Lecture 8 Flashcards
Health and Safety Standards in Trade Regulation
- increasing source of tension in international trade relations
- non-tariff barrier to trade
What is the effect of lax h and s standards in trade?
Creates health and safety risks
Did GATT originally contain h and s provisions?
No, however Article XI (quanititative restrictions), Article I (MFN) and Article 111.4 (National Treatment Principle) assist in this.
Where does a country look to justify restrictions?
Article XXb (necessary to protect human/animal/plant health)
What does article xxb provide?
exceptions from the disciplines of the GATT for trade measures necessary to protect human, animal or plant life for health, or relation to the conservation of natural resources
Tokyo Round
Standards Code was adopted, signed by 46 members
- criticized for failing to distinguish adequately between necessary and unnecessary restrictions on trade.
Uruguay Round
two new agreements were negotiated: SPS and TBT, which are binding to all members
What is the SPS agreement?
measures that protect animal/plant health within a territory from risks arising from the entry of other disease carrying organisms, and to protect human life within the territory of the member from risk arising from additives, food toxins ect
Who does SPS apply to?
Members, who must ensure that measures are applied only to the extent necessary to protect life, based on scientific principles, and is not maintained without sufficient scientific evidence (Article 5.7 (Article 2.2)
What is the second things that members must ensure about SPS application?
that measures do not arbitrarily or unjustifiably discriminate bw members where identical/similar conditions prevail (Article 2.3)
What is the SPS risk assessment process?
members shall ensure that their sps measures are based on assessment of risks, taking into account risk assessment techniques (article 5.1) and avoiding arbitrary or unjustifiable distinctions in levels of sps protection (Article 5.5)
SPS trade restrictions
Members must ensure that measures are not more trade restrictive than required to achieve their appropriate level of sps protections, taking into account technical and economic feasibility (Article 5.6)
SPS acceptance of other member measures
Members shall accept the SPS measures of other members as equivalent. Reasonable access shall be given, upon request, to the importing member for inspection, testing, and other relevant procedures. Multilateral approach (Article 4)
TBT Agreement
Covers all technical product regulations and standards not in the SPS agreement. Cannot be applied in an arbitrary/unjustifiable way between countries where the same conditions prevail
TBT 2.1
with regard to technical regulations, treatment no less favourably than like domestic products.
TBT 2.2
obligation on members to ensure that technical regulations are not more trade restrictive than necessary to fulfill a legitimate objective.
TBT 2.4
members must use international technical standards as the basis for their own regulations, except where such international standards would be an ineffective or inappropriate means for the fulfillment of the legitimate objectives
What are international standards
They are not defined in the tbt agreement and there is no list of international standard setting bodies whose standards are recognized as to section 2.4
TBT 2.7
accepting the technical regulations of other countries as equivalent to their own, provided that the foreign regulations accomplish the same objectives
TBT 2.8
regulations based on product performance
Articles 2.5, 2.9 and 2.11
notification and publication requirements on members enacting new technical regulations
SPS Caselaw: Beef Hormones (1998)
- EU’s regulatory measures did not conform to international standards, risk assessment did not conform to WTO
- endorsed scientific evidence that is “reasonably sufficient”
- Deferential approach
Japan- Apples (2003)
- less deferential approach
- assessment of rational connection bw science and impugned SPS measure did not require deference
Beef Hormones (2008)
criticized the Panel in the Japan Apples (2003) proceedings for somewhat peremptorily deciding what is considered the best science.
Australia: Measures affecting the importation of Apples from New Zealand (2010)
risk assessment base its conclusions on the available scientific evidence, use of expert judgement had not been sufficiently transparent and therefore was not considered proper.
EC-Biotech (2006)
- EC country bans on certain GMO crops did not meet the requirements of Article 5.7 of SPS.
- Studies carried out on the banned GMO crops by the EC scientific committee and by other competent national authorities constituted sufficient risk assessment, therefore the requirement for ‘insufficient scientific information’ was not met.
EC- Trade Description of Sardines (2002)
AB held that regulation was not based on relevant international standards
- Peru did not meet the burden of proof in demonstrating that the int standards would be effective in achieving all three EC measure objectives
What are the three objectives advanced for the EC measure?
- market transparency
- consumer protection
- fair competition
US- Clove Cigarettes (2012)
- less favourable treatment of like product
- AB found for Indonesia
US- Tuna Labelling II (2012)
Dolphin safe labelling on tuna products.
The panel found that the measure was a technical regulation because it had some mandatory features
AB reversed finding, US provisions were inconsistent with TBT 2.1
What is a technical regulation according to TBT?
To be mandatory, a technical regulation must regulate the characteristics of products in a binding or compulsory fashion, as was the case of requirements for use of dolphin safe labels.
US- COOL 2012
- Mandatory labelling for pork and beef from Canada and Mexico
- regulating state must define its objectives in a coherent manner
EC- Seal Products (2014)
Norway and Canada, nature of the seal hunt
- AB ruled technical regulation, identity of hunter or purpose of the hunt are not characteristics of the product itself.
