WORLD TRADE
ORGANIZATIONTN/TE/W/16
6 November 2002
(02-6112)
Committee on Trade and Environment
Special SessionOriginal:  French
STATEMENT BY SWITZERLAND AT THE CTE SPECIAL SESSION
ON 10 OCTOBER 2002
Paragraph 31(i)
Submission by Switzerland
1. We first of all wish to thank the delegations that have made new contributions regarding
paragraph 31(i) of the Doha Declaration.  This ne gotiation is important and the new submissions and
corresponding presentations are both interesting and useful.
2. We should like to revert to the following points:
- Organization of the discussions;
- clarification of the terms of the mandate;
- the fundamental principles which, to our mind, govern the relationship between
existing WTO rules and specific trade obligations set out in MEAs;  and
- the question of what the outcome of this negotiation should be.
3. We also have a few preliminary remarks to offer on the items under discussion today.
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 would involve seeking and proposing so lutions, and the third would be to examine the
solutions put forward.  Switzerland believes that th e 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 set forth
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 ofTN/TE/W/16
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clarifying the debate and therefore welcomes New Zealand 's very useful submission, which at this
stage constitutes an excellent working document.
II. CLARIFICATION OF CERTAIN TERMS OF THE MANDATE
6. Switzerland agrees with other delegations that the different categories of " specific trade
obligations " set out in MAEs 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 the framework 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 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
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 X pursuant to Appendix I of
the CITES, such a measure should be regarded as a specific trade obligation andwould 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 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 reduceemissions 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 the grounds that they do notmeet 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).
7. Here we should underline that our analysis is similar  t o  t h a t  o f  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 to enjoy broad
consensus in this Committee.TN/TE/W/16
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III. FUNDAMENTAL PRINCIPLES WHICH, TO OUR MIND, GOVERN THE
RELATIONSHIP BETWEEN EXISTING WTO RULES AND SPECIFIC TRADE
OBLIGATIONS SET OUT IN MEAS
(a) General principles of no hierarchy, mutual supportiveness and deference
With your permission, we should now like to come back on a few questions and
comments regarding our submission (TN/TE/W/4) at the latest CTE Special Session.
Concerning the principles that govern th e 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 thatone of the outcomes of the Johannesburg World Summit on Sustainable Development
(paragraph 92 of the Plan of Implementation) confirms, at the global level, our
position/approach of promoting mutual supportiveness between the multilateral
trading system and multilateral environmental agreements.  Our approach is
specifically geared towards this mutual supportiveness goal.
(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 for environmental
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 themeasure.  This should answer the question from Chile.  To illustrate the problem, let
us start from the hypothesis that an MEA expressly prohibits 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 Panelwould 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 whichTN/TE/W/16
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Member M applies the ban is not consistent with WTO 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.
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 and deference.  Switzerland is convinced that the
adoption of an interpretative decision is the only probable solution so far.  Indeed, this would meet the
WTO Members' wish to find a solution to the issu e 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 area which 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 the relationship between the WTO rules and MEAs.  In so doing, they underscoredtheir 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 the development of trade rules in MEAs) and, on the other, it would
provide guidance for the WTO Dispute Settlement Body.
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