MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS DISPOSITIONS ON SANITARY AND PHYTOSANITARY (SPS) MEASURES IN THE NEW GENERATION OF FREE TRADE AGREEMENTS OF VIETNAM Specialization: International Trade Policy and Law FULL NAME: LE NGOC TRAM Hanoi – 2019 MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS DISPOSITIONS ON SANITARY AND PHYTOSANITARY (SPS) MEASURES IN THE NEW GENERATION OF FREE TRADE AGREEMENTS OF VIETNAM Major: International Economics Specialization: International Trade Policy and Law Code: 8310106 Full name: Le Ngoc Tram Supervisor: Dr Nguyen Ngoc Ha Hanoi - 2019 STATEMENT OF ORIGINAL AUTHORSHIP I hereby declare that this master thesis is my own scientific research which is made under the guidance of my supervisor, Dr Nguyen Ngoc Ha The contents and results of this research are completely honest The information, data and documents which are collected from various sources for analysis and evaluation have been fully cited in the main content and in the references list of this master thesis as well Student, Le Ngoc Tram CONTENTS ACKNOWLEDGEMENTS In order to complete this master thesis, I have been received enthusiastic guidance and support from my lectures, family and friends From the bottom of my heart, I would like to express my thanks to them Firstly, I would like to express the sincerest thanks to my supervisor, Dr Nguyen Ngoc Ha who has supported, guided and encouraged me during the completion of this master thesis from choosing the topic, outlining the main ideas, turning those ideas into this thesis to editing this paper Without his enthusiastic and excellent guidance and support, I could not have completed this master thesis Also, I would like to express my special thanks to all lectures of the Master of International Policy and Law program, Foreign Trade University as well as World Trade Institute who gave me the chance to broaden my humble horizon in the field of economics and laws Last but not least, I would like to express my warm thanks to my family, my colleagues and my friends who never stop supporting, encouraging and giving me the favorable conditions to complete this master thesis LIST OF TABLES 39 LIST OF ABRREVIATIONS Abbreviatio n APEC ASEAN CODEX CPTPP CSR CTC DSU EAEUFTA EU EVFTA FAO FTA GATS GATT IICA IPPC MFN NGFTA NT OIE PTA SPS STDF TPP VKFTA WTO Full name Asia – Pacific Economic Cooperation Association of South East Asian Nations Codex Alimentarius Commission Comprehensive and Progressive Trans – Pacific Partnership Agreement Corporate social responsibility Cooperative Technical Consultation Dispute Settlement Understanding Vietnam – the Eurasian Economic Union FTA European Union EU – Vietnam Free Trade Agreement Food and Agriculture Organization Free Trade Agreement General Agreement on Trade in Services General Agreement on Tariffs and Trade Inter – American Institute for Cooperation on Agriculture International Plant Protection Convention Most Favored Nation New generation Free Trade Agreement National Treatment Organization for Animal health Preferential Trade Agreement Sanitary and Phytosanitary Standards and Trade Development Facility Trans – Pacific Partnership Agreement Vietnam – Korea Free Trade Agreement World Trade Organization ABSTRACT New generation FTA is an inevitable tendency for members to deeply cooperate in a variety of areas, including SPS measures Joining NGFTAs, Vietnam is not out of that tendency, therefore, Vietnam has to fully comply with commitments regulated in NGFTAs With topic “Dispositions on Sanitary and Phytosanitary (SPS) measures in the new generation of Free Trade Agreements of Vietnam”, the thesis focuses on similarities and differences on regulations between SPS Agreement (WTO) and NGFTAs of Vietnam in order to point out the dispositions on SPS measures Not limited to this, the thesis analyzes Vietnam’s legal documents on SPS measures compared to regulations stated in NGFTAs Following that, the thesis mainly focuses on several issues and gains some achievements as below Firstly, the thesis comprehensively analyzes regulations on SPS measures in SPS Agreement (WTO) and NGFTAs of Vietnam As a result, the similarities and differences between them are stated Based on that, the thesis reveals that NGFTAs of Vietnam not only reconfirm regulations on SPS measures of SPS Agreement, but also have supplementary regulations Secondly, the thesis details Vietnam’s legal documents on SPS measures in order to state the compatibility and not compatibility of legal documents on SPS measures compared to NGFTAs of Vietnam Each provision on SPS measures is analyzed so as to point out for which provisions Vietnam’s legislation fully complies and for which provisions Vietnam’s legislation party and not complies Thirdly, based on analysis above, recommendations for Vietnam to fully comply with regulations on SPS measures when joining NGFTAs are revealed Besides complying with regulations stated in NGFTAs, recommendations for Vietnam to take advantage of NGFTAs are also pointed out INTRODUCTION Research rationale In the context of globalization, countries have a tendency to extensively and comprehensively cooperate in a variety of areas, therefore, the number new generation free trade agreements (NGFTAs) has increased significantly and gradually replaced traditional free trade agreements (FTAs) NGFTAs focus on new issues such as labor, sustainable development and the environment which are not mentioned in traditional FTAs Vietnam has joined sixteen FTAs1, including several typical NGFTAs, for example, the Comprehensive and Progressive Trans – Pacific Partnership Agreement (CPTPP), Vietnam – EU FTA (EVFTA), Vietnam – Korea FTA (VKFTA) and Vietnam – the Eurasian Economic Union FTA (EAEUFTA)2 Being different from traditional FTAs, NGFTAs have broad scope of commitments and strict requirements3 on areas such as environment, sustainable development and human, animal or plant life or health besides economic growth As for area related to human, animal or plant life or health, compared to SPS Agreement (WTO), NGFTAs contain strict requirements and requirements which are beyond regulations of SPS Agreement, for example, import requirements and procedures, verifications, audits and inspections, procedure for listing of establishments, certification and documents confirming safety, and regulations on tobacco control measures and halal products Besides, Vietnam has potential on production and exportation of agricultural and aquatic products which are significantly affected by regulations on SPS measures when Vietnam ratified NGFTAs In order to increase exportation of agricultural and aquatic products to its WTO Center, Tổng hợp FTA Việt Nam tính đến tháng 11/2018 (Summary of FTAs of Vietnam until November, 2018), 2018b, at , accessed on 29th Oct 2018 Le Thi Thuy, “Hiệp định thương mại tự hệ mới: Cơ hội thách thức Việt Nam” (New generation FTAs: opportunities and challenges for Vietnam), Journal on science and society of Vietnam, Vol.5 (114), 2016, p.19 Ibid., p.19 – 20 10 partners’ market in NGFTAs, and take advantages of NGFTAs, Vietnam has to comply with strict regulations on SPS measures in NGFTAs The number of NGFTAs which Vietnam has joined and ratified has increased since the year 20154, but most legal documents related to SPS measures were issued before that point of time As a result, there is a gap between regulations on SPS measures in NGFTAs of Vietnam and Vietnam’s legislation of that area In order to effectively take advantage of opportunities brought by NGFTAs and comply with commitments on SPS measures regulated in NGFTAs that Vietnam officially signed and has implemented, Vietnam’s legal framework on SPS measures should be amended and improved For the reasons mentioned above, the topic “Dispositions on Sanitary and Phytosanitary (SPS) measures in the new generation of Free Trade Agreements of Vietnam” is chosen to reveal the disposition of SPS measures in NGFTAs of Vietnam compared to those of WTO Also, the gap of regulations on SPS measures between NGFTAs of Vietnam and Vietnam’s legislation is pointed out Based on that analysis, the paper will give some recommendations on Vietnam’s legislation to fully implement regulations on SPS measures of NGFTAs Literature review While there is a huge number of researches being conducted on NGFTAs and SPS measures in the framework of WTO, not many researches have carried out SPS measures in NGFTAs, especially, in NGFTAs of Vietnam This part of the thesis will analyze several typical researches on NGFTAs and SPS measures in WTO 2.1 Analysis of new generation free trade agreements and SPS measures within the framework of WTO Firstly, concerning NGFTAs, paper “What scope for an EU – ASEAN Free Trade Agreement”5 is a paper revealing potentials of EU – ASEAN FTA which is WTO Center (2018b), op cit O’Callaghan and Nicolas, “What scope for an EU – ASEAN Free Trade Agreement”, Journal of World Trade, Vol.42 (issue 1), 2008, p.105 – 128 107 shall provide Vietnam technical assistance EU provides Vietnam with longer time to adapt with new SPS measures, alternative import conditions in the context of equivalence and the technical support to be acquainted with new SPS measures to facilitate trade between Vietnam and EU Vietnam should enter mutual technical assistance agreement with specialized advice on SPS measures, together carrying research on the field of SPS measures and training on the area of SPS measures 108 CONCLUSION In the trend of globalization and integration, Vietnam is in the tendency to cooperate with other members in various areas through FTAs, especially NGFTAs which regulate not only tariff issues but also behind border issues As analyzed in this thesis, NGFTAs have typical characteristics compared to traditional FTAs, for example, high level of liberalization, broad scope of commitments with strict requirements, more impacts on domestic law and contracting parties with high level of economic development Due to those characteristics, besides commercial issues, NGFTAs focus on non - commercial issues, such as labor, environment, sustainable development and plant, animal or human life or health Furthermore, compared to partners in NGFTAs, for example, CPTPP, EVFTA, VKFTA and EAEUFTA, which Vietnam have been signed and implemented or will be ratified, Vietnam has a comparative advantage to agricultural and aquatic products In order to take advantages of NGFTAs and deeply cooperate with other members in NGFTAs, especially in areas like agricultural and aquatic areas, after having ratified NGFTAs such as CPTPP, EVFTA, VKFTA and EAEUFTA, Vietnam should domestically legalize commitments related to SPS measures in NGFTAs Firstly, this thesis compared similarities and differences on SPS measures regulated in SPS Agreement (WTO) and NGFTAs of Vietnam so as to point out new regulations on SPS measures in those NGFTAs of Vietnam In particular, NGFTAs of Vietnam have broader scope than SPS Agreement, for instance, several provisions in SPS chapter of NGFTAs of Vietnam beyond regulations of SPS Agreement such as competent authorities, procedural specifics and exceptions In addition, provisions on SPS measures in NGFTAs are more specific and comprehensive Also, provisions on SPS measures in NGFTAs of Vietnam contain specific procedures and significantly enhance the transparency between members Secondly, the current situation of Vietnam’s legislation on SPS measures is also carried out in this thesis Following that, most laws on human, animal or plant life or health of Vietnam were imposed before 2015, while NGFTAs of Vietnam (EVFTA, CPTPP, VKFTA and EAEUFTA) entered into force after that time Thus, 109 although Law on Law on Food Safety (2010), Law on Animal Health (2015) and Law on Plant protection and Quarantine (2013) were imposed in order to replace Ordinances after Vietnam became the official member of WTO in 2007, after that, Vietnam participated in several NGFTAs which come into force after the time when those laws are issued Furthermore, SPS chapters of NGFTAs of Vietnam have provisions which are beyond provisions regulated in SPS Agreement Therefore, there is still gap between regulations on human, animal or plant life or health between Vietnam’s legislation and NGFTAs Thirdly, based on analysis of differences between regulations on SPS measures of SPS Agreement and four NGFTAs of Vietnam, and the gap between Vietnam’s legislation on SPS measures and Vietnam’s commitments on NGFTAs, this thesis gives several recommendations for Vietnam in the implementation of SPS provisions in its NGFTAs, such as amending domestic laws, raising awareness of SPS measures in NGFTAs and taking advantage of cooperation and technical support in the field of SPS measures, in order to fully comply with SPS commitments in those NGFTAs LIST OF REFERENCES LITERATURES, PUBLICATIONS AND ARTICLES Abdul Raufu Ambali and Ahmad Naqiyuddin Baka, “Halal food and products in Malaysia: People awareness and policy implications”, Intellectual Discourse, Vol.21 No.1, 6/2013, p.7 – 32 Alfonso Torres, “Role of Sanitary and Phytosanitary measures within the context of Free Trade Agreements”, Rev Colom Cienc Pecua, Vol.26 No.1, 3/2013, p.43 – 47 Andrew L Stoler, “Preferential Trade Agreement Policies for Development, Chapter TBT and SPS measures, in practice”, in Jean – Pierre Chauffour and Jean – Christophe Maur, Preferential Trade Agreement policies for development, World Bank Publication, Washington DC, 2011, p.217 – 233 Bernadette Andreosso, O’Callaghan and Francoise Nicolas, “What scope for an EU – ASEAN Free Trade Agreement?”, Journal of World Trade, Vol 42 (issue 1), 2018, p.105-128 European Commission, Sanitary and Phytosanitary (SPS) issues 110 Global Agenda Council on Trade and FDI, Will the Trans – Pacific Partnership Agreement reshape the global Trade and Investment system? What’s in and What’s new: Issues and Options, Switzerland, 2016 Hadi Akhbar Dhahlan and Norrakiah Abdullah Sani, “Comparison and challenges in the implementation of Halal food laws in Malaysia, the Netherlands and United States of America”, Malaysia Journal of Law and Society, Vol.21, 2017, p.53 – 62 Deborah K Sy, Robert K Stumberg, TPPA and Tobacco control: Threats to APEC countries, Harrison Institute, Georgetown University, Washington DC, USA, 2015 Jason Grant and Shawn Arita, Sanitary and Phyto – Sanitary Measures: Assessment, Measurement, and Impact, International Agricultural Trade Research Consortium, 2017 10 J.W Looney, “The effect of NAFTA (and GATT) on animal health laws and regulations”, 48 Oklahoma Law Review 367, 1995 11 Markus Wagner, “The future of SPS Governance: SPS – Plus or SPS – Minus”, Journal of World Trade, Vol.51 (issue 3), 2017, p.446 – 469 12 Martin Russell, Briefing international Agreement Progress: EU – Vietnam free trade agreement, European Parliament 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Agreement) 31 Comprehensive and Progressive Trans – Pacific Partnership Agreement (CPTPP) 32 Vietnam – EU FTA (EVFTA) 33 Vietnam – Korea FTA (VKFTA) 112 34 Vietnam – the Eurasian Economic Union FTA (EAEUFTA) 35 WTO, Decision on the implementation of Article of the Agreement on the application of Sanitary and Phytosanitary measures, 2004 36 WTO, Guidelines to further the practical implementation of Article of the Agreement on the application of Sanitary and Phytosanitary measures, 2008 37 WTO, Recommended procedures for implementing the transparency obligations of the SPS Agreement (Article 7), 2008 38 Luật Điều ước quốc tế 2016 (Law on Treaties No 108/2016/QH13 (2016)) 39 Luật An toàn thực phẩm 2010 (Law on Food Safety No.55/2010/QH12 (2010)) 40 Luật phòng, chống tác hại thuốc 2012 (Law on Tobacco harm prevention No.09/2012/QH13 (2012)) 41 Luật bảo vệ kiểm dịch thực vật 2013 (Law on Plant protection and Quarantine No.41/2013/QH13 (2013)) 42 Luật thú y 2015 (Law on Animal Health No.79/2015/QH13 (2015)) 43 Luật dược 2016 (Law on Pharmacy No.105/2016/QH13 (2016)) 44 Luật Quản lý ngoại thương 2017 (Law on Foreign Trade Management No.05/2017/QH14 (2017)) 45 Pháp lệnh số 36/2001/PL - UBTVQH10 bảo vệ kiểm dịch thực vật (Ordinance on Plant protection and Quarantine (2001)) 46 Pháp lệnh số 12/2003/PL - UBTVQH11 vệ sinh an toàn thực phẩm (Ordinance on Food safety (2003)) 47 Pháp lệnh số 18/2004/PL - UBTVQH11 Thú y (Ordinance on Animal health (2004)) 48 Nghị định số 54/2017/NĐ – CP Chính phủ: Quy định chi tiết số điều biện pháp thi hành Luật dược (Decree on guidelines for implementation of the Law on pharmacy) 113 49 Nghị định số 15/2018/NĐ – CP Chính phủ: Quy định chi tiết thi hành số điều Luật an toàn thực phẩm (Decree on elaboration of some articles of the Law of food safety) 50 Quyết định số 99/2005/QĐ – TTg Thủ tướng Chính phủ: QĐ thành lập văn phòng thơng báo điểm hỏi đáp quốc gia vệ sinh dịch tễ kiểm dịch động thực vật Việt Nam (Decision on establishment of Vietnam Sanitary and Phytosanitary Notification Authority and Enquiry Point) 51 Quyết định số 147/2008/QĐ – TTG Thủ tướng Chính phủ : Về việc phê duyệt Kế hoạch hành động quốc gia đẩy nhanh thực cam kết Hiệp định vệ sinh an toàn thực phẩm kiểm dịch động thực vật đáp ứng nghĩa vụ hành viên WTO (Decision on acceleration of the implementation of commitments under the Agreement on the application of sanitary and phytosanitary measures in performing the WTO member obligations) 52 Quyết định số 13/VBHN – BNNPTNT ban hành vùng, sở an toàn dịch bệnh động vật (Circular on pest and diseases free zones) 53 Quyết định 5272/QĐ – BNN – TCCB Bộ NN & PTNT: Quyết đinh 5272/QĐ- BNN-TCCB Quy định chức năng, nhiệm vụ, quyền hạn, cấu tổ chức Văn phòng Thơng báo Điểm hỏi đáp Quốc gia vệ sinh dịch tễ kiểm dịch động thực vật Việt Nam (Decision on detailed function, responsibilities and structure of Vietnam SPS Notification Authority and Enquiry Point) 54 Thơng tư số 33/2014/TT – BNNPTNT quy định trình tự, thủ tục kiểm dịch thực vật nhập khẩu, xuất khẩu, cảnh sau nhập vật thể thuộc diện kiểm dịch thực vật (Circular for procedures for plant quarantine for import, export and post – import of articles subject to plant quarantine) 55 Thông tư số 35/2014/TT – BNNPTNT ban hành Danh mục đối tượng kiểm dịch thực vật nước Cộng hòa xã hội chủ nghĩa Việt Nam (Circular on the list of living things subject to plant quarantine in Vietnam) 114 56 Thông tư số 36/2014/TT – BNNPTNT Bộ Nông nghiệp Phát triển nông thôn: Ban hành Quy định quy trình phân tích nguy dịch hại vật thể thuộc diện kiểm dịch thực vật phải phân tích nguy trước nhập vào Việt Nam (Circular on process of pest risk analysis for plant quarantine targets before being imported to Vietnam) 57 Thông tư 30/2014/TT – BNTPTNT ban hành danh mục vật thể thuộc diện kiểm dịch thực vật; Danh mục vật thể thuộc diện kiểm dịch thực vật phải phân tích nguy dịch hại trước nhập vào Việt Nam (Circular on the list of plant quarantine articles; the list of plant 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