Tipping the apple cart: The limits of science and law in the SPS Agreement after Japan - Apples

Journal of World Trade

Volumn 40, Issue 4, 2006, Pages 655-686

  Goh, Gavin ^a,b,c  

^a Department of Foreign Affairs and Trade ^*

^b International Codex Alimentarius Commission

^c MURDOCH UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

LEGISLATION; TRADE AGREEMENT;

ASIA; EURASIA; FAR EAST; JAPAN;

MALUS X DOMESTICA;

EID: 33747602112     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (127)

1. Japan - Measures Affecting the Importation of Apples (Japan - Apples), WT/DS245/R (Panel Report), WT/DS245/AB/R (Appellate Body Report), adopted 16 December 2003.
2. Article 21.5 Panel Report, Japan - Apples, WT/DS245/RW, adopted 20 July 2005.
3. Panel Report, Japan - Apples, as note 1 above, para. 2.5.
4. Australian Senate Rural and Regional Affairs and Transport Legislation Committee, "The Proposed Importation of Fresh Apple Fruit from New Zealand: Interim Report" (2001), para. 9.8.
5. Panel Report, Japan - Apples, as note 1 above, at para. 2.12.
6. Ibid., para. 2.13.
7. Ibid., as note 1 above, paras 2.2-2.4.
8. Ibid., para. 2.10.
9. Appellate Body Report, Japan - Apples, as note 1 above, para. 9.
10. Australian Senate, as note 4 above, para. 9.27.
11. Department of Agriculture, Forestry and Fisheries, "Draft Import Risk Analysis on the Importation of Apples from New Zealand" (2000), p. 92.
12. Ibid.
13. Ibid., p. 93.
14. Panel Report, Japan - Apples, as note 1 above, para. 8.69-8.71.
15. Ibid., para. 8.123.
16. Ibid., para. 8.129.
17. Ibid., para. 8.125 and 8.135.
18. Ibid., paras 8.128 and 8.136.
19. Ibid., para. 8.139.
20. Ibid., para. 8.138.
21. Ibid., para. 8.136.
22. Ibid., para. 8.158.
23. Ibid., para. 8.161.
24. Ibid., para. 8.142.
25. Ibid., para. 8.157.
26. Ibid., para. 8.153.
27. Ibid., para. 8.168.
28. Ibid., para. 8.166.
29. Ibid., para. 8.167.
30. Ibid., para. 8.169.
31. Ibid., para. 8.176.
32. Ibid., para. 8.171.
33. Ibid., para. 8.198.
34. Article 21.5 Panel Report, Japan - Apples, as note 2 above, para. 8.89.
35. Ibid., para. 8.94.
36. Ibid., para. 8.97.
37. Ibid., para. 8.102.
38. Ibid., paras 8.105-8.106.
39. Panel Report, EC - Measures Concerning Meat and Meat Products (Hormones) (EC-Hormones), WT/DS26/R, adopted 13 February 1998, para. 8.271.
40. Panel Report, Australia - Measures Affecting Importation of Salmon (Australia-Salmon), WT/DS18/R, adopted 6 November 1998, paras 8.47-8.48.
41. Article 5.1 expressly refers to risk assessment techniques developed by "relevant international organizations". These are stated in Annex A of the SPS Agreement as including the Codex Alimentarius Commission, the OIE and the IPPC. The close relationship between the SPS Agreement and these bodies is also provided in Article 3.2. This provision states that measures complying with relevant international standards are deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant provisions of the SPS Agreement and GATT 1994.
42. Appellate Body Report, EC - Measares Concerning Meat and Meat Products (Hormones) (EC - Hormones), DS2,/AB/R, adopted 13 February 1998, para. 250.
43. Ibid., para. 250.
44. Panel Report, Japan - Apples, as note 1 above, para. 8.290;
45. Appellate Body Report, Japan-Apples, as note 1 above, para. 216.
46. Appellate Body Report, EC - Hormones, as note 42 above, para. 250.
47. Article 21.5 Panel Report, Australia - Salmon, WT/DS18/RW, adopted 20 March 2000, para. 7.47.
48. Ibid., para. 7.51.
49. Ibid., para. 7.57.
50. Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products (US - Shrimp,), WT/DS58/AB/R,, adopted 20 May 1996, para. 158.
51. Panel Report, Japan - Apples, as note 1 above, para. 8.289.
52. Appellate Body Report, Japan - Apples, as note 1 above, para. 209.
53. H. Spamann, "Standard of Review for World Trade Organization Panels in Trade Remedy Cases: a Critical Analysis", 38(3) Journal of World Trade (2004), p. 509.
54. S. Croley and J. Jackson, "WTO, Dispute Procedures, Standard of Review, and Deference to National Governments", 90(2) American Journal of International Law (1996), p. 194.
55. Appellate Body Report, EC - Hormones, as note 42 above, para. 116.
56. Article 11.2 of the SPS Agreement.
57. See also J. Pauwelyn, "The Use of Experts in WTO Dispute Settlement", 1 International and Comparative Law Quarterly (2002), pp. 325-364.
58. Panel Report, Japan - Measures Affecting Agricultural Products (Japan - Varietals), WT/DS76/R, adopted 19 March 1999, para. 8.32.
59. Panel Report, Guatemala - Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico (Guatemala - Cement), WT/DS156/R, adopted 17 November 2000, para. 8.19.
60. Appellate Body Report, Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H- Beams from Poland (Thailand - H-Beams), WT/DS122/AB/R, adopted 5 April 2001, para. 117. In a recent decision on US-Softwood Lumber, the Appellate Body further elaborated: "A panel must examine whether, in the light of the evidence on the record, the conclusions reached by the investigating authority are reasoned and adequate... The panel's scrutiny should test whether the reasoning of the authority is coherent and internally consistent. The panel must undertake an in-depth examination of whether the explanations given disclose how the investigating authority treated the facts and evidence in the record and whether there was positive evidence before it to support the inferences made and conclusions reached by it. The panel must examine whether the explanations provided demonstrate that the investigating authority took proper account of the complexities of the data before it, and that it explained why it rejected or discounted alternative explanations and interpretations of the record evidence."
61. Article 21.5 Appellate Body Report, United States - Investigation of the International Trade Commission in Softwood Lumber from Canada, WT/DS277/ AB/RW, adopted 9 May 2006, para. 93.
62. This is itself open to question. Former Appellate Body member, Claus-Dieter Ehlermann considers: "[T]here does not seem to be any notable difference between Article 11 DSU and Article 17.6(i) of the Anti-Dumping Agreement, as interpreted by the Appellate Body in United States - Antidumping Measures on Certain Hot-Rolled Steel Products from Japan."
63. C. Ehlermann, "Six Years on the Bench of the 'World Trade Court': Some Personal Experiences as Member of the Appellate Body of the World Trade Organization", 36(4) Journal of World Trade (2002), pp. 619-620.
64. The current WTO standard of review appears to provide for a more detailed inquiry into the underlying justification of national measures than under the GATT. Writing prior to entry into force of the WTO Agreements, David Wirth noted a parallel between the approach of GATT panels and that of domestic courts in GATT countries which "rarely, if ever, directly scrutinize the fundamental 'correctness' of the conclusions drawn by technical experts from empirical measurements." Rather, such tribunals "tend much more to supervize the processes or methodologies employed by regulatory authorities in reaching scientific conclusions from raw data." D. Wirth, "The Role of Science in the Uruguay Round and NAFTA Trade Disputes", UN Environment Programme (UNEP) Environment and Trade Series Paper No. 8 (1994), pp. 41-42.
65. Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos - Containing Products (EC - Asbestos), WT/DS135/AB/ R, adopted 5 April 2001, para. 167.
66. Ibid., paras 167-168.
67. Appellate Body Report, EC - Hormones, as note 42 above, para. 116.
68. Appellate Body Report, Japan - Apples, as note 1 above, para. 167.
69. Not all commentators agree. See for example, J. Scott, "On Kith and Kine (and Crustaceans): Trade and Environment in the EU and WTO", Harvard Jean Monnet Working Paper 3/99 (1999), pp. 28-29.
70. Appellate Body Report, EC - Beef Hormones, as note 42 above, para. 195.
71. Ibid., para. 187.
72. Ibid., as note 42 above, para. 186.
73. Ibid., para. 193.
74. Article 5.6 ofthe SPS Agreement, while providing for a least trade restrictive test, requires a consideration of whether alternative measures meet the importing country's appropriate level of protection, and their technical and economic feasibility.
75. The Appellate Body in EC - Hormones also characterized deference to importing governments on the selection of SPS measures as one reflection of the precautionary principle, to the extent that this might be a principle of international law: Appellate Body Report, EC - Hormones, as note 42 above, para. 193.
76. Appellate Body Report, EC - Asbestos, n. 62 above, para. 172.
77. See also M. Gregg Bloche, "WTO Deference to National Health Policy: Toward an Interpretive Principle", 5(4) Journal of International Economic Law (2002), pp. 825-848;
78. and R. Howse, "Democracy, Science and Free Trade: Risk Regulation on Trial at the World Trade Organization", 98 Michigan Law Review (2000), pp.2329-2357.
79. It is noted that Article 2.2 also includes a requirement that measures be applied "only to the extent necessary to protect human, animal or plant life or health". This requirement is given specific application in Article 5.6 which provides that measures must not be more trade-restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility.
80. Panel Report, Japan - Apples, as note 1 above, paras 8.173 and 8.226.
81. Id.
82. Ibid., para. 8.175.
83. Ibid., para. 8.180.
84. Ibid., para. 8.181.
85. Ibid., para. 8.182.
86. Ibid., para. 8.225.
87. Ibid., para. 8.226.
88. Ibid., para. 8.86.
89. Ibid., paras 8.86-8.87.
90. Ibid., para. 8.87.
91. Ibid., para. 8.89.
92. For a discussion on the issue of legitimacy, the WTO and dispute settlement, see for example R. Howse and K. Nicolaidis, "Enhancing WTO Legitimacy: Constitutionalization or Global Subsidiarity?", in Marco Verweij and Tim Joshng (eds), "Deliberately Democratising Multilateral Organization", special issue of Governance (2003);
93. D. Steger, "The Rule of Law or the Rule of Lawyers", 3(5) Journal of World Investment (2002), pp. 769-792;
94. and J. Weiler, "The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement", Harvard Jean Monnet Working Paper 9/00 (2000).
95. This panel request has raised its own systemic issues, including whether the panel examining the United States and Canada's actions under Article 22.8 of the DSU is also mandated to perform the function of an Article 21.5 panel and examine the WTO-consistency of the EC's measure on meat hormones.
96. For a discussion on the limitations of sanctions as a means of promoting compliance, see for example S. Charnovitz, "Rethinking WTO Trade Sanctions", (January 1, 2001), http://ssrn.com/abstract=256952. Charnovitz notes that in two instances when sanctions were used - EC Hormones and EC Bananas - they failed because the disputes involved an intractable target (the EC) and difficult, non-trade issues - overseas development in Bananas and health (or culture) in Hormones. S. Chamovitz, p. 17.
97. D. Gascoine, "Lessons learned from the Salmon case", Quarantine and Market Access: Playing by the WTO Rules (2000), Department of Agriculture, Fisheries and Forestry - Australia, p. 110.
98. Steve Charnovitz suggests that one of the many reasons why public opinion undervalues the WTO is that the agreements are written in "state-centric, mercantilist jargon". The ordinary citizen is unlikely to be enthusiastic about upholding rights for "importmg Members" or "exporting Members": S. Charnovitz, "The WTO and the Rights of the Individual", Intereconormics, March/April 2001, http://ssrn.com/abstract=282021, p. 25.
99. Which is in effect a semantic way of saying that no restrictions are justified other than that the product meets its product description.
100. See for example, D. Winickoff et al, "Adjudicating the GM Food Wars: Science, Risk and Democracy in World Trade Law", 30 Yale Journal of International Law (2005), pp. 81-123.
101. Ibid., at 122.
102. See also, S. Zleptnig, "The Standard of Review in WTO Law: An Analysis of Law, Legitimacy and the Distribution of Legal and Political Authority, 6(17) European Integration online Papers (2002), http://eiop.or.at/eiop/texte/2002-017a.htm.
103. S. Croley and J. Jackson, "WTO Dispute Procedures, Standard of Review, and Deference to National Governments", 90(2) American Journal of International Law (1996), p. 212
104. Annex A of the SPS Agreement defines the former as requiring an evaluation of the potential for adverse effects on human or animal health from food-borne risks. In contrast, a pest or disease risk assessment requires an evaluation of the likelihood of entry, establishment or spread of a pest or disease according to the measures which might be applied, and of the associated potential biological and economic consequences.
105. Appellate Body Report, Japan - Apples, as note 1 above, para. 179.
106. C. Fedchock, "Using the WTO's dispute settlement processes: The United States - Japan varietal testing case" Quarantine and Market Access: Playing by the WTO Rules (2000), Department of Agriculture, Fisheries and Forestry - Australia, p. 88.
107. G. Stanton, "The WTO dispute settlement framework and operation" in Anderson, McRae and Wilson (eds), The Economics of Quarantine and the SPS Agreement, Centre for International Economic Studies and AFFA Biosecurity Australia (2001), at 56.
108. D. Gascoine, as note 91 above, pp. 111-113.
109. The Tokyo Round Standards Code was perceived by the United States to be an ineffective basis for dispute settlement, including in relation to EC hormones. See, M. Carter, "Selling Science Under the SPS Agreement: Accommodating Consumer Preference in the Growth Hormones Controversy", 6(2) Minnesota Journal of Global Trade (1997) p. 629.
110. C. Arup, "The State of Play of Dispute Settlement 'Law' at the World Trade Organization", 37(5) Journal of World Trade (2003), p. 904.
111. C. Fedchock, as note 99 above, at 97.
112. WTO Dispute Settlement Body, Japan - Measures Affecting the Importation of Apples, Notification of Mutually Agreed Solution, WT/DS245/21, 2 September 2005.
113. Department of Agriculture, Forestry and Fisheries, "Draft Import Risk Analysis on the Importation of Apples from New Zealand" (2000).
114. Senate Rural and Regional Affairs and Transport Legislation Committee, "The Proposed Importation of Fresh Apple Fruit from New Zealand: Interim Report" (2001).
115. Department ofAgriculture, Fisheries and Forestry, "Importation of Apples from New Zealand: Revised Draft IRA Report" (2004).
116. Department of Agriculture, Fisheries and Forestry, "Revised Draft Import Risk Analysis Report for Apples from New Zealand" (2005).
117. Article 21.5 Panel Report, Japan - Apples, as note 2 above, para. 8.89.
118. Ibid., para. 8.97.
119. See for example, Article 21.5 Panel Report, Japan - Apples, as note 2 above, para. 8.101.
120. For a discussion on the implications of WTO panel and Appellate Body reports for non-party WTO Members, see for example: N. McNelis, "What Obligations are Created by WTO Dispute Settlement Reports?", 37(3) Journal of World Trade (2003), 647;
121. and D. Regan, "Do World Trade Organization Dispute Settlement Reports Affect the Obligations of Non-Parties? Response to McNelis", 37(5) Journal of World Trade (2003), 883.
122. The revised draft IRA proposes a requirement that orchard inspections be undertaken in a manner that would provide a 95 percent confidence level of detection of visual symptoms if shown by 1 percent of apple trees. The inspection would be required between 4 to 7 weeks after flowering when conditions for fire blight disease development are likely to be optimal. Detection of any visual symptoms of fire blight would result in the suspension of the orchard for the season.
123. See supra note 2, para. 8.71.
124. Id., para. 8.173.
125. Id., para. 8.86.
126. The 2004 draft IRA also recognizes that: "It is important that import risk analysis conforms with Australia's rights and obligations as a WTO Member country. These rights and obligations derive principally from the World Trade Organization's Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement)..." Australian Department of Agriculture, Fisheries and Forestry, "Importation of Apples from New Zealand: Revised Draft IRA Report " (2004), p. 9.
127. In Australia's case, there would be strong domestic pressure by Australian farmers to await the outcome of a WTO dispute before removing the import ban. New Zealand might therefore need to balance two possible alternatives: the continuing status quo for the period of a WTO dispute versus the indefinite status quo under the current Australian risk assessment process.