Appropriate Level of Protection: The Most Misconceived Notion of WTO Law

Abstract

Abstract Simple and elegant as a theoretical concept, an appropriate level of sanitary or phytosanitary protection (ALOP) has proven complicated to implement in World Trade Organization (WTO) dispute settlement. While the Appellate Body has insisted that ALOP must be defined with sufficient precision to apply the relevant provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), ‘high or conservative’ remains as precise a formulation of ALOP as one can get. Despite the Appellate Body’s clear guidance that SPS measures are not to be confused with ALOP, panels – including the Appellate Body – have routinely mistaken one for the other. The most to suffer has been Article 5.5 of the SPS Agreement, which prohibits ‘arbitrary distinctions’ in ALOPs applied ‘in different situations’. By substituting differences in SPS measures for differences in ALOPs and finding two different situations, i.e. two ALOPs, where there is only one, the jurisprudence has eviscerated this provision of its meaning and converted it into a peculiar version of the least-trade-restrictive-measure requirement. This article takes stock of the panel and Appellate Body jurisprudence on ALOP and offers some thoughts, de interpretatione ferenda, on the direction that future jurisprudence should take.