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You cannot restrict trade in a good based on how it is produced.

What's wrong with the WTO?
You must lower national standards if they are higher than international standards.

The WTO sets ceilings rather than floors for national consumer, environmental, and worker protections. When international standards are lower than your own, you must harmonize your standard downwards.
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Opinions

"The adoption of Codex standards as scientifically justified norms for the purpose of the SPS and TBT Agreements is of immense significance. The standards have become an integral part of the legal framework within which international trade is being facilitated through harmonization. Already, they have been used as the benchmark in international trade disputes, and it is expected that they will be used increasingly in this regard."

—Codex Alimentarius Commission

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"The overwhelming industry influence over Codex decision-making has led to the adoption by the Codex of standards that provide less health protection than U.S. food safety regulations. For instance, at its July 1999 meeting, the Codex approved pesticide residues that do no take into account their health impacts on children, as is required by U.S. law."

—Lori Wallach & Michelle Sforza, Public Citizen Global Trade Watch, U.S.

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"To make progress, the WTO needs support from the standardization world. It has neither the resources nor the skills, inside its unwieldy TBT Committee composed largely of non-specialists in standardization, to change things alone."

"That is where ISO should come in. If there is a global body which offers proven competence in both standardization and win-win progress for the developed and developing world alike, it is ISO. To capitalize on the opportunity, ISO needs only to accept the additional mission of the top facilitator of the use of standards in the WTO model, without changing any of its core activities."

—Raymond Schonfeld, consultant on Technical Barriers to Trade issues, on Web site of International Organization for Standardization

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"From an environmental perspective, the ISO isn't ideal because it's captured by industry. … The part that's most troublesome is when an ISO standard becomes a default standard under the WTO rules."

—Stephen Porter, trade lawyer, Center for International and Environmental Law, U.S.

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"There's at least one global institution shaping commerce that corporations control completely, with no pretense of public involvement. That is the International Standards Organization (ISO). … And once ISO standards become part of the WTO, what was a voluntary system receives the force of law, without public involvement."

—Abby Scher, Co-Editor, Dollars and Sense, U.S.
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Under WTO rules, member countries cannot surpass international standards in the cases where these exist. Such requirements tend to reduce national standards to the least common denominator. And compared with national or local laws, international treaties and bodies are harder for citizens to influence.

The Agreement on Technical Barriers To Trade (TBT), Article 2.4, requires that WTO members use relevant international standards as the basis for their technical regulations. In effect, it imposes any existing international standards as a ceiling on national standards for consumer protection, public health and the environment.

The Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) sets maximum rather than minimum standards for national regulations and requires that domestic standards be based on international ones.

Article 5.1 of SPS also requires that members' sanitary or phytosanitary measures assess risks to human, animal or plant life or health, taking into account those "risk assessment techniques developed by the relevant international organizations." Such risk assessment methods require the determination of a "tolerable" level of risk, thus undercutting the "zero tolerance" standards that some countries choose to adopt when confronting serious risks to public health and safety.

The two main international bodies on which the WTO relies to set standards in these areas are the Codex Alimentarius Commission and the International Organization for Standardization (ISO). Both bodies are heavily influenced by the industries to which their standards apply and operate mainly behind closed doors.

On the controversial issue of artificial hormone residues in beef, for example, after four years of intense lobbying by the United States government and agribusiness the Codex Commission adopted a lenient standard in a very close vote. The U.S. was then able to use this standard to win a WTO dispute-settlement victory over higher European Union standards banning hormone-treated beef. In other areas, however, many of the food-safety standards imposed by the Codex are lower than those established by U.S. law and could be used to undercut U.S. standards.

The WTO constrains its members from adopting standards stronger—from the point of view of the environment or public health and safety—than those set by the Codex Alimentarius or ISO. This imposition of ceilings, rather than floors, pressures countries toward a downward harmonization of national standards in areas covered by international standards.

On the other hand, when international standards are high, as in the case of some environmental treaties or public-health codes, the WTO undercuts them by favoring trade over other social values. For example, when Japan tried to implement reductions in greenhouse-gas emissions required by the 1997 Kyoto Protocol on global warming, the U.S. and E.U.—on behalf of their auto industries—used the WTO to attack Japan's efforts as illegal restrictions on trade.

The most notable exception to the weakening of national standards by the WTO is the Agreement on Trade-Related Intellectual Property Rights (TRIPS). This treaty forces WTO members to accept higher standards (from a business point of view) for intellectual property protection. The raised standards, though, do not benefit the great majority of citizens who do not hold patents or copyrights.

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Legal Basis

These treaties are enforced by the World Trade Organization.

Agreement on Technical Barriers To Trade (TBT)

See TBT page.

"TECHNICAL REGULATIONS AND STANDARDS
Article 2
Preparation, Adoption and Application of Technical Regulations by Central Government Bodies
With respect to their central government bodies:
[…]
Article 2.4
"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 fulfillment of the legitimate objectives pursued, for instance because of fundamental climatic or geographical factors or fundamental technological problems."
Article 2.6
"With a view to harmonizing technical regulations on as wide a basis as possible, Members shall play a full part, within the limits of their resources, in the preparation by appropriate international standardizing bodies of international standards for products for which they have either adopted, or expect to adopt, technical regulations."

TBT limits the right of countries to adopt standards more stringent than those set by the International Organization for Standardization (ISO), a private-sector body.

Agreement on the Application of Sanitary and Phytosanitary Measures (SPS)

See SPS page.

Article 3
"1. To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary and phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement."
Article 5
Assessment of Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection
"1. Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations."

SPS effectively establishes international standards as ceilings, including those set by the Codex Alimentarius Commission and the International Organization for Standardization (ISO), both industry-dominated bodies.

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Cases & Controversies

  • U.S. & Canada v. EU on hormone-treated beef
    See Hormone-Treated Beef Case page
  • U.S. v. Japan on pesticide residues
    See Pesticide Residues Case page
  • Canada v. France on asbestos
    See Asbestos Case page
    Canada cited the ISO standard for regulating asbestos in arguing that France should not have banned asbestos when it could have restricted its use.
  • U.S. v. EU on electronics industry pollution
    See Electronics-Industry Pollution Controversy page
    The American Electronics Association claimed an EU proposal was WTO-illegal in part because its restrictions on trade in certain heavy metals used to manufacture electronics products are not based on international standards.
  • U.S. v. Guatemala on baby-food trademark
    See Baby-Food Trademark Controversy page
    U.S. threats of WTO action on behalf of the intellectual property rights of Gerber, the baby-food producer, forced Guatemala to weaken a successful public-health code protecting mothers and infants. The Guatemalan code was based on the based on the Code of Marketing of Breast Milk Substitutes drafted by the World Health Organization and UNICEF.
  • U.S. v. Europe, Japan and Australia on labeling of genetically modified foods
    See Genetically Modified Foods Controversy page
  • U.S. v. Denmark on ban on lead compounds
    See Lead Compounds Controversy page
    U.S. threat to challenge Danish ban on lead compounds.
  • U.S. & EU v. Japan on clean-air laws implementing Kyoto Protocol
    See Greenhouse Gases Controversy page
    When Japan adopted auto fuel-efficiency proposals to curtail greenhouse gases in accordance with the 1997 Kyoto Protocol, the U.S. and E.U. threatened WTO action under the Agreement on Technical Barriers To Trade on behalf of Ford and Daimler-Chrysler. In this case, even though the Japanese law complied with the Kyoto Protocol and did not exceed its standards, the regulations were challenged as discriminatory and unnecessarily trade-restrictive.
  • Chemical companies v. U.S. Environmental Protection Agency restrictions on a fungicide
    Folpet is a fungicide registered as a probable human carcinogen. In the early 90s, the U.S. Environmental Protection Agency eliminated tolerances for Folpet residues on most foods because the manufacturer did not provide the data necessary to set standards. U.S. and European chemical and agribusiness companies attacked the restrictions. Most of the challenges said that the U.S. standard was WTO-illegal because the Codex Alimentarius allows Folpet residues on food, and under the WTO the U.S. could not have a higher food safety standard than the Codex without scientific proof to support it. Eventually, the manufacturer of Folpet provided data on several food items and the EPA set tolerances for residues on them.
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Resources

Non-governmental

Governmental

Official WTO Web site

  • Agreement on the Application of Sanitary and Phytosanitary Measures (SPS)
    See SPS page
  • Agreement on Technical Barriers To Trade (TBT)
    See TBT page

By Peter Costantini ~ Seattle ~ November 2001
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