. /.  WORLD TRADE  
ORGANIZATION  TN/TE/W/61 
10 October 2005 
 (05-4557) 
Committee on Trade and Environment 
Special Session  Original:   English 
 
  
THE RELATIONSHIP BETWEEN WTO RULES AND MEAS 
 
Submission by Switzerland
 
 
Paragraph 31 (i)  
 
Statement by Switzerland at the CTESS Meeting of 15-16 September 2005  
 
 
 The following communication, dated 7 October2005, is being circulated at the request of the Delegation of Switzerland
. 
 
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1. In relation to our submission in document TN /TE/W/58, which was presented at the CTESS 
meeting in July, New Zealand and other delegations asked how the principles of no-hierarchy, mutual 
supportiveness, and deference, which should in ou r view govern the relationship between WTO rules 
and MEAs, relate to the rules of international law.  As promised at the last meeting, we are pleased to 
respond to this important qu estion now in more detail. 
2. In principle, international law does not creat e a hierarchy between agreements.  The only 
exceptions in this regard are the following: 
(a) First, jus cogens always precedes.  According to th e Vienna Convention on the Law 
of Treaties, jus cogens are norms accepted and recognized by the international 
community of States as a whole as norms from which no derogation is permitted.  
The prohibition of genocide, for example, is recognized as jus cogens .  WTO law 
certainly does not have the status of jus cogens .  Neither are MEAs perceived as 
jus cogens .  
(b) Second, according to the principle of jus posterior, newer law precedes over older 
law.  This rule only applies if the countries involved in a conflict are parties to the old 
and new law.  
(c) Third, more specific law precedes over more general law ( lex specialis ).  This rule 
only applies between countries that both are parties to the conflicting rules.  
  
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 3. According to these general principles it is clear that there exists no hierarchy between 
WTO rules and MEAs.  This has been confirmed by the international community, e.g. by UN General 
Assembly decisions or at the World Summit on Sustainable Development (WSSD), where it was clearly stated that States should "[p]romote mutual supportiveness between the multilateral trading system and the multilateral environmental agreements, consistent with sustainable development goals, 
in support of the work programme agreed thr ough WTO, while recognizing the importance of 
maintaining the integrity of both sets of instrument s."  This reference to mutual supportiveness and 
the recognition of maintaining the integrity of th e WTO and the environmental regimes, are a clear 
recognition of the principles of no hierarchy, mu tual supportiveness and deference.  In fact, the 
integrity of each system can only be maintained by pa ying deference to each other.  By stressing these 
principles, it is also acknowledged that there is no  need to introduce, in  new MEA's for example, 
provisions dealing with the relationship of the treat y in question to other treaties (so-called savings 
clauses). 
4. Furthermore, as long as different international rules can be interpreted in a compatible and 
consistent manner, there is no need to establish an  artificial hierarchy between them.  In that sense 
WTO rules should, according to international law, alwa ys be interpreted in a manner that they do not 
constitute a conflict with MEA rules.  And vice versa,  MEAs rules must be interpreted in a way that 
they to not create a conflict with WTO rules.  This is a reflection of the general principle pacta sunt 
servanda , that requires that states should try to fulfil their obligations resulting from one treaty 
without violating their other obligations.  Hence, treaties should generally be construed so as not to 
create a conflict with other rules of international treaty law.  Thus, if in a specific situation both rules, 
those of WTO and those of an MEA, apply, the provi sions of each instrument should be construed – if 
possible – in a manner not creating conflicts with the applicable rules and principles of the other 
instruments.  This implies an approach according to which a measure provided for by an MEA should 
be held as WTO-compatible.  And this also impl ies that in the context of the WTO, the word 
"necessity of a measure provided for in an MEA" should not be re-examine d, thus questioning the 
fulfilment of obligations under an MEA but WTO sh ould use deference with regard to this issue. 
5. Finally, let me conclude by indicating that th e decisions of international courts such as the 
International Court of Justice, but also the deci sions of the WTO appellate body are reflecting the 
above mentioned principles.  We hope that with th ese clarifications the question could be answered 
satisfactorily. 
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