ABSTRACT

Since 1947, effective levels of average tariff protection have declined, as regulatory protectionism – behind the border – has risen. To a large extent, the greater gains from continued trade opening lie in the area of pro-competitive domestic regulatory reform, codified in duly enacted legislation with associated implementing regulations. In the practice of WTO accession negotiations, specific obligations have focused more on regulatory areas of the foreign trade regime. The evidence from thirty-three deposited Accession Protocols shows that there have been ninety-three specific obligations undertaken on sanitary and phytosanitary (SPS) measures. Pursuant to WTO Accession Protocols, these are now integral to the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement). The quantum of citation in WTO jurisprudence in the area of SPS is considerable: since 1995, 42 out of 494 WTO dispute settlement cases have cited the WTO Agreement on Sanitary and Phytosanitary Measures in the request for consultations. This chapter examines the evolution of accession results on SPS from 1995 to 2015, and their contributions to the enhancement of the existing WTO legal and policy framework on SPS. Specifically, this chapter focuses on the increasing importance of SPS regulatory issues in the foreign trade regimes of WTO members, the substance of specific SPS obligations undertaken by Article XII members and their relationship to the WTO Agreement, and the core questions that have emerged on the SPS accession treaty dialogue in the context of customs union agreements. As demonstrated in this chapter, SPS accession commitments undertaken by thirty-three Article XII WTO members have exercised a significant influence on WTO jurisprudence. To a large extent, this has further clarified and strengthened WTO law.

Recent studies show that trade protectionism remains a challenge. Protectionism has been on the rise across the world over the past several years. With the increase in WTO jurisprudence, potentially trade-restrictive measures have become more sophisticated, that is, less clear. The trend suggests both tariff and non-tariff measures, of which measures aimed at protecting human, animal or plant life or health constitute a considerable part. To better counter the protean nature and pernicious trade effects of murky protectionism in this area of the foreign trade regime, the negotiating treaty dialogue in accession negotiations has been more pointed, targeted and exhaustive, culminating in a record ninety-three WTO accession commitments on sanitary and phytosanitary (SPS) measures undertaken by thirty-three Article XII WTO members.