The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement and the General Agreement on Tariffs and Trade

Introduction

Free trade and regulatory autonomy are often at odds with one another. National measures of an importing state may impose costs on international trade, for example, by regulating goods in ways that vary from home market regulation. National measures may restrict market access of imported goods but may or may not be intended to act as protectionist measures favouring domestic industry to the detriment of imports. At the same time, domestic regulation may protect important values. The distinction between a protectionist measure – condemned for imposing discriminatory or unjustifiable costs – and a non-protectionist measure – restricting trade incidentally (and thus imposing some costs) – is difficult to make.

The search for the right balance between disciplining protectionist measures and allowing Member states to maintain regulatory autonomy has characterized the evolution of the General Agreement on Tariffs and Trade (GATT) rules – namely Articles I, III, XI and XX of GATT; the Technical Barriers to Trade Agreement (TBT) and the Sanitary and Phytosanitary Measures Agreement (SPS). This chapter compares the disciplines on domestic regulation contained in each of these agreements, and provides an analysis of the conditions for application of each agreement and the possibility for overlap and conflict among these agreements.

Although the Marrakesh Agreement Establishing the World Trade Organization (WTO) and its annexes (WTO Agreement) is today a single treaty, its provisions were originally negotiated through fifteen different working groups, which may not have been sufficiently co-ordinated with one another.