WORLD TRADE
ORGANIZATIONG/SPS/GEN/324
17 June 2002
(02-3356)
Committee on Sanitary and Phytosanitary Measures Original:  Spanish
INDONESIA – RESTRICTIONS ON THE ENTRY OF MILK PRODUCTS
BECAUSE OF FOOT-AND-MOUTH DISEASE
Submission by Argentina
A. INTRODUCTION
1. As a result of the outbreak of foot-and-mouth disease (FMD) in the Argentine Republic in
2001, unjustified sanitary measures have led to foreign market access restrictions on a number of
Argentine products.
2. Among these measures is the current ban on exports of milk products to Indonesia, which is
inconsistent with Articles 2.2, 3.3, 5.1, 5.6, 7 and related Articles of the SPS Agreement, the reasonsfor which are set out below.
B. 
DISCIPLINES DERIVING FROM THE SPS AGREEMENT
3. This section provides a brief description of the disciplines deriving from the SPS Agreement
that are relevant to the case in question:
(a) Scientific evidence  – Risk assessment
4. One of the fundamental principles of the SPS Agreement is that sanitary and phytosanitary
measures should be based on sufficient scientific evidence (Article 2.2) in order to ensure that they are
not used as unjustified restrictions on trade.  On the basis of the objectivity provided by science, the
application of this type of measures is thus disciplined in order to avoid discretionary application by
Members that would unjustifiably restrict international trade.
5. This basic principle is intrinsically related to the obligation to base sanitary and phytosanitary
measures on an assessment of risks (Article 5.1).  Indeed, this relationship between the two concepts
(scientific evidence and risk assessment) has been widely recognized in WTO precedent.
(b) Harmonization
6. Another principle enshrined in the SPS Agreement is the widest possible harmonization of
sanitary and phytosanitary measures, on the basis of international standards, guidelines and
recommendations where they exist.  To that end, both the preamble to the SPS Agreement andArticle 3.1, 3.4 et seq. refer to harmonization as a trade facilitation instrument and encourage
Members to participate in international technical fora (CODEX, OIE, IPPC) in order to promote the
development and review of standards.
7. Article 3.2 of the SPS Agreement stipulates that sanitary and phytosanitary measures which
conform to the international standards and guidelines or recommendations shall be deemed to benecessary to protect human, animal or plant life or health, and presumed to be consistent with the
relevant provisions of the SPS Agreement and the GATT 1994.  This presumption of consistency is aG/SPS/GEN/324
Page 2
premium granted by the SPS Agreement to Members that base their measures on international
standards.
8. If Members should decide to depart from the standards provided by the international rules of
reference in order to establish a sanitary or phytosanitary measure, the presumption of consistency
disappears, and the Member in question must provide sufficient scientific evidence (including thecorresponding assessment of risks) to justify the measure it wishes to introduce (in accordance with
Article 3.3 of the SPS Agreement).
9. Finally, it is important to point out that according to past WTO legal rulings, both the panels
and the Appellate Body consider the said provisions as the scientific parameters to be taken into
account in settling disputes over whether or not a sanitary or phytosanitary measure is consistent with
the obligation set out in the SPS Agreement.
(c) Proportionality
10. Article 5.6 of the SPS Agreement requires Members to adopt proportionate measures.  This
principle is respected when, within the range of suitable alternative measures to achieve the
appropriate level of protection, Members implement the measure which is the least trade restrictive.
C. 
INTERNATIONAL ANIMAL HEALTH CODE OF THE INTERNATIONAL OFFICE OF EPIZOOTICS (OIE)
11. The international reference body in the field of animal health is the International Office of
Epizootics (OIE).  The Office approved the Internat ional Animal Health Code (hereinafter "the OIE
Code"), Chapter 2.1.1 of which sets out the regulations relating to foot-and-mouth disease.
12. To begin with, the said Chapter sets out the conditions governing the categorization of
countries/zones according to their sanitary status.  It goes on to establish the products and by-products
considered to present a risk of transmitting the FMD virus.  Finally, it lays down the requirements tobe imposed by the sanitary authorities of the im porting country with respect to FMD, taking into
account two variables:  the sanitary status of the product's country of origin and the sanitary risk
posed by the product in question.
13. Details are provided below of the requirements that may be imposed by the sanitary
authorities of countries importing milk products, depending on the sanitary status of the product'scountry of origin:
Article 2.1.1.25
When importing from FMD free countries or zones (where vaccination either
is or is not practised), Veterinary Administrations should require:
for milk and milk products intended for human consumption and for products
of animal origin (from FMD susceptible an imals) intended for use in animal feeding
or for agricultural or industrial use
the presentation of an international veterinary certificate attesting that these
products come from animals which have been kept in the country or zone since birth,or which have been imported from an FMD free country or zone (where vaccination
either is or is not practised).G/SPS/GEN/324
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Article 2.1.1.26
When importing from FMD infected countries or zones, Veterinary
Administrations should require:
for milk and cream
the presentation of an international veterinary certificate attesting that:
(1) these products:
(a) originate from herds or flocks which were not subjected to any
restrictions due to FMD at the time of milk collection;
(2) the necessary precautions were taken after processing to avoid contact of
the products with any potential source of FMD virus.
Article 2.1.1.27
When importing from FMD infected countries or zones, Veterinary
Administrations should require:
for milk powder and milk products
the presentation of an international veterinary certificate attesting that:
(1) these products are derived from milk complying with the above
requirements;
(2) the necessary precautions were taken after processing to avoid contact of
the milk powder or the milk products with any potential source of FMD virus.
D. ANALYSIS OF LEGAL CONSISTENCY
14. The access restrictions imposed by the Indonesian authorities are inconsistent with the
disciplines derived from the SPS Agreement, for the following reasons:
(a) Harmonization – Scientific evidence.
15. As mentioned in section C, various articles of the OIE Code stipulate that the sanitary
authorities of importing countries must  accept milk products, if the sanitary authority of the exporting
country is able to provide certification of the requirements that have been expressly introduced, whichvary depending on the sanitary status of the  product's country of origin.
16. In spite of this, the Indonesian authorities have prohibited the entry of milk products from
Argentina, without giving the National Agricultur e and Food Quality and Health Service (SENASA)
the opportunity to certify the requirements set forth in the aforementioned Articles.
17. As already stated, Members may depart from international parameters if they can supply
sufficient scientific evidence to justify the measure in question.  In this case, the Indonesian
authorities have not produced any evidence to just ify imposing stricter requirements than those
provided for in the OIE regulation, which means that the draft resolution is inconsistent with
Article 3.3 of the SPS Agreement.G/SPS/GEN/324
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18. Similarly, the lack of scientific evidence mean s that there is a clear inconsistency with the
obligation laid down in Articles 2.2 and 5.1 of the SPS Agreement.
(b) Proportionality
19. Argentina considers that the ban on imports of milk products is disproportionate to the
objectives pursued, as the Indonesian authorities have an alternative measure at their disposal which isless restrictive to trade while nevertheless ensuring the appropriate level of protection and there is no
evidence to suggest otherwise.
20. This measure is the acceptance of the various certification alternatives, duly described in
section C (pursuant to the OIE Code).
21. Consequently, the Indonesian restrictions are inconsistent with Article 5.6 of the
SPS Agreement.
E. 
REQUEST BY ARGENTINA
22. In view of the above, Argentina requests the Indonesian Government to provide sufficient
scientific evidence to support its departure from the international reference parameters, in conformity
with Article 3.3 of the SPS Agreement; failing this, it should follow the recommendations provided in
the aforementioned OIE International Animal Health Code.
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