At last months meeting of the WTO’s sanitary and phytosanitary (SPS) committee, Egypt made some rather insightful analysis of the application of special and differential treatment, or the lack thereof, under the SPS Agreement. The SPS Agreement (Article 10.1) seemingly obliges Members to attend to special and differential treatment for developing country members. The SPS Agreement text uses mandatory language stating that Members ‘shall’ take accountofthe special needs of developing country Members, and in particular least developed countries when preparing and applying SPS measures. However this has proven to be a hollow obligation because beyond requiring that these needs be considered in the regulatory process, there is no hard obligationto actually adapt the SPS measures or their application to developing country needs.

The Egyptian analysis essentially confirmed this by studying the interpretation of a similar obligation under the WTO’s antidumping agreement by WTO dispute settlement panels. This route was taken because to date panels have not been required to make this analysis for the SPS Agreement specifically.  Egypt observed that the interpretation given in these panel cases is that this language indeed imposes no specific obligation on Members to undertake any particular action.  Similar interpretation could then likely be given to the provisions relating to technical assistance in the SPS Agreement.  Egypt is furthermore extending their analysis to examine the procedure adopted by the SPS Committee by which Members can identify their need for special and differential treatment with respect to specific measures taken by their trading partners.  The aim of the analysis is to examine why developing country Members (notably African countries) are not making use of this procedure. It is notable that developing countries are not seeking exceptions to the substantive provisions of the SPS Agreement that might result in health risks for other countries, but rather assistance to enable these countries to meet the health requirements of their trading partners.
It is concerning that while the SPS Committee has adopted a facilitatory mechanism to oil the SPS machine for African countries, the potential beneficiaries seem unable to apply this oil. This confirms a local analysis conducted in 2006 by the ComMark Trust together with Hilton Zunckel, where it was found that a lack of attendance of international standards setting body meetings and a concomitant lack of engagement in the work of these international bodies lies at the heart of this problem.
This lacuna was directly addressed this month by the Southern African Confederation of Agricultural Unions (SACAU) who has appointed a dedicated ‘Standards Coordinator’ to work with SADC governments and agricultural associations to greatly improve Southern Africa’s participation in the WTO SPS Committee and its 3 sister bodies (Codex, the IPPC and the OiE) in a direct way. The Standards Coordinator will administer a grant fund which will ensure that poorer countries can fund the costs of meeting attendance, and probably more importantly, will arrange for the necessary scientific support to capacitate effective participation of these delegates when they participate in the meetings. Sceptics have speculated that the initiative may merely be a grandiose exotic travel club. It is however far more probable that SADC will see a measurable increase in high value food items over the next 4 years. A similar initiative launched in Central America in the 1990’s found that even for very small countries (in one notable case a country accounting for only 1% of agricultural exports in the Americas), effective participation in the international standards forums yielded US$83 in agriculturally based exports for each US$1 invested in the domestic SPS system. These returns would dwarf even the hardiest fund manager and we wish SACAU well in their standards endeavours.

By Hilton E. Zunckel        
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