WORLD TRADE  
ORGANIZATION  G/SPS/W/246 
30 September 2009 
 
 (09-4589) 
Committee on Sanitary a nd Phytosanitary Measures Original:   Spanish 
  
 
LEGAL FRAMEWORK FOR PRIVATE STANDARDS 
IN THE WTO 
 
Communication from Mercosur (Argentina, Brazil, Paraguay and Uruguay
) 
 
 
 The following communication, received on 28 September 2009, is being circulated at the 
request of the Mercosur  delegations (Argentina, Brazil, Paraguay and Uruguay). 
 
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I. OUTLINE OF THE TOPIC OF PRIVA TE STANDARDS IN THE SPS AGREEMENT 
1. The basic aim of the WTO Agreement on the Ap plication of Sanitary and Phytosanitary 
Measures is to reaffirm the sovereign right of Members to establish sanitary and phytosanitary 
measures necessary to achieve the level of protectio n they deem appropriate, and at the same time to 
prevent misuse of that right with protectionist intent, leading to the erection of unnecessary or 
unjustified barriers in international trade. 
2. Although the SPS Agreement gives Members the right, in pursuit of this aim, to introduce 
food safety, animal health and plant health measures, it requires at the same time that such regulations 
should be based on a set of obligations, for instan ce that the measures should be sufficiently supported 
by scientific principles, that they should only be ap plied to the extent necessary to achieve the aim of 
protection and that they should not establish any arbitrary or unjustified discrimination between 
countries in which identical or similar conditions prevail. 
3. The SPS Agreement also requires Members to base their national SPS measures on 
international standards, guidelines and recommendati ons where they exist, and only allows Members 
to adopt measures which result in a higher level of  protection than would be achieved by adopting an 
international standard if the national me asures have a scientific justification. 
4. Thus, the SPS Agreement establishes both the aim (balance between sanitary supervision and 
avoidance of unjustified restrictions on internationa l trade) and the mechanisms to achieve that aim 
(obligations which Members must respect when adopting and applying sanitary and phytosanitary 
measures). 
5. At recent SPS Committee meetings, various Members expressed concern at the significant 
increase in private standards1, which, although not compulsory in a formal sense, and despite not 
                                                      
1 G/SPS/GEN/766 (Communication from Saint Vi ncent and the Grenadines), G/SPS/GEN/792 
(Communication from Ecuador), G/SPS/GEN/843 (Comm unication from Uruguay), G/SPS/R/51 (Report of the 
42nd meeting of the SPS Committee;  paragraphs 119-145), G/SPS/R/53 (Report of the 43rd meeting of the 
SPS Committee;  paragraphs 122-137 ), G/SPS/R/54 (Report of the 44th meeting of the SPS Committee;  
paragraphs 136-161). G/SPS/W/246 
Page 2  
 
  having been adopted officially by Members' aut horities, are in practice becoming requirements for 
access to external markets. 
6. Notwithstanding the possibility of multi-faceted discussions on the subject, and leaving aside 
the technical and legal aspects, it is clear that WTO Members must ensure that the international 
commitments they have undertaken within this Or ganization are not undermined or impaired, thereby 
affecting the acquired rights of private persons i nvolved in international trade.  Once sanitary and 
phytosanitary matters begin to be governed by priv ate standards and the latter have an impact on 
international trade, it becomes the responsibility of the SPS Committee to address the issue and use 
the instruments available in the SPS Agreement a nd in the GATT 1994 to prevent the use of private 
standards from undermining rights and obliga tions assumed by governments in the WTO. 
7. We consider that the SPS Committ ee should do its utmost to find solutions immediately, so as 
to preserve the balance of rights and obligations in the multilateral framework.  In other words, 
Members have a responsibility to monitor complianc e with the objectives of the SPS Agreement, and 
to honour international commitments  and safeguard acquired rights. 
8. From the exchange of experiences in both th e SPS Committee and other international forums, 
it has become clear that experiences with private standa rds have not always been negative.  It was also 
made clear in the descriptive report adopt ed at the Committee's meeting in June 2009
2, that most of 
the negative experiences relate to non-compliance with  many of the provisions of the SPS Agreement. 
II. LEGAL FRAMEWORK OF GOVERNMENTS' RESPONSIBILITIES IN THE LIGHT 
OF THEIR WTO OBLIGATIONS 
9. The WTO, as we know, is an international inte rgovernmental organization established for the 
purpose of promoting free, fair and undistorted comp etition in international trade.  To that end, 
international agreements have been adopted en shrining rules and disciplines to be observed by 
Members in the adoption and implementation of their tr ade polices.  It has been  widely recognized by 
specialized writers that the aim of trade liberalizati on can only be attained by having clear rules, since 
that is the only way to achieve the legal certainty wh ich private stakeholders need in order to be able 
to conduct their commercial transactions in a normal manner. 
10. In accordance with the pacta sunt servanda  principle, every treaty in force is binding on the 
parties to it and must be performed by them in good faith.  This rule has been expressly confirmed in 
Article XVI:4 of the Marrakesh Agreement est ablishing the World Trade Organization, which 
provides that:  "Each Member shall ensure the conf ormity of its laws, regul ations and administrative 
procedures with its obligations as provided in th e annexed Agreements."  Thus, the Marrakesh 
Agreement expressly recognizes that the Agreements  constituting the normative core of the WTO lay 
down obligations (and the counterpart right to de mand compliance therewith).  Furthermore, the 
Marrakesh Agreement provides that it is the parti es to the Agreement (i.e. the WTO Members) which 
are responsible for complying with obligati ons and benefit from the exercise of rights. 
11. Be that as it may, given that the Marrakesh Ag reement (and the Annexes thereto) have been 
incorporated in the domestic law of Members (through laws, decrees or other legal instruments), they 
have created rights and obligations for individuals and other private actors (i.e. acquired rights), any 
violation of which should be the subject of proper su pervision in order to ensure effective compliance 
with WTO obligations. 
                                                      
2 Document G/SPS/GEN/932.  G/SPS/W/246 
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  III. SCOPE OF MEMBERS' RESPONSIBILITY 
12. According to WTO jurisprudence, not only Memb ers' actions but also their omissions fall 
within the scope of their responsibility, inasmuch as an omission may have the same detrimental 
effect on international trade as an action.  Accord ingly, the jurisprudence has recognized that the 
concept of a "measure" covers both the positive conduct of Members (for example, regulations 
adopted by Members) and their negative conduct (for  example, failure to take specific actions or 
measures when they should have been taken).  In US - Corrosion-Resistant Steel Sunset Review , the 
Appellate Body held that:  "In principle, any act or omission  attributable to a WTO Member can be a 
measure of that Member for purposes of dispute se ttlement proceedings.  The acts or omissions that 
are so attributable are, in the usual case, the acts or omissions of the organs of the State, including 
those of the executive branch"3 (emphasis added). 
13. Article 13 of the SPS Agreement is concerne d with defining the scope of Members' 
responsibility in the field governed, that is to sa y, the adoption and implementation of sanitary and 
phytosanitary measures.  First, it provides tha t:  "Members are fully responsible (...) for the 
observance of all obligations set forth he rein" in accordance with the principle of pacta sunt servanda  
and Article XVI:4 of the Marrakesh Agreement.   However, the Agreement does not limit the 
responsibility of Members to the actions or omissi ons of central government authorities, but also 
refers to measures taken by non- central government institutions and by non-governmental entities. 
14. With regard to non-central government institu tions, Article 13 of th e SPS Agreement provides 
that:  "Members shall formulate and implement pos itive measures and mechanisms in support of the 
observance of the provisions of this Agreement by other than central government bodies". 
15. Regarding measures taken by "non-governmental entities within their territories", Article 13 
of the SPS Agreement places two obligations on Members: 
 - Obligation to do something (action ):  "Members shall take  such reasonable measures 
as may be available to them to ensure that non-governmental entities within their 
territories, as well as regional bodies in which relevant entities within their territories 
are members, comply with the relevant provisions of this Agreement." 
  - Obligation to abstain from doing something (omission
):  "Members shall not take  
measures which have the effect of, directly  or indirectly, requiring or encouraging 
such regional or non-governmental entities, or local governmental bodies, to act in a 
manner inconsistent with the provisions of this Agreement." 
 
16. Thus, although the sanitary provisions adopted  by such "non-governmental entities" would 
not be considered per se  as "sanitary measures", governments ha ve the responsibility to ensure that 
the provisions adopted by such entities are consistent  with the SPS Agreement.  Under the terms of 
Article 13 of the SPS Agreement, in order for Memb ers' responsibility to be incurred, it is necessary 
that:  (i) the non-governmental entities do not comply  with the provisions of the SPS Agreement;  and 
(ii) the Member concerned has not complied with  its obligations of action and/or omission under 
Article 13. 
IV. OBSERVATIONS 
17. Mercosur has an active stake in world food expor ts.  Not only is this one of the most dynamic 
sectors of the local economies, but it is one of the main sources of foreign exchange earnings and its 
development is essential for combating poverty and ensuri ng growth together with social equity.  It is 
                                                      
3 Paragraph 81. G/SPS/W/246 
Page 4  
 
  for that reason that the Mercosur States parties ha ve given priority to the development of proactive 
public policies to encourage the growth and technol ogical advancement of the sector.  These policies 
have included different specific objectives, one of which is that of increasing and diversifying our 
external export penetration on the basis of safe and high-quality foods. 
18. Various steps are being taken for this purpose.   One of them involves institutional capacity 
building for Mercosur participation in SPS Committee meetings with the aim of contributing to the 
achievement of more equitable, fair and transparen t trade in agro-industrial products on the basis of 
the obligations agreed in the Uruguay Round.  High priority has also been given to the work done in the context of the Three Sisters with the aim of ensuring the establishment of international 
scientifically supported standards which meet th e needs and demands of producers and consumers 
worldwide. 
19. That is why we view with concern the devia tion of private standards from the rules that 
Members agreed to establish in order to ensure fairer , free and transparent international trade.  As we 
have said, unregulated trade is not predictable and thus generates legal uncer tainty, which impairs its 
normal development.  The rules were made to be  respected, and Members should therefore fulfil the 
international undertakings to which they freel y agreed after long and difficult negotiations.  
Consequently, governments must address the problem within the institutions created, since failure to 
do so would create the impression that years of wo rk in the GATT/WTO framework have been in 
vain. 
V. POSSIBLE COURSES OF ACTION IN THE SPS COMMITTEE 
20. We consider that the three-stage approach set  out in document G/SPS/W/230 is the right one.  
Having completed stage 1 (questionnaire) and stag e 2 (descriptive report), we consider that the 
SPS Committee has sufficient information to initiate stag e 3, that is, to draw up an analytical report 
evaluating the available informati on but, above all, specifying the way in which the SPS Committee is 
to tackle the topic of private st andards and international trade. 
21. Furthermore, we consider that, when the Committee assesses possible courses of action, 
account should be taken of the special impact that  private standards are already having on developing 
countries that are agricultural exporters, for which reason we would advocate a twin-track approach: 
 - Establish
 guidelines for the practical implementation of Article 13 of the 
SPS Agreement;  and 
  - agree on the inclusion
 in the SPS Committee's agenda of: 
 
• Mechanism for monitoring of pri vate standards by the SPS Committee :  
under this mechanism, the Committee would evaluate the consistency of 
private standards with SPS disciplines. 
 
• Specific trade concerns arising from the application of private standards :  
under this item, Members affected by a private standard could voice their 
concerns in the Committee with a view to the evaluation of appropriate 
courses of action. 
 
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