By Prof. David Collins
For a government that has continually emphasized the importance of upholding international law, even when it is evidently against the national interest (for example the relinquishing of the Chagos Islands), the UK’s EU ‘reset’ agreement is a baffling development. The UK has evidently succumbed to all of the EU’s demands, gaining little more than vague statements in relation to defence procurement and e-gates in airports, while giving away fishing rights for an astonishing twelve years, free movement of young adults as well as budgetary contributions. Each of these is arguably a rejection of UK voters’ wishes to leave the EU but do not in themselves put the UK in breach of the country’s international legal obligations. The new agreement’s dynamic alignment with the EU’s sanitary and phytosanitary (SPS) regulations on the other hand could well do this, potentially leading to claims from other treaty partners via international arbitration tribunals.
The new UK-EU reset agreement effectively creates a single market for agri-foods in which the UK agrees to follow EU regulations, the ultimate conformity to which lies at the discretion of the Court of Justice of the European Union (CJEU). This feature of the new arrangement was important for the EU because it ensures that the UK remains a captured market for its agricultural produce, preventing the UK from importing cheaper, better foods from other countries, ostensibly for the purpose of safeguarding public health.
It is bad enough that this worsens the choice available to British consumers from markets around the world. It is even more problematic, though, if, like Prime Minister Keir Starmer, one claims to be a supporter of and adherent to international law. This is because alignment with the EU’s regulations in this area may violate the terms of some of the UK’s recent Free Trade Agreements (FTAs). This includes the mega-regional Comprehensive Progressive Trans-Pacific Partnership (CPTPP) which the UK joined after lengthy negotiations at the end of last year. The 12-nation CPTPP comprises 15 per cent of global GDP and some of the world’s fastest growing economies in the Asia-Pacific.
The dynamic alignment contemplated by the UK-EU reset requires the UK to automatically adopt EU SPS regulations as they evolve, ensuring regulatory parity. This goes beyond what was agreed under the Trade and Cooperation (TCA) between the UK and EU, concluded after Brexit, which allowed the UK and EU to maintain separate SPS regimes, like a standard FTA. It is true that, under the TCA, full SPS checks were required, causing some friction at borders for agri-foods. The new agreement would appear to significantly reduce or eliminate these checks, including between Great Britain and Northern Ireland. But crucially, it risks limiting the UK’s regulatory autonomy and may lead to complaints by the UK’s FTA partners.
The CPTPP’s SPS chapter allows parties to set their own protection levels but mandates measures be based on science, international standards, or risk assessments. It includes provisions for equivalence determinations (where the UK can accept other parties’ standards if they achieve equivalent outcomes) and requires transparency in risk analysis. The CPTPP does permit its parties to maintain stricter standards than international norms if they are scientifically justified. Dynamic alignment with the EU will constrain the UK’s ability to independently adjust standards for CPTPP trade, particularly since the EU is known to use non-scientific justifications for some of its regulations (e.g. banning hormone treated beef).
Now that it has prioritized UK EU alignment on SPS, the UK will face pressure from the EU to reject CPTPP members’ equivalence requests, potentially triggering disputes under CPTPP’s Chapter 7. The CPTPP’s dispute mechanism, consisting essentially of international arbitration, allows challenges to SPS measures deemed unjustified trade barriers. EU-aligned UK rules could face scrutiny if CPTPP members argue they lack scientific basis, as, again, many of the EU’s often do. CPTPP members might dispute the UK’s EU-aligned measures under Article 7.9 (science-based requirements) if perceived as overly restrictive.
Several specific product regulation areas could present problems now that the UK has agreed to dynamic alignment with the EU on SPS measures while also being bound by CPTPP obligations. For example, the EU has adopted more stringent limits on pesticide residues in food than many international standards, sometimes going beyond Codex Alimentarius benchmarks. CPTPP exporters (such as Australia or Canada) could face barriers if their products comply with Codex but exceed EU/UK limits. CPTPP parties could argue their standards offer equivalent protection, leading to disputes over whether the UK is obliged to accept such imports.
The EU often applies a more precautionary approach to veterinary drug residues in animal products, banning or restricting substances that are permitted elsewhere. Dynamic alignment will force the UK to maintain or adopt these bans, limiting market access for CPTPP exporters and potentially conflicting with CPTPP’s equivalence provisions.
The EU has a restrictive approach to gene editing and genetically modified organisms (GMOs) requiring extensive approvals and labelling, while some CPTPP members (e.g., Canada, Australia) have more permissive regimes. The UK will now have to restrict or label products from CPTPP countries that use gene editing or GMOs, even when international standards or CPTPP members’ risk assessments find them safe. These countries will rightly resent these impositions, perceiving them as trade barriers.
The UK has introduced some stricter animal welfare standards than the EU, but dynamic alignment will likely require the UK to revert to EU norms, potentially affecting its ability to negotiate equivalence with CPTPP partners who have different welfare regimes.
Far from upholding the principles of international law, as we have been told the UK must do regardless of the national interest, the UK has now positioned itself to break its treaty commitments under the CPTPP and potentially other FTAs. Instead of tying itself to EU relations, in spite of its international commitments, the UK government should instead concentrate on improving domestic deregulation by systematically reviewing and streamline regulations to boost competitiveness. It should create a regulatory environment that enables importation of the cheapest, best foods, as well as which fosters technological innovation. It will be difficult to do this now that it is encumbered by the EU’s safety-focused, innovation-stifling rules which were primarily designed to shield EU producers from global competition.
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