On the efficiency of health measures and the ‘appropriate level of protection’

Abstract

The concept of ‘appropriate level of protection’ (ALOP) runs throughout the SPS Agreement. ALOP reflects the considerable margin of appreciation retained by WTO Members in the application of health and food safety measures and a resigned acceptance of a permanent condition of heterogeneous national regulatory approaches with their accompanying drag on international trade. Importantly, a relevant ‘appropriate level of protection’ functions in a variety of specific tests provided by the SPS Agreement. Use of a particular ALOP permits a more focused check as to whether national health measures are deemed to be violative of international trade obligations. The concept of ALOP builds on, and assumes the existence of, a workable notion of ‘level of protection.’ A level of protection (‘LOP’) can be associated with a particular measure – or with a series of measures operating in concert to address a particular SPS risk. The level of protection expresses the effectiveness of a measure within its broader context (including both physical context and legal context). At times, however, the level of protection of some regulatory alternative will be relevant; at times it is the level of protection of a measure adopted by the exporting country (for purposes of demonstrating equivalence). Finally, ‘level of protection’ may be associated with the general regulatory structure. The various tests incorporated in the SPS Agreement promise a more objective, more precise set of determinations to signal when a Member’s SPS measure must give way to trade considerations. These tests appear technical on their face, involving simple comparisons along fairly discrete dimensions. As many of the more important of these rely on the identification (if not quantification) of the concept of ‘appropriate level of protection,’ they may only be as effective (in the sense of objective, precise and predictable) as the very notion of ALOP admits. Examination of ALOP reveals significant challenges to these expectations. The contradictions and indeterminacies found within the idea of ALOP in turn renders resort to the various SPS Agreement tests problematic. At best, these tests, based on the apparent (though not real) substantiality of the notion of ALOP, permit the SPS Agreement to appear more exact and exacting that it in fact is. In the end, it is more doubtful that the SPS Agreement achieves, other than by accident, an appropriate balance between an appropriate deference to the independent and varied choices made by WTO members in their respective health policies and the maintenance of an open trade system.