Risk Assessment and the WTO
Edited by David Robertson and Aynsley Kellow
Chapter 5: Applying SPS in WTO disputes
Joost Pauwelyn* This chapter provides an account of how WTO dispute settlement panels and the Appellate Body have interpreted the SPS agreement. (The SPS agreement is explained by Wilson and Gascoine in Chapter 11, this volume.) Commentaries on specific cases, in particular the high profile beef-hormones dispute, have also been written (Hurst, 1998; Charnovitz, 1997, 1998; Wirth, 1998). The focus here is on how the rights and obligations of WTO members in the SPS agreement have been clarified by decisions reached by the dispute settlement body (DSB). SPS provisions not yet invoked in disputes are not dealt with. Dispute settlement reports are only one source of SPS interpretations but represent a consistent approach (Roberts, 1998). It is an objective summary which raises some unanswered questions, while providing some guidance to health and quarantine regulators by addressing the intersection of trade and health protection. This assessment will focus on the three major SPS disputes agricultural products,1 beef-hormones2 and salmon.3 The three pillars of the SPS agreement have been addressed (human health in beef-hormones; animal health in salmon; and plant health in agricultural products). The clarifications and instructive statements made in these three cases use case law. This gives prominence to legal precedence which is not always used in systems of national law and could lead to new conflicts in the future. The SPS committee, established to monitor and clarify the SPS agreement, comprises all 135 WTO members. It finished its first review of the SPS agreement in 1999. It emphasized...
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