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The Sanitary and Phytosanitary Agreement of the World Trade Organization: Debunking Its Reliance on Scientific Evidence and Reluctance to Endorse Potential Biotechnology Risks

Published online by Cambridge University Press:  24 May 2021

Muhammad ISLAM Open the ORCID record for Muhammad ISLAM [Opens in a new window]
Muhammad ISLAM*
Affiliation:
Emeritus Professor, Macquarie Law School, Macquarie University, Sydney, Australia; email: rafiqul.islam@mq.edu.au.
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Abstract

The World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) relies on scientific evidence as a conclusive risk assessment criterion, which ignores the inherent limitations of science. This article highlights certain trade-restrictive effects of scientific evidence and comments on the Agreement’s aversions to precautionary measures and the consumer concern of the harmful effects of biotech products that may be necessary to protect public health and biosecurity in many WTO Member States. These measures and concerns have become pressing issues due to surging consumer awareness and vigilance concerning environmental protection and food safety. The Agreement is yet to overcome the weaknesses of its endorsed international standardising bodies, the problematic definition of scientific evidence and treatment of justification for scientific risk assessment methods and the implementation difficulties faced by most developing states. This article analyses these issues under the provisions of the Agreement and the interpretations of the WTO Dispute Settlement Body in disputes involving SPS matters, which fall short of addressing scientific uncertainty surrounding biotech products and their associated risks.

Type
Articles
Information
European Journal of Risk Regulation , Volume 12 , Issue 3: Special Issue on Biotechnology in International Economic Law and Human Rights , September 2021 , pp. 547 - 563
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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References

1 For a critical analysis of the Agreement, see MR Islam, International Law of the WTO (Oxford, Oxford University Press 2006) pp 103–31.

2 TP Steward (ed.), The GATT Uruguay Round: A Negotiating History, 1986–1992 (vol. 1, Alphen aan den Rijn, Wolters Kluwer 1993) p 141; Negotiating Group on Agriculture Working Group on Sanitary and Phytosanitary Regulations and Barriers, GATT Doc. MNT.GNG/NG5/WGSP/W/7 (31 October 1989); WTO, The Legal Text: The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge, Cambridge University Press 2000) p 59.

3 Panel reports WT/DS26/R/USA and WT/DS48/R/CAN (18 August 1996).

4 AB report WT/DS26/AB/R (16 January 1998).

5 AB report WT/DS26/AB/R and WT/DS48AB//R (19 February 1998).

6 Beef Hormones Dispute – Joint Communication from the EU and US, WT/DS26/29 (17 April 2014).

7 WA Kerr, “Science-based rules of trade: a mantra for some, an anathema for others” (2003) 4 Estey Journal of International Law and Trade Policy 86; J Cameron, “The Precautionary Principle” in G Sampson and WB Chambers (eds), Trade, Environment, and the Millennium (New York, UN University Press 1999) p 261; S Gray, “Aquatic imports in Australia: quarantine, international trade, environmental protection” (2000) 17(4) Environment and Planning Law Journal 245.

8 P Shadle, “BSE offers lessons in risk assessment” (2004) 17(7) BioPharm International 24.

9 R Adhikary, “LDCs in the multilateral trading system” in PJ Macrory et al (eds), WTO: Legal, Economic and Political Analysis (vol. 1, New York, Springer 2005) pp 343–56; S Henson and R Loader, “Barriers to agricultural exports from developing countries: the role of SPS requirements” (Centre for Food Economics Research, Department of Agriculture and Food Economics, University of Reading, Mimeo, 2000) p 26; S Inama, “Market access for LDCs: issues to be addressed” (2002) 36(1) Journal of World Trade 85.

10 WTO, Review of the Operation and Implementation of the Agreement on SPS Measures, Report of the Committee, L/G/274 of 16 November 1998, para 2.

11 G Goh and AR Ziegler, “A real world where people live and work and die: Australian SPS measures after the WTO Appellate Body’s decision in the Hormones case” (1998) 32(5) Journal of World Trade 275.

12 Australian Department of Agriculture, Fisheries and Forestry, “Revised Draft Import Risk Analysis Report for Apples from New Zealand: Fact Sheet 1” <http://www.affa.gov.au/content/output.cfm?ObjectID=D51B9649- 3692-4F76-919200A78D716CA> (last accessed 2 September 2004); C Welch, “Science or protection? Australia’s quarantine regime and the WTO” in P Ramburuth and C Welch (eds), Casebook in International Business: Australian and Asia-Pacific Perspectives (Hoboken, NJ, Prentice Hall 2004) pp 78–81.

13 Australia – Measures Affecting Importation of Salmon, Panel report, WT/DS18/R; AB report, WT/DS18/AB/R, adopted 6 November 1998; see also Australia – Measures Concerning the Importation of Salmonids, Panel report, WT/DS21/R (16 September 2002).

14 D Gascoine, “WTO dispute settlement: lessons learned from the Salmon case”, a paper presented at the Conference on International Trade Education and Research: Managing Globalisation for Prosperity, Melbourne, 26–27 October 2000.

15 AB report, WT/DS245/AB/R, adopted 10 December 2003; the USA successfully challenged the Japanese provisional measures against the importation of apples under the SPS Agreement; see also Japan – Measures Affecting Agricultural Products (Fruit Varietal Dispute), Panel report WT/DS76/R, AB report WT/DS76/AB/R, adopted 19 March 1999.

16 J Knight, “Advance Australia Fair? The anatomy and pathology of an 84-year trade dispute” (2005) 5(2) Journal of Public Affairs 112.

17 Australia – Measures Affecting the Importation of Apples from New Zealand, Panel report, WT/DS367/R (9 August 2010), AB report, WT/DS367/AB/R (29 November 2010), adopted 17 December 2010; Understanding between New Zealand and Australia, WT/DS367/21 (19 September 2011); J Giovanelli, “Australia – apples: how the WTO Appellate Body dealt with the application of jurisprudence from the continued suspension dispute” (2010) 8 New Zealand Yearbook of International Law 45.

18 Supra, note 4, paras 116–17.

19 ibid, para 194.

20 ibid, para 193.

21 ibid, para 124.

22 Gascoine, supra, note 14, para 184.

23 Panel reports, WT/DS291/R, WT/DS292/R and WT/DS293/R (29 September 2006); for analysis, see C Henckels, “GMOs in the WTO: a Critique of the Panel’s legal reasoning in EC – Biotech” (2006) 7(2) Melbourne Journal of International Law 278–305; D Winickoff et al, “Adjudicating the GM food wars: science, risk, and democracy in world trade law” (2005) 30 Yale Journal of International Law 81–123; F Sindico, “The GMO dispute before the WTO: legal implications for the trade and environment debate” (Natural Resources Management, January 2005).

24 The EU consumer survey revealed that 70% did not want GMO foods and 94% wanted to be able to choose whether or not they would eat GMO foods: Global Trade Watch, The WTO: An Australian Guide, updated 2005 <http://www.tradewatchoz.org> (last accessed 3 March 2005) pp 28, 36.

25 Australia, China, Columbia, El Salvador, Honduras, New Zealand, Norway, Peru, Thailand, Uruguay and Chinese Taipei registered as third parties. New Zealand has a moratorium on growing GMO crops. China has GMO food labelling laws. Australia has limited GMO product exporting interests.

26 Committee on SPS Measures, Summary Report on the SPS Risk Analysis Workshop, 19–20 June 2000, WTO Doc. G/SPS/GEN/209 (2000).

27 Natural Resources Institute, “SPS measures and their implications for trade in forest products” (Ethical Trade Policy Watching Brief, edition 2, UK, March 2000) <http://www.nri.org/NRET/PWB/WTO.htm> (last accessed 14 March 2003).

28 N Grmelová, “Interpretation of the precautionary principle by the WTO’s Dispute Settlement Body with respect to the sanitary and phytosanitary agreement” (2017) VIII Czech Yearbook of International Law 117–32; MM Mbengue and UP Thomas, “The WTO case law and the precautionary principle: on the way to recognition?” (a paper presented at the Open Meeting of the Global Environmental Change Research Community, Montreal, Canada, 16–18 October 2003) <https://sedac.ciesin.columbia.edu/openmtg/docs/Thomas.pdf> (last accessed 22 January 2020).

29 S Henson and R Loader, Barriers to Agricultural Exports from Developing Countries: The Role of SPS Requirements (Centre for Food Economics Research, Department of Agriculture and Food Economics, University of Reading, Mimeo, 2000) p 26.

30 D Moudachirou and H Mukhtar, “precautionary principle in international environmental law: rule of customary international law” (2015) 6(12) International Journal of Management Sciences 564–71; M Stevens, “The precautionary principle in the international arena” (2002) (Spring/Summer) Sustainable Development Law and Policy 13–15; C Saladin, “Precautionary principle in international law” (2000) 6(4) International Journal of Occupational and Environmental Health 270–80; O McIntyre and T Mosedale, “The precautionary principle as a norm of customary international law” (1997) 9(2) Journal of Environmental Law 221–41.