Nature and Enforceability of WTO-plus SPS and TBT Provisions in Canada's PTAs: From NAFTA to CETA

Safety standards can function as non-tariff barriers to trade. Canada is a large exporter of goods and so it has an interest in the regulation of safety standards, both at the multilateral level through its membership of the World Trade Organization (WTO) and, most especially, at the bilateral and regional level through its Preferential Trade Agreements (PTAs). Canada has signed PTAs with provisions that go beyond the obligations of WTO Members under the Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Technical Barriers to Trade. This article analyses the nature and enforceability of WTO-plus provisions on sanitary and phytosanitary standards (SPS) as well as product standards (TBT) in Canada's PTAs, from the North American Free Trade Agreement (NAFTA) between Canada, Mexico, and the United States to the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union. First, it finds that the inclusion of WTO-plus SPS and TBT provisions in Canada's PTAs is a relatively recent practice that is still in development. Only about half of Canada's PTAs contain WTO-plus SPS and TBT provisions and, those treaties that do, commonly concern institutions for regulatory cooperation and information exchange arrangements, without much commitment to harmonization. Secondly, it finds that nearly half of the SPS and TBT provisions in Canada's PTAs are unenforceable. They either are in a language that is too imprecise for enforcement or do not allow access to a dispute settlement mechanism. Thirdly, it finds that, by global standards, most of Canada's PTAs are modest in their approach to SPS and TBT issues, with NAFTA and CETA as key exceptions. The article concludes that the extent to which regulatory convergence occurs on safety standards for Canada is dependent more on political cooperation between the parties than on the nature and enforceability of SPS and TBT provisions in its PTAs.