AGREEMENT AND THE FINAL FINDING REGARDING ITS CONSISTENCY WITH
ARTICLE 5.1 THEREOF
As indicated above, the Panel clarified the relationship between Articles 5.1 and 5.7 of the SPS Agreement by stating that “if a challenged measure is not consistent with one of the four cumulative requirements of Article 5.7, the aforementioned obligation of Article 5.1 is applicable to that measure, provided that there are no other
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elements which render Article 5.1 inapplicable.”141 This opinion is consistent with the approach adopted by the Appellate Body in Japan-Agriculture II and Japan-Apples, which examined Article 5.7 of the SPS Agreement first, followed by
Article 5.1 thereof. Although the Panel made an initial examination of the measure’s consistency with Article 5.1 of the SPS Agreement because of the special circumstances in this case, the Panel needed to make a decision on the disputed measures’ consistency with Article 5.7 of the SPS Agreement in order to make the final decision on its consistency with Article 5.1 thereof. Therefore, the Panel proceeded to analyze whether the measure at issue was consistent with Article 5.7 of the SPS Agreement.
The Panel recalled the finding of the Appellate Body in Japan-Agriculture II, which specifying that there were four requirements in Article 5.7 of the SPS Agreement to be met for a Member to legally adopt provisional measure under Article 5.7 thereof.142 As long as any single requirement is not met, the measure cannot be
141 Id. para. 7.2998.
142 Japan–Agricultural Products II, supra note 87, para. 89. The Appellate Body thereof stated that
“[p]ursuant to the first sentence of Article 5.7, a Member may provisionally adopt an SPS measure if this measure is: (1) imposed in respect of a situation where "relevant scientific information is insufficient”; and (2) adopted “on the basis of available pertinent information.” Pursuant to the second sentence of Article 5.7, such a provisional measure may not be maintained unless the Member which adopted the measure: (1) “seek[s] to obtain the additional information necessary for a more
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found consistent with Article 5.7 of the SPS Agreement. Where the exemption provided by Article 5.7 of the SPS Agreement can not be established, Article 5.1 thereof will then apply to that case.
The Panel started from the first requirement of Article 5.7 of the SPS Agreement—the insufficiency of relevant scientific evidence. When examining this
requirement, the Panel confronted two questions. First, whether the sufficiency of relevant scientific evidence must be assessed by reference to Austria’s appropriate level of sanity or phytosanitary protection, and second, whether the sufficiency of such scientific evidence is to be judged at the time of adoption of the Austrian safeguard measure or at the time of review by the Panel, i.e., at the time the Panel’s terms of reference were fixed.143
1. Relevance of the Appropriate Level of Sanitary or Phytosanitary Protection
with the Risk Assessment
The EC managed to link the assessment on the sufficiency of relevant scientific evidence to the protection goals pursued by legislators.144 The Panel recalled the decision of the Appellate Body in Japan-Apples, which states that “‘relevant scientific
objective assessment of risk”; and (2) “review[s] the … measure accordingly within a reasonable period of time.”
143 EC–Biotech Products, supra note 10, para. 7.3232.
144 Id. para.7.3233.
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evidence’ will be ‘insufficient’ within the meaning of Article 5.7 if the body of available scientific evidence does not allow, in quantitative or qualitative terms, the performance of an adequate assessment of risks as required under Article 5.1 and as defined in Annex A to the SPS Agreement.”145 The Panel was not convinced that the so called “adequate assessment” should be understood as a relative subjective approach of the appropriate level of SPS protection sought by national legislators.146 Rather, it took an objective stand over the issue, noting that the second sentence of Article 5.7 underlined the obligation of Members to seek to obtain the additional information necessary for “a more objective assessment of risk.”147
Further, the Panel referred to risk assessment techniques established by relevant international organizations, such as Codex Alimentarius Commission and International Plant Protection Convention (IPPC) in distinguishing risk assessment from risk management that is more relevant to the determination of appropriate measures. For instance, the Working Principles for Risk Analysis for the Risk
145 Japan–Apples, supra note 75, para. 179 [emphasis added].
146 The Panel was indeed aware that a Member’s appropriate level of protection is relevant to determining the SPS measure to be applied, if any, to protect that member from risks, evidenced in Articles 5.3 and 5.6 of the SPS Agreement. EC–Biotech Products, supra note 10, para. 7.3242.
147 Id. para.7.3236. The Panel further argued that scientists did not need to know a member’s
“acceptable level of risk” in order to assess objectively the existence and magnitude of a risk. Id.
para.7.3243. Panel’s opinion on this issue in fact is inconsistent with the Appellate Body report of EC-Hormones, see supra note 18 and the accompany text.
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Analysis of Food Derived from Modern Biotechnology state that “[t]he report of the
risk assessment should indicate any constraints, uncertainties, assumptions and their impact on the risk assessment.… The Responsibility for resolving the impact of uncertainty on the risk management decision lies with the risk manager, not the risk assessors.”148
In conclusion, the Panel disagreed with EC’s contention that the “insufficiency of relevant scientific evidence” in Article 5.7 of the SPS Agreement must be assessed by reference to the appropriate level of protection of importing Members.149
Panel’s separation of the risk assessment from the political risk management is challenged by some scholars.150 According to Antonia Elison, it is impossible to fully differentiate the two when addressing the potential environmental hazards of GMOs.151 The ignorance of the national preference with respect to the importance accorded to environmental protection is effectively to claim that a uniform level of risk acceptability must be imposed on a global scale.152
148 Codex Alimentarius Commission, Working Principles for Risk Analysis for the Risk Analysis of Food Derived from Modern Biotechnology of the Codex Alimentarius (adopted on June/July 2003), Section III, Codex Procedural Mannual, 14th edition, 2004, para. 25.
149 EC–Biotech Products, supra note 10, para. 7.3246.
150 See Antonia Eliason, supra note 125.
151 Id. at 353.
152 Id. at 353 & 354.
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The panel of the U.S.-Hormone Suspension followed the opinion of the EC–Biotech Products on this issue, disconnecting the determination of the sufficiency
of scientific evidence for conducting qualified risk assessment from the intended level of protection.153 However, the Appellate Body thereof reversed the Panel on this issue.154 The Appellate Body of the U.S.-Hormone Suspension first recalled the Appellate Body Report of the EC-Hormones, which noted that the SPS Agreement does not refer to the concept of “risk management” and it rejected the panel’s restrictive interpretation of a “risk assessment” based on that distinction.155 Although the Appellate Body thereof does not provide a clear demarcation of the factors that may be considered in a “risk assessment” under the SPS Agreement, it made clear that “there is nothing to indicate that the listing of factors that may be taken into account in a risk assessment of Article 5.2 was intended to be a closed list”156 and that “the concept of ‘risk management’ is not mentioned in any provision of the SPS Agreement and as such, cannot be used to sustain a more restrictive
153 See Panel Report, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/R, paras. 7.610-7.612 (March 21, 2008).
154 See Appellate Body Report, United States-Continued Suspension of Obligations in the EC-Hormones Dispute, WT/D320/AB/R (Oct. 18, 2008) (adopted Nov. 14, 2008) [hereinafter the US-Hormone Suspension].
155 Appellate Body Report, EC-Hormones supra note 18, para. 181.
156 Id. para. 187.
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interpretation of ‘risk assessment’ than is justified by the actual terms of Article 5.2,
Article 8 and Annex C of the SPS Agreement.”157 In addition, the Appellate Body in US-Hormone Suspension further opined that “the risk assessment cannot be entirely
isolated from the appropriate level of protection”158 while it emphasized the nature and the importance of the objectiveness requirement of the risk assessment.159
Compared to the panel’s restrictive interpretation and application of the Article 5.2 of the SPS Agreement in EC–Biotech Products, the Appellate Body in US-Hormone Suspension reverted to the comparatively broad interpretation thereof by
the Appellate Body in EC-Hormones. We agree with the approach taken by the Appellate Body in EC-Hormones and US-Hormone Suspension on this issue of the relationship between risk assessment and risk management. We think the opinion of the Appellate Body may obtain its support from not only the language but also the
157 Id. para. 206 [emphasis added].
158 Appellate Body Report. US-Hormone Suspension, supra note 154, para. 534.
159 Id. The Appellate Body states that “the fact that the WTO Member has chosen to set a higher level of protection may require it to perform certain research as part of its risk assessment that is different from the parameters considered and the research carried out in the risk assessment underlying the international standard. However, the chosen level of protection must not affect the rigour or objective nature of the risk assessment, which must remain, in its essence, a process in which possible adverse effects are evaluated using scientific methods. Likewise, whatever the level of protection a Member chooses does not pre-determine the results of the risk assessment. Otherwise, the purpose of performing the risk assessment would be defeated.”
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purpose of the Article 5.2 of the SPS Agreement. Appellate Body’s recognition of the relevance of level of protection with the risk assessment echoes paragraph 6 of the preamble of the SPS Agreement which promotes the harmonization of SPS measures among Members based on international without sacrificing Member’s right to determine its own appropriate level of protection of human, animal or plant life or health.160 In addition, it is in effect making the recognition of Article 5.7 as a right instead of an exception meaningful, which reaffirms Members’ rights to take SPS measures regardless whether there is sufficient scientific evidence. Under Appellate Body’s approach, Members’ can take measures to pursue the level of protection appropriate to them according to their discretion without restricted by the fact whether the scientific evidence is sufficient, which is, as Panel in EC-Biotech Products noted, a factual issue and not controllable by Members. The possible result from recognition of level of protection appropriate to the responding Member in a dispute is that more measures might obtain their justification under Article 5.7 which were to
160 Its original text is that “Members, [d]esiring 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. [emphasis added]” Official text of the SPS Agreement is available on the website of WTO, http://www.wto.org/english/docs_e/legal_e/15sps_01_e.htm (last visited on July 9, 2010).
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be subject to Article 5.1 of the SPS if level of protection was not considered in the risk assessment, which we found consistent with the SPS Agreement without concerns that Article 5.7 might be therefore abused. As the Appellate Body found that the core concept of the risk assessment in Article 5.2 is an objective assessment of risk, there is no need to limit or restrict the resources where the risks come from as long as such risks can be objectively evaluated. The objectiveness requirement of the risk assessment together with the rational relationship requirement between the risk assessment and the SPS measure may serve their functions to prevent the misuse or abuse of SPS measures well without worrying that the inclusion of the risk arising from the risk management may open the pandora’s box to the regulations of the SPS measures under WTO. In addition, there are also other obligations for the Members’
taking SPS measures under Article 5.7 to fulfill, which can also serve as a safe valve to prevent misuse of Article 5.7.
2. Time at which the “Sufficiency” or “Insufficiency” of Relevant Scientific
Evidence to be Assessed
Another issue was raised regarding whether the alleged “insufficiency” of relevant scientific evidence should be assessed at the time of adoption of the measure at dispute or at the time when the Panel’s terms of reference were fixed.161
161 Id. para. 7.3247.
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The Panel first emphasized a clear linkage between the required insufficiency of scientific evidence and the provisional adoption of a measure in the first sentence of Article 5.7 of the SPS Agreement. In accordance with the Appellate Body’s rulings in Japan-Agriculture Products II162 and Japan-Apples respectively, the Panel found that the first sentence of Article 5.7 applies to the adoption of a provisional measure, and that the second sentence relates to the maintenance of such a measure.163 Furthermore, the Panel reinforced its view by making a terminology comparison among Articles 5.6, 5.8 and the first sentence of Article 5.7 of the SPS Agreement.164 Articles 5.6 and 5.8 thereof explicitly specify not only the maintenance of SPS measures but also the establishment or introduction of SPS measures.165 By contrast, there is an intentional omission of the “maintenance” of SPS measures in the first sentence of Article 5.7 of the SPS Agreement.166 Therefore, it was concluded that
the element of the insufficiency of scientific evidence should be determined at the
162 See Japan–Agriculture Products II, supra note 87, para. 89. The Appellate Body stated that
“[p]ursuant to the first sentence of Article 5.7, a Member may provisionally adopt an SPS measure if this measure (meets the two requirements set out in the first sentence)” and that “[p]ursuant to the second sentence of Article 5.7, such a provisional measure may not be maintained unless the Member which adopted the measure (complies with the two requirements set out in the second sentence).”
163 EC–Biotech Products, supra note 10, para. 7.3250.
164 Id. para. 7.3251.
165 Id.
166 Id.
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time when the provisional SPS measure was adopted.167
The Panel also summarized that when dealing with the claims concerning Articles 5.1, 2.2, and the second sentence of Article 5.7 of the SPS Agreement, the requirement should be viewed as it existed at the time the Panel’s terms of reference were fixed. However, when dealing with the first sentence of Article 5.7, the time basis for examination is the time of adoption of the measures at dispute.168 The Panel considered the difference as not incongruent169 since the latter related to the adoption of the measure, while the former related to the maintenance of the measure.
Therefore, although a Member may obtain the justification for its measures from the insufficiency of scientific evidence at the time of the adoption of provisional measures, such Member might still violate its obligation under the SPS Agreement if it does not cease the provisional measures in the event of change in the sufficiency of scientific evidence.
3. The Final Determination of Consistency of Austria- T25 with Article 5.1 of
the SPS Agreement
The Panel found that both the SCP opinions delivered in the context of relevant EC approval procedures – the original assessments– and the SCP opinions delivered
167 Id. para. 7.3253.
168 EC–Biotech Products, supra note 10, para. 7.3256.
169 See id.
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after the adoption of the relevant member State safeguard measures – the review assessments – are risk assessments within the meaning of Annex A(4) to and Article 5.1 of the SPS Agreement.170 Therefore, at the time when the measure was adopted, the relevant scientific evidence was not insufficient.171 The Panel came to the conclusion that the measure at dispute did not satisfy the first requirement of Article 5.7, and consequently failed to be consistent with Article 5.7.172 Since the exemption provided by Article 5.7 cannot be successfully established, Article 5.1 applies to the measure at dispute. As indicated above, the SPS measure taken by Austria on T25 maize was not “based on” a risk assessment. The Panel determined that the EC had not acted consistently with Article 5.1 of the SPS Agreement.173
C. THE CONSISTENCY OF AUSTRIA-T25 WITH ARTICLE 2.2 OF THE SPS
AGREEMENT
There are three requirements in the Article 2.2 of the SPS Agreement: (i) SPS measures are to be applied only to the extent necessary to protect human, animal or plant life or health, (ii) SPS measures are to be based on scientific principles, and (iii) SPS measures are not to be maintained without sufficient scientific evidence.
170 Id. para.7.3260.
171 Id.
172 Id. para. 7.3261.
173 Id. para. 7.3262.
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For the first requirement, given the measure has been found to be inconsistent with Article 5.1 of the SPS Agreement, the Panel decided that the import prohibitions made effective through the relevant safeguard measures could not eventually be maintained as they are.174 Accordingly, the Panel exercised judicial economy regarding the claims under the first requirement in Article 2.2,175 finding no necessity to make judgment on whether the measures being challenged are inconsistent with such requirement.176
For the second and third requirements, the Panel, literally relying on the Appellate Body ruling in Australia-Salmon, concluded that by maintaining the challenged safeguard measures to be inconsistently with Article 5.1 of the SPS Agreement, the EC had, by implication, also acted inconsistently with the second and third requirements in Article 2.2 thereof.177
The Panel also recalled its finding that the measure was inconsistent with Article 5.7. Based on its analysis structure, the examination of the disputed measure’
consistency with Article 2.2 of the SPS Agreement can only be completed after firstly examining Article 5.7 thereof.178 As indicated, the Austrian safeguard measure on
174 Id. para. 7.3394.
175 Id.
176 Id.
177 Id. para. 7.3396.
178 Id. para. 7.3397.
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T25 maize was not based on a risk assessment as required by Article 5.1 of the SPS Agreement, and was not consistent with the requirements of Article 5.7 thereof.
Such conclusion means that an exemption to Article 2.2 of the SPS Agreement has not been established, and an implication of the inconsistency of the measure with Article 2.2 thereof can therefore be deduced.179
179 Id. para. 7.3398.
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VII. CONCLUSION
This Article manages to review and analyze how the WTO Panel applied and interpreted relevant SPS Agreement provisions over the highly controversial GMOs measures adopted by some EC members. Indeed, the Panel had dealt with legal issues very prudently and logically. Its ruling basically followed the jurisprudence of the Appellate Body in the previous cases in exact manner. Besides, the Panel’s contribution to a further elaboration on Articles 5.1, 5.5, 5.7 and 2.2 of the SPS Agreement should be highly regarded. The Panelist arguably fulfilled their responsibility as rigid law interpreters.
Overall, the Panel still adheres to the main concerns of the WTO over the liberalization of trade. As mentioned above, the Panel did interpret the legal texts logically and it seems hard to criticize the Panel report from a purely legal point of view. However, it is true that the current context of the SPS Agreement does not extend a proper consideration to the special situation of different cultures.180 The European countries that are more cautious to GMOs should be given more flexibility
180 See Laylah Zurek, The European Communities Biotech Dispute: How the WTO Fails to Consider Cultural Factors in the Genetically Modified Food Debate, 42 TEX.INT’L L.J. 345 (2007) (criticizing the ruling’s failure to consider cultural factors and non-market values in the GMO debate). See also
180 See Laylah Zurek, The European Communities Biotech Dispute: How the WTO Fails to Consider Cultural Factors in the Genetically Modified Food Debate, 42 TEX.INT’L L.J. 345 (2007) (criticizing the ruling’s failure to consider cultural factors and non-market values in the GMO debate). See also