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.