.png)
According to Article 2.4 of the Agreement on Technical Barriers to Trade (TBT Agreement): “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.” As one can notice through this provision, the legislator has expressly demanded from the states members to the multilateral trade system to use international standards even when the final text related to these standards is not yet adopted by the international community. As such, in a way, Article 2.4 highlights the importance of these international standards and one could even say the supremacy of these norms over domestic standards as these international standards also reflect the great level of sophistication of the multilateral trade system due to the constant evolution and interpretation of international trade rules. Yet, still in this case, the legislator provided the member states with much needed flexibility in order to avoid the application of these international standards when such application will not lead to the realization of the objectives that a state has set to reach. The provision even cited some of the factors that would render such international standards ineffective which included for instance fundamental climatic or geographical factors. Along with Article 2.4 of the TBT Agreement, Article 2.5 states the following: “A Member preparing, adopting or applying a technical regulation which may have a significant effect on trade of other Members shall, upon the request of another Member, explain the justification for that technical regulation in terms of the provisions of paragraphs 2 to 4. Whenever a technical regulation is prepared, adopted or applied for one of the legitimate objectives explicitly mentioned in paragraph 2, and is in accordance with relevant international standards, it shall be rebuttably presumed not to create an unnecessary obstacle to international trade.” Through this Article, member states are protected against arbitrary technical regulations that could be imposed by another state as the latter have the obligation to provide justification for the member state affected by such regulations influencing trade upon the request of the affected member state. The only exception for this rule is when a measure is adopted for realizing one of the legitimate objectives under Article 2.2 of the Agreement. A such, these reasons must be related to “national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment.” In the Chapter “Product Safety in the Framework of the WTO Agreement on Technical Barriers to Trade”, the authors Lukasz Gruszczynski, Tivadar Otvoes and Paolo Davide Farah have examined these matters. The authors have also tried to discuss the interpretation of these Articles through the different case laws that were filed before the World Trade Organization (WTO).
PDFPDFStay tuned for news on sustainable development, environment and climate change, international trade and human rights, Chinese issues and much more!
