Introduction

There is hardly any other subject in the broad area of trade and environment subject to so much political and academic discussion than the legality of process-related measures. Even though the problem of so-called processes and production measures (PPMs) is certainly not new in the international economic and environmental system, it was not until the WTO Panel decision in the Tuna I case that it attracted intense scrutiny. However, even though extensive material on the legality of PPMs has been produced in recent years, the overall complexity of the problem still appears to lack thorough analysis. This is mainly due to the fact that most scholars are hesitant to present arguments that reach further than making a statement on the (more or less) illegality of PPMs under the current law of the World Trade Organization (WTO). Based on this legal assessment, the environmental civil society, namely environmental NGOs, overwhelmingly see WTO law as an enemy to environmental protection because trade measures based on environmental PPMs are prohibited. Recently, Steve Charnovitz presented a comprehensive study arguing that ‘PPMs affecting trade are not prohibited per se’. A similar conclusion has been put forward by Robert Howse and Donald Regan. Moreover, only more recent studies make an explicit connection between PPMs and environmental governance.

It is not the aim of this contribution to analyse all legal and policy arguments in favour and against the use of PPMs in international economic law in detail.