Non-Governmental Bodies in the TBT Agreement

Abstract

The TBT Agreement essentially prohibits Members from using technical barriers to ‘create unnecessary obstacles to international trade’ and to discriminate between products of different national origins, while acknowledging the rights of the Members to determine adequate levels of protection of life, health, and environment. As such, the TBT Agreement seeks to balance a Member’s right to prepare and assess technical regulations, standards and conformity assessment procedures (hereinafter, technical barriers) with market access. The TBT Agreement also tries to ensure the harmonised use of technical barriers by requiring Members to adhere to relevant international standards. A more slippery issue under the TBT Agreement, however, is the disciplining of noncompliance with the provisions of the TBT Agreement by non-central government bodies, especially non-governmental bodies (NGBs). Only countries or custom unions can be Members of the WTO. The WTO Agreements, including the TBT Agreement, can only define the obligations of Members and cannot directly enforce obligations of non-state entities such as NGBs(See generally, Mavroidis and Zdouc 1998). Nevertheless the TBT Agreement makes unprecedented reference to NGBs and rules relating to their standardisation activities. Perhaps, no other WTO Agreement has such detailed and extensive provisions dealing with NGBs as has the TBT Agreement. Therefore, the legal status and the role of NGBs in the TBT Agreement have become central to understanding the nature of and the obligations provided in the TBT Agreement.