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World Trade |
WT/DS18/R 12 June 1998 (98-2258) Original: English |
Australia - Measures Affecting Importation of SalmonReport of the Panel (Continued) 4.41 Australia noted that the number of disease agents and the issue of whether they were exotic or non-exotic to Australia needed to be put into context in regard to strains of disease agents, as provided in the OIE Code. Furthermore, as earlier indicated, the precise number of disease agents at issue depended on the product being discussed. In regard to Pacific salmon, there were at least 20 disease agents of concern, but if considering all salmon, the number would be 24. The Final Report addressed 24 disease agents, it did not claim that there were 24 disease agents at issue in regard to wild ocean-caught Pacific salmon.
Note 1: See the five categories in Canada's as set out in Table 1 (Canada's response to the Panel's Question 2 of 7 October 1997). Note 2: In response to the Panel's question. "[w]hich of the identified diseases are known to occur in salmon from Canada? ...", Australia listed those diseases "currently known to occur in different subsets of Canadian salmon". Australia noted, inter alia, that the information reflected current knowledge (Australia's 7 October 1997 answer to the Panel's Question 2). Note 3: This disease was identified after the issuance of the Final Report. Australia indicated that this disease was not brought to its attention until September 1997, following the presumptive diagnosis of the disease in New Brunswick salmon, which was announced by Canadian authorities in late 1997. See Australia's Rebuttal, p.31, p.33 as well as Australia's Responses to the Panel's Questions 1, 2, 11 and 25 of 7 October. It should be noted that this list of diseases does not include Kudoa thyrsites, which was one of the 24 diseases of concern in the Final Report (p.133). Canada notes this in their Comments on the experts' responses, of 18 December, p.10. * OIE - Other Significant Disease (shaded) † OIE Notifiable Disease (shaded) n.a. Not addressed
Note 1: In Canada, only adult salmon are harvested for export. Note 2: Australia claimed that the fact that a disease agent present in juvenile fish had not been identified in adult fish did not rule out the presence of that agent in adult fish. Note 3: While Australia did not explicitly contest Canada's claim that only four diseases (shaded in the table above) are known to occur in adult, wild, ocean-caught Pacific salmon, Australia argued that there was a difference between "known to occur" and "may occur". As Australia had been obliged to make a judgement about risk in a highly uncertain field in the Final Report, it was misleading to imply that only those diseases known to occur were relevant. Source: Parties' response to the Panel's Question 2 of 7 October 1997 (see Note 2 in Table 3). 4.42 Australia indicated that the Final Report (Section 3) included a stochastic assessment of the economic impact in relation to two diseases (Furunculosis and IHN), including the economic and technical feasibility of prevention and control. This demonstrated that Furunculosis (Aeromonas salmonicida) and Infectious haematopoetic necrosis virus (IHN) were diseases where the potential impact to Australian waters would be particularly high given that the entire salmon industry would probably cease operation in the event of disease outbreak. In addition, the introduction of Whirling disease into Australia would substantially raise the costs of production of salmon in Australia and increase mortality. 60 Australia noted that Infectious salmon anaemia (ISA), a disease exotic to Australia, had recently been presumptively diagnosed in Canada (New Brunswick salmon). According to Australia, this disease had previously been thought to occur only in Norway. If the presumptive diagnosis were confirmed in Canada, it would demonstrate that the disease was capable of spreading despite strict controls imposed by importing countries. Australia further noted that Canada had not disagreed that there was a risk of disease spread through product for human consumption. 4.43 Australia stated that the Final Report had been obliged to make a judgment about risk in the face of considerable uncertainties resulting from extensive data gaps. Australia had sought from Canada, but not received directly relevant scientific information on endemic disease agents present in a major resource, pertaining to: - impact of processing and handling on the infection; - effectiveness of inspection at detecting infections; - infectious dose; and - route of infection. In view of this dearth of information, the Canadian presentation of those diseases that might be found in adult, wild, ocean-caught Pacific salmon from Canada was a simplification of a very complex issue. Australia contended that, given the disease data gaps together with limitations in surveillance programs and testing protocols, it was misleading to concentrate only on those diseases that were known to occur. Accordingly, Australia pointed out that there was a difference between "known to occur" and "may occur". For example, the fact that a disease agent present in juvenile fish had not been identified in adult fish did not rule out the presence of that agent in adult fish. Equally, Australia contended that the fact that an agent had only been recorded from fresh water did not mean that the agent would not be carried in the same host species under marine conditions. 4.44 Of the total of 24 diseases of concern listed in the Final Report, Australia claimed that 14 of these disease agents might occur in wild caught Pacific salmon from Canada. The remainder had been included in the list as they were either found in US stocks; had been recorded to date only from the Atlantic coast of Canada; or had only been isolated from farmed salmon. For example, while Australia recognized that Myxobolus cerebralis (whirling disease) was not present in Canadian salmon, Australia argued that the disease was present in US stocks and could therefore be present in exports from Canada. As such Myxobolus cerebralis was considered in the risk assessment on adult, wild, ocean-caught Pacific salmon. Australia noted that Dr. Wooldridge supported the inclusion of any disease in a risk assessment for which there was reason to suspect that it was in the product. 61 In addition to the uncertainty presented by the above, the complexity of the issue had been further heightened by many product-related factors such as the spoilage of flesh, as seen with Henneguya salminicola. This spoilage had the potential for increased wastage of uncooked flesh and consequent increase in the likelihood of such infected product entering the water where susceptible species occur. Australia emphasised that in the context of quarantine, the concern was the dose needed to establish carrier status, which might be considerably lower than that required for actual clinical disease. Australia also noted that Canada had not contested the scientific evidence of the Final Report that all of the agents at issue, other than pancreas disease virus and Vibrio salmonicida, had been found in at least one age group of salmonids in the Pacific region. 4.45 Australia argued that although there was no definitive proof of the spread of fish diseases via fish products for human consumption, the potential for introduction of exotic pathogens in this manner could not be discounted. Australia maintained that this lack of evidence must be viewed in the context of the factors that would minimize the likelihood of detecting the spread of a pathogen, should it occur. These factors included the prevailing situation where most salmon product was traded between countries where salmon diseases were already present. Delay between any incident introducing the agent and the recognition of the presence of the agent would further minimize the chance of relating disease introduction to product movement. The thoroughness and timeliness of disease surveillance and reporting as a factor contributing to the lack of evidence for pathogen spread through fish product for human consumption was also highlighted by Australia. 4.46 To support its argument for transfer of disease agents through product for human consumption, Australia cited examples of other products for human consumption, such as avian and mammalian tissues, known to have spread animal diseases. These included the numerous recordings of international transmission of animal disease through products for human consumption such as foot and mouth disease, African swine fever, classical swine fever (hog cholera), swine vesicular disease and Newcastle disease. Australia noted that the OIE International Animal Health Code included restrictions in respect of these diseases for the same reason. In addition, Australia contended that given both the difficulty of proving the spread of aquatic animal diseases through product and the very short history of aquatic animal medicine in comparison to its terrestrial animal counterpart, it would be prudent to consider that rather than being unlikely, it was probably only a matter of time and attention until there was definitive proof of the spread of aquatic animal disease via product for human consumption. Australia further supported this argument with evidence on previously exotic prawn viruses, responsible for the diseases Taura syndrome, whitespot and yellowhead, that had recently been found in the United States. Though the route of entry of these pathogens was unknown, the importation of farmed prawns for human consumption from South America and Asia where these diseases were endemic had been proposed as the source of the infection 4.47 With respect to Australia's concerns regarding disease surveillance and reporting, Canada recalled Dr. Rodgers' comments that: ... "Unfortunately, this is rarely the case for wild populations of fish because regular monitoring programmes do not normally exist, unless diagnosis is related to the occurrence of large, noticeable mortalities. However, sampling returning anadromous salmonids in their freshwater phase is occasionally the exception." 62 Canada indicated, however, that over the past 20 years it had developed an extensive programme of disease monitoring of its wild population of Pacific salmon, particularly adults returning to fresh water to spawn. These data had been provided to Australia and were included in Australia's Final Report. For example, between 1972 and 1993, Canada sampled: - 21,999 returning anadromous salmonids for Renibacterium salmoninarum; - 21,495 returning anadromous salmonids for Yersinia ruckeri; - 21,495 returning anadromous salmonids for Vibrio anguillarum and Vibrio ordalii; - 14,595 returning anadromous salmonids for infectious haematopoietic necrosis; - 14,595 returning anadromous salmonids for infectious pancreatic necrosis; and - 14,595 returning anadromous salmonids for viral haemorrhagic septicaemia. 63 4.48 Canada further noted that ISA had been added to the list of diseases of concern to Australia during the Panel process, without a risk assessment. Furthermore, Australia had acknowledged that the disease had only been identified in adult Atlantic salmon farmed in New Brunswick. 4.49 In regard to the New Brunswick salmon, Australia noted that Canada's comments were valid only insofar as the product at issue in the dispute were limited to the Pacific product addressed in the Final Report. However, Canada claimed that the dispute extended to New Brunswick salmon. (d) Article 1.1
4.50 Canada observed that Australia's measure directly or indirectly affected international trade within the meaning of Article 1.1 of the SPS Agreement, however, Canada maintained that the measure was not "developed and applied" in accordance with the SPS Agreement and that it was therefore in violation thereof. 4.51 Australia agreed that the measure taken, as identified by Australia, was a sanitary measure for the protection of animal life and health within Australia's Territory and within the meaning of Article 1.1 of the SPS Agreement, but did not agree that the measure at issue was as described by Canada. Australia claimed that the Panel was not required to examine whether there had been a violation of Article 1 of the SPS Agreement, as Canada had not claimed a violation of this provision. As stated above, the measure was applied for the purposes of protection of animal life and health and affected international trade within the meaning of Article 1.1 of the SPS Agreement. (e) Article 2.2
4.52 Canada claimed that Australia was required to ensure that its ban on the importation of uncooked salmon was sustained by sufficient, relevant, scientific evidence, reflecting the risks Australia claimed would arise from the entry of salmonid diseases through the importation of uncooked salmon. There was a substantial body of relevant scientific evidence which made it clear that Australia had failed to ensure that its measure was "not maintained without sufficient scientific evidence". Therefore, Canada contended, Australia had failed to meet the fundamental obligations on the application of SPS measures, as set out in Article 2.2. 4.53 Canada recalled that the Appellate Body in EC - Hormones had considered that Article 2.2 and Article 5.1 of the SPS Agreement had constantly to be read together and that elements which defined Article 2.2 imparted meaning to 5.1. 64 The Appellate Body had concluded that the result of a risk assessment had to sufficiently warrant or reasonably support the sanitary measure at issue. There had to be a rational relationship between the scientific evidence disclosed in a risk assessment and the sanitary measure. 65 Canada argued that the foundation of any sanitary measure must be science, not protectionism or politics. Article 5.1 of the SPS Agreement required that a sanitary measure must be based on a risk assessment. Article 5.2 provided that Members must take into account available scientific evidence in assessing this risk. Thus, the heat treatment conditions set out in Australia's measure and the consequent ban on the importation of uncooked salmon had to be rationally supported by the available scientific evidence to achieve Australia's appropriate level of protection. Canada stated that there was no sound scientific reason for Australia to continue to maintain a heat-treatment policy that had the effect of banning the importation of uncooked Canadian salmonid products into Australia. In Canada's view, Australia's measure violated Articles 2.2, 5.1 and 5.2 of the SPS Agreement. 4.54 Australia argued that Article 2 of the SPS Agreement accorded basic rights and obligations to Members in respect of the application of sanitary measures referred to under Article 1 of the SPS Agreement. Article 2.1 enabled Australia to take sanitary measures which might be necessary for the protection of animal life and health, provided that the measures were not inconsistent with the provisions of the SPS Agreement. 66 Article 2 conferred a basic right, and Canada had therefore a higher burden of proof to establish a prima facie case that the conditions attached to Article 2.1 had not been met. Nevertheless, without prejudice to the question of burden of proof, Australia's contended that the measure was necessary and was not inconsistent with the SPS Agreement. 4.55 Australia noted that Canada's claims of violation of Article 2.2 were limited to the measure not being based on sufficient evidence. In the context of Article 2.2, Canada had not claimed that the measure was being applied beyond what was necessary to protect animal life. As had been noted by the Appellate Body in EC - Hormones, Articles 2.2 and 5.1 had constantly to be read together. 67 The Appellate Body had also noted: "... a panel charged with determining, for instance, whether "sufficient scientific evidence" exists to warrant the maintenance by a Member of a particular SPS measure may, of course, and should, bear in mind that responsible, representative governments commonly act from perspectives of prudence and precaution where risks are irreversible ...." 68
Sufficient scientific evidence 4.56 Canada noted that in addition to Australia's alleged import risk analysis (paragraphs 2.27-2.30 refer), various studies and reports have considered issues relevant to the matter in dispute. In December 1992 the Working Group on Aquaculture, a Commonwealth/State/Territory Group commissioned background documents for discussion by the Australian and New Zealand Fisheries and Aquaculture Council. Technical Paper No.2, "Relationship Between Wild Fisheries and Aquaculture", studied the major positive and negative interactions between wild-fisheries and aquaculture. Possible objectives and recommendations were made, including in the areas of marketing, co-operation, education, environment, government and management. Technical Paper No.3, "Quarantine, Health and Movement", examined inter alia, the importation of fish and fish products (including salmonid products), interstate movement and disease control. The Paper set up a list of priorities which included the principles for the development of appropriate protocols for the importation of fish and fish products from overseas. The technical papers were prepared by consultants as background papers for the Draft National Strategy on Aquaculture. 4.57 In September 1994, the New Zealand Ministry of Agriculture and Fisheries Regulatory Authority published a report on "The Risk of Introducing Exotic Diseases of Fish into New Zealand through the Importation of Ocean-caught Pacific Salmon from Canada". The "1994 New Zealand Risk Assessment" on imports of wild, ocean-caught Pacific salmon from Canada concluded that "the overall risk of introducing diseases of salmon through the vehicle of headless, eviscerated, wild, ocean-caught Pacific salmon, appropriately certified by the Canadian Government authorities as to origin and grade, is negligible and poses no threat to either New Zealand's wild and farmed salmonid stocks or to non-salmonid fish stocks". 4.58 The Australian Quarantine and Inspection Service (AQIS) in 1992 commissioned a review of Australia's aquatic animal quarantine policies as a basis for a review by AQIS of its quarantine policies and procedures. The review was conducted by a scientific working party led by M.J. Nunn of the Bureau of Resource Sciences. Its report, "Aquatic Animal Quarantine in Australia - Report of the Scientific Working Party on Aquatic Animal Quarantine" (the "BRS Report") was released in 1995. This report concluded, inter alia, that the present restrictions on the importation of salmonid flesh for human consumption could not be justified and should be revised. The report also made a number of recommendations for AQIS to consider, including that: salmonid fish should be individually inspected for evidence of muscle, skin, visceral lesions or abnormalities, and should be certified as free of such by a competent government authority; unless other safeguards are taken to minimize possible risks, salmonid fish should be imported as eviscerated, filleted flesh to minimise possible contamination by exotic pathogens; databases on several aspects of aquatic animal health and disease should be developed; and that research was needed, for example, in regard to the inactivation of pathogens (by heat). 4.59 In order to facilitate the above-mentioned BRS Report, a consultant was commissioned to produce a detailed independent review of the scientific literature and Australian quarantine policies and practices for aquatic animals and their products. "Australian Quarantine Policies and Practices for Aquatic Animals and their Products: a review for the Scientific Working Party on Aquatic Animal Quarantine", by J.D. Humphrey, Bureau of Resource Sciences, was distributed in 1995 (the "1995 Humphrey Report"). This report concluded that there was little evidence to support a case that the importation of products derived from aquatic animals destined for human consumption presented a risk of establishment of exotic pathogens in the aquatic environment. It concluded that an inconsistency currently existed whereby fresh or frozen products derived from finfish other than salmonids might be imported without specific quarantine restrictions, whereas salmonid flesh was prohibited unless treated in a manner to inactivate potential pathogens. It also concluded that the current process of heating salmonid fish to inactivate potential exotic pathogens did not have a rational basis in view of the thermal stability of a number of pathogens of high quarantine importance, especially at the lower temperature ranges. 4.60 In response to requests for market access for salmon from Australia and the United States, New Zealand undertook an analysis of disease risks from wild and aquacultured salmonid products from a wide range of countries, issued in September 1997. The "1997 New Zealand Risk Analysis" considered in particular headed, gilled and eviscerated salmon, and included both a qualitative and a quantitative assessment. One conclusion of the quantitative assessment was that the upper 95 per cent confidence limits for the probability of Aeromonas salmonicida introduction per tonne of head-off, eviscerated, commercially-harvested, wild Pacific salmon from North America was 2.27 x 10-9 and for farmed Atlantic salmon from Norway is. 5.48 x 10-8. New Zealand concluded "[c]onsidering that the probability of an aquatic animal disease being introduced into New Zealand through imports of the commodity is likely to be negligible for most diseases and very low for others, continuing a prohibition on imports is inappropriate." 69 (emphasis in the original) 4.61 Australia observed that the studies referred to by Canada did not reflect official government policy. In December 1988, Australian government policy objectives on quarantine were set out in "Australian Quarantine - Looking to the Future: a Government policy statement", known as the "Cook Statement". This statement sets out Australia's long-term quarantine policy fundamentals and organization. 4.62 In October 1996, a report on "Australian Quarantine - A shared responsibility" was published by the Department of Primary Industries and Energy. This document (the "Nairn Report") set out a series of recommendations to the Australian Government. Following these recommendations, a program of aquatic quarantine reviews was established. A National Task Force on Imported Fish and Fish Products was commissioned by the Australian Government to prepare a paper that would enable a coordinated response to several current aquatic animal health issues. The "Task Force" had representatives from the Federal and State levels of the Government, industry, recreational fisheries, conservation groups and the scientific community. "A Report into the implications arising from aquatic animal imports", also called the "Report of the National Task Force", was published in December 1996. In August 1997, the Government's response to the Nairn Report and the Report of the National Task Force was published as "Australian Quarantine: A Shared Responsibility - The Government Response". This document set out current Australian quarantine policy. 4.63 Australia also contended that the economic study by the Industry Commission on "Australian Atlantic Salmon - Effects of Import Competition", dated 20 December 1996, was highly pertinent. 4.64 More importantly, Australia indicated that it was the practice of the Australian government to commission studies by consultants at the policy formulation stage. It was also the practice of the Australian government, at the policy development stage, to commission draft reports containing recommendations designed to stimulate public response. These reports often made proposals for change, which resulted in public responses by all stakeholders. However, official decision makers often rejected the draft recommendations or accepted them only partially or in modified form. The various studies and reports cited by Canada, and the recommendations they contained, had to be seen in this light. Furthermore, Canada had selectively quoted from these reports, giving an inaccurate rendition of factual and scientific circumstances. Nor had these reports been subject to the same scientific scrutiny as the Final Report. 4.65 Canada argued that the Humphrey Report, the BRS Report, and Technical Paper No. 3, all commissioned by Australia, represented thorough scientific analysis and opinion that together constituted significant evidentiary material before the Panel. These reports concluded that there were no confirmed examples of diseases that had been established in aquatic animal populations as the result of the introduction of fresh or frozen product from aquatic animals including salmonids; that there was little scientific evidence to support a case that the importation of products derived from aquatic animals including salmonids destined for human consumption presented a risk of establishment of exotic pathogens in the aquatic environment; that evisceration of fish was a reliable means of preventing the spread of aquatic animal pathogens through the international trade in aquatic animals; and that a continued ban on the importation of uncooked salmonid products was scientifically difficult to justify. The reports showed that Australia's measure was without scientific foundation. Australia had not questioned the credibility of the scientific analysis and conclusions contained in the reports. Nor had Australia presented any alternative scientific evidence that contradicted the conclusions contained in the reports. Rather, Australia discredited these reports only because they did not represent official government policy. To continue with Australia - Measures Affecting Importation of Salmon: Section 4.66 60 Final Report, p.48 and pp.251-255. 61 Wooldridge, Transcript, para. 107. 62 Paragraph 6.91. 63 Final Report pp. 137, 157, 175, 165, 191, 197, and May 1995 Draft Report, p.196. 64 Op. cit, para. 180. 65 Ibid., para. 193. 66 Article 2.1 of the SPS Agreement: "Members have the right to take sanitary and phytosantiary measures necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent with the provisions of this Agreement." 67 Op. cit., para. 180. 68 Ibid., para. 124. 69 M. Stone, S. MacDiarmid, and H. Pharo, "Import Health Risk Analysis: Salmonids for Human Consumption", New Zealand Ministry of Agriculture Regulatory Authority, 1997, p. 6. |
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