(A) legal analysis of standard in the WTO agreement on technical barriers to trade

다국어 초록 (Multilingual 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 Agreement’s 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.

목차 (Table of Contents)

• Chapter 1. Introduction 1
• 1.1 Nature of the Issue 1
• 1.2 Scope of the Study 4
• 1.3 Definitions 6
• 1.4 Overview of Principal Conclusions 7
• Chapter 2. Unstandardized Concept of Standard 13
• 2.1 Standards in Various Contexts 13
• 2.2 Concepts of “Standard” in the WTO Agreements 18
• 2.3 Chapter Summary and Partial Conclusion 34
• Chapter 3. ‘Standards’ Treatment in the WTO TBT Agreement 36
• 3.1 Product Standards in the TBT Regime 36
• 3.2 ‘Standards’ of the WTO TBT Agreement 39
• 3.3 ‘Standards’ Disciplines of the WTO TBT Agreement 53
• 3.4 Chapter Summary and Partial Conclusion 65
• Chapter 4. Conceptual Development of “Standard” in the GATT/WTO system 71
• 4.1 Chapter Overview 71
• 4.2 “Standard” after the Kennedy Round Negotiations 72
• 4.3 “Standard” during the Tokyo Round Negotiations 94
• 4.4 “Standards” in the Standards Code 148
• 4.5 “Standards” during the Uruguay Round Negotiations 158
• 4.6 Chapter Summary and Partial Conclusion 190
• Chapter 5. The Distinction between ‘Standard’ and ‘Technical Regulation’ 199
• 5.1 Chapter Overview 199
• 5.2 Determination of a ‘Standard’ 200
• 5.3 Determination of a ‘Technical Regulation’ 206
• 5.4 Determination of “Mandatory Compliance” in US-Tuna II 214
• 5.5 Divergent Approaches to Interpret the Concept of “Mandatory Compliance” 230
• 5.6 Chapter Summary and Partial Conclusion 237
• Chapter 6. Revisiting ‘Standard’ in the TBT Regime 239
• 6.1 Revisiting the Legal Characterization Review of ‘Standard’ 239
• 6.2 Revisiting the Concept of “Mandatory” Compliance 251
• 6.3 Revisiting ‘Standard’ in the TBT Regime 262
• Chapter 7. Conclusion 264
• BIBLIOGRAPHY 268
• ABSTRACT IN KOREAN 285
• ACKNOWLEGEMENTS 290