Non-tariff measures
(NTMs), including sanitary and phytosanitary (SPS) and technical barriers to
trade (TBT) represent some of the more difficult areas
for the AEC. Unlike tariff measures,
which are applied by definition only at the border, NTMs can be applied after
the goods have crossed the border. The
potential for discrimination against imported goods through NTMs that are
actually non-tariff barriers (NTBs) is thusly persistent, and can involve all
aspects of government policy, not just border measures.
As a matter of
administration, NTMs present three fundamental problems:
- Identifying the NTMs that are actually NTBs. This includes both existing NTBs and NTBs that have been newly created.
- Rectifying the NTBs so that the barriers to trade are eliminated.
- Sanctioning in cases where the rectification efforts have not been satisfactorily undertaken.
The combined effect of achieving these goals would be to harmonize ASEAN
national regulations so that goods are treated consistently within the AEC.
Furthermore, should an ASEAN member state adopt or implement a regulation in a
manner inconsistently with the rest of ASEAN, the relevant ASEAN institutions
could take measures to ensure compliance.
These provisions thus support the creation of both the single production
base and the single market. With regard
to the former, investors in ASEAN could be certain that inputs purchased from
anywhere in ASEAN would meet minimum standards and would be mutually compatible. With regard to the latter, companies would be
certain that their goods would be accepted anywhere within ASEAN, their goods
having met the minimum standards.
Unlike the EU or NAFTA, however, ASEAN is attempting to tackle the
complex issues of NTBs without sufficiently strong institutions. In the EU, the European Commission has broad
powers to investigate internal market conditions and to identify NTBs. The Commission and private actors can also
seek dispute resolution through the European courts against an EU member state
not in compliance with the EC treaty.
NAFTA’s NTBs have been largely addressed at the intergovernmental level,
but the possibility that regulatory measures can be brought before a NAFTA
arbitration panel under Article 11 of the treaty also helps ensure compliance.
Hence the ASEAN experience with regard to NTBs has been somewhat mixed,
particularly with regard to the three issues raised earlier.
First, the identification of existing NTBs has been an extended process
in ASEAN, involving both self-reporting by ASEAN member states and original
inquiries by the ASEAN Secretariat.
However, without coercive authority, the ASEAN Secretariat may have
difficulties in its investigations. Although
there exists a mechanism for the private sector to complain about alleged NTBs,
the process is slow and hampered by the ASEAN Secretariat’s relative lack of
authority.
Second, the process of eliminating NTBs through harmonized standards can
be very lengthy. The ASEAN cosmetics
directive was issued in 2002, itself the result of years of industry lobbying
of the ASEAN member states and the ASEAN Secretariat. Yet without any legally authority to force
the ASEAN member states to adopt the directive in their national regulations,
it took almost a decade for region-wide implementation of the directive. In the EU, by comparison, European Commission
directives on standards are implemented relatively quickly, as the Commission’s
directives have much greater force of law.
Third, ensuring compliance with ASEAN standards or that national
standards are not used to block the flow of goods is difficult. The AEC Scorecard has the limited force of
negative publicity and peer pressure.
Dispute resolution under the EDSM is not available to private actors and
ASEAN member states are reluctant to invoke it.
As a result, implementation at the national level in ASEAN is relatively
haphazard. For example, national standards in steel products vary, and are
interpreted inconsistently (and often administered with lengthy delays) such as
to constitute a non-tariff barrier. In another example, a company faced with an
ASEAN member state’s deviation from the ASEAN cosmetics directive has no legal
recourse to seek relief.
The
complexity of NTBs thus presents ASEAN with major challenges. NTBs go beyond
national borders, making investigation and monitoring of ASEAN member states’
internal policies and regulations vital. Furthermore, ensuring compliance and
rectifying NTBs also requires ensuring that various levels of ASEAN member
states’ government authorities actually understand and follow ASEAN-wide
measures. Yet the limited powers of the
ASEAN Secretariat, along with ASEAN’s long tradition of non-interference in the
internal matters of its members, make the challenges of dealing with NTBs that
much more difficult. If the AEC is to
achieve a single production base, NTBS must be addressed on a continuing,
effective basis.
