1. The Agreement on Sanitary and Phytosanitary (SPS) Measures

2. Key issues
What are the rights and responsibilities of governments under the SPS Agreement?
How does the SPS Agreement attempt to provide protection while limiting protectionism?
How has the SPS Agreement worked in practice

3. Non-tariff barriers
GATT (The General Agreement on Tariffs and Trade) allows countries to maintain tariffs on trade
Other economic restrictions on trade (e.g. quotas) are frowned upon
Technical standards can also restrict trade
divergent standards are a pain in our private lives, and in international trade
and this can be particularly problematic when those standards are designed to protect human, animal or plant health

4. Approaches to dealing with differences in regulatory regimes
Harmonisation
Mutual recognition
Coordination (regulatory rapprochment)

5. Private & Public Initiatives to Harmonise Divergent Standards
Private: one design may dominate the market place. For example Microsoft’s Windows operating system dominates over Apple’s Mac OS
Long history of international standards setting. For example:
1906 International Electrotechnical Commission (IEC)
1946 International Organization for Standardization (ISO)
1962 Codex Alimentarius Commission (of FAO & WHO)

6. Article XX: General Exceptions
Trade barriers are possible if: “not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination …. or a disguised restriction on international trade”; and are
(a) necessary to protect public morals
(b) necessary to protect human, animal or plant life or heath
note: nothing about animal welfare
(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption

7. Uruguay Round Accords Agreement on Technical Barriers to Trade [TBT]
Agreement on the Application of Sanitary and Phytosanitary Measures [SPS]
TBT: all measures, except those covered by SPS Agreement

8. Technical Barriers to Trade Agreement (TBT)
Tries to ensure that regulations, standards, testing and certification procedures do not cause unnecessary obstacles to trade
TBT covers any regulations which do not fall under SPS
Food related examples: shape of food cartons; packaging, labelling, food quality standards

9. What is an SPS measure?
To protect animal or plant life or health … from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease causing-organisms
To protect human or animal life or health … from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs
To protect human life or health … from diseases carried by animals, plants or products thereof, …
To prevent or limit other damage … from the entry, establishment or spread of pests

10. The SPS Agreement Basic Rights and Obligations Harmonization
Equivalence
Assessment of Risk & the Appropriate Level of Protection
Regionalisation
Transparency, Consultation & Dispute Settlement, Administration
Control, Inspection and Approval
Technical Assistance
Special & Differential Treatment

11. Basic Rights and Obligations
2(1): Members have the right to take SPS measures necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent with the provisions of this Agreement
2(2): Members shall ensure that any SPS measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in 5(7).
2(3) SPS measures should not arbitrarily discriminate between countries where similar conditions prevail. Sanitary and phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade.

12. Harmonization and the Role of the Standards Setting Agencies
3(2) SPS measures that “conform to international standards … shall be deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with… this Agreement …”
3(3) May maintain higher SPS measures if scientifically based (as in Article 5)
Three bodies explicitly recognised
Codex Alimentarius Commission
International Office of Epizootics [OIE]
International Plant Protection Convention [IPPC]

13. Basic rules
the SPS Agreement does not specify the appropriate level of protection
must be based on science
must be comparable across sectors
the SPS Agreement does not oblige countries to take account of the adverse economic effect on their trading partners
must not discriminate
must have minimal trade effect

14. Other provisions Equivalence Risk analysis – role of science
Regionalisation
Transparency
Precautionary principle (Art. 5.7)
If relevant scientific evidence is insufficient, members may adopt SPS measures, on a provisional basis, while seeking additional information about the risks posed by a hazard.

15. Role of international standards
Operation of the Codex Alimentarius
Becoming more politicised
Concern at the influence of industry scientists
Limited influence of developing countries

16. Developing Countries and SPS
Some Special & Differential Treatment
e.g. developed countries can be asked to provide English, French or Spanish translations of their legislation (compare Japan and South Korea)
Lack of resource (Geneva offices, personnel, travel funds, appropriate laboratories, etc.) makes it difficult for many to participate in the SPS (and other WTO) committees and the standard setting bodies

17. Doha
The SPS Committee was asked to review the Agreement. This fed into the Doha Ministerial
The Ministerial ‘instructed’ the Committee to ‘develop expeditiously’ the programme on equivalence
Instructed the Committee to review the Agreement at least once every four years
Made pious noises about effective participation by all WTO Members