A Legal Analysis of "Standard" in the WTO Agreement on Technical Barriers to Trade

Abstract

Recently, standard is an increasingly important non-tariff barrier in the world trade system. However, the WTO Agreement on Technical Barriers to Trade (TBT), which has been adopted to deal with issues of trade-restrictive standards, is yet to be adequately utilized and effectively applied to discipline such a problem. This thesis observes that one of the major regulatory limitations of the current TBT regime is the Agreements ambiguity in the concept of standards and its regulatory scope. Therefore, this thesis attempts to clarify the meaning, regulatory scope and legal status of standards in the TBT Agreement. In particular, this thesis finds it fundamentally essential to compare the concept of standards with the concept of technical regulations and to examine the legal element of mandatory/voluntary compliance, which serves as a determinative legal criterion to distinguish standards from technical regulations, with a view to suggest a proper meaning and boundary of standards for the purpose of the Agreement. This thesis basically relies on two sources of evidence that are considered to be most relevant and useful. One is the conceptual development of standards over the past GATT/WTO negotiations and the other is the legal development of the terms standards and mandatory/voluntary compliance interpreted and applied in recent TBT disputes. The result of the analysis on the conceptual development primarily shows that there have been notable changes in the concept of standards adopted by major draft and final TBT codes and agreements in the GATT/WTO history. For instance, the analysis finds that the legal status of standards in the past TBT draft and final codes was actually equivalent to that of technical regulations. However, the equivalent legal status has been significantly revised during the Uruguay Round negotiations and, as a result, in the current TBT Agreement, standards are indirectly and less strictly regulated, when compared to technical regulations. Another finding shows that, in the past, the concept of standards was largely comprised with characteristics of the standards bodies and these characteristics of the bodies were main features that distinguished the concept of standards from the concept of technical regulations. However, these components have evolved to be almost meaningless in the current TBT regime since the scope of standards bodies have broadened to incorporate virtually all bodies and the scope of the bodies that enact and enforce standards is actually identical with the scope of the bodies that implement technical regulations. Moreover, the requirement of mandatory/voluntary compliance was strictly dependent on some legal criteria in the early draft and final codes, but these legal elements have been gradually removed from the legal texts throughout the negotiations, making the distinction between standards and technical regulations substantially blurred and obscure in the current TBT Agreement. These findings altogether imply that there has been increasing ambiguity in the concept of standards and its regulatory scope under the TBT Agreement. This is a serious limitation of the TBT regime, since such a vague concept can cause confusion and uncertainty in the implementation and operation of the TBT Agreement. Consequently, it can also make the TBT regime less useful and ineffective. Accordingly, this thesis suggests that such a loophole should be addressed with a more careful interpretation of the terms standards and mandatory/voluntary compliance and, thus, the second part of the thesis is devoted to examining various approaches to the interpretation of these concepts in order to find out an appropriate context for interpreting the concept. Therefore, this thesis moves on to examine the recent discussions surrounding the concepts of standards and mandatory/voluntary compliance. The analysis largely concludes that the term standard is usually interpreted in the context of determining a relevant international standard as provided in Article 2.4 of the TBT Agreement but the review processes have not been consistent. In addition, it finds that the definition of standard is only limitedly considered when the legal characterization of a measure at issue is reviewed. Furthermore, the concept of mandatory/voluntary compliance is still left unclear, if not obscured even further, by the interpretations in US-Tuna II. In line with these implications and partial conclusions of the analyses summarized above, the thesis finally revisits the concept of standards and attempts to suggest an appropriate way of understanding and applying the concept. This thesis argues that it may be desirable to carry out the legal characterization of a measure in accordance with a suggested two-stage review process, rather than with the one-stage-three-criteria review process introduced, but not consistently applied, in the actual dispute settlements up to the present. It further argues that the recent approach to interpreting mandatory/voluntary compliance concept in US-Tuna II cannot be a generally applicable set of criteria for other disputes. In addition, it criticizes that some of the interpretative approaches were overly relied on textualism. Finally, it emphasizes that the concept of mandatory/voluntary compliance should be extensively applied so that part of the legally voluntary but virtually mandatory standards can be more directly and effectively regulated by the TBT Agreement.