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EYIEL Monographs
Studies in European and International Economic Law 29

Iulianna Romanchyshyna

Technical Barriers
to Trade in “New
Generation” RTAs
and in the WTO
Agreements
Conflict or Complementarity?
European Yearbook of International Economic Law

EYIEL Monographs - Studies in European

and International Economic Law

Volume 29

Series Editor
Marc Bungenberg, Saarbrücken, Germany
Christoph Herrmann, Passau, Germany
Markus Krajewski, Erlangen, Germany
Jörg Philipp Terhechte, Lüneburg, Germany
Andreas R. Ziegler, Lausanne, Switzerland
EYIEL Monographs is a subseries of the European Yearbook of International
Economic Law (EYIEL). It contains scholarly works in the fields of European and
international economic law, in particular WTO law, international investment law,
international monetary law, law of regional economic integration, external trade law
of the EU and EU internal market law. The series does not include edited volumes.
EYIEL Monographs are peer-reviewed by the series editors and external reviewers.
Iulianna Romanchyshyna

Technical Barriers to Trade

in “New Generation” RTAs
and in the WTO Agreements
Conflict or Complementarity?
Iulianna Romanchyshyna
Brussels, Belgium

ISSN 2364-8392 ISSN 2364-8406 (electronic)

European Yearbook of International Economic Law
ISSN 2524-6658 ISSN 2524-6666 (electronic)
EYIEL Monographs - Studies in European and International Economic Law
ISBN 978-3-031-25790-2 ISBN 978-3-031-25791-9 (eBook)
https://doi.org/10.1007/978-3-031-25791-9

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland
AG 2023
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Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Books and Book Chapters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Journal Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2 “Deep” Trade Agenda and Multilateralism . . . . . . . . . . . . . . . . . . . 5
2.1 Changing Paradigms of Global Commerce: Towards a “Deep”
Trade Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 The Diversity of Technical Barriers to Trade . . . . . . . . . . . . . . . . 8
2.2.1 Technical Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2.2 Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2.3 Conformity Assessment . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.3 WTO as a Forum to Address a “Deep” Trade Agenda . . . . . . . . . 12
2.3.1 Cornerstone of Trade Liberalization at the WTO . . . . . . . . 12
2.3.2 Overview of WTO Legal Disciplines Related to TBT . . . . 15
2.3.3 Constraints to Furthering Liberalization of TBT at the
WTO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
2.4 Towards a “Deep” Trade Agenda in RTAs . . . . . . . . . . . . . . . . . 39
2.5 Global Trade Governance Structure: An Integrated Approach . . . . 41
2.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Books and Book Chapters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Journal Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Other Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Research Papers of International Organizations and Research
Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3 Regionalism and Multilateralism: The WTO Perspective . . . . . . . . . 47
3.1 Historical Background on Regionalism . . . . . . . . . . . . . . . . . . . . 47
3.1.1 Origins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
3.1.2 Evolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

v
vi Contents

3.2 Classic Theory of Regionalism . . . . . . . . . . . . . . . . . . . . . . . . . . 57

3.2.1 The Static Time-Path Question: Trade Creation, Trade
Diversion, “Spaghetti Bowl” . . . . . . . . . . . . . . . . . . . . . . 58
3.2.2 The Dynamic Time-Path Question: “Building” or
“Stumbling” Block . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
3.3 Rethinking the Classic Theory of Regionalism in View of TBT
Complexity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
3.3.1 The Static Time-Path Question . . . . . . . . . . . . . . . . . . . . 61
3.3.2 The Dynamic Time-Path Question and the “Laboratory
Effect” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
3.4 RTAs’ Limitations in Securing “Outcome Multilateralism” . . . . . 63
3.5 Legal Analysis on the Interconnection Between Existing WTO
TBT Rules and RTAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
3.5.1 Harmonization and Mutual Recognition: Definitions . . . . . 65
3.5.2 RTAs’ Harmonization . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
3.5.3 Mutual Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
3.5.4 Is the Regional Exception Clause Available? . . . . . . . . . . 74
3.5.5 Proposal to Clarify Recognition Provisions of the TBT
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
3.5.6 Interim Conclusion for Sect. 3.5 . . . . . . . . . . . . . . . . . . . 93
3.6 From Regional Towards Multilateral Agenda . . . . . . . . . . . . . . . 93
3.6.1 Why There Is a Need to Multilateralize Regional
Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
3.6.2 Options for Multilateralizing RTA Cooperation . . . . . . . . 96
3.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Books and Book Chapters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Journal Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Other Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Research Papers of International Organizations and Research
Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
4 Development of TBT Rules in EU and US RTAs . . . . . . . . . . . . . . . 107
4.1 EU and US “Deep” Trade Agenda and Multilateralism . . . . . . . . 107
4.1.1 EU Trade Policy and a “Deep” Trade Agenda . . . . . . . . . 108
4.1.2 US Trade Policy and a “Deep” Trade Agenda . . . . . . . . . 117
4.2 TBT in the EU FTAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
4.2.1 Mapping the Instruments to Tackle TBT Across EU
FTAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
4.2.2 Harmonization and Orientation Towards International
Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
4.2.3 Mutual Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
4.2.4 Innovative Approaches: Regulatory Cooperation and Good
Regulatory Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
4.2.5 TBT and Environmental Considerations . . . . . . . . . . . . . . 147
Contents vii

4.2.6 TBT and Digital Products . . . . . . . . . . . . . . . . . . . . . . . . 149

4.3 TBT in US FTAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
4.3.1 KORUS FTA and USMCA . . . . . . . . . . . . . . . . . . . . . . . 150
4.3.2 Harmonization and Orientation Towards International
Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
4.3.3 Equivalence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
4.3.4 Mutual Recognition and Other Conformity Assessment
Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
4.3.5 Innovative Approaches: Regulatory Cooperation and Good
Regulatory Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
4.3.6 TBT and Environmental Considerations . . . . . . . . . . . . . . 166
4.3.7 TBT and Digital Products . . . . . . . . . . . . . . . . . . . . . . . . 168
4.4 Multilateralizing Regional Cooperation . . . . . . . . . . . . . . . . . . . . 169
4.4.1 Focusing on Possibilities, Rather Than Impediments . . . . . 169
4.4.2 Multilateral Dimension of Substantive Cooperation . . . . . 171
4.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Books and Book Chapters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Journal Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Other Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Research Papers of International Organizations and Research
Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 187
International Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 187
Official Documents of Issued by Governments and International
Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 188
WTO Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 190
Other Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 192
Chapter 1
Introduction

In the context of the changing nature of global trade, where tariffs are becoming less
relevant and non-tariff measures (NTMs) are gaining prominence, it is important to
find ways to fill in the gap in the global trade governance, which would reflect
today’s realities. In a situation where the WTO is lagging behind in fulfilling this
task, regional trade agreements (RTAs) come to the forefront to respond to a demand
for new trade rules. However, with a growing number of RTAs, a question arises as
regards their interrelation with the WTO system.
This study explores the following research question: what is the interrelation
between cooperation on technical barriers to trade (TBT) in RTAs and the WTO
system? More precisely, the task of this research is to examine in detail whether the
TBT facilitation methods in RTAs go in line with the WTO approach, and whether,
drawing from the RTAs experience, the WTO could improve its TBT-related
disciplines and institutional procedures. A part of this research is dedicated to
examining the approach of the European Union (EU) and the United States
(US) in disciplining technical barriers to trade in their trade agreements, as these
trade agreements, as a rule, contain the most ambitious agenda on the issue, and,
therefore, could be instrumental in understanding the trend of TBT rules addressed
within RTAs and might also serve as an inspiration for future multilateral rules and
procedures.
In general, the subject of a relationship between regionalism and multilateralism
is not new in academic literature. It has been explored in earlier works of Jagdish
Bhagwati,1 Jacob Viner,2 as well as more recent works of Caroline Freund,3 Thomas

1
Bhagwati (1992).
2
Viner (1950).
3
Freund (2000b).

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 1

I. Romanchyshyna, Technical Barriers to Trade in “New Generation” RTAs
and in the WTO Agreements, EYIEL Monographs - Studies in European and
International Economic Law 29, https://doi.org/10.1007/978-3-031-25791-9_1
2 1 Introduction

Cottier,4 Sungjoon Cho,5 etc. However, most of the sources on this issue are still
focusing on tariffs and other border measures, while sources on regionalism and
multilateralism in the context of non-tariff measures are lacking. This study builds
on the existing literature on regionalism in relevant parts. It also draws from the
studies examining certain particular aspects of the research question. For instance,
on the issue of applicability of the regional integration exception to measure beyond
tariffs and other border restrictions, studies by Joel Trachtman,6 Lorand Bartels,7
James Mathis,8 Nicolas Lokhard and Andrew Mitchel9 exploring the particular
features of Article XXIV of the GATT provide important insights. Likewise, studies
by Bollyky and Mavroidis,10 Rudolf Adlung and Hamid Mamdouh,11 and Robert
Basedow,12 are instrumental in analyzing the possibilities to transform the WTO
system and adjust it to new realities.
Research methods used when writing this study involve doctrinal research,
including study of legal sources, such as the WTO Agreements, panel and Appellate
Body Reports, as well as discourse analysis, i.e., study of various opinions of
academics and legal practitioners in academic journals, books, and news articles.
The structure of this research is the following.
Chapter 2 sets the scene for the ensuing chapters by analyzing the increasing
relevance of TBT for global commerce and the way they are addressed at the WTO.
It reflects on the limitations, as well as the benefits of the WTO in addressing TBT
measures. Further, it pinpoints that the gaps in global trade governance are often
addressed in RTAs and briefly explains the methods, which are used in RTAs. It
suggests that RTAs could act as complements to the WTO rules, but to avoid
fragmentation, they should also go in line with basic WTO disciplines. Furthermore,
considering the benefits of the WTO as a multilateral forum, it could be desirable for
some of the RTA provisions to be addressed within the WTO framework.
Chapter 3 examines how TBT cooperation in RTAs fits into the debate on
regionalism and multilateralism. To do this, it firstly provides a theoretical under-
pinning of the analysis by reviewing the historical account on the issue and studying
the classic theory. Further, it reviews how TBT in RTAs could fit into this paradigm
and what are the RTAs’ limitations. This is supplemented by a legal analysis of some
of the TBT cooperation methods in RTAs in terms of their consistency with
respective WTO disciplines. Chapter 3 also explores another facet of the discussion
on regionalism and multilateralism: whether TBT cooperation in RTAs might be

4
Cottier et al. (2015), pp. 465–496.
5
Cho (2001).
6
Trachtman (2003).
7
Bartels (2005).
8
Mathis (1998).
9
Lokhard and Mitchell (2005), p. 236.
10
Bollyky and Mavroidis (2017).
11
Adlung and Mamdouh (2018), pp. 93–102.
12
Basedow (2018), p. 417.
References 3

further multilateralized and which institutional instruments and procedures at the

WTO could serve this process. It avoids analyzing the political constraints for such
process, but rather focuses on the legal instruments and methods.
Chapter 4 focuses more specifically on the TBT provisions in free trade agree-
ments of the European Union and the United States as major rule makers in the area
of TBT cooperation. It analyses the most recent EU and US approaches to TBT in
their free trade agreements to understand the direction of TBT liberalization, the
instruments that countries are using in this regard, and how these instruments
interrelate with the WTO disciplines. Also, this Chapter speculates on which issues
from the EU and US FTA agenda on TBT could be brought to the multilateral level.

References

Books and Book Chapters

Cottier T, Sieber C et al (2015) The dialectical relationship of preferential and multilateral trade
agreements. In: Dür A, Elsig M (eds) Trade cooperation: the purpose, design and the effects of
preferential trade agreements. Cambridge University Press, Cambridge, pp 465–496
Lokhard N and Mitchell A (2005) Regional Trade Agreements under GATT 1994: an exception and
its limits. In: Mitchel A (ed) Challenges and prospects for the WTO. Cameron May, London,
pp. 217-252
Viner J (1950) The Customs Union Issue. Carnegie Endowment for International Peace, New York

Journal Articles

Adlung R, Mamdouh H (2018) Plurilateral agreements: an escape route for the WTO. J World
Trade 52(1):85–111
Bartels L (2005) The legality of the EC mutual recognition clause under the WTO law. J Int Econ
Law 8(3):691–720
Basedow R (2018) The WTO and the rise of plurilateralism – what lessons can we learn from the
European Union’s experience with differentiated integration. J Int Econ Law 21(1):411–431
Bhagwati J (1992) Regionalism versus multilateralism. World Econ 15(5):535–556
Bollyky T, Mavroidis P (2017) Trade, social preferences and regulatory cooperation. The new
WTO-think. J Int Econ Law 20(1):1–30
Cho S (2001) Breaking the barrier between regionalism and multilateralism: a new perspective on
trade regionalism. Harv Int Law J 42(2):419–465
Freund C (2000b) Multilateralism and endogenous formation of Free Trade Agreements. J Int Econ
52(2):359–376
Mathis J (1998) Mutual recognition agreements. Transatlantic parties and the limits to non-tariff
barrier regionalism in the WTO. J World Trade 32(6):5–31
Trachtman J (2003) Towards open recognition? standardization and regional integration under
Article XXIV of the GATT. J Int Econ Law 6(2):459–492
Chapter 2
“Deep” Trade Agenda and Multilateralism

2.1 Changing Paradigms of Global Commerce: Towards

a “Deep” Trade Agenda

The paradigms of global commerce are changing at a great pace with production and
distribution processes being unbundled across countries via global value chains
(GVCs), facilitated through rapid technological growth modifying the channels of
communication, manufacturing and trade leading to greater interconnectedness
between countries and creating a demand for closer cooperation, including not
only on tariffs—traditional trade barriers, but also on NTMs.1 The significance of
tariffs is decreasing, since they have already been reduced to a large extent globally
following the trade liberalization efforts of the last couple of decades, while NTMs
often present new trade barriers.
There have been numerous studies that tried to capture the effects of NTMs. For
instance, a study performed jointly by the United Nations Conference in Trade and
Development (UNCTAD) and the World Bank (covering 109 countries and 90 per
cent of world trade) essentially confirmed that NTMs affect around 80 per cent of
trade and in most sectors their restrictiveness is higher compared to tariffs.2 More-
over, the study emphasized their growing impact on international trade and indicated
that they will have a direct effect on the future economic growth overshadowing
tariffs and other restrictions applied at the border.

1
See Gereffi et al. (2005), Baldwin (2014), Baldwin (2016), pp. 79–110 (See paragraphs arguing for
the fundamental importance of information and communication technologies in the new dynamics
of globalization).
2
UNCTAD and World Bank (2017) The Unseen Impact of Non-Tariff Measures: Insights from a
New Database, p. iv. http://unctad.org/meetings/en/SessionalDocuments/ditc-tab-MC11-
UNCTAD-NTMs.pdf. Accessed 1 Nov 2022.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 5

I. Romanchyshyna, Technical Barriers to Trade in “New Generation” RTAs
and in the WTO Agreements, EYIEL Monographs - Studies in European and
International Economic Law 29, https://doi.org/10.1007/978-3-031-25791-9_2
6 2 “Deep” Trade Agenda and Multilateralism

Technical barriers to trade have a particular significance. The UNCTAD and

World Bank study demonstrates that TBT measures are by far the most widely used
type of NTMs having the most profound effects in terms of trade value and product
coverage affecting around 65 per cent of world trade and 35 per cent of product
lines.3 These technical measures cause compliance costs for producers, which may
be far more burdensome than tariffs. They may inhibit trade in various ways. For
example, producers have to comply with regulations on product design and pack-
aging in different destination markets and thereby spend additional verification costs
for mandatory labelling,4 as well as for procedures such as testing and certification to
assess the conformity of products with environmental and health regulations. Dif-
ferences in regulations may also induce producers to establish separate production
lines leading to higher costs and preventing economies of scale. Procedures of
assessing the conformity of products with environmental and health regulations
may be duplicative and unduly burdensome. Moreover, these measures are less
transparent than tariffs and therefore produce uncertainty and additional costs for
importers. There is an important development dimension of these policies too as
TBT are by far mostly applied by developed countries—three times as much as by
least developed countries. For the most part, they negatively impact low-income
countries.5
Issues related to domestic regulation in a broad sense are a subject of international
cooperation at various levels and at multiple fora. For instance, the Organisation for
Economic Cooperation and Development (OECD) and the Asia - Pacific Economic
Cooperation forum (APEC) are especially proactive fora for fostering good regula-
tory practices and dialogue.6 In fact, regulatory policy is among the key areas of their
work, within which they produce multiple intergovernmental initiatives. In one of its
research papers, the OECD takes stock of multiple methods to deal with regulatory
divergences and classifies them into eleven categories—from soft law instruments,
such as regulatory dialogue and subscription to the OECD guidelines and principles
of good governance, to binding instruments, such as intergovernmental agreements
on harmonization and mutual recognition.7
It is important to note that because of the link between trade and regulatory areas,
more and more regulatory issues are addressed specifically within the context of
trade. In its study, the OECD elucidates the link between trade and regulation and, by

3
Ibid., p. 6.
4
Hobbs (2007), p. 397.
5
UNCTAD and World Bank (2017) The Unseen Impact of Non-Tariff Measures: Insights from a
New Database, p. iv. http://unctad.org/meetings/en/SessionalDocuments/ditc-tab-MC11-
UNCTAD-NTMs.pdf. Accessed 1 Nov 2022, p. 10.
6
The OECD and APEC also have a joint initiative. It is called “The APEC-OECD Cooperative
Initiative on Regulatory Reform”, https://www.oecd.org/gov/regulatory-policy/apec-oecd-initia
tive-regulatory-reform.htm. Accessed 1 Nov 2022.
7
OECD (2013) International Regulatory Cooperation: Addressing Global Challenges. OECD
Publishing, Paris, p. 21. https://read.oecd-ilibrary.org/governance/international-regulatory-co-
operation_9789264200463-en#page25. Accessed 1 Nov 2022.
2.1 Changing Paradigms of Global Commerce: Towards a “Deep” Trade Agenda 7

referring to various economic papers on specific aspects of regulatory heterogeneity,

pinpoints a significant untapped potential that reducing technical barriers might have
for economic growth.8 Especially, it is relevant for global value chains (GVC) trade,
where regulatory divergences in various jurisdictions significantly add to the cost of
the final product. The regulatory heterogeneity may lead to accumulation of behind
the border measures along the supply chain meaning that their “trade-distorting
effects are greater for goods produced in a fragmented manner than goods with
simple production processes”.9 The case-study performed by the OECD focusing on
the example of selected Latin American countries, demonstrated the negative corre-
lation between the NTMs restrictiveness (mainly TBT and sanitary and
phytosanitary measures (SPS)) and GVCs participation. It estimated that the costs
of NTMs overall could add around 20 per cent of the tariff equivalent to the price of
primary intermediate goods and twelve per cent for processed ones.10 Therefore, it is
fair to assume that these measures would represent an avenue where future trade
liberalization efforts will be focusing on. One of the WTO annual trade reports
specifically stresses out the growing relevance of regulatory measures in the glob-
alized world and a need to incorporate them in future trade liberalization efforts.11
Another issue relevant in the context of the changing paradigms of global
commerce is the expanded regulatory need to protect consumers, the environment
and other societal values.12 Increasing production and trade via GVCs creates
increased sensitivities in these areas, exposing the risk of a “race to the bottom”
(when regulators weaken the levels of protection to maintain competitive advan-
tage).13 Therefore, it is clear that future trade agreements also have to address those
public policy issues in a more comprehensive manner.

8
OECD (2017) International Regulatory Co-operation and Trade. Understanding the Trade Costs of
Regulatory Divergence and the Remedies. OECD Publishing, Paris. https://www.oecd.org/gov/
international-regulatory-co-operation-and-trade-9789264275942-en.htm. Accessed 1 Nov 2022.
9
Ferrantino M (2012) Using Supply Chain Analysis to Examine the Costs of Non-Tariff Measures
and the Benefits of Trade Facilitation. Staff Working Paper of the WTO Economics Research and
Statistics Division, p. 1. https://www.wto-ilibrary.org/content/papers/25189808/121/read.
10
OECD (2016) Participation in Global Value Chains in Latin America. Implications for Trade and
Trade-Related Policy. OECD Publishing, Paris, p. 54. https://www.oecd-ilibrary.org/trade/
participation-in-global-value-chains-in-latin-america_5jlpq80ts8f2-en. Accessed 2 Nov 2022.
11
WTO (2012) World Trade Report: Trade and Public Policies: A Closer Look at Non-Tariff
Measures in 21st Century, p. 161.
12
Ibid., p. 174.
13
See Bull et al. (2015), p. 24.
8 2 “Deep” Trade Agenda and Multilateralism

2.2 The Diversity of Technical Barriers to Trade

Before discussing the international legal framework for technical barriers to trade in
more detail, it is due to make clear which forms these barriers take. This research
follows an understanding on technical barriers to trade, as identified in the WTO
Agreement on Technical Barriers to Trade (TBT Agreement). The TBT Agreement
defines the following three categories of TBT measures:
i. Technical regulations
ii. Standards
iii. Conformity assessment procedures

2.2.1 Technical Regulations

Technical regulation, as clarified in the Annex 1 of the TBT Agreement, is defined as

follows:
Document which lays down product characteristics or their related processes and production
methods, including the applicable administrative provisions, with which compliance is
mandatory. It may also include or deal exclusively with terminology, symbols, packaging,
marking or labelling requirements as they apply to a product, process or production method.

In other words, technical regulations are technical prescriptions of mandatory force

regarding the characteristics of the products themselves or the way they are pro-
duced, including labelling, packaging, etc. They are usually adopted by govern-
ments, although Article 3 of the TBT Agreement also foresees that technical
regulations might come from non-governmental bodies, if granted mandatory force.
As a rule, such regulations have a certain public policy objective and, although
their effects could be trade restrictive, it might be justified by the public policy goal
in question. The examples of such measures could be found in WTO case law:
prohibition of the products containing asbestos (EC – Asbestos), a requirement to
provide plain packaging for tobacco cigarettes (Australia – Tobacco Plain Packag-
ing), etc.14 These examples of the measures were aimed to deal with public health
concerns.

2.2.2 Standards

“Standards” are oftentimes conflated with “technical regulations” and both terms are
often used interchangeably. However, it is crucial that, according to the TBT

Appellate Body Report, EC – Asbestos, para. 72; Panel Report, Australia – Tobacco Plain
14

Packaging, paras. 7.142 and 7.145.

2.2 The Diversity of Technical Barriers to Trade 9

Agreement’s definition, standards have a distinctive feature: they do not have

mandatory force.15 The following definition of a “standard” applies:
Document approved by a recognized body, that provides, for common and repeated use,
rules, guidelines or characteristics for products or related processes and production methods,
with which compliance is not mandatory. It may also include or deal exclusively with
terminology, symbols, packaging, marking or labelling requirements as they apply to a
product, process or production method.

In fact, standards are technical specifications that may be produced by a variety of

actors (as follows from Article 4 of the TBT Agreement): governmental or
non-governmental organizations, international standardizing bodies such as the
International Standardising Organisation (ISO), International Electrotechnical Com-
mission (IEC), International Telecommunication Union (ITU) and others, or
regional standardizing bodies.16
It is relevant to note that in certain cases the lines between standards and technical
regulations may be somewhat blurred when governments endow standards with a
certain degree of legal force—for instance, by way of their direct reference in
legislation, in which case they may have a de facto similar trade affect as technical
regulations. Although industry standards a priori have nothing to do with govern-
ment regulations, governments might use them as a means to regulate (or co-regulate)
certain relations. The basic idea is to have flexible guidelines that, in contrast to rigid
laws, would easily adjust to fast-growing technological changes and innovative
solutions reflecting primarily certain business preferences. However, when a stan-
dard is used as the so-called “exclusive reference” (compliance with the given
standard is the one and only means to meet the requirement of a technical regula-
tion17), it is particularly restrictive. This might be illustrated with the example of the
US – Tuna case, where the US government restricted dolphin safe labelling to
compliance with a specific technical standard. Despite that the government did not
prevent market access for tuna without a label, it nevertheless constituted the only
way to display the “dolphin safe” status of tuna products, which put imported tuna in
a less competitive position as it could not be marketed as “dolphin safe” unless a
prescribed standard is strictly followed.18 Therefore, it limited significantly market-
ing opportunities of imported tuna and was found a de facto “technical regulation”.
Therefore, according to the understanding provided in the US – Tuna case, as soon as
standards are endowed with mandatory force by the government, they shall be
treated as technical regulations.
However, even without being used in legislation, standards per se may have a
powerful impact on the market. From the business perspective, a wide adoption of
certain standards leads to increased interoperability between technologies that would
facilitate business operations and increase trade within supply chains. Increased

15
See also Romanchyshyna (2019), p. 4.
16
Appleton (2017), p. 412.
17
ISO and IEC (2004) ISO/IEC Guide 2. Standardisation and Related Activities, p. 17.
18
Panel Report, US – Tuna, para. 7.144.
10 2 “Deep” Trade Agenda and Multilateralism

interoperability could also have positive implications for innovation and develop-
ment. For instance, a number of studies show that standards bring about economic
growth by codifying technological know-how. 19
This could also impact the competition in the market, for instance, in a situation
when companies using different technical solutions find themselves in a competitive
disadvantage being de facto forced to adjust to a given standard. Standards might
have a significant effect on supply chains. One of the examples could be competition
between video standards VHS and Betamax: since the former became more com-
monly used, despite the availability of Betamax video recorders on the market,
consumers would prefer VHS as most of videotapes they could buy or rent
implemented this format.20 Another example could be a direct prescription of
some market actors to use a certain standard as a condition for a contractual
relationship—for instance, a supermarket chain requiring its suppliers to use a
certain label.21
It is also important to point out that standards include certain technical specifica-
tions to reduce a variety of production processes which prevents economies of scale.
A large extent of standards (which distinguishes them from technical regulations) are
not even concerned with public policy objectives such as health, safety, environ-
ment, etc. They simply deal with technical and business aspects.22 Nevertheless, in
many cases, those issues are directly or indirectly related to matters of public policy.
There is another angle of standardization, which is related to strategic concerns.
Peter Swann draws attention to the “competitive advantage” rationale, which is built
on the premise that with the diffusion of standards, domestic companies “use their
home market base to build international market share”.23
The benefits of international standardization have been widely recognized, as a
way to attain interoperability, economic growth, ensure the use of best technologies
and to elevate the protection of certain values.24 This is a variety of organizations,
such as the International Standardisation Organisation (ISO), International
Electrotechnical Committee (IEC), International Telecommunication Union (ITU),
the work of which is dedicated to promotion of international standards around the
world.

19
Blind et al. (2000) The Economic Benefits of Standardization, German Institute for Standardiza-
tion (DIN). https://www.din.de/blob/89552/68849fab0eeeaafb56c5a3ffee9959c5/economic-bene
fits-of-standardization-en-data.pdf. Accessed 1 Nov 2022; Blind and Jungmittag (2008); Menon
Economics (2018) The Influence of Standards on the Nordic Economies. https://www.menon.no/
wp-content/uploads/2018-31-Nordic-market-study-influence-of-standards.pdf. Accessed
1 Nov 2022.
20
Appleton (2005), p. 379.
21
Wouters et al. (2008), p. 15.
22
Correia de Brito et al. (2016), p. 22.
23
Swann (2000), p. 17.
24
Wagner (2013), p. 241.
2.2 The Diversity of Technical Barriers to Trade 11

2.2.3 Conformity Assessment

Finally, as regards conformity assessment procedures, Annex 1 of the TBT Agree-

ment defines them as measures to assess whether requirements of technical regula-
tions and standards are met.
Any procedure used, directly or indirectly, to determine that relevant requirements in
technical regulations or standards are fulfilled.

The explanatory note also clarifies the following:

Conformity assessment procedures include, inter alia, procedures for sampling, testing and
inspection; evaluation, verification and assurance of conformity; registration, accreditation
and approval as well as their combinations.

As we could derive from this definition, the infrastructure of conformity assessment

could have multiple levels and forms. There are, first of all, activities, which deal
with assessing the characteristics of a product itself:
(1) Supplier’s declaration of conformity: an assurance issued by the manufacturer or
importer that a product conforms to specified requirements. It is based on either
the supplier’s own testing, or the results of third-party institutions and is
admissible, as a rule, where there is no significant risk involved.
(2) Testing and inspection: a set of procedures to determine the characteristics of a
product, often based on random samples that may be performed by the supplier,
regulatory authorities or commercial bodies at the request of a supplier.
(3) Certification and quality systems registration: Certification is a set of procedures
to evaluate whether process or product characteristics conform to a certain
standard, which is not necessary for testing and inspection, and it is usually
performed by a third party independent from the supplier. Apart from certifica-
tion of products, there is also a quality systems registrations, which is the audit of
the conformity of supplier’s systems, such as the quality management system, to
ensure that there is no variation in the quality of the production.25
In addition, there is such an element of conformity assessment infrastructure as
accreditation, which is, according to the ISO/IEC Guide 2:1991, a “[p]rocedure by
which an authoritative body gives formal recognition that a body or person is
competent to carry out specific tasks”.26 In other words, accreditation is the autho-
rization of conformity assessment bodies. In contrast to testing, inspection and
certifications that are more commonly performed by commercial bodies,

25
WTO (2005) World Trade Report: Exploring the Links between Trade, Standards, and the WTO,
pp. 97–100.
26
ISO/IEC Guide 2:1991: General Terms and Their Definitions Concerning Standardization and
Related Activities, para. 13.7. The TBT Agreement (Annex 1) incorporates the terms of this guide.
12 2 “Deep” Trade Agenda and Multilateralism

accreditation is a government responsibility.27 At the same time, it is relevant to

mention that the definition of accreditation could also refer to the work of interna-
tional bodies, which promote more uniform principles for accreditation criteria. In
this respect, the work of such international organizations as the International Labo-
ratory Accreditation Cooperation (ILAC) and the International Accreditation Forum
(IAF) could be relevant.
Conformity assessment procedures are necessary elements of the regulatory
process, which aim to ensure that the respective goals of technical regulations and
standards are achieved. At the same time, it could be imagined that the conformity
assessment requirements themselves might have a protectionist motive or simply be
inefficient and more burdensome than necessary to demonstrate the conformity of
certain products with regulatory requirements, which might contribute to processing
time and costs.
It is important to point out the above definitional clarification at the outset, as we
will see further that a distinction between variety of forms reflects on the legal
disciplines in the TBT Agreement, as well as has an impact on further international
cooperation manifested in different roles for the countries’ engagement.

2.3 WTO as a Forum to Address a “Deep” Trade Agenda

The original GATT 1947 was designed in the era when tariffs and other border
measures were the primary target of the trade liberalization agenda and thus they are
more apt to deal with these kind of restrictions, rather than non-tariff measures. Over
the years, the GATT/WTO system has demonstrated its ability to adapt towards the
realities of global commerce, however in within the recent decades, the progress has
been quite slow. This section reflects on the development of the GATT/WTO
system, how the non-tariff measures appeared on the agenda and what are the
constraints for further progress on disciplining these kind of measures.

2.3.1 Cornerstone of Trade Liberalization at the WTO

Since its inception in the aftermath of the Second World War, the idea of the GATT
system (and afterwards the WTO) has been to promote trade liberalization to end the
“beggar thy neighbour” trade policies that were causing economic instability. The
context of the early GATT years prompted the multilateral rounds of negotiations to
be focused primarily on tariffs, although it is fair to state that the GATT from the

27
It is also relevant to note that conformity assessment relies on metrology, which is the work of
special calibration laboratories to develop reference standards for measurement to be used by
conformity assessment bodies. See WTO (2005) World Trade Report, p. 97.
2.3 WTO as a Forum to Address a “Deep” Trade Agenda 13

outset was not only a tariff deal. Aside from disciplining tariffs and other border
measures, like quotas (Article XI GATT) or anti-dumping duties (Article VI), it
applied to a broad range of measures of discriminatory nature by incorporating the
MFN (Article I) and the national treatment (Article III) principles. Significantly, it
also accommodated public policy concerns by putting forward a list of exceptions
(Article XX and XXI). In the GATT era, however, addressing non-tariff measures
was mainly aimed at ensuring that they would not be used as a back door for
protectionism frustrating the contracting parties’ market access commitments.28
The non-discrimination provisions to which regulatory measures were subject to
would constitute “negative” or “shallow” forms of integration, which do not require
specifically that the parties cooperate, but proscribe discrimination of WTO Mem-
bers.29 Going deeper into the domestic policy arena with the objective of providing
regulatory coherence was not yet on the radars at the time of GATT creation.
At the time, however, the multilateral system proved to be prone to adjustments to
reflect the realities of global commerce. The Tokyo Round (1973–1979) of trade
negotiations became in a way a game changer in setting up additional rules for
regulating non-tariff measures in several key areas, such as TBT, subsidies and
public procurement. It resulted in the adoption of the so-called “codes” that were
applied on a plurilateral basis meaning that they were binding only upon a certain
group of the GATT contracting parties. In fact, the first substantial calls for regulat-
ing some of these areas appeared before at the Kennedy Round (1964–1967) where
the contracting parties recognized that “trade negotiations should cover not only
tariffs but also non-tariff barriers” and identified the main topics for discussion
where domestic regulations used to hinder trade.30 A shift of attention towards
NTMs, as Billy Melo Araujo points out, was explained by a variety of factors,
including the changing patterns of global commerce resulting from transportation
and telecommunication developments, but also the fact that tariffs had already been
reduced significantly throughout the previous GATT negotiating rounds putting a
spotlight on other measures undermining free trade.31 The Tokyo Round’s codes
materialized the solutions on NTMs into the substantive legal instruments.
With regard to TBT, the Tokyo Round produced the so-called “Standards Code”,
the predecessor of the TBT Agreement. Building on the GATT, it also incorporated
provisions on non-discrimination, but went deeper into the domestic policy domain.
Non-discrimination remained at the core of the Standards Code (and later the TBT
Agreement) covering both the MFN and national treatment principles. However,
some new additions emerged. In particular, the signatories were proscribed from
adopting regulations that were more trade restrictive than necessary to achieve
legitimate regulatory objectives, and they had to base their regulations on relevant

28
WTO (2012) World Trade Report, p. 41.
29
On “deep” and “shallow” integration, see, e.g., Lawrence (1996), p. 17; On “negative” and
“positive” integration, see Tinbergen (1954), p. 4.
30
GATT (1963) Kennedy Round of Trade Negotiations - Forthcoming Meetings, GATT/873.
31
Melo Araujo (2016), p. 14.
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The Project Gutenberg eBook of Journal of a
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JOURNAL
OF A

RESIDENCE IN AMERICA.
 JOURNAL
OF A
RESIDENCE IN AMERICA.

BY

FRANCES ANNE BUTLER

(MISS FANNY KEMBLE).

IN ONE VOLUME.

PARIS,
PUBLISHED BY A. and W. GALIGNANI and Co,
RUE VIVIENNE, No 18.

1835.
 PREFACE.

A preface appears to me necessary to this book, in order that the

expectation with which the English reader might open it should not
be disappointed.
Some curiosity has of late been excited in England with regard to
America: its political existence is a momentous experiment, upon
which many eyes are fixed, in anxious watching of the result; and
such accounts as have been published of the customs and manners
of its societies, and the natural wonders and beauties of its scenery,
have been received and read with considerable interest in Europe.
This being the case, I should be loth to present these volumes to the
English public without disclaiming both the intention and the
capability of adding the slightest detail of any interest to those which
other travellers have already furnished upon these subjects.
This book is, what it professes to be, my personal journal, and not a
history or a description of men and manners in the United States.
Engaged in an arduous profession, and travelling from city to city in
its exercise, my leisure and my opportunities would have been alike
inadequate to such a task. The portion of America which I have
visited has been a very small one, and, I imagine, by no means that
from which the most interesting details are to be drawn. I have been
neither to the south nor to the west; consequently have had no
opportunity of seeing two large portions of the population of this
country,—the enterprising explorers of the late wildernesses on the
shores of the Mississippi,—and the black race of the slave slates,—
both classes of men presenting peculiarities of infinite interest to the
traveller: the one, a source of energy and growing strength, the
other, of disease and decay, in this vast political body.
My sphere of observation has been confined to the Atlantic cities,
whose astonishing mercantile prosperity, and motley mongrel
societies, though curious under many aspects, are interesting but
under few.
What I registered were my immediate impressions of what I saw and
heard; of course, liable to all the errors attendant upon first
perceptions, and want of time and occasion for maturer
investigation. The notes I have added while preparing the text for
the press; and such opinions and details as they contain are the
result of a longer residence in this country, and a somewhat better
acquaintance with the people of it.
Written, as my journal was, day by day, and often after the fatigues
of a laborious evening's duty at the theatre, it has infinite sins of
carelessness to answer for; and but that it would have taken less
time and trouble to re-write the whole book, or rather write a better,
I would have endeavoured to correct them,—though, indeed, I was
something of Alfieri's mind about it:—"Quanto poi allo stile, io penso
di lasciar fare alla penna, e di pochissimo lasciarlo scostarsi da quella
triviale e spontanea naturalezza, con cui ho scritto quest' opera,
dettata dal cuore e non dall' ingegno; e che sola puo convenire a
così umile tema."
However, my purpose is not to write an apology for my book, or its
defects, but simply to warn the English reader, before he is betrayed
into its perusal, that it is a purely egotistical record, and by no
means a history of America.
 JOURNAL.

Wednesday, August 1st, 1832.

Another break in my journal, and here I am on board the Pacific,
bound for America, having left home and all the world behind.—Well!
* * * * *
We reached the quay just as the ship was being pulled, and pushed,
and levered to the entrance of the dock;—the quays were lined with
people; among them were several known faces,—Mr. ——, Mr. ——.
M—— came on board to take my letters, and bid me good-by.
* * * * *
I had a bunch of carnations in my hand, which I had snatched from
our drawing-room chimney;—English flowers! dear English flowers!
they will be withered long before I again see land; but I will keep
them until I once more stand upon the soil on which they grew.
* * * * *
The sky had become clouded, and the wind blew cold.
* * * * *
Came down and put our narrow room to rights.
Worked at my Bible-cover till dinner-time. We dined at half-past
three.—The table was excellent—cold dinner, because it was the first
day—but every thing was good; and champagne, and dessert, and
every luxury imaginable, rendered it as little like a ship-dinner as
might be. The man who sat by me was an American; very good-
natured, and talkative. Our passengers are all men, with the
exception of three; a nice pretty-looking girl, who is going out with
her brother; a fat old woman, and a fat young one. I cried almost
the whole of dinner-time.
* * * * *
* * * * *
After dinner the ladies adjourned to their own cabin, and the
gentlemen began to debate about regulating the meal hours. They
adopted the debating society tone, called my poor dear father to the
chair, and presently I heard, oh horror! (what I had not thought to
hear again for six weeks) the clapping of hands. They sent him in to
consult us about the dinner-hour: and we having decided four
o'clock, the debate continued with considerable merriment. Presently
my father, Colonel ——, and Mr. ——, came into our cabin:—the
former read us Washington Irving's speech at the New-York dinner.
Some of it is very beautiful; all of it is in good feeling—it made me
cry. Oh my home, my land, England, glorious little England! from
which this bragging big baby was born, how my heart yearns
towards your earth! I sat working till the gentlemen left us, and then
wrote journal.
* * * * *
I am weary and sad, and will try to go and sleep.—It rains: I cannot
see the moon.

Thursday, 2d.
It rained all night, and in the morning the wind had died away, and
we lay rocking, becalmed on the waveless waters. At eight o'clock
they brought me some breakfast, after which I got up; while
dressing, I could not help being amused at hearing the cocks
crowing, and the cow lowing, and geese and ducks gabbling, as
though we were in the midst of a farm-yard. At half-past ten, having
finished my toilet, I emerged; and Miss —— and I walked upon
deck. The sea lay still, and grey, without ridge or sparkle, a sheet of
lead; the sky was of the same dull colour. The deck was wet and
comfortless. We were but just off Holyhead: two or three ships stood
against the horizon, still as ourselves. The whole was melancholy:—
and, sadder than all, sat a poor woman, dressed in mourning, in a
corner of the deck; she was a steerage passenger, and I never saw
so much sorrow in any face. Poor thing! poor thing! was her heart
aching for home, and kindred left behind her? It made mine ach to
look at her. We walked up and down for an hour. I like my
companion well; she is a nice young quiet thing, just come from a
country home. Came down, and began getting out books for my
German lesson, but, turning rather awful, left my learning on the
floor, and betook myself to my berth. Slept nearly till dinner-time. At
dinner I took my place at table, but presently the misery returned;
and getting up, while I had sufficient steadiness left to walk
becomingly down the room, I came to my cabin; my dinner followed
me thither, and, lying on my back, I very comfortably discussed it.
Got up, devoured some raspberry-tart and grapes, and, being
altogether delightful again, sat working and singing till tea-time:
after which, wrote journal, and now to bed. How strange it seems to
hear these Americans speaking in English of the English!—"Oh,
hame, hame, hame wad I be,"—but it is not time to sing that yet.

Friday, 3d.
Breakfasted at eight; got up, and dressed, and came upon deck. The
day was lovely, the sea one deep dark sapphire, the sky bright and
cloudless, the wind mild and soft, too mild to fill our sails, which
hung lazily against the masts,—but enough to refresh the warm
summer's sky, and temper the bright sun of August that shone
above us. Walked upon deck with Miss —— and Captain Whaite: the
latter is a very intelligent good-natured person; rough and bluff, and
only seven-and-twenty; which makes his having the command of a
ship rather an awful consideration. At half-past eleven got my
German, and worked at it till half-past one, then got my work; and
presently we were summoned on deck by sound of bell, and oyes!
oyes! oyes!—and a society was established for the good demeanour
and sociability of the passengers. My father was in the chair. Mr. ——
was voted secretary, Dr. —— attorney-general; a badge was
established, rules and regulations laid down, a code framed, and
much laughing and merriment thence ensued. Worked till dinner-
time. After dinner, went on deck, took a brisk walk for half an hour
with Captain Whaite. Established myself to work, and presently we
were all summoned to attend a mock trial of Colonel ——, which
made us all laugh most exceedingly. We adopted titles—I chose my
family appellation of Puddledock: many of the names were very
absurd, and as a penalty ensued upon not giving every body their
proper designation, much amusement arose from it. When the trial
was over, we played at dumb crambo, and earth, air, and water, with
infinite zeal, till tea-time. After tea, we were summoned on deck to
see the ship make a tack. The wind was against us, the sea inky
black, the pale clear moon stood high against the sail—presently,
with a whooping and yaw-awling that mocks description, the fair
ship was turned away from the wind, the sails veered round, and
she set in another course. We remained on deck, the gentlemen
gathered round us, and singing began:—it went round and round by
turns; some of our voices were very sweet, and, upon the whole,
'twas time pleasantly spent. Came to bed at ten.

Wednesday, 15th.
Here's a lapse! thanks to head winds, a rolling sea, and their result,
sickness, sadness, sorrow. I've been better for the last two days,
thank God! and take to my book again. Rose at eight, dawdled
about, and then came up stairs. Breakfasted, sat working at my
Bible-cover till lunch-time. Somebody asked me if I had any of Mrs.
Siddons's hair; I sent for my dressing-box, and forthwith it was
overhauled, to use the appropriate phrase, by half the company,
whom a rainy day had reduced to a state of worse than usual want
of occupation. The rain continued all day; we ladies dined in the
round-house, the room down stairs being too close. The Captain and
Colonel —— joined us afterwards, and began drinking champagne,
and induced us to do the same. As evening came on, the whole of
the passengers collected in the round-house. Mr. ——, Mr. D——,
and I wrote a rhapsody; afterwards they fell to singing; while they
did so, the sky darkened tremendously, the rain came pelting down,
the black sea swelled, and rose, and broke upon the ship's sides into
boiling furrows of foam, that fled like ghosts along the inky face of
the ocean. The ship scudded before the blast, and we managed to
keep ourselves warm by singing. After tea, for the first time since I
have been on board, got hold of a pack of cards, (oh me, that it ever
should come to this!) and initiated Miss —— in the mysteries of the
intellectual game. Mercy! how my home rose before me as I did so.
Played till I was tired; dozed, and finally came to bed. Bed! quotha!
'tis a frightful misapplication of terms. Oh for a bed! a real bed; any
manner of bed but a bed on shipboard! And yet I have seen some
fair things: I have seen a universe of air and water; I have seen the
glorious sun come and look down upon this rolling sapphire; I have
seen the moon throw her silver columns along the watery waste; I
have seen one lonely ship in her silent walk across this wilderness,
meet another, greet her, and pass her, like a dream, on the wide
deep; I have seen the dark world of waters at midnight open its
mysterious mantle beneath our ship's prow, and show below another
dazzling world of light. I have seen, what I would not but have seen,
though I have left my very soul behind me. England, dear, dear
England! oh, for a handful of your earth!

Thursday, 16th.
Another day, another day! the old fellow posts as well over water as
over land! Rose at about half-past eight, went up to the round-
house; breakfasted, and worked at my Bible-cover. As soon as our
tent was spread, went out on deck: took a longish walk with Mr.
——. I like him very much; his face would enchant Lavater, and his
skull ecstacise the Combes. Lay down under our rough pavilion, and
heard the gentlemen descant very learnedly upon freemasonry. A
book called "Adventures of an Irish Gentleman," suggested the
conversation; in which are detailed some of the initiatory
ceremonies, which appear to me so incredibly foolish, that I can
scarce believe them, even making mankind a handsome allowance
for absurdity. I soon perceived that the discussion was likely to prove
a serious one, for in America, it seems, 'tis made a political question;
and our Boston friend, and the Jacksonite, fell to rather sharply
about it. The temperance of the former, however, by retreating from
the field, spared us further argumentation. One thing I marvel at:—
are the institutions of men stronger to bind men, than those of God;
and does masonry effect good, which Christianity does not?—a silly
query, by the way; for doubtless men act the good, but forbear to
act the evil, before each other's eyes; which they think nothing of
doing, or leaving undone, under those of God.
Gossiped till lunch-time; afterwards took up Childe Harold,—
commend me to that! I thought of dear H——. She admires Byron
more than I do; and yet how wildly I did, how deeply I do still,
worship his might, majesty, and loveliness. We dined up stairs, and
after dinner, I and Mr. —— look a long walk on deck; talking flimsy
morality, and philosophy, the text of which were generalities, but all
the points individualities: I was amused in my heart at him and
myself. He'd a good miss of me at ——: Heaven knows, I was odious
enough! and therein his informer was right. The day was bright, and
bitter cold,—the sea blue, and transparent as that loveliest line in
Dante,

"Dolce color di oriental zaffiro,"

with a lining of pearly foam, and glittering spray, that enchanted me.
Came and sat down again:—wrote doggerel for the captain's album,
about the captain's ship, which, when once I am out of her, I'll swear
I love infinitely. Read aloud to them some of Byron's short poems,
and that glorious hymn to the sea, in Childe Harold:—mercy, how
fine it is! Lay under our canvass shed till nine o'clock:—the stars
were brilliant in the intense blue sky, the wind had dropped, the ship
lay still—we sang a song or two, supped, and came in; where, after
inditing two rhapsodies, we came to bed.

Friday, 17th.
On my back all day: mercy, how it ached too! the ship reeled about
like a drunken thing. I lay down, and began reading Byron's life. As
far as I have gone (which is to his leaving England) there is nothing
in it but what I expected to find,—the fairly-sown seeds of the after-
harvest he bore. Had he been less of an egotist, would he have been
so great a poet?—I question it. His fury and wrath at the severe
injustice of his critics reminds me, by the by, of those few lines in
the Athenæum, which I read the other day, about poetical
shoemakers, dairy-maids, ploughmen, and myself. After all, what
matters it?—"If this thing be of God," the devil can't overthrow it; if
it be not, why the printer's devil may. What can it signify what is
said? If truth be truth to the end of reckoning, why, that share of
her, if any, which I possess, must endure when recorded as long as
truth endures. I almost wonder Byron was moved by criticism: I
should have thought him at once too highly armed, and too self-
wrapped, to care for it;—however, if a wasp's sting have such virtue
in it, 'tis as well it should have been felt as keenly as it was.—Ate
nothing but figs and raisins; in the evening some of our gentlemen
came into our cabin, and sat with us; I, in very desperation and sea-
sickness, began embroidering one of my old nightcaps, wherein I
persevered till sleep overtook me.

Saturday, 18th.
Rose at about half-past eight, dawdled about as usual, breakfasted
in the round-house—by the by, before I got out of bed, read a few
more pages of Byron's life. I don't exactly understand the species of
sentimental galimatias Moore talks about Byron's writing with the
same penfull of ink, "Adieu, adieu, my native land!" and "Hurra!
Hodgson, we are going." It proves nothing except what I firmly
believe, that we must not look for the real feelings of writers in their
works—or rather, that what they give us, and what we take for heart
feeling, is head weaving—a species of emotion engendered
somewhere betwixt the bosom and the brain, and bearing the same
proportion of resemblance to reality that a picture does; that is—like
feeling, but not feeling—like sadness, but not sadness—like what it
appears, but not indeed that very thing: and the greater a man's
power of thus producing sham realities, the greater his main
qualification for being a poet. After breakfast, sat, like Lady Alice in
the old song, embroidering my midnight coif. Got Colonel —— to
read Quentin Durward to us as we sat working under our canvass
pavilion.
* * * * *
Our company consists chiefly of traders in cloth and hardware,
clerks, and counting-house men—a species with but few peculiarities
of interest to me, who cannot talk pounds, shillings, and pence, as
glibly as less substantial trash. Most of them have crossed this
trifling ditch half a dozen times in their various avocations. But
though they belong to the same sort generally, they differ enough
individually for the amusement of observation. That poor widower,
whose remarks on the starry inside of the sea attracted my attention
the other evening, put into my hands to-day a couple of pretty little
books enough; a sort of hotch-potch, or, to speak more sweetly, pot-
pourri praise of women—passages selected from various authors
who have done us the honour to remember us in their good
commendations. There were one or two most eloquent and exquisite
passages from Jeremy Taylor—one on love that enchanted me. I
should like to copy it. What a contrast to that exquisite thing of
Shelley's, "What is Love?" and yet they are both beautiful, powerful,
and true. I could have helped them to sundry more passages on this
subject, particularly from my oracle. Mr. —— read to us after lunch,
and we sat very happily under our yawning till the rain drove us in.
No wind, the sea one rippleless sheet of lead, and the sky just such
another. Our main-top gallant-mast had been split in one of our late
blows, and I went out in the rain to see them restore the spar.
Towards evening the wind faired and freshened, in consequence of
which our gentlemen's spirits rose; and presently, in spite of the
rain, they were dancing, singing, and romping like mad things on the
quarter-deck. It was Saturday—holiday on board ship—the men
were all dismissed to their grog. Mr. —— and I sang through a whole
volume of Moore's melodies; and at ten o'clock (for the first time
since our second day on board) we of the petticoats adjourned to
the gentlemen's cabin to drink "sweethearts and wives," according
to the approved sailors' practice. It made me sad to hear them, as
they lifted their glasses to their lips, pass round the toast,
"Sweethearts and wives!" I drank in my heart—"Home and dear H
——." One thing amused me a good deal:—the Captain proposed as
a toast, "The Ladies—God bless them," which accordingly was being
duly drunk, when I heard, close to my elbow, a devout, half audible
—"and the Lord deliver us!" This, from a man with a face like one of
Retsch's most grotesque etchings, and an expression half humorous,
half terrified, sent me into fits of laughter. They sang a song or two,
and at twelve we left them to their meditations, which presently
reached our ears in the sound, not shape, of "Health to Bacchus," in
full chorus, to which tune I said my prayers.

Sunday, 19th.
Did not rise till late—dressed and came on deck. The morning was
brilliant; the sea, bold, bright, dashing its snowy crests against our
ship's sides, and flinging up a cloud of glittering spray round the
prow. I breakfasted—and then amused myself with finding the
lessons, collects, and psalms for the whole ship's company. After
lunch, they spread our tent; a chair was placed for my father, and,
the little bell being rung, we collected in our rude church. It affected
me much, this praying on the lonely sea, in the words that at the
same hour were being uttered by millions of kindred tongues in our
dear home. There was something, too, impressive and touching in
this momentary union of strangers, met but for a passing day, to
part, perhaps, never to behold each other's faces again, in the
holiest of all unions, that of Christian worship. Here I felt how close,
how strong that wondrous tie of common faith that thus gathered
our company, unknown and unconnected by any one worldly interest
or bond, to utter the same words of praise and supplication, to think
perhaps the same thoughts of humble and trustful dependence on
God's great goodness in this our pilgrimage to foreign lands, to
yearn perhaps with the same affection and earnest imploring of
blessings towards our native soil and its beloved ones left behind.—
Oh, how I felt all this, as we spoke aloud that touching invocation,
which is always one of my most earnest prayers, "Almighty God,
who hast promised when two or three are gathered together in thy
name," etc. * * * The bright cloudless sky and glorious sea seemed
to respond, in their silent magnificence, to our Te Deum.—I felt more
of the excitement of prayer than I have known for many a day, and
'twas good—oh! very, very good!
* * * * *
'Tis good to behold this new universe, this mighty sea which he hath
made, this glorious cloudless sky, where hang, like dew drops, his
scattered worlds of light—to see all this, and say,—

"These are thy glorious works, parent of good!"

After prayers, wrote journal. Some sea-weed floated by the ship to-
day, borne from the gulf stream; I longed to have it, for it told of
land: gulls too came wheeling about, and the little petterels like sea-
swallows skimmed round and round, now resting on the still bosom
of the sunny sea, now flickering away in rapid circles like black
butterflies. They got a gun, to my horror, and wasted a deal of time
in trying to shoot these feathered mariners; but they did not even
succeed in scaring them. We went and sat on the forecastle to see
the sun set: he did not go down cloudless, but dusky ridges of
vapour stretched into ruddy streaks along the horizon, as his disk
dipped into the burnished sea. The foam round the prow, as the ship
made way with all sail set before a fair wind, was the most lovely
thing I ever saw. Purity, strength, glee, and wondrous beauty were
in those showers of snowy spray that sprang up above the black'
ship's sides, and fell like a cataract of rubies under the red sunlight.
We sat there till evening came down: the sea, from brilliant azure,
grew black as unknown things, the wind freshened, and we left our
cold stand to walk, or rather run, up and down the deck to warm
ourselves. This we continued till, one by one, the stars had lit their
lamps in heaven: their wondrous brilliancy, together with the Aurora
Borealis, which rushed like sheeted ghosts along the sky, and the
stream of fire that shone round the ship's way, made heaven and
sea appear like one vast world of flame, as though the thin blue veil
of air and the dark curtain of the waters were but drawn across a
universe of light. Mercy, how strange it was! We stood at the stern,
watching the milky wake the ship left as she stole through the
eddying waters. Came back to our gipsy encampment, where, by the
light of a lantern, we supped and sang sundry scraps of old songs.
At ten came to bed.
* * * * *
Took an observation of the sun's altitude at noon, and saw them
hoist a main-top-royal sail, which looked very pretty as it was
unreefed against the clear sky.

Monday, 20th.
Calm—utter calm—a roasting August sun, a waveless sea, the sails
flapping idly against the mast, and our black cradle rocking to and
fro without progressing a step. They lowered the boat, and went out
rowing—I wanted to go, but they would not let me! A brig was
standing some four miles off us, which, by the by, I was the first to
see, except our mate, in my morning watch, which began at five
o'clock, when I saw the moon set and the sun rise, and feel more
than ever convinced that absolute reality is away from the purpose
of works of art. The sky this morning was as like the sea shore as
ever sand and shingle were, the clouds lying along the horizon in
pale dusky yellow layers, and higher up, floating in light brown
ribbed masses, like the sands which grow wrinkled under the eternal
smiling of the sea. Against the dim horizon, which blended with the
violet-coloured sky, the mate then showed me, through the glass,
the brig standing on the sea's edge, for all the world like one of the
tiny birds who were wheeling and chirping round our ship's stern. I
have done more in the shape of work to-day than any since the two
first I spent on board; translated a German fable without much
trouble, read a canto in Dante, ending with a valuation of fame. "O
spirito gentil!" how lived fair wisdom in your soul—how shines she in
your lays!—Wrote journal, walked about, worked at my cap, in the
evening danced merrily enough, quadrilles, country dances, La
Boulangère, and the monaco; fairly danced myself tired. Came to
bed. But oh! not to sleep—mercy, what a night! The wind blowing
like mad, the sea rolling, the ship pitching, bouncing, shuddering,
and reeling, like a thing possessed. I lay awake, listening to her
creaking and groaning, till two o'clock, when, sick of my sleepless
berth, I got up and was going up stairs, to see, at least, how near
drowning we were, when D——, who was lying awake too, implored
me to lie down again. I did so for the hundred and eleventh time,
complaining bitterly that I should be stuffed down in a loathsome
berth, cabined, cribbed, confined, while the sea was boiling below,
and the wind bellowing above us. Lay till daylight, the gale
increasing furiously; boxes, chairs, beds, and their contents, wooden
valuables, and human invaluables, rolling about and clinging to one
another in glorious confusion. At about eight o'clock, a tremendous
sea took the ship in the waist, and, rushing over the deck, banged
against our sky-light, and bounced into our cabin. Three women
were immediately apparent from their respective cribs, and poor H
—— appeared in all her lengthy full-length, and came and took
refuge with me. As I held her in my arms, and put my cloak round
her, she shook from head to foot, poor child!—I was not the least
frightened, but rather excited by this invasion of Dan Neptune's; but
I wish to goodness I had been on deck.—Oh, how I wish I had seen
that spoonful of salt water flung from the sea's boiling bowl! I heard
afterwards, that it had nearly washed away poor Mr. ——, besides
handsomely ducking and frightening our military man. Lay all day on
my back, most wretched, the ship heaving like any earthquake; in
fact, there is something irresistibly funny in the way in which people
seem dispossessed of their power of volition by this motion, rushing
hither and thither in all directions but the one they purpose going,
and making as many angles, fetches, and sidelong deviations from
the point they aim at, as if the devil had tied a string to their legs
and jerked it every now and then in spite—by the by, not a bad
illustration of our mental and moral struggles towards their
legitimate aims. Another horrible night! oh horror!

Wednesday, 22d.
A fair wind—a fine day—though very very cold and damp. It seems,
in our squall last night, we had also a small piece of mutiny. During
the mate's watch, and while the storm was at the worst, the man
who was steering left the helm, and refused to obey orders;
whereupon Mr. Curtis took up a hatchet, and assured him he would
knock his brains out,—which the captain said, had it been his watch,
he should have done on the spot, and without further warning. We
are upon the Newfoundland banks, though not yet on soundings.
Stitched my gown—worked at my nightcap—walked about:—Mr. ——
read Quentin Durward to us while we worked. The extreme cold
made us take refuge in our cabin, where I sat working and singing
till dinner-time. Dined at table again; afterwards came back to our
cabin—began writing journal, and was interrupted by hearing a
bustle in the dinner-room. The gentlemen were all standing up, and
presently I heard Walter Scott's name passed round:—it made me
lay down my pen. Oh! how pleasant it sounded—that unanimous
blessing of strangers upon a great and good man, thus far from him
—from all but our own small community. The genuine and
spontaneous tribute to moral worth and mental power! Poor, poor Sir
Walter! And yet no prayer that can be breathed to bless, no grateful
and soul felt invocation, can snatch him from the common doom of
earth-born flesh, or buy away one hour's anguish and prostration of
body and spirit, before the triumphant infirmities of our miserable
nature. I thought of Dante's lines, that I read but a day ago; and yet
—and yet—fame is something. His fame is good—is great—is
glorious. To be enshrined in the hearts of all virtuous and wise men,
as the friend of virtue and the teacher of wisdom; to have freely
given pleasure, happiness, forgetfulness, to millions of his fellow-
creatures; to have made excellence lovely, and enjoyment pure and
salutary; to have taught none but lessons of honour and integrity; to
have surrounded his memory, and filled the minds of all men with
images fair, and bright, and wonderful, yet left around his name no
halo, and in the hearts of others no slightest cloud to blot these
enchanting creations; to have done nothing but good with God's
good gifts—is not this fame worth something? 'Tis worth man's love,
and God's approval—'tis worth toiling for, living for, and dying for. He
has earned it fairly—he is a great and good man—peace be with him
in his hour of mortal sorrow, and eternal peace hereafter in the
heaven to which he surely goes. They then drank Washington Irving,
—a gentle spirit, too. After working for some time more, came on
deck, where we danced with infinite glee, disturbed only by the
surpassing uproar of Colonel ——.
* * * * *
* * * * *
The only of our crew whom I cotton to fairly, are the ——, and that
good-natured lad, Mr. ——: though the former rather distress me by
their abundant admiration, and the latter by his inveterate Yorkshire,
and never opening his mouth when he sings, which, as he has a
very sweet voice, is a cruel piece of selfishness, keeping half his
tones, and all his words, for his own private satisfaction.
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