4. INTERNATIONAL TRADE LAW

The second important area of treaty law applicable to the expansion of the NQS is international trade law. The United States is party to many international trade agreements at the multilateral, regional, and bilateral levels. For purposes of this memorandum, the Consultant has focused on agreements within the WTO, namely the General Agreement on Tariffs and Trade (GATT), the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), and the General Agreement on Trade in Services (GATS). Unlike the revised IHR, the United States has had obligations under these WTO agreements since 1995 and thus already has systems in place that operate U.S. trade policy in conformity with the nation’s rights and duties under international trade law.

Trade in Goods: GATT, the SPS Agreement, and the Expanded NQS

GATT and the SPS Agreement apply to governmental measures that affect international trade in goods; and thus the scope of these agreements’ application is narrower than the revised IHR, which have rules applying to goods, conveyances, containers, and travelers. The impact of GATT and the SPS Agreement on the expanded NQS is, as a result, more limited because these trade agreements have no relevance for public health measures taken to address disease threats presented by people and transportation technologies. Further, as explored below, the scope of the SPS Agreement is narrower than GATT in terms of trade in goods.

General Principle and Scope

Both GATT and the SPS Agreement recognize each WTO member’s sovereign right to take measures necessary for the protection of human, animal, and plant life or health (GATT, Article XX[b]; SPS Agreement, Preamble and Article 2.1). Both agreements apply, however, disciplines to the exercise of this sovereign right; and the three main categories into which these disciplines fall are explored below.

A particular threat to health may fall within the scope of both GATT and the SPS Agreement, but the SPS Agreement is the controlling treaty for “sanitary and phytosanitary measures” (SPS measures). For purposes of protecting human health, which is the objective of the expanded NQS, SPS measures fall within the SPS Agreement if a WTO member applies them to protect human life or health within its territory from risks arising from (1) additives, contaminants, toxins, or disease-causing organisms in foods, beverages, or feedstuffs; or (2) diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests (Annex A, ¶1).



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