I have a short article in the latest issue of the JIEL (subscribers only), in which I talk about the negotiations on TBT issues in the GATT era, and the implications for the scope of international economic law. Here's a bit from the conclusion:
Whether or not it is acknowledged or stated clearly, efforts to define legal standards for technical barriers to trade are an important part of the process of setting the scope of the trade regime. The question is, how do we craft these rules so as to define the boundaries of international economic law in an appropriate way? In the TBT context, many terms and concepts have been offered up in this regard. Are we looking for ‘obstacles’ to trade? Is it ‘barriers’, or ‘undue barriers’? Should the obstacles or barriers only be of concern if they are ‘unjustifiable’? Or should they be ‘unnecessary’? Does the purpose of the measure guide the inquiry? Or should the focus be on the effect of the measure? If it is the purpose, how do we determine that purpose? Should we look at the ‘legitimacy’ of the regulation? Should we look at whether the measure is ‘proportional’ to its objectives? Can we measure the ‘contribution’ the measure makes to these objectives? These concepts hover around in the negotiations and in the jurisprudence, but the precise role each does play and should play remains unclear, even after years of negotiating discussion and litigation experience. Which terms, and which interpretations, set the appropriate balance? What are the relative merits of each?
