Provisional measures under Article 5.7 of the WTO's agreement on sanitary and phytosanitary measures: Some criticisms of the jurisprudence so far

Journal of World Trade

Volumn 42, Issue 6, 2008, Pages 1085-1106

  Lang, Andrew T F ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

POLICY MAKING; RISK ASSESSMENT; TRADE AGREEMENT; TRADE POLICY; WORLD TRADE ORGANIZATION;

EID: 60849123512     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.54648/trad2008044     Document Type: Article

References (88)

1. EC - Measures Concerning Meat and Meat Products (EC - Hormones), WT/DS26 and WT/DS48;
2. Australia - Measures Affecting Importation of Salmon (Australia - Salmon), WT/DS18;
3. Japan - Measures Affecting Agricultural Products (Japan - Varietals), WT/DS76;
4. Japan - Measures Affecting the Importation of Apples (Japan - Apples), WT/DS245, EC - Measures Affecting the Approval and Marketing of Biotech Products (EC - Biotech), WT/DS291, 292 and 293;
5. and Canada - Continued Suspension of Obligations in the EC - Hormones Dispute (Hormones Suspension), WT/DS321/R with US - Continued Suspension of Obligations in the EC - Hormones Dispute, WT/DS320/R. (I have counted the final two as one, given the substantial similarity of the reports.
6. EC - Hormones, Appellate Body Report, WT/DS26/AB/R, para. 180.
7. Agreement on Sanitary and Phytosanitary Measures, Article 5.1.
8. Ibid., Article 5.2.
9. By referring to the provision here as an "exemption", I am following the careful wording of the Appellate Body in Japan Varietals, Appellate Body Report, WT/DS76/AB/R, para. 80, and in light of the extensive discussion relevant to this point in EC - Biotech, Panel Report, WT/DS291/R, paras 7.2962-7.2983.
10. See Japan - Varietals, Panel Report, WT/DS76/R, and Appellate Body Report, WT/DS76/AB/R.
11. For an interesting history of the dispute, see, generally, J.P. Whitlock, Japan - Measures Affecting Agricultural Products: Lessons for Future SPS and Agricultural Trade Disputes, 33 Law and Policy in International Business 4 (2002), 741.
12. Japan - Varietals, Panel Report, WT/DS76/R, paras 4.187-4188.
13. Ibid., para. 4.190.
14. Ibid,, para. 4.191.
15. Ibid., paras 8.54-8.55.
16. Ibid., para. 8.59.
17. Ibid., para. 8.61.
18. Japan - Varietals, Appellate Body Report, WT/DS76/AB/R, para. 11.
19. Ibid., para. 80.
20. Ibid., para. 89.
21. Ibid.
22. Ibid., paras 89-91.
23. Japan - Apples, Appellate Body Report, WT/DS245/AB/R, para. 176. Interestingly, the only salient different between the two was the fact that the distinction between the first two and the last two requirements - as relating to the adoption and maintenance of the measure respectively - was lost.
24. Cf. EC - Biotech, Panel Report, WT/DS291/R, para. 7.3250.
25. EC - Biotech, Panel Report, WT/DS291/R, para. 7.2973.
26. See also paras 7.2929, 7.3218-7.3219.
27. Ibid., para. 7.2974.
28. Ibid., para. 7.2975.
29. Ibid., para. 7.2998.
30. See note 5 above.
31. See EC - Biotech, Panel Report, WT/DS291/R, paras 7.2962ff, especially paras 7.2969 and 7.2997.
32. In fact, something very close to this argument was made by the EC in ibid., para. 7.2955: "Moreover, the European Communities considers that if the Panel nonetheless were to determine that the safeguard measures did not meet one of the requirements of Article 5.7, e.g., because there was sufficient scientific evidence, the Panel would need to conclude that the provisional measure in question is inconsistent with Article 5.7, and not that Article 2.2 or Article 5.1 becomes the relevant applicable provision".
33. See also para. 7.2975 of the same decision.
34. Ibid., para. 7.2939.
35. Japan - Varietals, Appellate Body Report, WT/DS76/AB/R, para. 89.
36. See, generally, Articles 19:1 and 21:1 of the Dispute Settlement Understanding.
37. This last problem may conceivably be remedied through effective use of the 21.3(c) procedure.
38. Australia - Salmon, Appellate Body Report, WT/DS18/AB/R, para. 223.
39. This is abundantly clear from a number of passages in EC - Biotech, Panel Report, WT/DS291/R, paras 7.2974-7.2975 and 7.32217, to offer only two examples.
40. In addition to the cases cited in the text below, see also the examples in EC - Biotech, Panel Report, WT/DS291/R, paras 7.2995 and 7.2983, where the Panel explicitly acknowledges that Article 5.7 and not Article 5.1 must logically apply in all cases of insufficient scientific uncertainty, regardless of compliance with the other requirements under Article 5.7. However, in these paragraphs, the Panel uses this to support its argument that Article 5.7 is a qualified right, not an exemption, and does not follow through on its implications for other aspects of its reasoning.
41. Ibid., para. 7.2939.
42. Ibid., para. 7.2931, quoting Japan - Apples, Appellate Body Report, WT/DS245/AB/R, para. 184.
43. EC - Biotech, Panel Report, WT/DS291/R, footnote 1807.
44. Ibid., para. 7.2942.
45. Japan - Varietals, Appellate Body Report, WT/DS76/AB/R, para. 25.
46. See text accompanying note 21 above.
47. Japan - Apples, Appellate Body Report, WT/DS245/AB/R, para. 179.
48. For example, EC - Biotech, Panel Report, WT/DS291/R, para. 7.3260.
49. This is what occurred, of course, in both Australia - Salmon, WT/ DS18 and Japan - Apples, WT/DS245.
50. For example, EC - Biotech, Panel Report, WT/DS291/R, para. 7.3260, including note 2081.
51. Hormones Suspension, Panel Report, WT/DS321/R. I refer throughout to this decision, though the parallel decision with the United States as respondent is in substantially similar terms.
52. Hormones Suspension, Panel Repcrt, WT/DS321/R, paras 7.597-7.599.
53. Ibid., para. 7.626.
54. Ibid., para. 7.606.
55. Ibid., para. 7.505 and surrounding.
56. Japan - Apples, Appellate Body Report, WT/DS245/AB/R, para. 179.
57. Hormones Suspension, Panel Report, WT/DS321/R, para. 7.606.
58. Ibid.
59. See, e.g., Hormones Suspension, Panel Report, WT/DS321/R, para. 7.588 and surrounding.
60. Japan-Apples, Appellate Body Report, WT/DS245/AB/R, para. 178.
61. Ibid., para. 179.
62. Ibid. This conclusion is buttressed by the statement, earlier in that paragraph, that "this evaluation must be carried out, not in the abstract, but in the light of a particular inquiry".
63. See, generally, EC-Biotech, Panel Report, WT/DS291/R, paras 7.3161ff. and 7.3330ff.
64. Ibid., at para. 7.3168.
65. Ibid., at para. 7.3336.
66. Ibid., at para. 7.3340.
67. Ibid., at para. 7.3341.
68. Ibid.: "We consider, therefore, that the United States and Canada have established a presumption that Greece's safeguard measure was imposed in respect of a situation where relevant scientific evidence was not insufficient."
69. The argument that the original risk assessment did not examine certain risks was raised in relation to Article 5.1 (EC - Biotech, Panel Report, WT/DS291/R, para. 7.3168). It was not, at least as disclosed in the Panel report, raised again in relation to the interpretation of "insufficient" in Article 5.7.
70. For an excellent explanation on the nature and sources of "uncertainty" in scientific risk assessment, including irreducible uncertainty, see Walker, The Siren Songs of Science: Toward a Taxonomy of Scientific Uncertainty for Decisionmakers, 23 Connecticut Law Review (1999), 567.
71. See EC - Hormones, Appellate Body Repart, WT/DS26/AB/R,, para. 194.
72. See, also, EC - Biotech, Panel Report, WT/DS291/R, paras 7.3240, 7.3060, 7.3065.
73. See Scott, European Regulation of GMOs and the WTO, 9 Columbia Journal of European Law (2003), 228-229;
74. Wirth, The Transatlantic GMO Dispute Against the European Communities. Some Preliminary Thoughts, Boston College Law School Faculty Papers, Paper No. 144, available at: , p. 28.
75. See EC - Biotech, Panel Report, WT/DS291/R, paras 6.174, 6. 1176 and compare para. 7.3399 with para. 7.3390 of the interim Panel Report.
76. Hormones Suspension, Panel Report, WT/DS321/R, para. 7.626.
77. See. e.g., ibid., paras 7.696, 7.676. This is clearly what is required m practice despite what the Panel appears to say in para. 7.591.
78. Ibid., para. 7.3059.
79. Ibid., para. 7.3041.
80. Ibid., para. 7.3149.
81. Ibid., para. 7.3185.
82. Ibid., para. 7.3044.
83. Ibid., at para. 7.3085, relating to Austria, Bt-176 maize. For the same reasoning, almost verbatim, in respect of the other safeguard measures, see paragraphs 7.3066 (Austria,T25 maize), 7.3106 (Austria, MON 810 maize), 7.3127 (France, MS1/RF1 oilseed rape (EC-161), 7.3137 (France, Topas oilseed rape), 7.3157 (Germany, Bt-176 maize), 7.3177 (Greece, Topas oilseed rape), 7.3195 (Italy,T25 maize, MON810 maize, Bt-11 maize (EC-163)), and 7.3211 (Luxembourg, Bt-176 maize).
84. To the extent that paragraph (b) also suggests that there is also a need for a further risk assessment, this may present difficulties. As I note above, the claim that an additional risk assessment can justify new and different SPS measures is uncontroversial, but the primary concern is with the interim period. The phrase "revised or supplemental assessment", which implies a briefer version of the full risk assessment process, goes some way towards addressing this concern.
85. See EC - Biotech, Panel Report, WT/DS291/R, footnote 1094, referring back to the famous line from EC-Hormones, Appellate Body Report, WT/DS26/AB/R, para. 186.
86. Hormones Suspension, Panel Report, WT/DS321/R, para. 7.609.
87. See note 69 above, and text accompanying.
88. See, in particular, the treatment of such arguments in the Panel's reasoning under Article 5.1 with respect to Austria's measures on T25 maize, Bt-176 maize and MON 810 maize, and Greece's measure on Topas oilseed rape.