TN/TE/W/23

TN/TE/W/23 20 February 2003
	(03-1089)
Committee on Trade and Environment Special Session	Original: English

RELATIONSHIP BETWEEN SPECIFIC TRADE OBLIGATIONS SET OUT IN MEAs

and WTO RULES

Submission by India

Paragraph 31(i)

I. Introduction

1. Several submissions have been made in the Committee on Trade and Environment Special Session (CTESS) attempting to understand and clarify the mandate contained in paragraph 31(i) of the Doha Ministerial Declaration (DMD). The submissions have underlined the need to clarify the terms that form the cornerstone of the mandate under paragraph 31(i) of the Doha Declaration.

2. It is in this regard that India would like to contribute to the negotiations by sharing its interpretation of:

(a) The types of "multilateral environmental agreements" (MEAs); and

(b) the "specific trade obligations" (STOs)

that may form the core of these discussions. With this in view, a "Table of Trade Measures" has been annexed to this submission. This Table is expected to lead the discussion towards consideration of the practical consequences of any interpretation and moving away from an overly-theoretical debate.

3. It is underlined that this is neither an exhaustive list of provisions in the MEAs analysed, nor is it a comprehensive list of MEAs that have STOs, nor an assumption that these necessarily need a solution under paragraph 31(i). The analysis is intended to be an illustration of the approach to and the nature of work required in the negotiations on the mandate in paragraph 31(i) of the Doha Declaration.

II. Types of Multilateral Environmental Agreements

4. The debate on what constitutes an MEA is not new, but it acquires a particular meaning in light of the Doha Mandate. India is of the view that the criteria for considering an environmental agreement as an MEA should have the following elements:

(i) It should have been negotiated under the aegis of the United Nations or specialized agencies like UNEP;

(ii) its procedures should stipulate that participation in the negotiations is open to all countries;

(iii) 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

(iv) the Agreement should provide for procedures for accession of countries which are not its original members and on terms that are equitable in relation to those of its original participants.

5. India believes that the term "MEAs" contained in paragraph 31(i) of the Doha Mandate must necessarily mean an MEA that has entered into force.

6. Japan’s qualification of an MEA as one that "…reflects the interests of major Parties concerned, such as Parties with substantial trade interests, actual and potential major producers and consumers of materials concerned" is perhaps more appropriate for a plurilateral agreement since it introduces a distinction between WTO Members by dividing them into formal categories – "major Parties" and "others". This qualification, in our view, is not relevant in the present context.

III. Specific Trade Obligations

7. A number of delegations have given their views regarding what constitutes a STO. India believes that the term "specific trade obligation" has three elements that must be considered together i.e. the provision must be specific with a trade element and should be in the nature of an obligation. Thus, any provision in an MEA to qualify as an STO must be specific and mandatory in character, and so precise in its direction that there can be no doubt about the action or restraint that a party to the MEA must adopt.

8. MEAs contain a number of trade related measures, which could be categorised as follows:

(i) A trade measure that is both mandatory and specific in its entirety.

Article 4.1 (b), (c) of the Basel Convention according to which Parties are obliged to prohibit export of covered waste to Parties that have banned such imports or do not consent in writing to the specific import.

(ii) only the outcome to be achieved is identified with a list of appropriate measures that Parties could implement to achieve the desired outcome.

Article 6.2 of the Basel Convention requires the State of import to respond to the notifier in writing, by either consenting to the movement with or without conditions, or denying permission for the movement, or requesting additional information.

(iii) the outcome to be achieved is identified, however the measures which could be implemented to achieve that outcome are not specified.

Article 16 of the Cartagena Protocol dealing with "Risk Management" states that the Parties shall, taking into account Article 8 (g) of the Convention, establish and maintain appropriate mechanisms, measures and strategies to regulate, manage and control risks identified in the risk assessment provisions of this Protocol associated with the use, handling and trans-boundary movement of living modified organisms. This provision fails to be specific as to the nature of the measure, although it contains an obligation.

(iv) additional and more stringent measures to achieve the overall objectives of the MEA which are more in the form of a right granted to a Party as opposed to an obligation.

Article XIV.1 of CITES states that the provisions of the Convention shall in no way affect the right of Parties to adopt stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species (whether included in the Appendices or not) or the complete prohibition thereof.

9. India believes that the mandate given under paragraph 31(i) of Doha Declaration refers to only the first category of trade measures that are both mandatory and specific in their entirety. In India’s view, non-specific provisions cannot qualify as an STO. Also if the provision set out in the MEA does not contain the crucial "obligation" element, such provisions too would fail to qualify.

10. While identifying STOs several other aspects are also relevant in considering the specificity, as a number of trade obligations are not specific in their entirety, that is, they contain non-specific elements as well. For instance, Article 13.1 of the Rotterdam Convention states that: "The Conference of the Parties shall encourage the World Customs Organization to assign specific Harmonized System customs codes to the individual chemicals or groups of chemicals listed in Annex III, as appropriate. Each Party shall require that, whenever a code has been assigned to such a chemical, the shipping document for that chemical bears the code when exported". The second sentence of the provision could qualify as an STO but the first sentence would clearly not. Furthermore, several provisions have to be read with another provision containing a trade obligation to understand whether it is specific or not.

IV. Conference of the Parties

11. Another related and important issue is how to deal with the decisions, resolutions and recommendations of the Conference of Parties of MEAs. When approaching the question of whether STOs contained in COP decisions, resolutions, and recommendations should be treated as "STOs set out in MEAs", as per the Doha Mandate, one may seek guidance from general principles pertaining to MEAs and the role of COPs. This issue is attempted to be clarified hereunder.

12. Typically, the Conference of the Parties (COP) exist to:

Review implementation based on reports submitted by governments;

consider new information from governments, NGOs and individuals to make recommendations to the Parties on implementation;

make decisions necessary to promote effective implementation;

revise the treaty if necessary;

act as a forum for discussion on matters of importance.

13. A COP decision, resolution, and recommendation may differ in several manners. The question is whether the COP decisions, resolutions and recommendations which generally help in directing the work of the COP, i.e. are more of internal procedures or are substantive in nature? However, it seems that, exceptionally, COPs may have genuine law-making powers, such as the power to amend the Annexes attached to an MEA, as under Article XV of CITES. In that case, an amendment must be adopted by a specified majority of Parties. The amendment so adopted, shall enter into force after the lapse of a specified time-frame and will be binding on all Parties, except for those Parties that made reservations. India believes that another relevant question is whether STOs contained in COP Decisions can be viewed separately from their incorporation in the MEA text, Annex or Protocol?

14. Considering the above, it appears that the nature of each COP decision must be scrutinized prior to asserting that STOs contained in such decisions are to be treated as "set out in MEAs".

V. Brief Comments on Member Submissions

15. The submission of the European Communities contains four broad categories of "measures arising from trade obligations". As a general observation, it needs to be considered whether the usage of civil law terminology, such as "obligation de résultat", with its well-recognized connotations, is adequate to further the dialogue with a large number of WTO Members with common law or other legal regimes in place. Further clarification is required on the term "obligation de résultat" in common law.

16. On a more specific level, other delegations submitted examples of MEA provisions that could qualify as "trade measures explicitly provided for and mandatory under MEAs". However, India believes that some of these provisions require closer scrutiny. For instance, Japan states that Articles 6 to 9 of the Basel Convention are "trade measures explicitly provided for and mandatory under MEAs". This is a rather broad statement, as may be illustrated by an analysis of Article 9, which comprises five subheadings. The first, defines "illegal traffic" and does not contain a trade obligation in itself. The second, requests the State of export to ensure that wastes are taken back, or "otherwise disposed of"; and the third, that these would be disposed of in an "environmentally sound manner"; the fourth that these would be disposed of "as soon as possible in an environmentally sound manner" – terms that all fail to meet the standard of "specificity". The fifth, requests the Parties to introduce "appropriate national/domestic legislation to prevent and punish illegal traffic" and encourages Parties to "co-operate with a view to achieving the objects of this Article". Article 9 is a clear illustration of provisions that, in our view, are not specific as to the means to achieve an outcome (not specific in its entirety), and hence would not qualify as an STO.

VI. Conclusion

17. India sees benefit in furtherance of the negotiations in identifying the STOs set out in MEAs prior to discussing its outcome, since it would help appreciate the likely consequences as well as strengthening the logic behind any of the suggested outcomes. In this regard, it is hoped that the "Table of Trade Measures" will help the delegations in identifying STOs set out in MEAs.

18. India believes that the mandate given under paragraph 31(i) of the Doha Declaration refers only to the trade measures that are mandatory and specific in their entirety. In cases where specificity and obligation depend on other related factors or decisions, work must be undertaken to clarify the exact nature of such provisions. Further it proposes sharing of information and examination by the WTO and MEA Secretariats of the precise legal nature of various COP instruments to help understand their implications for the Doha Mandate as contained in paragraph 31(i).

ANNEX – Table of Trade Measures

VII. convention on international trade in endangered species of wild flora and fauna

TRADE RELATED MEASURE	COMMENTS
Article II – CITES regulates trade in endangered species by defining conditions under which import and export permits may be issued. The conditions are differentiated according to a classification system based on three appendices of protected species.	Article II – Contains the fundamental principles of the MEA.
Article III.2 – The export of any specimen of a species included in Appendix I shall require the prior grant and presentation of an export permit this will be granted if; (a) according to the Scientific Authority the export is not detrimental; (b) according to the Management Authority it complies with the laws of the State.	Article III.2 – Contains trade obligations but the sub clauses which do not contain obligations need to be read together to bring specificity.
Article III.3 – The import (…) will require the prior grant and presentation of an import permit and either an export or a re-export certificate.	Article III.3 – Contains trade obligation. The sub clauses which do not contain obligations may be read together with the main provisions.
Article III.4 – Re-export shall require the prior grant and presentation of a re-export certificate.	Article III.4 – Contains trade obligation. The sub-clauses which do not contain obligations may be read together with the main provisions.
Article IV.2 - Export requires the prior grant (based on assessment according to sub-clause (a), (b), (c) and (d) and presentation of an export permit.	Article IV.2 – Contains trade obligation. The sub clauses which do not contain obligations may be read together with the main provisions.
Article IV.3 – Authorizes each Parties to monitor the issuance of export permits and actual export of Annex II species and allows them to advise the Management Authority of the exporting Party, to take "suitable measures" relating to export in order to maintain that species throughout its range	Article IV.3 – Refers to the monitoring rights of other Parties.
Article IV.4, 5, 6 & 7 – Requires the presentation of an export and re-export permit before import.	Article IV.4, 5, 6 & 7 – Contains trade obligation. The sub-clauses which do not contain obligations may be read together with the main provisions.
Article V.2 – Export shall require prior grant (based on sub-clause (a) and (b) and presentation of an export permit.	Article V.2 – Contains trade obligation. The sub-clauses which do not contain obligations may be read together with the main provisions.
Article V.3 – Import shall require the prior presentation of a certificate of origin, and an export permit, if the species is from a State that has included it under App. III.	Article V.3 – Contains trade obligation.
Article V.4 – For re-export, a certificate is required from the Management Authority of the State of re-export, stating that the specimen was processed in that State.	Article V.4 – Contains trade obligation.
Article VI - Regulates permits and certificates for import and export permits required under Articles III, IV and V.	Article VI – Contains trade obligation.
Article VIII – Parties shall take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation of the Convention.	Article VIII – Encourages Parties to take appropriate measures to enforce the provisions of the Convention.
Article XIV – Authorises Parties to take stricter domestic measures.	Article XIV – Refers to the right of a Party to adopt stricter domestic measures.

VIII.

IX. montreal protocol on substances that deplete the ozone layer

TRADE RELATED MEASURE

COMMENTS

Article 4A: Control of trade with Parties

1. Where, after the phase-out date applicable to it for a controlled substance, a Party is unable, despite having taken all practicable steps to comply with its obligation under the Protocol, to cease production of that substance for domestic consumption, other than for uses agreed by the Parties to be essential, it shall ban the export of used, recycled and reclaimed quantities of that substance, other than for the purpose of destruction.

Article 4A (1) – Contains trade obligation.

Article 4B: Licensing

1. Each Party shall, by 1 January 2000 or within three months of the date of entry into force of this Article for it, whichever is the later, establish and implement a system for licensing the import and export of new, used, recycled and reclaimed controlled substances in Annexes A, B, C and E.

2. Notwithstanding paragraph 1 of this Article, any Party operating under paragraph 1 of Article 5 which decides it is not in a position to establish and implement a system for licensing the import and export of controlled substances in Annexes C and E, may delay taking those actions until 1 January 2005 and 1 January 2002, respectively.

Article 4B (1) – Describes the obligation of a Party to adopt a licensing system by January 2000, but acknowledges the right to delay taking action.

X.

XI. basel convention on the control of transboundary movement of hazardous wastes and their disposal

TRADE RELATED MEASURE	COMMENTS
Article 4.1(a) – Parties can exercise their right to ban import of hazardous waste, and if they do, must inform the other Parties;	Article 4.1(a) – Gives Parties the right to ban the import Hazardous Waste. Once they do so they are obliged to inform other Parties.
Article 4.1(b) – Parties must prohibit or shall not permit the export of hazardous wastes (HW) to Parties which prohibited its import.	Article 4.1(b) – Contains trade obligation.
Article 4.1(c) – For wastes not specifically prohibited by the importing state, Parties will prohibit export of wastes if importing country has not consented in writing to the specific import;	Article 4.1(c) – Contains trade obligation.
Article 4.2(e) – Not allow the export of hazardous wastes or other wastes to a State or group of States belonging to an economic and/or political integration organization that are Parties, particularly developing countries, which have prohibited by their legislation all imports, or if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner, according to criteria to be decided on by the Parties at their first meeting.	Article 4.2(e) – Contains a trade obligation. A specific criterion on "management in an environmentally sound manner" is to be decided by the COP.
Article 4.6 – Prohibits the export of hazardous waste for disposal in the area of 60° south latitude whether or not such wastes are subject to transboundary movement.	Article 4.6 – Contains trade obligation.
Article 4.7(b) – Requires HW and other wastes that are subject to transboundary movement to be packaged, labelled, and transported in conformity with generally accepted and recognised international rules.	Article 4.7 (b) – Requires Hazardous Waste, subject to transboundary movement to be packaged (…) in conformity with accepted international rules.
Article 4.7(c) – Requires HW and other wastes to be accompanied by a movement document from the point at which a transboundary movement commences to the point of disposal.	Article 4.7(c) – Contains trade obligation,
Article 6.1 – The State of export, or exporter, shall notify, in writing, the competent authority of the States concerned of any proposed transboundary movement of HW.	Article 6.1 – Contains trade obligation.
Article 6.2 – The State of import shall respond to the notifier in writing, consenting to the movement with or without conditions, denying permission for the movement, or requesting additional information.	Article 6.2 – Refers to the right of a Party to import, ban an import, request for additional information or provide a conditional consent.
Article 6.3 – Transboundary movement can only commence once the state of export receives written confirmation that: (a) the notifier has received the written consent of the state of import; and (b) the notifier has received from the State of import conformation of the existence of a contract between the exporter and the disposer specifying environmentally sound management of the wastes in question.	Article 6.3 – Contains trade obligation.
Article 8 states that – When a transboundary movement of hazardous wastes or other wastes to which the consent of the States concerned has been given, subject to the provisions of this Convention, cannot be completed, the State of export shall ensure that the wastes in question are taken back into the State of export, by the exporter, if alternative arrangements cannot be made for their disposal in an environmentally sound manner.	Article 8 – Obliges Parties to re-import the HW, if, transboundary movement cannot be completed. Lacks specificity on sound environmental disposal.

XII.

XIII. cartagena protocol on biosafety

TRADE RELATED MEASURE	COMMENTS
Article 2.4 – Allows a Party to take action that is more protective of the conservation and sustainable use of biological diversity than that called for in the Protocol, provided that such action is consistent with the objective and the provisions of this Protocol and is in accordance with that Party's other obligations under international law.	Article 2.4 – Refers to the right of a Party to take action that is more protective than that called for in the Protocol.
Article 7.1 – The advance informed agreement procedure in Articles 8 to 10 and 12 shall apply prior to the first intentional transboundary movement of LMOs for intentional introduction into the environment of the Party of import.	Article 7.1 – Contains trade obligation.
Article 8.1 – The Party of export or the exporter shall notify, in writing, the competent national authority of the Party of import, prior to the intentional transboundary movement of a LMO that falls within the scope of Article 7.1. The notification shall contain, at a minimum, the information specified in Annex I.	Article 8.1 – Contains trade obligation.
Article 9.4 – A failure by the Party of import to acknowledge receipt of a notification shall not imply its consent to an intentional transboundary movement.	Article 9.4 – Explicitly provides an interpretation of a failure to notify by a Party.
Article 10.3 – Refers to the decision procedure that an importing Party may take. It may (a) approve the import with or without conditions; (b) prohibit the import; (c) request for additional information.	Article 10.3 – Refers to the right of a Party to arrive at a decision relating to the import of an LMO.
Article 10.6 – States that lack of scientific certainty, shall not prevent a Party of import from taking a decision, as appropriate, with regard to the import of LMOs. This Article thus authorises the use of the precautionary approach in reaching import decisions.	Article 10.6 – Refers to the right of a Party for risk assessment before reaching an import decision.
Article 11 – Lays out the procedure for LMO-FFPs.	Article 11 – Contains trade obligation. The sub clauses which do not contain obligations may be read together with the main provisions.
Article 12.1 – Authorizes a Party of import to review its decision, in light of new scientific education.	Article 12.1 – Refers to the right of a Party to review its decision.
Article 13 – Allows for a simplified procedure for transboundary movement of LMOs in accordance with the objective of the Protocol.	Article 13 – Refers to a right of the party which can be exercised in accordance with the objective of the Protocol.
Article 14.1 – Authorizes Parties to enter into bilateral, regional and multilateral agreements and arrangements regarding intentional transboundary movements of LMOs consistent with the objective of this Protocol and provided that such agreements and arrangements do not result in a lower level of protection than that provided for by the Protocol.	Article 14.1 – Refers to the right of a Party to enter bilateral (…) agreements in accordance with the objective of the Protocol.
Article 15.1 – Requires risk assessment to be undertaken in a scientifically sound manner (…) in accordance with Annex III. While Article 15.2 states that risk assessment must be carried out before reaching a decision under Article 10.	Article 15 – May be read together with Articles 7, 8, 10 and 12 and Annex III.
Article 16 – Requires Parties to establish and maintain appropriate mechanisms (…) .to manage and control risks identified in the risk assessment procedure.	Article 16 – Requires Parties to set up appropriate mechanisms (…) to control risks identified in the risk assessment provision of the Protocol.
Article 18.2 – Requires each Party to provide documentation accompanying: (a) LMO-FFPs to identify that they "may contain" LMOs. (b) LMOs for contained use should be identified as LMOs; (c) LMO for intentional introduction into the environment must be identified as LMOs and must specify relevant traits.	Article 18.2 (b and c) – Contains trade obligation. However, the specificity of Article 18.2 (a), is to be further articulated by COP Decisions.
Article 26.1 – Authorizes Parties to take into account, consistent with their international obligations, socio-economic considerations while reaching an import decision.	Article 26.1 – Refers to the right of a Party.

XIV.

XV. rotterdam convention on the prior informed consent procedure for certain hazardous chemicals and pesticides in international trade

TRADE RELATED MEASURES	COMMENTS
Articles 5, 6, 7, 8 and 9 set out the procedure to list chemicals that are subject to the prior informed consent procedure in Annex III. Whereas Article 9 contains the procedure for de-listing a chemical from Annex III. The final decision lies with the COP. For example Article 5.6 states - The Chemical Review Committee shall review the information provided in such notifications and, in accordance with the criteria set out in Annex II, recommend to the Conference of the Parties whether the chemical in question should be made subject to the Prior Informed Consent procedure and, accordingly, be listed in Annex III.	Articles 5, 6, 7, 8 and 9 – Contain trade measures. However, any obligation relating to them would ultimately depend upon the decision of the COP to list the chemicals
Article 10.4 – In relation to imports of chemicals listed in Annex III, allows a Party to (a) consent to an import; not to consent to an import; to consent to an import subject to specified conditions; or (b) provide an interim response.	Article 10.4 – Refers to the right of a Party to arrive at a decision relating to the import of chemicals.
Article 10.9 – A Party that takes a decision not to consent to import of a chemical or to consent to its import only under specified conditions shall, if it has not already done so, simultaneously prohibit or make subject to the same conditions: (a) Import of the chemical from any source; and (b) Domestic production of the chemical for domestic use.	Article 10.9 – Contains trade obligation.
Article 11.2 – Each Party shall ensure that a chemical listed in Annex III is not exported from its territory to any importing Party that, in exceptional circumstances, has failed to transmit a response or has transmitted an interim response that does not contain an interim decision, unless: (a) At the time of import, the chemical is registered as a chemical in the importing Party; or (b) It is a chemical for which evidence exists that it has previously been used in, or imported into, the importing Party and in relation to which no regulatory action to prohibit its use has been taken; or (c) Explicit consent to the import has been sought and received by the exporter through a designated national authority of the importing Party. The importing Party shall respond to such a request within sixty days and shall promptly notify the Secretariat of its decision.	Article 11.2 – Contains trade obligation.
Article 12 – Requires an Exporting party that wishes to export a banned or severely restricted chemical form its territory, to provide an export notification to the Party of import, prior to the first export. This notification must be updated if the exporting Party adopts a final regulatory action that results in a major change concerning the ban or severe restriction of that chemical.	Article 12 – Contains trade obligation.
Article 13.1 – Requires that whenever a code has been assigned to a chemical by the World Customs Organisation, the shipping document for that chemical bears the code when exported.	Article 13.1 – Contains trade obligation once the WCO has assigned a code to a chemical that is being exported.
Article 13.2 – Requires each Party to label Annex III and (…) chemicals before exporting them. Labelling requirements should ensure adequate availability of information (…) taking into account relevant international standards.	Article 13.2 – Requires Parties to label Annex III chemicals before export, in accordance with relevant international standards.
Article 13.3 – Each Party may require that chemicals subject to environmental or health labelling requirements in its territory are, when exported, subject to labelling requirements.	Article 13.3 – Refers to a right of a Party to label exports that are subject to labelling requirements in its own territory.
Article 15.4 – Authorizes Parties to take action that is more stringently protective of human health and the environment than that called for in this Convention, provided that such action is consistent with the provisions of this Convention and is in accordance with international law.	Article 15.4 – Refers to the right of a Party to take action that is more stringently protective than that called for in the Convention.

XVI.

XVII. stockholm convention on persistent organic pollutants

TRADE RELATED MEASURES	COMMENTS
Article 3.1 – 1. Each Party shall: (a) Prohibit and/or take the legal and administrative measures necessary to eliminate: (i) Its production and use of the chemicals listed in Annex A subject to the provisions of that Annex; and (ii) Its import and export of the chemicals listed in Annex A in accordance with the provisions of paragraph 2; and	Article 3.1.(a) – Contains trade obligation. Some of the provisions of Annex A - Part II relating to "priorities" to follow prior to 2025 may not contain an obligation, but may be read together with the main provision.
(b) Restrict its production and use of the chemicals listed in Annex B in accordance with the provisions of that Annex.	Article 3.1(b) – Relates to national production and use of chemicals listed in Annex B.
Article 3.2 – POPs listed in Annexes A and B are imported or exported only for the purpose of environmental sound disposal (set forth in paragraph 1(d) of Article 6) or for a use permitted for the importing Party as a specific exemption.	Article 3.2 – Contains trade obligation that is further specified by Article 6.1 (d).
Article 4 – Establishes a register of specific exemptions for Parties for production or use of POPs listed in Annexes A or B.	Article 4 – Establishes a register of specific exemptions. It provides a right to Parties to register specific exemptions listed in Annex A or B.
Article 8 – Sets out the procedures for listing POPs in Annexes.	Article 8 – Refers to the right of a Party to list a chemical in Annex A.B or C.

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