Toward Open Recognition?

This article provides a legal analysis of the significance of standards, technical regulations, and sanitary or phytosanitary (SPS) provisions (collectively, 'TBTSPS' provisions) in regional trade agreements ('RTAs') in relation to the multilateral trading system. It first examines the ways in which RTA regulation of national TBTSPS measures may contribute to or detract from liberalization goals. It then describes how GATT Article XXIV and the Understanding on the Interpretation of Article XXIV (the 'Understanding'), as presently understood, regulate RTA regulation of national TBTSPS measures. Based on its analysis, this article makes the following recommendations: (1) Interpret Article XXIV:5 of GATT to provide an exception from obligations contained in the TBT Agreement and SPS Agreement, principally the MFN obligation, in accordance with the Turkey -- Textiles necessity test. This avoids imposing an inappropriate barrier to formation of RTAs. (2) Interpret 'other restrictive regulations of commerce' and 'other regulations of commerce' in Articles XXIV:5 and 8 to include only discriminatory and unnecessary TBT or SPS measures. This avoids requirements to eliminate or harmonize non-protectionist TBT or SPS measures. It avoids imposing an inappropriate barrier to formation of RTAs. (3) Interpret Article I:1 of GATT and the MFN provisions of the TBT Agreement and SPS Agreement to clarify authorization for only 'open' mutual recognition agreements, similar to the permission contained in Article VII of GATS. This ensures that recognition arrangements will not provide an avenue of discrimination or other defection from WTO multilateral free trade principles. Today, it is not clear that any mutual recognition agreements are authorized. Copyright Oxford University Press 2003, Oxford University Press.