Last September, Ms Andrea Barrios Villarreal, who completed her PhD in two and a half years, defended her PhD dissertation in International Law, entitled “International Standardization and the TBT Agreement: Demystifying International Standardizing Bodies and Their Processes”. Adjunct Professor Gian Luca Burci presided the committee, which included Professor Joost Pauwelyn, Thesis Director, and Professor Panos Delimatsis, from Tilburg University, Netherlands. In her research, Ms Barrios Vilarreal explores and sheds some light on the obscure international standardising system, some of the bodies that compose it, their rules and procedures, and how they are covered by the TBT Agreement.

The Agreement on Technical Barriers to Trade (TBT) requires that Members use as the basis of their technical regulations relevant international standards and that they play a full part in international standardising bodies (ISBs). However, it fails to define the terms international standard and ISB. This poses a problem for regulators all over the world who need to decide which standards they will use as a basis for their technical regulations and standards, and in which bodies they will play a full part. At the same time, some standardising bodies have been de facto recognised as the global standardisers, even when there is a lack of understanding of their rules, their governance bodies and how they develop and adopt standards. This lack of understanding also creates a problem because while these bodies have been provided with a quasi-regulatory power, this has not always been accompanied by transparency, inclusiveness or openness.

Given this situation, Andrea Barrios Villarreal proposes, on the basis of the TBT Agreement, the Standards Code, their negotiation history and the case law, (1) a definition of the terms international standard and ISB, and (2) a holistic understanding of the international standardising system, the ISBs and their processes, for which six ISBs serve as case studies:

• the Codex Alimentarius Commission (CAC)
• the Working Party on Agricultural Quality Standards (WP.7) of the UN Economic Commission for Europe (UNECE)
• the International Organization for Standardization (ISO)
• the International Electrotechnical Commission (IEC)
• the American Society for Testing and Materials (ASTM)
• the Forest Stewardship Council (FSC)

Using the two constructed definitions, she demonstrates that not all the bodies that are considered ISBs comply with the proposed definition and requirements of the TBT Agreement and that not all the standards adopted by ISBs are necessarily international standards according to the Agreement.

A practical example of this thesis is the Codex Standard on Natural Mineral Waters. Although the standard was open to the participation of all interested Codex members and observers, consensus was achieved neither in the Committee on Natural Mineral Waters nor in the CAC and the adoption of the standard was rushed to a vote. The standard was adopted by a two-vote difference and with much rejection from non-European countries. Because the standard gives preference to the characteristics of a specific region – Europe – it has not facilitated international trade. Countries such as the United States and Canada also produce natural mineral waters which, because of their geological situation, cannot comply with the standard and therefore cannot be labelled as natural mineral waters. Thus the harmonising effects of the standard have been quite limited: what in Europe is called “natural mineral waters” is sold in the United States as “spring waters”. The US Code of Federal Regulations differs indeed from Codex as it provides no definition of natural mineral waters and includes categories such as artesian water, which is not defined by Codex, nor by the EU regulation. A standard whose adoption does not follow the rules and principles established in the TBT Agreement and the committee’s decision is not an international standard and, therefore, Members are not obliged to use it as the basis for their technical regulations and standards.

This thesis provides a much-needed light on an issue that has traditionally been regarded as highly technical and, therefore, of no concern to international law. Andrea Barrios Villarreal makes the governance, rules and processes of ISBs, which have become the de facto world regulators, accessible and understandable to academics, practitioners and the general public.

Full citation of the PhD thesis: Barrios Villarreal, Andrea. “International Standardization and the TBT Agreement: Demystifying International Standardizing Bodies and Their Processes”. Graduate Institute of International and Development Studies, 2016.

Illustration: The Codex Alimentarius Commission (CAC), 2012. Photo by Andrea Barrios Villarreal.