A Critical Assessment of the WTO’s SPS Agreement
Elgar International Economic Law series
Chapter 11: A Science-based Approach
11.1 INTRODUCTION The SPS Agreement turns to science as a means of distinguishing between protectionist and legitimate health regulations. Section 11.2 describes the key provisions that require SPS measures to be based on scientific evidence. It also takes note of those GATT provisions that have informed panel and Appellate Body decisions on the more specific provisions of the SPS Agreement. In Section 11.3, it discusses examples of scientific evidence requirements in risk analysis at the domestic level. Section 11.4 then takes stock of the various criticisms that have been levelled at the SPS Agreement’s science-based approach. In the final section, a case is made for the validity of the approach. 11.2 11.2.1 THE WTO’S SCIENCE-BASED APPROACH GATT In Article XX(b), the GATT provides an exception from its rules for countries to take measures that are necessary to protect human, animal, and plant health, but does not specifically require such measures to be based on science. The exception is subject to compliance with the Article’s ‘chapeau’ which states that such measures must not be ‘applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade’. 11.2.2 The SPS Agreement’s Scientific Evidence Requirements As discussed in Chapter 3, the SPS Agreement contains provisions that relate both to Members’ risk assessment activities and their risk management activities. Specifically, it requires Members to engage in risk assessment, and in doing so, to base their risk management...
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