Previous studies on mega Free Trade Agreement (FTA) Sanitary and Phytosanitary (SPS) provisions have primarily focused on the translation and preparation required for implementing the SPS regulations outlined in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). However, in order to gain a comprehensive understanding of the current state of SPS regulations in recent FTAs, this study goes beyond the CPTPP and also includes the Regional Comprehensive Economic Partnership (RCEP), which is currently the largest FTA in existence and came into effect in Korea in February 2022. Additionally, the study compares these regulations with those of the United States-Mexico-Canada Agreement (USMCA).
In addition to examining the SPS provisions of these mega FTAs, this study also investigates the status of domestic legislation related to SPS regulations in four specific areas: livestock quarantine, plant quarantine, fishery quarantine, and food quarantine. By conducting this analysis, the study aims to provide a comprehensive overview of the SPS chapter regulations in these mega FTAs as well as the domestic measures implemented in relation to SPS in the aforementioned sectors.
Prior to the introduction of the Mega FTA, all of Korea’s bilateral FTAs included SPS provisions or chapters, but few included WTO Plus provisions. Furthermore, most bilateral FTAs specified that the dispute settlement procedures of the FTA would not be applicable to SPS provisions or chapters. The primary WTO SPS Plus provision found in these FTAs was the inclusion of an FTA SPS Committee, which served as a platform for bilateral discussions on SPS issues and facilitated information exchange. Additionally, depending on the FTA partner, FTA SPS chapters included WTO Plus provisions such as regionalization procedures, risk analysis in their own country, and cooperation on animal welfare.
However, there has been a notable shift in this trend with the introduction of Mega FTAs. The SPS chapters of the CPTPP, the RCEP, and the USMCA have witnessed a significant increase in the number of provisions. On average, these mega FTAs contain 18.3 provisions in their SPS chapters, which is considerably higher than the average of 5.7 provisions found in Korea’s previously concluded FTAs.
The SPS chapters of these mega FTAs encompass a range of WTO SPS plus provisions. These provisions cover various aspects such as regionalization, equivalence, risk analysis, emergency measures, audit, certification, import inspection, transparency, and more. The inclusion of these provisions demonstrates a greater emphasis on enhancing and expanding the regulatory framework related to sanitary and phytosanitary measures within the mega FTAs.
The CPTPP and USMCA acknowledge the importance of adapting to regional conditions, including the concept of compartmentalization, as a means to facilitate trade. While the CPTPP and USMCA do mention this approach, they do not explicitly outline specific obligations regarding compartmentalization, unlike the EU-Japan Economic Partnership Agreement (EPA) which recognizes the concepts of zones and compartments as defined in the OIE Terrestrial Animal Health Code and OIE Aquatic Animal Health Code.
However, the Mega FTAs do aim to enhance the transparency of the regionalization process by incorporating non-binding procedural provisions outlined in the Guidelines to Further the Practical Implementation of Article 6 of the Agreement on the Application of Sanitary and Phytosanitary Measures (G/SPS/48). By mandating these provisions, there is an expectation that the transparency surrounding the regionalization process will improve. It is worth noting that the Mega FTAs commonly impose the obligation to consider international standards, guidelines, and recommendations, necessitating the identification of trends in the establishment of such standards by international standard- setting bodies (ISSBs).
The SPS chapters of the CPTPP and USMCA require the application of equivalence for a measure, a group of measures, or on a systems-wide basis, “to the extent practicable and appropriate.” It is worth noting that the Mega FTAs also share the characteristic of incorporating increased transparency regarding various procedural requirements in the application of equivalence.
The Mega FTAs introduce the notion of “risk analysis,” which encompasses not only the “risk assessment” outlined in the WTO SPS Agreement but also includes the concepts of “risk management” and “risk communication.” This expanded perspective strengthens the procedural obligations related to SPS measures within these FTAs. In addition, except for emergency measures, if an importing Party has permitted the importation of a product from another Party at the time it initiates a review of SPS measures, it shall not suspend the importation of that product solely because the importing Party is conducting a review.
The Mega FTA SPS Chapters enable Parties to take the emergency measures they deem necessary to protect food safety, and human, animal and plant health. In addition, the Mega FTAs introduce an audit provision that were not included in the WTO SPS Agreement. These provisions establish specific rules and procedures to prevent different audit-related regulations in different countries from becoming trade barriers, especially when it comes to conducting on-site due diligence.
The Mega FTAs have implemented provisions to ensure that certification requirements only require information related to SPS issues to the extent necessary. Import checks for SPS requirements are based on the actual potential risks posed by the import. The Mega FTAs also include provisions to enhance transparency, such as allowing at least 60 days for other Parties to provide written comments after, notification of a proposed or changed SPS measure.
Korea has undertaken significant legislative revisions to align with the quarantine requirements of the Mega FTAs. With the exception of fishery quarantine, the country appears to be well-prepared and continues its efforts to enhance preparedness. However, despite having established these legal frameworks, there may be challenges in effectively conducting risk analysis for quarantine purposes.
In addition to legislative improvements, it is crucial to address the demands of the Mega FTA quarantine environment through additional measures. This includes providing training for professionals in the field and expanding financial resources and infrastructure. These efforts are essential to ensure that border quarantine measures are not compromised in practice. Notably, the CPTPP and USMCA explicitly specify the application of FTA dispute settlement procedures to SPS chapters, enabling disputes to be resolved swiftly. However, in the case of RCEP, the decision on whether the SPS chapter will be subject to the FTA dispute settlement procedure is set to be discussed two years after its entry into force. Given the potential for SPS-related disputes within the Mega FTA quarantine environment, it is imperative to be prepared for such scenarios.
In particular, considering the trade concerns that have emerged in recent discussions at the WTO SPS Committee, issues such as regionalization and equivalence recognition are of utmost importance. It is crucial to develop legislation based on a comprehensive understanding of relevant international laws and to provide training for trade experts to effectively address these matters.
The Korean government is currently participating in IPEF negotiations. Some US agricultural companies have proposed that the IPEF Pillar 1 agriculture sector negotiations be based on the CPTPP and USMCA SPS chapters, indicating that the influence of Mega FTA SPS chapters will continue to strengthen in the near future.
Furthermore, there is a possibility that the Mega FTA SPS chapter will serve as a reference point in the ongoing negotiations for the improvement of existing FTAs. Considering the difficulties in using FTAs to claim exceptions for violations of the non-discrimination obligations under the WTO SPS Agreement, the establishment of procedural regulations within a single FTA SPS chapter can contribute to enhancing transparency in SPS procedures on a global scale. Therefore, any revision of the FTA SPS chapter should be approached cautiously, taking into account domestic considerations and the potential increase in administrative costs.
It is hoped that through the collaborative efforts of the government, industry, and academia, we can successfully navigate the challenging waters of the Mega FTA quarantine environment. This requires careful preparation and consideration of various factors to overcome the obstacles and uncertainties that lie ahead.