WORLD TRADE
ORGANIZATIONTN/TE/W/11
3 October 2002
(02-5308)
Committee on Trade and Environment
Special SessionOriginal:  English
CONTRIBUTION ON PARAGRAPH 31(1) OF THE DOHA MINISTERIAL DECLARATION
Submission by the Separate Customs Territory
of Taiwan, Penghu, Kinmen and Matsu
Paragraph 31(i)
I. OVERVIEW
1. The government acting on behalf of the separate customs territory of Taiwan, Penghu,
Kinmen and Matsu notes that discussions on "the relationship between the provisions of the
multilateral trading system and trade measures for environmental purposes, including those pursuantto multilateral environmental agreements (MEAs)" in the Committee on Trade and Environment have
been ongoing for years.
1 The government recognizes the importance of improving policy coherence
between trade and environment.  In our view, a consensus among WTO Members on the 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 relationshipbetween 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 environmental
policymakers and negotiators at both the national and international levels will be crucial.  Thegovernment 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.
3. With respect to procedural approaches for the negotiations under the Doha mandate, the
government acting on behalf of the separate customs territory of Taiwan, Penghu, Kinmen and Matsu
joins with a group of Members
2 in support of the three-phased approach proposed by Australia.3 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.
These additional concepts are discussed below.
                                                     
1 See the first paragraph of the introduction section of TN/TE/S/1.
2 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.
3 See TN/TE/W/7.TN/TE/W/11
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II. THE MANDATE
4. In paragraph 3 1 (i) of the Doha Declaration, the ministers stated that:
"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 the applicability 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 .  (Emphasis added)"
III. IMPLICATIONS OF THE MANDATE
A. "[T]he relationship between existing WTO rules  and specific trade obligations  set out in
multilateral environmental agreements (MEAs)."
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.
7. "[S]pecific trade obligations" should  include those trade measures which are required,
expected or legally binding pursuant to the MEAs and their associated legal instruments, including
annexes, amendments, decisions, resolutions, and recommendations.
8. "[M]ultilateral environmental agreements (MEAs)":  The points made by the EU in section
III of its submission4 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, there could 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.
B. "The negotiations shall be limited in scope to the applicability of such existing WTO rules as
among parties to the MEA in question."
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 Members5 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
                                                     
4 See page 2 of TN/TE/W/1.
5 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/W/11
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examined in light of the principles of necessity, proportionality, and transparency,
and in light of whether it is based on sufficient scientific evidence and whether it
conforms to the chapeau of GATT Article XX.
• WTO Members could negotiate an interpretative decision or an understanding that
explicitly set out conditions and principles for the WTO-consistency of certain 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.
• When there is a specific trade dispute ar ising 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
Settlement Body 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 shallonly be settled according to WTO rules and procedures as stipulated in the DSU.
C. "The negotiations shall not prejudice the WTO rights of any Member that is not a party to
the MEA in question ."
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 Member that 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 interestsguaranteed to a WTO Member under any of the WTO agreements, while procedural rights include the
right to resort to the WTO dispute settlement mechanism.
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 ou t under paragraph 31(i) and (ii) shall be compatible
with the open and non-discriminatory nature of th e multilateral trading system, shall not add to or
diminish the rights and obligations of Members under existing WTO agreements, in particular the
Agreement on the Application of Sanitary and Phytosanitary Measures, nor alter the balance of theserights and obligations, and will take into account the needs of developing and least-developed
countries."
IV. SUMMARY
13. A consensus among WTO Members on the overall relationship between WTO rules and trade
measures taken for environmental purposes could more easily be reached through a step-by-stepapproach.   The government acting on behalf of the separate customs territory of Taiwan, Penghu,
Kinmen and Matsu believes that the mandate is an appropriate first step in the right direction .   With
respect to procedural approaches for negotiations under the mandate, the government agrees with the
three-phased approach proposed by Australia.TN/TE/W/11
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14. The government shares the same view expressed by certain Members that an STO provided
for in an MEA should not automatically be pres umed to be in conformity with WTO rules.
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 sufficientscientific evidence and conformity with the chapeau of GATT Article XX - should be incorporated
into the interpretative derision or the understandin g for examining the legitimacy of a trade measure
instituted pursuant to an MEA.
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 WTOMember/Non-party to the MEA in question was precluded from participation in the negotiations ofsuch an MEA.
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