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WTO: Sanitary and phytosanitary measures and technical barriers to trade
The General Agreement on Tariffs and Trade (GATT) began in 1948. Countries subsequently agreed to lengthy “rounds” of negotiations to develop rules for “non-tariff barriers” to trade. The completion of the Uruguay Round of Multilateral Trade Negotiations 1986–1994 led to the formation of the World Trade Organization (WTO) on 1 January 1995. The Uruguay Round Agreements (which began at Punta del Este, Uruguay) for the first time incorporated agriculture and food under its rules. Two of the Uruguay Round Agreements relevant to international food regulation are the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) and the Agreement on Technical Barriers to Trade (TBT). The SPS Agreement allows governments to take scientifically justified sanitary and phytosanitary measures to protect human health. The agreement commits members to base these measures on internationally established guidelines and risk assessment procedures. The SPS Agreement has chosen the standards guidelines and recommendations established by the CAC for food additives, veterinary drug and pesticide residues, con-taminants, methods of analysis and sampling, and codes and guidelines of hygienic practice. A national standard that provides a greater level of protection than Codex is considered to be a trade barrier unless the WTO decides that the stricter national standard is based on a risk assessment that demonstrates that the Codex standard, guideline, or recommendation provides insufficient protection or that the country maintaining the stricter standard has other scientific justification. The TBT agreement seeks to ensure that technical regulations and product standards includ-ing packaging, marking and labeling requirements, and analytical procedures for assessing conformity with technical regulations and standards do not create unnecessary obstacles to trade. The importance of Codex standards is also stated in the Technical Regulations and Standards provisions contained in Article 2 of the TBT Agreement. So, although CAC standards are not enshrined in international law, WTO endorsement of these standards through the SPS and TBT agreements has effectively made them mandatory, and Codex standards are the benchmarks standards against which national measures and regulations are evaluated. Both the SPS and TBT Agreements call on the WTO member countries to seek harmonization of regulations based on the work of the CAC, and foods which meet CAC Codex stan-dards, recommendations and guidelines should be traded freely in international trade.
Adherence to Codex standards has become critical as they are used as guidelines for the resolution of disputes under the enhanced WTO dispute settlement procedure. Annex 2 of the WTO covers all disputes arising from the GATT and WTO agreements. A dispute is triggered when a WTO member complains that another member(s) has failed to live up to the obligations of the GATT or WTO agreements, i.e., a benefit guaranteed under one or other of these agree-ments has been “nullified or impaired” by another member(s). The dispute settlement procedure encour-ages the governments involved to discuss their prob-lems and settle the dispute by themselves. The first stage is therefore consultations between the govern-ments concerned. If the governments cannot resolve their dispute they can ask the WTO director-general to mediate or try to help. If consultations fail, the complaining country can ask for a panel to be appointed. If the panel decides that the disputed trade measure does break a WTO agreement or an obliga-tion, it recommends that the measure be made to conform with WTO rules. The panel may suggest how this could be done. Either side can appeal a panel’s ruling. Appeals are limited to points of law and legal interpretation — they cannot re-examine existing evidence or examine new issues. The appeal can uphold, modify, or reverse the panel’s legal findings and conclusions. If a member does not comply with WTO recommendations on bringing its practice in line with WTO rules, then trade compensation or sanctions, for example in the form of duty increases or suspension of WTO obligations, may follow. An interesting case that illustrates the working of the Dispute Settlement Understanding is the long-running dispute between the EU and the USA and Canada concerning the EU ban on the use of growth-promoting hormones in beef and the import of meat treated with hormones (http://www.wto. org/english/tratop_e/dispu_e/cases_e/ds320_e.htm).
Setting international food standards requires the participation of all countries. In recent years there has been a significant increase in the membership of the Codex. Developing countries now constitute a signifi-cant proportion of total membership. However, many countries are still faced with resource constraints to effective participation in Codex activities. The FAO and WHO technical assistance programs support the efforts of developing countries to strengthen their national food safety systems to protect local consum-ers and to take advantage of international food trade opportunities. In addition, the FAO/WHO Codex Trust Fund supports the participation of countries in Codex technical committee meetings, and countries have been funded to attend sessions of the CAC.
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