Having followed Rob's coverage of the Seal Products Appellate Body hearing, there is an issue that puzzles me: What is the scope of the "technical regulations" covered by the TBT Agreement? I'm finding that I have no idea how to think about this question. The drafters didn't give much guidance in the text (yes, Annex I says some things, but it doesn't say them very clearly), and it is a struggle to find help elsewhere. I think much of the complexity results from the "product-process" distinction, but perhaps there is more to it.
To begin, everyone seems to agree that, generally speaking, measures governing the physical makeup of products are covered. So, if an EU measure said that seal oil pills must consist of at least 80% seal oil, that would be a technical regulation. I think that's an easy one.
But what about measures that deal with the production process? Such measures could regulate, inter alia, wages of workers who make the product; the carbon emissions of the relevant factory; or the process of killing the seals. Are such measures "technical regulations"? Annex I refers to "product characteristics or their related processes and production methods." When do "processes and production methods" relate to "product characteristics"? Are the wages of workers who make a product a characteristic of that product?
All of this, of course, is the infamous "product-process" distinction, which has vexed many people over the years. I have little trouble dealing with it in the GATT context, because I think it can mostly be ignored. But in the context of the scope of "technical regulations," I'm not sure what to do with it. Often you can look beyond the text for help; here, I'm not sure where to look.
In general terms, the TBT Agreement carves out a narrow category of measures and makes them subject to more detailed obligations. But why? What particular problem were the drafters trying to address? What were the measures the drafters thought were in need of additional obligations?
Having read a bit of the TBT negotiating history, private standards were clearly one aspect of the problem. But the TBT rules go beyond that, and deal with government regulations, too. I looked at this history recently to get a sense of where TBT 2.1 and 2.2 came from; I think there may also be some useful information on the nature of technical regulations and standards, as seen by the drafters, but it's not an easy read and there is a lot to take in. If someone wants to go through it, it could help with these issues.
The Appellate Body will have to come up with something, and I suspect it will make some people happy and others unhappy. I don't think I'll have a strong view on this issue -- it feels a bit arbitrary. I'm just hoping for a clear ruling.
What would be helpful, though, is if the governments who write the trade rules would clarify what they have in mind. What is this special category of TBT measures that needs additional obligations? Is it any measure that relates to products? Does it cover some or all parts of the production process, or just the final product in its physical form? What about a simple product ban? And finally, and perhaps crucially, what does "technical" mean here, anyway?
