TBT Agreement Article 2.2
TBT Agreement Article 2.2 provides as follows:
Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are, inter alia: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. In assessing such risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing technology or intended end-uses of products.
The first issue under Article 2.2 is whether the regulation in question pursues a legitimate objective. The assessment of what a Member seeks to achieve by means of a technical regulation may take into account the texts of statutes, legislative history, and other evidence regarding the structure and operation of the measure. The next question is whether a particular objective is legitimate. The objectives listed in Article 2.2 provide a reference point for which other objectives may be considered to be legitimate, as do those of the preamble of the TBT Agreement and the objectives recognized in the provisions of other covered agreements. Thus, for example, the objectives of sustainable development, which is recognized in the preamble of the WTO Agreement, would be a legitimate objective. Environmental protection would also be legitimate, since it is expressly listed. Pursuing these objectives in accordance with common but differentiated responsibilities would also be consistent with the WTO Agreements, as we noted in Chapter 2. The objective of the climate change regulations is likely to be presented as the “protection of... animal or plant life or health, or the environment.” Brazil—Retreaded Tyres supports the argument that the protection of the animal and plant life or health through the reduction of carbon emissions, like the protection of animal and plant life or health in Brazil through the reduction of air, water, and soil pollution, falls within the range of policies covered by the “protection of ... animal or plant life or health, or the environment.”
The second issue is whether a technical regulation “fulfils” the legitimate objective. This requires a determination of the degree of contribution that the technical regulation makes toward the achievement of the legitimate objective. It also requires a determination of the level at which a WTO Member seeks to pursue the particular legitimate objective, something the WTO Member articulates either implicitly or explicitly. The degree of achievement of a particular objective may be discerned from the design, structure, and operation of the technical regulation, as well as from evidence relating to the application of the measure. As in the context of Article XX of the GATT 1994, here a panel must assess the contribution to the legitimate objective actually achieved by the measure at issue. This is an important point with respect to climate change, since there will be a degree of scientific uncertainty regarding the impact ofmeasures taken to mitigate and adapt to climate change. As we noted above, the Appellate Body recognized, in Brazil— Retreaded Tyres, that some uncertainty would have to be allowed in circumstances such as climate change, where the contribution of climate change mitigation measures might not be immediately discernible. Thus, as in the context of Article XX, the assessment of the contribution in the Article 2.2 analysis could be quantitative or qualitative.
The third issue under Article 2.2 is whether the regulation in question creates unnecessary obstacles to international trade. The assessment ofnecessity requires an analysis of three criteria: (1) the trade-restrictiveness of the technical regulation;
(2) the degree of contribution that it makes to the achievement of a legitimate objective; and (3) the risks non-fulfillment would create. Some degree of traderestrictiveness is permitted. Article 2.2 is concerned only with restrictions on international trade that exceed what is necessary to achieve the degree of contribution that a technical regulation makes to the achievement of a legitimate objective. The risks non-fulfillment of the objective would create are assessed in light of available scientific and technical information, related processing technology or intended end-uses of products. Moreover, the comparison of the challenged measure with a possible alternative measure should be made in light of the nature of the risks at issue and the gravity of the consequences that would arise from nonfulfillment of the legitimate objective. The contribution that the challenged measure makes to the achievement of its objective must be determined objectively, and then evaluated along with the other factors mentioned in Article 2.2. The measure does not have to fulfill the objective completely or satisfy some minimum level of fulfillment of that objective.
With respect to climate change, the availability of scientific information is a key issue, given the scientific uncertainty regarding many aspects of climate change. Related processing technology is relevant to assessing the consistency of PPM-based measures with Article 2.2, since the capacity of a country to reduce GHG emissions is connected to the PPM technology it has available. The gravity of the risks associated with climate change should provide greater leeway to reject proposed alternatives. One difficult issue would be proximate cause, however, since there are many connecting points between burning coal to heat a factory and restricting imports from that factory to address the risk that they will contribute to climate change and hence to extreme weather, droughts, famine, and spread of diseases. In civil litigation, it might be difficult to meet the burden of proof as a plaintiff to prove causation between burning coal in China and a case of mosquito borne disease in Italy, for example. What standard of proof would be sufficient under Article 2.2? It is important to recall that the Preamble of the TBT Agreement allows each Member to determine the level of protection it considers appropriate. Moreover, any alternative measures should be measures that the respondent can take, rather than measures that are beyond its control and that would require consultations or negotiations with other WTO Members. The alternatives, in addition to being less trade restrictive and making an equivalent contribution to the achievement of the relevant legitimate objective, also should be reasonably available to the relevant country, which would make economic and technological capacity to adopt alternative measures a relevant consideration.
In the case of climate change measures that form part of a comprehensive scheme, the Appellate Body has pointed out that evidence of the effect of the measure is not essential in the context of GATT Article XX(b). The same should be true in the context of TBT Agreement Article 2.2. Moreover, since the TBT Agreement does not explicitly regulate risk assessment or require scientific bases for regulations, the implicit requirement for some scientific basis should be significantly less rigorous than the explicit requirements of the SPS Agreement. Article 2.2 only requires a consideration of “available scientific and technical information” (emphasis added). This does not require conclusive scientific evidence. According to the Appellate Body, “[i]n justifying a measure under Article XX(b) of the GATT 1994, a Member may also rely, in good faith, on scientific sources which, at that time, may represent a divergent, but qualified and respected, opinion.” The same reasoning should apply in the context of TBT Agreement Article 2.2.
The assessment of the degree of contribution that a measure makes to the achievement of a legitimate objective requires a panel to identify the measure’s objective, by examining evidence and arguments presented by the parties relating to the measure’s text, design, architecture, structure, and legislative history, as well as its operation. The legitimacy of the specific objectives pursued also must be determined. Environmental labeling (and thus carbon labeling) is likely to be considered a legitimate objective, since the practice is widespread and there is ample evidence that consumers are interested in it. Of course, since environmental protection is already listed in Article 2.2 as a legitimate objective, this enquiry need not take place for carbon labels, unless complainants allege that this is not the real objective. However, that line of argument not likely to bear fruit in most cases, since it would imply bad faith on the part of the WTO Member applying the labeling program, a conclusion that panels and the Appellate Body would be reluctant to reach.
-  Appellate Body Report, US—Tuna II (Mexico) paras. 313—14.
-  Appellate Body Report, US—Tuna II (Mexico) paras. 315—17.
-  Appellate Body Report, Brazil—Retreaded Tyres para. 151.
-  Appellate Body Report, US—Tuna II (Mexico) paras. 318—19; Appellate Body Report, US—COOL para. 374.
-  Appellate Body Report, US—Tuna II (Mexico) para. 321.
-  Appellate Body Report, US—COOL para. 461.
-  Appellate Body Report, US—COOL para. 46.
-  Appellate Body Report, US—Gambling paras. 316—18.
-  Appellate Body Report, US—Tuna II (Mexico) para. 323; Appellate Body Report, Brazil—Retreaded Tyres.
-  Appellate Body Report, Brazil—Retreaded Tyres para. 151.
-  Marceau and Trachtman “The Technical Barriers to Trade Agreement” 836.
-  Appellate Body Report, EC—Asbestos para. 178.
-  Appellate Body Report, US—COOL para. 396.
-  Appellate Body Report, US—COOL paras. 438—50.