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Asian Journal of WTO & International Health Law & Policy

March, 2009
Article
Human Health Issues in Major WTO Dispute Cases
Mitsuo Matsushita [FNa1]
Copyright 2009 by Asian Journal of WTO & International Health Law and Policy; Mitsuo Matsushita
ABSTRACT
This paper explores major dispute cases on issues of human life and health handled by WTO panels
and the Appellate Body. After a brief review of major WTO agreements, the writer discusses the Brazilian
Tyres Case in which the Appellate Body endorsed a qualitative approach in deciding whether a measure
in question is necessary. In this respect, this ruling is probably one of the most important ones in the
history of WTO jurisprudence. Then follow reviews and discussions of the EC/Hormones Case and the
EC/GMO Case in which the Appellate Body spoke on burden of proof issues. In the view of this writer, the
burden of proof rule enunciated in those decisions may be too heavy on claimants. Lastly the writer mentions potential tensions between WTO agreements and other international agreements on human life and
health issues.
KEYWORDS: protecting human life and health, the GATT 1994, the SPS Agreements, the TBT Agreement,
Brazilian Tyres Case, EC/Hormones Case, EC/GMO Case, burden of proof, the WTO dispute settlement procedure, Cartagena Protocol, United Nations Biodiversity Convention
I. WTO AGREEMENTS RELEVANT TO ISSUES OF PROTECTING HUMAN LIFE AND HEALTH
A. The GATT 1994, the SPS Agreement and the TBT Agreement
The GATT (General Agreement on Tariffs and Trade, hereafter referred to as the GATT) 1994 generally
prohibits quantitative restrictions of trade by way of import quota or any other form and the imposition of tariffs
above the concession rate. It also prohibits Members from imposing a measure favoring its own products in discrimination of products of other Members if those products are like products. A Member is prohibited from
imposing a measure which favors a product of another Member in discrimination of products of third Members
if those products are like products.
In respect to food safety issues, the SPS Agreement (The Agreement on Sanitary and Phytosanitary Measures, hereafter referred to as The SPS.) permits Members to take a measure to protect life and health of humans, animals and plants. But Members may do so only to the extent necessary for this purpose. The measure
must be scientifically justifiable and based on sufficient scientific evidence.
The TBT Agreement (The Agreement on Technical Barriers to Trade, hereafter referred to as the TBT.)

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deals with such items as labeling and representation of products and enforcement of mandatory and optional
product standards. This agreement requires that the principles of national treatment and most favored nation
treatment apply to products imported from other Members with regard to TBT measures. The SPS is a special
law in relation to the TBT and when both the SPS and the TBT apply, the SPS prevails over the TBT. The
TRIPS (The Agreement on Trade-related Aspects of Intellectual Property Rights, hereafter referred to as the
TRIPS.) is aimed at protecting intellectual property rights. Although the TRIPS provides that all products
should be patentable, Article 27.2 of the TRIPS allows Members to exclude inventions from patentability if it is
necessary to protect life and health of humans, animals and plants and also the prevention of serious damage to
environments.
B. General Exceptions of Article XX of the GATT 1994 [FN1]
Article XX of the GATT provides for exceptions and, if a measure of a Member which falls under the prohibition of the GATT satisfies the requirements for exceptions, it enjoys the immunity from the prohibitions of
the GATT. Article XX consists of the introductory part (Chapeau) and 10 exceptions, i.e., exceptions (a) - (j).
While a measure of a Member falling under one or more of items (a) - (j) is exempted from the prohibition of the
GATT on restrictions of trade, Chapeau provides for the conditions necessary for a measure to meet in order to
enjoy exemption. Among the items included in Article XX of the GATT, Article XX (b) is relevant to issues surrounding the protection of human life and health. Article XX (b) exempts a measure which is necessary to protect life and health of humans, animals and plants. Several GATT dispute settlement cases dealing with food
safety issues interpreted Article XX (b). In the Thai Tobacco Case [FN2], the Thai Government took a measure
to restrict sale of tobacco domestically and also its imports from the United States for the reason that tobacco
created risk to health. The United States petitioned to the GATT on the ground that the Thai measure violated
Article XI of the GATT. The Panel considered the matter and judged that the Thai measure fell under Article
XX (b) since smoking of tobacco was harmful to health and a policy to reduce smoking was covered by Article
XX (b). However, the Panel stated that the measure in question must be necessary to accomplish this purpose
and to satisfy the necessity test, there should be a circumstance in which there was no other alternative way
which was less trade restrictive. In the view of the Panel, the Thai measure did not meet this standard and was
struck down as a violation of Article XI of the GATT.
In the Asbestos Case [FN3], the French Government prohibited the use and import of asbestos because of
hazardous nature of this product. Canada claimed that this amounted to a prohibited discrimination of Canadian
asbestos since there were three other domestic products with similar features but were allowed to be used. The
Appellate Body upheld the French decree primarily on two grounds. (a) Asbestos and similar products which
could be used as materials for architectures were not like products for the reason that users of such substances
(builders of architectures) were conscious of hazard of asbestos compared with other similar substances and, in
judging whether asbestos and other substances were like products, this should be taken into consideration. (b)
The prohibition of asbestos could be covered by Article XX (b) of the GATT 1994.
C. The SPS Agreement
The SPS specifically addresses issues of food safety and international trade. The SPS allows Members to
take SPS measures to protect life and health of humans, animals and plants by imposing the prohibition of imports on certain items and the requirement for labeling with regard to some products. However, the SPS requires,
in pursuance of Article 2.2, Members take such SPS measures only to the extent necessary to protect life and

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health. SPS measures cannot be maintained unless they are supported by sufficient scientific data established by
appropriate risk assessment.
Also SPS measures taken by Members need to be based on international standards, guidelines and recommendations if there is any. If a SPS measure is based on an international standard, guideline or recommendation,
such a measure is presumed to be necessary to protect life and health of humans, animals or plants and compatible with the SPS and the GATT. However, under special circumstances, Members can deviate from this obligation of basing their standards on international standards. This is Article 5.7 of the SPS which recognizes the precautionary principle in a limited way. According to this provision, Members can take a provisional SPS measure
when there is not enough scientific evidence to support the measure. However, the Member must endeavor to
obtain additional information regarding the measure and, in due course, must review it.
D. The TBT Agreement
The TBT provides that domestic mandatory standards need to be based on international standards with regard to product safety, product testing and product representation. Provisions of the TBT generally apply to food
safety matters unless such matters are covered by the SPS. [FN4] According to the established WTO jurisprudence, mandatory domestic standards need to be based on international standards regardless of whether the domestic standard came into effect before the taking effect of the TBT or vice versa. [FN5]
The Sardines Case [FN6] is a WTO dispute settlement case which deals with food representation issues. Although this case did not deal with food safety issue directly, holdings of the Appellate Body in this case may
have some bearings on food safety issues. Involved in this case was a regulation of the EC which provided that
the word Sardines could be used only on canned foods made from fish caught in the Black Sea, the North Sea
and the Mediterranean Sea. The Codex Alimentarius which was an international standard regulating food representation provided that, although the word Sardines could be used only in connection with canned foods made
of fish caught in those areas, the word could be used for canned foods made of fish of similar type caught in other areas as long as prefix X was attached such as Peruvian Sardines or Pacific Sardines etc. In this sense,
therefore, there was a difference between the EC regulation and Codex Alimentarius.
Peru brought a claim against EC in the WTO and argued that the EC regulation was inconsistent with Article
2.4 of the TBT which requires that a mandatory domestic standard needs to be based on an international standard if such exists or its enactment is imminent. Both Panel and the Appellate Body held that the EC regulation
was contrary to Article 2.4 of the TBT. EC argued that this regulation was necessary so that consumers in
Europe would not be misled to believe that all of canned foods with the label of Sardines are made of fish
caught in the Black Sea, the North Sea and the Mediterranean Sea. However, the Appellate Body rejected this
claim by stating that the EC claim was not based on substantial evidence.
II. THE BRAZILIAN TYRES CASE [FN7] IN WHICH THE PANEL AND THE APPELLATE BODY
APPLIED ARTICLE XX (b)
This is the most recent WTO dispute case in which the Panel and the Appellate Body tackled the task of interpreting Article XX (b) in relation to protecting human life and health. This case is also known as that of environmental protection.

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In this case, Brazil prohibited the importation of retreaded ties from abroad in order to protect the life and
health of humans, animals and plants from illness caused by mosquitoes bred in water contained in discarded
tires. When tires for autos which reached the end of their useful life are discarded and scattered around the country, they catch rainwater and this is an ideal ground for mosquitoes to breed. Mosquitoes transmit diseases such
as malaria, dengue and yellow fever. Also when unusable tires are buried in the ground, harmful substances
coming from them are released into atmosphere causing damages to humans, animals and plants.
Retreaded tires cannot be re-retreaded anymore and have only one life whereas new tires can be retreaded
once and have two lives. Brazil argued that, in order to protect human life and health from diseases by preventing deterioration of environment, it has taken the policy of non-generation and non-accumulation of old unusable tires. Brazil prohibited imports of retreaded tires as well as used tires which would be used as materials for
producing retreaded tires because retreaded tires produced from used tires have only one life. Brazil encouraged
the production and use of new tires since they have two lives and contribute to non-generation and nonaccumulation of discarded tires.
Brazil was challenged by Uruguay in the MERCOSUL arbitral tribunal for the reason that Brazil violated the
Treaty of Montevideo which created the MERCOSUL and which prohibits its Members including Brazil to restrict trade inside the MERCOSUL. In this dispute, the Arbitral Tribunal of the MERCOSUL decided against
Brazil and declared that Brazil should uplift the import ban on retreaded tires coming from other MERCOSUL
countries. Thereupon, Brazil uplifted the ban and allowed importation of retreaded tires from MERCOSUL
countries.
Brazilian domestic retreaders producing retreaded tiers from used tires brought actions in Brazilian courts
against the government and argued that the import ban on used tires from abroad violated the Brazilian Constitution and, in some court proceedings, the retreaders prevailed over the Brazilian government and the courts granted injunction ordering the government to allow imports of used tires.
As the consequence, retreaded tires were imported from MERCOSUL under the MERCOSUL arbitral award
and used tires were imported under Brazilian court orders while imports of retreaded tires from the European
Communities as well as from any other non-MERCOSUL countries remained prohibited.
The EC brought a petition with the WTO and argued that this Brazilian ban on imports of retreaded tires was
contrary to Article XI of the GATT which prohibits WTO Members from imposing import prohibition. The consultation failed and the EC requested the establishment of a panel. In the Panel proceeding, Brazil did not contest the EC claim that the Brazilian measure was contrary to Article XI of the GATT but simply argued that the
Brazilian measure was exempted from GATT disciplines by Article XX (b) of the GATT. Article XX (b)
provides that measures necessary to protect the life and health of humans, animals and plants are exempted from
the disciplines of the GATT.
The Panel found that the import ban on retreaded tires contributed to the policy of non-generation and nonaccumulation of discarded tires in Brazil, contributed to the accomplishment of this policy of Brazil and, therefore, fell under Article XX (b). The EC argued that there were other alternatives that were less restrictive but
would accomplish the same objective such as landfill, incineration, stockpile and recycling. The Panel examined
pieces of evidence produced by both parties regarding the effectiveness of such measures and came to the conclusion that such measures would be complementary to the import ban but not substitutes for it. In deciding this,
the Panel stated that Brazil was required to adduce evidence that the measure it took (the import ban of retreaded

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tires) contributed effectively to the purpose of non-generating and non-accumulating discarded tiers but did not
have to show all measures that may exist in the universe of possible alternatives and prove that they were not effective measures. Brazil only needs to prove that alternative measures proposed by the EC would not accomplish
the level of protection that it had chosen. The Panel held that Brazil satisfied this requirement and, therefore, the
import ban of retreaded tiers taken by Brazil was necessary to protect the life and health of humans and animals.
Upon appeal of the EC, the Appellate Body reviewed the ruling of the Panel and upheld it. [FN8] The Appellate Body stated that the Panel properly held that there was a reasonable cause and result relationship between
the prohibition of imports of retreaded tyres and the policy of non-generation and non-accumulation of old tyres.
It further stated that, in order to establish that a measure fell under Article XX (b) of the GATT, it was not necessary to prove quantitatively that the measure contributed to the reduction and alleviation of diseases in question. Also it held that there could be many causes of diseases and that it would often be difficult to prove that
any single cause from among them was a determinative cause of diseases and that the effect of a cause may be
revealed after the elapse of some period. The Appellate Body considered all of those factors and came to the
conclusion that the Brazilian measure could be regarded as fulfilling the requirement of the necessity test under
Article XX (b) even if there was no quantitatively proven relationship that the measure contributed to the reduction and alleviation of diseases as long as it was proven qualitatively that the Brazilian measure had the features
to contribute to such reduction and alleviation.
The Appellate Body reviewed the ruling of the Panel that, in order to establish that there was no alternative
measure to the Brazilian measure which was less restrictive, Brazil needed only to prove that the measure in
question contributed to the accomplishment of the objective and did not have to prove that there was no alternative measure which was less restrictive. It was up to the claimant, the EC, to adduce the evidence that there was
an alternative means which was as effective as the measure in question and which was less restrictive. If such an
evidence is produced, then it was up to the respondent, Brazil, to rebut this proposition that prove that the suggested alternative would not be a substitute for the measure in question. The Appellate Body upheld the ruling of
the Panel in this respect.
The Panel examined the issue of whether or not the Brazilian ban on imports of retreaded tiers from abroad
except for the MERCOSUL countries and imports of used tires under court injunctions amounted to a violation
of Chapeau of Article XX. Chapeau of Article XX requires that the measure in question is not (a) an arbitrary or
unjustifiable discrimination between countries where the same conditions prevail or (b) a disguised restriction of
international trade.
With respect to the MERCOSUL exemption, the EC argued that it amounted to a violation of this Chapeau
requirement since, in the MERCOSUL proceeding, Brazil could have invoked a provision in the Treaty of Montevideo which, like Article XXIV: 8 of the GATT, stated that measures to protect the life and health of humans
and animals could be exempted and, by invoking this provision, Brazil could have prevailed over Uruguay, the
claimant in that proceeding. The Panel responded that it was not a task of the Panel to pass upon what legal arguments would be effective in a MERCOSUL arbitral proceeding and to second-guess the outcome of the proceeding should Brazil take such an approach. The Panel stated that the MERCOSUL exemption was based on an
arbitral award by the MERCOSUL arbitral tribunal and, as such, could not be characterized as arbitrary or unjustifiable. The Panel further stated that, if imports of retreaded tires from MERCOSUL countries increased significantly, it would defeat the purpose of the Brazilian import ban of retreaded tires designed to prevent generation and accumulation of discarded tiers. The Panel said that, if so, a discrimination resulting from the MERCOSUL exemption would amount to unjustifiable discrimination against imports of retreaded tiers that would

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come from other countries. However, after examining statistical data on the trend of imports of retreaded tiers
from MERCOSUL countries, the Panel decided that the imports of retreaded tires from MERCOSUL countries
were insignificant. On this basis, the Panel ruled that the MERCOSUL exemption did not amount to an arbitrary
and unjustifiable discrimination between the countries where the same condition prevailed.
The Appellate Body reversed this ruling of the panel for the following reason. According to the Appellate
Body, the test to judge whether a measure satisfies the requirement of the Chapeau of Article XX, e.g., that it is
not arbitrary, discriminatory nor is it a disguised restriction of international trade, one should examine whether
the measure is suitable for the purpose of accomplishing the objective of the measure. In this case, however, the
Brazilian measure to permit imports of retreaded tyres from MERCOSUR countries directly goes against the
purpose of non-generation and non-accumulation of old tyres and, therefore, this measure should be regarded as
contrary to the Chapeau of Article XX. The sole test should be whether the measure in question contributes to
the accomplishment of the objective of the measure and not, as the Panel held, a quantitative effect of the measure.
With regard to imports of used tires from abroad as the consequence of court injunctions allowing such imports, the EC argued that Brazilian domestic retreaders produced retreaded tiers from such used tires and that retreaded tiers so produced had only one life in the same way as retreaded tires which would be imported from
abroad. The EC argued that this amounted to an unjustifiable discrimination against retreaded tiers which would
be imported if there had not been the import ban on retreaded tiers.
The Panel determined that the imports of used tiers from abroad were the result of Brazilian court injunctions and could not be held as arbitrary. However, such imports were of a significant quantity and the rate of increase of such imports was rapid. The Panel mentioned that not only retreaded tiers produced from those used
tires had only one life and did not contribute to the Brazilian policy of non-generation and non-accumulation of
discarded tiers but also it could lead to a situation that some of such imported used tiers ended up with not being
used as materials for the production of retreaded tiers but simply discarded thereby contributing more to the
worsening of the environment. The Panel held that the imports of used tiers did not contribute to the Brazilian
policy of non-generation and non-accumulation of discarded tiers and also this would defeat the very purpose of
this Brazilian policy. For this reason, the Panel held that the Brazil imposition of ban on restreaded tiers while
allowing imports of used tiers amounted to an unjustifiable discrimination between countries where the same
conditions prevail.
On the above ruling of the Panel, the Appellate Body reiterated the position that it held with regard to the
MERCOSUR exemption and reversed the portion of the Panel report which stated that the allowance of imports
of used tyres through court injunctions did not amount to arbitrary measure.
The Panel went on to discuss the applicability of the requirement in Chapeau that the measure in question
should not amount to a disguised restriction of international trade in respect of the MERCIOSUL imports and
imports of used tiers under court injunctions. The Panel took the view that the same considerations could apply
in interpreting the requirement of a disguised restriction of international trade as the considerations which would
be used when interpreting an unjustifiable discrimination between countries where the same conditions prevail,
i.e., whether imports would substantially defeat the accomplishment of the objective of the Brazilian ban on imports of retreaded tiers from abroad. Therefore, using the same criteria as in interpreting an unjustifiable discrimination, the Panel came to the conclusion that imports of retreaded tiers from MERCOSUL countries did not
amount to a disguised restriction of international trade and imports of used tires were a disguised restriction of

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international trade.
The Appellate Body criticized the quantitative approach taken by the panel in ruling that the MERCOSUR
exemption did not amount to a disguised restriction of international trade and that the allowance of imports of
used tyres amounted to a disguised restriction of international trade and reversed them for the same reason as it
stated in relation to the issues of whether the Brazilian measure was arbitrary or discriminatory.
As the above review indicates, environmental issues were dealt with by applying Articles XX (b) and (g).
These two provisions are the only provisions in the GATT that can be used to judge the legitimacy of environmental measures. The rulings of the panel and the Appellate Body with regard to the test of necessity under Article XX (b) are quite significant. The rulings of the Panel and the Appellate Body approve a qualitative test, i.e.,
that the measure is qualitatively suitable to accomplish the purpose of the measure is sufficient. If one needs to
establish quantitatively that there is a cause-and-result relationship between the measure in question and the purpose of it, one would have to adduce quantitative pieces of evidence to prove such a linkage and the adducing of
such quantitative data is often very difficult. Such an approach deprives Article XX (b) of its effectiveness. In
fact, the adoption of qualitative test in the Brazilian Re-treaded Tyres Case rescued Article XX (b) from this difficulty.
The Panel and the Appellate Body followed the ruling of the Appellate Body in the U.S. Gambling Case
[FN9] when they decided that the respondent did not have to produce all means in the universe of alternatives
which are less restrictive of trade compared with the measure in question and disprove the possibility of using
them as alternatives to the measure in question. According to this ruling, it is sufficient if the respondent proves
that the measure it has adopted is effective in accomplishing the objective of the measure. Then it is up to the
claimant to adduce evidence to show that there are effective alternatives to the measure in question. It is up to
the respondent to disprove the effectiveness of such proposed alternatives. This ruling did not establish a new
principle but merely an endorsement of the ruling in the United States Gambling Case. However, it is important
that the panel and the Appellate Body confirmed this ruling.
III. WTO DISPUTE CASES RELATING TO THE SPS
There are only five cases so far handled by the Dispute Settlement Body of the WTO in which SPS questions
were raised. These cases are the EC Hormones Case, [FN10] the Australian Salmon Case, [FN11] the Japan
Apple Case (I), [FN12] the Japan Apple Case (II), [FN13] and the EC/GMO Case which will be discussed below. The Australian Salmon Case dealt with the issue of health of salmon and the Japan Apple Cases were concerned with quarantine of agricultural products. Therefore, the only cases in the WTO in which food safety and
SPS issues were dealt with are the EC Hormones Case and the EC/GMO Case.
A. The EC/Hormones Case
In the EC Hormones case, the EC imposed a ban on domestic sale and import of beef taken from animals
treated with 6 kinds of hormones. An international standard formulated by the Codex Commission stated that,
with respect to 2 hormones, beef product involved no recognizable risk as long as the residue of hormones remained within the limit stated in the standard. The United States and Canada filed a complaint with the WTO alleging that this EC measure was contrary to the SPS. The Panel stated that the measure in question was contrary
to the SPS. The Appellate Body upheld the Panel's finding and held also that the EC measure was contrary to the

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SPS.
First, the EC argued that its measure was based on the precautionary principle [FN14] and should be justified. The Panel and the Appellate Body, however, stated that the precautionary principle was not recognized as a
principle in international law, that, Article 5.7 of the SPS incorporated a provisional precautionary principle into
the SPS and that any application of precautionary principle which would permit a wider scope of precaution than
this would not be permitted.
Secondly, with regard to burden of proof, the Panel held that it was incumbent on the party which had imposed a SPS measure to adduce evidence that there was a sufficient risk assessment. The Panel also held that it
was the responsibility of the party which had invoked a measure not based on an international standard to justify
this measure. The Appellate Body reversed both of those holdings of the Panel. The Appellate Body stated that
the party challenging a SPS measure of another Member was responsible to prove that the measure was contrary
to the SPS and also that the measure could not be justifiable by a provision for derogation. [FN15] In this way,
the Appellate Body imposed a stringent responsibility on a complaining party to prove a violation of the SPS on
the part of the defending party and to prove that there was no justification for deviating from general principles.
Thirdly, the matter involved in this case was highly scientific in nature. The Panel sought views of scientists
and they filed their views concerning the risk involved in hormone treated beef. The majority of the scientists
stated that, as long as the residue of hormones remained within the range stipulated in the Codex standard, there
was no recognizable risk. One scientist stated that there was still a risk that one out of one million persons who
took beef in which the residue of hormones remained within the range of Codex standard may get cancer. The
Panel accepted the majority view and held that the EC measure was not based on a proper risk assessment. The
EC appealed this holding to the Appellate Body and argued that the Panel violated Article 11 of the Dispute Settlement Understanding by ignoring the view of the minority scientist. The Appellate Body upheld the holding of
the Panel in this regard but stated that, under some circumstances, a minority scientific view with regard to food
safety issue could be accepted.
This last holding of the Appellate Body decision raises an important evidentiary issue. Although it may seem
commonsensical that a majority view with respect to food safety should be accepted, it may be justified, under
some circumstances, to accept a minority view with regard to food safety issue. Especially if a human life issue
is involved, the abundance of precaution should be taken and even a minority view holding that a substance
might involve risk to human life and health may be worthy of respect. Article 5.3 of the SPS states that, in assessing the risk to animal or plant life or health, Members shall take into account as relevant economic factors
including the costs of control in the importing country and the relative cost-effectiveness of alternative approaches to limiting risks. In contrast, the word humans is absent from Article 5.3. A contrario interpretation
is that the SPS does not allow economic factors such as costs to play a role in deciding whether a measure to
protect life and health of humans is justified although, with regards to animals and plants, such economic factors
can be considered. Therefore, in the SPS, human life and health cannot be dealt with on the basis of costeffectiveness. An implication is that the SPS makes a distinction between human life and health on the one hand
and those of animals and plants on the other and that the standard of proof for a risk in a substance related to
food with regard to humans is different from that for animals and plants.
There may be a mixed situation where a measure has a primary effect on animal and plant but has a secondary effect on humans. If its effect on humans is adverse, it should be regarded as a measure affecting humans
rather than animals and plants. For example, a use of antibiotics on animals for their health may have secondary

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effect of human health which is detrimental. In this instance, there should be no cost consideration in assessing
the appropriateness of this measure.
Fourthly, although the legal aspects of the EC Hormones Case were resolved by the adoption of the Panel's
report and the report of the Appellate Body by the Dispute Settlement Body of the WTO, this case raises an important political issue. In the European Communities, the ban on hormones was the result of long-standing discussions and considerations within the Communities. This matter was discussed at the level of national governments, the decision-making bodies of the European Communities such as the Council of Ministers and the
European Commission. Therefore, the ban on hormones, in a sense, reflected the democratic decision-making
process of the European Communities. There is sentiment in Europe that an important political decision which
reflects the political process of Europe should not be so easily overturned by an international organization. Of
course, there is a counter-argument that the European Communities acceded to and singed WTO agreements and
it should be bound by it. However, this shows that an intervention of WTO disciplines into domestic policies of
Members may create political tension and too much intervention of the WTO may cause non-compliance of
WTO disciplines.
B. The EC/GMO Case
In 2003, the United States, Canada and Argentina took the EC to the WTO on the ground, inter alia, that the
EC violated provisions of the SPS by imposing moratorium with respect to approval of import of agricultural
products produced with biotechnology (GMO products). After 3 years, the Panel published a report in 2006 in
which it approved some EC measures but invalidated some others. [FN16] This is an extremely complex case
and the panel report is over one thousand pages in which many issues are discussed.
One issue involved is a series of regulations adopted by the EC for approval of GMO products. [FN17] The
EC imposed moratorium on approval of GMO products for marketing in 1998 and, since then, maintained the
moratorium. The claimants argued that the EC violated provisions of the SPS because of undue delay in approval, the lack of transparency in the procedure and the lack of sufficient scientific evidence to justify the delay in
approval. Another issue was temporary safeguards applied by six EC Member States (Austria, France, Germany,
Greece, Italy and Luxemburg) by which they prohibited marketing of GMO products in their territories. On this
issue, the EC argued that the temporary safeguards are justified by Article 5.7 of the SPS which permits temporary measures based on the precautionary principle.
In essence the Panel found that the delay of approval of GMO products by the EC violated provisions and
Annex of the SPS. The Panel also found that safeguard measures taken by the EC Members did not satisfy the
requirement of temporary safeguards as provided for in Article 5.7 of the SPS. The items discussed in the Panel
report are too many to be dealt with in this paper and so only some selected issues will be taken up.
C. The Relationship Between the SPS and Other Principles of International Law in the WTO Dispute Settlement Procedure
In this dispute, the EC argued that WTO agreements should be interpreted in accordance with principles established in international law norms in the UN Biodiversity Convention and the Cartagena Protocol. The EC argued that the binding international norms are the Biodiversity Convention and the Cartagena Protocol [FN18]
Preamble of the Cartagena Protocol states that the Protocol and the other international agreements including

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WTO agreements are mutually supportive and the Protocol does not restrict rights and obligations of the participants under other international agreements. This suggests that if a state is a Member of the WTO and, at the
same time, a Member of the Cartagena Protocol, rights and obligations of both agreements apply to that Member.
In the EC/GMO Case, the Panel cited Article 31 (3) (c) of the Vienna Convention which states that, in interpreting a treaty, all of the rules of international law as applied to the parties to a dispute should be taken into account. The Panel stated that only those rules of international treaties to which both disputing parties at a WTO
dispute are signatories need to be taken into account. [FN19] Argentina, Canada and the EC have ratified the UN
Biodiversity Convention and the United States signed but not yet ratified it. With regard to the Cartagena Protocol, the EC joined in it, Argentina and Canada signed but not yet ratified and the United States did not sign it.
The Panel held that one of the parties to the dispute before the Panel, the United States, was not a party to the
Cartagena Protocol and, therefore, there was no need to take into account of the principles of the Cartagena Protocol in this dispute.
The Panel reasoned that it did not have to take into account the principles of the UN Biodiversity Convention and the Cartagena Protocol in this dispute for the reason that one of the parties to the dispute was not a
party to those international treaties. Article 31 (3) (c) seems to provide clearly that the norms of other treaties
should be considered in a dispute regarding a treaty if the disputing parties are parties to those other treaties.
Therefore, the interpretation of the Panel seems to be reasonable when it stated that the principles of U.N. Biodiversity Convention and the Cartagena Protocol were irrelevant since the United States, one of the parties to the
dispute, was not a party to them.
However, the issue of the relationship between WTO agreements and the Cartagena Protocol is so important
in interpreting the SPS in future that it deserves some comments even on a hypothetical basis. [FN20] Article
3.2 of the SPS states that if a SPS measure of a Member is based on an international standard, guideline or recommendation, such a measure is presumed to be in compliance with WTO agreements even if this measure is
not supported by scientific evidence. Annex A 2 (a) - (c) of the SPS identifies that standards promulgated by the
Codex Alimentarius Commission, the International Office of Epizootics and the International Plant Protection
Convention are such international standards. In order for any standards formulated and promulgated by the Cartagena Protocol and the United Nations Biodiversity Convention to be qualified as an international standard in
the above sense, it must be identified by the SPS Committee by consensus.
A decision of the SPS Committee to identify standards established by the Cartagena Protocol as an international standard, guideline or recommendation must be made by consensus. The United States, which is not a
party to the Cartagena Protocol, is not likely to vote for the identification of the Cartagena Protocol as a qualified international standard in the sense of the SPS. Also Article 3.2 of the SPS creates only a presumption that a
SPS measure based on an international standard is in conformity with WTO agreements if such a measure is
based on an identified international standard. The word presumption is used instead of deemed to be. Therefore, such a presumption may be overturned by adducing sufficient evidence to the contrary. The precautionary
principle as provided in the Cartagena Protocol, if adopted by the SPS Committee, will drastically change principles in the SPS. It may even amount to a de facto amendment of Article 5.7 of the SPS. Such a major change
in the SPS will substantially change rights and obligations of WTO Members in respect to the SPS. It is doubtful
whether this change would be allowed without a decision of the Ministerial Conferences.

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D. The EC Approval Procedure of GMO Products and Annex A (1) of the SPS
The Panel examined whether the EC approval procedure of GMO products was a SPS measure in the sense
of Annex A (1) of the SPS. Annex A (1) of the SPS provides, as SPS measures, laws, decrees, regulations, requirements and procedures. [FN21] The Panel distinguished two categories from among these, e.g., form and
nature of a measure. The Panel states the EC measures in question in this case are regulations promulgated by
the European Council of Ministers and the European Parliament and that they amounted to laws in the sense
of Annex (1). According to the classification of the Panel, nature of SPS measures are requirements and procedures and that, within the category of procedures, testing, inspecting, certification and approval procedures
are included. The Panel held that the EC regulations amounted to procedures in the sense of Annex A (1) and
that this signified nature of the measures. The Panel further stated that the general moratorium exercised by
the EC did not disapprove every application for approval and did not satisfy the form and nature requirement.
[FN22]
E. National Treatment in Annex C. (a) of the SPS [FN23]
Argentina argued that specific measures of the EC concerning different products were a violation of Annex
C.1 (a), second sentence, and Article III: 4 of the GATT. Annex C.1 (a) of the SPS prohibits Members from discriminating imported products compared with like domestic products in the testing and approval of products and
unduly delaying the procedures. Argentina argued that, in this case, GMO products were being treated unfavorably than non-GMO products. The Panel stated that Members are authorized to treat differently (less favorably)
imported products compared with domestic products in their approval procedures because that difference may
have come from the difference in safety features unless that differential treatment was made due to the difference in origin of products. Therefore, a mere differential treatment per se does not constitute a violation of Annex C.1 (a) of the SPS nor Article III: 4 of the GATT. The Panel pointed out that Argentina did not adduce evidence to show that the differential treatment was based on the difference in the origin of products. [FN24]
The Panel did not examine whether imported GMO products and domestic non-GMO products were like
products due to judicial economy considerations.
Issues of national treatment have been dealt with under various provisions in WTO agreements including
Article III: 2 of the GATT. It is the first time that national treatment was an issue in connection with approval
procedures of products and, in this sense, this Panel report is a valuable precedent. Generally panels and the Appellate Body investigate whether an imported product and domestic product are like products and, when they
find that those are like products, examine whether there is a discrimination in favor of the domestic products. In
this case, the Panel skipped the process of examining whether imported GMO products and domestic non-GMO
products were like products for the reason that the difference of treatment between them did not necessarily
come from the difference in the origin of them and the difference of treatment did not constitute a violation in itself.
There are many precedents regarding the concept of like products in which the tests were physical similarities, the end uses, tariff classifications and consumers perceptions. [FN25] One question which may arise is
whether the consumers make a sharp distinction between GMO products and non-GMO products and, for this
reason, these two should be regarded as non-like products. In the EC/Asbestos Case [FN26], the Appellate Body
held that asbestos and other three products with similar physical characteristics were non-like products since the
risk of asbestos was widely recognized among users, consumers, international organizations and the public in

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general. In GMO products, it seems that views of consumers are more widely diversified. In Europe and Japan,
there is suspicion that GMO products may be a cause of unpredictable consequences in future, whereas, in the
United States and Canada, there is less sense of this nature.
In any event, this finding of the Panel seems to have established the priority of order in reviewing the appropriateness of approval procedures of products under the SPS, e.g., that there would be a review of whether the
approval procedure which treats imported product less favorably than domestic product does so due to the difference in the origin of the products and, if this is proven, whether these two products are like products.
F. Burden of Proof Issues in the SPS [FN27]
As mentioned earlier, six Members of the EC invoked temporary safeguards against import of GMO
products and the complainants challenged this. The EC invoked Article 5.7 and argued that the measures in
question are justified by this provision. The Panel examined the relationship between Articles 2.2 and 5.1 of the
SPS on the one hand and Article 5.7 of the SPS on the other. Article 2.2 of the SPS requires that Members base
their SPS measures on sufficient scientific evidence and Article 5.1 requires that Members run risk assessment
with regard to SPS measures [FN28] that they intend to adopt and allows them to enforce such measures only
when such measures are supported by sufficient scientific evidence. On the other hand, Article 5.7 of the SPS allows Members to adopt temporary SPS measures on the basis of available evidence in accordance with the requirements stipulated in that Article when sufficient scientific evidence is not available. The question here is
which party bears the burden of proof with respect to the relationship between Article 2.2 and Article 5.7 of the
SPS and Article 5.1 and Article 5.7 thereof.
The Panel made a general statement by citing the EC/Tariff Preferences Case [FN29] that when a provision
of a treaty permits a measure under certain conditions which would be inconsistent with another provision of the
treaty but for the existence of these conditions and one of the provisions refers to the other, the claimant who alleges a violation of the provisions bears the burden of proving that the measure in question is inconsistent with
the latter provision and that it does not satisfy the conditions for permission. The Panel then examined the relationship between Article 2.2 of the SPS and Article 5.7 thereof.
Article 5.7 of the SPS permits Members to take temporary SPS measures when there is no sufficient evidence to take SPS measures in accordance with Article 2.2 of the SPS. Article 2.2 refers to Article 5.7 by the
phrase except as provided for in paragraph 7 of Article 5. For this reason, the Panel said that Article 5.7 is not
an exception to Article 2.2 but creates an independent right for a party invoking it. The Panel held, citing the
EC/Sardines Case [FN30] and EC/Tariff Preferences Case, that the claimant alleging a violation of Article 2.2.
of the respondent's SPS measure must prove that the respondent measure is not permitted by Article 5.7 of the
SPS. Likewise the Panel held that the claimant is responsible to prove that the respondent's SPS measure is inconsistent with Article 5.1 as well as that it is not allowed by Article 5.7. In conclusion, the Panel held that the
EC measures were in violation of Article 5.1 and were not permitted by Article 5.7.
The Panel's finding as above explained can be formulated as follows. If Provision A prohibits X Measure,
Provision B permits it and either Provision A or Provision B refers to the other by such phrase as except as
provided for in Provision B, then the permission as provided for in Provision B is not an exception from Provision A but is an independent right of Members and a claimant who alleges that the respondent violates Provision
A is responsible to prove not only that the respondent's measure is in violation of Provision A but also it is not
permitted by Provision B.

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In the past, there have been several Appellate Body rulings in which the issue was the burden of proof. Such
cases include the U.S./Shirts and Blouses Case [FN31], the EC/Hormones Case [FN32], the EC/Tariff Preferences Case and the Brazil/Aircraft Case. [FN33] In the U.S./Shirts and Blouses Case, the Appellate Body stated
that a party asserting the affirmative of a matter is responsible to prove it and, when it is successfully made, the
burden of proof shifts to the other party. In the EC/Hormones Case, the Appellate Body referred to the relationship between Article 3.1 and Article 3.3 of the SPS and noted that Article 3.1 referred to Article 3.3. The Appellate Body held that whoever claimed that a measure was in violation of Article 3.1 was also responsible to prove
that the measure was not permitted by Article 3.3. In the EC/Sardines Case, the Appellate Body held that whoever asserts that a measure violates Article 2.4 of the TBT Agreement is responsible to prove not only that the
measure violates the prohibition in Article 2.4 but also that the measure is not qualified to be permitted by the
derogation clause in Article 2.4 of the TBT Agreement. Also in the Brazil/Aircraft Case, the Appellate Body
held that the sentence in Article 27.2 of the SCM Agreement which states The prohibition of paragraph (a) of
Article 3 shall not apply to: (a) developing country Members referred to in Annex VII, (b) (omitted) does not
grant an exception from Article 3.1 (a) which prohibits subsidies but conferred an independent right to Members
invoking it.
On the other hand, the Enabling Clause states Notwithstanding the provisions of Article I of the General
Agreement, Members can confer preferential tariffs to developing country Members. In the EC/Tariff Preferences Case, the Appellate Body took note of this phrase and stated that the Enabling Clause is an exception to
Article I of the GATT. It is generally recognized that Article XX of the GATT is an exception to prohibitions
contained in other parts of the GATT. When a Member invokes Article XX of the GATT, that Member is responsible to prove that the measure in question satisfies the requirement for exception as provided for in Article
XX of the GATT. However, Article XX of the GATT states ... [n]othing [no provision] in this Agreement shall
be construed to prevent the adoption or enforcement by any contracting party of measures:.... and, therefore,
Article XX of the GATT also refers to other provisions of the GATT. In light of the above analysis, there seems
to be little difference in the textual structures between the SPS and the TBT on the one hand and the Enabling
Clause and Article XX of the GATT on the other.
In all of such cases, however, the following formulae seems to apply, i.e., Provision A prohibits Measure X,
Provision B allows it and either Provision A or Provision B refers to the other. However, the Appellate Body has
not explained the rationale why a certain rule on the burden of proof should be adopted in relation to Article XX
and Enabling Clause on the one hand and another rule of the burden of proof in relation to the others, that is, the
SPS and the TBT. [FN34]
It may be that the Appellate Body took into account the purposes and objectives of the SPS and the TBT in
dealing with burden of proof issues, e.g., some political or policy considerations may have crept into the
process of decision-making of the Appellate Body. The SPS and the TBT cut into the realm of sovereignty of
Members more deeply than mere border measures such as tariffs and import restrictions in the sense that the
former require that Members adopt SPS and TBT measures which would apply to the domain of domestic regulations. For example, the SPS requires that Members adopt SPS measures based on international standards as
identified by the SPS Committee regardless of whether products subjected to the standards are imports or domestically produced. There is a potential tension between the international disciplines incorporated in the SPS
and the TBT on the one hand and the realm of domestic authorities of Member states on the other. The Appellate
Body may have paid respect to domestic authorities by imposing a heavy burden of proof on claimants challenging SPS and TBT measures of another Member and thereby somewhat easing the responsibility of Members
challenged by the SPS and the TBT. [FN35] If so, however, the details of this reasoning should be made clear.

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Moreover, the Preamble of the SPS states that the purpose of the SPS is: ...to elaborate rules for the application
of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the
provisions of Article XX(b). This Preamble suggests that the SPS is an elaboration of Article XX (b) of the
GATT and should be read together with it. The consequence is that the same burden of proof should be applied
to Article XX (b) as the SPS.
Under the present rule on the burden of proof, a claimant has to prove not only that the respondent's measure
is in violation of a provision of a WTO agreement but also that such a measure is not permitted by the derogation clause. This puts a heavy burden on the claimant. One consideration is that the burden of proof should be
imposed on the party which is in a good position to prove the matter of which a proof is required. In the present
rule, a claimant has to prove that there are no conditions in the territory of the respondent to justify the derogation. Yet it is the respondent which is in a better position to adduce evidence that such conditions exist in its territory. Of course, the ease of adducing evidence should not be the only consideration when deciding the issue of
who has the burden of proof. However, this deserves some attention.
IV. CONCLUDING REMARKS
Before the Brazilian Tyres Case, the necessity test in Article XX (b) was narrowly interpreted and this made
it difficult for this provision to apply to issues where the protection of human life and health is involved. [FN36]
The rulings of the panel and the Appellate Body eased the necessity test and stated that it was not necessary for
the party invoking Article XX (b) to establish quantitatively that there is a cause-and-result relationship between
the measure in question and reduction or elimination of risks to human life and health. According to the rulings,
the party invoking this article needs only to establish that there is a qualitative relationship between them, e.g.,
that the measure taken has the quality of reducing risks to human life and health. Such rulings are quite significant because a proof that a measure has reduced or eliminated quantitatively diseases and risks to human life and
health is often difficult. This may be mingled in other causes for such reduction and difficult to prove quantitatively. Also the effect of this measure has not appeared yet but, in the long run, it may become a decisive factor.
In this respect, the rulings of the panel and the Appellate Body has made Article XX (b) much more useful in
dealing with issues surrounding human life and health.
Also the Panel and the Appellate Body established in the Brazilian Tyres Case that, when proving that there
is no alternative way to deal with the problem which is less restrictive, the party claiming the lack of such alternatives does not have to disprove the ineffectiveness of all alternative measures that might exist in the universe of
alternatives. All it has to prove is that the measure it has taken is fit to resolve the issue in question and it is up
to the party attacking such measure to adduce other alternatives and claim that such other alternatives can replace the measure in question. This has made Article XX (b) easy to invoke. [FN37]
On the other hand, there are some problems still left to be addressed. Under the Appellate Body jurisprudence established in the EC/Hormones Case and the EC/GMO Case, a heavy burden of proof is imposed on a
claimant challenging a SPS measure of another WTO Member. This may cause difficulty to developing country
Members when challenging SPS measures of a developed country Member for the lack of legal and economic
resources. Perhaps the burden of proof under the SPS should be carefully reconsidered and, if necessary, modified.
There may be potential tensions and conflicts between the WTO disciplines and other international agreements which deal with human life and health matters. For example, the principle of precautionary principle in-

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corporated in the Cartagena Protocol which is a protocol to the United Nations Biodiversity Convention and that
included in Article 5.7 of the SPS Agreement are different from each other. Such issues should be negotiated
and the proper relationship between WTO agreements and other international agreements should be established
through such negotiations. However, given that the Doha Agenda has come to impasse, we must endeavor to
deal with this difficult issue through development of WTO jurisprudence.
REFERENCES
Books
CHOI, WONG-MOG (2003), LIKE PRODUCTS IN INTERNATIONAL TRADE LAW TOWARDS A
CONSISTENT GATT/WTO JURISPRUDENCE.
PAUWELYN, JOOST (2003), CONFLICT OF NORMS IN PUBLIC INTERNATIONAL LAW: HOW
WTO LAW RELATES TO OTHER RULES OF INTERNATIONAL LAW.
Articles
Broude, Tomer (2006), Genetically Modified Rules: The Awkward Rule-Exception-Right Distinction in ECBiotech, 14(6) HEBREW UNIVERSITY INTERNATIONAL LAW RESEARCH PAPER.
Charnovitz, Steve (1998), Linking Topics in Treaties, 19(2) University of Pennsylvania Journal of International Economic Law 329-345.
Grando, Michelle T. (2006), Allocating the Burden of Proof in WTO Dispute A Critical Analysis, 9(3)
JOURNAL OF INTERNATIONAL ECONOMIC LAW 615.
Howse, Robert (2002), The Sardines Panel and AB Rulings Some Preliminary Reactions, 29(3) LEGAL
ISSUES OF ECONOMIC INTEGRATION 247.
Marceau, Gabrielle (1999), A Call for Coherence in International Law-Praises for the Prohibition against
Clinical Isolation in WTO Dispute Settlement, 33(5) JOURNAL OF WORLD TRADE 87.
Perez, Oren (2006), Anomalies at the precautionary Kingdom: Reflections on the GMO Panel's Decision,
13(6) HEBREW UNIVERSITY INTERNATIONAL LAW RESEARCH PAPER.
Cases
Appellate Body Report, Australia measures Affecting Importation of Salmon, WT/DS18/AB/R, October
20, 1998.
Appellate Body Report, Brazil Export Financing Programme for Aircraft, WT/DS46/AB/R, August 2,
1998.
Appellate Body Report, Brazil Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R,
December 3, 2007.

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Appellate Body Report, EC Conditions for the Granting of Tariff Preferences to Developing Countries,
WT/DS246/AB/R, 7 April 2004.
Appellate Body Report, EC Measures Affecting Asbestos and Asbestos-containing Product, WT/
DS135/AB/R, March 12, 2001.
Appellate Body Report, EC Measures Concerning Meat and Meat Products, WT/DS26/AB/R, January
16, 1998.
Appellate Body Report, EC Trade Description of Sardines, WT/DS231/AB/R, September 26, 2002.
Appellate Body Report, Japan Measures Affecting Agricultural Products (Apples), WT/DS76/AB/R, February 22, 1999.
Appellate Body Report, Japan Measures Affecting the Importation of Apples, WT/DS245/AB/R, November 26, 2003.
Appellate Body Report, United States Measure Affecting Imports of Woven Wool Shirts and Blouses from
India, WT/DS33/AB/R, April 25, 1997.
Appellate Body Report, United States Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DSD285/AB/R, April 7, 2005.
Appellate Body Report, Brazil Export Financing Programme for Aircraft, WT/DS46/AB/R, August 2,
1998.
Appellate Body Report, Brazil Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R,
December 3, 2007.
Appellate Body Report, EC Conditions for the Granting of Tariff Preferences to Developing Countries,
WT/DS246/AB/R, 7 April 2004.
Appellate Body Report, EC Measures Affecting Asbestos and Asbestos-containing Product, WT/
DS135/AB/R, March 12, 2001.
Appellate Body Report, EC Trade Description of Sardines, WT/DS231/AB/R, September 26, 2002.
Appellate Body Report, United States Measure Affecting Imports of Woven Wool Shirts and Blouses from
India, WT/DS33/AB/R, April 25, 1997.
Appellate Body Report, Australia measures Affecting Importation of Salmon, WT/DS18/AB/R, October
20, 1998.
Appellate Body Report, EC Measures Concerning Meat and Meat Products, WT/DS26/AB/R, January
16, 1998.
Appellate Body Report, Japan Measures Affecting Agricultural Products (Apples), WT/DS76/AB/R, February 22, 1999.

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Appellate Body Report, Japan Measures Affecting the Importation of Apples, WT/DS245/AB/R, November 26, 2003.
Appellate Body Report, United States Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DSD285/AB/R, April 7, 2005.
Panel Report, Australia Measures Affecting Importation of Salmon, WT/DS18/R, June 12, 1998.
Panel Report, Brazil Measures Affecting Imports of Retreaded Tyres, WT/DS332/R, June 12, 2007.
Panel Report, EC Conditions for the Granting of Tariff Preferences to Developing Countries, WT/
DS246/R, December 1, 2003.
Panel Report, EC Measures Affecting Asbestos and Asbestos-containing Products, WT/DS135/R, September 18, 2000.
Panel Report, EC Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291, 292,
293/R, September 29, 2006.
Panel Report, EC Measures Concerning Meat and Meat Products, WT/DS48/R/CAN, August 18, 1997.
Panel Report, EC Measures Concerning Meat and Meat Products, WT/DS26/R/USA, August 18, 1997.
Panel Report, Japan Measures Affecting Agricultural Products (Apples), WT/DS76/R, October 27, 1998.
Panel Report, Japan Measures Affecting the Importation of Apples, WT/DS245/R, July 15, 2003.
Panel Report, Thailand Restrictions on Importation of and Internal Taxes on Cigarettes, BISD 37S/200,
November 7, 1990.
Treaties
The WTO Agreement on Technical Barriers to Trade (the TBT Agreement).
The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement).

[FNa1]. Professor Emeritus of Tokyo University and former member of the WTO Appellate Body.
[FN1]. Article XX (b) and the SPS Agreement deal with protection of life and health of humans, animals and
plants. In this paper, only the aspect relating to human life and health is taken up.
[FN2]. Panel Report, Thailand Restrictions on Importation of and Internal Taxes on Cigarettes, BISD
37S/200 (Nov. 7, 1990).
[FN3]. Panel Report, EC Measures Affecting Asbestos and Asbestos-containing Products, WT/DS135/R (Sep.
18, 2000) [hereinafter EC-Asbestos Panel Report]; Appellate Body Report, EC Measures Affecting Asbestos
and Asbestos-containing Products, WT/DS135/AB/R (Mar. 12, 2001) [hereinafter EC- Asbestos Appellate Body

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Report].
[FN4]. Article 1.5 of the TBT Agreement states: The provisions of this Agreement do not apply to sanitary and
phytosanitary measures as defined in Annex A of the Agreement on the application of Sanitary and Phytosanitary Measures.
[FN5]. Panel Report, Brazil Measures Affecting Imports of Retreaded Tyres, WT/DS332/R (June 12, 2007)
[hereinafter Brazil-Tyres Panel Report].
[FN6]. Appellate Body Report, EC-Trade Description of Sardines, WT/DS231/AB/R (Sep. 26, 2002). For a critical review of this case, see Robert Howse, The Sardines Panel and AB Rulings Some Preliminary Reactions,
29 (3) LEGAL ISSUES OF ECONOMIC INTEGRATION 247, 247-57 (2002).
[FN7]. Brazil-Tyres Panel Report, supra note 5.
[FN8]. Appellate Body Report, Brazil Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R,
(Dec. 3, 2007) [hereinafter Brazil-Tyres Appellate Body Report].
[FN9]. Appellate Body Report, United States Measures Affecting the Cross-Border Supply of Gambling and
Betting Services, WT/DS285/AB/R (Apr. 7, 2005).
[FN10]. Panel Report, EC Measures Concerning Meat and Meat Products, WT/DS48/R/CAN (Aug. 18,
1997); Panel Report, EC Measures Concerning Meat and Meat Products, WT/DS26/R/USA (Aug. 18, 1997);
Appellate Body Report, EC-Measures Concerning Meat and Meat Products, WT/DS26/AB/R (Jan. 16, 1998).
[FN11]. Panel Report, Australia Measures Affecting Importation of Salmon, WT/DS18/R (June 12, 1998);
Appellate Body Report, Australia Measures Affecting Importation of Salmon, WT/DS18/AB/R (Oct. 20,
1998).
[FN12]. Panel Report, Japan Measures Affecting Agricultural Products (Apples), WT/DS76/R (Oct. 27,
1998); Appellate Body Report, Japan Measures Affecting Agricultural Products (Apples), WT/DS76/AB/R
(Feb. 22, 1999).
[FN13]. Panel Report, Japan Measures Affecting the Importation of Apples, WT/DS245/R (July 15, 2003);
Appellate Body Report, Japan Measures Affecting the Importation of Apples, WT/DS245/AB/R (Nov. 26,
2003).
[FN14]. Under the precautionary principle, measures to prevent risks can be taken even if scientific evidence
showing that there are risks does not exist or not sufficient. The precautionary principle is sometime used in domestic legislation dealing with food safety, e.g., in some pieces of legislation, the approval of using food or additives is not allowed unless they are proven to be safe. The Cartagena Protocol which is a protocol to the U.S.
Biodiversity Convention provides for the precautionary principle. According to the Cartagena Protocol, the signatories can take a measure to prevent genetically modified organism even without scientific evidence that it
causes a risk to human, animal or plant life and health and that it has a detrimental effect on the environment.
[FN15]. Generally a derogation clause provides that one can choose not to adhere to the rule established in another provision of a law or treaty under the conditions stipulated in the clause.

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[FN16]. Panel Report, EC Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291,
292, 293/R (Sep. 29, 2006) [hereinafter EC-Biotech Products Panel Report].
[FN17]. Id.
[FN18]. Id. 51-54.
[FN19]. Id. 68.
[FN20]. For detailed analysis of conflicts and relationships between treaties, See generally JOOST
PAUWELYN, CONFLICT OF NORMS IN PUBLIC INTERNATIONAL LAW: HOW WTO LAW RELATES
TO OTHER RULES OF INTERNATIONAL LAW (2003); see generally Gabrielle Marceau, A Call for Coherence in International Law-Praises for the Prohibition against Clinical Isolation in WTO Dispute Settlement,
33(5) J. WORLD TRADE 87 (1999); see generally Steve Charnovitz, Linking Topics in Treaties, 19(2) U. PA.
J. INT'L ECON. L. 329 (1998).
[FN21]. It also adds end product criteria, processes and production methods, testing, inspection, certification
and approval procedures, quarantine treatments including relevant requirements associated with the treatment of
animals or plants, or with the materials necessary for their survival during treatment, provisions on relevant statistical methods, sampling procedures and methods of risk assessment and packaging and labeling requirements
directly related to food safety.
[FN22]. EC-Biotech Products Panel Report, supra note 16, 7.137.
[FN23]. Generally the principle of national treatment means that a WTO Member shall accord to a product of
other Member treatment no less favorable to that accorded to a like domestic product. For example, if a WTO
Member imposes heavier liquor tax on alcoholic beverage than it does on a similar domestic alcoholic beverage,
it is contrary to the principle of national treatment.
[FN24]. EC-Biotech Products Panel Report, supra note 16, 7.2415.
[FN25]. For a detailed analysis of the concept like products, See WONG-MOG CHOI, LIKE PRODUCTS
IN INTERNATIONAL TRADE LAW-TOWARDS A CONSISTENT GATT/WTO JURISPRUDENCE (2003)
and cases cited in this article.
[FN26]. EC-Asbestos Appellate Body Report, supra note 3.
[FN27]. A detailed study of the issue of the burden of proof in WTO law is found in Michelle T. Grando, Allocating the Burden of Proof in WTO Dispute A Critical Analysis, 9(3) J. INT'L ECON. L. 615(2006).
[FN28]. Risk assessment in a narrow sense means a scientific examination of whether a substance generates hazards to life and health. In a broad sense, however, it includes an assessment of risk management, i.e., an assessment of manageability or controllability of risk. For example, a risk may be small in scientific experiment
but there may be circumstances in which it is difficult administratively to prevent such risk from spreading
widely. Properly risk assessment should take into account both scientific aspect and administrative or managerial aspects.
[FN29]. Panel Report, EC Conditions for the Granting of Tariff Preferences to Developing Countries, WT/

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DS246/R (Dec. 1, 2003); Appellate Body Report, EC Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/R (Apr. 7, 2004).
[FN30]. Brazil-Tyres Panel Report, supra note 5.
[FN31]. Appellate Body Report, United States Measure Affecting Imports of Woven Wool Shirts and Blouses
from India, WT/DS33/AB/R (Apr. 25, 1997).
[FN32]. Brazil-Tyres Appellate Body Report, supra note 8.
[FN33]. Appellate Body Report, Brazil Export Financing Programme for Aircraft, WT/DS46/AB/R (Aug. 2,
1998).
[FN34]. For critical reviews of this holding of the panel, See Oren Perez, Anomalies at the precautionary Kingdom: Reflections on the GMO Panel's Decision, 13(6) HEBREW UNIVERSITY INTERNATIONAL LAW RESEARCH PAPER (2006), available at http://www.ssrn.com/abstractid=940907 (last visited Mar. 1, 2009);
Tomer Broude, Genetically Modified Rules: The Awkward Rule-Exception-Right Distinction in EC-Biotech,
14(6) HEBREW UNIVERSITY INTERNATIONAL LAW RESEARCH PAPER (2006), available at http://www.ssrn.com/abstractid=949623 (last visited Mar. 1, 2009).
[FN35]. EC-Biotech Products Panel Report, supra note 16.
[FN36]. Supra note 1.
[FN37]. One of the issues in the Brazilian Tyres Case is that of the relationship between Article XX and Article
XXIV of the GATT in relation to MERCOSUR exemption. This is an important systemic issue. However, this is
not directly related to human life and health aspects of the case and, therefore, no discussion are made on this
matter in this paper.
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