Distinguishing Element of “Mandatory” Between Technical Regulation and Standard in the TBT Agreement on the Basis of US-Tuna(Ⅱ)
是否具有强制性是TBT协定中技术法规和标准的关键区别。"美国—金枪鱼案(II)"中出现了判定"强制性"的两种方法:形式主义解释路径和市场准入前提标准。本文认为,二者均以政府权力的行使作为出发点,但在政府权力行使到何种程度时争端措施便具有了强制性这一问题上产生了分歧。前者采取弹性标准,认为应当根据案情个案审查;后者采取刚性标准,认为只有当政府行为禁止不符合相关要求的产品进入其国内市场时,该措施才具有强制性。相比之下,采取形式主义路径解释"强制性",区分技术法规和标准,更有利于打击监管保护主义,同时也不会必然侵蚀国家监管的自主权。The key distinction between technical regulation and standard in TBT Agreement is that the former is mandatory,while the latter is not. There are two different methods to the interpretation of "mandatory"in US-Tuna( II) : formalism approach and market access' s precondition standard. This paper shows that both of them take the exercise of government authority as their starting point,however,they hold divergent views on the issue that when the disputed measure become"mandatory"because of the exercise of government authority. The formalism approach applies an elastic criterion to this issue which means that the DSB should consider all the facts on the basis of case by case; the market access' s precondition standard applies a rigid criteria,i. e.,only when the governmental actions do not grant foreign products which do not meet the requirements of the disputed measure the access to its domestic market,the measure become"mandatory". To distinguish the technical regulation and standard on the basis of formalism approach,which would not inevitably erode the state regulatory autonomy,to the "mandatory",is more helpful to combat the regulatory protectionism.