Toward open recognition? Standardization and regional integration under Article XXIV of GATT

Journal of International Economic Law

Volumn 6, Issue 2, 2003, Pages 459-492

  Trachtman, Joel P ^a  

^a NONE

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[No Author keywords available]

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EID: 0038772286     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/6.2.459     Document Type: Review

References (111)

1. Understanding on the Interpretation of Article XXIV of the General Agreement on Tariffs and Trade 1994.
2. Robert B. Zoellick, 'Falling Behind on Free Trade', NY Times (14 April 2002), sec 4, p 13, col 1.
3. See Charles P. Kindleberger, 'Standards as Public, Collective and Private Goods', 36 Kyklos 377 (1983).
4. See Joel P. Trachtman, 'Trade and... Problems, Cost-Benefit Analysis and Subsidiarity', 9 Eur J Int'l L 32 (1998). However, in Mexico, regulators 'are required to check whether relevant international standards provide a least trade restrictive solution for achieving regulatory objectives'. OECD, Working Party of the Trade Committee, Trade and Regulatory Reform: Insights from the OECD Country Reviews and Other Analyses, para 36, 3 November 2000.
5. For a popular treatment of this issue, see Nicholas Colchester and David Buchan, Europower: The Essential Guide to Europe's Economic Transformation in 1992 (Times Books, 1990). The Commission realized the danger of this perception, and in 1988 explained that 'any product, which is introduced on the Community territory, as long as it satisfies the legislation of the importing member country, and is admitted on its markets, will be entitled, as a matter of principle, to the benefits of free circulation in the Community.' Europe 1992: Europe World Partner, Communique of the European Commission, 19 October 1988, at 3.
6. See Jagdish Bhagwati, 'Regionalism and Multilateralism: An Overview', in Jaime de Melo and Arvind Panagariya (eds), New Dimensions in Regional Integration (Cambridge University Press, 1993).
7. In order to be 'stricter', the substantive rules themselves need not be more rigorous; the intensity and bindingness of enforcement activity could render an RTA discipline 'stricter', or, for that matter, less strict.
8. Jeffrey A. Frankel, Regional Trading Blocs in the World Economic System 216 (Institute for International Economics, 1997).
9. See Bhagwati, above, n 6, at 25.
10. For a more general statement of this perspective, see WTO Secretariat, Regionalism and the World Trading System (World Trade Organization, 1995).
11. For an elaboration, see Sungjoon Cho, 'Breaking the Barrier between Regionalism and Multilateralism: a New Perspective on Trade Regionalism', 42 Harv Int'l LJ 419 (2001).
12. See Bhagwati, above, n 6, at 22.
13. See Walter Mattli, 'International Governance for Voluntary Standards: A Game-Theoretic Perspective', in George A. Bermann, Matthias Herdegan, and Peter L. Lindseth (eds), Transatlantic Regulatory Cooperation: Legal Problems and Political Prospects 337 (Oxford University Press, 2001).
14. For an example, see the Consultation Document Prepared by the European Commission's Directorate General for Enterprise on the Review of the New Approach, 13 December 2001, available at http://europa.eu.int/comm/enterprise/consultations/new_approach_rev/documents/ consultation_doc.pdf, at 6 ('A more consistent implementation of the New Approach within the European Community will help the Community to encourage international alignment with its regulatory framework... strengthening the Community's negotiating position with third parties').
15. See Arvind Panagariya, 'Preferential Trade Liberalization: The Traditional Theory and New Developments', 36 J Econ Lit 287 (2000).
16. Ibid. Id.
17. See Note by the Secretariat, A Brief Review of the Literature on the Trade Effects of Article XXIV Type Regional Agreements, MTN.GNG/NG7/W/54, 12 October 1989.
18. Paolo Cecchini et al., The European Challenge 1992: The Benefits of a Single Market (Gower Publishing, 1988) (summarizing results of research project on the 'costs of non-Europe').
19. See Organization for Economic Cooperation and Development, Proceedings of the Conference on Consumer Product Safety Standards and Conformity Assessment: Their Effect on International Trade, Paris: OECD (1996).
20. Alan O. Sykes, Product Standards for Internationally Integrated Goods Markets (Brookings Institution, 1995).
21. Bhagwati, above, n 6, at 16.
22. Ibid. Id.
23. We argue below that Article XXIV does not provide an exception that would extend to RTA TBTSPS measures that discriminate against outside states. Of course, the purpose of Article XXIV with respect to tariffs is to permit discrimination against outside states.
24. However, one feature of TBTSPS disciplines is to attempt, through disciplines on the way that TBTSPS measures are promulgated, to reduce the possibility for differential effects due to disguised discrimination.
25. Kyle Bagwell, Petros C. Mavroidis, and Robert W. Staiger, 'It's a Question of Market Access', 96 Am J Int'l L 56 (2002).
26. See the discussion below of the possibility that these arrangements violate MFN obligations.
27. See Gabrielle Marceau and Cornelis Reiman, 'When and How Is a Regional Trade Agreement Compatible with the WTO?', 3 Leg Issues Econ Integration 297 (2001).
28. This depends on the answer to several interpretative questions, including what is meant by 'similar conditions'.
29. [Original Footnote] Panel Report [Korea - Dairy Safeguards] para 7.38.
30. [Original Footnote] We have emphasized this in Appellate Body Report, Argentina - Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, circulated 14 December 1999, para 81. See also Appellate Body Report, United States - Gasoline, p 23; Appellate Body Report, Japan - Alcoholic Beverages, p 12; and Appellate Body Report, India - Patents, para 45.
31. [Original Footnote] We have emphasized this in Appellate Body Report, Argentina - Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, circulated 14 December 1999, para 81. See also Appellate Body Report, United States - Gasoline, p 23; Appellate Body Report, Japan - Alcoholic Beverages, p 12; and Appellate Body Report, India - Patents, para 45.
32. [Original Footnote] We have emphasized this in Appellate Body Report, Argentina - Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, circulated 14 December 1999, para 81. See also Appellate Body Report, United States - Gasoline, p 23; Appellate Body Report, Japan - Alcoholic Beverages, p 12; and Appellate Body Report, India - Patents, para 45.
33. [Original Footnote] We have emphasized this in Appellate Body Report, Argentina - Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, circulated 14 December 1999, para 81. See also Appellate Body Report, United States - Gasoline, p 23; Appellate Body Report, Japan - Alcoholic Beverages, p 12; and Appellate Body Report, India - Patents, para 45.
34. [Original Footnote] The duty to interpret a treaty as a whole has been clarified by the Permanent Court of International Justice in Competence of the I.L.O. to Regulate Agricultural Labour (1922), PCIJ, Series B, Nos 2 and 3, p 23. This approach has been followed by the International Court of Justice in Ambatielos Case (1953) ICJ Reports, p 10; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ Reports, p 15; and Case Concerning Rights of United States Nationals in Morocco (1952) ICJ Reports, pp 196-99. See also I. Brownlie, Principles of Public International Law, 5th ed (Clarendon Press, 1998), p 634; G. Fitzmaurice, 'The Law and Procedure of the International Court of Justice 1951-1954: Treaty Interpretation and Other Treaty Points', 33 British Yearbook of International Law (1957), 211 at 220; A. McNair, The Law of Treaties (Clarendon Press, 1961) 381-82; I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, 1984), 127-29; M. O. Hudson, La Cour Permanente de Justice Internationale (Editions A Pedone, 1936), 654-59; and L. A. Podesta Costa and J. M. Ruda, Derecho Internacional Público, Vol 2 (Tipográfica, 1985), 105.
35. [Original Footnote] The duty to interpret a treaty as a whole has been clarified by the Permanent Court of International Justice in Competence of the I.L.O. to Regulate Agricultural Labour (1922), PCIJ, Series B, Nos 2 and 3, p 23. This approach has been followed by the International Court of Justice in Ambatielos Case (1953) ICJ Reports, p 10; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ Reports, p 15; and Case Concerning Rights of United States Nationals in Morocco (1952) ICJ Reports, pp 196-99. See also I. Brownlie, Principles of Public International Law, 5th ed (Clarendon Press, 1998), p 634; G. Fitzmaurice, 'The Law and Procedure of the International Court of Justice 1951-1954: Treaty Interpretation and Other Treaty Points', 33 British Yearbook of International Law (1957), 211 at 220; A. McNair, The Law of Treaties (Clarendon Press, 1961) 381-82; I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, 1984), 127-29; M. O. Hudson, La Cour Permanente de Justice Internationale (Editions A Pedone, 1936), 654-59; and L. A. Podesta Costa and J. M. Ruda, Derecho Internacional Público, Vol 2 (Tipográfica, 1985), 105.
36. [Original Footnote] The duty to interpret a treaty as a whole has been clarified by the Permanent Court of International Justice in Competence of the I.L.O. to Regulate Agricultural Labour (1922), PCIJ, Series B, Nos 2 and 3, p 23. This approach has been followed by the International Court of Justice in Ambatielos Case (1953) ICJ Reports, p 10; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ Reports, p 15; and Case Concerning Rights of United States Nationals in Morocco (1952) ICJ Reports, pp 196-99. See also I. Brownlie, Principles of Public International Law, 5th ed (Clarendon Press, 1998), p 634; G. Fitzmaurice, 'The Law and Procedure of the International Court of Justice 1951-1954: Treaty Interpretation and Other Treaty Points', 33 British Yearbook of International Law (1957), 211 at 220; A. McNair, The Law of Treaties (Clarendon Press, 1961) 381-82; I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, 1984), 127-29; M. O. Hudson, La Cour Permanente de Justice Internationale (Editions A Pedone, 1936), 654-59; and L. A. Podesta Costa and J. M. Ruda, Derecho Internacional Público, Vol 2 (Tipográfica, 1985), 105.
37. [Original Footnote] The duty to interpret a treaty as a whole has been clarified by the Permanent Court of International Justice in Competence of the I.L.O. to Regulate Agricultural Labour (1922), PCIJ, Series B, Nos 2 and 3, p 23. This approach has been followed by the International Court of Justice in Ambatielos Case (1953) ICJ Reports, p 10; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ Reports, p 15; and Case Concerning Rights of United States Nationals in Morocco (1952) ICJ Reports, pp 196-99. See also I. Brownlie, Principles of Public International Law, 5th ed (Clarendon Press, 1998), p 634; G. Fitzmaurice, 'The Law and Procedure of the International Court of Justice 1951-1954: Treaty Interpretation and Other Treaty Points', 33 British Yearbook of International Law (1957), 211 at 220; A. McNair, The Law of Treaties (Clarendon Press, 1961) 381-82; I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, 1984), 127-29; M. O. Hudson, La Cour Permanente de Justice Internationale (Editions A Pedone, 1936), 654-59; and L. A. Podesta Costa and J. M. Ruda, Derecho Internacional Público, Vol 2 (Tipográfica, 1985), 105.
38. [Original Footnote] The duty to interpret a treaty as a whole has been clarified by the Permanent Court of International Justice in Competence of the I.L.O. to Regulate Agricultural Labour (1922), PCIJ, Series B, Nos 2 and 3, p 23. This approach has been followed by the International Court of Justice in Ambatielos Case (1953) ICJ Reports, p 10; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ Reports, p 15; and Case Concerning Rights of United States Nationals in Morocco (1952) ICJ Reports, pp 196-99. See also I. Brownlie, Principles of Public International Law, 5th ed (Clarendon Press, 1998), p 634; G. Fitzmaurice, 'The Law and Procedure of the International Court of Justice 1951-1954: Treaty Interpretation and Other Treaty Points', 33 British Yearbook of International Law (1957), 211 at 220; A. McNair, The Law of Treaties (Clarendon Press, 1961) 381-82; I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, 1984), 127-29; M. O. Hudson, La Cour Permanente de Justice Internationale (Editions A Pedone, 1936), 654-59; and L. A. Podesta Costa and J. M. Ruda, Derecho Internacional Público, Vol 2 (Tipográfica, 1985), 105.
39. [Original Footnote] The duty to interpret a treaty as a whole has been clarified by the Permanent Court of International Justice in Competence of the I.L.O. to Regulate Agricultural Labour (1922), PCIJ, Series B, Nos 2 and 3, p 23. This approach has been followed by the International Court of Justice in Ambatielos Case (1953) ICJ Reports, p 10; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ Reports, p 15; and Case Concerning Rights of United States Nationals in Morocco (1952) ICJ Reports, pp 196-99. See also I. Brownlie, Principles of Public International Law, 5th ed (Clarendon Press, 1998), p 634; G. Fitzmaurice, 'The Law and Procedure of the International Court of Justice 1951-1954: Treaty Interpretation and Other Treaty Points', 33 British Yearbook of International Law (1957), 211 at 220; A. McNair, The Law of Treaties (Clarendon Press, 1961) 381-82; I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, 1984), 127-29; M. O. Hudson, La Cour Permanente de Justice Internationale (Editions A Pedone, 1936), 654-59; and L. A. Podesta Costa and J. M. Ruda, Derecho Internacional Público, Vol 2 (Tipográfica, 1985), 105.
40. [Original Footnote] The duty to interpret a treaty as a whole has been clarified by the Permanent Court of International Justice in Competence of the I.L.O. to Regulate Agricultural Labour (1922), PCIJ, Series B, Nos 2 and 3, p 23. This approach has been followed by the International Court of Justice in Ambatielos Case (1953) ICJ Reports, p 10; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ Reports, p 15; and Case Concerning Rights of United States Nationals in Morocco (1952) ICJ Reports, pp 196-99. See also I. Brownlie, Principles of Public International Law, 5th ed (Clarendon Press, 1998), p 634; G. Fitzmaurice, 'The Law and Procedure of the International Court of Justice 1951-1954: Treaty Interpretation and Other Treaty Points', 33 British Yearbook of International Law (1957), 211 at 220; A. McNair, The Law of Treaties (Clarendon Press, 1961) 381-82; I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, 1984), 127-29; M. O. Hudson, La Cour Permanente de Justice Internationale (Editions A Pedone, 1936), 654-59; and L. A. Podesta Costa and J. M. Ruda, Derecho Internacional Público, Vol 2 (Tipográfica, 1985), 105.
41. [Original Footnote] The duty to interpret a treaty as a whole has been clarified by the Permanent Court of International Justice in Competence of the I.L.O. to Regulate Agricultural Labour (1922), PCIJ, Series B, Nos 2 and 3, p 23. This approach has been followed by the International Court of Justice in Ambatielos Case (1953) ICJ Reports, p 10; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ Reports, p 15; and Case Concerning Rights of United States Nationals in Morocco (1952) ICJ Reports, pp 196-99. See also I. Brownlie, Principles of Public International Law, 5th ed (Clarendon Press, 1998), p 634; G. Fitzmaurice, 'The Law and Procedure of the International Court of Justice 1951-1954: Treaty Interpretation and Other Treaty Points', 33 British Yearbook of International Law (1957), 211 at 220; A. McNair, The Law of Treaties (Clarendon Press, 1961) 381-82; I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, 1984), 127-29; M. O. Hudson, La Cour Permanente de Justice Internationale (Editions A Pedone, 1936), 654-59; and L. A. Podesta Costa and J. M. Ruda, Derecho Internacional Público, Vol 2 (Tipográfica, 1985), 105.
42. [Original Footnote] The duty to interpret a treaty as a whole has been clarified by the Permanent Court of International Justice in Competence of the I.L.O. to Regulate Agricultural Labour (1922), PCIJ, Series B, Nos 2 and 3, p 23. This approach has been followed by the International Court of Justice in Ambatielos Case (1953) ICJ Reports, p 10; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ Reports, p 15; and Case Concerning Rights of United States Nationals in Morocco (1952) ICJ Reports, pp 196-99. See also I. Brownlie, Principles of Public International Law, 5th ed (Clarendon Press, 1998), p 634; G. Fitzmaurice, 'The Law and Procedure of the International Court of Justice 1951-1954: Treaty Interpretation and Other Treaty Points', 33 British Yearbook of International Law (1957), 211 at 220; A. McNair, The Law of Treaties (Clarendon Press, 1961) 381-82; I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, 1984), 127-29; M. O. Hudson, La Cour Permanente de Justice Internationale (Editions A Pedone, 1936), 654-59; and L. A. Podesta Costa and J. M. Ruda, Derecho Internacional Público, Vol 2 (Tipográfica, 1985), 105.
43. [Original Footnote] The duty to interpret a treaty as a whole has been clarified by the Permanent Court of International Justice in Competence of the I.L.O. to Regulate Agricultural Labour (1922), PCIJ, Series B, Nos 2 and 3, p 23. This approach has been followed by the International Court of Justice in Ambatielos Case (1953) ICJ Reports, p 10; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ Reports, p 15; and Case Concerning Rights of United States Nationals in Morocco (1952) ICJ Reports, pp 196-99. See also I. Brownlie, Principles of Public International Law, 5th ed (Clarendon Press, 1998), p 634; G. Fitzmaurice, 'The Law and Procedure of the International Court of Justice 1951-1954: Treaty Interpretation and Other Treaty Points', 33 British Yearbook of International Law (1957), 211 at 220; A. McNair, The Law of Treaties (Clarendon Press, 1961) 381-82; I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, 1984), 127-29; M. O. Hudson, La Cour Permanente de Justice Internationale (Editions A Pedone, 1936), 654-59; and L. A. Podesta Costa and J. M. Ruda, Derecho Internacional Público, Vol 2 (Tipográfica, 1985), 105.
44. Appellate Body Report, Korea - Dairy Safeguards, paras 74, 81.
45. Appellate Body Report on Brazil - Measures Affecting Desiccated Coconut (WT/DS22/11/Rev.2), adopted 20 March 1997, p 17.
46. On this issue see Gabrielle Marceau, 'Conflicts of Norms and Conflicts of Jurisdictions') 35 J World Trade 1090 (2001).
47. Panel Report in Turkey - Restrictions on Imports of Textiles and Clothing Products, WT/DS33/R, adopted as amended by the Appellate Body Report, 19 November 1999, paras 9.96 and 9.103 [hereinafter, Turkey - Textiles Panel Report].
48. See William J. Davey and Werner Zdouc, 'The Triangle of TRIPS, GATT and GATS', in T. Cottier and P. Mavroidis (eds), Intellectual Property: Trade, Competition and Sustainable Development (The University of Michigan Press, forthcoming 2003).
49. See Gabrielle Marceau and Joel P. Trachtman, 'GATT/SPS/TBT: Comparison and Conflict', 36 J World Trade 811 (2002), citing Appellate Body Report on Guatemala - Anti-Dumping Investigation regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, para 65. The same narrow definition of conflict was also used in Indonesia - Certain Measures Affecting the Automobile Industry, WT/DS54, 55, 59 and 64/R, adopted 23 July 1998, paras 14.29-14.36 and 14.97-14.99; Appellate Body Report on United States - Antidumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS 184/AB/R, adopted 23 August 2001, at para 55, 62; Panel Report in Indonesia - Certain Measures Affecting the Automotive Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, fn 649, adopted 23 July 1998.
50. See Gabrielle Marceau and Joel P. Trachtman, 'GATT/SPS/TBT: Comparison and Conflict', 36 J World Trade 811 (2002), citing Appellate Body Report on Guatemala - Anti-Dumping Investigation regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, para 65. The same narrow definition of conflict was also used in Indonesia - Certain Measures Affecting the Automobile Industry, WT/DS54, 55, 59 and 64/R, adopted 23 July 1998, paras 14.29-14.36 and 14.97-14.99; Appellate Body Report on United States - Antidumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS 184/AB/R, adopted 23 August 2001, at para 55, 62; Panel Report in Indonesia - Certain Measures Affecting the Automotive Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, fn 649, adopted 23 July 1998.
51. See Gabrielle Marceau and Joel P. Trachtman, 'GATT/SPS/TBT: Comparison and Conflict', 36 J World Trade 811 (2002), citing Appellate Body Report on Guatemala - Anti-Dumping Investigation regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, para 65. The same narrow definition of conflict was also used in Indonesia - Certain Measures Affecting the Automobile Industry, WT/DS54, 55, 59 and 64/R, adopted 23 July 1998, paras 14.29-14.36 and 14.97-14.99; Appellate Body Report on United States - Antidumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS 184/AB/R, adopted 23 August 2001, at para 55, 62; Panel Report in Indonesia - Certain Measures Affecting the Automotive Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, fn 649, adopted 23 July 1998.
52. See Gabrielle Marceau and Joel P. Trachtman, 'GATT/SPS/TBT: Comparison and Conflict', 36 J World Trade 811 (2002), citing Appellate Body Report on Guatemala - Anti-Dumping Investigation regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, para 65. The same narrow definition of conflict was also used in Indonesia - Certain Measures Affecting the Automobile Industry, WT/DS54, 55, 59 and 64/R, adopted 23 July 1998, paras 14.29-14.36 and 14.97-14.99; Appellate Body Report on United States - Antidumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS 184/AB/R, adopted 23 August 2001, at para 55, 62; Panel Report in Indonesia - Certain Measures Affecting the Automotive Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, fn 649, adopted 23 July 1998.
53. See Gabrielle Marceau and Joel P. Trachtman, 'GATT/SPS/TBT: Comparison and Conflict', 36 J World Trade 811 (2002), citing Appellate Body Report on Guatemala - Anti-Dumping Investigation regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, para 65. The same narrow definition of conflict was also used in Indonesia - Certain Measures Affecting the Automobile Industry, WT/DS54, 55, 59 and 64/R, adopted 23 July 1998, paras 14.29-14.36 and 14.97-14.99; Appellate Body Report on United States - Antidumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS 184/AB/R, adopted 23 August 2001, at para 55, 62; Panel Report in Indonesia - Certain Measures Affecting the Automotive Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, fn 649, adopted 23 July 1998.
54. See Gabrielle Marceau and Joel P. Trachtman, 'GATT/SPS/TBT: Comparison and Conflict', 36 J World Trade 811 (2002), citing Appellate Body Report on Guatemala - Anti-Dumping Investigation regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, para 65. The same narrow definition of conflict was also used in Indonesia - Certain Measures Affecting the Automobile Industry, WT/DS54, 55, 59 and 64/R, adopted 23 July 1998, paras 14.29-14.36 and 14.97-14.99; Appellate Body Report on United States - Antidumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS 184/AB/R, adopted 23 August 2001, at para 55, 62; Panel Report in Indonesia - Certain Measures Affecting the Automotive Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, fn 649, adopted 23 July 1998.
55. WT/DS34/AB/R, adopted 19 November 1999 [Turkey - Textiles Appellate Body Report].
56. Turkey - Textiles Panel Report, above, n 35, paras 9.188 and 9.189.
57. Turkey - Textiles Appellate Body Report, above, n 38, para 46.
58. Turkey - Textiles Appellate Body Report, above, n 38, para 49.
59. Turkey - Textiles Appellate Body Report, above, n 38, paras 55-57, citing Panel Report, para 9.120.
60. Turkey - Textiles Appellate Body Report, above, n 38, para 58.
61. The panel expressed that it is arguable that it did not have jurisdiction to consider such compliance, but the Appellate Body noted in this respect its opinion on India - Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, to the effect that a panel has jurisdiction to examine matters that are also committed to political evaluation. WT/DS90/AB/R, adopted 22 September 1999, paras 80-109.
62. Turkey's appellant's submission, para 56.
63. Turkey - Textiles Appellate Body Report, above, n 38, para 62-63.
64. Turkey - Textiles Panel Report, above, n 35, para 4.3, quoting a response to written questions by the European Communities as follows: 'The use of rules of origin benefiting only Turkish exports would have been an exception to the principle of free circulation within the customs union and would have required the maintenance of customs and border checks within the customs union designed to ensure that Turkey would not become a transit point of goods in circumvention of the Community's quota system arising from Turkey's adoption of the Community's rates of tariffs, etc.'
65. Panel Report, United States - Line Pipe Safeguards, WT/DS202/R, 29 October 2001, para 7.148 (citation omitted). This holding was determined by the Appellate Body to be moot and without legal effect, as the Article XXIV issues only became relevant if there was no failure of 'parallelism'. Appellate Body Report, United States - Line Pipe Safeguards, WT/DS202/AB/R, adopted 8 March 2002, para 199.
66. Turkey - Textiles Appellate Body Report, above, n 38, para 57.
67. See Marceau and Reiman, above, n 27.
68. Turkey - Textiles Appellate Body Report, above, n 38, para 57.
69. Turkey - Textiles Panel Report, above, n 35, para 9.120.
70. Of course, a somewhat separate, but equally important, question is whether internal mutual recognition agreements are required to constitute a customs union or free trade area.
71. See generally, William J. Davey and Joost Pauwelyn, 'MFN Unconditionality: A Legal Analysis of the Concept in View of Its Evolution in the GATT/WTO Jurisprudence with Particular Reference to the Issue of "Like Product" ', in Thomas Cottier, Petros C. Mavroidis and Patrick Blatter (eds), Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law 13 (University of Michigan Press, 2000).
72. The European Community has entered into a number of MRAs with third states. See, e.g., Agreement on Mutual Recognition Between the European Community and the United States of America, OJEC No L31, 4 February 1999. The European Community has also entered into similar agreements relating to conformity assessment. These deal largely with conformity assessment, as opposed to recognition of substantive technical regulations themselves.
73. See Kalypso Nicolaidis, 'Non-Discriminatory Mutual Recognition: An Oxymoron in the New WTO Lexicon', in Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law, above, n 54, at 267.
74. Appellate Body Report: Canada - Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, para 85. See also, Appellate Body Report, European Communities - Regime for the Importation, Sale and Distribution of Bananas, WT/DS/27/AB/R, adopted 25 September 1997, paras 205-06, citing United States - Non-Rubber Footwear, adopted 19 June 1992, 39 BISD 128, para 6.9.
75. Appellate Body Report: Canada - Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, para 85. See also, Appellate Body Report, European Communities - Regime for the Importation, Sale and Distribution of Bananas, WT/DS/27/AB/R, adopted 25 September 1997, paras 205-06, citing United States - Non-Rubber Footwear, adopted 19 June 1992, 39 BISD 128, para 6.9.
76. For an example of a circumstance in which the fact of government certification did not provide sufficient distinction, see Panel Report, European Economic Community - Imports of Beef from Canada, adopted 10 March 1981, 28 BISD 92. For an example of differential import licensing procedures violating Article I:1, see Panel Report, EC - Regime for the Importation, Sale and Distribution of Bananas, adopted 25 September 1997, WT/DS27/R, paras 7.188-7.193; 7.251-7.256; 7.235-7.241.
77. See Robert E. Hudec, '"Like Product": The Differences in Meaning in GATT Articles I and III', in Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law, above, n 54, at 101.
78. WTO Appellate Body Report: European Communities - Measures Affecting and Asbestos-Containing Products, WT/DS135/AB/R, para 100, adopted 5 April 2001.
79. Appellate Body Report, Korea - Various Measures on Beef, WT/DS161/AB/R and WT/DS169/AB/R, at para 134.
80. Interestingly, this possible approach would be roughly consistent with the structure of GATS Article VII.
81. See Davey and Pauwelyn, above n 54, at 23-24, evaluating mutual recognition agreements under the MFN principle: 'On the one hand, such agreements offer an effective means of facilitating trade. On the other hand, they also have an impact on the competitive strength of non-participating countries. This is why two WTO agreements (TBT and SPS) encourage Members to negotiate MRAs but at the same time require that they do so in a transparent and open way.' See also Petros C. Mavroidis, 'Transatlantic Regulatory Cooperation: Exclusive Club or "Open Regionalism"', in George A. Bermann, Matthias Herdegan, and Peter L. Lindseth (eds), Transatlantic Regulatory Cooperation: Legal Problems and Political Prospects, above, n 13, at 263, 266: 'any interpretation of the WTO agreements that the MFN principle precludes MRAs must be rejected, because it runs counter to the principle of "effective interpretation" of the treaties as laid down in the Vienna Convention on the Law of Treaties."
82. This language is drawn from Article XXIV:8(a)(i), relating to customs unions, and Article XXIV:8(b), relating to free trade areas. The language is the same.
83. For the drafting history of Article XXIV and the Understanding in connection with ORCs, see Background Note by the Secretariat, Systemic Issues Related to 'Other Regulations of Commerce', WT/REG/W/17/Rev1, 5 February 1998. For a useful review of the approach taken to these terms by working parties in the GATT years, see Background Note by the Secretariat, Systemic Issues Related to 'Other Regulations of Commerce', WT/REG/W/17/Add.l, 5 November 1997.
84. See Statement by the representative of Canada to the Committee on Regional Trade Arrangements, WT/REG/M/15, 13 January 1998, para 26.
85. There may be a rather metaphysical argument to the effect that these non-discriminatory SPS and TBT measures, applied at the border, are 'permitted' under Article XI because, under an interpretation of ad Article III, these measures are subject to Article III, and not subject to Article XI.
86. See Robert E. Hudec and James D. Southwick, 'Regionalism and WTO Rules: Problems in the Fine Art of Discriminating Fairly', in Miguel Rodriguez Mendoza, Patrick Low, and Barbara Kotschwar (eds), Trade Rules in the Making: Challenges in Regional and Multilateral Negotiations (Brookings Institution Press, 1999), 47, 64.
87. Within federations like the US, or within the EC, these measures are considered 'regulations of commerce', at least for purposes of authority for positive integration and judicial application of negative integration. However, these definitions have shifted over the history of these entities engaging in economic integration. Therefore, a teleological interpretation, in the WTO's current circumstances, might find that TBTSPS measures are not yet 'regulations of commerce' in the sense of this requirement.
88. Note by the Secretariat, Synopsis of 'Systemic' Issues Related to Regional Trade Agreements, WT/REG/W/37, 2 March 2000, para 45 and n 93. The latter part of this quote seems odd in the context of paragraph 8, which deals with internal restrictive regulations of commerce.
89. L/3465, adopted 2 December 1970, 18 BISD 133, para 7.
90. Id, para 8.
91. L/3665, adopted 29 May 1972, 19 BISD 90, para 15. In para 17, it was noted that The discussion brought to light the fact that the English and French versions of Article XXIV paragraph 8 (a) differed inasmuch as the English text referred only to "duties", whereas the French text referred to "droits de douane" (customs duties). The Working Party did not reach any conclusion on the point.'
92. Turkey - Textiles Appellate Body Report, above, n 38, para 21.
93. For a useful analysis, see Communication from Australia, WT/REG/W/25, 1 April 1998.
94. Secretariat Synopsis, above, n 70, para 46. See also para 62.
95. Turkey - Textiles Panel Report, above, n 35, para 9.120 (emphasis added).
96. If, alternatively, all TBTSPS measures are included as ORRCs then (assuming we all agree that elimination is absurd) this provision might require further integration. This further integration might include negative integration in the form of proportionality or other tests (again) to the extent not already included in WTO law), and/or requirements of mutual recognition or harmonization within the RTA.
97. Turkey - Textiles Appellate Body Report, above, n 38, para 50.
98. Turkey - Textiles Appellate Body Report, above, n 38, para 50, citing Panel Report, para 9.151.
99. I do not here try to deal with interim agreements, which are also referenced in this provision.
100. For an argument that import restrictions in the form of quotas or regulations can, at least conceptually, be translated into tariff levels, see Marceau and Reiman, above, n 27. While we have experience, under the Agriculture Agreement, in tariffication of protectionist quotas, it is far more difficult to imagine how a TBTSPS measure might be tariffed, due to its regulatory character.
101. Turkey - Textiles Appellate Body Report, above, n 38, para 55, quoting Turkey - Textiles Panel Report, para 9.121.
102. Turkey - Textiles Appellate Body Report, above, n 38, para 55, quoting Turkey - Textiles Panel Report, para 9.121.
103. Turkey - Textiles Appellate Body Report above, n 38, para 55, quoting Turkey - Textiles Panel Report, para 9.120.
104. Turkey - Textiles Appellate Body Report above, n 38, para 55, quoting Turkey - Textiles Panel Report, para 9.120.
105. Communication from Australia, above, n 75, para 10.
106. This lack of authority supports the argument made earlier in this article that Article XXIV was intended to cover 'necessary' exceptions to the TBT and SPS Agreements.
107. See Aaditya Mattoo, 'MFN and the GATS', in Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law, above, n 54, at 51.
108. Kindleberger, above, n 3, at 393.
109. Sykes, above, n 20.
110. Paul B. Stephan, 'Regulatory Cooperation and Competition: The Search for Virtue', in George A. Bermann, Matthias Herdegan, and Peter L. Lindseth (eds), Transatlantic Regulatory Cooperation: Legal Problems and Political Prospects, above, n 13, at 167.
111. See Pascal Lamy, 'Facing the Challenge of Globalisation: Regional Integration or Multilateral Rules', Buenos Aires, 1 March 2002, available at http://www.europa.eu.int/comm/trade/speeches_articles/spla99_en.htm.