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The Last Frontier: Sanitary and Phytosanitary Standards and Technical Regulations as Non-Tariff Barriers in Intra-African Trade

Document Cited authorities 2 Cited in Related
Vincent
Pages174-195
Date01 February 2015
Published date01 February 2015
DOI10.3366/ajicl.2015.0115
<p> <disp-quote> <p>If non-tariff measures are today's and tomorrow's main obstacles to trade, we need to make sure that the manner in which these measures are addressed contributes to levelling-and not scattering-the playing field.<xref ref-type="fn" rid="fn1"><sup>1</sup></xref><fn id="fn1"><label>1</label><p>See P. Lamy, WTO Director General, farewell statement to the General Council on 24 July 2013’, <italic>WTO News items</italic> (2013), available at <ext-link ext-link-type="uri" xlink:href="http://www.wto.org/english/news_e/news13_e/gc_rpt_24jul13_e.htm" xlink:type="simple">http://www.wto.org/english/news_e/news13_e/gc_rpt_24jul13_e.htm</ext-link>.</p></fn></p> </disp-quote> </p> INTRODUCTION

The main objective of the General Agreement on Tariffs and Trade (GATT)2

See the General Agreement on Tariffs and Trade, reprinted in the Legal Texts, the Results of the Uruguay Round of Multilateral Trade Negotiations, Cambridge University Press (2004), pp. 423–92. (Hereinafter The GATT 1947).

was the facilitation of trade among members through the reduction of tariffs. Between January 1948, when it became applicable, and January 1995, when it was supplanted by the World Trade Organization (WTO),3

See supra note 2, pp. 4–14.

 the GATT managed, through successive negotiating rounds, to reduce tariffs on industrial products from over 40 per cent, on average, to less than 4 per cent, on average.4

See P. Van Bossche, The Law and Policy of the World Trade Organization, Cambridge University Press (2005), pp. 81–2.

 As tariffs decreased with each negotiating round, so did their importance as barriers to trade. Instead, focus shifted to non-tariff barriers to trade.5

For an analysis of non-tariff barriers see World Trade Organization (WTO), World Trade Report 2012: Trade and Public Policies: A Closer Look at Non-tariff Measures in the 21st Century, WTO Publications (2012) (hereinafter WTO World Trade Report 2012); Organisation for Economic Co-operation and Development (OECD), Looking Beyond Tariffs: The Role of Non-Tariff Barriers in World Trade, OECD (2005).

 It was during the Kennedy round of negotiations (1964–7) that non-tariff barriers to trade (NTBs) were first tabled for negotiation in the GATT.6

See World Trade Organization (WTO), World Trade Report 2007: Six Decades of Multilateral Trade Cooperation: What Have We learnt?, WTO Publications (2007), p.184.

However, it was not until the Tokyo round of negotiations (1973–9) that standards and technical regulations7

For an analysis of standards and technical regulations and their role in international trade see World Trade Organization (WTO), World Trade Report 2005: Exploring the Links Between Trade, Standards and the WTO, WTO Publications (2005) (hereinafter World Trade Report 2005).

were recognised as important non-tariff barriers that required to be disciplined and negotiated, resulting in the plurilateral Agreement on Technical Barriers to Trade (Standards Code).8

See V. Heiskanen, ‘The Regulatory Philosophy of International Trade Law’, 38(1) Journal of World Trade (2004): 1–36, at 5.

 During the Uruguay Round of negotiations (1986–95), a consensus emerged over the need for a separate Sanitary and Phytosanitary Agreement that would apply universally,9

See G. Marceau and J.P. Trachtman, ‘The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade’, 36(5) Journal of World Trade (2002): 811–81, at 814.

 and this resulted in two WTO agreements: the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement)10

For an analysis of the SPS Agreement see L. Gruszczynski, Regulating Health and Environmental Risks Under WTO Law: A Critical Analysis of the SPS Agreement, International Economic Law Series, Oxford University Press (2010).

 and the Agreement on Technical Barriers to Trade (TBT Agreement).11

For an analysis of the TBT Agreement see A. E. Appleton, ‘The Agreement on Technical Barriers to Trade’, in P.F.J. Macrory, A.E. Appleton and M.G. Plummer (eds), The World Trade Organization: Legal, Economic and Political analysis, Springer (2005), pp. 371–409.

 The SPS Agreement aims to discipline national SPS standards relating to the protection of plant, animal and human health,12

See SPS Agreement, Annex A (1) for the definition of an SPS standard.

 while the TBT Agreement aims to do so for technical regulations (which are mandatory) and standards (which are voluntary.)13

TBT Agreement, Annex 1(1) and (2).

 The agreements discipline SPS standards and TBT regulations by requiring inter alia that these are: based on scientific principles and are not maintained without sufficient scientific evidence; do not create unnecessary obstacles to trade; are transparent, justifiable, non-discriminatory; and are based on international standards whenever possible. SPS standards and TBT regulations are categories of non-tariff measures (NTMs).14

See United Nations Conference on Trade and Development (UNCTAD), Classification of Non-Tariff Measures, February 2012 version, UNCTAD/DITC/TAB/2012/2, United Nations Publications (2013): 7–20. The classification categorises NTMs based on their scope and/or design. Both SPS and TBT measures are categorised as technical measures and are placed in chapters A and B respectively and reflect the requirements of importing countries on their imports. The measures are further divided into subgroups with finer classification.

NTBs are a species NTMs. NTMs have been defined as, ‘… policy measures, other than ordinary customs tariffs, that can potentially have an economic effect on international trade in goods, changing quantities traded, or prices or both’.15

See United Nations Conference on Trade and Development (UNCTAD), Non-Tariff Measures: Evidence from Selected Developing Countries and Future Research Agenda, UNCTAD/DITC/TAB/2009/3, United Nations Publications (2010), p. xvi.

Hence, NTMs are on the face of it neutral government policies that may have an impact on international trade.16

For an economic perspective on NTMs see R. W. Staiger, Non-tariff Measures and the WTO, Staff Working Paper No. ERSD-2012-01, WTO publications (2012).

 Where such measures act as prohibitions or restrictions on trade or where they distort international trade without necessarily restricting it, they are considered to be NTBs.17

See R. Santana and L. A. Jackson, ‘Identifying Non-tariff Barriers: Evolution of Multilateral Instruments and Evidence from the Disputes (1948−2011)’, 11 (3) World Trade Review (2012): 462–78, at 475.

 SPS standards and TBT regulations play a positive role in the expansion of international trade by providing information, reducing transaction costs, guaranteeing safety and quality of goods and achieving the provision of public goods. However, they impact negatively on international trade when designed or applied to restrict imports and to protect local producers.18

See World Trade Report 2005, supra note 7, at 129–30.

 It is under the latter circumstances that SPS standards and TBT regulations qualify as NTBs.19

See N. Charalambides, What Shoprite and Woolworths Can Tell Us About Non-tariff Barriers, Occasional Paper no. 148, Economic Diplomacy Programme, South African Institute of International Affairs (SAIIA) (2013): 10, available at http://www.saiia.org.za/occasional-papers/what-shoprite-and-woolworths-can-tell-us-about-non-tariff-barriers. According to the author:

An NTM becomes an NTB when: (a) it is not transparent; (b) it is discriminatory; (c) it is not based on internationally agreed standards or scientific evidence; (d) there is an alternative, less trade distorting measure or approach that could be used to achieve the same policy objective; or (e) the measure is not proportional to the risk it tries to protect against.

NTBs are now acknowledged to be the main obstacle to international trade.20

See Lamy, supra note 1.

Among the incidences of NTBs reported in international trade, SPS standards and TBT regulations are the most frequently encountered,21

See WTO World Trade Report 2012, supra note 5, at 8.

 and most difficult to comply with.22

See O. Cadot, M. Maliszewska and S. Saez, ‘Non-Tariff Measures: Impact, Regulation, and Trade Facilitation,’ in G. McLinden, E. Fanta, D. Widdowson and T. Doyle (eds), Border Management Modernization, The World Bank (2011): 215–30, at 216.

 Furthermore, SPS standards and TBT regulations are more prevalent in agricultural trade, accounting for 59 per cent of reported incidences, than in industrial trade, where they account for 34 per cent of the reported incidents.23

See WTO World Trade Report 2012, supra note 5, at 8 and 117–18.

 Continuing the same trend, the incidence of SPS standards and TBT regulations in intra-African trade is higher than other categories of NTMs, other than pre-shipment inspections.24

See United Nations Conference on Trade and Development (UNCTAD), Non-Tariff Measures to Trade: Economic and Policy Issues for Developing Countries, Developing Countries in International Trade Studies series, United Nations Publications, UNCTAD/DITC/TAB/2012/1 (2013): 5–6.

SPS standards and TBT regulations in international trade have the object of preventing market failures, e.g. by providing information to consumers concerning food safety and information to producers on plant and animal health and also information on environmental conservation.25

See Organisation for Economic Co-operation and Development (OECD), Non-Tariff Measures in Agri-Food Trade: Improving Policy Coherence for Development, OECD (2013), at 3–4.

The high incidence of SPS standards and TBT regulations, particularly in the European Union (EU) and the United States of America (USA), may be attributed to enhanced consumer awareness and activism due to frequent food safety crises such as: the outbreak of Escherichia coli (E. coli) in the USA;26

See USA Centres for Disease Control and Prevention, available at http://www.cdc.gov/ecoli/outbreaks.html

 the outbreak of bovine spongiform encephalopathy (BSE or Mad Cow Disease) in the EU;27

See European Food Safety Authority (EFSA), available at http://www.efsa.europa.eu/en/topics/topic/bovinespongiformencephalopathy.htm

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