Case 75 Australia Measures Affecting Importation of Salmon Canada vs Australia

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Case 7-5Australia Measures Affecting
Importation of SalmonCanada vs Australia
Michael Tu CSA 6470 SUII 2003
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Judicial Body

• World Trade Organization Appellate Body

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Facts

• The Panel was established to consider a
  complaint by Canada regarding Australias
  prohibition on imports of fresh, chilled and
  frozen salmon from Canada under Quarantine
  Proclamation 86A (QP86A), dated 19 February
  1975 and any amendments or modifications thereto.
• Before June 30, 1975, Australia imposed no
  restrictions on the importation of salmonid
  products. OP86A prohibits the importation into
  Australia of dead fish of the sub-order
  Salomidae, or any parts of fish that sub-order
  prior to importation into Australia, the fish or
  parts of fish have been subject to treatment as
  in the opinion of the Director of Quarantine is
  likely to prevent the introduction of any
  infectious or contagious disease, or disease or
  pest affecting persons, animals, or plants.

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Facts

• Director of Quarantine has permitted the entry
  of commercial imports of heat-treated salmon
  products for human consumption as well as
  non-commercial quantities of other salmon
  (primarily for scientific purposes) subject to
  prescribed condition.
• Canada requested access to the Australian market
  for fresh, chilled, or frozen (uncooked salmon).
  Australia performed a risk analysis with respect
  to fresh wild salmon the results of which were
  set forth in a 1996 Final Report (which was
  preceded by a 1995 Draft Report). Pursuant to
  the 1996 Final Report, the Australian Director of
  Quarantine determined to maintain the quarantine.
  The decision relates to both ocean-caught
  Pacific salmon, and other Canadian salmon.

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ISSUE

• By adopting arbitrary or unjustifiable
  distinctions in the levels of sanitary protection
  it considers to be appropriate in different
  situations which result in discrimination or a
  disguised restriction on international trade, the
  Panel found that Australia has acted
  inconsistently with Articles 5.1, 5.5, and 5.6
  and, by implications, Articles 2.3 and 2.3 of the
  Agreement on the Application of Sanitary and
  Phytosanity Measures (the SPS Agreement)

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Decision

• The Panel found that Australia has acted
  inconsistently with Articles 5.1, 5.5, and 5.6
  and, by implications, Articles 2.3 and 2.3 of the
  Agreement on the Application of Sanitary and
  Phytosanity Measures (the SPS Agreement)
• Rational lead to the conclusion that the
  distinction in the levels of protection imposed
  by Australia result in a disguised restriction on
  international trade.

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Rational

• There are three elements that are required for a
  Member to act inconsistently with Article 5.5.
• 1.  the Member concerned adopts different
  appropriate levels of protection in several
  different situations.
• Under Article 5.5, if these situations involve
  either a risk of entry, establishment or spread
  of the same or a similar disease or of the same
  or similar associated biological and economic
  consequences and this irrespective of whether
  they arise from the same product or other
  products.

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• Situations cannot be compared unless they are
  comparable, that is if they present some common
  element(s) sufficient to render them comparable.
  Panel determined that the import prohibition on
  fresh, chilled and frozen salmon for human
  consumption AND the admission of imports of other
  uncooked fish (eel, herring, cod, haddock) and
  live ornamental finfish are different
  situations which can be compared under Article
  5.5 of SPS Agreement.

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• 2. those levels of protection exhibits
  differences which are
• arbitrary or unjustifiable
• The sanitary measures seem to be more lenient
  towards non-salmonids than salmonids. How about
  the disease not detected in salmonids but present
  in non-salomids?
• 3. the measures embodying those differences
  results in
• discimination or a disguised restriction on
  international trade. Panel identified 3 warning
  signals.
• i. The first warning signal considered was the
  arbitrary or unjustifiable differences in the
  level of protection
• In this dispute the arbitrary character of
  the difference in levels of the protection is a
  warning signal that the measure at issue
  results in a disguised restriction on
  international trade

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• ii. The second warning signal considered was the
  rather substantial difference in the level of
  protection between import prohibitions on
  ocean-caught Pacific salmon, as opposed to
  tolerance for imports of herring used as bait or
  of live ornamental finish.
• iii. The third warning signal considered was the
  inconsistency of the SPS measure at issue with
  Articles 5.1 and 2.2 of the SPS Agreement.

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Other Factors Unexplained change between 1995
Draft Report (allow importation of salmon under
certain conditions) and 1996 Final Report
(recommends continuing import prohibition) might
be an inspiration for domestic pressures to
protect Australian salmon industry against import
competition. Panel notice the absence of
controls on the internal movement of salmon
products within Australia compared to the
prohibition of the importation of ocean-caught
Pacific salmon. Panel did not come to a
conclusion on this difference, but considered
that its doubts whether Australia applies
similarly strict sanitary standards.
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Relevancy

• The SPS Agreement states that measures may be
  taken by WTO member states to protect human,
  animal, and plant life and health. Member states
  may protect the life and health of living things,
  but they may not do so as a disguised means for
  restricting international trade, nor may they act
  arbitrarily to unjustifiably discriminate between
  states where identical or similar conditions
  exists.

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• This case is shows that in order to impose trade
  restrictions on agricultural goods, the member
  must show consistency with Article 5.5 of SPS
  Agreement. If your product (apples, oranges,
  beef, pork, etc.) has been discriminated for
  import restriction whereas same or similar
  products are not, an IB manager or the member
  state can challenge and investigate whether the
  restriction is a disguised means for restricting
  trade. Australia might have imposed that
  restriction on Canada in attempts to protect its
  own salmon industry. Therefore, SPS Agreement
  can justify these unjustifiable trade barriers.