留学生国贸毕业论文,留学生毕业论文
发布时间：2015-02-02 17:33
有关国家贸易法paper
在实施卫生与植物卫生措施关贸总协定和1994年贸易（以下简称GATT）结合之后（以下简称SPS措施）后带来了针对国内有关的农业领域和食品相关产品的警觉和严格规定。SPS措施结合的目的是为了给国内的国家提供健康、卫生的食品和更好的环境。这就使得出口国——特别是发展中国家和最不发达国家，在出口农业和食品相关产品中特别艰难，尤其是对发达国家出口的时候。这些艰辛的原因是基于科学原则的规定。由于发展中国家和最不发达国家主要依靠农业和食品相关产品的贸易;特别是南亚区域合作联盟（以下简称南盟）国家专门的出口依赖于农业及食品相关产品，他们的经济更多地依赖农产品出口，而不是工业产品[1]。
不过，矛盾和冲突已经存在，一方面发达国家追求SPS措施，另一方面发展中国家和最不发达国家在有效实施这些措施时面临着困境。
Nevertheless, there have been contradictions and conflicts among the developed countries on one side in pursuing SPS Measures and developing countries and least developed countries face hardship in effective implementation of these measures. European Union and United States are continuously approaching the Dispute Settlement Body for to establish their rights. Therefore, SAARC Nations have to strive hard to implement these SPS Measures for effective export trade. Therefore in this article we are going to analyze impact of SPS measures in world trade; current situations regarding SPS measures in SAARC nations. In Chapter I, we see the origin of SPS measures and role of SPS provisions; how these provisions affect the agriculture and food related product; cases regarding SPS measures with scholar review. In chapter II, we see SAARC nations and their agreements giving importance to agriculture and food related products: impact of SPS measures in SAARC nations. In chapter III, we see problems and difficulties facing by the SAARC nations regarding SPS measures and in chapter IV article ends with conclusion and recommendations.
Origin of SPS Measures:
Every independent country has a duty to provide a clean environment and good health [2] to their citizens without any discrimination to them [3] . To emphasis above statement, the Universal Declaration of Human Rights (1948) art. 25 (1) [4] states that, "Everyone has the right to a standard of living adequate for the health and well-being of himself and his family" [5] . This made the sovereign states as a duty to provide food safety to their nations. Apart from this duty, every country has to concentrate on eradication of hunger and poverty mainly to Developing and least developing countries. But to developed countries like United States (U.S) and European countries are differed from above quote by way of implementing more stringent regulation in food standards than other members.
Both U.S and European Communities [6] (countries) have long history in public health policy. Early in twentieth century U.S had brought some regulation in food standard to protect their domestic people due to scandals raised in food and meat processing industries [7] . To regulate these industries U.S had brought the Meat Inspection Act of 1906 and the Pure Food and Drug Act and these laws are existence in amended form. [8] In European countries, health regulations have started since 17th century commonly called as “Westphalian International System” [9] . Latterly presence of BSE infectious disease in British meat had made the European community’s to enact EU food safety law [10] . All together for both U.S and EU, were forced to enact new acts with strict regulations having scientific basis for to ensure safety food to domestic people due to unpredictable adverse in science and technology in agriculture and food related products.
In another side, entry of GATT has made world nations to trade mutually and resulted into Globalization in terms of Globalized food trade and has raised economic status of developing countries [11] . It’s vice versa, developing countries have been continuously attempting to increase food supply via agriculture and food related products. Thus “the globalization of goods and services brings opportunities and challenges in various regions of the world, international trade simultaneously opens opportunities for the globalization of unsafe food” [12] . Unsafe food could be resulted into food borne diseases such as “Bovine Spongiform Encephalopathy (BSE) in Beef, common known as Mad Cow Disease, Genetically Modified Organism (GMO), Avian flu H5N1in poultry, Salmonella Typhimurium, and use of hormones in livestock”. [13]
Therefore every individual nation are strived hard to overcome these new form disease because of problem in prediction. Without any partiality, all nations including developed and developing countries. So nations want to rely on available international standards to ensure food safety and sometimes in unpredictive circumstances Sovereign nations are forced to take precautionary measures to protect themselves. These made impediments to developing countries in trade concerning agriculture and food related products. Developed countries like United States and European countries adopted their own measures and to the developing countries have to rely on international standards since they are lacking advanced scientific knowledge and proper infrastructure to establish their domestic standard. To ensure this, James Chyau pointed out that
“…the FAO food quality report for developing countries also gave a list of reasons why some national food controls systems suffer from serious inadequacies. The reasons included: 1) the systems were not based on modern scientific and management concepts such as risk assessment and the HACCP system, and
2) insufficient involvement of scientific expertise. Due to the lack of necessary technical knowledge and financial resources to make necessary improvements, such homegrown food safety systems will not be up to the standards of the industrialized countries”. [14] Hence in Globalized trade, despite GATT presence there was no common measures to bind countries together in agriculture and food related trade.
Although GATT [15] was established in 1947 as a “contractual agreement between governments” [16] to pursue effective trade among the member nations on behalf of International Trade Organization (ITO) [17] , but there was no separate measure concerning about agriculture and food related products and there were no sufficient provisions in GATT 1947 except article XX (b) “…which allows States, according also to the requirements of the Chapeau of article XX, to adopt measures "necessary to protect human, animal or plant life or health". [18] Furthermore, there was no “legally binding obligation” to the members of the GATT to settle their disputes [19] . Ultimately due to ongoing advance in science and technology made revolution in agriculture exports which turned into as high value agri foods such as processed food. Both developed and developing countries were actively involved in these exports. Furthermore, during negotiations period “…states were allowed to adopt domestic standards for food safety, animal and health measures affecting trade. Such measures were subject to GATT rules such as Articles I, III and XX and the 1979 Standards Code. Since these provisions were felt to be inadequate for addressing the potential problems” [20] members urged the need for measures supported by scientific principles along with non discriminations. Ultimately in 1994, negotiations made in Uruguay round put full stop to these crises by including Sanitary and Phyto Sanitary Measure as a multilateral agreement (here after referred as SPS Measures or Agreement).
SPS Measures; a helicopter view:
SPS Measures were brought into WTO for to protect domestic consumers from agriculture and food related products that threaten health, causing disease and affecting environment by minimizing negative impact through International trade. Here, minimizing negative impact can be sensed as no member should show protectionism in means of trade restrictive, unjustifiable discrimination and arbitrary among members. [21] Therefore, SPS Measures in its preamble states that “… [N]o member-state of the WTO should be prevented from adopting or enforcing measures necessary to protect human, animal or plant life or health, subject to the requirement that these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail or a disguised restriction on international trade.” [22] Further, these Measures were based on Scientific principles and supported by regulation standards which guided by international standard organizations like Codex etc. So, since SPS Measures have been established, there is possibility of discrimination between members because of scientific principles. Reasons are only the developed countries are already advanced in scientific principles which ultimately affect the developing and least developed countries which that are lacking knowledge in scientific principles.
SPS Measures not only finished with above requirements and also have alternate compensate provisions. To support countries regarding scientific principles, there are certain provisions like article 9 states about technical assistance and article 10 about Special and Differential treatment [23] . But it is also supplemented with consultations proceedings and adjudicating body in article 11 where and when any disputes arise between the countries could approach and solve their disputes amicably. Especially, when adjudicating body finds difficulty to assess the issues, they could rely on expert’s opinion (Australia-Salmon case).
Moreover, SPS Measures include certain phrases like “risk assessment”, “Sufficient Scientific evidence”, “Appropriate Level of Protection”, “risk management”, “necessary measures”, “Scientific principles”, “Precautionary principles”, “Undue delay” and “expert opinion” which often involves in criticism and debate by the Appellate body in WTO. Likewise cases like EC-Biotech, EC-Hormone, Australia-Salmon and Japan-Apple case are some benchmark cases in SPS Measures.
SPS Measures Cases:
Since SPS Measures inception, so far 37 are cases filed before Dispute Settlement Understanding Panel, in that 5 cases went up to Appellate Body. They are EC-Hormone case (1998), Australia-Salmon case (1998), Japan-Agricultural Product case (1999) and Japan-Apple case (2003) and Australia-Apple case (2010) [24] and EC-biotech case (DSU Panel Body-2006). Here in these cases complainant and defendant are developed countries, means these countries are sound in both scientific principles and infrastructure. To ensure high level of safety towards their citizens and to establish their rights and justification in SPS Measures, members implementing the SPS Measures in their intended level. Thus, there are diverse views between member’s acceptance and the content of SPS measures in practical implementation and totally leads them into dispute before DSU. Therefore, we see each dispute cases and findings of the Panel and the Appellate Body.
Australia-Salmon case:
Australia prohibited the importation of Salmon fish from Canada under risk assessment due to it might contain 20 foreign disease which would affect health, economic and environment. Therefore Canada brought the case against Australia for prohibiting their Salmon fish under “Quarantine Regulation” and violated the SPS Measures under articles 2.2, 2.3, 5.1, 5.5 and 5.6 along with GATT article XI and XIII [25] . Here GATT articles XI and XIII nothing but about the “General Elimination of Quantitative Restrictions” and “Non discriminatory Administration of Quantitative Restrictions” [26] Here, Both panel and Appellate body ruled against Australia that measures were trade restrictive.
Main content were Australia stated that their ban was based on legitimate risk assessment. Therefore to weigh risk assessment put forward three ingredients which were necessary for to establish risk assessments. They were “…1) identify the diseases whose entry, establishment or spread a Member wants to prevent within its territory, as well as the potential biological and economic consequences associated with the entry, establishment or spread of these diseases;
(2) evaluate the likelihood of entry, establishment or spread of these diseases, as well as the associated potential biological and economic consequences; and
(3) evaluate the likelihood of entry, establishment or spread of these diseases according to the SPS measures which might be applied.” [27]
Based on these ingredients, the Appellate Body matched with Panel findings in “identification of disease” and “evaluation of likelihood of contaminant” stating that Australia properly identified the disease, but failed in assessing the evaluation in significant way. And disagree with Panel stating that Australia not established the contamination or impairment under both quantitatively and qualitatively, but assessed only under “some evaluation of the likelihood”, so it violated under article 5.1 and 2.2. Further stated that Australia ban was under arbitrary and unjustifiable due to it showed discrimination by showing variant level of bans on importation of fish; allowing importation of frozen herring and live ornamental fish [28] violated under article 5.5 and 2.3.Atlast Appellate Body showed Australia did not fulfill 2nd and 3rd ingredients and violated SPS Measures.
Therefore, Australia reversed their AQIS [29] and created new rule IRA 1999 [30] regarding importation and this was also analyzed by Compliance panel. It concluded that since Australia violated article 5.1 risk assessment by stating there was no coherence among disease concern, likelihood and the SPS measures and additional measures were added like “consumer ready form” which showed trade restrictive. Further, another question was raised whether Australia violated article 5.6 by taking measures necessary than the appropriate level of protection (ALOP). Nevertheless Appellate Body stated that ALOP was exclusive rights had by the members in case of establishment of scientific justification and by Panel held that Australia had taken ALOP than necessary level [31] . Thus in Australia-Salmon case, risk assessment and ALOP were discussed and resulted that Australia complied with risk assessment but inconsistent with ALOP where their measures were more than the necessary level. Like this we see risk assessment in EC-Hormone case.
EC-Hormone case:
Here, U.S and Canada filed a case against the European Communities for ban on importation of their beef meat which injected with six specific hormones (natural and synthethic) for growth purpose namely Oestradiol, Progesterone, Testosterone, Trenbolone Acetate, Zeranol, and Melengestrol Acetate [32] by stating that it would cause cancer to human on consumption. EC had taken the stand that the ban was based on risk assessment and precautionary principle under the SPS Measures. Case was registered under article 3, 5 and 2 of SPS Measures. Here, in this case scientist opinion was also heard. Both Panel and Appellate Body criticized the EC that they violated articles 3,5 and 2 of SPS Measures. U.S and Canada handled retaliation measure on EC under Binding Arbitration. “…After the Panel report, an Appellate Body report, and Binding Arbitration, the WTO’s Dispute settlement Body gave fifteen months to repeal the legislation that violated WTO policy” [33] .Thereafter, EC brought EC Directive 2003/74/EC [34] which was also did not solve the problem and again U.S brought complaint before compliance panel that amended directive was also inconsistent with risk assessment as stated in SPS Measures.
In EC- Hormone case, contents were, both U.S and Canada had stated before Panel that EC measures were not under risk assessment. So, the EC measures were arbitrary and unjustifiable. Panel concluded that EC measures were not under risk assessment where their assessment was not supported by majority of scientist opinion. In article 3.1 “harmonization”, where Panel found that EC protection measures were not with the standard of recognized international standard organization. As per article 3.1 “…as requiring Members to harmonize their SPS measures by conforming those measures with international standards, guidelines and recommendations, in the here and now, is, in effect, to vest such international standards, guidelines and recommendations (which are by the terms of the Codex recommendatory in form and nature)”. [35] Panel insisted that harmonization measure must accord to as described in international standard organization. Further, Appellate Body stated that there was no need to rely only on majority of scientist opinion and least scientist opinion shouldhave also considered, when the opinion concerned to human health and that opinion was from qualified and respectable source [36] .
Here, Appellate Body differed from the Panel findings were (a) when considering risk assessment to humans health, both majority and minority opinion of scientist should be considered. (b) “Harmonization” to international standard organization by members was not in mandatory effect, but it should be in obligation effect. (c) Panel should not impose its own risk assessment in SPS Measures cases but it should evaluate the case whether members applied scientific principles properly under these SPS Measures.
Japan- Agricultural Products II and Japan-Apple case:
These cases had connection between them; concerned about Codling Moth disease that spread through bacteria E. amylovora [37] . Generally, this case had a long history since 1971 between the United States and Japan about the importation of agricultural products from United States to the Japan. In 1997 U.S complained before the Dispute Settlement Body (hereafter referred as DSB) to establish Panel body alleging that“... Japan prohibits the importation of each variety of a product requiring quarantine treatment until the quarantine treatment has been tested for that variety, even if the treatment has proved to be effective for other varieties of the same product” [38] . Japan put forwarded his contention before the DSB that moths would develop from different stages from different varieties, so there was a need for a test for each variety [39] . Both Panel and Appellate Body found that Japan measures were inconsistent on the basis that measures adopted by Japan were not based on sufficient scientific evidence and they had taken precautionary principle more than necessary under article 2.6, 5.2 and 5.7. Japan had replied to DSB to amend their measures. Both U.S and Japan had informed to DSB that they had reached mutual solution to that issue. [40]
After couple of years, U.S again complained against the Japan to the DSB that their measures on importation of apples were more restriction than necessary in SPS Measures and Japan did not reviewed the measures generally. Japan had sought United States to implement certain measures for the purpose to control the Codling Moth; fire blight disease in apple. Measures were a) farmers should register their orchard with Japan, b) to set up buffer zone of 500m around the orchard and finally c) inspection would be conducted three times a year; third time inspection would be conducted in presence of Japanese authority [41] . Furthermore Japan had brought certain codes like apple should be washed with disinfectant etc [42] . United States filed case against Japan under articles 2.2, 2.3, 5.1, 5.2, 5.3, 5.6, 6.1, 6.2 of the SPS measures [43] .
EC-GMO Case:
In 2003 United States, Canada and Argentina complained against the European Communities before the Panel for implementing “defacto moratorium” [44] in the form of import restriction to the agricultural products that produced from modern biotechnology. EC had maintained the import restriction from the period of 1999 to 2003.
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