“The Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Technical Barriers to Trade,” was published in Law and Policy in International Business (Volume 31, Number 3, Spring 2000) shortly before DTB Associates was founded. It details the scope and application of the SPS and TBT agreements, along with the jurisprudence that had already begun to develop.
American Bar Association
Symposium: The First Five Years of the WTO
January 20-21, 2000
Georgetown University Law Center, Washington, D.C.
THE AGREEMENT ON THE APPLICATION OF SANITARY AND PHYTOSANITARY MEASURES AND THE AGREEMENT ON TECHNICAL BARRIERS TO TRADE (1)
by Craig Thorn and Marinn Carlson
Powell, Goldstein, Frazer & Murphy, LLP
Nature of the Agreements
The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”) and the Agreement on Technical Barriers to Trade (“TBT Agreement”) are in many ways related accords. Both agreements recognize the right of WTO member countries to establish technical regulations and to apply those regulations to imported products. Both circumscribe that right by laying down rules governing the development and application of such regulations, using a certain number of similar provisions. For the most part, the coverage of the two agreements is complementary; indeed, the TBT
Agreement defines its scope in part through reference to the SPS Agreement.(2)
Nevertheless, there are fundamental differences between the two agreements. While the SPS Agreement is an explication of the general exception contained in Article XX(b) of the General Agreement on Tariffs and Trade (“GATT”) (or, legally speaking, an affirmative defense), the TBT Agreement is an explication of the obligations contained in GATT Article III. In other words, the SPS Agreement establishes the principles upon which a Member might legitimately assert that its measures are “necessary to protect” human, animal or plant life or health from certain specified risks. (3) The TBT Agreement, on the other hand, is not a defense; it enumerates the particulars of the national treatment obligations that Members are under when they impose technical requirements or standards. This means that a measure that is not intended to address a particular health or safety risk is susceptible to challenge under either the GATT or the TBT Agreement, without any affirmative defense. A measure directed at a specified health or safety risk, however, would be adjudged under the SPS Agreement, which effectively incorporates the general exception of Article XX(b).
(1) Published in Law and Policy in International Business – The International Law Journal of Georgetown
University Law Center, Volume 31, Number 3, Spring 2000.
(2) See TBT Agreement, Article 1.5.
(3) See Annex A at para. 1.
