Introduction

The WTO Agreement on the Application of Sanitation and Phytosanitary Measures (SPS) states that member countries may set their own standards on food safety and animal and plant health. However, these regulations need to be scientifically based and should not arbitrarily discriminate against countries where similar regulations prevail. Conversely, the Technical Barriers to Trade Agreement (TBT) essentially aims to help distinguish legitimate standards and technical regulations from protectionist measures in order to ensure that there are no unnecessary obstacles to trade.

While the TBT Agreement encompasses a wide range of industrial and agricultural products, SPS measures and government procurement specifications are covered under separate agreements. This separation has given way for some countries to cloak protectionism under SPS measures, thereby affecting legitimate international free trade and negating the WTO’s fundamental principles. To this end, this article attempts to explore the SPS-TBT conundrum along with offering potential solutions to address the same and ensure that such protectionist measures do not undermine the WTO’s main objectives.

How SPS Measures Can Morph into TBT Barriers

The WTO relies on the Codex Alimentarius Commission’s SPS practice codes (CAC) in the SPS Agreement as a set of guidelines and reference standards for trade and disputes. These standards are aimed at protecting the health of consumers and ensuring that there is fairness in the trading of food products. Ideally, Codex standards should be the minimum requirement for food safety under the SPS Agreement. However, some countries apply these standards more strictly than is provided for by the international standards. For instance, while Codex standard may allow a certain level of pesticide residue on a crop, a country may set a lower limit due to other perceived risks. Prima Facie this may appear as an SPS measure, however it can easily turn out to be a TBT measure, reason being that then the exporter is compelled to meet a higher standard for that one country only. This extra step creates additional complexities and costs, raising concerns whether some of the measures are for the benefit of the consumers or to shield local businesses.

For instance, in 2014, Russia restricted the importation of Polish pork due to the outbreak of African Swine Fever. Poland appealed against the ban stating that the scientific basis for the ban was not sound and that the measure was protectionist, meant to protect the Russian pork industry. Likewise, to counteract the increase in domestic wheat prices, India placed restrictions on wheat export. While India justified this as an SPS measure to protect its food security, prompting member countries to claim that it could cause an interruption in the availability of food and doubted the need for the measure. However still, it is challenging to demonstrate misuse of SPS measures because of the high standard of proof and the fact that there might be some scientific justification for such measures even if they are not widely accepted. Furthermore, countries can claim that consumer protection is a valid interest and that they have the right to establish their own SPS measures.

SPS/TBT in a Changing Landscape

With the emergence of new technologies in the agricultural sector, gene editing and advanced farming methods present interesting questions to the current SPS and TBT arrangements. Since many countries have banned Genetically Modified Organism (GMO) imports or have put in place strict measures, they argue that there are risks to the environment or health. However, as the scientific consensus on the safety of most GMOs changes, the difference between crossbreeding and targeted gene modification may blur. This is where countries with strict regulatory measures against GMOs could argue that even slight modifications of genes are a cause for SPS concern, thus raising technical barriers to trade.

Furthermore, other farming techniques such as Vertical farming and Hydroponics, where crops are grown in structures without soil, may also face SPS concerns. However, some countries may fear that the closed systems may lead to higher levels of waterborne pathogens, which may create technical trade barriers to the produce grown through these systems. Moreover, the misuse of antibiotics in livestock production also plays a major role in the development of Antimicrobial Resistance (AMR). As new technologies for raising livestock without antibiotics are invented, countries with more stringent AMR policies may require these methods underSPS, thereby creating technical barriers for nations with less stringent policies.

Conclusion: Bridging the SPS-TBT Divide

The challenges of distinguishing between SPS and TBT measures are best explained by the fact that the two are closely related and often overlap, which calls for more than just international cooperation to address the issues arising from the two measures. One of the initial steps that can be taken towards achieving this goal is to work towards the integration of risk assessment and standard setting. There is, therefore, the need to improve cooperation between international organizations such as the CAC and national regulatory authorities. This should include the sharing of more information on scientific data and the approaches used in risk assessments. This way, a greater level of consistency in the SPS measures can be attained across the borders due to the enhanced cooperation.

In addition, the move from prescriptive to principles-based regulation is also important, especially in the area of risk regulation. It is important to note that regulations should be proportional to the level of risk that is inherent in a given product or agricultural practice. This requires the establishment of a strong system for risk assessment that is based on scientific evidence and can be reviewed by the international community. Transparency is equally important. There is a need for countries to provide clear scientific justification for their SPS measures so that the public can engage in informed debate and the measures can be reviewed by other countries. Greater transparency promotes confidence and allows for the determination of protectionist motives, thus guaranteeing that measures are grounded on scientific evidence and not protectionist motives.

Another approach is the incorporation of Mutual Recognition Agreements (MRAs) which aim at harmonization. Bilateral or regional MRAs would involve countries agreeing to accept each other’s SPS measures, thus eliminating the need for multiple testing and compliance costs. In addition, the procedures for making equivalence findings, where countries show that their current standards provide the same level of protection, can be made easier through the simplification of the process and technical cooperation between the national authorities.

Lastly, enhancing the effectiveness of the dispute settlement mechanisms can also be useful. Possible modifications to the burden of proof in WTO disputes regarding SPS measures could include a requirement for countries to provide a scientifically sound and persuasive explanation for the application of higher standards. This would make it difficult to employ weak evidence for protectionist aims and objectives. Additionally, the creation of a short-term mechanism for the identification of disguised TBT barriers can help to speed up the decision-making process and prevent countries from using such strategies. Therefore, such policy-oriented solutions, along with further work on the SPS-TBT distinction, can help to establish a more stable and transparent trade environment. By focusing on the scientific basis of SPS measures, mutual recognition, and effective mechanisms for the settlement of disputes, can perhaps guarantee that SPS measures remain legitimate means of ensuring food safety, and do not become disguised TBT measures that hinder international trade.

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Rajyavardhan Singh is a second year B.A. LL.B student at Rajiv Gandhi National University of Law, Punjab.

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