Harmonization in International Trade Law: Legal Analysis of SPS Agreement's Article 3

Nowadays, harmonization of regulations regarding the sanitary and phytosanitary measures and its advantages and disadvantages is one of the most controversial issues in international trade law. This issue has gain much attention, in particular, after adoption of the WTO's agreement on the application of Sanitary and Phytosanitary Measures (SPS Agreement) and its emphasis on harmonization of sanitary and phytosanitary measures by considering international standards concerned. The purpose of this study is to identify the margin of discretion that is enjoyed by WTO members in taking the sanitary and phytosanitary measures under the harmonization provisions in above-mentioned agreement. This paper through literal and textual analysis of the provisions of the SPS agreement shows that the agreement does not intend to provide an absolute harmonization in sanitary measures, but to give WTO members a free hand in adopting the sanitary and phytosanitary measures. Eventually, in order to encourage the member states to advance towards the harmonization on the basis of international standards, it is assumed that only measures conforming to international standards are consistent with the provisions of this agreement and also with the GATT 1994.