《SPS协定》中的“风险评估”问题——“量化风险方法”与“整体风险方法”

发布时间：2019-08-16 13:30

【摘要】：WTO及其《SPS协定》允许成员方为保护人类生命健康采取动植物卫生检疫措施即SPS措施,但对此设立了严格的条件,其核心为"风险评估"。风险评估是风险管理的一部分,多年来,"量化风险方法"和"整体风险方法"及其之间的博弈主导着风险管理学界的主流话语。受此影响,WTO争端解决机构在适用和解释《SPS协定》、尤其是其中一些核心概念时,不断摇摆于这两种方法之间,至今未有定论。即使是在新近的代表性案例"美、加继续中止案"中,上诉机构前所未有地表现出了对整体风险方法的明显的、全面的倾向性,这是否意味着"二元化"解释就此彻底终结,犹未可知且令人生疑。这种"二元化"解释造成了SPS措施个案裁决的不确定性,也造成了WTO争端解决机构内部的不一致和自相矛盾。这一困境显示出,WTO必须尽早确立其风险管理哲学,并在其体制下赋予各国的SPS措施以确定的、适当的合法性。
[Abstract]:WTO and its SPS Agreement allow members to take phytosanitary and phytosanitary measures, that is, SPS measures, to protect human life and health, but strict conditions have been set up, the core of which is "risk assessment". Risk assessment is a part of risk management. For many years, the game between "quantitative risk method" and "overall risk method" has dominated the mainstream discourse in the field of risk management. As a result, the WTO dispute settlement body has not yet reached a conclusion when it applies and interprets the SPS Agreement, especially some of its core concepts, between the two methods. Even in the recent representative case of "the United States, Canada continues to suspend the case," the appellate body has never shown an obvious and comprehensive tendency to the overall risk approach, which means that the "dualization" interpretation is completely over, which is still unknown and questionable. This kind of "dualization" interpretation causes the uncertainty of the case decision of SPS measures, and also causes the inconsistency and contradiction within the WTO dispute settlement body. This dilemma shows that WTO must establish its risk management philosophy as soon as possible and give SPS measures to countries under its system to determine and appropriate legitimacy.
【作者单位】：吉林大学法学院;
【分类号】：D996.1

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