Academic journal article Australian International Law Journal

Australia - Measures Affecting the Importation of Apples from New Zealand, WTO Panel Report, WTO Doc. WT/DS367/R (9 August 2010)

Academic journal article Australian International Law Journal

Australia - Measures Affecting the Importation of Apples from New Zealand, WTO Panel Report, WTO Doc. WT/DS367/R (9 August 2010)

Article excerpt

Introduction

The message that, trade liberalisation will deliver global benefits has been fundamental in the operation of the World Trade Organisation (WTO). (1) Accordingly, any state that implements mechanisms to protect their local produce, and in the process creates barriers for foreign imports, may be acting counter to the basic tenets underpinning the WTO. (2) It is axiomatic that the strategies used by many countries to protect local agricultural produce from disease have been targeted in recent years and labelled as protectionist policies. (3) This practice poses an interesting question as to the permissible scope of quarantine measures given that their inherent objective is to protect a country from health problems and disease. (4)

The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) (5) recognises this dilemma by providing for certain rights and responsibilities with respect to protecting local products for each Member, state. (6) The SPS Agreement allows countries to set their own standards with respect to protecting food safety, and animal and plant health within its borders. However, the SPS Agreement also requires that:

  ... in seeking to protect health, WTO members must not use SPS
  measures that are; unnecessary, nor science-based, arbitrary, or
  which constitute a disguised restriction on international trade. (7)

As such, all regulations adopted by a state must be based on scientific evidence. (8) This requirement restricts a Member state's ability to use technical barriers to trade, and in particular quarantine measures, as a means of restricting imports for the protection of domestic producers from foreign competition. (9)

In interpreting the SPS Agreement, the WTO must balance the rights and obligations that Member States must follow. (11) As has been highlighted in the recent Australia Apples Case, (11) these obligations are often construed as more important than the rights under the Agreement. This case is significant because of the WTO's strict interpretation of the 'risk analysis' and 'scientific evidence' obligations under the SPS Agreement. This interpretation may cause confusion for governments that have already adopted quarantine measures, based on available 'scientific evidence' or conducted their own risk assessments. (12) Accordingly, there is scope--and it is indeed desirable--for a clearer jurisprudence to develop in considering what quarantine protection measures should be permissible.

I. Background

Australia first imposed a ban on New Zealand apple imports in 1921 in order to prevent the spread of 'fire blight': a bacterial disease that damages apple trees and reduces their ability to produce fruit. In March 2007, Australia agreed to lift the then 86-year-old ban on New Zealand apple imports, but insisted on implementing strict quarantine measures to prevent the spread of disease. While the Australian Government is well within its rights to set its own parameters for the process of quarantining imports, prior to their entry into the country, such regulations must comply with the SPS Agreement. (13)

In the present case, the New Zealand Government contended that Australia's quarantine approach, as dictated by the Quarantine Act 1908 (Cth), was in breach of its obligations under the SPS Agreement. Conversely, Australia argued that its 'science-based approach to quarantine is consistent with the WTO rules'. (14) The quarantine process involved inspecting the fruit at packing houses in New Zealand before it was allowed into the country, and '[i]f there [were] any signs of fire blight or European canker, the import would be stopped'. (15) This rationale is consistent with the purpose of the measures adopted under the Quarantine Act; namely, to ensure:

  the prevention or control of the introduction, establishment and
  spread of diseases or pests that will or could cause significant
  damage to human beings, animals, plants, other aspects of the
  environment or economic activities. … 
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