Insufficiency of the GATT. 1947 Rules and the Standards Code The rules of GATT 1947 were insufficient in several respects to address the problem of the increasing use of SPS measures to restrict trade in agricultural and food prod- ucts. First, GATT disciplines on national regulations focus on prohibiting discrimination against imported products. Thus, the rules do not catch non-discriminatory SPS mea- sures that have trade restrictive effects. Most SPS measures apply not only to imports but also to domestic products. For this reason, they often escaped GATT disciplines. Second, the exception provided in Article XX(b) to the usual GATT rules for mea- sures necessary to protect human, animal or plant life or health does not contain de- tailed rules disciplining the use of such measures. For example, no risk assessment is required as a basis for a health measure, nor are Members required to publish their pro- posed health measures in advance. Lastly, there is no recognition in the GATT of the right of governments to enact regulations for the protection of human, animal and plant life or health in their territories. Instead, health measures are seen as an exception to the usual GATT disciplines and thus the government imposing the measure bears the burden of proving that it falls within the scope of the exception provided in Article XX(b). The Standards Code also had certain inherent shortcomings that limited its effective- ness in disciplining the use of regulations for the protection of human, animal and plant life and health as barriers to trade. First, it was only binding on its 32 signatories, thus excluding the majority of GATT Contracting Parties from its rules. Second, it did not di- rectly apply to non-product-related processes and production methods (“NPR-PPMs”).17 Thus, regulations on how a specific product was produced fell outside its scope and were dealt with in terms of the usual GATT disciplines. Third, the dispute settlement mecha- nism created in the Standards Code, like that in GATT 1947, required consensus among WTO Members for the establishment of a panel or technical expert group to review a complaint. It was thus possible for a Member whose regulation was being challenged to block the establishment of a panel or review group. Further, even if review of the measure were not blocked, the findings of the relevant panel or review group had to be adopted by consensus of the signatories to the Standards Code in the Committee on 16 Xxxxx discusses a few cases where agre...
