Do the Panels Treat Different Countries Differently: A Comparison of the Panel Report in the India  Measures Concerning the Importation of Certain Agricultural Products from the Unit
Authors: Mayank Veer 
Published: April 2022

The panel report in the case concerning India – Measures Concerning the Importation of Certain Agricultural Products from the United States was circulated on 14October 2014. The dispute concerned India’s import prohibition affecting certain agricultural products from countries reporting Notifiable Avian Influenza (NAI) to theWorld Organization for Animal Health (OIE). The United States complained that India’s Avian Influenza (AI) measures amounted to an import prohibition that was not based on the relevant international standard (the OIE Terrestrial Code) or on a scientific risk assessment. The provisions invoked were provisions from the Agreement on the Application of Sanitary and Phytosanitary MeasuresSPSAgreement) and the panel found in its report that the measures undertaken by India are inconsistent with inter alia Articles 2.2, 2.3, 3.1, 5.1, 5.2, 5.6 of the SPS agreement. Article XX (b) of GATT which provides for exceptions related to protect human, animal or plant life or health (… nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures … necessary to protect human, animal or plant life or health) was not invoked by India to justify its measures related to the import of poultry products from US. In a different dispute – United States – Certain Measures Affecting Imports of Poultry from China – the Panel Report was circulated on 29 September 2010. Certain measures that were initiated by US were disputed by China in the Panel Proceedings. As with the India – US dispute referred in paragraph above, several provisions of the SPS Agreement were invoked. US however invoked Article XX (b) ofGATT to justify its measures of restricting imports from China. The panel presented a finding that measures adopted by the US were inconsistent with not only the provisions of the SPS agreement but also with the provisions of Article XX (b) of the GATT. Though the present dispute related to the import of poultry products from China and the measures imposed and adopted by the US to restrict imports from China were on grounds different to the ones invoked in the present India – US dispute besides the SPS agreement, yet the case is relevant from the point of view of understanding the present dispute as the findings of the panel in both the disputes are identical though the reasons for the measures imposed are different. This article seeks to compare and analyse the Panel Report in the India – Measures Concerning the Importation of Certain Agricultural Products from the United States (hereinafter India – Measures) and the Panel report in United States – Certain Measures Affecting Imports of Poultry from China (US – Measures) and present an understanding on the invocation of Article XX (b) for cases involving consumption of food of animal origin. The article would seek to analyse the reasoning and findings of the panel in both the disputes and attempt to analyse the similarities and differences in the two reports. It would then present its analysis regarding the need and utility of invoking Article XX (b) of GATT looking at the interpretation of the provision in the previous Panel and Appellate body reports.