The TBT and international standards
1.The TBT’s harmonization objectives
It has long been accepted that domestic policies and laws can nullify or impair the purported benets of trade policies, and that the WTO must therefore reach beyond border measures (Bhagwati, 1996 : 23–24). The GATT’s national treatment and MFN obligations do this to some extent, but the growth in non-tari barriers to trade during the 1960s–1970s prompted GATT parties to negotiate the Standards Code, the predecessor to the TBTA, in the Tokyo Round. The addition of the SPSA during the Uruguay Round stemmed from the failures of the Standards Code to curtail the growth in technical regulations in food and agricultural products (Marceau and Trachtman, 2002 : 813–815). The TBTA and its companion on food and plant safety now add considerably to the disciplines on domestic regulatory autonomy that are contained in the GATT.
The Preamble to the TBT sheds light on the Agreement’s underlying harmonization claims. Its key trade concerns are to promote transparency by eliminating a country’s ability to choose rules that have greater protective eect and to facilitate trade expansion with associated economies of scale (TBT, Preamble;WTO CTBT, 1995, annex 4, Principle 10). These objectives do not necessarily require regulatory harmonization in the form of a single international standard or rule. If the basis of the claim for harmonization is simply to achieve economies of scale or to address transparency concerns, Cassis de Dijon makes clear that mutual recognition would be equally appropriate (Leebron, 1996 ; Bhagwati,1996 : 9 ; Bhagwati and Srinivasan, 1996 : 15). But mutual recognition does not respond to concerns that the regulatory regime of another country imposes transboundary costs, hinders the implementation of domestic laws, or is somehow ‘ unfair ’ (Leebron, 1996 : 94). Such concerns frequently underpin domestic regulation in elds of consumer safety and environmental health.
Accordingly, the TBT strives for a balance between trade facilitation and domestic regulatory objectives. Its starting premise is the right of Members to introduce product requirements that serve a range of legitimate non-trade objectives, including health, and environmental and consumer protection. In this respect, the TBT is consistent with both trade and consumer concerns about harmonization. The Transatlantic Consumer Dialogue (TACD) ‘ Principles for International Harmonization ’, for example, advocate the preservation of cultural preferences in the eld of health and safety, identifying such regulations as inappropriate subjects of harmonization (TACD, 2000, Principle 1). Unlike the TACD Principles, however, the TBT still places strong harmonizing disciplines on the regulatory autonomy of Members in these policy spheres. These disciplines are considered further below.
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