South Africa has just filed its first-ever WTO complaint – but it’s not clear that it wants to win
South Africa fair deposit its very first complaint to the World Trade Organization (WTO). These are the import measures that the European Union (EU) imposed on citrus fruits in July. What makes the case intriguing is that it is not clear that the South African government wants to win.
First, the back story. In his consultation requestfiled last week, South Africa says the EU is stoking fear of the false codling moth to practice protectionism, allegedly on behalf of Spain. The false codling moth, which thrives in tropical, dry or temperate climates, represents a real risk with fruits, vegetables and other plants. To mitigate this risk, Brussels has begun to require all citrus imports to undergo cold treatment and pre-chilling procedures. South Africa argues that these “sudden and drastic changes” to the EU import regime are unscientific, too costly to comply with and have doomed shipments already at sea.
Just another trade dispute over health and safety standards? No way. Ask yourself: Why this case, and why now?
South Africa has never been a civil party to the WTO and has not live argue about health and safety standards as a defendant, or even as a third party. The consultation request highlights no less than 14 legal complaints, 11 of which relate to health and safety standards. This number is somewhat inflated by the interconnections between the claims, reflecting the structure of the WTO Sanitary and Phytosanitary (SPS) Agreement.
Yet this is an important, complex and science-based case, not exactly the kind that South Africa or any country would want to cut its teeth as a plaintiff, let alone against the EU, which jealously defends its health and safety measures.
The timing of the case is as interesting as its content. Admittedly, the EU import measures did not take effect until mid-July. But South Africa complains about Europe measures on citrus fruits black fruits for many years. These long-standing black citrus complaints invoke the same legal arguments that are currently being made over false codling moth, but only now has South Africa decided to sue Europe.
Then there is the fact that this is the first dispute to be brought to Geneva since the conclusion of the 12th WTO Ministerial Conference (MC12) in June. Prior to this meeting, South Africa, along with India, fired several shots through the institution’s arc, including proposing a waiver on intellectual property, condemning smaller trade deals called ” plurilaterals” and calling for an end to a moratorium on digital taxes. These briefs talk a lot about the interests of developed countries versus the interests of developing countries. I fear South Africa’s false codling moth case is food for this narrative.
MC12 has thrown several cans on the road, one of which concerns dispute resolution. With a wink and a nod, MC12 made a advocacy members to resuscitate “a fully functioning dispute settlement system” by 2024. I fear that the case of South Africa is more about preparing the ground for this fight than exporting oranges to Europe .
That’s not to say South Africa has a weak case. On the contrary, he could win. But win what? For example, South Africa claims that Brussels did not give sufficient notice of its new measures. Maybe, but that horse left the barn. South Africa also insists that Europe’s import regime is too trade restrictive. Maybe, but Brussels says the status quo is not working and any alternative regime will impose costs on South African exports and do nothing for shipments already at sea.
Perhaps South Africa’s strongest claim is that the EU import regime is not “based on” region-specific science, or applies differently to fruit or vegetables , for example, which present the same risk. But again, it would be a Pyrrhic victory, given that Brussels could drag its feet, including putting the case in legal limbo by appealing.
The South African Citrus Growers Association has high hopes in this case, perhaps with good reason. I fear that, win or lose, the government will turn this case into proof that the WTO dispute settlement system does not serve the interests of developing countries. It would be a mistake, and South Africa knows it.
To understand why, let’s go back to South Africa’s longstanding complaints about EU import measures on dark citrus. Brazil has sided with South Africa in these complaints, but sees the negotiation of a global standard, on an expedited basis, as the solution. This would be done under the auspices of the International Plant Protection Convention (IPPC), one of the three institutions on which the SPS Agreement is based. It’s not as big a deal as winning a decision, but it’s the way to achieve lasting peace in SPS disputes.
Interestingly, the IPPC has its own dispute resolution system, and there has been talk of using it to resolve the false codling moth case. Brussels is expected to back an expedited negotiation, seeking to settle the case in the next 60 days or less. This would be in the best interest of South African exporters, EU consumers, and would cast doubt on a narrative that will only damage prospects for WTO dispute settlement reform by 2024.
Marc L. Busch is the Karl F. Landegger Professor of International Commercial Diplomacy at Georgetown University’s Walsh School of Foreign Service. Follow him on Twitter @marclbusch.