National treatment in the SPS Agreement: A sui generis obligation

Abstract

The national treatment principle, as one would expect of one of the core non-discrimination principles in WTO law, plays a key role in disciplining WTO Members’ exercise of their regulatory capacity in the area of sanitary and phytosanitary (SPS) protection, through its incorporation in the WTO's SPS Agreement. This agreement covers a sensitive area of regulation, broadly speaking that of measures to protect human, animal or plant health from food-borne risks or risks from pests and diseases of plants or animals, which may directly or indirectly affect international trade. It lays down what may be seen as a ‘best-practices’ regulatory model to ensure that SPS regulation must comply, in order to minimise its trade restrictive effects while leaving sufficient room for effective health protection. A national treatment rule is an essential part of this model in order to prevent the misuse of health regulation for protectionist purposes. However, the way in which the obligation of national treatment is given form in the SPS Agreement goes beyond an anti-protectionism discipline and is thus rather different from the traditional GATT national treatment rule. One could speak of a sui generis national treatment rule in the SPS Agreement, crafted to meet the exigencies of SPS regulation. This contribution examines the differences in scope and content between the GATT national treatment rule and that contained in the SPS Agreement, in order to elucidate the effect of the national treatment rule in the SPS Agreement on WTO Members’ regulatory autonomy in the politically sensitive area of SPS protection. It starts by identifying the context and scope of application of the SPS Agreement in order to understand the reasons for the particular formulation of the national treatment rule in this agreement, and the circumstances in which it has effect. Thereafter, the framing of the national treatment principle in the SPS Agreement is examined to identify its particularities. The specific elements of the national treatment obligations in the SPS Agreement and their clarification in the case law are discussed to provide more insight into the workings of this obligation in practice. This analysis is conducted against the background of the national treatment obligation in the GATT, in order to highlight the differences. Finally, conclusions are drawn relating the unique nature of the national treatment principle in the SPS Agreement to the particular objectives of this Agreement.