The purpose of the agreement is well surmised by the first paragraph in the preamble of the Agreement:
Reaffirming that no Member should be prevented from adopting or enforcing measures necessary to protect human, animal or plant life or health, subject to the requirement that these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail or a disguised restriction on international trade
- Thus, the purpose is:
- To allow for protection of human, animal or plant life/health
- Whilst maintaining that such protection:
- is not arbitrary
- or unjustifiable
- Bring within the agreement
- Int’ll standards
- If above international standards, scientific evidence
- If no evidence, precautionary principles
- SPS Art. 1 brings “all measures” to do with SPS (defined in Annex 1), that “directly or indirectly affect international trade” within the scope of the agreement.
- Members are able to create barriers to trade for the sake of SPS, as long as they abide by the requirements of the agreement (SPS Art. 2:1)
- These barriers may be made, only as necessary, with reference to sufficient scientific evidence (unless the precautionary principle applies) (SPS Art. 2:2)
- These barriers must not arbitrarily or unjustifiably discriminate and may not be applied in a manner that is a disguised restriction on international trade (SPS Art. 2:3)
- Members should take into account Economic effects, as well as attempt to minimise Negative Trade Effects of their measures (SPS Art. 5:3, 5:4, 5:6)
Harmonisation with GATT
- Since GATT Art. 20:b already deals with this issue, there was the potential for an issue of conflict of international law. However, since the SPS agreement was the modernisation of GATT Art. 20:b, and it was written in light of this potential dilemma, it was curtailed as follows:
- Firstly, GATT Art. 20:b was referenced in the preamble:
Desiring therefore to elaborate rules for the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b)1
- In the footnote, the chapeauxof the article is also mentioned.
- Thus, from the outset, this agreement is shown to illuminate the GATT, Art. 20, rather than to conflict with it
- Secondly, the lex specialis nature of the agreement is highlighted in SPS Art. 2:4
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)
- If a measure satisfies the requirements of the SPS Agreement, it is held to satisfy the exception in GATT Art. 20
SPS and TBT
- Where the measure does not fall within SPS, this agreement does not infringe on rights given by the TBT agreement (SPS art. 1:4)
Without harmonisation, SPS agreements would create a barrier to trade inadvertently, since an exporter would have to ensure that measures coalesce with a multitude of SPS requirements. Thus, the text of the SPS Agreement highlights the importance of international standards. For the same reason that international standards are important, transparency, too, is important, and required (SPS Art. 7).
- Where international standards exist, SPS requirements should be based on them (SPS Art. 3:1)
- If an SPS requirement falls within international standards, it is deemed both necessary, and consistent with both SPS and GATT.
Where measures are above and beyond international standards (Art 3:3)
Whilst SPS measures within international standards are deemed to be consistent, measures may be valid even if they are above and beyond this.
- The following must be proven for this to be valid (Art 3:3):
- that there is relevant scientific informationsupporting their claim
- that the measure is necessary
- Note: if Art 3:3 is used, there is no shift in the burden of proof: the complaining party still has the burden of proof
Requirement for scientific evidence
A measure that claims to be “for the protection” of human, plant or animal life/health will not automatically be protected: it must be adequately supported by scientific evidence (SPS Art. 2:2).
- Measures should be based on an appropriate risk assessment (SPS Art. 5:1) and scientific evidence (SPS Art. 5:2)
- Measures going above international standards, must be supported by scientific evidence (SPS Art. 3:3)
- SPS Art. 5:7states that the precautionary principle is still in existence, however, there are strict limitations on it.
- There must not yet be sufficient scientific evidence (this is why EC – Hormoneswouldn’t fall within this provision)
- If that is satisfied, a provisional adoptionof SPS measures is OK
- But, during that period, members must continue their research
- Note this applies only where there is insufficient information, not where the evidence is unclear/unresolved
- In the case of unclear/unresolved evidence, you go to the “requirement for scientific evidence,” but face an uphill battle
- Scientific evidence must be weighed by legal/trade professionals
- SPS can’t be excused for developing countries for political reasons: a product is just as unsafe no matter where it comes from
- EC Hormones
- failed because was not in international standards, was not precautionary, and was insufficient scientific evidence to prove
- Japan Apples
- Regarding a bug in apples, Japan put a ban on apple imports
- But, failed, because measure was not sufficiently connected with the risk (scale, trade effects, etc.)