A Critical Assessment of the WTO’s SPS Agreement
Chapter 8: Setting the Standards: Home or Away?
8.1 INTRODUCTION The Uruguay Round Agreements extended the reach of international trade law into areas that had previously been seen as the exclusive domain of domestic governments, including regulatory decision-making in matters of health protection. As discussed, the SPS Agreement asks countries to regulate in a way that reduces the incidence and potentially distortive effects of non-tariff trade barriers. Inevitably therefore, its application impinges to a certain extent on state sovereignty. Questions of interpretation of the SPS Agreement raise questions about the appropriate extent of this infringement. In and of itself, the concept of sovereignty – being a reference to political control over a given territory – provides little guidance to interpretation of the SPS Agreement beyond the observation that health protection is at the heart of a nation’s sovereign powers. We might accept that becoming part of the international trading regime necessitates a certain level of infringement, but how do we judge when that infringement becomes too great? It is in this regard that the principle of subsidiarity may prove helpful as a way of thinking about what is the most appropriate institutional setting in which to tackle the policy- and rule-making challenges arising from the growing commercial interdependence of nations.1 This chapter will introduce the principle of subsidiarity as a conceptual tool to help us think not only about where decisions about health risks are most appropriately made but also what standard of review might be appropriate when WTO panels and the Appellate Body are called upon to examine a...
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