When Life Gives You Lemons: The ‘Battle of Science’ on the Correct Interpretation of Data on Citrus Black Spot Disease between the European Union and South Africa According to the SPS Agreement

According to Articles 2.2, 5.1 and 5.2 of the Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”), Members need to base sanitary and phytosanitary measures (“SPS measures”) on scientific principles and risk assessment. These provisions have sparked analysis on issues such as how this “risk” needs to be addressed, which “science” Members need to take into account, and what the relationship is between values and science. It is commonly observed that the SPS Agreement leans towards a technical approach to the determination of risk. If socio-economic concerns were to be taken into account in the SPS Agreement, a leeway for Members to introduce protectionist policies would open up. We illustrate with the example of the ongoing citrus dispute between the European Union (EU) and South Africa that the technical approach can likewise be used to shield protectionist policies with an extraterritorial effect. The reason for this is the uncertainty with regards to how science needs to be interpreted in relation to the probability that a disease will be introduced. We conclude that the choice for technical risk does not remedy the “protectionist policy with extraterritorial effect” problem. Rather than debating the options of “socio-economic” risk and “technical” risk only, the WTO Dispute Settlement Body should use disputes such as the one on citrus to develop a more normative approach to “risk” in the SPS Agreement, indicating which kind of “probability” is normatively required to justify SPS measures.

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