RESTRICTEDWORLD TRADE
ORGANIZATIONTN/TE/R/5
14 April 2003
(03-2103)
Committee on Trade and Environment
Special Sessions
SUMMARY REPORT ON THE FIFTH MEETING OF THE COMMITTEE
ON TRADE AND ENVIRONMENT IN SPECIAL SESSION
12-13 FEBRUARY 2003
Note by the Secretariat
1. The Committee on Trade and Environment in Special Session (CTESS) held its fifth meeting on
12-13 February 2003 on the basis of the agenda set out in the convening airgram WTO/AIR/2016.
Ambassador Yolande Biké of the Republic of Gabon chaired the meeting.
I. PARAGRAPH 31(I) - WTO RULES AND SPECIFIC TRADE OBLIGATIONS IN
MEAS
2. The Chairperson recalled that delegations had agreed in November 2002 to focus, in the course of
their work on paragraph 31(i), on the specific trade obligations (STOs) set out in the relevant
Multilateral Environmental Agreements (MEAs).  It had been stressed then that this would not
prevent participants in the negotiations from raising matters of definition or any other matters.  It was
also suggested by many delegations that the "Matrix on Trade Measures Pursuant to Selected MEAs"1
(hereafter the "Matrix") prepared by the Secretariat could be a proper basis for the discussions.  TheMEAs listed in this document were:  the International Plant Protection Convention (IPPC);  the
International Commission for the Conservation of  Atlantic Tunas (ICCAT);  the Convention on
International Trade in Endangered Species of Wild  Fauna and Flora (CITES);  the Convention on the
Conservation of Antarctic Marine Living Resources (CCAMLR);  the Montreal Protocol on
Substances that Deplete the Ozone Layer (Montreal Protocol);  the Basel Convention on the Control
of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention);  the
Convention on Biological Diversity (CBD) and its Cartagena Protocol on Biosafety (Biosafety
Protocol);  the United Nations Framework Conv ention on Climate Change (UNFCCC) and its Kyoto
Protocol;  the International Tropical Timber Agreement (ITTA);  the UN Fish Stocks Agreement;  the
Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals
and Pesticides in International Trade (Rotterd am Convention);  and the Stockholm Convention on
Persistent Organic Pollutants (Stockholm Convention).
3. The Chairperson also drew the attention of participants to a paper prepared by the Secretariat
entitled "Compilation of Submissions under paragraph 31(i) of the Doha Declaration"
2 (hereafter the
                                                     
1 This document was circulated in the CTE in Regular Session as WT/CTE/W/160/Rev.1,
14 June 2001, "Matrix on Trade Measures Pursuant to Selected MEAs", Note by the Secretariat, Revision.
2 TN/TE/S/3, "Compilation of submissions under Paragraph 31(i) of the Doha Declaration", Note by
the Secretariat, 31 January 2003.TN/TE/R/5
Page 2
"Compilation"), as well as to new contributi ons on paragraph 31(i) by the United States3,
Switzerland4, Canada5, and India.6
4. The representative of the United States said that his delegation was ready to move forward on the
substance of the negotiations on paragraph 31(i), particularly in light of the consensus that seemed to
have emerged in the CTESS to establish a firm, factual and analytical foundation for considering anypossible results.  For the United States, it was not productive to consider proposals for results in the
abstract, before this kind of analytical work had taken place.  The first and foremost consideration of
the United States was to ensure that the integrity and mutual supportiveness of both sets of
international obligations, namely those in MEAs and those in the WTO, were maintained.  In this
respect, coordination at the national level between environment and trade officials was the most
effective means of ensuring mutual supportiveness.  More generally, the United States believed that it
would not be productive at this time for the CTESS to  seek to reach agreement, in the abstract, on the
definition of certain terms in the mandate.  Instead, the process of examining delegations' analysis of
the agreements listed in WT/CTE/W/160/Rev.1 was a better way to reach a common understanding
on what was within the scope of the negotiating mandate.
5. The analysis of some of the provisions contained in the agreements listed in the Secretariat Matrix
suggested that STOs could take a variety of forms:  some required measures that directly affectedtrade;  others involved forms of notification to  importing parties with respect to trade in certain
products;  and some addressed more procedural or administrative matters, such as requirements to
designate administering authorities.  This multiplicity was an important element to keep in mind as
the CTESS moved forward in its work.  The United Stat es had identified in the matrix attached to its
submission certain provisions that it considered to  be STOs, although the list was not exhaustive.  The
six agreements identified in paragraph 11 of the United States' paper were:  CITES, the Montreal
Protocol, the Basel Convention, the Rotterdam Convention, the Stockholm Convention and the
Biosafety Protocol.  These MEAs were the same as those identified by the United States at the
October meeting of the CTESS.  In identifying th ese agreements, the United States had focused on
those which appeared to be obvious candidates, and which could form the basis of a more thoroughanalysis.  In this way, the CTESS could begin to identify specific issues associated with the
relationship between STOs in MEAs and WTO  rules.  The paper concluded by suggesting three ideas
for moving forward in future meetings.  First, delegations could provide their views on examples of
STOs.  Second, the CTESS could focus on those that appeared to be consensus examples.  Finally, on
this basis, individual delegations could be invited to share information on their experiences with
respect to the negotiation and implementation of these STOs in light of WTO rules.
6. The representative of Switzerland recalled that at the last meeting different categories of STOs
had been identified and discussed by various delegations.  Switzerland wished to present its position
on this matter and illustrate it with concrete examples.  Switzerland was of the view that this exercise
should not have as its purpose that of analysing the compatibility of MEAs and the measures they
provided with WTO rules.  However, Switzerland hoped that this discussion would lead to greater
transparency regarding the interpretation given by Members of the term "STOs".  For Switzerland, the
notion of STOs in the Doha mandate covered two categories of measures.  The first category
concerned obligatory trade measures specifically provided for by the MEAs, and comprised all the
                                                     
3 TN/TE/W/20, "Sub-Paragraph 31(i) of the Doha Declaration", Submission by the United States,
10 February 2003.
4 TN/TE/W/21, "Meeting of the Special Session of the Committee on Trade and Environment,
12-13 February 2003", Contribution by Switzerland, Paragraph 31(i), 10 February 2003.
5 TN/TE/W/22, "Discussion Paper on the Concept of Specific Trade Obligations (STOs)", Submission
by Canada, Paragraph 31(i), 10 February 2003.
6 The document was circulated after the meeting as TN/TE/W/23, "Relationship between Specific
Trade Obligations set out in MEAs and WTO Rules", Submission by India, Paragraph 31(i), 20 February 2003.TN/TE/R/5
Page 3
provisions of an MEA that explicitly mentioned a trade measure, so as to achieve an objective defined
by the MEA.  This was the case of CITES, according to which the trade in certain species threatened
with extinction which were, or could, be affected by international trade, would only be authorized
under exceptional circumstances.  Other MEAs included in this category were the Stockholm
Convention, the Biosafety Protocol and the Basel Convention.
7. The second category of STOs covered other adequate and necessary measures to achieve the
objective of an MEA.  It comprised all the MEAs that listed categories of measures and policies that
could, and should be, adopted so as to achieve a specific objective negotiated by the contracting
parties.  These MEAs left a certain amount of room for manoeuvre to the contracting parties as
regards the nature and content of the trade-related measure to be adopted.  This was the case for
example of the Kyoto Protocol, whose objective was to reduce the emissions of greenhouse gases.
Measures that could be taken to this end included areas such as taxation, and rules and standards, suchas in Article 2.1 of the Kyoto Protocol.  In this context, the parties were free to take trade-related
measures.  This second category of STOs thus comprised MEAs which provided an obligation de
résultat , and which specified the areas where a measure could be taken.  The measures that could be
taken to achieve the obligation de résultat  were, therefore, not explicitly mentioned, but they should
be situated in the areas provided for by the provisions.  Other MEAs that fell in this categoryincluded, for example, the Rotterdam Convention, th e Montreal Protocol, the ICCAT, the CCAMLR,
the CBD, and the ITTA.  All the trade-related measur es provided for by the MEAs referred to were
presumed to be necessary for the protection of the environment.  These binding trade obligations
explicitly provided for by an MEA could be cons idered as being compatible with the WTO rules
between parties to this Agreement.  This principle obviously required Members negotiating an MEAto make sure that the MEA did not include unnecessary, arbitrary, protectionist or unjustifiably
discriminatory trade-related measures.  However, the actual implementation  of trade-related measures
could still be challenged if a Member used its discretion in a manner out of keeping with its WTO
obligations.
8. The representative of Canada said that his delegation welcomed the decision to look at STOs in
the context of actual MEAs.  He was also of the view that a conceptual analysis should accompany
that review.  Both approaches were essential in order to reach a common understanding.  Canada had
focused particularly at this stage on six MEAs, namely the CITES, the Montreal Protocol, the
Basel Convention, the Rotterdam Convention, the St ockholm Convention and the Biosafety Protocol.
While this was not an exhaustive list of all the MEAs that contained STOs, it provided a good
starting-point for the discussions.  Canada hoped that its paper would assist in the discussion by
outlining a number of issues for consideration and providing illustrative examples from thesesix MEAs.  The paper was submitted as a non-paper and was without prejudice to the Canadian
position.  It did not represent Canada's final position on the definition of an STO or the criteria for
defining it.  Although the Rotterdam Conventi on, the Stockholm Convention and the Biosafety
Protocol had not yet entered into force, each agreement had a significant number of signatories, which
indicated broad participation by the global community in the negotiation of these MEAs.  Moreover,since these MEAs were expected to enter into fo rce in the course of the following year, it was
appropriate to include them in the analysis at this time.
9. In each of the six MEAs, trade-related measures were important tools to achieve the underlying
objectives of environmental conservation and protection in an efficient and timely fashion.  The paper
by Canada discussed a number of issues which had been raised by Members in the CTESS over thelast year, such as, inter alia , amendments to MEAs;  decisions of Conference of the Parties (COP) to
the MEA;  factors for consideration in defining an STO, such as explicitness, discretion, preambular
language;  environmental objectives;  and general obligations.  In undertaking the examination of
specific provisions of each of these MEAs, based on document WT/CTE/W/160/Rev.1, it was
important to take into account the fact that this document did not reproduce all provisions in eachMEA.  Therefore, it might be necessary to exam ine a specific provision in the context of otherTN/TE/R/5
Page 4
provisions of the MEA and its environmental objectives in order to see the overall picture.  A party to
an MEA expected other parties to that agreement to  respect all of their MEA obligations in the same
way that WTO Members expected other Members to respect all of their WTO obligations.  In other
words, one could not single out portions or provisi ons of an agreement without looking at the context
in which they appeared in the agreement.  An ex amination of trade-related provisions in these six
MEAs revealed that an obligation may be contained in one specific article or a combination of several
articles which, taken together, could constitute an STO.  Some of these provisions provided further
information on how and/or when the trade-related measure should be implemented.  The paper by
Canada contained examples from the Montre al Protocol and the Rotterdam Convention.
10. Members had raised the question of whether decisions of the parties should be included in the
discussions of STOs set out in MEAs.  The quest ion arose when MEAs used decisions to further
specify when, and/or how, a given provision referencing a trade-related measure was to be used.  Thequestion as to whether decisions by the COP, or through some other agreed procedure, were
obligations within the definition of an STO, as the term was used in the Doha Declaration, or were to
be used in the interpretation of these obligations, was MEA-specific and required a careful
examination of each MEA.  Canada did not believe that these decisions should be excluded a priori ,
although they would probably not qualify as STOs.  In some instances, an STO did not become anobligation of one party until another party had asserted a right or privilege, as was the case under
Article 4.1 of the Basel Convention.  Canada raised the question of whether the right or privilege
should be covered by the concept of STOs when its exercise resulted in a mandatory trade obligation.
In all six MEAs mentioned by Canada, while the trade effect could be similar, i.e. to ban, restrict or
condition trade, there was a diversity in the approach taken to achieve these similar ends in the MEAs.Therefore, a "one size fits all" approach to trade-related measures was unlikely to effectively address
all environmental issues.  These were some examples of the factors discussed in the paper, which
Canada hoped would add to the discussions.
11. The representative of India wished to contribute to the negotiations by sharing his delegation's
interpretation of the types of MEAs and the STOs that might form the core of the discussions.  India
hoped that the table of trade measures annexed to its submission would lead the discussions towards
the consideration of the tactical consequences of any interpretation, and move away from an overly
theoretical debate.  This table was neither an exhaustive list of provisions in the MEAs analysed, nor a
comprehensive list of MEAs that could have STOs, nor an assumption on the part of India that the
STOs identified necessarily needed a solution under paragraph 31(i).  The analysis was intended to be
an illustration of the approach and the nature of the work required in the negotiations on
paragraph 31(i).  The identification of the MEAs that qualified for the discussion should be based onthe following criteria:  (1) the MEA should have been negotiated under the aegis of the
United Nations or one of its specialized agencies, such as UNEP;  (2) its procedures should stipulate
that participation in the negotiations was open to all countries;  (3) there must have been effective
participation in the negotiations by countries belonging to different geographical regions and by
countries at different stages of economic and social development;  and (4) the agreement should setout procedures for accession of countries which were not original members, and on terms that were
equitable in relation to those of its original participants.  India also believed that the term "MEA" in
paragraph 31(i) of the Doha Declaration necessarily meant an MEA that was already in force.
12. In its paper, Japan had qualified an MEA as an agreement which "reflect[ed] the interests of major
Parties concerned, such as Parties with substantial trade interests, actual and potential major producersand consumers of materials concerned".
7  In India's view, such qualification was perhaps more
appropriate for a plurilateral agreement, since it introduced a distinction between WTO Members by
dividing them into formal categories, namely major parties and others.  However, such a qualification
                                                     
7 TN/TE/W/10, "The Relationship between Existing WTO Rules and Specific Trade Obligations set out
in Multilateral Environmental Agreements (MEAs)", Submission by Japan, Paragraph 31(i), 3 October 2002.TN/TE/R/5
Page 5
was not relevant in the present context.  India believed that the term "STO" had three elements that
should be considered together, i.e. the provision had to be specific;  it had to contain a trade element;
and it had to be in the nature of an obligation.  Therefore, in order to qualify as an STO, any provision
in an MEA had to be specific and mandatory in char acter, and so precise in its direction that there
could be no doubt about the action or restraint that a party to an MEA needed to adopt.
13. MEAs contained different kinds of trade-related measures, which could be divided into
four categories.  First, the trade measures were both mandatory and specific in their entirety, such as
in Article 4.1 (b) and (c) of the Basel Convention, where parties were obliged to prohibit the export of
covered wastes to parties that had banned such imports or did not consent in writing to the specific
import.  Second, the outcome to be achieved was identified, and a list of appropriate measures that
parties could implement to achieve the desired outcome was provided.  For instance, Article 6.2 of the
Basel Convention required the state of import to respond to the notifier in writing, consenting to themovement with or without conditions, denying permission for the movement, or requesting additional
information.  Third, the outcome to be achieved was identified, but the measures which could be
implemented to achieve that outcome were not specified.  For example, Article 16 of the
Biosafety Protocol, which related to risk management, stated that the parties shall, taking into account
Article 8(g) of the Convention, establish and maintain appropriate mechanisms, measures andstrategies to regulate, manage and control risks identified in the risk assessment provisions of this
Protocol associated with the use, handling and transboundary movement of living modified
organisms.  Although it contained an obligation, this provision failed to be specific as to the nature of
the measure to be taken.  Fourth, additional and more stringent measures were available to achieve the
overall objective of the MEA, which were more in the form of a right granted as opposed to anobligation.  For example, Article XIV.1 of the CITES stated that the provisions of the Convention
should in no way affect the right of the parties to adopt stricter domestic measures regarding the
conditions for trade, taking, possession or transport of specimens of species or the complete
prohibition thereof.  India believed that the mandate under paragraph 31(i) of the Doha Declaration
referred only to the first category, i.e. trade measures that were both mandatory and specific in theirentirety.  Several other aspects were also relevant in considering the specificity of trade measures, as a
number of trade obligations were not specific in their entirety and also contained non-specific
elements.  An obligation should be considered as an STO only when specific in its entirety.
14. In its paper, India also considered the issue of how to deal with COP decisions, resolutions and
recommendations.  The general principles pertaining to MEAs and the role of COPs could provide
some guidance in determining whether they should be treated as "STOs set out in MEAs".  The COP
could perform several functions, such as:  to review implementation based on reports submitted bygovernments; to consider new information from governments and others;  to make decisions
necessary to promote effective implementation;  to revise the treaty if necessary;  and to act as a
forum for discussion on matters of importance.  COP decisions could differ in several manners:  while
they generally helped in directing the work of the COP, they could cover internal matters or be more
substantive in nature.  Only the trade obligations contained in those COP decisions that weresubstantive in nature should be treated as STOs "set out in MEAs".  With regard to the submission by
the European Communities
8, which contained four broad categories of "measures arising from trade
obligations", India raised a question as to the appropriateness of the use of civil law terminology, such
as obligation de résultat , given that a large number of WTO Members had common law or other legal
regimes.  Further clarification was required on the concept of obligation de résultat in the common
law system.
15. On a more specific level, other delegations had submitted examples of MEA provisions that could
qualify as "trade measures explicitly provided for and mandatory under MEAs".  India believed that
                                                     
8 TN/TE/W/1, "Multilateral Environmental Agreements (MEAs):  Implementation of the Doha
Development Agenda", Submission by the European Communities, Paragraph 31(i), 21 March 2002.TN/TE/R/5
Page 6
some of these provisions required closer scrutiny.  By way of example, Japan had noted in its
submission9 that Articles 6 to 9 of the Basel Convention were trade measures explicitly provided for
and mandatory under MEAs.  In India's view, this was a broad statement given that, for instance,
Article 9 comprised of five sub-headings.  The first sub-heading defined illegal traffic, and did not
contain a trade obligation in itself.  The second requested the state of export to ensure that the wasteswere taken back or otherwise disposed of.  The thir d provided that these wastes would be disposed of
in an environmentally sound manner.  The fourth provided that these wastes would be disposed of as
soon as possible in an environmentally sound manner.  All of these terms failed to meet the standard
of specificity.  The fifth sub-heading requested the parties to introduce appropriate national or
domestic legislation to prevent and punish illegal traffic, and encouraged parties to cooperate with a
view to achieving the objects of this Article.  In India's view, Article 9 was a clear illustration of
provisions that were not specific as to the means to achieve an outcome, and hence should not qualifyas STOs.  India considered that the STOs set out in MEAs should be identified prior to discussing the
outcome, as it would help appreciate the likely consequences and strengthen the logic behind any of
the suggested outcomes.  India hoped that the table of trade measures annexed to its submission would
help delegations in identifying STOs set out in MEAs.  The table covered six MEAs, namely the
CITES, the Montreal Protocol, the Basel Convention, the Rotterdam Convention, theStockholm Convention and the Biosafety Protocol.
16. The representative of Chile said that his delegation agreed with the United States on the limits of
the mandate as defined in Section II of the United States' paper.10  He also agreed with the definition
of STOs put forward by Argentina in its submission.11  It appeared that delegations were moving
closer to an understanding of what was meant by STOs, including the contribution from Switzerland,which defined the obligations explicitly provided for and mandatory in MEAs.
12  Chile also agreed
with Section III of the United States' paper, and in particular with the need to ensure the integrity and
mutual supportiveness of both legal regimes.  In this connection, Chile emphasized the role of
capacity building for developing countries in ensuri ng proper coordination between national agencies.
Although it had not yet analysed in depth the various MEAs and the categories of measures identifiedby the United States, and bearing in mind that this categorization was not definitive, Chile noted that
it seemed to be an acceptable list of possible STOs.
17. In paragraph 13 of its submission, the United States dealt with a question that had already been
touched upon in other submissions, namely the limit between an obligation to apply a given trade
measure, and the trade measures which a Member may or may not apply in order to achieve the
environmental objectives of the MEA.  Of the three examples provided by the United States, Chile
had doubts regarding the second one:  if the MEA established various trade obligations from whichthe parties had to choose, would the chosen obligation not be an STO?  In its submission, Switzerland
had taken the view that it was an STO.  The difference between the first and the second group of
obligations in the Swiss submission was that the s econd had an element of discretion reflected by the
use of the word "may" in the text.  The use of the conditional tense clearly showed that it was not
referring to an obligation to take a certain action, namely implement a specific trade measure.  Indeed,
the party could have used a different measure, including a non-trade measure.  This raised the
question as to why the Member concerned had used the trade measure and not another measure.
18. However, a distinction had to be drawn between th ree different situations.  The first situation was
where parties had alternative trade measures to choose from and apply;  here, it appeared to be STOs.
This was similar to the second example provided in paragraph 13 of the United States' submission.
                                                     
9 TN/TE/W/10.
10 TN/TE/W/20.
11 TN/TE/W/2, "Mandate under paragraph 31(i) of the Doha Declaration on Trade and Environment",
Submission by the Argentine Republic, Paragraph 31(i), 23 May 2002.
12 TN/TE/W/21.TN/TE/R/5
Page 7
The second situation was where parties could choose from a range of measures, including non-trade
measures.  In this case, if a trade measure was applied, it would not qualify as an STO, since the party
could have used another type of measure, such as cooperation and technical assistance.  The third
situation was where parties could choose and apply alternative measures, whether or not of a trade
nature, to achieve trade objectives.  The Swiss example would appear to come within this category,and since it provided for discretion, i.e. the party may or may not apply the measure, it could not be
considered an STO.  In this respect, Chile agreed with the statement in paragraph 17 of Canada's
submission concerning the level of discretion of a measure.
13
19. In the final paragraph of its submission, Switzerland seemed to recognize that only mandatory
measures that were explicitly provided for in MEAs would be STOs.  Chile wondered how then could
a measure which "may be adopted" be considered as mandatory?  Similarly, Chile asked the
United States how could a trade measure expressly provided for in an MEA, whether it was subjectedto discretion or not, such as in Article 13.3 of the Rotterdam Convention, be considered as something
different than an STO?  In other words, a trade obligation was just that, not only where it was the only
alternative or the only measure expressly provided for, but also in the case where parties "shall"
choose from a range of measures.  However, the latter situation was different, since the party could
have chosen a non-trade measure, such as technical assistance.  To conclude on the United States'submission, Chile supported the way forward proposed in Section VI, and found the suggestion of
sharing experiences in the implementation of trade meas ures to be interesting.  Chile wished to know,
for instance, whether STOs had achieved their objectives;  whether there had been an evaluation of
what would have occurred if another measure had been applied;  and if, at any time, the consistency
of the measure with WTO rules had been analysed or questioned.   Although it was premature todiscuss the outcome of the negotiations, Chile cons idered that the outcome put forward in the Swiss
submission appeared to be the most reasonable one, provided the measures considered to be
WTO-consistent were STOs under the terms of the Doha mandate, and not discretional measures.
Chile referred in this connection to its comments at the June 2002 meeting of the CTESS on the first
submission by Switzerland.
14
20. The Canadian submission was an interesting one, and Chile agreed with it on many points.  In
particular, it agreed that the examination of the si x MEAs would not imply the closure of the list, and
that the CTESS would not have to confine itself to analysing only the MEAs in force.  However, the
submission by Canada raised a number of points that needed to be studied and discussed in greater
detail, in particular in Section II.  Firstly, Chile noted that in trying to define or categorize STOs,
Canada had referred to measures provided for in  MEAs which required certain standards (Canada had
mentioned the "standard of 'minimum consistent with'") or criteria established either in the MEAsthemselves or by the parties.  Chile did not think that it was the WTO's role to question or analyse
these standards or criteria, which ultimately fell within the competence of the MEA.  This was the
basis for the principle of mutual supportiveness and deference between the two legal regimes.  A
second element that needed to be addressed was the one mentioned in paragraph 6 of Canada's paper.
Referring to the Korean submission, this paragraph stated that certain MEA provisions were notrelated to the trade measure.  Although Chile agreed  that provisions which did not relate to the trade
measure would not qualify as STOs, it was not certain that it was the WTO's place to define this.
Once again, for Chile, deference to the environmental regime would indicate that this definition
should be made by the MEA.  In this context, the participation of MEAs was necessary, as it was
precisely in these areas that the CTESS needed the technical support of the MEAs.  To summarize,Canada had shown that the case-by-case analysis ap proach that had been agreed upon was not an easy
task.  It involved studying the context of the provisions and certain requirements for the adoption of
STOs.  This study required that the MEAs at least participate in the negotiations.  However, even with
                                                     
13 TN/TE/W/22.
14 TN/TE/R/2, "Summary Report of the Second Meeting of the Committee on Trade and Environment
in Special Session, 11-12 June 2002", Note by the Secretariat, 25 July 2002.TN/TE/R/5
Page 8
the MEAs present at the meetings, Chile did not believe that the WTO could question or interpret the
MEAs, be it only with a view to defining an STO.
21. The representative of Colombia thanked the delegations of the United States, Switzerland, Canada
and India for their contributions and for their identification of STOs and other themes related to the
mandate under paragraph 31(i).  She also thanked the Secretariat for the Compilation.  Concerning theUnited States' document, Colombia appreciated the identification of STOs, as well as its analysis of
the limits of the concept.  Colombia agreed with the United States that STOs could be found in at least
six MEAs.  Colombia was in the process of analysing the various contributions and would come back
at a later stage with an in-depth analysis.  Regarding paragraph 6 of the United States' submission,
Colombia was heavily committed to continuing to identify STOs.  The proposal to call upon the
various delegations to share information from their experiences in the negotiation and implementation
of STOs in light of WTO rules was an interesting way forward to prepare for input on the mandateunder paragraph 31(i).  A last comment on the United States' paper concerned a reference made to
mutual supportiveness between the two sets of obli gations and to the critical importance of national
coordination between trade and environment expert s in order to ensure the compatibility between
trade obligations in the MEAs and the disciplines of the WTO.  Effective cooperation would certainly
contribute to ensuring the compatibility of the rules and would be beneficial to both areas.  In thiscontext, the MEA Information Session in Novemb er 2002, as well as the work of UNEP, had been
very important.  Colombia hoped that this type of event would be held again in the future.
22. Colombia agreed with Switzerland that a discussion regarding STOs had to lead to greater
transparency in the area of interpretation.  It wished to further deepen its analysis on this topic in order
to draw some conclusions following Switzerland' s approach of identifying which STOs could be
considered as compatible with the WTO, and paving the way for dispute settlement, in case the
implementation of a measure involving discretion was found to be incompatible with WTO rules.
Regarding Canada's submission, Colombia noted that STOs also needed to be analysed in light of
their implementation, within the framework of the ME A, and in the context of WTO rules.  Colombia
had not yet determined which MEAs it wished to anal yse, but was willing to engage in a preliminary
study of the various MEAs, including those identified by the United States.  Colombia would revert to
the new submissions at a future meeting, including the Indian paper.
23. The representative of Hong Kong, China joined  others in thanking the delegations of the
United States, Switzerland, Canada and India for their papers.  To some extent, all of these
submissions discussed how Hong Kong, China considered the negotiations should proceed.  Rather
than commenting on the four papers individually, Hong Kong, China wished to set out its views on
how to organize the work in the next phase of the discussions.  The CTESS had conducted useful
exchanges of views on a range of issues relating to paragraph 31(i).  The representative of
Hong Kong, China thanked the Secretariat for the Compilation and supported the regular updating of
this document so as to take ino account Members' submissions as the negotiations progressed.
Hong Kong, China fully endorsed the view that th e CTESS had entered into a new phase of work, and
in particular the statement by the United States that "the existence of the compilation inWT/CTE/W/160/Rev.1 makes it unnecessary to debate in the abstract the meaning of such terms as
"MEA", "obligation", "trade", etc.  The sense of delegations regarding these terms will come to the
surface through a concrete review of the examples they identify in the document".
15
Hong Kong, China strongly believed that it would not  be efficient to continue to analyse definitional
issues, and that the time had come for the CTESS to proceed with discussions on paragraph 31(i) in "amore concrete, analytical manner", as suggested by the United States in its submission.
16
Hong Kong, China also supported more practical and pragmatic discussions.
                                                     
15 TN/TE/W/20, paragraph 10.
16 Ibid. , paragraph 14.TN/TE/R/5
Page 9
24. It had been agreed in November 2002 to focus on STOs in relevant MEAs, and it was understood
that such an approach would not preclude Members from addressing definitional or other issues.  In
its paper, the United States had made a few useful suggestions to take the discussions forward.
Hong Kong, China supported this approach, especially the idea of identifying concrete examples of
STOs, and experience sharing on the negotiation and implementation of these STOs.  As a suggestionto make the discussion more structured  and focused,  Hong Kong, China proposed that Members start
examining the MEAs identified in the Secretariat Matrix and the STOs contained therein one by one,
beginning with those MEAs which had entered into  force, with a more universal membership and
global application.  It would be more useful to ex amine those MEAs which had been in existence for a
longer period of time.  However, Hong Kong, Chin a was not suggesting a new modality of discussion.
Its suggestion was meant to facilitate the discussions and help Members better understand STOs in
individual MEAs through a concrete review of actua l examples and experiences.  This suggestion was
based on the following considerations.
25. First, it was a more structured approach, as Members could make reference to the Secretariat
Matrix, which provided relevant information such as MEA status, membership, trade-related
measures, provisions for disputes and the question of non-parties.  It was also a more efficient
approach to facilitate Members' deliberations and help focus the discussions.  This was particularlythe case for smaller delegations, which did not necessarily have the resources to undertake their own
analysis of the individual MEA provisions and come  up with examples of STOs.  Second, a sequential
examination of MEAs would allow Members to share their implementation experience of the STOs
contained in the Matrix in a more structured and efficient manner.  It would also help identify and
isolate current problems associated with their implementation.  A more structured way of proceedingmight also provide some insights on possible means, if any, of addressing potential conflicts between
WTO rules and MEA provisions.  In this respect, a number of delegations had already commented
that given the diversity of approaches to tackling environmental concerns in MEAs, it might not be
feasible to find a "one size fits all" solution to the question of the WTO/MEA relationship.
Hong Kong, China fully subscribed to this view.  Canada, for example, had raised important questions
in its paper.  Hong Kong, China believed that Me mbers would not be able to find answers to those
questions through an abstract discussion, but rather through examining and discussing the respective
MEAs in detail.  Third, Members would be able to better involve the respective MEA Secretariats and
benefit from their expertise if the discussion was conducted sequentially, i.e.  MEA by MEA.  In this
respect, Hong Kong, China supported the Chairperson's suggestion of inviting MEA secretariats to
participate in relevant discussions on an ad hoc, meeting-by-meeting basis.  Hong Kong, China
considered this was a pragmatic suggestion, which did not prejudice the outcome of the horizontaldiscussion on the question of observership at the General Council.
26. The Secretariat had identified 14 MEAs with tr ade measures.  According to the Secretariat's
Compilation, the same 14 MEAs had also been referred to by Members in their submissions.  The
United States had mentioned in its paper that STOs were set out in only six MEAs listed in the
Secretariat's Matrix.  Since the number was not prohibitive and was without prejudice to the numberof MEAs that Members wished to examine, a sequential examination, starting with the more
representative MEAs, would appear to be a manageable way forward.  In deliberating the sequence
for examining MEAs and the STOs, Members might wish to refer to such aspects as the status of
implementation, membership and the scope of application.  The representative of Hong Kong, China
noted that the United States' paper had listed STOs in the six MEAs identified.  Of the six MEAsidentified, only three had entered into force, name ly the CITES, the Montreal Protocol and the Basel
Convention.  With regard to the membership of these MEAs, according to the Secretariat Matrix,
there were at present 154 parties to the CITES and ten WTO Members were not parties to this MEA.
The corresponding numbers for the Montreal Protocol and the Basel Convention were 175/3 and
146/22 respectively.  Members may agree that the products affected by these MEAs were relativelyeasier to identify across borders, e.g. endangered species in the CITES appendices, controlled ozone-
depleting substances under the Montreal Protocol , and hazardous wastes under the Basel Convention.TN/TE/R/5
Page 10
Given the time of existence of these MEAs, Members should have more experience on the
implementation of the STOs contained in these MEAs, such as import and export bans, restrictions,
notifications and licensing.  A sequential examination of MEAs might allow for a more systematic
sharing of experience.  In this respect, Hong Kong, China noted that Canada's paper had already
attempted to examine some STOs in these MEAs.  To help structure and focus the discussion,Hong Kong, China proposed that Members conduct, as a start, a detailed examination of these three
MEAs sequentially.
27. It might be argued that a horizontal approach would be more efficient when discussing STOs in
relevant MEAs, as some STOs were similar in natu re.  Hong Kong, China did not believe that it was
easy to generalize a set of common criteria from the MEAs, or that it was feasible to find a "one size
fits all" solution.  Some Members had mentioned that it might be necessary to establish categories of
STOs, with a view to finding tailor-made solutions to only those which Members ultimately acceptedas STOs.  Hong Kong, China considered this to be  a sensible way forward.  A sequential examination
of individual MEAs would help debate all the implications of the STOs contained therein through
sharing of experience related to their implementation.  This did not preclude some generalization at a
later stage if some sort of commonalities coul d be drawn through in-depth examination and
discussions.
17
28. The representative of Peru thanked the Secretariat for its compilation and supported its regular
updating.  She also thanked the United States, India, Canada and Switzerland for their contributions.
Given the timing of their submission, Peru would make comments on these papers at a later stage.
Peru agreed with those Members who considered that there could not be a hierarchical relationship
between trade and MEAs, and that the relationship was one of support and mutual respect.  However,negotiation on the relationship between both areas of international law was decided at the
Doha Ministerial Conference, and Members, therefore, had an obligation to make progress on the
mandate.  In addition, Peru considered that all the negotiations were to be seen in the broader context
of the new Doha Round based on sustainable development, an objective which had been reaffirmed at
the World Summit on Sustainable Development in Johannesburg.  First, Peru supported the Australianproposal
18 to adopt a structured approach in the discussion, as this would make it possible to identify
more clearly the various issues that required clarification.  The use of the Secretariat Matrix as a basis
for the examination of MEAs and the subsequent identification of STOs, which might be derived from
such an examination, was therefore an intere sting one.  However, the need for a conceptual
interpretation of the mandate still had to be demonstrated, as it was unclear whether there was any
conflict between trade and environment.  To some ex tent, Peru considered that such an interpretation
could eventually lead to a conflict of competence between WTO rules and MEAs.  Moreover, ifMembers used the Matrix to analyse the trade obligations contained in the MEAs identified, it would
be necessary to agree on a definition of the term "STO" and on each of its components, before any
progress could be made on a detailed reading of these obligations.  If Members were to engage in a
discussion of the meaning of an STO each time a trade obligation in an MEA was identified, it would
create the risk of making an individual interpretation, and eventually reaching an ambiguous andinconsistent solution.  This would call in turn for a new negotiation which could possibly reopen the
entire debate.
29. Members who considered that there was a potential conflict between certain rules contained in
MEAs and existing WTO rules should put forward concrete examples.  Peru considered that the
Doha mandate did not explicitly recognize the possibility of a conflict between the two legal regimes,
                                                     
17 The statement by Hong Kong, China was circ ulated at its request in document TN/TE/W/24,
"Statement by Hong Kong, China at the Meeting of the Special Session of the Committee on Trade andEnvironment of 12-13 February 2003", Paragraph 31(i), 20 February 2003.
18 TN/TE/W/7, "Suggested Procedure for the Negotiations under Paragraph 31(i) of the
Doha Declaration", Submission by Australia, Paragraph 31 (i), 7 June 2002.TN/TE/R/5
Page 11
but simply provided for negotiations on their relationship, without prejudging their outcome.  It was
therefore inopportune for the CTESS to proceed to an exhaustive and comprehensive conceptual
interpretation, given that the Appellate Body itself had indicated that its decisions should not be
considered as jurisprudence and were only applicable to the particular case at hand.  Focusing
discussions on concrete examples would make it possible for all Members to analyse specific rulesrather than debating in the abstract.  Moreover, since the mandate referred exclusively to the
applicability of these existing WTO rules as among parties to the relevant MEA, these parties would
presumably decide on the correct interpretation of both legal regimes and their relationship.  From this
point of view, it was illogical to consider that the CTESS could interpret conceptually the rules
contained in MEAs to which certain WTO Members were not parties.  This interpretation could
induce the parties to the MEA to invalidate any decision reached.  Since the mandate indicated that
the negotiations "shall not prejudice the WTO rights of any Member that is not a party to the MEA inquestion", one could suppose that the negotiations woul d also be without prejudice to the rights of the
parties to that MEA.  In this context, what righ t would a Member have to interpret the rules of an
agreement to which it was not even a contracting party?  If one started to analyse the rules contained
in each MEA, it would be necessary to limit the scope of the negotiations to those Members that were
parties to both the WTO agreements and the relevant MEA.
30. However, this analysis also raised the question of what agreements should be considered as
MEAs.  For some delegations, only those agreements currently in force were relevant for the purpose
of the negotiations, whereas for others, the term MEA referred to those agreements that had a
significant number of parties.  This raised two problems.  First, if there had not been any conflict so
far between existing WTO rules and the MEAs currently in force, there was no need for negotiations,since such negotiations would not cover future agreements.  Second, what was a significant number of
ratifications, or the minimum number for an agreement to enter into force?  Was the WTO
empowered to reinterpret international agreements and consider that the minimum number of ratifying
states was not sufficient for it to be considered an MEA?  Finally, how was it possible to establish
clear and objective criteria that would enable certain regional environmental agreements to beconsidered as MEAs?  To summarize, Peru considered that irrespective of the matrix used to analyse
the content of the MEAs, the parties to an agreemen t could contest the legality of non-member states
participating in the discussions.  Any conclusion on the relationship between existing WTO rules and
STOs set out in MEAs would not be binding on them, since negotiations were without prejudice to the
rights of any WTO Member not party to a particular MEA.  Instead of undertaking a complicated and
detailed analysis of each of the rules contained in the MEAs, Members should focus on specific
provisions that could enter into conflict with WTO rules.  Finally, Members needed to reach anagreement on the meaning of the term "MEA", as it may be necessary to establish a differentiation
between those agreements that were, and those that were not, relevant for the purpose of the
negotiations.
31. The representative of Malaysia welcomed the opportunity to have a focused discussion on STOs
in MEAs, as this would allow the CTESS to deepen the debate on paragraph 31(i) without prejudging
positions on the definition of MEAs or the consistency with WTO rules.  Attempts to analyse STOs
had been made by a number of delegations, including the European Communities19, Argentina20,
Japan21, Chinese Taipei22, Korea23 and Switzerland24, and recently by the United States, Switzerland,
                                                     
19 TN/TE/W/1.
20 TN/TE/W/2.
21 TN/TE/W/10.
22 TN/TE/W/11, "Contribution on Paragraph 31(1) of the Doha Ministerial Declaration", Submission
by the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, Paragraph 31(i), 3 October 2002.
23 TN/TE/W/13, "Specific Trade Obligations (STO s)", Submission by the Republic of Korea,
Paragraph 31(i), 8 October 2002.TN/TE/R/5
Page 12
Canada and India.  Malaysia thanked those delegations that had prepared a list of provisions which
could be identified as STOs, as well as the Secretariat for its Compilation.  Malaysia would consider
the submissions of Korea, the United States and India on STOs in a more detailed manner to see
whether it shared their understanding of STOs.  It also wished to reflect further on some of the
questions raised by Canada and other delegations regarding the status of COP decisions and MEAamendments in the context of the mandate.  In Malaysia's view, the use of terms such as "specific",
"obligations", and "trade" in the Doha mandate indicated that STOs in MEAs had the character of a
binding commitment within a specified, prescribed cour se of action in the area of trade, in a clear and
unambiguous language.  Hence, an STO could be perceived in terms of "obligation", "specificity" and
"trade-based".  In examining the language in the provisions of MEAs such as CITES, the Montreal
Protocol, the Basel Convention, the Rotterdam Convention, the Stockholm Convention and the
Biosafety Protocol, Malaysia noted a number of provisions containing the word "shall" andaccompanied by a prescribed course of trade action, which could easily qualify as STOs.
32. For example, Malaysia noted that Articles III, IV, V and VI of CITES prescribed various trade
measures which were mandatory because of the use of the word "shall", and were specific in
prescribing measures such as export bans, or the use of export/import certificates.  On the other hand,
there were other trade measures in CITES, such as in Article VIII, that might meet the test of abinding commitment, but not that of specificity.  Also, Article VII stated that "Parties shall take
appropriate measures" to penalize trade, without prescribing what these measures were.  There were
also some MEAs that allowed measures to be taken consistent with that particular agreement, as long
as they were deemed consistent with international law (e.g.  Article 4.2.11 of the Basel Convention
and Article 2.4 of the Biosafety Protocol).  Could th ese measures be considered as STOs if they were
trade-based?  Bearing in mind that there was no specificity in the prescription, it seemed difficult to
accept such provisions as STOs.  Also, with the lack of specificity, there was uncertainty over the
nature of the trade measure and this discretion made the evaluation of consistency with WTO rules
much less precise.  A number of delegations had spoken on the way forward, and Malaysia agreed
that delegations would benefit from further identification of STOs, perhaps on an agreement basis andfocusing on the MEAs on which there seemed to be some common understanding that they contained
STOs.  Malaysia also considered the suggestion by the United States to be useful, i.e. that delegations
could provide information on their experiences with  the implementation and interpretation of these
provisions.  Although STOs could be specific and unambiguous, Malaysia wished to know whether
STOs were implemented in the same way by all the parties to the MEAs.  On closer examination, it
might be possible to find some common ground that would help Members define the relationship in a
manner consistent with the mandate.
33. The representative of the European Communities thanked the delegations that had submitted new
contributions.  These papers brought out what Canada had referred to as the complexities in trying to
scope out the key issues arising from the concept of an STO, and the Secretariat Compilation
underpinned this.  There were numerous questions arising in relation to coverage and the approach of
delegations varied in this respect.  The papers by Switzerland and India, for instance, seemed to be atdifferent ends of the spectrum of implied answers.  Both approaches were valuable, as they put
forward concrete examples and reflections on the conceptual parameters which needed to be
discussed, but delegations seemed to draw different conclusions from some of those examples.  The
submission by the European Communities to the CTESS
25 in March 2002 discussed a number of basic
concepts in the mandate.  Similar issues had been raised by other delegations and would need to be
further analysed as the negotiating process moved forward.  The paper also set out a framework of
principles, linked to the global governance system, which should govern the relationship between
WTO rules and the MEA legal order.  Focusing on the specifics did not detract from the conceptual
                                                                                                                                                                    
24 TN/TE/W/16, "Statement by Switzerland at the CTE Special Session on 10 October 2002",
Paragraph 31(i), Submission by Switzerland, 6 November 2002.
25 TN/TE/W/1.TN/TE/R/5
Page 13
approach that the European Communities had favoured.  On this aspect, the European Communities
agreed with Canada that it was necessary to look at all relevant articles of an MEA to make up the
specificity of a trade obligation.  The relevant set of data to be examined did not correspond to the six
MEAs identified by some delegations, but rather to a longer list of MEAs, the number of which was
not yet known.
34. The European Communities agreed with the Unit ed States that the mandate was intended to
enhance supportiveness.  Against this background, it was essential to pay careful attention to the fact
that MEAs worked in different ways and had their own legal order.  Without a full awareness of this
diversity, WTO outcomes under paragraph 31(i) would risk cutting across the way MEAs operated
and creating problems rather than synergies.  The European Communities agreed with the
United States that the outcome from these negotiations should not create a reluctance to join MEAs,
and suggested that the United States could provide some ideas on how to encourage participation inMEAs.  The European Communities wished to address in turn four different themes, namely "STOs",
"MEAs", "set out in MEAs" and "among parties".
35. First, with regard to STOs, the European Communities reiterated that the definition of STOs
required a thorough analysis, and raised the foll owing questions:  Was there any difference between
an obligation to take a trade measure decided under an MEA, such as a restriction on imports orexports, and a trade measure imposed as a sanction for non-compliance?  The European Communities
recognized that the issue of compliance was a sens itive one, both in the WTO and in some MEAs,
such as ICCAT, where a failure to comply could lead to the application of trade measures.  The
European Communities was inclined to look positively at the identification of such provisions as
STOs, where they clearly flowed from a specific provision of the MEA.  Also, theEuropean Communities did not have at this stage its own list of STOs.  The European Communities
appreciated the approach taken by Korea, but questioned whether parts of CITES could be excluded,
as Korea seemed to suggest.  Moreover, subject to  further analysis, the European Communities would
add ICCAT and CCAMLR to Korea's list of MEAs that  potentially contained STOs.  On this aspect,
the Swiss paper had a slightly different approach, br oader in some parts and narrower in others, and
the Indian paper was perhaps too specific in its definition of the word "specific".
36. With regard to MEAs, the European Communities noted that regional MEAs should be
considered as potentially multilateral and should be included in the scope of the work of the CTESS,
provided that they were open to all countries that had a legitimate interest in the matter covered by the
agreement.  In this respect, the approach suggested by the Indian paper seemed too narrow.  The
European Communities agreed with the United States that the Doha mandate did not specify that
MEAs had to be in force.  Therefore, it was necessary to take a broad approach in the analytical work.In addition, in terms of the objectives, a closed list  of MEAs would not have sufficient scope to meet
the mandate.  For example, the Biosafety Protoc ol, the Stockholm Convention and the Rotterdam
Convention, although not yet in force, clearly contained STOs and should be considered in the context
of the mandate.
37. With regard to the notion of "set out in an MEA", the European Communities agreed with Canada
that much attention should be given to the interpretation of these words, i.e. whether they covered
only the obligations enshrined in the MEA framew ork convention itself, or also those agreed upon
with an equal, or even greater, degree of spec ificity, by way of a COP decision or an amendment to
the convention.  Should there be a distinction betw een different types of COP decisions, depending on
how legally binding they were?  In this context, the terminology used in the different MEAs could beconfusing.  For example, ICCAT adopted binding measures by way of "recommendations", whilst the
Indian Ocean Tuna Commission (IOTC) adopted binding measures by way of "resolutions".  ICCAT
had binding measures that might include trade obligations adopted in the form of recommendations,
and there were also action plans which were adopted in the form of "resolutions". Similarly, in
CITES, trade was regulated, inter alia , in a number of resolutions.  In CCAMLR, trade obligationsTN/TE/R/5
Page 14
had been adopted in a number of Conservation Measures that were binding on the contracting parties.
Should these measures be regarded as covered by the mandate?  The European Communities did not
feel that these obligations should be excluded at  this stage.  It also agreed with Canada that
delegations needed to think about a filtering principle.  The Canadian paper talked about discretion,
but the degree of specificity in the creation of the obligation was also important, as well as theunderstanding of the MEA as to the degree of legal obligation created by a given decision.
38. Finally, with regard to the notion of "among par ties", the European Communities recalled that the
Doha mandate clearly excluded a full discussion of the non-party issue.  However, there were
situations where questions might arise as to who might be covered by the term "party" in the mandate.
A closer look at different MEAs showed that the distinction between party and non-party was not
always clear.  Canada had raised, in its statement at the last meeting of the CTESS, the issue of the
Ban Amendment to the Basel Convention.  The European Communities disagreed with those whosuggested that Article 4.5 was out of the coverage of this mandate.  This Amendment, which was not
in force yet, was already being applied by some countries, and parties seemed to have different views
as to whether to include other countries in Anne x VII, or whether non-Annex VII countries would be
allowed to trade with Annex VII countries under bilateral arrangements.  Similarly, in ICCAT and in
the Montreal Protocol, some non-parties had a status of "co-operating party" and were fully bound bythe conservation and management measures, although they were not parties to the Convention.  In
CITES, where export was to, or from, a state not party to the Convention, comparable documentation
issued by the competent authorities, which conformed with the requirements of the Convention for
permits and certificates, could be accepted in lieu thereof by any party.  This created a situation where
for a particular MEA, WTO Members could be considered as parties, non-parties, or non-parties beingtreated as if they were parties.
39. The European Communities made three concluding re marks.  First, with regard to the issue of
process, the European Communities disagreed with the suggestion made by the United States in its
paper that the CTESS should focus on the STOs on which there appeared to be a consensus.  Such a
step-by-step approach would not be compatible w ith suggestions made by some delegations to get
closer to the facts and to listen to MEA secretariats.  Second, with regard to the issue of the outcome
of the negotiations, the European Communities noted that there had to be some value added in terms
of the status quo in the WTO, which would increase the legitimacy and legal clarity for MEAs, as
compared to what the WTO had said about unilateral action for environmental purposes.  The
European Communities shared with other delegations the objective of ensuring that the mandate of
negotiations would not be abused.  However, the mandate should not be distorted in such a way that
the outcome of the negotiations would only be available to WTO Members which, pursuant to anMEA, fulfilled even more obligations than they would have to fulfil if they were acting unilaterally
under the cover of the WTO.  In other words, the negotiations should not lead to the creation of
obligations which would make it harder to use trade in the context of an MEA, than outside of an
MEA.  Third, the European Communities noted that process issues were also relevant to the outcome
on this part of the mandate. So far delegations had been thinking in terms of substantive WTO rulesapplicable to STOs.  However, process rules could also be applicable, such as Article V of the
WTO Agreement, or Articles 5 and 13 of the Dispute Settlement Understanding (DSU).
40. The representative of Korea thanked the delegations of the United States, Canada, Switzerland
and India for their precious and constructive submissions, as well as the Secretariat for its
Compilation.  Korea agreed with the view expressed in paragraph 10 of the United States' paper26 that
it would be more beneficial to take a broader approach in the consideration of MEAs.  Since the
negotiations were supposed to be concluded in 2004, it would be practical to include in the analysis
MEAs that would have taken effect by then.  In this context, the Stockholm Convention, the
Rotterdam Convention and the Biosafety Protocol, which were likely to come into force in the near
                                                     
26 TN/TE/W/20.TN/TE/R/5
Page 15
future, should be included.  Korea also agreed that the relevant STOs, according to the mandate,
should be obligations applying among parties.  For this reason, Korea would exclude, in its next
submission, the STOs covering the trade relationship between non-parties, which it had listed in its
first submission.  Concerning Canada's paper27, Korea noted that it shared some of the questions
raised, such as how to treat COP decisions and resolutions in the analysis of STOs.  Korea had not yetdecided on a position on COP decisions, which was an important issue in the examination of STOs.
Korea also agreed with the views expressed by Canada in paragraph 8 of its paper on whether an
amendment to an MEA should be included in the ex amination.  In relation to this issue, Korea
touched upon the party/non-party issue raised by Switzerland, which involved in particular the
question of whether both parties that had acceded to an MEA had to be parties to the MEA framework
convention and its annexes or amendments.  For Korea, if both parties had acceded to the MEA
framework convention, but one of the parties had not yet acceded to its annexes or amendments, therelationship between the two parties should be cons idered as a party/non-party relationship in terms of
the relevant MEA annexes and amendments.  This was due to the fact that the annexes and
amendments had to go through the same ratification procedure as for the framework convention in
order to enter into force.  Therefore, it was Kor ea's view that they should be regarded as separate
MEAs.  Korea also welcomed the point raised in paragraph 15 of the Canadian paper, which wouldhave important implications for the discussion.  Switzerland had suggested in its paper that trade
measures necessary to achieve an MEA objective should be considered as STOs, and should be
presumed to be in conformity with WTO rules.  If this was the case, Korea was concerned that it
could lead to an arbitrary use of trade measures for environmental purposes, thereby harming the open
and non-discriminatory nature of the multilateral trading system.  Delegations had to prevent theprotectionist abuse of trade restrictive measures for the purpose of environmental protection.
41. In its first submission
28, Korea had tried to identify STOs in relevant MEAs based on the ordinary
meaning of the term "STO", using the Secretariat Matrix.  Korea regarded STOs as trade obligations
that set forth not only a result which had to be achieved ( obligation de résultat ), but also the measures
which had to be used to achieve it ( obligation de comportement ).  Korea understood that the term
"specific" should not leave room for ambiguity, discretion or misunderstanding.  In this context,
Korea shared the views of the United States and Canada on STOs.  In order to facilitate the
discussion, Korea was now trying to classify and categorize the types of STOs according to their
characteristics and nature.  The preliminary analys is showed that there were some common features
among STOs, such as notification, provisional information, prior informed consent, export and import
permits and licenses, and trade restrictions between the parties.  Of course, it was difficult to
generalize these types of measures, as the nature and characteristics of STOs were considerablydifferent from one MEA to another.  However, on the basis of this analytical work on STOs, Korea
would also attempt to look at the relationship between the types of STOs and relevant WTO rules.
Korea expected to submit a paper at the next meeting of the CTESS.
42. The representative of Brazil thanked the Secretariat for the Compilation and joined other
delegations in their request for regular updating of the document.  Brazil also thanked Switzerland, the
United States, Canada and India for presenting their papers.  Although Brazil was still in the process
of analysing these papers, it noted that they were useful contributions.  The papers by the
United States and India adopted similar views on the approach that the CTESS should be taking, and
also with regard to the table of STOs.  The Canadi an paper raised an interesting point regarding the
legal and conceptual nature of some of the terms of the mandate which merited further discussion inthe CTESS.  Brazil also agreed with Chile on the importance of the participation of MEA secretariats
in the work of the CTESS to exchange views with Members on some of the questions raised, such as
the legal nature of the COP decisions and recommendations.
                                                     
27 TN/TE/W/22.
28 TN/TE/W/13.TN/TE/R/5
Page 16
43. In Brazil's view, the mandate agreed upon in Doha was clear and there was, therefore, no need to
clarify the terms of the Doha Ministerial Declarati on, as suggested by Switzerland.  Brazil recalled the
position of Argentina that the mandate was precise and specific, and supported the views expressed by
India on the term "specific trade obligation".  Like India, Brazil believed that STOs had to be clearly
set out in MEAs, relate to a particular trade action and be clearly of a mandatory nature to the partiesto the MEAs.  Brazil supported the papers by Canada and the United States, especially with regard to
the limits of the mandate.  For this reason, Brazil adopted the position that measures that were not
explicitly provided for and mandatory under MEAs could not be considered as mandatory for the
purpose of defining an STO.  In fact, Brazil did not consider as STOs those measures that were the
result of discretionary decisions taken by parties to MEAs, allegedly relevant and necessary to achieve
an MEA objective.  Brazil strongly believed that the Ministers in Doha did not intend to support
unilateral and discretionary action.  Brazil could not "deem as automatically consistent" with WTOrules measures that were  not themselves negotiated nor adopted by the whole constituencies of
MEAs, but the result of a decision taken by one single government.  In this respect, the Swiss
proposal was not acceptable.  Moreover, the mandate related only to the relationship between parties
to the MEAs.
44. Brazil agreed with the United States that the relationship between MEAs and the WTO was
functioning well.  There had been no dispute concerning MEAs under the dispute settlement
mechanisms of MEAs or under the WTO dispute settlement system, which meant that parties to
MEAs that were WTO Members were aware of their commitments under each set of international
obligations.  Brazil considered that the list of MEAs proposed for discussion by the delegations of the
United States, Canada and India indicated the most evident examples of MEAs that contained STOs.Nevertheless, for the purpose of this exercise, delegations should refrain from commenting on MEAs
that were not yet in force.  For Brazil, it would be useful to have more in-depth discussions on each
MEA, in order to come to a comprehensive understanding of their provisions.  Delegations should
concentrate their efforts on the MEAs whose relevance in the context of the discussion had reached a
significant level of consensus, and which were un iversal and in force.  Brazil suggested that the
CTESS began with the examination of CITES.  In this regard, Brazil supported the table of STOs
presented by India and by the United States as the basis for the discussions.
45. Brazil believed that work under paragraph 31(i) would benefit from an enhanced relationship and
exchange of information between MEA secretariats and the WTO.  It would be crucial to have MEA
Secretariats taking part in the discussions at future meetings, in order to share information on the
experience of the parties in dealing with specific trade-related measures and, as proposed by India, on
the legal nature of COP decisions, regulations and recommendations.  Moreover, Brazil agreed withthe United States on the need to improve domestic coordination, which fell within the responsibility
of governments.  Brazil emphasized the importance of building the capacity of negotiators from
developing countries on issues relating to trade and environment.  Such an enterprise required, inter
alia, financial assistance for the participation of developing countries' delegates in both fora.  Instead
of anticipating problems in the relationship between MEAs and the WTO, countries should engage ina real effort towards providing capacity to negotiators, especially those  from developing countries.
This would prevent uneven outcomes in the trade and the environment negotiations and enhance the
mutual supportiveness between them.  Brazil agreed with the proposal by the United States, as a way
forward, concerning the sharing of experience in implementing STOs in light of WTO rules.
46. The representative of Indonesia thanked the Secretariat for the Compilation, and looked forward
to further revision of the document as Members submitted new contributions.  Indonesia also thanked
the United States, Switzerland, Canada and India for their papers on STOs.  Indonesia made some
preliminary comments at this stage and reserved its right to provide further comments at future
meetings.  It was agreed in November 2002 that the CTESS would focus at its February meeting on
the examination of STOs in MEAs.  While Members had not arrived at a common definition orunderstanding of STOs, Indonesia felt that it would be useful to first understand the purpose andTN/TE/R/5
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nature of trade measures in MEAs.  In the view of Indonesia, the purpose of any trade measure in
MEAs was to regulate or restrict trade in order to protect the environment or attain a certain
environmental objective.  These trade measures could take the form of trade bans and restrictions,
prior informed consent, and trade-related notifications.
47. Against this background, Indonesia considered that STOs had the same purpose and nature as
trade measures in MEAs.  However, the words "specific obligations" differentiated STOs from other
trade measures in MEAs.  Whilst some delegations considered that only trade measures which were
mandatory, legally binding, or explicitly provided for in MEAs qualified as STOs, others considered
that STOs included all measures that were appropriate and necessary to achieve the MEA's objectives.
For Indonesia, STOs corresponded to MEA provisions that were clearly trade-related and mandatory,
specifically set out, and which parties were required to take in order to achieve the MEA's objectives.
While measures in MEAs might have the purpose and nature mentioned above and might beconsidered as trade measures, they might not necessarily constitute an STO.  In this connection,
Indonesia welcomed and supported the submission by India, particularly paragraph 9, which clearly
underlined the need to focus on trade measures that were both mandatory and specific in their entirety.
The examination of some of the MEAs in the Matrix indicated that a number of measures could fall
into a grey area between an STO, a specific obligation or measure, and a trade measure.  For instance,Articles 3.1 and 3.2 of the Basel Convention had been classified as STOs by the United States, but not
by Korea.  Also, some Members considered Articles 5, 6, 7 and 8 of the Rotterdam Convention as
STOs, while others did not.  In Indonesia's view, the provisions mentioned in the examples constituted
precise and mandatory procedures that would be needed to support the implementation of trade
measures, but were not directly related to trade.  Given these conditions, Indonesia was of the viewthat these provisions were specific obligations or measures in MEAs, but did not constitute STOs.
While these MEA provisions were mandatory, clearly set out and specifically required to be taken by
parties to the MEAs, they were not directly related to trade and MEAs.
48. Indonesia noted that as many MEAs had been agreed on the basis of the principle of common but
differentiated responsibility, i.e. based on their level of development, parties to MEAs might not haveto undertake or implement certain STOs.  Indonesia wondered how this situation could be taken into
consideration when identifying STOs.  Indonesia shared Canada's view that clarity and precision in
MEA provisions would simplify the task of identify ing STOs.  However, given the fact that it was not
possible to make MEA provisions clearer or more precise, there was a need to ensure that clear and
precise criteria were used.
49. Finally, Indonesia agreed with the European Communities
29 that parties to an MEA shared
common interests, objectives, and goals, which they perceived as attainable by implementing certaintrade measures or STOs.  As noted by Canada, a party to an MEA expected other parties to that
agreement to respect all of their MEA obligations in the same way that WTO Members expected other
Members to respect all of their WTO obligations.  Furthermore, the relationship between MEAs and
the WTO was functioning well.  Thus the question that needed to be addressed was whether there
were STOs in MEAs already in force that were in conflict with WTO rules, which could not beresolved between the parties to the MEAs.  In orde r to avoid engaging in a hypothetical exercise of
defining STOs, Indonesia invited delegations to come up with actual and concrete experiences with
respect to the implementation of STOs in MEAs already in force.
50. The representative of Venezuela thanked the Secretariat for the Compilation and the
United States, Switzerland, India and Canada for th eir submissions.  These proposals were aimed at
ensuring that the negotiations could start right after the initial phase of study and assessment was
completed.  Venezuela agreed with Hong Kong, China that delegations should start by examining the
                                                     
29 TN/TE/W/1.TN/TE/R/5
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MEAs contained in the Secretariat Matrix.  After reviewing the list, MEA by MEA, delegations
would be in a better position to say which of these agreements contained STOs.
51. The representative of Thailand thanked the Secretariat for the Compilation and the delegations for
their useful submissions, which would help Members progress in the discussions on the specifics of
paragraph 31(i), and noted its support for the approach by the United States and Canada to considerthe specific and tangible aspects of STOs.  Thailand was in the process of coordinating with relevant
national agencies, which acted as focal points for various MEAs, in order to have a coherent idea on
STOs.  Thailand agreed that the six MEAs suggested by the United States formed a good starting
point for the discussion on core MEAs, taking fully into account the three MEAs that had not entered
into force, namely the Stockholm Convention, the Rotterdam Convention, and the Biosafety Protocol.
Although Thailand had not been able to study the paper by India in detail, it shared its general thrust.
With regard to STOs, Thailand was of the view that the obligation de comportement  approach should
be adopted for the identification of STOs.  Furthermore, Thailand was of the view that STOs should
not give parties discretion in applying the trade measures under a particular MEA.  Therefore,
provisions such as Article 15.4 of the Rotterdam Convention, which allowed parties to employ stricter
import or export notification measures than those mentioned in the text of the convention, could
neither be considered specific, nor a form of obligation, and would therefore necessarily fall outsidethe scope of the mandate in paragraph 31(i).  Thailand felt that it was important to be strict in
identifying STOs, so as to avoid discussions steering towards consideration of measures which could
be implemented at parties' discretion, and which would fall outside the precise nature of the mandate.
Thailand did not think that the second category of trade measures identified by Switzerland, which
included measures necessary to achieve the objective of MEAs or the obligation de résultat , should be
considered as STOs, as it left some discretion to the MEA parties, while the mandate in paragraph
31(i) did not leave room for discretion.  Furthermore, the suggestion in the final paragraph of the
Swiss paper that explicit and mandatory trade obligations within MEAs should be deemed consistent
with WTO rules, was premature at this point.  Delegations had yet to find an agreement on the STOs
to be examined, and the WTO rules that applied to them.  Thailand reserved its right to commentagain on these papers at a later stage.
52. The representative of Norway
30 thanked the Secretariat, the United States, Canada, Switzerland
and India for their papers, which attempted to structure the discussion.  Such a structure was
necessary, since the CTESS had already spent a year discussing how to interpret the mandate.  This
could indicate that the mandate was not clear or explicit enough, or that it was so explicit that there
was nothing much to negotiate.  Norway reiterated its commitment to the Doha mandate and said it
would continue to participate as actively as possible in the negotiations under paragraph 31(i).Several Members had proposed definitions for various parts of the mandate.  Norway agreed with
Switzerland that the focus should be on the interpretation given by Members of the concept of STOs.
This was a logical approach in order to fulfil the mandate.
53. An STO needed to fulfil three criteria:  it needed to  be specific;  to relate to trade;  and to be an
obligation.  On the specificity criteria, the measures  to implement had to be explicitly provided for
and clearly identified in the agreement.  For illustrative purposes, Norway referred to Article III of
CITES, according to which the export of any specimen  of species included in Appendix I shall require
the prior grant and presentation of an export permit,  and the import of such specimen shall require the
prior grant and presentation of an import permit and either an export permit or a re-export certificate.
The provision further set out the conditions for granting the said permits.  This was obviously veryspecific.  In Norway's view, the specificity criter ion was not limited to provisions identifying only one
single measure.  It also applied to provisions which provided well-defined, alternative measures.  For
                                                     
30 The statement by Norway was circulated at its request in document TN/TE/W/25, "Contribution by
Norway based on its Intervention at the Special Session of the Committee on Trade and Environment of
12-13 February 2003", Paragraph 31(i), 20 February 2003.TN/TE/R/5
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instance, Article 10 of the Rotterdam Convention set out alternative responses to the secretariat
concerning the future import of the chemical concerned.  On the other hand, provisions which allowed
parties to adopt stricter domestic measures without identifying these measures, or measures adopted
by parties to fulfil an objective of the MEA, did not fulfil the specificity criterion and fell outside the
scope of the mandate.  On the trade criterion, the measure had to relate to imports and exports, inter
alia, it should cover those measures that were recogn ized in a WTO context, i.e. packaging, labeling,
notification, prior informed consent measures, etc.  Examples included the export prohibition of
Article 4.1.b) and c) of the Basel Convention, and the export and import license requirements in
Articles III and IV of CITES.  The obligation criterion clearly included all mandatory provisions in
the agreements.  It also covered the cases where the parties were required to implement at least one of
several well-defined measures provided for in the agreement, while other provisions or requirements
of the said agreement might provide further guidance  as to the criteria to be applied.  For example,
Article 10 of the Biosafety Protocol on "Decision proc edure" set out the different options for the party
of import, while making it clear that decisions by the party of import should be taken in accordance
with Article 15 of the Protocol, relating to risk assessment.  Therefore, an STO would have to first be
specific, i.e. that measures to be implemented were explicitly provided for and clearly identified in the
agreement, including well-defined alternative measures.  Secondly, an STO would have to be trade-related, i.e. that measures related to export and import were recognized in a WTO context.  Finally, an
STO would have to be obligatory, i.e. the provision, or the combination of provisions which, taken
together, constituted an STO, were mandatory.
54. Norway recalled that the Doha mandate was limited to the applicability of WTO rules "as among
parties to the MEA in question".  Therefore, if an agreement allowed parties to make reservations withregard to certain provisions of the agreement, this  party would be treated as a non-party with respect
to that provision.  With regard to process, Norway noted that it was difficult to draw a line between
MEA provisions that contained obvious STOs, and those that fell outside the scope of the mandate.
There was a "grey area" of provisions that some Members considered as STOs, while others
disagreed.  As pointed out by Peru, it was important to develop some sort of a definition rather thangoing through the various trade measures one after the other to decide whether they should be
considered as STOs.  The mandate of negotiations did not cover the relationship between MEAs and
WTO rules as such.  MEAs included different measures, some of which could be defined as trade
measures, or have trade implications.  However, these measures were not necessarily covered by the
mandate.  Consequently, the negotiations should  not have any bearing on how a panel would deal
with a conflict arising from the application of a measure pursuant to an MEA which did not contain
any STOs.  The mandate stated that the negotiations should not add to, nor diminish the rights andobligations of Members under the existing WTO Agreements.  In Norway's view, this would imply,
inter alia , that the negotiations could not limit the right of any Member to take to a panel what it
perceived as a breach of WTO rules, regardless of whether the measure was applied pursuant to, or
outside of, the scope of an MEA.  Also, the negotiations should not have any bearing on measures
taken pursuant to an MEA, on the grounds that the measure was not an STO.
55. On the question of the "value added" character of the negotiations, Norway agreed with
Switzerland that the exercise was not to analyse the consistency of MEAs with WTO rules.  Given the
limitations of the mandate, the negotiations should reaffirm the principles of mutual supportiveness
and no hierarchy between relevant WTO rules and STOs.  Also, the aim should be to prevent any
conflict in the WTO between parties to an MEA with regard to an STO.  The process would alsohopefully increase the awareness of objectives, provisions and measures of both MEAs and WTO
agreements in the different fora.  This would cont ribute to national coherence in the negotiations of
both sets of agreements and, implicitly, reduce the potential of conflicts between them, as underlined
by the United States.  Norway noted the proposal by the United States that the CTESS discuss
information provided by individual delegations on their experiences with respect to the negotiation of
STOs in light of WTO rules.  While Norway recognized the merits of this exercise in the context of anTN/TE/R/5
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MEA and between parties to that MEA, it questioned its relevance in the context of the negotiations in
the WTO.
56. The representative of Argentina thanked the Secretariat for the Compilation, as well as the
United States, Switzerland, Canada and India for their submissions, which raised a number of
interesting questions.  While Argentina had not had time to analyse in depth the new contributions, itwished to make some comments of a more general nature.  Argentina agreed with the
characterizations made by the United States and I ndia with regard to STOs, namely with respect to
their imperative, and non-discretional character.  In Argentina's view, the concept of STOs did not
extend to an obligation de  résultat , as suggested in the Swiss submission.  With regard to the example
of the Kyoto Protocol used by Switzerland, Arge ntina recalled that the Secretariat of the
Kyoto Protocol itself had pointed out at the MEA Information Session in November 2002 that this
agreement did not actually contain commercial measur es.  In its submission, Canada had provided a
list of situations that were worthy of analysis, and had made the point that an STO could derive from a
combination of different provisions.  While the concept of STO probably did not cover all of these
situations, Argentina was nonetheless ready to analyse such situations more in depth.
57. Argentina noted that Canada and India had also raised the question of COP decisions.  In
Argentina's view, that there were three categories of instruments that could be generated by the COP,namely decisions, recommendations, and resolutions, and each of these instruments should be
considered in the analysis of STOs.  However, it seemed difficult to derive from a resolution or
recommendation the imperative character that was required for a measure to be considered as an STO.
In its paper, Canada had looked at the question of amendments.  When an amendment had been
approved by the various parties and was in force, it then became part of the agreement.  Therefore,this issue had to be considered on a case-by-case basis.  In Argentina's view, an amendment should be
part and parcel of the agreement in order to be considered as an STO.  The issue of STO also raised a
number of related matters which required clarification, such as the meaning of the word "specific".
Members should be careful not to dilute the question in such a way that it would be difficult to reach a
consensus on the meaning of STO.  The concept of party/non-party also required clarification.  ForArgentina, a state must have signed and ratified the MEA, in order to be considered as a party.
58. With regard to implementation of STOs, Argentina noted that if STOs were considered as being
imperative, their implementation would take the form of a legislation which established the same
obligation or prohibition as contained in the MEA.  The point raised by Chile was highly relevant, i.e.
that there could be STOs that could give rise to certain alternatives when dealing with trade measures.
However, such a situation could give rise to a margin of discretion that would water down the actual
character of the STO.
59. With regard to the concept of entry into force, Canada had made the point that some MEAs not
yet in force should be considered in the analysis at th is stage, as they were expected to enter into force
in the course of the following year.  In Argentina' s view, the concept of entry into force was just as
much related to the MEA as it was to the obligation.  In other words, an obligation existed only when
the MEA was in force.  This was a question of principle, but it also had practical implications in thecontext of the discussions.  Argentina agreed with the United States on the usefulness of sharing
experiences on the implementation of STOs in the context of the negotiations in the CTESS.
However, Argentina asked how this would be possible with regard to the three MEAs identified by
the United States that were not yet in force.  Furthermore, Argentina did not see the merit of
discussing in the CTESS the experience of Members in the negotiation of MEAs.  Finally, Argentinasupported the proposal to invite, on an ad hoc basis, the MEA secretariats, as long as these MEAs
were under the auspices of the United Nations and were already in force.
60. The representative of the Philippines thanked the Secretariat for its Compilation, which was
evidence that the CTESS had come a long way in terms of substance and process in its discussions.TN/TE/R/5
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The European Communities had referred to the co ncept of "value added" for the negotiations.
The Philippines asked what the European Communities meant by this, and how such a concept would
fit into the discussions, given that the mandate stated that the negotiations were conducted "without
prejudging the outcome".  The Philippines welcom ed the new submissions by the United States,
Canada, India and Switzerland, which focused on ST Os in relevant MEAs.  While his delegation
would have preferred to start discussions on the basis of a set of acceptable criteria for the
determination or identification of STOs, the submissions by the United States and India proposed to
proceed on an example basis, and kept away from theoretical discussions that could delay the process
and lead to greater confusion.  A number of delegations had provided examples of STOs in MEAs,
without defining the concepts.  The CTESS was still in a learning process, and one could not prejudge
at this stage how the CTESS would agree on a set of  acceptable STOs.  The Philippines hoped that the
CTESS could establish, without preconditions, a set of  STOs which could then be put in parallel with
existing WTO rules, with a view to fulfil the mandate.
61. The Philippines recalled that the United States' paper noted that the determination of STOs should
be based on experience in the negotiation and implementation of MEAs, as there appeared to be a
variety of STOs in terms of their form and content.  The Philippines also considered other elements to
be relevant in this respect.  First, the MEAs considered for the purpose of identifying STOs should betruly multilateral.  This would therefore exclude regional agreements.  Second, the MEA provisions
should be explicit, clearly obligatory, or require parties to either adopt, or refrain from adopting a
particular action, and this action should be specific.  Third, as treaty obligations, STOs should not be
overridden by national or sub-regional jurisdictions.  Finally, the Philippines did not agree with the
second category of STOs identified by Switzerland in its paper.  In terms of process, the United Stateshad made suggestions with regard to the way fo rward such as that Members submit their views on
possible STOs, without prejudice to their final characterization and with a view to establishing a
consensus list of STOs.  This analysis had been conducted already by some delegations, and the same
six MEAs were referred to in most cases.  Among these six MEAs, three were not yet in force.  While
the Philippines had some hesitation about including these MEAs in the exercise, it noted that tradeofficials from various WTO Member countries had made significant inputs in the negotiations of
these MEAs, which might provide useful examples in the context of the discussions.  However, it
raised the question as to how an obligation contained in an MEA that was not yet in force could be
specific enough to qualify as an STO.  In its submission, the United States suggested that delegations
share their experience in the negotiation and implementation of STOs.  Such an exercise would
require the input of MEA secretariats, and the Philippines supported the proposal to invite them on an
ad hoc, meeting-by-meeting, basis.  After completing these phases of work, the CTESS would thenhave to look at the relationship between these STOs and existing WTO rules, and move to a more
analytical phase with regard to conflict of laws and the relationship between STOs in MEAs and
WTO rules.  The substantive issues underlying this process had been clearly laid out, and the
Philippines hoped that in the following months, the CTESS would achieve reasonable outcomes in the
negotiations.
62. The representative of Japan thanked the Secretariat for providing the document, which it found
useful for further discussions and work.  Japan also thanked the United States, Switzerland, Canada
and India for their new contributions.  At the CT ESS meeting in October 2002, Japan had presented a
proposal including the concept of a "top-down" approach to guide the work in defining the
relationship between existing WTO rules and STOs set out in MEAs.  Although there was noconvergence of views among Members on this approach, Japan was still convinced that this
"top-down" approach would be beneficial for all Members in providing a common understanding of
the relationship between existing WTO rules and STOs in MEAs, and, as a result, improve the legal
stability and bring forward prospects concerning WTO rule adjustment.
63. The four new contributions pointed out the importance of careful analytical work on trade-related
provisions in various MEAs, as well as the importance of addressing conceptual questions in parallelTN/TE/R/5
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to this work.  Japan concurred with many of the questions raised by Canada in its paper, for instance
with regard to COP decisions, MEA amendments, a nd the discretionary element relating to a trade
measure pursuant to an MEA.  Japan had encountered most of these questions when preparing its own
submission.  As pointed out by the European Comm unities, the concept of discretion with regard to
the application of a trade measure needed to be carefully considered.  This was further emphasized bythe fact that some delegations had taken different positions in their analysis of STOs, for example
with regard to Article 4.2(e) of the Basel Convention.
64. Japan appreciated the analysis by India of the nature of COP decisions.  The Indian paper also
contained a useful proposal on the necessity to study further the meaning of " obligation de résultat ".
Japan noted that India had referred in its paper to an earlier submission by Japan.  With regard to
Article 9 of the Basel Convention, India suggested that the article should be looked at in its entirety.
Japan had categorized Article 9 of the Basel Convention as an STO.  This was an example of howdelegations' views could differ in the analysis of STOs.  With regard to the United States' paper, Japan
agreed that domestic coordination between environment and trade officials was essential.  Moreover,
Japan was also of the view that discussions on paragraph 31(ii) would benefit to the discussions on
paragraph 31(i).  Japan agreed to include in the analysis MEAs that were not yet in force.  The new
papers showed the importance of careful analytical work on the trade-related provisions of variousMEAs.  However, in undertaking this analytical work, Japan agreed with Canada that other questions
needed to be answered as well, in order to reach a common understanding on the relationship between
STOs set out in the MEAs and relevant WTO rules.
65. The representative of New Zealand thanked the delegations that had presented new papers, and
wished to make some preliminary comments in partic ular on the submissions by the United States and
Canada.  With regard to process, New Zealand was in favour of starting with the major MEAs in
which STOs could be readily identified.  In this connection, the six MEAs put forward by the
United States, Canada and India seemed to prov ide a good starting-point, although this would not
prevent delegations from identifying STOs in other MEAs at a future stage.  New Zealand recognized
the value of having an exchange of views between Members on what they considered to be STOs.  Atthe same time, the types of definitional issues identified by Canada in its paper should also be
considered.  In this way, Members could start to develop a common understanding of the term STOs.
Following the discussions at the Informal CTESS meeting in November 2002, New Zealand had
started to engage in the process of identifying STOs in MEAs.  One of the issues that had come up in
this exercise was how to define an "STO".  For the purpose of its own preliminary analysis,
New Zealand had started with the first category iden tified by the European Communities in its earlier
paper, namely, "mandatory trade measures explicitly provided for under an MEA".  This had resultedin a fairly narrow range of measures that could be considered STOs, and had highlighted questions
about whether the provisions that supported trade measures should also be included.  While the
European Communities' first category did not seem to provide for supporting measures to be included,
New Zealand tended to agree with the United States, Canada and Korea that perhaps they should fall
within the definition of an STO.  New Zealand also agreed with Canada and Korea that there could beinstances where a group of provisions, taken together, may constitute an STO, even though
individually, the provisions may not be considered as such.
66. Like Canada, New Zealand found itself asking important definitional questions.  For example, in
the Stockholm Convention, Article 6 (d)(iv) stated that "a Party shall take appropriate measures so
that waste is not transported across international boundaries without taking into account relevantinternational rules, standards and guidelines."  Th is seemed to be an instance where the measure was
mandatory and specific, and had implications for the management of trade.  Therefore, New Zealand
wondered whether such a measure should be included within the boundaries of the mandate.  As
Canada had rightly pointed out in its paper, there were also provisions that allowed some discretion to
Parties.  New Zealand had identified two types of discretion that could potentially be relevant:  firstly,where a trade measure was mandatory when a specific circumstance existed, but it was up to the partyTN/TE/R/5
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to assess whether those circumstances existed, such as in Article 9 of the Basel Convention;
secondly, where Parties were authorized to take specific trade measures to meet a mandatory
objective, but had a certain level of discretion as to whether or not to adopt such a measure.
67. New Zealand wondered about situations where an MEA had created a mechanism in order for
legally binding trade measures on parties to be elaborated by a particular body.  One example of thiswas CCAMLR, which itself contained no explicit trade measures and was not on the list of MEAs of
the United States or Canada.  Article VII established a Commission for the Conservation of Antarctic
Marine Living Resources, which could adopt conservation measures of various types.  Under
Article XXI, contracting parties were required to take measures to comply with these conservation
measures.  New Zealand wondered whether this type of situation equated to situations where, as some
Members had already indicated, a decision or amendment by a Conference of Parties altered a trade
measure in an MEA.  The United States and Canadian papers both touched upon a related issue withregard to the different nature of some of the oblig ations that might be identified as "STOs", which
could range from complete trade bans to simple notification requirements.  This illustrated that good
policy practice  required the selection of instruments and measures that were best suited to achieving
their particular objectives.  Within the multiplic ity of environmental issues and the resultant MEAs,
there was a wide range of different types and variations of trade measures.  This suggested that a "onesize fits all" solution may not be appropriate in this context.  These were all issues on which New
Zealand valued further discussion in the CTESS, and this would be an important step towards
building an analytical foundation for the work.  New Zealand was also interested in hearing from
Members their experience in the implementation of STOs.
68. The representative of Australia thanked Canada, the United States, Switzerland and India for
introducing their papers, and welcomed the Secretariat's Compilation.  As delegates were aware, at
previous CTESS meetings, Australia had argued that the best way to implement the mandate was
through a phased process.  The first phase in this process included the identification of STOs in
MEAs, and therefore Australia welcomed the discussion at this meeting.  Australia's approach
stemmed from a desire to examine the issue of th e relationship between STOs in MEAs and the WTO
rules framework in a practical manner, with a view to determining whether there really was an issue at
stake that needed to be addressed.  The issue of trade and environment was multifaceted and complex.
While the mandate in paragraph 31(i) was specifically about the relationship between STOs in MEAs
and WTO rules, Australia was also mindful of the broader issue of the effects of trade on the
environment, of which this discussion was a sub-set.  As the CTESS began to focus its work,
Australia wished to emphasize the important work that had already been done in the CTE and
elsewhere.  A key dividend from the Doha negotiations for the environment and for developmentwould come from enhancing trade opportunities through the opening of markets and reducing
subsidies.  These were key elements for sustainable development and for meeting environmental
objectives and were also, in Australia's view, the crux of the issues under discussion, including the
paragraph 31(i) mandate.
69. A number of delegations, including Australia, had indicated at the last meeting that a constructive
way ahead would be to examine a sub-set of MEAs listed in the Secretariat's Matrix, which appeared
to contain STOs.  This was not an attempt to prejudge the issues at stake, but was rather a constructive
attempt to engage in productive negotiations.  While there had been a good exchange on key issues
during 2002, Members needed to focus on the key operational elements of the mandate.  The best way
to do this was to start looking at specific examples of provisions in MEAs that were within the terms
of the mandate.  Some of the new submissions would be helpful in this work, particularly those by the
United States and India.  The paper by Canada also seemed to introduce a number of conceptual
questions, albeit with a practical focus which should help the discussion.  In this respect, the
United States and Indian papers continued the process started at the last meeting by Korea and
Chinese Taipei.  Australia welcomed the practical focus and attempts of these papers to identify coreSTOs, and looked forward to analysing these papers in more detail.TN/TE/R/5
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70. The United States and Indian papers seemed to identify differing scope of STOs in the MEAs they
had chosen to analyse.  This indicated that delegations would need to agree on a core set of STOs to
work on, as the United States' paper suggested in its section on the way forward.  Together, the papers
by the United States, Canada, and India were also useful in reminding Members that it would not be
an easy task to categorize STOs.  This was a complex issue, and the approaches of looking at specificexamples in MEAs taken by the United States and India, as well as Korea previously, was the most
sensible way to build up a better understanding on this issue.  Scope that included issues such as
notification of national focal points, and secondary obligations, such as notifying information,
appeared not to be STOs.  Discussions should focus at this stage on the very specific operational
elements of the mandate in paragraph 31(i).  The United States' interpretation in Section II of its paper
clearly outlined the limits of the negotiations.  Aust ralia also agreed with the comments in Section III
of the United States' paper that practical experience showed that the MEA/WTO relationship wasworking well.  MEA and WTO negotiators were well aware of the respective rules and jurisdictions in
their respective negotiations.  However, efforts to enhance policy coordination at the domestic level
was important, and this was also directly relevant to the paragraph 31(ii) mandate.
71. Australia had found the Secretariat's Compilation useful in reflecting delegations' positions on the
issues discussed, whether definitional, or process-related issues, and it hoped that the document couldbe updated as new submissions came forward.  As well as helping the discussions, the Secretariat's
Compilation had also showed how far outside the mandate some delegations continued to push the
discussions.  Unfortunately, that view had been reinforced by some of the comments made at the
meeting.  Some delegations attempted to prejudge the outcome of the negotiation, and seemed to
fundamentally misunderstand the mandate, by either confusing governmental trade measures withSTOs, or putting forward suggestions that would clearly alter the balance of rights and obligations of
current disciplines.  This confusion was apparent in the new Swiss paper, where the second category
of STOs captured neither the elements of specificity nor obligation.  As set out in paragraph 10 of the
United States' paper, it was unnecessary to debate conceptual ideas by themselves or in isolation from
the practical examination, which Australia believed should underpin the debate.  Delegations couldraise conceptual issues during the course of nego tiations, but basing them on practical examples and
experience was the only way to identify concrete problems.  In this context, Canada had addressed in
its paper some of the conceptual issues with a mo re practical focus.  Australia welcomed the more
focused, practical discussion, and was pleased to see that a number of delegations had come forward
with papers that followed a phased approach identifying possible STOs in MEAs.  Australia would
examine the papers put forward and respond in more detail at a later stage.  Australia also looked
forward to the participation of the demandeurs  in the discussion on the identification of STOs.  If the
need for a conceptual approach was identified, it could be taken at a future stage in the negotiations.
However, Australia remained concerned that such an approach would confuse the debate and create
an appearance that the mandate was unworkable.  Australia did not believe this was the case, and
would continue to work in good faith on the mandate given by Ministers.
72. The representative to Cuba thanked the delegations of Canada, Switzerland, India and the
United States for their submissions and the Secretariat for its document, which she considered was of
great importance for the further development of the issues under examination.  Regarding the
document of the United States, Cuba agreed that there was a need for coordination between experts in
the trade and in the environment sectors.  As pointed out by Brazil, such coordination was the
responsibility of each Member and for this purpose, capacity building should be enhanced.
73. Cuba observed that the paper by India drew from the criteria set out in a document on MEAs
presented by this delegation in 1996.  At the CTESS meeting in October 2002, Cuba had expressed its
support for such an initiative.  Cuba also welcomed the various criteria set out to identify STOs.  The
paper by India shared similarities with the paper by Argentina31, which Cuba supported.  Cuba also
                                                     
31 TN/TE/W/2.TN/TE/R/5
Page 25
agreed with the conclusions put forward by India with regard to the appropriate way to pursue work
within the framework of the mandate.  Cuba supporte d Canada with regard to the need to further
deepen the work undertaken with regard to COP decisions, and the various amendments to MEAs that
were already in force.  These two elements required  more in-depth discussions in the CTESS to gauge
the level of interest for the work carried out and for the final result of the negotiations.
74. The representative of Pakistan thanked the Secretariat for the Compilation, which gave
delegations a useful overview of the discussion in the CTESS.  He also thanked the delegations of
Switzerland, the United States, Canada and India for their papers, on which he wished to make some
preliminary remarks.  First, Pakistan agreed with India regarding the criteria for identifying relevant
MEAs.  Pakistan shared all the views expressed in this section of the paper, including the one that
only the MEAs in force were relevant to the mandate under paragraph 31.  Regarding STOs, Pakistan
agreed with the United States and India, that a trade measure which was both mandatory and specificin its entirety, and which required an MEA party to take or refrain from taking a particular action,
could be considered as an STO within the mandate of paragraph 31(i).  India illustrated by way of
examples in paragraph 8 ii), iii) and iv) of its paper, measures that did not constitute STOs within the
meaning of the mandate.  Pakistan fully endorsed these views.  Furthermore, Pakistan agreed with the
United States regarding the parameters set in paragraph 31(i), as well as its limitations.  Someinteresting suggestions had been made by delegations.  For instance, Malaysia had suggested to
identify STOs MEA by MEA;  Pakistan would be willing to look into such a process for the six
MEAs already identified in the papers submitted by the United States and Canada.  With regard to the
Swiss paper, Pakistan noted the use of the word "s olutions", which suggested that there was a problem
in the mutual supportiveness of both sets of international obligations.  Pakistan was not aware of anysuch problems.  In fact, it considered that the WTO/MEA relationship has been working well, and that
WTO rules had not interfered with trade obligations among MEA parties.
75. The representative of Kenya thanked the Secretariat for the Compilation, which was particularly
useful for small delegations.  He also thanked the United States, Switzerland, Canada and India for
their submissions.  While he had not had time to study them in detail, he wished to respond to some ofthe comments made by delegations when introducing these papers.  It was highlighted by some
delegations that STOs could take various forms.  Similarly, it had been stated by some that the
definition of MEAs could include regional agreements, provided their membership was open to all.  In
Kenya's view, the negotiations under paragraph 31(i) should be undertaken at a pace, or level, that
allowed developing countries to participate effectively, given their capacity and limitations.  That
being said, a clear definition of what constituted an MEA was needed.  Discussions on MEA trade
obligations should not take place before Members had agreed upon a common definition of MEAswhose trade measures could be covered by the mandate in paragraph 31(i).  Once the definition of an
MEA had been agreed upon, Members should then agree on what constituted an STO within the
meaning of paragraph 31(i).  The definition provided by the Indian paper on MEAs and STOs
provided valuable background information.  Kenya agreed with the elements identified therein as
regards the MEAs, such as the forum of negotiatio ns of the MEA, i.e. under the auspices of the
United Nations or its specialized agencies, such as UNEP.  It also agreed with the scope of
participation, which should be open for participation to all countries, and the geographical
representation on the accession process.  In that sense, the paper by India provided a good
starting-point on the definition of an MEA for the purpose of paragraph 31(i).
76. The representative of the United States said that the paper by Canada seemed complementary to
the United States' submission, as it suggested a number of questions that might be usefully addressed
in the consideration of individual agreements and their potential STOs.  The paper also made an
important point in terms of possible convergence between the concrete and the conceptual;  an
examination of the concrete would provide opportunities to address some of the conceptual issues in
terms of trying to derive common understandings.  With regard to the Indian paper, the United Statesnoted great similarities with its own paper.  The Indian matrix was useful in cross-checking theTN/TE/R/5
Page 26
United States Matrix, and should be helpful in terms of helping to refine the analysis on STOs in the
six MEAs identified by the United States.
77. The submission by Switzerland did not offer more specificity than its previous contributions on
the question of STOs and made reference to relevant MEAs, although it did so in a more general
nature rather than identifying specific provisions.  The second category of STOs seemed tocorrespond roughly to the second category in paragraph 8 of the Indian paper.  The United States
agreed with India's assessment that this category of measures did not constitute STOs.  The
United States thanked delegations for the comments on their paper and wished to respond to some of
the points made.  With respect to its second suggestion in paragraph 14 of its submission on the way
forward, the United States was not suggesting that there should be a consensus before the CTESS
could move forward on particular issues in the negotiations, nor was it suggesting to preclude
discussion on other MEAs or agreements that were listed in the Matrix.
78. With regard to the suggestion on the way forward, Argentina had raised a question concerning the
sharing of experience in the implementation of MEAs, given that some of the MEAs in the
United States list were not yet in force.  While the United States recognized that this could present
some difficulty, it was also aware of the fact that parties to these agreements had begun to anticipate
implementation.  Concerning the sharing of experi ences relating to the negotiation of MEAs, the
United States had had experience in recent MEA negotiations where trade officials had provided
insight and advice on WTO and trade-related issues.  This was an important element to keep in mind,
although it had been acknowledged in the course of the discussion that there were no cases where the
implementation of an MEA had been challenged in the WTO.  The trend was certainly a good one in
terms of trying to involve officials from both the trade and environment side in MEA negotiations,and similar efforts were being made with regard to environment officials in the context of the
discussions at the WTO.  In the context of the discussion on paragraph 31(i), the United States had
suggested to focus on six MEAs on which there might be consensus that they contained STOs.
Hong Kong, China had made a helpful suggestion to focus, among these six MEAs, on the three
MEAs that were already in force, namely CITES, the Montreal Protocol, and the Basel Convention.The United States could go along with this approach.  However, some delegations had indicated that
they would like to be able to discuss other agreements.  Therefore, at the next meeting, the agenda
should also accommodate discussion of other agreements.
79. The representative of Switzerland wished to make preliminary comments on the new
contributions.  Switzerland particularly welcomed the submission by Canada, which contained both a
factual and a conceptual approach.  These two approaches should be pursued in parallel.  The
submission by Canada raised a number of interes ting questions.  In particular, Switzerland agreed
with the question raised at the end of the docume nt as to whether measures in MEAs that gave
considerable latitude to the parties should be treated the same as measures which gave less latitude.
Regarding the United States submission and its su ggestions on the way forward, Switzerland would
find it difficult to accept to focus future discussions on STOs on which there seemed to be an apparent
consensus.  In fact, Switzerland asked what this apparent consensus meant.  With regard to the thirdsuggestion made by the United States on the way forward, Switzerland found it difficult to see the
usefulness of the exchange of information suggested by the United States in the context of the
negotiations.  Switzerland took note of the statement by India and said it required more time to
examine its submission.  However, at the outset, it seemed that Switzerland had different views on the
concept of STOs.
80. Switzerland thanked delegations for their comments on its paper and wished to respond to some
of the comments made.  Some of the statements related to the two categories of STOs, i.e. the first
category containing obligatory measures explicitly provided for in MEAs, and the second category
containing measures that were appropriate and necessary to achieve an MEA objective.  With regard
to the second category, Switzerland noted that if there was an obligation de résultat  in an MEA, theTN/TE/R/5
Page 27
measures taken to achieve that mandatory result would take on a certain mandatory force themselves.
Moreover, if the sphere where the measure had to be taken was specified, then the level of specificity
would be sufficient, even if the measure itself was not specifically mentioned.  Some delegations
seemed concerned that the second category of STOs identified by Switzerland would open the door to
other measures that would not be in conformity with  WTO rules.  However, in Switzerland's view, the
concrete implementation of a trade-related measure could still be challenged if a Member misused its
discretionary power contrary to WTO rules.  Several delegations had mentioned that there was no
conflict between STOs in MEAs and WTO rules, but it was precisely to avoid any potential future
conflict that Members should aim at greater clarity, and a reaffirmation of the principles of non-
hierarchy and mutual respect between the two systems.
81. The representative of Mexico said that she wished to make some preliminary comments and to
reserve the right to expand on them subsequently.  Mexico supported a clarification of the term
"STO".  As many delegations had already noted, an STO should contain a mandatory element, and be
explicitly stipulated in an MEA, so as to achieve a specific objective.  These components would
exclude discretionary measures.  In this regard, Mexico could not agree to include the second category
of measures proposed by Switzerland in its submission.  The proposals by India and the United States
were useful as they provided information as to whether MEAs might contain STOs.  With regard towhich MEAs should be considered, Mexico was flexible.  One way of continuing with the
identification of STOs would be the sequential approach proposed by Hong Kong, China, starting
perhaps with CITES, and with the participation of experts from its secretariat.
82. The representative of Canada wished to comment on new submissions and to respond to some of
the questions raised on the Canadian paper.  First, the United States' paper reiterated some points that
Canada had previously made, in particular on the need for enhanced domestic coordination between
trade and environmental officials.  The aim of this negotiation was to maintain the integrity and the
mutual supportiveness of both MEAs and the WTO.  The CTESS had made significant progress over
the last year in its understanding of how  MEAs operated, and how the WTO operated vis-à-vis  the
environmental world.  Canada would be studying in greater detail the categories of STOs in theUnited States' table and hoped it would find some point s of convergence.  Canada also hoped that the
United States paper left room for consideration of the grey areas.  In this respect, Members should try
to keep an open mind with regard to some of the definitional issues, so as not to leave out some
important trade measures.  With regard to the Swiss paper, Canada had questions concerning the
second category of STOs.  For instance, it wondered whether the appropriate necessary measures had
to appear in the text of the MEA, and also how the right to challenge the implementation of trade-
related measures would apply to both types of STOs.
83. Canada welcomed the paper by India and said it w ould review it in more detail.  As a preliminary
comment, Canada asked about the criteria for determining what was an MEA, and from a practical
point of view, how could one determine whether there had been effective participation of any group of
countries in the negotiations of an MEA.  In Canada's view, efforts had been made to achieve a more
effective participation in recent MEA negotiations.  With regard to the criteria put forward by Indiafor identifying an MEA, Canada would add the objective to preserve and protect the environment.
Canada thanked delegations for their comments on its paper.  It would continue to reflect on some of
the questions raised therein, in light of the commen ts made at the meeting.  With regard to the
question of amendments, Canada noted that the point it had previously made was not related to
situations where amendments were agreed by all, but rather where some countries had agreed to theamendment and others had not, thereby creating a different relationship between parties to the MEA.
84. The representative of India thanked the delegations who had commented on their paper despite its
late submission.  India was encouraged by the preliminary comments made by several delegations,
such as the United States, Brazil, Kenya, Pakistan, Cuba, the Philippines, Indonesia, Thailand, Mexico
and others.  It also appreciated the comment made by the European Communities concerning howTN/TE/R/5
Page 28
India was being too specific in its interpretation of the word "specific" in paragraph 31(i).  In
examining the relationship between STOs in MEAs  and WTO rules from a legal standpoint, India
wished to remain extremely specific, so that the relationship could be established in a clear,
transparent and predictable manner.
85. The representative of the European Communities wished to respond to the question raised by the
Philippines, and to make a comment on the Secretariat's paper.  With regard to the Philippines'
question concerning the potential added value of the negotiations, the European Communities noted
that in a general sense, interpreting the Doha mandate in good faith meant interpreting each paragraph
in such a way that the negotiations would lead to a positive outcome.  In this respect, the
European Communities agreed with the United States that the outcome of the mandate should be to
increase the attractiveness of using MEAs.  From a WTO perspective, it was in the interest of
Members to make it more attractive to use MEAs, and less necessary to use non-multilateral, orunilateral trade policy measures where a trade policy measure seemed necessary for environmental
purposes.  The conclusion drawn by the European Communities on this was that the outcome of the
negotiations should not make it more difficult for WTO Members to use a trade measure under an
MEA, than it would be under the cover of GATT Article XX;  for the European Communities, this
was an important test of value added.  On the Secretariat's Compilation, the European Communitiessupported the suggestion for a regular updating.  This should take into account not only the formal
submissions, but also the statements recorded in the minutes of the meetings.  On the issue of process,
the European Communities invited the Secretaria t to include in the Compilation the content of
paragraph 30 of its submission.  The European Communities shared the position of Switzerland on
premature narrowing of the scope of future meetings.
86. The delegations of Argentina, Australia
, Brazil , Norway , South Africa  and the United States , were
in favour of maintaining the current format of the Secretariat's Compilation, which reflected only
Members' written submissions to the CTESS.
87. The Chairperson  said that the first session dedicated to STOs had been a fruitful one, not only in
terms of the submission of documents, but also in  terms of the quality of the discussion, which had
enabled the CTESS to move forward in its unders tanding of the subject.  While there was no
agreement on the approaches to be adopted for the pu rpose of defining the term "STO", the discussion
so far had made it possible for Members to engage in an exchange of views.  The forthcoming
meetings would make it possible to move forward on these questions and consider other aspects raised
by Members with regard to STOs, such as party/non-party issues, and the different types of
obligations contained in MEAs.  The Secretar iat would prepare an update of the Compilation
document in light of the new submissions.
II. PARAGRAPH 31(II) – INFORMATION EXCHANGE AND CRITERIA FOR
OBSERVER STATUS
88. The Chairperson noted that the report on the MEA Information Session held on
12 November 2002 had been circulated in documen t TN/TE/R/4.  At this Information Session,
Members had engaged in an initial exchange of views with some MEA secretariats onparagraph 31(ii).  The seven MEA secretariats attending this session had made some concrete
proposals on information exchange, such as to formalize the MEA Information Sessions and hold
them on specific themes by grouping the MEAs that shared common interests.  Regarding observer
status, certain MEAs had recalled that the WTO Secretariat had taken part as an observer in some of
the main MEA meetings, including COP meetings, pointing at the lack of reciprocity on the part ofthe WTO on observer status.  The Chairperson drew Members' attention to the document entitled
"Observer Status" (TN/TE/S/4) prepared by the Secretariat following a request by the
European Communities.  This document contained factual information regarding observer status in
the various negotiating groups and WTO Committees, in particular concerning MEAs and UNEP.TN/TE/R/5
Page 29
89. The representative of the Czech Republic said that her delegation had appreciated the Information
Session with MEAs organized by UNEP on 11 November 2002, and acknowledged the leading role of
UNEP in enforcing environmental aspects in the process of policy formulation.  UNEP had taken on
an important role in terms of the objective of mutual supportiveness of trade and environment, by
organizing its meetings back-to-back with meetings of the CTE and CTESS.  The Czech Republicnoted that it was difficult for individual players to advance their views, especially when they differed
from case to case.  This influenced negatively the chances of reaching a consensus on a multilateral
basis, namely in the case of trade and environment, which was often regarded as a controversial issue.
The term "controversial" implied that there was a wide range of different positions of individual
countries or groups of countries in the context of the enforcement of environmental aspects when
making business on a multilateral basis.  The identification of disputable questions in the framework
of this multilateral debate was one of the most important tools to reach consensus.  The CzechRepublic hoped that the 22
nd Session of UNEP's Governing Council and the Global Ministerial
Environment Forum in Nairobi, which was attended by the Czech Minister of the Environment, would
contribute to further and closer cooperation wi th the WTO, and would assist Members in finding
mutually acceptable solutions to related problems, not only in the CTESS, but also in other WTO
negotiating bodies.
90. The granting of observer status in the CTESS to the MEA secretariats who were closely involved
in the work of the CTESS was a sensible way forward, and had already received broad support from
delegations at the last CTESS meeting in October 2002.  The Czech Republic supported the
participation of the five international organizations that had requested observer status in the CTESS.
Such participation could contribute to improvin g the mutual understanding of the relationship
between trade and environment, with a view to finding solutions in the case of any potential disputes.
In the meantime, the Czech Republic supported the proposal to invite, on an ad hoc basis, MEA
secretariats and UNEP to future meetings of the CTESS.  Members already had the experience of
collaborating with MEAs in the context of the MEA Information Sessions, which had been held in the
CTE since 1997.  The Czech Republic hoped that the issue of observer status in the TradeNegotiations Committee (TNC) and the General Counc il could be resolved in the near future.
91. The representative of Colombia said that her delegation agreed with the proposal by the
European Communities32 to grant observer status to the various MEAs who had requested it.  In the
Committees where requests were still pending, such an approach would help streamline the work.
Colombia shared the position of the European Commun ities with regard to the need to institutionalize
a procedure for the exchange of information, which could be complemented by the participation of the
WTO Secretariat in MEA meetings.  It also supported the proposal for the establishment of a databasewhich could contain both general information on the link between trade and environment and more
specific information.  Colombia also supported the view expressed by Brazil with regard to the need
for developing countries to secure funding for the pa rticipation of their officials, from both the trade
and environment side, to relevant meetings.
92. The representative of China said that his delegation was in favor of regular information exchange
between the WTO and MEA secretariats, for instance in the context of the MEA Information Session
held on 12 November 2002.  This could help deepen the mutual understanding between the WTO and
the MEAs, promote policy coherence and ensure the mutual supportiveness between MEAs and WTO
rules.  China also supported the proposals by the UNFCCC that all relevant WTO bodies, and not just
the CTE, be encouraged to engage in information exchange sessions with MEAs.  However, thequestion of the institutionalization of the informat ion exchange needed to be further considered.
Given the political sensitivity and the complexity of the issue of observer status, the criteria for the
granting of observer status would be subject to further discussions in the TNC and the General
                                                     
32 TN/TE/W/15, "MEAs: Information Exchange and Observer Status", Submission by the
European Communities, Paragraph 31(ii), 17 October 2002.TN/TE/R/5
Page 30
Council, with a view to reaching a decision on this horizontal matter.  The CTESS could make its
contribution in due time when the TNC and the Gene ral Council would seek it s views with regard to
the work of the CTESS.
93. The representative of Brazil said that her delegation attached great importance to this part of the
mandate, as a more structured and regular exchange of information between MEA secretariats, UNEP
and the WTO Secretariat would greatly enhance the synergies between the environment and trade
agendas.  The negotiations under paragraph 31(i) would benefit from useful and creative ideas that
could improve the dialogue and cooperation between the two secretariats.  A better and mutual
understanding between the two legal systems could contribute to avoiding any future conflict and
improving discussion on the consistency between ST Os pursuant to MEAs and WTO rules.  In this
regard, the CTE Special Session could agree on an  ad hoc solution to the question of observership.
Some MEAs could be invited to participate in CTESS meetings, particularly those to which theycould provide useful information regarding the experience of their parties on implementation, and also
regarding the legal nature of COP decisions.  Brazil recalled the need to improve capacity building for
negotiators from developing countries, from both the trade and environment areas.  Finally, Brazil
noted that any decision to be taken by the CTESS on the question of MEA observership could serve
as leverage to similar positive solutions in other WTO bodies, such as the TRIPS Council.
94. The representative of Switzerland thanked the European Communities for its earlier submission
on information exchange and observer status, which contained concrete proposals for the resolution of
these matters.  Switzerland supported most of these proposals.  The Secretariat document also
provided a useful overview of the way in which other WTO bodies had dealt with observer status.
Concerning procedures for the exchange of information between MEA secretariats and the relevantWTO Committees, Switzerland noted that the institutionalization of these exchanges was necessary to
ensure their effectiveness as an instrument for information.  These sessions should take place on a
regular basis and focus on specific themes.  Switzerland agreed with the European Communities that
the organization of regional seminars would be a useful complement to the formal sessions held in
Geneva.  With regard to observer status, Switzerland noted that this issue represented a key element inthe transparency and credibility of WTO's work.  Switzerland realized that this matter was under
consideration in the General Council and in the TNC as a cross-cutting matter.  However, the
Doha Declaration contained a clear and specific mandate to deal with this issue in the CTESS.  In
fact, many arguments in favor of the participation of MEA secretariats in the discussions of the
CTESS had already been put forward.  From the point  of view of the negotiations, the contribution of
MEA secretariats was essential in the context of the discussion under paragraph 31(i) with regard to
the clarification, if necessary, of various elem ents of the agreements under discussion.  The
participation of MEA secretariats in meetings of the CTESS would also increase their own knowledge
of the discussions in the WTO.  From a broader perspective, the participation of MEA secretariats as
observers would contribute to improve the consistency in the work of the various international
organizations, as well as within national administrations.
95. The representative of the European Communities  thanked the delegations of Switzerland and
Colombia for their comments on its submission, and noted that the credibility test for the mandate on
observer status would be for the CTESS to agree to invite, on an ad hoc basis, MEA secretariats and
UNEP to its next meeting.  The European Communities shared the view expressed by some
delegations, including Brazil, on the importance of capacity building for developing countries'
officials.  This issue should be raised in the context of the work program of the CTE in RegularSession, but also in the context of the CTESS as regards to the negotiations.
96. The representative of Malaysia wished to elaborate further on some of the issues raised by her
delegation at the last meeting in October 2002, with regard to the mandate, the nature of information
exchange, and the procedures for information exchan ge.  First, with regard to the mandate, Malaysia
noted the synergy with the mandate in paragraph 31(i), which sought to examine the MEA/WTOTN/TE/R/5
Page 31
relationship at the level of rules, whereas the mandate in paragraph 31(ii) sought to build on this
cooperation at the multilateral institutional level.  The mandate also raised certain questions, such as:
which MEAs should be involved in the informati on exchange, and whether there was a need for all of
them to be involved;  which would be the relevant WTO Committees;  and whether the definition of
criteria for observer status would help determine the MEA secretariats that would be involved in theinformation exchange.  On the issue of the releva nt WTO Committees, there may be a need to identify
which Committees would be involved in the information exchange, as they would come under the
procedures that the CTESS would agree upon.  Second, with regard to the nature and the type of
information exchanged, most of the information would be contained in WTO documents, including
working papers, minutes of meetings and position papers.  In this respect, Malaysia also noted that the
recent policy on de-restriction of WTO documents had made WTO documents more accessible, and
had contributed to ensuring that information exchange between the WTO and MEA secretariats wouldbe well managed.  Third, with regard to the procedures for information exchange, the submissions by
the European Communities and the United States mentioned several forms that information exchange
could take, such as document exchange, information sessions, and observer status.  The exchange of
documents was a relatively straightforward process, with documents being made available at the
meetings, and being accessible on the WTO website.  Concerning the proposal for regular andinstitutionalized information sessions, Malaysia was still reflecting on the need for the CTESS to
commit to a more formal procedure, where circumstances may not permit for a fixed number of
sessions to be held.  There could also be room for informal discussions between WTO Members and
MEA secretariats on developments of interest to Members.  The CTESS could list the different forms
of procedures for regular exchange of information th at Members were interested in, rather than trying
to agree on a particular structure.
97. On observer status, Malaysia agreed with China that observer status may cease to be an issue once
it would be resolved at the level of the TNC or the General Council.  The mandate in paragraph 31(ii),
which related to criteria for the granting of observer status, had to be differentiated from the proposal
to invite certain MEAs and UNEP on an ad hoc basis to meetings of the CTESS.  Malaysia wished tocomment on the criteria for observership as per the mandate, on the basis of the proposals by the
United States and the European Communities.  The United States had mentioned the criteria of direct
interest in WTO Committees, based on defined indicators.  Malaysia agreed with the fact that some
indicators were necessary, but considered that requests should still be considered on a case-by-case
basis.  In its paper, the European Communities suggested that all "core" MEAs which had participated
in previous information sessions should be granted observer status.  In Malaysia's view, granting
observer status automatically to some MEAs woul d nullify the exercise undertaken in the CTESS,
which was to determine which MEA secretariats should qualify for observer status.  Other factors,
such as time and space constraints, may also be relevant to the criteria for granting observer status.
98. The representative of Poland said that this issue was an important one for her delegation.  Poland
supported the suggestion to invite, on an ad hoc basis, the representatives of MEAs and UNEP to the
CTESS, until a final solution was reached on the issue of observer status.  Such a solution wasparticularly important in light of developments on paragraph 31(i), so as to avoid misunderstandings
on the interpretation of MEA provisions.
99. The representative of Egypt asked for clarification with regard to the mandate in paragraph 31(ii)
on observer status, which referred specifically to criteria for the granting of observer status.  This
seemed to be different from the understanding of the mandate reflected in the submissions by theEuropean Communities and the United States, which focused on the MEAs that should be granted
observer status.
100. The representative of Indonesia expressed his delegation's appreciation for the continuing
cooperation between the CTESS and the MEA secretaria ts, as seen at the last Information Session in
November 2002.  The MEA Information Sessions he ld in the CTE since 1997 had been useful.TN/TE/R/5
Page 32
Information exchange was important to ensure coherence in the work of the WTO and MEAs.
Paragraph 31(ii) of the Doha Declaration instructed Members to negotiate on procedures for regular
information exchange between MEA secretariats and relevant WTO Committees.  Such procedures
should be negotiated with a view to ensuring that the aim of information exchange was to provide
opportunities to WTO Members to gather information and increase their knowledge of the impact oftrade and development on the environment, from the perspective of MEAs.  This would enable closer
cooperation and collaboration between MEAs and th e WTO, and would contribute positively to the
work of the WTO and MEAs.  In order to enhan ce the benefits from the perspective of MEAs and
WTO Members, efforts should be made to increase the focus of future information exchange, for
instance by discussing specific issues, and the selection of MEAs to attend the information sessions
may depend on the issues discussed.  In this regard, the next information session with MEA
secretariats should focus on trade in illegally harvested wood, as suggested in the Report by theChairperson to the TNC in December 2002.
33  This would contribute to greater understanding and
cooperation between MEAs and the WTO, and to the mutual supportiveness of trade measures in
MEAs and WTO rules.  On the issue of criteria for observer status, Indonesia supported the views
expressed by Malaysia and China, that the issue should be discussed at the TNC and General Council
level.
101. The representative of the European Communities said that paragraphs 20 and 21 of their
submission referred to criteria for the granting of observer status, and included some elements related
to the identification of the MEAs to which observer status should be granted.
102. The representative of Cuba wished to expand on the preliminary comments made on the
European Communities' submission at the October 2002 meeting.  Cuba noted that the
European Communities' paper went beyond the present practice of information exchange that already
existed between the MEAs and the WTO.  The Doha  mandate called for negotiations on procedures
for the regular exchange of information.  This manda te should not be interpreted with the purpose of
officially institutionalizing the information exchange in regular meetings, nor should it create a new
structure for the WTO's work.  Although there was coordination in the exchange of information, the
mandate should not be interpreted as altering the present status of the participation of international
bodies in the WTO.  Paragraph 16 of the European Communities' paper stated that given the Doha
mandate "to elaborate criteria for the granting of observer status to MEA secretariats in relevant WTO
Committees, it is explicit that MEA secretariats should be considered prima facie  differently from
other IGOs".  Cuba did not share this interpretation, since the Doha mandate indicated that Members
agreed to negotiations "without prejudging their outcome".  Cuba noted that the issue should be
decided by the TNC and by the General Council.
103. On the European Communities' proposal that a group of MEAs be granted observer status,
Cuba recalled that the mandate was about criteria for the granting of observer status, and not about the
MEAs that should be granted observer status.  The issue of which WTO body should be covered by
these criteria should be considered first.  At the same time, Cuba was concerned, from a systemic
point of view, with the proposal by the European Communities that there should be a strongpresumption in favor of a prompt decision to grant observer status, and considered that this would be
providing a different treatment for MEAs to obtain observer status.  With respect to the Secretariat
Note on observer status, Cuba noted that in paragraph 1, it was recognized that the TNC was
established by Ministers at Doha to supervise the overall conduct of the negotiations and to establish
appropriate negotiating mechanisms.  In the same way, in paragraph 4, it was indicated that under theguidelines on observer status contained in Annex 3 of the Rules of procedure for meetings of the
General Council, which applied, mutatis mutandis , to the TNC and to the bodies established by it,
each negotiating body may take a decision, as appropriate, regarding arrangements for observer status
                                                     
33 TN/TE/3, "Report by the Chairperson of the Special Session of the Committee on Trade and
Environment to the Trade Negotiations Committee", 2 December 2002.TN/TE/R/5
Page 33
for international intergovernmental organizations.  Cuba considered that the prerogative of each body
to decide on granting the status of observer should not be interpreted as meaning that they were
offered freedom to decide as to the criteria for the granting of observer status, because of the systemic
implications mentioned by Cuba.  Only the body th at supervised the negotiations could work on this
matter.  In conclusion, Cuba noted its support for the statements by China and Malaysia.
104. The representative of Venezuela said that his delegation supported the point made by Brazil
and Colombia with regard to financing for the attendance of trade and environment officials from
developing countries to relevant meetings.  Venezuela asked the Secretariat how such a request could
be taken into account, and whether it could inform UNEP of the concerns of developing countries in
this respect.  Venezuela recalled that it attached  great importance to the issues of poverty and
sustainable development.  It had been recognized that one of the main sources of environmental
degradation was poverty, and therefore this issue had to be addressed as a matter of priority.  TheWorld Summit on Sustainable Development had also emphasized the need to take action to ensure the
mutual supportiveness between the multilateral trad ing system and the MEAs.  Venezuela noted that a
main focus of the negotiations should be to avoid environmental degradation, and not merely to open
up greater areas for trade.  It was in this pers pective that information exchange with MEAs and
observer status should be considered.
105. The Secretariat informed the CTESS that since 1998, the WTO had funded the participation
of officials from developing countries in Regi onal Seminars on Trade and Environment organized in
various regions and in all WTO official languages.  In 2002, seven regional seminars had been held,
and five had been scheduled in 2003.  These seminars had been attended by officials from both trade
and environment ministries of the participating countries.  Moreover, the Secretariat had beencoordinating with UNCTAD and UNEP to schedule meetings of the CTE and CTESS back-to-back
with other meetings related to trade and environment.  This had made it possible for delegates from
Capitals, who otherwise could not have done so, to attend meetings in the WTO.
106. The representative of Canada said that his delegation supported the proposals to
institutionalize the information exchange process which had developed over the last years.  This
informal process had worked well, and a more formal structure would be useful.  At the MEA
Information Session in November 2002, MEA secretariats had also supported such a structure.
Canada agreed with other delegations on the value of focusing on specific issues in the context of
these exchanges.  With regard to paragraph 31(ii), Members should discuss whether there was a need
to identify which WTO Committees, apart from the CTE, were most relevant to MEAs.  Canada noted
that the requests for observer status in some of the Committees, as listed in document TN/TE/S/4,
provided some indication of interest in particular  WTO bodies.  Accredited observers to WTO bodies
benefited from the information they obtained from attending meetings and, in turn, the WTO
Committees benefited from the information observers were able to provide.  Improving the
information flow between MEA secretariats and relevant WTO Committees could be as simple as
granting observer status to MEA secretariats for some Committees.  Agreeing on criteria for granting
observer status was an important element in the mandate under paragraph 31 (ii).  However, inCanada's view, there was no direct link between developing these criteria, and the more generic issue
of observer status of international organizations, which was considered in the General Council.
107. The representative of the Philippines said that the mandate in paragraph 31(ii) implied that the
CTESS had to consider issues relevant to the work in other WTO fora, such as the TRIPS Council, the
SPS Committee, the TBT Committee, the Committee on Trade and Development, the Committee onAgriculture and the CTE in Regular Session.  This required a collective assessment of the conditions
in these various bodies, and should be done without prejudging the outcome of the negotiations, as
indicated in the Doha Declaration.  With regard to procedures for regular exchange of information, the
Philippines did not agree with the suggestion by the European Communities to institutionalize, or give
a formal structure, to existing forms of inform ation exchange with MEA secretariats.  Moreover,TN/TE/R/5
Page 34
information sessions should continue to be of gene ral interest, rather than focusing on specific issues.
With regard to observer status, the Philippines did not share the European Communities' position that
certain MEAs should be automatically granted observer status.  However, it supported the suggestion
of inviting a number of MEA secretariats on an ad hoc basis to CTESS meetings.
108. The representative of Japan thanked the United States and the European Communities for
their contributions.  Japan was of the view that information exchange contributed in a substantial way
to improving the mutual supportiveness between the WTO and MEAs, and to further promote the
legal stability and predictability of trade-related measures contained in MEAs.  In this context, Japan
welcomed the fact that the issue of information exchange was gaining support.  The United States had
underlined in its submission the importance of ex change of views between trade and environment
officials.  While Japan agreed that this was an important element, it believed that this category of
information exchange should be left to the effort s of individual governments.  Within the mandate of
the CTESS, the discussions should be focused on a well-organized framework for the exchange of
information between the WTO and MEA secretariats.  As noted in the
European Communities' submission, the issue of information exchange should cover the capacity
building activities of the respective MEAs.  Therefore, information exchange should not be limited to
paragraph 31(ii) of the Doha Declaration, but should also relate to paragraphs 32 and 33.  On observerstatus, Japan supported the suggestion to invite MEAs on an ad hoc basis to CTESS meetings, as a
short-term solution.  The relevant matters covered by MEAs could serve as an indication when
developing criteria for the granting of observer status.  The discussion on observer status in the
CTESS was without prejudice to the consideration of this issue in the General Council and the TNC,
and would have to refer to the result of the discussions in those two bodies.
109. The Chairperson said that although delegations recognized the usefulness of an exchange of
information with MEAs, both from the point of view of the WTO and the MEAs, there was no
consensus on the actual mandate under paragraph 31(ii).  For instance, divergent views had been
expressed on the need to institutionalize existing forms of information exchange between the WTO
and MEA secretariats.  Moreover, the link between the mandate and the systemic issue of observerstatus in the TNC and the General Council had been raised by a number of delegations.  These matters
required further consideration.
III. PARAGRAPH 31(III) – ENVIRONMENTAL GOODS AND SERVICES
110. The Chairperson noted that the CTESS had received new contributions from Japan
34 and from
Qatar35 under this agenda item, and that the Secretariat had also circulated the APEC and OECD lists
of environmental goods.36
111. The representative of Japan said that his delegation had submitted in November 2002 a
proposal concerning market access for non-agricultural products, which included a list of
environmental goods.  This document, which had been circulated initially in the Negotiating Group on
Market Access, had also been distributed in the CTESS.  Japan noted that environmental protection
was of great importance to all Members, and that trade in environmental goods, which contributed to
environmental protection, should be further promoted.  For this purpose, tariffs for environmentalgoods should be further reduced or, as appropriate, eliminated.  While preparing its submission, Japan
                                                     
34 TN/TE/W/17, "Market Access for Non-Agricultural Products", Communication by Japan,
20 November 2002;  and TN/TE/W/17/Corr.1.
35 TN/TE/W/19, "Negotiations on Environmental Goods:  Efficient, Lower-Carbon and
Pollutant-Emitting Fuels and Technologies", Submission by the State of Qatar, Paragraph 31(iii),28 January 2003;  and TN/TE/W/19/Corr.1.
36 TN/TE/W/18, "List of Environmental Goods", Note by the Secretariat, Paragraph 31(iii),
22 November 2002.TN/TE/R/5
Page 35
had scrutinized the research paper on environmen tal goods prepared by the OECD Joint Working
Group on Trade and Environment in 2000, which explai ned the product coverage of environmental
goods and the policy behind it.  Japan's proposal was based on the product groups of this OECD
research paper.  It referred to "Pollution Mana gement", "Cleaner/Resource Efficient Technology and
Products" and "Resource Management" as product groups reflecting the recent discussions onenvironmental issues, including the prevention of global warming and recycling.
112. Regarding the issue of definition of environmental goods, Japan had identified three different
options.  First, the OECD definition could be used as  a basis.  Second, the APEC list of environmental
goods could be used as a basis.  Third, the CTESS or the Negotiating Group on Market Access could
discuss its own definition of environmental goods, before considering product coverage.  Japan was
concerned that the last option would take consider able time, and would make it difficult to reach an
agreement on the product coverage by the negotiation deadline.  Therefore, adopting existingdefinitions of other bodies was a realistic approach.  Japan was also concerned that the APEC list was
limited to diffusion of nuisance and did not adequately take into account world-wide environmental
issues, such as global warming and resource efficiency.  The OECD definition, however, contained a
category for clean and resource efficient technologies or goods, as well as nuisance diffusion.  In
addition, the APEC list was based on a study conducted by the OECD in 1995.  Japan considered thatthe OECD definition would make it possible to take into account recent environmental problems.
Therefore, adopting the OECD category as a definition of environmental goods was appropriate, and
would be useful for the discussions on the product coverage for environmental goods.  Japan did not
want to prejudge the outcome of future work in the negotiations.  It welcomed Members' comments
on its submission, which it hoped would contribute  to expedite the discussion on environmental
goods.
113. The representative of Qatar was pleased to note that the previous submission of his delegation
to the CTESS meeting in October 200237 had received a positive response.  A number of countries had
requested further clarification with regard to some of the items included in the proposal, and therefore,
Qatar had submitted to the CTESS a new document, which included a selection of environmentalgoods and technologies known for their relative energy efficiency and lower carbon and pollutant
emissions.  The paper also attempted to assess the relative economic and environmental merits of the
proposed list of goods and technologies in relation to conventional energy systems in the context of
major MEAs.  This exercise was deemed necessary,  as it served the purpose of identifying and
defining the scope and characteristics of environmental goods and technologies, thus enabling their
ranking on the basis of their relative benefits in relation to the MEAs.
114. Qatar proposed that the list of environmental goods and technologies in Table 1 of its paper
be included in Section B of the OECD illustrative categories of environmental goods relating to
cleaner technologies and products.  In this regard, the OECD's work on categorization could serve as a
useful framework for further work in the CTESS.  The list of environmental goods and technologies
proposed for trade liberalization included gas tu rbine combined cycle power generation systems,
chemical gas to liquid fuels, and natural gas fuels and technologies.  The benefits of these goods andtechnologies in relation to the MEAs had been widely acknowledged, for instance, in the context of
the World Summit for Sustainable Development, and the negotiations of the UNFCCC and its Kyoto
Protocol.  The Intergovernmental Panel for Climate Change (IPCC), which was a scientific and
technological arm of the UNFCCC, had published numerous assessment reports in which the
environmental and sustainable development benefits resulting from enhanced utilization of efficientlower-carbon and pollutant-emitting fuels and technologies were acknowledged.  It was generally
believed that natural gas and other related cleaner fuels and technologies would play a critical role in
                                                     
37 TN/TE/W/14, "Environmental Goods", Submission by the State of Qatar, Paragraph 31(iii),
9 October 2002.TN/TE/R/5
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the gradual shifting of global energy systems from carbon-intensive energy sources to carbon-free
renewable energy alternatives.
115. The representative of the United States emphasized the importance of focusing on the APEC
list of potential environmental goods.  While the United States could consider some improvements to
this list, it noted that the APEC list was the result of a highly technical analysis over a period ofseveral years.  Moreover, it was the only list that represented a collaborative effort among a group of
developed and developing countries.  The United States welcomed the submissions by Japan and
Qatar.  With respect to the Japanese paper, the United States supported the emphasis on protection of
the environment and promotion of sustainable development.  However, it had some concerns with
certain aspects of Japan's proposed list in Annex 2 of its paper.  Japan's list included a number of
items that were not on the APEC list, including ener gy efficient items.  The inclusion of such items
posed a number of practical problems.  In addition, the Japanese list excluded a number of APECitems, which had been proposed by a cross-section of  APEC members.  In general, the United States
was not in favor of using the OECD list as a basis for further discussion because of some of its
practical difficulties.
116. With respect to the submission by Qatar, the United States noted that paragraph 18 suggested
that the inclusion of items proposed by Qatar would be to the OECD list of environmental goods and
technologies.  The United States would consider the proposal by Qatar in the context of the APEC list,
and would make comments on the paper at a later stage.  While in practice the negotiations on market
access for environmental goods and services were taking place in other negotiating groups, the
United States continued to see the CTESS as offering opportunities for value added to those
negotiations.  In addition to its work on the definition of environmental goods, the CTESS alsoprovided an opportunity to discuss both environmental goods and services in one forum.  In this
regard, the liberalization of trade in environmental goods and services should proceed in tandem.  The
commercial reality was that goods and services were often packaged together.  Consequently, barriers
to market access in one sector could negatively affect market access in the other sector.  This was
particularly true with respect to infrastructure projects that were environmental in nature.  Failure toaddress barriers on either front could diminish the potential benefits for the environment, development
and trade.
117. The representative of Switzerland said that the discussion so far in the CTESS and in the
Negotiating Group on Market Access had shown that it would not be easy to come to a common set of
criteria for the goods that should be covered by the mandate in paragraph 31(iii).  Although they had
no binding status in the WTO, the APEC and OECD lists provided a useful starting-point for the
discussion.  For instance, Members could use these lists to draw up their own list of environmentalgoods.  However, the goods contained in these lists may not offer enough market access opportunities
to all Members, and some Members may want to include other environmentally friendly products in
the category of environmental goods.  Switzerland shar ed the view of a number of delegations that the
differentiation of goods on the basis of their process and production methods (PPMs) should not be a
criterion to define environmental goods.  The lack of internationally recognized standards couldcontribute to erecting new barriers instead of liberalizing trade.  Furthermore, the application of such a
criterion at the border could be difficult in practice.  Switzerland was still reflecting on products
having environmentally friendly physical char acteristics, when used or disposed of,  which could be
included in the list.  In this respect, Switzerland was examining different new groups, or categories of
products.  The following additional product categories were under examination.  Switzerlandemphasized that these were only preliminary ideas on additional products that could be taken into
consideration in the context of the negotiations.
118. The first category of products related to ecologically friendly transport mediums, in
comparison with others that were, a priori , non-ecologically friendly in terms of their environmentally
harmful emissions, such as cars and buses.  Such products were related, for example, to railways andTN/TE/R/5
Page 37
products used for railway traffic, which respectively fell under Chapter 73 of the
Harmonized System (HS) (e.g. rails and coach-screw s) and HS Chapters 85, 86, including hardware,
sleepers etc.  Bicycles and their components, and solar mobiles all fell under HS Chapter 87, as well
as some vessels/ships such as sail boats without auxiliary motor, under HS Chapter 89.  The second
category concerned addition apparatus under HS Chapter 73, such as solar energy cookers.  The thirdcategory of products concerned mainly HS Chapter 34, with products like soaps, organic-active
agents, and washing preparations, such as washing powders, detergents, soaps without environmental
damaging components or substances, certain glues classified under HS Chapter 35, and certain
(vegetable) dyes and coloring matters classified under HS Chapter 32.  The fourth category concerned
other vegetable textile fibres, such as flax or jute, classified under HS Chapter 53, and certain ropes
and cordage classified under HS Chapter 56.
119. With regard to the proposal by Qatar, Switzerland considered that it was a positive step to
identify less carbon-emitting fuels and technologies, and recognized that some of the goods and
technologies mentioned in the proposal had certain advantages, as compared to other fossil fuels.
Unfortunately, the HS Code was missing for almost all the categories identified in the paper.
Switzerland noted that a more detailed document including the HS Code and using the usual
indicators would be necessary in order to assess the environmental value of the proposal.  InSwitzerland's view, a list of environmental g oods should only contain ecologically sound and
sustainable products and technology, and not a less polluting, but still environmentally harmful
alternative.  On the proposal by Japan, Switzerl and agreed that the OECD list reflected the new
technologies related to environmental protection.  While it needed more time to analyse the list in
detail, Switzerland noted that at the outset, there seemed to be certain products, for instance underHS Chapter 87, which did not fall within the Swiss categorization.  Finally, Switzerland stressed the
importance of a close cooperation with the Negotiation Group on Market Access, and welcomed the
decisions taken by the Chairpersons of the CTESS and the Negotiating Group on Market Access in
this respect.
120. The representative of Canada thanked Japan for providing its indicative list of environmental
goods.  While Japan's list was based largely on the product lists prepared by the APEC and the
OECD, it also included new products and deleted ot her products identified in the APEC and OECD
lists.  Both the APEC and OECD lists represented a considerable body of work from which Members
should try to benefit.  Canada was open to proposals by other delegations, particularly if they met
predominant end-use criteria.  Canada was concerned that moving beyond this criteria could lead to
subjective classifications.  With regard to the paper by Qatar, Canada wished to make some initial
observations.  In its review of Qatar's first submission, Canada had been surprised by theidentification of technologies in the context of the environmental goods negotiations.  The
identification of technologies rather than goods presented certain challenges, including with respect to
tariff classification.  Canada urged Qatar to provide more specific information on tariff classification,
especially with regard to any particular products they envisaged as part of the process.  Qatar's most
recent paper also identified a variety of gas and liquid fuels as possible goods to be included in thisreview.  Canada's initial reaction to this proposal was one of caution, as many WTO Members already
offered free, or very low tariff rates on fuels.  The proposal also identified measures beyond the
border, i.e. such as excise and internal taxes;  energy-related fiscal measures;  and policies impact on
the pricing of these and other fuels.  It would appear that these policies and measures were beyond the
current negotiating mandate.  Canada would reflect further on some of the questions raised in Qatar'ssubmission, and looked forward to further discussion on the paper.
121. The representative of the European Communities considered the paper by Japan to be an
interesting contribution, and particularly the Annex 2 on environmental goods.  The paper raised a
number of relevant issues, such as PPM products, criteria of product coverage, and systems to be used
at customs and their administrative costs.  Members needed to consider further how to proceed withthe discussion of these issues.  The list annexed to the Japanese paper was largely based on the APECTN/TE/R/5
Page 38
and OECD lists.  The European Communities noted that any list produced outside of the WTO had no
standing in the context of the negotiations and would have to be analysed on its own merits.  Japan
referred in its paper to a study by the World Bank, which indicated that if a 33 per cent tariff reduction
was implemented, 95 per cent of the economic merits of the reductions would be brought to the
benefit of developing countries.  The European Communities failed to see how the Japanese list couldcontribute to achieving this goal, and noted that the challenge was to identify products that could
generate greater interest for developing country Members.  With regard to the paper by Qatar, some
interesting questions had been raised.  It was noted in paragraph 4 that the specific environmental
protection end-use criteria adopted in selecting particular environmental goods, technologies or
services should be clearly identified.  However,  it was not clear to the European Communities how
there could be a problem with regard to the produc ts identified, as some of the energy efficient
products could probably be identified relatively easily.  The European Communities would furtherconsider the question of technologies, as mentioned by Canada, as well as the issues raised in the
paper concerning non-tariff barriers, which also fell within the mandate in paragraph 31(iii).  Finally,
on the issue of services, the European Communities noted that the negotiations had reached an
important phase and that only 48 Members had made commitments on environmental services.  It
encouraged other Members to request and put in their offers.
122. The representative of Kenya recalled the position of his delegation that the CTESS should
work on the definition of environmental goods and their classification, so as to facilitate the work in
the Negotiating Group on Market Access.  The Japanese paper had suggested to use the OECD
definition and also the APEC list of environmental goods.  However, these lists did not appropriately
reflect the trading interests of developing countries, especially in the context of paragraphs 16 and 50of the Doha Declaration.  Kenya asked how Japan expected that benefits would accrue to developing
countries, as stated in its proposal, especially given that the proposal did not meet the conditions set
out in paragraph 16 of the Doha Declaration with regard to special and differential treatment.  The
Japanese list seemed to be leaning on the side of developed countries rather than developing
countries.  In order for developing countries' interests to be taken into account, the classification or thedefinition of environmental goods would have to be broadened so as to include the goods that
developing countries were currently exporting, or that they could potentially export.
123. The representative of Venezuela thanked the delegations of Japan and Qatar for their
proposals, on which he wished to make some preliminary comments.  Concerning the paper by Japan,
Venezuela noted that the APEC list focused exclusively on matters and goods which were of concern
to APEC member countries.  It also took note of the point made by Japan that the APEC list did not
deal with global warming, which was an important consideration for Venezuela.  Venezuela alsosupported the general thrust of Qatar's submission.  The paper spoke of natural gas as a product which
had less contaminants and hydrocarbons, and was therefore less polluting.  Qatar had proposed that
this product be included in the OECD's list of environmental goods.  Switzerland did not agree with
such a proposal, suggesting that only 100 per cent ecological products should be included on a list of
environmental goods.  Venezuela did not understand what Switzerland meant by 100 per centecologically acceptable products, or how this could be defined, and considered that less polluting
forms of energy were relevant in the context of the discussions.  In Venezuela's view, it was not
acceptable that natural gas would be excluded from the discussions, while it was less polluting than
other forms of energy, such as coal, whose production was often subsidized by developed countries.
Venezuela reserved its right to submit a proposal in the future on less-polluting energy products.
124. The representative of Egypt agreed with Venezuela that the logic behind the proposal by
Qatar was perfectly sound.  Egypt was still studying the different papers submitted under
paragraph 31(iii).  It supported the views expressed by Kenya regarding the need to focus in the
CTESS on how trade liberalization of environmental goods and services could benefit developing
countries.  Egypt noted that it had established a national committee to further study these questions.TN/TE/R/5
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125. The representative of Cuba said that her delegation supported the statement by Kenya.  Cuba
stressed the need to agree on a precise definition of environmental goods for the purpose of the
negotiations, and also in order to avoid any confusion with the concept of environmental services.
The OECD list circulated in the CTESS contained elements which Cuba considered to be
environmental services.  With regard to technolog ies, Cuba noted that only the hardware should be
considered, and not the knowledge related to a particular technology.
126. The representative of Malaysia welcomed the new submissions by Japan and Qatar, as well as
the Secretariat Note containing the APEC and the OECD lists, which it considered to be useful
contributions.  Malaysia considered that a clarification of the concept of environmental goods based
on some definition would be useful.  The end-use of a product would be an appropriate criteria for the
purpose of defining environmental goods, while PPM criteria should not be used.  On this basis, the
HS 2002 could be a starting-point, as well as work by APEC and the OECD.  However, not alldelegations were members of these two organizations, and therefore, these lists may not have
consensus.  Japan and Qatar had submitted lists which expanded the coverage of the APEC and
OECD lists, and that other delegations might also wish to add to these lists, in particular in view of
developing countries' needs.
127. The representative of Switzerland said that her delegation had not referred to a product
category which should be 100 per cent environmentally friendly.  The point made by Switzerland was
that a list of environmental goods should contain ecologically sound and sustainable products and
technology, and not perhaps less polluting, but st ill environmentally harmful alternatives.  The
argument made by Qatar was that natural gas was less polluting and had a higher energy efficiency
than fuels derived from heavy oil.  Although natural gas was recognized as a possible, albeitsub-optimal, alternative in the climate change debate, it was still an unrenewable fossilized fuel which
contributed to the increase of carbon dioxide levels in the atmosphere, and thus to global warming.  It
was for this reason that Switzerland hesitated to support the proposal by Qatar.
128. The representative of Qatar said that natural ga s had already been recognized as less pollutant
in a number of international conventions, which had been negotiated by both developed and
developing countries.  Qatar's submission was ba sed on the OECD list, which was mainly a developed
countries' list.  The OECD list contained a section on "cleaner technologies and products", which
meant that the list was not based on a definition limited to products that were 100 per cent ecological.
Furthermore, the OECD list referred to "cleaner resource-efficient technologies and processes", which
meant that it recognized PPMs, technologies, and cleaner fuel.  Section 4.5 of the OECD list also
referred to methanol and ethanol, which were natural gas derivatives.  In that sense, the paper by
Qatar simply expanded the scope of the OECD list.  From a developing countries' perspective, Qatarnoted that the addition of natural gas and other fossil fuels related to cleaner energy would be
beneficial, as these products would mostly come from developing countries.
129. The representative of Japan said that his delegation had some concern that the APEC list was
limited to nuisance diffusion and traditional types of pollution, and failed to take into account recent
world-wide environmental issues, such as global warming.  The OECD definition contained acategory for clean and resource-efficient technologies, goods, as well as nuisance diffusion.
Therefore, the OECD definition would cover a wider scope of environmental problems.  As it was a
more recent list, the OECD list reflected the various experiences and developments in relation to
MEAs, such as the Basel Convention, the Stoc kholm Convention and the Rotterdam Convention,
which addressed environmental problems also faced by developing countries.  Japan was open to anyproposal to add new products to the list of environmental goods.
130. The Chairperson said that it seemed that delegations wished to pursue the examination of the
submissions and the lists of environmental goods circulated under paragraph 31(iii).  She encouragedTN/TE/R/5
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delegations to continue their work on this subject in view of the next session, and to make proposals
on the definition and the classification of environmental goods, in light of their trade interests.
IV. SCHEDULING OF MEETINGS
131. The CTE in Special Session agreed to meet in 2003 on the following dates:  1-2 May, 8 July
and 30-31 October 2003.
V. AD HOC INVITATION TO MEAS AND UNEP TO THE NEXT MEETING OF THE
CTE IN SPECIAL SESSION
132. The Chairperson mentioned that new requests for observer status in the CTE Special Session
had been submitted by the Secretariats of the Basel Convention and the International Tropical Timber
Organization (ITTO).  She recalled that requests for observer status in the CTESS had already been
submitted by the UNEP, the CITES and the CBD.  The Chairperson also drew Members' attention to
the fact that certain MEAs, namely the Basel Convention and the Montreal Protocol, had adopted attheir last COP meeting a decision regarding collaboration between their secretariats and the WTO.
133. The Chairperson recalled that in her report to the TNC in December 2002, she had
highlighted the importance of the issue of observer status for the CTESS, particularly in light of the
negotiating mandate.  The Chairman of the TNC had encouraged her to look into possible approaches
in order to facilitate the work of the CTESS.  In this regard, the Chairperson proposed that UNEP, aswell as the MEAs invited to the MEA Information Sessions of the CTE, be invited on an ad hoc basis
to meetings of the CTESS when their expertise was considered necessary to the discussions.  Such a
decision would be taken by consensus at the e nd of each meeting, and would only concern the
following meeting.  This would be without prejudi ce to the negotiations currently under way in the
CTESS, in particular in relation to paragraph 31(ii) and the criteria for the granting of observer statusto MEAs in relevant WTO committees.  Furthermore, since the issue of observer status was before the
General Council and the TNC, such an approach would be without prejudice to a solution to this issue
in the General Council and the TNC.  The Chairperson underlined that such a proposal should be
considered as a short-term solution that would enable the CTESS to benefit from the necessary
expertise to properly carry out its work pursuant to the mandate.
134. All delegations who spoke supported the Chairp erson's suggestion to invite on an ad hoc,
meeting-by-meeting basis, some MEA secretariats, as well as UNEP.  A number of delegations
insisted on the fact that such a decision should be without prejudice to the ongoing negotiations, and
without prejudice to a resolution of the issue of observer status in the General Council and the TNC.
The point was also made that based on the Chair's proposal, UNEP and the MEAs concerned would
not be considered as observers, but rather as "invitees" to the CTESS.  With regard to the MEAs
concerned by the proposal, it was noted that a practical approach should be followed, and that for thenext meeting, the list should be limited to the MEAs  that were the very focus of the debate in the
CTESS.  It was also suggested by some delegations that the list could be limited to the MEAs who
had requested observer status, or to those who had a wide-ranging membership.
135. The delegations of Indonesia and Venezuela
 noted that the expertise of UNCTAD was
extremely useful for developing countries, and pointed out that UNCTAD had conducted studies that
would be relevant to the work of the CTESS.
136. The Chairperson said that since the invitation would be on a meeting-by-meeting basis, the
list of "invitees" would be revisited at each meetin g, in light of how the discussions evolved.  For
instance, the MEAs that were not yet in force could al so be added to the list at a later stage, when they
entered into force.TN/TE/R/5
Page 41
137. The European Communities noted that the participation of MEAs should not take the form of
presentations by MEAs similar to those at MEA Information Sessions.  The Chairperson also stressed
that the input from MEAs should be in connection with the discussion on certain points of the
mandate.  The delegation of Egypt said that there ma y be a need to structure the meetings in such a
way that the MEAs would only be present when subjects for which they had a particular expertise
were discussed.  The European Communities noted that it was understood that the CTESS retained the
flexibility to decide at any point to discuss certain matters informally without the presence of MEAs.
138. The CTESS agreed to invite to its next m eeting the Basel Convention, the CBD, the CITES,
the ITTO, the Montreal Protocol, the UNFCCC, as well as UNEP.  The delegations of China and
Cuba joined in the consensus ad referendum .38
VI. OTHER BUSINESS
139. The representative of Argentina wished to make a point concerning the circulation of
documents in the CTESS.  He noted that the late submission of documents had made it difficult for
delegations to give them due consideration.  The complexity of the debate required that a deadline be
established for the submission of documents, so as to give sufficient time for the documents to be
translated and considered by all delegations ahead of the meeting.  If delegations were not able to
submit their document by a certain deadline, the document should be discussed at the followingmeeting.  This principle of transparency and good faith should apply in all negotiations.
140. The Chairperson shared Argentina's concerns and appealed to delegations to try to submit
their documents so as to leave sufficient time for their consideration prior to the meetings.
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38 China and Cuba subsequently informed the Secretariat that their delegation could support the
decision on this matter.