Global health standards and food security: exploring the double science standard of review under the SPS agreement after India – agricultural products

Protecting public health is a national regulatory imperative that has been increasingly limited by the obligations imposed on signatory States in international trade agreements. Despite the available regulatory space for domestic legislation and the undeniable extension of sovereignty with which the protection of public health is afforded under the law of the World Trade Organization (WTO law), these efforts often result in a dichotomy, whereby participation in the rules-based trading system is at odds with the pursuit of a domestic public health standard of protection. Specifically, differing public health standards among WTO Members may impose significant non-tariff barriers to trade. If the adopted standards are scientifically unfounded the legal risks increase, and the unintended effects of such measures on market access become difficult to foresee. From a legal perspective, public health refers to a State’s right and obligation to ensure the conditions for the population within its territory to be healthy, aiming at the highest possible level of health that is consistent with principles of social justice -particularly fair treatment of the disadvantaged. Attempting to reconcile the tension between trade facilitation and national autonomy in protecting public health, the WTO adopted the Agreement on the Application of Sanitary and Phytosanitary Measures (WTO 1994) (SPS Agreement), a new disciple added at WTO’s inception. The present chapter analyzes the impact of the SPS Agreement on domestic legislation that seeks to reduce the risk of diseases by imposing restrictions on the trade of certain agricultural goods. I posit here that scientifically unfounded public health measures impose significant non-tariff barriers to trade, in cases where they are not based on an international standard. In order to support this point, I shall determine whether and to what extent public health measures that are not based on science may potentially constitute disguised non-tariff barriers to trade. This chapter is structured as follows. Section II will present the so-called “double science standard” established under Article 2(2) of the SPS Agreement to identify the legal standard of review that domestic measures must display in order to comply with trade obligations. Section III will study the appropriate levels of public health protection and whether and to what extent domestic public health measures may or may not constitute non-tariff barriers to trade. It will further address the significance of risk assessments and their symbiotic relation with scientific principles. Section IV concludes with some thoughts on the legal implications of the use of scientific evidence in regulation aimed at protecting public health.