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RISK MANAGEMENT AND THE WORLD TRADING SYSTEM: REGULATING INTERNATIONAL TRADE DISTORTIONS CAUSED BY NATIONAL SANITARY AND PHYTOSANITARY POLICIES

DAVID G. VICTOR

Council on Foreign Relations, New York

The Sanitary and Phytosanitary (SPS) Agreement, part of the 1994 accords that established the World Trade Organization (WTO), promotes international trade by requiring countries to base their sanitary (human and animal safety) and phytosanitary (plant safety) measures on international standards. However, it allows countries wide latitude to deviate from international standards when choosing their level of SPS protection, provided that (1) countries base their deviations on scientific risk assessment, (2) countries avoid discrimination by requiring comparable levels of SPS protection in comparable situations, and (3) countries not implement SPS measures that are more restrictive of trade than necessary to achieve the level of SPS protection that they seek. In this paper I review and assess the major provisions of the SPS Agreement (Appendix A), the international SPS standard-setting bodies, and the disciplines that govern allowable deviations from those international standards. I also examine the three WTO disputes that have helped to interpret the provisions of the SPS Agreement: the European Community's (EC)1 ban on meat produced using growth hormones, Australia's ban on imports of fresh and frozen salmon from Canada, and Japan's fumigation testing requirements for imported fruits and nuts.

1  

For simplicity, I refer to the European Community, which today is also often called the European Union, as the EC.



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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference 6 RISK MANAGEMENT AND THE WORLD TRADING SYSTEM: REGULATING INTERNATIONAL TRADE DISTORTIONS CAUSED BY NATIONAL SANITARY AND PHYTOSANITARY POLICIES DAVID G. VICTOR Council on Foreign Relations, New York The Sanitary and Phytosanitary (SPS) Agreement, part of the 1994 accords that established the World Trade Organization (WTO), promotes international trade by requiring countries to base their sanitary (human and animal safety) and phytosanitary (plant safety) measures on international standards. However, it allows countries wide latitude to deviate from international standards when choosing their level of SPS protection, provided that (1) countries base their deviations on scientific risk assessment, (2) countries avoid discrimination by requiring comparable levels of SPS protection in comparable situations, and (3) countries not implement SPS measures that are more restrictive of trade than necessary to achieve the level of SPS protection that they seek. In this paper I review and assess the major provisions of the SPS Agreement (Appendix A), the international SPS standard-setting bodies, and the disciplines that govern allowable deviations from those international standards. I also examine the three WTO disputes that have helped to interpret the provisions of the SPS Agreement: the European Community's (EC)1 ban on meat produced using growth hormones, Australia's ban on imports of fresh and frozen salmon from Canada, and Japan's fumigation testing requirements for imported fruits and nuts. 1   For simplicity, I refer to the European Community, which today is also often called the European Union, as the EC.

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference Although disputes have not led to full interpretation of the major provisions of the agreement, it appears that the SPS Agreement has not led to the ''harmonizing down" of SPS protection that many opponents of free trade have feared. Instead, the wide latitude permitted by the SPS Agreement has allowed national diversity in SPS measures to thrive while also reducing barriers to trade. International standards have not become a straitjacket—rather, they have had remarkably little impact on national SPS protection policies. (The main exceptions are in countries, especially in the developing world, that have not already adopted elaborate SPS protection policies; for those countries, international standards fill gaps and raise—not lower—the level of SPS protection.) The main impact of the agreement appears to be in harmonizing the process by which nations set SPS policies—notably, it is promoting greater use of risk assessment at the national level. More extensive assessment of risks may actually yield greater diversity in national SPS policies. In the paper I also suggest that the novel mechanisms for providing expert advice to WTO dispute panels have been highly effective and have greatly reduced the problems of "advocacy science" that often plague the use of risk assessment in other judicial proceedings. The story—apparent success in imposing international discipline that promotes trade while accommodating national diversity—may be a useful guide for solving similar problems that are the mainstay of the "trade and environment" debate. INTRODUCTION One measure of the success of the postwar trading system is that tariff trade barriers have declined sharply. But the reduction in tariffs has exposed the many nontariff barriers that remain, and in many cases governments have kept protectionism in place by simply shifting from tariff to nontariff measures. Included in the broad category of nontariff barriers are differences in technical standards such as labeling requirements and environmental regulations. The focus in this paper is on one subset of these technical barriers: measures for sanitary (animal, including human) and phytosanitary (plant) protection. SPS measures often have huge effects on trade; yet managing them is not easy. SPS measures vary across and within nations because preferences and circumstances vary. Some nations seek tight protection while others readily consume riskier foods; some pristine environments are vulnerable to pest infestations and require elaborate quarantines for imported products, but other countries are already overrun with pests. The political and technical challenge for advocates of free trade is to accommodate such differences while stripping away SPS measures that are merely disguised protectionism. In this paper I examine the effectiveness of the 1994 WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), which is the most significant global effort to reduce trade distortions caused by differences in national SPS protection policies. I examine the major elements of the SPS Agreement and the three international SPS standard-setting processes that are explicitly mentioned in the SPS Agreement. I briefly consider two other

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference WTO agreements—the General Agreement on Tariffs and Trade 1994 (GATT) and the Agreement on Technical Barriers to Trade (TBT) that are often invoked, along with the SPS Agreement, in studies that examine how the international trading system attempts to accommodate differences in national regulations. I review the major elements and decisions of the three WTO disputes that have concerned SPS measures, which help reveal how the WTO system is interpreting the SPS Agreement. And I identify major conclusions that can be drawn about the operation of this system. Throughout, the goal is not only to assess the SPS Agreement but also to explore the policy question that arises wherever expanding the scope of free trade rules intrudes into national policy: Can international rules and institutions impose discipline on national policy without requiring harmonization to international standards? That question arises frequently—especially in the debate over "trade and environment"—and the SPS Agreement demonstrates a slightly positive answer. THE SPS AGREEMENT: MAJOR ELEMENTS The basic obligations for members of the world trading regime have not changed since the first GATT agreement in 1947: Members must give equal treatment to exports from all members, and members are barred from discriminating between locally produced and imported products. Exceptions were allowed for tariffs on specific products, that were "bound" at specific levels. Numerous other "general exceptions" were also allowed for many national policy purposes, such as protection of human, animal, or plant life or the conservation of exhaustible natural resources. But those general exceptions—listed in the famous Article XX—were described only briefly. A system of "dispute panels'' emerged to handle conflicts. In principle, the dispute panel system could have clarified the scope of Article XX. But in practice any GATT member could block adoption of a GATT panel report; and the panel system was often inactive, erratic in operation, and ineffective in major cases.2 Enforcement that did exist was mainly through reciprocity imposed by GATT members themselves. But the blunt instrument of unilateral reciprocity was poorly suited for working out and applying the complex legal interpretations that would be needed to make Article XX workable. In the early decades of the GATT, tariffs were the largest barriers to trade. The main result from each of the first six rounds of negotiations to strengthen the GATT was to revise the list of tariff bindings and reduce the tariff impact on trade. Nontariff measures remained in shadow. For the past 30 years, attention to nontariff measures has grown. The 1979 Tokyo Round agreements, which resulted from the seventh round of negotiations, included a separate "standards code" that imposed discipline on technical barriers to trade. But the code, like the GATT agreement, was backed by little enforcement; although all GATT members were bound by the GATT's 2   For a comprehensive treatment of the cases that were handled, see Hudec (1993).

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference core rules, they were largely free to pick and choose among "code" rules. The result of the Tokyo Round's "GATT a la carte," most experts agree, had little effect on lowering technical barriers to trade. The failures of earlier efforts were addressed head-on in the most recent (eighth) Uruguay Round of negotiations. By 1986, the year that the Uruguay Round began, nearly 90 percent of U.S. food imports were affected by nontariff barriers to trade, up from only half in 1966 (Tutwiler, 1991, cited in Vogel, 1995).3 Exporters had a growing interest in taming these barriers. The main legal products of the Uruguay Round were adopted in 1994. They were an updated version of the GATT (1994) along with 14 other agreements on textiles, subsidies, technical barriers to trade, SPS measures, and other topics. The Uruguay Round also produced a stronger and more judicial dispute-resolution procedure in which three-person panels hear and decide disputes and a standing Appellate Body hears appeals, and produced a mechanism that reviews trade policy in all member countries on a regular basis. Together, these agreements form a single, integrated package of obligations that constitutes the core obligations of a new international organization: The World Trade Organization.4 Countries were no longer free to pick and choose their free trade commitments. The most important element of the WTO concerning SPS protection is the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). The agreement's central purpose is to promote international trade by limiting the use of SPS measures as disguised barriers to trade. The agreement's basic rights and obligations (Article 2) underscore that WTO members have the right to impose SPS measures as necessary "for the protection of human, animal or plant life or health" (Articles 2.1 and 2.2). But members may not arbitrarily or unjustifiably discriminate between members; nor may members use SPS measures as disguised barriers to trade (Article 2.3). These basic rights and obligations are quite general, and thus efforts to interpret them have focused on the more detailed provisions of the SPS Agreement (in particular Article 5, which is detailed below). In addition to restraining the SPS policies that countries may develop on their own, the SPS Agreement urges members to implement international standards. The agreement's preamble underscores the goal: "Desiring to further 3   For a current overview of all technical barriers to trade in U.S. agriculture exports see Roberts and DeRemer, (1997). 4   In addition, the WTO agreement included four "plurilateral" agreements (on aircraft, government procurement, dairy products, and bovine meat) that were adopted in 1994 along with the core WTO agreements. Unlike the "multilateral" obligations that all WTO members must implement, plurilateral agreements are optional. They are not necessarily useless because an agreement—even if voluntary—helps to signal proper conduct and facilitate cooperation. Moreover, voluntary agreements often lay the groundwork for later agreements that are binding and backed by an enforcement mechanism. For example, the conclusion of the seventh round in 1979 included a plurilateral code on technical barriers to trade; the failure of that code to have much effect led to the creation of similar, but binding, multilateral TBT and SPS agreements that were adopted in 1994 along with the other WTO agreements.

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference the use of harmonized sanitary and phytosanitary measures between Members, on the basis of international standards, guidelines and recommendations developed by the relevant international organizations. . . ." The agreement declares that "Members shall base their sanitary and phytosanitary measures on international standards, guidelines or recommendations. . . ." (Article 3.1). When a member imposes SPS measures that conform with international standards, guidelines, or recommendations, those measures will automatically be "presumed to be consistent with the relevant provisions of this Agreement. . . ." (Article 3.2). However, countries may introduce measures that are stricter than international standards "if there is a scientific justification, or as a consequence of the level of [SPS] protection a Member determines to be appropriate in accordance with the relevant provisions . . . of Article 5."5 Thus WTO members face a choice. A member may simply implement international standards,6 where they exist, or deviate from those standards. To examine how the agreement affects the SPS measures that countries implement, it is thus necessary to examine both outcomes: (1) how international standards are established, and (2) the exceptions that permit a country7 to deviate from 5   The SPS agreement also includes a footnote at this point: "For the purposes of paragraph 3 of Article 3, there is a scientific justification if, on the basis of an examination and evaluation of available scientific information in conformity with the relevant provisions of this Agreement, a Member determines that the relevant international standards, guidelines or recommendations are not sufficient to achieve its appropriate level of sanitary or phytosanitary protection." Although the obligations and reasoning are a bit convoluted, this footnote has been interpreted as meaning that measures that deviate from international standards are acceptable if based on a risk assessment—that is, if they meet the requirements of Article 5, which includes the requirement of a risk assessment (Article 5.1). In plain language, Article 3 promotes harmonization with international standards. And Article 5 allows countries to escape the straitjacket of international standards, provided that an assessment of risks is the first step in setting such stricter SPS measures. 6   For simplicity, hereafter I use the term "international standards" to denote "international standards, guidelines, or recommendations." Although the full term is important for legal purposes because it is broader, the simpler plain English term is most appropriate for this paper. One of the remaining gray zones in applying the agreement concerns just how broadly to apply this definition. For example, as I review below, the Codex Alimentarius Commission adopts not only specific standards (e.g., on food additives) but also more general standards for commodities and advisory guidelines. Does the WTO Agreement apply to all three, even though Codex guidelines were never designed nor intended to have binding application? 7   For simplicity I use the terms "country" and "WTO member" interchangeably. For purposes of discussing legal obligations I also treat countries as single units. However, some SPS measures (e.g., quarantines) apply only to certain parts of countries and thus have trade effects only for imports (from outside as well as inside the country) into that part of the country. Examples include quarantines for many exports to Hawaii, which are stricter than exports to the rest of the United States. Moreover, although the obligations of the WTO agreements are imposed on "members," it is not necessary that governments perform all of the required tasks. Often risk assessments and trade controls are

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference those international standards. I address these in reverse order because the exceptions are the most elaborate portion of the SPS Agreement and all of the disputes involving the SPS Agreement have focused on how to interpret the exceptions. If a country implements an international standard, it is automatically in compliance with the SPS Agreement, and thus all the WTO disputes concern instances where either international standards are absent, or a member has chosen not to implement existing standards. Before turning to international standards and exceptions, it is important to note that the SPS Agreement includes several important obligations that extend the agreement's influence beyond simply the setting of SPS levels and measures. In principle, the SPS Agreement also allows exporters broad latitude when determining the SPS measures that are needed to meet the level of SPS protection that importers demand. The agreement requires that importers accept the SPS measures of exporters . . . . . . as equivalent, even if these measures differ from their own or from those used by other Members trading in the same product, if the exporting Member objectively demonstrates to the importing Member that its measures achieve the importing Member's appropriate level of [SPS] protection (Article 4.1).8 Assuming that exporters have an interest in identifying the least trade-restrictive measure, this "equivalence" requirement could automatically ensure that SPS rules are not more discriminatory than necessary; "equivalence" could also open markets without requiring actual harmonization. In another context—the creation of the EC's single market—similar concepts (e.g., "mutual recognition") created a strong market-opening dynamic by allowing legal production from any European country into any other European national market. The agreement also requires that countries make their SPS policies transparent both through publication and creation of national "enquiry points" that can answer any reasonable question about that country's SPS rules (Articles 5.8 and 7, and Annex B). If that system operates properly then exporters will find it easier to comply with an importer's SPS rules, which should promote trade. Transparency is also essential to making use of the equivalence requirement described above. In addition, the agreement creates an international SPS Committee that meets on a regular basis to consider relevant topics and periodically review the performance of the SPS Agreement (Article 12). That committee is expected to adopt guidelines on SPS-related issues that could help in the interpretation of the agreement, although, to date, its impact on trade patterns has been minimal.     implemented by nongovernmental organizations (especially private firms, industrial associations and scientific laboratories), with government acting only a supervisor (see SPS Agreement, Article 13). 8   The SPS Agreement also includes a specific application of the "equivalent" requirement, which is especially important for SPS measures: pest-and disease-free areas. Countries that can demonstrate that all or some of their country is free from a hazard are allowed to circumvent SPS measures that are intended to block diseases on products from that country (Article 6).

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference The agreement allows the least developed countries to delay implementation of the agreement for five years (Article 14), allows other extensions, and empowers the SPS Committee to grant temporary extensions and relief from the agreement's obligations in cases of hardship. The Exceptions One of the most controversial aspects of the debate over opening trade has been the fear that free trade will force all countries to harmonize their national standards into a straitjacket of international standards. Donning the straitjacket, skeptics argue, could force nations to adopt stricter SPS measures than they would otherwise want. That might force societies to spend resources on SPS protection that they could have devoted to other purposes such as economic development. Or the straitjacket could force countries that already have tight SPS measures to relax them, leading perhaps to downward harmonization if international standards merely mirror the lowest common denominator. The latter has been the most controversial because existing SPS measures are generally much tighter in the advanced industrialized countries, which is also where most of the public interest groups active on SPS issues are located. Harmonization, they fear, will require compromising hard-won rules that protect consumers and the environment (Silverglade, 1998; Jacobsen, 1997).9 Because of this heated debate, fully under way when the WTO agreements were negotiated, the SPS Agreement permits countries to adopt SPS protection policies that are stricter or weaker than international standards. Rather than requiring harmonization, the SPS Agreement imposes discipline on both the level of SPS protection that countries seek and the measures they impose to attain those levels. The agreement and disputes over interpretation of the agreement have underscored that any country may set the level of SPS protection that it determines to be "appropriate." (This "appropriate level" is also often termed in the literature on risk management as the "level of acceptable risk.") The SPS Agreement does impose some discipline on the level of SPS protection, but it imposes more elaborate discipline on the measures that countries use to achieve that level. Below, I address the disciplines imposed on SPS levels and measures that are stricter than the international standards, and then I discuss measures that are weaker. SPS Levels and Measures That Are Stricter Than the International Standard The SPS Agreement is mainly intended to discipline SPS measures that cause an unjustified barrier or restriction on trade because they are stricter than international standards. Indeed, Article 3.3 (cited above) explicitly carves out an 9   Also, there have been numerous letters to the President of the United States, responses to proposed rule making, and other political actions based on similar arguments.

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference exception to the goal of harmonization for SPS measures that are stricter than international standards. Article 3.3 requires that a member must be able to provide "scientific justification" for choosing a higher level of SPS protection. Similarly, Article 2.2 requires that members base their SPS measures on "scientific principles." These general requirements are quite broad and thus, in practice, the decisions of the Panels and Appellate Body in the three WTO disputes related to the SPS Agreement have turned to Article 5 for a more detailed description of "scientific" determination of SPS levels and measures.10 Article 5 requires that SPS measures be "based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations" (Article 5.1, emphasis added). It requires that members take into account available scientific evidence (Article 5.2). When performing risk assessments, countries must account for economic factors such as potential loss in production or sales if a pest or disease enters the country as well as the cost effectiveness of different measures that could limit such risks (Article 5.3). Article 5 also underscores that the agreement does not address every aspect of SPS protection. Rather, it concerns principally those SPS policies that affect trade. It urges countries to minimize the negative trade effects of SPS measures (Article 5.4). It requires that countries avoid "arbitrary or unjustifiable distinctions" in their levels of SPS protection "if such distinctions result in discrimination or a disguised restriction on international trade" (Article 5.5, emphasis added). Article 5.6 requires that countries not impose SPS measures that are "more trade-restrictive than required to achieve [the level of SPS protection that the member deems appropriate]." A footnote to Article 5.6 declares that a measure would be inconsistent with Article 5.6 if an alternative is found that passes each of the following three tests: (a) it is "reasonably available," (b) it achieves the member's appropriate level of SPS protection, and (c) it is "significantly less restrictive to trade than the SPS measure contested.'' Article 5.7 allows countries to adopt SPS measures even in the absence of good scientific information, provided that they also establish a process to obtain the information needed for a proper risk assessment. 10   The legal reasoning is a bit convoluted because the SPS Agreement is also convoluted on this point. Article 3.3 specifically cites Article 5 as a justification for countries to deviate from international standards. (However, the citation is odd because it suggests that a member may employ a "scientific justification" or Article 5 when, in fact, they have been interpreted as the same.) See also footnote 5 in regard to Article 3.3 cited above. For a statement on the need to examine Article 5 to interpret the basic rights and obligations enumerated in Article 2 see WTO (1998d), which argues that "Articles 2.2 and 5.1 should constantly be read together. Article 2.2 informs Article 5.1: the elements that define the basic obligation set out in Article 2.2 impart meaning to Article 5.1 (para 180)." In addition, the same report (para. 212) notes that Article 2.3 must be read together with Article 5.5—the former declares a general obligation and the latter elaborates "a particular route" for determining whether the general obligation has been met.

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference These critical provisions in Article 5 essentially yield four rules that countries must follow when they impose SPS measures that deviate from international standards (or when no international standards exist): The country must obtain a risk assessment (Articles 5.1, 5.2, 5.3, and 5.7).11 The SPS measures imposed must be "based on" that risk assessment (Articles 5.1 and 5.7). The country must not discriminate or create disguised trade barriers by requiring different levels of SPS protection in comparable situations (Article 5.5). The measures must not be more restrictive of trade than necessary to reach the level of SPS protection that the country desires (Article 5.6). As shown below, the exact meaning of these four requirements is not obvious. However, Article 5 is the linchpin of the SPS Agreement—it puts discipline on SPS protection policies that countries adopt without requiring the politically impossible task of harmonization. There is a revealing silence in Article 5 and other related provisions of the SPS Agreement.12 Article 5 is mainly concerned with ensuring that countries base their SPS measures on risk assessment and that they not adopt measures that are more restrictive of trade than necessary. It is largely silent on the level of SPS protection that a country seeks. Indeed, as mentioned above, several provisions of the SPS Agreement underscore that countries are free to set their own level of SPS protection, even if that level of protection is different from the level that would be afforded by international standards (e.g., Articles 2.1 and 3.3). The only provision in the SPS Agreement that specifically constrains the level of SPS protection that a country may set is Article 5.5, which requires that countries seek comparable levels of SPS protection in comparable situations.13 11   The WTO disputes related to risk assessment have focused on Articles 5.1 and 5.2; Article 5.3 is also relevant because it outlines the type of information that should be included in a risk assessment. Article 5.7 concerns provisional measures taken when information is insufficient and is an extension of the basic risk assessment requirements in Articles 5.1, 5.2, and 5.3. In the EC meat hormones case the WTO's Appellate Body noted that Article 5.7 is a reflection of the precautionary principle—in particular, strict measures may be put into place on a temporary basis if information is insufficient (similar statements are found in the sixth paragraph of the preamble and in Article 3.3). However, the precautionary principle and Article 5.7 do not override the requirement to base measures on a risk assessment as denoted in Articles 5.1 and 5.2. See WTO 1998d paras. 120–125. For more on the tests that must be met to qualify under Article 5.7 see the discussion of the Japanese fruits and nuts case below. 12   The other related provisions are, in particular, Articles 2 and 3 and the definitions in Annex A. 13   There is a small qualifier to this statement. Article 3.3 also says that members may impose SPS measures " . . . which result in a higher level of [SPS] protection . . ." if one of two conditions is met: the measures are based on a "scientific justification" or the measures are in conformity with Article 5. The concept of "scientific justification" is

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference Thus, to determine whether a country's level of SPS protection is legitimate one must look inside the country itself—at whether the country consistently seeks a particular level of SPS protection. It is possible to interpret the requirements that SPS measures be based on a risk assessment (Articles 5.1, 5.2, 5.3, and 5.7) as also a requirement that a country's SPS levels also be based on risk assessment. Indeed, how can one assess the risks of SPS measures without assessing the risks associated with the level of protection as well? Levels and measures are two sides of the same coin.14 This remains a hotly contested issue because it concerns perhaps the most politically sensitive aspect of the SPS Agreement—whether it will encroach on a nation's sovereign right to determine its own SPS protection level. SPS Measures That Are Weaker Than the International Standard The other type of exception to harmonization is the reverse of the first: Nations may adopt SPS measures that are less strict than international standards. The requirement in Article 5 that standards be based on risk assessment and take into account available scientific evidence applies whether standards are stricter or looser.15 So far, none of the formal WTO disputes has addressed SPS measures that are less strict than international standards. Two reasons probably explain why the problem has not arisen: (1) the issue is most prominent in developing countries, many of which are still in transition to full implementation of the SPS Agreement; and (2) for many products, weak SPS measures are much less of a threat to free trade than strong measures. But it is conceivable that this type of exception will come under closer scrutiny and tighter discipline in the future. For manufactured goods, such as processed foods, there is often a substantial premium in efficiency for producers that can export to a market governed by a single standard. Lax standards, even if applied equally to local and imported products, could favor local producers and harm imports that are produced according to more expensive standards that prevail in the rest of the world     defined in footnote 5 such that, in practice, scientific justification means based on a risk assessment. The provisions for risk assessment are outlined in Article 5 and in Annex A ("definitions") of the SPS Agreement. Thus the discipline on the level of SPS protection that a country may establish funnels through Article 5, and the only part of Article 5 that explicitly addresses the level of SPS protection is Article 5.5. 14   This is especially evident in the EC's meat hormones ban and Australia's ban on imports of fresh and frozen salmon, where a country's level of SPS protection has been challenged directly. In both cases, the level of protection that the importing country sought was zero risk because the country had imposed a ban on imports. Thus, testing whether the bans were consistent with the requirement to base SPS measures on risk assessment was, de facto, a test of whether the goal of zero risk was based on risk assessment. 15   The only provision of the SPS Agreement that explicitly applies to national SPS standards that are stricter than international standards is Article 3.3.

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference market. Using this argument, an alliance of global exporters and environmentalists may discover that the SPS Agreement is a very powerful tool—it could pry open local markets that are "distorted" by weak SPS standards and force a higher level of SPS protection. Whether the SPS Agreement is used in this capacity remains to be seen; such cases probably will be rare, not least because demonstrating the existence of a trade effect is difficult and bringing disputes is costly. INTERNATIONAL STANDARDS Although most of the SPS Agreement is focused on exceptions, its principal objective—stated in the preamble—is to promote harmonization of national standards.16 The SPS Agreement explicitly urges countries to adopt the standards set in three international processes: the Codex Alimentarius Commission (food safety), the International Office of Epizootics (animal safety), and the various organizations and processes that operate under the International Plant Protection Convention (plant safety). It also empowers the SPS Committee to identify other appropriate standards, guidelines, and recommendations. In this section I discuss how these three intergovernmental processes set standards. Most attention is given to the Codex process because that has been the most active in actually setting standards and has, by far, attracted the most political attention because the safety of food for human consumption is the most politicized aspect of the SPS Agreement. The Codex Alimentarius Commission17 In the aftermath of the World War II, the European nations created several institutions that were designed to promote trade and cooperation. Their architects hoped that the resulting economic integration would widen and deepen—by focusing on making money, Europeans would form a binding political union that would avert future war. The institutions included the European Coal and Steel Community (a predecessor of today's European Union) and the Codex Alimentarius Europaeus, established in 1958 to help harmonize methods for testing food safety in Europe. At the same time the 16   Two statements in the preamble make this point: "Recognizing the important contribution that international standards, guidelines and recommendations can make in this regard. . . ." and Desiring to further the use of harmonized sanitary and phytosanitary measures between Members, on the basis of international standards. . . ." In contrast, the preamble does not mention risk assessment or rules to govern deviations from international standards as principal objectives. 17   This section is based mainly on Victor (1998). For the early history of Codex see Leive, (1976), and Kay, (1976). And for a study with particular attention on pesticide (residue) standards see Boardman, (1986).

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference SPS measures not be more trade restrictive than necessary should also facilitate trade. But greater use of risk assessment, by itself, could have mixed effects on trade. Internal alignment of risks will eliminate grossly protective SPS measures, which should open trade.69 But it may also result in countries tightening some SPS measures to ensure that overall national SPS policy is in alignment. One of Australia's main responses to the argument that allowing imports of potentially disease-carrying live ornamental fish was incompatible with their ban on imports of fresh and frozen salmon was to point out that it was reviewing the rules that govern imports of ornamental fish (and other potential carriers) (WTO, 1998b, para. 4. 190). Similarly, the EC's response to the inconsistency between allowing the use of known carcinogens (carbadox and olaquindox) while prohibiting hormones used for growth promotion was to underscore that the carcinogens were under review and might be regulated more tightly (WTO, 1998d, para. 234). Thus, internal alignment could raise or lower SPS protection, and more analysis is needed to uncover which effects will occur. The net effect of internal alignment may greatly increase "good government" and yet have remarkably little effect on trade. More assessment should make it easier to identify SPS measures that achieve a given level of protection with fewer restrictions on trade. But more assessment may also aid the development of alliances between advocates of tight SPS protection and others who want to restrict trade, which could lead to more SPS-related trade barriers. More attention to SPS issues worldwide should lead to an international learning process focused on risk management. However, that process might result in learning about some SPS measures that are deemed "legitimate" under the SPS Agreement and are also particularly effective protectionist trade barriers—for example, quarantine measures imposed by countries that are free of particular diseases allow the importer to impose "equal treatment" on both local and foreign production while effectively barring imports. Nations may also learn that protectionist measures will not run afoul of the WTO if they also serve plausible SPS protection goals. In the EC hormones case, for example, the Appellate Body ultimately did not declare that the inconsistency between allowing the use of known carcinogens and banning growth hormones was incompatible with the SPS Agreement. The Appellate Body maintained that the inconsistency was "arbitrary or unjustifiable," but proof had not been offered to show that the difference failed the requirement of Article 2.3 of the SPS Agreement: ''sanitary . . . measures shall not be applied in a manner which would constitute a disguised restriction on international trade." The hormone ban had multiple effects—some legitimate 69   Of course a nation could align risks so as to support a grossly protective measure. But I discount that possibility for two reasons. One is that it would require massive distortion of trade, perhaps across many sectors, which would become apparent and vulnerable to challenge both in internal political processes as well as through the WTO. The other is that even if SPS risks are aligned internally they must be based on a risk assessment (SPS Agreement, Article 5).

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference and others protectionist—but there were plausible reasons for the measure. For example, the Appellate Body found that "depth and extent of the anxieties experienced within the European Communities concerning . . . the carcinogenicity of hormones [and] . . . scandals relating to black-marketing and smuggling of prohibited veterinary drugs . . ." were legitimate reasons for regulatory action (WTO, 1998d, para. 245). Moreover, the Appellate Body also judged as reasonable the fact that the EC had banned hormones across the community—although only a few EC members had taken such action on their own—because the goal of a barrier-free internal market required a common measure across the EC. Whereas the Panel had focused on the protectionist reasons for the inconsistency, the Appellate Body underscored the legitimate ones. By this reasoning, the Appellate Body thus set a high standard for complainants to meet when they attempt to prove that a measure has protectionist aims. The lesson learned by protectionists is certainly to shroud a protectionist measure with legitimate food safety concerns. Expect bootleggers to seek out (or invent) Baptists to help press their interests. More generally, increased attention to evaluating risks could result in a greater number and diversity of SPS measures. As societies have become more aware of risks and better able to afford risk management, they have demanded more stringent social regulation. Within this context, international rules that force countries to look more closely at their SPS policies are likely to yield more SPS measures by accelerating the tendency for countries to impose SPS measures. And the SPS measures that countries do adopt are more likely to be tuned to local conditions and interests if they are explicitly based on risk assessment. It is thus plausible—perhaps even likely—that the result of greater attention to SPS measures will be greater diversity in SPS levels and measures, not harmonization. More systematic analysis is needed to determine the trade effects of the SPS Agreement's effort to harmonize the process of SPS protection—in particular, the requirement that members employ risk assessment. It should not be assumed that in all conditions a binding requirement to base SPS measures on risk assessments will lead to more trade or even to more harmonization. International Standards: Little Impact Although the central purpose of the SPS Agreement is to promote harmonization of SPS measures, the three cases suggest that international standards have not had much impact. That finding is surely biased by the cases examined here—dispute panels are likely to hear only those cases for which national SPS measures do not conform with international standards since cases where there is conformity are explicitly in compliance with the SPS Agreement and thus yield no viable dispute. Thus, perhaps international standards are having a large unseen effect; systematic research on that possible effect is needed.

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference In each of the three WTO cases, international standards were referenced in the resolution of the disputes. But none of the outcomes from the disputes actually required the existence of an international standard. The EC hormones case made most extensive use of international standards, but that was because the Codex system—in particular JECFA (which is formally external to Codex)—had given extensive attention to the hormones under review. Even so, the dispute panels did not rely exclusively on the JECFA reviews. Rather, the Panel (advised by experts it had retained) looked at the entire scientific literature, which included several non-JECFA reviews of hormone risks. The JECFA reviews were helpful and set a clear benchmark for quality scientific assessment, but the other scientific reviews came to the same conclusions. Moreover, by overturning the narrow interpretation of the SPS Agreement as requiring conformity with international standards, the Appellate Body underscored that international standards were at best a starting point for countries that wanted to deviate from them. Indeed, the existence of international standards was irrelevant for the main line of legal reasoning that decided the EC meat hormones case—the failure for the EC to establish a "rational relationship" between risk assessment and the measures it imposed. The lack of any international standard for one of the six hormones (MGA) did not excuse the EC from the obligation to base even its ban of that hormone on a risk assessment (see footnote 39 and text above). The minimal influence of international standards is even more evident in the Australian salmon and the Japanese fruits and nuts cases. In those cases the OIE and IPPC, respectively, had few, if any, standards that were directly applicable to the issues in the disputes. Only a few of the fish diseases were on the lists of diseases in the OIE's International Aquatic Animal Health Code, and thus for only those did OIE offer specific guidelines for imposing trade restrictions. For the other diseases, OIE was largely silent. Both OIE and the IPPC promulgated general standards for risk assessment that could be applicable in those cases where more specific international methods and standards did not exist, but those guidelines were so broad as to be essentially irrelevant to the resolution of these two cases. This suggestion—that international standards have had much less importance than expected—may hold in the future as well, but for an additional reason. Greater internal alignment of risk management procedures (see above) need not result in alignment according to international standards. Indeed, because the SPS Agreement allows liberal deviations from those standards, more systematic national risk assessment and greater public debate over acceptable risks are likely to result in many more deviations. The history of the Codex Alimentarius acceptances (Table 6-1) lends support to this argument. Developing countries lodged more "full acceptances" of Codex commodity standards because they did not have many SPS measures already in place. But industrialized countries—especially those with the most advanced SPS protection systems—employed principally "acceptances with specific deviations." This suggests that international standards are a fluid that can fill gaps (when countries let the fluid flow), rather than a solid block that crushes

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference deviation. Moreover, this history suggests that the natural progression of risk management may be toward diversity, not harmonization. In a decade from now it may be clear whether the assessment suggested here has proved robust—that the SPS Agreement is having a large effect on the process of national risk management without much increasing the degree of harmonization with international standards. That experience may help build consensus around the view that the solution to nontariff barriers to trade is discipline, not harmonization. Whether discipline alone will be enough to achieve adequately free trade remains to be seen. But it could be adequate to blunt opposition to trade liberalization that has, in part, been based on the fear that free trade requires harmonization. International Standards: From Artificial Consensus to Conflict All three of the international standard-setting bodies examined in this paper were created for different purposes and then grafted to the WTO system. The discussion here focuses on the Codex Alimentarius Commission—the most important of the three. Codex was originally created to provide a forum that would facilitate coordination and create standards that countries would implement voluntarily. The SPS Agreement has changed that dramatically by making the standards legally binding and enforceable. The change in status is bound to lead to greater conflict. The consensus and ease of operation that prevailed in the past was artificial—it existed because the standard-setting bodies were not particularly relevant and entirely optional. Today the stakeholders believe that the standards are much more relevant than before. They might be wrong (see above), but it is perceptions that matter. The newfound importance of these international bodies is requiring much greater attention to decision-making procedures and also exposing standards organizations to greater conflict. The requirement in the SPS Agreement that SPS measures be based on risk assessment unless they are based on international standards will underscore the need for international standards themselves to be based on risk assessment. Yet, to date, none of these organizations has applied a systematic policy for determining acceptable levels of risk. The Codex is in the midst of a systemwide reassessment of risk-related concepts and procedures. But progress has been very slow. Before the conclusion of the SPS Agreement, the Codex Alimentarius Commission contained no principles or definitions related to the application of risk assessment and risk management (Codex Alimentarius Commission, 1993). Today it has several general statements on the role of science and risk assessment, and efforts are under way to expand treatment of risk in setting Codex standards.70 However, the Codex risk principles and 70   For the first amendment to the Codex Procedural Manual that adds these statements see Codex Alimentarius Commission, (1997), paras. 26–31 and pp. 90–91).

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference definitions are only broad statements that appear unlikely to have much practical impact on the work of Codex or on how cases under the SPS Agreement might be handled. It is essential that Codex continue development in this area, but it is also likely that debates over the risk principles will underscore that in the past the Codex standards were easily adopted because there had not been a rigorous attempt to align the risk levels across all standards. Trying to do so would have revealed that gaining agreement on a single world level of acceptable risk—which, in turn, could determine Codex standards—is difficult or impossible.71 To date, the Codex standards have largely reflected risk management procedures in the advanced industrial countries. They are developed with extensive input from industry, mainly (but not exclusively) in the advanced industrialized countries. The industry's interest is to ensure that international standards are consistent with national practices. Thus they seek international standards that mirror those at home. The result is that the agenda and standards in the Codex are determined heavily by the SPS policies in the advanced industrialized countries. Similarly, the large safety margins and the desire to set standards at the "no effect" level reflect the goal of the advanced industrialized countries, which is to set food safety risks as close to zero as is practical. It remains unclear whether that view of the proper risk level is shared among all Codex members. Until the application of Codex standards through the SPS Agreement, few Codex members had paid close attention to the exact safety levels that the Codex system assured. Rising conflict in standard-setting bodies should not be lamented. It is the by-product of a shift from a voluntary (often ineffective) system of standards to a scheme that may have more binding impact. That shift has made some players less willing to sacrifice their interests for the sake of agreement. Previously, compromise was less painful because the Codex Alimentarius procedures, especially the provisions for acceptance, were rife with opportunity to opt out of inconvenient commitments. The impression that international standards are now more relevant has also entrained new actors—such as consumer protection organizations—into the process, and with new voices and interests it has proved more difficult to reach consensus or even majority agreement. But it is worthwhile to ask whether the strategy adopted has been the most effective. In the case of the GATT, it was the GATT members themselves that made the shift from the weaker GATT 1947 framework to the integrated WTO system. They changed not only the legal framework but also the stringency of commitments and the mechanism for enforcement. In the case of the Codex, however, the change in de facto legal status has arrived on its doorstep from the     For current efforts to improve definitions see Codex Committee on General Principles (1998). 71   It might be easier to adopt regional levels of acceptable risk because nations within a geographical region might have common views of risk. However, regional Codex decision-making processes—which were allowed before the Codex system was incorporated into the WTO—are no longer allowed. Nor would regional standards be consistent with the WTO's principles of universal access to decision-making procedures.

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference outside; internal Codex procedures and mechanisms were not reformed at the same time. With Codex standards now much more relevant, is the huge committee system with majority voting the most efficient way to adopt standards? If, in the future, other standards organizations are brought within a binding framework, is there anything that can be done to prepare the way?72 Finally, although conflict can be productive it does risk greatly slowing the work of international standard-setting bodies because nations (or at least a majority of them in each case) are less willing to adopt standards that could be relevant. The failure of the Codex Alimentarius Commission to adopt a standard for bovine somatotropin—for which scientific evidence of safety is comparable with that of growth hormones—suggests that, on politically charged topics, the standard-setting bodies may become bogged in deadlock. The result will be a lack of standards (or broad and meaningless guidelines that are equally useless). That deadlock may not matter for the disciplines of the SPS Agreement because the requirement to base national SPS levels and measures on risk assessment (Article 5) remains in place, even when international standards do not exist. However, on balance, the deadlock on standards probably hurts the free trade agenda. The one area where international standards have been consistently influential is when filling gaps—in areas of food law and in nations not already covered by standards. As markets open, the number of gaps—especially in countries where administrative capacity is low—will grow, at least in the short term until countries catch up with the process of national risk assessment and management. International standards could thus play an especially important role in opening trade to new markets, new products, and new methods of SPS protection. Examples currently on the agenda of the WTO include genetically modified organisms, labeling, and a scheme for more consistent implementation of SPS measures known as Hazard Analysis and Critical Control Points. If nations are gridlocked in Codex because they fear binding application in the WTO, they will not have adequate international standards to guide their efforts to address new SPS threats and new opportunities for improved SPS protection. Expert Advice The experience with SPS discipline offers several encouraging stories for the perennial problem of incorporating expert advice into the processes of risk assessment and risk management. This problem has often been poorly handled within countries, especially when the need for expert advice intersects with 72   There are some efforts at internal alignment already under way in the Codex system. Examples include the development of principles for risk assessment (mentioned above) and the development—now far advanced—of new simplified commodity standards that are intended to focus commodity standards on the food safety-related aspects of commodities. (Prior to this effort, Codex commodity standards were not developed according to a uniform procedure, and many standards addressed cosmetic and other attributes of foods that had little to do with safety.)

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference adversarial legal proceedings. Often the result is a duel between expert advocates that buries and confuses "the truth." The experience reviewed in this paper confirms that independent expert panels, in contrast with dueling experts, can be a highly effective device for synthesizing complex technical information. The Codex committees that debate the proper level for MRLs would have found it very difficult to agree on standards without the advice of the JECFA and JMPR expert committees. Experts have also played a vital role in the resolution of the three WTO disputes. In each dispute, the WTO dispute panels enlisted experts to answer technical questions. 73 Although it is difficult to assess what would have happened if the dispute panels had not had access to their own experts, it is clear that the experts' assessments formed a prominent part of the record and decision-making process in each case. Approximately one-fourth of each Panel report consists of the transcript from the consultation with expert panelists. Each of the three cases depended critically on expert interpretations of scientific evidence as well as evaluations of the adequacy of risk assessments. The central issue for the Panel in the meat hormones case was to determine the merit of the EC's claim that there were consumer risks associated with using hormones for growth promotion. In the salmon case, two critical judgments relied heavily on technical information—whether headless and eviscerated fish posed disease risks, and whether other imports (e.g., frozen bait herring) posed comparable risks. In the Japanese fruits and nuts case, the critical issue was the highly technical conflict over the efficacy of fumigation techniques. The SPS Agreement may also change the type of information that is demanded of experts and sought through the risk assessment process. All three of the WTO panel cases made extensive use of risk assessments. But each case required not only the "normal" elements of risk assessment—an evaluation of the risks to humans, animals, or plants in the importing territory—but also an assessment of how different measures to manage those risks would affect trade. As a growing number of national SPS measures come under scrutiny for their consistency with the SPS Agreement, this "trade impact assessment" aspect of risk assessment will probably become commonplace. SUMMARY In this paper I have reviewed the provisions of the 1994 SPS Agreement and the first three WTO disputes related to the application of the SPS Agreement. I have argued that large areas of interpretation remain open. 73   The SPS Agreement empowers dispute panels to seek advice from experts chosen by the Panel, establish an advisory technical experts group, and/or engage in other expert consultations (Article 11.1). The WTO Understanding on Rules and Procedures Governing the Settlement of Disputes allows panels to request an advisory report from experts on scientific or technical matters (Article 13.2 and Appendix 4). None of the three cases here have employed this provision; rather, in each case, the more interactive format of expert consultation specific to the SPS Agreement was used.

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference However, the disputes have allowed some interpretation of all the major obligations of the SPS Agreement. In particular, The SPS Agreement urges countries to apply international standards, but it explicitly allows countries to deviate from those standards if they can justify the deviation. However, SPS policies that deviate from international standards must be based on risk assessment. In the Australian salmon case, the Appellate Body clarified the "three prongs" of a satisfactory risk assessment and demonstrated why the risk assessment in the Australian salmon ban was not adequate. Adequate risk assessments did exist in the two other cases (EC meat hormones and the Japanese fruits); however, in both of these cases the Panels and the Appellate Body deemed the SPS measures illegitimate because there was no "rational relationship" between the risk assessment and the measures applied. The SPS Agreement also requires that countries apply comparable SPS policies in comparable situations. In the EC meat hormones case the Appellate Body created a three-part test that clarified this obligation. Applying this test, the Appellate Body found that the ban was "arbitrary or unjustifiable," but it did not declare the ban invalid because there was insufficient evidence that the ban also constituted a disguised restriction on international trade (SPS Agreement, Article 5.5). In the Australian salmon case the evidence for discrimination was stronger, and Australia's ban was declared invalid.74 The SPS Agreement also requires that countries apply the least trade-restrictive measures. In two cases (Australian salmon and Japanese fruits and nuts), WTO panels ruled that other measures were available that would achieve the same level of SPS protection and were substantially less restrictive of trade. The basic logic of those findings has been upheld, although the Appellate Body overturned each on other grounds.75 The SPS Agreement requires that countries make their SPS policies transparent so as to facilitate compliance and trade (Article 5.8 and especially Article 7). In the Japanese fruits and nuts case, the Panel found that the transparency provisions had been violated because importers found it difficult to understand the de facto rules that governed imports into Japan, and Japan had not published the relevant material in a way that was accessible to outsiders. 74   The interpretations developed through these cases are doubly important. Not only do they affect the handling of particular cases but they also may influence (or replace) guidelines that the SPS Committee is supposed to develop in order to identify which situations are comparable. That effort is under way but has not made much progress. 75   In particular, in the Australian salmon case insufficient information was available to determine Australia's level of SPS protection because Australia had not conducted a risk assessment or evaluated alternative SPS measures. In the Japanese fruits and nuts case, the panel finding was overturned on procedural grounds—the Panel and experts had identified the alternative, less trade-restrictive measure, whereas it was the obligation of the United States to do that.

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference Thus, nearly all the major obligations of the SPS Agreement have been addressed, at least partially, in disputes: the urging of nations to apply international standards, the requirement to base SPS measures on risk assessment, the requirement to apply comparable policies in comparable situations, the requirement to use the least trade-restrictive measures available, and the requirement that nations make their SPS policies transparent. The only major requirement that has not been addressed in a dispute concerns "equivalence" (Article 4), which obliges each member to accept the SPS measures of other members as equivalent if the exporter can demonstrate that its SPS measures achieve the level of SPS protection required by the importer. This could prove to be the agreement's largest effect on trade, but working out what is meant by "equivalence" will be complicated. Although many areas of interpretation remain gray, the legal text of the SPS Agreement and the cases to date have underscored that nations have wide latitude in setting their SPS protection levels and measures. Thus, far from imposing a strict harmonization between national and international standards—which was the main fear of the agreement's detractors—the agreement actually allows diversity to flourish. The agreement is likely to result in increased use of risk assessment, especially in nations where risk assessment has been used only rarely or never, and to promote debate within nations about proper SPS risk management. More informed and extensive debate will likely lead to even greater diversity in SPS levels and measures. The evidence suggests that harmonization of SPS levels and measures is not under way. However, harmonization of national SPS procedures , such as the requirement for risk assessment, is evident. Procedural harmonization without the strict requirement for harmonization of levels and measures may help to mute the backlash against globalization that, in part, is animated by the fear that national sovereignty is being lost to undemocratic international standard-setting bodies. That procedural harmonization is largely the result of how the Appellate Body—a standing body that serves as a steward of the WTO system and is politically more astute than the panels, which are convened for a particular case and then disbanded—has interpreted the SPS Agreement. In particular, the Appellate Body overturned the legal reasoning of the Dispute Panel in the hormones case, which had maintained that national SPS measures must conform with international standards. The Appellate Body's interpretation probably gives nations more latitude than the creators of the SPS Agreement had originally intended. Advocates of international rule of law probably lament that outcome, but it seems to have been politically wise. Even procedural harmonization has been difficult to implement. At this writing, the United States and Europe are in the midst of a trade war over meat hormones—a case that Europe lost not because it was forced to don the straitjacket of international standards but because it could not demonstrate that there was any "rational relationship" between risk assessments and the standards it had adopted. To stay on an even keel, the WTO may need additional devices to serve as a safety valve when international rules come into direct conflict with entrenched national interests. With the WTO agreements in 1994, overnight

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference members of the world trading system shifted from a system in which there was essentially complete freedom to adopt numerous national SPS measures that affected trade to one where freedom is constrained by the SPS Agreement. The transformation has not been easy and is not complete; if not managed with political sensitivity to the domestic backlash it could readily derail. REFERENCES Boardman, R. 1986. Residues of pesticides: the Codex system. Chapter 4 in Pesticides in World Agriculture: The Politics of International Regulation . New York: St. Martin's Press. Charnovitz, S. 1997. The World Trade Organization, meat hormones, and food safety. International Trade Reporter 14(41):1781–1787. Codex Alimentarius Commission. 1993. Procedural Manual. Rome: Joint FAO and WHO Foods Standards Program. Rome: FAO. Codex Alimentarius Commission. 1997. Report of the 22nd Session, Geneva, 23–28 June. Rome: FAO. Codex Committee on General Principles. 1998. Risk Analysis: Working Principles for Risk Analysis. CS/GP 98/4, Thirteenth Session, Paris, France, 11–15 May 1998. Rome: FAO. Hudec, R.E. 1993. Enforcing International Trade Law: The Evolution of the Modern GATT Legal System. Salem, Mass.: Butterworth Legal Publishers. Jacobson, M.F. 1997. Consideration of Codex Alimentarius standards, advance notice of proposed rulemaking. Comments of the Center for Science in the Public Interest. Docket 97N-0218. U.S. Department of Health and Human Services and Food and Drug Administration, Washington, D.C. Kay, D.A. 1976. The International Regulation of Pesticide Residues in Food. Washington, D.C.: American Society of International Law. Leive, D.M. 1976. International Regulatory Regimes: Case Studies in Health, Meteorology and Food, 2 vols. Lexington, Mass.: Lexington Books for the American Society of International Law. Maddox, J. 1995. Contention over growth promoters. Nature 378:553. OIE (Office International des Epizooties). 1997. International Aquatic Animal Health Code, 2nd ed. Paris: OIE. OIE (Office International des Epizooties). 1998. International Animal Health Code, 7th ed. Paris: OIE. Roberts, D. 1998. Preliminary assessment of the effects of the WTO Agreement on sanitary and phytosanitary trade regulations. Journal of International Economic Law 1(3):377–405. Roberts, D., and K. DeRemer. 1997. Overview of Foreign Technical Barriers to U.S. Agricultural Exports. ERS Staff Paper No. 8705. Economic Research Service, Commercial Agriculture Division. Washington, D.C.: U.S. Department of Agriculture. Silverglade, B.A. 1998. The impact of international trade agreements on U.S. food safety and labeling standards. Food and Drug Law Journal 53:537–541. Tutwiler, A. 1991. Food Safety, the Environment and Agriculture Trade: The Links . Discussion Papers, Series No. 7. Washington, D.C.: International Policy Council on Agriculture, Food Trade.

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Incorporating Science, Economics, and Sociology in Developing Sanitary and Phytosanitary Standards in International Trade: Proceedings of a Conference Victor, D.G. 1998. The operation and effectiveness of the Codex Alimentarius Commission. In Effective Multilateral Regulation of Industrial Activity: Institutions for Policing and Adjusting Binding and Nonbinding Legal Commitments. Ph.D. thesis, Department of Political Science, Massachusetts Institute of Technology, Cambridge. Vogel, D. 1995. Trading Up: Consumer and Environmental Regulation in a Global Economy. Cambridge, Mass.: Harvard University Press. WTO (World Trade Organization). 1997a. EC Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada. Report of the Panel, WT/DS48/R/CAN. Geneva: WTO. WTO (World Trade Organization). 1997b. EC Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States. Report of the Panel, WT/DS26/R/USA. Geneva: WTO. WTO (World Trade Organization). 1998a. Australia—Measures Affecting Importation of Salmon. Report of the Appellate Body, WT/DS18/AB/R. Geneva: WTO. WTO (World Trade Organization). 1998b. Australia--Measures Affecting Importation of Salmon. Report of the Panel, WT/DS18/R. Geneva: WTO. WTO (World Trade Organization). 1998c. EC Measures Concerning Meat and Meat Products (Hormones). Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes, WT/DS26/15, WT/DS48/13. Geneva: WTO. WTO (World Trade Organization). 1998d. EC Measures Concerning Meat and Meat Products (Hormones). Report of the Appellate Body, WT/DS26/AB/R, WT/DS48/AB/R. Geneva: WTO. WTO (World Trade Organization). 1998e. Japan--Measures Affecting Agriculture Products. Report of the Panel, WT/DS76/R. Geneva: WTO. WTO (World Trade Organization). 1999. Japan--Measures Affecting Agriculture Products. Report of the Appellate Body, WT/DS76/AB/R. Geneva: WTO.