On Friday, the Office of the US Trade Representative (USTR) announced that it has requested the establishment of a WTO panel to hear a complaint concerning import restrictions relating to the spread of avian influenza. The request is not up on the WTO website yet, but a USTR press release frames the issue in the following terms:
India is asserting it has the right to impose import restrictions on countries whenever they report outbreaks of low pathogenic avian influenza (LPAI), the only kind of avian influenza found in the United States since 2004. The relevant international guidelines as well as the relevant science do not support the imposition of measures of the type India is maintaining on account of LPAI.
The essence of the claim appears to be that India is imposing measures above and beyond those set out in World Organization for Animal Health (OIE) guidelines (to achieve a higher level of health protection), but that India’s chosen level of protection has not been set in accordance with rules governing risk assessment in Article 5 of the SPS Agreement.
Once the Request for Consultations is up on the website, I will examine the issues in further detail on this blog. In the meantime, it is worth noting that the claim comes on the back of a recent report by India to the OIE concerning a domestic outbreak of highly pathogenic avian influenza from an unknown source. It is difficult to know whether this is mere coincidence, or whether the US was aware of the outbreak and has timed the claim in an attempt to take advantage of the outbreak.
The claim is also likely to be a significant source of tension in India – US diplomatic relations at a time when the two countries are preparing for a strategic dialogue. In this respect, India and the US are undertaking consultations at the WTO concerning the imposition of countervailing duties in the US on carbon steel flat products from India. This consultation was initiated by India shortly after the consultation concerning agricultural imports was initiated by the US, suggesting something of a tit-for-tat claim and counterclaim dynamic. India is also said to be readying a claim concerning visa fee hikes that have affected Indian nationals in the US.
Most prominently (at least from a trade and health perspective), the US also has India on its “Priority Watch List” under the US Special 301 Report. This report, which is billed as an annual review by USTR of the state of intellectual property rights protection and enforcement, was critical of a number of aspects of Indian IP law and enforcement, including some that facilitate access to medicines through production of generic pharmaceuticals. In response, the Indian Commerce and Industry Minister shot back a letter to the USTR protesting that India is in compliance with its WTO commitments.
So, what does all of this mean for trade and health in the India – US strategic dialogue? Most obviously, those who support Indian efforts to promote access to medicines can breath a sigh of relief. The antagonistic trade relationship between the two countries would appear to be an additional reason for India refusing to compromise on IP issues. On the other hand, that same antagonistic relationship may be propelling a dispute on measures to address the spread of avian influenza forward. How this might affect global efforts to control infectious diseases is an issue worth watching.