A Critical Assessment of the WTO’s SPS Agreement
Elgar International Economic Law series
Chapter 7: Resolving the Tension: Balancing Trade and Health Objectives in the WTO
7.1 INTRODUCTION This chapter summarizes the normative basis that will guide the analysis in the following chapters. It does so by setting the parameters of what would be a desirable balance between health protection and trade liberalization objectives in ‘amber’ cases under the SPS Agreement. The perspective taken acknowledges both the value of international trade liberalization and the value that should be accorded to human, animal, and plant health. The value of international trade liberalization was highlighted in Chapter 5’s discussion of the theoretical foundations underlying trade theory. The analysis found that the objections to international trade do not seriously undermine either the validity of trade theory, nor the case for gains to be had from trade. However, it did find a valid argument that the gains may in some cases be exaggerated and noted the perspectives put forward by Dunkley, Schumacher, and others who argue for the importance of recognizing noneconomic values such as health in addition to the economic gains from wealth maximization. 7.2 THE WTO AND RULES OF INTERNATIONAL LAW Chapter 5 examined rationales for regulation and introduced the noneconomic imperatives of regulations designed to protect health. In the case of human health, such imperatives arise both from within the state based on notions of a social contract and government obligations, and from outside – from norms and instruments of international law. While such imperatives arguably impose obligations on governments, the question arises as to how they fit within the WTO’s legal framework. Does WTO law recognize and...
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