RESTRICTEDWORLD TRADE
ORGANIZATIONTN/TE/R/1
19 April 2002
(02-2207)
Committee on Trade and Environment
Special Session
SUMMARY REPORT ON THE FIRST MEETING OF THE COMMITTEE ON TRADE
AND ENVIRONMENT SPECIAL SESSION
22 MARCH 2002
Note by the Secretariat
1. The Special Session of the Committee on Trade and Environment, which was established by
the Trade Negotiations Committee (TNC) to conduct negotiations on trade and environment
(TN/C/M/1), held its first meting on 22 March 2002 on the basis of the agenda set out in the
convening airgram (WTO/Air/1742).  The Committee confirmed Ambassador Yolande Biké of theRepublic of Gabon as Chairperson of the Special Session.  The following report provides a detailed
summary of the discussions held under each of the items placed on the agenda.
I. ORGANIZATION OF WORK
2. The Chairperson noted that the basic task given to the Special Sessions by the TNC was to
conduct the negotiations mandated under paragraph 31 of the Doha Ministerial Declaration(WT/MIN(01)/DEC/1).  She invited comments from participants in the negotiations on how the work
of the Special Sessions could be organized in terms of number of meetings to be held, and the phases
of work to be followed.
A. N
UMBER OF MEETINGS
3. The Chairperson recalled that in addition to th e actual meeting which was taking place, two
additional meetings had already been scheduled for th is year.  They would be held back-to-back with
the regular Committee on Trade and Environment (CTE), and their dates were:  11-12 Juneand 10-11 October.
4. A number of different views were expressed on the required number of meetings in the
year 2002.  The European Communities (EC) called for four meetings to be held, arguing that greater
time needed to be devoted to trade and environment negotiations.  Three categories of views were
expressed in reaction to this proposal.  Some participants supported it, others indicated they could beflexible, but a third group was opposed.  Several developing country participants who were opposed
to a fourth meeting argued that, due to the small size of their delegations, an increase in the number of
meetings could stand in the way of their effective participation, and increase the chances of
overlapping negotiations being held.  On that same basis, Kenya expressed a preference for only two
meetings.
5. On the basis of a suggestion by the EC, the Chairperson concluded that participants with
strong objections to a fourth meeting communicate their objections to her by the end of the following
week.TN/TE/R/1
Page 2
B. PHASES OF WORK
6. The representative of Brazil expressed her delegation's preference for a gradual approach in
conducting the work of the Special Session.  While she was not in favour of rigid "phases of work",
she was in favour of organizing the process through which the work of the Special Session would be
conducted.  She called for a first stage which would involve interpreting the mandate of paragraph 31on issues such as what a multilateral environmen tal agreement (MEA) was, and the form that the
trade-related measures in MEAs took.  The Special Session needed to examine in that first stage what
information already existed, and what additional information would need to be gathered to better
understand the mandate.  A second stage could then be launched in which ideas could be circulated on
how to address the problems identified.  That stage would revolve around the proposals that would be
tabled.  A number of delegations expressed their support for the Brazilian approach, including
Mexico, Uruguay
, Malaysia , Argentina , and Singapore .  They all argued that time should be devoted
to understanding the mandate and gathering the necessary data, prior to embarking on actual
negotiations.
7. The representative of Canada called for paragraph 31 to feature in its entirety at every
meeting of the Special Session, and recommended a two-phased approach:  a first phase in which
issues could be discussed and proposals submitted, and a second phase in which substantivenegotiations could actually take place.  He did not envisage fixed timing for either of the two phases,
but foresaw the possibility of an early harvest on paragraph 31 (ii).
8. A number of other delegations also expressed their support for the two-phased approach,
including Cuba, Korea
, Pakistan , Thailand , Bolivia , India  and Saudi Arabia .  They all argued that time
should be devoted to examining the mandate and collecting data, prior to starting the actual
negotiations.
9. The representatives of Japan, Norway  and Switzerland  argued that while there could be
benefits to structuring the work of the Special Session, there was no need for a study phase, since
many of the issues in paragraph 31 had already been examined by the CTE.  Norway argued that
while mental deadlines could considered, proposals should be submitted by the "demandeurs" ontrade and environment, and the discussions should revolve around them.  Switzerland proposed that
the Special Session study its mandate, examine the proposals previously circulated in the CTE, then
turn to negotiations.
10. The representative of the United States (US) indicated that he saw paragraphs 31 (i) and (ii)
as being different in nature and substance, and that the pace of work on one paragraph should not
constrain progress on the other.  He argued that phases would naturally occur through the evolution of
the negotiating dynamic, and questioned the value of a phased approach.  He called for maintainingflexibility in the negotiations.
11. The Chairperson noted that different approaches had been put forward by participants on the
phases of work, but was confidant that phases of work would naturally occur through the evolution of
work in the Special Session.
II. PARAGRAPH 31 (i) - WTO RULES AND SPECIFIC TRADE OBLIGATIONS IN
MEAS
12. The Chairperson drew the attention of delegations to documents already circulated in the CTE
on MEAs, a full list of which was contained in document TN/TE/INF/1.  She indicated that of the
documents on that list that could be of particular use to delegations were documents
WT/CTE/160/Rev.1, entitled Matrix on Trade Measures Pursuant to Selected MEAs , and
WT/CTE/W/203, entitled GATT/WTO Dispute Settlement Practice Relating to GATT Article XX,
Paragraphs (b), (d) and (g) .TN/TE/R/1
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13. The EC had circulated document TN/TE/W/1 under this subparagraph, entitled MEAs;
Implementation of the Doha Development Agenda .  The representative of the European Communities
explained that the reason he found it hard to decide on the phases of work was because the phases
would depend on the level of ambition that participants aimed for.  Document TN/TE/W/1 was
intended to define the level of ambition sought by the EC.  The EC explained that it was seekinggreater legal clarity on the MEA/WTO interface where disputes between WTO Members parties to an
MEA arose.  Three benefits would flow from enhan ced clarity.  First, greater legal clarity would be
good for multilateralism in the environmental field.  Second, it would provide a good antidote for the
"WTO phobia" among environmental communities.  Third, it would be a good recipe for better policy
coherence.  The EC was also seeking greater legal clarity on WTO parameters for future MEA
negotiations and implementation decisions.  He felt that decisions under the paragraph 31 (i) mandate
would render WTO rules clearer to MEAs.  Such cl arity would provide MEA negotiators with better
guidance on how to use trade measures in a WTO-consistent manner, and would encourage MEAs to
network with the WTO.
14. The EC saw two questions as flowing from these objectives:  first, what do the words in the
mandate indicate? And, second, amongst the different approaches that the words suggested, which
reading would lead to the best outcome for trade?   The representative felt that there were three
underlying foundations for the negotiations.  The first foundation was to be found in paragraph 6 of
the Doha Ministerial Declaration which stated that the environment and the multilateral trading
system could and should be mutually supportive.  The second foundation lay in international law.  It
was important to ensure that third party rights under one agreement could not be created or destroyed
by another agreement.  The third foundation was contained in WTO jurisprudence, which haddemonstrated that WTO rules could not be interpreted in "clinical isolation."   In judging arbitrariness,
unjustifiability, necessity, the existence of an MEA process had to be a factor in WTO dispute
settlement.  Similarly, MEA negotiators would benefit from clearer guidance on how (a) to weigh the
merits of using specific trade measures to achieve their obligations, and (b) to use the measures in the
correct fashion when they decided to do so.  The EC explained that it was not trying to broaden thenegotiating mandate, but that in dealing with a narrow negotiating mandate, participants had an
obligation to reduce the risk of a contrario  reasoning from any narrow outcome, which could
undermine existing WTO rules.
15. In terms of the substance of document TN/TE/W/1, the EC explained that it first looked at
what constituted an MEA.  The representative argu ed that an MEA had to be a multilateral agreement
and not a bilateral one, which was open to all those with an interest in the negotiations, and had to
have environmental protection as its predominant purpose.  The number of MEAs that would beallowed to flow out of that definition would determin e the size of the benefits to be reaped by the
multilateral trading system through these negotiations.  He then drew attention to paragraph 19 of the
document which laid out the basic principles which should govern the WTO/MEA relationship.  He
argued that the term "specific trade obligations" was discussible.  As some participants had, in another
context, used the term "requirement" to refer to voluntary measures, he wondered what the term"obligations" would be interpreted to mean.  He questioned whether the mandate was referring to very
specific trade obligations, or to necessary trade measures, or yet to trade measures necessary to
implement specific trade obligations.  To the extent that obligations were the legal tool that led to a
necessity in policy, he felt that it was relevant that necessity not be limited to what was indispensable,
although necessary measures were located significantly closer to the pole of "indispensability" than tothe opposite pole of just "desirability".  He concluded by stating that whereas a narrow reading of the
mandate could enable participants to terminate the negotiations faster, a broader reading held greater
benefits for both the multilateral trade and the multilateral environmental regimes.
16. The representative of the Philippines argued that for the negotiations on all three
subparagraphs of paragraph 31, technical assistance and capacity building needed to be considered.
Negotiations under paragraph 31 (i)  needed to identify the MEAs which contained specific trade
obligations, which were transparent and negotiated through international consensus, and on the basisTN/TE/R/1
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of the principles of common but differentiated respon sibility and of special and differential treatment.
He wished to hear more about how technical assistance and capacity building would be
operationalized, and about how the concept of sustainable development would be kept in mind.  The
concept rested on three pillars, those of economic and social development and environmental
protection.  He wished modalities and procedures for negotiations to take these issues into account,and to enhance the participation of developing and least developed countries.
17. The representative of Australia commented in a preliminary manner on the EC's submission.
He recalled that when the MEA issue had been under discussion in the CTE, the vast majority of
WTO Members had argued that there was no justification for changing WTO rules to accommodate
trade obligations incorporated in some MEAs.  Many were of the view that the burden of
accommodation needed to shift onto MEAs.  He also recalled that environmental negotiations in Doha
were difficult and protracted and that many exchanges took place on how a suitable mandate could beframed to enable all Members to have the required comfort levels.  Australia's position was similar to
that of many other delegations.  It was not convinced of the need for any changes to WTO rules to
accommodate MEAs.  However, he affirmed that Australia had entered into an undertaking in Doha
by which it fully intended to abide.
18. According to Australia, participants had a mandate to negotiate on the relationship between
existing WTO rules and specific trade obligations set out in MEAs.  The negotiations were not (a)
negotiations to "clarify" the WTO/MEA relationship, (b)  negotiations on the relationship between
WTO rules and "all MEAs", (c) negotiations on the relationship between WTO rules and "trade
measures incorporated in MEAs", (d) negotiations on "the extent to which measures taken pursuant to
specific trade obligations in MEAs should be cons idered to be automatica lly in conformity with
WTO", nor were they (e) negotiations on "guidelines or principles or understandings on how WTO
rules apply."  The negotiations were ones that were aimed at enhancing the mutual supportiveness of
trade and environment.
19. Australia explained that considerable care was taken in Doha to frame the mandate in terms of
"specific trade obligations" and to exclude any outcome having an impact on non-parties to the MEAsin question.  Ministers discarded the term trade "measures" which was so often used in the relevant
literature dealing with this issue and opted instead for the more limited term "specific trade
obligations."  This was intended to confine the exer cise to a relatively small number of MEAs which
contained mandatory requirements for action of a restrictive kind when certain defined circumstances
existed.  The representative highlighted that he did not share the implicit interpretation in the EC
paper that "specific trade obligations" be read as encompassing all MEAs which contained any
reference whatsoever to a trade measure, or indeed those where trade measures were not evenexplicitly provided for.
20. Moreover, he added that there was a critical distinction between a specific obligation in an
MEA to implement a trade measure, and the application of such measures by a WTO Member
pursuant to that obligation.  It was in relation to the application of a trade measure that the important
WTO rules found in the chapeau of Article XX and in other provisions were most relevant.  Thesewere the rules which guarded against protectionist abuse in the form of discrimination and disguised
restrictions on trade.  He referred in this context to paragraph 28 of the EC paper which stated that
"As a point of departure it is worth recalling that the fact that any specific trade obligations in MEAs
have been negotiated and agreed by consensus in a multilateral context should be, in principle, a
guarantee against discriminatory and protectionist action."  He found that to be an extraordinarystatement, which was not a fact at all.  He f ound the notion fanciful that because something was
agreed by consensus, it provided a guarantee against discrimination and protectionism.  If that was the
case, there would be no reason for the Dispute Settlement Understanding (DSU) in WTO, where he
noted that the EC had been a regular participant.  Ministers were also careful to contain the exercise to
the applicability of WTO rules to parties to the MEA in question.TN/TE/R/1
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21. Australia expressed its disappointment that in its initial approach to the negotiations, the EC
sought to gloss over critical provisos in the mandate.  It was unable to accept as a point of departure
the suggestions put forward by the EC on the de finition of an MEA, the definition of the term
"specific trade obligation", its approach to the term "among parties", or on the aim of the negotiations.
A good start for the negotiations, in Australia's view, was to (a) identify the most relevant MEAs withspecific trade obligations, (b) examine the nature of those specific trade obligations, and (c) identify
relevant WTO rules.
22. The representative of Chile explained that Chile had run into a problem with respect to certain
conservation measures which it had taken and the problem had been solved bilaterally with its trading
partner.  Bilateral solutions were the key to resolving any dispute.  The representative pointed out that
negotiations under paragraph 31 (i) were carefully circumscribed by the statement in paragraph 32
that the negotiations "shall not add to or diminish the rights and obligations of Members underexisting WTO agreements," and wondered why the EC had not made a reference to this in its
submission.  He expressed his support for the comments made by Australia.
23. Chile welcomed the EC paper which enabled participants to concentrate on a number of key
concepts.  For instance, on the question of what was an MEA, the paper provided certain parameters,
such as that the main aim of the agreement be to  protect the environment.  However, it found that to
be too vague an objective.  Moreover, the paper stated that the "agreement should have been
negotiated under the aegis of the UN", but would regional agreements need further definition the
representative enquired.  Paragraph 15 of the submission spoke of MEAs taking WTO rules into
account and of WTO law giving due weight to obligations arising under MEAs.  He wondered if the
terms "taking into account" and giving "due weight" were equivalent.  He agreed with the first bulletof paragraph 19, but questioned the need for the second bullet since no one had argued that
environmental policy should be developed in WTO, and stated that the information exchange referred
to in the third bullet should take place during the negotiation of an MEA, and not when it was being
implemented.  He felt that a sixth bullet should have been added to refer to GATT Article XX.
24. He added that while paragraph 25 had to do with the scope of the mandate as perceived by the
EC, in his view paragraph 31 (i) negotiations were limited to only the first bullet that was mentioned
(i.e. "trade measures explicitly provided for and mandatory under MEAs").  He questioned why
paragraph 28 called for trade measures contained in MEAs to be considered legitimate, and why the
EC believed that Article XX was not sufficient to accommodate MEAs.  He concluded by saying that
paragraph 29 of the EC submission fell outside the negotiating mandate, but could be taken up in the
regular CTE. Turning to another issue, Chile in dicated that it would not be logical to discuss
paragraph 31 (i) in the absence of MEA counterparts.  As a number of MEAs were going to be invitedto the next meeting of the regular CTE, Chile wondered if they could be invited to the next Special
Session as well in order to present their views on the negotiating mandate.
25. The representative of Norway noted that the mandate excluded some of the most controversial
aspects of the WTO/MEA relationship, more specifically the issue of non-parties. However, she was
of the view that it was important to continue discussing all aspects of the issue in relevant fora,including in the WTO.  If agreement could be attained on the issues contained in the negotiating
mandate, then that could prepare the ground for broader agreement on the more controversial issues in
future.
26. Norway had previously set out principles governing the relationship between the WTO and
MEAs, and recalled that they were also relevant for the negotiations.  They included, (1) that thereshould be no hierarchy between the WTO and MEAs.  The WTO and MEAs represented the efforts of
the international community to pursue shared goals.  In the development of a mutually supportive
relationship between these two bodies of international law, due respect had to be afforded to both; (2)
that the most effective way of solving global and transboundary environmental problems was through
international cooperation and multilateral rules.  Mu ltilateralism was preferable to unilateralism; andTN/TE/R/1
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(3) that conflicts between parties to an MEA to do with the implementation, interpretation and
enforcement of that agreement should be solved wi thin the MEA.  Since participants could not submit
proposals in these negotiations that added to or diminished the rights and obligations of Members
under existing WTO Agreements, Norway's aim was to  prevent conflicts between parties to MEAs on
specific trade measures migrating to WTO.
27. The representative of Canada recalled the importance of the CTE report to the Singapore
Ministerial Conference which contained valuable conclusions on the MEA issue.  However, he
emphasized that much of the discussion which had been held in the CTE on the MEA issue had been
confined to party/non-party disputes.  Not enough investigation had been undertaken of the
party/party disputes.  Party/party disputes were always an issue, however, in particular in relation to
the Basel Convention where the ban amendment had been the subject of some controversy since some
parties had not ratified it.  However, there was a question as to whether a dispute on the Baselamendment would be considered a party/party disputes, or a party/non-party dispute vis-à-vis  the
amendment.  There was also potential for the Biosafety Protocol to become an area of some conflict
in future.  However, he noted that the negotiating mandate covered only a narrow sub-set of the MEA
issue.
28. In Canada's view the word "specific" in the mandate was of considerable importance.  The
trade measure needed to be explicitly provided for in an MEA, and could not simply be a measure that
was agreed on by the Conference of Parties.  Canada still needed to consider if the mandate needed to
be limited to mandatory measures, or could expand to cover voluntary ones as well.  However, it was
important not to interpret the mandate in such a way that would push MEAs down the road of
mandatory measures.  In terms of agreeing on what  constituted an MEA, he argued that MEAs were
global agreements, and while he agreed with the EC that they generally needed to have three or more
parties, it was agreements such as the Convention on Biological Diversity (CBD) and the Convention
on International Trade in Endangered Species (CITES) which Members had in mind when they spoke
of MEAs.  Not enough discussion had been undertaken in the CTE of regional agreements, although
that should have been an area to be explored.
29. Canada believed that the reference in paragraph 6 of the EC's submission to Article XX was
limiting.  Article XX contained language that was negotiated several years back and which had had to
be stretched on numerous occasions in order to make sense today.  With respect to the definition of
MEAS, Canada did not wish to confine these agreements to ones negotiated under the UN auspices,
but wished them to include agreements that were open all.  Blockages in the UN system were
numerous and several international agreements were negotiated outside it.  Finally he recalled that
paragraph 32 placed certain constraints on the negotiations which countries needed to be aware of.
30. The representative of Japan emphasized the importance of clarifying the interface between
international trade and international environmental law.  It was necessary to develop a common
understanding of the term "specific trade obligation", and to include regional fisheries agreements
(such as the International Commission for the Conservation of Atlantic Tunas (ICCAT)) in the
definition of an MEA.  He welcomed the EC paper which, in his view, provided a very good basis for
further discussions.
31. The representative of Switzerland recalled that her delegation had previously made two
submissions on the MEA issue (documents WT/CTE/W/139 and WT/CTE/M/W/168) in the CTE.
The principle of mutual supportiveness was espoused in these documents.  It was argued that there
should be no hierarchy between trade and environmen tal regimes, and that deference had to be shown
by the different regimes.  In other words, each institution had to respect the other.  She argued that as
the trade and the environmental regimes currently stood, they were already mutually supportive.  Both
regimes promoted human welfare.  Each regime had to focus on its policy area, but show deference to
the work of the other.TN/TE/R/1
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32. The approach of mutual supportiveness was based on the recognition that trade measures
could play an important role in promoting the objectives of MEAs, and could sometimes be the most
effective means of doing so.  On the other hand, it recognized that trade measures in MEAs should be
neither unjustifiable nor protectionist.  In fact, in order to protect the environment neither
discrimination nor protectionism were necessary.  Therefore, the principle of mutual supportivenessimplied that while the WTO should not assess the necessity of trade-related measures provided for in
MEAs, it should nevertheless assess whether the specific measures, as adopted or implemented by a
Member, constituted a means of arbitrary or unjustifiable discrimination between countries where the
same conditions prevailed, or a disguised restriction on international trade.
33. However, the representative of Switzerland agreed with paragraph 29 of the EC's submission
that in the rare cases where interpretation of WTO rules and principles was not sufficient to avoid a
potential conflict, clarification of the relationship between the competent bodies or regimes wasnecessary.  As a first step, Switzerland supported the first conclusion in paragraph 30 in the EC paper
that a consensus on the principles that should govern the relationship between WTO rules and MEAs
should be sought.
34. She felt that there was a need for further reflection on the term "specific trade obligations"
and on the extent to which specific trade obligations under an MEA should be considered to be inautomatic conformity with WTO rules.  In this respect, she found the EC classification of trade
measures to be useful.  However, this was a difficult issue since specific trade obligations could be
implemented in WTO inconsistent ways.  To conclude, she agreed with the EC that, despite the fact
that the Doha mandate was limited to applicability of WTO rules to parties to an MEA, MEAs should
be an important element in the interpretation of WTO rules in disputes involving non-parties.  Shealso called on the Secretariat to compile all previous proposals made on the MEA issue.
35. The representative of Hong Kong, China stat ed that a number of questions needed to be
answered with respect to the mandate of the Special Session, such as what was an MEA, what was a
"specific trade obligation", and what was the position of a WTO Member that was not a party to an
MEA.  He enquired if the number of parties to an agreement should count as a criterion, and howregional agreements would be addressed under the negotiating mandate.  He also questioned if the
requirement that an MEA be open to all countries was a sufficient criterion, and if it was too
simplistic to assume that MEAs that were open to all countries would not include protectionist
measures.  With respect to the guiding principles of the EC submission in paragraph 19, he added that
the benefits that international trade could bring to the environment also had to be addressed, such as
technology transfer and trade in environmental goods and services.  He enquired if paragraph 25 on
trade measures was too loose in the definitions it put forward, particularly with respect to its inclusionof measures taken pursuant to MEAs, and wondered how the non-party issue raised in the submission
squared with the paragraph 31 (i) mandate.
36. The representative of Korea stressed the importance of developing a shared understanding of
the mandate prior to proceeding to actual negotiations.  He believed that a definition of MEAs that
ensured that agreements reflected genuine multilateral consensus was needed in order for MEAs to beaccommodated in WTO.  With respect to the criteria mentioned by the EC, the openness of the MEA
for the participation of all WTO Members was a necessary but not a sufficient condition.  The actual
participation of countries in the MEA was a more important criterion.  An MEA should have broad
and balanced participation from different geographical locations.  With respect to the number of
parties to an MEA, an MEA should have a comparable number of members to those of WTO.Caution needed to be exercised with respect to regional agreements.  Openness to countries outside
the region under a regional agreement was not a sufficient criterion.  He supported the Swiss request
for a Secretariat document that would compile the main features of the proposals tabled by Members
on MEAs.TN/TE/R/1
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37. The representative of Hungary stated that the EC paper had raised a number of interesting
issues.  With respect to the number of countries that had to be members of an MEA for the agreement
to be considered multilateral, Hungary explained that while the Collins Dictionary defined
"multilateral" to mean more than two, it was the understanding of WTO Members that an MEA was
an agreement that had as many members as the WTO itself.  The Special Session would need todevelop a threshold against which to assess the memb ership of an MEA.  With respect to the term
specific trade obligation, a cut off point also needed  to be established between the specific and non-
specific obligations.
38. The representative of New Zealand stated that in an organization such as the WTO, where the
rules were fundamental, it was important to address practical and concrete issues.  In that sense, it was
useful to continue pursuing MEA discussions in the regular CTE.  The issues raised by the EC in its
paper could be addressed in the regular CTE, and conclusions reached could be part of the CTE reportto the Fifth Ministerial Conference.  With respect to the work of the Special Session, a process based
on the following elements was required:  (1) an ex amination of specific MEAs, (2) an examination of
trade obligations in those MEAs, (3) an examination of the relationship between those trade
obligations and WTO rules, (4) the drawing of conclusions on the nature of the problems involved in
the debate, and (5) the development of appropriate responses, bearing in mind the very specific termsof the mandate of paragraph 31(i), not least as regards parties and non-parties.
39. New Zealand then raised the issue of who could be involved in the negotiations.  It foresaw
practical difficulties with the notion that a unilateral approach could be taken to the negotiating
mandate.  The cause of any problem to do with the WTO/MEA interface could have to do with the
WTO, with the MEAs, or with both.  But logically, New Zealand expected that a process to identifyand fix major problems would involve both the WTO and the MEAs.  However, the process that
flowed from the mandate of paragraph 31(i) did not meet that test, and this problem was going to
become more significant as the negotiations proceeded.  This required further thought.
40. The representative of the United States ex plained that the international community had
developed a wide range of treaties to address a number of environmental challenges.  Trade measures
in MEAs could be a critical means of achieving in ternationally agreed environmental objectives when
appropriately tailored, as, for example, under CITES.  In general, it seemed to the US that the
MEA/WTO relationship was a good one.  Trade measures in MEAs were broadly accommodated by
the WTO, and multilateral trade rules did not stifle the willingness of MEA parties to take on
environment-related trade obligations to achieve legitimate environmental objectives.  Experience
showed that MEA negotiators also took great care in tailoring trade obligations in their agreements to
their environmental purposes, particularly among parties to their agreements.  However, even a goodrelationship was capable of improvement.  In that  regard, the US looked forward to working with
other participants towards implementing the Doha manda te in order to increasing further the synergies
between environmental protection and trade.
41. The US believed that the collective approach taken in the Special Session to building
improvement into the MEA/WTO relationship should avoid creating situations where governmentsbecame reluctant to join MEAs for fear that they were simultaneously agreeing to forego their WTO
rights.  The US did not wish to see these negotiations discourage governments from agreeing to
MEAs that contained appropriate trade measures.  At the same time, it recognized that although there
was a historical absence of problems in this area, situations could arise where a government's national
implementation of its MEA obligations could raise trade concerns unforeseen by other parties to theMEA.
42. Commenting in a preliminary fashion on the EC's submission, the US indicated that it
advocated a scope for negotiations that went well beyond the mandate set forth in paragraph 31(i).  It
reminded participants that the US was only looking for incremental improvements in this area and did
not wish to weaken governments' ability to take legitimate, WTO-consistent environmental protectionTN/TE/R/1
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measures.  It was also unclear to the US why measures related to MEAs needed to be excused from
the requirements of Article XX.
43. The representative of Pakistan explained that developing countries had emphasized the need
for capacity building for participation in the negotiations, for national coordination amongst relevant
ministries (environment and trade), and for international coordination among trade and environmentorganizations – all this with good reason.  Paragraph 28 of the EC submission assumed that
"challenges between parties over specific trade obli gations are, therefore, highly unlikely from both a
political and a legal point of view.  Accordingly, if parties have agreed specific trade obligations, they
should have no reason or ground to challenge them afterwards."  In the view of Pakistan, this
assumption was not true, especially in the case of developing countries where the environmental
agreements were negotiated by environmental experts and not trade experts.  Hence, Pakistan agreed
with Australia when it said that the burden of accommodation should shift onto MEAs.
44. The representative of Venezuela recalled that the Rio Declaration on Environment and
Development and Agenda 21 stated that trade measures necessary to ensure compliance with
environmental policies had to observe a certain number of principles.  These included those of non-
discrimination, necessity (i.e. least-trade restrictiveness), and transparency.  They also called for
consideration to be given to the special conditions and developmental needs of developing countries.They recommended that unilateral measures to deal with environmental problems beyond the
jurisdiction of the importing country be avoided.  More specifically, Principle 12 of the
Rio Declaration stated that "Trade policy measures for environmental purposes should not constitute a
means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade.
Unilateral action to deal with environmental chal lenges outside the jurisdiction of the importing
country should be avoided," and Principle 7 reaffirmed that "States have common but differentiated
responsibilities" in addressing environmental problems.  He indicated that Principle 7 would most
likely be endorsed at the Johannesburg Summit.
45. The representative of Brazil noted that the discussion demonstrated the need for a careful
examination of the mandate.  She explained that terms such as "specific trade obligations" and
"MEAs" needed to be defined.  The Secretariat could assist in this task by compiling the main features
of all the proposals previously circulated on the topic, as well as drawing the attention of participants
to other useful documents.  She insisted that a me thodology would be needed to structure the work of
the Special Session and prevent it from wasting time.  She stated that in examining the negotiating
mandate under paragraph 31, it was important not to lose sight of how these negotiations had been
carefully circumscribed by paragraph 32.  The mandate also spoke of the special needs of developing
countries which should not be lost sight of.  It should not be quoted from selectively, she added.
46. She indicated that, as a signatory to a large number of MEAs, her country had a strong
interest in the current negotiations.  Brazil recognized that there could be some tension between the
trade and environmental agendas, but emphasized that it was important to remember that the WTO
was not an environmental protection organization.  It should avoid creating the false expectation that,
by being ambitious in these negotiations, it would solve environmental problems. The multilateraltrading system had already demonstrated that it was capable of showing great sensitivity to health and
environmental concerns.  It had evolved over the years, and this valuable evolution should not be lost
sight of.
47. The representative of Uruguay stated th at the discussion around the EC submission
demonstrated the need for a study phase, one in which concepts could be clarified and defined.  He
thanked the Secretariat for document WT/CTE/160/Rev.1, but noted that it had not been prepared on
the basis of the "specific trade obligations" contained in MEAs, and that in future it could need to be
revised.  He supported Switzerland's request for a Secretariat paper compiling pre-Doha proposals on
MEAs.TN/TE/R/1
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48. The representative of Thailand echoed Australia's view that WTO rules did not need to
accommodate the trade provisions contained in MEAs.  While she recognized that trade measures
were used by MEAs to ensure their implementatio n and to achieve certain environmental objectives,
Thailand was of the opinion that alternatives measures, which were just as effective, could also be
found.  Alternative measures could avoid conflict with WTO rules.  They included financial andtechnical assistance, technology transfer, and capacity building.
49. The representative of Mexico supported Switzerland's request for a Secretariat paper.  He
expressed his concern at some of the statements made on the interpretation of the mandate.  For
Mexico, the negotiating mandate was clear, and carefully circumscribed.  The limitations on the
mandate were not only contained in paragraph 31 of the Declaration, but in paragraph 32 as well.  It
was important to keep the mandate in its entirety in mind.  Phases of work, along the lines suggested
by Brazil, were required to analyse the information already available on this subject, and identify the
issues on which negotiations could be needed.
50. The representative of Malaysia stated that the discussion demonstrated the need for a study
phase.  She found the EC's interpretation of the mandate to be broader than most Members understood
it to be.  For Malaysia, it was important to define the term "MEAs".  She wondered if the Secretariat
document WT/CTE/160/Rev.1 had been based on an exhaustive list of MEAs, and enquired about thecriteria that had been used to identify the ME As.  She supported the Swiss suggestion for another
Secretariat note compiling all the views previously expressed on MEAs, including in the minutes of
CTE meetings.  The names of Members did not have to be mentioned in that document.  The
compilation could be done by subject, such as on the views expressed on what an MEA was, and on
the need to clarify the relationship between the WTO and MEAs.  There could eventually be a need todevelop a list of MEAs, and discussion would be need ed on what a specific trade obligation was.  The
distinction would need to be made between specific and non-specific trade measures, and the criteria
to be used to distinguish between the two.  Exam ination of the relationship between MEAs and WTO
rules would be needed, and to do so the Special Session would need to identify the applicable WTO
rules.
51. The representative of Argentina questioned why there was a need to discuss the level of
ambition sought in the negotiations, since the level of ambition had already been determined by
Ministers in the negotiating mandate they gave the Special Session.  Argentina had not thought that a
discussion would be needed on the term "specific trade obligation", but after having seen the EC
paper believed that further discussion was certainly going to be warranted.  The word "obligation"
clearly referred to measures that were obligatory.
52. Argentina did not believe that the Special Session should base itself on the entirety of the
work previously undertaken in the CTE, since the negotiating mandate was narrower.  Moreover, the
negotiating mandate had to be limited to obligations under agreements which already existed.  In
other words, the outcome of the negotiations had to be limited to existing, not to future, agreements.
With respect to the EC's classification of trade obligations in its submission, he felt the classification
was too broad. He could not see how participants would negotiate on the relationship between tradeobligations in MEAs and WTO rules if those obligations had not been identified or clearly spelled out.
What the Special Session needed to do was to identi fy the specific trade obligations in MEAs and to
assess the degree of potential conflict between those obligations and WTO rules.
53. The representative of Kenya believed that three steps needed to be taken by the
Special Session:  first, it needed to identify the rules of the WTO relevant for environment;  second, to
list the MEAs relevant for WTO rules;  and third, to negotiate the relationship between MEAs and
trade.  The negotiations would have to take developing country concerns into account.  Technical
assistance and capacity building would be critical to enabling developing countries to understand the
subject matter, prior to embarking on negotiations.TN/TE/R/1
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54. The representative of India stated that he saw the scope of the negotiating mandate as being
very limited.  A study phase was needed to better understand the concepts contained in
paragraph 31 (i) prior to embarking on negotiations.
55. The Chairperson took note of the request made to the Secretariat to prepare a background
document on the main features of proposals made on the MEA issue in the CTE, as well as on the
positions that were taken by Members in CTE meetings.
III. PARAGRAPH 31 (ii) – INFORMATION EXCHANGE & CRITERIA FOR
OBSERVER STATUS
56. The representative of the United States explained that procedurally, cooperation and
coordination between MEAs and WTO bodies had increased in recent years.  This had led to better
mutual understanding of MEAs and of the WTO.  It also fostered better domestic coordination
between environment and trade officials.  He indicated that coordination at the domestic level was themost direct, and perhaps the most effective way of maintaining a healthy relationship between MEA
trade obligations and the WTO.  In the view of th e US,  Paragraph 31(ii) represented an opportunity to
solidify and build upon progress in this area, in part by expanding opportunities for regular
information exchange between MEA Secretariats and other relevant WTO Committees.  He believed
that it made sense for the Special Session to try to make quick progress in this area.  It could identifygaps and work towards improving upon existing cooperation and interaction between various MEAs,
the WTO Secretariat, and relevant WTO Committees.  He signalled that it was important to achieve
momentum in this area because it was likely to have positive spillover effects onto discussions of the
paragraph 31(i) mandate.
57. The representative of Venezuela welcomed MEA Secretariats in the Special Session,
provided agreement could be reached on the specif ic MEAs to be invited.  With respect to the
exchange of information, he requested that the Special Session avail itself of the scientific studies
conducted by MEAs.
58.  The representative of Malaysia recognized that certain arrangements were already in place
for information exchange between the WTO Secretariat and MEAs, and requested that the Secretariat
inform participants of them.  With respect to the negotiation of criteria for observer status, Malaysia
noted that work was already under way in the General Council on the matter, and that the
Special Session needed to be informed of what the Council would decide prior to taking up the matter.
The representative of India shared Malaysia's views.
59. The representative of Canada stated that in dealing with the issue of information exchange,
the Special Session needed to look at and build upon the 1999 cooperation arrangement developed
between the heads of the WTO and UNEP.  The arrangement led to a major change in the way that theCTE operated and had led to the back-to-back UNE P meetings organized in cooperation with the
WTO, and to the MEA Information Sessions.  These had increased Members' knowledge of the
WTO/MEA interface, and improved coordination at the national level.  However, there was also a
need to examine which other WTO Committees could benefit from information exchange with MEAs.
Canada had always been of the view that environment should be taken up across the entire WTOsystem and not be confined to just the CTE.  He indicated that environmental issues were increasingly
being mainstreamed into the work of WTO today.  He believed that paragraph 31 (ii) would provide
an opportunity for the formalization of existing cooperation.
60. The representative of Switzerland echoed Canada's views on the need to build on the existing
cooperation arrangement between WTO and UNEP.  It was necessary for the Special Session to
identify the WTO Committees that would benefit from information exchange with MEA Secretariats,
which at minimum had to include the TRIPS Council (intellectual property), the Services Council, the
Committee on Technical Barriers to Trade, the Committee on Sanitary and Phytosanitary Measures,TN/TE/R/1
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and the Committee on Agriculture.  On the issue of observer status in the Special Sessions,
Switzerland believed that the observership issue cut across all negotiating groups and needed to be
taken up by the TNC or General Council as a first step.
61. The representative of the European Commun ities recalled the tradition of information
exchange between WTO Members and MEAs in the CTE.  He was of the view that this was a useful
practice, and its focus this year on the issues of technical assistance and capacity building made it
more relevant to the work of the Special Session.  Under paragraph 31 (ii), participants could not only
codify existing practice, but could work on new ideas to enhance cooperation, coordination and
synergies between the WTO and MEA Secretariats.
62. The representative of Brazil shared the view that existing information exchange practices
were useful and should be built upon.  In determ ining how best to exchange information with MEAs
in the Special Session, however, she argued that it  would be necessary to decide on the MEAs that
could contribute to the work of the Sessions and the topics they should address.  The next MEA
Information Session in the CTE would address technical assistance and capacity building, which were
important issues in the context of the current negotiations.  Subsequent Information Sessions could be
devoted to defining the term "specific trade obligations."
63. The representative of Japan stressed the need to solve the question of observer status in the
CTE Special Session.  He also registered his dissatisfaction with the fact that the International
Tropical Timber Organization (ITTO) had been denied observer status in the regular CTE.
64. The representative of Mexico shared the US' vi ew that information exchange should first take
place at the national level.  He enquired about the kind of information exchange mechanisms currently
in place between the WTO and MEAs.  With respect to observer status in CTE Special Sessions, hebelieved that the matter had to be taken up by the TNC.
65. The representative of the Philippines shared the views expressed by Switzerland on the
question of observer status in CTE Special Sessions .  He urged the TNC to expedite its discussions of
the matter, so the Special Session could turn to considering observership for the intergovernmental
organizations that were relevant for its work. On the procedures for regular information exchange, hesuggested the procedures already in place be brought to the attention of the Special Session.
66. The representative of New Zealand noted that the mandates under paragraphs 31(i) and 31(ii)
were closely linked, in that their motivation in both cases was driven by an interest, first, in improving
the relationship and, second, in reducing the scope for conflict between WTO rules and MEAs.  If
there was a need for a more ambitious reading of the scope of any aspect of the negotiating mandate
under paragraph 31, it could turn out to be under paragraph 31(ii).  He believed that a broad reading of
the mandate under this subparagraph could deliver practical benefits in the WTO/MEA relationshipthat would help avoid the potentially perilous path of opening up WTO rules.
67. The Chairperson concluded that further informal consultations would be conducted on the
issue of observer status.  The Secretariat would also inform participants of existing information
exchange practices between the WTO and MEAs.
IV. PARAGRAPH 31 (iii) – ENVIRONMENTAL GOODS AND SERVICES
68. The representative of Peru argued that the negotiations on trade liberalization in
environmental goods and services needed to be undertaken in the Council for Trade in Services
Special Session and the Negotiating Group on Market Access for Non-Agricultural Products. She
pointed out that proposals on environmental services had already been tabled in the Council for Trade
in Services Special Session.  However, she felt that the CTE Special Session still had an importantrole.  It could develop guidelines that could be taken into account in the negotiating groups that wouldTN/TE/R/1
Page 13
deal with paragraph 31 (iii).  It also needed to monitor ongoing negotiations in the Council for Trade
in Services Special Session, the Negotiating Group on Market Access, and the Committee on
Agriculture Special Session.
69. The representatives of Japan, Venezuela , Canada , Singapore , the European Communities ,
Paraguay, New Zealand , Malaysia  and Switzerland  shared Peru's view that the negotiations should in
fact be undertaken in the Council for Trade in Services Special Session and the Negotiating Group on
Market Access for Non-Agricultural Products.  This would avoid duplication of work in this
important area.  The representative of Switzerland expl ained that this would also make the most use of
existing expertise in WTO, by allowing different bodies to address what they were most competent at.
She explained that referring the issues to the Co uncil for Trade in Services Special Session and the
Negotiating Group on Market Access could be seen as a "first phase" in the treatment of paragraph 31
(iii).  The CTE Special Session could then discuss and evaluate the list of environmental goods andservices identified in these two negotiating bodies and assess the results of the negotiations.
70. The representatives of Canada, Singapore
 and the European Communities  added that they saw
a "monitoring role" for the CTE Special Session on this subparagraph.  The CTE Special Session
would need to keep track of the progress being made in the other two negotiating groups.  The
representative of the European Communities emphasized that this would be important since paragraph
31 (iii) was part of paragraph 31, whose objective was to enhance the mutual supportiveness of trade
and the environment.  The EC also saw a complementary function for paragraph 51 of the Doha
Ministerial Declaration in this area.  The representative of New Zealand supported the idea of the
CTE Special Session maintaining a monitoring role, but argued for an expanded version of that role.The Special Session could provide input at a general level on issues such as the priority to be given toparticular issues within negotiations on services and market access.  It shared the EC's view that
consideration would have to given to how the moni toring role would relate to responsibilities under
paragraph 51 of the Declaration.  The representative of Malaysia argued that it was the TNC that had
to monitor progress in the negotiations, and that it was important to ensure that the CTESpecial Session did not duplicate that role.
71. The representative of Chile agreed with other participants that the negotiations should in fact
be undertaken in the Council for Trade in Services Special Session and Negotiating Group on Market
Access for Non-Agricultural Products, and supported  the idea of a monitoring role for CTE Special
Sessions.  However, he argued that the word "env ironmental goods" could include agricultural as well
as non-agricultural goods, and that participants had to keep track of the elimination of tariff and non-
tariff barriers and export subsidies for agricultural goods.  The CTE Special Session would therefore
need to keep track of work conducted in the Special Session of the Committee on Agriculture.
72. The representatives of Korea shared the view that it was important to avoid duplication with
the work of other bodies while maintaining a monitoring role, particularly the Council for Trade in
Services Special Session.  However, with respect to environmental goods, he believed that the CTE
Special Session had a role to play in defining environmental goods, and that consultation with the
Negotiating Group on Market Access would be needed.  The representative of Senegal echoed the
view that the CTE Special Session needed to clarif y the concept of environmental goods, even if the
negotiations were to take place elsewhere.  He also drew the attention of participants to paragraph 50
of the Doha Ministerial Declaration which spoke of, amongst other issues, the need for special and
differential treatment.  He argued that in the elimination of tariff and non-tariff barriers full
reciprocity could not be expected from developing and least-developed countries.  The representativeof Venezuela agreed that definitional work on environmental goods could be undertaken in the CTE
Special Session.
73.  On the issue of clarifying the concept of environmental goods in CTE Special Sessions, the
representative of the European Communities argued that while a discussion of those goods in the
Special Sessions could be helpful, it was important for there to be no sequencing between the work ofTN/TE/R/1
Page 14
the Special Session and that of the Negotiating Gr oup on Market Access.  In other words, he did not
wish the work in the Negotiating Group to be held up until a definition evolved in CTE Special
Session.  He indicated that the EC's request on goods would probably make very clear what the it
perceived environmental goods to be.  His views were supported by the representatives of Australia
and Mexico.
74. The Chairperson concluded that it seemed that there was broad support for the idea that the
negotiations on environmental goods and services be conducted in the Council for Trade in Services
Special Session and the Negotiating Group on Market Access for Non-Agricultural Products.
However, as some participants had pointed out, the CTE Special Session could work towards
clarifying the concept of environmental goods, provided that no sequencing would be involved
between that work and the actual market access negotiations in the Negotiating Group on Market
Access.  The Special Session could also keep track of the work undertaken in the Committee onAgriculture Special Session.  Finally she added that there appeared to be broad support for the idea
that a monitoring role be played by the CTE Special Session on paragraph 31 (iii).
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