WTO News Item, 24 - 25 June 2008
The WTO committee dealing with food safety and animal and plant health has started work aimed at encouraging members to make use of mediation by the chairperson to resolve some of their differences. Their efforts are focusing on drafting procedures for mediation, which some see as a sort of user's guide.
The first substantial discussion of this took place in the Sanitary and Phytosanitary (SPS) Measures Committee's 24–25 June 2008 meeting, when proposals from Argentina and the US were on the table. The committee also continued its work on private standards, discussing the creation of a working party to examine some of the issues raised. And as usual it heard a number of concerns that members raised about each others' specific measures.
Making better use of the chairperson's services as a mediator is the latest in a series of moves to strengthen the committee's work. It follows decisions confirmed in May to improve the information that members are asked to supply on the SPS measures they implement, and on recognizing regions — as distinct from countries — as being free from certain diseases or pests. (See SPS news archives).
Chair's ‘good offices'
So far, concerns that members have raised about each others' SPS measures have been handled in bilateral consultations with a broader airing in the WTO's SPS Committee. A few cases have eventually become formal disputes in the WTO.
The committee's working procedures (G/SPS/1) offer an intermediate option — ad hoc consultations or mediation by the committee's chairperson or a representative, sometimes called using the chair's “good offices”. Argentina described this as going a step beyond discussing specific concerns in the SPS Committee; Chile described it as an alternative to moving to a full-blown dispute.
Only a handful of cases have seen this kind of consultation (see document G/SPS/W/219, footnote 3). Some delegations believe that members would use the consultations more if the steps for doing so were clearly set out.
The proposals from Argentina (G/SPS/W/219) and the US (G/SPS/W/227) are procedural but could also serve as a “how to do it” guide, some believe. The two approaches are similar but with some differences. In particular the US said its proposal emphasizes technical consultations rather than legal procedures — it includes a provision preventing the mediator from expressing an opinion about whether the measure under discussion is legal or not under WTO agreements.
The US also described its proposal as a “committee first” proposal. This is a reference to negotiations on non-tariff barriers in non-agricultural market access (NAMA) where a group of countries have submitted a proposal (TN/MA/W/106) that includes mediation by a “facilitator”, who could be the chairperson of a committee. The US has responded with an unofficial document calling for these issues to go to the relevant committees first, before they are handled “horizontally” (ie, in a process that applies across a range of subjects). (SPS measures are one of several types of non-tariff barriers.)
Argentina and the US have agreed to discuss combining their papers before the next meeting, in October.
The committee's focus is now on bringing together an informal group of delegates so that the subject of private standards can be discussed more systematically. Uruguay proposes calling this a working group, with a number of details set out in document G/SPS/W/225.
When first raised in 2005, this issue took the SPS Committee into comparatively new territory — the committee generally deals with standards set by international standards-setting bodies and those imposed by governments. Although the agreement says that governments should ensure that non-governmental entities should comply with the agreement, there is no indication of how this should be done. A number of developing countries in particular are concerned that private standards could undermine the disciplines negotiated in the SPS Agreement (see SPS news archives).
The Uruguay proposal and other ideas were discussed in an informal meeting on 23 June. The chairperson reported to the formal meeting that members supported either the document as a whole or certain parts of it. Differences included: whether the proposed terms of reference would prejudge the results of the informal group's work by seeing private standards as mainly negative; whether it should focus on real world examples, examine where private standards deviate from the standards of international governmental bodies, or analyse the legal situation in relation to WTO agreements; how big the group should be; who should chair it.
To get the work started, the chairperson and Secretariat will send members a list of questions and their replies will be used to discuss how to proceed in informal consultations in October.
(On Thursday 26 June, the Standards and Trade Development Facility organized an information session on private standards. The STDF is a joint initiative of the WTO, World Health Organization, World Bank, World Organization for Animal Health and Food and Agriculture Organization, for sharing information and for funding projects to help developing countries meet SPS standards.)
Specific trade concerns (STCs)
This is the SPS Committee's bread-and-butter work in overseeing the agreement's implementation. Code numbers, eg, “STC229”, identify particular issues and can be used to search the WTO's SPS Information Management System.
The only issue attracting comment from a number of members was an old unresolved one (for the full list, see P.S. below):
India's restrictions on animal products (STC185): This is an on-going concern related to avian influenza raised by the EU, this time supported by Canada, the US and Switzerland. The EU repeated its complaint that the measures are not based on science or the standards of the World Organization for Animal Health (OIE). For example India should not restrict imports of heat treated products, where any virus would have been destroyed, and pigmeat, and it should distinguish between the more dangerous high pathogenic H5N1 version of the avian flu virus, the EU said.
India cited evidence to support its view that there are real risks of the low pathogenic version mutating into a more dangerous form and of the virus spreading to pigs. It added that it had voted against the OIE standard.
Special and differential treatment
Special treatment for developing countries was discussed in another informal meeting on 23 June, and again the chairperson reported on the discussions in the formal meeting, for the record.
He said members heard a report on the latest situation in Doha Round negotiations on special treatment (ie, the “special sessions” of the Trade and Development Committee) where two SPS provisions are being discussed.
One proposes giving developing countries at least six months to comply with importing countries' new measures, but it faces opposition from some countries who say making this or any other length of time compulsory would conflict with their right to protect human, plant or animal life or health and would discourage them from allowing any additional time. Here the differences were described as conceptual, the chairperson reported.
Another deals with the SPS Committee allowing some members to be exempt from some SPS obligations for a limited time. Here the differences were said to be about wording, the chairperson reported, with some countries arguing that the proposal would make exemptions more predictable and others fearing that it would create automatic waivers from obligations.
The meeting also discussed improving transparency about the provision of special treatment or assistance to help developing countries meet changed SPS requirements in importing countries. Although the committee adopted a procedure for developing countries to request special treatment and for information to be given on the responses to these requests, the procedure has not been used. The committee is therefore considering revisions to the procedure both to reflect changes in the overall transparency recommendations and to make it easier to use. There was no conclusion and members agreed to return to this subject at the next meeting.
The relevant documents are, G/SPS/W/224, which proposes a revision to G/SPS/33, which in turn deals with reviews of the implementation of the SPS Agreement.
These dates (with informal meetings on other days in the week) could still be changed:
Then in 2009, weeks of:
These are some of the trade issues or concerns discussed in the meeting or information supplied to the meeting.
Information from members