Every time I think about SPS Agreement Article 5.1, as we have been in relation to the Hormones II AB report, the following question occurs to me: Why is there an international trade rule requiring SPS measures to be based on a risk assessment? Put another way, what is the purpose of this provision?
I suppose one way to answer these questions is that certain U.S. industry folks wanted the provision as a way to pry open the European beef market. That may not be the whole story, but I'm pretty sure I've heard this mentioned at some point as part of the explanation.
But aside from that political explanation, what is the best way to characterize the provision's purpose based on its terms? I see two possibilities (there may be others):
-- Article 5.1 is about promoting efficient, effective regulation ("good governance"). SPS measures with no scientific basis are not efficient, so we prohibit them.
-- Article 5.1 is a proxy for rooting out disguised protectionism. National Treatment rules can be ineffective in some situations, and therefore we have come up with a way to uncover hidden protection, as sham SPS measures with no scientific basis are sometimes used to protect domestic products.
Is it one of these? Something else entirely? I'm curious to hear people's thoughts on this.
