Returning to standard setting under the SPS Agreement

Coming full circle, the application of the SPS Agreement very much hinges on the standards recognised under the SPS Agreement. This puts the OIE in the driver’s seat when it comes to animals and animal products. As stated by the Appellate Body in India-Agricultural Products, “Annex A(3)(b) to the SPS Agreement recognizes the OIE as the relevant standard-setting body for SPS measures relating to animal health and zoonoses” (para 4.14). The OIE, as the body with the highest relevance to issues of trade in animals and animal products into and out of the Arctic/Antarctic, has two standard types; “(i) health standards on trade in animals and their products...and (ii) biological standards on diagnostic techniques...included in the Terrestrial Animal Health Code...and the Aquatic Animal Health Code” (Gruszczynski 2010, 84).

The OIE has permanent observer status with the SPS Committee and “Representatives of the OIE are invited to attend meetings of the SPS Committee and to participate, without voting rights, in deliberations on items on the agenda in which the OIE has an interest, with the exception of meetings limited to WTO Members” (ibid.). The role of the OIE in relation to curbing disease spread was enunciated in the same case:

• 4.15. Members of the OIE annually adopt the OIE Terrestrial Animal Health Code (OIE Code), the aim of which is to set international standards for the improvement of terrestrial animal health and welfare and veterinary public health worldwide, including through standards for safe international trade in terrestrial animals, including mammals, birds, and bees, and their products. The OIE Code contains recommendations that are based on the most up-to-date scientific information and available techniques, and that are designed to prevent specific diseases from being introduced into the importing country, taking into account the nature of the commodity and the animal health status of the exportingcountry. The recommendations in the OIE Code, when correctly applied, provide for safe international trade in animals and animal products while avoiding unjustified sanitary barriers to trade. ...
• 4.16. The OIE Code contains numerous substantive provisions and recommendations grouped into two volumes. Volume I comprises general provisions that concern horizontal standards applicable to a wide range of species, production sectors, and diseases. Volume II contains recommendations applicable to OIE-listed diseases and other diseases of importance to international trade. This volume sets out the standards that apply in respect of specific diseases, including recommendations regarding disease surveillance and zoning and compartmentalisation. (Japan-Agricultural Products II, AB)

Under Article 3, it has been held that there are three options available to Members, “a Member may conform to international standards, only base its measures on such standards, or deviate from them completely. Each of these situations brings its own specific legal consequences” (Gruszczynski 2010, 105). In the first instance, conformity is presumed and the presumption is broad, in the second instance, the evidentiary basis is made easier by enabling reliance on science that formed the basis of a standard (ibid.. 105-106). However, where international standards fail to consider regional endemism, only the third option is truly available. Under this option, there needs to be a risk assessment and scientific sufficiency as required under Article 5 (ibid.).

Article 3: Using stricter protocols – The problems with scientific evidence, technical knowledge and non-equivalence

Harmonisation

• 1 To harmonise sanitary and phytosanitary measures on as wide a basis as possible. Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particular in paragraph 3.
• 2 Sanitary or phytosanitary measures which conform to international standards, guidelines or recommendations shall be deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant provisions of this Agreement and of GATT 1994.

• 3 Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations, if there is a scientific justification, or as a consequence of the level of sanitary or phytosanitary protection, a Member determines to be appropriate in accordance with the relevant provisions of paragraphs 1 through 8 of Article 5. Notwithstanding the above, all measures which result in a level of sanitary or phytosanitary protection different from that which would be achieved by measures based on international standards, guidelines or recommendations shall not be inconsistent with any other provision of this Agreement.
• 4 Members shall play a full part, within the limits of their resources, in the relevant international organisations and their subsidiary bodies, in particular, the Codex Alimentarius Commission, the International Office of Epizootics, and the international and regional organisations operating within the framework of the International Plant Protection Convention, to promote within these organisations the development and periodic review of standards. guidelines and recommendations with respect to all aspects of sanitary and phytosanitary measures.
• 5 The Committee on Sanitary and Phytosanitary Measures provided for in paragraphs 1 and 4 of Article 12 (referred to in this Agreement as the “Committee”) shall develop a procedure to monitor the process of international harmonisation and coordinate efforts in this regard with the relevant international organisations.

Article 3 appears to be a step-wise approach to bringing national standards in line with international standards for the protection of human, animal, or plant life or health. Subarticle 1 is the definitive statement. Subarticle 2 makes a presumption in favour of international standards being to protect human, animal, or plant life or health. This opens the door to future standards developed in favour of the polar regions being justifiable as the foundation for SPS measures. Subarticle 3 allows stricter Member control, beneficial for protection of endemic environments where there is scientific justification. Subarticle 4 mandates the contribution of Members to the relevant international bodies responsible for developing standards and guidelines and subarticle 5 stipulates the Committee referred in Article 12 as monitoring body.

Subarticles 3.1, 3.2 and 3.3 cover different types of situations: the first has no presumption of conformity though presumably a presumption of non-contradiction with international standards; the second has a presumption of conformity with international standards (EC-Hormones (Canada), PR, para 8.75; EC-Hormones (US), para 8.72), the third recognises the “autonomous right of a Member to establish such higher level of protection” (EC-Hormones, AB, para 104). Where Members’ levels of trade restriction are not to be “more trade restrictive than required to achieve the appropriate level of protection” (Kennedy 2000, 87), it is subarticle 3.2 that carries the presumption of being in line with the GATT 1994 (USICanada-Continued Suspension, AB, para 694), in particular, GATT 1994 Article XX.

The interesting part of Article 3 is subarticle 3. The footnote in the original to this article specifies “there is a scientific justification if, on the basis of an examination and evaluation of available scientific information in conformity with the relevant provisions of this Agreement, a Member determines that the relevant international standards, guidelines or recommendations are not sufficient to achieve its appropriate level of sanitary or phytosanitary protection”. This also has been determined to lead back to satisfying the requirements of Article 5 and paragraph 4 of Annex A of the SPS Agreement (EC-Hormones, AB. paras 173, 175, and 176). Indeed inconsistency with Article 5.1 and Articles 2.2, 2.3, 5.6 and 6.1 may be a further ground for a violation of Article 3.3 (US-Animals, PR, para 7.721)³⁶.

Article 3 should not be underestimated in relation to the polar regions. In naive environments where there is unknown hosts, vectors, transmission and risk and thus high probability that risk assessments cannot be based on available and relevant scientific evidence, the use of guidelines will be first port-of-call. What these guidelines are and who determines them is significant. The exclusion of regional bodies from the international sphere is also significant where regional bodies involved in the polar regions will have relevant scientific studies and, if not, will understand the limitations. And finally, where there are no guidelines, deference to the precautionary principle may contend with other agreements such as the Technical Barriers to Trade (TBT) Agreement, which “encourages members to base their measures on international standards as a means to facilitate trade”.³⁷ Reference here to international standards, however, may also draw back to those international standards as mentioned in Article 3.2.