Edited by Geert Van Calster and Denise Prévost
Chapter 4: On the efficiency of health measures and the ‘appropriate level of protection’
The concept of ‘appropriate level of protection’ (ALOP) runs throughout the SPS Agreement. ALOP reflects the considerable margin of appreciation retained by WTO Members in the application of health measures and a resigned acceptance of a permanent condition of heterogeneous (and hence conflicting) national regulatory approaches with their accompanying drag on international trade. By its terms, ‘appropriate level of protection’ emphasizes the continuing discretion WTO Members enjoy in determining their respective SPS policies. Generally speaking each country can mandate what level of protection is ‘appropriate’; the operative presumption of the SPS Agreement is national autonomy in setting health and food safety targets. Of course the SPS Agreement meaningfully cabins these respective autonomies: not all is permitted. Addressing antisocial use of SPS measures in order to achieve otherwise prohibited commercial goals (so-called ‘disguised restraints on trade’) is the raison d’être of the SPS Agreement. The SPS Agreement, by and large, does not set the levels of protection SPS measures are to obtain. That said, the Agreement does pressure WTO Members to adopt international standards, each of which will have a particular level of protection – that is effectiveness – associated with it.
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