Academic journal article Law and Policy in International Business

The Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Technical Barriers to Trade

Academic journal article Law and Policy in International Business

The Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Technical Barriers to Trade

Article excerpt

I. NATURE OF THE AGREEMENTS

The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and the Agreement on Technical Barriers to Trade (TBT Agreement) are, in many ways, related accords. Both agreements recognize the right of WTO member countries to establish technical regulations and to apply those regulations to imported products. Both circumscribe that right by laying down rules governing the development and application of such regulations, using a certain number of similar provisions. For the most part, the coverage of the two agreements is complementary; indeed, the TBT Agreement defines its scope in part through reference to the SPS Agreement.(1)

Nevertheless, there are fundamental differences between the two agreements. While the SPS Agreement explains the general exception contained in Article XX(b) of the General Agreement on Tariffs and Trade (GATT) (or, legally speaking, an affirmative defense), the TBT Agreement explains the obligations contained in GATT Article III. In other words, the SPS Agreement establishes the principles upon which a Member might legitimately assert that its measures are "necessary to protect" human, animal, or plant life or health from certain specified risks.(2) The TBT Agreement, on the other hand, is not a defense; it enumerates the particulars of the national treatment obligations that Members are under when they impose technical requirements or standards. This means that a measure that is not intended to address a particular health or safety risk is susceptible to challenge under either the GATT or the TBT Agreement, without any affirmative defense. A measure directed at a specified health or safety risk, however, would be adjudged under the SPS Agreement, which effectively incorporates the general exception of Article XX (b).

Second, the scope of the SPS Agreement is well defined and relatively narrow.(3) Consequently, it was possible for Uruguay Round negotiators to agree on certain objective standards of legitimacy for all SPS measures, and to turn those standards into binding disciplines. The coverage of the TBT Agreement, on the other hand, is extremely broad and diverse, and it was difficult to develop firm, objective disciplines that could apply to the entire range of measures covered. Consequently, the TBT Agreement contains few substantive obligations, and none that go substantially beyond those already spelled out under the GATT. Article 2.1 essentially repeats the national treatment obligation from GATT Article III. Article 2.2, the most important provision in the TBT Agreement, requires Members to ensure that technical regulations are "not more trade restrictive than necessary to fulfill a legitimate objective." This obligation is so general--of necessity because of the broad range of measures covered--that it is difficult to apply. It is a useful discipline only in the most egregious cases, and such cases could normally also be prosecuted under GATT Articles II (schedule of concessions), III (national treatment), or XI (elimination of quantitative restrictions).

As a result, the most important provisions of the TBT Agreement are those relating to procedural requirements, and that the Agreement's principal (not insignificant) contribution to the international trading system has been to promote transparency and information exchange. There have been no dispute settlement findings based on the Agreement.(4) Indeed, only once has a Member based arguments on the TBT Agreement in a panel proceeding (the United States in European Communities--Measures Concerning Meat and Meat Products (Hormones)), and in that case the panel found that the Agreement was not applicable to the dispute.

II. DISPUTE SETTLEMENT UNDER THE SPS AGREEMENT

On the other hand, Members were quick to put the SPS Agreement to the test. To date, three disputes have traveled the full course of panel and Appellate Body proceedings under the Dispute Settlement Understanding (DSU), and are now in the throes of implementation. …

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