Lesson 2: What are International Standards for Phytosanitary Measures (ISPMs)?
Topic 2: What is the International Legal Status of ISPMs?
Language contained in the IPPC can be difficult to understand. It is important to know what certain phrases, such as “must”, “shall”, “should”, “may”, and “can” mean. Sometimes a provision in the IPPC can be legally binding, other times it is not, depending on the language used. In this topic, we will explore the ISPM terminology and the relevant legal aspects of the IPPC.
Objectives:
- Describe legal terms used in International Treaties like the IPPC
- Describe the status of ISPMs under the IPPC (Article X.4)
- Describe the status of ISPMs under the WTO/SPS Agreement
Legal Terms used in International Treaties
International treaties like the IPPC may contain some provisions that are legally binding and some provisions that are not. Legally binding provisions are indicated by the use of particular language and phrases. The following guidance from the 2011 IPPC Procedure Manual explains the use of the terms must, shall, should, may, and can, found in ISPMs. The level of obligation associated with each term is useful in making clear how these terms are understood in the IPPC community at this time. Note that this guidance refers specifically to ISPMs and not to the IPPC.
Defining ISPM Terms
- “Must” is equivalent to “is required to”. “Must” is the most strongly expressed directive. “Must” indicates a legally binding requirement.
- “Shall” is equivalent to “is required to”, and is used when there is an obligation to take action. It is commonly used in formal legal wording for mandatory requirements.
- “Should” is equivalent to “it is recommended” that something be done. The word “should”, in English, is interpreted to mean a type of moral or political commitment. It creates an expectation that something will be done, although it is non-binding.
- “May” is equivalent to “is permitted to”. “May” offers a possibility and does not involve obligation. It is frequently used in ISPMs in providing guidance on possible actions for implementing standards.
- “Can” is equivalent to “possibility” or “capability” and does not involve obligation.
Understanding the Legal Status of ISPMs under the IPPC
With this background in terminology, let us examine the legal status of ISPMs as described in the IPPC. The IPPC states that:
Contracting parties should take into account, as appropriate, international standards when undertaking activities related to this Convention.
International Plant Protection Convention.
In commenting on the language used to refer to the ISPMs, John Hedley, former Coordinator of the IPPC, stated:
“One would have thought that contracting parties would be obliged to follow the standards. But this could not be agreed to and, as a result, we have a fairly weak statement. We have a “should” instead of a “shall”, a “take into account” instead of a “follow”, and a further weakening by adding the “as appropriate”.
So how is the status of ISPMs under the IPPC to be interpreted? Although the IPPC agreement is legally binding, the standards that are developed and adopted by the IPPC are not. Use of the term “should” with respect to ISPMs creates an expectation or commitment that standards will be taken into account by member countries when imposing plant-health measures. To summarize, non-legally binding provisions of the IPPC reflect strong commitments that should be implemented at the national level.
Understanding the Legal Status of ISPMs under the WTO/SPS Agreement
To fully understand the legal status of ISPMs, it is also important to consider ISPMs in the context of the WTO/SPS Agreement. The standard setting work of the IPPC is directly relevant to the SPS Agreement and the WTO committee that administers it. Article 3 of the WTO/SPS agreement requires WTO members to follow standards developed by relevant international organizations, including the IPPC for plant-health standards:
To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist…
The WTO/SPS Agreement also states that phytosanitary measures of its members, which conform to international standards (including those of the IPPC), “shall be… presumed to be consistent with the relevant provisions of the Agreement and of the GATT 1994.”
Agreement on the Application of Sanitary and Phytosanitary Measures.
Note that use of the phrase “shall base their sanitary and phytosanitary measures on international standards” creates a mandatory requirement for WTO members to base their measures on standards. Most WTO members are also contracting parties to the IPPC, so there is a legal obligation to comply with the WTO requirements and a strong commitment to comply with the IPPC guidelines. Thus, countries affiliated with both organizations have a double incentive to base their measures on international standards.
In addition, a country benefits when their measures conform to IPPC standards because it can be legally taken to mean that they are meeting the obligations of WTO/SPS Agreement. The supposition can be challenged, but the challenging country must show proof that a country’s measures are not scientifically justified and are more trade restrictive than necessary to protect plant health.
Let us take a look at an example to see what this means to WTO Members and to those countries that use the IPPC as a guideline.
Countries that are signatories to the IPPC and the WTO/SPS Agreement have both a strong commitment and a legal obligation to base measures on international standards. The legal status of a provision is often indicated by the use of particular language and phrases.
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