Health Protection at the WTO: The J-Value as a Universal Standard for Reasonableness of Regulatory Precautions

Abstract

Article XXb of the General Agreement on Tariffs and Trade (GATT) and the Sanitary and Phytosanitary (SPS) Agreement prohibit health safety measures which are unreasonable restrictions on trade, which WTO case law has shown to mean not based upon sound scientific principles or international consensus. However the existing difficulty in ensuring uniformity in these criteria as implemented by the WTO Dispute Settlement Body (DSB) necessitates resort to a universal scale for assessing the legitimacy of health and safety precautions by reference to an objective cost benefit analysis. This paper attempts to apply the J-Value scale, developed in the United Kingdom to gauge expenditures in industrial risk prevention, to evaluate the reasonableness of WTO member state product safety regulations in a readily quantifiable, judicially instructive manner. The J-Value can be implemented by WTO panels ex post as well as government regulators ex ante in order to assess whether or not a specific measure aimed at ensuring human health and safety is actually an unnecessary barrier to international trade. In keeping with WTO principles, key features of the J-Value formula allow for different tolerances towards health risks depending on the view of the Member states which implement them, based on factors such as life expectancy and Gross Domestic Product (GDP).

Keywords: WTO, Health, SPS/TBT, Risk