When Life Gives You Lemons: The Dispute on the Correct Interpretation of Data on the Citrus Black Spot Disease between the European Union and South Africa according to the SPS agreement

According to Articles 2,2, 5.1 and 5.2 of the SPS Agreement, Members need to base SPS measures on scientific principles and risk assessment. These provisions have sparked analysis on issues such as how this ‘risk’ needs to be addressed, which ‘science’ Members need to take into account and what the relationship is between values and science. It is commonly observed that the SPS Agreement leans toward a technical approach to the determination of risk. In case socio-economic concerns would be taken into account in the SPS Agreement, a leeway for Members to introduce protectionist policies would open up. We illustrate with the example of the ongoing citrus dispute between the European Union and South Africa that the technical approach can likewise be used to shield protectionist policies with an extraterritorial effect. The reason for this is the uncertainty with regards to which science needs to be taken into account. We conclude that the choice for technical risk does not remedy the “protectionist policy with extraterritorial effect” problem. Rather than debating the options of “socio-economic” risk and “technical” risk only, the WTO dispute settlement body should use disputes such as the one on citrus to develop a more normative approach to ‘risk’ in the SPS Agreement.