Obtain Information Necessary. Article 5.7 further prohibits the maintenance of a provisional measure unless a Member “seeks to obtain the information necessary for a more objective assessment of the risk.” The term “more objective assessment” seems to imply that there must have been an original evaluation of the risk before the provisional measure was imposed, although this need not have been altogether objective.349 The Member is then required to try to gather the information necessary to enable it to conduct a proper risk assessment that would meet the requirements of Article 5.1–5.3. In Japan—Agricultural Products, Japan argued that the requirement to seek additional information was met by gathering information through the experience of the successful importation of varieties, specifically by requiring exporting countries to submit data when 344 The argument that the precautionary principle, to the extent that it has developed into a principle of customary international law, should guide due interpretation of the SPS Agreement, and particularly Article 5.7, was developed supra, Part II(E)(1). 345 It could perhaps be argued that the Appellate Body seemed to support this high evidentiary threshold for the use of the precautionary principle outside the framework of Article 5.7, to interpret the requirement of “sufficient scientific evidence” in Article 2.2 when it stated that panels should bear in mind that governments act with precaution when serious (irreversible) threats to human health are at stake. Report of the Appellate Body, EC—Measures Concerning Meat and Meat Products (Hormones), supra note 70, ¶ 124, discussed supra note 325. 346 For example, while the Bergen Ministerial Declaration on Sustainable Development in the ECE Region (Bergen, May 16, 1990) required the threat of “serious or irreversible” damage for the application of the precautionary principle (in Article 7), the Convention on the Ban of Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (Bamako, January 29, 1991, 30 I.L.M. 773) incorporates the precautionary principle (in Article 4(3)(f)) without requiring the threat of serious or irreparable harm. Similarly, the Cartagena Protocol on Biosafety (Cartagena, January 28, 2000), not yet in force pending ratification) refers only to “potential adverse effect.” Both the latter conventions specifically relate to threats to humans as well as the environment, which could explain the lower threshold. See further X....
