HI5015 Legal Aspects of International Trade & Enterprise Assignment Help

Canada Vs Australia – Measures Affecting the Importation of Salmon

Students are required to research an International Law Case of your choice from the list below and explain in a report format on the background of the dispute, facts, legal issues, individual parties' arguments, tribunal's decision and the importance of the case in international law.

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Introduction

There is much to do with the legal provisions and regulations of the same and enforcement in the context of the international trade and business. International trade is guided by diverse regulations and the seemingly simple disputes may escalate to complex issues to resolve and can severely impact the trade proceedings of any particular country in general. The current discussion is about the dispute on restrictions on the salmon import by Australia from Canada. In 1996, Canada complained that the Australia has restricted the import of salmon from Canada. The regulations indicated that the decision of Canada is based on the quarantine regulation of prohibition of the salmon in accordance with the 11th and 13th articles of Gatt 1994. SPS agreement breach is one of the major concern in the current dispute. The following part of the report is about the dispute between Canada and Australia in this regard. The report details the background of the dispute; as well there is detailed discussion on the background of the case, the legal issues underlying the case, Brief facts of the case. Also presented in the report is the detail of the arguments of each of the participants of the case, further there is discussion on the tribunal decision in this regard. The possible implications of the decision on the trade between these two countries are provided in detail in the report. The roots of the relations between Australia and Canada are very long in the historical timelines. There is much to do with the international relations between these two countries. There are trade relations between Australia and Canada for more than 100 years. Further there is relation between these countries in the global wars, both in the first and second world wars, both Australia and Canada worked together, there is participation of these two countries combinely in the Korean War, Gulf war etc. In any case the dispute between these two partner countries can be an interesting issue which can provide considerable scope for formulating a strategy for future international trade relations on global arena.

Background of the case and the dispute:

Australia has quarantined the imports from Canada against the agreement made before. The focus is on the restrictions regarding the frozen Salmon from Canada country. This occurred in the year 1995. In the aftermath of the case Australia came down to accept the imports of the heat treated stock as its feed import, however still canda objected the restriction of the import of the untreated salmon as well, claiming that is against to the regulations agreed before. In the aftermath of the Risk assessment of the untreated salmon import, Australia decided to continue the imposition of the restriction on the import of the same. Canada filed a petition in WTO that the actions of Australia in against to the article 2, 3 and 5 of the SPS. United States supported Canada in this regard. WTO critically evaluates the case and ruled that the Australia's risk assessment procedures do not have basis to restrict the importation of the Salmon into the country and they are not justified too(Bourke & Lucadou,2007). It was ruled that the Australia Violated the Article 5.5 as well as article 2.3 of the SPS. Both these articles of SPS discourage unjustified restrictions in the levels of the protection. Also the WTO panel found that there is double view exhibited by Australia in this regard, the key question raised by Canada is the fact that when Australia is allowing other food items which do have the same disease carrying risk, why only salmon is restricted? This is believed to have no rationale.

Brief facts of the case:

- WTO (World trade organization) was established under the article IV of the 1993 establishment of WTO, Dispute settlement body to take of the trade aspects of the business. The rules and procedures governing the settlement of the disputes (DSU) will be enforced by DSB(Kellow et al.,2005).

- DSU first ruled on this case, however later the two parties of the case appelled on this case with DSB

- Quarantine proclamation Act 86A of 19thFebraury 1975 is exercised by Australia along with the amendments made to that as per QP86A in enabling these restrictions.

- However it is to be noticed that Australia has never imposed any restrictions on the importation of several other uncooked (untreated) food imports.

Legal issues in this case.

As per the proclamation Act 86A of 19th February 1975, Australia is not willing to import any type of material that is untreated and viable to cause health complications to the people of the country. It is required that these materials to be treated before allowing into the country. The proclamation in this regard, QP86A reads as follows,

- Untreated food like dead fish is restricted for import as there is always scope for introduction of any infections or contagious diseases, or disease or pest affecting persons, animals or plants(Pauwelyn,1999).

- Subsequent to the request of Canada to allow uncooked salmon into the Australia market, Australia appointed committee to investigate the risk in importing the same. At the outset the 1995 Draft policy is drafted in Australia in this regard, further it is revised in the year May 1996. By the end of December 1996, the current quarantine policies of the Australia are supported to be continued.

- The key argument of Canada in this regard is its request to consider the Canada Salmon different from other salmons being imported to Australia.
- The articles of 5.1, 5.5 and 5.6 are actually contravened by Australia, as proclaimed by Canada. Further there is also detailed focus on the contravention of the article 2.2 as well. The article 2.3 is also considered to be breached by Australia in the same context of import retriction.

Individual party's argument with the particular emphasis on Canada argument:

- The key argument of Australia is focussed on its quarantine policy, as per the proclamations and the subsequent modifications done, the country has no interests to take up the risk of letting the people of the country suffer with any type of contagious disease as well as any type of the health complications by taking in the untreated food. However it is not actually curtailing all the types of imports to the country. Treated food like salmonide and related food items are still allowed into the country(Atik,2004).

- But Canada argued that it is against to the logic and the spirit contained in SPS argument. The country believed that the actions of Australia are against the different articles agreed in the agreement. Further it is reiterated that the type of Salmon being exported by Canada is different from the one which Australia indicated as risky food item and quarantined as well.

- Article 3.8 of DSU cites that the country cannot actually nullify the sanctions and regulations agreed upon and further Australia has actually nullified these sanctions provided for Canada.

- Article 5.5 and 5.6 of the SPS agreement are emphasized by Canada and stated that the Australia has not actually interpreted these articles in the case of Canada Salmon issue. They are applicable for ocean caught pacific salmon and not actually are applicable in other instances of the salmon.

- When agreed that the article 5 of SPS is breached by Australia, obviously it can have implications to the article 2.3 and it need to be considered for the violation. Whether the panel has erred in interpretation of the same is another concern established by Canada in this regard.

- The principle of judicial economy is misapplied in the current case. The approach of the committee (DBU) is argued as too restrictive and it is against to the spirit of the application of the article 3.7(Stanton,2001).
The tribunal decision

- Finally the panel concluded that Australia has not actually acted consistently with the Article 5.6. Tribunal further stated that in the course of recalling the above article, there is nothing that the tribunal want to impose as an alternative to Australia to follow on in this regard. However there is much to do with the less trade restrictive and other measures as needed by the nation. These options are reasonably viable and available and only the nation can take acceptance of those which can be in line with Australia's ALOP. Australia can select the option that can closely resemble the interests of the other parties like canda and other closely related trade partners.

-  The article 22.6 of the DSU and the Canada's rights are actually considered to be treated without any prejudice and the same is considered to be as a fact proposed by the tribunal decisions. Further, it is also believed that the core responsibilities of the SPS agreement regulations are breached and DSU finds it inconsistent.

-  Australia is now bringing in the dispute measuring arguments compliance as per the DSU and SPS both.

- Tribunal expressed positive note on the re-establishment of the relations of the international trade relations between these two countries and kept the option of appropriate option selection open for them.

Impact of the case tribunal decision and the case in the international law

One of the key impact of the case is the fact is that there is considerable focus on variety of aspects like the protection of the trade interests and trade agreements is assured. There is trust and reliance promoted by the decisions of the tribunals in the current case. There is much to do with the actual international trade law protection for sustaining international trade happening at present.

Globalization has emphasized the need for strengthening the international trade regulations and adds reliance to the agreements made in this regard. Hence the tribunal decision in this case of import restriction of salmon has established a predicate to follow more healthy and reliable regulations. At the same time it is also emphasizing the need to have stronger and more powerful regulations that can protect the interests of the international trade on the global perspective. Also in the domain of the international trade of critical stuff like this, where there is considerable scope for spreading the infections and the diseases, there is much to do with the regulations deployed for the trade. The trade regulations need to be made clearer and should not provide any scope for ambiguity and should not create any chances that can create further complications in confusion in this regard(Taylor,2000). 

However the message that the decision in this case is propagating is very clear; more and more countries now gaining confidence in the international trade agreements. In the aftermath of this case decision and ruling supporting the regulations of the agreements made there in, there is increased regional pacts made up during this time. In the aftermath of the tribunal decision on 18th May 2000, Canada indicated that it has come into the agreement with the Australia. This is further emphasized as the agreement for closure of the dispute. Canada will closely observe the compliance of the Australia with the commitment and will follow up the implementation of the same latest by June 2000 as per its statement.

The case remained evidence to the active potential of DBU and DSU and they indicated that it is very much possible to protect the interests of each of the partners in the international trade and also emphasized the need for renovation of the existing policies for further strengthening the international trade and trust in the system.

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