Costa Rica ' Measures Concerning The Importation Of Fresh Avocados From Mexico

• Published date: 12 May 2022
• Subject Matter: International Law, International Trade & Investment
• Law Firm: Economic Laws Practice
• Author: Mr Sanjay Notani, Parthsarathi Jha, Naghm Ghei, Harleen Sandha and Shruti Agarwal

Background

On April 13, 2022, a WTO Panel issued its report in the dispute Costa Rica ' Measures Concerning the Importation of Fresh Avocados from Mexico (DS524). The dispute was initiated by Mexico against certain import restrictions imposed by Costa Rica aimed at mitigating the risk posed by Mexican avocados infected with avocado sunblotch viroid (ASBVd), a disease affecting avocado trees and fruit. ¹

Factual Background & Measures at issue

In April 2015, Costa Rica temporarily halted the import of avocados from various countries, prescribing a pest risk analysis for the ASBVd, which Costa Rica asserted was not present in Costa Rican territory.

In July 2015, through Resolution DSFE-002-2018, Costa Rica, imposed import obligations specific to Mexico, requiring certification that the product originated from an ASBVd-free production site previously recognized by the State Phytosanitary Service of Costa Rica. Thereafter, in January 2018, through Resolution DSFE-003-2018 imposed similar requirements on the import of avocados from any other country in which ASBVd is prevalent (collectively, Resolutions). Both Resolutions were based on a pest risk analysis conducted by the Costa Rican State Phytosanitary Service (through Reports ARP-002-2017 and ARP-006-2016, hereinafter Risk Assessment Reports) and also based on a Manual NR-ARP-PO-01_M-01 (the Manual), which served as a guidance on the conducting of a pest risk analysis.

Mexico alleged that the two Resolutions, Risk Assessment Reports and Manual violated the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) as well as the General Agreement on Tariffs and Trade 1994 (GATT).²

Legal Issues before the Panel

a. Whether the measures constituted sanitary or phytosanitary measures covered by the SPS Agreement?

The Panel concluded that the Resolutions were SPS measures as they (i) aimed at achieving the objective of protecting plant life or health from disease in line with paragraph 1(a) of Annex A to the SPS Agreement³ and (ii) they may affect international trade within the meaning of Article 1.1⁴ of the SPS Agreement.⁵ However, the Panel found that the Risk Assessment Reports and manual contained technical and scientific information and guidance on phytosanitary requirements to be applied but did not in themselves impose such requirements.⁶ Hence, these were not SPS measures.

b. Whether Costa Rica complied with its risk assessment obligations under the SPS Agreement?

The Panel stated that an assessment of the compliance of such risk assessment obligations will encompass the satisfaction of legal standards under Articles 5.1⁷ , 5.2⁸ , 5.3⁹ and 2.2¹⁰ of the SPS Agreement.¹¹ Further, Articles 5.2 and 5.3 are specific provisions under the general mandate of Article 5.1 of the SPS Agreement.¹²

The Panel noted that Costa Rica failed to consider, in its assessment, the available scientific evidence or the prevalence of specific diseases or pests for a variety of reasons, including focusing only on main areas of production, insufficient surveillance of ASBVd in Costa Rica, deficiencies in sampling methodology, insufficient evidence to support the probability of spread of ASBVd in Costa Rica, etc., and thus acted inconsistently with Articles 5.1 and 5.2 of the SPS Agreement.¹³

Further, the Panel found that Costa Rica acted inconsistently with Article 5.3 of the SPS Agreement by failing to take into account the relevant biological and economic consequences of the measure.¹⁴

Lastly, the...