A New Device for Creating International Legal Normativity: The WTO Technical Barriers to Trade Agreement and ‘International Standards’
Files
Description
This chapter examines an extraordinary mechanism for the creation of new international legal norms that is contained in the WTO Technical Barriers to Trade (TBT) Agreement. As interpreted by the Appellate Body—the WTO’s highest judicial instance—the TBT Agreement applies to a very wide range of domestic regulations, arguably excluding only the measures that deal with certain aspects of food and agricultural health, and the safety regulations that are defined as falling within the exclusive province of the WTO Agreement on Sanitary and Phytosanitary Measures (SPS). One of the key disciplines of the TBT Agreement is the obligation for WTO members to use ‘international standards’ as a ‘basis’ for their technical regulations, unless the international standards are ineffective or inappropriate (Article 2(4)). However, international standards themselves are mainly of a voluntary nature and, in most cases, do not result in binding treaty commitments; quite a few of these standards are the creation of non-governmental bodies, or private/public partnerships in which industry is the driving force. By virtue of Article 2(4) of the TBT Agreement, as interpreted in WTO dispute settlement, a very broad range of normative material, including privately generated norms in some cases, is converted or transformed into international legal obligation. The incorporation of treaty norms from other regimes into the WTO—such as the main WIPO conventions on intellectual property rights—has been widely commented on; such incorporation inevitably changes the nature and implications of the obligations in question, by virtue of attaching them to a trade-driven system of dispute settlement and enforcement. But the TBT Agreement is different; it does not incorporate or transform existing international law, but instead turns a mass of normative material that never before had the status of international law into international legal obligation. While most of the chapter sketches how this automatic law-making mechanism functions in the context of the TBT Agreement as a whole, the conclusion considers the implications for ‘progressive’ regulatory democracy.
Source Publication
Constitutionalism, Multilevel Trade Governance and Social Regulation
Source Editors/Authors
Christian Joerges, Ernst-Ulrich Petersmann
Publication Date
2006
Edition
1
Recommended Citation
Howse, Robert L., "A New Device for Creating International Legal Normativity: The WTO Technical Barriers to Trade Agreement and ‘International Standards’" (2006). Faculty Chapters. 868.
https://gretchen.law.nyu.edu/fac-chapt/868
