Ask an Expert: World Trade Organization

Miss Stanton,
There have been concerns about standards that could create barriers for free trade.Some critics of the CPB even try to use it  as an argument against  the Protocol. In this connection I wish to ask you these questions:

1. What are the criteria for having standards that may not be seen as technical barriers for trade?

2. Is it the procedure/the process used to develop and adopt standards that matters or is it the content of the standards that? causes TBT related issues

The reply to your question varies slightly depending on whether the technical standards fall within the scope of the Agreement on the Application of Sanitary and Phytosanitary  Meassures (the SPS Agreement), or the Agreement on Technical Barriers to Trade (TBT Agreement).

If the objective of the technical regulation is to protect human health from food safety risks or from animal-carried diseases, or to protect plant or animal health from pests and diseases, or to protect the territory of a country from other damage caused by pests, the SPS Agreement applies.  The SPS Agreement requires that any measure imposed by a government for one of these objectives that may affect international trade must be based on a scientific evidence of a potential health risk.  Governments can either base their requirements on the health standards developed by the Codex Alimentarius Commission, the International Plant Protection Convention or the World Organization for Animal Health, or else on an appropriate risk assessment.  The requirements cannot be more than what is necessary to protect health, although it is possible to impose temporary trade restrictions in situations where there is insufficient scientific evidence to undertake a risk assessment.

For SPS requirements, therefore, although the process of determining the technical requirement is important, what is most important is the scientific justification for the requirement.  A measure which is scientifically justified would normally be considered to be an acceptable restriction of international trade.

The TBT agreement covers technical requirements and voluntary standards that fall outside of the scope of the SPS agreement.  These may include, inter alia, measures taken to protect human health from other than food safety and zoonotic risks (eg, pharmaceuticals, human-spread diseases, medical devices), measures to protect the environment that are not within the scope of SPS, or measures to ensure the quality of foodstuffs, etc.  Because TBT requirements may be imposed to meet different legitimate objectives (for example, informing consumers), they are not required to necessarily have a scientific justification.  Furthermore, although governments are strongly encouraged to base their national requirements on relevant internationally-adopted standards, the TBT agreement does not identify which international standards may be considered relevant.  Rather, the TBT agreement gives greater importance to the process and procedures used for the development of standards.

I realize that this may not fully respond to your query, but without having more specific information as to what particular standard or requirement is of concern, it is difficult to determine whether the SPS or TBT agreement would set the applicable rules.