[The following is a guest post by Greetika Francis, an alumnus of National Law University, Jodhpur. She is currently working with the Trade Policy division (Ministry of Commerce) under the Government of India.]
Consultations between EU and Russia regarding the latter’s ban on pork and pork products from EU’s territory are currently ongoing.The “EU-wide” ban had been established purportedly because of concerns relating to Swine Fever. At this juncture, it would be pertinent to take a look at the defense routes that may be available to Russia, should the dispute escalate further.
But before proceeding, it behooves us to note two things:
- That the phrase “EU-wide” ban is an incorrect assessment of the ban in place by the Russian Federation. In fact, Russia has specifically imposed only temporary restrictions on the import of live pigs and pork products in respect of products from Lithuania and Poland, and not the whole European Union.
- That Switzerland has also joined this ban, following in the footsteps of China and Belarus. Perhaps, the threat to swine populations is neither as slight nor as easily prevented as EU would have us believe.
Under the SPS Agreement
Titled as “harmonization”, Article 3 of the Sanitary and Phytosanitary Measures Agreement (SPS) states that a measure which is consistent with “international standards, guidelines or recommendations’ shall be deemed to be consistent with the provisions of the SPS Agreement(Para 3) and will be deemed to be necessary to protect human or plant health/life (Para 2). This would mean that if Russia can justify its actions as taken pursuant to OIE’s Terrestrial Animal Health Code (Chapter 15:African Swine Fever), it can rest assured with a win in the case.
Further, Russia seems to be proceeding in the right direction in its Notification to the SPS Committee where it states as follows:
“5. Pursuant to the provisions of Article 4 of the Customs Union Agreement on veterinary-sanitary measures of 11 December 2009, import into the territory of the member states of the Customs Union of controlled goods is carried out in accordance with the Common Veterinary Requirements and shall be accompanied by a veterinary certificate issued by the relevant competent authority of the exporting country. The Russian Federation and the European Union agreed on veterinary certificates on:
- pork meat and raw meat preparations (2006);
- pigs for breeding (2006);
- piglets for fattening (2006); and
- pigs for slaughter (2010).
6. These certificates contain veterinary and sanitary requirements, which shall be complied with, for imports of specified goods into the territory of the Russian Federation to be permitted. As stated in points 4.3 and 4.1 accordingly of the above-mentioned veterinary certificates: “Meat and raw meat preparations were obtained from the slaughter and processing of clinically healthy animals, originating from premises and/or administrative territory officially free from infectious animal diseases, including: African swine fever – during the last three years in the territory of the European Union excluding Sardinia”. Since the European Union failed to guarantee the agreed requirements, import into the territory of the Russian Federation is not acceptable.”
Alternately, Russia could (perhaps on an arguendo footing) attempt justification by the long winding route of Article XX (b). Pursuant to the jurisprudence that has been developed over cases like Korea-Beef and Brazil-Tyres, such a defence would be based on a two-pronged assessment of:
1) Whther the measure is “neccessary” to protect human health/life
2) Whether it is in compliance with the chapeau of Article XX i.e. it should not result in an arbitrary or unjustifiable or disguised restriction on international trade.
Finally, there are certain concerns which may become significant in the course of this dispute:
- Provisions of the Protocol of Accession of the Russian Federation: As in the case of China in the Raw Materials and Rare Earths disputes, it is possible that Article XX (b) may be read to be excluded by virtue of Russia’s undertakings in its Accession documents.
- The Avian Influenza Dispute and its outcome: Since OIE provisions for Avian Influenza and for AFS appear to run parallel, it is possible that the DS-430 Panel Report due in June, 2014 may gain tremendous significance for the outcome of this case.
- Historical aspects of SPS measures’ defence: According to Ben McGrady, it is difficult to defend SPS measures at the WTO, perhaps because of the standard of scientific evidence requirements that must be met to justify a measure
 G/SPS/GEN/1315 available at the WTO Website; Ban on Poland: G/SPS/N/RUS/49 and on Lithuania:G/SPS/N/RUS/48