The SPS Agreementand its provisions relating toscientific .ppt
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1、WTO,Slide 1,The SPS Agreement and its provisions relating to scientific evidence,WTO,Slide 2,Three “SPS Disputes”,“Hormones” EC - Measures Concerning Meat and Meat Products (Hormones),“Salmon” Australia - Measures Affecting Importation of Salmon,“Varietals” Japan - Measures Affecting Agricultural Pr
2、oducts,WTO,Slide 3,“science”,WTO,Slide 4,Article 2.1“Members have the right to take sanitary and phytosanitary 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”,Basic Rights and Obli
3、gations (Article 2),WTO,Slide 5,Article 2.2“Members shall ensure that any sanitary or phytosanitary 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
4、 as provided for in paragraph 7 of Article 5.”,Basic Rights and Obligations (Article 2),WTO,Slide 6,Article 2.2,shall ensure:,Basic Rights and Obligations,applied only to the extent necessary to protect human, animal or plant life or health,is based on scientific principles,is not maintained without
5、 sufficient scientific evidence,except as provided for in paragraph 7 of Article 5.,WTO,Slide 7,Hormones,Salmon,Varietals,Article 2:2 (Basic Rights and Obligations),WTO,Slide 8,“In our view, for a phytosanitary measure to be maintained without sufficient scientific evidence, there needs to be a lack
6、 of an objective relationship between, on the one hand, the phytosanitary measure at stake (in casu, the varietal testing requirement) and, on the other hand, the scientific evidence submitted before the Panel (in casu, in particular the six studies referred to by Japan)”.Japan -Varietals, Panel Rep
7、ort, para. 8.29.,Panel - Varietals,Article 2:2 (Basic Rights and Obligations),WTO,Slide 9,The Panel reviewed the parties submissions and the advice from the scientific experts (entomology, fumigation) and concluded:“it has not been sufficiently demonstrated that there is a rational relationship betw
8、een the varietal testing requirement and the scientific evidence submitted to the Panel”Japan -Varietals, Panel Report, para. 8.42,Panel - Varietals,Article 2:2 (Basic Rights and Obligations),WTO,Slide 10,Article 2.2,shall ensure:,Basic Rights and Obligations,applied only to the extent necessary to
9、protect human, animal or plant life or health,is based on scientific principles,is not maintained without sufficient scientific evidence,except as provided for in paragraph 7 of Article 5,WTO,Slide 11,Article 2:2 (Basic Rights and Obligations),Panel - Varietals,“lack of an objective relationship”,“m
10、easure”,“the scientific evidence submitted before the Panel”,WTO,Slide 12,AB - Varietals,Upheld. (with respect to apples, cherries, nectarines and walnuts)Japan -Varietals, AB, para. 85.,Article 2:2 (Basic Rights and Obligations),WTO,Slide 13,What about the exception to the rule of basing SPS measur
11、es on science? (Article 5.7),Article 2.2,Article 5.7,“Article 5.7 operates as a qualified exemption from the obligation under Article 2.2 to maintain SPS measures without sufficient scientific evidence.” Varietals, AB Report, para. 80,WTO,Slide 14,Article 2.2,shall ensure:,Basic Rights and Obligatio
12、ns,applied only to the extent necessary to protect human, animal or plant life or health,is based on scientific principles,is not maintained without sufficient scientific evidence,except as provided for in paragraph 7 of Article 5,WTO,Slide 15,Where scientific evidence is insufficient (Article 5.7),
13、SPS Agreement, Article 5.7“In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytos
14、anitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.”,WTO,Slide 16,Article 5:7 “qual
15、ified exemption”,Japan specifically invoked 5:7. It claimed that that its measure could be considered a provisional measureThe Panel found that four cumulative elements needed to be shown for a measure to be consistent with Article 5.7.,Panel - Varietals,WTO,Slide 17,Article 5:7 “qualified exemption
16、”,Panel - Varietals,the measure is imposed in respect of a situation where “relevant” scientific information is insufficient;,the measure is adopted “on the basis of available pertinent information”,Allowed to provisionally adopt a measure if:,1,2,and,WTO,Slide 18,Article 5:7 “qualified exemption”,P
17、anel - Varietals,“seek to obtain the additional information necessary for a more objective assessment of risk”; and,“review the phytosanitary measure accordingly within a reasonable period of time”.,+ additional obligations:,3,4,and,WTO,Slide 19,Article 5:7 “qualified exemption”,Panel - Varietals,Pa
18、nel examined only the third and fourth elementsno evidence that Japan had sought to obtain information necessary for a more objective assessment of the risk . and reviewed the measure accordingly within a reasonable period of time,WTO,Slide 20,AB - Varietals,Article 5:7 “qualified exemption”,Upheld.
19、 Confirmed that four requirements are cumulative Agreed with the Panel that Japan had not sought to obtain additional information Noted that the “reasonable period of time” had to be established on a case-by-case basis,WTO,Slide 21,Article 5:7 “qualified exemption”,The EC did not invoke Article 5.7,
20、 it was explicitly stated that the import prohibition was not a provisional measure. The EC invoked the “precautionary principle” as a general principle of law and argued that Articles 5.1 and 5.2 did not prevent Members from being cautious when setting health standards in the face of conflicting sc
21、ientific evidence and uncertainty.,Panel - Hormones,WTO,Slide 22,Article 5:7 “qualified exemption”,Did not take a position on the status of the precautionary principle in international law. Noted that the precautionary principle “found reflection in Article 5.7 of the SPS Agreement”. Agreed with the
22、 finding of the Panel that the precautionary principle - to the extent it is not explicitly incorporated in Article 5.7 - did not override the provisions of Article 5.1 and 5.2 of the SPS Agreement.,AB - Hormones,WTO,Slide 23,Article 5 - Risk Assessment “Assessment of Risk and Determination of the A
23、ppropriate Level of Sanitary or Phytosanitary Protection”,Article 5.1-5.3 risk assessment,Article 5.5 consistency,Article 5,Article 2.2,WTO,Slide 24,Risk Assessment (Article 5.1 - 5.3),Article 5.1“Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appro
24、priate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations.”,WTO,Slide 25,Risk Assessment (Article 5.1 - 5.3),Article 5.2“In the assessment of risks, Members shall take into
25、account available scientific evidence; relevant processes and production methods; relevant inspection, sampling and testing methods; prevalence of specific diseases or pests; existence of pest- or disease-free areas; relevant ecological and environmental conditions; and quarantine or other treatment
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