Some of you may have seen this short article I wrote for the JIEL, which looks at the GATT negotiating history of the precursor provisions to TBT Agreement Articles 2.1 and 2.2 (there's a little more technical detail in the piece here), in the period 1969 to 1979. For reasons I can't recall, I stopped at the end of the Tokyo Round, and never bothered to look at the continued evolution of the language during the Uruguay Round. But in writing something else, it occurred to me that the Tokyo Round Standards Code provision, Article 2.1, doesn't quite match what is in TBT Agreement Articles 2.1 and 2.2, and I wondered how that language evolution took place. I took a quick look, and here's what I found.
In May 1990, Canada was looking for "more precise disciplines" in this area. To this end, it proposed the following amended text:
2.1 Parties shall ensure that technical regulations and standards are not prepared, adopted or applied with a view to creating obstacles to international trade. Furthermore, products imported from the territory of any Party shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country in relation to such technical regulations or standards. They shall likewise ensure that neither technical regulations nor standards themselves nor their application have the effect of creating unnecessary obstacles to international trade. In so doing, Parties shall, inter alia, ensure that technical regulations and standards including changes thereto:
2.1.1 do not contain requirements that are greater than necessary to meet objectives consistent with this Article and the specific circumstances giving rise to their adoption;
2.1.2. are based on an acceptable degree of risk associated with their objectives by taking into account, inter alia, scientific and technical evidence, consumer applications, relevant processing technology;
2.1.3. are not maintained if the circumstances giving rise to their adoption no longer exist or if the changed circumstances can be addressed in a less trade-restrictive manner;
2.1.4. are not applied in such a way as to affect imported products either originating in geographic areas where the problem being addressed does not occur or destined for industrial or consumer applications where the problem does not exist;
2.1.5. are consistent with provisions of this Article when adopted to secure compliance with international agreements or standards;
2.1.6. are consistent with provisions of this Article if different from international standards for reasons given in Article 2.2.
Then in July 1990, the following draft text was circulated:
2.2 Parties shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. In so doing, Parties shall, inter alia, ensure that technical regulations:
2.2.1 do not contain requirements that are more stringent or are applied more strictly than necessary to meet legitimate objectives of general public interest taking into account risks that would be created by not meeting those objectives. Such legitimate objectives are inter alia national security requirements; prevention of deceptive practices; protection for human health or safety, animal or plant life or health, or the environment;
2.2.2 take into account an acceptable level of protection from risks mentioned in paragraph 2.1.2, as identified through appropriate risk assessment procedures, which would allow the maximum trade opportunities while ensuring the fulfilment of legitimate objectives of general public interest; risk assessment would be based on, inter alia, scientific and technical evidence, consumer applications and relevant processing technology;
2.2.3 are not maintained if the circumstances or objectives giving rise to their adoption no longer exist or if the changed circumstances or objectives can be addressed in a less trade restrictive manner;
2.2.4 are not applied in such a way as to affect products either originating in geographic areas where the problem being addressed does not occur or destined for industrial or consumer applications where the problem does not exist;
2.2.5 are formulated in such a way that the necessary requirements are based on the least trade restrictive alternatives which are reasonably available and are consistent with other provisions of this Agreement;
2.2.6 are consistent with provisions of this Agreement when adopted to comply with international agreements;
A subsequent draft from October 1990 uses language that is along the lines of the existing TBT Agreement.
There may be more on this somewhere, either on the WTO's web site (where these docs are), or buried in a former negotiator's files.
So what, if anything, does this alternative language for what became TBT Agreement Article 2.2 tell us about its meaning? I don't have any strong opinions at this point, but I'm eager to see others arguing about it.