¹ Commission for Africa, Our Common Interest: Report of the Commission for Africa (2005) 13, <http://www.uneca.org/commreport.pdf>.

² Greig, A, Hulme, D and Turner, M, Challenging Global Inequality: Development Theory and Practice in the 21st Century (Palgrave 2007) 2–3CrossRefGoogle Scholar.

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⁵ Commission for Africa (n 1) 22.

⁶ D Rodrik, A Subramanian and F Trebbi, ‘Institutions Rule: The Primacy of Institutions over Geography and Integration in Economic Development’ (2002). See also Ray, D, Development Economics (Princeton University Press 1998) 3Google Scholar.

⁷ See eg Rodrik, D, One Economics Many Recipes: Globalization, Institutions, and Economic Growth (Princeton University Press 2007) 184, 215–16Google Scholar.

⁸ See World Trade Organization (WTO), World Trade Report 2008: Trade in a Globalizing World (WTO 2008) 64Google Scholar, 75, also 139–46.

⁹ As Stiglitz and Carlton put it, trade can have ‘a significant positive effect on economic development’: Stiglitz, J and Carlton, A, Fair Trade for All (OUP 2005) 11Google Scholar.

¹⁰ Even Oxfam agrees that trade liberalization has ‘the potential to act as a powerful motor for the reduction of poverty, as well as for economic growth’. Oxfam, Rigged Rules and Double Standards: Trade, Globalisation, and the Fight Against Poverty (Oxfam 2002) 5Google Scholar.

¹¹ See Cline, WR, Trade Policy and Global Poverty (Institute for International Economics 2004) 1–5Google Scholar, 40–42; Irwin, D, Free Trade under Fire (2nd edn, Princeton University Press 2005) 177Google Scholar.

¹² See Ohnesorge, JK, ‘Developing Development Theory: Law and Development Orthodoxies and the Northeast Asian Experience’ (2007) 28 University of Pennsylvania JIntlEconL 219, 268.Google Scholar

¹³ See World Bank, World Development Report 1991: The Challenge of Development (OUP 1991), which contains the Bank's prescribed list of do's and don'ts in national economic policy making for development. See also Krueger, AO, ‘Wilful Ignorance: The Struggle to Convince the Free Trade Sceptics’ (2004) 3 World Trade Review 483, 492CrossRefGoogle Scholar. Rodrik calls trade liberalization ‘one of the least contentious recommendations’ in the list of policy principles known as the Washington Consensus. Rodrik (n 7) 29.

¹⁴ See C Ackah and O Morrissey, ‘Trade Policy and Performance in Sub-Saharan Africa since the 1980s’ (2005) Centre for Research in Economic Development and International Trade, University of Nottingham Credit Research Paper 05/13 <http://www.nottingham.ac.uk/credit/documents/papers/05-13.pdf>.

¹⁵ Commission on Growth and Development, The Growth Report: Strategies for Sustained Growth and Inclusive Development (2008) 71–84Google Scholar <http://www.growthcommission.org/index.php?Itemid=169&id=96&option=com_content&task=view>.

¹⁶ The research also found that if Africa's share of world exports had been kept at the same level as in the mid-1970s, its export revenue would have been approximately ten times greater than its current value. See Portugal-Perez, A and Wilson, JS, ‘Why Trade Facilitation Matters to Africa’ (2009) 8 World Trade Review 379, 379CrossRefGoogle Scholar.

¹⁷ UNECA, Economic Report 2009 (2009) 78 <http://www.uneca.org/era2009>.

¹⁸ These countries are all members of the Inter-Governmental Authority on Development (IGAD): Djibouti, Eritrea, Ethiopia, Kenya, Somalia, Sudan and Uganda. See <http://www.igad.org>. All references in this paper to Sudan apply to the country prior to the independence of South Sudan in July 2011.

¹⁹ According to the Heckscher–Ohlin model, differences in resource endowments constitute an important source of comparative advantage for countries. See WTO (n 8) 32.

²⁰ Under WTO law, a standard is a non-binding document approved by a recognized body that contains ‘rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory’ (see WTO Agreement on Technical Barriers to Trade, Annex 1, para 2). In this article, however, we use the term ‘standard’ in a broader sense, and, depending on the context, as synonymous and interchangeable with the term sanitary measures as defined in the SPS Agreement (see WTO SPS Agreement, Annex 1, para 1).

²¹ See M Hirsch, ‘Developing Countries’ in R Wolfrum (ed), Encyclopaedia of Public International Law (Max Planck Institute) <http://www.mpepil.com>; Peet, R, Theories of Development (Guilford Press 1999) 3Google Scholar; Todaro, MP and Smith, SC, Economic Development (10th edn, Pearson 2009) 109–93Google Scholar; Greig and others (n 2) 53–123; Sachs (n 3) 51–73.

²² The field work was carried out by the first co-author between 2006 and 2007. For a detailed report of this field research, see MG Desta ‘The Regulatory Framework for Trade in IGAD Livestock Products’ (2007) IGAD LPI Working Paper 07-08 <http://www.igad-lpi.org/publication/docs/IGADLPI_WP07_08.pdf>.

²³ There are no universal criteria to classify countries as developing or developed; the World Bank uses gross national income (GNI) per capita as follows: low income: US$995 or less; lower middle income: US$996–US$3,945; upper middle income: US$3,946–US$12,195; high income: US$12,196 or more. The World Bank calls low- and middle-income countries developing and high-income countries developed. See <http://data.worldbank.org/about/country-classifications>. The Human Development Index (HDI) developed by the UN Development achievements in three major areas: health and longevity, measured by life expectancy; education, measured by the percentage of adult literacy and the combined enrolment ratio for primary, secondary and tertiary education; and standard of living, measured by GDP per capita. See <http://hdr.undp.org>. The GATT/WTO system does not have its own classification, adopting instead the doctrine of ‘self-election’ (or self-designation). See Cui, F, ‘Who Are the Developing Countries in the WTO?’ (2008) 1 Law and Development Review 122CrossRefGoogle Scholar.

²⁴ See Todaro and Smith (n 21) 126–31; Peet (n 21) 48–53; Rapley, J, Understanding Development: Theory and Practice in the Third World (3rd edn, Lynne Rienner 2002) 15–17Google Scholar, 63–67; Martinussen, J, Society, State and Market: A Guide to Competing Theories of Development (Zed Books 1997) 259–72Google Scholar.

²⁵ See JG Palma, ‘Dependency’ in J Eatwell, M Milgate and P Newman (eds), The New Palgrave: Economic Development (Macmillan 1989), 91–97Google Scholar; Rapley (n 24) 26–28; Greig and others (n 2) 87–92; Peet (n 21).

²⁶ See Gilpin, R, Global Political Economy (Princeton University Press 2001) 305–07Google Scholar; Rapley (n 24) 28–32; Martinussen (n 24) 258–59. On geographical and ecological factors that may explain underdevelopment in Africa, see Sachs (n 3) 311–14, and Collier, P, The Bottom Billion (OUP 2008) 53–55Google Scholar.

²⁷ For a brief historical overview of the institutional perspective, see MM Prado and MJ Trebilcock, ‘Path Dependence, Development, and the Dynamics of Institutional Reform’ (2009) University of Toronto Faculty of Law Legal Studies Research Series 09-0459, 2–6 <http://ssrn.com/abstract=1415040>.

²⁸ Ohnesorge (n 12). This article refers to ‘institutions’ as a short hand for both ‘institutions’ and ‘organizations’ (as defined by Douglass North). As North explains, ‘Institutions are the rules of the game of a society, or, more formally, are the humanly devised constraints that structure human interaction. They are composed of formal rules (statute law, common law, regulations), informal constraints (conventions, norms of behaviour and self-imposed codes of conduct), and the enforcement characteristics of both. Organizations are the players: groups of individuals bound by a common purpose to achieve objectives. They include political bodies (political parties, the senate, a city council, a regulatory agency): economic bodies (firms, trade unions, family farms, cooperatives); social bodies (churches, clubs, athletic associations); and educational bodies (schools, colleges, vocational training centres).’ DC North, ‘The New Institutional Economics and Third World Development’ in J Harriss, J Hunter and CM Lewis (eds), New Institutional Economics and Third World Development (Routledge 1997) 23. See also Burki, SJ and Perry, GE, Beyond the Washington Consensus: Institutions Matter (World Bank, 1998) 11–12CrossRefGoogle Scholar.

²⁹ Rodrik (n 7).

³⁰ North (n 28) 17.

³¹ Burki and Perry (n 28) 15.

³² Commission on Growth and Development (n 15) 29.

³³ Gilpin (n 26) 318–28; Rapley (n 24) 138–41.

³⁴ Rapley (n 24) 138.

³⁵ Rodrik and others (n 6); Hall, RE and Jones, CI, ‘Why Do Some Countries Produce So Much More Output per Worker than Others?’ (1999) 114 QJ Economics 83CrossRefGoogle Scholar; Aceollu, D, Johnson, S and Robinson, JA, ‘The Colonial Origins of Comparative Development: An Empirical Investigation’ (2001) 91 American Economic Review 1369Google Scholar.

³⁶ Rodrik and others (n 6). See also Burki and Perry (n 28) 15–23.

³⁷ Commission on Growth and Development (n 15) 29.

³⁸ Myrdal, G, Asian Drama: An Inquiry into the Poverty of Nations (Pantheon 1968) vol 2, 895–96Google Scholar; Martinussen (n 24) 225–28.

³⁹ B Harris-White, ‘On Understanding Markets as Social and Political Institutions in Developing Economies’, in H-J Chang (ed), Rethinking Development Economics (Anthem Press 2003) 481–97. See also H-J Chang, ‘Institutions and Economic Development in Historical Perspective’, in ibid 499–521.

⁴⁰ Milhaupt, CJ and Pistor, K, Law and Capitalism: What Corporate Crises Reveal about Legal Systems and Economic Development around the World (University of Chicago Press 2008) 1–44CrossRefGoogle Scholar.

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⁴² H Zhang, ‘Corruption, Economic Growth and Macroeconomic Volatility’ (2000) 2 Perspectives <http://www.karmayog.org/anticorruption/anticorruption_913.htm>. See also Krugman, PR and Obstefeld, M, International Economics: Theory and Policy (8th edn, Addison Welsley 2009) 627Google Scholar.

⁴³ K Blackburn, N Bose and ME Haque, ‘Endogenous Corruption in Economic Development’ (2004) University of Nottingham, GEP Research Paper 2004/16, 3–4 <http://ssrn.com/abstract=761705>.

⁴⁴ See Higbee, J and Schmid, FA, ‘Rule of Law and Economic Growth’ (2004) 19 Economic SynopsesGoogle Scholar <http://research.stlouisfed.org/publications/es/04/ES0419.pdf>. See also ME Haque and R Kneller, ‘Corruption and Development: A Test for Non-linearities’ (2005) University of Nottingham Research Paper 2005/25, 1 <http://ssrn.com/abstract=863844>.

⁴⁵ Blackburn and others (n 43) 4.

⁴⁶ V Tanzi and HR Davoodi, ‘Corruption, Public Investment and Growth’ (1997) IMF Working Paper 97/139 <http://ssrn.com/abstract=882701>.

⁴⁷ See eg Baliamoune-Lutz, M and Ndikumana, L, Corruption and Growth in African Countries: Exploring the Investment Channel (UNECA 2008)Google Scholar; Anoruo, E and Braha, H, ‘Corruption and Economic Growth: The African Experience’ (2005) 7 Journal of Sustainable Development in Africa 43–55Google Scholar; Gray, CW and Kaufman, D, ‘Corruption and Development’ (1998) 35 Finance and Development 7–10Google Scholar <http://www.imf.org/external/pubs/ft/fandd/1998/03/pdf/gray.pdf>.

⁴⁸ Hors, I, ‘Fighting Corruption in the Developing Countries’, (2000) 220 OECD ObserverGoogle Scholar; Moody-Stuart, G, ‘The Costs of Grand Corruption’ (1996) 4 Economic Reform Today 19–20Google Scholar.

⁴⁹ See OECD and UNECA, The Mutual Review of Development Effectiveness in Africa: Promise and Performance: Focus Issue 10—Economic Governance (OECD/UNECA 2009)Google Scholar.

⁵⁰ Davis, KE and Trebilcock, MJ, ‘The Relationship between Law and Development: Optimists Versus Skeptics’ (2009) 57 AmJCompL 895, 902–04Google Scholar; Dam, KW, The Law–Growth Nexus: the Rule of Law and Economic Development (Brookings 2006) 5–6Google Scholar.

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⁵³ ibid 159–219.

⁵⁴ Under the latter approach, democracy (including separation of powers and freedom of the press) is generally seen as conducive to development. See Davis and Trebilcock (n 50) 15–21.

⁵⁵ See Bingham, T, The Rule of Law (Penguin 2010) 8, 37–129Google Scholar.

⁵⁶ Daniels, R and Trebilcock, MJ, ‘The Political Economy of Rule of Law Reform in Developing Countries’ (2004) 26 Michigan JIntlL 99, 104–07Google Scholar. See also Trebilcock and Daniels (n 51) 12–29; Dam (n 50) 13–17.

⁵⁷ Daniels and Trebilcock (n 56) 105–06; Dam (n 50) 16–17.

⁵⁸ For a critical view of the role of rule of law in economic development, see Ohnesorge (n 12).

⁵⁹ See World Bank, Facts and Figures from World Development Indicators 2009 (World Bank, 2009) 16Google Scholar.

⁶⁰ The IGAD average GDP per capita for 1999 was US$233, less than half the Sub-Saharan Africa average for the same year. See IGAD Secretariat, IGAD Environment and Natural Resources Strategy (IGAD 2007) 11Google Scholar.

⁶¹ For a list of countries classified as LDCs by the UN General Assembly and the criteria of classification, see <http://www.un.org/special-rep/ohrlls/ldc/list.htm>.

⁶² See UNDP, Human Development Report 2010 <http://hdr.undp.org/en/media/HDR_2010_EN_Complete_reprint.pdf>. The Human Development Index has 169 countries; Eritrea and Somalia are not ranked.

⁶³ Knips, V, Review of the Livestock Sector in the Horn of Africa (IGAD Countries) (Food and Agricultural Organization (FAO) 2004)Google Scholar. See also Otte, MJ and Chilonda, P, Cattle and Small Ruminant Production Systems in Sub-Saharan Africa: A Systematic Review (FAO 2002)Google Scholar.

⁶⁴ See Knips (n 63) 14.

⁶⁵ ibid 2.

⁶⁶ See World Bank, World Development Report 2008 (World Bank 2008) 14Google Scholar.

⁶⁷ See FAO, ‘NEPAD—Comprehensive Africa Agriculture Development Programme—Ethiopia: “Live Animal and Meat Export”—Preliminary Options Outline’ (January 2005) TCP/ETH/2908 (I) (NEPAD Ref. 05/08 E) 2.

⁶⁸ See FAO-AGAL, Livestock Sector Brief: Ethiopia (FAO 2004) 1–3Google Scholar.

⁶⁹ Interview with Dr HM Nur, Head of the Department of Planning and Livestock Economics, Ministry of Animal Resources and Fisheries, Khartoum, February 2007.

⁷⁰ See World Bank, ‘Somalia: From Resilience Towards Recovery and Development: A Country Economic Memorandum for Somalia’ (January 2006) Report No 34356-SO 77, para 5.13.

⁷¹ See Kenya Ministry of Agriculture and Ministry of Livestock and Fisheries Development, Strategy for Revitalizing Agriculture 2004–2014 (March 2004) 7Google Scholar.

⁷² See FAO-NEPAD, Comprehensive Africa Agriculture Development Programme: Uganda Livestock Development Project (FAO 2004) vol 3, 1Google Scholar. See also FAO-AGAL, Livestock Sector Brief: Uganda (FAO 2005) 2.Google Scholar

⁷³ See FAO-NEPAD, Comprehensive Africa Agriculture Development Programme: Support to NEPAD–CAADP Implementation (FAO 2005)Google Scholar. See also FAO-AGAL, Livestock Sector Brief: Eritrea (FAO 2005)Google Scholar and FAO-AGAL, Livestock Sector Brief: Djibouti (FAO 2005)Google Scholar.

⁷⁴ See eg Krueger, A, ‘Why Trade Liberalisation is Good for Growth’ (1998) 108 Economic Journal 1513CrossRefGoogle Scholar. See also Stiglitz and Carlton (n 9) 11–14, 24–33.

⁷⁵ See Commission on Growth and Development (n 15) 49. For review of the literature on exports and economic development, see Rangasamy, L, ‘Exports and Economic Growth: The Case of South Africa’ (2009) 21 Journal of International Development 603CrossRefGoogle Scholar.

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⁷⁷ Todaro and Smith (n 21) 637–39; Ray (n 6) 676–84; Gilpin (n 26) 305–40; Lee, Y-S, Reclaiming Development in the World Trading System (CUP 2006) 4–9CrossRefGoogle Scholar.

⁷⁸ Krugman and Obstefeld (n 42) 120–23; Ray (n 6) 676–84.

⁷⁹ See Hoekman, B and Nicita, A, ‘Trade Policy, Trade Costs, and Developing Country Trade’ (2008) World Bank Policy Research Paper 4797Google Scholar, 7.

⁸⁰ The EBA benefits products from all Horn countries except Kenya. See Desta, MG, ‘EC–ACP Economic Partnership Agreements and WTO Compatibility: An Experiment in North–South Inter-regional Agreements?’ (2006) 43 CMLRev 1343Google Scholar. See also M Hirsch, ‘North–South Regional Trade Agreements: Prospects, Risks and Legal Regulation’ in Y-S Lee and others (eds), Law and Development Perspective on International Trade Law (CUP 2011) 225–45; Hirsch, M, ‘The Sociology of International Economic Law: Sociological Analysis of the Regulation of Regional Agreements in the World Trading System’ (2008) 19 EJIL 277, 294–95CrossRefGoogle Scholar.

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⁸² See Ministry of Foreign Affairs of Japan, ‘Explanatory Notes for Japan's Scheme’ <http://www.mofa.go.jp/policy/economy/gsp/explain.html>. Note, however, that many countries (including Japan) exclude agricultural products from their GSP schemes. See Subramanian, A and Mattoo, A, ‘The WTO and Poorest Countries: The Stark Reality’ (2004) 3 World Trade Review 385, 398Google Scholar.

⁸³ Indeed, Peter Little goes as far as arguing that ‘almost all regional trade (<95 percent) in livestock in eastern Africa is carried out via unofficial channels’. See Little, ‘Unofficial Cross-Border Trade in Eastern Africa’ (2007) 3, <http://www.fao.org/es/ESC/common/ecg/494/en/LITTLE_Final_Cross_Border_Trade_Food_SEC_FAO_FINAL_May9_2007.pdf>.

⁸⁴ These livestock products are ‘live animals’, ‘meat and edible meat offal’, ‘dairy products, eggs, honey, edible animal product’, ‘raw hides and skins (other than furskins) and leather’ and ‘products of animal origin’. See <http://www.intracen.org/menus/Countries.htm>.

⁸⁵ ibid.

⁸⁶ See Y Aklilu, ‘A Review of Policies and Their Impact on Livestock Trade in Ethiopia During Three Regimes (1965–2005)’ in J McPeak and P Little (eds), Pastoral Livestock Marketing in Eastern Africa: Research and Policy Challenges (ITDG Publishing, 2006) 187–202.

⁸⁷ Mavroidis, PC, The General Agreement on Tariffs and Trade: A Commentary (OUP 2005) 267, 270Google Scholar; Trebilcock, MJ and Howse, R, The Regulation of International Trade (3rd edn, Routledge 2005), 475Google Scholar; Lee (n 77) 32–35; Matsushita, M, Schoenbaum, TJ and Mavroidis, PC, The World Trade Organization: Law, Practice, and Policy (2nd edn, OUP 2006), 766Google Scholar; Hudec, RE, Developing Countries in the GATT Legal System (Gower Publishing 1987)Google Scholar.

⁸⁸ See also Marrakesh Agreement Establishing the WTO, preamble, paras 1 and 2 <http://www.wto.org/english/docs_e/legal_e/04-wto_e.htm>.

⁸⁹ For analysis of the different factors, see ‘Project Publications’, IGAD Livestock Policy Initiative <http://www.igad-lpi.org/publication/working_papers.htm>.

⁹⁰ OECD, Aid for Trade: Making it Effective (OECD 2006) 27.

⁹¹ UNCTAD, The Least Developed Countries Report 2004 (NY and Geneva 2004) 230–31Google Scholar.

⁹² A Disdier, L Fontagne and M Mimouni ‘The Impact of Regulations on Agricultural Trade: Evidence from SPS and TBT Agreements’ (2007) 32 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1194969>.

⁹³ See JC Bureau, R Chakir and J Gallezot ‘The Utilisation of EU and US Trade Preferences for Developing Countries in the Agri-Food Sector’ (2006) <http://ageconsearch.umn.edu/bitstream/18867/1/wp060019.pdf>. See also A Werth, ‘OECD Policies, Poverty and Agricultural Development in Sub-Saharan Africa’ in Agricultural Development in Sub-Saharan Africa (Ministry of Foreign Affairs, Sweden 2007) 157.

⁹⁴ See World Bank, Food Safety and Agricultural Health Standards: Challenges and Opportunities for Developing Country Exports (World Bank 2005) ixGoogle Scholar <http://www.worldbank.org/trade/standards>.

⁹⁵ See C Haberli, ‘Market Access in Switzerland and in the European Union for Agricultural Products from Least Developed Countries’, NCCR Working Paper 2008/5 (2008) <http://phase1.nccr-trade.org/images/stories/publications/IP5/Market%20Access%20in%20Switzerland_Haeberli.pdf>.

⁹⁶ On the impact of frequent regulatory modifications, see ibid 38. On the need to revise sanitary standards, see Winter-Nelson, A and Rich, KM, ‘Mad Cows and Sick Birds: Financing International Responses to Animal Disease in Developing Countries’ (2008) 26 Development Policy Review 211, 211CrossRefGoogle Scholar.

⁹⁷ See Henson, S and Jaffee, S, ‘Understanding Developing Country Strategic Responses to the Enhancement of Food Safety Standards’ (2008) 31 The World Economy 548, 550CrossRefGoogle Scholar.

⁹⁸ For more on this, see Desta, MG, The Law of International Trade in Agricultural Products: From GATT 1947 to the WTO Agreement on Agriculture (Kluwer 2002)Google Scholar.

⁹⁹ For an accessible account of the history of the shifting balance between different competing interests in Europe during the eighteenth and nineteenth centuries, see Harrison, M, ‘Disease, Diplomacy and International Commerce: The Origins of International Sanitary Regulation in the Nineteenth Century’ (2006) 1 Journal of Global History 197CrossRefGoogle Scholar.

¹⁰⁰ As Sykes notes, under the GATT, regulators were ‘free to adopt whatever regulations they wished, even if the regulations raised the costs of foreign suppliers disproportionately and thus had the effect of insulating domestic firms from foreign competition’. Sykes, A, ‘Domestic Regulation, Sovereignty, and Scientific Evidence Requirements: A Pessimistic View’ (2002) 3 Chicago JIntlL 353, 355Google Scholar.

¹⁰¹ See GATT, Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes—Panel Report (November 1990)Google Scholar DS10/R BISD 37S/200, para 73.

¹⁰² Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef—AB Report (2000)Google Scholar WT/DS161, WT/DS169.

¹⁰³ ibid, para 210.

¹⁰⁴ See also United States—Section 337 of the Tariff Act of 1930—Panel Report (7 November 1989) BISD 36S/345, para 5.26; Thailand —Cigarettes (n 101) paras 74–75.

¹⁰⁵ See Brazil —Measures Affecting Imports of Retreaded Tyres—AB Report (3 December 2007) WT/DS332/AB/R, para 156.

¹⁰⁶ Brazil —Retreaded Tyres is one good example where a respondent passed the necessity test under art XX(b) but failed on the chapeau. ibid para 228.

¹⁰⁷ See ibid para 215. The only case in which a GATT/WTO member successfully defended a measure on the basis of GATT art XX(b) was EC Asbestos. See WTO, European Communities—Measures Affecting Asbestos and Asbestos-containing Products—AB Report (2001) WT/DS135, 175.

¹⁰⁸ See GATT, Ministerial Declaration on the Uruguay Round (20 September 1986), reproduced in GATT, Focus Newsletter, No 41 (October 1986).

¹⁰⁹ See van den Bossche, P, The Law and Policy of the World Trade Organization: Text, Cases and Materials (2nd edn, CUP 2008) 841CrossRefGoogle Scholar.

¹¹⁰ See WTO SPS Agreement preamble, para 1.

¹¹¹ See ibid preamble para 1 and arts 2 and 5.

¹¹² See Motaal, DA, ‘The “Multilateral Scientific Consensus” and the World Trade Organization’ (2004) 38 Journal of World Trade 855Google Scholar.

¹¹³ See arts 2 and 5 of the WTO SPS Agreement.

¹¹⁴ See eg Japan —Agricultural Products II—AB Report (1999), paras 82–84; Australia —Measures Affecting Importation of Salmon—AB Report (1998), para 136; European Communities—Measures Concerning Meat and Meat Products (Hormones)—AB Report (1998), para 208. For a comprehensive analysis of the SPS Agreement and the body of case law on the agreement, see J Scott, The WTO Agreement on Sanitary and Photosanitary Measures: Commentary (CUP 2007).

¹¹⁵ See Sykes (n 100) 368; Guzman, A, ‘Food Fears: Health and Safety at the WTO’ (2004) 45 Virginia JIntlL 1Google Scholar; Victor, D, ‘The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment after Five Years’ (2000) 32 New York UJIntlL and Politics 865, 872Google Scholar.

¹¹⁶ See Australia —Salmon (n 114) para 125.

¹¹⁷ One wonders if the Appellate Body was finally coming round to accepting some form of proportionality when it stated, in Brazil—Retreaded Tyres (n 106) 156, that panels must assess all ‘relevant factors, particularly the extent of the contribution to the achievement of a measure's objective and its trade restrictiveness, in the light of the importance of the interests or values at stake’ (emphasis added).

¹¹⁸ See J Wilson, T Otsuki and M Sewadeh, A Race to the Top? A Case Study of Food Safety Standards and African Exports (2001) World Bank Policy Research Working Paper 2563. For similar observations, see Josling, T, Roberts, D and Orden, D, Food Regulation and Trade: Toward a Safe and Open Global System (IIE 2004) 47Google Scholar. The Blair Commission for Africa also observed that ‘If the EU used international standards, instead of its own, for traceability requirements and regulations on pesticide residues for agricultural imports, African banana exports could grow by US$410 million a year.’ See Commission for Africa (n 1) 286.

¹¹⁹ See S Jaffee and S Henson, ‘Standards and Agro-food Exports from Developing Countries: Rebalancing the Debate’ (2004) World Bank Policy Research Working Paper 3348, 31 <http://ssrn.com/abstract=610392>. See also L Rios and S Jaffee, ‘Barrier, Catalyst, or Distraction? Standards, Competitiveness, and Africa's Groundnut Exports to Europe’ (2008) World Bank Agriculture and Rural Development Discussion Paper 39.

¹²⁰ See Croome, J, Reshaping the World Trading System: A History of the Uruguay Round (WTO 1995) 236Google Scholar.

¹²¹ ibid 237.

¹²² ibid.

¹²³ See EC—Hormones (n 114) para 165.

¹²⁴ On the precautionary principle, see ibid paras 123–24, and European Communities – Measures Affecting the Approval and Marketing of Biotech Products (2006), panel report, paras 7.88–7.89.

¹²⁵ Steinberg, RH, ‘Trade-Environment Negotiations in the EU, NAFTA, and WTO: Regional Trajectories of Rule Development’ (1997) 91 AJIL 231, 241CrossRefGoogle Scholar.

¹²⁶ See SPS Agreement, arts 7 and 12(1) and Annex B on transparency of SPS regulations.

¹²⁷ The WTO SPS information database contains no documents from Djibouti, 1 from Uganda and 27 from Kenya, 23 of which relate to emergency notifications concerning avian influenza in 2005/06. See <http://spsims.wto.org>.

¹²⁸ See Desta, ‘Regulatory Framework’ (n 22) 48–51.

¹²⁹ The third international organization identified by the SPS Agreement is the International Plant Protection Convention for plant health: see art 3(3).

¹³⁰ The Organic Statute of the OIE identified nine animal diseases, of which rinderpest and food and mouth disease (FMD) were singled out as diseases of the highest priority. See art 5 of the Organic Statutes of the Office International des Epizooties <http://www.opbw.org/new_process/mx2004/other_pres/ger_pres/int/OIE_Organic_Statutes.pdf>. All seven Horn countries are members of the OIE.

¹³¹ See Droppers, W, ‘OIE Philosophy, Policy and Procedures for the Development of Food Safety Standards’ (2006) 25 OIE Scientific and Technical Review 810Google ScholarPubMed.

¹³² See Blayney, D, ‘Disease-related Trade Restrictions Shaped Animal Product Markets in 2004 and Stamp Imprints on 2005 Forecasts’ (2005) USDA Outlook ReportGoogle Scholar <http://www.iatp.org/files/258_2_76146.pdf>.

¹³³ See A Nin Pratt and others, ‘Benefits and Costs of Compliance of Sanitary Regulations in Livestock Markets: the Case of Rift Valley Fever in Ethiopia’ (2004) <https://www.gtap.agecon.purdue.edu/resources/download/1723.pdf>.

¹³⁴ However, a number of other almost equally significant diseases are not covered. See J Rushton, A McLeod and J Lubroth, ‘Managing transboundary animal disease’ in FAO Livestock Report 2006 (FAO 2006) 29–44.

¹³⁵ See <http://www.fao.org/ag/AGAInfo/programmes/en/grep/home.html>.

¹³⁶ See OIE, List of Rinderpest-free Members According to Resolution No. 16 (78th General Session May 2010). All Horn countries are on the OIE list of rinderpest-free countries.

¹³⁷ This was officially pronounced, and celebrated, in successive resolutions and events by the OIE (see Declaration of Global Eradication of Rinderpest and Implementation of Follow-up Measures to Maintain World Freedom from Rinderpest (28 May 2011) <http://www.fao.org/ag/againfo/programmes/documents/grep/A_RESO_18_FMD_Eradication.pdf>), and the FAO (28 June 2011 <http://www.fao.org/ag/againfo/resources/documents/AH/GREP_flyer.pdf>).

¹³⁸ See <http://www.oie.int/en/animal-health-in-the-world/fmd-portal/about-fmd/>. See also Perry, B and Rich, K, ‘Poverty Impacts of Foot-and-Mouth Disease and the Poverty Reduction Implications of its Control’ (2007) 160 Veterinary Record 238CrossRefGoogle ScholarPubMed.

¹³⁹ See article 5 the Organic Statutes of the OIE (n 130).

¹⁴⁰ See Terrestrial Animal Health Code, arts 2(2)(10)(2)–2(2)(10)(6).

¹⁴¹ ibid, art 2(2)(10)(2).

¹⁴² See ibid arts 2(2)(10)(9) and 2(2)(10)(11). The difference in the sanitary requirement for the importation of fresh meat products between those coming from FMD-free countries and those from FMD-infected countries is even starker. Compare ibid art 2(2)(10)(19) with art 2(2)(10)(22).

¹⁴³ See <http://www.oie.int/eng/Status/FMD/en_fmd_free.htm>.

¹⁴⁴ Dyck, J and Nelson, K, ‘Structure of the Global Markets for Meat’ (2003) US Department of Agriculture, Agriculture Information Bulletin 785, 8Google Scholar.

¹⁴⁵ See EC Commission, General guidance on EU import and transit rules for live animals and animal products from third countries (2007) 7.

¹⁴⁶ Pan-African News Agency, 31 January 2007, as reported in Africa Research Bulletin (16 January–15 February 2007), 17270.

¹⁴⁷ See WHO, ‘Rift Valley Fever in Saudi Arabia: Update 3’ (25 October 2000) <http://www.who.int/csr/don/2000_10_25/en/index.html> and ‘2000: Rift Valley fever in Yemen: Update 4’ (26 October 2000) <http://www.who.int/csr/don/2000_10_26/en/index.html>.

¹⁴⁸ See Terrestrial Animal Health Code art 8(11).

¹⁴⁹ See ibid arts 8(11)(3)–8(11)(5).

¹⁵⁰ See Codex Statute and Rules of Procedure, ftp://ftp.fao.org/codex/Publications/ProcManuals/Manual_15e.pdf.

¹⁵¹ See Codex Stan 192-1995 <http://www.codexalimentarius.net/gsfaonline/docs/CXS_192e.pdf>. Para 2(a) provides a definition of a food additive.

¹⁵² See ‘Additives Permitted for Use under Specified Conditions in Certain Food Categories or Individual Food Items’ in ibid 67–141.

¹⁵³ OIE, ‘Devising Import Health Measures for Animal Commodities’, <http://www.oie.int/fileadmin/Home/eng/Internationa_Standard_Setting/docs/pdf/EN_commodity-based_approach.pdf>.

¹⁵⁴ A closer look at the Code shows that compliance with its requirements would significantly enhance the export opportunities of Horn countries for live animals and fresh meat. The Code covers hygiene provisions for raw meat, meat preparations and manufactured meat from the time of live animal production up to the point of retail sale. See Codex, Code of Hygienic Practice for Meat (CAC/RCP 58-2005), para 6.

¹⁵⁵ See Desta, ‘Regulatory Framework’ (n 22) 79–90.

¹⁵⁶ The list of currently approved establishments is available at <http://ec.europa.eu/food/food/biosafety/establishments/third_country/index_en.htm>.

¹⁵⁷ See Desta, MG, ‘EU Sanitary Standards and Sub-Saharan African Agricultural Exports: A Case Study of the Livestock Sector in East Africa’ (2008) 1 Law and Development Review, 111–12CrossRefGoogle Scholar.

¹⁵⁸ Around 30 per cent of Codex members do not normally send a delegation to its plenary meetings. See T Hüller and ML Maier, ‘Fixing the Codex? Global Food-safety Governance Under Review’ in C Joerges and E-U Petersmann (eds), Constitutionalism, Multilateral Trade Governance and Social Regulation (Hart Publishing 2006), 272.

¹⁵⁹ On Codex and the OIE, see above, section IV(C).

¹⁶⁰ Josling and others (n 118) 25.

¹⁶¹ For definitions of the governance variables, see Kaufmann, D, Kraay, A and Mastruzzi, M, ‘The Worldwide Governance Indicators: Methodology and Analytical Issues’ (2010) Policy Research Working Paper 5430, 4Google Scholar.

¹⁶² See <http://info.worldbank.org/governance/wgi/index.asp>.

¹⁶³ The index is compiled on the basis of surveys and assessments that include questions relating to bribery of public officials, kickbacks in public procurement, embezzlement of public funds and the strength and effectiveness of public sector anti-corruption efforts. See Transparency International, ‘Corruption Perceptions Index 2010’ <http://www.transparency.org/policy_research/surveys_indices/cpi/2010>.

¹⁶⁴ See Heritage Foundation <http://www.heritage.org/index/About.aspx>.

¹⁶⁵ Governance Index (n 162).

¹⁶⁶ Transparency International (n 163).

¹⁶⁷ Heritage Index (n 164).

¹⁶⁸ Governance Index (n 162).

¹⁶⁹ Transparency International (n 163).

¹⁷⁰ Heritage Index (n 164).

¹⁷¹ Governance Index (n 162).

¹⁷² Transparency International (n 163).

¹⁷³ Heritage Index (n 164).

¹⁷⁴ ibid.

¹⁷⁵ Governance Index (n 162).

¹⁷⁶ Transparency International (n 163).

¹⁷⁷ Heritage Index (n 164).

¹⁷⁸ Governance Index (n 162).

¹⁷⁹ Transparency International (n 163).

¹⁸⁰ Heritage Index (n 164).

¹⁸¹ Governance Index (n 162).

¹⁸² Transparency International (n 163).

¹⁸³ Heritage Index (n 164).

¹⁸⁴ Governance Index (n 162).

¹⁸⁵ Transparency International (n 163).

¹⁸⁶ See, eg OECD, African Economic Outlook <www.africaneconomicoutlook.org>

¹⁸⁷ See Desta, ‘Regulatory Framework’ (n 22) 53–78.

¹⁸⁸ Interview with Dr MI Elhag, Deputy Director of Livestock Markets, Khartoum, March 2007.

¹⁸⁹ See Uganda : Diagnostic Trade Integration Study (June 2006) vol 1, 62 <http://www.integratedframework.org/countries/uganda.htm>.

¹⁹⁰ See OIE, World Animal Health 2004 (Paris 2004), 348.

¹⁹¹ For a detailed examination of institutional problems in the Horn countries (including weak commitment to rule of law, legal uncertainties and access to legal information), see Desta, ‘Regulatory Framework’ (n 22) 53–78.

¹⁹² ibid 70–78.

¹⁹³ Djibouti established a new private quarantine facility in 2006. See ibid 58–60.

¹⁹⁴ See eg UNCTAD (n 91) 230–31, 252.

¹⁹⁵ North, D, Understanding the Process of Economic Change (Princeton University Press, 2005), 161Google Scholar.

¹⁹⁶ See eg Ohnesorge (n 12) 245.

¹⁹⁷ Prado and Trebilcock (n 27) 39. See also D Rodrik, ‘The Global Governance of Trade: As if Development Really Mattered’ (2001) paper prepared for the UNDP, 29 <http://gopher.mtholyoke.edu/courses/epaus/econ213/rodrikgovernance.PDF>.

¹⁹⁸ See Prado and Trebilcock (n 27) 16.

¹⁹⁹ See Spence, M, The Next Convergence: The Future of Economic Growth in a Multispeed World (Farrar, Straus and Giroux 2011) 109Google Scholar.

²⁰⁰ See eg Collier (n 26) xi, 12, 67, 71, 185; Davis and Trebilcock (n 50) 954–56.

²⁰¹ North (n 195) 2.

²⁰² See Bingham (n 55) 8.

²⁰³ See Standards and Trade Development Facility (STDF), ‘Development of Regional Action Plans to Enhance Veterinary Capacity in East and West Africa’, STDF/PG/013 Final Report <http://www.standardsfacility.org/files/Project_documents/Project_Grants/STDF_13_Final_report.pdf>.

²⁰⁴ See Peerenboom, R, ‘Human Rights and Rule of Law: What is the Relationship?’ (2005) 36 Georgetown JIntlL 809Google Scholar.

²⁰⁵ Art 22 of the 1966 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); art 3 of the African (Banjul) Charter on Human and Peoples' Rights (adopted 27 June 1981, entered into force 21 October 1986) 21 ILM 58 (African Charter).

²⁰⁶ ICCPR, art 14; African Charter, art 7.

²⁰⁷ ICCPR, art 19; African Charter, art 9(2).

²⁰⁸ ICCPR, art 20; African Charter, art 11.

²⁰⁹ ICCPR, art 21; African Charter, art 10.

²¹⁰ ICCPR, art 9; African Charter, art 6.

²¹¹ David Leonard argued that maintenance of the disease-free zone was difficult, inter alia because: ‘Livestock prices were higher inside it because of the privileged access to market that it brought. The temptations to evade the quarantine were high. … [T]here were too many incentives for too many people to use influence or bribes to evade the quarantine.’ Leonard, D, African Successes: Four Public Managers of Kenyan Rural Development (University of California Press 1991) 165Google Scholar.

²¹² See Desta (n 98).

²¹³ Internet Center for Corruption Research, ‘Persistent Corruption in Low-income Countries Requires Global Action’ (2007) <http://www.icgg.org/corruption.cpi_2007_pressTI.html>; IM Carr and M Goldby, ‘The United Nations Anti-corruption Convention and Money Laundering’ (2009) <http://ssrn.com/abstract=1409628>; Collier (n 26) 91–93, 135–37.

²¹⁴ Tackling money laundering is of major importance in the struggle against corruption. Where corruption takes place in developing countries, its proceeds are likely to be laundered through the international financial system. See Carr and Goldby (n 213).

²¹⁵ Contemporary international legal regimes that aim to combat corruption may be traced to the passage of the US Foreign Corrupt Practices Act 1977 (Pub L No 95-213, 91 Stat 1494). See Snider, TR and Kidane, W ‘Combating Corruption Through International Law in Africa: A Comparative Analysis’ (2007) 40 Cornell IntlLJ 691, 696–97, 700–03Google Scholar; Colares, J, ‘The Evolving Domestic and International Law Against Foreign Corruption: Some New and Old Dilemmas Facing the International Lawyer’ (2006) 5 Washington University Global Studies Law Review 1, 5–18Google Scholar, 20–29; Posadas, A, ‘Combating Corruption Under International Law’ (1999–2000) 10 Duke JCompIntlL 345Google Scholar.

²¹⁶ (1996) 35 ILM 724. See Snider and Kidane (n 215) 704–06.

²¹⁷ (1998) 37 ILM 1.

²¹⁸ (7 October 2003) UN Doc A/58/422. See also Snider and Kidane (n 215) 706–11.

²¹⁹ (2003) 43 ILM 5. See also Snider and Kidane (n 215) 711–15, 743–47.

²²⁰ ibid 715–43.

²²¹ 6th and 7th recital of the African Union Convention.

²²² OECD Working Group on Bribery in International Business Transactions, ‘Consultation Paper: Review of the OECD Instruments on Combating Bribery of Foreign Public Officials in International Business Transaction Ten Years After Adoption’ (2008) <http://www.oecd.org/dataoecd/18/25/39882963.pdf>.

²²³ N Bonucci, ‘The OECD Anti-Bribery Convention 10 Years On’ (2008) OECD Observer No 264/265.

²²⁴ Schmidt, TW, ‘Sweetening the Deal: Strengthening Transnational Bribery Laws Through Standard International Corporate Auditing Guidelines’ (2009) 93 Minnesota LRev 1120, 1120–21Google Scholar.

²²⁵ On these and additional proposals, see OECD Working Group (n 222).

²²⁶ See Schmidt (n 224) 1136–39.

²²⁷ World Duty Free v Kenya (4 October 2006) ICSID Case no ARB 00/7, paras 136, 157.

²²⁸ Inceysa Vallisoletana SL v Republic of El Salvador (2 August 2006) ICSID Case No ARB/03/26, paras 234, 245–52, 257, 335–36.

²²⁹ On investment tribunals and corruption, see H Raeschke-Kessler and D Gottwald, ‘Corruption’ in P Muchlinski, F Ortino and C Schreuer (eds), Oxford Handbook of International Investment Law (OUP 2008) 584.

²³⁰ Examples include GATT art X; arts 1(4)(a) and 5 of the Agreement on Import Licensing Procedures; arts 2(8), 3(2) and 5 of the Agreement on Pre-Shipment Inspection.

²³¹ See eg arts XVII–XX of the GPA. For a detailed analysis of the WTO agreements relating to corruption, see KN Schefer, ‘Corruption and the WTO Legal System’ (2008) Society of International Economic Law Inaugural Conference Paper <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1145567>. See also W Abbott, ‘Rule-making in the WTO: Lessons from the Case of Bribery and Corruption’ (2001) 4 JIntlEconL 275.

²³² See WTO Revision of the Agreement on Government Procurement as at 13 December 2010: Prepared by the Secretariat (16 December 2010) GPA/W/313, art IV(4)(c).

²³³ For studies on the impact of corruptive practices and international trade, see AE D'Souza, ‘The OECD Anti-bribery Convention: Changing the Currents of Trade’ (2009) <http://ssrn.com/abstract=1581429>; Lambsdorff, JG, ‘An Empirical Investigation of Bribery in International Trade’ (1998) 10 European Journal of Development Research 40CrossRefGoogle Scholar; S Bandyopadhyay and S Roy, ‘Corruption and Trade Protection: Evidence from Panel Data’ (2007), Research Division, Federal Reserve Bank of St Louis Working Paper 2007-022A <http://research.stlouisfed.org/wp/2007/2007-022.pdf>.

²³⁴ Schefer (n 231) 35–37.

²³⁵ See above, Section IV(A) and (B).

²³⁶ The special and differential treatment provisions under article 10 of the SPS Agreement provide for only limited flexibility, such as a requirement on developed countries, in the preparation and application of SPS measures, to ‘take account of’ the special needs of developing countries, to allow longer time-frames for compliance with new measures whenever that is possible, and to encourage and facilitate their active participation in relevant international organizations.

²³⁷ WTO Doc G/SPS/44 (23 April 2007) para 3.

²³⁸ Notable among these are the United Nations Millennium Declaration (General Assembly Resolution A/55/L.2 of 18 September 2000, and the WTO Doha Ministerial Declaration (which devoted a special section to technical cooperation and capacity building, describing them as ‘core elements of the development dimension of the multilateral trading system’). See WT/MIN(01)/DEC/1 (14 November 2001), paras. 38-42.

²³⁹ See WTO, Focus Newsletter No. 49 (November 2000) at 12. Capacity building is not mentioned in the WTO's list of functions under article III of the WTO Agreement, but its mandate in many of the specific agreements is so significant, and its actual role in providing such assistance so prominent, that Professor Peter van den Bossche suggests that capacity building could qualify as one of the WTO's implied functions. Van den Bossche (n 110), at 98.

²⁴⁰ See WTO, Press Release (Press/279) 11 March 2002.

²⁴¹ The IF was first established in 1997 by six multilateral institutions to support LDCs in the multilateral trading system. The role played by the IF in the IGAD countries is already significant. Given that all IGAD countries except Kenya are LDCs, we now have valuable studies (known as Diagnostic Trade Integration Studies (DTIS)), completed for Djibouti, Ethiopia and Uganda and a concept paper for Sudan. See <http://www.enhancedif.org/>.

²⁴² See WTO Press Release (30 April 2010) PRESS/601.

²⁴³ On the origins of the Aid for Trade initiative, see Garcia, M, Lammersen, F and Hayashikawa, M, The Development Dimension: Aid for Trade: Making it Effective (OECD 2006) 21–25Google Scholar.

²⁴⁴ On relations between aid and trade (with a special focus on aid for trade), see Suwa-Eisenmann, A and Verdier, T, ‘Aid and Trade’ (2007) 23 Oxford Review of Economic Policy 481CrossRefGoogle Scholar.

²⁴⁵ J Nielson, ‘Aid for Trade’ in R Newfarmer (ed), Trade, Doha, and Development: A Window into the Issues (World Bank 2006) 323; Stiglitz and Carlton (n 9). See also, Garcia and others (n 243) 26.

²⁴⁶ All IGAD countries except Somalia have benefited from some form of assistance from the STDF. For a list of all beneficiary countries, see <http://www.standardsfacility.org/>.

²⁴⁷ All IGAD countries except Somalia have received support to participate in Codex meetings and other activities over the past few years. See <http://www.who.int/foodsafety/codex/prog5e.pdf>.

²⁴⁸ The Fund particularly supports developing countries in establishing and strengthening their veterinary services so as to meet OIE international standards on quality.

²⁴⁹ STDF (n 214).

²⁵⁰ For example, Uganda reported to the WTO in 2006 that its national food control and safety system is ‘severely hampered by obsolete food laws and the lack of resources required for building a sound food safety control infrastructure, including … laboratory facilities, and necessary scientific expertise and research’. WTO, Implementation of the SPS Agreement: Communication from Uganda (31 March 2006) G/SPS/GEN/673 [11].

²⁵¹ See WTO, Technical Assistance: Communication from Kenya (15 June 2010) G/SPS/GEN/1020.

²⁵² The repeated import bans by countries in the Middle East due to outbreaks of RVF in the Horn are a good example. See above, Section IV(C).

²⁵³ See Desta, ‘Regulatory Framework’ (n 22) 50–53.

²⁵⁴ With technical support from the FAO and financial support from the EU, the IGAD Livestock Policy Initiative is intended ‘to strengthen the capacity in IGAD, its member states, and other regional organizations and stakeholders, to formulate and implement livestock sector and related policies that sustainably reduce food insecurity and poverty’. See <http://www.igad-lpi.org/about/Overview.htm>.

²⁵⁵ See ‘Regional Policy Framework on Animal Health in the Context of Trade and Vulnerability’ (10 December 2009) <http://www.igad-lpi.org/news/doc/RPF_en.pdf>.

²⁵⁶ A potential source of inspiration in this respect is the Caribbean Regional Negotiating Machinery (CRNM), which was established in 1997 with the mandate ‘to develop, coordinate and execute an overall negotiating strategy for various external negotiations in which the Region was involved’. See <http://www.crnm.org>.

²⁵⁷ Dyck and Nelson (n 144) 8.

²⁵⁸ Rodrik (n 7).

²⁵⁹ Collier (n 26) xi.