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International standards

What constitutes an “international standard” for the purposes of the TBT Agreement is an important issue for climate change measures. Article 2.4 requires WTO Members to use a “relevant international standard” as a basis for their technical regulations, except when such standard would be an ineffective or inappropriate means for the fulfillment of the legitimate objectives pursued by the Member in question. Article 2.5 creates a rebuttable presumption of compliance with Article 2.2 where a technical regulation for one of the explicitly mentioned legitimate objectives is in accordance with relevant international standards. Each of these provisions privilege multilaterally agreed technical regulations over unilateral ones. Unilateral measures are not prohibited, but they must pass a stricter legal test than multilateral measures.

Contrary to the SPS Agreement, which defines “international standards, guidelines and recommendations” by reference to specific organizations, the TBT Agreement does not contain a list of international standardizing organizations. International standardizing bodies must ensure representative participation and transparency in the development of international standards for them to qualify as such under the TBT Agreement.[1] Thus, an international organization, in which membership requires that the parties take the decision to issue an invitation by consensus, is not an “international” body and its standards do not qualify as “international standards” for the purposes of the TBT Agreement.[2] The characteristics of the entity approving a standard make it “international,” not its subject matter. The Appellate Body has yet to decide whether the TBT Agreement also requires an “international standard” to be based on consensus or whether it has to be made available to the public.[3]

In ECHormones, the Appellate Body refused to read into SPS Agreement Article 3.2 a reverse presumption that noncompliance with an international standard leads to an inference of noncompliance, so deviations from international standards are not prohibited.[4] A multilateral environmental agreement on climate change might qualify as a relevant international standard if membership is open to all WTO Members. Unlike in the SPS Agreement, where the standard setting bodies are clearly and exhaustibly identified,[5] the organizations or bodies that could develop “standards” within the definition of TBT Annex 1 are not. On this basis, it could be argued that an environmental agreement with quasi-universal membership could develop international standards that may fall within the scope of the TBT Agreement.[6]

TBT Agreement Article 2.4 provides as follows:

Where technical regulations are required and relevant international standards exist or their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for their technical regulations except when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued, for instance because of fundamental climatic or geographical factors or fundamental technological problems.

The complainant bears the burden of proof in seeking a ruling of inconsistency with Article 2.4.[7] Members have to use relevant international standards that currently exist or whose completion is imminent with respect to the technical regulations that are already in existence.[8]

In USCOOL, the Appellate Body’s approach to whether an international standard is ineffective or inappropriate to fulfill a legitimate objective suggests that the respondent’s characterization of the objective can influence the outcome ofthe analysis. In that case, the international standard established a labeling scheme that provided consumers with information on where livestock were slaughtered, but not where the livestock were born and raised. The COOL measure’s objective was to provide consumer information on origin, and the United States defined the origin of meat based on the place where an animal from which meat is derived was born, raised, and slaughtered. The Panel found that CODEX STAN 1 1985 would not provide information to consumers about the countries in which an animal was born, raised and slaughtered. Thus, it was “ineffective and inappropriate for the fulfillment of the specific objective as defined by the United States.” In its analysis under Article 2.2 of the TBT Agreement, the Appellate Body noted that a mandatory labeling regime based on CODEX STAN 1 1985 “would, at best, contribute only partially to the objective of providing information to consumers on where livestock from which meat is derived were born, raised, and slaughtered.” However, there were insufficient Panel findings to enable the Appellate Body to determine the degree of contribution made by the COOL measure to the United States’ objective or to compare the degree of the COOL measure’s contribution with that of an alternative measure proposed by the complainants.[9]

Even if not adopted by consensus, an international standard can constitute a relevant international standard.[10] To be a “relevant international standard,” the standard at issue would have to “bear upon, relate to, or be pertinent to” the regulation.[11] There must be a very strong and very close relationship between two things in order to be able to say that one is “the basis for” the other. A standard is used as a basis for a technical regulation when it is used as the principal constituent or fundamental principle for the purpose of enacting the technical regulation.[12] A multilateral environmental agreement on climate change that sets standards might qualify as a relevant international standard if membership is open to all WTO Members, in light of the definition in Annex 1.4 of “international body or system” as a “Body or system whose membership is open to the relevant bodies of at least all Members.” Article 12.4 provides that “developing country Members should not be expected to use international standards as a basis for their technical regulations . . . which are not appropriate to their development, financial and trade needs.” This might entitle them to more leeway, but this provision is not mandatory.

In order to constitute an international standard for the purposes of the TBT Agreement, a standard has to be adopted by an “international standardizing body” that has recognized activities in standardization.[13] Thus, relevant evidence includes recognition by WTO Members and by national standardizing bodies. The recognition of those who participate in the development of a standard may not be sufficient, since TBT Agreement Articles 2.4 and 2.5 apply with respect to all WTO Members, not just to those who participated in the development of the respective standard. However, a larger number of countries participating in the development of a standard makes it more likely that the body’s activities in standardization are “recognized.”[14] Nevertheless, a body’s standards need not be widely used for it to have recognized activities in standardization for the purposes of the TBT Agreement.[15] Finally, an international organization that develops a single standard could have recognized activities in standardization, for example, if a large number of WTO Members participate in the development of the standard, acknowledge the validity and legality of the standard, or the body follows the principles contained in the TBT Committee Decision on Principles for the Development of International Standards, Guides and Recommendations with Relation to Articles 2, 5, and Annex 3 to the Agreement.[16]

With respect to climate change standards, the UNFCCC Conference of Parties could qualify as an “international standardizing body.” However, the openness requirement, the uncertainty regarding the type of voting procedures that the TBT Agreement requires of international standards bodies, and the difficulty of determining the type of organization and process that qualifies, together with the phenomenon of multilateral negotiation paralysis we discussed in Chapter 2, may encourage unilateral approaches. In turn, unilateral measures will face a greater hurdle than multilateral measures that qualify as international standards under the TBT Agreement, by virtue of Articles 2.4 and 2.5.

Since the TBT Agreement is relevant interpretative context for the GATT, and vice versa, GATT XX also needs to be interpreted to take a stricter view of unilateral measures than multilateral measures. This approach is consistent with the Appellate Body Report in US—Shrimp and the Rio Declaration, both of which express a preference for multilateral approaches over unilateral ones.[17] Of course, the TBT Agreement applies not just to transboundary environmental measures, but also to purely domestic measures regarding environmental protection, as well as other legitimate objectives, including health and safety. Thus, both the GATT and the TBT Agreement discourage Baptist-and-Bootlegger approaches to the design of technical regulations, but do not prohibit unilateral approaches, in order to leave countries free to adopt their own level of protection.

At the end of the day, multilateral climate change regulation will likely prove insufficient to tackle climate change effectively. This gives WTO Members an argument under Article 2.4 to adopt unilateral technical regulations, since the international standards, if any exist, will be ineffective, in light of the growing scientific evidence of the urgency of addressing climate change. Multilateral negotiation paralysis, and the dramatic changes in the economic growth, technological capacity, and GHG emissions of developing countries since 1992, have made the UNFCCC approach outdated and ineffective to address climate change adaptation and mitigation. Moreover, new evidence indicates that the climate is changing faster than expected.

  • [1] Appellate Body Report, US—Tuna II (Mexico) para. 379.
  • [2] Appellate Body Report, US—Tuna II (Mexico) paras. 398—9.
  • [3] Appellate Body Report, US—Tuna II (Mexico) para. 353.
  • [4] Marceau and Trachtman “The Technical Barriers to Trade Agreement” 842.
  • [5] CODEX, OIE, IPPC—see SPS Agreement, Annex A.
  • [6] On this question, the TBT Committee Decision on Principles for the Development ofInternational Standards, Guides and Recommendations with Relation to Articles 2, 5 and Annex 3of the Agreement, in WTO document G/TBT/1/Rev.10, Decisions and Recommendations adoptedby the WTO Committee on Technical Barriers to Trade since January 1, 1995 ( June 9, 2011), can beinformative, though it remains a Committee Decision (see section B of Annex to Part I).
  • [7] Appellate Body Report, EC—Sardines paras. 274—5.
  • [8] Panel Report, EC—Sardines para. 7.74; Appellate Body Report, EC——Sardines para. 205.
  • [9] Appellate Body Report, US—COOL paras. 485—6.
  • [10] Appellate Body Report, EC—Sardines para. 227.
  • [11] Panel Report, EC—Sardines para. 7.68.
  • [12] Appellate Body Report, EC—Sardines para. 245.
  • [13] Appellate Body Report, US—Tuna II (Mexico) para. 356.
  • [14] Appellate Body Report, US—Tuna II (Mexico) para. 390.
  • [15] Appellate Body Report, US—Tuna II (Mexico) para. 392.
  • [16] Appellate Body Report, US—Tuna II (Mexico) para. 394; TBT Committee Decision onPrinciples for the Development of International Standards, Guides and Recommendations withRelation to Articles 2, 5, and Annex 3 to the Agreement, 46—8.
  • [17] For a detailed analysis of the treatment of unilateral and multilateral environmental measures inthe GATT, see Bradly J. Condon, Environmental Sovereignty and the WTO: Trade Sanctions andInternational Law (Transnational Publishers, Ardsley, NY 2006).
 
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