Introduction

The Salmon case represents an important step in the evolution of the doctrinal tools available for managing WTO disputes involving non-trade values. Joel Trachtman has termed these doctrinal tools “trade-off devices,” used to guide WTO dispute settlement bodies as to how to balance and weigh the trade versus non-trade values embodied in the particular measure, and GATT/WTO provisions, at stake in a given dispute. Although the Salmon case concerns the specialized WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), it has implications for the broader development of WTO jurisprudence with respect to the place of non-trade values in the WTO regime.

The SPS Agreement sets out a road map for Members seeking to enact GATT-consistent measures addressing sanitary and phytosanitary concerns. In SPS matters, the non-trade value at stake is the protection of human, animal or plant (HAP) life or health from risks borne by imported products. The trade value at stake is the free movement of goods, because SPS measures have as their effect the prohibition or conditional entry of products deemed by the Member to pose a threat to HAP life or health.

The SPS Agreement protects Members' right to adopt necessary SPS measures (Article 2.1), but only if the SPS measure “is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles, and is not maintained without sufficient scientific evidence” (Article 2.2).