WORLD TRADE
ORGANIZATIONTN/TE/W/1
21 March 2002
(02-1470)
Committee on Trade and Environment
Special SessionOriginal:  English
MULTILATERAL ENVIRONMENTAL AGREEMENTS (MEAS):
IMPLEMENTATION OF THE DOHA
DEVELOPMENT AGENDA
Submission by the European Communities
Paragraph 31(i)
I. INTRODUCTION
1. The European Union, like many WTO Members, believes that the Multilateral Trading
System has a key role to play in the achievement of global sustainable development. This was
underlined by the 4th Session of the WTO Ministerial in Doha and the launch of the Doha
Development Agenda (DDA).  The fact of including the term ‘development’ in the name of the new
round of trade liberalization is not anodyne:  it proves that development issues and the interests of
developing countries are integral to the work we shall carry out together in the years to come.
2. The interface between the MTS and our common commitment and responsibility to the
conservation and sustainable use and management of ecosystems and natural resources is complexand in recent years the CTE has addressed several of the issues at this interface.  However, the picture
is different today:  in Doha, Ministers agreed to start negotiations on some specific issues to be
conducted in parallel with the follow-up of the CTE mandate.
II. THE MANDATE
3. In the Declaration agreed in Doha, ministers stated that
“We are convinced that the aims of upholding and safeguarding an
open and non-discriminatory multilateral trading system, and actingfor the protection of the environment and the promotion of
sustainable development can and must be mutually supportive …
We recognize that under WTO rules no country should be prevented
from taking measures for the protection of human, animal or plant
life or health, or of the environment at the levels it considersappropriate, subject to the requirement that they are not applied in a
manner which would constitute a means of arbitrary or unjustifiable
discrimination between countries where the same conditions prevail,
or a disguised restriction on international trade, and are otherwise in
accordance with the provisions of the WTO Agreements.”
4. On the basis of this, in paragraph 31 of the Declaration, ministers went on to set out a clear
mandate for negotiations on the relationship between WTO rules and Multilateral Environmental
Agreements (MEAs) stating that:TN/TE/W/1
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“With a view to enhancing the mutual supportiveness of trade and
environment, we agree to negotiations, without prejudging their
outcome, on:
(i) the relationship between existing WTO rules and specific trade
obligations set out in multilateral environmental agreements (MEAs).The negotiations shall be limited in scope to the applicability of such
existing WTO rules as among parties to the MEA in question.  The
negotiations shall not prejudice the WTO rights of any Member that
is not a party to the MEA in question;
(ii) procedures for regular information exchange between MEA
secretariats and the relevant WTO Committees, and the criteria for
the granting of observer status”
5. The EU considers paragraph 31 (ii) an important part of the DDA mandate on Trade and
Environment.  On this issue, too, it will seek a positive outcome and contribute to the debate on the
issue soon.
III. DEFINITION OF AN MEA
6. The EU considers that an MEA is a legally binding instrument between at least three parties,
the main aim of which is to protect the environment and which is open to 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 to define an
MEA in general.  Therefore, the only purpose of s eeking within the WTO an 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 agreementshould 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.
IV. BENEFITS ACCRUING FROM A CLARIFICATION
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 moveTN/TE/W/1
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forward “with a view to enhancing the mutual suppo rtiveness between trade and environment” in the
realm of the WTO.
10. Considering the growing interfa ce 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 in this area through agreement on our shared interests andthe 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 to potential dispute settlement and
the results it imposes.
11. Like the vast majority of WTO Members, the EU believes that environmental measures
addressing transboundary or global environmenta l 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 a multilateral context, should be an effective guarantee against discriminatory action and
their use for protectionist purposes.
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 at least 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 that neither would operate in isolati on of the other.  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 making environment for both
trade policy makers and negotiators of MEAs alike and help prevent 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 under WTO.  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 open spirit focussed on the objectivesTN/TE/W/1
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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.
V. THE AIM OF THIS PAPER
18. Agreement on the nature of the problem and defining what our aims should be in clarifying
the relationship are the necessary departure point of the negotiations ahead of us.  The EU is tabling
this paper as a first contribution to the negotiation process on this issue and to stimulate a positively
oriented discussion among WTO Members . In this submission we seek to set out some thoughts to
feed into the debate, notably on the concepts of “specific trade obligations” and “among parties”
contained in paragraph 31 (i) of the DDA.
19. As a first step before examining these two particular elements, the EU considers that the
relationship between WTO rules and MEAs in the context of a global governance system should bebased 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’s respective 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 amutually supportive relationship between bo th sets of rules.  When the trade and
environment interface raises novel trade-related questions, these could usefully be asubject of information exchange between the MEA secretariat 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 support ive, in order to meet the common goal of
sustainable development.
• 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.
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20. Some elements of these principles are developed further in our deliberations below.
VI. “SPECIFIC TRADE OBLIGATIONS”
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) ofMEAs, either self-standing or combined with other types of measures, and in some cases have been
                                                     
1 Appellate Body in Reformulated Gasoline  case.TN/TE/W/1
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key to the success of the MEA. For instance, 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.
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 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.  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 contextinsofar as the nature of trade measures in a specific MEA might evolve over time depending on the
effectiveness of the initial trade measure and/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 trademeasures are the 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”.
2 They do not cover trade measures applied exclusively vis-à-vis  non-Parties.
• 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 beaffected 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 Cartagena Protocol on Biosafety as regards obligatory advanced informedagreement 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 list potential 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.
                                                     
2 Some MEAs contains several categories of “trade obligations” and examples given are not
exhaustive.TN/TE/W/1
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• 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 stringentmeasures in accordance with internatio nal law.  This is the case with the
Montreal Protocol (Art. 2.11) and PIC (Art. 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 in order 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 cooperation with 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.
VII. “AMONG PARTIES”
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, hi ghly unlikely from both a political and legal point of
view.  Accordingly, if Parties have agreed specif ic 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 so lve the issue through the MEA dispute settlement, as
recommended by the CTE in its report to Singapore
3.  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 bysuccessive panels. It could be legitimately argued that the measures taken by a WTO Member to
implement specific trade obligations 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 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 XX of the GATT.  Indeed, the Appellate Body hasmade 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 asMEAs.  It is clear that the existence of an MEA should be taken into consideration in
applying WTO rules.
                                                     
3 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/W/1
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• 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 firs t 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 provisions 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.
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.
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