirement for the Members taking SPS measures, especially where the scientific evidence is not sufficient. Article 2.2 of the SPS Agreement requires all SPS measures are based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5 thereof. On the contrary, TBT Agreement does not require technical measures to be based on the science while scientific information may be one of the elements to be taken into consideration when assessing risks according to Article 2.2 of the TBT Agreement.32
3. The appropriate ambit of SPS Agreement
The implication of a broad interpretation of the SPS measure, which will in turn result in the broad application of the SPS Agreement, is that more SPS measure will
31 For more details, please refer to Article 2 of the TBT Agreement. The full text of the TBT Agreement is available on the website of the WTO, http://www.wto.org/english/docs_e/legal_e/17-tbt.pdf (last visited on June 19, 2010).
32 Christiane Wolff, Regulating Trade in GMOs: Biotechnology and the WTO, TRADING IN GENES: DEVELOPMENT PERSPECTIVES ON BIOTECHNOLOGY,TRADE AND SUSTAINABILITY 217,220(edited by Melendez-Oriz, Ricardo & Sanchez, Vicente, 2003). Article 2.2 of the TBT Agreement “…In assessing such risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing technology or intended end-uses of products.”
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be subject to the stricter scrutiny of scientific evidence requirement under the SPS Agreement than the same under the TBT Agreement.
Motaal suggests a limited ambit of the SPS Agreement based on legitimate purposes and more stringent scientific requirement of the SPS Agreement than the same of TBT Agreement and Article XX of the GATT, and the negotiating history of the SPS Agreement, which according to Motaal, focusing on risks associated with agricultural products that are imported into a country but may carry with them pests or diseases.33
Peel, inspired by the environmental regimes’ awareness and instruction to act with caution in the face of scientific uncertainty when requiring for reliance on scientific information, also argues for a limited application of SPS Agreement which requires regulations bear a “rational relationship” to scientific evidence and risk assessments.34 Peel further pointed out that “the broader scope, under environmental regimes, for precautionary action in conditions of scientific uncertainty (and not just in situations of ‘insufficiency’ of scientific evidence regarding risks) may in turn reflect states’ acknowledge of the different nature of available scientific knowledge
33 See Doaa Abdel Motaal, The “Multilateral Scientific Consensus” and the World Trade Organization, 38J.WORLD TRADE 855, 856 (2004).
34 Jacqueline Peel, A GMO by Any Other Name… Might Be an SPS Risk!: Implications of Expanding
34 Jacqueline Peel, A GMO by Any Other Name… Might Be an SPS Risk!: Implications of Expanding