Departing from the previous trade regime, the World Trade Organization was established as an antidote to deal with the loopholes from the General Agreement of Trade and Tariff 1947. The legacy of GATT has led to the WTO providing more predictability, a clear legally binding scheme, and promoting freer and more equitable economic competition in the trading sphere. WTO covers a wide range of sectors and issues that are related to trade regime problems, particularly when compared to the previous regime. One of the topics covered by the WTO is the issue, regulation, and standardization of food, flora and fauna, and the natural environment. This broad range of issues is referred to as The Sanitary and Phytosanitary Measures Agreement, or simply The SPS Agreement. The SPS Agreement as a nontariff restriction has contributed to the effort of enforcing member’s states to follow international health standards that have been set by three relevant bodies which are the Codex Alimentarius Commission (Codex) for food safety issues, the International Office of Epizootics—now called the World Organization for Animal Health (OIE)—for animal health and zoonoses, and the Secretariat of the International Plant Protection Convention (IPPC) for issues concerning plant health. The SPS also opens a mechanism if the members want to deviate from international health standards by providing a legitimate justification for it. It also derives the member state to be transparent on creating health measures by justified approval procedure.
However, loopholes are undeniably present within its comprehensive mechanism. Although the SPS Agreement aims to reduce the likelihood of using internal measures as a vehicle to a tendency of protectionism, the ‘protection’ that has been echoed from the articles has been signifying members’ use of national health standards as a shield to protect their domestic producers. As a result, there have been cases of ‘disguised protectionism’ that reflect how science does scream uncertainty, resulting in the complexity of The SPS Agreement itself. In 1996, the European Union and the United States and Canada had a beef hormone dispute. In order to address public health concerns, the EU adopted a restrictive and stringent regulation prohibiting the import of hormone-treated beef from the United States and Canada. Although the WTO denied the EU’s health justification, it did demonstrate how the WTO’s Dispute Settlement Mechanism can provide a reconciliation process to those with disguised protectionism tendencies. However, in another or case, I argue that how can the Appellate Body and its mechanism justify ‘unjustified science’ if science continues to evolve with uncertainty in today’s and future eras? Another case that is more recent and still ongoing is the citrus fruit dispute between South Africa and the European Union. Although the accusation in this case has not yet been determined, the EU has denied citrus fruit from South Africa due to concerns about the False Codling Moth, a pest found in Sub-Saharan Africa, and Citrus Black Spot (CBS), a fungal disease found in fruits. The Citrus Growers Association of Southern Africa (CGA) estimates that the EU ban regulation will result in a 20% decrease in orange exports in 2023.
Reflecting on those cases, the EU was alleged to have violated two articles of the SPS Agreement in the hormone beef case. The EU violated Article 5.1, demonstrating how the EU import ban was not based on a risk assessment and did not provide scientific justification that was consistent with SPS protection standards, as stated in Article 3.3. These violations may be repeated in the South African-EU dispute over citrus fruit health standards. I argue that the ‘disguised protectionism’ tendency may have been projected by EU’s accusation on the health concerns of South Africa’s oranges. This argument is supported by the fact that the EU’s orange production is expected to decline by 13% in 2022, primarily in Spain and Italy. It is also expected that the volume of Sicily’s oranges will decrease by up to 20%. This projection could explain the EU’s ‘disguised protectionism’ tendency to protect domestic producers.
The higher the standards, the greater the likelihood of ‘disguised protectionism’ and the need for countries to be able to justify their and others health standards, at least in accordance with the SPS Agreement. Science analyses, on the other hand, do not provide absolute certainty; it is not static, but rather evolving. Science is an investigation into the nature and behavior of natural objects. It is distinguished by constant verification or following hypotheses. Science is justifiable in the context of the SPS Agreement, and it provides the foundation of economic trade dynamics in international communities, particularly in the health domain as a nontariff restriction. Although the SPS Agreement relies on science as a significant component to mitigate “disguised protectionism,” it does not fully cover the agreement’s non-science considerations. Furthermore, it creates a massive task when the Appellate Body and DSM act in cases—as demonstrated in the two previous cases. One of the challenges is determining how much non-scientific knowledge should be considered when conducting a risk assessment. What about the status of minority scientific opinion? How plausible and dependable must they be? How inclusive is the science? These questions raise the possibility that science can be politicized in this context, which the WTO has not explicitly articulated.
A further flaw in The SPS Agreement is associated with Article 9 regarding the provision of technical assistance to developing countries in order to assist them in complying with The SPS Agreement. Regardless of the assistance provided to developing countries, it demonstrates how there is a disparity in the capacity and capability of developing and developed countries to comply with these standards. This disparity may result in the absence of substantial and genuine assistance from the WTO or developed countries to developing countries.
Moving on, the SPS Agreement is not a public health agreement; rather, it is a trade-business agreement aimed at reducing regulation and facilitating international trade. The SPS Agreement illustrates how many nations contest the health and safety regulations of other nations merely on the grounds that they are excessively stringent. This has contributed to another gap in the SPS Agreement in terms of the missing public perspectives. Despite the fact that it is a trade agreement, I contend that public perspectives and opinions matter, particularly in the context of scientific consensus. Science will be strongly justified when public sentiment contributes to the legitimacy of the science. The SPS Agreement’s technocratic nature of science may have resulted in the exclusion of public participation in the decision-making process for domestic measures. It begs the question of how the government will manage its regulatory processes in a transparent and inclusive manner while adhering to internationally ‘accepted’ protocols. The exclusion of public and public health sentiments has also contributed to the gap in long-term health issues, such as obesity. This is in line with how the SPS Agreement ensures a health standard that addresses long-term health issues. Eating too much ‘safe’ food can lead to health problems.
In conclusion, the Sanitary and Phytosanitary Agreement is a comprehensive plan for addressing health and safety standards in the trading realm. It has provided a well-rounded mechanism to address health and safety standardization, but it is undeniably imperfect. As previously stated, I have identified the loopholes that have been found in the WTO’s SPS Agreement. The discussion begins with the contested ‘disguised protectionism’ tendency and its trajectory, then moves on to the nature of science, which is full of uncertainty, and concludes with the absence of non-scientific variables in the SPS Agreement. This paper reviewed and bridged the urgency of WTO reform and the reasoning behind it, with a focus on the SPS Agreement.