The Globalization of Health and Safety Standards: Delegation of Regulatory Authority in the SPS-Agreement of the GATT 1994 (WTO) Treaty

Journal Article

This article examines the delegation of regulatory authority in the Agreement on the Application of Sanitary and Phytosanitary (SPS) Measures, which is an integral part of the founding treaty of the World Trade Organization (WTO). The SPS-Agreement institutionalizes cooperation on SPS standards by committing member states to the use of "international" SPS standards, defined as the standards developed by three international organizations: the Codex Alimentarius Commission (CAC), the World Animal Health Organization (OIE), and the International Plant Protection Convention (IPPC). Member states of the WTO have delegated regulatory authority to these collective agents in that national or regional regulations based on divergent standards are open to challenge through the WTO dispute settlement mechanism, where the burden of proof falls on the country with the divergent standards to show that such measures have scientific justification and do not constitute unnecessary non-tariff barriers to trade, whereas regulations based on CAC, OIE, or IPPC standards are safe from such challenges since the SPS-Agreement declares them to be categorically in compliance with WTO obligations. I ask why states decided to institutionalize international cooperation in the realm of SPS standards, which are the technical basis for many politically sensitive health and safety regulations, and why they chose delegation of regulatory authority to international organizations outside of the WTO itself as the particular form of that cooperation. Based on an analysis of the negotiations that led to the SPS-Agreement, I show that international delegation was agreed upon because all governments participating in those negotiations preferred it over both the pre-WTO status quo and possible alternative ways of minimizing the trade-impeding effect of national health and safety regulations. Importantly, however, cooperation and delegation came to be defined as the national interest due to the costs-benefit analyses of the politically dominant groups within these countries, given domestic political institutions—as emphasized by the liberal tradition in IR theory. Given these domestic interests, international delegation offered governments a way of attaining the benefits of delegation emphasized by principal-agent theory while (seemingly) minimizing the political costs that arise from the loss of policymaking autonomy. In retrospect, however, it appears that the widespread positive normative association of international standards with multilateralism and international consensus—as well as, for developing countries, their primary focus on exceptions and short-term technical and financial assistance arising out of the dominant "development" discourse—led many countries to underestimate those autonomy costs. Material and ideational factors thus interacted (sometimes to a country's detriment) to a shape the definition of national interests and the outcome of international delegation of regulatory authority to international bodies (an increasingly common phenomenon).

Duke Authors

Cited Authors

  • Büthe, T

Published Date

  • December 2008

Published In

  • Law and Contemporary Problems

Volume / Issue

  • 71 / 1

Start / End Page

  • 219 - 255