SPS Agreement

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Application of SPS measures under WTO
law and Russian practice
Lukasz Gruszczynski, PhD
Institute of Legal Studies
Polish Academy of Sciences
International Annual WTO Forum at the premises of Kaliningrad
State Technical University, 20 - 22 March 2014
Aim and plan
 Aim: to analyze the Russian practice in the area of sanitary and
phytosanitary (SPS) safety and to assess it against the standards
of WTO law
 Plan of the presentation:
• SPS Agreement: some introductory remarks
• use of SPS measures by the Russian Federation:
-
before the accession to the WTO
-
after the accession to the WTO
• some tentative conclusions
WTO and SPS Agreement (I)
 SPS Agreement:
-
one of the WTO agreements regulating introduction and
maintenance of SPS measures
-
aim: to limit the negative impact of national SPS regulations on
international trade
 Basic obligations:
-
requirement to base national measures on international
standards [Codex Alimentarius, World Organization for Animal
Health, International Plant Protection Convention]
-
deviation possible but subject to scientific justification in the
form of risk assessment [no other reason possible]
-
science devised as a criterion (proxy), which allows to
distinguish between permissible and prohibited measures
WTO and SPS Agreement (II)
-
right of Members to act even if scientific evidence is insufficient to
perform adequate risk assessment:
a) a Member can adopt a provisional measure
b) a measure needs to be based on pertinent information
c) a Member needs to seek to obtain additional information
d) and revise a measure in reasonable period of time
-
risk management obligations:
a) right of Members to establish any level of protection they
consider appropriate
b) requirement of necessity (measures need to be proportional)
c) requirement of quasi-consistency (but justification for different
treatment of comparable risks is possible) (Art. 5.5)
d) requirement of least-trade-restrictive alternative (Art. 5.6)
e) requirement to apply the concept of regionalization (Art. 6)
WTO and SPS Agreement (III)
a) requirement to to use concept of equivalency (Art. 4)
b) prohibition of discrimination (between different Members and
with regard to its own territory) (Art. 2.3)
- procedural obligations:
a) prior publication of national SPS measures,
b) special notification procedure via the WTO Secretariat
c) vacatio legis (except for emergency situations)
d) SPS Committee as a platform for a discussion
Russian SPS practice before the accession (I)
 SPS measures were one of the important areas in the Russian
negotiations over its membership in the WTO:
-
many SPS measures considered by trade partners as inconsistent
with the SPS Agreement and international standards
-
SPS measures more stringent than international standards without
scientific justification or risk assessments done in conformity with
international standards
-
SPS measures applied in an arbitrary and non-transparent
manner
-
lack of the legal framework to implement key obligations of the
SPS Agreement (eg. those on equivalence, non-discrimination,
risk assessments, and application of some international standards)
 Many of those concerns were addressed by Russian authorities (e.g.
broader recognition of equivalence, reliance on international
standards, etc.)
Russian SPS practice before the accession (II)
 Other problems: while in many cases the main objective of SPS
measures was protection of the domestic market against infections
(e.g.):
-
bans on imports of poultry from various countries linked with bird flu
(2007),
-
ban on pork from Mexico and several US states in relation with swine
flu (2009)
sometimes SPS bans were used as a tool of Russia’s foreign policy:
-
means of political retaliation (e.g. various bans on Georgian and
Moldavian agriculture products)
-
preventive means against countries that conduct policy which is
considered to be contrary to the Russian interests (e.g. various bans
on Polish agriculture products)
-
means for strengthening its negotiation position in relations with other
countries/blocs (e.g. various bans on EU agriculture products)
Russian SPS practice before the accession (III)
 2005: a ban on imports of meat (pork and beef) products from
Poland:
- formal reason: poor standards in re-export certification that
allegedly saw Latin American buffalo meat sold as
European beef in Russian stores, meet ban withdrew only in
2007
- political considerations that played a role:
a) Russia's negative position on Poland's foreign policy (e.g.
Polish foreign policy towards Belarus and Ukraine
(2004/2005: orange revolution)
b) disapproval of Poland's objectives in energy policy (its
opposition to the construction of the Nord Stream gas
pipeline and willingness to diversify gas supplies to
Poland)
Russian SPS practice before the accession (IV)
 2006: a ban on imports of wine (lifted only in 2013), plantderived products and mineral waters from Georgia:
- formal reason: presence of heavy metals and pesticides in wine
+ falsified products sold as wine; failure to meet water purity
standards
- political considerations that played a role:
- retaliation for pursuing “anti-Russian” policy, and strengthening
co-operation with the West in the political, economic and
security areas
- sanctions for blocking Russian membership in the WTO
- none of those products were banned in any other country
Russian SPS practice after the accession (I)
 2013: a ban on imports of diary products from Lithuania:
-
formal reason: detection of substances dangerous to health in diary
products
-
political considerations that played a role:
-
Lithuanian foreign policy supporting the EU's Eastern Partnership
programme, which hopes to forge closer ties between former Soviet
republics and the EU
-
Lithuania held at that time the EU presidency and it was an organizer
of the Vilnius Summit where number of countries were supposed to
sign co-operation agreements with the EU
Russian SPS practice after the accession (II)
 2014: a ban on imports of pig meat products from the EU:
-
formal reason: detection of several cases of African swine fever in
Lithuania and Poland (wild boars),
-
number of other countries introduced similar bans on Polish and
Lithuanian pig meat products (e.g. China)
-
political considerations that played a role:
-
Polish and Lithuanian (or more generally the EU) engagement in
Ukraine
-
EU is currently considering a formal complaint in the WTO, political
negotiations run in parallel
 Other cases: embargo on selected confectionary products from
Ukraine (2013), embargo on Moldavian wines and agricultural
products (2013)
Some tentative conclusions
 Despite its accession to the WTO, Russia continues to use SPS restrictions
as means of its foreign policy
 While other countries frequently impose SPS restrictions in order to protect
local producers the use of SPS measures as a tool of foreign policy is very
rare
 Those measures are tend to be disproportionate and of selective
character, but at the same time they also relate to real SPS risks (e.g.
African swine fever, safety of Georgian wines)
 Such an approach is (or may be) inconsistent with various obligations of
WTO law; although it may be possible to justify them under sciencebased provisions they may fail necessity (Art. 2.2 SPS) and consistency
requirements (Art. 5.5 SPS)
 The approach seems to lack any strategic goal and does not translate
into long-term benefits for Russia (even in terms of its foreign policy)
-
undermines trusts between trading partners
-
presses affected countries to diversify export
-
does not affect the behaviour of targeted countries
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