Judicial Approach to Precautionary Principles under SPS Agreement

The precautionary principle representing environment protectionists’ viewpoints is to help regulatory authorities make policy decisions where claims of hazard are uncertain and decision-makers face the dilemma either to take immediate precautionary action or delay such action until scientific uncertainty concerning these hazards is eliminated or reduced. While there has been much academic commentary and debate on the status of the precautionary principle as a principle of international trade law, the role of the precautionary principle in international judicial society is as yet equally unclear. This paper reviews the judicial interpretation and application of the provisions concerned made by the WTO dispute settlement body in relation with the precautionary principle under the SPS Agreement to seek the more efficient and realistic approach to this principle for the proper application under the SPS agreement. Even though it is arguably possible for the gap between the provisional measures under SPS Agreement and the precautionary principle to be reduced through the judicial clarification of the provisional measures under Article 5.7, of the SPS Agreement introduced the precautionary principle to the trade sector with its own limited version, as a "qualified exemption" from the scientific obligation of the member countries requiring them to base their SPS measures on scientific principles and not to maintain such measures without sufficient scientific basis. This provision is to limit the abilities of member countries to maintain high levels of sanitary or phytosanitary measure without sufficient scientific evidence to support that measure. While Article 5.7 recognizes a member countries’ autonomy to enforce precautionary measures that may have restricting effect on market access in the face of insufficient scientific evidence, such more limited version of precautionary approach could block the chance of member countries’ abuse of the precautionary principle as a protectionist tools for the protection of domestic market by relying on scientific uncertainty. Adopting the limited version of precautionary principle to be applied and requiring positive risk assessment andscientific review of the pending risks, the WTO dispute settlement body seems to have made some contribution to materialize the dual objectives of the SPS Agreement, that is, to prohibit member countries from maintaining SPS measures lacking sufficient scientific justification, while simultaneously make them preserve the provisional right to limit market access until more relevant information is available. For the more proper incorporation of the precautionary principle into the WTO mechanism, considering the inherited ambiguity in the term “provisional measures”, it is essentially required to secure the stability and predictability in the application of the Article 5.7 without staining the spirits of the SPS Agreement, for which judicial interpretation and application of the ambiguous science-related terms and provisions which have been treated by the WTO adjudicators but not yet clarified should be established clarified soon.