WORLD TRADE
ORGANIZATIONTN/TE/S/3
31 January 2003
(03-0688)
Committee on Trade and Environment Special Session
COMPILATION OF SUBMISSIONS UNDER PARAGRAPH 31(i)
OF THE DOHA DECLARATION
Note by the Secretariat1
1. This document has been prepared by the Secretariat at the request of Members in the CTE
Special Session.2  It provides a compilation of proposals submitted to date to the CTE Special Session
under paragraph 31(i) of the Doha Declaration.  This paragraph reads as follows:
"With a view to enhancing the mutual supportiveness of trade and environment, we
agree to negotiations, without prejudging their outcome, on:  (i) the relationship
between existing WTO rules and specific trade obligations set out in multilateral
environmental agreements (MEAs).  The negotiations shall be limited in scope to theapplicability of such existing WTO rules as among parties to the MEA in question.
The negotiations shall not prejudice the WTO rights of any Member that is not a
party to the MEA in question."
2. Section I provides the list of the proposals submitted under paragraph 31(i).  Sections II-VIII
are organized under the following headings:
• Section II: Process;
• Section III: Multilateral Environmental Agreements (MEAs);
• Section IV: Specific Trade Obligations (STOs);
• Section V: Relationship Between WTO Rules and Specific Trade Obligations in MEAs;
• Section VI: Party/Non-Party Issues;
• Section VII: Outcome;  and
• Section VIII: MEAs Referred to in the Proposals.
3. Under each of these sections, a reference to the relevant paragraphs of the proposal is
provided, and the text of the proposal explaining the Member's position is quoted.  In Sections II-VII,
the relevant extracts from the submissions are arranged in alphabetical order, by Member.  SectionVIII sets out the comments made by Members on MEAs and their respective provisions.
4. This document should be considered as a working document aimed at facilitating the
discussions in the CTE Special Session under paragraph 31(i) of the Doha Declaration.  It could be
revised, as appropriate, in light of future proposals submitted in the CTE Special Session.
                                                     
1 This document has been prepared under the Secretariat's own responsibility and without prejudice to
the positions of Members and to their rights and obligations under the WTO.
2 TN/TE/R/3, "Summary Report on the Third Meeting of the Committee on Trade and Environment
Special Session, 10-11 October 2002", Note by the Secretariat.TN/TE/S/3
Page 2
TABLE OF CONTENTS
I. LIST OF PROPOSALS SUBMI TTED UNDER PARA GRAPH 31(i) ....................................................4
II. PROCESS ..................................................................................................................... ................................4
Australia ...................................................................................................................... ..................................4
Chinese Taipei ................................................................................................................. ..............................5
Korea .......................................................................................................................... ...................................5
Switzerland .................................................................................................................... ................................6
III. MULTILATERAL ENVIRONM ENTAL AGRE EMENTS .....................................................................7
Argentina ...................................................................................................................... .................................7
Chinese Taipei ................................................................................................................. ..............................7
European Communities........................................................................................................... .......................7
Japan .......................................................................................................................... ...................................8
IV. SPECIFIC TRADE OBLIGATIONS.................................................................................................. .......9
Argentina ...................................................................................................................... .................................9
Australia ...................................................................................................................... ..................................9
Chinese Taipei ................................................................................................................. ............................10
European Communities........................................................................................................... .....................10
Japan .......................................................................................................................... .................................12
Korea .......................................................................................................................... .................................13
Switzerland .................................................................................................................... ..............................14
V. RELATIONSHIP BETWEEN EXISTING WTO RULES AND SPECIFIC TRADE
OBLIGATIONS.................................................................................................................... ..............................17
A. G ENERAL ............................................................................................................................... ...................17
Chinese Taipei ................................................................................................................. ............................17
European Communities........................................................................................................... .....................17
Japan .......................................................................................................................... .................................18
Switzerland .................................................................................................................... ..............................19
B. T ERMS ............................................................................................................................... .......................19
Argentina ...................................................................................................................... ...............................19
Chinese Taipei ................................................................................................................. ............................20
C. P RINCIPLES ............................................................................................................................... ................20
Argentina ...................................................................................................................... ...............................20
Chinese Taipei ................................................................................................................. ............................21
European Communities........................................................................................................... .....................22
Japan .......................................................................................................................... .................................23
Switzerland .................................................................................................................... ..............................24
VI. PARTY/NON-PA RTY I SSUES ...................................................................................................... ..........27
Argentina ...................................................................................................................... ...............................27
Chinese Taipei ................................................................................................................. ............................28
European Communities........................................................................................................... .....................29
Switzerland .................................................................................................................... ..............................30
VII. OUTCOME OF THE NEGOTIATIONS................................................................................................ .31
Argentina ...................................................................................................................... ...............................31
Australia ...................................................................................................................... ................................31
Chinese Taipei ................................................................................................................. ............................31
Japan .......................................................................................................................... .................................32
Switzerland .................................................................................................................... ..............................32TN/TE/S/3
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VIII. MEAS REFERRED TO  IN THE PR OPOSALS....................................................................................35
A. I NTERNATIONAL PLANT PROTECTION CONVENTION (IPPC) ....................................................................35
B. I NTERNATIONAL COMMISSION FOR THE CONSERVATION OF ATLANTIC TUNAS (ICCAT)........................35
C. C ONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES (CITES) ........................................35
D. C OMMISSION FOR THE CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES (CCAMLR)..........37
E. M ONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER (MONTREAL PROTOCOL )...37
F. B ASEL CONVENTION ON THE TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND THEIR
DISPOSAL (BASEL CONVENTION ) ............................................................................................................38
G. C ONVENTION ON BIOLOGICAL DIVERSITY (CBD)....................................................................................39
H. C ARTAGENA PROTOCOL ON BIOSAFETY TO THE CONVENTION ON BIOLOGICAL DIVERSITY (BIOSAFETY
PROTOCOL ) .............................................................................................................................. ...............39
I. U NITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE (UNFCCC)...................................40
J. K YOTO PROTOCOL TO THE UNFCCC ......................................................................................................41
K. I NTERNATIONAL TROPICAL TIMBER AGREEMENT (ITTA) .......................................................................42
L. U NITED NATIONS FISH STOCKS AGREEMENT ...........................................................................................42
M. R OTTERDAM CONVENTION ON THE PRIOR INFORMED CONSENT PROCEDURE FOR CERTAIN HAZARDOUS
CHEMICALS AND PESTICIDES IN INTERNATIONAL TRADE (ROTTERDAM CONVENTION )..........................43
N. S TOCKHOLM CONVENTION ON PERSISTENT ORGANIC POLLUTANTS (STOCKHOLM CONVENTION ) ..........44TN/TE/S/3
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I. LIST OF PROPOSALS SUBMITTED UNDER PARAGRAPH 31(i)
Member Document Date
Argentina TN/TE/W/2 23 May 2002
Australia TN/TE/W/7 7 June 2002
Chinese Taipei TN/TE/W/11 3 October 2002
European Communities TN/TE/W/1 21 March 2002
Japan TN/TE/W/10 3 October 2002
Korea TN/TE/W/13 8 October 2002
New Zealand TN/TE/W/12 3 October 2002
Saudi Arabia (Observer) TN/TE/W/9 23 September 2002
Switzerland TN/TE/W/4 6 June 2002
Switzerland TN/TE/W/16 6 November 2002
Total Number of Proposals:  10
II. PROCESS
Proposal Position
Australia
TN/TE/W/7
paras. 3-11"3.  Australia proposes a three-phase process .  It should be up to Members to
decide the appropriate time that the CTESS should spend on each phase.
Phase One
4.  During the first phase, the CTESS should identify (a) the “specific trade
obligations in multilateral environmental agreements”  that are to be discussed,
and (b) the WTO rules  that are relevant to these obligations.
5.  Previous CTE discussion on the relationship between WTO rules and MEA
provisions has focused on “trade measures” for environmental purposes .
However, as highlighted in the recent submission made by Argentina
(TN/TE/W/2), the term “trade measures” is different from the phrase agreed by
Ministers – “specific trade obligations” – in the Doha Declaration.
6.  Bearing in mind the important distinction between these two terms, an efficient
way to proceed would be examine the range of MEA trade measures summarizedin the document prepared by the CTE Secretariat, “ Matrix of Trade Measures
Pursuant to MEAs ” (WT/CTE/W/160/Rev.1) in order to identify which of these
measures are “specific trade obligations”.
3
7.  Once these specific trade obligations have been identified, the CTESS should
identify any relevant WTO rules that have  to be considered in relation to any
action that might be taken by WTO Members pursuant to each obligation.
                                                     
3 The Matrix summarizes trade-related meas ures in fourteen multilateral instruments.TN/TE/S/3
Page 5
Proposal Position
8.  Early identification of the specific trade obligations and WTO rules covered by
the mandate will ensure Members are able to focus discussion in subsequent
phases, consistently with the mandate, on the applicability of WTO rules as among
WTO Members that are parties to a MEA .  By discussing particular specific trade
obligations and particular WTO rules these negotiations can help ensure that thebalance of rights and obligations under existing WTO agreements is maintained,
including for WTO Members that are not parties to a particular MEA.
Phase Two
9.  Once WTO Members have identified the specific trade obligations and the
particular WTO rules at issue, information sessions with relevant MEASecretariats can be used to seek information from these secretariats, and from
WTO Members' own experiences, concerning these provisions.  This process can
be used to determine whether there have been particular implementation issues
with these “specific trade obligations”.
10.  It will be important in this phase to identify any real issues being dealt with by
those Members implementing their obligations under the relevant MEA and the
WTO, as opposed to discussing theoretical or hypothetical scenarios.
Phase Three
11.  The third phase would involve discussion of matters arising from the work
undertaken in phases one and two, and focus on the outcome of the negotiations."
Chinese Taipei
TN/TE/W/11
para. 3"3.  With respect to procedural approaches for the negotiations under the Doha
mandate, the government acting on behalf of the separate customs territory ofTaiwan, Penghu, Kinmen and Matsu joins with a group of Members
4 in support of
the three-phased approach proposed by Australia.5  In addition, if certain concepts,
other than those identified in Australia's submission, contained in the mandate
could be further refined, it would definitely facilitate the negotiations in this
Special Session.  …"
Korea
TN/TE/W/13
para. 1"1.  At the second meeting of the Special Session of the Committee on Trade and
Environment (CTESS) held from 11-12 June 2002, a number of Members
expressed their support for the proposal by Australia that CTESS divide its work
under Paragraph 31(i) into three phases, starting from identifying the specific tradeobligations (STOs) in MEAs and WTO rules relevant to those obligations.  Korea
also supports the Australian approach.  In particular, identifying specific trade
obligations and the relevant WTO rules will help Members develop a perspective
for the scope and orientation of discussion."
                                                     
4 Members who extended their support were:  the Philippines, Singapore, Brazil, Thailand, Indonesia,
Malaysia, Mexico, Chile, New Zealand, Canada, India, Hong Kong, China, Peru, Cuba, Egypt, Kenya, Uruguay,Bolivia, Korea, Pakistan, and Colombia, paragraph 59, TN/TE/R/2.
5 See TN/TE/W/7.TN/TE/S/3
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Proposal Position
Switzerland
TN/TE/W/16
paras. 4-5"I. ORGANIZATION OF THE DISCUSSIONS
4.  Not in three phases :  At the latest Special Session of this Committee, it
emerged from the discussions on paragraph 31(i) that several delegations would
prefer to adopt a step-by-step approach.  The first step would be to identify and
clarify the meaning of the different terms of the Doha mandate, the second wouldinvolve seeking and proposing solutions, and the third would be to examine the
solutions put forward.  Switzerland believes that the Doha ministerial declaration
does not compel the Special Session to divide the work into the three phases
suggested by Australia in its submission of 7 June 2002 (TN/TE/W/7), to which
Chinese Taipei refers.
5.  In parallel :  Switzerland considers that it may indeed be necessary to clarify
the terms in the Doha Ministerial Declaration but that this would not prevent the
Special Session from conducting a parallel  examination of the principles
governing the relationship between the WTO rules and MEAs, and of the various
categories of options proposed before the Doha Ministerial Conference (as setforth in note TN/TE/S/1 by the Secretariat).  Such an approach would make it
possible to move ahead  within the framework of the negotiation mandate.
Indeed, it is important not to get lost in an analysis of the mandate  but to
advance in the search for solutions , for this is how we understand the term
"negotiations".  The goal is to find solutions, with an eye to the long as well as the
short term.  Switzerland does not object, however, to the use of existing
information on MEAs  as a means of clarifying the debate and therefore
welcomes New Zealand 's very useful submission, which at this stage constitutes
an excellent working document."TN/TE/S/3
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III. MULTILATERAL ENVIRONMENTAL AGREEMENTS
Proposal Position
Argentina
TN/TE/W/2
paras.13, 17 (c)"13.  In addition to categorizing specific trade obligations, Members will have to
agree upon the kind of agreements to be covered by the expression " multilateral
environmental agreements ".  We are of the opinion that such agreements should
meet the following guidelines:
• in force : the review should be restricted to agreements which are currently in
force.  Failure to do so would impair the Doha mandate, given that the
negotiations cover only " specific trade obligations ".  No international obligation
may be based on an agreement which is not in force;
• multilateral : the agreement should have been negotiated by more than two
parties and under the aegis of the United Nations, its specialized agencies or the
United Nations Environment Programme (UNEP), and have attained a certaindegree of universality;
• open : countries which did not participate in the negotiations should subsequently
be able to accede."
"VII. SUMMARY
17. … (c) The expression "multilateral environmental agreements" (MEAs) should
cover only agreements which are currently in force, have been negotiated and signedunder the aegis of the United Nations, its specialized agencies or the United Nations
Environment Programme (UNEP), have attained a certain degree of universality and
are open."
Chinese Taipei
TN/TE/W/11
para. 8"8.  "[M]ultilateral environmental agreements (MEAs)":  The points made by the
EU in section III of its submission6 in this regard are appropriate .  However,
currently there could be WTO Members which are not able to participate the MEAs .
If only those MEAs open for "all" WTO Members are MEAs mentioned here, therecould be a large proportion of MEAs not being able to acquire such status of MEAs .
With this respect, we submit that all MEAS open for formal participation of any
non-party to the MEAs should all be considered as MEAs and within the scope of
our negotiations."
European
Communities
TN/TE/W/1
paras. 6-8"6.  The EU considers that an MEA is a le gally binding instrument between at least
three parties, the main aim of which is to protect the environment and which is open
to all countries concerned from the moment negotiations begin.  In the context of theWTO, an MEA should also be relevant to the aims set out in sub-paragraphs (b) or
(g) and the headnote of GATT Article XX.  To avoid lacunae, relevant regional
agreements, such as fisheries organizations, should also be covered, provided that
countries concerned outside the region are not prevented from participating.
7.  It should be noted that the WTO would exceed its competence if it were to aim todefine an MEA in general.  Therefore, the only purpose of seeking within the WTO
an agreed definition of an MEA is subsequently to clarify the circumstances under
                                                     
6 See page 2 of TN/TE/W/1.TN/TE/S/3
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Proposal Position
which specific trade obligations set out in an MEA should be given explicit
recognition under WTO rules.  In this context, the elements mentioned below are in
our view of particular relevance:
(a) The agreement should have been negotiated under the aegis of the UN or one
of its agencies or programmes, such as UNEP, or under procedures fornegotiation open for participation of all WTO Members;
(b) the agreement should be open for accession by any WTO Members on terms
which are equitable in relation to those which apply to original Members;
(c) if the agreement is regional in nature, the elements above should apply to all
countries in the region, i.e. openness in negotiation and accession.Moreover, the agreement should also be “open” to any countries outside the
region whose interests may be affected by the agreement.
8.  The EU believes WTO Members could usefully solicit input on this specific issue
from UNEP and MEA secretariats."
Japan
TN/TE/W/10
para. 10"10.  It may be difficult to develop a definition of an “MEA”.  However, we need to
clarify to what extent the term of “MEA” covers, in order to identify the scope of
"specific trade obligations", which is being negotiated as mandate.7  In this regard,
Japan believes that the following elements are appropriate criteria for such a
definition, which were submitted as part of Japan's proposal in 1996 and are now
modified as then discussed.
(i) An MEA is open to any country sharing the environmental objective of the
agreement.
(ii) An MEA, developed and agreed, taking into account works including those
under the aegis of the United Nations or its specialized agencies and with the
participation of a substantial number of the countries, reflects the interests of
major Parties concerned, such as Parties with substantial trade interests, actual
and potential major producers and consumers of materials concerned.
Other than MEAs in force, for practical reasons it would be necessary to include in
the discussion MEAs which have already been signed and adopted in due course butyet entered into force."
                                                     
7 In terms of definition of an MEA, the following elements are indicated.
(1) EC proposal (TN/TE/W/1)
(i) Environmental objectives
(ii) Open to all Members, legally binding documents
 (iii) At least 3 Parties are particip ating including regional agreements.
(2) Argentina proposal (TN/TE/W/2)
(i) in force,(ii) more than 3 countries, under UN or UNEP,
(iii) open to all Members.TN/TE/S/3
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IV. SPECIFIC TRADE OBLIGATIONS
Proposal Position
Argentina
TN/TE/W/2
paras. 6-7"6.  The reference to "specific trade obligations" covers the provisions of
multilateral environmental agreements which entail an "obligation".  All non-
mandatory trade measures, non-trade obligations and non-specific trade
obligations in an MEA are therefore excluded. The meaning of the expression"specific trade obligations"  should be borne in mind when determining which
such obligations in the MEA should be considered.
7.  In accordance with paragraph 31(i) of the Doha Declaration, it is a question ofthe provisions of multilateral environmental agreements that contain  "specific
trade obligations", which should be understood as follows:
- "obligation" means  a provision which prescribes "the enforceability of an act
or omission imposed by a rule of law"8;
- "trade", that is to say, such action is related to an import or export operation;
- "specific",  that is to say, the obligation has a singular feature distinguishing it
from the general category.  This requirement means that only obligations
which have been explicitly identified as mandatory within the framework of
an MEA may be included in this category.  It should be noted that an analysisof the different MEAs revealed that some establish a particular outcome as
mandatory (e.g., protection of the ozone layer), whilst allowing countries the
possibility of employing different measures to achieve this objective.  In that
respect, the action taken with a view to achieving such an outcome is not
legally covered by the Doha mandate given that:
• The obligation does not relate to a particular type of behaviour to be
adhered to by a country, rather to a result which must be achieved.  That
is to say, the MEA does not require countries to implement a particular
measure, rather to achieve an outcome, with the result that countries are
entitled to achieve this objective using different measures.
• The obligation in this case is not specific since the only thing explicitly
identified by the MEA is a particular outcome, the measures used to
achieve it being left to the countries’ discretion."
Australia
TN/TE/W/7
paras. 5-6"5.  Previous CTE discussion on the relationship between WTO rules and MEA
provisions has focused on “trade measures” for environmental purposes.
However, as highlighted in the recent submission made by Argentina
(TN/TE/W/2), the term “trade measures” is different from the phrase agreed by
Ministers – “specific trade obligations” – in the Doha Declaration.
                                                     
8 Diez de Velázco, Manuel, "Instituciones del Derecho Internacional Público", (Tecnos, 1991),
page 667.TN/TE/S/3
Page 10
Proposal Position
6.  Bearing in mind the important distincti on between these two terms, an efficient
way to proceed would be examine the range of MEA trade measures summarized
in the document prepared by the CTE Secretariat, “ Matrix of Trade Measures
Pursuant to MEAs ” (WT/CTE/W/160/Rev.1) in order to identify which of these
measures are “specific trade obligations”."9
Chinese Taipei
TN/TE/W/11
para. 7"7.  "[S]pecific trade obligations" should  include those trade measures which are
required, expected or legally binding pursuant to the MEAs and their associatedlegal instruments, including annexes, amendments, decisions, resolutions, and
recommendations."
European
Communities
TN/TE/W/1
paras. 21-28"21.  Existing MEAs have a variety of objectives, for example, protection of a
particular species (flora, fauna…), protection of ecosystems and human health
from harmful substances that could, for instance, bioaccumulate in the food chain
(hazardous waste, dangerous chemicals, pesticides…) or protection of the “global
commons” (ozone layer, biodiversity, global climate…).
22.  Trade measures might not always represent the best available option to
address a global environmental problem. However, they represent undoubtedly
one mean to reach the objective(s) of MEAs, either self-standing or combined
with other types of measures, and in some cases have been key to the success of
the MEA. For instance, the trade obligatio ns contained in the Montreal Protocol
on Substances that deplete the Ozone Layer have been universally recognized as
being instrumental to the effective and early implementation of the Protocol.
23.  The Basel Convention on the Transboundary Movements of Hazardous
Wastes and their Disposal has also been key in the reduction and elimination of
the dumping of hazardous waste on developing countries. This has enabled theConvention to shift its original scope towards the one of minimising the hazardous
waste generation at the source (Ministerial declaration on environmentally sound
management, December 1999). Another example is the Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES)
thanks to which none of the species protected by it have become extinct as a result
of trade.  As became clear during exchanges of views and dialogue between
MEAs secretariats and the CTE, the use of trade measures should not necessarilybe regarded in a static way.  In fact, their application should rather be considered
in a dynamic context insofar as the nature of trade measures in a specific MEA
might evolve over time depending on the effectiveness of the initial trade measure
and/or the need to take other considerations into account.
24.  It is also worth noting that some MEAs, such as CITES and the Rotterdam
Convention on the Prior Informed Consent Procedure for Certain Hazardous
Chemicals and Pesticides in International Trade (PIC), contain the terms
“international trade” in the name of the Convention itself and trade measures are
the key instrument to reach the ultimate objective of the MEA in question.
                                                     
9 The Matrix summarizes trade-related meas ures in fourteen multilateral instruments.TN/TE/S/3
Page 11
Proposal Position
25.  Trade obligations under MEAs can cover a wide spectrum of possibilities,
ranging from trade bans to notification procedures or labelling requirements.  For
the purpose of illustration and discussion, the EU has identified four categories of
measures arising from trade obligations.  These are listed below.  Some examples
of MEAs are given in order to provide a better illustration of “trade obligations”.10
They do not cover trade measures applied exclusively vis-à-vis  non-Parties.
• Trade measures explicitly provided for and mandatory under MEAs: this is the
case in CITES where trade in some species threatened with extinction whichare or may be affected by trade (listed in Appendix I) can only be permitted in
exceptional cases, and trade in other species which may become extinct unless
trade in these species is subject to strict regulation in order to avoid utilisation
incompatible with their survival  (listed in Appendix II) requires an export
permit or a re-export certificate.  This is also the case in the StockholmConvention on Persistent Organic Pollutants (POPs) which will inter alia
prohibit the import and export of certain POPs with some exceptions such as
their environmentally sound disposal or a specific use/purpose, such as
insecticides, on the request of some Parties.  The same applies to the Cartagena
Protocol on Biosafety as regards obligatory advanced informed agreementprocedure for the first shipment of living modified organisms.
• Trade measures not explicitly provided for nor mandatory under  the MEA
itself but consequential of the “ obligation de résultat ” of the MEA.  This
category covers cases where an MEA identifies a list of potential policies and
measures that Parties could implement to meet their obligations.
• Trade measures not identified in the MEA which has only an “ obligation de
résultat ” but that Parties could decide to implement in order to comply with
their obligations.  In contrast to the previous category, the MEA does not list
potential policies and measures so countries have greater scope as regards the
exact nature of the measures they might decide to deploy to reach the
objectives of the MEA.
• Trade measures not required in the MEA but which Parties can decide to
implement if the MEA contains a general provision stating that parties canadopt stringent  measures in accordance with international law.  This is the case
with the Montreal Protocol (Art. 2.11) and PIC (Art. 15.4).  In some cases, the
MEA may explicitly recognize the right of Members to apply specific trade
measures.
26.  The EU considers that the above categories have to be analysed in detail inorder to determine where any cut-off point (or points) between “specific” and
“non-specific” trade obligations exist.
                                                     
10 Some MEAs contains several categories of “trade obligations” and examples given are not
exhaustive.TN/TE/S/3
Page 12
Proposal Position
27.  The EU welcomes the work carried out by the CTE Secretariat in cooperation
with several MEAs Secretariats and considers that document
WT/CTE/W/160/Rev.1 “ Matrix on Trade Measures Pursuant to Selected MEAs ”
provides valuable input for WTO Members’ reflection on this aspect of the issue."
"28.  As a point of departure it is worth recalling the fact that any specific trade
obligation in an MEA is negotiated and agreed by consensus in a multilateral
context and that this should be, in principle, a guarantee against discriminatory
and protectionist action. …"
Japan
TN/TE/W/10
para. 11"11.  … Japan believes that the approach proposed by the EC, which categorizes
various trade obligations according to thei r specificity, is helpful.  Reviewing the
definition of "trade obligations" is a premise of this process.  Certain provisions,
which do not explicitly stipulate trade obligations but only allow for Parties totake appropriate measures, do not fall within the scope of "trade obligations".  In
view of these criteria, Japan tried to classify trade measures stipulated in MEAs,
reviewing a list of MEAs in document WT/CTE/W/160/Rev.1 prepared by the
secretariat.  The following preliminary results are only for illustrative purpose and
this paper does not intend to prejudge the outcome of future work in thisnegotiation.  Moreover, this categorization, needless to say, does not affect the
legal status of each MEA, which is established through due process.
1. Trade measures to be taken are explicitly provided for and mandatory under
MEAs;
- Convention on International Trade in Endangered Species of Wild Fauna andFlora (CITES), Articles 3 to 6 (regulation of trade in specimens of species
included Appendix I-III).
- Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal, Article 4.1 (Import prohibition of hazardous waste,
notification, export prohibition), Articles 6 to 9, Article 13, etc.
2. “Obligation de résultat” is explicitly provided for in an MEA and a trade
measure is identified as potential means taken by Parties to meet the
obligation of that MEA;
- Convention on International Trade in Endangered Species of Wild Fauna and
Flora (CITES), Article 8.1
3. “Obligation de résultat” is specified in an MEA but a trade measure to be
taken for the obligation is not identified in the MEA, while the MEA leaves
Parties to decide measure to be taken to fulfil the obligation;  and
- Montreal Protocol on Substances that Deplete the Ozone Layer, Article 2A
to 2HTN/TE/S/3
Page 13
Proposal Position
4. Trade measures are not mentioned in MEAs but Parties can take trade
measures in accordance with relevant decisions made under the MEA
framework.
- A number of regional fisheries agreements such as ICCAT, CCAMLR, andso forth."
Korea
TN/TE/W/13
paras. 4, 6-9,
11-14"4.  Section 2 [i.e. paras. 6-9] of [Kor ea's] submission presents Korea’s view with
regard to the criteria for identifying th e STOs.  The premise is that those trade
obligations, which allow for Parties’ discretion as to the acceptance of the
obligations as well as the implementing measures, should not be regarded as
STOs. …"
"6.  In order to identify STOs, it is necessary first to have a clear idea on what
STOs stand for.  Korea believes that the term, “specific trade obligations,” shouldbe interpreted on the basis of its ordinary meaning.  In this regard, this submission
begins its analysis by quoting the Webster Dictionary's definitions of the three key
words of “specific,” “trade” and “obligation” to look for their ordinary meanings.
7.  First, the Webster Dictionary11 defines “obligation” as “something which a
person is bound to or not to do as a result of an agreement or responsibility.”  An
obligation binds Parties to abide by their agreement and renders them liable to
coercion and punishment for neglecting it.  An obligation does not allow fordiscretion on the part of the Parties.  In this light, Korea believes that provisions of
MEAs that allow for Parties' discretion as to whether to implement them do not
constitute obligations.  In other words, Korea is of the view that trade measures
authorized, not required by MEA, cannot be considered as obligations envisaged
in Paragraph 31(i).
12
8.  Second, the Webster Dictionary defines “specific” as “clearly distinguished,
stated or understood.”  “Specific” does not leave room for ambiguity, discretion or
misunderstanding.  To be “specific,” therefore, a provision must be precise,
definite and explicit in its totality.  In this light, Korea believes that “specific”
trade obligations are trade obligations that set forth not only a result which must
be achieved ( obligation de résultat)  but also measures which must be used to
achieve it (obligation de comportement ).  In other words, the obligations that lay
out only the objective, while leaving the implementing measures to Parties'
discretion, cannot be regarded as STOs.  In this respect, Korea agrees to
Argentina’s interpretation of the “specific obligations.”
                                                     
11 The New International Webster’s Dictionary for the English Language, 1995 Edition, Trident Press
International.
12 Reference is made to OECD’s categorization of trade measures as contained in OECD study
“Typology of trade measures based on environmental product standards and ppm standards”(COM/ENV/TD/93/89). The study classifies trade measures into four types: MEA-obligation measures, MEA-authorization measures,  MEA-related measures and national law measures.  According to the study, MEA-authorization measures are taken by individual counties based on an authorization in an MEA; MEA-related
measures are measures which are discretionary or suggested in the MEA.TN/TE/S/3
Page 14
Proposal Position
9.  Lastly, the Webster Dictionary defines “trade” as “the business of distribution,
selling and exchange.”  Of course, “trade” in the context of Paragraph 31(i) does
not refer to ordinary trade but international trade.  For practical purposes,
however, it would be convenient to presume that all of the measures listed in
WT/CTE/W/160/Rev.1 would meet the trade-relatedness requirement withoutgoing into further analysis of the meaning of international trade."
"11.  … in some cases, the criteria established in [paras. 6-9] alone are not
sufficient enough to provide guidance for identifying STOs.  Those cases mostly
involve COP decisions or resolutions, which suggests that identifying STOs is
closely linked to the definition of MEAs.
12.  For example, Article 4.2.e and 8 of the Basel Convention contain theambiguous words “environmentally sound way,” which is not operational byitself.  However, a COP decision elaborates it.  Further, Article 18 of the
Cartagena Protocol on Biosafety provides for basic elements of “behavioral
obligation,” while mandating the COP to elaborate more on those obligations.
13.  There are differing opinions on whether trade obligations contained in COPdecisions should be treated as STOs.  If Members follow a strict interpretation of“set out in MEAs,” trade obligations stipulated in COP decisions should not be
regarded as STOs.  Yet COP decisions are playing an increasingly important role
since most MEAs lay out only a basic framework and concrete rights and
obligations of the Parties take shape through COP decisions.  In addition, there are
cases where the MEAs concerned declare that COP decisions are their integralpart.
14.  Among COP decisions, the Marrakesh Accord is a unique case.  Articles 6, 12and 17 on the Flexibility Mechanisms in the Kyoto Protocol to the UNFCCC do
not stipulate any specific obligations.  Specific elements of the Mechanisms are
provided in the Marrakesh Accord, which future COP is expected to adopt.  It
seems that the Accord is not mandatory in legal point of view, but in participating
in the Flexibility Mechanisms, the Parties to the Kyoto Protocol cannot avoidabiding by the specific trade obligations set out therein.  Then, the question arises
whether such “ de facto”  obligations stipulated in the Accord are STOs. "
Switzerland
TN/TE/W/4
paras. 3-4"3.  Trade obligations under MEAs can cover a wide spectrum of possibilities,
ranging from trade bans to notification procedures or labelling requirements.
According to the European Communities (TN/TE/W/1), four categories ofmeasures arise from trade obligations: (1)  mandatory trade measures explicitly
provided for under MEAs : this is the case of CITES, whereby trade in some
species threatened with extinction which are or may be affected by trade can only
be permitted in exceptional circumstances; this is also the case of the Cartagena
Protocol on Biosafety as regards the obligatory advanced informed agreementprocedure for the first shipment of living modified organisms; (2) trade measures
not explicitly provided for nor mandatory under the MEA, but consequential of the
“obligation of result” of the MEA : MEAs identify a list of potential measures for
implementation; (3) trade measures not identified in nor mandatory under  the
MEA, but consequential of the “obligation of result ”: the MEAs do not list
measures; (4) trade measures not identified in nor mandatory under  the MEA, but
which parties can decide to implement : this is the case of the Montreal Protocol
(Article 2.11).TN/TE/S/3
Page 15
Proposal Position
4.  Switzerland feels that there is a need to define the different categories of
specific trade obligations set out (or explicitly provided for) in MEAs.  This
requires a detailed analysis of these categories to establish the distinction between
specific trade obligations and non-specific trade obligations.  Moreover,
Switzerland believes that it is also important to determine under what conditionsspecific trade obligations are automatically in conformity with WTO rules.  This is
particularly significant since the implementation of specific trade obligations may
not be consistent with WTO rules."
Switzerland
TN/TE/W/16
paras. 6-8"6.  Switzerland agrees with other delegations that the different categories of
"specific trade obligations"  set out in MEAs should be examined in order to be
able to make a distinction between specific and non-specific trade obligations.
Different categories were identified and discussed by several delegations in theframework of the latest debate.  New categories also emerged with the latest
contributions in particular by Japan, Korea, New Zealand and Chinese Taipei,
which we found useful in preparing our  submission.  Having studied these
analyses, Switzerland considers that the following two categories  come under the
heading of "specific trade obligations":
1.  Trade measures that are explicitly provided for and mandatory underMEAs
This is the case of the CITES, for example, under which trade in species
threatened with extinction which are or may be affected by trade is permitted only
in exceptional circumstances.  To illustrate our point, let us take plant X included
in Appendix I to the CITES, which lists the species that are affected by trade and
are subject to strict regulation.  If Member A prohibits the import of plant Xpursuant to Appendix I of the CITES, such a measure should be regarded as a
specific trade obligation and would hence be covered by the solution negotiated
among the WTO Members under paragraph 31(i).
2.  Other measures that are relevant and necessary to achieve an MEAobjective
These encompass the different categories of measures and policies adopted in
pursuit of a specific objective such as that of the Kyoto Protocol, which is toreduce emissions of greenhouse gases.  Such measures may relate to a number of
spheres – taxation, rules and standards, and so forth (Article 2.1 of the Protocol).
Let us take Member A, which is listed in Annex I to the Protocol along with the
other countries that have undertaken greenhouse gas reduction commitments.  If
Member A prohibits the importation and use of emission filters for industry on thegrounds that they do not meet national standards in terms of retention of
substances that adversely affect the concentration of greenhouse gases, such a
measure should be regarded as a specific trade obligation covered by the solution
negotiated among the WTO Members under paragraph 31(i).  Indeed, it
contributes to the implementation and achievement of the object of the Protocol,which provides for an " obligation de résultat " (obligation to achieve results).TN/TE/S/3
Page 16
Proposal Position
7.  Here we should underline that our analysis is similar  to that of Japan .  The
first two categories identified by Japan in paragraph 11 of its submission are
covered by our own categories.  Our second category is slightly broader than
Japan's, however, in that it encompasses MEAs which specify:
- An " obligation de résultat ", and
- the spheres  in which a measure may be taken.  Measures that may be adopted
to achieve the " obligation de résultat " target are thus not explicitly named
but implicitly derive from the sphere  in which they should be taken (e.g.
the fiscal sphere implies fiscal measures).
8.  In our view, the coverage of these two categories by paragraph 31(i) appears toenjoy broad consensus in this Committee."TN/TE/S/3
Page 17
V. RELATIONSHIP BETWEEN EXISTING WTO RULES AND SPECIFIC TRADE
OBLIGATIONS
A. GENERAL
Proposal Position
Chinese Taipei
TN/TE/W/11
paras. 1-2"1. … The government recognizes the importance of improving policy coherence
between trade and environment.  In our view, a consensus among WTO Members onthe issue could more easily be reached step by step.  The negotiation mandate set out
by the ministers in paragraph 31(i) of the Doha Declaration clearly aims at a certain
part of the overall relationship between WTO rules and trade measures taken for
environmental purposes.  The government believes that the mandate is an appropriate
first step in the right direction.
2.  WTO rules and MEAs are bodies of public international law governing cross-
border trade and environmental measures.  Greater compatibility and fewer
inconsistencies between the provisions of each body of law would doubtlessly
enhance the mutual supportiveness of trade and environment.  In order to pursue this
goal, better coordination and cooperation between trade and environmentalpolicymakers and negotiators at both the national and international levels will be
crucial.  The government acting on behalf of the separate customs territory of
Taiwan, Penghu, Kinmen and Matsu suggests that in the future, when negotiating a
new MEA, participating WTO Members who are in those negotiations shall ensure
that the specific trade obligations provided for in that particular MEA will be WTO-
consistent and they shall avoid possible conflicts."
European
Communities
TN/TE/W/1
paras. 9-17"9.  For many years, the EC has consistently taken the view that there is a need to
address the relationship between MEAs and WTO rules so as to ensure that it is based
on mutually supportive grounds.  We consequently welcome the possibility given by
the DDA to address the issue and move forward “with a view to enhancing the
mutual supportiveness between trade and environment” in the realm of the WTO.
10.  Considering the growing interface between trade and environment, and, in
particular between MEAs and WTO agreements, the EU believes that there is an
urgent need for all WTO Members to arrive at a consensus about the way forward inthis area through agreement on our shared interests and the desirable outcomes that
can accrue from addressing the trade and environment relationship for the benefit of
all.  In particular, it is important that the relationship between WTO rules and trade
measures pursuant to MEAs is the result of a political consensus arising out of a
process of negotiation between WTO Members rather than simply being left topotential dispute settlement and the results it imposes.
11.  Like the vast majority of WTO Members, the EU believes that environmentalmeasures addressing transboundary or global environmental problems should, as far
as possible, be based on international consensus, as stated in Principle 12 of the Rio
Declaration on Environment and Development.  Indeed, unilateral action by one
country is unlikely to be effective in solving such issues.  Moreover, the way in
which trade measures in MEAs are negotiated and agreed, i.e. by consensus in amultilateral context, should be an effective guarantee against discriminatory action
and their use for protectionist purposes.TN/TE/S/3
Page 18
Proposal Position
12.  MEAs also represent a concrete implementation of the “common but
differentiated responsibility” principle (Principle 7 of the Rio Declaration on
Environment and Development). While trade measures may be needed in certain
cases to achieve the environmental objective, co-operation provisions, and notably
financial, technology transfer, technical assistance and capacity building are an atleast equally important part of the MEA package, which can clearly be critical,
notably for developing countries, for the effective implementation of the MEA
13.  The EU believes that these considerations provide sound reasons for WTO
Members to strive towards and to reach a consensus on the relationship between
WTO rules and trade measures taken pursuant to MEAs.
14.  The MEA issue is not a zero sum game:  clarification of the relationship between
WTO rules and MEAs would provide gains to all WTO Members and Contracting
Parties to MEAs. It is clear that clarification would provide greater legal security for
both MEAs and for the WTO, making both systems more effective and making sure
that policy formulation within both systems was improved by the mere fact thatneither would operate in isolation of the ot her.  In this sense, the EU views the
MEA/WTO relationship as an international governance issue, i.e. relating to the
functioning of the global governance system and, in particular, to the necessary links
between bodies of law dealing with international trade and environment which both
form part of a global system.
15.  Clarifying the relationship would also create a clearer policy makingenvironment for both trade policy makers and negotiators of MEAs alike and helpprevent conflicts from happening in the first place because clearer parameters would
mean that MEAs would take WTO rules into account and WTO law would give due
weight to obligations arising under MEAs.
16.  Of particular importance, though, is the fact that clarification would render
multilateralism de facto more attractive than unilateralism without changing WTO
rules:  a more explicit and clearer status than exists at present as regards specific trade
obligations under MEAs could confirm the positive status of such measures underWTO.  Such measures are more secure than similar measures taken unilaterally and
without any form of international frame of reference, endorsement or debate.
17.  These factors should bode well for reaching a consensus among WTO Members
on the relationship between WTO rules and trade measures taken pursuant to MEAs.
Indeed, the EU considers that a positive stance among WTO Members and an openspirit focussed on the objectives of legal clarity and security could enable negotiators
to clarify and interpret the WTO/MEA relationship in such a way as to further
improve policy coherence between both bodies and ensure that they operate in a
mutually supportive way."
Japan
TN/TE/W/10
paras. 6-8"6.  When trade measures are taken, there may be the danger of these measures being
used in a manner that would constitute a means of arbitrary, unjustifiable
discrimination or a disguised restriction on international trade.  In particular,
unilateral trade measures which are not consistent with WTO rules, seriously
undermine the multilateral trade system and they should be strictly avoided.  Even if
trade measures are taken in order to achieve the environmental objectives, thesemeasures should be based on multilateral framework, as far as possible.TN/TE/S/3
Page 19
Proposal Position
7.  From such a viewpoint, in order to en sure the mutual supportiveness of trade and
environmental policies,  it is essential for the international community to develop
common understanding on the relationship between specific trade obligations set out
in MEAs and WTO rules, though the negotiations are limited to the relationship
among Parties to the MEAs in question.
8.  Up to now, many countries have been discussing the relationship between WTO
rules and trade measures stipulated in MEAs.   However, Members have not so much
focused on the specificity of the trade measures and the applicability of existing
WTO rules among the Parties to the same MEA."
Switzerland
TN/TE/W/4
paras. 1, 10-11"1. … Clarifying the relationship between WTO rules and MEAs would provide
greater legal security, make both systems more efficient and enable the necessary
links to be established between the legal provisions governing  international trade andthe environment. …"
"10. … It is sometimes said that, although WTO Members have not been able to
clarify this relationship, the Appellate Body has done so in its decision on the
Shrimp-Turtle case. In any case, this decision clarified the order in which recourse
could be made to the exceptions under Article XX of the GATT 1994:  the AppellateBody began by assessing whether one of the exceptions in Article XX(a) to (j) of the
GATT 1994 could be cited, and then went on to assess whether such a measure
generally met the requirement in the introductory clause of Article XX of the GATT
1994, namely whether the measure was arbitrarily discriminatory or protectionist.
Moreover, this decision clarified the term “exhaustible natural resources” inArticle XX(g) of the GATT 1994 and held that, according to that Article, living
natural resources, such as turtles, could be “exhaustible natural resources”.
11.  In Switzerland's view, however, the Shri mp-Turtle decision did not deal with the
question of the relationship between WTO rules and MEAs; it merely clarified the
conditions to be met by national environmental trade measures.  In fact, WTO
Appellate Body decisions are unable to establish a definite clarification of the
relationship between the WTO and MEAs. This Appellate Body decision merely
determines the legal situation of a specific case in relation to two WTO Members, but
does not constitute a general rule for the relationship between the WTO and MEAs.
Thus, the Appellate Body may amend its case law in a new ruling by not necessarily
following previous ones."
B. TERMS
Proposal Position
Argentina
TN/TE/W/2
para. 5"5.  The reference to "existing WTO rules" encompasses all the provisions of
agreements which are currently in force, known as "covered agreements".TN/TE/S/3
Page 20
Proposal Position
Chinese Taipei
TN/TE/W/11
paras. 5-6"5.  "[E]xisting"  should be understood as agreements that are currently in force.
6.  "WTO rules"  should encompass the Marrakesh Agreement Establishing the World
Trade Organization and all of the agreements and associated legal instruments
included in the Annexes thereto."
C. PRINCIPLES
Proposal Position
Argentina
TN/TE/W/2
paras. 8-12,
17 (b)"8.  Furthermore, criteria will have to be established for determining the kind of
relationship between the "specific trade obligations"  and the rules of the multilateral
trading system.
9.  The problem of the relationship between different legal provisions which relate to
a single issue is not unfamiliar to the WTO, the legal system of which is itself made
up of several multilateral and plurilateral agreements all coming under oneinternational treaty: the Marrakesh Agreement.  Indeed, the Marrakesh Agreement
comprises a series of independent agreements negotiated both in earlier rounds
("Codes") and throughout the history of the GATT.  The existence of provisions
which often wholly or partially overlap rules in other agreements or which appear to
constitute an implicit derogation can therefore be easily confirmed.
10.  The work of the Panels and the Appellate Body of the dispute settlement systemhas involved addressing situations in which several legal rules were applicable to a
single issue.  In that respect, the following "criteria" - which, moreover, stem from
international legal practice - were adopted to identify the kind of relationshipestablished between them:
• complementarity : meaning that concurrent obligations in two different, but
complementary, international agreements, if not mutually exclusive, should
be complied with at the same time.13  Commonly referred to as the "principle
of cumulation", this is what generally occurs at international level when a
State is bound by several international treaties14;
• express derogation : occurring when compliance with an obligation under one
convention - compliance with which would be incompatible with a provision
of another international agreement – is covered by an express exception in
the latter15;
                                                     
13 The report "European Communities - Regime for the Importation, Sale and Distribution of Bananas"
(WT/DS27/R/USA) of 22 May 1997 states that "…the obligations arising from the former (the Agreementslisted in Annex 1A) and GATT 1994 can both be complied with at the same time without the need to renounce
explicit rights or authorizations.  In this latter case, there is no reason to assume that a Member is not capable of,
or not required to, meet the obligations of both GATT 1994 and the relevant Annex 1A Agreement"
(paragraph 7.160).
14 The Appellate Body Report "Canada - Certain M easures Concerning Periodicals" (WT/DS31/AB/R)
of 30 June 1997 states that "The ordinary meaning of the texts of GATT 1994 and GATS as well as Article II:2of the WTO Agreement, taken together, indicates that obligations under GATT 1994 and GATS can co-exist
and that one does not override the other" (page 21).
15 The Appellate Body Report "European Communities - Regime for the Importation, Sale and
Distribution of Bananas" (WT/DS27/AB/R) of 9 September 1997 states that "The Agreement on AgricultureTN/TE/S/3
Page 21
Proposal Position
• conflict : occurring in situations where compliance with one obligation
necessarily entails failure to comply with another, and the two cannot be
reconciled.16
11.  The above-mentioned criteria would allow a series of relationships between the"specific trade obligations " in the MEAs and the provisions of the Marrakesh
Agreement to be identified.  This, in turn, would enable us to assess the need for,
and form which should be taken by, a possible regulatory solution within the
purview of the WTO to achieve greater complementarity between environmental andfree-trade objectives.
12.  We feel that this experience, which is characteristic of the WTO, constitutes a
reference which could serve as guidance when reviewing the relationship between
existing WTO rules and specific trade obligations in MEAs, given that both
multilateral environmental agreements a nd the Marrakesh Agreement, in their
capacity as international treaties, belong to the same international legal system."
"VII. SUMMARY
17. … (b) The criteria for identifying the relationship between the "specific trade
obligations" in MEAs and "existing WTO rules" can be drawn from the experience
of the Panels and the Appellate Body of the dispute settlement system."
Chinese Taipei
TN/TE/W/11
paras. 9, 14"9.  The government acting on behalf of the separate customs territory of Taiwan,
Penghu, Kinmen and Matsu considers that "the applicability of such existing WTO
rules as among parties to the MEA in question" should be understood from the
following perspectives:
• The government shares the same view expressed by certain Members17 that a
specific trade obligation (STO) provided for in an MEA should not be
automatically presumed to be in conformity with WTO rules.  With a view to
upholding and safeguarding an open and non-discriminatory multilateral
trading system, the legitimacy of a trade measure implemented pursuant to a
particular MEA should be examined in light of the principles of necessity,
proportionality, and transparency, and in light of whether it is based onsufficient scientific evidence and whether it  conforms to the chapeau of
GATT Article XX. …"
                                                                                                                                                                    
contains several specific provisions dealing with the relationship between articles of the Agreement on
Agriculture and the GATT 1994.  For example, Article 5 of the Agreement on Agriculture allows Members toimpose special safeguards measures that would otherwise be inconsistent with Article XIX of the GATT 1994
and with the Agreement on Safeguards…" (paragraph 157).
16 The Appellate Body Report "Guatemala - Anti-Dumping Investigation Regarding Portland Cement
from Mexico" (WT/DS60/AB/R) of 2 November 1998 states that "A special or additional provision should only
be found to prevail over a provision of the DSU in a situation where adherence to the one provision will lead to
a violation of the other provision, that is, in the case of a conflict between them. An interpreter must, therefore,
identify an inconsistency or a difference between a provision of the DSU and a special or additional provision ofa covered agreement before concluding that the latter prevails and that the provision of the DSU does not apply"(paragraph 65) (emphasis added).
17 Members who have expressed similar views include:  Australia (paragraph 20, TN/TE/R/1), Chile
(paragraph 24, TN/TE/R/1), Hong Kong, China, (paragraph 35, TN/TE/R/1), Pakistan (paragraph 43,TN/TE/R/1), the United States (paragraph 9, TN/TE/R/2) Brazil (paragraph 17, TN/TE/R/2), and Cuba
(paragraph 56, TN/TE/R/2).TN/TE/S/3
Page 22
Proposal Position
"14.  The government shares the same view expressed by certain Members that an
STO provided for in an MEA should not automatically be presumed to be in
conformity with WTO rules."
European
Communities
TN/TE/W/1
paras. 19, 29"19.  … the EU considers that the relati onship between WTO rules and MEAs in the
context of a global governance system should be based on the following principles:
• The importance and necessity of MEAs: global environmental problems need a
multilateral approach and solutions; accordingly unilateral action should be
avoided as far as possible.
• Multilateral environmental policy should be made within multilateral
environmental fora, and not in the WTO, in accordance with each body’s
respective expertise and mandate.
• When governments around the world develop positions for MEAs negotiations
it is desirable that they give consideration to relevant WTO rules so as to
ensure a mutually supportive relationship between both sets of rules.  When
the trade and environment interface raises novel trade-related questions, thesecould usefully be a subject of information exchange between the MEA
secretariat and the relevant WTO Committees.
• MEAs and WTO are equal bodies of international law.  They should recognize
each other with a view to being mutually supportive, in order to meet the
common goal of sustainable development.
• WTO rules should not be interpreted in “clinical isolation” from other bodies
of international law and without considering other complementary bodies of
international law, including MEAs.
"18
"29.  Building on this and the principles set out above, the following points are
worth bearing in mind as we consider the co-existence of WTO rules and MEAs:
• The conclusion of an MEA can have considerable relevance for the
application of WTO rules in a particular dispute, even in relation to non-
parties.  The jurisprudence of the Appellate Body in environment-related
cases strongly suggests that the conclusion of an MEA could well be a key
element to determine the justification of certain measures under Article XX
of the GATT.  Indeed, the Appellate Body has made clear that good-faithefforts to negotiate such an agreement can, provided certain other conditions
are met, be sufficient to justify that a trade measure meets the criteria of the
“chapeau” to article XX.  In addition, the Appellate Body also confirmed that
GATT Article XX “ must be read by a Treaty interpreter in the light of
contemporary concerns of the Community of nations about the protectionand conservation of the environment ” and that, in general, WTO agreements
should not be interpreted in clinical isolation from other parts of international
law such as MEAs.  It is clear that the existence of an MEA should be taken
into consideration in applying WTO rules.
                                                     
18 Appellate Body in Reformulated Gasoline  case.TN/TE/S/3
Page 23
Proposal Position
• WTO rules and MEAs are two bodies of public international law with equal
status.  As a general principle, countries should aim at fulfilling in good faith
both sets of rules and, in the event of adjudication, the first task would be to
seek to interpret each set of rules in a manner which avoids potential conflicts.
This should normally be sufficient to avoid such conflicts, particularly bearing
in mind that – as stated above – general WTO provisions have been interpretedgiving due weight to the conclusion of an MEA, even in cases where non-
parties are involved.
• In those rare cases in which interpretation is not sufficient to avoid a potential
conflict, there is a need to determine – under rules of public international law –
which is the applicable body of law.  This is a complex issue which merits
further discussion.  At this stage, it may suffice to say that an importantconsideration could be not so much the application of the lex specialis  test but
which of the two sets of rules provides for a more specific regulation of the
issue under dispute.  In this connection, the discussion above on the extent to
which an MEA contains a specific trade obligation may well be of particular
relevance.
• It would appear that, in those cases in which an MEA provides a specific trade
obligation and this is the basis for the trade measures under dispute, parties
should in the first instance seek to resolve their dispute within the MEA in
question, notably under any dispute settlement mechanism provided."
Japan
TN/TE/W/10
paras. 3, 8-9,
12-15"3.  The purpose of this paper is to present an idea on "specific trade obligations".
That is, those which are highly specified in MEAs should be deemed to be consistent
with WTO rules, while other relevant measures specified in MEAs should be
presumed to be WTO consistent on condition that those measures meet certainsubstantial requirements."
"8.  Up to now, many countries have been discussing the relationship between WTO
rules and trade measures stipulated in MEAs.  However, Members have not so much
focused on the specificity of the trade measures and the applicability of existing
WTO rules among the Parties to the same MEA.
9.  Some may argue that it would be possible to minimize the risk of overlooking the
abuse of these trade measures, if such measures are defined sufficiently specifically.
They may also point out the lex posterior principle, which is partly incorporated in
Article 30 of the Vienna Conventions on the Law of Treaties, can be invoked so as
to clarify the relation between MEAs and WTO rules.  However, it would be
difficult to sufficiently clarify such relations by applying this principle since MEAs
and WTO rules do not necessarily address the same concerns.   Therefore, it isuseful and beneficial to all the members to develop some common understanding to
clarify the relationship between MEAs and WTO rules."
"12.  Japan considers that, with regard to trade measures explicitly provided for and
mandatory under MEAs …, such trade obligations could be deemed as compatible
with WTO rules among MEA Parties, since those obligations had been negotiatedunder the existence of WTO or GATT rules and implementation procedures for
these trade measures had been agreed.TN/TE/S/3
Page 24
Proposal Position
13.  If an MEA provides for “obligation de résultat” and indicates the relating trade
measures in the MEA …, Japan also considers that there is common understanding
on the needs for the measures among MEA Parties.
14.  In the case referred to in paragraph 13, though the MEA Parties have commonacknowledgement of needs and relevance of the trade measures, those measures
could not be automatically deemed as compatible with WTO rules, since specificity
of individual measure would not be so clear as category (1).  Therefore, in this case,Japan considers that it would be rebuttably presumed to be consistent with WTO
rules
19, if substantial requirements could be introduced such as indicated as below.
For instance, in terms of GATT Article XX, following substantial requirements are
appropriate20,
1.  The trade measures, pursuant to an MEA to achieve its environmental
objectives, are based on scientific reasons, the trade measures are reasonably
related to the objectives.
2.  The scope of trade measures has proportional range and degree in the pursuit
of MEA objectives (Proportionality).
15.  On the other hand, trade measures categorized in (3) & (4) of the paragraph 11
above are deemed to be outside the scope of this mandate.  Each trade measure
categorized in the latter two groups, if necessary, should be deliberated on a case-by-
case basis.  Furthermore, if a Party takes certain trade measures based on a MEA
categorized in (3) or (4) of paragraph 11 above, such measures could be subject to
consultation between affected Parties of the MEA in question through informationexchange mechanism.  Thus, a linkage between paragraph 31 (i) and (ii) could
contribute to enhance the legal stability of the application of MEA-related trade
measures."
Switzerland
TN/TE/W/4
paras. 4, 7-8"4. … Moreover, Switzerland believes that it is also important to determine under
what conditions specific trade obligations are automatically in conformity with
WTO rules. This is particularly significan t since the implementation of specific trade
obligations may not be consistent with WTO rules."
"7.  In accordance with its submissions in documents WT/CTE/W/139 and
WT/CTE/W/168, Switzerland maintains that the relationship between WTO rules
and specific trade obligations in MEAs is governed by the approach based on the
general principles of  no hierarchy, mutual supportiveness and deference.  In
focusing on their own tasks and competencies, the multilateral trading system andenvironmental regime are mutually supportiv e.  In order to maintain this mutual
supportiveness, each should remain responsible and competent for the issues falling
within its primary area of competence.  WTO Members, when negotiating an MEA,
therefore make sure that trade measures are not included in the MEA if they are
unnecessary, arbitrary, protectionist or unjustifiably discriminatory.  It is for this
                                                     
19 Article 2.5 of the TBT Agreement refers to a method of rebuttable presumption.
20 These requirements were previously referred to in Japan's proposal to the CTE in 1996.  Japan
reviewed the requirements in light of relevant jurisprudence thereafter.  See paragraphs 137-142 of the
Appellate Body Report of the US-Shrimp case (WT/DS58/AB/R).TN/TE/S/3
Page 25
Proposal Position
reason that determination of whether specific measures constitute a means of
arbitrary or unjustifiable discrimination between countries where the same
conditions prevail or a disguised restriction on international trade should clearly fall
within the competence of the WTO.  Moreover, it is in the competence of the MEAs
to determine the legitimacy of environmental measures and the necessity andproportionality of trade measures taken under an MEA, insofar as the MEA
expressly provides for such verification.
8.  The fact that the WTO and MEAs should each focus on their primary competencedoes not mean, however, that the WTO cannot adopt principles and rules that affect
the environment.  At the same time, MEAs are not, and should not be prevented
from adopting rules and principles that affect trade.  Rules and principles on
international trade may indeed affect th e environment; similarly, environmental
regulations may have an impact on trade.  Thus, if the international community
indicates in an MEA that implementation of a trade measure is necessary in order to
achieve an environmental goal, such a measure must also be deemed to be necessary
within the WTO context (principle of the presumption of WTO conformity: the trade
measures provided for in an MEA are presumed to be necessary to protect theenvironment).  Moreover, on account of the principle of the presumption of WTO
conformity, when a Member, pursuant to an MEA, prohibits the sale of a product for
environmental reasons, this ban would be considered to be WTO compatible and the
Member would no longer have to show that its measure was covered by the
exceptions of Article XX(b) or (g) of the GATT 1994, namely  that it is necessary to
protect the environment and neither arbitrarily discriminatory nor protectionist.
Therefore, while each regime should focus on its primary competence, it is not
prevented from adopting measures which affect the other regime.  In so doing, the
concerns and interests of the other regime should be taken into account and
deference paid to its competence."
Switzerland
TN/TE/W/16
Section III"III. FUNDAMENTAL PRINCIPLES WHICH, TO OUR MIND, GOVERN
THE RELATIONSHIP BETWEEN EXISTING WTO RULES ANDSPECIFIC TRADE OBLIGATIONS SET OUT IN MEAS
(a) General principles of no hierarchy, mutual supportiveness and deference
… Concerning the principles that govern the relationship between the WTO rules
and specific trade obligations set out in MEAs, Switzerland, as stated in document
TN/TE/W/4, endorses the approach based on the general principles of no hierarchy,mutual supportiveness and deference.  In focusing on their own tasks and spheres of
competence, the multilateral trading system and the environmental protection regime
are mutually supportive.  In this connection, we were extremely pleased to see that
one of the outcomes of the Johannesburg World Summit on Sustainable
Development (paragraph 92 of the Plan of Implementation) confirms, at the globallevel, our position/approach of promo ting mutual supportiveness between the
multilateral trading system and multilateral environmental agreements.  Our
approach is specifically geared towards this mutual supportiveness goal.TN/TE/S/3
Page 26
Proposal Position
(b) Principle of presumption of conformity with the WTO rules
According to the principle of presumption of conformity with the WTO rules, trade-
related measures in MEAs are assumed to be necessary for the protection of the
environment.  Switzerland thus endorses paragraph 12 of Japan 's submission,
stating that, as regards trade measures that are mandatory  and explicitly  provided
for under MEAs, such trade obligations may be deemed to be consistent  with the
WTO rules among MEA parties.  This principle obviously requires Members
negotiating an MEA to make sure that the MEA does not include unnecessary,
arbitrary, protectionist or unjustifiably discriminatory trade measures.
(c) Reversal of the burden of proof
Under the principle of presumption of co nformity with the WTO rules, when a
Member, pursuant to an MEA, prohibits the marketing of a product forenvironmental reasons, such a ban is considered to be WTO-consistent and the
Member would no longer have to show that its measure was covered by the
exceptions under Article XX(b) ( reversal of the burden of proof )
(d) "Objectionable" practical implementation
Notwithstanding the above, it should be pointed out that the practical
implementation  of trade measures might still be challenged where a Member has
used its discretion in a manner which infringes WTO obligations.  Here the burden
of proof would lie with the complaining party, however, and not with the Member
having adopted the measure.  This should answer the question from Chile.  To
illustrate the problem, let us start from the hypothesis that an MEA expresslyprohibits the production and importation of substance S because of its harmful
effects on the environment in general.  In accordance with the presumption of WTO
conformity, the import ban imposed by Member M would be regarded as WTO-
consistent.  Thus, a WTO Panel would not have to examine whether the import ban
is necessary under Article XX(b) but should consider that the measure as such is
covered by the exception under Article XX(b).  Complainant P could still claim,
however, that the manner in which Member M applies the ban is not consistent withWTO obligations, if the measure constitutes, for example, arbitrary or unjustifiable
discrimination or a disguised restriction on international trade.  This particular
situation does not reflect a conflict between the WTO rules and an MEA but a
traditional conflict between the WTO rules and a domestic measure. "TN/TE/S/3
Page 27
VI. PARTY/NON-PARTY ISSUES
Proposal Position
Argentina
TN/TE/W/2
paras. 14-16,
17 (d)"14.  The mandate under paragraph 31(i) establishes that the negotiations shall not
prejudice the WTO rights of any Member that is not a party to an MEA.  That is to
say, the "intangibility" of the rights of WTO Members that are not a party to an
MEA has been established by the Ministers regardless of the final outcome of thenegotiations.
15.  Negotiating in such circumstances raises questions about the legal effects andsituations which would result from a decision to adopt rules as a response to ensure
compliance with " specific trade obligations " which are potentially inconsistent
with WTO principles.
Compliance with " specific trade obligations " which could come into conflict
with WTO provisions or principles would involve diminishing the rights currentlyenjoyed by WTO Members which are also a party to an MEA.  Two categories of
WTO Members would therefore be established:
Members which are a party to an MEA: their rights would be diminished to
ensure compliance with specific trade obligations which are potentially
inconsistent with the Marrakesh Agreement;
Members which are not a party to an MEA: they would enjoy more extensive
rights under the Marrakesh Agreement since they would not be affected by the
outcome of the negotiations, as expressly stated in paragraph 31(i) of the Doha
Declaration.
16.  Were this to be the final outcome, the legal situations and implications for
WTO Members which are a party to an MEA would be as follows:
(a)  Some environmental agreements have been signed with a special safeguard
clause which protects rights and obligations under other international agreements,
including the Marrakesh Agreement.  Any modification of the WTO rights of
Members which are a party to an MEA would therefore involve a radical change in
the normative context in which the agreement was signed.  That is to say, it would
alter the conditions in which a WTO Member consented to be bound by an MEA.
(b)  A change in the WTO rights of States which are a party to an MEA in order to
comply with " specific trade obligations " which may prove contrary to the
Marrakesh Agreement would involve modifying the scope of MEA obligations.  In
other words, an amendment of the Marrakesh Agreement would quite simply mean
altering the scope and extent of the obligations in the MEA, with consequent
effects on the parties thereto."
"VII. SUMMARY
17. … (d) In the event of a normative solution being chosen to ensure compliance
with the specific trade obligations in mu ltilateral environmental agreements, the
legal implications for Members party to the MEA should be taken intoconsideration since this would involve a radical change in the normative context in
which the agreement was signed and a modification of the extent and scope of the
specific trade obligations in the MEA."TN/TE/S/3
Page 28
Proposal Position
Chinese Taipei
TN/TE/W/11
paras. 9-12, 16"9.  The government acting on behalf of the separate customs territory of Taiwan,
Penghu, Kinmen and Matsu considers that "the applicability of such existing WTO
rules as among parties to the MEA in question" should be understood from the
following perspectives: …
• When there is a specific trade dispute arising between WTO
Members/Parties to the MEA in question, the complaining Member alone
shall have the right to bring the case to the dispute settlement mechanism
under the WTO regime or the regime of the MEA in question, subject to the
provisions of Article 23 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU), which contemplate that
disputes arising under WTO rules will be brought to the Dispute SettlementBody for resolution .  However, if the trade dispute is between a WTO
Member/Party and a WTO Member/Non-party to the MEA in question, the
case shall only be settled according to WTO rules and procedures as
stipulated in the DSU.
10.  Because negotiations under the mandate are limited to the applicability of
existing WTO rules as among WTO Members/Parties with respect to MEAs, it
follows that such negotiations shall not prejudice the WTO rights of any Memberthat is not a party to the MEA in question.   The WTO rights  should be interpreted
as encompassing substantive as well as procedural rights conferred upon every
WTO Member by the existing WTO rules.  Substantive rights include legitimate
trade interests guaranteed to a WTO Member under any of the WTO agreements,
while procedural rights include the right to resort to the WTO dispute settlementmechanism.
11.  Further, in our view, when a Member is not able to participate in the decision-making procedure of a particular MEA and if a trade dispute arises between a
WTO Member/Non-party and a WTO Member/Party to such an MEA, a panel
established according to the DSU shall, if applicable, give weight to the fact that
the WTO Member/Non-party to the MEA in question was precluded from
participation in the negotiations of such an MEA.
12.  In this context, it is important to recall that the ministers also stated in
paragraph 32 of the Doha Declaration that "the negotiations carried out under
paragraph 31(i) and (ii) shall be compatible with the open and non-discriminatory
nature of the multilateral trading system, shall not add to or diminish the rights and
obligations of Members under existing WTO agreements, in particular theAgreement on the Application of Sanitary and Phytosanitary Measures, nor alter
the balance of these rights and obligations, and will take into account the needs of
developing and least-developed countries."
"IV. SUMMARY
… 16.  If a trade dispute arises between a WTO Member/Party and a WTO
Member/Non-party to an MEA, such dispute shall only be settled according to
rules and procedures as stipulated in the DSU of the WTO Panels and the
Appellate Body shall, if applicable, give weight to the fact that the WTO
Member/Non-party to the MEA in question was precluded from participation in the
negotiations of such an MEA."TN/TE/S/3
Page 29
Proposal Position
European
Communities
TN/TE/W/1
paras. 28-29"28.  As a point of departure it is worth recalling the fact that any specific trade
obligation in an MEA is negotiated and agreed by consensus in a multilateral
context and that this should be, in principle, a guarantee against discriminatory and
protectionist action.  Challenges between Parties over specific trade obligations
are, therefore, highly unlikely from both a political and legal point of view .
Accordingly, if Parties have agreed specific trade obligations, they should have no
reason or ground to challenge them afterwards.  The EC is also of the view that,
were such a case to arise, the Parties involved should make every effort to solve the
issue through the MEA dispute settlement, as recommended by the CTE in its
report to Singapore .21  If such a course of action were not followed and a case were
brought in the WTO without any effort to resolve the issue in the MEA’s dispute
settlement mechanism, or if the MEA in question did not have such a mechanism,
the WTO panel should take due account of the MEA when addressing the case, as
has been consistently confirmed by successive panels.  It could be legitimately
argued that the measures taken by a WTO Member to implement specific tradeobligations should in such a case be recognized as legitimate by the WTO and yet
their concrete implementation might still be challenged if a Member has used its
discretion in a manner which infringes WTO obligations.
29.  Building on this and the principles set out above, the following points areworth bearing in mind as we consider the co-existence of WTO rules and MEAs:
• The conclusion of an MEA can have considerable relevance for the
application of WTO rules in a particular dispute, even in relation to non-
parties .  The jurisprudence of the Appellate Body in environment-related
cases strongly suggests that the conclusion of an MEA could well be a key
element to determine the justification of certain measures under Article XX
of the GATT.  Indeed, the Appellate Body has made clear that good-faith
efforts to negotiate such an agreement can, provided certain other
conditions are met, be sufficient to justify that a trade measure meets thecriteria of the “chapeau” to article XX.  In addition, the Appellate Body also
confirmed that GATT Article XX “ must be read by a Treaty interpreter in
the light of contemporary concerns of  the Community of nations about the
protection and conservation of the environment ” and that, in general, WTO
agreements should not be interpreted in clinical isolation from other parts of
international law such as MEAs.  It is clear that the existence of an MEA
should be taken into consideration in applying WTO rules.
• WTO rules and MEAs are two bodies of public international law with equal
status.  As a general principle, countries should aim at fulfilling in good
faith both sets of rules and, in the event of adjudication, the first task would
be to seek to interpret each set of rules in a manner which avoids potential
conflicts .  This should normally be sufficient to avoid such conflicts,
particularly bearing in mind that – as stated above – general WTOprovisions have been interpreted giving due weight to the conclusion of an
MEA, even in cases where non-parties are involved.
                                                     
21 Paragraph 178 : “While WTO members have the right to bring the dispute to the WTO dispute
settlement mechanism, if a dispute arises between WTO members, Parties to an MEA, over the use of trade
measures they are applying between themselves pursuant to  the MEA, they should consider trying to resolve it
through the dispute settlement mechanism available under the MEA”.TN/TE/S/3
Page 30
Proposal Position
• In those rare cases in which interpretation is not sufficient to avoid a
potential conflict, there is a need to determine – under rules of public
international law – which is the applicable body of law.  This is a complex
issue which merits further discussion.  At this stage, it may suffice to say
that an important consideration could be not so much the application of the
lex specialis  test but which of the two sets of rules provides for a more
specific regulation of the issue under dispute.  In this connection, the
discussion above on the extent to which an MEA contains a specific trade
obligation may well be of particular relevance.
• It would appear that, in those cases in which an MEA provides a specific
trade obligation and this is the basis for the trade measures under dispute,
parties should in the first instance seek  to resolve their dispute within the
MEA in question, notably under any dispute settlement mechanism
provided."
Switzerland
TN/TE/W/4
paras. 5-6"5.  As the European Communities recalled in its submission (TN/TE/W/1), any
specific trade obligation in an MEA is negotiated and agreed by consensus in a
multilateral context and challenges between Parties are, therefore, highly unlikely.
Accordingly, if parties have agreed specific trade obligations, they should have no
reason to challenge them afterwards.  However, were such a case to arise, theParties involved should endeavour to solve the issue through the MEA dispute
settlement mechanism.  The measures taken by a WTO Member to implement the
specific trade obligations under an MEA should, in such a case, be recognized as
legitimate by the WTO;  and yet their concrete implementation might still be
challenged if a Member has used its discretion in a manner which infringes WTOobligations.
6.  The notion of "among parties to the MEA" raises another issue: sometimes bothparties to a dispute have acceded to an MEA, but one has not subscribed to all of
the annexes or amendments, as is possible with the Montreal Protocol.  Would this
Member be considered a party to the MEA in question and, as such, affected by the
applicability of existing WTO rules?  Does the dispute qualify as "among parties to
the MEA"? Or, is it, rather an MEA - non-MEA relationship? Switzerland believesthat there is a particular need to clarify whether "among parties to the MEA" means
that both parties which have acceded to an MEA must be parties to the MEA and
its annexes in exactly the same way or whether it is enough that they should be
parties to a framework convention without taking the annexes into consideration.
This would involve specifying whether or not the party to the MEA in question
which has not subscribed to the specific annexes could be affected by the
applicability of WTO rules in the same way as an MEA party which has subscribedto the annexes."TN/TE/S/3
Page 31
VII. OUTCOME OF THE NEGOTIATIONS
Proposal Position
Argentina
TN/TE/W/2
paras. 16, 17 (d)"16.  Were this to be the final outcome [see paragraph 15], the legal situations and
implications for WTO Members which are a party to an MEA would be as follows:
(a) Some environmental agreements have been signed with a special safeguard
clause which protects rights and obligations under other international agreements,including the Marrakesh Agreement.  Any modification of the WTO rights of
Members which are a party to an MEA would therefore involve a radical change
in the normative context in which the agreement was signed.  That is to say, it
would alter the conditions in which a WTO Member consented to be bound by anMEA.
(b) A change in the WTO rights of States which are a party to an MEA in order to
comply with " specific trade obligations " which may prove contrary to the
Marrakesh Agreement would involve modifying the scope of MEA obligations.
In other words, an amendment of the Marrakesh Agreement would quite simply
mean altering the scope and extent of the obligations in the MEA, with
consequent effects on the parties thereto."
"VII. SUMMARY
17. … (d)  In the event of a normative solution being chosen to ensure compliance
with the specific trade obligations in multil ateral environmental agreements, the legal
implications for Members party to the MEA should be taken into consideration since
this would involve a radical change in the normative context in which the agreement
was signed and a modification of the extent and scope of the specific tradeobligations in the MEA."
Australia
TN/TE/W/7
para. 12"12.  Ministers have made clear the context for the negotiations under paragraph 31 –
that they are being undertaken to enhance the mutual supportiveness of trade and
environment.  Ministers have expressly provided in paragraph 32 that the outcome of
the negotiations carried out under paragraph 31(i) shall be compatible with the open
and non-discriminatory nature of the multilateral trading system, shall not add to or
diminish the rights and obligations of Members under existing WTO agreements, inparticular the Agreement on the Application of Sanitary and Phytosanitary Measures,
nor alter the balance of these rights and obligations."
Chinese Taipei
TN/TE/W/11
paras. 9, 15"9.  The government acting on behalf of the separate customs territory of Taiwan,
Penghu, Kinmen and Matsu considers that "the applicability of such existing WTO
rules as among parties to the MEA in question" should be understood from the
following perspectives: …
• WTO Members could negotiate an interpretative decision or an understanding
that explicitly set out conditions and principles for the WTO-consistency ofcertain trade obligations provided for MEAs .  This decision or understanding
could be used to examine the legitimacy of trade measures instituted to
implement such MEA requirements .  Furthermore, the decision or
understanding could also provide meaningful guidance for WTO Members
negotiating new MEAs. …"TN/TE/S/3
Page 32
Proposal Position
"IV. SUMMARY
… 15.  WTO Members could negotiate an interpretative decision or an understanding
that sets out conditions and principles for the WTO-consistency of an STO provided
for in an MEA .  The principles of necessity, proportionality, and transparency - as
well as a requirement of sufficient scientific evidence and conformity with thechapeau of GATT Article XX – should be incorporated into the interpretative
derision or the understanding for examining the legitimacy of a trade measure
instituted pursuant to an MEA."
Japan
TN/TE/W/10
paras. 16-17"16.  With respect to the relationship between existing WTO rules and specific trade
obligations set out in MEAs, the above-mentioned classification could be considered
as a criterion to assess compatibility with  the WTO Agreement.  When we have to
find a way out at the end of the negotiatio ns, Japan could propose to adopt a binding
interpretative understanding pursuant to Article 9.2 of Marrakesh Agreement
Establishing the WTO on the relationship between existing WTO rules and specific
trade obligations set out in MEAs among MEA Parties.  It is true that there have been
few disputes over trade measures between MEA Parties that are also Members of the
WTO.  However, we could suggest establishing such an interpretative understanding,because such indication would ensure the legal stability and enhance predictability on
the compatibility between both jurisprudence.
17.  Even if “specific trade obligations” pursuant to MEAs are deemed as consistent
with the WTO rules, each trade measure actually taken by a WTO Member is not
automatically consistent with the WTO rules.  If a certain interpretativeunderstanding, as mentioned above, can be adopted, an issue to be examined in the
dispute settlement would be presumably “whether the measure in question has been
taken in pursuant to relevant provisions of MEAs or not”."
Switzerland
TN/TE/W/4
paras. 9-16"IV. OPTIONS FOR REGULATING THE RELATIONSHIP BETWEEN WTO
RULES AND SPECIFIC TRADE OBLIGATIONS IN MEAs
9.  In accordance with the Note by the WTO Secretariat (TN/TE/S/1), several
approaches were proposed prior to the Doha Ministerial Conference for clarifying the
relationship between the rules and provisions of the WTO system and those of MEAs
which were most likely to prove incompatible: (A) leave the issue to be settled by thedispute settlement mechanism; (B) amend Article XX of the GATT 1994 by
introducing a reference to the environmen t; (C) adopt an interpretative decision.
These three options, then,  can provide appropriate means of clarifying the
relationship between WTO rules and MEAs.
A. D ISPUTE SETTLEMENT MECHANISM
10.  The first proposed solution is to let this issue be settled in a specific case by a
Panel or by the Appellate Body in a dispute settlement proceeding.  It is sometimessaid that, although WTO Members have not been able to clarify this relationship, the
Appellate Body has done so in its decision on the Shrimp-Turtle case.  In any case,
this decision clarified the order in which recourse could be made to the exceptions
under Article XX of the GATT 1994:  the Appellate Body began by assessing
whether one of the exceptions in Article XX(a) to (j) of the GATT 1994 could becited, and then went on to assess whether such a measure generally met theTN/TE/S/3
Page 33
Proposal Position
requirement in the introductory clause of Article XX of the GATT 1994, namely
whether the measure was arbitrarily discriminatory or protectionist.  Moreover, this
decision clarified the term “exhaustible natural resources” in Article XX(g) of the
GATT 1994 and held that, according to that Article, living natural resources, such as
turtles, could be “exhaustible natural resources”.
11.  In Switzerland's view, however, the Shri mp-Turtle decision did not deal with the
question of the relationship between WTO rules and MEAs; it merely clarified theconditions to be met by national environmental trade measures.  In fact, WTO
Appellate Body decisions are unable to establish a definite clarification of the
relationship between the WTO and MEAs.  This Appellate Body decision merely
determines the legal situation of a specific case in relation to two WTO Members, but
does not constitute a general rule for the relationship between the WTO and MEAs.Thus, the Appellate Body may amend its case law in a new ruling by not necessarily
following previous ones.
B. R EFERENCE TO THE ENVIRONMENT IN ARTICLE XX
12.  The second solution proposed is the adoption of an environmental clause which
would explicitly define the relationship between WTO rules and MEAs.  Such aclause would enable the principles governing the coexistence of the two systems,
namely the trade and environmental systems, to be defined.  Introducing an
environmental clause would mean reviewing Article XX of the GATT 1994, and
more particularly, amending Article XX(b) and (g) of the GATT 1994, and inserting
a new provision in that Article.
13.  Switzerland believes that a review of Article XX of the GATT 1994 would
reopen the debate on that Article at the risk of having to reconsider the whole Article;
and while such an approach does not seem to meet with the favour of WTO Members
at this stage, Switzerland does not oppose it.
C. INTERPRETATIVE DECISION
14.  Adoption of an interpretative decision by WTO Members to settle the issue of the
relationship between WTO rules and specific trade obligations in MEAs is the thirdproposed solution.  An interpretative decision would be able to indicate clearly that
the relationship between the trade and environmental systems is governed by the
general principles of  no hierarchy, mutual supportiveness and deference.
15.  Switzerland is of the opinion that the relationship between the WTO and MEAs
is a fundamental issue which WTO Members must resolve themselves through aninterpretative decision rather than requiring the Appellate Body to do so.  Moreover,
an interpretative decision neither adds to or diminishes the rights and obligations of
Members, but simply clarifies the texts.  Finally, this approach would also underscore
the WTO's commitment to taking environmental needs into consideration.
V. CONCLUDING REMARKS
16.  In view of the foregoing, Switzerland is  of the view that the first option, namely
to let this issue be settled as a specific case by a panel or by the Appellate Body in the
framework of a dispute settlement proceeding, cannot constitute a solution given that
under the Doha Declaration, WTO Members agreed to hold negotiations on the
relationship between existing WTO rules and specific trade obligations set out inTN/TE/S/3
Page 34
Proposal Position
MEAs.  In so doing, they underscored their determination to find a solution to this
issue and not to leave it to dispute settlement bodies.  Nor, as far as Switzerland is
concerned, does the second option, namely revising Article XX of the GATT 1994,
constitute a solution either, given that the Doha Declaration requires that the
negotiations carried out under paragraph 31(i) should be compatible with the openand non-discriminatory nature of the multilateral trading system and should not add
to or diminish the rights and obligations of Members under existing WTO
Agreements.  Thus, Switzerland believes that the only possible solution is to adopt an
interpretative decision.  Consequently, it recalls that MEAs and the WTO are equal
legal entities and that the relationship between WTO rules and specific tradeobligations in MEAs can only be governed by the general principles of  no hierarchy,
mutual supportiveness and deference, for which purpose an interpretative decision is
necessary."
Switzerland
TN/TE/W/16
paras. 9-11"IV. WHAT SHOULD BE THE OUTCOME OF THE NEGOTIATION
9.  An interpretative decision  would, in Switzerland's opinion, clearly indicate that
the relationship between the trade and the environmental protection systems is
governed by the general principles of no hierarchy, mutual supportiveness anddeference.  Switzerland is convinced that the adoption of an interpretative decision is
the only probable solution so far.  Indee d, this would meet the WTO Members' wish
to find a solution to the issue of the relationship between the WTO rules and MEAs
which neither adds to nor diminishes the rights and obligations of Members, but
simply clarifies the texts.  We therefore welcome Japan 's endorsement of our option.
10.  If we do not adopt a interpretative decision , responsibility for determining the
relationship between the WTO rules and the specific obligations in MEAs – an areawhich has eminently political  implications – will de facto  lie in the legal, and not the
legislative, sphere.
11.  Switzerland is convinced that the decisions of the Appellate Body are designed to
determine the legal circumstances specific to a case involving two WTO Members
but not to establish general rules  as would be required for the relationship between
the WTO and MEAs.  Moreover, Switzerland re-emphasizes that under the Doha
Ministerial Declaration, the WTO Members agreed to hold negotiations on therelationship between the WTO rules and MEAs.  In so doing, they underscored their
determination to find a solution to this issue and not to leave it to the dispute
settlement bodies.  Indeed, what is at stake is the predictability of the WTO legal
system.  An interpretative decision would thus pursue two objectives.  On the one
hand, it would clarify the scope of WTO law (which will be useful in negotiating thedevelopment of trade rules in MEAs) and, on the other, it would provide guidance for
the WTO Dispute Settlement Body."TN/TE/S/3
Page 35
VIII.  MEAS REFERRED TO IN THE PROPOSALS
A. INTERNATIONAL PLANT PROTECTION CONVENTION (IPPC)
Provision Proposal Comments
7(1) Korea
TN/TE/W/13
para. 1010.  Not an STO: "Gives Parties a sovereign right to regulate plant
importing."
7(2) Korea
TN/TE/W/13
para. 1010.  STO: "Stipulates Parties’ obligation to take precisely specified measures
such as publishing and transmitting phytosanitary requirements."
B. INTERNATIONAL COMMISSION FOR THE CONSERVATION OF ATLANTIC TUNAS (ICCAT)
Provision Proposal Comments
General Japan
TN/TE/W/10
para. 11Japan used ICCAT as an example of an MEA which contains "[t]rade
measures [that] are not mentioned in MEAs but [that] Parties can take … inaccordance with relevant decisions made under the MEA framework."
Korea
TN/TE/W/13
paras. 10, 1110.  "ICCAT does not contain trade measures, but resolutions taken by the
Parties do contain trade restrictions, which can be STOs …".
"11.  The analysis above [i.e. in para. 10] shows that, in some cases, the
criteria established in Section 2 [i.e. in paras. 6-9] alone are not sufficient
enough to provide guidance for identifying STOs.  Those cases mostly
involve COP decisions or resolutions, which suggests that identifying STOsis closely linked to the definition of MEAs."
C. CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES (CITES)
Provision Proposal Comments
General European
Communities
TN/TE/W/1
paras. 23,
24-25The European Communities refers to CI TES as an example of an MEA for
which trade measures have been key to its success:
"23. … Another example is the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) thanks to which none
of the species protected by it have become extinct as a result of trade…".
"24.  It is also worth noting that some MEAs, such as CITES …, contain the
terms “international trade” in the name of the Convention itself and trademeasures are the key instrument to reach the ultimate objective of the MEA
in question.TN/TE/S/3
Page 36
Provision Proposal Comments
25.  … [CITES contains] [t]rade measures explicitly provided for and
mandatory under MEAs: … in CITES … trade in some species threatened
with extinction which are or may be affected by trade (listed in Appendix I)
can only be permitted in exceptional cases, and trade in other species which
may become extinct unless trade in these species is subject to strictregulation in order to avoid utilisation incompatible with their survival
(listed in Appendix II) requires an export permit or a re-export
certificate. …"
Switzerland
TN/TE/W/16
para. 6"6. … Switzerland considers that the following two categories  come under
the heading of "specific trade obligations":
1. Trade measures that are explicitly provided for and mandatory
under MEAs
This is the case of the CITES, for example, under which trade in species
threatened with extinction which are or may be affected by trade is
permitted only in exceptional circumstan ces.  To illustrate our point, let us
take plant X included in Appendix I to the CITES, which lists the species
that are affected by trade and are subject to strict regulation.  If Member Aprohibits the import of plant X pursuant to Appendix I of the CITES, such a
measure should be regarded as a specific trade obligation and would hence
be covered by the solution negotiated among the WTO Members under
paragraph 31(i)."
2K o r e a
TN/TE/W/13
para. 1010.  Not an STO: "Describes only the general principles of the Convention."
3, 4, 5, 6 Korea
TN/TE/W/13
para. 1010.  STOs: "Stipulate precise and obligatory requirements concerning export
and import documentation."
Japan
TN/TE/W/10
para. 11CITES contains "[t]rade measures to be taken [that] are explicitly provided
for and mandatory under MEAs."
8, 14 Korea
TN/TE/W/13
para. 1010.  Not STOs: "Allow for Parties’ discretion as to the implementation
measures to be taken."
8.1 Japan
TN/TE/W/10
para. 11Japan refers to CITES Article 8.1 concerning the case where an
"“[o]bligation de résultat” is explicitly provided for in an MEA and a trade
measure is identified as potential means taken by Parties to meet the
obligation of that MEA."TN/TE/S/3
Page 37
D. COMMISSION FOR THE CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES
(CCAMLR)
Provision Proposal Comments
General Japan
TN/TE/W/10
para. 11Japan used CCAMLR as an example of an MEA which contains "[t]rade
measures [that] are not mentioned in MEAs but [that] Parties can take … in
accordance with relevant decisions made under the MEA framework."
Korea
TN/TE/W/13
para. 1010.  "CCAMLR does not contain trade measures, but trade-related measures
have been adopted in the Conservation Measures that are binding tocontracting parties.  Most conservation measures are precisely mandated
obligations, which can be STOs."
E. MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER (MONTREAL
PROTOCOL )
Provision Proposal Position
General European
Communities
TN/TE/W/1
para. 22"… the trade obligations contained in the Montreal Protocol on Substances
that deplete the Ozone Layer have been universally recognized as being
instrumental to the effective and early implementation of the Protocol."
Switzerland
TN/TE/W/4
para. 6"The notion of "among parties to the MEA" raises another issue: sometimes
both parties to a dispute have acceded to an MEA, but one has not
subscribed to all of the annexes or amendments, as is possible with theMontreal Protocol. …"
Japan
TN/TE/W/10
para. 5"5. … [A] certain number of MEAs with trade measures such as the
Montreal Protocol on Substances that Deplete the Ozone Layer indicates
that there are certain cases where trade measures are considered to be
necessary and effective means for achieving the environmental
objectives. …"
2A to 2H Japan
TN/TE/W/10
para. 11Japan refers to Articles 2A to 2H of the Montreal Protocol concerning the
case where an "“[o]bligation de résultat” is specified in an MEA but a trade
measure to be taken for the obligation is not identified in the MEA, whilethe MEA leaves Parties to decide measure to be taken to fulfil the
obligation."
2.11 European
Communities
TN/TE/W/1
para. 25This provision corresponds to a trade measure which is "not required in the
MEA but which Parties can decide to implement if the MEA contains a
general provision stating that parties can adopt stringent measures in
accordance with international law."TN/TE/S/3
Page 38
Provision Proposal Position
4K o r e a
TN/TE/W/13
para. 1010.  STO: "Stipulates precisely the measures to be taken, namely import and
export ban of trade in ozone-depleting substances."
F. BASEL CONVENTION ON THE TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND
THEIR DISPOSAL (BASEL CONVENTION )
Provision Proposal Comments
General European
Communities
TN/TE/W/1
para. 23"The Basel Convention on the Transboundary Movements of Hazardous
Wastes and their Disposal has also been key in the reduction and
elimination of the dumping of hazardous waste on developing countries.
This has enabled the Convention to shift its original scope towards the oneof minimising the hazardous waste generation at the source (Ministerial
declaration on environmentally sound management, December 1999)."
4.1 Japan
TN/TE/W/10
para. 11Japan used this provision as an example where the trade measure to be taken
is "explicitly provided for and mandatory" under  the MEA.
4.1.b, 4.1.c Korea
TN/TE/W/13
para. 1010.  STO: "Describe very specific and mandatory PIC procedure."
4.1.a Korea
TN/TE/W/13
para. 1010.  Not an STO: "Describes Parties’ right."
4.2.e, 8 Korea
TN/TE/W/13
paras. 10, 1210.  Unclear: "The term "environmentally sound manner" is not specific.
However, Conference of the Parties (COP) decision elaborates on the term(See Paragraph 12)."
"12. … Article 4.2.e and 8 of the Basel Convention contain the ambiguous
words “environmentally sound way,” which is not operational by itself.
4.5, 4.6 Korea
TN/TE/W/13
para. 1010.  STOs: "Stipulate precise, obligatory measures (restriction on import and
documentation requirement)."
6K o r e a
TN/TE/W/13
para. 1010.  STO: "Stipulates Parties’ obligation to prohibit or restrict trade with
specific procedural requirements."TN/TE/S/3
Page 39
Provision Proposal Comments
6-9 Japan
TN/TE/W/10
para. 11Japan used these provisions as examples where the trade measures to be
taken are "explicitly provided for and mandatory" under the MEA.
13 Japan
TN/TE/W/10
para. 11Japan used this provision as an example where the trade measure to be taken
is "explicitly provided for and mandatory" under the MEA.
G. CONVENTION ON BIOLOGICAL DIVERSITY (CBD)
Provision Proposal Comments
8 (j) Korea
TN/TE/W/13
para. 1010.  Not an STO: "Gives a general description of the objectives of the
Convention;  allows for Parties’ discretion regarding implementation
measures."
10 (b) Korea
TN/TE/W/13
para. 1010.  Not an STO: "Is mandatory in nature but not specific, as Parties can
have discretion concerning implementation measures relating to the use of
biological resources."
15 Korea
TN/TE/W/13
para. 1010.  Not an STO: "Is not specific concerning the PIC procedures (in
comparison to those in the Basel Convention and the PIC Convention).
COP decision on the Bonn Guidelines is not mandatory."
16, 19 Korea
TN/TE/W/13
para. 1010.  Not STOs: "Are currently not specific.  However, future COP decision
can elaborate them."
22 Korea
TN/TE/W/13
para. 1010.  Not an STO: "Stipulates general principles."
H. CARTAGENA PROTOCOL ON BIOSAFETY TO THE CONVENTION ON BIOLOGICAL DIVERSITY
(BIOSAFETY PROTOCOL )
Provision Proposal Comments
General European
Communities
TN/TE/W/1
para. 25The Biosafety Protocol contains trade measures "explicitly provided for and
mandatory under MEAs", "as regards obligatory advanced informed
agreement procedure for the first shipment of living modified organisms."TN/TE/S/3
Page 40
Provision Proposal Comments
2.4 Korea
TN/TE/W/13
para. 1010.  Not an STO: "Gives Parties a general authorization."
7, 8, 9, 10,
11 (1,2,5),
15Korea
TN/TE/W/13
para. 1010.  STOs: "Describe specific and mandatory Advance Informed Agreement
(AIA) procedures."
11.4 Korea
TN/TE/W/13
para. 1010.  Not an STO: "Leaves specific measures for Living Modified Organisms
– Food/Feed Processing (LMO-FFP) to Parties’ domestic law."
10.6, 11.8 Korea
TN/TE/W/13
para. 1010.  Not STOs: "Give Parties a right."
13, 14, 26 Korea
TN/TE/W/13
para. 1010.  Not STOs: "Are non-mandatory, since the Party of import "may" take
measures."
16 Korea
TN/TE/W/13
para. 1010.  Not an STO: "Is not specific in comparison to Article 15, which is
elaborated by Annex III."
18 Korea
TN/TE/W/13
paras. 10, 1210.  Unclear: "Describes relatively specific obligation regarding
documentation but leaves more specific elements to COP decision (See
Paragraph 12)."
"12. … Article 18 of the Cartagena Protoc ol on Biosafety provides for basic
elements of “behavioral obligation,” while mandating the COP to elaborate
more on those obligations."
I. UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE (UNFCCC)
Provision Proposal Comments
General Saudi Arabia
(Observer)
TN/TE/W/9
paras. 8, 11"8. … [I]t should be noted that the development and policing of trade-related
environmental policies is not part of the WTO's remit.  Such a task falls under
the jurisdiction of other multilateral frameworks, such as the United Nations
Framework Convention on Climate Change (UNFCCC). …"TN/TE/S/3
Page 41
Provision Proposal Comments
"11.  The UNFCCC is considered as the most relevant MEA to this paper [on
Energy Taxation, Subsidies And Incentives in OECD Countries and Their
Economic and Trade Implications on Developing Countries, in Particular
Developing Oil Producing and Exporting Countries] and reference is made to
direct trade-related impacts upon developing energy producers and exporterssuch as Saudi Arabia where necessary."
4.2 (a) Korea
TN/TE/W/13
para. 1010.  Not an STO: "Allows for Parties’  discretion regarding implementation
measures, with a broadly stated requirement to adopt national policies and
corresponding measures."
J. KYOTO PROTOCOL TO THE UNFCCC
Provision Proposal Comments
General Switzerland
TN/TE/W/16
para. 6"6. … Switzerland considers that the following two categories  come under
the heading of "specific trade obligations":
2. Other measures that are relevant and necessary to achieve an MEA
objective
These encompass the different categories of measures and policies adopted in
pursuit of a specific objective such as that of the Kyoto Protocol, which is to
reduce emissions of greenhouse gases.  Such measures may relate to anumber of spheres – taxation, rules and standards, and so forth (Article 2.1 of
the Protocol).  Let us take Member A, which is listed in Annex I to the
Protocol along with the other countries that have undertaken greenhouse gas
reduction commitments.  If Member A prohibits the importation and use of
emission filters for industry on the grounds that they do not meet nationalstandards in terms of retention of substances that adversely affect the
concentration of greenhouse gases, such a measure should be regarded as a
specific trade obligation covered by the solution negotiated among the WTO
Members under paragraph 31(i).  Indeed, it contributes to the implementation
and achievement of the object of the Protocol, which provides for an
"obligation de résultat " (obligation to achieve results)."
2 Saudi Arabia
(Observer)
TN/TE/W/9
para. 30"30.  Policy areas for existing and proposed policies and measures to mitigate
for example, climate change, are given under Article 2 of the Kyoto Protocol
to the United Nations Framework Convention on Climate Change
(UNFCCC)."
2.1, 2.3 Korea
TN/TE/W/13
para. 1010.  Not STOs: "Allow for Parties’ discretion regarding implementation
measures for quantified emission limitation and reduction commitment."TN/TE/S/3
Page 42
Provision Proposal Comments
6, 12, 17 Korea
TN/TE/W/13
paras. 10, 1410.  Unclear: "Provide general principles of the Flexibility Mechanisms.
Detailed elements of the Mechanisms are provided in the Marrakesh Accord,
which future COP will adopt (See Paragraph 14)."
"14.  Among COP decisions, the Marr akesh Accord is a unique case.
Articles 6, 12 and 17 on the Flexibility Mechanisms in the Kyoto Protocol tothe UNFCCC do not stipulate any specific obligations. Specific elements of
the Mechanisms are provided in the Marrakesh Accord, which future COP is
expected to adopt.  It seems that the Accord is not mandatory in legal point of
view, but in participating in the Flexibility Mechanisms, the Parties to the
Kyoto Protocol cannot avoid abiding by the specific trade obligations set outtherein. Then, the question arises whether such “de facto” obligations
stipulated in the Accord are STOs."
Annex B Saudi Arabia
(Observer)
TN/TE/W/9
paras. 18"18.  Most Annex B Parties also provide some form of incentive - either as
investment credits or tax offset - for petroleum exploration and
development. …"
Marrakesh
AccordKorea
TN/TE/W/13
paras. 14"14.  Among COP decisions, the Marr akesh Accord is a unique case.
Articles 6, 12 and 17 on the Flexibility Mechanisms in the Kyoto Protocol to
the UNFCCC do not stipulate any specific obligations. Specific elements ofthe Mechanisms are provided in the Marrakesh Accord, which future COP is
expected to adopt.  It seems that the Accord is not mandatory in legal point of
view, but in participating in the Flexibility Mechanisms, the Parties to the
Kyoto Protocol cannot avoid abiding by the specific trade obligations set out
therein. Then, the question arises whether such “de facto” obligationsstipulated in the Accord are STOs."
K. INTERNATIONAL TROPICAL TIMBER AGREEMENT (ITTA)
Provision Proposal Comments
1K o r e a
TN/TE/W/13
para. 1010.  Not an STO: "Allows for Parties’  discretion regarding implementation
measures."
L. UNITED NATIONS FISH STOCKS AGREEMENT
Provision Proposal Comments
17.4 Korea
TN/TE/W/13
para. 1010.  Not an STO: "Lacks specificity in types of implementation measures to
deter activities of fishing vessels."TN/TE/S/3
Page 43
Provision Proposal Comments
23.1, 23.3 Korea
TN/TE/W/13
para. 1010.  Not STOs: "Offer a port State options for implementation measures."
M. ROTTERDAM CONVENTION ON THE PRIOR INFORMED CONSENT PROCEDURE FOR CERTAIN
HAZARDOUS CHEMICALS AND PESTICIDES IN INTERNATIONAL TRADE (ROTTERDAM
CONVENTION )
Provision Proposal Comments
General European
Communities
TN/TE/W/1
para. 24"24.  It is also worth noting that some MEAs, such as … the Rotterdam
Convention on the Prior Informed Consent Procedure for Certain Hazardous
Chemicals and Pesticides in International Trade (PIC), contain the terms“international trade” in the name of the Convention itself and trade measures
are the key instrument to reach the ultimate objective of the MEA in
question."
5, 6, 7, 8,
10.4,
10.9,
11.2,
12.1, 13.2Korea
TN/TE/W/13
para. 1010.  STOs: "Describe precise and mandatory PIC procedures."
9K o r e a
TN/TE/W/13
para. 1010.  Not an STO: "Describes the procedure for de-listing a chemical from
Annexes."
13.3 Korea
TN/TE/W/13
para. 1010.  Not an STO: "Is not mandatory since Parties "may" require labeling"
15.4 European
Communities
TN/TE/W/1
para. 25This provision corresponds to a trade measure which is "not required in the
MEA but which Parties can decide to implement if the MEA contains a
general provision stating that parties can adopt stringent measures in
accordance with international law."
Korea
TN/TE/W/13
para. 1010.  Not an STO: "Gives full discretion to Parties in taking "stricter
measures"."TN/TE/S/3
Page 44
N. STOCKHOLM CONVENTION ON PERSISTENT ORGANIC POLLUTANTS (STOCKHOLM
CONVENTION )
Provision Proposal Comments
General European
Communities
TN/TE/W/1
para. 25The Stockholm Convention contains "trade measures that are explicitly
provided for and mandatory under MEAs":  "[the Convention] inter alia
will prohibit the import and export of certain POPs with some exceptionssuch as their environmentally sound disposal or a specific use/purpose, such
as insecticides, on the request of some Parties."
3.1, 3.2 Korea
TN/TE/W/13
para. 1010.  STOs: "Stipulate explicit and mandatory restrictions.  In addition,
“environmentally sound disposal” mentioned in Article 3.2 is specified in
Paragraph 1(d) of Article 6."
4K o r e a
TN/TE/W/13
para. 1010.  Not an STO: "Stipulates register of specific exemptions."
8K o r e a
TN/TE/W/13
para. 1010.  Not an STO: "Describes Party’s right to list POPs in the Annexes."
__________