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The Standard View of the SPS Agreement: A Literature Review

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Book cover The Impact of WTO SPS Law on EU Food Regulations

Part of the book series: Studies in European Economic Law and Regulation ((SEELR,volume 2))

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Abstract

This chapter reviews legal commentary on the SPS Agreement using the taxonomy developed in Chap. 2 to characterise the literature and reflect on the analytical perspectives adopted. This review identifies an orientation towards analysis with three principal characteristics. Firstly, study of the SPS Agreement is mostly confined to its text and to jurisprudence, with commentators rarely developing empirical or critical theoretical accounts of the regime. Secondly, the majority of studies assume that states follow international law, be it under duress or for strategic or normative reasons. Only a few studies explore the generative effects of SPS rules, identifying the processes through which national regulators reflect on and respond to international norms. Finally, the overriding tendency is to evaluate the SPS regime from the ascending perspective of the State, and the possible encroachment on national sovereignty and values. Commentators have only exceptionally assessed the operation of the regime from the perspective of its trade and nontrade goals. In the absence of any empirical demonstration of the commonly presumed constraint of SPS law, this chapter suggests that the conclusions drawn are largely the product of the analytical choices made. While entirely valid as an approach, alternative analytical choices could deepen our understanding of the impact of SPS rules.

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Notes

  1. 1.

    As was acknowledged in Chap. 1—see n 6 and related text—while one of the aims of this book was initially to understand the predominantly critical views of the SPS Agreement in this period, the US—Continued Suspension dispute has somewhat softened this criticism. In order to identify the relevant articles, a preliminary selection was made, via Westlaw, of studies including five references to both the SPS Agreement and ‘food’. A further selection was made, again with the aid of Westlaw, according to the frequency with which the selected articles had been cited, with the inclusion for review of those that had been cited at least ten times. As this would potentially give a bias towards older literature, all articles from the preliminary selection published between 2005 and 2008 were also included in this second selection. Those studies that focused purely on the environmental rather than the food aspects of the SPS Agreement were eliminated. Around 80 articles and frequently cited books remained from this process. Of these, 30 articles did not address the impact of SPS rules on domestic policy-making; see Chap. 1 (n 52) and related text. While this method offers no guarantees of producing a representative selection, there are no particular reasons to believe that the chosen articles do not adequately reflect academic understanding of the regime during this period.

  2. 2.

    By way of illustration, see S Charnovitz, ‘The Supervision of Health and Biosafety Regulation by World Trade Rules’ (2000) 13 Tulane Environmental Law Journal 271; T Christoforou, ‘Settlement of Science-Based Trade Disputes in the WTO: A Critical Review of the Developing Case Law in the Face of Scientific Uncertainty’ (2000) 8 New York University Environmental Law Journal 622; CE Foster, ‘Public Opinion and the Interpretation of the World Trade Organisation’s Agreement on Sanitary and Phytosanitary Measures’ (2008) 11 JIEL 427; M Trebilcock and J Soloway, ‘International Trade Policy and Domestic Food Safety Regulation: The Case for Substantial Deference by the WTO Dispute Settlement Body under the SPS Agreement’ in DLM Kennedy and JD Southwick (eds), The Political Economy of International Trade Law: Essays in Honour of Robert E. Hudec (Cambridge, CUP, 2002) (Political Economy) 537; VR Walker, ‘Keeping the WTO from Becoming the “World Trans-Science Organisation”: Scientific Uncertainty, Science Policy, and Fact-Finding in the Growth Hormones Dispute’ (1998) 31 Cornell International Law Journal 251, 319.

  3. 3.

    This reliance on jurisprudence is such that some writers contend that we must await disputes to understand the implications of the SPS Agreement. See LA Gruszczynski, ‘Risk Management Policies under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures’ (2008) 3 Asian Journal of WTO and International Health Law and Policy 261, 303 (claiming that ‘the overall assessment of the SPS Agreement as far as risk management is concerned will only be possible after they are addressed in case law’).

  4. 4.

    Often, as Scott notes, the work of the dispute body is ‘presented as entirely occupying the field of WTO law’. J Scott, The WTO Agreement on Sanitary and Phytosanitary Measures. A Commentary (Oxford, OUP, 2007) 74.

  5. 5.

    J Peel, ‘Risk Regulation under the WTO SPS Agreement: Science as an International Normative Yardstick?’ (Jean Monnet Working Paper 02/04 95) centers.law.nyu.edu/jeanmonnet/papers/04/040201.pdf.

  6. 6.

    MM Slotboom, ‘The Hormones Case: An Increased Risk of Illegality of Sanitary and Phytosanitary Measures’ (1999) 36 CML Rev 471, 489–490.

  7. 7.

    A Alemanno, Trade in Food: Regulatory and Judicial Approaches in the EC and the WTO (London, Cameron May, 2007) pt IV, Chap. I.

  8. 8.

    Trebilcock and Soloway (n 2) ss III and V.

  9. 9.

    Walker (n 2).

  10. 10.

    D Winickoff et al., ‘Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law’ (2005) 30 YJIL 81, 94. By contrast, Epps analyses the role of public participation in the SPS regime with reference to a range of sources from social scientific work and domestic practice and finds the WTO to be adequately sensitive to distinct national interests. T Epps, ‘Reconciling Public Opinion and WTO Rules under the SPS Agreement’ (2008) 7 World Trade Review 359.

  11. 11.

    See S Keane, ‘Can the Consumers Right to Know Survive the WTO?: The Case of Food Labeling’ (2006) 16 Transnational Law and Contemporary Problems 291; D Schramm, ‘The Race to Geneva: Resisting the Gravitational Pull of the WTO in the GM Labelling Controversy’ (2007) 9 Vermont Journal of Environmental Law 93; JS Fredland, ‘Unlabel Their Frankenstein Foods: Evaluating a US Challenge to the European Commission’s Labeling Requirements for Food Products Containing Genetically-Modified Organisms’ (2000) 33 Vanderbilt Journal of Transnational Law 183, 218 (arguing that these provisions ‘would not survive a US challenge’).

  12. 12.

    See HS Shapiro, ‘The Rules That Swallowed the Exceptions: The WTO SPS Agreement and Its Relationship to GATT Articles XX and XXI’ (2007) 24 Arizona Journal of International and Comparative Law199; CS Boisen, ‘Title III of the Bioterrorism Act: Sacrificing US Trade Relations in the Name of Food Security’ (2007) 56 American University Law Review 667.

  13. 13.

    Keane (n 11) 331.

  14. 14.

    Schramm (n 11) 129.

  15. 15.

    See J Scott, ‘European Regulation of GMOs and the WTO’ (2003) 9 Columbia Journal of European Law 213; R Howse and PC Mavroidis, ‘Europe’s Evolving Regulatory Strategy for GMOs—The Issue of Consistency with WTO Law: Of Kine and Brine’ (2000) 24 Fordham International Law Journal 317. Equally, Appleton anticipates that if GM labelling were to come before the Appellate Body (AB) a ‘reasonable solution’ reflecting political sensitivities would be found. AE Appleton, ‘The Labelling of GM Products Pursuant to International Trade Rules’ (2000) 8 New York University Environmental Law Journal 566, 578.

  16. 16.

    D Livshiz, ‘Updating American Administrative Law: WTO, International Standards, Domestic Implementation and Public Participation’ (2007) 24 Wisconsin International Law Journal 961, 979.

  17. 17.

    Livshiz, ibid 980.

  18. 18.

    Alemanno (n 7) 447.

  19. 19.

    CG Gonzalez, ‘Genetically Modified Organisms and Justice: The International Environmental Justice Implications of Biotechnology’ (2007) 19 Georgetown International Environmental Law Review 583.

  20. 20.

    Christoforou (n 2) 622–623.

  21. 21.

    G Mayeda, ‘Developing Disharmony? The SPS and TBT Agreements and the Impact of Harmonisation in Developing Countries’ (2004) 7 JIEL 737, 753.

  22. 22.

    J Gatthi, ‘A Critical Appraisal of the NEPAD Agenda in Light of Africa’s Place in the World Trade Regime in an Era of Market-Centred Development’ (2003) 13 Transnational Law and Contemporary Problems 179, 204–207.

  23. 23.

    K Das, ‘Coping with SPS Challenges in India: WTO and Beyond’ (2008) 11 JIEL 971.

  24. 24.

    LM Wallach, ‘Accountable Governance in the Era of Globalization: The WTO, NAFTA, and International Harmonization of Standards’ (2002) 50 University of Kansas Law Review 823, 846.

  25. 25.

    BA Silverglade, ‘The Impact of International Trade Agreements on US Food Safety and Labelling Standards’ (1998) 53 Food and Drug Law Journal 537, 539.

  26. 26.

    ibid 539. Indeed, while the author anticipates that international standards will lead to a ‘levelling down’ of consumer protection, his examples demonstrate that the US actually maintains standards. However, he contends that it is ‘just a matter of time’ until international standards prevail. See also L Sikes, ‘FDA’s Consideration of Codex Alimentarius Standards in Light of International Trade Agreements’ (1998) 53 Food and Drug Law Journal 327, 333 (pointing to the dangers associated with the imposition of inferior Codex standards, but acknowledging that this was not yet taking place).

  27. 27.

    Livshiz (n 16) 976–977.

  28. 28.

    ibid 988.

  29. 29.

    MD Masson-Matthee, The Codex Alimentarius Commission and its Standards (The Hague, TMC Asser Press, 2007) 123.

  30. 30.

    ibid 120.

  31. 31.

    Masson-Matthee specifically argues that EU general food law (Regulation 178/2002) foresees under Art 5(3) that Codex standards be ‘taken into consideration’, a procedural obligation that she considers to be less far-reaching than the substantive requirement—‘Members shall base their sanitary or phytosanitary measures on international standards’—provided for in SPS Agreement Art 3.1. ibid 122.

  32. 32.

    Scott (n 4) Chap. 2.

  33. 33.

    ibid 45.

  34. 34.

    ibid 54–60.

  35. 35.

    ibid 54–55.

  36. 36.

    See L Biukovic, ‘Selective Adaptation of WTO Transparency Norms and Local Practices in China and Japan’ (2008) 11 JIEL 803 (discussed further in s 3.3.2 below) and DS Johanson and WL Bryant, ‘Eliminating Phytosanitary Trade Barriers: The Effects of the Uruguay Round Agreements on California Agricultural Exports’ (1996) 6 San Joaquin Agricultural Law Review 1, 23. Johanson and Bryant suggest that the SPS framework has influenced the manner in which bilateral negotiations on sanitary issues are discussed by creating a framework for exchanging scientific data and ensuring Japan’s domestic measures were WTO-compatible. In the same vein, Roberts documents a number of changes to sanitary measures in New Zealand and Australia which she argues have been encouraged by SPS disciplines. D Roberts, ‘Preliminary Assessment of the Effects of the WTO Agreement on Sanitary and Phytosanitary Trade Regulations’ (1998) 1 JIEL 377, 397.

  37. 37.

    One particular challenge in this respect is adequate access to information. For example, Livshiz explains how federal registers do not always publicly report where equivalency determinations have been established. Livshiz (n 16) fn 137. See also comments by Biukovic identifying opaque rules as a barrier to evaluating China’s implementation of SPS law. ibid 823.

  38. 38.

    Gonzalez (n 19) 595–602.

  39. 39.

    ibid 598.

  40. 40.

    ibid 625.

  41. 41.

    ibid 626–628. A limited number of other authors also seek an interpretation of the SPS Agreement that incorporates human rights. Donat proposes that a human-rights test, most notably the right to food, be applied to biotechnology policies, but with a view, unlike Gonzalez, to ensuring easy access among the world’s poorest to potentially beneficial food technology. KJ Donat, ‘Engineering Akerlof Lemons: Information Asymmetry, Externalities, and Market Intervention in the Genetically Modified Food Market’ (2003) 12 Minnesota Journal of Global Trade 417.Elsewhere the ‘right to participate in public affairs’ is invoked to support a call for greater attention to public opinion in the assessment of SPS measures and a ‘consumer’s right to know’ as a defence of GM labelling. See respectively Foster (n 2) 453 and Keane (n 11).

  42. 42.

    Mayeda (n 21) 762–763. See also O Aginam, ‘Trade Health or Politics? Protectionism, Risk Assessment and the Globalisation of Food Safety’ (2008) 63 Food and Drug Law Journal 665.

  43. 43.

    See M Koskenniemi, ‘What is International Law?’ in MD Evans (ed), International Law (Oxford, OUP, 2003)100–103.

  44. 44.

    Even among US lawyers who are sceptical about international rules, Jouannet has noted, there remains a ‘residual formalism… the simple necessity of argument at the international level about rules and institutions [tied to]… a profoundly legalist and procedural domestic tradition’. E Jouannet, ‘French and American Perspectives on International Law: Legal Cultures and International Law’ (2006) 58 Maine Law Review 292, 305.

  45. 45.

    As Cho has pointed out, ‘WTO jurisprudence is full of esoteric semantics and codes, which very few would actually venture to read, let alone comprehend.’ S Cho, ‘The WTO Gemeinschaft’ (2004) 56 Alabama Law Review 483, 539.

  46. 46.

    For a more sceptical view of the importance of dispute settlement, see DA Faber, ‘The Case Against Clarity’ in Political Economy (n 2) 583 (suggesting that ‘if the WTO is to open markets, it will not be primarily through the direct effects of litigation. Rather, it will be through voluntary compliance or negotiation—the same ways that most of international law functions’).

  47. 47.

    Scott (n 4) 74 (arguing that the strengthening of the dispute settlement system ‘has allowed international lawyers to emulate their domestic counterparts in their fixation on case law’).

  48. 48.

    S Dillon, ‘Opportunism and the WTO: Corporations, Academics and “Member States”’ in C Picker, I Brunn and D Arner (eds), International Economic Law: The State and Future of The Discipline (Oxford, Hart Publishing, 2008) 57 (discussing how the ‘unseemly technical focus on dispute-generated jurisprudence’ has inhibited scholars from critically appraising the purpose of the WTO).

  49. 49.

    See Winickoff et al. (n 10) 84 (boldly proclaiming that ‘[t]he outcome of Biotech Products carries profound implications for the balance between state and global power and the relationship of science to democracy’).

  50. 50.

    Foster (n 2) 427.

  51. 51.

    DG Victor, ‘The Sanitary and Phytosanitary Agreement of the World Trade Organisation: An Assessment After Five Years’ (2000) 32 New York University Journal of International Law and Politics865, 913. Victor is sensitive to this point, drawing attention to possible harmonisation effects not captured through analysis of dispute resolution. He acknowledges (at 927) that ‘systematic research on the possible effect is needed’.

  52. 52.

    MD Carter, ‘Selling Science under the SPS Agreement: Accommodating Consumer Preference in the Growth Hormones Controversy’ (1997) 6 Minnesota Journal of Global Trade 625, 655.

  53. 53.

    BA Silverglade ‘The WTO Agreement on Sanitary and Phytosanitary Measures: Weakening Food Safety Regulations to Facilitate Trade?’ (2000) 55 Food and Drug Law Journal 517.

  54. 54.

    D Kalderimis, ‘Problems of WTO Harmonisation and the Virtues of Shields over Swords’ (2004) 13 Minnesota Journal of Global Trade 305, 310. See also Aginam (n 42) 667 (attributing the legal significance of the SPS Agreement to the dispute-settlement system).

  55. 55.

    See DM Strauss, ‘Feast or Famine: The Impact of the WTO Decision Favouring the US Biotechnology Industry in the EU Ban on Genetically Modified Foods’ (2008) 45 American Business Law Journal 775, 824 (predicting that the WTO will drive through a regulatory approach worldwide which is favourable to biotechnology).

  56. 56.

    Victor (n 51) 922.

  57. 57.

    See IAR Sien, ‘Beefing up the Hormones Dispute: Problems in Compliance and Viable Alternatives’ (2007) 95 Georgetown Law Journal 565, 589 (arguing that WTO Members are ‘ultimately constrained by their own investment in the system’).

  58. 58.

    See, e.g. J Atik, ‘Science and International Regulatory Convergence’ (1996) 17 Northwestern Journal of International Law and Business 736, 745.

  59. 59.

    Masson-Matthee (n 29) 126.

  60. 60.

    Keane (n 11) 320.

  61. 61.

    M Bronckers and R Soopramanien, ‘The Impact of WTO Law on European Food Regulation’ (2008) 6 European Food and Feed Law Review 361, 394.

  62. 62.

    J Peel, ‘A GMO by Any Other Name.… Might be an SPS Risk!: Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreement’ (2006) 17 EJIL 1009, 1028.

  63. 63.

    For a discussion of the EU’s compliance with Hormones, see D Wüger, ‘The Never-Ending Story: The Implementation Phase in the Dispute between the EC and the United States on Hormone-Treated Beef’ (2002) 33 Law and Policy in International Business 777.

  64. 64.

    See also Keane (n 11) 332 (who points to the possibility of ‘widespread non-compliance … or an era of highly local and harmonised trade rules’).

  65. 65.

    AT Guzman, ‘Food Fears: Health and Safety at the WTO’ (2004) 45 VJIL 20, 25.

  66. 66.

    RA Pereira, ‘Why Would International Administrative Activity Be Any Less Legitimate? A Study of the Codex Alimentarius Commission’ (2008) 9 German Law Journal 1693, 1704.

  67. 67.

    Slotboom (n 6) 490.

  68. 68.

    JM Wagner, ‘The WTO’s Interpretation of the SPS Agreement has Undermined the Right of Governments to Establish Appropriate Levels of Protection against Risk’ (2000) 31 Law and Policy in International Business 855, 858.

  69. 69.

    In the European context, this is further complicated by the fact that these interests may diverge considerably between Member States.

  70. 70.

    Charnovitz (n 2) 271.

  71. 71.

    Carter (n 52) 656.

  72. 72.

    Wallach (n 24) 823.

  73. 73.

    Pereira (n 66) 1693.

  74. 74.

    Livshiz (n 16) 980.

  75. 75.

    Trebilcock and Soloway (n 2) 551.

  76. 76.

    See Charnovitz (n 2) 271 (anticipating that the SPS Agreement ‘can affect the ability of governments to provide health and achieve biosafety’). See also Gonzalez’s anticipation of the impact of the EC—Biotech Panel Report on biotechnology policy in developing countries. Gonzalez (n 19) 617–618.

  77. 77.

    See Wallach (n 24) 831 (anticipating a ‘regulatory chill’) and Peel, ‘A GMO by Any Other Name’ (n 62) 1028 (foreseeing a ‘dampening effect on national regulatory practices’ as policy-makers fear the implications of a WTO challenge).

  78. 78.

    For a few proposals of this nature, see Kalderimis (n 54) 347; Wallach (n 24) 862; Walker (n 2) 319; Christoforou (n 2) 648; Sien (n 57) 585; KC Kennedy, ‘Resolving International Sanitary and Phytosanitary Disputes in the WTO: Lessons and Future Directions’ (2000) 55 Food and Drug Law Journal 81, 102–103. For a contrary view that the SPS can be reorganised to operate more efficiently without major reform see R Neugebauer, ‘Fine-Tuning WTO Jurisprudence and the SPS Agreement: Lessons from the Beef Hormone Case’ (2000) 31 Law and Policy in International Business 1255.

  79. 79.

    J Bohanes, ‘Risk Regulation in WTO Law: A Procedure-Based Approach to the Precautionary Principle’ (2002) 40 Columbia Journal of Transnational Law 323, 387.

  80. 80.

    Silverglade (n 53) 523–524.

  81. 81.

    Whitlock, for example, questions in his study of Japan—Varietals whether Japan did actually comply with DSB recommendations, although their action was enough to resolve the dispute at hand. JP Whitlock, ‘Japan-Measures Affecting Agricultural Products: Lessons for Future SPS and Agricultural Trade Disputes (2002) 33 Law and Policy in International Business 741, 776.

  82. 82.

    Biukovic (n 36) comments respectively on outstanding problems in relation to Japanese agricultural goods (at 815–816) and Chinese non-compliance with international standards (at 824).

  83. 83.

    ibid 813–814.

  84. 84.

    As Biukovic notes, the norm-internalisation process may not yet have extended to Chinese local authorities where much policy-making takes place. ibid 821.

  85. 85.

    ibid 824.

  86. 86.

    Scott (n 4) 47.

  87. 87.

    ibid 75.

  88. 88.

    Bronckers and Soopramanien (n 61) 372–373.

  89. 89.

    Scott (n 15) 233.

  90. 90.

    See n 36.

  91. 91.

    Scott (n 4) 75.

  92. 92.

    It is of course possible for analysts to combine both perspectives. However, perhaps as this type of account is less argumentatively compelling, commentators do not generally shift perspective in this way. One exception is Mayeda (n 21) in his balanced account of the advantages and dangers for developing countries associated with harmonisation. Charnovitz also reflects on both the overall aims of the regime and potential impact on states, an approach that leads to the conclusion that the SPS Agreement ‘has worked reasonably well’. Charnovitz (n 2) 301.

  93. 93.

    Walker (n 2) 306–307.

  94. 94.

    See discussion in Trebilcock and Soloway (n 2) 541.

  95. 95.

    DA Wirth, ‘The Role of Science in the Uruguay Round and NAFTA Trade Disciplines’ (1994) 27 Cornell International Law Journal 817.

  96. 96.

    See, e.g. Slotboom (n 6) 489–491; Silverglade (n 53) 522; Livshiz (n 16) 979–980.

  97. 97.

    Strauss (n 55) 824.

  98. 98.

    Guzman (n 65) 4.

  99. 99.

    Wagner (n 68) 857.

  100. 100.

    T Christoforou (n 2) 645.

  101. 101.

    Epps (n 10) 387–388; Howse and Mavroidis (n 15) (arguing that EU GMO legislation is compatible with the SPS Agreement).

  102. 102.

    Atik (n 58) 745.

  103. 103.

    Wüger (n 63) 825. For a counter-argument that in most cases no such balance is possible between national policy preferences and objective scientific standards, see AO Sykes, ‘Domestic Regulation, Sovereignty, and Scientific Evidence Requirements: A Pessimistic View’ (2002) 3 Chicago Journal of International Law 353.

  104. 104.

    Wagner (n 68) 859.

  105. 105.

    Guzman (n 65) 38.

  106. 106.

    Wallach (n 24) 826.

  107. 107.

    Foster (n 2) 456.

  108. 108.

    Shapiro (n 12) 339–340.

  109. 109.

    J Scott, ‘On Kith and Kine (and Crustaceans): Trade and Environment in the EU and WTO’ in JHH Weiler (ed), The EU, the WTO and the NAFTA: Towards a Common Law of International Trade, 125 (Oxford, OUP, 2000) 157.

  110. 110.

    L Zurek, ‘The European Communities Biotech Dispute: How the WTO Fails to Consider Cultural Factors in the Genetically Modified Food Debate’ (2007) 42 Texas International Law Journal 345, 363.

  111. 111.

    Winickoff et al. (n 10) 93–94. See also Sien (n 57) 577. For an extensive discussion on the relative roles played by scientific and non-scientific concerns in food measures, see Chap. 4 below.

  112. 112.

    Epps (n 10) 367–369.

  113. 113.

    Livshiz (n 16) 1007–1008.

  114. 114.

    MA Livermore, ‘Authority and Legitimacy in Global Governance: Deliberation, Institutional Differentiation, and the Codex Alimentarius’ (2006) 81 New York University Law Review 766, 786.

  115. 115.

    See, e.g. Walker (n 2) 305 (criticising the AB’s inattention to the question of science policy).

  116. 116.

    See discussion in MA Young, ‘The WTO’s Use of Relevant Rules of International Law: An Analysis of the Biotech Case’ (2007) 56 ICLQ 907.

  117. 117.

    Peel, ‘A GMO by Any Other Name’ (n 62) 1031.

  118. 118.

    See also A Thomison, ‘A New and Controversial Mandate of the SPS Agreement: The WTO Panel’s Interim Report on the ECBiotech Dispute’ (2007) 32 Columbia Journal Environmental Law 287.

  119. 119.

    Gruszczynski (n 3) 302.

  120. 120.

    Das (n 23) 1016.

  121. 121.

    Gatthi (n 22) 206–209.

  122. 122.

    LR Horton, ‘Food from Developing Countries: Steps to Improve Compliance’ (1998) 53 Food and Drug Law Journal 139.

  123. 123.

    Mayeda (n 21) 761–762 (proposing a variation on harmonisation where developing countries harmonise working practices according to their institutional ability to do so).

  124. 124.

    M Victor, ‘Precaution or Protectionism? The Precautionary Principle, Genetically Modified Organisms, and Allowing Unfounded Fear to Undermine Free Trade’ (2001) 14 Transnational Lawyer 295, 320.

  125. 125.

    R Howse, ‘Democracy, Science, and Free Trade: Risk Regulation on Trial at the World Trade Organisation’ (2000) 98 Michigan Law Review 2329, 2336.

  126. 126.

    Howse’s examples—allowing governments to set up their own level of protection, permitting ‘nonmainstream’ science and taking into account risk in the real world—appear to grant WTO Members policy flexibility without necessarily instilling democratic decision-making as such. It is questionable whether the purpose of enhancing deliberative democracy can really be ascribed to the Agreement. Howse partially acknowledges this, noting that ‘to address the critics, it would then be necessary to amend the actual text of the SPS agreement to make it explicitly reflect the democratic values in question’. ibid 2338.

  127. 127.

    Indeed, economists have evaluated some of the socioeconomic impacts of SPS measures. See, e.g. T Otsuki, JS Wilson and M Sewadeh, ‘Saving Two in a Billion: Quantifying the Trade Effect of European Food Safety Standards in African Exports’ (2001) 26 Food Policy 495.

  128. 128.

    See Scott (n 4) 41–43.

  129. 129.

    For example, it seems improbable that a WTO Member would seek consultations on, for example, alleged non-conformity with SPS Agreement Art 7 transparency obligations.

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Downes, C. (2014). The Standard View of the SPS Agreement: A Literature Review. In: The Impact of WTO SPS Law on EU Food Regulations. Studies in European Economic Law and Regulation, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-319-04373-9_3

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