It looks like France is finding itself on the "other" side of an SPS case. Today's FT reports that 20 countries have determined to block poultry imports from France.
Franz-Josef Feiter, secretary general of Copa-Cogeca, the European farmers’ lobby, said the bans were not justified, because Europe was culling any birds at risk and inspecting others before export. However, there appeared to be no legal recourse through the World Trade Organisation.
The two statements attributed to Feiter seem at odds with one another. An "unjustified" ban would be likely to violate Article 2.2 of the SPS Agreement.
In the Dubai ports case, we have the U.S. rejecting foreign investment due to concerns about national security. In Mittal/Arcelor, France has concerns about foreign domination of its economy. These concerns about foreign investment have, in the past, been voiced more frequently (but not exclusively) by developing countries. In the bird flu case, 20 other countries are concerned about health risks posed by French goods. In the past, France has been on the other side of SPS cases. These are good examples of stochastic symmetry and role reversability. The point is that when a particular legal rule is negotiated it is less clear than a realist might expect what side of a dispute the negotiating states might eventually be on. Harsanyi’s classic article on this topic, “Cardinal Welfare, Individualistic Ethics, and Interpersonal Comparisons of Utility,” was published in the 1955 Journal of Political Economy. Harsanyi’s concept of stochastic symmetry refers to the idea that parties may enter into an agreement where they are unsure—under a veil of uncertainty—as to precisely how the agreement will affect their particular interests. They can see that the agreement is an overall improvement, and are assumed to be willing to take a chance as to how that welfare improvement is distributed. This uncertainty allows states to accept legal rules where they might otherwise be in a distributive standoff.
