The Study On The Cooperation Of Sanitary And Phytosanitary Between China And Kenya By International Law

In the context of China’s expanding imports of non-resource products from Africa,the one-size-fits-all form of inspection and quarantine becomes one of the obstacles to this trend.Taking Kenya as an example,identifying and solving SPS problems between China and Kenya is the best solution to the aforementioned problem which is hindering free trade.China and Kenya have a good legal basis for SPS cooperation at three levels including multilateral,bilateral and domestic legislations.At the multilateral level,GATT1994,SPS and TBT agreements as well as TFA constitute the international framework paradigm for this cooperation.At the bilateral level,China has signed a series of bilateral conventions with Kenya.These conventions that establish the elementary legal form of this cooperation can be divided into framework and executable bilateral conventions.At the Kenyan law level,Constitution of Kenya authorized its central and local government the power to manage the SPS affairs.According to different quarantine objects-plants,animals and fish,Kenya impowered different agencies relevant authorities to carry out SPS affairs by its domestic laws which also regulate the remits of them.However,China and Kenya are facing various problems.In Kenya,the imperfection of constitutional power division,the dispersion and confusion of legal authorizations as well as the inadequacy of capacity to enforce the law and control the quality of animals and plants are the main challenges of this cooperation.There are some knotty problems faced by both of them like the difficulties in standard coordination and mutual recognition,the low level of transparency of rules and the high rate of putting SPS cases on ice in DSB.Therefore,in order to solve the foregoing problems,China should take five relative legal countermeasures to response.Firstly,using the bilateral steering committee fully and seeking the opportunity to sign an agreement on AEO are the feasible methods to deal with the problems of Kenyan organizations.Secondly,China as a developing country plays a special role in technical assistance which other developed countries and WTO do not replace.The assistance from China should be fully implemented to improve the quality control ability of Kenya.Thirdly,the perfection and application of equivalence principle as well as the sufficient transformation from scientific evidence to legal language and decision are good ways to accelerate the coordination and mutual recognition of SPS standards between China and Kenya.Fourthly,the establishment of reasoned system of inspecting regulations and strict rule of traceability will meet the high-level requirement for transparency.Fifthly,the limitations of DSM drive China and Kenya to choose another way to avoid settling SPS dispute by DSB.It is the best way that they can set a bilateral consultation mechanism as the pre-procedure before initiate arbitration and mediation if the former fails.