WORLD TRADE  
ORGANIZATION  TN/TE/W/58 
6 July 2005 
 
 (05-2969) 
Committee on Trade and Environment 
Special Session Original:   English 
 
 
 
THE RELATIONSHIP BETWEEN EXISTING WTO RULES AND SPECIFIC TRADE 
OBLIGATIONS (STOS) SET OUT IN  MULTILATERAL ENVIRONMENTAL 
AGREEMENTS (MEAS):  
 
 
A Swiss Perspective on National Experiences and Criteria used in the Negotiation  
and Implementation of MEAs  
 
Submission by Switzerland  
 
Paragraph 31 (i)  
 
 The following communication, dated 5 July 2005,  is being circulated at the request of the 
Delegation of Switzerland . 
 
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I. INTRODUCTION  
1. Under paragraph 31 (i) of the Doha  Mandate Ministers have agreed: 
to negotiations on the relationship betw een existing WTO rules and specific trade 
obligations (STOs) set out in multilateral envi ronmental agreements (MEAs) with a view to 
enhancing the mutual supportiveness of trade and environment.  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.   
2. Since the beginning of our work, basically tw o kinds of discussions have been held under 
paragraph 31(i) by the Committee on Trade and Envi ronment in Special Session (CTESS):  first, a 
pragmatic discussion of specific trade obligations (STOs) in MEAs
 with an exchange of views on the 
experience in the negotiations and implementati on of MEAs, and secondly, a broader and more 
conceptual discussion of the relationship between WTO rules and MEAs .  
3. Switzerland wishes to contribute to the discussion on national experiences by describing its 
consultation and coordination mechanism and the underlying principles and criteria for the 
development of national positions in MEA negotiations and the im plementation of international 
provisions.  
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 II. SWISS NATIONAL EXPERIENCES IN CONSULTATION AND COORDINATION  
4. Switzerland has a strong and institutionalized coordination and consultation mechanism for 
the preparation of negotiations relating to ME As.  Below is a short explanation of the 
intergovernmental coordination, of the consultation of stakeholders a nd of the participation of Federal 
Parliament.  
5. With regard to intergovernmental coordination
, the national positions prepared in view of 
negotiations of trade related issues in MEAs are s ubject to the same procedure of consultation as the 
implementation of internationa l obligations following from such  negotiations.  Usually, the 
responsible agency prepares a proposal for negotiati on or implementation.  Following this proposal, 
all government agencies concerned have the possibil ity to submit their comments as well as to make 
amendments on the initial proposal.  Such proposals ar e then usually discussed in meetings to which 
all agencies concerned are invited, in order to  come to a common position.  If, after repeated 
consultation, no agreement is found between different federal minist ries, it is up to the federal 
government, that is the Federal Council, who d ecides on the mandates for the negotiation of 
international agreements, to take the final decision.   It is also the Federal Council who decides on the 
implementing legislation of an inte rnational agreement.  Such a decision is subject to approval by 
Parliament if the implementation is  done through a formal law.  
6. For issues of particular importance and when kno wledge is spread in different ministries, 
more permanent inter-ministerial working groups  are established.  An example of such an issue was 
the clarification of the concept “precautionary princi ple”.  This discussion was not related to a specific 
international instrument, but rather to an i ssue which often had provoked discussions as to its 
definition and applicability.  The work resulted in a synthesis paper from which the different federal 
agencies can draw when questions arise in th e context of negotiations or implementation. 
7. As to stakeholders’ consultation , the “Federal Law on Environmental Protection” stipulates 
that interested parties are consulted in the prepar ation of international legal instruments and their 
implementation.  With regard to the preparation of legal instruments, a comprehensive consultation 
procedure is carried out to invite comments from a num ber of constituents for a period of at least three 
months.  Interested parties may also comment on the draft implementing legislation proposed by the 
Federal Council.  These include the cantons, political parties, NGOs, and the private sector concerned. 
The Swiss Government strongly supports partners hip with the industry to effectively implement 
environmental protection programmes (Article 41a of the Federal Law on Environment Protection). 
After having consulted the interested parties, the negotiating mandate or the implementing legislation 
is adapted accordingly by the responsible federa l agency and decided by the Federal Council.  
8. As regards negotiating mandates, though the Fe deral Council has the competence to take the 
final decision, it usually consults the Parliame ntary commission responsible for the issue before 
taking such decision.  In the case of implementin g legislation, it is submitted to the Parliament  for 
approval if necessary.  
III. CRITERIA USED IN THE NEGOTIATION AND IMPLEMENTATION OF STOS 
9. According to Article 5, paragraph 4 of the Swiss Constitution, the Swiss Confederation and 
the Cantons must respect international law.  This  provision leaves it implicitly to jurisprudence and 
academic writings to develop the relationship and hierarchy between international and Swiss law and 
to formulate principles and rules applicable to c onstellations of potential conflicts between them.   TN/TE/W/58 
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 10. In the Swiss Federal Administration, the following criteria are guiding MEA negotiators when 
considering trade provisions in MEA negotiations or the implementation of STOs domestically:   
y Trade measures must serve an overriding public interest;  
y Trade measures must not constitute arbitrary or unjustifiable discrimination  nor disguised trade 
restrictions;  
y Trade measures must be proportional  to achieve the environmental goal (i.e. trade measures 
ought to be suitable , necessary  including least-trade restrictiveness as well as proportionate); 
and 
y Trade measures must be transparent  (i.e. the process and the responsibilities are structured 
transparently and the measures are openly communicated). 
11. At the last CTESS meeting, Canada described ve ry similar criteria that MEA negotiators in 
Canada consider in examining the pote ntial for trade provisions.  These were:  
y That trade measures were chosen when eff ective and when alternative measures were 
ineffective in achieving the environmental objectiv e, or when other measures were ineffective 
without trade measures as part of the MEA; 
y that trade measures be no more trade restrictiv e than required to achieve the environmental 
objective; and  
y that trade measures did not constitute arbitrary or unjustifiable discrimination.  
12. The United States (TN/TE/W/40) suggested some  conditions which favourably contribute to 
the mutual supportiveness of the relationship betwee n WTO rules and MEAs for the case of a specific 
trade obligation (i.e. export restriction).  The conditions suggested are;  
y a good national  as well as international cooperation of trade and environmental experts  to tailor 
STOs in order for them to meet particular e nvironmental objectives, as well as take into account 
Parties’ trade-related rights and obligations; 
y a careful design  of export restrictions; and 
y science-based procedures  as well as procedures for changes  to contribute to a mutually 
supportive relationship between MEAs and WTO rules.  
13. Switzerland thinks that it is useful to pursue the discussion on the criteria which could be used 
in the negotiation of STOs in MEA's because th is would enhance the understanding of how STOs 
relate to WTO provisions and help to prevent fu ture conflicts between MEAs and WTO rules.  
14. However, we should be aware of two caveats:  fi rstly, we have to bear in mind that we are 
here in a WTO context and that any recommendation w ith regards to the criteria for the negotiation of 
MEAs would have to be endorsed by our MEA nego tiators.  Secondly, although negotiators of both 
MEA’s and WTO provisions should certainly strive to ensure mutual supportiveness so that no dispute arises, there is no guarantee that we actually succeed in avoiding any conflict at the 
implementation stage.  The mere fact that no conflict has arisen between the two sets of rules as of today does not automatically imply that there will be  none in the future, especially given the steady 
growth of interface between the two sets of law.  
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 IV. THE CONCEPTUAL APPROACH – A SYNTHESIS  
15. The above said shows the importance of a broa d consultation process on a national level and 
of guiding principles and criteria in the negotiation and implementation of MEAs, in order to ensure 
mutual supportiveness of WTO provisions and MEAs.  
16. However, what about a better c oordination at the international
 l e v e l ?   I s  t h e r e  r o o m  f o r  
improvement taking examples which worked especially well?  Given the fact that both systems – i.e. 
the MEAs and the WTO – are dynamic and evolving con tinuously over time, it is important to clarify 
the principles governing the relationship in order to ensure mutual supportiveness.  Both systems 
should not evolve in isolation from each other.  Whether it is in order to improve international 
cooperation when devising a new STO, or in order to ensure that an  STO is implemented in a manner 
consistent with international oblig ations, Switzerland is of the view that a discussion and clarification 
of the principles governing the relationship between  WTO and MEAs is useful and necessary and in 
fact responds to the mandate that we were given by Ministers in Doha.  
17. The following principles are in Switzerland’s vi ew central to the discussion in the CTESS:  
(a) The principle of “ no hierarchy ” is based on the idea, that both legal systems are 
equal and there is no hierarchy between trad e and environmental regimes.  This is 
something which is taken into account in the interagency process cited above. 
(b) The principle of “ mutual supportiveness ” is based on the assumption that the 
overall objective of both environmental and trade regimes is the same, namely the promotion of wellbeing.  The two sets of rules are concerned with different areas 
of policies, focus on different issues and have different competences.  However, in 
focusing on their own tasks and compet encies, the trade and environmental 
regimes must ensure mutual supportiveness.  
 This can be illustrated by taking the ex ample of the Climate Convention and relate 
it to WTO objectives:  the overall objective of the Climate Convention is to stabilise Green-House-Gas (GHG) concentrations at a level that would prevent 
dangerous anthropogenic interference with the climate system.  The objectives of 
the WTO focus on growth in economic welfare, employment and production of and trade in goods and services.  Sustaina ble development is also recognised in 
the WTO as a key objective ( see DDA, para 6 ).  The Climate Convention is 
coherent with upholding an open and non- discriminatory international economic 
system.  At the same time , the Climate Convention contributes to the overall goal 
of well-being by establishing rules, principles and institutions for the protection of 
the environment.  
 Another example points to a growing a nd more general commitment to mutual 
supportiveness between global environmenta l objectives and the WTO:   the Plan 
of Implementation of the WSSD, which says in para 98:  “Promote mutual 
supportiveness between the multilateral trading system and the multilateral 
environmental agreements, consistent with sustainable development goals, in 
support of the work programme agreed through WTO, while recognizing the importance of maintaining the integrity of both sets of instruments”.  
(c) The reference to the importance of ma intaining the integrity of both sets of 
instruments brings us to the third principle, i.e. the principle of “deference ”, 
namely that each framework should rema in responsible and competent for the 
issues falling within its primary area of  competence and accept the competence 
and decisions of the other regime.  We shoul d not fall into the pitfall of wanting to 
deal with issues in the wrong forum, just  because it may be more convenient for  TN/TE/W/58 
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 one or the other reason (like the availab ility of an effective dispute settlement 
system). 
V. CONCLUSION 
18. Switzerland welcomes the discussion on the shar ing of experiences with respect to the 
negotiation and implementation of STOs in MEAs, be it on a national level or on an international 
level, in order to get insights into the different  practices.  In Switzerland’s view, however, the CTESS 
needs to go further than sharing experience and dr aw conclusions in order to fulfil the mandate 
Ministers have given us in Doha a nd to ensure that both systems can develop and evolve in a mutually 
supportive way.  
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