Trade, Investment and Intellectual Property
Edited by Anselm Kamperman Sanders
Chapter 5: National treatment in the SPS Agreement: A sui generis obligation
The exercise of regulatory autonomy in the area of health protection is a politically sensitive area of national sovereignty. As traded products, particularly in the food and agricultural sector, can introduce risks to human, animal and plant health into the importing country, governments often regulate to protect against such risks, commonly known as sanitary and phytosanitary (SPS) risks. Such regulations are likely to act as barriers to market access for the exporting country, even when not misused for protectionist purposes. This is because SPS regulations may be drafted or applied in a manner which is unnecessarily trade restrictive, leading to unwarranted burdens on exporters of food or agricultural products. The national treatment principle, as one would expect of one of the core non-discrimination principles in World Trade Organisation (WTO) law, plays a key role in disciplining WTO Members’ exercise of their regulatory capacity in the area of SPS protection. This occurs through its incorporation in the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). This agreement covers a sensitive area of regulation – broadly speaking, that of measures to protect human, animal or plant health from food-borne risks or risks from pests and diseases of plants or animals – which may directly or indirectly affect international trade. It lays down what may be seen as a ‘best practices’ regulatory model with which SPS regulation must comply, in order to minimise its trade restrictive effects while leaving sufficient room for effective health protection.
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