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Part IV Balancing Trade and Non-Trade Objectives, Ch.26 Food Safety: Balancing SPS Scientific Principles and Article XX(b) Sovereignty

Marsha A. Echols

From: The Oxford Handbook of International Trade Law (2e) (2nd Edition)

Edited By: Daniel Bethlehem, Donald McRae, Rodney Neufeld, Isabelle Van Damme

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 17 April 2024

The WTO’s SPS Agreement creates a new trade bargain by restricting Members’ sovereignty with respect to food safety regulation with a “system” expanding on beyond the exception in Article XX(b)to GATT 1947. The essence of the SPS bargain is a ‘system’ created principally through Articles 2, 4 and 5 and Annexes B and C to the SPS Agreement. This ‘system’ inserts into the trade bargain extensive new rules about food safety regulation, based on objective and harmonized standards, scientific principles (objective evidence of a qualitative or quantitative nature) and risk assessment. The system leaves a Member little ability to consider national or regional food history and culture with respect to its decisions to food safety for protecting human life and health. However, the bargain offers the promise to a WTO Member that relinquishing some regulatory authority will be rewarded with expected commercial benefits and commitments from trading partners. In FTAs concluded after the SPS Agreement, nations affirm their SPS rights and obligations: they affirm their sovereign right to enact a sanitary measure and their obligation to base that measure on scientific principles such as objectivity, and to maintain the measure only with sufficient scientific evidence of a qualitative or quantitative nature. At the same time, like the international system that has evolved through the work of the ‘Three Sisters’, FTA partners have added ‘risk management’ and ‘risk communication’ as steps in the development of a food safety measure. The result might be a gradual shift toward an SPS system that extends beyond a purely scientific assessment of risk, including factors relevant to the protection of the health of consumers and the promotion of fair practices in food trade.

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