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Meta-Regulation of Private Standards: The Role of Regional and International Organizations in Comparison with the WTO
Published online by Cambridge University Press: 14 February 2020
Abstract
The rise and proliferation of private standards have been recognized in international trade law, and various concerns have been raised. Existing literature analyses how the World Trade Organization (WTO), particularly the SPS (Sanitary and Phytosanitary) Committee and the TBT (Technical Barriers to Trade) Committee, have responded (or cannot respond) to the proliferation of private standards. This paper goes one step further by focusing specifically on the meta-regulatory function performed by regional and international organizations other than the WTO. This paper sheds light on three types of governance techniques that can serve as meta-regulatory activities in relation to private standards by regional and international organizations: (1) governance by delegation; (2) governance by information; and (3) governance by soft law. This paper analyses features of these governance techniques and considers the relation between these governance techniques and the WTO's approach.
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- Research Article
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- Copyright © Yoshiko Naiki 2020
Footnotes
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The original version of this article was published with incorrect author information. A notice detailing this has been published and the error rectified in the online PDF and HTML copies.
References
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9 While it is not easy to count the number of private standards, the ITC's Standards Map database currently lists up 197 private standards. See, ITC's website, infra note 101.
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44 This paper does not address the work of the three sister organizations, i.e., Codex, IPPC, and OIE, as their activities in relation to private standards are already recognized and shared in the SPS Committee. See, the SPS Committee, ‘Review of the Operation and Implementation of the SPS Agreement, Draft Background Document, Note by the Secretariat’, G/SPS/GEN/1612 (4 May 2018), para. 14.10.
45 Scholars have considered whether the SPS Agreement applies to private standards in light of the interpretation of Article 13 of the SPS Agreement. It provides that WTO Members shall take reasonable measures to ensure that ‘non-governmental entities’ within their territories comply with the Agreement. A specific question has been whether the term ‘non-governmental entities’ includes private standards-setting actors such as GLOBALG.A.P. The views of commentators have been negative. See, Prevost, Denise, ‘Private Sector Food-Safety Standards and the SPS Agreement: Challenges and Possibilities’, 33 South African Yearbook of International Law (2008) 1Google Scholar, at 19; Epps, Tracey, ‘Demanding Perfection: Private Food Standards and the SPS Agreement’, in Lewis, Meredith and Frankel, Susy (eds.), International Economic Law and National Autonomy (Cambridge University Press, 2009) 89Google Scholar; Scott, Joanne, The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary (Oxford University Press, 2007) 306Google Scholar.
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47 The SPS Committee, ‘Report of the Ad Hoc Working Group on SPS-Related Private Standards to the SPS Committee’, G/SPS/W/256 (3 March 2011), at 9.
48 The SPS Committee Decision, supra note 46, at 1.
49 While there was no official definition, several international organizations have used the term ‘non-governmental entity’, but not the term ‘private standards’. The SPS Committee, ‘Existing Definitions of Private Standards in Other International Organizations’, Note by the Secretariat, G/SPS/GEN/1334 (18 June 2014) and G/SPS/GEN/1334/Rev.1 (5 August 2014).
50 SPS Committee, ‘Summary of the Meeting of 16–17 October 2013’, G/SPS/R/73 (15 January 2014), at 26, para. 11.7
51 SPS Committee, ‘Summary of the Meeting of 25–26 March 2014’, G/SPS/R/74 (6 June 2014), at 22, para. 11.6.
52 SPS Committee, ‘Report of the Co-Stewards of the Private Standards E-working Group on Action 1 (G/SPS/55)’, Submission by the Co-stewards of the E-working group on Private Standards, G/SPS/W/283 (17 March 2015), at 1, para. 2. This proposed text had a footnote: ‘This working definition is without prejudice to the rights and obligations of Members, or the views of Members on the scope of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures.’
53 Ibid., paras. 10–11.
54 Ibid., para. 9. The term ‘private body’ is found in Article 1.1(a)(1)(iv) of the WTO's Agreement on Subsidies and Countervailing Measures, which addresses a definition of subsidies.
55 SPS Committee, ‘Summary of the Meeting of 26–27 March, 2015’, G/SPS/R/78, at 22, para. 11.5 (21 May 2015). See also, WTO news, 26 and 27 March 2015, ‘Food Safety Body Agrees to e-working Group “Time Out” on Definition of Private Standards’, www.wto.org/english/news_e/news15_e/sps_26mar15_e.htm (accessed 17 September 2019). For a recent discussion in the SPS Committee on private standards, see, the SPS Committee, ‘Review of the Operation and Implementation of the SPS Agreement’, G/SPS/62, Section.14 ‘SPS-Related Private Standards’ (14 July 2017).
56 TBT Committee, Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with Relation to Articles 2, 5 and Annex 3 of the TBT Agreement, G/TBT/1/Rev.12, Annex 2 (Part 1), at 47–49 (21 January 2015).
57 Appellate Body Report, US–Tuna II (Mexico), WT/DS381/AB/R (16 May 2012), paras. 371–372. A decision adopted by Members may qualify as a ‘subsequent agreement between the parties’ in light of two conditions: ‘(i) the decision is, in a temporal sense, adopted subsequent to the relevant covered agreement; and (ii) the terms and content of the decision express an agreement between Members on the interpretation or application of a provision of WTO law [emphasis original]’. Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes (US – Clove Cigarettes) WT/DS406/AB/R (4 April 2012), para. 262.
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64 TBT Committee, ‘Fifth Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade under Article 15.4’ (G/TBT/26) (13 November 2009), para. 26.
65 TBT Committee, ‘Sixth Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade under Article 15.4’ (G/TBT/32) (29 November 2012), para. 7.
66 Annex 3, paras. E and H of the TBT Agreement.
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80 Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (Text with EEA relevance), OJ L328/82.
81 Regulation (EU) No. 995/2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market [2010] OJ L/295/23.
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87 Ibid., arts. 13–16.
88 Commission Delegated Regulation (EU) 2016/2071 of 22 September, OL L320/1.
89 Commission Delegated Regulation, ibid., arts. 31–41.
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99 NRDC, ‘Biofuel Sustainability Performance Guidelines’, www.nrdc.org/energy/files/biofuels-sustainability-certification-report.pdf (accessed 17 September 2019).
100 State of Sustainability Initiatives, ‘SSI Reviews’, www.iisd.org/ssi/ssi-reviews/ (accessed 17 September 2019).
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109 Interview by the author with Ms. Nadia El-Hage Scialabba, at the FAO in Rome, on 18 May 2015.
110 See Short history of SAFA, ‘Mapping sustainability indicators for the food sector (2010)’, www.fao.org/fileadmin/templates/nr/sustainability_pathways/docs/SAFA_History10.9.14.pdf (accessed 17 September 2019).
111 SAFA, Reflections on the 2012 E-forum (March 2012), at 4, www.fao.org/fileadmin/templates/nr/sustainability_pathways/docs/Reflections_SAFA_E_Forum_2012_final.pdf (accessed 17 September 2019).
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116 See SAFA Usage ‘Examples of SAFA Applications’, www.fao.org/nr/sustainability/sustainability-assessments-safa/safa-usage/en/ (accessed 17 September 2019).
117 See SAFA Usage, ‘Assessments’ examples, ibid.
118 See SAFA Usage, ‘Tools’ and ‘Guidelines’ examples, ibid.
119 See SAFA Usage, ‘Reporting’ examples, ibid.
120 Interview by the author with Ms. Nadia El-Hage Scialabba, at the FAO in Rome, on 13 March 2017.
121 ITC, ‘Our Solutions’ ‘Sustainability Standards’, www.sustainabilitymap.org/standards_intro (accessed 17 September 2019).
122 The SAFA Guidelines, supra note 106, ‘Preface’ at v.
123 Lin, supra note 75, at 60.
124 For the discussion of limited capacities of international organizations in relation with member states, Abbott et al., supra note 73, at 10–11.
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130 Ibid., at 6.
131 Currently, the ITC's Sustainability Map project provides more than release of information. The T4SD team developed the ‘Virtual Network’ which can be used along with the Sustainability Standards Map. Because gaining comparative information via the Standards Map may not necessarily lead to a real business opportunity, the T4SD team, acting as a facilitator, helps ‘connecting businesses, support organization and practitioners along sustainable value chains’. See, ITC Sustainability Map, Virtual Network, www.sustainabilitymap.org/network_intro (accessed 17 September 2019).
132 The SAFA's governance by soft law can be improved if it adds some elements of ‘experimentalist’ governance. Space does not allow a detailed discussion of governance by experimentation. Briefly, experimentalist governance has five common features: (1) open participation; (2) a broadly agreed common problem; (3) lower-level implementation; (4) feedback, and reporting; and (5) peer review. de Búrca, Gráinne, Keohane, Robert O., and Sabel, Charles, ‘New Modes of Pluralist Global Governance’, 45 NYU Journal of International Law & Politics (2013) 723Google Scholar, at 739. Importantly, experimentalist systems ‘regularize and officialize’ the ‘occasional and ad hoc practice’ of exchanging views and experiences, thereby shifting to ‘systematic learning’. Ibid., at 740–741. More established ‘systems of discovery and learning’ make ‘experimentalist’ governance different from ‘soft law’ governance. Schneiberg and Bartley, supra note 92, at 49.
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135 Bodansky, Daniel, ‘Legitimacy in International Law and International Relations’, in Dunoff, Jeffrey L. and Pollack, Mark A. (eds.), Interdisciplinary Perspectives on International Law and International Relations (Cambridge University Press, 2012) 321Google Scholar, at 330.
136 Ibid.
137 Ibid., at 327.
138 Godzimirska, Zuzanna, ‘Delegitimation of Global Courts: Lessons from the Past’, in Kent, Avidan et al. (eds.), The Future of International Courts: Regional, Institutional and Procedural Challenges (Routledge, 2019) 123Google Scholar, at 124.
139 Creamer, Cosette D. and Godzimirska, Zuzanna, ‘(De)Legitimition at the WTO Dispute Settlement Mechanism’, 49 Vanderbilt Journal of Transnational Law (2016) 275Google Scholar, at 281 (citing Bodansky, Daniel, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’ 93 American Journal International Law (1999) 596CrossRefGoogle Scholar, at 602). See also, Bodansky, supra note 135, at 327 and 329 (arguing the importance of distinguishing ‘normative legitimacy’ and ‘descriptive/sociological legitimacy’, because we usually talk about an institution's normative legitimacy on the basis of normative criteria, such as ‘input legitimacy’, but this is different from ‘an institution's descriptive or sociological legitimacy – with whether its authority is accepted by relevant audiences, such as states and civil society groups’.).
140 Schleifer, Philip, ‘Varieties of Multi-Stakeholder Governance: Selecting Legitimation Strategies in Transnational Sustainability Politics’, 16 Globalizations (2019) 50CrossRefGoogle Scholar, at 52 (arguments based on Buchanan, Allen and Keohane, Robert O., ‘The Legitimacy of Global Governance Institutions’, 20 Ethics & International Affairs (2006) 405CrossRefGoogle Scholar).
141 For the importance of a focus on supply chains in the WTO negotiations, see Hoekman, Bernard M., Supply Chains, Mega-Regionals and Multilateralism: A Road Map for the WTO (CEPR Press, 2014), at 35–36Google Scholar.
142 Note that the early SPS Committee's documents in 2009 pointed out a few positive effects of private standards according to responses from WTO Members. See, SPS Committee, supra note 7, paras. 38–40 (Question 12. Positive (trade creating) effects of the private standard(s) on the exports of a product).
143 For the need for research on ‘interplay and coevolution’ of multiple forms, see Schneiberg and Bartley, supra note 92, at 53.
144 Alter, Karen J. and Raustiala, Kal, ‘The Rise of International Regime Complexity’, 14 Annual Review of Law and Social Science (2018) 329CrossRefGoogle Scholar, at 345.
145 For a discussion of such a non-interventionist approach, see Bernstein, Steven and Hannah, Erin, ‘Non-State Global Standard Setting and the WTO: Legitimacy and the Need for Regulatory Space’, 11 Journal of International Economic Law (2008) 575CrossRefGoogle Scholar, at 606.
146 Fransen and Conzelmann, supra note 14, at 260.
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