The very classification of the provisions under Article 5.7 is challenged. While the Panel in EC Biotech[1] feels that it is a right that WTO members can exercise, Japan Agricultural Products II[2] case imagines it as a qualified exemption. The author supports the reasoning offered by the Biotech Panel and believes that it is a right that emanates from precautionary values[3] and hence should be interpreted in a limited and narrow manner to prevent abuse.
Contentious points under the Article include defining what insufficient relevant scientific evidence is, how can we explain obtaining additional information and what is a reasonable period of time. The Japan Agricultural Products II case has compared available pertinent information to relevant scientific information and said that the latter helps in risk assessment and “must be germane to the scientific evidence.”[4] When it comes to describing obtaining new information, Panels say that there is no duty to undertake specific new research[5] but there is an obligation to seek to obtain new information; trial is important, not the result. However, Article 5.7 is rigid in its construction and application and if no relevant information is obtained then the measure has to be repealed. It functions on the model of precautionary principle but unlike in Convention on Biological Diversity[6], measures undertaken under 5.7 have to be continuously reviewed. Reasonable time has to be evaluated on a subjective case-to-case basis, as level of difficulty in obtaining information may not be the same under all circumstances. [7] There is no formal legal requirement to disclose that a measure is being instituted under 5.7 but in practice disclosure is the norm as it helps in limiting the scope of Dispute Settlement Bodies.[8]
Finally, the assignment of the burden of proof is contentious as two Panels have assigned opposite burdens and the Appellate Body has not clarified its position on the matter. In Japan Agricultural Products II the burden was assigned to the Party claiming that a measure under Article 5.7 was in place, but in Japan Apples[9], the member imposing the provisional SPS measure had to make a prima facie case in support of its position.
This post has been authored by Ishita Mishra, a penultimate year student at the West Bengal National University of Juridical Sciences.
[1] Panel Report, EC—Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, (September 29, 2006).
[2] Panel Report, Japan Agricultural Products II WT/DS76/R, (Oct 27, 1998).
[3] See Appellate Body Report, EC—Hormones, WT/DS26/AB/R, WT/DS48/AB/R, ¶ 124 (Jan 16, 1998); (The Appellate Body stated “that responsible, representative governments commonly act from perspectives of prudence and precaution where risks of irreversible, e.g. life-terminating, damage to human health are concerned.”).
[4] Id., at ¶ 92.
[5] See Appellate Body Report, Japan—Agricultural Products II, WT/DS76/AB/R, (Feb 22, 1999); (“[n]either Article 5.7 nor any other provision of the SPS Agreement sets out explicit prerequisites regarding the additional information to be collected. Also, Article 5.7 does not specify what actual results must be achieved; the obligation is to ‘seek to obtain’ additional information.”).
[6] Cartagena Protocol on Biosafety to the Convention on Biological Diversity, art.15-16, Jan 29, 2000.
[7] supra note 5 at ¶ 93.
[8] See Appellate Body Report, EC—Hormones, WT/DS26/AB/R, WT/DS48/AB/R (Jan 16, 1998) and Panel Report, Australia Salmon, WT/DS18/R (Oct 20, 1998); (disclosure narrowed scope for the Panels and Appellate Body).
[9] Panel Report, Japan—Apples, WT/DS245/R (July 15, 2003).
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