Research on the Agreement on the Application of Sanitary and Phytosanitary Measures

Author: Xiao Bing
Publisher:
Publish Date: 2004-08-01
Features: The Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) is a new agreement reached during the Uruguay Round and falls under the WTO's multilateral agreement on trade in goods. Determined by its unique historical background, regulatory objects, and value orientation, since its inception, disputes related to the agreement itself and trade disputes involving it have arisen one after another, leading to numerous sensitive issues and often touching upon fundamental legal questions regarding the allocation of rights and obligations. As a result, it has attracted significant attention. The SPS Agreement is responsible for regulating sanitary and phytosanitary measures (SPS measures) that affect international trade. "SPS measures" are a proprietary concept defined by the SPS Agreement, with specific meanings that cannot be fully covered by existing domestic legal concepts such as "quarantine measures," "sanitary quarantine measures," and "quarantine measures for animals and plants." SPS measures and international trade form a complex and dialectical relationship that is both mutually inhibiting and mutually promoting. Due to the special impact of SPS measures on international trade, they have gradually evolved from initial measures for protecting life and health safety into widely adopted trade protection tools, becoming the most prevalent technical barrier in today's international trade. The legal forms for regulating SPS measures include domestic and international law. Among these, the legislative approach of international law typically falls into two categories: preventing the spread of dangerous epidemics and preventing SPS measures from becoming obstacles to international trade. However, these distinctions are not absolute, and different legislative objectives are mutually compatible. Compared to general treaty rules, the institutional and rule-based system under an organization has greater advantages, making it more conducive to overcoming the current weaknesses of international law and maximizing its legal effectiveness.
The emergence of the SPS Agreement is the result of a combination of factual and legal factors, influenced by multiple opportunities. Beyond the organizational institutional constraints provided by the WTO's overall "package" arrangement, it largely owes its existence to the significant achievements of the agricultural negotiations and the consensus reached among members regarding the limitations of the scope of application of the Agreement on Technical Barriers to Trade (TBT Agreement). The formation of the SPS Agreement vividly reflects the gradual and competitive nature of international legal institutional development. Under the influence and pull of various balancing factors, it has achieved a prominent feature in its value orientation—balance: neither absolute sovereignty nor absolute trade freedom.
In terms of the normative value of the SPS Agreement, as one of the annexes to GATT 1994, it, on one hand, follows the basic principles of GATT 1994, extending and elaborating on its relevant systems, forming a relationship between special and general laws. On the other hand, its uniqueness compared to other annexes lies in its interpretation and development of the individual perspective of GATT 1994—Article 20(b)—and it has both a clear subordination and relative independence in relation to Article 20(b). Among the annexes, the SPS Agreement has the closest relationship with the Agreement on Agriculture and the TBT Agreement: it is a product born alongside the Agreement on Agriculture and constitutes one of its important components. Meanwhile, its relationship with the TBT Agreement is complex, both statically in terms of normative design and dynamically in terms of application, exhibiting both complementarity and separation.
The implementation of the SPS Agreement has a special connotation. Over the past eight years, its implementation effects have been reflected from multiple perspectives and levels, including the fulfillment of the responsibilities of the SPS Committee, SPS dispute settlement, and the domestic implementation of members. Although the agreement has achieved relatively good results overall, there are also some obvious challenges. The most prominent issues are two-fold: first, some provisions, especially those related to the significant interests of developing member countries (e.g., Articles 4 and 10), are in a state of suspension; second, there is a significant divergence in the understanding of core provisions of the agreement (e.g., Articles 2, 3, and 5) among member countries, which affects the effective implementation of relevant legal rules.
Theoretically, a combination of judicial interpretation and legislative interpretation can be considered the best solution, but given the higher costs and difficulties of legislative interpretation of international treaties, in practical conditions, judicial interpretation by the dispute settlement body should be the most feasible approach. Articles 2, 3, and 5 of the SPS Agreement respectively stipulate three basic principles of the agreement: the scientific evidence principle, the international coordination principle, and the risk assessment and appropriate protection principle. Most SPS disputes between member countries arise from these principles, and legal disputes over the agreement in theory and practice are often concentrated here. Although the divergent views of all parties manifest in various forms, involving both legal formal issues such as wording and logical relationships, as well as legal substantive issues such as the allocation of rights and obligations and standards of legitimacy, at the core, they are the result of differing positions and conflicts of interest among different subjects of the WTO. Therefore, the interpretation of these provisions, the evaluation of their pros and cons in application, and the prediction of their future development trends must be inseparable from the basic structure and power dynamics of the international community's political, economic, legal, and cultural landscape, as well as the responsibilities of the WTO as an international organization.
In summary, balancing the national sovereignty of members in implementing health protection measures with the interests of an open trade system is the main theme pursued and reflected in all aspects of the SPS Agreement, and it should also serve as the criterion for all interpretations and evaluations.
The application of the SPS Agreement in China essentially falls within the scope of domestic application of international treaties. However, regarding the application of treaties, China currently still has misconceptions in some major theoretical issues, and the existing treaty application system also has obvious defects that urgently need improvement. In the application of WTO treaties, although China has chosen an indirect application approach, at the level of international law, all its agreements directly bind China's legislation and enforcement. Regarding compliance with the SPS Agreement, on one hand, as a developing country with no significant advantages in either the economy or technology, and as the world's largest developing country, China faces the dual challenges of global economic integration and the multilateral trade legal system, finding itself at the center of technical trade barriers in a predicament of "stuck in and unable to leave." On the other hand, it must be acknowledged that a considerable portion of China's existing legal system was hastily created in preparation for its entry into the WTO, so to a large extent, it only aligns with the requirements of the agreement in form or externally, and upon closer examination, there are still many gaps. As a result, China must, on the basis of clarifying the overall positioning of the SPS legal system, make targeted efforts in line with the requirements of the SPS Agreement, focusing on coordination with international standards, establishing a scientific support system and risk assessment mechanisms, and fully utilizing procedural means, among other areas, to further improve.