Panel and Appellate Body have faced the question as to what constitute an SPS measure is based on scientific principles or how to show that an SPS measure is based on scientific principle. Up to India –Agricultural Product case, Panel and Appellate Body see that Article 2.2 should be read together with Article 5.1. That means, in order to show that a measure is based on scientific principle a Member has to show the existence of a risk assessment under Article 5.1. I do believe this understanding by Panel and Appellate Body is an error.
This article will provide a proper interpretation of the enterprise of Article 2.2 of the SPS Agreement and its relationship with the other provisions in the SPS Agreement. Article 2.2 recognizes two regimes of SPS measures (1) SPS measures that are based on scientific principles and (2) SPS Measures that are not based on Scientific principles. As to the adoption of SPS measures that are based on scientific principle, the second prong under article 2.2 and its ancillary obligations are applied and for the adoption of measures that are not based on scientific principle, by the virtue of the phrase ‘except as provided for in paragraph 7 of Article 5’ in Article 2.2, the first sentence of Article 5.7 is applied. As to the maintenance of measures that are based on scientific principle, the third prong of Article 2.2 applied and for the maintenance of SPS measures that are not based on scientific principle, i.e., that subject to the first sentence of Article 5.7, by the virtue of the phrase ‘except as provided for in paragraph 7 of Article 5’ in Article 2.2, the second sentence of Article 5.7 is applied.
For both regimes, the first prong under Article 2.2 is applied in the application of SPS measure, i.e., that a measure shall be applied only if necessary.