Regulating Health and Environmental risks under WTO Law: A critical analysis of the SPS Agreement


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The WTO has now been in existence for over 15 years. Primarily designed to regulate inter-national trade, the link with environmental protection is increasingly being recognised by policy makers and is now also being reflected in scholarly research and publication. This book is one such text. It considers the specialised subject of health and environmental risks under WTO law, in particular, through analysis of the Sanitary and Phytosanitary Agreement (SPS Agreement). The context of the work is that the multilateral trade negotiations (the 'Uruguay Round'), which preceded the creation of the WTO, had as one of its one of its objectives the further reduction of barriers to agricultural trade. An agriculture-specific agreement was, therefore, included in the multilateral trade negotiations, with the aim of reducing tariffs for agriculture products and to largely eliminate the agriculture-specific trade barriers.

Some countries, however, were concerned that the reduction of tariffs and other banners would be circumvented by disguised protectionist measures in the form of sanitary and phy-tosanitary regulations. To close this loophole, a complementary agreement - the Agreement on the Application of Sanitary and Phytosanitary Measures - was created. The SPS Agreement ensures that governments can give health protection priority over trade. It grants governments the explicit right to impose restrictions on international trade when these are necessary to protect human, animal or plant health from certain risks (Article 2.1). The Agreement does not apply to all risks to human health, only those from unsafe food or beverages, or risks from diseases carried by animals or plants. It applies also to the protection of animal health from contaminated feed, or from pests and diseases, and to the protection of plant health from pests or diseases. Finally, measures to protect the territory of a country from damage from the spread of pests, even if these do not bring a disease threat, are covered by the SPS Agreement, including 'invasive species'. The Agreement covers all plants and animals, not just commercially important species, and includes fish, wild fauna and flora.

The central question that this book addresses is whether the system established by the SPS Agreement can deal with the existing and potential challenges of an interdependent world. It is part of the OUP International Economic Law series and, as such, makes an interesting crossover between WTO and environmental law. This text is based on the author's PhD research and by its very nature is a focused and specialised piece of work. Nevertheless, the topic requires a broad context, and therefore aspects of dispute resolution, risk and the precautionary principle are also included. There is much that is of general interest and relevance to environmental lawyers. The author, Lukasz Gruszczynski, comments that the history of the SPS Agreement has definitely not come to an end as its disciplines are still evolving. In particular, the WTO dispute settlement bodies are constantly trying to find an appropriate balance between the need to guarantee unconstrained trade in agricultural products and regulatory freedom of WTO members in the domain of environmental and human health.

The book consists of seven substantive chapters, preceded by a clear introductory section. Chapter 1 deals with risk in the widest context and provides an excellent starting point for the detailed exploration of the SPS Agreement, within the WTO system, which is set out in Chapter 2. This chapter provides a historical perspective of the creation of the WTO, before dealing in detail with the development of the SPS Agreement and its scope. The third chapter considers harmonisation, as one of the objectives of the SPS Agreement is to promote harmonisation of national SPS requirements. The author points out, however, that harmonisation is not an end in itself, but rather a means of facilitating international trade through the establishment of common standards. Gruszc-zynski goes on to conclude that the main provision for dealing with this (Article 3) is probably one of the most obscure provisions in the whole SPS Agreement (p. 104). The case law enables three options for WTO members: (i) conformity to national standards; (ii) basing its meas-ures on these standards or (iii) departing from them completely. The tensions inherent in these approaches are explored in detail in this chapter.

The special role of science ascribed to the SPS Agreement is considered in Chapter 4. It also looks at risk assessment and the problem of the applicable standard of review in science-related trade disputes. Chapter 4 concludes with some observations on the role that is played by science in the context of the SPS Agreement. The next chapter examines the role of the precautionary principle. The SPS Agreement does not directly refer to the principle, but it does contain special rules which are intended to address situations where risk managers are faced with the dilemma of whether to act on the basis of inconclusive evidence, or wait for more certain data. Chapter 6 is a substantial chapter that examines the relevance of the distinction between risk assessment and risk management in the context of the SPS Agreement. It also considers in detail the Appellate Body report in the Hormones case, which seems to establish a standard for subsequent case law. The author concludes that, despite the lack of a textual basis in the Agreement, it is legitimate to recognise a risk management dimension. The third part of the chapter concentrates on the relevant provi-sions of the Agreement. Finally, general conclusions on the risk management dimension of the SPS Agreement are drawn. Chapter 7, entitled 'Concluding Remarks', usefully summarises the main points of the preceding chapters.

Despite the intricacies and difficulties presented by the SPS Agreement, the book ends on an optimistic note. It concludes that, notwithstanding the inevitability of an increasing number of SPS disputes, 'The Appellate Body learns quickly and seems to respond to the challenges of the new globalised world in a reasonable manner.

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