Diagnosing China’s COVID-19 “Xenopescophobia”: Sufficiency of Scientific Evidence Posed by the WTO SPS Agreement
Vol. 42 Executive Editor
As COVID-19 continues to be a global threat, each country has taken unique measures to protect the health of its citizens. This variance in response is reflected in international trade policies. Notably, China has implemented testing requirements of meat and seafood imports and suspended trade from processing plants due to positive COVID-19 tests. These measures have been accused of being unsupported by science, leading some Twitter users to joke of China’s xenopescophobia: the fear of foreign fish. In September 2020, Beijing Customs announced that all imported cold-chain food would be disinfected and tested for COVID-19. An announcement from the headquarters of a major Chinese port describes the procedures in more detail. If frozen meat and seafood imports test negative for COVID-19, then the imports receive an “Exit Certificate” and enter the domestic market. If the imports test positive, they are destroyed. China has also issued temporary trade suspensions from processing plants that exported food testing positive for COVID-19. To date, suspensions on trade from different processing plants have affected many countries such as Russia, Norway, Indonesia, Brazil, the United States, and Ecuador. Brazil, among other countries, has criticized China’s measures and has proposed challenging them as a WTO violation. The pertinent WTO agreement is the Sanitary and Phytosanitary Safety (SPS) Agreement, which is a free-standing agreement from the General Agreement on Tariffs and Trade (GATT). The SPS Agreement grants the right to each member country to protect human, animal, and plant life or health. Each country has the right to set its appropriate level of protection, which may even be a zero risk level. It appears that China is taking a zero risk level on COVID-19 transmissions from imported meat and seafood. By testing all imported cold-chain foods and destroying those that test positive for COVID-19, China is not allowing a single possibility of transmission from the imported frozen food. Measures that are challenged as a violation of the SPS Agreement undergo an inquiry on many issues to determine whether they may be an arbitrary or unjustifiable discrimination or a disguised restriction on international trade. The inquiry encompasses issues such as whether the measure is non-discriminatory, a least trade-restrictive measure, or conforms with international standards. There are two notable routes that China may take in a dispute: it could explain how it has sufficient scientific evidence or it can argue that there is insufficient relevant scientific evidence. This blog post assumes that China will take the first route and focuses on the role of scientific evidence in a possible dispute. Case law suggests that the threshold of sufficient scientific evidence is low to support China’ measures. EC-Hormones is the case of first impression on the SPS Agreement’s obligations of sufficient risk assessment and scientific justification. The Panel and Appellate Body agreed that SPS Articles 2.2 and 5.1 should be read together to require a risk assessment, which is an “evaluation of the likelihood of entry, establishment or spread of a pest or disease.” There are three indicated elements for a valid risk assessment: identification of the pest or disease, evaluation of the likelihood of the occurrence of the effect, and evaluation of the probability or potential of the occurrence of the effect with the applied challenged measure. Concerning China’s trade measures, it is evident that the disease is COVID-19 and their measures reduce COVID-19 transmissions from imported frozen food to a zero risk level. The key dispute is the probability or potential of COVID-19 being transmitted to a human from imported frozen food. China’s concerns of COVID-19 transmission from food is within the global scientific minority. Many international organizations, including the World Health Organization, have issued statements expressing that there is a low chance of COVID-19 transmission from imported food. The testing of frozen food that occurs at China’s ports detects RNA of COVID-19, which remains after the death of the virus. Certain experts find that there is a negligible likelihood of COVID-19 surviving in a transmissible state. The sequence of events would be COVID-19 being frozen, traveling for weeks, defrosting, and then making its way to a human’s respiratory system. China has not officially presented its scientific evidence supporting its testing requirements. In June 2020, the Assistant Director for China’s National Institute for Viral Disease Control and Prevention hypothesized that the virus may survive being frozen during storage and transportation. This theory developed when Chinese officials found an European strain of COVID-19 on a cutting board that had contact with imported salmon from Norway. Chinese officials later refuted the transmission path in this particular case. More recently, some laboratory research purports to find that the virus can survive on refrigerated seafood and meat for periods ranging from one week to three weeks. Divergent scientific views are not immediately disqualified by the SPS Agreement. The WTO appoints a panel of experts to conduct a case-by-case review for disputes arising from the SPS Agreement. The Japanese Measures case suggests that a panel will weigh all evidence that is presented to them, as long as they are sufficient to raise a presumption that the alleged risk exists and they have not been sufficiently rebutted. The panel does not have to agree with the research results, but it does have to agree with the methods used to reach those results. In the EC-Hormones case, the Appellate Body ruling suggested that research supporting divergent scientific views is accepted if the research is specific and directly establishes a link between the concern and health risk. Therefore, China’s burden is relatively low because it only has to present positive scientific evidence. Essentially, a single case of COVID-19 surviving in a transmissible state after being frozen for a certain length of time would be extremely persuasive. COVID-19 has been unprecedented in many ways. In the realm of international trade, it has created a unique case study on the role of scientific evidence on WTO disputes. Many studies still need to be conducted and replicated for further clarity on the transmissibility of COVID-19 from frozen food. Until then, the jury is still out on China’s “xenopescophobia”.
 Jon Emont et al., China Wants to Screen You for Coronavirus – and Your Frozen Fish, The Wall Street J. (October 16, 2020), https://www.wsj.com/articles/china-wants-to-screen-you-for-coronavirusand-your-frozen-fish-11602841654.  Amy Qin, Coronavirus Fears in China Find a New Target: Salmon, N.Y. Times (June 19, 2020), https://www.nytimes.com/2020/06/18/world/asia/coronavirus-china-salmon.html.  Beijing Tests Imported Cold-Chain Food for COVID-19, Gen. Admin. of Customs People’s Republic of China (Sep. 4, 2020), http://english.customs.gov.cn/Statics/585e9561-eb3b-4f9b-99c0-617323c9e365.html  U.S. Dep’t of Agric. Foreign Agric. Serv. & Glob. Agric. Info. Network, Shenzhen Institutes New COVID-19 Measures for Imports of Meat and Seafood, Report No. CH2020-0111 (Aug. 24, 2020), https://apps.fas.usda.gov/newgainapi/api/Report/DownloadReportByFileName?fileName=Shenzhen%20Institutes%20New%20COVID-19%20Measures%20for%20Imports%20of%20Meat%20and%20Seafood%20%20_Guangzhou%20ATO_China%20-%20Peoples%20Republic%20of_08-22-2020.  Edmont et al., supra note 1; Dominique Patton, Why is China Suspending Imports from Some Meat Processors?, Reuters (Aug. 25, 2020), https://www.drovers.com/article/why-china-suspending-imports-some-meat-processors.  Id. at art. 2(3).  Agreement on the Application of Sanitary and Phytosanitary Measures, 1867 U.N.T.S. 493.  European Communities — Measures Concerning Meat and Meat Products (Hormones) is case of first impression on many issues in the SPS Agreement. It seemed to establish that a zero-risk level is acceptable, but this is disputed now in light of Japan — Measures Affecting the Importation of Apples.  Eun Sup Lee, et al., Scientific Principle Under the SPS Agreement, 148 Int’l Proc. of Econ. Dev. and Rsch. 148 (2010).  Id. at 151.  Agreement on the Application of Sanitary and Phytosanitary Measures, arts. 2(2), 3(1), 1867 U.N.T.S. 493.  Lee, supra note 9, at 151.  Id.  National Fisheries Institute Statement on COVID19 and the Safety of Imported Shrimp, About Seafood (July 10, 2020), https://www.aboutseafood.com/press_release/national-fisheries-institute-statement-on-covid19-and-the-safety-of-imported-shrimp-2/.  Katherine Wu, You Probably Won’t Catch the Coronavirus From Frozen Food, N.Y. Times (Aug. 13, 2020), https://www.nytimes.com/2020/08/13/health/coronavirus-frozen-food.html#:~:text=Reports%20that%20the%20virus%20was,But%20experts%20aren’t%20worried.  Id.  Three New Places, What Did the Chinese Center for Disease Control and Prevention Find, Cent. Comm’n for Discipline Inspection and State Supervision Comm’n (June 19, 2020, 7:30 AM), http://www.ccdi.gov.cn/toutiao/202006/t20200618_220376.html  Qin, supra note 2.  Edmont et al., supra note 1.  Agreement on the Application of Sanitary and Phytosanitary Measures, art. 11(2), 1867 U.N.T.S. 493.  Theofanis Christoforou, Settlement of Science-Based Trade Disputes in the WTO: A Critical Review of the Developing Case Law in the Face of Scientific Uncertainty, 622 N.Y.U. Env’t L. J., 643 (2013).  Appellate Body Report, European Communities – Measures Concerning Meat and Meat Products (Hormones), ¶ 186, WTO Doc. WT/DS26/AB/R, WT/DS48/AB/R (adopted Feb. 13, 1998)  Lee, supra note 9, at 152. The views expressed in this post represent the views of the post’s author only.