This month’s Plain Talk for a New Generation is, obviously, longer than usual. The issues to be discussed are compelling and are occurring in real time. They affect us directly; and they are too important to be addressed in 800 words or less. They concern the triennial review of the WTO TBT Agreement1 and the operation of the ISO/CEN2 Vienna Agreement. I think they are related, and that they deserve a full discussion in the same space.
Review of the Technical Barriers to Trade Agreement
The Agreement on Technical Barriers to Trade requires that every three years the TBT Committee review the operation and implementation of the Agreement. This year, the Committee is engaged in its second triennial review. There is every possibility that the review will result in adjustments or amendments to the text. With a view to that end, four international standards organizations, ISO, the IEC,3 ITU,4 and UNECE,5 have submitted statements to the TBT Review Committee for their consideration.
Their messages to the Committee are essentially the same: international standards that do not emanate from organizations that are structured like theirs should not be recognized as such by the TBT. The statements insist that unless a standards body’s membership is based on national delegations, it is not a standards body whose international standards are worthy of recognition in the context of the Agreement. Following is a quote from the statement to the TBT Committee by ISO Secretary General Dr. Lawrence D. Eicher:
“We, like our colleagues in the IEC, want to stress that international standards bodies have an obligation to respect the same principles of membership and due process that form the basis for WTO membership, as well as our own. Organizations that develop standards without observing these principles should not expect them to enjoy recognition as International Standards in the WTO context.”
The ISO position (and that of the others) challenges that of the United States Government, and therefore presents us with a dilemma.
The United States Trade Representative is the U.S. representative to the WTO. This office has consistently advocated the position that international standards worthy of inclusion in the context of the WTO can indeed emanate from organizations that meet criteria called for in the Agreement, criteria such as openness, transparency, and a consensus process for development.
The TBT Agreement defines an international body or system as one “whose membership is open to the relevant bodies of at least all Members.” The ISO, along with the others, is seeking an interpretation of this definition to mean one that fits their own, to the exclusion of all others. Except, of course, those who might embrace the “principles of membership and due process that form the basis for WTO membership as well as our own.”
While WTO membership is based on government delegationsas are the ITU and the UNECEISO and IEC are still technically non-governmental, voluntary standards organizations, although they share a mission statement with their “government partner,” the ITU. The analogy and the fraternity is, however, a bit too close for comfort. It is singularly disturbing and raises ugly specters from U.S. history. In the late 1970s and early 80s, the voluntary standards community in the United States withstood three major federal attempts at imposing unwanted government control and undue influence over its activities. Two Congressional bills calling for government controls were soundly defeated, as well as a proposed rulemaking by the Federal Trade Commission. A proposal by the U.S. Department of Commerce for the creation of a quasi-governmental organization was likewise roundly rejected. Our philosophy was then and is now that our voluntary standards system is to remain market-driven, and directly accessible. The United States does not, therefore, base our voluntary standards activities on architectural structures that are political in nature.
That, of course, makes us different. There are member countries of the ISO whose national standards organizations are totally controlled by government. There are others, such as the member states of the European Union and their associates, who ascribe to national delegations as a prerequisite for membership in their regional organizations CEN and CENELEC.6 The ISO and the IEC, however, must accommodate and respect the views of all members if they are to represent a global population. Advocating a political structure based on national delegations as the prerequisite for the development of “recognized” voluntary international standards rejects and casts aside the United States’ system and its de facto international standards.
The principles upon which the system of consensus standards organizations in the United States are built are, in every respect, commensurate with the principles of the Agreement, as are the international standards that system produces. It meets all the criteria, and goes beyond. It is open to anyone, of any nationality. This makes it actually, not virtually, a system for all interested parties. Its technologies on the whole are highly advanced, thus giving it the ability to raise the levels of technology around the globe. It has contributed these technologies to the development of some of ISO’s and IEC’s best international standards. The active participation of the United States makes both organizations meaningfully global instead of merely international. Yet, both organizations, along with their government counterparts, would preclude U.S. internationally-developed and internationally-used standards from being “recognized,” and therefore barred from the global commitment to eliminate unnecessary technical barriers to trade.
Which bring us to the Agreement itself. That is its purposeto eliminate unnecessary barriers to trade. It is not to dictate the architecture of non-governmental standards bodies. The Agreement calls for the development of international standards that are developed openly, transparently, and by consensus. It calls for standards bodies whose membership is open to all its members. Like all wisely crafted agreements, it has left itself room to maneuver and opportunity to mature.
Narrowing its interpretation at this stage of its development cannot be a step in the right direction, particularly not while it is experiencing limited global success.
As I pointed out in my first article on the WTO (May 2000), the United States and Japan, two out of three world economic powers, are having difficulty implementing the portion of the TBT that calls for the use of international standards as a basis for regulation. One of the reasons for the difficulty is that there are those within the governments of both countries who assume the Agreement binds them to the use of international standards that emanate only from ISO and the IEC. When, for their own regulatory reasons, they find ISO and IEC standards unsuitable to their purposes, and laboring under this misconception, they are left with no international alternatives. If the Agreement is to move in any direction, it must move outward, not inward.
For the Record
For the record, let me say that I support the spirit of the TBT. I think standards should facilitate trade, not hinder it. ASTM’s support of ISO is a matter of record.
It supports more than two-thirds of all U.S. TAGs. ASTM was among the first in the United States to propose a pilot program thatwould bring ASTM activities closer to those of the ISO and further the development of more ISO standards.
What I do not support is the claim that there is only one way to develop voluntary international standards, and that way is by national delegation only. I believe in the right to choose. I believe that people who develop and use standards have the right to choose the standards they will use and the voluntary standards organizations that will give them the standards they need, no matter where they live. The people who develop and use standards are the ones who should dictate how and where their technical problems are to be solved. The people who develop and use standards are also the ones who should solve the problems of waste and duplication because it is in their interest to do so. They, after all, are the ones who regulate health and safety and cause trade to move and flourish, not standards organizations. I believe the role of standards organizations is to assist that movement, not dictate the terms of it.
I personally believe in direct participation, easy access, and an equitable voting system. And last, I believe the international standards organizations in Geneva should reflect the interests of the United States as well as all and any of their other members.
The ISO/CEN Vienna Agreement
Which brings me to the ISO/CEN Agreement, also known as the Vienna Agreement. According to ISO, this Agreement was born out of concern for European claims that the technical quality of ISO standards was too low for the requirements of the European market, and that ISO produced standards too slowly.
Following is a quote from a 1995 paper entitled “Vienna Agreement on Technical Cooperation Between ISO and CEN.” The author is Mr. M. A. Smith, ISO director, Standards:
“While we accept that there was an element of truth in such charges (but for which we would not accept more than a small percentage of the blame), the belief in ISO was that the major point was being overlooked. This was that the Single European Market needs to be integrated into the wider, global market and this can be best achieved by ensuring that the standards used to regulate the Single European Market are also those which regulate the global market.
“With this in mind, it seemed that what was needed was a set of procedural mechanisms to try to ensure that to the largest possible extent International Standards and European Standards are compatible or even better, identical.”
This statement from ISO is a perfect corollary to stated European objectivesthe transmutation of European standards into international standards that regulate the global market.
The Vienna Agreement is, essentially, about achieving identical ISO and European standards through an exclusive, cooperative, and symbiotic arrangement. Such a concept defies all logic that it would not evolve into occasions of favoritism.
The Agreement allows for the transfer of standards development from one organization to the other, with either ISO or CEN “taking the lead.” When CEN takes the lead, the standards activity is closed to everyone except European interests and two ISO observers. ISO has added that its committees should give preference to at least one non-European member. Working group meetings may be attended by invitation only. Drafts of standards are theoretically to be made available to the ISO Committee for comment, but CEN interprets “draft” to mean at the prEN (European Draft Standard) stage or later. In some cases, CEN rejects requests from non-Europeans for information before the prEN stage. In the parallel voting procedure, a prEN is circulated as a DIS (Draft International Standard), a fait accompli.
The ISO/CEN Agreement also allows for ISO “to maintain the ISO standard, and accept that the European Standard will deviate from the ISO standard.” Although non-European bodies may explain the status of their standards compared to ISO standards, ISO does not evaluate each national standard and “accept” their deviations.
Japan Speaks Out
Like the TBT Agreement, the Vienna Agreement also undergoes review. According to an ISO/CEN Joint Coordinating Group paper dated June of this year, the report presented to the General Assembly in October 1998 found that “the objectives of the Vienna Agreement, its results in terms of practical implementation, and the opportunities it affords to ISO’s members both within and outside Europe” were “still not well understood.”
Based on this finding, Japan held a seminar on the Agreement, and outlined what the ISO/CEN paper and the report called “several problematic cases” that still exist.
In actuality, the issues raised by Japan are based on far more than “problematic cases.” Japan’s report is based on accepted principles of good standards practices, and unfortunate experience, and shows a remarkably high level of understanding of the Agreement. Japan’s report, which benefited from the assistance of ANSI, outlines the “difficulties” of the Vienna Agreement in terms of the lack of transparency, the lack of openness, and the lack of impartialityironically, the very principles called for in the TBT Agreement.
Comments from the United States Pour In
Following the release by ANSI of Japan’s report, similar outcries were received from ANSI members. Case after case of reported abuses as a direct result of the operation of the Vienna Agreement added support to Japan’s findings. U.S./ISO Technical Committee participants weighed in and cited chapter and verse, pointing to specific incidences of the lack of transparency, the lack of openness, and the lack of impartiality toward non-Europeans in the operation of the ISO/CEN Agreement.7
These kinds of abuses can only occur in standards bodies that are based on geopolitical architectures, i.e., national delegations, where blocs of nations can upset a balance of interests.
Return to the TBT
The controversy surrounding the ISO/CEN Agreement makes the letters from the ISO and IEC to the TBT Committee (those concerning the need for international standards to be developed only by bodies organized around national delegations) all the more serious, especially since they were submitted by Secretariats to the TBT Committee seemingly independently of ISO and IEC governing bodies and certainly without the knowledge of the United States’ Member Delegate.
Following is a quote from a letter, written by ANSI, to the secretary general of ISO, Dr. Larry Eicher and Mr. A. Amit, the General Secretary of the IEC. It was signed by ANSI President Dr. Mark Hurwitz, USNC President Mr. Edward R. Kelly, and ANSI’s International Committee Chairman Mr. Henry Line:
“ANSI can find no recent decision of the governing bodies of either IEC or ISO on which the statements in these communications can be based. We are gravely concerned that neither the members nor the governing bodies of IEC and ISO were consulted in advance of the letters being sent nor were they even provided directly with a copy of the correspondence. It is our opinion that letters of this nature that formally communicate a new position of the IEC and the ISO to an external governmental organization should be subject to review by, at the very least, the IEC and the ISO Councils prior to transmittal.”
The letter is dated June 13, 2000.
The ANSI letter goes on to refute and challenge the ISO and the IEC secretaries’ subjective claims that “recognized” international standards can only emanate from bodies whose memberships are based on national delegations. The ANSI letter also challenges numerous other assertions made in the IEC communication, which were more far-reaching but equally presumptive. The letter from the U.S./ISO Member marks a gratifying moment in our history, one in which its rebuttal to the ISO and the IEC letters is in total harmony with the positions held forth by the U.S. Government Representative to the TBT Committee. In this moment, the United States is speaking loudly and clearly in the “one voice” it has sought for so long.
Time to Take Stock
It’s time to take a long, hard look at our situation and our standing in the arena of international standards politics. U.S. principles of market-driven standardization, open competition, and the right to choose are not appreciated in Geneva. U.S. standards development practices, with governments acting as equals as opposed to protectors, role models, or subsidizers, are not acceptable norms in Geneva. International standards developed by U.S. organizations that do not ascribe to national delegations are discredited in Geneva. U.S. voluntary consensus international standardization practices are dismissed in Genevanot because they are not in accordance with good standards practices, not because they aren’t open, transparent and impartial, not because they aren’t a part of the most successful economy on the face of the earth, not because they aren’t less likely to erect unnecessary barriers to tradebut because they are different.
It’s time to take stock and for the United States to take its rightful place in Geneva as a full member, with all respect due. We are not easy to dismiss.
James A. Thomas
President, ASTM International
1 World Trade Organization Technical Barriers to Trade Agreement
2 International Organization for Standardization/European Commission for Standardization
3 International Electrotechnical Commission
4 International Telecommunications Union
5 United Nations Economic Commission for Europe
6 European Commission for Electrotechnical Standardization
7 A compilation of the ANSI Member comments is available upon request from James A. Thomas
Copyright 2000, ASTM International