Almost every day newspapers carry stories which implicate the SPS Agreement. From avian flu and GMOs to 'mad honey disease', the trade dimension of these is never far from the surface. The SPS Agreement is concerned with trade and food safety regulation, and with the regulation of pests and diseases in agriculture. This book offers a legal commentary on this agreement, and on the case law which has grown up around it. It examines how the agreement has turned to science, as well as the operation of the SPS Committee as a site for transnational governance. It also examines the agreement's attempt to establish a framework to draw together the diverse institutions and regulatory regimes already populating the food safety arena.

Table of Contents

INTRODUCTION 1

CHAPTER 1: INTRODUCING THE SPS AGREEMENT 8

A. Introduction 8

B. The Concept of an SPS Measure 9

C. Direct or Indirect Effect on International Trade 24

D. The Relationship Between the SPS Agreement and GATT/TBT 26

E. Implementation 29

F. Autonomy in Setting Appropriate Level of Protection 34

CHAPTER 2: COOPERATIVE REGULATION IN THE WTO: THE SPS COMMITTEE 40

A. Introduction 40

B. The SPS Committee 47

C. Information Exchange and Peer Review 49

D. The SPS Committee and Norm Elaboration 59

i. Regulating the Operation of the Committee 60

ii. Monitoring the Process of International Harmonization 64

iii. Elaborating the Norms Laid Down in the Agreement 68

D. Conclusion 73

CHAPTER 3: SCIENCE AND SPS 75

A. Introduction 75

B. The Science Based Obligations 79

C. The Relationship Between Article 2.2 and Article 5.1 80

D. Article 2.2 82

i. Sufficient scientific evidence 84

E. Article 5.1 Risk Assessment 89

i. What Counts as a Risk Assessment for Article 5.1? 89

a. Likelihood and Potential 91

b. Specificity 92

c. Consideration of Alternatives 93

d. Risk Assessment as Appropriate to the Circumstances 95

e. Factors to be Taken into Account in Risk Assessment 97

ii. What Does it Mean for a Measure to be Based on Risk Assessment? 102

F. Article 5.7: Provisional Measures Where Insufficient Scientific Evidence 109

i. The Relationship Between Article 2.2 and Article 5.7 110

ii. The Relationship Between Article 5.1 and Article 5.7 111

iii. Background Condition: Insufficient Scientific Evidence 113

iv. Additional Latitude: Basing Measures on Available Pertinent Information 118

v. Provisionality I: Seek Additional Information 120

vi. Provisionality II: Review Measure Within a Reasonable Period of Time 121

vii. The Temporal Dimension 121

G. A Brief Note on the Precautionary Principle 125

H. Dispute Settlement Dimensions 127

i. Burden of Proof 127

ii. Scientific Experts in SPS Dispute Settlement 131

I. Conclusion 135

CHAPTER 4: ADDITIONAL OBLIGATIONS 138

A. Introduction 138

B. Non-Discrimination: Articles 2.3 and 5.5 SPS 138

i. Article 2.3 139

ii. Article 5.5 142

a. Different Levels of Protection in Different Situations 143

b. Arbitrary or Unjustifiable Differences 144

c. Discrimination or Disguised Restriction on International Trade 150

d. The Article 5.5 Guidelines 154

e. The Relationship Between Article 2.3 and Article 5.5 155

C. Least Trade-Restrictive Means: Article 5.6 SPS 155

D. Equivalence: Article 4 SPS 161

E. Regionalization: Article 6 SPS 178

F. Conclusion 189

CHAPTER 5: THE TRANSPARENCY OBLIGATIONS 190

A. Introduction 190

B. Legal Framework 192

C. SPS Regulations 194

D. Notification 196

i. Regular Format 196

ii. Notification and International Standards 197

iii. Significant Effect on Trade 199

iv. What Notification Involves 201

v. Notification of Emergency Measures 204

vi. SPS and TBT 205

vii. Notification of Equivalence Agreements 206

E. Publication 207

F. Responding to Enquiries 207

G. Transparency: The Language Dimension 208

H. Transparency: An Assessment 209

I. The Role of the Secretariat 211

CHAPTER 6: CONTROL, INSPECTION AND APPROVAL PROCEDURE 214

A. The Procedural Turn in Law 214

B. Annex C: Control, Inspection and Approval Procedures 215

i. Annex C(1) 217

a. Annex C(1)(a) first clause 221

b. Annex C(1)(a) second clause 226

c. Annex C(1)(b) 228

ii. Annex C(2) 229

iii. Annex C(3) 230

C. Traceability, GMOs and Annex C 231

CHAPTER 7: INTERNATIONAL STANDARDS 240

A. Introduction 240

B. What are International Standards in the SPS System? 240

C. The Sister Organizations 242

i. Codex Alimentarius Commission (Codex) 242

ii. World Organization for Animal Health (OIE) 245

iii. International Plant Protection Convention (IPPC) 246

D. Member States and International Standards 247

i. Basing Measures on International Standards 247

a. When Will International Standards be Deemed to Exist? 248

b. What Does it Mean to Say that an SPS Measure Is (Or Is Not) Based on Such Standards? 250

c. When Can Members Choose Not to Base Their Measures on International Standards 251

ii. Measures Conforming to International Standards 253

iii. International Standards and the Burden of Proof 255

iv. Can International Standards be Used to Ratchet-Up Members' Levels of Protection? 258

E. Monitoring the Use of International Standards 262

F. Developing Country Participation in International Standard-Setting 266

G. Conclusion 270

CHAPTER 8: SPS AND DEVELOPING COUNTRIES 276

A. The SPS Agreement and the Development Challenge 276

B. Special and Differential Treatment and Technical Assistance 280

i. Special and Differential Treatment 280

ii. Technical Assistance 291

C. Private Standards 298

D. Dispute Settlement and Developing Countries 302

E. Conclusion 306

AGREEMENT ON THE APPLICATION OF SANITARY AND PHYTOSANITARY MEASURES 308

Index 000

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