A Critical Assessment of the WTO’s SPS Agreement
Chapter 13: Analysis of the Health Cases
13.1 INTRODUCTION This section provides an analysis of the foregoing panel and Appellate Body decisions. The examination focuses first on the normative approach taken by panels and the Appellate Body to balancing health and trade objectives when they conflict or are in tension with each other. Second, it analyses the approach taken to balancing these objectives as revealed through interpretation and application of (a) the provisions that require Members to show that there is a risk to health; and (b) the provisions that restrain Members’ freedom to make decisions on how to manage risk. Finally, it examines several issues that panels must contend with and that influence the outcome of their analysis in the health cases: determining an appropriate standard of review of countries’ regulations; allocation of the burden of proof; and finally, use of expert advice. 13.2 NORMATIVE APPROACH Chapter 7 suggested that in cases where domestic governments are under an obligation to protect health, panels should strive towards decisions that achieve a socially optimal level of protection. In determining what is ‘socially optimal’, panels should take an approach that is biased in favour of health objectives. This section looks to see whether such an approach has been followed in the cases to date. In Thailand/Cigarettes, the Panel accepted Thailand’s position that smoking was a serious risk to human health and that measures designed to reduce the consumption of cigarettes fell within the scope of Article XX(b). The Panel noted that Article XX(b) clearly allowed countries to...
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