The Weakest Link: Demonstrating the Inconsistency of “Appropriate Levels of Protection” in Australia‐Salmon

In Australia‐Salmon, the WTO Appellate Body found Australia to be in violation of the WTO SPS Agreement based on the inconsistency of the “appropriate level of protection” underlying various SPS measures. Article 5.5 of the SPS Agreement prohibits arbitrary or unjustifiable distinctions in “appropriate levels of protection” if such distinctions result in discrimination or a disguised restriction on international trade. In Australia‐Salmon, Canada challenged Australia's import ban on salmon. Australia permitted the entry of other fish products that were known to host some of the same diseases cited by Australia in justifying its salmon import ban. The distinction in the “appropriate levels of protection” between Australia's regulation of salmon and its treatment of these other fish products was found to be “arbitrary or unjustified” and to have “resulted in a restriction on international trade.”Australia‐Salmon was the first WTO decision to find an Article 5.5 violation. Canada successfully made a “weakest link” argument to undercut Australia's regulatory justification. The decision rests on the relationship between the risk purportedly justifying the salmon import ban and the risk seemingly ignored in Australia's treatment of other fish products—the regulatory “situations” compared concerned the identical pathogens with the identical potential consequences. As such, Australia‐Salmon may be an example of a category of regulatory “chains” that are peculiarly exposed to Article 5.5 challenge. In responding to the Appellate Body's ruling, Australia reduced its limits on salmon and imposed new restrictions on the other fish products. The outcome suggests that a challenge of one SPS measure under Article 5.5 may lead to the imposition of new restrictions on other imported products—an unexpected result for the free trade regime.