Publication Type: Conference Paper/Unpublished Manuscript
Abstract: This paper will examine the tension created within international trade law when non-state governance systems develop authoritative standards in the global marketplace. It addresses two primary questions: First, under whatconditions will such governance systems be accepted as authoritative by relevant international trade agreements (e.g, TBT and SPS)? Currently, the International Organization for Standardization (ISO) occupies a unique andnearly unchallenged position in setting recognized international standards. However, the proliferation of what Cashore has labeled Non-state Market Driven (NSMD) governance systems poses a serious challenge to that monopoly. Second, is the WTO's own legitimacy at risk if its rules open the door to legal challenges of states that implicitly or explicitly adopt or encourage the adoption of one such system's standard? Since these standards tap into social and environmental concerns of broader civil or even world society, the basis of their legitimacy can easily conflict with the state-centric legitimacy dynamics within the WTO. We will examine how these legitimacy dynamics are playing out within the WTO's Committee on Trade and Environment and TBT committees, as well as in external efforts to reconfigure the legitimacy and legality of global standard setting. Our preliminary argument is that the WTO, as a state-centric body, will be institutionally and normatively hamstrung in attempts to navigate dilemmas inherent in non-state standard setting in the global marketplace, even if, as is generally the case now, such systems are developed to not run afoul of formal WTO rules. Thus, WTO members are best advised to simply ensure the trade regime "leaves space" for social standard setting in the global marketplace rather than to try to create rules on what standards to accept.