On The Risk Assessment Of The SPS Agreement

Along with the development of international commercial freedom, SPS Agreement is more and more widely used in the WTO dispute settlement. However, some countries is not only aimed at protecting the health of human beings and propagation, instead, they use SPS Agreement as non-custom measure to prevent foreign product from putting into domestic market, and protect domestic industry. Various countries take different purpose when implying into the SPS Agreement, and express the agreement differently, so the assessment standards and expressions of the risk assessment are confused when disputes arise. Most of the SPS cases focus on the risk assessment, and risk assessment is the key to tackle SPS disputes. This thesis will analyze and express the risk assessment in SPS Agreement in details. The whole thesis is divided into four parts.Part One is the summarization of SPS Agreement. The thesis analyzes the background, outcome, purpose, definition, types and factors needed to take into account of the SPS Agreement. One side of the purpose of SPS Agreement (the Agreement on Sanitary and Phytosanitary Measure) is making farm products complying with specific sanitary regulations and product standards in the international commerce to prevent across-border spread of plant disease and insect pests, and protect the health and lives of human beings and propagation; the other side of the purpose is to avoid the misuse of SPS Agreement, reduce the negative effect of SPS Agreement as technical commerce barrier to farm products.To avoid the misuse of the SPS measure, how to imply in the SPS measure becomes the key. SPS Agreement breaks the definition of"zero risk"in quarantine, and bring into the definition of"risk assessment". SPS Agreement regulates the scientific basis of assessment, and combines the assessment with SPS measures. In practice, the manager must assess the risk to health and lives of human beings before taking SPS measures, the assessment must be based on science, and the outcome of assessment does not come into existence without"sufficient scientific evidence".Risk assessment is divided into two types:"from pests and epidemic diseases"and"from foods, fodder and beverage". The former needs the assessment to probability and relative economic results of the spread of diseases, the latter needs the assessment of potential negative effect to human beings'health. Article 5.2 of the SPS Agreement regulates the relative factors in risk assessment, such as containable scientific evidence, relative procedure and produce method, relative tests and so on. The listing factors must firstly be containable scientific evidence, but not limited to it.Part Two analyzes the relative articles of risk assessment, and expresses them incorporated with SPS cases. The articles of SPS Agreement used most in WTO disputes are Article 2.2, Article 5, Article 3.3, and Annex 1 Article 4. In Article 5, the most used articles are Article 5.1 and Article 5.7. Taking Article 2.2 and Article 5 as legal foundation, combing with Article3.3, Annex 1 Article 4 and other articles consists the organic whole of risk assessment, and one should not solely and mechanically analyze these articles, instead, one should comprehensively analyze according to the cases.Article 2 of SPS Agreement regulates the basic rights and liabilities of members, the following articles are specific measures of Article 2. Article 2.2 regulates the most important principle of risk assessment"scientific evidence principle". Article 5.1 regulates"each member should insure that its SPS measures comply with the relative satiation and on the base of risk assessment."This article is substantive commend to reasonable relationship between"risk assessment"and"proper SPS protection level". Article 5.1 is further statement of Article 2.2, and it specifies the scientific principle of Article 2. Article 3.3 is about SPS measure standard, and it includes factors of risk assessment, that is"despite the countries adopted measures has fixed on higher or stricter protection level than relative international standards, guidelines and suggestions, they are still subject to the demands regulate in Article 5, that is they also need risk assessment."Annex 1 Article 4 is the definition of risk assessment, which is the important foundation to ascertain risk assessment.Part Three analyzes the procedural regulation of risk assessment in SPS Agreement. The preliminaries to apply the risk assessment is to ensure one measure be SPS measure. SPS Agreement regulates Article 5 is applied into SPS measure, therefore, if one party hope to ascertain one measure is the SPS measure regulated in Article 5.1, it must firstly ascertain the measure is SPS measure. Only if firstly ascertain the measure is SPS measure and the measure applies risk assessment one party could consider the procedural and substantive regulations of risk assessment.The evidence responsibility of risk assessment's procedural regulation has been given out in several cases: general regulation of dispute settlement needs defendant takes the preliminary evidence responsibility, and the plaintiff proves the defendant does not obey the SPS Agreement, then the defendant proves itself comply with the agreement. When the plaintiff does not offer the preliminary evidence, or does not bring forward claims, the expert group could not consider the defendant's measures breach the agreement.Except for evidence responsibility, Article 5.1 of SPS Agreement includes procedural demand as well. Article 5.1 does not regulate precise procedural demand about SPS measure, however, according to the meaning of word"according to"in the context and the aim and tenet of Article 5, Article 5.1 includes the"minimum procedural demand", that is the member taking the SPS measure need bring forward evidence to prove that it at least considered the risk assessment when regulates or takes the SPS measure.Part Four analyzes the substantive regulation of risk assessment in SPS Agreement. Taking SPS measure should be base on risk assessment, and risk assessment is based on scientific evidence, for scientific evidence is the foundation of quarantine.Scientific evidence principle should he analyzed in two ways: science principle and evidence principle. Scientific evidence principle needs the evidence of risk assessment base on science. The phases have something with science almost cover all of the regulation of risk assessment."Science"takes an important role in the risk assessment. In order to explain the science principle and avoid confuse, this thesis simply introduce some similar phases referred science:"sufficient scientific evidence","scientific justification","relevant scientific evidence", and"scientific principle". Reaching the conclusion of the risk assessment needs scientific evidence. Scientific evidence principle asks the evidence of risk assessment is scientific evidence. The thesis concludes five characteristics of scientific evidence: sufficiencies, probability, proportion, specify, and timing valid. Almost in all of the SPS cases, the plaintiffs claim the SPS measures lack of sufficient scientific evidence, the sufficiency of evidence asks if the members of WTO would like to take SPS measure, they should suffer"sufficient"scientific evidence, and"on the foundation of science". The"probability"of the evidence asks the evidence of risk assessment must point out the types of diseases and the economic effect the members, assess the probability of the diseases coming into the inland of member, assess the probability of diseases coming into the inland of member after taking SPS measure. The"proportion"of evidence asks there is an objective and reasonable relationship between the scientific evidence and SPS measure, and there is proper proportion between SPS measure and scientific evidence. One should not take stricter measure according to the less important or less scientific evidence."Specify"of the scientific evidence asks the evidence must specify to exist risk. One party must assess the specific risk of SPS measure, otherwise, the risk assessment is considered to be not sufficiently specific. The"timing valid"of the evidence asks when one party judge the risk assessment is whether or not comply with Article 5.1, it should only base on the evidence making at the time of making the risk assessment, and should not consider the evidence making after making the risk assessment.