Edited by Sarah Joseph, David Kinley and Jeff Waincymer
Chapter 11: Public Opinion and the Interpretation of the World Trade Organisation’s Agreement on Sanitary and Phytosanitary Measures
11. Public opinion and the interpretation of the World Trade Organisation’s Agreement on Sanitary and Phytosanitary Measures Caroline E. Foster1 1. INTRODUCTION With the passage of over a decade since the adoption of the World Trade Organisation (‘WTO’) Agreement on Sanitary and Phytosanitary Measures (‘SPS Agreement’), it is time to examine experience to date in light of the SPS Agreement’s basic rationales. WTO panels and the Appellate Body have gradually established a jurisprudence that consolidates accepted interpretations of the SPS Agreement’s provisions and identifies how its provisions can work together. This chapter evaluates the state of that jurisprudence and makes proposals for further developments in the interpretation of the SPS Agreement, focusing on the troubled question of the role that may permissibly be played by public opinion in decision-making under the SPS Agreement. Concluded at the end of the Uruguay Round of trade negotiations in 1994, the SPS Agreement regulates barriers to trade that are adopted to counter sanitary and phytosanitary risks by requiring them to be based on science. To the extent of their overlap, the Agreement provides a more disciplined footing to the exceptions found in Article XX of the General Agreement on Tariffs and Trade (‘GATT’) which allow Contracting Parties to impose barriers to trade in order to protect human, animal and plant life and health. Under the SPS Agreement, sanitary and phytosanitary measures (defined as measures to combat pests, diseases, and additives and contaminants in food) must be grounded in science. The SPS Agreement thus offers...
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