| Module 1 History of the Development of the SPS AgreementR. Griffin Plant Protection and Production Division |
To describe the evolution of the SPS Agreement from earlier GATT negotiations leading to the Uruguay Round and to highlight the development of the SPS in the context of the Uruguay Round negotiations.
1.1 Introduction
1.2 GATT provisions
1.3 SPS in the Tokyo Round
1.4 The SPS Agreement in the Uruguay Round
This module describes the background to the Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement) in earlier GATT negotiations and traces the development of the Agreement during the Uruguay Round negotiations.
Article XX(b) allowed measures necessary to protect human, animal or plant health
The General Agreement on Tariffs and Trade (GATT) has provided discipline to national food safety and animal and plant health protection measures which affect trade since its creation in 1948. Article I of the GATT, the most favoured nation clause, required non-discriminatory treatment of imported products from different foreign suppliers. This established the principle of non-discrimination. Article III required that such products be treated no less favorably than domestically produced goods with respect to any laws or requirements affecting their sale. This is now recognized as the principle of national treatment. These rules applied, for instance, to pesticide residue and food additive limits, as well as to restrictions for animal or plant health purposes.
The GATT rules also contained an exception (Article XX (b)) which eventually became the basis for the SPS Agreement. Article XX (b) stated that countries could take measures to protect human, animal, or plant life or health as long as these did not unjustifiably discriminate between countries where the same conditions prevailed or were not designed to be a disguised restriction to trade. This provision in the GATT allowed governments to impose more restrictive requirements on imported products than they required for the same domestic goods if the measures were intended to protect human, animal or plant health.
Since 1948, there have been eight rounds of trade negotiations under GATT. The early rounds focused on lowering tariffs. The Tokyo Round of GATT multilateral negotiations, beginning in 1973 and lasting until 1979, was the first major attempt by GATT to tackle non-tariff trade barriers and farm trade. The negotiations were successful in continuing GATT's efforts to progressively reduce tariffs. It also resulted in a series of agreements on non-tariff barriers and agreement on certain modifications and additions to the GATT system.
1979 Standards Code applied only to countries that ratified it
One important result of the Tokyo Round was the Agreement on Technical Barriers to Trade (the 1979 TBT Agreement or "Standards Code")1. Although this agreement was not developed specifically for the purpose of regulating sanitary and phytosanitary (SPS) measures, it covered technical requirements resulting from food safety and animal and plant health measures, including pesticide residue limits, inspection requirements and labelling. Governments that were signatories to the 1979 TBT Agreement agreed to use relevant international standards (such as those for food safety developed by the Codex Alimentarius Commission) except when they considered that these standards would not adequately protect health. This represented the beginning of the principle of harmonization.
Governments negotiating the 1979 TBT Agreement also created provision for the notification of other governments, through the GATT Secretariat, of any technical regulations which were not based on international standards, thereby initiating what would develop into procedures based on the principle of transparency. The 1979 TBT Agreement also included provisions for settling trade disputes arising from the use of food safety and other technical restrictions. Since the GATT had no enforcement mechanism to ensure that members met their obligations under the agreements, the establishment of dispute settlement procedures which could be relevant to SPS measures provided significant strength to the TBT.
SPS issues placed on the UR agenda
However, the Tokyo Round did not result in agreement on the fundamental issues affecting agricultural trade, and by the 1980s there was increasing interest and pressure to expand negotiations to cover non-tariff barriers and include agreements on agriculture. The decision to start the Uruguay Round trade negotiations was made after years of public debate, including debate in national governments. The Punta del Este Declaration, which launched the Uruguay Round in September 1986, called for increased discipline in three areas in the agricultural sector: market access; direct and indirect subsidies; and sanitary and phytosanitary measures2. On the latter, the negotiators sought to develop a multilateral system that would allow simplification and harmonization of SPS measures, as well as elimination of all restrictions that lack any valid scientific basis3 .
At the beginning of the Round some negotiators were proposing broad harmonization efforts, based upon the expertise of international organizations. There were calls for all standards to be based on scientific evidence. It was suggested by some that the burden to justify SPS measures should be placed upon the importing country. This was emphasized by others who supported harmonization efforts based upon the work of international organizations and also asked for the improvement of notification and consultation procedures and for dispute settlement as well as special allowances for developing countries. Developing countries strongly advocated the removal of sanitary and phytosanitary measures that acted as non-tariff barriers to trade. They supported international harmonization of SPS measures to prevent developed countries from imposing arbitrarily strict standards.
In December 1988, at the Mid-Term Review of the Uruguay Round, it was agreed that the priorities in the area of SPS were: international harmonization on the basis of the standards developed by the international organizations; development of an effective notification process for national regulations; setting-up of a system for the bilateral resolution of disputes; improvement of the dispute settlement process; and provisions concerning the scientific basis for measures.
Working Group draft text
The Working Group on Sanitary and Phytosanitary Regulations, which was formed in 19884 , produced a draft text in November 1990. A consensus was reached by the parties on the following points: SPS measures should not represent disguised trade barriers; should be harmonized on the basis of generally-accepted scientific principles; special consideration should be given to developing countries; transparency should be ensured in setting regulations and in solving disputes; and an international committee should be established to provide for consultations regarding standards.
Disputed issues
Several areas remained unsettled. It was not agreed whether and under which circumstances countries could implement domestic measures stricter than international standards; whether economic considerations or consumer concerns should be included in the process of risk assessment; and the issue of inspection and approval remained an area of disagreement. However even with these considerable problems, progress on the SPS part of the Uruguay Round negotiations outpaced negotiations in many other agriculture-related agreements.
The Dunkel Text
Due in large part to the deadlock on agriculture negotiations, the Round which was supposed to be concluded by December 1990 was adjourned in December 1991. This was followed by the issuance of the so-called "Dunkel Text" by the then Director General of GATT, Arthur Dunkel. The purpose of the revised text was to move the talks closer to completion. The draft incorporated proposals on SPS issues and closely followed the draft text produced by the Working Group in November 1990. However, Dunkel added provisions for more stringent national regulations and excluded economic considerations in the context of risk assessment for food safety. For the next two years, all the Uruguay Round negotiations were critically close to failure. This was due in large part to differences between the United States and the European Union, including issues in the draft SPS Agreement. In November 1992, the United States and the European Union settled most of their differences in a deal known as the "Blair House Accord". By July 1993, negotiations were back on track but it took until 15 December 1993 for every issue to finally be resolved.
On 15 April 1994 Ministers from most of the 125 governments that participated in the Uruguay Round met in Marrakesh, Morocco to sign the deal concluding the Uruguay Round. The final text of the Agreement on the Application of Sanitary and Phytosanitary Measures that was approved at the end of the Uruguay Round was largely based on the Dunkel text and fulfilled the general objectives set out for it in the Punta del Este Declaration.
Entry into force
The SPS Agreement entered into force for most Members of the WTO on January 1, 1995. Under provisions in Article 14 of the SPS Agreement, least developed country Members were allowed to delay implementation for five years.
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1 The 1979 TBT Agreement took effect for ratifying Members of GATT on 1 January 1980. It was superseded by the 1995 WTO TBT Agreement which is applicable to all WTO Members.
2 The text of the Punta del Este Ministerial Declaration states, with respect to agriculture, that "Negotiations shall aim to achieve greater liberalization of trade in agriculture and bring all measures affecting import access and export competition under strengthened and more operationally effective GATT rules and disciplines, taking into account the general principles governing the negotiations, by:...(iii) minimizing the adverse effects that sanitary and phytosanitary regulations and barriers can have on trade in agriculture, taking into account the relevant international agreements".
3 The SPS negotiations were led by Argentina, Australia, Canada, the European Comunity, Japan, New Zealand, Thailand and the United States.
4 The United States requested the Negotiating Group on Agriculture to establish a working group to address sanitary and phytosanitary measures, which due to their technical aspects, were not well-suited to multilateral negotiations. According to the United States, the results of the working group could then be incorporated into an overall draft text emerging from the agriculture group.
