• Introduction
• Areas covered by the SPS Agreement
• Principles of the Agreement

Introduction

The SPS Agreement has the potential to protect Southern producers from unjustified barriers and to establish measures to protect their own citizens from hazardous imports.  The United States is a strong defender of the SPS Agreement which is seen as an effective means of settling SPS-related disputes and curbing regulatory protectionism (Roberts, 1998).
 

Areas covered by the SPS Agreement

The WTO Agreement on SPS measures, established as part of the Agreement on Agriculture, covers similar areas to the Technical Barriers to Trade Agreement (see Policy Watching Brief 1).  The SPS Agreement specifically covers the following areas:

• ‘measures to protect human life from risks arising from additives, toxins, plant and animal-carried diseases; 
• animal life from the risks arising from additives, toxins, pest and diseases, disease-causing organisms; plant life from risks arising from pests, diseases, disease-causing organisms; and 
• a country from the risks arising from damages caused by the entry, establishment or spread of pests’ (as interpreted by Zarrilli, 1999: 7).

Principles of the Agreement

• international standards and harmonisation
• risk assessment
• adaptation to regional conditions and pest-free areas
• equivalence
• transparency and consultation
• dispute settlement.

International Standards

The WTO calls for SPS measures to be based on International Standards or to conduct a risk assessment (see below) where there is no agreed international standard or the importing country believes that this is insufficient to meet its policy objective. The WTO recognises certain sets of standards as the basis for SPS measures.  Those with most relevance for NTFPs are:

a) Food safety: guidelines and recommendations established by the Codex Alimentarius  Commission, 

b) Plant protection: Secretariat of the International Plant Protection Convention (IIPC)

c) Animal health: the recommendations of the International Office of Epizootics are recognised by the WTO.
 

Risk Assessment

SPS measure should be established on the basis of scientific risk assessment  (a process of hazard analysis, exposure assessment, toxicity assessment and risks communication).  However, if sufficient scientific evidence does not exist, governments may temporarily establish regulations based on the precautionary principle, i.e. ‘when an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.  It includes taking action in the face of uncertainty; shifting burdens of proof to those who create risks; analysis of alternatives to potentially harmful activities; and participatory decision-making methods’ (Raffensperger and Tickner, 1999).

 In its defence against the US challenge on the ban on hormone-treated beef, the EU used the argument that there was no evidence available, or rather any satisfactory evidence, on the risks of certain hormones in meat production.  The WTO ruled against the EU and permitted the use of the precautionary principle only as a temporary measure with the proviso that risk assessments be carried out (see Zarrilli, 1999: 8, Roberts, 1998: 30).  Whilst some WTO members have been concerned about the potential for the precautionary principle to be used for protectionist purposes, others defend it on scientific, administrative and environmental grounds.  The supremacy of risk assessment procedures has been challenged by environmentalists, lawyers and consumer rights campaigners.  Environmental NGOs argue for amendment or interpretation of Technical Barriers to Trade (TBT) and Sanitary and Phyto-sanitary Agreements to respect fully the precautionary principle (e.g. WWF, 1999). 

There has been considerable debate on the relative merits of the Precautionary Principle and Risk Assessment. 
 

Adaptation to regional conditions and pest-free areas

Recognising that the situation regarding animal and plant disease may within a given country, the SPS Agreement specifies that regulations must adapt to regional conditions and pest-free areas.  The importing country must consider whether there are zones within the exporting country that present less danger.  Zarilli argues that many developing countries have not been able to fully benefit from this principle as the procedures to prove that specific areas are pest free can be ‘long and burdensome and often involve the need to provide complex scientific evidence’ (1999: 21).  Expert assistance would facilitate market access here.

Equivalence

Article 4 of the SPS agreement expresses the principle of equivalence of measures, i.e. countries shall recognise as equivalent those SPS measures that are not identical but have the same the same effect.  However, many countries are expecting “sameness” rather than equivalent measures (Youssef, 1999:34), for example the EU’s emphasis on i.e. the use of ‘process-based controls enforced by a “competent authority” in exporting countries rather than border inspection’ (Henson and Loader, 1999: 12). 

Similarly, organic regulations for products imported in the EU have become increasingly onerous for developing country producers in terms of paper work, time limits for exemptions, which institutions bear responsibility for ensuring eligibility of certification systems and transition periods before a product can be designated organic for the European market (Nycander, 1999).
 

Transparency and consultation

Provisions for transparency aim to ensure that Members are notified of a measure before it is implemented.  Similarly members are encouraged to consult widely in the process of developing standards and indeed this is enshrined in the structures and procedures of the three bodies charged with developing international standards for food safety, plant health and animal health (link to box).  However, there has been considerable criticism vis a vis the lack of southern participation in such bodies, particularly Codex.  Many developing countries argue that their interests are not represented and the Codex standards are too high (Henson and Loader, 2000: 20; Kwa, 1999).

Dispute Settlement

The SPS Agreement provides a mechanism for dispute settlement.  Member countries may challenge as unjustified each other’s SPS measures on grounds, for example, that a risk assessment has not been undertaken or the measures are not based on relevant international standards.  See Nematodes and Conifers: An example of a plant health dispute

However, in order to challenge Northern measures, a complainant needs information, technology and facilities.  Analysis of WTO dispute panels or requests for consultations on account of SPS/ TBT measures by Wilson (1999) indicates that debates are predominantly between developed countries. 

Indeed there is a distinct lack of active participation in SPS Agreement by developing countries, with some exceptions e.g. India, Egypt, Philippines and Indonesia (Henson and Loader, 2000: 22).  The SPS Agreement therefore tends therefore to be driven by northern interests and its procedures are largely not transparent.
 

Nematodes and Conifers: An example of a plant health dispute

In 1998, the European Union instigated a new regulation on coniferous sawn timber requiring it to be treated before importation for fear of nematode infestation.  Through the WTO, Canada asked for a consultation with the EU focusing on the nature of the risk and the costs involved in treatment and the treatment methods specified. 
Consultations are still pending, but as of July 1999, as no mutually acceptable solution has been found, but neither party has asked for a dispute panel to be set up

Source: Bourke and Leitch (1998) and Roberts (1998), Bridges July 1999.