WORLD TRADE
ORGANIZATIONTN/TE/W/22
10 February 2003
(03-0863)
Committee on Trade and Environment
Special SessionOriginal:  English
DISCUSSION PAPER ON THE CONCEPT OF SPECIFIC TRADE OBLIGATIONS (STOS)
Submission by Canada
Paragraph 31(i)
I. INTRODUCTION
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 nextstep in the analytical stage of the negotiations.  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.
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. 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 canprovide significant insights. 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.
4. In each of these six MEAs, trade-related measures are important tools to achieve the
underlying environmental conservation and protection objectives in an efficient, effective and timely
fashion.  These 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 Conventi on, Article 3 and Montreal Protocol, Article 2).
In the Basel Convention, Parties seek to minimize the transboundary movement of hazardous wastesand, when these do occur, that it is done in a manner that will protect human health and the
environment.TN/TE/W/22
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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 that
Agreement 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 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 ofthe 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 PIC procedures.  Articles 5, 6, 7 & 8
of the PIC Convention are provisions dealing with th e 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 be included in
our discussions of STOs set out in MEAs.  The que stion arises when MEAs 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 a careful 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, 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 defini tion of "set out in MEAs" in para. 31(i) for those
WTO Members who are also Parties to the amendments and if the amendments include measures thatare 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 Pa rty 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 (toeliminate 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 informed  consent instruments".  While there are no details,
the language is fairly precise in nature.  Can this particular aspect of the obligation in Article 3.2 beconsidered to be a specific obligation?TN/TE/W/22
Page 3
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 (Article 4.1 Montreal Protocol, Article 3
POPs Convention) but an STO may also include prov isions 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 Convention and the Basel Convention both incl ude 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 Partyhas asserted a right or privilege (Article 4.1 (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.  For example, Article 4.2 (d) of the Basel Conventionrequires 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 the adverse effects which may result from such
movement".  It requires Parties to put in place technical regulations ("measures") to achieve thisobjective.  It is 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 by technical 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 Parties at 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 from imposing 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 international law 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 intoaccount the potential legal implications of such references in examining the relationship 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 theKyoto Protocol that could be considered an STO.  Th erefore, 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.TN/TE/W/22
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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 include amendments 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 totrade, 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 measures appears 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.
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