[Lee Jae-min] BSE doesn’t light candles this time

By Korea Herald
  • Published : May 17, 2012 - 20:12
  • Updated : May 17, 2012 - 20:12
It was exactly four years ago when candlelight vigils almost engulfed Korean society because of the concern over the bovine spongiform encephalopathy, widely known as a mad cow disease. The recent occurrence of the BSE in California in late April caused a deja vu feeling, but has not led to the repetition of similar protests.

Upon the return of the on-site verification team from the visit to the United States, confirming that the April outbreak is “atypical” and the risk has been found to be contained, some retailers in Seoul even resumed sales of the U.S. beef. The only difference after the outbreak is the heightened inspection at the border.

Critics of the government’s response argue that import prohibition or, at a minimum, suspension of inspection is in order, but the public response has been largely cooler than four Mays ago. The headline of the website of the Ministry for Food, Agriculture, Forestry and Fisheries notes that none of the 177 other American beef-importing countries have taken any meaningful new measure since the April outbreak.

Not surprisingly, import restrictions arising from food safety concerns is yet another area in which national sovereignty meets a treaty obligation. This issue is now regulated by the WTO’s Agreement on the Application of Sanitary and Phytosanitary Measures (or the SPS Agreement).

With the danger of over-simplicity, the complex web of provisions in the agreement can be summarized into one bullet point: A country can do whatever it wants as long as there is scientific evidence to support it. The concept of “sovereignty” is captured in the first part of the sentence, while the second part sets forth the homework to be done. People are obsessed with the first part but tend to forget the second one.

To apply this principle to an actual food safety regulation, any country can declare, on its own accord, which food is safe to consume and which is not. One country could even say that it wants to be more sensitive or even hyper-sensitive when it comes to a particular product. Or one country could even say that it respectfully objects to the mainstream view of the international community. Nobody is telling anyone to change their view.

But this national position should come with scientific evidence and a risk assessment based on it. So, in the realm of the SPS Agreement, only a concern expressed in scientific terms and supported by scientific evidence is taken into account. Perhaps an argument can be made that doing this homework imposes too high a standard, but like it or not, that is the yardstick applicable to the situations at hand until an amendment is somehow made in the future.

Thus, a country wishing to impose an import restriction is required to conduct a scientific analysis as to why this April occurrence represents a systemic failure to regulate BSE on the part of the exporting country and why an import ban is the only way to allay the concern. The relative silence of the 177 countries perhaps stands for the proposition that the situation has not yet risen to the level of clearing the threshold.

As one may have guessed by now, the legal framework is somewhat counter-intuitive. It is not like an exporting country proves that its product is safe to consume; rather it is the importing country that should show why an import restriction is required. Criticism has been raised whether this framework adequately reflects reality.

Obviously, public opinion is rarely affected by legal discourse. What forms public opinion, at least in the initial stage of the event, may well be reflexive emotional reaction. Only a solid explanation from a government accompanied by full disclosure of information may help people follow the voice of reason over emotion.

Although an SPS measure requires scientific analysis, talking to people does not always require rocket science. Perhaps the government’s candid discussions early on explain the cautious public response in Seoul this time around.

There may be instances in the future in which Seoul would have to consider an import restriction for food safety, whether it is for a BSE occurrence or for any other contagious disease. The validity of such future restrictions always hinges upon scientific evidence and a risk assessment. Completing the task takes time and longer time if resources and infrastructure are not in place in advance. As much as SPS measures are sensitive and important, commensurate efforts should be put to cover all bases.

By Lee Jae-min

Lee Jae-min is a professor of law at the School of Law, Hanyang University, in Seoul. Formerly he practiced law as an associate attorney with Willkie Farr & Gallagher LLP. ― Ed.