The Codex Guidelines are optional under Codex Alimentarius. However, the World Trade Organization (WTO) has the authority to use Codex standards to resolve trade disputes and enforce the final decision.
Prior to 1995, Codex standards were completely unenforceable. As a result of the Marrakech Agreements of 1994, Codex Alimentarius standards are referred to specifically in the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) and indirectly in the Agreement on Technical Barriers to Trade (TBT).
In the WTO website under Standards and Safety it states, “Article 20 of the General Agreement on Tariffs and Trade (GATT) allows governments to act on trade in order to protect human, animal or plant life or health, provided they do not discriminate or use this as disguised protectionism. In addition, there are two specific WTO agreements dealing with food safety and animal and plant health and safety, and with product standards.” These two are the SPS and TBT Agreements.
The WTO website specifically states, “Whose international standards? An annex to the Sanitary and Phytosanitary Measures Agreement names: the FAO/WHO Codex Alimentarius Commission: for food”. This means that the WTO does not create trade standards. Rather, when the case involves ‘food’ the WTO will use Codex standards and guidelines as standards.
In 1998 Codex Alimentarius requested clarification from the WTO about Codex standards, guidelines and recommendations and the SPS Agreement. The response from the WTO is recorded in the CODEX COMMITTEE ON GENERAL PRINCIPLES 13th Session (Item 50 on page 7) as “SPS does not differentiate between the three terms — ‘standards’, ‘guidelines’, and ‘recommendations’.” This means that while Codex views a guideline as optional, the WTO views a guideline as a mandatory standard.
The WTO SPS and TBT Agreements can only be interpreted by cumulative case law. Therefore, one needs to review the decisions coming out of the WTO Dispute Settlement Process. This review shows that most decisions level the trade “playing field” to favor corporate trade interests.
Testimony by Lori Wallach of the Public Citizen’s Global Trade Watch presented May 17, 2005 to the U.S. House of Representative Ways and Means Committee reports a history of adverse decisions against the U.S.
Justin J. Prochnow, Esq. provides an attorney’s perspective in Disseting the Truths and Myths about Codex and U.S. Dietary Suppleent Law (March 22, 2005)
The official WTO Dispute Settlement Process:
(1) Consultation – The complaining country and the defending country are encouraged to talk with each other and try to find a way to settle their differences. They can asked for the WTO director-general to act as mediator.
(2) Panel Established – The complaining country can go to an assembly of all members of the WTO (designated a DSB for this action) and request a panel be appointed to hear the case. The first time this happens the defending country can object, thus blocking. If the complaining country requests a panel again at the next meeting, the defending country is not allowed to block.
There is a permanent list of qualified candidates to serve as panelists. Three to five panelists from different countries are select from this list in consultation with the complaining and defending countries.
(3) Case Defined – The specific WTO agreement(s) broken must be stated. Each side in the case presents its case in writing to the panel.
(4) First Hearing – The complaining country and defending country state their case to the panel. If there are other countries that also feel they have an interest in the dispute, they may also state their case at this time.
(5) Second Hearing for Rebuttals – The countries involved submit written rebuttals to the panel, then present oral arguments at the second meeting with the panel.
(6) Experts – If a scientific or technical matter is raised by a country, the panel may consult with experts. The panel may also appoint a group of experts to prepare a special advisory report.
(7) First Draft of Panel’s Report – The panel submits a report to all parties that describes the facts and arguments, but does not include findings or conclusions. The parties have two weeks to submit comments.
(8) Interim Panel Report – The panel submits a report to all parties that includes findings and conclusions. The parties have one week to ask for additional review of the matter.
(9) Review – If requested, the panel can arrange additional meetings with all parties.
(10) Final Panel Report – The panel submits the final report with the findings as to whether or not the disputed trade activity of the defending country does break a WTO agreement or obligation. If it does, the panel recommends how the country will be made to confirm with the WTO rules. The report is submitted to all parties of the case and all other WTO members.
(11) Ruling – The panel’s report becomes the official DSB ruling or recommendation unless a consensus of all WTO members rejects this report. Requiring ALL members to agree makes it very difficult to reverse a panel’s decision. One or both sides can appeal the report.
There is a permanent seven member Appellate Body representing the range of WTO membership. These individuals must not be affiliated with any government, must have recognized standing in the field of law and international trade, and serve four year terns. Each appeal is heard by three of these Appellate Body members. The results can uphold, modify or reverse the original panel’s findings and conclusions.
The appeal report is submitted to the DSB for adoption or rejection. Since the decision can only be rejected by agreement of ALL WTO member countries, it very difficult to overturn the appeal report.
If the needed changes do not happen, the complaining country may ask the DSB for permission to impose limited trade sanctions against the defending country. The DSB must grant this authorization unless there is a consensus against the request.
The authorized trade sanctions (tariffs) are to be imposed in the same area of trade as the dispute. If this does not work, sanctions may be imposed against other areas of trade. The matter remains open until the defending country that lost the case has made the changes required.
This Codex section was restructured in June 2005. This specific page was last updated September 2014.