WORLD TRADE
ORGANIZATIONTN/TE/W/29
30 April 2003
(03-2312)
Committee on Trade and Environment
Special SessionOriginal:  English
PARAGRAPH 31(I) OF THE DOHA MINISTERIAL DECLARATION
Submission by Malaysia
Paragraph 31(i)
I. INTRODUCTION
1. During the February 2003 meeting of the Committee on Trade and Environment in
Special Session, there was a very informative exchange of views on specific trade obligations (STOs)
set out in relevant Multilateral Environmental Agreements (MEAs).
2. A number of useful submissions contributed by several Members provided an illustration of
the examples of specific trade obligations referred to in the Doha mandate of paragraph 31(i).
3. Malaysia would like to contribute to these negotiations by providing some views and
observations on specific trade obligations and related issues under the paragraph 31(i) mandate.
These views are preliminary and are intended to further facilitate the discussion of the issues under
negotiation.
II. THE DOHA MANDATE
4. Paragraph 31(i) of the Doha Ministerial Declaration provides that "With a view to enhancing
the mutual supportiveness of trade and the 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 inquestion.  The negotiations shall not prejudice any member that is not a party to the
MEA in question."
5. In Malaysia’s view, the negotiations clearly centre on the relationship between existing
WTO rules and specific trade obligations set out in MEAs.  They cannot be undertaken in isolationwithout clarity of the parameters of the mandate. It is also clear from previous submissions that there
are differing views on the terms used in the mandate, which could lead to differences in the
determination of the scope and outcome of the negotiations.
6. For us, it is important that at the outset, the mandate itself has clarity, that it refers to the
relationship between existing WTO rules and specific trade obligations as set out in multilateralenvironmental agreements.
7. Having said this, it is noted that the discussions so far have highlighted several aspects of the
mandate which would need to be further examined and addressed as the negotiations progressed.
These are:TN/TE/W/29
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• What are MEAs?
• Do the negotiations encompass only MEAs in force?
• What are specific trade obligations set out in MEAs?
III. MULTILATERAL ENVIRONMENTAL AGREEMENTS
8. Regarding what constitutes an MEA, Malaysia shares a number of views expressed in both
the Argentinian paper (TN/TE/W/2) and the Indian paper (TN/TE/W/23) on the elements of an MEA.
In our opinion, a multilateral environmental agreement under the paragraph 31(i) mandate shoulddemonstrate the following characteristics:
(a) Its multilateral character is demonstrated by the fact that:
- It was negotiated under the auspices of the United Nations;
- negotiations leading to  this agreement were opened to countries from all
regions and that there was active participation from both the developed anddeveloping member countries;
- membership in the agreements reflects the diversity of the UN/WTO
membership;
(b) its environmental character is defined by the objective of the agreement which is
environmental protection;  and
(c) it has the character of an agreement when ratified and its provisions are in force.
9. In view of this, regional MEAs that do not possess the elements described in paragraph 8
would seem not to be relevant to the negotiations under paragraph 31(i).
IV. SPECIFIC  TRADE OBLIGATIONS
10. An initial examination of STOs by some delegations points to some common elements.  STOs
involve the commitment to undertake a particular measure or to refrain from a particular action, and
that they contain the elements of mandatoriness and specificity in terms of the measures prescribed forthe conduct of trade.  Argentina (TN/TE/W/2) noted that STOs have the features of an obligation that
is both specific in its outcome and with regard to the measure employed to achieve the result.   Korea
(TN/TE/W/13) interprets STOs on the basis of its ordinary meaning, which also comes to the
conclusion that STOs are binding trade obligations that set forth not only the result to be achieved but
also the measures used to achieve the result. India (TN/TE/W/23) further stated that for a provision inan MEA to qualify as an STO, it must be specific and mandatory in character, and so precise in its
direction that there can be no doubt about the action or restraint that a party to an MEA must adopt.
The United States (TN/TE/W/20) also recognized that an STO is one that requires an MEA to take or
refrain from taking a particular action as set out in MEAs.
11. Others like the European Communities (TN/TE/W/1) and Switzerland (TN/TE/W/21) also
identified one category of trade obligations as trade measures that are explicitly provided for and
mandatory under MEAs.
12. In Malaysia’s view, STOs in the Doha mandate, by the use of such terms as "specific" and
"obligations" and "trade" do provide indications that these are MEA provisions which have the
character of a binding commitment set within a prescribed specific course of action or which prescribe
a specific restriction, where they relate to the conduct of trade.TN/TE/W/29
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13. In this respect, the mandate is clear and precise and there can only be one category of specific
trade obligations, where the trade obligations are mandatory and specific.
14. The issue has also been raised of whether decisions, resolutions, and recommendations of the
Conference of Parties of MEAs, which may contain STOs should form part of the mandate of these
negotiations.  It has been argued that the mandate refers to STOs as set out in MEAs.  Malaysiaconcurs that the phrase "as set out" is significant in reference to MEA provisions.  Therefore, STOs
only where they are contained in Annexes, Protocols and amendments to MEAs adopted by Parties
and where they have been ratified by the broader membership, have the possibility of falling within
the mandate of the negotiations.  Decisions and resolutions of COP which are not set out in MEAs are
not an integral part of the MEA itself and therefore would fall outside the mandate of the negotiations.
Further views on this would be useful.
V. IDENTIFICATION OF SPECIFIC TRADE OBLIGATIONS
15. Many Members have submitted previous inputs contributing their views on examples of
provisions in MEAs that constitute STOs.  On the basis that we have outlined in the preceding
paragraphs, Malaysia also attempts to identify STOs in three MEAs that are in force and contain the
elements of an MEA thereof.
16. In examining MEA provisions contained in these three agreements, it is found that some
provisions contained the binding element as illustrated by the use of the words "shall" and some are
accompanied by the prescription of a specific prescribed course of action, but not all are related to
trade.
17. Where the measures are mandatory and specific, but only prescribe administrative actions not
directly linked to trade, we have indicated that these may not fit the profile of an STO.
18. The accompanying table provides some illustrations, but these are preliminary views, and we
do not claim that these are exhaustive.  In addition, we reserve the right to come back to these
provisions at a later stage.
VI. CONCLUSION
19. Malaysia welcomes the discussions that have been taking place to achieve a greater
understanding of what constitutes an STO.  This will assist us further with the mandate of
paragraph 31(i) negotiations.  We are of the view that based on the submissions so far, the vast
majority of Members share the view that the STOs in the paragraph 31(i) mandate refer to provisions
in MEAs that involve an obligation for the conduct of a specific measure directly relevant to trade.TN/TE/W/29
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ANNEX
MEA ARTICLES OBLIGATIONS SPEC. MEASURES/
ACTIONS IN TRADESTO
CITES Article II.4
Article III.2, 3
and 4
Article III.5Article IV.2, 4,
5
Article IV.6Article V.2, 3, 4
Article VI.2, 3,
4, 5, 6
Article VIII.1
Article VIII.2Mandatory not to allow trade
in species included inAppendices I, II and III
Mandatory requirement of
the prior grant of a permit/certificate before export,
import and re-export
Mandatory requirement of
prior grant of certificate forintroduction of any specimen
of species in Appendix I
Mandatory requirement of
the prior grant of a permit/certificate before export,import and re-export
Mandatory requirement of
prior grant of certificate forintroduction of any specimenof species in Appendix II
Mandatory requirement of
the prior grant of a permit/certificate of origin/certificate before export,
import and re-export
Requirement of certain
information in thepermits/certificates
Mandatory requirement to
enforce penalty provisionsand prohibit trade
Non mandatory obligation
for reimbursement ofexpensesNo specific measure prescribed.
Action to be in accordance withthe provisions.  Not allprovisions specific and trade-based.  Principle rather than
operative provision
Specific measure in terms of
prior grant and presentation ofan export/ import permit/
re-export certificate for trade
subject to certain conditions
Specific trade measure in terms
of prior grant of certificate fortrade
Specific trade measure in terms
of prior grant and presentationof an export permit/ re-exportcertificate subject to certain
conditions
Specific trade measure in terms
of prior grant of certificate fortrade
Specific measure in terms of
prior grant and presentation ofan export permit/re-exportcertificate/certificate of origin,
subject to certain conditions
Specific measure – to  include
specified information in theexport permit/ certificate andprocedures for copies of
permits/certificates and their
cancellation
No specific measure provided
Non-specific measure –
discretionary method ofreimbursementNo
Yes
Yes
Yes
Yes
Yes
Yes
No
NoTN/TE/W/29
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MEA ARTICLES OBLIGATIONS SPEC. MEASURES/
ACTIONS IN TRADESTO
Article VIII.3
Article VIII.6Article IXNon-mandatory obligation to
ensure minimum delay in
trade formalities for passageof specimens
Mandatory to maintain trade
records
Designation of Management
and Scientific AuthoritiesMeasure to designate ports not
obligatory, measures on
properly cared for notprescribed
Records of trade in specimens
included in Appendices I, II and
II shall include specific
information
Procedures governing the
designation of these authorities
not specific to tradeNo
YesNo
Basel
ConventionArticle 3Article 4.1 (a),
Article 4.1 (b),
(c) (viaArticle 13
procedures
Article 4.2 (a-d)
Article 4.2 (e-f)
Article 4.6
Article 4.7 (b)
4.7(c)Mandatory to inform of
wastes under domesticlegislation other than thoselisted in Annexes I and II
Mandatory to inform on
prohibition of wastes
Mandatory to prohibit
import/export of hazardouswastes
Mandatory measures
Mandatory prohibition of
wastes exports to countries
that have ban them or areunable to manage in anenvironmentally soundmanner
Mandatory – no export
permitted to designated area
Mandatory requirement of
packaging, labelling in
conformity withinternational rules andstandards and due accountpaid to internationalpractices
Mandatory requirement of a
movement documentProvide information to the
Secretariat, not trade specific
Exercise of right under national
legislation
Through information/
notification in accordance withArticle 13 procedures
Measures not specified – only
appropriate measures
Ban is not specific, depending
on criteria yet to be determined
Export of hazardous wastes
prohibited to areas south of60 degrees latitude
Packaging  procedures, but not
based on specific international
rules, standards and practices –not specific trade measure
Movement document shall
contain information from pointat which transboundarymovement commences to the
point of disposalNo
No
Yes
No
No
Yes
No
YesTN/TE/W/29
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MEA ARTICLES OBLIGATIONS SPEC. MEASURES/
ACTIONS IN TRADESTO
Article 6.1
Article 6.2
Article 6.3
Article 6.4
Article 6.9
Article 6.10Mandatory for exporting
party to notify any
transboundary movement ofwastes
Mandatory for importing
party to respond to
notification in writing
Mandatory requirement that
the exporting party cannot
export unless with writtenconfirmation from importingparty
Requirement for party of
transit to acknowledge
receipt of notification.Exporting party shall notproceed with transboundarymovement subject toconditions
Mandatory requirements of
prescribed actions bypersons involved in thetransboundary movement
Mandatory requirement to
transmit notifications and
responses to partiesNotification by exporting party
of proposed transboundary
movement of wastes containinginformation specified inAnnex V.A
Response shall be provided
either to grant consent or deny
permission or to requestinformation
Written confirmation from
importing party to contain
specific information on consent,existence of contract
Acknowledgement by party in
transit and need for exporting
party to receive consent orotherwise as provided.However, include otherdiscretionary measures
Various actions to be taken by
persons involved are specifiedsuch as signing of movementdocument by the person incharge and information
regarding receipt of wastes.
Needed in the export/importprocess
Acts relating to notification and
responses – administrative
procedureYes
Yes
Yes
No
No
No
Montreal
ProtocolArticle 4A
Article 4BMandatory requirement to
ban export after phase-outdate
Mandatory to establish a
system of licensing forimport and export and reportto the SecretariatSpecify date of ban and what
types of exports should bebanned
Specify the type of licensing
system for import and export forsubstances in Annexes A, B, Cand EYes
Yes
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