Committee on Trade and Environment – Special Session – Relationship between Specific Trade Obligations set out in MEAs and WTO Rules – Submission by India
TN/TE/W/23 20 February 2003
Committee on Trade and Environment Special Session
- 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.
- It is in this regard that India would like to contribute to the negotiations by sharing its interpretation of:
The types of “multilateral environmental agreements” (MEAs); and
- 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.
- 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.
- 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:
- It should have been negotiated under the aegis of the United Nations or specialized agencies like UNEP;
- its procedures should stipulate that participation in the negotiations is open to all countries;
- 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
- 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.
- 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.
- 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.
- 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.
- MEAs contain a number of trade related measures, which could be categorised as follows:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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?
- 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”.
- 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.
- 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.
- 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.
- 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).
II. Types of Multilateral Environmental Agreements
III. Specific Trade Obligations
IV. Conference of the Parties
V. Brief Comments on Member Submissions
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.|