Implementing and Monitoring Process and Production Methods
NCCR Trade Regulation Working Paper No. 2011/19, co-authored by Sofya Matteotti-Berkutova and Olga Nartova.
With environmental problems moving to the centre of attention in politics in the early 1990s, the distinction between trade measures aiming at products and those aiming at production processes faced increasing criticism. Underlying the debate is the presumption that trade measures can be subdivided into measures that are linked to products themselves and measures that are linked to processes of production, and that both groups of measures have a different legal status under the GATT. Since the distinction between products and production has considerable logical appeal, it is often overlooked that the legal content of the concept is vague. Another important issue is how WTO Members can track methods of production on products produced outside their territory, particularly if the carbon values are not detectable in the final commercial product. This underlying question is perhaps the most important legal issue as the vast majority of carbon emissions related to a product are associated with its production and transportation to the point of sale. This paper turns to the issue as to how trade measures based on production methods can and should be implemented. First, it discusses the process and production methods as criteria of likeness. Then it examines the possibility to rely upon voluntary declarations of product characteristics and labelling. In the conclusion, the paper will sketch out a legal framework addressing the management of production methods administration and monitoring in international law.