THE AGREEMENT ON THE APPLICATION OF SANITARY AND PHYTOSANITARY MEASURES AND THE EVENTUAL EVOLUTION OF THE PRECAUTIONARY PRINCIPLE IN LIGHT OF THE COVID-19 PANDEMIC

Abstract

The SPS Agreement of the WTO posits that Member may provisionally adopt (phyto)sanitary measures in the face of insufficient scientific evidence (art. 5.7). This provision is close to, but not confused with, the precautionary principle, originated from Environmental Law, which relativizes the relationship between science and the adoption of measures in the face of risks in a broader sense. This article questions how a possible evolution of the precautionary principle in International Law, after COVID-19, relates to the application of the SPS Agreement within the WTO. Based on dogmatic methodology, with doctrinal review, the initial hypothesis was some degree of impact on the interpretation of art. 5.7. It was verified that the notion of insufficiency of scientific evidence could be expanded, however, only if the status of the precautionary principle become an international custom, which represents hermeneutic and practical challenges, such as a greater discretion for protectionist measures.