Resumption of Beef Imports from the United States and Issues Concerning the WTO-SPS Agreement
Faculty Fellow, RIETI
Scenarios for a new round of battles
In line with a final report submitted by the Food Safety Commission on December 8, 2005, the Ministry of Health, Labor and Welfare and the Ministry of Agriculture, Forestry and Fisheries on December 12 decided to resume imports of beef from the United States and Canada. For American beef, this marks the lifting of the two-year import ban that has been in place since December 26, 2003 when a cow infected with "mad cow disease " bovine spongiform encephalopathy (BSE), was discovered in the U.S. (see Satoru Taira, "BSE," Hogaku Kyoshitsu No. 301, October 2005 for the background to this decision). According to the FSC report, the difference in the BSE risk associated with consumption of beef imported from the U.S. or Canada and the BSE risk associated with consumption of Japanese beef is deemed to be very small provided that the following import conditions are fulfilled: 1) specified risk materials such as the brain and spinal cord are removed from cattle of all ages and 2) beef must be derived from bovine animals verified to be 20 months of age or younger. Then, the MHLW and MAFF agreed with the U.S. and Canadian governments on these import conditions.
Lifting the across-the-board import ban on American and Canadian beef, however, does not mean that Japan is freed totally from the obligations under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) of the World Trade Organization. This is clearly shown in the attitude of the U.S. government. In his remarks during a news conference subsequent to Japan's decision on the resumption of beef imports, U.S. Agriculture Secretary Mike Johanns indicated that the conditional lifting of the ban that has reopened the Japanese market for American "cattle 20 months of age or younger" is just a starting point, pledging that the U.S. government will continue to negotiate for adoption of internationally recognized standards that allow the export of cattle aged 30 months or younger. Also, U.S. Ambassador to Japan Thomas Schieffer was quoted as saying, "We would ask the Japanese … to try to bring their standards more in conformity with the rest of the world. "These remarks suggest that Japan would be required to justify its import conditions stricter than the international standards in light of the SPS Agreement if such conditions are to be maintained. In recognition of such circumstances, this article considers possible scenarios for a battle over the SPS Agreement.
WTO Members' right to introduce measures stricter than international standards
Article 3.1 of the SPS Agreement calls for adoption of international standards so as to harmonize sanitary and phytosanitary measures among WTO members, and Article 3.2 specifically provides for sanitary or phytosanitary measures which conform to international standards to be presumed to be consistent with the SPS Agreement and the General Agreement on Tariffs and Trade (GATT 1994). However, Article 3.3 provides for the right of WTO members to introduce measures stricter than international standards, if there is a scientific justification, or as a consequence of the level of sanitary or phytosanitary protection a member determines to be appropriate in accordance with the relevant provisions of Article 5. In particular, Article 5.1 demands a risk assessment based on scientific evidence. According to WTO precedents, members' right under Article 3.3 is interpreted as being subject to the same requirement (see para. 177 of the Appellate Body Report on the European Community-Hormones Beef Case).
As international standards for sanitary and phytosanitary measures to prevent BSE, the Terrestrial Animal Health Code issued by the World Organization for Animal Health (OIE) can be cited. Under the latest code as amended in 2005, de-boned skeletal muscle meat from cattle 30 months of age or less is defined as a commodity upon which the government of importing countries should not require any BSE-related conditions. Thus, it is presumed that this is what the U.S. refers to as the international standards. Japan's import condition to set the lower age limit of 20 months or less is believed to be based on the discovery of two suspected BSE cases in which young cattle, aged 21 months and 23 months, are believed to have been infected by the disease. However, the U.S. has said that these two cases have yet to be internationally confirmed as BSE by scientists. Should the U.S. choose to solve the problem through the WTO dispute settlement mechanism, the crucial question would be whether or not Japan can prove its import conditions fulfill the justification requirements under the aforementioned Article 3.3 of the SPS Agreement. It should be also kept in mind that scientific evidence relied on by a country needs to support objectively what the country would like to demonstrate (see paragraph 8.146 of the Article 21.5 Panel Report on Japan-Measures Affecting the Importation of Apples).
Requirements for invocation of precautionary measures
On the other hand, the SPS Agreement also leaves room for Japan to justify its beef import conditions as provisional preventive measures even though research is still continuing on the aforementioned two suspected cases of BSE infection of young cattle and Japan is unable to present sufficient scientific evidence to support the lower age limit of 20 months. Article 5.7 of the SPS Agreement, a provision that embodies the so-called precautionary principle, allows WTO members to provisionally adopt sanitary or phytosanitary measures in cases where "relevant scientific evidence is insufficient." However, "cases where relevant scientific evidence is insufficient" are interpreted as cases where "the body of available scientific evidence does not allow, in quantitative or qualitative terms, the performance of an adequate assessment of risks as required under Article 5.1" (see paragraph 178 of the Appellate Body Report on the above Japan Apples Case). Furthermore, Article 5.7 calls for efforts to collect additional information necessary for risk assessment and review the sanitary or phytosanitary measure accordingly within a reasonable period of time as additional requirements for invocation of the provision. Fulfillment of such requirements is not necessarily an easy task.
On December 29, Hong Kong announced the lifting of an import ban on American beef taken from cattle aged less than 30, whereas media reports say that South Korea will soon begin negotiations with the U.S. for the same move. Should many other importing countries follow suit and resume beef imports in accordance with international standards, political pressure would mount on Japan. At the same time, however, concern over food safety is rising in Japan. Faced with such conflicting pressures from within and outside the country, the Japanese government is left with no other choice but to fulfill its accountability, both internally and externally, presenting sufficient scientific evidence as required by the SPS Agreement.
January 10, 2006
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