When it comes to trade law, it is true that there appear to be certain signs that we are moving back to non-discrimination and away from deeper forms of integration. However, this is possibly (and hopefully) only a limited and temporary shift. The strongest evidence of such a shift regards the apparent interpretation by the WTO Appellate Body (AB) of the key provisions in the TBT Agreement in such a way as to give prevalence to the national treatment standard in Article 2.1 over the necessity requirements in Article 2.2. For example, in US – Tuna II (Mexico) the AB found the U.S. dolphin-safe regulations under review inconsistent with Article 2.1, while also reversing the panel finding that the U.S. dolphin-safe regulations were inconsistent with Article 2.2. Such a result is surprising if one considers the general agreement among commentators that the disciplines embodied in the TBT Agreement (as well as in the SPS Agreement) went beyond the non-discrimination obligation of the GATT.

There is no doubt that the non-discrimination principle, particularly found in the national treatment standard, remains one of the cornerstones of WTO law in combatting protectionism. However, in my view, there are at least two reasons why the interpretation given by the AB of Article 2.1 TBT should be abandoned. First, it is not in line with a proper balance between sanctioning nationality discrimination based on disparate impact between domestic and imported competitive products, on one hand, and permitting members’ pursuit of legitimate public policies through reasonable measures. While the AB has managed to find that balance in its interpretation of GATT Articles III and XX over the years, it appears to have so far failed when it comes to TBT Article 2.1. In this latter context, and despite the AB attempt to read in to Article 2.1 a so-called “public policy justification” (through the concept of “legitimate regulatory distinctions”), the practical result is that the balance is skewed excessively in favor of disparate impact on imported products.

Second, there must be a better (i.e., more limited) interpretation of the non-discrimination provision in the TBT, that is in line in particular with the object and purpose of one of the so-called “new generation” agreements. Contrary to the GATT, there is no mention of eliminating discriminatory treatment in the preamble of the TBT. Instead, the emphasis there is on ensuring that technical regulations and standards “do not create unnecessary obstacles to international trade” and thus permitting measures inter alia “necessary for the protection of human, animal life or health” as long as “they are not applied in a manner constituting a means of arbitrary or unjustifiable discrimination.” Accordingly, the focus of the TBT (and thus the interpretation of its key provisions) should be on the necessity requirements rather than on the non-discrimination principle.