The legality of quantitative restrictions, sanitary and phtosanitary measures in the Southern African development community

Abstract

Among the trade restrictions that are prevalent in the Southern African Development Community (SADC) are quantitative restrictions, sanitary and phytosanitary measures (SPS measures). When SADC members adopted the SADC Protocol on trade (Protocol) as the key legal instrument to regulate the liberalisation of intra-SADC trade in goods, it meant that SADC members should open up their borders to free trade in goods. This would also mean that trade restrictions appearing in the form of quantitative restrictions and SPS measures had to be removed, and for those that should be maintained, they must be consistent with the terms of the Protocol. The possibility of achieving this goal may be difficult due to specific gaps and inadequacies in some of the rules relating to the application and removal of quantitative restrictions. In addition, the SPS Annex to the Protocol has not been domesticated. Another challenge is the failure by SADC to effectively implement the requirements of transparency under the WTO SPS agreement. There is also the foreseeable challenge of failing to effectively fulfill the requirement to base SPS measures on scientific evidence due to lack of financial and technical resources. Even more, specific fundamental rules on harmonisation of SPS measures under the Protocol and SPS Annex are so mixed up that the nature and extent of SADC members’ commitment to harmonise SPS measures is uncertain. This mixture also creates a complex regime which could raise difficult challenges during implementation of the SPS Annex, should it finally enter into force. The fact that the development integration approach prioritises socio-economic development may even make the achievement of economic integration harder since divergent national interests’ takes precedence and overshadows effective leadership and decision making processes. Coupled with lack of political will, lack of strong leadership, and differences in culture and ideologies it is difficult to foresee how the legality of quantitative restrictions and SPS measures can be effectively determined within such a legal and political economy. That notwithstanding, it is possible to determine the legality of quantitative restrictions and SPS measures if there is a paradigm shift in the regulation of quantitative restrictions and a deliberate v

concerted effort to jointly meet the terms of the SPS Annex especially for generic and prevalent health and life threatening risks in SADC. Again, SADC states need to be willing to respect their regional commitments, surrender even part of their sovereignty so that the legislative inadequacies in the fundamental provisions of the Protocol can be addressed in order to establish a broad set of rules that regulates NTBs and NTMs and also meets the peculiar trading conditions in the SADC region.