Article 5.2

Article 5.2 mandates a number of factors to be considered in the assessment of risk. The first four of these relate to the science around the disease and agent of disease and method of detection for the disease: available scientific evidence; relevant processes and production methods; relevant inspection, sampling and testing methods; and prevalence of specific diseases or pests. The last three factors relate broadly to factors which may impact upon the impact of the disease or potential impact of the disease: existence of pest- or disease-free areas; relevant ecological and environmental conditions; and quarantine or other treatment. The relationship between these factors - all seven of them - is certain. In Australia-Apples, it was found that Australia’s risk assessment did not take into account the pathogen’s viability and period of emergence which are specific aspects of the agent of disease. Yet in the same sentence, “the impact of parasitism...climatic conditions, and mode of trade” were not considered sufficiently to bring the risk assessment into question (AB. para 256; PR. para. 7.871). As far as the polar regions are concerned, this case, on this Article, is significant. It places in relationship factors that cover aspects of emerging disease whilst allowing scope for considering further impacts of climate and mode of trade. Where there is no available scientific evidence, recourse to an expert may be the best option to assess risk, but the use of any expert by a Member must still set out reasonable conclusions, including intermediate conclusions (Australia-Apples, AB, para 234). Use of an expert must satisfy requirements under Articles 5.1 and 5.2, otherwise recourse to a provisional measure under Article 5.7 might be a better option (Australia-Apples, AB. paras 237-238).

Article 5.3

Article 5.3 furthers the factors to be taken into account from Article

5.2 where a risk assessment is conducted; it must also take economic factors: economic costs due to disease entry and spread: the costs of control or eradication; and the relative cost-effectiveness of alternative approaches to limiting risks. Consideration of such factors does not direct a course of action (Russia-Pigs (EU), PR, para 7.767) and uncertainty does not justify departure from the requirements (Australia-Salmon, AB), which includes any precautionary approach not justifying any departure. This applies for Article 5.1 also. Article 5.3, read as part of Articles 5.1 and 5.2, stands separate from the requirements for provisions measures under Article 5.7.

Article 5.4

Article 5.4 serves as the counterpoint for the Article, protecting the interests of trade in determination of an ALOP, though it does so without qualification or any stringent considerations; is not an obligation (EC-Hormones (Canada),³⁰ PR, para 8.169; EC-Hormones (US), PR, para 8.166³¹). but may be considered a specific application of a measure applied to the extent necessary to protect life or health without arbitrary or unjustifiable discrimination (EC-Hormones (US), PR, para 8.99; and EC-Hormones (Canada), PR, para 8.96). So, the full effect of this article may be only that a risk assessment needs to have a consideration of proportion to trade access, mentioned in a risk assessment, and that is all.

Article 5.5

Reference in Article 5.5 to “arbitrary or unjustifiable”, and “discrimination or a disguised restriction on international trade” may follow the same delineations as used elsewhere in the SPS Agreement, applied in this case to the levels of protection provided by SPS measures. The phrase in the first sentence of Article 5.5 specifically states, “shall avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations...” (emphasis added). This addition to the otherwise familiar expressions is important. There is no clarification for what in different situations means, though may grant greater protection measures in unique situations of the polar regions which include consideration for the higher susceptibility (lower resilience due to a lack of exposure) of indigenous health and endemic

Applying the SPS protocol 67 species. In furtherance of identifying a practical implementation, the SPS Committee is to take into account relevant factors including, strangely “the exceptional character of human health risks to which people voluntarily expose themselves”. This article may be another specification of the obligation of only applying a measure to the extent necessary to protect life and health without being arbitrary or unjustifiably discriminatory under Articles 2.2 and 2.3, specifically in relation to applying an ALOP (EC-Hormones (US), PR. para 8.99; and EC-Hormones (Canada), PR. para 8.96).

Three elements need to be satisfied for an Article 5.5 inconsistency: (i) ALOP's must be consistent (EC-Hormones, AB, paras 213) and not generic across potentially comparable situations (Australia-Apples, PR, paras 7.970-7.971); (ii) ALOPs applied with arbitrary or unjustifiable differences across different situations (EC-Hormones, AB, para 214) which includes across differing levels of sanitary protection as long as they are comparable, that is, they present a common element/s sufficient to render them rationally comparable (EC-Hormones, AB, para 217); and (iii) the arbitrary or unjustifiable differences result in discrimination or a disguised restriction of international trade, given interpretation under the Vienna Convention of the Law on Treaties that the ordinary interpretation be used, that is, the measure not “capricious, unpredictable, inconsistent” (US-Poidtry (China), PR, para 7.259)³² and that, in line with the reading within Article 2.3, the chapeau of GATT Article XX is to be followed examining the measure in light of its cause, rationale and objectives (US-Poultry (China). PR. paras 7.260-7.261).

As these three are cumulative (EC-Hormones, AB, para 215), and it is probable that situations in the high latitudes “are totally different from one another, they would not be rationally comparable and the differences in levels of protection cannot be examined for arbitrariness” (EC-Hormones, AB. para 217). Thus, the article at this stage of WTO jurisprudence does not pose as a great concern for the polar regions. As a secondary fail-safe, the second element applies only where there is no need for “both the disease and the biological and economic consequences to be the same or similar” (Australia-Salmon, AB. para 146), thus where only the disease is comparable is sufficient to adjudge an inconsistency, giving more scope to protecting endemic areas.