ABSTRACT:
With the globalisation of markets and the internationalisation of products, sustainability labelling is clearly an international issue and thus has become a subject for international law.
At the time when the statutory agreements of the main international organizations were laid down, just after World War II, sustainable development was not considered a relevant issue on the international agenda. The gradual increase of international organization activities on the world economic scene has resulted in the incorporation of the sustainable development concept.
Although a number of specialised bodies focus on protecting certain values related to sustainable development, the adoption of international rules by international forums is a slow process, although clearly quite legitimate. Hence, in the eyes of those urging for stronger measures for sustainable development, the international legal process is clearly not moving fast enough.
In regards to sustainability labelling schemes, consumer and environmentalist interest, as well as manufacturer and retailer interest, has drawn the attention of international organisations. However, as is well known, the regulatory "command and control" approach used by some international organizations and states has been subject to criticism, and self-regulation and the use of market instruments has been promoted as an alternative. That would explain why, with globalisation, we are increasingly witnessing the proliferation of labelling initiatives, taken by different private sector organisations that deal with the issue of sustainable development from their own perspective.
With this in mind, the question raised is whether this is the most appropriate forum for developing multilateral guidelines that would take into account developing countries' participation, the voluntarily and non-binding character of private standards, and the legitimacy and normative capacity of the private sector. In addition, there is a growing realisation that the private sector is not just developing voluntary schemes, but promoting some of the concepts behind these while at the same time hiding or ignoring others.
Especially important is the compatibility of such labelling schemes with the rules of international trade. Even if they are perceived as a less restrictive measure than, for instance, prohibitions, quantitative limitations, or the technical regulation of products, labelling schemes based on production processes and methods (PPMs) have been one of the hottest issues of debate within the WTO. Due to lack of consensus on such issues, the problem remains unsolved, and the procedural and substantive characteristics of each particular project must be taken into account by carrying out case-by-case analyses.
Such debate is particularly significant for developing countries, which otherwise must find cost-effective ways to make the technical and managerial changes necessary to obtain proper access to foreign markets or to sell to large international buyers who impose environmental and social requirements. As a result, they fear that the introduction of ecological and social labelling schemes could harm their competitiveness. First, developing countries fear that such practices will negatively affect their exports. Second, they question the environmental legitimacy of the arguments used. Third, they argue that such practices are a new form of protectionism used by northern countries to protect their markets from the much cheaper products of the South. Fourth, they are afraid that developing countries will be forced to buy modern technologies from the North. Finally, developing countries also argue that trade measures are inherently unfair, as they can only be used by the economically powerful against the economically weak.