《卫生措施协定》下食品贸易与公共健康的协调

【作者】 刘俊敏；

【导师】 沈四宝；

【作者基本信息】 对外经济贸易大学 ， 国际法， 2007， 博士

【摘要】 近年来疯牛病、“非典”、禽流感等传染病给人类、动植物的生命或健康带来的严重威胁,使公共健康问题越来越受到关注。科技的进步、经济的发展不断推动国际贸易向纵深发展,又使人类和动植物面临更多的安全挑战,贸易自由化将一个国家内部发生的公共健康危机迅速国际化。于是,以保护公共健康为由进行贸易限制,制定和实施卫生与植物卫生措施就成了WTO成员纷纷采取的重要举措,而这些限制措施与各成员在WTO下的贸易自由化的义务发生了冲突。WTO《实施卫生与植物卫生措施协定》内容主要涵盖食品安全、动物健康与植物健康三大领域,与国际贸易、公共健康问题密切相关。协定旨在既维护WTO成员政府提供其认为适当的健康保护水平的主权,又要确保这些权利不为保护主义目的所滥用并不产生对国际贸易的不必要的障碍。因此,如何在该协定下协调贸易自由化与公共健康利益的冲突,是各个WTO成员都面临的研究课题,也是本文研究的目的所在。本文运用比较分析法、案例分析法等方法,全面分析比较协定主要条款的内涵,并据其在争端解决案件中的适用和发展情况,得出解决食品贸易与公共健康之间的冲突问题必须坚持“公共健康优先于贸易”的理念这一结论,并力求探讨协调这一冲突的根本途径。本文的研究主要通过八个组成部分展开,引言部分主要导出本文研究的理论与现实意义,正文分为六章,最后得出研究结论。研究内容和主要观点如下:世界地域辽阔,动植物疫情复杂且经常变化,WTO各成员的卫生与植物卫生措施又往往受其政治经济发展水平、地理气候环境以及公民文化素质等因素的影响。围绕着保护公共健康和促进贸易自由化,《实施卫生与植物卫生措施协定》规定了一系列规则,期望通过建立一个规则和纪律的多边框架来指导各成员的卫生与植物卫生措施的制定与实施。但由于WTO各成员的自身条件不同,对于协定的执行情况也有很大差异,协定在实施的过程中遇到各式各样的困难:发达国家由于技术水平高,经济实力强,能够自如地利用协定的制度漏洞,将为保护公共健康所“必需的”的卫生与植物卫生措施异化为一种新的贸易保护工具,违背了协定贸易限制最小化的初衷;发展中国家限于技术经济各方面条件,面临着遵从协定的巨大困难,在国际贸易中处境极为不利;科学技术的不断发展产生的新食品如转基因食品、辐照食品等也为协定的实施提出了新挑战。民以食为天。食品安全问题直接关系公众健康,而食品安全事件的屡屡发生加重了各国消费者的心理负担,对食品安全提出了越来越高的要求,也促使政府制定严格的食品安全技术法规和标准。尤其是发达国家,已从重视终端产品的品质发展为重视食品生产的全过程,如此,一来可以很好地保护其领域内的公共健康,二来又有效地阻止或限制了外来食品的进入,保护了国内产业发展。本文深入分析了食品贸易对公共健康正负两方面的作用、转基因食品贸易对公共健康的利弊因素以及动物疫病、动物福利对食品贸易和公共健康的影响,并对协定的特有原则如科学依据、风险评估及国际协调原则在生物科学领域内应用的困难作了探讨。解决食品贸易与公共健康之间的冲突问题需要深入分析背后的原因,本文通过研究发现,这一冲突的症结在于保护人权和经济利益的矛盾,而冲突存在的根本原因则是各国经济技术发展的不平衡。但是,贸易与公共健康之间的互动关系使二者之间具备一定的协调基础,可以从国内国际两方面加以协调,并且国际环境条约、世界卫生组织及世界贸易组织的法律规则也都提供了协调二者关系的国际法律依据,甚至WTO框架下的知识产权协定的发展为之提供了可资借鉴的范例。本文主张解决这一冲突的根本途径在于缩小发展中国家与发达国家在经济技术方面的差距,走可持续发展之路。国际贸易中的当事方,一方为了保护公共健康而不断提高境内的卫生与植物卫生保护水平,无疑会对对方造成利益损害,因之而起的磨擦会不断增加,需要WTO争端解决机构(DSB)加以解决并对协定的条款做进一步阐释,以使协定下的食品贸易与公共健康的冲突得以协调,而且,DSB已经在处理涉及公共健康的贸易纠纷方面积累了一些经验。本文分析了涉及协定涵盖的三大主要方面--食品安全、动物健康和植物健康的经典案例,即美加诉欧盟荷尔蒙牛肉案、加拿大诉澳大利亚限制鲑鱼进口措施案和美国诉日本农产品品种测试案。通过分析发现,是否具有科学依据、进行风险评估、确定适当的保护水平以及是否符合透明度等是WTO成员在采取或维持卫生与植物卫生措施时应当考虑的主要因素,否则,极易引发国际贸易争端并在争端解决过程中处于不利地位。此外,专家组和上诉机构对协定条款的解释丰富和发展了协定的内容,在协调WTO成员自由贸易与公共健康保护方面体现出了公共健康优先于贸易的价值取向。依法维护公共健康、保证社会安定有序、使每个人都能公平享有社会发展的成果是构建和谐社会的重要内容,遵从协定要求,保护人类、动植物的生命或健康,追求贸易、经济、生态环境和社会效益相统一的可持续发展,对于我国构建和谐社会具有重要意义。但是,我国的相关立法不完善,标准低,与协定要求存在一定距离,执法中也存在一些问题,导致一方面我国的出口产品难以逾越欧美等发达国家的“高门槛”,经常遭遇退货或产品被销毁,另一方面低标准形成易于进入的环境,无法阻挡国外产品包括“问题”产品的进口,对国内公共健康造成威胁。本文提出必须借鉴欧美国家的经验,完善立法并努力提高我国出口产品的竞争力;正确理解和把握协定的要求,确定适当的卫生与植物卫生保护水平,依据国际标准制定卫生与植物卫生措施,并积极参与国际标准的制定;坚持以人为本,处理好贸易与公共健康的关系。更多还原

【Abstract】 People have paid more and more attention to public health issues because of infectious diseases, such as mad cow disease and“SARS”imposing serious threats to the health and life of humans as well as animals and plants. Scientific and technological progress, and economic development have constantly promoted in depth development in international trade, and humans, animals and plants will be facing more challenges to their security. Trade liberalization has made it possible for the public health crisis that has occurred at home to become a world-wide issue immediately. Thus, the grounds for trade restrictions to protect public health, and the formulation and implementation of sanitary and phytosanitary measures, have become an important measure taken by the WTO members. These restrictive measures are in conflict with the member’s obligations to Trade liberalization under WTO. The“Application of Sanitary and Phytosanitary Measures Agreement”(Agreement on the Applications of Sanitary and Phytosanitary Measures) content covers food safety, animal health and plant health in three major areas of international trade, and public health issues are closely related. The Agreement is intended both to maintain that the WTO members and the government provide the appropriate level of health protection of sovereignty, and also to ensure that this agreement is not abused for protectionist purposes of international trade by creating unnecessary obstacles. Therefore, in order to co-ordinate the trade liberalization agreements with the public health interests, the WTO members are facing various research topics, and that is the purpose of this paper.In this paper, using comparative analysis, case analysis and other methods, more comprehensive analysis of the main provisions of the agreement content is provided. According to its dispute settlement cases the application and development reached to resolve the conflict between trade in food and public health must adhere to the“public health priority in trade,”and seeks to explore the fundamental way to coordinate this conflict. The study was carried out in eight components: theintroduction of this paper examines mainly theoretical and practical significance, the text is divided into six chapters, and ends with the final conclusion of the study. Contents and main points are as follows:The world is vast in area, and is a plant and animal disease complex and is constantly changing. WTO’s sanitary and phytosanitary measures are often subject to political and economic development, geographical and climatic environment, and the quality of civic and cultural factors. Created to protect public health and to promote trade liberalization, the“Application of Sanitary and Phytosanitary Measures Agreement”provides a series of rules, and hopes to establish a multilateral framework of rules and discipline to guide all members of the sanitary and phytosanitary measures in the formulation and implementation. However, as the WTO members’own conditions differ a lot from one another, the implementation of the Agreement is also has a great differences. The Agreement encountered all kinds of difficulties in the implementation process because the developed countries with a high level of technical and economic strength can easily use loopholes in the agreement to avoid sanitary and phytosanitary measures which will protect public health and are necessary as a new trade protection tools to minimize trade restrictions against the agreements in the first place. developing countries, which are limited to the technical aspects of developing economic conditions, and face enormous difficulties to comply with the agreement, are in the most disadvantaged position in international trade; and in scientific and technological development of new foods such as genetically altered foods. Irradiated food will pose a new challenge for the implementation of the Agreement .Food supply. Food safety issues are directly related to public health. The frequent occurrence of food safety has increased the psychological burden on the consumer countries and at the same time has increased demands of for food safety, and has prompted the government to enact stringent food safety regulations and technical standards. Especially in developed countries, importance of attention to the development of end-product quality in the entire process of food production, on one hand, is good for protecting the public health, while on the other hand effectivelyprevents or limits the entry of foreign food to protect the domestic industry development .This is a paper-depth analysis of the positive and negative aspects of the food trade on the public health, the role of GM food trade in the pros and cons of public health and animal diseases. It also covers animal welfare and public health effects of the food trade, and the unique principles such as the scientific basis for agreement. Risk assessment and the principles of international coordination in the field of applied biological sciences difficulties is discussed.Resolving the conflict between trade in food and public health requires in-depth analysis. This paper found that the crux of the conflict lies in the protection of human rights versus economic interests, and that the imbalance in economic and technological development are fundamental reasons for the conflict. However, a legal basis for international co-ordination between trade and public health has been provided by interaction between these two groups, both from the domestic and international perspectives, and, from the international environment treaties of WHO (world Health Organization)and WTO, who have provided a legal basis for international co-ordination between the two groups. The TRIPs Agreement has also provided a development model to be used as reference. This paper argues that the fundamental way to resolve this conflict is for both developing and developed countries to narrow the gap in the economic and technological sectors and follow the path of sustainable development.For International Trade parties, if one side constantly improve the level of protection of health and plant health to protect public health. No doubt, this will cause damage to the other side; the atmosphere will continue to increase friction between the parties. Which needs the WTO Dispute Settlement Body (DSB) to resolve and further explain the terms of the agreement. DSB has gained some experiences in dealing with trade disputes relating to public health. This paper analyzes the three main areas covered by the agreement -- involving food safety, animal health and plant health in a classic case the United States and Canada v. the EU beef hormone, Canada v. Australia restricts salmon imports and the United States v. testing of agricultural products in Japan. The analysis revealed that the following factors should be takeninto account when the WTO members decide whether to adopt or maintain each sanitary and phytosanitary measure:●does the measure have a scientific basis?●has a risk assessment been conducted to determine the appropriate level of protection required, and if so, does the measure proposed meet this requirement?●have all the processes used in the assessment of this measure provided the degree of transparency required by the WTO members?If not, the protective measure could trigger international trade disputes and the WTO could be at a disadvantage in any resultant dispute settlement process. In addition, the explanation of the terms of the agreement made by the WTO expert panel and appealing body, has enriched and developed the content of the agreement. The co-ordination of public health protection with the free trade of WTO members reflects the orientation and value of public health priority in trade. To safeguard public health and ensure social stability and order so that everyone can enjoy the fruits of social development is an important part of building a harmonious society. It is of great importance for China to build a harmonious society to comply with the agreement, protect human, animal and plant health, and to pursue trade, economic, ecological and social benefits in terms of sustainable developments. However, the relevant legislation is imperfect, low standards exist, agreements are required for certain time frames and there are also some problems in law enforcement. One insurmountable leading problem in China’s export market to developed countries, such as Europe and the United States, is the“high threshold”of return products which were destroyed or suffered frequent easy hand access resulting in the formation of low environmental standards. China also can not stop foreign products, including a“problem”on the import of domestic public health threat. In this paper, Europe and the United States must learn from the experience and improve legislation and efforts to improve the competitiveness of China’s export products, and correctly understand and grasp the requirements of the Agreement to determine the appropriate level of sanitary and phytosanitary protection. And they must do this according to international standards sanitary and phytosanitary measures, while activelyparticipating in international standard-setting, and adhering to people-centered handling of the relationship between trade and public health.更多还原