Australia - Measures Affecting Importation of Salmon Report of the Panel (Continued) 4.222 Australia noted that the provision in Article 5.6 was an elaboration of the provisions of the basic rights in Article 2.1 that "Members have the right to take sanitary ... measures necessary for the protection of ... animal or plant life or health ... " and the basic obligation in Article 2.2 in regard to "only to the extent necessary ...". The meaning of the term "necessary" could not be fully interpreted with regard to Article XX of GATT 1994, nor with regard to the jurisprudence of Article XX, as that article covered exceptional rights, not basic rights. The term used in the footnote to Article 5.6 "significantly less restrictive to trade" was not the same as "least trade restrictive". Australia argued that through the risk assessment process, it had been established that there was no other measure reasonably available to Australia in regard to the risk and consequences of entry, establishment or spread of the disease agents of concern in Pacific salmon products subject to the Final Report, taking into account technical and economic feasibility, that would achieve the appropriate level of protection and which would be significantly less restrictive to trade. In other words, the measure was necessary. In this context, Australia referred to its arguments in regard to Article 2.2. 4.223 Australia argued that Canada had not come forward with any evidence that would demonstrate that there were significantly less trade restrictive measures available on uncooked salmon which would achieve the appropriate level of protection. Canada's assertion that different measures were applied between live fish and dead uncooked fish did not constitute evidence that there was an alternative and significantly less trade restrictive measure available which was feasible in both technical and economic terms and which was capable of achieving the appropriate level of protection. A generalization that uneviscerated bait fish or live fish posed a greater threat than eviscerated fish of a different species could not be substantiated without reference to a risk analysis including detailed scientific risk assessment, as stated by the experts advising the Panel. It had to be demonstrated that there were comparable situations in a scientific, economic and biological sense in regard to the risk of entry, establishment or spread of the totality of diseases at issue, together with comparable consequences, and that the same measure would be feasible in an economic and technical sense. Canada's claim that Australia's requirements on heat-treated product were not sufficiently restrictive to achieve Australia's level of protection did not represent evidence that a significantly less trade restrictive measure was available to achieve Australia's appropriate level of protection in relation to uncooked salmon. Canada had not put forward documented evidence that the other options identified in the Final Report could achieve Australia's level of protection. Australia drew attention to the detailed evaluation of options in the Final Report (see paragraphs 4.164-4.165). 4.224 In regard to other aquatic products, Australia observed that it would have to conduct a risk assessment in order to establish what measures to adopt vis-à-vis these other products. The need for this had been confirmed by the experts advising the Panel. Risk assessments for other aquatic products were scheduled or underway in order to determine the appropriate measure for the particular circumstances, including ornamental fish. Following the risk assessments, the measures to be applied might be more or less trade restrictive than those applying to uncooked salmon, however, that did not mean that they were significantly more or less trade restrictive within the meaning and intent of the SPS Agreement, including Article 5.6. Pending quarantine reviews on other aquatic products, Australia was not in the position to determine whether the measures that applied to uncooked salmon would or would not achieve the appropriate level of protection in relation to animal health and life risks. 181 4.225 In regard to the options identified in the Final Report, Australia noted that for each option there was a distinct level of protection and it had been established that only the option chosen would achieve the appropriate level of protection. Although the Final Report stated that " [t]he difference in level of risk between each option is incremental and cannot be quantified"182, it had clearly stated that Option 1 represented the lowest level of risk (highest degree of security) of any option considered. 183 Options 2, 3 and 4 were not ranked other than that these fell between Option 1 (lowest risk) and Option 5 (highest risk). 184 4.226 Australia maintained that it had applied the only measure available to it that was consistent with its appropriate level of protection - it was not the most trade restrictive measure as was evident from imports of heat-treated salmonids. Australia argued that even if the measures on salmon were the most trade restrictive possible, Canada would need to demonstrate that there was a significantly less trade restrictive measure reasonably available which would protect animal life and health within Australia in accordance with the level of protection deemed to be appropriate. Moreover, even the most trade-restrictive measure available did not constitute evidence of inconsistency with Article 5.6. Canada had not met its burden of proof in regard to its claims that the measure was more trade restrictive than required in the meaning of Article 5.6. 4. Articles XI and XX of GATT 1994 4.227 Canada argued that Australia's measure was a quantitative restriction in the meaning of paragraph 1 of Article XI of GATT 1994, which provided that: "No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party." 185 In Canada's view the measure was a restriction on the importation into Australia of fresh, chilled or frozen salmon from Canada and could not be characterized as a "duty, tax or other charges" which would exempt it from paragraph 1 of Article XI. Furthermore, the measure did not qualify for any of the exemptions within the meaning of paragraph 2 of Article XI. The burden of proof that one or more of the exceptions applied was Australia's. 4.228 If the Panel were to find that the measure at issue was the 1996 Decision, Canada argued that measure would be limited to wild, ocean-caught Pacific salmonids. However, Australia had admitted that its prohibition extended to all uncooked salmon as it had stated in the Final Report that "commercial quantities of fresh, frozen and chilled salmon product are not permitted entry into Australia". 186 If the measure were the December 1996 Decision, then Australia would be maintaining a prohibition on farmed Pacific and Atlantic salmon without a measure. As the prohibition in respect of farmed salmon would be maintained without the benefit of a measure, the SPS Agreement, which applies only to "sanitary or phytosanitary measures", would not apply. Thus, with respect to these products, the prohibition was a violation of Article XI:1 of GATT 1994 to which none of the exceptions in Article XI:2 applied. 4.229 In respect of Article XI, Australia contended that the measure cited by Canada did not constitute an import prohibition within the meaning of paragraph 1 of Article XI. Australia argued that QP86A did not prohibit the importation of uncooked salmon from Canada; it allowed imports subject to permit, provided by the Director of Quarantine within the scope of the delegated legal authority accorded under QP86A. 4.230 Nonetheless, with respect to both Article XI and Article XX(b) of GATT 1994, Australia argued that in accordance with Article 2.4 of the SPS Agreement, a sanitary measure which conformed to the relevant provisions of the SPS Agreement was presumed to be in accordance with obligations under GATT 1994 which related to the use of sanitary measures. Furthermore, Canada had not contested that the measure was within the scope of the SPS Agreement. As Canada had not established inconsistency with Articles 2, 3 or 5 of the SPS Agreement, there had to be a presumption that the measure was in conformity with Australia's obligations under Articles XI and XX(b) of GATT 1994. Canada therefore bore the burden of proof to rebut the presumption of conformity. 4.231 Canada stated that Australia's measure could not be justified under any of the exceptions under Article XX and that Australia bore the burden of justifying under Article XX its violation of Article XI. Canada recalled that GATT practice dictated that the party invoking Article XX bore the burden of proving it. Furthermore, GATT and WTO Panels had made it clear that a measure could be considered necessary "only if there were no alternative measure consistent with the General Agreement, or less inconsistent with it, which [the member] could reasonably be expected to employ to achieve its ... policy objectives". 187 Since Canada had already demonstrated that Australia had adopted alternative measures (heat treatment) with respect to the importation of pathogens occurring in salmon and had nevertheless been able to achieve its policy objective of protecting animal life and health, Australia's measure had no justification in the "necessity test", set out in Article XX(b). As Australia had failed to meet this "necessity test", it was not necessary to examine the chapeau of Article XX which proscribed the application of measures which "in a manner which would constitute a means of arbitrary or unjustifiable restriction on international trade". 5. Article XXIII of GATT 1994 4.232 Canada maintained that the inconsistency of Australia's measure with GATT 1994 and the SPS Agreement established a prima facie case of nullification or impairment pursuant to GATT Article XXIII:1(a) and Article 3.8 of the DSU. If the Panel were to find that Australia's measure was not inconsistent with the cited Agreements, Canada requested the Panel to find that the measure otherwise nullified or impaired benefits accruing to Canada under Article XXIII:1(b). Canada noted that in its request for consultations in 1994 under GATT, the Request for Consultations under the WTO, and the Request for the Establishment of a Panel188, Canada had raised non-violation claims under Article XXIII:1(b) of GATT 1994. Moreover, Article XXIII:1(b) applied to both GATT 1994 and the SPS Agreement189, and Canada had made it clear in its requests for consultations and for the establishment of a panel that it considered that benefits accruing to it pursuant to the WTO Agreement were being nullified or impaired as a result of Australia's application of its measure. Canada noted that Article 26.1 of the DSU made it clear that complaints concerning non-violation nullification or impairment could be made within the framework of the WTO Agreement. 4.233 Canada argued that the benefits that it reasonably could have expected to accrue as a consequence of Australia's tariff concessions had been nullified or impaired in that: (i) fresh, chilled and frozen salmon were subject to tariff concessions originally made by Australia in 1947, before the introduction of Australia's measure; (ii) as a consequence of Australia's measure, Canada's uncooked salmon had been denied access to Australia's market; and, (iii) the tariff concessions had been carried forward in successive tariff negotiations, such that Canada was entitled to rely on the reasonable expectations it had in 1947 at the time of negotiation of the original tariff concessions. Canadian salmon exporters could reasonably have expected to export significant quantities of fresh and frozen salmon to Australia, commensurate with Canada's increased export potential for this product and with growing demand in Australia. Moreover, while the measure had denied Canadian exporters access to Australia's growing market for fresh, chilled and frozen salmon, it had at the same time enabled domestic producers to benefit from higher domestic prices. 4.234 Australia argued that Canada's claims in regard to nullification and impairment were not within the Panel's terms of reference as a claim of non-violation had not been raised in consultations and was not cited in Canada's request for a Panel. Canada's request for the establishment of a Panel identified GATT 1994 and SPS Articles on which it was seeking findings by the Panel, although it did not specify provisions of those articles. Canada did not identify Article XXIII:1(b) of GATT 1994 as a basis for its legal claims. Nor did it identify Article 26 of the DSU. No reference was made to Article II of GATT 1994 as a relevant provision. Australia further contended that the 1994 consultations, which were held under the GATT dispute settlement rules, were not relevant to the terms of reference of the Panel constituted under Article 6 of the DSU. The relevant WTO consultations were those which took place in 1995. Canada's request for a panel did not cite the 1994 GATT consultation and did not incorporate matters discussed at those consultations. The basis for the current panel was Canada's request set out in WT/DS18/2. Australia noted that in India - Patent Protection for Pharamceutical and Agricultural Chemical Products, the Appellate Body had reaffirmed that a complainant had to identify the measures and legal basis of its claims in a request for a Panel, in accordance with Article 6.2 of the DSU. The Panel, under the terms of Article 7.2 of the DSU, was only required to address the relevant provisions in any covered agreement or agreements cited by the parties to the dispute. Canada had not previously cited non-violation claims. Nor had Canada fulfilled the requirement set out in Article 6.2 of the DSU to identify the specific measure at issue and to provide a brief summary of the legal basis of the complaint. 4.235 Australia noted that Canada's claims of the application of the doctrine of "reasonable expectations" were limited to the citation of GATT jurisprudence in footnotes in its submissions. Australia noted that it was clear that claims of "reasonable expectations" were valid in the context of non-violation claims relating to the introduction of subsidies subsequent to the negotiation of a GATT bound tariff concession. However, Canada had not come forward with any evidence in the context of the application of a sanitary measure, including in the context of the application of a sanitary measure as a basic right under the SPS Agreement. Canada's claims, if accepted, could become an obstacle to the protection of life and health and might effectively prevent Members from exercising a basic WTO right conferred under the SPS Agreement. Any such construction would upset the balance of rights and obligations as practised by Members and would undermine the attainment of WTO objectives expressed in the preamble to the Marrakesh Agreement Establishing the WTO, including in regard to the objective of protecting and preserving the environment. 4.236 Without prejudice to the above, Australia maintained that if the Panel were to find that Canada's complaint in this regard fell within the scope of its terms of reference, Canada had nonetheless not satisfied its legal and evidentiary burden of proof in regard to claims of non-violation nullification and impairment in accordance with Article 26.1(a) of the DSU. Australia stated that, as a matter of fact, at the time of negotiation of the original tariff concession, the Quarantine Act of 1908 was in place. The Act made it clear that entry into Australia would be subject to quarantine conditions. The relevant legislative provisions remained unchanged. Hence, it was a measure that could have been reasonably anticipated by Canada at the time of the initial tariff bindings. Furthermore, in regard to the rights accorded under the SPS Agreement in 1995, it was within Canada's reasonable expectations that the identification of a number of disease agents exotic to Australia could affect access to Australia and that Australia would have recourse to sanitary measures in the exercise of its basic WTO rights which might have affected international trade within the meaning of Article 1 of the SPS Agreement. V. SUMMARY OF THIRD PARTY SUBMISSIONS European Communities Burden of proof - Articles 3.3 and 5 5.1 The European Communities argued Article 3.3 was not an "exception" to Article 3.1. The SPS Agreement was based on the recognition that Members had the right to choose their appropriate level of protection. Although Article 3.3 laid down specific conditions governing the exercise of that right in cases where an international standard existed, this did not change the nature of Members’ rights to choose their own level of protection into an "exceptional" right. Three possible options were available to Members when international standards existed. Those were to take measures which were (i) based on the relevant standard (Article 3.1); (ii) which conformed to the standard (Article 3.2); or, (iii) which resulted in a higher level of protection (Article 3.3). The SPS Agreement encouraged Members to adopt measures which "conformed" to existing international standards by providing that such measures would be "deemed" to be "necessary" (in the sense of Article 2.2 of the SPS Agreement) and "presumed to be consistent with" the remainder of the SPS Agreement and with GATT. But even this presumption could not be rebutted by a complaining Member. From this, it could not be inferred that a reverse presumption (or negative inference) applied in those cases where a Member chose to depart from the international standard in order to set a higher level of protection. The three options were of equal standing and no one could be qualified as an exception to the others. The SPS Agreement clearly distinguished between measures which were based on international standards (Articles 3.1 and 3.3) and those which conformed to such standards (Articles 2.4 and 3.2). The complaining party had to bear the burden of showing that the measure of another Member was not based on the international standards, was not based on scientific principles and was maintained without sufficient scientific evidence (Article 2.2). 5.2 The European Communities emphasized that the right to choose a higher level of sanitary protection was explicitly provided for in the SPS Agreement (6th preambular paragraph, Annex A paragraph 5, and Articles 2, 3 and 4.1). A sovereign right could not be undermined by technical and procedural requirements, like the burden of proof, especially in cases where there was scientific uncertainty. Issues of health were so fundamental to the democratic system of government, that sanitary measures had to be given the benefit of conformity with the SPS Agreement until the complaining Member had succeeded in establishing beyond doubt and on the basis of the latest scientific information available that a sanitary measure was not based at all on scientific principles, in the sense of Article 2.2. 5.3 In the view of the European Communities, "burden of proof" was an ambiguous term. It was essential to distinguish between the following concepts: (i) standard of proof; (ii) burden of persuasion; (iii) minimally sufficient evidence; and, (iv) burden of producing evidence. These concepts applied to very different aspects of fact-finding and responded to very different policies. Initially, a complaining party had to "present evidence and argument sufficient to establish a presumption" that a Member had acted inconsistently with its obligations under the SPS Agreement. 190 Evidence had to be produced (i) that was minimally sufficient to support its requested finding and (ii) that would be sufficient to persuade the panel that what was claimed was true if no counter-evidence were to be produced. A prima facie case had, therefore, to be of sufficient weight to persuade the panel and of sufficient quality to pass appellate review for reasonableness. Once a complaining party had produced such compelling evidence, the Member against whom the complaint was being brought faced the practical reality that either it had to produce convincing rebuttal evidence or it would be likely to suffer adverse findings. It was misleading, however, to speak of any "shift" in the "burden of proof" in such a case. The burdens of production and persuasion on any issue essential to proving a violation had to be borne throughout the process by the complaining party. The fact that in the dynamics of the proof process there might come a point when the defending party had to produce convincing evidence or lose did not amount to an additional rule of law that "shifted" those burdens. The European Communities noted that the argument on burden of proof they proposed found clear support also in the almost identical provisions of the NAFTA Agreement on sanitary and phytosanitary measures. The Panel’s role in reviewing the scientific judgements made by Members 5.4 The European Communities argued that the Panel had to decide whether the Australian measure was based on a risk assessment as appropriate to the circumstances (Article 5.1). The Panel had also to judge whether the Australian measure was based on scientific principles and was maintained with sufficient scientific evidence (Article 2.2), as well as whether there was scientific justification for departing from existing international standards (Article 3.3). 5.5 The Panel could not conduct its own risk assessment, nor could the Panel substitute its own scientific judgement or that of individual scientists or experts chosen by it for that of the Member applying an SPS measure. Panels had no authority nor competence to evaluate the weight of scientific evidence used by the government of a Member applying an SPS measure. A panel’s mandate, in considering the evidence invoked by a Member maintaining an SPS measure, was not to determine whether it agreed that such evidence constituted best evidence available but merely to determine whether that evidence had the minimum external attributes of scientific inquiry and provided a sufficient basis for the Member’s own determinations about the risk. 5.6 It followed that if in a particular case the "weight" of available evidence indicated that there was no risk of spread of a certain disease, but another part of available scientific evidence indicated that there was such a risk, the government of the Member concerned would still be entitled, under the SPS Agreement, to take a precautionary or preventive approach and base its measure on the latter part of the available scientific evidence. 5.7 The European Communities disagreed with Canada's claim that a "risk assessment" could not satisfy the obligation imposed by Article 5.1 of the SPS Agreement, unless it estimated the "probability" of a risk rather than its mere "possibility". This implied that Members were required to make a quantitative assessment of the risk, but the use of the term "likelihood" in the definition of "risk assessment" could not be taken to mean that a risk assessment had necessarily to include a quantitative estimate of the risk level. The SPS Agreement qualified the obligation to conduct a risk assessment with the phrase "as appropriate to the circumstances" in Article 5.1. This was an express recognition that what was an appropriate risk assessment might differ from case to case. In many cases, a quantitative assessment of the risk might not be appropriate or indeed feasible at all. 5.8 The European Communities noted that a Member was free under the SPS Agreement to refuse to take any risk, no matter how small its possibility of occurrence might be and irrespective of whether it was considered to be acceptable to other Members. With its submission Canada did not appear to argue that there was no risk at all, but simply that its probability of occurrence was very very small. However, a Member was free under the SPS Agreement to refuse to take any risk, no matter how small its possibility of occurrence may be and irrespective of whether it had been considered to be acceptable to other WTO Members or to international organizations such as the OIE. Canada appeared also to forget that, in basing their measures on a risk assessment, Members could take into account a wide range of reports, studies, publications and individual scientific advice. Because the "information-base" for the analysis of the risk was necessarily very wide and constantly being updated as science progressed, it was not surprising to find sometimes contradictory scientific statements. However, this could not prevent a Member from choosing to base its evaluation of the possibility of the harm arising on the part of available scientific evidence which in its view appeared to be more reasonable. Article 5.5 5.9 The European Communities agreed with Australia that the text of Article 5.5 did not impose an obligation lending itself to immediate implementation. Article 5.5 required a comparison of the levels of protection applied by a Member in different situations and not of the measures adopted to enforce those levels of protection. Instead, Canada had compared the measure applied by Australia to different types of fish and then mistakenly assumed that to different measures must necessarily correspond different levels of protection. In order to achieve a given level of protection it was necessary to apply different measures depending on the circumstances of each situation. More restrictive measures were not necessarily equivalent to a higher level of protection and, conversely, less restrictive measures were not necessarily indicative of a lower level of protection. Because there could often be a wide range of sanitary measures available to achieve the same level of protection, the measures employed by Members could differ significantly even where they were designed to achieve the same level of protection. This was, in the EC view, not to be dealt with under Article 5.5 as Canada had done, but rather, under the provisions of equivalency of the SPS Agreement (Article 4). 5.10 The European Communities further argued that a distinction in the levels of protection applied in different "situations" could not be deemed to be "arbitrary" or "unjustified" nor lead to "discrimination" or to a "disguised restriction of international trade" unless those situations were clearly comparable. The mere fact that a disease agent was found in two different species of fish was not sufficient to render "comparable" for the purposes of Article 5.5 the level of protection and the sanitary measure applied by Australia to those species, because there might be other factors which could make the two situations not comparable. For instance, the severity of the effects of a disease agent might vary from one type of fish to another, thus justifying both a different level of protection and different sanitary measures. Consistency could not be seen as a static concept, but rather a process that would take years to achieve. The guidelines, which Article 5.5 required before the objective became operational, had been foreseen precisely for that purpose. Canada’s interpretation of Article 5.5 was not only unreasonable and unfounded but could also lead to regulatory chaos for Members of WTO. Arbitrary, unjustifiable or disguised restriction on international trade: proportionality of the Australian measure 5.11 The European Communities noted that in accordance with Articles 2.3 and 5.6 of the SPS Agreement, Canada bore the burden of showing that Australia's measure was arbitrary, unjustifiable or constituted a disguised restriction on international trade. In particular, Canada had to show that there was another reasonably available measure, which was less trade restrictive and which could achieve the level of protection chosen by Australia. Canada did not appear to have established this, because the salmon it was endeavouring to export did not come from regions or zones that had been declared free from certain diseases of concern. The European Communities, on the other hand, claimed to have shown Australia that the Atlantic salmon caught or farmed in Ireland and the United Kingdom was free of the specific salmon diseases mentioned by Australia. EC salmon, therefore, came from regions or zones free of those diseases and to that extent the Australian measures were not, in the view of the European Communities, in conformity with Articles 2.3 and 5.6 of the SPS Agreement. India 5.12 India agreed that each Member had the right to take such measures which it might feel were necessary for protection of human, animal or plant health or life. It was, however, important for Members to ensure that these measures were applied in an equitable manner, did not constitute a disguised restriction of international trade. In this perspective, even though India recognized Australia's desire to prevent the transmission of some of the diseases of concern to its own fish population, it was important that the measures were not only necessary for attaining these objectives but were also consistent with the WTO obligations. The sanitary measure had to be applied only to the extent necessary to protect human, animal or plant health or life, and had to be based on scientific principles and not maintained without sufficient scientific evidence. As salmon constituted an important ingredient in international trade, it was essential that any measure which was found to be inconsistent with Members' obligations, or which in any way negated the benefits accruing to any country under the WTO Agreement, was removed expeditiously. Norway 5.13 Norway did not contest Australia's stated policy objective to protect salmonid life or health from the spread of exotic diseases, and accepted that Australia had the right to establish its appropriate level of sanitary or phytosanitary protection, i.e., its acceptable level of risk. Norway did, however, submit that Australia's measure was not necessary to achieve this purpose. Furthermore, a risk assessment as appropriate to the circumstances had not been performed. 5.14 Norway stated that the Australian measure at issue amounted to an effective ban on imports of fresh and frozen salmonid products, in contravention to GATT Article XI. The ban could not be justified either under the general exceptions in GATT Article XX or the SPS Agreement, the latter being an elaboration of relevant provisions of GATT 1994, in particular the provisions of Article XX(b). As Australia had submitted that its measure was being maintained for the purposes of protection of animal life and health from the risks arising from the entry, establishment or spread of diseases, disease-carrying organisms or disease-causing organisms - measures that came within the scope of Article 1 of the SPS Agreement as detailed in paragraph 1(a) of Annex A of that Agreement - Norway considered that the Australian measure had to be first examined against the rights and obligations of the SPS Agreement. If the measure violated the SPS Agreement, there would be no need to discuss Article XX of GATT 1994 separately. 5.15 Norway noted that the Australian measure applied to all salmonid product of whatever subspecies or origin. However, the Australian reports that related to risk assessment only assessed disease risks in connection with potential imports of fresh and frozen adult, wild, caught Pacific salmon from the United States and Canada (the species belonging to the genus Oncorhynchus). Imports of farmed salmon and wild caught salmon from other countries would require separate risk analyses. It thus seemed that no risk analysis existed that would cover all the products and origins covered by QP86A (the species belonging to the genus Salmo and Salvelinus, common to aquaculture). This in itself casts serious doubts as to the conformity of QP86A with the SPS Agreement. 5.16 Norway noted that a distinction had to be made between measures depending on the extent to which they were based on an international standard, guideline or regulation. Of the 24 diseases discussed in the Australian reports, and thus presumably the diseases the measure was supposed to protect against, two diseases had been identified by the OIE as requiring special attention (i.e. notifiable Diseases). For these two diseases, fish had to be eviscerated before sold. Three diseases were labelled Other Diseases (OIE recommended that the importing country require an international aquatic animal health certificate). The other 19 diseases were not subject to any specific recommendation. Only three of these had been considered by the OIE Fish Diseases Commission, which had not considered any specific recommendation necessary for these three diseases. The Australian measure (the import ban) thus did not conform to any international standard, guideline or recommendation. 5.17 Where an international standard, guideline or recommendation existed a measure which did not conform to that standard, was subject to two sets of requirements in Article 3.3, i.e., that it resulted in a higher level of sanitary and phytosanitary protection than would be achieved by measures based on the relevant international standards; and that there was either scientific justification for the deviation from the relevant international standard or the measure was a consequence of the level of sanitary or phytosanitary protection a Member determined to be appropriate in accordance with the relevant provisions of paragraphs 1 through 8 of Article 5. Where no international standard, guideline or recommendation existed, there was no obligation to harmonize with other countries' standards, but the measure had to be developed and applied in accordance with inter alia, Articles 2 and 5 of the SPS Agreement. 5.18 The Australian measure, as it related to those diseases covered by OIE recommendations, did not comply with the first requirement in Article 3.3, i.e., it did not result in a higher level of sanitary and phytosanitary protection than would have been achieved by measures based on the OIE recommendation. Australia's May 1995 Draft Report listed a number of events that had to take place before an exotic disease could become established in Australia, and had concluded that this outcome was so unlikely that it did not merit the stringent measures in effect. Later Australian reports and submissions had not provided reasons to disprove this conclusion. 5.19 Even if one had assumed that a higher level of protection could be achieved by Australia's measure, the measure did not comply with the second set of requirements in Article 3.3. Footnote 2 to Article 3.3 stated that "there is scientific justification if, on the basis of an examination and evaluation of available scientific information in conformity with the relevant provisions of this [SPS] Agreement, a Member determines that the relevant international standards, guidelines or recommendations are not sufficient to achieve its appropriate level of sanitary or phytosanitary protection". Norway contended that there were no international scientific studies that supported the contention that headless, eviscerated salmon for human consumption had spread diseases to living salmon. 5.20 Alternatively, if one accepted that Australia's measure could achieve a higher level of sanitary or phytosanitary protection, Australia's right to determine such a higher level of protection - and the measure to implement this decision - had to comply with the relevant provisions of Article 5, as well as Article 2. This meant that the risks from the introduction of diseases had to be related to the importation in question. 5.21 Articles 5.1 and 5.2 required that an appropriate risk assessment be made. Annex A, paragraph 4, explained this as an "... evaluation of the likelihood of entry, establishment or spread of a pest or disease within the territory of an importing Member according to the sanitary or phytosanitary measures which might be applied, ...; or the evaluation of the potential for adverse effects on human or animal health arising from the presence of ... disease-causing organisms in food, beverages or feedstuffs." Article 5.2 furthermore required that Members had to take into account, inter alia scientific evidence, production methods, inspection methods, prevalence of disease and existence of disease free areas. Taken together, this required Australia to perform a thorough evaluation of the different measures which might be applied to achieve its appropriate level of protection. Norway accepted that Australia might come to a different result than the OIE, if its evaluation of the risks and measures, performed in conformity with the elements detailed above, could justify a different approach. The Australian arguments as to why the OIE measures were not sufficient to achieve this level of protection, when other countries applied the OIE measures to achieve, successfully, the same level of protection, were, however, not based on the elements mentioned above. Furthermore, there had been no quantification of likelihood of disease introduction for different measures were discussed. 5.22 Annex A, paragraph 4, defined risk assessment as relating to a pest or disease. The requirement to perform separate risk assessment and management decisions for each disease was also inherent in Article 5.2 with respect to disease-free areas. In establishing its measure, Australia had not evaluated the likelihood of entry for each disease. When the OIE had established its two lists of diseases, it had been because some diseases were thought to require more stringent measures than others. Yet Australia's broad measure made no distinctions, thus denying inter alia, other Members the right, according to Article 6.2, to demonstrate that its area was free of any or all of the diseases, something which was particularly important with respect to the 5 diseases covered by the OIE recommendations as opposed to the 19 diseases not so covered. 5.23 Norway noted that Australia's right to determine its appropriate level of protection was circumscribed by the obligation to avoid arbitrary or unjustifiable distinctions in the level it considered appropriate in different situations, if such distinctions resulted in discrimination or a disguised restriction on international trade. This Article established a general objective of consistency, unrelated to the level of protection chosen. Consistency was, however, an objective, and did not impose an absolute obligation in all respects. The SPS Committee had so far not developed guidelines for the application of this paragraph. Considering the numerous regulations that currently existed, the differences that might exist between substances and diseases, and the many regulations that were in force before the SPS Agreement came into force, it seemed to Norway that only quite similar circumstances coupled with unjustifiable levels of protection might be considered a violation. This requirement had to be applied with caution, and the limits to unwarranted comparisons would probably have to be decided from case to case. In the present case, the treatment of the same diseases when present in other fish species, and perhaps also the treatment of other exotic diseases in fish, would seem to be relevant. 5.24 Australia did not prohibit importation of fresh or frozen fish of other species which might carry the same diseases, and where the introduction of disease would follow the same pattern. Australia, furthermore, allowed the importation of live ornamental finfish which might be host to various exotic diseases. Norway argued that this indicated different levels of protection. Australia, furthermore, had provided no explanation or justification for these differences, which previous Australian reports had admitted were arbitrary and unjustifiable. As such, they had clearly to be considered a disguised restriction on international trade, and, in this case, contrary not only to Article 5.5, but also to the requirement in the last sentence of Article 2.3. 5.25 Irrespective of what might be considered as Australia's "appropriate level of protection" - which Australia had never defined or quantified - against the spread of the diseases in question, it was evident that Australia applied different measures to different fish species. Australia had not presented evidence that would substantiate that different fish species with the same disease represented different risks. It thus seemed that some of the measures were either unwarranted or ineffective. 5.26 The OIE recommended measures to protect importing countries against various diseases. Australia's measure with respect to salmonids was more trade restrictive than another measure, readily available to Australia and which resulted in the same level of protection, while at the same time its necessity over other measures was unsubstantiated. In this respect, Norway therefore contended that Australia had violated Article 5.6 and Article 2.2 of the SPS Agreement. United States 5.27 The United States noted that it had a long history of unsuccessfully trying to work with the Government of Australia to permit the importation of wild, ocean-caught salmon. For over 20 years, Australia had prevented the importation of any uncooked salmon by claiming potential fish disease transmission. The industry protected by Australia's ban, the Tasmanian salmon industry, had originated at least in part from the importation of live salmon eggs from the United States. 5.28 The United States noted that Australia's import ban applied to all uncooked salmon, no matter whether any salmon products in a shipment carried the disease and no matter whether the stock from which the salmon was harvested was free of disease. Australia's broad arguments in support of its ban disguised the lack of scientific justification. Under the terms of the SPS Agreement, the United States argued that the analysis had to be whether the measure at issue was based on legitimate sanitary concerns for each specific disease on which Australia had based its ban. Instead of analysing each disease, Australia referred generally to a broad number of fish disease agents that it considered could "potentially" be present in Canadian salmon. Yet Australia had declined to address the issues involving each of these disease agents. As Australia had not specified on which disease risk it had based its ban, it was impossible to conduct the necessary analysis. The United States noted that varying references in the Australian first submission in respect of the disease agents of concern had led to confusion in regard to the actual number of diseases at issue. 5.29 The United States claimed that Australia's analysis did not address some of the basic issues surrounding its claims in support of its ban. First, Australia's claims turned on the assertion that for each of the disease agents there was a risk that the agent might be present in eviscerated, wild, northeast Pacific ocean-caught salmon (the "salmon at issue"). Yet in many cases Australia had presented no scientific evidence of the agent ever having been found in the salmon at issue, let alone in any products from such salmon. Furthermore, Australia had not conducted its own tests to look for the disease agents. Much of the analysis was mere speculation that, because the agent had been found in salmon in freshwater, there might be a chance that the agent would occur in wild, ocean-going salmon. Most of the disease agents which had been listed by Australia had been isolated from stressed Pacific salmon in freshwater, but had never been isolated or detected in wild, ocean-caught Pacific salmon. Pacific salmon returned to freshwater as adults to spawn and then they died. As they returned to freshwater, they became highly stressed, their immune response was compromised, their flesh quality would begin to deteriorate, and they might contract a number of opportunistic infectious diseases which were not found in ocean-caught fish. Thus, Australia's list of 20 or so disease agents would have to be reduced by removing those for which there was no scientific evidence of the agent being present in the salmon at issue. To continue with Australia - Measures Affecting Importation of Salmon: Section 5.30 181 Ibid., pp. 334-335. 182 Ibid., p.62. 183 Ibid., pp. 62 and 69. 184 Australia noted in its first submission that on page ix of the Final Report "lowest" was an editorial error, and should read "lower". 185 GATT 1994, Article XI paragraph 1. 186 Final Report, p.4. 187 Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, 7 November 1990, BISD 37S/200, para. 75; United States - Restrictions on Imports of Tuna, circulated 3 September 1991, BISD 39S/155, para. 5.28; United States - Standards for Reformulated and Conventional Gasoline, Panel Report, adopted 20 May 1996, WT/DS2/9, paras. 6.25-6.28. 188 GATT Doc. DS48/1, WT/DS18/1 and WT/DS18/2, respectively. 189 Article 11.1 of the SPS Agreement. 190 Appellate Body Report on United States - Measures Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, p.13.

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