October Opinion

It is in the spirit of open dialogue that I am pleased to present a response from Dr. Larry Eicher to our August SN Plain Talk column, “Time to Take Stock.” Dr. Eicher’s comments are presented here in their entirety. —Jim Thomas

My longtime friend and colleague Jim Thomas, president of ASTM, has recently made some highly provocative statements in his column Plain Talk for a New Generation, in the August issue of SN. Since I was cited as having said and done things that contributed to his concerns, I am pleased to be given this opportunity to comment on these matters, and to further explain the positions of the International Organization for Standardization, as I understand them. Naturally, as the secretary-general of ISO, my comments are based on perspectives I have gained in the international community, but also as a proud citizen of the United States, I feel it is important and fair to place some of Jim’s statements and my own in appropriate contexts for our compatriot Americans.

Jim is concerned about discussions being held in the context of the triennial review of the WTO/TBT (World Trade Organization/Agreement on Technical Barriers to Trade) concerning the definitions of an international standard and an international standardizing body; and about whether the Vienna Agreement (between ISO and the European Commission for Standardization (CEN)) is giving unfair advantage to the European Union countries within ISO. I think these questions are mostly distinct, one from the other, and will respond in that way.

On Jim’s WTO/TBT concerns, I think it useful to clarify some factual points and answer some real-time questions. First, the questions:

Are there any instances when standards developed by ASTM or any other of the U.S. standards developing organizations (SDOs) have been challenged as a cause of unnecessary obstacles to international trade in the WTO context? The answer is no, there are none, and there is only an indirect and hypothetical chance of that happening in the foreseeable future. I will explain my view.

Do the large majority of ISO members, for whom I believe I speak, wish to cast aside the U.S. standards system or its standards? The answer is certainly not; there are countless examples in the past, and more recently, of ISO’s efforts to adopt U.S. standards and to accommodate and partner more closely with the U.S. SDOs, ASTM included, as Jim kindly noted.

Did ISO introduce the discussion of definitions for an international standard or an international standardizing body into the WTO/TBT debates? Another no: ISO is only an observer to the WTO/TBT Committee and has no say as to what is put on their agenda, but I am rather sure that we would have been content to let the definitions stay as flexible as they are now.

Does ISO have a position vis-à-vis the private and public sector positions in the structural configurations of the standards development systems in the United States, or any other of its members? No again: ISO and the International Electrotechnical Commission (IEC) provide procedural guidance to members on how to operate effective consensus-building standards development systems, but on internal organizational matters we only pass along information provided by our members to others.

So, it appears that we are engaged in a rather hypothetical debate, not about the worldwide trade relevance of our standards, but rather about the recognition or non-recognition of our standards, organizations and structures, and processes; and who in Geneva said or thinks what, and in which context.

Let’s admit from the start that neither Jim nor I are trade policy specialists nor international dispute resolution lawyers, and that our differences in view are based on our professional experiences, our individual understandings, and our business perspectives. Here are mine:

WTO is an intergovernmental body and its members are national governments (member states’ central governments); in the United States this means the federal government. Therefore, WTO Agreements, including the TBT Agreement, are restricted to matters in which the national governments have authority to act. The only non-administrative authority granted to the WTO, as an organization, is to arbitrate trade disputes among its members via a formal (and sometimes “informal”) dispute settlement process. Trade disputes can only be raised by one or more WTO members with claims of non-observance by another member of one or the other WTO Agreements (recent examples are in relation to hormone-treated meat products, bananas, etc.). In such cases the WTO Dispute Settlement Body interprets whether or not a member government has broken an agreement that it had previously accepted.

In the case of the TBT Agreement, the WTO members have agreed (among other things) to take steps over time to harmonize their respective sets of technical regulations (legally mandatory technical requirements) as much as possible. The objective is to reduce unnecessary technical obstacles to international trade; and these are generally understood to be technical requirements in regulations that are different in various national markets, but which have no scientific, technological, or local condition’s reasons for being different and therefore may be discriminatory in favor of local producers.

The WTO/TBT Agreement also makes recommendations about how to go about achieving harmonization between the sets of technical regulations used and enforced by its members; on this point there is a general strategic agreement that urges WTO members to use international standards when they exist and are relevant as the basis for the technical requirements in any new technical regulations they intend to impose on their internal and external trading partners.

So that the WTO members can watch each other more easily on these questions, procedures have been set up by which any member’s intentions to impose new technical regulations should be “notified” via the WTO/TBT secretariat to the other WTO members. It is in this context that one WTO member could make a claim that a new technical regulation of another member is arbitrarily discriminatory in favor of local producers, has a significant effect on the international trade interests of other members, or is not based on an existing and relevant international standard. And, in this latter case, the parties in dispute might have to argue the question about whether or not the body that developed the standard was, in fact, an international standardizing body.

This is the first WTO context in which I believe that the ISO position is quite clear: an international standard is one developed by a body that operates its consensus-building processes in such as way as to incorporate and embrace the due process mechanisms that characterize the technical regulation-setting processes in the majority of industrialized democracies of the world. In other words, international standards (or parts thereof) that may become legally binding in many countries should be established in accord with national positions based on public review in all WTO member states and taking account of all of the affected interests in each country. I find it difficult to believe Jim’s assertion that this ISO position challenges that of the U.S. government, but that is for others to confirm.

Nevertheless, the national body membership conditions, the national delegation principles and the national enquiry processes in ISO and IEC, as well as in a number of other international organizations, meet this multinational due process need. ASTM’s do not. Many national standards, ASTM’s included, may well be technically excellent, agreed upon by a consensus of experts from many countries, widely used, and much appreciated as international trade facilitators; but such attributes would not be at issue in the context of a WTO/TBT multilateral dispute concerning the technical regulations of one or another member state.

1. The TBT agreement includes an Annex 1 that defines an international body as one whose membership is open to the relevant bodies of (as opposed to technical experts from) at least all WTO members; and an Annex 3 (code of good practice for the preparation, adoption and application of standards) that includes among its provisions a requirement that, before a standard is adopted, it shall be made available as a draft standard for a 60-day period for comment by any interested parties in any WTO member’s territory. ISO’s national members are able to ensure that this happens—organizations that are not based on national membership have much more difficulty in meeting this requirement.

2. A similar code of good practice for standardization was prepared and approved by the membership of ISO and IEC in 1993 as ISO/IEC Guide 59; and this includes the provision that “at international level, national participation in the standardization process is organized under the auspices of the appropriate national standards body which is the member of the relevant international standards organization. National members shall ensure that their participation reflects a balance of national interests in the subject matter to which the international standardization activity relates.”

Given all this, I come now to the point that the TBT Agreement also has things to say about local government bodies and non-governmental bodies. Here there is a less strong obligation on the member states, saying that they shall “take such reasonable measures as may be available to them” to ensure compliance by such bodies with more or less the same obligations taken for harmonization of technical regulations at the central governmental level.

It is useful to note that for the harmonization of both technical regulations and voluntary standards, the TBT Agreement, while aiming ultimately at globally harmonized solutions, does recommend the use of other members’ regulations or standards when they meet the needs of the adopting country, and this is one place where I see ASTM and the other U.S. SDOs coming into the picture. It is obviously sensible and practical, for example, when Mexico decides to adopt an ASTM standard, or if Austria adopts a DIN (Deutsches Institut für Normung) standard, that they do not have to worry about being out of line with the TBT Agreement.

So where is the “recognition” problem? If there is a problem it is because the same strategy applied to the harmonization of technical regulations (to base them on international standards when they exist and are relevant) is recommended by the TBT Agreement for non-governmental voluntary standards at the national level. So, if a non-governmental standardizing body would like to be in compliance with this recommendation, it should have a clear idea of what an international standard is and, if one exists, whether or not it is relevant to its own needs. Certainly, the overwhelming majority of ISO and IEC members do not think there is a problem. International standards come from ISO, IEC, and other recognized international bodies, such as the International Telecommunications Union and WHO/FAO (CODEX) (World Health Organization/Food and Agriculture Organizationof the United Nations (Codex Alimentarius Commission)), whose membership is made up of national bodies. Their and ISO’s standards are regularly and often adopted as national standards in a large number of countries. Obviously, these countries wish the United States would do the same kind of thing, but I’ll come to that point later.

Here, I lose track of where Jim is leading. Does he believe that ISO should declare that some set of U.S. SDO standards, that have wide international acceptance as de facto international standards, have the same status as ISO’s own standards? I have difficulty in understanding what kind of exclusive and preferential treatment Jim would want ISO to confer. It seems, at least to me, that it would be presumptuous to exclude the rest of the world’s national standards bodies from having the same status for their standards.

Returning to hypothetical questions, would there ever be a case in the (only other) WTO/TBT context where a non-U.S. member state would raise an issue with the United States because an ASTM standard or another U.S. SDO standard had not been based on a relevant and existing international standard? It is hypothetically possible, I admit, but considering the size of the U.S. import market, the apparent willingness of foreign suppliers to adapt their products to U.S. standards, and the global uptake of U.S. technologies, it seems to me that such a challenge is highly improbable. Further, as we know, the federal government’s authority over the private sector standards developers in the United States is clearly limited to participating in the work, giving advice when asked, and paying some of the bills; they are really not asked to do more than that in the TBT Agreement. Maybe someday the global pressures to “go metric” would come back to the U.S. SDOs via WTO/TBT, but I expect the business world will have solved such problems in other ways, or that all of us will be out of the picture before then.

The Europeans, like many other WTO members, apparently see value in using international standards both as a basis for reference in technical regulations, and in the purely voluntary sense as trade facilitation tools—the overall objective being to help ensure that the technical requirements applied in inter-European trading will be compatible with those used in other parts of the world where their trading relationships are important. In both cases, regulated and unregulated trading, the CEN and CENELEC (European Commission for Electrotechnical Standards) member countries have followed a policy of adopting international standards whenever possible as their own national standards. For CEN and CENELEC members, the relevant international standards come from ISO and IEC.

Much has been said about the differences in the U.S. and European standards structures and organizations, and I doubt that it would help here to run through these again. The main point is that, in creating the new public and private structures for the European Union, a lot of changes have taken place in the standards and technical regulations area. As the Euro markets become more and more integrated, the European standardizers, via CEN, have been very active in developing and adopting voluntary standards that may be used to demonstrate acceptable compliance with a host of new Euro-wide technical regulations (New Approach Directives).

This effort represents a considerable resource investment for the Europeans, especially when one adds to it the volume of resources also needed for ISO work in non-regulated sectors. It is not too surprising, therefore, that in some circumstances there are not enough resources to sustain activities in both ISO and CEN and that, when there is little expression of significant interest in particular activities from ISO member bodies outside the European Union, the European member bodies decide to do the work only in CEN, or under the Vienna Agreement under the so-called “CEN lead.”

In the Vienna Agreement and elsewhere, the policy within CEN is that, whenever there is an appropriate ISO standard, it will be considered for adoption as a European standard. Further, CEN’s actions seem to follow their policy line that, when European interests consider that particular standards needed in Europe also need to be agreed with the non-European partners, then the work should be done in ISO.

It is important to understand that under the Vienna Agreement any decision to delegate work to CEN under the “CEN lead” is one that has to be taken by consensus in the relevant ISO technical committee, and accordingly there needs to be agreement between the European and non-European players before the “CEN lead” happens. The non-Europeans also have the right to appeal such a decision above the ISO technical committee level, but that has never happened in the 10 years since the Vienna Agreement was put into force.

The result of the operation of the Vienna Agreement is that, by the beginning of this year, CEN had directly adopted some 1,400 ISO standards without changing a comma, and another 400 were in the process of direct adoption. In addition, there were 461 European standards (EN ISOs) that had resulted from parallel processing under ISO lead, and 96 developed under CEN lead. In terms of ongoing work, ISO currently has some 5,000 projects in its work program; just over 1,000 of these are registered as Vienna Agreement items, 70 percent (14 percent of the total) being under ISO lead and 30 percent (5 percent of the total) being under CEN lead. The total number of originally European standards that have been proposed and adopted as ISO International standards is less than 50 (around 0.5 percent of the total). For me, logic is something that one applies to interpret facts. From these facts, it is difficult to find a basis for fears or accusations of European domination or even “favoritism” in ISO.

It is also good to remember that the more than 2,000 ISO standards adopted by CEN are then adopted by all 19 of the CEN member countries as their own national standards, with concurrent cancellation of any previously existing national standards that are found to be in conflict. Clearly this reflects a very significant difference in the standardization cultures of Europe and of the United States, where ISO standards are only rarely adopted as U.S. standards, but rather are available for use, together with all others, by those wishing to do so. I have no doubt that the U.S. model serves the U.S. economy well and corresponds to the U.S. standardization culture. That culture is, however, different from other parts of the world. As the French say “vive la différence,” but let’s make sure that everyone understands that there are indeed differences, and try to take the best from all for our international standards development culture.

Of course, the Vienna Agreement and its application in real time, like most other structured attempts to make progress in the naturally contentious

international trade environment, is imperfect, and every attempt to make it work better should be supported. This, in my understanding, is the context in which the Japanese ISO member has made its recommendations (with some 25 supporting comments from the United States provided by the American National Standards Institute (ANSI)) for improving the part relating to the “CEN lead” procedures now existing in the Agreement.

Frustrations with difficulties in coming to agreements in international standards committees are always present, and even more so when attempting to coordinate work between independent multinational organizations. Sometimes, in the ISO and CEN contexts, the frustrations are due to flaws in Vienna Agreement procedures where fixes are clearly possible and diligently pursued; sometimes the frustrations are due to the fact that an independent multinational standards organizations and standards development activity exists in the EU, i.e., CEN, CENELEC and ETSI (European Telecommunications Standards Institute), and sometimes they are simply due to the fact of having lost in defending the position of one’s own country in ISO.

Fixes for many of the frustrations in the ISO context are always open for consideration and appropriate action. If, for example, an ISO technical committee or subcommittee secretariat held in Europe is unable to service the ISO work because of conflicting CEN priorities, then this should be made known and a new secretariat (that can provide the necessary resources to meet the service agreement requirements of ISO) should be appointed by ISO (TMB). If block voting—i.e., all Europeans voting against nearly all non-Europeans—is verified, the ISO appeals process should be exercised to nullify the decision. If weighted voting should be introduced into ISO technical committee/subcommittee work, then some kind of meaningful endorsement of the resulting ISO standards for preferential use should exist in all countries having highly weighted votes.

To extrapolate from this combination of frustrations the conclusion that ISO positions itself to allow exclusive favoritism for European standards, or that there are case after case of actual abuses, is not supported by any facts known to me. In fact, I was quite surprised by Jim’s description of Japan’s comments with respect to the current review within ISO and CEN of the Vienna Agreement. I have carefully read the Japanese Industrial Standards Committee comments and ANSI’s supporting arguments and considered them to be honest and constructive. I can also imagine that, with these two heavyweights pulling together, some adjustments in the Vienna Agreement procedures will be forthcoming.

However, I am not at all surprised to hear the Japanese agreeing with the statement of the ISO Technical Management Board that the Vienna Agreement is “still not” well understood. Building understanding is a two-way process and a never ending task in every member-based organization, particularly in international organizations. And, agreeing with the Japanese view that they are addressing problematic cases rather than systematic or structural flaws, I have great difficulty in following how Jim arrives at his statement that “these kinds of abuses can only occur in standards bodies that are based on geopolitical architectures, i.e., national delegations, where blocks of nations can upset a balance of interests.” Certainly there was nothing to suggest that in the Japanese position.

If the U.S. experience with the Vienna Agreement, or with ISO in general, does support Jim’s statement, I trust that the evidence will soon be made available to the entire ISO community by ANSI. Until now, ANSI and the Europeans, including the European Commission and representatives of the U.S. government, have worked consistently at trying to resolve several kinds of trans-Atlantic trade problems, but only a few of them have had direct relationships with ISO or CEN standards or the Vienna Agreement.

In his final section, “Time to Take Stock,” Jim attributes many attitudes and positions vis-à-vis the United States and its voluntary standards system to “Geneva,” and if you read the whole column it is clear that I am included in “Geneva.” Speaking on my own behalf, it should be obvious to all who know me that there are no statements in that section that are true for me, save the last, i.e.:

In response, I wish to make clear two pertinent points:

1. ASTM does not seek, and does not wish to imply that it seeks, any exclusive or preferential treatment from ISO, nor does it seek any “recognition” conferred on it by ISO. Our position is and has always been that the right to confer recognition and preference belongs strictly to the marketplace.

2. ASTM does not object to the structural architecture of ISO, IEC, or any other organization whose membership is based on national delegations. We believe that standards developed according to the principles of openness, balance, due process, as well as their market relevance and impact on international trade are far more important than the design of the structure that produces them.

Finally, I would like to thank Dr. Eicher, friend and distinguished colleague, for his frank and forthright response. Although we may continue to disagree on certain issues, I believe the viewpoints in both our articles are expressions of the openness to which we both subscribe.

James A. Thomas