Article 5.6

Article 5.6 continues the inclusion of the preferential trade liberality of the WTO environment and requires consideration that levels of protection are “not more trade-restrictive than required...taking intoaccount technical and economic feasibility”. Three conditions must be satisfied: that another measure (i) is reasonably available taking into account technical and economic feasibility; (ii) achieves the importing Member’s appropriate level of sanitary or phytosanitary protection; and (iii) is significantly less restrictive to trade than the SPS measure^) at issue in the dispute (Australia-Apples, AB, paras 328 and 360; Australia-Salmon, AB. para 194; Japan-Agricultural Products IL AB, para. 95).

The primary consideration is whether there is a measure that is less restrictive whilst achieving the same outcome, that is the same ALOP as stated by the Member issuing the restrictions. In order to do this, there needs to be “sufficient undisputed facts on the Panel record to... determine what level of protection would be achieved” and whether that amounted to the ALOP required (Australia-Apples, AB, para 386).

This is significant. Where a Member provides an acceptable level of risk that is low but not zero, this allows movement of the safety net (Australia-Apples, AB, para 360). In the Australia-Apples case, Australia was prevented from refusing importation to New Zealand Apples on the basis of a zero risk threshold because their policy did not itself specify the need for a zero risk threshold, rather it had one that reduced the threat to minimal. In the case of the poles, a zero risk policy ought to be adopted to avoid a similar contention.

Assessing the level of risk associated with an SPS measure or other alternatives determines consistency with this provision and “is a question of legal characterization...Answering this question is not a task that can be delegated to scientific experts” (Australia-Apples, PR, para 384)³³. Assessment requires legal analysis comparing the implemented measure and any alternative measure (Australia-Apples, AB. para 385), including the overall risk associated with the alternative measure proposed, that is, the “risk of entry, establishment and spread ... as well as the associated potential biological and economic consequences” (Australia-Apples, AB, para 402). Such assessment, however, must be careful not to fall into de novo review (Australia-Apples, AB. para 351).

Finally, Articles 5.6 and 2.2 need to be read together (India-Agricultural Products, PR. para 7.614; Panel Report, Russia-Pigs (EU), paras 7.841-7.842), as the same relationship between Articles 5.2 and

2.2 (Australia-Apples, AB. para 339).

Article 5.7

Article 5.7 has already been discussed above in its relationship with

Article 2.2. Generally. Article 5 shares a complicated relationship

Applying the SPS protocol 69 with Article 2.2, their legal validity and satisfaction running together (Japan-Agricultural Products II). Where a measure is shown to be consistent with Article 5.7, it will be found to have consistency with Article

• 2.2 (Japan-Agricultural Products II). Where there is insufficient scientific evidence to perform a risk assessment, “a WTO Member may take a provisional SPS measure on the basis provided in Article 5.7, but that Member must meet the obligations set out in that provision” (US/ Canada-Continued Suspension, AB. para 674). As regards the Arctic and Antarctic, the interpretation given to the place of Article 5.7 in relation to Article 2.2 is important: Article 5.7 is a qualification or exemption to Article 2.2 (Japan-Agricultural Products II. AB. para. 80) covering those instances not covered by Article 2.2. A qualified exemption exists where there is insufficient scientific evidence and a provisional measure is adopted, not reading the provision too broadly to render the article meaningless (Japan-Agricultural Products II, AB, para 80). Four requirements that must be satisfied in order to adopt and maintain a provisional measure:
• 1 Insufficient relevant scientific evidence;
• 2 Measure adopted is on the basis of available pertinent information;
• 3 Member seeks to obtain the additional information necessary for a more objective assessment of risk; and
• 4 Member reviews the measure within a reasonable period of time” (Japan-Apples, AB, para 176 referring to Japan-Agricultural Products II, AB, para 89).

Notions of relevance and insufficiency (in the first requirement) need to be coherent and read in the context of Article 5. specifically Article 5.1: relevant scientific evidence is insufficient if the body of “available scientific evidence does not allow, in quantitative or qualitative terms, the performance of an adequate” risk assessment under Article 5.1 (Japan-Agricultural Products II. AB, para 179). The evidence can be general or specific, and may be cumulative over years (as it was in Japan-Agricultural Products II, that the risk of fire blight transmission through mature symptomless apples was negligible, para 180).

Given the nature of a provisional measure. Article 5.7 may reflect use of the precautionary principle within the frame of this provision (EC-Hormones, AB. paras 123-124; EC-Marketing of Biotech Products, PR, para 7.87³⁴ Gruszczynski 2010, 215). In particular, there is no definitive understanding as to the influence of “pertinent information...the development status of a Member, and domestic regulatory priorities in the assessment of the obligations to seek to obtainadditional information...as well as the treatment of situations that are characterized by low certainty and low consensus when calculating a reasonable period of time” (ibid.. 216). Better understanding the pathogen-host-environment relationship, the pathogen and relevant pathogenesis, may also satisfy the requirement for a rational relationship between the measure and the risk assessment under EC-Hormones standard.

Article 5.8

When Member believes measure is or will be constraining to exports and not based on international standards (even where they do not exist), the exporter can request an explanation of the reasons for the restriction. This Article potentially bears an undue burden on polar regions, which adopt a high level of protection based on insufficient scientific evidence because such environments are naive. It points to the overwhelming need for a provision to be negotiated for preferential trade barriers in polar environments where warming climate and increased trade may pose hazards as yet unknown. A potential reason may be the inherent value of the polar regions and the emerging evidence of increased spread, transmission, and mortality to polar species, which have no immunity to temperate region pathogens.