India – measures concerning the importation
of
certain agricultural products
Communication from india
The following communication,
dated 22 September 2016, was received from
the delegation of India
with the request that it be circulated to the Dispute
Settlement Body (DSB).
_______________
On 19 June 2015, the Dispute Settlement Body
("DSB") adopted its recommendations and rulings in India – Measures Concerning the Importation of Certain Agricultural
Products (WT/DS430). At the following DSB meeting, India informed
the DSB of its intention to implement the recommendations and rulings of the
DSB with respect to this matter.
On 8 December 2015, India and the United
States informed the DSB that they had agreed on a reasonable period of time up
to 19 June 2016 for India to implement the recommendations and rulings of the
DSB. In this respect, India notified a draft
amendment notification to the SPS Committee on 20 April 20161 allowing a 60-day time period for interested
parties to provide comments to the same. Further, India vide corrigendum dated
22 June 2016, amended item 8 of the aforesaid draft amendment notification, to
appropriately reflect the relevant international standard.2
India received comments on its draft
amendment notification from only one WTO Member, namely, the United States.
These comments were taken into consideration by India while issuing the final
notification, S.O. 2337(E), which superseded the previous notification S.O.
1663(E).3 Thereafter, India notified the DSB on 18 July 2016 that it had adopted
measures necessary to comply with the recommendations of the DSB.4
Notification S.O. 2337(E) complies with the
recommendations of the DSB in this dispute as it:
i) allows imports of poultry and poultry products into India in
accordance with the relevant international standard, i.e. the OIE Terrestrial
Animal Health Code ("Terrestrial Code");
ii) recognizes the concept of disease-free areas; and
iii) provides for the process to be followed for recognition of such
disease-free areas, zones/compartments in conformity with the Terrestrial Code
and the SPS Agreement.
Further, India has also issued the relevant
guidelines referred to in notification S.O. 2337(E) as well as the
questionnaire for recognizing a part of a country, zone/compartment in
accordance with the relevant international standard, i.e. the OIE Terrestrial
Code for the purpose of trade in poultry and poultry products.
After the publication of S.O. 2337(E), India
and the United States entered into bilateral discussions to address further
concerns of the United States, if any. Pursuant to such bilateral discussions,
India has further amended notification S.O. 2337(E) vide notification S.O.
2998(E) dated 19 September 2016, clarifying the concerns of the US.5 The amendment notification has also been notified to the SPS Committee
on 21.9.20166.
Notification S.O. 2337(E) dated 8 July 2016,
and the amendment notification S.O. 2998(E) dated 19 September 2016, the
guidelines, and the questionnaire, together form the "revised Avian Influenza
measures". The notifications have been issued in exercise of the power
conferred by sub-section (1) of Section 3 and Section 3A of the Livestock Act,
1898 (9 of 1898) and came into effect on the date of publication in the
Official Gazette.
In
view of the above, India strongly considers that
it has complied with the recommendations of the DSB by bringing its measures into conformity with
its WTO obligations.
Lastly, India would draw attention to the
fact that despite requests from India, the United States has not entered into a
sequencing agreement in this dispute which is a standard practice among the WTO
members. A sequencing agreement is entered into in order to ensure that, in the
event of disagreement between the parties with respect to compliance with the
DSB's rulings and recommendations, recourse under Article 21.5 of the DSU
should be pursued as the first option.
In India's opinion, if there is a
disagreement between the parties with respect to "the consistency with a
covered agreement of measures taken to comply with the recommendations and
rulings", the proper course of action is first to have recourse to Article
21.5 of the DSU. In fact, this has also been the position of the United States
in other disputes.7 Instead, on 7 July 2016, the United States made a request pursuant to
Article 22.2 of the DSU seeking authorization from the DSB to suspend
concessions under the covered agreements in the amount of US$450 million in
2016, which will be updated annually.8 India objected to this request vide its communication to the DSB dated
18 July 2016 and at the DSB meeting held on 19 July 2016. Till date, the United
States has not agreed to suspend the arbitration proceedings under Article 22.6
of the DSU.
In view of the fact that India has brought itself
into conformity with its WTO obligations, India would urge the United States to
terminate the Article 22.6 proceedings in this dispute.
__________
1 Notification of draft S.O. 2337(E)
to the SPS Committee, G/SPS/N/IND/143 circulated on 20 April 2016.
2 Notification of corrigendum to the
SPS Committee, G/SPS/N/IND/143/Corr.1 circulated on 22 June 2016.
4 Communication from India,
WT/DS430/18 circulated on 19 July 2016.
7 US
- Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna
Products, Recourse to Article 21.5 of the DSU by the United
States, WT/DS381/32 circulated on 12 April 2016, page 3.
8 Recourse
to Article 22.2 of the DSU by the United States, WT/DS430/16 circulated on 8
July 2016.