WTO爭端解決小組就GMO爭議之裁決分析-以SPS Agreement第2.2條、第5.1條及第5.7條之解釋及適用為主

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科技法律研究所

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WTO 爭端解決小組就 GMO 爭議之裁決分析-以 SPS

Agreement 第 2.2 條、第 5.1 條及第 5.7 條之解釋及適用為主

An Analysis of the WTO Panel Ruling on GMO Dispute --

Focusing on the Interpretation and Application of Articles 2.2,

5.1 and 5.7 of the SPS Agreement

研究生：陳慧芝

指導教授：王敏銓博士

王文杰博士

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Abstract

The transboundary movement of Genetic Modified Organisms (GMOs) has

become a focal point of the international community. The management of and

control over GMOs involves huge economic interests and the protection of the

environment and public health. In 2003, the World Trade Organization (WTO), at

the request of GMOs-producing countries, established a Panel to adjudicate the

consistency of European Community State Members’ restriction on trade of GMO

products with the WTO rules. Given the high controversy and sensitivity of the

dispute, the Panel had conducted a very lengthy deliberation and finally reached a

conclusion in September of 2006. This Article aims to analyze the legal reasoning of

the decision, focusing on how the tribunal interpreted and applied certain critical

provisions governing the dispute. It is found that this ruling took a rigid stand on the

justification of applying trade restrictions on GMOs, although the right of WTO

members to protect national health has been fairly reaffirmed.

Keywords: GMOs, WTO, Panel Report, SPS Agreement, Scientific Evidence, Risk

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摘要

基因改良（Genetic Modified Organisms (GMOs)）的蓬勃發展以及其跨國貿

易的興盛，引發了世界貿易組織會員國間之貿易紛爭。GMOs 管制之複雜性在於其涉及龐大的經濟商機以及對環境及公共健康保護的公共利益，如何在貿易自由化以及此等非經濟的公共利益間取得平衡，乃近年來重要的國際貿易議題。西元 2003 年間，世界貿易組織在 GMOs 生產國之請求下，成立爭端解決小組（Panel）負責裁決有關歐洲共同體（European Community）及其會員國就基因改良產品所採取之影響貿易之管理措施是否符合世界貿易組織相關規定之爭端。由於該爭端之複雜性及高度爭議性，爭端解決小組進行了相當長的程序，費時三年多，始於西元 2006 年六月完成其報告。本文擬從本案之法律層面分析爭端解決小組之報

告對於 GMOs 管制於世界貿易組織下之合法性，尤其側重於 WTO Agreement on

the Application of Sanitary and Phytosanitary Measures 相關條文之解釋與適用。本

文觀察到爭端解決小組雖然再次肯認會員國採取措施以保障環境及公共健康的

權利，但其對於相關貿易限制措施之實施仍給予相當嚴格之檢視。

關鍵字：GMOs、世界貿易組織、爭端解決小組報告、SPS Agreement、風險評估

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誌謝

本篇論文的完成，首先要感謝我的指導老師—王文杰老師以及王敏銓老師，以及本篇論文的推手倪貴榮老師，數年來不斷的敦促與鼓勵，當我遊走在放棄邊緣之際，總是被老師的關懷給導引回到正途，堅持到最後。此外，也非常謝謝施文真教授，在酷熱的暑假天，撥冗審閱我的論文，擔任口試委員，給予我非常多寶貴的意見。透過口試過程的討論，啟發我在許多議題上能有更細緻及深入的思辯。同時也要謝謝協和國際法律事務所（LCS & Partners）的各位合夥人，除了在專業上給予我的指導以及焠鍊，並體諒且鼓勵我繼續完成論文。在繁忙的業務下，仍惠予准許留職停薪，讓我能專心研究寫作論文，也非常感謝所有同事的協助以及包容，沒有你們，我也無法完成本篇論文。各位交大科法所的同學以及學長姐，我常常在想，能夠有這麼一群好朋友，真的是我的幸運，人生有此難得交心的朋友，夫復何求?謝謝你們為我打開的每一扇窗，每一個在所辦度過的凌晨（不管是為了期刊編輯、練舞、趕報告、談心）、在組長家一年一度的聖誕聚會（包括海外連線的部份，以東京以及美國為首）、

ELSA Moot Court 的狂練以及友情贊助的 Mo 經理、以及所有我們共度的時光，都是在我人生的路途中美好且不可欠缺的，此份真摯的友誼，讓我們不管在哪裡、在什麼時候，都覺得溫暖有勇氣。最後，我要感謝我的家人，給予我無限的支持與愛，讓我能自由的飛翔，因為我知道，我總是有溫暖的港灣可以停泊。謝謝你們包容我所有的任性，並在我停滯困惑的時候，總是適時的給予智慧的指導。總是感覺獲得的太多，付出的太少，本篇論文的完成，讓我在學術上有進一步的成長，此刻除了感謝，也期許自己，能夠將所學發揮，多盡一分心力。 2010 年 7 月新竹

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Table of Contents

I. Introduction ...1

II. Rules under WTO Law Regime Relevant to GMOs Regulations ...9

A. Inter-relationship between SPS Agreement, TBT Agreement and GATT 1994 ...10

B. Legitimate purpose and the key elements of the SPS Agreement, TBT Agreement and general exception under GATT 1994 respectively...16

1. The legitimate purposes ...17

2. The key elements ...21

3. The appropriate ambit of SPS Agreement ...22

III. Safeguard Measures Adopted by EC Members...25

IV. Whether the Measure at Issue Is a “SPS Measure”? ...29

A. The Purpose of Austria T-25 ...30

B. Form and Nature of the Safeguard Measure...36

C. Economic Effects on International Trade ...37

D. Implication of the broad interpretation of the SPS measure ...37

V. The Legal Interpretation regarding the Relationship among Articles 5.1, 5.7 and 2.2 of the SPS Agreement ...40 A. Whether a Provisionally Adopted Measure Can Only Fall within Article

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5.7? ...40

B. Whether Article 5.7 of the SPS Agreement Is a Right or an Exception from the General Obligation under Article 5.1 thereof...43

1. Relationship between Article 2.2 and Article 5.7 of the SPS Agreement ...44

2. Relationship between Article 5.1 and Article 5.7 of the SPS Agreement ...52

C. Implication and Review of the Panel’s Approach of the Relationship among Articles 2.2, 5.1 and 5.7 ...56

VI. The Consistency of the Safeguard Measure with Articles 5.1, 5.7, and 2.2 of the SPS Agreement ...69

A. Initial Examination of a Measure’s Consistency with Article 5.1 of the SPS Agreement...69

1. A General Issue...69

2. Risk Assessment...71

3. Based on...73

B. Examination of A Measure’s Consistency with Article 5.7 of the SPS Agreement and the Final Finding regarding its Consistency with Article 5.1 thereof ...76

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1. Relevance of the Appropriate Level of Sanitary or Phytosanitary Protection with the Risk Assessment ...78 2. Time at which the “Sufficiency” or “Insufficiency” of Relevant

Scientific Evidence to be Assessed...84 3. The Final Determination of Consistency of Austria- T25 with

Article 5.1 of the SPS Agreement ...86 C. The Consistency of Austria-T25 with Article 2.2 of the SPS Agreement

...87 VII. Conclusion ...90 Chart I Procedures of the adoption and review of EC Member States’ safeguard measures………..28 Chart II Application Sequence of Articles 5.1 and 5.7 of SPS………56 Chart III Result of measures at dispute under Panel’s approach and Lang’s approach (compared to where the review and research were conducted in

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I. INTRODUCTION

Genetic Modified Organisms (GMOs) are defined by the World Health

Organization (WHO) as “organisms in which the genetic material (DNA) has been

altered in a way that does not occur naturally.”1 The initial objective of developing GMOs was to improve crop production so as to increase the yields. Following

decades of development, GMOs have been applied in a variety of ways, including for

industrial or medical uses. Although GMOs have become increasingly popular in

our daily life, there are also growing concerns on the safety and health of the

organisms.

Given the limitation or the lack of definite scientific evidence over the safety of

GMOs, countries adopt different approaches over the management of GMOs. The

United States (U.S.), the largest producer of GM foods,2 holds an open mind towards the production of GM foods3 and enacts scant laws on the control of GMOs.4 On

1

See WHO, 20 questions on genetically modified foods, available at http://www.who.int/foodsafety/publications/biotech/20questions/en/ (last visited March 1, 2009).

2

The U.S. accounted for fifty-four percent of global planted GM crops in 2006. See Debra M. Strauss, Feast or Famine: The Impact of the WTO Decision Favoring the U.S. Biotechnology Industry in the EU Ban of Genetically Modified Foods, 45 AM.BUS.L.J. 775, 778 (2008).

3

For an examination of the U.S. pro-GMO policy, see Alison Peck, The New Imperialism: Toward an Advocacy Strategy for GMO Accountability, 21 GEO.INT’L ENVTL.L.REV. 37, 48-57 (2008).

4

It is explained that the U.S. laws appear relatively lax in comparison to EU and international law on GMOs. See Debra M. Strauss, The International Regulation of Genetically Modified Organisms: Importing Caution into the U.S. Food Supply, 61 FOOD &DRUG L.J. 167, 176-89 (2006).

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the contrary, European countries are generally skeptical to the safety of the products,

adopting stricter regulations on the approval and marketing of the foods.5

The volcano of dispute finally erupted in 2003 as the World Trade Organization

(WTO) started to adjudicate a trade dispute regarding the restriction on GMOs. The

quarrel is among U.S., Canada, Argentina (hereinafter named the “Complaining

Parties”) and the European Communities (“EC”) (the “Responding Party”) on certain

measures taken by the latter and its members. The U.S., Canada, and Argentina, in

aggregate, account for 99% of the total production of GM foods.6 GM food sales are forecasted to reach US$25 billion by 2010.7 This figure reflects how huge economic interests would be generated in the production of GMOs, and may explain why these

three countries were angered by the EC’s trade measures. It is doubtless that the

WTO Dispute Settlement Body’s (the “DSB”) ruling on this dispute will be highly

significant and might have great influence not only on international trade but also on

the protection of the environment and public health. How these competing interests

will and shall be addressed under the WTO regime has become the toughest question

for the panelists as it is mandated by the preamble of the Marrakesh Agreement

5

Id.; see also Nick Covelli & Viktor Hohots, The Health Regulation of Biotech Foods Under the WTO Agreements, 6 J.IN’T ECON.L.773,773-74(2003).

6

Peter W. B. Phillips & W. A. Kerr, Alternative Paradigms: The WTO versus the Biosafety Protocol for Trade in Genetically Modified Organisms, 34 J. World Trade 63 (2000).

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Establishing the World Trade Organization explicitly requiring the sustainable

development and protection and preservation of environment when pursing the

expansion of international trade8 and as these public policy motivated measures touch upon the most sensitive nerves on the international agreements, i.e. state sovereignty

to pursue pubic interest.

The DSB Panel, at the request of the Complaining Parties, was established on

August 29, 2003. On account of the complexity and intense controversy over the

case, the Panel, not surprisingly, fell behind its schedule.9 A final Panel decision was not circulated to the Members until September 29, 2006,10 more than three years after the formation of the Panel.

8

According to the first paragraph of the preamble of the Marrakesh Agreement Establishing the World Trade Organization (the “Marrakesh Agreement”), the Parties to the Agreement, recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development [emphasis added]. The legal texts of the Marrakesh Agreement is available on the website of WTO, http://www.wto.org/english/docs_e/legal_e/04-wto_e.htm (last visited on June 17, 2010).

9

See Strauss, supra note 4, at 785-86.

10

Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, & WT/DS293/R, para. 2.1 (Sept. 29, 2006) (adopted Nov. 21, 2006) [hereinafter EC–Biotech Products].

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This dispute concerned two distinct matters: (1) the operation and application by

the EC of its regime for approval of biotech products; and (2) certain measures

adopted and maintained by EC Member States in prohibiting or restricting the

marketing of biotech products.11

Although both issues are critical to the future of biotechnology industry, this

Article will focus on the second issue in which the Panel provides a thorough analysis

on the interpretation and application of the Agreement on Sanitary and Phytosanitary

Measures (the “SPS Agreement”), especially Articles 2.2, 5.1 and 5.7 thereof. This

GMO case was not the first decision that addressed the application of these provisions.

Previous WTO Appellate Body Reports had tried to untangle the complicated

relationship among these three provisions.12 It was, however, worth observing whether the Panel would follow previous Appellate Body decisions or would provide

a more convincing ruling on the issues under dispute.

The interpretation of Articles 2.2, 5.1 and 5.7 of the SPS Agreement is crucial

because these three articles form the core rights and obligations of Members to take a

SPS measure. Article 2.2 requires SPS measures, among other requirements, be

taken based on scientific principles and is not maintained without sufficient scientific

11

Id. para. 2.1.

12

See e.g., Japan–Apples, infra note 75, EC-Tariff Preferences, infra note 80, EC–Hormones, infra note 18, Japan-Agriculture II, infra note 87.

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evidence, except as provided for in paragraph 7 of Article 5 of the SPS Agreement.

Article 5.1 requires a measure to be based on an assessment. Article 5.7 provides

SPS measures a Member may adopt in case where relevant scientific is insufficient

and the requirement thereof. The relationship of the application of Articles 2.2, 5.1

and 5.7 determine the scope of the rights on Members to take SPS measures, in other

words, it addresses to what extent of right the Member is accorded to adopt necessary

measures to address its public interest concerns. To address this issue, this Article is

aimed to clarify the nature of the Article 5.7 of the SPS Agreement, is it a right or an

exception from Articles 2.2 and 5.1? This issue is not only of substantively

significanct but also procedurally crucial because also affects the distribution of

burden of proof when Article 5.7 is invoked. After addressing this fundamental

issue, we would like to focus on the interpretation of the threshold element of the

Article 5.7 regarding the determination of sufficiency of scientific evidence, including

but not limited to (a) relevance of appropriate level of sanitary or phytosanitary

protection with the risk assessment and (b) time at which the sufficiency of relevant

scientific evidence to be assessed. Lastly, we would like also to draw the attention to

the review of order of these three articles and to explore what the implication is

behind such order and how this might affect the implementation of recommendation

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In addition, we also like to address another fundamental issue regarding the definition

of the SPS measure and the appropriate scope of the SPS Agreement as it determines

the applicability of the SPS Agreement to the present dispute on GMOs regulations.

Given the nine measures in dispute were all based on the same Directive of the

EC, there is no need to review all of these measures for the purpose of the legal

discussion of aforementioned provisions of the SPS Agreement. This Article

therefore selects the measure taken by Austria on T25 maize (thereinafter the

“Austria-T25”) as a model to discuss relevant issues.

Before going into examination of the measures at issue and the focus on the SPS

Agreement, this Article, will first take an overview of the relevant rules of the WTO

covered agreements with the regulations on the GMOs. To have a better

understanding of the GMOs regulations under the WTO regime, it is necessary to

have an overview first of what the relevant WTO covered agreements are and how

these rules interact with each other before going to review and analyze how WTO

Panel interpret a specific agreement of WTO covered agreements. In part III, this

Article will introduce the safeguard measure at issue. Part IV reviews the Panel’s

decision on whether the measure at issue should be covered by the SPS Agreement.

Part V examines the relationship among relevant SPS Agreement provisions. This

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Agreement in light of the Panel’s ruling in Part VI. The analysis includes the legal

interpretation of the applicable provisions and how the Panel applied them to this

instant case. The last part offers a conclusion. In addition, following the Panel’s

decision, a dispute between U.S., Canada and EC concerning the continued

suspension of obligations in the EC-Hormones Dispute (hereinafter “United States –

Continued Suspension of Obligations in the EC – Hormones Dispute”) was brought to

the WTO DSB. In that case, Articles 5.2 and 5.7 of the SPS Agreement remain the

core issues under dispute. The decisions of the Panel and the Appellate Body thereof

shed some lights on how the Panel report of the present case influence on the

subsequent decisions of the WTO DSB. Therefore, in this Article, we will refer to

them where relevant and appropriate.

Part of this Article is based on an previous draft of this Article, which was

co-authored by Hui-chih Chen, the author of this Article, and Associate Professor of

Law, Kuei-Jung Ni of Institute of Technology Law, National Chiao Tung University

and was published in the Journal of International Biotechnology Law, Volume 6 (2)

(2009). The main difference and development of this Article from its

aforementioned version is the further analysis of the implication of the Panel’s

approach of interpretation of Articles 2.2, 5.1 and 5.7 of the SPS Agreement,

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relevant to the GMOs regulations, especially the appropriate ambit of SPS Agreement;

(2) the newly-added Section IV(D) further elaborating on implication of the broad

interpretation of SPS measure by the Panel in EC-Biotech Products; (3) the

newly-added Section V(C) discussing the implication and reviewing the Panel’s

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II. RULES UNDER WTO LAW REGIME RELEVANT TO GMOS REGULATIONS

In addition to the most generally applicable General Agreement on Tariffs and

Trade 1994 (the “GATT 1994”), SPS Agreement and Agreement on Technical Barriers

to Trade (the “TBT Agreement”) are the other two WTO covered agreement relevant

to the GMO disputes. The SPS Agreement and TBT Agreement, though prominent

in an era where non-tariffs trade barriers become the signal for many trade disputes,13 the clarification on the interpretation and application thereof are in extreme need.

Non-tariffs trade barriers on trade have become the core issue of trade

regulations for WTO members. WTO, with its primary goal to facilitate the free

trade, has transferred its focus from reduction of tariffs to non-tariffs barriers as the

tariff reduction of its members are on track while difference and disagreements of

WTO members on their non-tariffs measures which are designed to address specific

13

There are 37 cases citing SPS Agreement and 41 cases citing TBT Agreement as one of the legal bases of the complainant under the WTO dispute settlement mechanism. To be more specifically, during the past two years (for the purpose of this argument, means the period from June 2008 to June 2010), there are six cases citing SPS Agreement as one of the legal bases of the complainant (they are DS 384, DS 386, DS 389, DS 391, DS 392 and DS 406) and there are seven cases citing TBT Agreement (they are DS 381, DS 384, DS 386, DS 389, DS 400, DS 401 and DS 406) among the 34 cases in aggregate according to the information of disputes provided by the WTO website, available at http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm (last visited on June 17, 2010).

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risks (such as health protection, environmental protections etc.), arises,14 which resulted in the negotiation and enactment of the SPS Agreement and the TBT

Agreement in the Uruguay round of trade negotiations.

The primary issue confronted by every panel is whether SPS Agreement applies

in a case where SPS Agreement, TBT Agreement and GATT 1994 might be involved.

This issue determines not only which agreement shall apply but further has

implication on the level of the deference the respondent member is given in taking the

specific non-tariff trade measure. To address this issue, this paper will first examine

the inter-relationship between these three agreements according to the provisions

thereof, then going further to give a close look at the legitimate purposes and the

elements of the SPS measure, TBT measure the general exception measures under

GATT respectively, concluded by the implication of the scope of the application of the

SPS Agreement.

A. INTER-RELATIONSHIP BETWEEN SPS AGREEMENT, TBT AGREEMENT AND

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

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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

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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

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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

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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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16

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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17

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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18

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;

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19

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

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20 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

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21

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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22 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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23

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 the Scope of the WTO Sanitary and Phytosanitary Measures Agreement, 17 EJIL 1009, 1017.

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24

regarding the most environmental problems, as opposed to those associated with

quarantine pests or diseases, or toxins of concern for human health.”35

The author of this article agrees with the above argument that when interpreting

the SPS Agreement, it should be kept in mind that the scope of the application of SPS

Agreement should not be over-stretched considering the rigid requirement of the

scientific evidence, which is contrast by the embrace of the precautionary principles

in the multilateral environmental agreements. However, from a practical point of

view, the arguments proposed above have to find their legal bases for the Panelists to

incorporate them in their interpretation of the SPS Agreement.36

35

Id.

36

For example, the reference to the negotiation history will not be considered unless the interpretation

according to Article 31 of the Vienna Convention on the Law of Treaties leaves the meaning

ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable according to

Article 32 thereof. The applicability of the precautionary principle under the multilateral agreement

or the rationale thereof in the present case falls within the issue regarding the relevance of other rules

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25

III. SAFEGUARD MEASURES ADOPTED BY EC MEMBERS

The Complaining Parties made a series of claims concerning measures adopted

by EC Member States which allegedly prohibited the import, use of, or marketing of

certain biotech products. These measures were adopted based on Article 16 of

Directive 90/220 (later replaced by Article 23 of Directive 2001/1837) and Article 12 of Regulation 258/97.38

Where a biotech product has been approved for Community-wide marketing

under Directive 90/220 or 2001/18, or Regulation 258/97, Member States ordinarily

may not prohibit or restrict trade in, or use of, that product in their respective

territories, provided the conditions attached to the marketing approval are being met.39 However, Article 16 of Directive 90/220, Article 23 of Directive 2001/18, and Article

12 of Regulation 258/97 provide exception clause to the rules mentioned above.

Although the language of these three directives is not exactly the same, their purposes

are quite similar.

These directives provide an exception on the conditions that, with new or

additional information, Member States have detailed grounds for considering that the

37

Parliament/Council Directive 2001/18/EC, 2001 O.J. (L106) 1.

38

Parliament/Council Regulation (EC) No. 258/97, 1997 O.J. (L43) 1.

39

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26

use of a food or a food ingredient complying with the regulations endangers human

health or the environment. If the conditions are met, Member States may adopt

safeguard measures, but these measures are provisional, pending a full assessment at

the EC level.40 A Member State adopting safeguard measure must immediately inform the EC Commission and other Member States of its measure.41 Following the procedures stipulated, the Commission must make a decision with respect to the

legality of the measure. Such a decision will result either in the modification of the

Community-wide marketing approval, or in the termination of the measure.42 The procedures of the adoption and review of the Member States’ safeguard measures are

illustrated in the Chart I below.

In the dispute of EC-Biotech Products, the Commission was notified of each

safeguard measure by the relevant Member States with evidence allegedly supporting

the adoption of each measure. On the basis of the information provided by the

Member State, the Commission in each case requested the opinion of the EC scientific

committee as to whether this information constituted relevant scientific evidence that

would permit the committee to consider that the products at issue constituted a risk for

40

Article 16(1) of Directive 90/220; Article 23(1), 3rd paragraph of Directive 2001/18; and Article 12(1) of Regulation 258/97.

41

Id.

42

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27

human health or the environment. The EC scientific committee finally came to the

conclusion that the relevant disputed products did not present any risks to human

health or the environment. However, at the time the panel was established, no

decision had been made at the Community level concerning any safeguard measure at

issue.43

As mentioned, there are nine disputed measures. The U.S., Canada and

Argentina referred to different provisions to make their claims. The U.S. asserted

that the nine measures violated Articles 5.1, 2.2, 5.3, 2.3 of the SPS Agreement and

Article XI:1 of GATT 1994. Canada’s complaint was based on Articles 5.1, 5.6, 2.2,

5.5, 2.3 of the SPS Agreement, Article XI:1 of GATT 1994 and Articles 2.1, 2.2, 2.9

of the TBT Agreement. Argentina contended that Articles 5.1, 5.6, 2.2, 5.5 and 2.3

of the SPS Agreement, Article Ⅲ of GATT 1994, and Articles 2.1, 2.2 and 2.9 of the

TBT Agreement were violated.

This Article will focus on the interpretation and application of Articles 5.1, 2.2

and 5.7 of the SPS Agreement in this case. The main issues are: (1) the relationship

among these three provisions and the implication thereof; (2) the sequence of

application of these rules, and (3) how the legal interpretation applies in this case.

43

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28

Chart I Procedures of the adoption and review of EC Member States’ safeguard measures

Different from the draft or No opinion is delivered Same with the draft

Submitted to

Member A adopting a safeguard measure

Inform Commission & Other members

Modification of the community-wide marketing

The termination of the measure

Make a draft Regulatory Committee or the Standing Committee on Foodstuffs The commission must adopt the draft

The commission must submit a proposal to the council of minister

The council must act in 3 months

If not, the commission must adopt the proposal

measure Make a comment on the draft

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29

IV. WHETHER THE MEASURE AT ISSUE IS A “SPS MEASURE”?

When determining if certain provisions of the SPS Agreement are violated, the

threshold question is whether the SPS Agreement is the applicable law in the case.

Compared to previous Panel and AB reports, this Panel Report provided a more

detailed analysis over this issue.

The Panel recalled that pursuant to Article 1.1 of the SPS Agreement, the

Agreement applies to “all sanitary and phytosanitary measures which may, directly or

indirectly, affect international trade.” Also, the Panel recalled that the term “SPS

measures” is defined in Annex A (1) of the SPS Agreement. The Panel decided that

when determining whether the SPS Agreement is the applicable law, the Panel must

examine (1) whether such measures are “sanitary or phytosanitary measures” (the

“SPS measures”), as defined in Annex A of the SPS Agreement; and (2) whether these

measures may, directly or indirectly, affect international trade.44

When analyzing whether a measure constitutes a “SPS measure,” the Panel

separated its analysis into two parts: First, whether the purpose of the measure falls

within one of the purposes enumerated in Annex A (1) of the SPS Agreement, and,

Second, determining the form and the nature of the measure.

44

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30

The Panel also pointed out several matters that needed careful attention when

determining the purpose of a measure. First, the determination must be made in light

of the specific circumstances of each case.45 In this case, the Panel reviewed both de

jure and de facto applications of the measure. Although Austria invoked Article 16

of Directive 90/220 and Article 12 of Regulation 258/97 as a ground in justifying its

measures, the Panel thought that “the mere invocation of, and reference to, the

aforementioned articles does not demonstrate, in and of itself, that a particular

measure is in fact being applied for the purpose of protecting health or the

environment.”46 Therefore, it is necessary to examine whether the measure applied by Austria fulfills the purpose mentioned in the aforementioned directives.

A. THE PURPOSE OF AUSTRIA T-25

In order to determine the purposes pursued by Austria T-25, the Panel reviewed

several documents: (1) the document entitled “Reasons for the decision of the

Republic of Austria to prohibit the placing on the market of GM maize line T25,”

which was sent by Austria to the Commission in support of its safeguard measure, (2)

a document submitted by Austria to the Commission for an Experts Meeting held in

Brussels in January 2004, and (3) a letter addressed to the Commission in February

2004 by the Austria Federal Minister for Health and Women.

45

Id. para. 7.2556.

46

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31

Based on the foregoing documents, the Panel found that the measure was

adopted to address four concerns: (1) the spread of pollen to cultivated surrounding

fields (co-existence); (2) long-term ecological effects in environmentally sensitive

areas; (3) allergenicity and toxicity; and (4) the development of antibiotic resistance.47 After figuring out the purposes of maize T25, the Panel proceeded to examine whether

these purposes fell within one of the categories of purposes which characterized SPS

measures in Annex A (1) of the SPS Agreement. The first two concerns are discussed

and analyzed as follows:

(1) Spread of pollen to cultivated surrounding fields

The Panel first clarified that Austria did not claim that the measure was intended

to prevent environmental effects associated with out-crossing between T25 maize and

conventional maize. Rather, Austria emphasized the need for “special measures

monitoring the possibility; this is mostly regarded as the safe-spread of pollen to

fields in the surrounding area which are cultivated with conventional maize.”48 Based on Austria’s statement, the Panel considered that the real concern of Austria

was the possible loss of economic value to farmers who can no longer market their

crops as non-GMO crops as a result of the existence of unwanted, out-crossed plants

47

Id. para. 7.2572.

48

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32 in their fields.49

The Panel recalled that the term “other damage” as it appears in Annex A (1)(d)

of the SPS Agreement includes economic damage which arises from the entry,

establishment or spread of pests and which is not a consequence of damage to the life

or health of plants. Also, the Panel found plants growing where they are undesired

can be considered as “pest.” 50 Consequently, the Panel came to the conclusion that this purpose of the measure fell within the scope of Annex A(1)(d) of the SPS

Agreement.51

By construing plants growing where they are undesired as “pest”, the Panel

seemed to open a wide door for the application of the SPS Agreement. There are

two implications embodied in such an interpretation. Firstly, it adopts a quite

comprehensive view of the interests protected by Annex A(1)(d). Secondly, by

applying this extensive interpretation, more national measures would likely be

construed as SPS measures. They then would have to be scrutinized under the

complicated and rigid disciplines of the SPS Agreement. Nevertheless, it seems hard

to say whether such an approach is more favorable to the members adopting the

measures, because while the first implication may favor the responding party, the 49 Id. 50 Id. para. 7.2576. 51 Id. para. 7.2577.

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33

second one may give support to the complaining party.

From the view of legal interpretation, it’s worth analyzing whether this broad

interpretation is appropriate. Given the issue is the interpretation of the wording,

“pest”, it is necessary to refer to an authoritative dictionary first. According to the

Oxford dictionary, “pest” is defined as an insect or animal that destroys plants, food

etc.52 Further, according to the common knowledge, pests are natural creatures, which, by their ecological design, are harmful to other kinds of creatures. These

creatures are usually hard to control and are unexpected. While GMOs as T25 maize

are not as pure as natural plants, such plants growing where they are undesired do

have some effects on the characteristic of the given product. Thus, the consumers

might take into account such effects when purchasing the goods. The economic loss

thus may not be avoidable. The next issue is whether such interests are protected in

Annex A (1)(d) of the SPS Agreement.

The Appellate Body in the US-Shrimp case once stated that: “They must be

read by a treaty interpreter in the light of contemporary concerns of the community of

nations about the protection and conservation of the environment.”53 The Appellate

52

Compact Oxford Dictionary, available at http://www.askoxford.com/concise_oed/pest?view=uk. The dictionary also pointed out an informal definition of pest as a person or thing that annoys you.

53

Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, para. 129 (Oct. 12, 1998) (adopted Nov. 6, 1998) [hereinafter the “US–Shrimp”].

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34

Body also referred to the opinion of the International Court of Justice to reveal the

importance of the evolutionary principle of treaty interpretation.54 The Appellate Body stated that“…the generic term ‘natural resources’ in Article XX(g) is not ‘static’

in its content or reference but is rather ‘by definition, evolutionary.”55 The jurisprudence aforementioned may provide some inspiration for the instant case.

When drafting the provisions of the SPS Agreement, the concerns on GMOs

were not as mature as nowadays. However, in the wake of the new development of

bio-science, the concerns about GMOs’ potential risk are becoming increasingly

evident. It has been documented that the spread of the pollen to cultivated

surrounding fields (co-existence) will result in the growth of GM maize in a

conventional maize field. Further, both pests and the GM maize have the same

characteristic of causing economic damage that is protected by Annex A(1)(d).

Bearing the evolutionary principle in mind, it therefore would be acceptable to

incorporate GM maize into the definition of pest.

(2) Long-term ecological effects in environmentally sensitive areas

There are some concerns that GM plants might crowd out or eliminate other

plants, due to a potential competitive advantage, invasiveness or persistence, thus

affecting the genetic diversity of remaining plant populations and putting the survival

54

See id., n. 109.

55

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35

of certain plant species at risk.56 The Panel considered that GM plants can be construed as a “pest” since they have such an adverse effect on non-vegetation.

Therefore, such measures are covered by Annex A (1) (a), as it applies “to protect […]

plant life or health […] from risks arising from the entry, establishment or spread of

GM plants qua ‘pest’.”57

The Panel regarded the adverse effects that GM plants may cause to the ecology

as a basis to include GM plants under the definition of pest. Since they have the

same characteristic of eliminating conventional plants,58 it should be appropriate to do so in light of the principle mentioned above.59

Furthermore, the Panel found that “to the extent a measure seeks to avoid

adverse effects of GMOs on the environment other than adverse effects on animal or

plant life or health, including on geochemical processes, such a measure can be

considered to be covered by Annex A(1)(d), inasmuch as it can be viewed as a

measure which is applied to prevent or limit ‘other damage’ from the entry,

establishment or spread of ‘pests.’”60

Overall, while embracing a broad perspective, the Panel considered the

56

EC–Biotech Products, supra note10, para. 7.2579.

57

Id.

58

Id. para. 7.2580.

59

See supra notes 39-41 and accompany text.

60

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36

objectives set by Austria to avoid potential long-term ecological effects of the release

into the environment of T25 maize to meet the definition of both (a) and (d) of Annex

A(1) of the SPS Agreement.

B. FORM AND NATURE OF THE SAFEGUARD MEASURE

The Panel first indicated that the reference to the second paragraph of Annex A

(1) of the SPS Agreement to “laws, decrees [and] regulations” should not be taken to

prescribe a particular legal form and the SPS measures may in principle take many

different legal forms.61 Furthermore, the reference in the same paragraph to “requirement” is broad and unqualified.62

The Austrian Safeguard measure on T25 maize was implemented through an

“ordinance”, which is not the type explicitly listed in Annex A (1) of the SPS

Agreement. However, it was found that the second paragraph of Annex A (1) therein

does not intend to prescribe a particular legal form. Austria’s ordinance was enacted

by the government with legal binding force. Therefore, the Panel was of the view

that the form and nature of the “law” required by the SPS Agreement has been

satisfied.63 61 Id. para. 7.2597. 62 Id. 63 Id. para. 7.2598.

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37

C. ECONOMIC EFFECTS ON INTERNATIONAL TRADE

According to the text of the Austrian Ordinance that went into effect in 29 April

2000, T25 maize was prohibited from being placed on the Austria’s market. The

Panel found that this prohibition applied also to imports of T25 maize from outside the

EC.64 Therefore, Austria’s measure on T25 maize affected the international trade. The Panel finally concluded that the disputed measure that satisfied the

requirements provided in Annex A(1) of the SPS Agreement was qualified as a SPS

measure and may affect international trade. Therefore, the measure should be

subject to the SPS Agreement.65

D. IMPLICATION OF THE BROAD INTERPRETATION OF THE SPS MEASURE

Panel’s broad interpretation of the SPS measure, though could not be found

legally wrong as reviewed above, might result in unexpected and adverse impact on

the development on the international law where trade and environment are

interweaved. As mentioned above, a broad interpretation of the SPS measure will

subject more national measures into the scrutiny of the SPS Agreement where

scientific evidence is required, which will encourage the complaining party to bring

international disagreements over SPS measures to be preferentially discussed and

determined in front of the WTO rather than under auspices of multilateral

64

Id. para. 7.2608.

65

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38

environmental institutions and treaties.66 Such trend could be reinforced by the quasi-compulsory jurisdiction under the Understanding on Rules and Procedures

Governing the Settlement of Dispute.67 A rampant recourse to the WTO dispute settlement regime, amplified by the Panel of EC-Biotech Products’ rigid restriction on

the introduction of other international multilateral environmental agreement in its

interpretation of the WTO covered agreements by establishing the high threshold

requiring that all WTO members be the parties to such agreements,68 might limit the development of the dialogue between trade and environment in diversified forums.

As mentioned above, we noted that the Panel in EC-Biotech Products’

recognition of separate application of SPS Agreement and TBT Agreement to a

disputed measure in light of the multiple purposes embodied therein, though might

ease, but cannot completely resolve the tension arising from a broad interpretation of

the SPS measure resulted from broad interpretation of SPS purposes provided under

Annex A of the SPS Agreement, at least to the extent TBT Agreement and SPS

Agreement are overlapped. The broader the overlap is, the broader the application

66

See Peel, supra note 34, at 1025 & 1026.

67

See Appellate Report, Mexico-Tax Measures on Soft Drinks and other Beverages, WT/DS308/AB/R, paragraphs 44 to 57 (adopted on March 24, 2006) [hereinafter “Mexico-Taxes on Soft Drinks”]. The Appellate Body in Mexico-Taxes on Soft Drinks upheld Panel’s conclusion that "under the DSU, it ha[d] no discretion to decline to exercise its jurisdiction in the case that ha[d] been brought before it."

68

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39

SPS Agreement is and the narrower the application of TBT Agreement is. Therefore,

the aforementioned issues regarding the interpretation of SPS purpose and appropriate

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40

V. THE LEGAL INTERPRETATION REGARDING THE RELATIONSHIP AMONG ARTICLES 5.1, 5.7 AND 2.2 OF THE SPS AGREEMENT

In analyzing the consistency of the disputed measure within the framework of the

SPS Agreement, the Panel confronted a preliminary issue: what is the relationship

between Articles 5.1 and 5.7 of the SPS Agreement?

The complaining parties requested the Panel to examine whether the measure

was consistent with Article 5.1. However, the responding parties argued that the

measure at issue should be assessed under Article 5.7 with a view to the exclusion of

Article 5.1.69 The Panel started its analysis from the issue of whether a provisionally adopted measure can only fall within the purview of Article 5.7.

A. WHETHER A PROVISIONALLY ADOPTED MEASURE CAN ONLY FALL WITHIN

ARTICLE 5.7?

The EC relied its argument on the Appellate Body’s jurisprudence in the

Japan-Apples case,70 asserting that if a measure was provisional, it should fall within the scope of Article 5.7 of the SPS agreement. In the view of the EC, the

“provisionality” is the “demarcation line” between Article 5.1 and Article 5.7 of the

69

EC–Biotech Products, supra note 10, para. 7.2923.

70

The European Communities referred to the statement of the Appellate Body in Japan–Apples case, stating that “when a panel reviews a measure claimed by a Member to be provisional, that panel must assess whether ‘relevant scientific evidence is insufficient.’”

(48)

41 SPS Agreement.71

The U.S. responded that the mere labeling of a measure as “provisional” is not

sufficient in itself to bring it within the scope of Article 5.7 of the SPS Agreement.

In order to subject a measure to the conditions of Article 5.7 therein, the measure must

satisfy the four criteria provided in it.72

Both Canada and Argentina submitted that the demarcation line should be the

“insufficiency of the evidence.”73

The Panel set out its analysis by examining the structure of Article 5.7 of the SPS

Agreement. The first sentence follows a classic “if-then” logic: if a certain condition

is met (in casu, insufficiency of relevant scientific evidence), a particular right is

conferred (in casu, the right provisionally to adopt an SPS measure based on available

pertinent information).74 Thus, it is reasonable to state that Article 5.7 of the SPS Agreement can be invoked where relevant scientific evidence is insufficient. The

Japan-Apples ruling can also support this view, which stated that “the application of

Article 5.7 is triggered not by the existence of scientific uncertainty, but by the

insufficiency of scientific evidence.”75

71

EC–Biotech Products, supra note 10, para. 7.2939.

72

Id. para. 7.2934.

73

Id. paras. 7.2935 & 7.2937.

74

Id. para.7.2939.

75

WTO爭端解決小組就GMO爭議之裁決分析-以SPS Agreement第2.2條、第5.1條及第5.7條之解釋及適用為主

國

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科技法律研究所

碩

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WTO 爭端解決小組就 GMO 爭議之裁決分析-以 SPS

Agreement 第 2.2 條、第 5.1 條及第 5.7 條之解釋及適用為主

An Analysis of the WTO Panel Ruling on GMO Dispute --

Focusing on the Interpretation and Application of Articles 2.2,

5.1 and 5.7 of the SPS Agreement

研 究 生：陳慧芝

指導教授：王敏銓 博士

王文杰 博士

Abstract

摘要

誌謝

研究生：陳慧芝

指導教授：王敏銓博士

王文杰博士