WORLD TRADE
ORGANIZATIONTN/TE/S/3/Rev.1
24 April 2003
(03-2185)
Committee on Trade and Environment
Special Session
COMPILATION OF SUBMISSIONS UNDER PARAGRAPH 31(i)
OF THE DOHA DECLARATION
Note by the Secretariat1
Revision
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 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 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 aparty to the MEA in question."
2. Section I of the document provides the list of proposals submitted by Members 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. Each section makes reference to the relevant paragraphs of the submissions and quotes the
appropriate text.  Sections II-VII list Members' posit ions in alphabetical order.  Section VIII outlines
Members' positions in reference to the respective provisions of the MEAs.
                                                     
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/Rev.1
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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 will be
revised, as appropriate, in light of future proposals submitted in the CTE Special Session.3
                                                     
3 As requested by Members at the meeting on 12-13 February 2003 (See TN/TE/R/5, "Summary Report
on the Fifth Meeting of the Committee on Trade and Environment in Special Session, 12-13 February 2003",
Note by the Secretariat).TN/TE/S/3/Rev.1
Page 3
TABLE OF CONTENTS
I.     LIST OF SUBMISSI ONS UNDER PARAGRAPH 31(i) .....................................................................5
II.     PROCESS................................................................................................................. ................................5
Australia...................................................................................................................... ................................................5
Canada......................................................................................................................... ...............................................6
Chinese Taipei................................................................................................................. ............................................7
European Communities ........................................................................................................... ....................................7
Hong Kong, China ............................................................................................................... .......................................8
India .......................................................................................................................... ................................................10
Korea.......................................................................................................................... ...............................................10
Norway......................................................................................................................... .............................................11
Switzerland.................................................................................................................... ............................................11
United States .................................................................................................................. ...........................................12
III. MULTILATERAL ENVIRONM ENTAL AGRE EMENTS ..............................................................14
Argentina...................................................................................................................... .............................................14
Canada......................................................................................................................... .............................................14
Chinese Taipei................................................................................................................. ..........................................14
European Communities ........................................................................................................... ..................................15
Hong Kong, China ............................................................................................................... .....................................15
India .......................................................................................................................... ................................................16
Japan.......................................................................................................................... ...............................................16
United States .................................................................................................................. ...........................................17
IV. SPECIFIC TRADE OBLIGATIONS .................................................................................................. 18
Argentina...................................................................................................................... .............................................18
Australia...................................................................................................................... ..............................................18
Canada......................................................................................................................... .............................................19
Chinese Taipei................................................................................................................. ..........................................22
European Communities ........................................................................................................... ..................................22
India .......................................................................................................................... ................................................24
Japan.......................................................................................................................... ...............................................27
Korea.......................................................................................................................... ...............................................28
Norway......................................................................................................................... .............................................29
Switzerland.................................................................................................................... ............................................31
United States .................................................................................................................. ...........................................34
V. RELATIONSHIP BETWEEN EXISTING WTO RULES AND SPECIFIC TRADE
OBLIGATIONS.................................................................................................................... ................36
A. G ENERAL ............................................................................................................................... ...................36
Chinese Taipei................................................................................................................. ..........................................36
European Communities ........................................................................................................... ..................................36
Japan.......................................................................................................................... ...............................................37
Norway......................................................................................................................... .............................................38
Switzerland.................................................................................................................... ............................................38
United States .................................................................................................................. ...........................................38
B. T ERMS ............................................................................................................................... .......................39
Argentina...................................................................................................................... .............................................39
Chinese Taipei................................................................................................................. ..........................................39
C. P RINCIPLES ............................................................................................................................... ................39
Argentina...................................................................................................................... .............................................39
Chinese Taipei................................................................................................................. ..........................................41
European Communities ........................................................................................................... ..................................41
Japan.......................................................................................................................... ...............................................43
Switzerland.................................................................................................................... ............................................44TN/TE/S/3/Rev.1
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VI. PARTY/NON-PA RTY ISSUES...................................................................................................... ......47
Argentina...................................................................................................................... .............................................47
Chinese Taipei................................................................................................................. ..........................................48
European Communities ........................................................................................................... ..................................49
Norway......................................................................................................................... .............................................50
Switzerland.................................................................................................................... ............................................50
United States .................................................................................................................. ...........................................51
VII. OUTCOME OF THE NEGOTIATIONS............................................................................................52
Argentina...................................................................................................................... .............................................52
Australia...................................................................................................................... ..............................................52
Chinese Taipei................................................................................................................. ..........................................52
Japan.......................................................................................................................... ...............................................53
Norway......................................................................................................................... .............................................53
Switzerland.................................................................................................................... ............................................54
United States .................................................................................................................. ...........................................56
VIII. MEAS REFERRED TO IN THE PROP OSALS ................................................................................57
A. I NTERNATIONAL PLANT PROTECTION CONVENTION (IPPC) ....................................................................57
B. I NTERNATIONAL COMMISSION FOR THE CONSERVATION OF ATLANTIC TUNAS (ICCAT)........................57
C. C ONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES (CITES) ........................................57
D. C OMMISSION FOR THE CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES (CCAMLR)..........61
E. M ONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER (MONTREAL PROTOCOL )...62
F. B ASEL CONVENTION ON THE TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND THEIR
DISPOSAL (BASEL CONVENTION ) .............................................................................................................63
G. C ONVENTION ON BIOLOGICAL DIVERSITY (CBD)....................................................................................69
H. C ARTAGENA PROTOCOL ON BIOSAFETY TO THE CONVENTION ON BIOLOGICAL DIVERSITY
(BIOSAFETY  PROTOCOL ) ..........................................................................................................................70
I. U NITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE (UNFCCC)...................................75
J. K YOTO PROTOCOL TO THE UNFCCC ......................................................................................................75
K. I NTERNATIONAL TROPICAL TIMBER AGREEMENT (ITTA) .......................................................................77
L. U NITED NATIONS FISH STOCKS AGREEMENT ...........................................................................................77
M. R OTTERDAM CONVENTION ON THE PRIOR INFORMED CONSENT PROCEDURE FOR CERTAIN HAZARDOUS
CHEMICALS AND PESTICIDES IN INTERNATIONAL TRADE (ROTTERDAM CONVENTION )...........................78
N. S TOCKHOLM CONVENTION ON PERSISTENT ORGANIC POLLUTANTS (STOCKHOLM CONVENTION ) ..........83TN/TE/S/3/Rev.1
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I. LIST OF SUBMISSIONS UNDER PARAGRAPH 31(i)
Member Document Date
Argentina TN/TE/W/2 23 May 2002
Australia TN/TE/W/7 7 June 2002
Canada TN/TE/W/22 10 February 2003
Chinese Taipei TN/TE/W/11 3 October 2002
European Communities TN/TE/W/1 21 March 2002
Hong Kong, China TN/TE/W/24 20 February 2003
India TN/TE/W/23 20 February 2003
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
Norway TN/TE/W/25 20 February 2003
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
Switzerland TN/TE/W/21 10 February 2003
United States TN/TE/W/20 10 February 2003
Total Number of Submissions:  16
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 summarizedTN/TE/S/3/Rev.1
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Proposal Position
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”.4
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.
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 the
balance 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 MEA
Secretariats can be used to seek information from these secretariats, and fromWTO 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 theWTO, 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."
Canada
TN/TE/W/22
paras. 1-3"1.  At the CTESS meetings in October and November 2002, Members agreed to
examine specific trade obligations (STOs) set out in certain multilateral
environmental agreements (MEAs) as the next step in the analytical stage of thenegotiations.  Members agreed that a conceptual analysis could complement that
review.  We believe that both approaches are essential if we are to reach a
common understanding.
                                                     
4 The Matrix summarizes trade-related measures in fourteen multilateral instruments.TN/TE/S/3/Rev.1
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Proposal Position
2.  Some Members proposed that the initi al discussion should focus on STOs in
six MEAs:  the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES), Montreal Protocol on Substances that Deplete the
Ozone Layer  (Montreal Protocol);  the Basel Convention on the Control of
Transboundary Movement of Hazardous Wastes and Their Disposal (Basel
Convention), the Rotterdam Convention on the Prior Informed Consent Procedure
for Certain Hazardous Chemicals and Pesticides in International Trade  (PIC), the
Cartagena Protocol on Biosafety (Biosafety Protocol), and the Stockholm
Convention on Persistent Organic Pollutants  (POPs).
3.  Canada supported this approach.  The purpose of this paper is to assist in this
discussion by outlining a number of issues for consideration and providing
illustrative examples.  It is submitted as a non-paper and without prejudice.  An in-depth examination of provisions in these six MEAs can provide Members with
useful information to inform our negotiations.  Canada’s support for the
examination of specific provisions in these six MEAs does not mean that we view
them as the definitive list of all MEAs which contain STOs but we believe that
examination of these six can provide significant insights. Although the PIC andPOPs Conventions and the Biosafety Protocol are not yet in force, each of them
has a significant number of signatories, 73, 151 and 100 respectively
(WT/CTE/W/160/Rev.1), indicating broad participation by the global community
in the negotiations of the MEA.  Hence, it is appropriate that these should be
included in our analysis at this time."
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 of
Taiwan, Penghu, Kinmen and Matsu joins with a group of Members5 in support of
the three-phased approach proposed by Australia.6  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. …"
European
Communities
TN/TE/W/1
para. 30"30.  The EU is seeking to further constructive dialogue among all WTO Members
on the relationship between WTO rules and MEAs.  The EU believes that suchdialogue could usefully be orientated towards seeking consensus on the following
points:
• WTO Members should agree on principles that should govern the
relationship between WTO rules and MEAs;
• the extent to which “specific trade obligations” should be considered
to be automatically in conformity with WTO;
• the fact that we are currently only considering the applicability of
WTO rules as among Parties to MEAs does not mean that MEAsshould not be an important element of interpretation of WTO law in
                                                     
5 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.
6 See TN/TE/W/7.TN/TE/S/3/Rev.1
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Proposal Position
disputes involving non-Parties."
Hong Kong,
China
TN/TE/W/24
paras. 2-10"2.  Hong Kong, China shares Members’ views that the CTESS had conducted
useful exchanges of views on a host of issues on paragraph 31(i) of the Doha
Declaration last year.  Members should by now have a better understanding of the
issues in question. …
3.  Hong Kong, China fully endorses the views of previous speakers that the
CTESS has entered into a new stage of work.  In particular, we very much sharethe views of the United States that: "the existence of the compilation in
WT/CTE/W/160/Rev.1 makes it unnecessary to debate in the abstract the meaning
of such terms as "MEA", "obligation", "trade", etc.  The sense of delegations
regarding these terms will come to the surface through a concrete review of the
examples they identify in the document".
7  Hong Kong, China strongly believes
that it would bring us nowhere if we  were to continue to dwell on those
definitional issues.  Time has come for us to proceed with discussions on
paragraph 31(i) in a "more concrete, analytical manner", a phrase used by the
United States.  We support starting practical and pragmatic discussions now.
4.  The last informal consultation agreed that we should "focus on STOs inrelevant MEAs, without precluding Members from addressing definitional or other
issues".  In its paper (TN/TE/W/20), the United States has made a few usefulsuggestions to take forward the discussions.  Hong Kong, China supports this
approach, especially the idea of identifying concrete examples of STOs, and
experience sharing of the negotiation and implementation of these STOs.  As a
further suggestion to make our discussions more structured and focused,
Hong Kong, China proposes that Members may start examining the MEAsidentified in the Secretariat Matrix and the STOs therein one by one, perhaps
beginning with those MEAs which have entered into force, with a more universal
membership and global application.  We believe Members would benefit more if
we are to examine those MEAs which have been in existence for a longer time.  It
should however be emphasized that we are not suggesting a new modality of
discussion.  Our suggestion is meant to facilitate the discussions and help
Members better understand the STOs in individual MEA through a concretereview of actual examples and experience.  Our suggestion is based on a few
considerations.
5.  First, it is a more structured approach as Members could make reference to theSecretariat Matrix which usefully provides a snapshot of pertinent information
such as MEA status, membership, trade-related measures, provisions for disputesand non-parties, etc.  It is also a more efficient approach to facilitate Members’
deliberations and helps make the discussions more focused.  This is particularly
the case for small delegations which do not necessarily have the resources to
undertake their own analysis of individual MEA provisions and come up with
examples of STOs identified.
                                                     
7 TN/TE/W/20, 10 February 2003, Submission by the United States, Paragraph 31(i).TN/TE/S/3/Rev.1
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Proposal Position
6.  Second, a sequential examination of MEAs will allow Members to share their
implementation experience of the STOs therein in a more structured and efficient
manner.  It also helps identify and isolate current problems associated with their
implementation.  A more structured way of discussion may also provide some
insights on possible means to address potential conflicts between WTO rules andMEA provisions, if any.  In this respect, we note that quite a number of Members
have already commented that given the diversity of approaches to tackle
environment concerns in MEAs, it might not be feasible, and indeed dangerous, to
find a one-size-fits-all solution to the question of WTO/MEA relationship.
Hong Kong, China fully subscribes to this view.  Canada for example raises anumber of valid and soul-searching questions in its paper (TN/TE/W/22).  We
believe Members would not be able to find answers to those questions without
examining and discussing respective MEAs one by one in detail.
7.  Third, Members would be able to better involve respective MEA Secretariatsand tap their expertise if the discussion is conducted sequentially one MEA by
another.  In this respect, we support the Chair’s suggestion of inviting MEA
Secretariats to participate in relevant discussion of the CTESS on an ad hoc ,
meeting-by-meeting basis.  We consider it a pragmatic suggestion, without
prejudice to the outcome of the horizontal discussion of the observership issue at
the General Council.
8.  The Secretariat has identified 14 MEAs with trade-related measures.
According to the compilation of Members’ submissions prepared by theSecretariat (TN/TE/S/3), the same 14 ME As are also referred to in Members’
submissions so far.  The United States mentions in its paper that STOs are set out
in only six MEAs listed in the Secretariat Matrix.  Since the number is not
prohibitive, without prejudice to the number of MEAs Members may wish to
examine, a sequential examination starting with the more representative ones may
appear to be a manageable way forward.
9.  In deliberating the sequence of examination of MEAs and the STOs therein,
Members may wish to make reference to aspects like the status of implementation,
membership and scope of application, etc.  We note that the US paper has listed
STOs in the six MEAs identified.  Of the six MEAs identified, we note that only
three have entered into force, i.e. the CITES, Montreal Protocol and Basel
Convention.  On membership of these MEAs, Members may wish to note thataccording to the Secretariat Matrix, there are at present 154 parties to the CITES
and 10 WTO Members are not parties.  The corresponding numbers for the
Montreal Protocol and Basel Conventi on are 175/3 and 146/22.  On products
affected by these MEAs, Members may agree that the products in question are
relatively easier to identify cross borders, e.g. endangered species in the CITESTN/TE/S/3/Rev.1
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Proposal Position
appendices, controlled ozone depleting substances under the Montreal Protocol,
and hazardous wastes under the Basel Convention.  Given the longer time of
existence of these MEAs, Members should have more experience on the
implementation of the STOs therein, such as import and export bans, restrictions,
notifications and licensing, etc.  A sequential examination of MEAs may allow amore systematic sharing of experience.  In this respect, Hong Kong, China notes
that Canada has already attempted to examine some STOs in these MEAs in its
paper.  To help structure and focus our discussions, Hong Kong, China proposes
that Members should, as a start, conduct detailed examination of these three
MEAs sequentially.
10.  Some might argue that a horizontal approach of discussing STOs in relevantMEAs might be more efficient as some STOs are similar.  Hong Kong, China doesnot believe it is easy to generalize a set of common criteria from the MEAs.  Nor
do we think it is feasible to find a one-size-fits-all solution.  Some Members have
mentioned that we might need to categorize  the STOs identified in the MEAs in a
few baskets at some stage with a view to finding tailor-made solutions to only
those which Members accept as STOs in the end.  Hong Kong, China considers ita sensible way forward.  We strongly think that a sequential examination of
individual MEA is prudent and would help thrash out all the implications of the
STOs therein through sharing of actual implementation experience.  Meanwhile, it
does not preclude some generalization at a later stage if some sort of
commonalities could be drawn through in-depth examination and discussions ofthe MEAs sequentially."
India
TN/TE/W/23
paras. 1, 17-18"1. Several submissions have been made in the Committee on Trade and
Environment Special Session (CTESS) attempting to understand and clarify the
mandate contained in paragraph 31(i) of the Doha Ministerial Declaration (DMD).
The submissions have underlined the need to clarify the terms that form the
cornerstone of the mandate under paragraph 31(i) of the Doha Declaration."
"17.  India sees benefit in furtherance of the negotiations in identifying the STOsset out in MEAs prior to discussing its outcome, since it would help appreciate the
likely consequences as well as strengthening the logic behind any of the suggestedoutcomes .  In this regard, it is hoped that the "Table of Trade Measures" will help
the delegations in identifying STOs set out in MEAs.
18.  India believes that the mandate given under paragraph 31(i) of the Doha
Declaration refers only to the trade measures that are mandatory and specific in
their entirety .  In cases where specificity and obligation depend on other related
factors or decisions, work must be undertaken to clarify the exact nature of such
provisions .  Further it proposes sharing of information and examination by the
WTO and MEA Secretariats of the precise legal nature of various COP
instruments to help understand their implications for the Doha Mandate as
contained in paragraph 31(i)."
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 trade
obligations (STOs) in MEAs and WTO rules relevant to those obligations.  KoreaTN/TE/S/3/Rev.1
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Proposal Position
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."
Norway
TN/TE/W/25
paras. 2, 8"2. Several members have brought forward proposed definitions of central parts of
the mandate.  We agree with Switzerland that our focus should be on the
interpretation given by Members of the concept of STO."
"II.  GENERAL COMMENTS
8.  It is clear that it is not an easy task to draw an exact line between those
provisions that contain obvious STOs and those that fall outside the mandate.  We
have a "grey area" of provisions that some Members believe are STOs while
others disagree.  Also, as pointed out by Peru, identifying STO by STO would
imply individual interpretation only, and will not bring us any closer to fulfillingour mandate.  This illustrates the importance of developing some sort of a
definition rather than going through the various trade measures one after the other
and decide whether they can be considered STOs."
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 andclarify the meaning of the different terms of the Doha mandate, the second would
involve 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 whichChinese 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 variouscategories 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 of clarifying the debate and therefore
welcomes New Zealand 's very useful submission, which at this stage constitutes
an excellent working document."
Switzerland
TN/TE/W/21"We agreed at the last meeting to turn our attention […] to the question of
"specific trade obligations"  set out in MEAs.  As we emphasized in our previous
submissions (TN/TE/W/4 and TN/TE/W/16), Switzerland considers that the terms
contained in the Doha Ministerial Declaration need to be clarified in order toestablish a link with so-called conceptual issues.
In the most recent deliberations, various categories were identified and discussedTN/TE/S/3/Rev.1
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Proposal Position
by a number of delegations.  …  Switzerland considers that the purpose of this
exercise should not be to analyse the consistency of MEAs, and the measures for
which they provide, with WTO rules.  On the other hand, we expect this
discussion to result in greater transparency with regard to the interpretation given
by Members of the concept of "specific trade obligations", as referred to in theDoha mandate."
United States
TN/TE/W/20
paras. 1, 10, 14"1.  During the course of 2002, the CTE in Special Session conducted a useful
exchange of views on the scope of the mandate in sub-paragraph 31(i) of the Doha
Declaration and provided an opportunity  for delegations to communicate how they
would like to see the negotiations proceed.  It is now embarking on a phase of
negotiation that will be increasingly concerned with discussion of specific
examples of provisions in MEAs that are within the terms of the mandate.  TheUnited States (U.S.) welcomes this development and is prepared to engage in
more in-depth analysis of the relationshi p between specific trade obligations set
out in MEAs and WTO rules.  The purpose of this U.S. submission is to contribute
to the commencement of this phase of work in order to promote the development
of a firm factual and analytical foundation for any eventual results under the 31(i)mandate.  This phase should include efforts to understand the experience of
individual Members in negotiating specific trade obligations in MEAs and
implementing them."
"V.  IDENTIFICATION OF EXAMPLES OF SPECIFIC TRADEOBLIGATIONS COVERED UNDER THE MANDATE
10.  In reviewing the compilation of agreements in WT/CTE/W/160/Rev.1, the
United States has not limited its consideration to MEAs that are already in force.In the U.S. view, the important factor is whether there is a specific trade obligation
that warrants analysis, rather than whether the MEA in question is in force.
Further, some of the MEAs that are not yet in force could enter into force during
the course of these negotiations.  The United States also believes that the existence
of the compilation in WT/CTE/W/160/Rev.1 makes it unnecessary to debate in the
abstract the meaning of such terms as "M EA", "obligation", "trade", etc.  The
sense of delegations regarding these terms will come to the surface through aconcrete review of the examples they identify in the document."
"VI.  THE WAY FORWARD
14.  The United States believes that the CTE in Special Session is now well
positioned to proceed under sub-paragraph 31(i) in a more concrete, analytical
manner.  This phase in the work should begin to build a factual foundation thatcan subsequently permit the Committee to examine the relationship between these
two distinct sets of international obligations.  To further this effort, the United
States suggests that:
(1)  Other delegations also identify examples of specific trade obligations in the
agreements listed in WT/CTE/W/160/Rev.1;
(2)  the CTE in Special Session focus on those on which there appears to be a
consensus that they are specific trade obligations without precluding discussion on
other provisions raised by delegations;  andTN/TE/S/3/Rev.1
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Proposal Position
(3)  on this basis, the CTE in Special Session could invite individual delegations to
provide information on their experiences with respect to negotiation and
implementation of these specific trade obligations in light of WTO rules."TN/TE/S/3/Rev.1
Page 14
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."
Canada
TN/TE/W/22
paras. 2-3"2.  Some Members proposed that the initial discussion should focus on STOs in six
MEAs:  the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES), Montreal Protocol on Substances that Deplete the Ozone
Layer  (Montreal Protocol);  the Basel Convention on the Control of Transboundary
Movement of Hazardous Wastes and Their Disposal (Basel Convention), the
Rotterdam Convention on the Prior Informed Consent Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade  (PIC), the Cartagena
Protocol on Biosafety (Biosafety Protocol), and the Stockholm Convention on
Persistent Organic Pollutants  (POPs).
3.  … Although the PIC and POPs Conventions and the Biosafety Protocol are not
yet in force, each of them has a significant number of signatories, 73, 151 and 100
respectively (WT/CTE/W/160/Rev.1), indicating broad participation by the global
community in the negotiations of the MEA.  Hence, it is appropriate that these
should be included in our analysis at this time."
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 submission8 in this regard are appropriate .  However,
currently there could be WTO Members which are not able to participate the MEAs .
                                                     
8 See page 2 of TN/TE/W/1.TN/TE/S/3/Rev.1
Page 15
Proposal Position
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."
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 opento all countries concerned from the moment negotiations begin.  In the context of the
WTO, 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 WTOan agreed definition of an MEA is subsequently to clarify the circumstances under
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 for
negotiation 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."
Hong Kong,
China
TN/TE/W/24
para. 9"9. In deliberating the sequence of examination of MEAs and the STOs therein,
Members may wish to make reference to aspects like the status of implementation,membership and scope of application, etc.  We note that the US paper has listed
STOs in the six MEAs identified.  Of the six MEAs identified, we note that only
three have entered into force, i.e. the CITES, Montreal Protocol and Basel
Convention.  On membership of these MEAs, Members may wish to note that
according to the Secretariat Matrix, there are at present 154 parties to the CITES and10 WTO Members are not parties.  The corresponding numbers for the Montreal
Protocol and Basel Convention are 175/3 and 146/22.  On products affected by these
MEAs, Members may agree that the products in question are relatively easier to
identify cross borders, e.g. endangered species in the CITES appendices, controlled
ozone depleting substances under the Montreal Protocol, and hazardous wastes underthe Basel Convention.  Given the longer time of existence of these MEAs, Members
should have more experience on the implementation of the STOs therein, such as
import and export bans, restrictions, notifications and licensing, etc…."TN/TE/S/3/Rev.1
Page 16
Proposal Position
India
TN/TE/W/23
paras. 4-6"II.  TYPES OF MULTILATERAL ENVIRONMENTAL AGREEMENTS
4.  The debate on what constitutes an MEA is not new, but it acquires a particular
meaning in light of the Doha Mandate.  India is of the view that the criteria for
considering an environmental agreement as an MEA should have the following
elements:
(i)  It should have been negotiated under the aegis of the United Nations or
specialized agencies like UNEP;
(ii)  its procedures should stipulate that participation in the negotiations is open to all
countries;
(iii)  there must have been effective participation in the negotiations by countries
belonging to different geographical regions and by countries at different stages of
economic and social development;  and
(iv)  the Agreement should provide for procedures for accession of countries which
are not its original members and on terms that are equitable in relation to those of its
original participants.
5. India believes that the term "MEAs" contained in paragraph 31(i) of the DohaMandate must necessarily mean an MEA that has entered into force.
6.  Japan’s qualification of an MEA as one that " …reflects the interests of major
Parties concerned, such as Parties with substantial trade interests, actual and
potential major producers and consumers of materials concerned"  
9 is perhaps more
appropriate for a plurilateral agreement since it introduces a distinction between
WTO Members by dividing them into formal categories – "major Parties" and"others".  This qualification, in our view, is not relevant in the present context."
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.10  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
                                                     
9 See Submission by Japan, TN/TE/W/10, 3 October 2002, paragraph 10.
10 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/Rev.1
Page 17
Proposal Position
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 but
yet entered into force."
United States
TN/TE/W/20
paras. 10-11"10.  In reviewing the compilation of agreements in WT/CTE/W/160/Rev.1, the
United States has not limited its consideration to MEAs that are already in force.  In
the U.S. view, the important factor is whether there is a specific trade obligation that
warrants analysis, rather than whether the MEA in question is in force.  Further,
some of the MEAs that are not yet in force could enter into force during the course ofthese negotiations.  The United States also believes that the existence of the
compilation in WT/CTE/W/160/Rev.1 makes it unnecessary to debate in the abstract
the meaning of such terms as "MEA", "obligation", "trade", etc.  The sense of
delegations regarding these terms will come to the surface through a concrete review
of the examples they identify in the document.
11.  As noted by the United States in the October 2002 meeting of the CTE in
Special Session, there appear to be specific trade obligations set out in six MEAs
listed in WT/CTE/160/Rev.1.  These are: CITES, the Montreal Protocol, the Basel
Convention, the Rotterdam (PIC) Conven tion, the Stockholm (POPs) Convention
and the Cartagena (Biosafety) Protocol.  (TN/TE/R/3, paragraph 30.)"TN/TE/S/3/Rev.1
Page 18
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"11;
- "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.
                                                     
11 Diez de Velázco, Manuel, "Instituciones del Derecho Internacional Público", (Tecnos, 1991),
page 667.TN/TE/S/3/Rev.1
Page 19
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”."12
Canada
TN/TE/W/22
paras. 5-17"II.  ANALYSIS OF SOME OF THE FACTORS RELEVANT TO THE
CONCEPT OF SPECIFIC TRADE OBLIGATION
5.  In undertaking our examination of specific provisions of each of these MEAs,
based on the document WT/CTE/W/160/Rev.1, we must take into account that
this document does not reproduce all provisions in each MEA.  It may be
necessary to examine a specific provision in the context of other provisions of the
MEA and its objectives.  A Party to an MEA expects other Parties to thatAgreement to respect all of their MEA obligations in the same way that WTO
Members expect other Members to respect all of their WTO obligations.
6.  An examination of trade related provisions in these six MEAs [See paragraph 2of the proposal] reveals that an obligation may be contained in one specific article
or a combination of several articles that taken together could constitute a specific
trade obligation.  Some of these provisions  provide further information on how
and/or when the trade-related measure should be implemented.  For example,Articles 4.1 and 4.2 of the Montreal Protocol each deal respectively with the
import and export of substances in Annex A.  However, the process for listing of
substances in Annexes is governed by Articles 2 & 6.  We note that in its very
useful submission TN/TE/W/13, the Republic  of Korea classifies Articles 5, 6, 7,
8, 10.4, 10.9, 11.2, 12.1 and 13.2 together as precise and mandatory PICprocedures.  Articles 5, 6, 7 & 8 of the PIC Convention are provisions dealing
with the notification of national regulatory actions and mechanisms for additions
to the annexes.  These would appear not to be directly related to trade. Should the
full range of provisions that support or contribute to the trade-specific articles be
considered to be part and parcel of the STO?
7.  Members have raised the question of whether decisions of the Parties should beincluded in our discussions of STOs set out in MEAs.  The question arises whenMEAs use decisions to further specify when and/or how a given provision
referencing a trade-related measure is to be used.  Whether decisions by the
Parties at Conferences of the Parties, or through some other agreed procedure, are
obligations within the definition of an STO as that term is used in the Doha
Declaration, or are to be used in the interpretation of these obligations, requires acareful examination of the specific MEA.  There would appear to be no legitimate
reasons for excluding them a priori .
8.  Members have also raised the issue of whether amendments to an MEA should
be included in our examination.  The Montreal Protocol is an example of a
protocol that has been amended four times: London Amendment in 1990,
                                                     
12 The Matrix summarizes trade-related meas ures in fourteen multilateral instruments.TN/TE/S/3/Rev.1
Page 20
Proposal Position
Copenhagen Amendment in 1992, Montreal Amendment in 1997 and the Beijing
Amendment in 1999.  In some cases, these amendments have added new
substances or, altered or added obligations, which are trade related.  There would
appear to be little justification for not including amendments to MEAs in the
definition of "set out in MEAs" in para. 31(i) for those WTO Members who arealso Parties to the amendments and if the amendments include measures that are
STOs.
9.  Precision and clarity in provisions simplify the task of identification of an STO.For example, Article 3 of the POPs Convention provides for a Party to ban the
import or export of the controlled substances or wastes subject to certain
conditions.  Although no details are provided  on the procedures to  be utilized by a
Party to put these bans into effect, they clearly set forth the result (to eliminate theimport or export) to be achieved while the Party still has to determine which and if
"legal or administrative measures are necessary".  In Article 3.2 (b), the POPs
Convention requires a Party to take measures to restrict the export of certain
chemicals "taking into account any relevant provisions in existing international
prior informed consent instruments".  While there are no details, the language isfairly precise in nature.  Can this particular aspect of the obligation in Article 3.2
be considered to be a specific obligation?
10.  It is perhaps easier to identify a provision as an STO if it affects traditionalareas of trade law i.e. import and export bans and restrictions on trade (Article 4.1
Montreal Protocol, Article 3 POPs Convention) but an STO may also includeprovisions that affect trade such as notifications, technical regulations, packaging
and labelling requirements all of which  are subject to WTO rules (e.g. Article 4.7
(b) Basel Convention;  PIC).  In all six MEAs, while the trade effect can be
similar, that is to ban, restrict or condition trade, there is diversity in the approach
taken to achieve these similar ends in the MEAs.  This diversity should be
encouraged, as a one-size-fits-all approach to trade-related measures is unlikely to
effectively address all environmental problems. For example, the PIC Conventionand the Basel Convention both include prior informed consent procedures but the
procedures and details of the obligations vary.
11.  There are other complexities in trying to scope out the key issues when
looking at the concept of STO.  In some instances, an STO does not become an
obligation of one Party until another Party has asserted a right or privilege (Article4.1 (a), (b) & (c) of the Basel Convention).  Should the right or privilege be
captured by the concept of the STOs when its exercise results in a mandatory trade
obligation ?
12. Trade related provisions in MEAs may also include processes with a
discretionary element which further complicates the analysis of STOs.  Forexample, Article 4.2 (d) of the Basel Convention requires each Party to take the
appropriate measures to "ensure that the transboundary movement of hazardous
wastes and other wastes is reduced to the minimum consistent with the
environmentally sound and efficient management of such wastes, and is conducted
in a manner which will protect human health and the environment against theadverse effects which may result from such movement".  It requires Parties to put
in place technical regulations ("measures") to achieve this objective.  It isTN/TE/S/3/Rev.1
Page 21
Proposal Position
mandatory and a transboundary movement should qualify as international trade.
However, the standard of "minimum consistent with" may be subject to various
interpretations and a Party will have some discretion in its application although
this discretion is limited by the precision of the phrase "environmentally sound
management" which is defined under the Convention and further delineated bytechnical guidelines for specific waste streams.
13.  Similarly, Article 4.2 (e) of the Basel Convention which requires Parties to
take appropriate measures to not allow the export of hazardous wastes to a country
"if it has reason to believe that the wastes in question will not be managed in an
environmentally sound manner, according to criteria to be decided by the Partiesat their first meeting".  Some discretion is left to the Party in the application of the
provision but it would have to be consistent with criteria to be developed by the
Parties and technical guidelines.
14.  Some MEAs provide that the convention does not prevent a Party fromimposing additional requirements (e.g. Basel Article 4.11 and PIC Article 15(4)).
These provisions are not trade specific nor are they mandatory.  Some MEAs
provide that any additional requirements are to be consistent with internationallaw which would include international trade rules.
15.  In some cases, MEAs include preambular language and/or general principles
(e.g. Biosafety Protocol, PIC Convention) that refer to the international trade
regime.  Members should take into account the potential legal implications of such
references in examining the relationshi p between WTO rules and specific trade
obligations set out in MEAs.
16.  Some Members have also suggested that the United Nations Framework
Convention on Climate Change  (UNFCCC) and its Kyoto Protocol  should be
included in our examination of MEAs containing STOs.  Our preliminary analysis
indicates that there is nothing in the UNFCCC or the Kyoto Protocol that could be
considered an STO.  Therefore, at this stage, we do not believe that any issues
raised by the UNFCCC and the Kyoto Protocol are within the mandate ofparagraph 31(i) of the Doha Declaration.
III.  CONCLUSION
17.  In defining what is an STO set out in an MEA, there are a number of factors
to be considered.  A complete analysis may require an examination of a single
provision in an MEA or a combination of provisions and may also includeamendments or decisions of the Parties depending on the specific circumstances of
each MEA.  The more explicit the language in the provision(s) as it relates to
trade, the easier the task of identification of an STO.  Some MEAs include trade
related measures to meet environmental objectives and an understanding of both is
required.  A core concept for distinguishing amongst trade-related measuresappears to be the level of "discretion" left to a Party in the choice of a range of
measures, and the implementation and the design of a measure.  Members should
consider whether provisions in MEAs which permit considerable discretion should
have the same relationship to WTO rules as those with little or no discretion."TN/TE/S/3/Rev.1
Page 22
Proposal Position
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 associated
legal 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 combinedwith 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 the
Convention 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 onInternational 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 necessarily
be 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 measureand/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 arethe key instrument to reach the ultimate objective of the MEA in question.
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”.
13
They do not cover trade measures applied exclusively vis-à-vis  non-Parties.
                                                     
13 Some MEAs contains several categories of “trade obligations” and examples given are not
exhaustive.TN/TE/S/3/Rev.1
Page 23
Proposal Position
• Trade measures explicitly provided for and mandatory under MEAs: this is
the case in CITES where 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 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
Stockholm Convention 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 CartagenaProtocol on Biosafety as regards obligatory advanced informed agreement
procedure 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 listpotential 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 can
adopt stringent  measures in accordance with international law.  This is the case
with the Montreal Protocol (Article 2.11) and PIC (Article 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.
27.  The EU welcomes the work carried out by the CTE Secretariat in cooperationwith 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 multilateralcontext and that this should be, in principle, a guarantee against discriminatory
and protectionist action. …"TN/TE/S/3/Rev.1
Page 24
Proposal Position
India
TN/TE/W/23
paras. 7-16"III.  SPECIFIC TRADE OBLIGATIONS
7.  A number of delegations have given their views regarding what constitutes an
STO.  India believes that the term " specific trade obligation"  has three elements
that must be considered together i.e. the provision must be specific with a trade
element and should be in the nature of an obligation . Thus, any provision in an
MEA to qualify as an STO 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 the MEA must adopt.
8.  MEAs contain a number of trade related measures, which could be categorised
as follows:
(i) A trade measure that is both mandatory and specific in its entirety.
Article 4.1 (b), (c) of the Basel Convention according to which Parties are obliged
to prohibit export of covered waste to Parties that have banned such imports or do
not consent in writing to the specific import.
(ii) only the outcome to be achieved is identified with a list of appropriate
measures that Parties could implement to achieve the desired outcome.
Article 6.2 of the Basel Convention requires the State of import to respond to the
notifier in writing, by either consenting to the movement with or without
conditions, or denying permission for the movement, or requesting additional
information.
(iii) the outcome to be achieved is identified, however the measures which couldbe implemented to achieve that outcome are not specified.
Article 16 of the Cartagena Protocol dealing with "Risk Management" states that
the Parties shall, taking into account Article 8 (g) of the Convention, establish and
maintain appropriate mechanisms, measures and strategies to regulate, manage
and control risks identified in the risk assessment provisions of this Protocol
associated with the use, handling and trans-boundary movement of living modified
organisms.
This provision fails to be specific as to the nature of the measure, although it
contains an obligation.
(iv) additional and more stringent measures to achieve the overall objectives of theMEA which are more in the form of a right granted to a Party as opposed to an
obligation.
Article XIV.1 of CITES states that the provisions of the Convention shall in no way
affect the right of Parties to adopt st ricter domestic measures regarding the
conditions for trade, taking, possession or transport of specimens of species
(whether included in the Appendices or not) or the complete prohibition thereof
9.  India believes that the mandate given under paragraph 31(i) of DohaDeclaration refers to only the first category of trade measures that are bothTN/TE/S/3/Rev.1
Page 25
Proposal Position
mandatory and specific in their entirety .  In India’s view, non-specific provisions
cannot qualify as an STO .  Also if the provision set out in the MEA does not
contain the crucial " obligation " element, such provisions too would fail to qualify.
10.  While identifying STOs several other aspects are also relevant in considering
the specificity, as a number of trade obligations are not specific in their entirety,that is, they contain non-specific elements as well.  For instance, Article 13.1 of
the Rotterdam Convention states that:  " The Conference of the Parties shall
encourage the World Customs Organization to assign specific Harmonized System
customs codes to the individual chemicals or groups of chemicals listed in
Annex III, as appropriate.  Each Party shall require that, whenever a code hasbeen assigned to such a chemical, the sh ipping document for that chemical bears
the code when exported" .  The second sentence of the provision could qualify as
an STO but the first sentence would clea rly not. Furthermore, several provisions
have to be read with another provision containing a trade obligation to understand
whether it is specific or not.
IV.  CONFERENCE OF THE PARTIES
11.  Another related and important issue is how to deal with the decisions,
resolutions and recommendations of the Conference of Parties of MEAs .  When
approaching the question of whether STOs contained in COP decisions,
resolutions, and recommendations should be treated as "STOs set out in MEAs",
as per the Doha Mandate, one may seek guidance from general principles
pertaining to MEAs and the role of COPs .  This issue is attempted to be clarified
hereunder.
12.  Typically, the Conference of the Parties (COP) exist to:
• Review implementation based on reports submitted by
governments;
• consider new information from governments, NGOs and
individuals to make recommendations to the Parties on
implementation;
• make decisions necessary to promote effective implementation;
• revise the treaty if necessary;
act as a forum for discussion on matters of importance.14
13.  A COP decision, resolution, and recommendation may differ in severalmanners .  The question is whether the COP decisions, resolutions and
recommendations which generally help in directing the work of the COP , i.e. are
more of internal procedures or are substantive in nature? However, it seems that,
exceptionally, COPs may have genuine law-making powers, such as the power to
                                                     
14 Global Environment Outlook (GEO)-2000, Chapter 3, "MEAs and Non-Binding Instruments".TN/TE/S/3/Rev.1
Page 26
Proposal Position
amend the Annexes attached to an MEA, as under Article XV of CITES.15  In that
case, an amendment must be adopted by a specified majority of Parties .  The
amendment so adopted, shall enter into force after the lapse of a specified time-
frame and will be binding on all Parties, except for those Parties that made
reservations .  India believes that another relevant question is whether STOs
contained in COP Decisions can be viewed  separately from their incorporation in
the MEA text, Annex or Protocol?
14.  Considering the above, it appears that the nature of each COP decision must
be scrutinized prior to asserting that STOs contained in such decisions are to be
treated as "set out in MEAs".
V.  BRIEF COMMENTS ON MEMBER SUBMISSIONS
15.  The submission of the European Communities contains four broad categories
of "measures arising from trade obligations".16  As a general observation, it needs
to be considered whether the usage of civil law terminology, such as " obligation
de résultat ", with its well-recognized connotations, is adequate to further the
dialogue with a large number of WTO Members with common law or other legal
regimes in place .  Further clarification is required on the term " obligation de
résultat " in common law.
16. On a more specific level, other delegations submitted examples of MEA
provisions that could qualify as "trade measures explicitly provided for and
mandatory under MEAs" .  However, India believes that some of these provisions
require closer scrutiny .  For instance, Japan states that Articles 6 to 9 of the Basel
Convention are "trade measures explicitly provided for and mandatory under
MEAs".17  This is a rather broad statement, as may be illustrated by an analysis of
Article 9, which comprises five subheadings .  The first, defines "illegal traffic"
and does not contain a trade obligation in itself .  The second , requests the State of
export to ensure that wastes are taken back, or "otherwise disposed of";  and the
third , that these would be disposed of in an "environmentally sound manner"; the
fourth  that these would be disposed of "as soon as possible in an environmentally
sound manner" – terms that all fail to meet the standard of "specificity" .  The fifth,
requests the Parties to introduce "appropriate national/domestic legislation to
prevent and punish illegal traffic" and encourages Parties to "co-operate with a
view to achieving the objects of this Article" .  Article 9 is a clear illustration of
provisions that, in our view, are not specific as to the means to achieve anoutcome (not specific in its entirety), and hence would not qualify as an STO."
                                                     
15 See also Article XI.3(b) of the CITES.
16 Submission by the EC, TN/TE/W/1, 21 March 2002, paragraph 25.  To know:  (1) "Trade measures
explicitly provided for and mandatory under MEAs";  (2) "Trade measures not explicitly provided for nor
mandatory under the MEA itself but consequential of the "obligation de résultat" of the MEA";  (3) "Trademeasures not identified in the MEA which has only an "obligation de résultat" but that Parties could decide toimplement in order to comply with their obligations";  (4) "Trade measures not required in the MEA but whichParties can decide to implement if the MEA contains a general provision stating that parties can adopt stringentmeasures in accordance with international law".
17 Submission by Japan, TN/TE/W/10, 3 October 2002, paragraph 11.TN/TE/S/3/Rev.1
Page 27
Proposal Position
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 to
take appropriate measures, do not fall within the scope of "trade obligations".  Inview 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 this
negotiation.  Moreover, this categorization, needless to say, does not affect thelegal 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 2Ato 2H
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."TN/TE/S/3/Rev.1
Page 28
Proposal Position
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,” should
be 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 Dictionary18 defines “obligation” as “something which a
person is bound to or not to do as a result of an agreement or responsibility.”  Anobligation binds Parties to abide by their agreement and renders them liable to
coercion and punishment for neglecting it.  An obligation does not allow for
discretion 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 measuresauthorized, not required by MEA, cannot be considered as obligations envisaged
in Paragraph 31(i).
19
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.”
                                                     
18 The New International Webster’s Dictionary for the English Language, 1995 Edition, Trident Press
International.
19 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/Rev.1
Page 29
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. "
Norway
TN/TE/W/25
paras.  3-6, 8"3.  A specific trade obligation  needs to fulfil three criteria; it has to be specific,
relate to trade and it must be an obligation:
• SPECIFICITY  criterion; that it has to be clearly and precisely defined in the
Agreement what measure to implement; i.e. measures are explicitly providedfor and clearly identified in the Agreement.
For illustrative purpose we may refer to CITES, Article 3, according to which the
export of any specimens of species included  in Appendix 1 shall require the prior
grant and presentation of an export permit, and the import of such specimens to
require the prior grant and presentation of an import permit and either an exportpermit or a re-export certificate.  Furthermore, the article spells out the conditions
for granting said permits.TN/TE/S/3/Rev.1
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Proposal Position
4.  In our view the specificity criterion is not limited to provisions identifying only
one single measure.  It also applies to provisions providing well-defined,
alternative measures.
An example might be the Rotterdam Convention, Article 10, which spells out that
a response to the Secretariat concerning the future import of the chemicalconcerned shall consist of either a final decision ((i) to consent to import/ (ii) not
to consent to import/ (iii) to consent to import only subject to specified conditions)
or an interim response (which may include (i) to consent or not consent to imports/
(ii) statement that a final decision is under active consideration…).
5.  On the other hand, provisions which allow Parties to adopt stricter domesticmeasures, without identifying those measures, or measures adopted by Parties to
fulfil an objective of the MEA, do not fulfil the specificity criterion and falloutside our mandate.
• TRADE  criterion; the measure to adopt has to relate to imports and exports;
i.e. it should cover those measures that we all recognize from a WTO context,
i.e. packaging, labelling, notification, prior informed consent measures, etc.
Examples include the export prohibition of  Article 4.1.b-c in the Basel Convention
and the export and import licence requirements in CITES Articles III and IV.
• OBLIGATION  criterion; clearly includes all mandatory provisions in the
Agreements.  It also covers those cases in which the Parties are required to
implement at least one of several well-defined measures provided for in the
Agreement while other provisions or requirements of the said Agreement may
provide further guidance as to the criteria to be applied.
An example of the latter is the Cartagena Protocol Article 10 on decision
procedure, which spells out the different possible options of the Party of import
while making it clear (Article 10.1) that any decision taken, shall be in accordance
with the risk assessment in Article 15.
6.  To sum up, an STO would have to be:
• Specific , meaning that measures to be implemented are explicitly
provided for and clearly identifi ed in the Agreement, including
well-defined alternative measures;
• Trade related , meaning measures we all recognize from a WTO
context with respect to import and export;
• Obligation , meaning all mandatory provisions or a combination
of several articles that taken together could constitute a specific
trade obligation."TN/TE/S/3/Rev.1
Page 31
Proposal Position
"8. It is clear that it is not an easy task to draw an exact line between those
provisions that contain obvious STOs and those that fall outside the mandate.  We
have a "grey area" of provisions that some Members believe are STOs while
others disagree.  Also, as pointed out by Peru, identifying STO by STO would
imply individual interpretation only, and will not bring us any closer to fulfillingour mandate.  This illustrates the importance of developing some sort of a
definition rather than going through the various trade measures one after the other
and decide whether they can be considered 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 of
measures 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 agreement
procedure 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).
4.  Switzerland feels that there is a need to define the different categories ofspecific 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 conditions
specific trade obligations are automatically in conformity with WTO rules.  This is
particularly significant since the implementation of specific trade obligations maynot 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":TN/TE/S/3/Rev.1
Page 32
Proposal Position
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 includedin 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 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 to
reduce 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 theother 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 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 solutionnegotiated 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  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 to
enjoy broad consensus in this Committee."TN/TE/S/3/Rev.1
Page 33
Proposal Position
Switzerland
TN/TE/W/21"… Switzerland is of the view that two categories  come under the heading of
"specific trade obligations":
(i) Trade measures that are explicitly provided for and mandatory under
MEAs :  This first category comprises all MEAs which explicitly mention a trade
measure adopted in pursuit of a specific objective.  This is the case of the CITES,for example, under which trade in species threatened with extinction – which are
or could 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 and would hence
be covered by the solution negotiated among the WTO Members under paragraph
31(i).  The other MEAs covered by this first category are the following:
Stockholm Convention (POPs), Protocol on Biosafety (Cartagena), and the Basel
Convention.
(ii) Other measures that are appropriate and necessary to achieve an MEAobjective:  This second category comprises all MEAs setting out types ofmeasures and policies that can and must be adopted in pursuit of a specific
objective negotiated by the contracting parties.  These MEAs give contracting
parties some latitude with regard to the trade-related measure to be adopted.  One
example is the Kyoto Protocol which has as its objective to reduce emissions of
greenhouse gases.  The measures to be taken to that end may relate to a number ofspheres – 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 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 solutionnegotiated among 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).  This second
category thus encompasses MEAs which specify:
-  an obligation to achieve results, and
-  the spheres in which a measure may be taken.  Measures that may be adopted in
order to fulfil the obligation to achieve results 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).
Other MEAs covered by this second category are the following:  Rotterdam
Convention (PIC), Montreal Protoc ol, ICCAT, CCAMLR, CBD and ITTO."TN/TE/S/3/Rev.1
Page 34
Proposal Position
United States
TN/TE/W/20
paras. 3, 7-9,
11-12"II.  LIMITS IN THE MANDATE
3.  In reviewing WT/CTE/W/160/Rev.1, th e United States was mindful of the
parameters set forth in the mandate in sub-paragraph 31(i).  In particular, the
United States focused on those provisions that could be categorized as "specific
trade obligations."
• First, a specific trade obligation is one that requires an MEA party
to take, or refrain from taking, a particular action.  Such action
must be mandatory and not simply permitted or allowed by a
provision in an MEA.  In other words, it cannot be discretionary.
• Additionally, a specific trade obligation must be "set out" in an
MEA.
• For purposes of the immediate inquiry into examples of specific
trade obligations, a further limit in the mandate is relevant.  Thatis, the mandate only covers trade obligations among parties.
Thus, it would include only those provisions in which parties to
an MEA agree to bind themselves to trade obligations vis-à-vis
each other.  It would not include obligations requiring parties to
take particular trade action in relation to non-parties."
"IV.  CATEGORIES OF SPECIFIC TRADE OBLIGATIONS IN MEAS
7.  It is interesting to note that, even among specific trade obligations set out in
MEAs, there appears to be a wide variety in terms of form and content.  Variations
include:
• Obligations, whether regulating exports or imports, that seek to:
• Help conserve something in the party of export (e.g.,
specimens of endangered species);
• help protect an importing party from something
potentially harmful (e.g., hazardous wastes or hazardous
chemicals);  and
• avoid harm to a global resource (e.g., the ozone layer);
• for the sub-set of export obligations intended to protect an importing party
from something harmful, those that require:
• notifying an importing party of action taken by the
exporting party;
• notifying an importing party of a proposed export;
• restricting export if an importing party does not want it;
• restricting export if the exporting party believes it cannot
be handled in an environmentally sound manner in an
importing party;
• restricting export altogether;TN/TE/S/3/Rev.1
Page 35
Proposal Position
• obligations that vary according to their role in an agreement, including:
• core obligations that directly regulate trade (e.g., certain
provisions of CITES);
• obligations that support core ones by establishing
substantive standards to control production and/or use of
particular substances (e.g., certain provisions in the
Montreal Protocol);
• obligations that address ancillary aspects of import or
export restrictions (e.g., designation of an import orexport authority);
• obligations that apply independently of any particular decision on the part of a
party and obligations that depend upon a party’s prior decision to restrictimports or exports;
• obligations that specify procedures for modifying the scope of a trade
obligation (e.g., for adding new species to the appendices of CITES or new
chemicals to Annex III in the Rotterdam Convention).
8.  Additionally, procedures differ among agreements on modifying the scope of atrade obligation.  Some can require consensus of all parties, whereas others permitmodifications upon the agreement of a certain number of parties less than
consensus.
9.  While the preceding examples provide some picture of the variety of potential
specific trade obligations in MEAs, they are by no means definitive in terms of
categorizing kinds of obligations."
"11. As noted by the United States in the October 2002 meeting of the CTE in
Special Session, there appear to be specific trade obligations set out in six MEAs
listed in WT/CTE/160/Rev.1.  These are: CITES, the Montreal Protocol, the Basel
Convention, the Rotterdam (PIC) Conven tion, the Stockholm (POPs) Convention
and the Cartagena (Biosafety) Protocol.  (TN/TE/R/3, paragraph 30).
12. Attached to this paper is a matrix that identifies some examples of specific
trade obligations in these six Agreements [See proposal].  Each example is a
legally binding commitment to take a particular trade action.  Each is "set out" in
the relevant agreement.  Each involves an  obligation vis-à-vis another party to the
MEA in question."TN/TE/S/3/Rev.1
Page 36
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/Rev.1
Page 37
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.
7.  From such a viewpoint, in order to en sure the mutual supportiveness of trade andTN/TE/S/3/Rev.1
Page 38
Proposal Position
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 WTOrules and trade measures stipulated in MEAs.   However, Members have not so much
focused on the specificity of the trade m easures and the applicability of existing
WTO rules among the Parties to the same MEA."
Norway
TN/TE/W/25
para. 9"9.  The mandate does not include negotiations of the relationship between MEAs
and WTO rules as such.  MEAs include a number of different measures, some of
which could be defined as trade measures, or could otherwise have trade implications.
Such measures are, however, not covered by the exercise we are engaged in under theDoha mandate.  Consequently, these negotiations should not have any bearing on
how a panel is to deal with a potential conflict arising from the applications of
measures pursuant to an MEA with no STOs."
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 and
the 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 Appellate
Body began by assessing whether one of the exceptions in Article XX(a) to (j) of theGATT 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” 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 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, butdoes 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."
United States
TN/TE/W/20
paras. 5-6"5.  In the U.S. view, the MEA/WTO relationship has worked and is working quite
well.  WTO rules have not interfered with trade obligations among MEA parties and
have not had a stifling effect on MEA negotiators’ willingness to include trade
obligations in MEAs where deemed important for environmental purposes.  For theirpart, MEA negotiators have generally sought to tailor their trade provisions to meet
particular environmental purposes, particularly among parties, in a way that takes
account of WTO implications.TN/TE/S/3/Rev.1
Page 39
Proposal Position
6.  The United States has also stressed the critical importance of enhanced domestic
coordination between MEA and WTO policy-makers and negotiators.
Fundamentally, there is no substitute for this since it continues to be the most direct
and effective means of maintaining compatibility between MEA trade obligations and
WTO disciplines.  In this regard, the United States believes that progress to enhancecommunication and cooperation between MEAs and the WTO under sub-paragraph
31(ii) could also offer dividends in promoting increased coordination between
environment and trade officials at national levels."
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".
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 madeup of several multilateral and plurilateral agreements all coming under one
international 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 toconstitute 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 relationship
established between them:TN/TE/S/3/Rev.1
Page 40
Proposal Position
• complementarity : meaning that concurrent obligations in two different, but
complementary, international agreements, if not mutually exclusive, should
be complied with at the same time.20  Commonly referred to as the "principle
of cumulation", this is what generally occurs at international level when a
State is bound by several international treaties21;
• 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 latter22;
• conflict : occurring in situations where compliance with one obligation
necessarily entails failure to comply with another, and the two cannot be
reconciled.23
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 betweenexisting WTO rules and specific trade obligations in MEAs, given that both
multilateral environmental agreements and the Marrakesh Agreement, in their
capacity as international treaties, belong to the same international legal system."
                                                     
20 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).
21 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).
22 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 Agriculture
contains several specific provisions dealing with the relationship between articles of the Agreement onAgriculture 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 1994and with the Agreement on Safeguards…" (paragraph 157).
23 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).TN/TE/S/3/Rev.1
Page 41
Proposal Position
"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 thefollowing perspectives:
• The government shares the same view expressed by certain Members
24 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 viewto upholding and safeguarding an open and non-discriminatory multilateral
trading system, the legitimacy of a trade measure implemented pursuant toa particular MEA should be 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. …"
"14.  The government shares the same view expressed by certain Members that anSTO 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, 29-30"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’srespective 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, these
could usefully be a subject of information exchange between the MEAsecretariat 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.
                                                     
24 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/Rev.1
Page 42
Proposal Position
• 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. "25
"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 XXof 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 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 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 WTO provisionshave been interpreted giving 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.
                                                     
25 Appellate Body in Reformulated Gasoline  case.TN/TE/S/3/Rev.1
Page 43
Proposal Position
VIII.   CONCLUSION
30.  The EU is seeking to further constructive dialogue among all WTO Members on
the relationship between WTO rules and MEAs.  The EU believes that such dialogue
could usefully be orientated towards seeking consensus on the following points:
• WTO Members should agree on principles that should govern the
relationship between WTO rules and MEAs;
• the extent to which “specific trade obligations” should be
considered to be automatically in conformity with WTO;
• the fact that we are currently only considering the applicability of
WTO rules as among Parties to MEAs does not mean that MEAs
should not be an important element of interpretation of WTO law in
disputes involving non-Parties."
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 bepresumed to be WTO consistent on condition that those measures meet certain
substantial 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 existingWTO 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 asto 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 is
useful 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 negotiated
under the existence of WTO or GATT rules and implementation procedures for
these trade measures had been agreed.
13.  If an MEA provides for “obligation de résultat” and indicates the relating trademeasures 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 common
acknowledgement 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,TN/TE/S/3/Rev.1
Page 44
Proposal Position
Japan considers that it would be rebuttably presumed to be consistent with WTO
rules26, if substantial requirements could be introduced such as indicated as below.
For instance, in terms of GATT Article XX, following substantial requirements are
appropriate27,
1.  The trade measures, pursuant to an MEA to achieve its environmentalobjectives, 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 information
exchange mechanism.  Thus, a linkage between paragraph 31 (i) and (ii) could
contribute to enhance the legal stability of the application of MEA-related trademeasures."
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 and
environmental regime are mutually supportiv e.  In order to maintain this mutual
supportiveness, each should remain responsible and competent for the issues fallingwithin 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
reason that determination of whether specific measures constitute a means of
arbitrary or unjustifiable discrimination between countries where the sameconditions 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 and
proportionality of trade measures taken under an MEA, insofar as the MEA
expressly provides for such verification.
                                                     
26 Article 2.5 of the TBT Agreement refers to a method of rebuttable presumption.
27 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/Rev.1
Page 45
Proposal Position
8.  The fact that the WTO and MEAs should each focus on their primary competence
does 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 global
level, our position/approach of promo ting mutual supportiveness between the
multilateral trading system and multilateral environmental agreements.  Ourapproach 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.TN/TE/S/3/Rev.1
Page 46
Proposal Position
(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 theexceptions 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.  Toillustrate 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 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 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. "
Switzerland
TN/TE/W/21"All the trade-related measures provided fo r in any of the MEAs referred to above
[See proposal] are presumed to be necessary for the protection of the environment.
Such mandatory  trade obligations, as explicitly  provided for in an MEA, may be
deemed to be consistent with the WTO rules among the MEA parties.  This
principle obviously requires Members negotiating an MEA to make sure that theMEA does not include unnecessary, arbitrary, protectionist or unjustifiably
discriminatory trade-related measures.  It should be noted, however, that the
practical implementation  of trade-related measures might still be challenged where a
Member has used its discretion in a manner out of keeping with its WTO
obligations."TN/TE/S/3/Rev.1
Page 47
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 multilateral 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/Rev.1
Page 48
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 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 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 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 interests guaranteed 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 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 the
Agreement on the Application of Sanitary and Phytosanitary Measures, nor alterthe 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 torules 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/Rev.1
Page 49
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 .28  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 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
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.
                                                     
28 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/Rev.1
Page 50
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 WTOprovisions have been interpreted giving 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 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."
Norway
TN/TE/W/25
para. 7"B.  "AMONG PARTIES"
7.  Our mandate is limited to "among parties to the MEA in question".  It is
understood that when an agreement allows for reservations to certain provisions inthe agreement, a Party having made such a reservation is to be treated as a non-
party with respect to this provision."
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 WTO
obligations.
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 thisMember 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 believes
that 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 andTN/TE/S/3/Rev.1
Page 51
Proposal Position
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."
United States
TN/TE/W/20
para. 3"II.  LIMITS IN THE MANDATE
3.  …For purposes of the immediate inquiry into examples of specific trade
obligations, a further limit in the mandate is relevant.  That is, the mandate only
covers trade obligations among parties.  Thus, it would include only those
provisions in which parties to an MEA agree to bind themselves to trade
obligations vis-à-vis each other.  It would not include obligations requiring partiesto take particular trade action in relation to non-parties."TN/TE/S/3/Rev.1
Page 52
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/Rev.1
Page 53
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”."
Norway
TN/TE/W/25
paras. 10-12"10.  The mandate determines that the negotiations should not add nor diminish the
rights and obligations of members under the existing WTO agreements.
11.  In our view, this would imply:
• That the negotiations cannot limit any Members’ right to take what is perceived
as a breach of WTO rules to a panel – regardless of whether the measure isapplied pursuant to or outside the scope of an MEA.
• the negotiations should not have any bearing on measures taken pursuant to an
MEA, on the grounds that the measure is not an STO.
12.  What is the value added of these negotiations?  We agree with Switzerland that
this exercise should not be to analyze the consistency of MEAs with WTO rules.
Given the limitations in the mandate, we would find it useful if the negotiations could
reaffirm the mutual supportiveness between relevant WTO rules and STOs in MEAs,
and that there is no hierarchy between them.  Also, our aim should be to prevent thatthe conflicts between Parties to an MEA occur in the WTO.  In addition the process
would hopefully increase the awareness in the WTO of objectives, provisions and
measures negotiated in MEAs and vice versa.  This would contribute to national
coherence throughout negotiations of both sets of agreements and reduce the potential
of conflicts between them."TN/TE/S/3/Rev.1
Page 54
Proposal Position
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 MEAswhich were most likely to prove incompatible: (A) leave the issue to be settled by the
dispute 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 aPanel or by the Appellate Body in a dispute settlement proceeding.  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 Appellate Body began by assessingwhether 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” in Article XX(g) of theGATT 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. 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 a
clause 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, andmore 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 wouldreopen 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 Membersat this stage, Switzerland does not oppose it.TN/TE/S/3/Rev.1
Page 55
Proposal Position
C. INTERPRETATIVE DECISION
14.  Adoption of an interpretative decision by WTO Members to settle the issue of therelationship between WTO rules and specific trade obligations in MEAs is the third
proposed solution.  An interpretative decision would be able to indicate clearly that
the relationship between the trade and environmental systems is governed by thegeneral 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 an
interpretative decision rather than requiring the Appellate Body to do so.  Moreover,
an interpretative decision neither adds to or diminishes the rights and obligations ofMembers, 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 therelationship between existing WTO rules and specific trade obligations set out in
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 thenegotiations carried out under paragraph 31(i) should be compatible with the open
and 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 trade
obligations 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 isgoverned 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.  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, butsimply 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.TN/TE/S/3/Rev.1
Page 56
Proposal Position
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."
United States
TN/TE/W/20
para. 4"4.  The United States has previously communicated its perspective in discussions in
the CTE in Special Session under sub-paragraph 31(i).  First and foremost, the United
States is interested in ensuring that an y result in this negotiation maintains the
integrity and mutual supportiveness of both sets of international obligations – those in
MEAs on the one hand and those in the WTO on the other.  We must be careful not tocreate any reluctance on the part of individual countries to join MEAs for fear that
they are simultaneously agreeing to prejudice their WTO rights.  Furthermore,
ministers at Doha, in paragraph 32 of the Declaration, already directed that the
negotiations must not add to or diminish the rights and obligations of Members under
existing WTO agreements."TN/TE/S/3/Rev.1
Page 57
VIII.  MEAS REFERRED TO IN THE PROPOSALS
A. INTERNATIONAL PLANT PROTECTION CONVENTION (IPPC)
Provision Proposal Comments
7(1) Korea
TN/TE/W/13
para. 10Not an STO: "Gives Parties a sovereign right to regulate plant importing."
7(2) Korea
TN/TE/W/13
para. 10STO: "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. 11ICCAT is an MEA which contains "[t]rade measures [that] are not
mentioned in [the MEA] but [that] Parties can take … in accordance withrelevant 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."
Switzerland
TN/TE/W/21ICCAT is one of the MEAs covered by the second category of STOs
identified by Switzerland in its proposal, which comprises "all MEAs
setting out types of measures and policies that can and must be adopted in
pursuit of a specific objective negotiated by the contracting parties."
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…".TN/TE/S/3/Rev.1
Page 58
Provision Proposal Comments
"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 trade
measures are the key instrument to reach the ultimate objective of the MEA
in question.
25.  … [CITES contains] [t]rade measures explicitly provided for andmandatory 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 strict
regulation 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
and
TN/TE/W/21"… 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 A
prohibits the import of plant X pursuant to Appendix I of the CITES, such ameasure 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)."
II India
TN/TE/W/23
AnnexArticle II "[c]ontains the fundamental principles of the MEA".
Korea
TN/TE/W/13
para. 10Not an STO: "Describes only the general principles of the Convention."
II.4 United States
TN/TE/W/20
AnnexSTO:  Article II.4 "prohibits trade in specimens of species listed in
Appendices I, II, and III except in accordance with the Convention".
III India
TN/TE/W/23
AnnexArticle III.2 "[c]ontains trade obligations but the sub-clauses which do not
contain obligations need to be read together to bring specificity".
Article III.3 "[c]ontains trade obligation.  The sub-clauses which do not
contain obligations may be read together with the main provisions".
Article III.4 "[c]ontains trade obligation.  The sub-clauses which do not
contain obligations may be read together with the main provisions".TN/TE/S/3/Rev.1
Page 59
Provision Proposal Comments
Japan
TN/TE/W/10
para. 11Article III is an example of a situation where the "[t]rade measures to be
taken are explicitly provided for and mandatory under MEAs."
Korea
TN/TE/W/13
para. 10STO: "Stipulate[s] precise and obligatory requirements concerning export
and import documentation".
Norway
TN/TE/W/25
paras. 3, 5Article III is an example of an MEA provision that meets the "specificity
criterion" of an STO.
Article III is an example of an MEA provision that meets the "trade
criterion" of an STO.
United States
TN/TE/W/20
AnnexSTO:  Article III "regulates all trade in specimens of species listed in
Appendix I".
IV India
TN/TE/W/23
AnnexArticle IV.2 "[c]ontains trade obligation.  The sub-clauses which do not
contain obligations may be read together with the main provisions".
Article IV.3 "[r]efers to the monitoring rights of other Parties".
Articles IV.4, 5, 6 & 7 "[c]ontain trade obligations.  The sub-clauses which
do not contain obligations may be read together with the main provisions".
Japan
TN/TE/W/10
para. 11Article IV is an example of a situation where the "[t]rade measures to be
taken are explicitly provided for and mandatory under MEAs."
Korea
TN/TE/W/13
para. 10STO: "Stipulate[s] precise and obligatory requirements concerning export
and import documentation".
Norway
TN/TE/W/25
para. 5Article IV is an example of an MEA provision that meets the "trade
criterion" of an STO.
United States
TN/TE/W/20
AnnexArticles IV.1, IV.2, IV.3, IV.4, IV.5, IV.6 are STOs;  they "regulate all trade
in specimens of species listed in Appendix II".
V India
TN/TE/W/23
AnnexArticle V.2 "[c]ontains trade obligation.  The sub-clauses which do not
contain obligations may be read together with the main provisions".
Article V.3 "[c]ontains trade obligation".Article V.4 "[c]ontains trade obligation.TN/TE/S/3/Rev.1
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Provision Proposal Comments
Japan
TN/TE/W/10
para. 11Article V is an example of a situation where the "[t]rade measures to be
taken are explicitly provided for and mandatory under MEAs."
Korea
TN/TE/W/13
para. 10STO: "Stipulate[s] precise and obligatory requirements concerning export
and import documentation".
United States
TN/TE/W/20
AnnexSTO:  Article V "regulates all trade in specimens of species listed in
Appendix III".
VI India
TN/TE/W/23
AnnexArticle VI "[c]ontains trade obligation".
Japan
TN/TE/W/10
para. 11Article VI is an example of a situation where the "[t]rade measures to be
taken are explicitly provided for and mandatory under MEAs."
Korea
TN/TE/W/13
para. 10STO: "Stipulate[s] precise and obligatory requirements concerning export
and import documentation".
United States
TN/TE/W/20
AnnexArticles VI.1, VI.2, VI.3, VI.4, VI.5, VI.6 are STOs;  they "govern permits
and certificates".
VIII India
TN/TE/W/23
AnnexArticle VIII "[e]ncourages Parties to take appropriate measures to enforce
the provisions of the Convention".
Japan
TN/TE/W/10
para. 11Article VIII.1 is an example of a situation 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."
Korea
TN/TE/W/13
para. 10Not an STO: "Allow[s] for Parties’ discretion as to the implementation
measures to be taken."
United States
TN/TE/W/20
AnnexArticles VIII.1(a), VIII.1(b), VIII.3, VIII.4, VIII.6 and VIII.7 are STOs, they
"concern measures to be taken by Parties to enforce the Convention toprohibit trade in specimens in violation thereof".TN/TE/S/3/Rev.1
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Provision Proposal Comments
IX United States
TN/TE/W/20
AnnexSTO:  Article IX "requires the designation of Management and Scientific
Authorities".
XIV India
TN/TE/W/23
paras. 8-9Article XIV.1 is not an STO:  it falls within a category of trade-related
measures which includes "additional and more stringent measures to achieve
the overall objectives of the MEA which are more in the form of a right
granted to a Party as opposed to an obligation."
India
TN/TE/W/23
AnnexArticle XIV "[r]efers to the right of a Party to adopt stricter domestic
measures".
Korea
TN/TE/W/13
para. 10Not an STO: "Allow[s] for Parties’ discretion as to the implementation
measures to be taken."
XV India
TN/TE/W/23
para. 13"…[I]t seems that, exceptionally, COPs may have genuine law-making
powers, such as the power to amend the Annexes attached to an MEA, as
under Article XV of CITES.  In that case, an amendment must be adopted
by a specified majority of Parties .  The amendment so adopted, shall enter
into force after the lapse of a specified time-frame and will be binding on allParties, except for those Parties that made reservations…".
D. COMMISSION FOR THE CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES
(CCAMLR)
Provision Proposal Comments
General Japan
TN/TE/W/10
para. 11CCAMLR is 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. 10"CCAMLR does not contain trade measures, but trade-related measures
have been adopted in the Conservation Measures that are binding to
contracting parties.  Most conservation measures are precisely mandated
obligations, which can be STOs."
Switzerland
TN/TE/W/21CCAMLR is one of the MEAs covered by the second category of STOs
identified by Switzerland in its proposal, which comprises "all MEAs setting
out types of measures and policies that can and must be adopted in pursuitof a specific objective negotiated by the contracting parties."TN/TE/S/3/Rev.1
Page 62
E. MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER (MONTREAL
PROTOCOL )
Provision Proposal Position
General Canada
TN/TE/W/22
para. 8"Members have also raised the issue of whether amendments to an MEA
should be included in our examination.  The Montreal Protocol is an
example of a protocol that has been amended four times: LondonAmendment in 1990, Copenhagen Amendment in 1992, Montreal
Amendment in 1997 and the Beijing Amendment in 1999.  In some cases,
these amendments have added new substances or, altered or added
obligations, which are trade-related …".
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 the
Montreal Protocol. …"
Switzerland
TN/TE/W/21The Montreal Protocol is one of the MEAs covered by the second category
of STOs identified by Switzerland in its proposal, which comprises "all
MEAs setting out types of measures and policies that can and must be
adopted in pursuit of a specific objective negotiated by the contractingparties."
Japan
TN/TE/W/10
para. 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. …"
2 Canada
TN/TE/W/22
para. 4"… [T]rade-related measures … take different forms such as bans,
restrictions or conditions on international trade in products, substances or
species.  In some cases, this is accompanied by restrictions or bans on
domestic production and/or use (e.g. … Montreal Protocol, Article 2)."
2A to 2H Japan
TN/TE/W/10
para. 11Articles 2A to 2H are examples of situations where an "“[o]bligation de
résultat” is specified in an MEA but a trade measure to be taken for theobligation is not identified in the MEA, while the 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/Rev.1
Page 63
Provision Proposal Position
"6.  … an obligation may be contained in one specific article or a
combination of several articles that taken together could constitute a specific
trade obligation.  Some of these provisions provide further information on
how and/or when the trade-related measure should be implemented.  For
example, Articles 4.1 and 4.2 of the Montreal Protocol each dealrespectively with the import and export of substances in Annex A.
However, the process for listing of substances in Annexes is governed by
Articles 2 & 6…".4 Canada
TN/TE/W/22
para. 6, 10
"10.  It is perhaps easier to identify a provision as an STO if it affects
traditional areas of trade law i.e. import and export bans and restrictions on
trade, [e.g.] Article 4.1 Montreal Protocol…".
Korea
TN/TE/W/13
para. 10STO: "Stipulates precisely the measures to be taken, namely import and
export ban of trade in ozone-depleting substances."
United States
TN/TE/W/20
para. 13Not an STO: "Article 4 of the Montreal Protocol (in contrast to Article 4A)
obligates parties to take particular trade action in relation to non-parties,
rather than parties".
4A India
TN/TE/W/23
AnnexArticle 4A(1) "[c]ontains trade obligation".
United States
TN/TE/W/20
AnnexSTO:  Article 4A(1) "governs the control of trade with Parties".
4B India
TN/TE/W/23
AnnexArticle 4B(1) "[d]escribes the obligation of a Party to adopt a licensing
system by January 2000, but acknowledges the right to delay taking action".
F. BASEL CONVENTION ON THE TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND
THEIR DISPOSAL (BASEL CONVENTION )
Provision Proposal Comments
General Canada
TN/TE/W/22
para. 10"…In all six MEAs [See proposal], while the trade effect can be similar, that
is to ban, restrict or condition trade, there is diversity in the approach taken
to achieve these similar ends in the MEAs.  This diversity should be
encouraged, as a one-size-fits-all approach to trade-related measures isunlikely to effectively address all en vironmental problems. For example, …
the Basel Convention … include[s] prior informed consent procedures but
the procedures and details of the obligations vary".TN/TE/S/3/Rev.1
Page 64
Provision Proposal Comments
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 one
of minimising the hazardous waste generation at the source (Ministerialdeclaration on environmentally sound management, December 1999)".
Switzerland
TN/TE/W/21The Basel Convention is one of the MEAs covered by the first category of
STOs identified by Switzerland in its proposal, which comprises "trade
measures that are explicitly provided for and mandatory under MEAs".
3.1 United States
TN/TE/W/20
AnnexSTO:  Article 3.1 "requires reporting on national definitions of hazardous
wastes and requirements concerning transboundary movement".
3.2 United States
TN/TE/W/20
AnnexSTO:  Article 3.2 "requires reporting on national definitions of hazardous
wastes and requirements concerning transboundary movement".
4.1 Canada
TN/TE/W/22
para. 11Articles 4.1 (a), (b) and (c) are examples of situations where "an STO does
not become an obligation of one Party until another Party has asserted a
right or privilege."
India
TN/TE/W/23
paras. 8, 9Articles 4.1(b) and (c) are STOs:  they are examples of trade measures that
are "both mandatory and specific in [their] entirety".
India
TN/TE/W/23
AnnexArticle 4.1(a) "[g]ives Parties the right to ban the import of hazardous waste.
Once they do so, they are obliged to inform other Parties".
Article 4.1(b) "[c]ontains trade obligation".
Article 4.1(c) "[c]ontains trade obligation".
Japan
TN/TE/W/10
para. 11Article 4.1 is an example of a situation where the "[t]rade measures to be
taken are explicitly provided for and mandatory under MEAs."
Korea
TN/TE/W/13
para. 10Article 4.1(a) is not an STO, as it "describes Parties’ right".
Articles 4.1(b) and 4.1(c) are STOs, as they "describe very specific and
mandatory PIC procedure."
Norway
TN/TE/W/24
para. 5Articles 4.1(b) and (c) are examples of MEA provisions that meet the "trade
criterion" of an STO.
United States
TN/TE/W/20
AnnexSTO:  Article 4.1 contains a general obligation "regarding the transboundary
movement of hazardous waste".TN/TE/S/3/Rev.1
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Provision Proposal Comments
"12.  Trade related provisions in MEAs may also include processes with a
discretionary element which further complicates the analysis of STOs.  For
example, Article 4.2 (d) of the Basel Convention requires each Party to take
the appropriate measures to "ensure that the transboundary movement of
hazardous wastes and other wastes is reduced to the minimum consistentwith the environmentally sound and efficient management of such wastes,
and is conducted in a manner which will protect human health and the
environment against the adverse effects which may result from such
movement".  It requires Parties to put in place technical regulations
("measures") to achieve this objective.  It is mandatory and a transboundarymovement should qualify as international trade.  However, the standard of
"minimum consistent with" may be subject to various interpretations and a
Party will have some discretion in its application although this discretion is
limited by the precision of the phrase "environmentally sound management"
which is defined under the Convention and further delineated by technicalguidelines for specific waste streams.4.2 Canada
TN/TE/W/22
paras. 12-13
13.  Similarly, Article 4.2 (e) of the Basel Convention requires Parties to
take appropriate measures to not allow the export of hazardous wastes to a
country "if it has reason to believe that the wastes in question will not be
managed in an environmentally sound manner, according to criteria to be
decided by the Parties at their first meeting".  Some discretion is left to the
Party in the application of the provision but it would have to be consistentwith criteria to be developed by the Parties and technical guidelines."
India
TN/TE/W/23
AnnexArticle 4.2(e) "[c]ontains a trade obligation.  A specific criterion on
"management in an environmentally sound manner" is to be decided by the
COP".
Korea
TN/TE/W/13
paras. 10, 1210.  It is unclear whether Article 4.2(e) is an STO: "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) …  of the Basel Convention contain the ambiguous
words “environmentally sound way,” which is not operational by itself.
However, a COP decision elaborates it."
United States
TN/TE/W/20
AnnexArticles 4.2(e), (f) and (g) are STOs, they "contain general obligations
regarding the transboundary movement of hazardous waste".
4.5 Korea
TN/TE/W/13
para. 10STO: "Stipulate[s] precise, obligatory measures (restriction on import and
documentation requirement)".
United States
TN/TE/W/20
para. 13Not an STO:  Article 4.5 "obligates parties to take particular trade action in
relation to non-parties, rather than parties".TN/TE/S/3/Rev.1
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Provision Proposal Comments
4.6 India
TN/TE/W/23
AnnexArticle 4.6 "[c]ontains trade obligation".
Korea
TN/TE/W/13
para. 10STO: "Stipulate[s] precise, obligatory measures (restriction on import and
documentation requirement)."
United States
TN/TE/W/20
AnnexSTO:  Article 4.6 contains a general obligation "regarding the transboundary
movement of hazardous waste".
4.7 Canada
TN/TE/W/22
para. 10"It is perhaps easier to identify a provision as an STO if it affects traditional
areas of trade law i.e. import and export bans and restrictions on trade… butan STO may also include provisions that affect trade such as notifications,
technical regulations, packaging and labelling requirements all of which are
subject to WTO rules (e.g. Article 4.7 (b) Basel Convention…)".
India
TN/TE/W/23
AnnexArticle 4.7(b) "[r]equires hazardous waste, subject to transboundary
movement to be packaged (…) in conformity with accepted international
rules".
Article 4.7(c) "[c]ontains trade obligation".
United States
TN/TE/W/20
AnnexSTO:  Article 4.7 contains a general obligation "regarding the transboundary
movement of hazardous waste".
4.8 United States
TN/TE/W/20
AnnexSTO: Article 4.8 contains a general obligation "regarding the transboundary
movement of hazardous waste".
4.9 United States
TN/TE/W/20
AnnexSTO: Article 4.9 contains a general obligation "regarding the transboundary
movement of hazardous waste".
4.10 United States
TN/TE/W/20
AnnexSTO: Article 4.10 contains a general obligation regarding the transboundary
movement of hazardous waste.
4.11 Canada
TN/TE/W/22
para. 14"Some MEAs provide that the convention does not prevent a Party from
imposing additional requirements (e.g. Basel Article 4.11 …).  These
provisions are not trade specific nor are they mandatory…".
5.1 United States
TN/TE/W/20
AnnexSTO:  Article 5.1 "requires the designation of a competent authority and
focal point".TN/TE/S/3/Rev.1
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Provision Proposal Comments
6K o r e a
TN/TE/W/13
para. 10STO: "Stipulates Parties’ obligation to prohibit or restrict trade with specific
procedural requirements".
Japan
TN/TE/W/10
para. 11Article 6 is an example of a situation where the "[t]rade measures to be
taken are explicitly provided for and mandatory under MEAs."
6.1 India
TN/TE/W/23
AnnexArticle 6.1 "[c]ontains trade obligation".
United States
TN/TE/W/20
AnnexSTO:  Article 6.1 governs "the transboundary movement of hazardous
waste".
6.2 India
TN/TE/W/23
paras. 8-9Not an STO:  Article 6.2 is an example of a situation where "only the
outcome to be achieved is identified with a list of appropriate measures that
Parties could implement to achieve the desired outcome".
India
TN/TE/W/23
AnnexArticle 6.2 "[r]efers to the right of a Party to import, ban an import, request
for additional information or provide a conditional consent".
United States
TN/TE/W/20
AnnexSTO:  Article 6.2 governs "the transboundary movement of hazardous
waste".
6.3 India
TN/TE/W/23
AnnexArticle 6.3 "[c]ontains trade obligation".
United States
TN/TE/W/20
AnnexSTO:  Article 6.3 governs "the transboundary movement of hazardous
waste".
6.4 United States
TN/TE/W/20
AnnexSTO:  Article 6.4 governs "the transboundary movement of hazardous
waste".
6.5 United States
TN/TE/W/20
AnnexSTO:  Article 6.5 governs "the transboundary movement of hazardous
waste".TN/TE/S/3/Rev.1
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Provision Proposal Comments
6.9 United States
TN/TE/W/20
AnnexSTO:  Article 6.9 governs "the transboundary movement of hazardous
waste".
6.10 United States
TN/TE/W/20
AnnexSTO:  Article 6.10 governs "the transboundary movement of hazardous
waste".
7 Japan
TN/TE/W/10
para. 11Article 7 is an example of a situation where the "[t]rade measures to be
taken are explicitly provided for and mandatory under MEAs."
8 India
TN/TE/W/23
AnnexArticle 8 "[o]bliges Parties to re-import the hazardous waste, if the
transboundary movement cannot be completed.  Lacks specificity on soundenvironmental disposal".
Japan
TN/TE/W/10
para. 11Article 8 is an example of a situation where the "[t]rade measures to be
taken are explicitly provided for and mandatory under MEAs."
Korea
TN/TE/W/13
paras. 10-1210.  It is unclear whether Article 8 is an STO: "The term "environmentally
sound manner" is not specific.  However, Conference of the Parties (COP)
decision elaborates on the term (See Paragraph 12)".
"12. … Article 8 of the Basel Convention contain the ambiguous words
“environmentally sound way,” which is not operational by itself.  However,a COP decision elaborates it."
United States
TN/TE/W/20
AnnexSTO:  Article 8 "governs the duty to re-import".
9 India
TN/TE/W/23
para. 16Not an STO:  "[…] Article 9 […] comprises five subheadings .  The first,
defines "illegal traffic" and does not contain a trade obligation in itself .  The
second , requests the State of export to ensure that wastes are taken back, or
"otherwise disposed of";  and the third , that these would be disposed of in
an "environmentally sound manner"; the fourth  that these would be disposed
of "as soon as possible in an environmentally sound manner" – terms that all
fail to meet the standard of "specificity" .  The fifth, requests the Parties to
introduce "appropriate national/domestic legislation to prevent and punish
illegal traffic" and encourages Parties to "co-operate with a view to
achieving the objects of this Article" .  Article 9 is a clear illustration of
provisions that, in our view, are not specific as to the means to achieve an
outcome (not specific in its entirety), and hence would not qualify as an
STO".
Japan
TN/TE/W/10
para. 11Article 9 is an example of a situation where the "[t]rade measures to be
taken are explicitly provided for and mandatory under MEAs."TN/TE/S/3/Rev.1
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Provision Proposal Comments
9.2 United States
TN/TE/W/20
AnnexSTO:  Article 9.2 "governs the repatriation of illegal waste".
13 Japan
TN/TE/W/10
para. 11Article 13 is an example of a situation where the trade measure to be taken
is "explicitly provided for and mandatory" under the MEA.
13.2 United States
TN/TE/W/20
AnnexSTO:  Article 13.2 "governs the transmission of information".
13.3(a) United States
TN/TE/W/20
AnnexSTO:  Article 13.3(a) "governs the transmission of information".
13.4 United States
TN/TE/W/20
AnnexSTO:  Article 13.4 "governs the transmission of information".
G. CONVENTION ON BIOLOGICAL DIVERSITY (CBD)
Provision Proposal Comments
General Switzerland
TN/TE/W/21The CBD is one of the MEAs covered by the second category of STOs
identified by Switzerland in its proposal, which comprises "all MEAs setting
out types of measures and policies that can and must be adopted in pursuit
of a specific objective negotiated by the contracting parties."
8 (j) Korea
TN/TE/W/13
para. 10Not 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. 10Not an STO: "Is mandatory in nature but not specific, as Parties can have
discretion concerning implementation measures relating to the use of
biological resources."
United States
TN/TE/W/20
para. 13Not an STO:  Article 10(b) contains a general, rather than specific,
obligation "that accord[s] discretion to the parties regardingimplementation."
15 Korea
TN/TE/W/13
para. 10Not 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."TN/TE/S/3/Rev.1
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Provision Proposal Comments
16, 19 Korea
TN/TE/W/13
para. 10Not STOs: "Are currently not specific.  However, future COP decision can
elaborate them."
22 Korea
TN/TE/W/13
para. 10Not an STO: "Stipulates general principles."
H. CARTAGENA PROTOCOL ON BIOSAFETY TO THE CONVENTION ON BIOLOGICAL DIVERSITY
(BIOSAFETY PROTOCOL )
Provision Proposal Comments
General Canada
TN/TE/W/22
para. 15"In some cases, MEAs include preambular language and/or general principles
(e.g. Biosafety Protocol …) that refer to the international trade regime.
Members should take into account the potential legal implications of such
references in examining the relatio nship between WTO rules and specific
trade obligations set out in MEAs."
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."
Switzerland
TN/TE/W/21The Biosafety Protocol is one of the MEAs covered by the first category of
STOs identified by Switzerland in its proposal, which comprises "trade
measures that are explicitly provided for and mandatory under MEAs."
2.4 Korea
TN/TE/W/13
para. 10Not an STO: "Gives Parties a general authorization."
India
TN/TE/W/23
AnnexArticle 2.4 "[r]efers to the right of a Party to take action that is more
protective than that called for in the Protocol".
7K o r e a
TN/TE/W/13
para. 10STO: "Describe[s] specific and mandatory Advance Informed Agreement
(AIA) procedures."
7.1 India
TN/TE/W/23
AnnexArticle 7.1 "[c]ontains trade obligation".TN/TE/S/3/Rev.1
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Provision Proposal Comments
United States
TN/TE/W/20
AnnexSTO:  governs "the application of the advanced informed agreement
procedure".
7.3 United States
TN/TE/W/20
AnnexSTO:  governs "the application of the advanced informed agreement
procedure".
8K o r e a
TN/TE/W/13
para. 10STO: "Describe[s] specific and mandatory Advance Informed Agreement
(AIA) procedures."
United States
TN/TE/W/20
AnnexSTO:  "governs notification".
8.1 India
TN/TE/W/23
AnnexArticle 8.1 "[c]ontains trade obligation".
9K o r e a
TN/TE/W/13
para. 10STO: "Describe[s] specific and mandatory Advance Informed Agreement
(AIA) procedures."
9.1 United States
TN/TE/W/20
AnnexSTO:  governs "acknowledgement of receipt of notification".
9.2 United States
TN/TE/W/20
AnnexSTO:  governs "acknowledgement of receipt of notification".
9.4 India
TN/TE/W/23
AnnexArticle 9.4 "[e]xplicitly provides an interpretation of a failure to notify by a
Party".
10 Korea
TN/TE/W/13
para. 10STO: "Describe[s] specific and mandatory Advance Informed Agreement
(AIA) procedures."TN/TE/S/3/Rev.1
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Provision Proposal Comments
Norway
TN/TE/W/25
para. 5Article 10 is an example of an MEA provision that meets the "obligation
criterion" of an STO.  It spells out the different possible options of the Party
of import while making it clear (Article 10.1) that any decision taken, shall be
in accordance with the risk assessment in Article 15."
10.1 United States
TN/TE/W/20
AnnexSTO:  governs "the decision procedure".
10.2 United States
TN/TE/W/20
AnnexSTO:  governs "the decision procedure".
10.3 India
TN/TE/W/23
AnnexArticle 10.3 "[r]efers to the right of a Party to arrive at a decision relating to
the import of an LMO".
United States
TN/TE/W/20
AnnexSTO:  governs "the decision procedure".
10.4 United States
TN/TE/W/20
AnnexSTO:  governs "the decision procedure".
10.6 India
TN/TE/W/23
AnnexArticle 10.6 "[r]efers to the right of a Party for risk assessment before
reaching an import decision".
Korea
TN/TE/W/13
para. 10Not STO: "Give[s] Parties a right."
11 India
TN/TE/W/23
AnnexArticle 11 "[c]ontains trade obligation.  The sub-clauses which do not contain
obligations may be read together with the main provisions".
11.1 Korea
TN/TE/W/13
para. 10STO: "Describes specific and mandatory Advance Informed Agreement
(AIA) procedures."
11.2 Korea
TN/TE/W/13
para. 10STO: "Describes specific and mandatory Advance Informed Agreement
(AIA) procedures."TN/TE/S/3/Rev.1
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Provision Proposal Comments
11.4 Korea
TN/TE/W/13
para. 10Not an STO: "Leaves specific measures for Living Modified Organisms –
Food/Feed Processing (LMO-FFP) to Parties’ domestic law."
11.5 Korea
TN/TE/W/13
para. 10STO: "Describes specific and mandatory Advance Informed Agreement
(AIA) procedures."
11.8 Korea
TN/TE/W/13
para. 10Not an STO: "Give[s] Parties a right."
12.1 India
TN/TE/W/23
AnnexArticle 12.1 "[r]efers to the right of a Party to review its decision".
13 India
TN/TE/W/23
AnnexArticle 13 "[r]efers to a right of the party which can be exercised in
accordance with the objective of the Protocol".
Korea
TN/TE/W/13
para. 10Not an STO: "non-mandatory, since the Party of import "may" take
measures."
14 Korea
TN/TE/W/13
para. 10Not an STO: "non-mandatory, since the Party of import "may" take
measures."
14.1 India
TN/TE/W/23
AnnexArticle 14.1 "[r]efers to the right of a Party to enter bilateral (…) agreements
in accordance with the objective of the Protocol".
15 India
TN/TE/W/23
AnnexArticle 15 "may be read together with Articles 7, 8, 10 and 12 and
Annex III".
Korea
TN/TE/W/13
para. 10STO: "Describe[s] specific and mandatory Advance Informed Agreement
(AIA) procedures."
16 India
TN/TE/W/23
paras. 8, 9Not an STO:  Article 16 falls within a category of trade-related measures for
which "the outcome to be achieved is identified, however the measures which
could be implemented to achieve that outcome are not specified."TN/TE/S/3/Rev.1
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Provision Proposal Comments
India
TN/TE/W/23
AnnexArticle 16 "[r]equires Parties to set up appropriate mechanisms (…) to control
risks identified in the risk assessment provision of the Protocol".
Korea
TN/TE/W/13
para. 10Not an STO: "Is not specific in comparison to Article 15, which is elaborated
by Annex III."
United States
TN/TE/W/20
para. 13Not an STO:  contains a general, rather than specific, obligation "that
accord[s] discretion to the parties regarding implementation".
18 Korea
TN/TE/W/13
paras. 10, 1210.  It is unclear whether Article 18 is an STO:  It "[d]escribes relatively
specific obligation regarding documentation but leaves more specificelements 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."
18.2 India
TN/TE/W/23
AnnexArticles 18.2(b) and (c) contain trade obligations:  "However, the specificity
of Article 18.2(a) is to be further articulated by COP Decisions".
United States
TN/TE/W/20
AnnexSTO:  "governs documentation accomp anying living modified organisms".
19 United States
TN/TE/W/20
AnnexSTO:  "requires the designation of competent national authorities and focal
points".
26 Korea
TN/TE/W/13
para. 10Not an STO: "non-mandatory, since the Party of import "may" take
measures."
26.1 India
TN/TE/W/23
AnnexArticle 26.1 "[r]efers to the right of a Party".TN/TE/S/3/Rev.1
Page 75
I. UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE (UNFCCC)
Provision Proposal Comments
General Canada
TN/TE/W/22
para. 16"16.  Some Members have also suggested that the United Nations Framework
Convention on Climate Change  (UNFCCC) and its Kyoto Protocol  should be
included in our examination of MEAs containing STOs.  Our preliminary
analysis indicates that there is nothi ng in the UNFCCC or the Kyoto Protocol
that could be considered an STO.  Therefore, at this stage, we do not believe
that any issues raised by the UNFCCC and the Kyoto Protocol are within the
mandate of paragraph 31(i) of the Doha Declaration."
"8. … [I]t should be noted that the development and policing of trade-relatedenvironmental 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). …"Saudi Arabia
(Observer)
TN/TE/W/9
paras. 8, 11"11.  The UNFCCC is considered as the most relevant MEA to this paper [on
Energy Taxation, Subsidies And Incentives in OECD Countries and TheirEconomic 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 exporters
such as Saudi Arabia where necessary."
4.2 (a) Korea
TN/TE/W/13
para. 10Not an STO: "Allows for Parties’ discretion regarding implementation
measures, with a broadly stated requirement to adopt national policies and
corresponding measures."
United States
TN/TE/W/20
para. 13Not an STO:  Article 4.2(a) contains a general, rather than a specific
obligation "that accord[s] discretion to the parties regarding implementation".
J. KYOTO PROTOCOL TO THE UNFCCC
Provision Proposal Comments
General Canada
TN/TE/W/22
para. 16"16.  Some Members have also suggested that the United Nations Framework
Convention on Climate Change  (UNFCCC) and its Kyoto Protocol  should be
included in our examination of MEAs containing STOs.  Our preliminary
analysis indicates that there is nothi ng in the UNFCCC or the Kyoto Protocol
that could be considered an STO.  Therefore, at this stage, we do not believethat any issues raised by the UNFCCC and the Kyoto Protocol are within the
mandate of paragraph 31(I) of the Doha Declaration."TN/TE/S/3/Rev.1
Page 76
Provision Proposal Comments
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 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 gasreduction commitments.  If Member A prohibits the importation and use of
emission filters for industry on the grounds 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 WTOMembers 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)."
Switzerland
TN/TE/W/21The Kyoto Protocol is covered by the second category of STOs identified by
Switzerland, which comprises "all MEAs setting out types of measures and
policies that can and must be adopted in pursuit of a specific objective
negotiated by the contracting parties.  These MEAs give contracting partiessome latitude with regard to the trade-related measure to be adopted.  … the
Kyoto Protocol … has as its objective to reduce emissions of greenhouse
gases.  The measures to be taken to that end 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 emissionfilters for industry on the grounds 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 WTO Members under
paragraph 31(i).  Indeed, it contributes to the implementation andachievement 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 Korea
TN/TE/W/13
para. 10Not an STO: "Allow[s] for Parties’ discretion regarding implementation
measures for quantified emission limitation and reduction commitment."TN/TE/S/3/Rev.1
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Provision Proposal Comments
2.3 Korea
TN/TE/W/13
para. 10Not an STO: "[A]llows for Parties’ discretion regarding implementation
measures for quantified emission limitation and reduction commitment."
6, 12, 17 Korea
TN/TE/W/13
paras. 10, 1410.  It is unclear whether Articles 6, 12 and 17 are STOs:  They "[p]rovide
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 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 ofview, 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” 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. …"
K. INTERNATIONAL TROPICAL TIMBER AGREEMENT (ITTA)
Provision Proposal Comments
General Switzerland
TN/TE/W/21The ITTA is one of the MEAs covered by the second category of STOs
identified by Switzerland in its proposal, which comprises "all MEAs settingout types of measures and policies that can and must be adopted in pursuit of
a specific objective negotiated by the contracting parties."
1K o r e a
TN/TE/W/13
para. 10Not 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. 10Not an STO: "Lacks specificity in types of implementation measures to deter
activities of fishing vessels."TN/TE/S/3/Rev.1
Page 78
Provision Proposal Comments
23.1, 23.3 Korea
TN/TE/W/13
para. 10Not 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
"10.  It is perhaps easier to identify a provision as an STO if it affects
traditional areas of trade law i.e. import and export bans and restrictions on
trade … but an STO may also include provisions that affect trade such asnotifications, technical regulations, packaging and labelling requirements all
of which  are subject to WTO rules (e.g. … PIC).  "In all six MEAs [See
proposal], while the trade effect can be similar, that is to ban, restrict or
condition trade, there is diversity in the approach taken to achieve these
similar ends in the MEAs.  This diversity should be encouraged, as a one-size-fits-all approach to trade-related measures is unlikely to effectively
address all environmental problems. For example, the PIC Convention …
include[s] prior informed consent procedures but the procedures and details
of the obligations vary."General Canada
TN/TE/W/22
paras. 10, 15
"15.  In some cases, MEAs include preambular language and/or general
principles (e.g. … PIC Convention) that refer to the international trade
regime.  Members should take into account the potential legal implications ofsuch references in examining the relationship between WTO rules and
specific trade obligations set out in MEAs."
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 inquestion."
Switzerland
TN/TE/W/21The Rotterdam Convention is one of the MEAs covered by the second
category of STOs identified by Switze rland in its proposal, which comprises
"all MEAs setting out types of measures and policies that can and must be
adopted in pursuit of a specific objective negotiated by the contracting
parties."
5 Canada
TN/TE/W/22
para. 6Article 5 is a provision "dealing with the notification of national regulatory
actions and mechanisms for additions to the annexes.  This would appear not
to be directly related to trade".
India
TN/TE/W/23
AnnexArticle 5 contains a trade measure:  "However, any obligation relating to
[this measure] would ultimately depend upon the decision of the COP to listthe chemicals".TN/TE/S/3/Rev.1
Page 79
Provision Proposal Comments
Korea
TN/TE/W/13
para. 10STO: "Describe[s] precise and mandatory PIC procedures."
5.1, 5.2 United States
TN/TE/W/20
AnnexSTOs:  Articles 5.1 and 5.2 "govern procedures for banned or severely
restricted chemicals".
6 Canada
TN/TE/W/22
para. 6Article 6 is a provision "dealing with the notification of national regulatory
actions and mechanisms for additions to the annexes.  This would appear notto be directly related to trade".
India
TN/TE/W/23
AnnexArticle 6 contains a trade measure:  "However, any obligation relating to
[this measure] would ultimately depend upon the decision of the COP to list
the chemicals".
Korea
TN/TE/W/13
para. 10STO: "Describe[s] precise and mandatory PIC procedures."
7 Canada
TN/TE/W/22
para. 6Article 7 is a provision "dealing with the notification of national regulatory
actions and mechanisms for additions to the annexes.  This would appear not
to be directly related to trade".
India
TN/TE/W/23
AnnexArticle 7 contains a trade measure:  "However, any obligation relating to this
measure would ultimately depend upon the decision of the COP to list the
chemicals".
Korea
TN/TE/W/13
para. 10STO: "Describe[s] precise and mandatory PIC procedures."
8 Canada
TN/TE/W/22
para. 6Article 8 is a provision "dealing with the notification of national regulatory
actions and mechanisms for additions to the annexes.  This would appear not
to be directly related to trade".
India
TN/TE/W/23
AnnexArticle 8 contains a trade measure:  "However, any obligation relating to
[this measure] would ultimately depend upon the decision of the COP to list
the chemicals".
Korea
TN/TE/W/13
para. 10STO: "Describe[s] precise and mandatory PIC procedures."TN/TE/S/3/Rev.1
Page 80
Provision Proposal Comments
9 India
TN/TE/W/23
AnnexArticle 9 contains a trade measure:  "However, any obligation relating to this
measure would ultimately depend upon the decision of the COP to list the
chemicals."
Korea
TN/TE/W/13
para. 10Not an STO: "Describes the procedure for de-listing a chemical from
Annexes."
10 Norway
TN/TE/W/25
para. 4"In our view the specificity criterion is not limited to provisions identifying
only one single measure.  It also applies to provisions providing well-
defined, alternative measures.  An example might be the RotterdamConvention, Article 10, which spells out that a response to the Secretariat
concerning the future import of the chemical concerned shall consist of
either a final decision ((i) to consent to import/ (ii) not to consent to import/
(iii) to consent to import only subject to specified conditions) or an interim
response (which may include (i) to co nsent or not consent to imports/ (ii)
statement that a final decision is under active consideration…)."
10.2 United States
TN/TE/W/20
AnnexSTO:  Article 10.2 governs "obligations in relation to imports of Annex III
chemicals".
10.4 India
TN/TE/W/23
AnnexArticle 10.4 "[r]efers to the right of a Party to arrive at a decision relating to
the import of chemicals".
Korea
TN/TE/W/13
para. 10STO: "Describe[s] precise and mandatory PIC procedures."
United States
TN/TE/W/20
AnnexSTO:  Article 10.4 governs "obligations in relation to imports of Annex III
chemicals".
10.5 United States
TN/TE/W/20
AnnexSTO:  Article 10.5 governs "obligations in relation to imports of Annex III
chemicals".
10.7 United States
TN/TE/W/20
AnnexSTO:  Article 10.7 governs "obligations in relation to imports of Annex III
chemicals".
10.8 United States
TN/TE/W/20
AnnexSTO:  Article 10.8 governs "obligations in relation to imports of Annex III
chemicals".TN/TE/S/3/Rev.1
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Provision Proposal Comments
10.9 India
TN/TE/W/23
AnnexArticle 10.9 "[c]ontains trade obligation".
Korea
TN/TE/W/13
para. 10STO: "Describe[s] precise and mandatory PIC procedures."
United States
TN/TE/W/20
AnnexSTO:  Article 10.9 governs "obligations in relation to imports of Annex III
chemicals".
11 United States
TN/TE/W/20
AnnexSTO:  Article 11 "governs obligations in relation to exports of Annex III
chemicals".
11.2 India
TN/TE/W/23
AnnexArticle 11.2 "[c]ontains trade obligation".
Korea
TN/TE/W/13
para. 10STO: "Describe[s] precise and mandatory PIC procedures."
12 India
TN/TE/W/23
AnnexArticle 12 "[c]ontains trade obligation".
12.1 Korea
TN/TE/W/13
para. 10STO: "Describe[s] precise and mandatory PIC procedures."
United States
TN/TE/W/20
AnnexSTO:  Article 12.1 governs "export notification".
12.2 United States
TN/TE/W/20
AnnexSTO:  Article 12.2 governs "export notification".
12.3 United States
TN/TE/W/20
AnnexSTO:  Article 12.3 governs "export notification".TN/TE/S/3/Rev.1
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Provision Proposal Comments
12.4 United States
TN/TE/W/20
AnnexSTO:  Article 12.4 governs "export notification".
13.1 India
TN/TE/W/23
para. 10"While identifying STOs several other aspects are also relevant in
considering the specificity, as a number of trade obligations are not specific
in their entirety, that is, they contain non-specific elements as well.  For
instance, Article 13.1 of the Rotterdam Convention states that:  " The
Conference of the Parties shall encourage the World Customs Organization
to assign specific Harmonized System customs codes to the individual
chemicals or groups of chemicals listed in Annex III, as appropriate.  Each
Party shall require that, whenever a code has been assigned to such a
chemical, the shipping document for that chemical bears the code when
exported" .  The second sentence of the provision could qualify as an STO
but the first sentence would clearly not. Furthermore, several provisions have
to be read with another provision containing a trade obligation to understand
whether it is specific or not."
India
TN/TE/W/23
AnnexArticle 13.1 "[c]ontains trade obligation once the WCO has assigned a code
to a chemical that is being exported".
13.2 India
TN/TE/W/23
AnnexArticle 13.2 "[r]equires Parties to label Annex III chemicals before export, in
accordance with relevant international standards".
Korea
TN/TE/W/13
para. 10STO: "Describe[s] precise and mandatory PIC procedures."
United States
TN/TE/W/20
AnnexSTO:  Article 13.2 governs "informati on to accompany exported chemicals".
13.3 India
TN/TE/W/23
AnnexArticle 13.3 "[r]efers to a right of a Party to label exports that are subject to
labelling requirements in its own territory".
Korea
TN/TE/W/13
para. 10Not an STO: "Is not mandatory since Parties "may" require labeling"
United States
TN/TE/W/20
para. 13Not an STO:  Article 13.3 "provides discretion to individual parties on
whether to subject certain of its chemical exports to labelling requirementsand, as such, is not an obligation".TN/TE/S/3/Rev.1
Page 83
Provision Proposal Comments
13.4 United States
TN/TE/W/20
AnnexSTO:  Article 13.4 governs "informati on to accompany exported chemicals".
15.4 Canada
TN/TE/W/22
para. 14"Some MEAs provide that the convention does not prevent a Party from
imposing additional requirements (e.g. … PIC Article 15(4)).  These
provisions are not trade specific nor are they mandatory…".
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 inaccordance with international law."
India
TN/TE/W/23
AnnexArticle 15.4 "[r]efers to the right of a Party to take action that is more
stringently protective than that called for in the Convention".
Korea
TN/TE/W/13
para. 10Not an STO: "Gives full discretion to Parties in taking "stricter measures"."
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 exceptions
such as their environmentally sound disposal or a specific use/purpose, suchas insecticides, on the request of some Parties."
Switzerland
TN/TE/W/21The Stockholm Convention is one of the MEAs covered by the first
category of STOs identified by Switze rland in its proposal, which comprises
"trade measures that are explicitly provided for and mandatory under
MEAs."
3 Canada
TN/TE/W/22
paras. 4, 9, 10"4.  …Trade-related measures … take different forms such as bans,
restrictions or conditions on international trade in products, substances or
species.  In some cases, this is accompanied by restrictions or bans on
domestic production and/or use (e.g. POPs Convention, Article 3 …)."TN/TE/S/3/Rev.1
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Provision Proposal Comments
"9.  Precision and clarity in provisions simplify the task of identification of
an STO.  For example, Article 3 of the POPs Convention provides for a
Party to ban the import or export of the controlled substances or wastes
subject to certain conditions.  Although no details are provided on the
procedures to be utilized by a Party to put these bans into effect, they clearlyset forth the result (to eliminate the import or export) to be achieved while
the Party still has to determine which and if "legal or administrative
measures are necessary".  In Article 3.2 (b), the POPs Convention requires a
Party to take measures to restrict the export of certain chemicals "taking into
account any relevant provisions in existing international prior informedconsent instruments".  While there are no details, the language is fairly
precise in nature.  Can this particular aspect of the obligation in Article 3.2
be considered to be a specific obligation?"
"10.  It is perhaps easier to identify a provision as an STO if it affectstraditional areas of trade law i.e. import and export bans and restrictions on
trade (… Article 3 POPs Convention) but an STO may also include
provisions that affect trade such as notifications, technical regulations,packaging and labelling requirements all of which  are subject to WTO
rules …".
Article 3.1(a) "[c]ontains trade obligation.  Some of the provisions ofAnnex A-Part II relating to "priorities" to follow prior to 2025 may not
contain an obligation, but may be read together with the main provision".3.1 India
TN/TE/W/23
AnnexArticle 3.1(b) "[r]elates to national production and use of chemicals listed in
Annex B".
Korea
TN/TE/W/13
para. 10STO: "Stipulate[s] explicit and mandatory restrictions.  In addition,
“environmentally sound disposal” mentioned in Article 3.2 is specified inParagraph 1(d) of Article 6."
United States
TN/TE/W/20
AnnexArticle 3.1(a)(ii) is an STO:  it governs obligations concerning the export
and import of listed chemicals (as among Parties)
3.2 India
TN/TE/W/23
AnnexArticle 3.2 "[c]ontains trade obligation that is further specified by
Article 6.1(d)".
Korea
TN/TE/W/13
para. 10STO: "Stipulate[s] explicit and mandatory restrictions.  In addition,
“environmentally sound disposal” mentioned in Article 3.2 is specified in
Paragraph 1(d) of Article 6."
United States
TN/TE/W/20
AnnexArticles 3.2(a), 3.2(b)(i), 3.2(b)(ii) and 3.2(c) are STOs:  they govern
"obligations concerning the export and import of listed chemicals (as among
Parties)".TN/TE/S/3/Rev.1
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Provision Proposal Comments
4 India
TN/TE/W/23
AnnexArticle 4 "[e]stablishes a register of specific exemptions.  It provides a right
to Parties to register specific exemptions listed in Annex A or B".
Korea
TN/TE/W/13
para. 10Not an STO: "Stipulates register of specific exemptions."
8 India
TN/TE/W/23
AnnexArticle 8 "[r]efers to the right of a Party to list a chemical in Annex A, B or
C".
Korea
TN/TE/W/13
para. 10Not an STO: "Describes Party’s right to list POPs in the Annexes."
Annex A
Part IIUnited States
TN/TE/W/20
AnnexAnnex A, Part II, Paragraph (c) is an STO, as it applies among Parties.
__________