| Module 2 SPS Agreement:
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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.
To explain the principles of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS), the definition of terms used, the Members' basic rights, and, the provisions of the Agreement. The module reviews all articles of the Agreement and provides explanations as to the significance of each article and the meaning, interpretation, and impact of the more important articles.
2.1 Introduction
2.2 - 2.15 Articles 1 to 14 of the SPS Agreement
The Uruguay Round negotiations, which were the first to deal with the liberalization of trade in agricultural products, also included negotiations on reducing non-tariff barriers to international trade in agricultural products. It resulted in two binding Agreements: the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and the Agreement on Technical Barriers to Trade (TBT Agreement). This module discusses the SPS Agreement in some detail.
The SPS Agreement confirms the right of WTO Member countries to apply measures necessary to protect human, animal and plant life and health. This right was included in the original 1947 General Agreement on Tariffs and Trade as a general exclusion from the other provisions of the Agreement provided that "such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade". Despite this general condition for the application of national measures to protect human, animal and plant life and health, it had become apparent by the time the Punta del Este Declaration was initiated that national sanitary and phytosanitary measures had become, whether by design or accident, effective trade barriers.
As a result, the SPS Agreement came into being and set new rules in an area previously excluded from GATT disciplines. The purpose of the SPS Agreement is to ensure that measures established by governments to protect human, animal and plant life and health are consistent with obligations prohibiting arbitrary or unjustifiable discrimination on trade between countries where the same conditions prevail. Also, such measures shall not be applied in a manner that would constitute a disguised restriction on international trade. It requires that, with regard to food safety measures, WTO Members base their national measures on international standards, guidelines and other recommendations adopted by the Codex Alimentarius Commission (CAC); for animal life and health, measures should be based on those standards adopted and recommended by the International Office of Epizootics (OIE), and, for plant life and health, those standards and recommendations of the International Plant Protection Convention (IPPC) apply. These Organizations are collectively referred to as the three sisters. The Agreement also allows for countries to adopt stricter measures than those adopted by the three sisters if there is a scientific justification for doing so or if the level of protection afforded by the recognized standard setting organizations is inconsistent with the level of protection generally applied and deemed appropriate by the country concerned. In order to have a better understanding of what the Agreement requires and the importance of the provisions of the Agreement a review will be made article by article.
This article provides the general provisions of the Agreement and indicates that this Agreement applies to all sanitary and phytosanitary measures which affect international trade. It informs us that definitions for terms used in the Agreement are provided in Annex A and that the definitions shall apply to this Agreement and that all the Annexes are an integral part of this Agreement. It further says that the rights of Members under the TBT Agreement with respect to measures not within the scope of the SPS Agreement are unaffected by the SPS Agreement.
The definitions for many of the terms used in this Agreement are contained in Annex A. To have a clear understanding the definitions in Annex A will be discussed first and we will then resume the review of the Agreement.
For animal health and zoonoses, these same terms refer to the standards, guidelines and recommendations developed under the auspices of the International Office of Epizootics.
For plant health, they refer to international standards, guidelines and recommendations developed under the auspices of the Secretariat of the International Plant Protection Convention.
Therefore, the standards, guidelines and recommendations of these three international organizations, referred to as the three sisters, are the benchmark for meeting the requirements of the SPS Agreement. In summary, they are:
This concludes the definition section (Annex A) and we will now return to the body of the Agreement and discuss the remaining articles, starting with Article 2.
This article recognizes the rights of Members to establish sanitary and phytosanitary measures at the necessary level of protection for human, animal and plant life and health as long as they are not inconsistent with the provisions of this agreement. Only those measures that are necessary to protect human, animal and plant life and health are to be applied. They shall be based on scientific principles and shall not be maintained without sufficient scientific evidence.
Measures are not to be arbitrary, discriminatory, unjustified, unnecessary or disguised barriers to trade.
Sanitary and phytosanitary measures which conform with the relevant provisions of the Agreement shall be presumed to be in accordance with the obligations of the Members under the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX (b).
This article requires Members to base their sanitary and phytosanitary measures on international standards, guidelines and recommendations, where they exist and if sufficient to provide the appropriate level of protection. Members can establish a higher level of protection if scientific justification is provided in accordance with the requirements in Article 5 (Risk Assessment). In addition, Members are to fully participate in the relevant international organizations (Codex, IPPC and OIE), within the limits of their resources, to promote the development of sanitary and phytosanitary standards.
Sanitary and phytosanitary measures that conform to international standards are presumed to be in conformance with the requirements of this Agreement and GATT 1994. Finally, the SPS Committee is to develop procedures to monitor the process of international harmonization and coordinate efforts in this regard with the relevant international organizations.
This article outlines the concept of equivalence related to sanitary and phytosanitary measures. It states that Members shall accept the sanitary and phytosanitary measures of other Members as equivalent, even when these measures differ from their own or from those of other Members trading in the same products, if the exporting country objectively demonstrates to the importing country that its measures achieve the importing country's appropriate level of sanitary and phytosanitary protection. In other words, the important factor is meeting the importing countries sanitary protection requirements rather than the means by which this is achieved. This concept also serves as a basis for bilateral and multilateral agreements among trading partners on the basis of equivalence referred to as Mutual Recognition Agreements.
Sanitary and phytosanitary measures are to be based on an assessment of the risks to human, animal and plant life and health using internationally accepted risk assessment techniques.
Members are to notify changes in their sanitary and phytosanitary measures and they are to provide this information in accordance with the provisions in Annex B of the Agreement. Annex B describes the requirements for transparency to include:
Following the established notification procedure is very important. When there is no international standard, guideline or recommendation, or if the proposed sanitary or phytosanitary regulation is not substantially the same as an existing standard, guideline or recommendation, and if the proposed regulation is likely to have a significant effect on trade of other Members, then the following procedure must be followed.
The member must publish a notice at an early stage in such a manner as to enable interested parties to be acquainted with the proposal.
The Member must also notify other Members, through the SPS Committee Secretariat, of the products to be covered by the regulation with a brief indication as to the objective and rationale for the proposed regulation. Such notification is to be provided at an early stage to allow opportunity for comment.
The Member is also to make available, upon request, copies of the proposed regulation and if possible to identify the parts which in substance deviate from the international standard, guideline or recommendation.
Finally, the Member is to allow reasonable time for the other Members to comment in writing on the proposal and provide the opportunity to discuss these comments and then take into account the comments and the results of the discussions.
In the case of urgent or emergency circumstances related to health protection or the threat of a breach in health protection, then the Member may omit steps listed above in paragraph 5 of this Annex, as long as they do the following instead.
Immediately notify other Members through the SPS Committee Secretariat of the products to be covered including a brief indication of the objective and rationale of the regulation, and a description of the nature of the urgency. This eliminates the requirement to publish at an early stage.
Provide to other Members, upon request, copies of the regulation.
Finally, the Member must allow time for other Members to comment in writing and to discuss the proposed regulation and then take the comments and discussions into account.
For the purposes of transparency, the documents are to be provided in one of the three languages of the WTO, that is French, Spanish or English.
And finally, the Secretariat is required to promptly circulate copies of the notifications to all Members and interested international organizations. More developed countries are to provide copies of their notifications to those Members that request them or if too voluminous, they shall provide summaries in English, Spanish, or French. A central government authority at the national level is to be designated as the responsible organization for the implementation of the notification procedures prescribed in Annex B.
This article indicates that the procedures in Annex C apply when considering the operations of control, inspection and approval procedures, including approval of the use of food additives or for establishing the tolerance levels for contaminants in foods, beverages and feedstuffs. In all cases the established procedures are to be consistent with the Agreement requirements.
Annex C specifically states that the Members are to ensure that:
Annex C also addresses the situation where a food additive is not permitted or its use is limited to the degree that it restricts access to markets by exporting Members. In this case, the importing Member shall consider the international standard for the additive as the basis for access to the markets until a determination is made.
In the situation where sanitary and phytosanitary measures are to be controlled at the level of production, the Member in whose territory the product is produced is to provide assistance to facilitate the control and the controlling authority.
Under this article the Members agree to facilitate the provision of technical assistance, especially to developing countries, either bilaterally or through the appropriate international organizations. Assistance can be provided, among other things, in the areas of processing technologies, research and infrastructure, including the establishment of national regulatory bodies. It may take the form of advice, credits, donations or grants, including, for the purpose of providing technical expertise, training and equipment to allow such countries to adjust to, and comply with, the sanitary or phytosanitary measures necessary to achieve the appropriate level of protection in their export markets.
If substantial investments are needed for an exporting developing country Member to fulfil the sanitary or phytosanitary requirements of an importing Member, the importing Member shall consider providing such technical assistance to the exporting Member. This would allow the exporting Member to maintain and expand its market access opportunities for the product involved.
The WTO has the role of administering the Agreement by providing the Secretariat to the SPS Committee, established by the Agreement and discussed later. The Secretariat tracks the request for and the provision of technical assistance when the information is provided by the Members. International organizations generally report the technical assistance provided to Members during the SPS Committee meetings as part of the agenda of the meeting. The WTO also provides technical assistance in the form of its Technical Cooperation Activities. The objective of these activities is "to assist countries in their understanding and implementation of agreed international trade rules, in achieving their fuller participation in the multilateral trading systems and ensuring a lasting structural impact by directing technical assistance towards human resource development and institutional capacity building". Activities are mainly demand driven and organized for the benefit of developing countries, particularly least developed countries and economies in transition. The activities take the form of seminars, workshops, technical missions, briefing sessions and technical cooperation in electronic forms.
The special and differential treatment provisions call for the consideration of the needs of developing and especially the least developed countries when preparing and implementing sanitary and phytosanitary measures. Such consideration include providing longer time frames for compliance on products of interest to developing country Members.
The SPS Committee also has the authority to grant developing and least developed Members, upon request, time limited exceptions in whole or in part from obligations under the Agreement, taking into account their financial, trade and development needs. Developing and least developed country Members are also encouraged in this provision to take an active part in the activities of the international organizations.
This article informs that the provisions of Article XXII and XXIII of GATT 1994, as they are elaborated and applied by the Dispute Settlement Understanding, shall apply to consultations and the settlement of disputes under this Agreement, except if stated otherwise.
In the case of a dispute involving scientific or technical issues, a panel should seek advice from experts chosen by the panel in consultation with the parties to the dispute. The panel may also, when it deems it appropriate, establish an advisory technical experts group, or consult the relevant international organizations, at the request of either party to the dispute or on its own initiative. Members also have a right to seek settlements to disputes through other international organizations or dispute mechanisms established under any other international agreements.
This article establishes the Committee on Sanitary and Phytosanitary Measures to provide a regular forum for consultations. This committee is intended to carry out functions which, in effect, implement the provisions of the Agreement and the furtherance of its objectives, particularly the objective of harmonization. The procedural requirements are spelled out along with the terms of reference in this provision. They include:
an indication of the reason thereof, and, in particular, whether it considers that the standard is not stringent enough to provide the appropriate level of sanitary or phytosanitary protection.
The Committee is to consider the use of information generated by procedures, particularly notification procedures, which are in use by the relevant international organizations in an effort to avoid duplication.
The Committee upon request of a Member can invite international organizations or their subsidiary bodies to examine specific matters related to acceptance or non-acceptance by their members of standards, guidelines or recommendations, and to provide a basis of explanations for the reasons for acceptance or non-acceptance.
Finally, the Committee is responsible for conducting a review of the operation and implementation of this Agreement to be undertaken three years from the date of the Agreement coming into force. The results shall be reported to the Council for Trade in Goods (WTO) with proposals to amend the text of the Agreement, if indicated by the review. The review is to take place thereafter as the need arises.
National governments are fully responsible for observance of obligations under this Agreement. To assure this level of responsibility, national governments must formulate and implement positive measures and mechanisms to support the observance of the provisions of the Agreement by other than central government bodies. This includes:
The final provision of this Agreement allows the least developed country Members to delay application of the provisions of this Agreement for a period of five years following its date of entry into force with respect to their sanitary or phytosanitary measures affecting importation or imported products.
Other developing country Members may delay application of the provisions of this Agreement, other than paragraph 8 of Article 5 (providing a Member with information and an explanation as to the reasons for a sanitary or phytosanitary measure) and Article 7 (transparency, enquiry point and notification procedures, Annex B) for two years following the date of entry into force of this Agreement with respect to their existing sanitary or phytosanitary measures affecting importation or imported products, where such application is prevented by a lack of technical expertise, technical infrastructure or resources.
The entry into force date of the SPS Agreement was 1 January 1995.
WTO. 1996. WTO Agreements Series; Sanitary and Phytosanitary Measures. Geneva.
WTO. 1994. The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Text. Cambridge University Press.
WTO Committee on Sanitary and Phytosanitary Measures. 1999. The Difference between SPS and TBT Measures. G/SPS/GEN/151. Geneva.
