A Critical Assessment of the WTO’s SPS Agreement
Elgar International Economic Law series
Chapter 6: Identifying Tension: The ‘Difficult’ (or ‘Amber’) Cases
6.1 INTRODUCTION On the face of the SPS Agreement, any conflict or tension that might otherwise exist between health and trade objectives is avoided by giving recognition to a nation’s right to enact trade-restrictive SPS measures when necessary to protect health. What then is meant by the statement that trade and health objectives sometimes conflict or are in tension with each other? The SPS Agreement does indeed avoid conflict or tension by recognizing the importance of both trade and health, and giving priority to health in some cases, namely, when measures are necessary to protect health. Through adoption of requirements for measures to be based on scientific evidence, the SPS Agreement’s negotiators appear to have assumed that it will be possible to determine on the basis of science when a measure is necessary. However, this will not always be the case. This chapter argues that there are a range of cases where it will be extremely difficult, if not impossible, to determine by any objective scientific standard whether or not a measure is necessary. In these (difficult) cases, conflict between trade and health objectives persists and WTO panels and the Appellate Body will face difficulties – both conceptual and factual – as they try to balance the competing objectives of health and trade. 6.2 PRELUDE TO THE ‘DIFFICULT’ CASES: WHAT IS A RISK TO HEALTH? The identification of a risk to health lies at the core of the issues that arise in the difficult cases. As discussed in the next section, many...
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