The proliferation of private voluntary standards (private standards) in international food trade has precipitated a surge of inter-disciplinary discourse on the topic. Conceptual premises have been diverse, but a common thread through the discourse has been their practical impact on developing-country producers (particularly small to medium scale ones). The present paper contributes to legal analyses of private standards. It builds upon existing discourse on rules-based responses to private standards, from the conceptual premise of the rule of law. The perspective of the paper is that private standards are creating conditions wherein the rule of law in international food trade is being placed under strain. With that, the utility of the rules-based system of international food governance has begun to diminish. The viewpoint in this paper is that, from the perspective of the WTO, responses to private standards should be underlain by considerations of safeguarding the rule of law. Underscoring this is that a rule of law approach is the most ideal, in the long-term, for the WTO system and for low income Members themselves. The paper concludes that this will entail a necessarily multipronged strategy towards the challenges presented by private standards – one which incorporates rules-based responses, other interventions from within the WTO, and responses from outside of the WTO. / Dissertation (LLM)--University of Pretoria, 2012. / Centre for Human Rights / unrestricted

在食品貿易全球化的趨勢下，食源性疾病將隨著跨國貿易而擴散，如何在促進貿易的同時亦確保人類食用之安全，即為當今重要之議題。WTO作為涵蓋最多貿易經濟體，並係目前處理國際貿易規則的唯一全球貿易國際組織，對於食品安全與貿易議題，在SPS協定第4條訂有「同等效力」規範作為權衡兩種利益之對策。在國際食品貿易領域下，同等效力係指若進口國對於出口國所採「相異」於進口國本身之SPS措施，如出口國之SPS措施達到與進口國國內「相同」的保護水準，即可認定出口國之措施具備同等效力而承認之，而非要求出口國採用與進口國完全一致之SPS措施。 國際間依據該規範，尤以美國及歐盟為例，實施「輸入前系統性查核機制」，即在食品輸入前先行對出口國之食品安全體系及政府監督措施進行審查，經評估後判定其保護水準與進口國具備同等效力後，該出口國始得出口食品，大幅提升食品安全之保護水準。我國亦順應該趨勢，於民國103年2月11日由衛生福利部公布施行〈輸入食品系統性查核實施辦法〉，將食品安全管制時點從邊境提前至境外。 為瞭解我國規範是否完善，本文將利用比較法的方式，先了解各該國際規範以及美國與歐盟兩大食品貿易國之規範內容，並檢視我國系統性查核機制並提出可能之建議。本文以為，我國已具備同等效力之基本運作架構，惟細部的運作規則、如何判斷同等效力、如何確保後續同等效力之維持，並無明確之規定。故本文建議應先健全我國系統性查核機制之運作及法律機制，以備將來擴大適用。 / With the trend of international trade in food products, foodborne illnesses spread through cross-border trade. Therefore, how to ensure food safety of human consumption while facilitating trade is the most critical issue nowadays. As the only international organization dealing with the global rules of trade between nations, the WTO SPS agreement article 4 provides the “equivalence” mechanism as a way to balance the rights between trade and food safety. In the field of international food trade, the equivalence means that SPS measures does not require duplication or sameness of measures between exporting and importing Members, but the acceptance of alternative measures that meet importing Member's appropriate level of sanitary or phytosanitary protection. Based on the provisions governing equivalence mechanism, each state would implement ante systematic audit, via reviewing food safety system and monitoring measures adopted by competent authorities of exporting party before the importation of food products. As long as the importing state makes a positive determination recognizing of the appropriate level of protection has been achieved, the food products from exporting party are eligible to export to the market of importing state. Such mechanism facilitates cross-border trade in food products and secures the interests of food safety. With this trend, our government enacted the Regulations for Systematic Inspection of Imported Food in recent years. This thesis tries to review the soundness of current Regulation through comparative analysis with international rules and regulations of the US as well as EU. The conclusion is that our system lacks of the specific rules for operation, determination of equivalence and the assurance of the equivalent persistency. Consequently, our government should set up these core elements before transforming current rules to a more comprehensive mechanism in the future.