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PRESS/TE 014
14 November 1996
The WTO Committee on Trade and
Environment, on 8 November 1996, adopted the following Report
to the WTO Ministerial Conference in Singapore in December.
REPORT (1996) OF THE COMMITTEE
ON TRADE AND ENVIRONMENT
I. INTRODUCTION
1. The Committee on Trade and
Environment (CTE) was established by the WTO General Council in
January 1995. The CTE's mandate and terms of reference are contained
in the Marrakesh Ministerial Decision on Trade and Environment
of 15 April 1994 (Annex I). This Decision mandates the CTE to
report to the first biennial meeting of the Ministerial Conference
when the work and terms of reference of the Committee will be
reviewed, in the light of recommendations of the CTE.
2. The CTE has structured its
work around the ten Items listed in the Decision on Trade and
Environment. For several of the Items, the CTE was able to build
on discussions that had taken place in 1992-93 in the GATT Group
on Environmental Measures and International Trade (EMIT) and on
discussions in 1994 in a SubCommittee on Trade and Environment
of the WTO Preparatory Committee.
3. The CTE met formally six times in 1995 and seven times in 1996 under the chairmanship of Ambassador Sánchez Arnau of Argentina. Membership of the CTE is open to all WTO Members; observer governments and observers from intergovernmental organizations were
PRESS/TE 014
Page 2/3
invited to participate. Informal
meetings were also held, including a joint informal meeting with
the Committee on Technical Barriers to Trade on the issue of eco-labelling.
4. The CTE held two stocktaking
exercises, on 26-27 October 1995 and 2829 May
1996. During the October stocktaking exercise, specific issues
on the Items of the work programme were identified. At the May
stocktaking exercise, the schedule of meetings through to Singapore
and the format of the Report were adopted. The CTE was assisted
by background documents prepared by the Secretariat and documents,
proposals and nonpapers submitted by Members which, along
with the many statements made in the CTE meetings, provided the
basis for drawing up this Report.
II. BACKGROUND, ANALYSIS, DISCUSSIONS
AND PROPOSALS
ITEM 1
The relationship between the provisions of the multilateral
trading system and trade measures for environmental purposes,
including those pursuant to multilateral environmental agreements
5. Under this Item, the issue of trade measures applied unilaterally by a WTO Member to address environmental problems that lie outside its national jurisdiction has been discussed.
The CTE has examined whether
there is a need to clarify the scope that exists under WTO provisions
to use trade measures pursuant to multilateral environmental agreements
(MEAs). It has also examined whether there is any need to enlarge
that scope, and if so in what circumstances, with what objectives
and through what means.
6. It was stated during the course
of discussions under this Item that there is already scope under
the WTO provisions to use trade measures for environmental purposes.
These provisions aim to ensure that WTO Members may adopt or enforce
measures in pursuit of important public policy objectives for
the protection of their environmental resources, while safeguarding
Members' WTO rights against arbitrary or unjustifiable discrimination
and disguised restrictions on trade.
7. Most of the delegations which
intervened in the debate on this issue stated that they consider
that the provisions of GATT Article XX do not permit a Member
to impose unilateral trade restrictions that are otherwise inconsistent
with its WTO obligations for the purpose of protecting environmental
resources that lie outside its jurisdiction. For them, a renewed
commitment needs to be taken by WTO Members to avoid using trade
measures unilaterally for that purpose, and numerous proposals
have been made in the CTE to that effect. Another view is that
there is nothing in the text of Article XX which indicates that
it only applies to policies to protect animal or plant resources
or conserve natural resources within the territory of the country
invoking the provision. A number of Members noted that there were
differing views as to what constituted "unilateralism".
8. MEAs based on international
consensus are viewed by the international community as the best
way of coordinating policy action to tackle global and transboundary
environmental problems cooperatively. The WTO has no competence
in the area of environmental matters per se, but it is
concerned with trade measures applied pursuant to MEAs which can
affect WTO Members' rights and obligations. Of the many MEAs currently
in effect, only about 20 contain trade provisions. There are considerable
differences between the trade provisions of different MEAs, in
particular the kinds of trade measures that MEA Parties are authorized
or required to apply and the conditions pursuant to which the
measures are taken. No GATT or WTO trade dispute has arisen so
far over the use of trade measures applied pursuant to an MEA.
Nevertheless, doubts have been expressed by some WTO Members about
the WTO consistency of certain trade measures applied pursuant
to some MEAs, in particular discriminatory trade restrictions
applied by MEA Parties against non-parties that involve extra-jurisdictional
action. For some, the uncertainty these doubts create for WTO
Members and for the negotiators of MEAs makes clarification of
the relationship between WTO provisions and these trade measures
desirable. For some others, trade measures applied pursuant to
an MEA by WTO Members should be consistent with WTO rules and
disciplines.
9. Coordination between trade
and environment officials in national capitals and during the
negotiation of MEAs and new trade rules has been recognized by
many in the CTE to be an important means of ensuring coherence
between MEAs and the WTO. Some consider it can be enhanced through
closer cooperation between the WTO and MEAs. Several suggestions
have been put forward to improve the flow of information between
the WTO and MEAs. One proposal is for the CTE to invite representatives
of MEAs to brief it on the use of trade measures applied pursuant
to the MEAs, and for the CTE to have an opportunity to express
its view to MEA authorities on trade measures which are contemplated
in an MEA. It has also been suggested that consultation and cooperation
between the Secretariats of the WTO and MEAs should be encouraged,
especially during initial negotiations and amendments of MEAs.
Another proposal is to enhance transparency, dialogue and cooperation
between MEAs, relevant international organizations and the WTO
from the initial stage of negotiation of an MEA to its implementation.
This cooperation may include exchange of information, mutual participation
in meetings, mutual access to documents and databases, and briefing
sessions, as necessary. Another proposal is that a factual reference
guide containing WTO principles should be compiled by the WTO
Secretariat which, after being agreed by the CTE, could be used
by MEA negotiators in their consideration of proposed trade measures.
A proposal has been made to conclude cooperation agreements between
the WTO and competent MEA institutions, providing: (i) for the
WTO Secretariat to respond to requests for factual information
about relevant WTO provisions; and (ii) for MEAs to inform
the WTO of all envisaged trade provisions, which would be examined
by the CTE and the report of the meeting would be communicated
back to the MEA authorities. While acknowledging the importance
of contacts between the WTO and MEA Secretariats, some are of
the view that policy dialogue must take place in national capitals,
that the WTO and MEAs must respect their specific areas of competence,
and that the WTO Secretariat has already the authority to provide
factual information about the multilateral trading system.
10. When account is taken of
the limited number of MEAs that contain trade provisions, and
the fact that no trade dispute has arisen over the use of those
measures to date, some feel that there is no evidence of a real
conflict between the WTO and MEAs; existing WTO rules already
provide sufficient scope to allow trade measures to be applied
pursuant to MEAs, and it is neither necessary nor desirable to
exceed that scope. According to this view, the proper course of
action to resolve any underlying conflict which may be felt to
exist in this area is for WTO Members to avoid using trade measures
in MEAs which are inconsistent with their WTO obligations. Any
clarification in that respect can be provided, as necessary, ex
post through the WTO dispute settlement mechanism.
11. One proposal is thus to confirm
that the existing provisions of GATT 1994 are adequate to
deal with trade measures taken pursuant to legitimate environmental
objectives contained in existing MEAs, and that trade measures
pursuant to future MEAs should be formulated keeping in mind the
provisions of the multilateral trading system. The proposal stated
that trade measures which are restrictive in nature in MEAs, even
if taken for enhancing environmental protection, must respect
the rule-based nature of the multilateral trading system and their
costs in terms of trade restriction must be fully taken into account.
In addition, any trade measures taken for achieving environmental
objectives should be appropriately dealt with within the scope
of Article XX of GATT 1994; that is the only way to ensure
non-discrimination which is the foundation of the multilateral
trading system.
12. Some feel scope for the use
of trade measures applied pursuant to MEAs can be provided, if
necessary, through recourse to the existing waiver provisions
of Article IX of the WTO. These provide the opportunity for Members
to seek, in exceptional circumstances, a waiver to a WTO obligation,
subject to approval at a minimum by three-quarters of the WTO
membership. A waived obligation is timelimited, and must
be renewed periodically; and a trade measure applied pursuant
to a waiver could still be challenged in WTO dispute settlement
on the grounds of nonviolation, nullification and impairment
of WTO rights. The strictness of these conditions is considered
by some to be appropriate for protecting the rights of WTO Members
in circumstances in which, for example, MEA Parties apply WTO-inconsistent
discriminatory trade measures against non-parties. This approach,
they feel, could provide a measured, case-by-case response to
any problems which might arise in the future. Evidence of a multilateral
consensus, avoiding the need for a separate definition in the
WTO of an MEA, would be established on the merits of each case
since it could be presumed that an MEA which could genuinely claim
broad support from the international community would find equally
broad support among WTO Members.
13. To the extent that concerns
exist about the time-limited nature of WTO waivers, it has been
suggested that, subject to certain conditions, a special "multi-year"
waiver could be provided for trade measures applied pursuant to
MEAs. One such proposal suggests that all measures taken under
MEAs would be eligible for a waiver, provided they meet specified
criteria, and a "negative vetting" approach could be
adopted whereby the waiver would be automatically renewed if no
new developments affect the exceptional circumstances which justified
its granting in the first instance. Another proposal suggests
that specific trade measures contained in existing and future
MEAs, whether among Parties or against non-parties, may be granted
a waiver on a case-by-case basis subject to non-binding guidelines.
The waiver would be extended annually until its termination as
long as the requirements contained in Article IX are met, and
the "exceptional circumstances" referred to in that
provision would cover specific trade measures included in MEAs.
WTO Members would retain their rights to resort to non-violation
dispute settlement procedures in the WTO.
14. Some others do not consider
the WTO waiver provisions offer a useful approach to the use of
trade measures in MEAs because waivers are designed to deal only
with temporary measures involving exceptional circumstances. Recourse
to an uncertain test of voting on a waiver in the WTO could fail
to provide MEA negotiators with a necessary degree of security
or predictability in their negotiations and it might involve the
WTO passing judgement over other international legal instruments.
This, they feel, could give rise to an untenable situation for
WTO Members that have accepted obligations under both the
WTO and an MEA.
15. Some others have suggested
the issue of the use of trade measures in MEAs needs to be addressed
more from an ex ante point of view and not only through
the ex post means available under the WTO dispute settlement
or waiver provisions. For them, international co-operation is
the most environmentally effective means of tackling transboundary
and global problems, because the joint efforts of all countries
concerned are required: this is reflected in the increasing agenda
of MEA negotiations. Although no conflict has so far arisen as
regards trade measures pursuant to MEAs and WTO rules, these Members
feel that it is important to adopt a preventive attitude and provide
greater certainty. This would be beneficial both for environment
and trade policy makers. For those Members, the key point is that
MEAs and the WTO both represent different bodies of international
law. Various proposals have been put forward, with a view to establishing
a framework for the relationship between MEAs and WTO. Although
these proposals differ in nature, scope and level of ambition,
they are all based on the view that the WTO should be supportive
of action at the multilateral level for the protection of the
environment. They develop the view that, subject to specific conditions
being met, certain trade measures taken pursuant to MEAs should
benefit from special treatment under WTO provisions; this approach
has been described as creating an "environmental window"
in the WTO. They have a number of common features.
16. One is that although it may
be desirable to clarify the treatment under WTO provisions of
trade measures applied pursuant to MEAs, no additional scope than
that which exists already is to be made available under GATT Article
XX for the use of unilateral measures for environmental purposes.
A second is that importance is attached to enhancing the transparency
of trade measures applied pursuant to MEAs. Several proposals
make notification of the measures to the WTO a pre-condition for
them benefitting from any additional accommodation that the proposals
suggest the measures might be granted under WTO provisions. A
third common feature is the role which WTO dispute settlement
would play in the case of a conflict arising over the use of trade
measures applied pursuant to MEAs; discussions on this issue are
described in more detail under Item 5 of the work programme.
17. One proposal elaborates two
options. The first is to include measures taken pursuant to specific
provisions of MEAs in GATT Article XX. The second is to introduce
a reference not only to these measures but, also in more general
terms, to measures necessary to protect the "environment";
and to improve the consistency of the rules of the multilateral
trading system taking into account both the commitment expressed
in the first preambular paragraph of the Agreement establishing
the WTO and the fact that the environment is already mentioned
in several WTO Agreements. Both options suggest the development
of an Understanding under the provisions of GATT Article XX that
in the event a trade measure applied pursuant to an MEA is challenged
in the WTO, subject to certain procedural criteria being met the
dispute settlement panel would examine only whether the measure
has been applied in conformity with the requirements in the headnote
language of Article XX and would not consider its necessity. The
aim is to send a political signal of the WTO's support for multilateral
measures as a means of discouraging the use of more tradedisruptive
and less-environmentally efficient unilateral ones, and so to
strengthen the multilateral trading system by establishing a framework
to deal with problems that arise. The WTO would not judge the
legitimacy of the environmental objectives or the necessity of
the measures taken to achieve these objectives because the multilateral
character of the trade measures would be the best guarantee against
abuse. At the same time, the WTO would retain its power to counter
protectionist implementation of a multilaterally-agreed measure
through the headnote language in Article XX.
18. A second proposal is to develop
an Understanding, applicable across all WTO Annex 1 Agreements,
on differentiated treatment for trade measures applied pursuant
to MEAs, depending on whether they apply between Parties or against
non-parties and whether they are specifically mandated in an MEA.
Specific and jointly notified trade measures applied among MEA
Parties would prevail over their WTO obligations to the extent
of the mandated inconsistency, and WTO dispute settlement would
not be available to them for trade action within the terms of
the notified measures. Non-consensual measures (those applied
among Parties but not specifically mandated in an MEA, and those
applied against non-parties which are specifically mandated in
an MEA) could be tested through WTO dispute settlement against
procedural and substantive criteria which would be set out in
the Understanding. The Understanding would not apply to trade
measures taken against non-parties to an MEA that were not specifically
mandated in the MEA; nor would it apply to unilateral measures.
These would continue to be subject to existing WTO provisions.
The proposed procedural criteria aim at ensuring that an MEA reflects
a genuine "multilateral" consensus through requiring:
(i) negotiation of and participation in an MEA to be open on equitable
terms to all interested countries; (ii) broad participation of
interested countries in both geographical terms and representing
varying levels of development; and (iii) adequate representation
of consumer and producer nations of the products covered by the
MEA. The proposed substantive criteria aim at ensuring that the
trade measure is necessary to achieve the environmental objective
of the MEA, including through consideration of: (i) the effectiveness
of the trade measure in achieving the environmental objective;
(ii) whether the measure is the least trade-restrictive or distorting;
and (iii) the proportionality of the measure to the need
for trade restriction to achieve the environmental objective.
19. A third proposal is to introduce
"a coherence clause". It would provide that in case
of a WTO dispute over a trade measure mandated under an MEA, the
dispute panel would examine whether the measure was applied in
a manner that constitutes arbitrary discrimination between countries
where the same conditions prevail or with a view to achieving
trade advantages, but it would not examine the legitimacy of the
environmental objective nor the measure's necessity. A list of
MEAs benefiting from the coherence clause would be established.
Two possible approaches were identified to establish the list:
either the General Council could make a decision concerning the
inclusion of each MEA on the list, or each MEA could be notified
to the WTO Director-General by its depositary in which case the
General Council would be asked to reach a decision only if a WTO
Member objected to a proposed listing.
20. Another approach proposes
the "possibility of setting differentiated WTO disciplines"
for trade measures applied pursuant to MEAs based on whether the
trade measures are specifically mandated by an MEA and whether
they are applied among Parties or against non-parties. The skeleton
of this approach is illustrated in a matrix in Annex V. Trade
measures taken among Parties would be eligible for qualified codification
on a lapse of time basis, subject to them meeting appropriate
conditions which would be less strict for measures specifically
mandated in an MEA than for those simply authorized by the MEA.
Under this proposal it would be premature to consider the accommodation
of any other type of trade measures taken pursuant to an MEA (for
example, against a non-party) that goes beyond the scope of existing
WTO disciplines.
21. A different approach suggested
by some Members is to develop guidelines to provide more predictability
than exists at present over the treatment of certain trade measures
applied pursuant to MEAs and allow for the development of mutually
supportive trade and environment policies, as envisaged in Agenda
21. One proposal made in this regard is to draw up nonbinding
interpretative guidelines, with the possibility of making them
legally-binding with appropriate modifications as necessary. Guidelines
could be used by MEA negotiators to provide them with an authoritative
point of reference on the application of WTO provisions when they
are considering the use of trade measures pursuant to MEAs, they
could be used by WTO dispute panels when examining the compatibility
with WTO rules of trade measures applied pursuant to MEAs, or
they could serve as a basis on which the WTO Secretariat would
provide technical advice on WTO provisions to MEA Secretariats
and environmental negotiators. The proposed guidelines are not
intended to be used directly in a panel examination, although
they could have a certain impact on the scrutiny of panels. Formal
decisions concerning substantive criteria made by the relevant
MEA authority should be taken into sufficient account on the condition
that the MEA meets procedural criteria that would reflect its
consensual basis. These substantive criteria could incorporate
characteristics of MEA trade measures such as their necessity,
effectiveness and proportionality.
22. One proposal suggested that
the Committee develop an agreed framework for endorsement by the
Singapore Ministerial Conference that would include, inter alia,
the following points: the strong appreciation among WTO Members
of the importance of MEAs; that WTO rules should not hamper the
ability of MEAs to achieve their environmental objectives; that
trade measures have been and will continue to be an important
tool for achieving important environmental objectives; that trade
measures will not always be needed, and should be used prudently
but should be available when needed, and MEA negotiators are in
the best position to determine when this is so; that the WTO should
recognize and respect the technical and environmental expertise
of MEA negotiators; and that panels can, and should, seek input
from relevant MEA bodies in any dispute involving questions relating
to an MEA.
23. There have been many reactions
to these proposals and suggestions.
24. One set of reactions has
been expressed to proposals that would increase the scope under
the WTO for applying pursuant to MEAs trade measures that are
considered to be inconsistent at present with its provisions,
or that would limit the recourse of WTO Members to dispute settlement.
Some are concerned that this could undermine the existing balance
of WTO rights and obligations and create a loophole for trade
protectionism. These Members believe that it could lead also to
the legitimization of unilateral measures and their extrajurisdictional
application, as well as the use of trade measures based on non-product-related
processes and production methods (PPMs), for which in the view
of these delegations no basis exists in WTO rules. Singling out
trade measures pursuant to MEAs would require determining whether
those trade measures are necessary or effective. This would require
holistic consideration of all other measures, including positive
measures, taken within the framework of an MEA, which is clearly
outside the WTO's scope. Some feel also that there is a risk of
introducing a direct link between "necessity" and "environment"
in the WTO at a time when a clear and complete definition of "environmental
necessity" is still evolving in other intergovernmental fora.
25. Concerns by some have been expressed in particular over proposals that would enlarge the scope under the WTO for the use of discriminatory trade measures against non-parties to an MEA. There is concern about who is entitled to judge the merit of a country's decision not to join an MEA, and that account be taken of the reasons why a country would take that decision
(it may find the scientific evidence
unpersuasive, it may not be able to afford to join or have access
to necessary technology on favourable terms, it may not agree
with a given environmental objective or with the means to achieve
the objective, or it may consider there are more pressing national
policy problems which deserve higher priority). In this regard,
mention has been made of Principle 7 of the Rio Declaration,
which states that there is a "common but differentiated responsibility"
of States in resolving environmental problems of a global nature.
Some feel that trade measures, and in particular discriminatory
trade measures against non-parties to MEAs, are not an appropriate
way to pursue international environmental objectives. They consider
that discriminatory trade measures should not be used to coerce
countries to become signatories to an MEA and that this is not
the WTO's role, and trade measures are one of the alternatives
in the package of instruments that can be used to achieve MEA
objectives. They also believe that positive measures and incentives
such as financial and technology transfers, increased market access
and technical assistance are more efficient and effective. Therefore,
changes in WTO rules to accommodate MEA trade measures which are
inconsistent with WTO rules are an unbalanced and isolated approach
as long as there is no parallel commitment to first use and enforce
positive measures, as a means in particular to increase participation
in MEAs.
26. Concern was also expressed
by some over any possible extension of or derogation from WTO
rules for measures which are not specifically prescribed or authorized
in MEAs, since this could permit justification for unilateral
measures disguised as multilateralism and open the door for protectionist
measures. It was emphasized that the accommodation of trade measures
pursuant to MEAs, or enlarging the scope for the use of discriminatory
trade measures, could send the wrong signals to many countries,
particularly developing countries which have committed themselves
to trade liberalization. Other concerns include the lack of an
operational definition of MEAs to differentiate them from regional
and plurilateral environmental agreements, and uncertainty about
the effectiveness of trade measures vis-à-vis other
measures. For some, an operational definition of MEAs is a pre-condition
for discussing the use of trade measures applied pursuant to MEAs,
and the importance of further work on procedural criteria, such
as those described above in paragraph 18, has been underlined
in this respect.
27. Doubts have been expressed
by some about the need for a "coherence clause" when
only certain trade measures applied pursuant to MEAs are viewed
as being potentially WTOinconsistent, and about the appropriateness
of the WTO being seen to pass judgement on individual MEAs. With
regard to proposed guidelines for environmental negotiators, some
feel these would appear to allow the WTO to second guess MEAs
in areas outside its competence and would send a signal of mistrust
to negotiators representing, in different fora, Members of the
WTO. In this sense, some stated with concern that the condition
that measures are not taken with a view to achieving trade advantages
would imply shifting the burden of proof from the Member invoking
the "coherence clause" to the Member that may decide
to challenge the measure, thereby reversing GATT/WTO dispute settlement
practice.
28. Doubts have been expressed
by some delegations about the appropriateness and even the feasibility
of formulating procedural and substantive criteria against which
to evaluate the WTOconsistency of trade measures applied
pursuant to MEAs. They have pointed out in this regard that the
best policy package of an MEA is likely to vary according to the
specific circumstances of a given environmental problem, so trade
measures have been applied pursuant to MEAs for a variety of reasons
and in a number of ways in the past, and there is no clear indication
of how they will be used in the future. In light of this, and
consistent with the view that the WTO does not have competence
in environmental matters per se, they consider that the
WTO should not formulate criteria which would limit the flexibility
for environmental policy-makers to judge the legitimacy of environmental
objectives and types of trade measures needed.
29. Specific concerns have been
raised by some about the substantive criteria that have been proposed.
With regard to "necessity", a concern has been voiced
about applying in this context the interpretation that has been
given by GATT dispute panels to the term "necessary"
in Article XX(b) which, it has been stated, is not universally
accepted. According to this view the criterion of "necessity"
is not found in other provisions of Article XX, notably Article
XX(g), and a recent Appellate Body Report has been cited in that
regard. However, it was also stated that the notion of necessity
was particularly relevant in other GATT Article XX provisions
that could be related to trade measures taken for environmental
purposes. In addition, it has been stated that the concept of
"effectiveness" cannot be found in WTO provisions or
jurisprudence, and that "least trade-restrictive" and
"proportionality" are not concepts that can be found
in Article XX. The view of some is therefore that since such
criteria would go beyond the existing conditions attached to the
application of trade measures under GATT Article XX, they would
make it more difficult to use trade measures for environmental
purposes. This would send the wrong message with respect to the
support of the international community for resolving global and
transboundary environmental problems through multilateral action
and could furthermore act as a disincentive to the use of multilateral
action.
30. According to some others,
these criteria of necessity, effectiveness, least trade restrictiveness
and proportionality are implicitly included in WTO disciplines.
The consideration of these criteria, in particular that of "necessity",
is essential to any effort to better accommodate trade measures
pursuant to MEAs. The necessity of these measures should not be
taken for granted, in particular, when their use depends more
on political pressure than environmental necessity. Some stated
that trade measures applied for environmental purposes are related
to GATT Article XX provisions other than sub-paragraph (g)
where the concept of necessity is particularly relevant. Some
feel that the concept of necessity needs to be considered and
redefined in the environmental context on the basis of UNCED principles,
such as "common but differentiated responsibilities",
equity and international cooperation. Some consider also that
procedural criteria would be essential, especially in the absence
of any accepted definition of an MEA.
31. A number of WTO Members remarked
on the usefulness of the "differentiated approach" as
a methodology for analysing issues related to this Item: the approach
differentiated, on the one hand trade, measures applied among
MEA Parties from those applied against non-parties to an MEA,
and, on the other hand, trade measures specifically mandated or
defined in MEAs from those that are not.
ITEM 5
The relationship between the dispute settlement mechanisms
in the multilateral trading system and those found in multilateral
environmental agreements
32. This Item has been discussed
in conjunction with Item 1. One issue examined was what the competent
forum would be to settle a dispute which arose between two WTO
Members over trade measures applied pursuant to an MEA. A second
was what scope there might be for enhanced institutional cooperation
in this area, in particular the involvement of environmental expertise
in WTO dispute settlement proceedings and of trade expertise in
MEA dispute settlement proceedings when disputes concern trade
measures applied pursuant to an MEA. The possibility of providing
public access to WTO dispute settlement proceedings, as is the
case for certain MEAs, was also raised.
33. Like the WTO, MEAs emphasize
the avoidance of disputes. They include provisions to increase
transparency through the collection and exchange of information,
coordination of technical and scientific research, and collective
monitoring of implementing measures as well as consultation provisions.
Most of the MEAs that are the focus of the CTE's work contain
mechanisms for resolving disputes. These range from non-binding,
consensus-building mechanisms to binding, judicial procedures
of arbitration, and in certain cases resort to the International
Court of Justice.
34. Some feel it is each government's
responsibility to avoid entering into conflicting obligations
in treaties it is signatory to; that is best done at the negotiating
and drafting stage. Some also have stated that disputes can be
avoided if WTO Members, which are Parties to an MEA, review trade
measures applied by other countries pursuant to the MEA in the
context of the totality of their international obligations. Some
have said that WTO Members should not resort to the WTO dispute
settlement mechanism to circumvent or impair the obligations they
have accepted by becoming MEA Parties. Article 3 of the Dispute
Settlement Understanding (DSU) has been cited in that regard,
which calls on Members before bringing a case to exercise their
judgement about whether action through the DSB would be fruitful.
35. One view is that this Item
raises procedural issues which could best be addressed once conclusions
have been drawn under Item 1 of the work programme. Another view
is that procedural issues do warrant attention; if trade measures
are taken pursuant to new MEAs in the future, the possibility
of a trade dispute arising may increase. In that case, attempts
should be made to ensure that both trade and environment interests
are taken into account and that implementing one treaty's set
of rules does not jeopardise the fulfilment of the objectives
of the other.
36. Doubts have been expressed
about any a priori WTO determination of the forum under
which a dispute which involved WTO rights and obligations should
be handled. Some feel a caseby-case approach would be a
pragmatic solution. Others stress the importance of WTO Members
maintaining their right to submit any conflict involving trade
measures to WTO dispute settlement, and recall that the DSU explicitly
states that the purpose of the WTO dispute settlement system is
to preserve the rights and obligations of WTO Members. Thus, these
Members are of the view that the WTO remains competent to deal
with a conflict arising from the use of any trade measure independently
of its policy objective.
37. Some feel that a dispute
between WTO Members, Parties to an MEA, over trade measures taken
pursuant to the MEA should in the first instance be pursued under
the MEA dispute settlement mechanism. One suggestion is that MEA
Parties might stipulate ex ante that they intend trade
disputes among them arising out of implementation of the obligations
of the MEA to be settled under the MEA's provisions. One contribution
notes that the 1982 UN Convention on the Law of the Sea, and in
particular the 1994 Agreement Relating to the Implementation of
Part XI of the Convention (Section 6: Production Policy),
attributes competence to the WTO in settling disputes involving
trade-related measures, notably production subsidies and trade
restricting measures. This approach, it is suggested, can help
ensure the convergence of the aims of MEAs and the WTO while safeguarding
their respective spheres of competence, thus overcoming problems
arising from overlapping jurisdictions. There may be value in
strengthening MEA dispute settlement mechanisms, but it is recognized
that this matter lies outside WTO competence. Another suggested
approach is to examine whether recourse to arbitration, as provided
for in DSU Article 25, can be an appropriate means of resolving
trade and environment disputes.
38. In the event of a dispute
between two WTO Members, one a non-party to an MEA, over trade
measures applied pursuant to the MEA, some have noted that the
WTO would provide the only available dispute settlement mechanism
since the non-party would have no rights under, nor access to,
the MEA dispute settlement mechanism. In such circumstances, it
would be important for the DSB to avoid becoming involved in pure
environmental conflicts, but a WTO dispute settlement panel could
seek relevant environmental expertise and technical advice.
39. Article 13 and Appendix 4
of the DSU allow a panel to seek information and technical advice
from any individual or body which it deems appropriate, to seek
information from any relevant source and to consult experts to
obtain their opinion on certain aspects of the matter, and to
request a report in writing from an advisory review group with
respect to a factual issue concerning a scientific or other technical
matter raised by a party to a dispute. This facility is available
to panels examining disputes that arise over the use of any environment-related
trade measures, whether these have been applied pursuant to an
MEA or not.
40. One view is that these DSU
provisions are sufficient and there are no grounds for making
special provision for environmental expertise. Some have stated
that full use of these provisions should be encouraged. Nevertheless,
mechanisms could be explored to inform panels of MEA provisions,
including the application and interpretation of an MEA or judgements
on environmental matters in MEAs. One suggestion has been the
establishment of cooperation and consultation arrangements between
MEAs and the WTO to ensure that an MEA's environmental objectives
are given appropriate consideration.
41. Some have suggested strengthening
the role of expert groups in WTO disputes involving environmental
issues, particularly in any disputes that might arise over the
use of trade measures applied pursuant to MEAs, for example by
requiring the use of such groups where there are scientific and
technical points at issue in the dispute. It has been noted in
that connection that under the provisions of the GATS Annex on
Financial Services "panels for disputes on prudential issues
and other financial matters shall have the necessary expertise
relevant to the specific financial service under dispute".
In this regard, it is felt that environmental expertise would
be particularly important in any disputes involving the interpretation
and application of an MEA, for testing the necessity of an environment-related
trade measure and for the assessment of scientific evidence. However,
concerns have been raised that the independence of WTO panellists
to judge a dispute should not be compromised; expert opinion could
help inform a panel, but outside experts should not become involved
in judging whether or not measures are WTO consistent. Also, doubts
have been expressed about the legal basis for WTO panels to take
account of an MEA's objectives or provisions, and about whether
the CTE is the appropriate forum to consider changes in the provisions
of the DSU. One proposal has been to confirm that DSU provisions
are adequate to deal with any trade dispute brought to the WTO
which may be linked to environmental issues.
42. The possibility of providing,
upon request, trade expertise to MEA dispute settlement proceedings
has been discussed. One circumstance which could warrant that
is where an MEA refers explicitly to WTO provisions.
43. Some MEAs provide opportunities
for the public to have knowledge of and observe their dispute
settlement proceedings. One view is that the DSU might suffer
in comparison in this regard. It has been recalled that the UN
Commission for Sustainable Development at its 1994 session
stressed the importance of transparency and active involvement
of the public and experts in work on trade and environment, including
in dispute settlement processes, and considered there was considerable
need for improvement in these areas.
ITEM 2 The relationship between environmental policies relevant to trade and environmental measures with significant trade effects and the provisions
of the multilateral trading
system
44. This Item covers environmental
polices and measures not already covered under other Items of
the work programme.
45. Property rights, marketmaking
measures such as tradeable emission permits, fiscal instruments,
emission taxes, financial subsidies and soft loans, liability
systems, and bond and deposit-refund systems have been mentioned
by some. Some consider that compared to traditional regulatory
approaches towards the internalization of environmental externalities,
measures such as these can often be used more flexibly in a market
economy and they can be more transparent. Others consider that,
nevertheless, depending on how they are designed and implemented,
they can generate significant trade effects and raise national
concerns about relative competitiveness differentials which can
provoke demands for compensatory trade measures to be imposed.
46. Environmental subsidies were
discussed. Subsidies can be used to create incentives for producers
to adopt environmentally-sustainable production practices, and
the specific, environmentally-related, non-actionable subsidies
identified in Article 8.2(c) of the Agreement on Subsidies
and Countervailing Measures (SCM) were noted in that regard. Some
were of the opinion that environmental subsidies may differ from
more traditional forms of production subsidies but they can still
exert an important influence on prices and producers' incomes,
and hence on trade. Further analysis has been suggested of the
relationship of the SCM Agreement to various forms of environmental
incentives, of the extent to which WTO provisions encouraged subsidization
that could be environmentallyharmful, in particular but
not limited to energy use, and of the use of environmental subsidies
in relation to the Agreement on Agriculture, particularly its
Annex 2.12.
47. One proposal and a draft
Decision recommends that national governments undertake environmental
reviews of trade agreements likely to have significant environmental
effects, and that WTO Members be invited to provide copies of
such reviews and related material and methodologies to the WTO
Secretariat for reference by other Members. Some feel that this
issue falls outside the mandate and competence of the WTO, and
that the WTO should not therefore be making recommendations of
this nature. Some others feel that environmental reviews fit within
the provision of the terms of reference calling for identification
of the relationship between environmental measures and trade measures.
48. One proposal is to consider
the relationship and comparability of general trade and environmental
principles. Among the principles to be considered are inter
alia the principle of sustainable development, Principle 12
of the Rio Declaration, MFN and national treatment, transparency,
the concepts of least trade-restrictiveness, proportionality and
equivalence, special and differential treatment for developing
countries, common but differentiated responsibility, sovereignty
over environmental resources, fair and equitable sharing of benefits,
and the special needs of developing countries. Some feel that
consideration of environmental principles lies outside the mandate
of the WTO. Some feel that summarizing complex principles could
create misunderstandings. Some feel that any such list of principles
should be comprehensive and include the principle of the obligation
to cooperate, the polluter pays principle, and the precautionary
principle. A related suggestion is to analyse the flexibility
of trade principles to accommodate current and emerging environmental
policies, to determine whether they prevent the internalization
of environmental externalities, and whether the trade rules contribute
to integrated sustainable development policies. Another suggestion
is that the relationship between specific environmental policies
and specific WTO Agreements could only be usefully examined on
a casebycase basis.
ITEM 3(A)
The relationship between the provisions of the multilateral
trading system and charges and taxes for environmental purposes
49. One issue examined is the
application of GATT rules on Border Tax Adjustment (BTA) to environmental
taxes and charges. The potential effects of environmental taxes
on trade and problems involved in the valuation for tax purposes
of tradeable environmental products have also been discussed.
50. Views have been presented
on the potential trade effects and general economic and environmental
effectiveness of levying environmental taxes and charges on imports
and rebating them on exports, depending on whether they are assigned
to correcting consumption or production externalities and are
levied at the national or international levels.
51. With regard to the treatment
of environmental taxes and charges under the BTA provisions, the
1970 Report of the GATT Working Party has been taken as a point
of reference and several of its findings were noted. These were
that the BTA provisions are based on the concept of trade neutrality
and they apply the destination principle. Furthermore, the Working
Party concluded that certain taxes not levied directly on products
are ineligible for BTA. There was a convergence of views in the
Working Party that taxes levied directly on products are considered
eligible for tax adjustment, and a divergence of views regarding
the application of BTA for taxes occultes (consumption
taxes on capital equipment, auxiliary materials and services used
in the transportation and production of other taxable goods, for
example taxes on advertising, energy, machinery and transport).
52. Views have been presented
in the CTE on the application of BTA to environmental taxes or
charges applied to non-product-related PPMs. One view is that
BTA applies solely to taxes levied on products or product-related
PPMs, and that taxes or charges levied on nonproductrelated
PPMs are not eligible for BTA. Another is that GATT jurisprudence
remains unclear on this point, and that certain important environmental
taxes and charges might fall into the category of taxes occultes
on which the 1970 Working Party did not reach a firm conclusion.
Since the BTA provisions could influence a Member's choice of
what environmental taxes and charges to apply, some feel that
it is important to clarify them in certain aspects. Some suggested
that environmental taxes and charges might need to be accorded
different treatment under WTO rules than other fiscal measures,
and cautioned against drawing premature conclusions on BTA disciplines
which would make it more difficult to apply them. Some feel that
the environmental policy decision to impose the internal tax or
charge should be taken as given and should not influence consideration
of the adequacy of WTO rules on BTA.
53. Reference has been made to
the Agreement on Subsidies and Countervailing Measures (SCM),
in particular its provisions on "Prohibited Subsidies"
(Article 2 and Annex I) and its "Guidelines on Consumption
of Inputs in the Production Process" (Annex II). Different
views have been expressed on the likely treatment under the Agreement
of a rebate for exported products of indirect environmental taxes
on a non-product-related PPM in excess of the tax rebated on like
products when sold for domestic consumption. One view is that
energy taxes appear to be covered by Footnote 61 of the SCM Agreement.
Another is that the principle of physical incorporation remains
the basis upon which BTA is applied.
54. Views have been presented
by some and questions were raised by others on methodologies to
value environmental resources for the purposes of taxation, and
the potential impact of different types of environmental taxes
and charges on the trade of developing countries.
ITEM 3(B)
The relationship between the provisions of the multilateral
trading system and requirements for environmental purposes relating
to products, including standards and technical regulations, packaging,
labelling and recycling
55. The key point of reference
for discussion of this Item has been the WTO Agreement on Technical
Barriers to Trade (TBT) and its relationship to environmental
regulations and voluntary standards. Discussions focused on environmental
labelling (eco-labelling) schemes/programmes and measures and
their relationship to the provisions of the TBT Agreement. Considerable
empirical and analytical work was done by the GATT EMIT Group
in this area, covering not only ecolabelling but also environmental
packaging and waste handling requirements. That work has been
recalled, and some stressed their continued interest in taking
up again the analysis on environmental packaging, waste handling,
and related requirements.
56. Discussions on eco-labelling
have been enriched by presentations of several existing ecolabelling
schemes/programmes at a joint informal session of the CTE and
the TBT Committee. Those presentations illustrated the variety
of approaches that have been adopted towards eco-labelling by
WTO Members and described the perceived environmental benefits
and cost effectiveness of the different approaches.
57. Some consider there are still
few eco-labelling schemes/programmes in operation in WTO Member
countries and they have expressed doubts about them becoming a
significant new force in the market. In this regard, some questioned
why the CTE spent a large amount of time discussing voluntary
eco-labelling schemes/programmes, given that approximately 20
schemes/programmes were in operation. Some feel that a deeper
analysis of eco-labelling schemes/programmes is required to determine
their effectiveness as policy instruments for environmental protection,
particularly in view of their potential trade-distorting nature.
58. Some noted that Agenda
21 recognized the importance of eco-labelling as an environmental
policy tool to assist consumers in making informed choices, along
with the need to develop criteria and methodologies for the assessment
of environmental impacts and resource requirements throughout
the full life-cycle of products and processes.
59. Some have noted that eco-labelling
schemes/programmes are variously administered in different Members
by central governments, local government bodies, and non-governmental
bodies. Some of those administered at the local government level
or by non-governmental standardizing bodies have significant government
involvement at various stages of the process from product selection
to product certification and the award of a label.
60. Existing eco-labelling schemes/programmes
are overwhelmingly voluntary in nature, which some consider should
relieve concerns that may exist about their potential trade restricting
effects. Some others express doubts in that regard, however, saying
that if the schemes/programmes are successful they influence consumer
behaviour and that in this respect they can affect significantly
market access and conditions of competition.
61. One focus of discussion has
been the implications that the use of Life-Cycle Approaches (LCA)
in some eco-labelling schemes/programmes can have in requiring
inter alia the use of nonproductrelated PPMs
in order for a product to be eligible to receive an eco-label.
Some have said in this context that LCA can result in standards
that are based on a mixture of criteria relating to product and
performance characteristics, product-related PPMs and non-product-related
PPMs. They have suggested that it would not be practical to separate
the coverage under WTO provisions of ecolabelled products
according to the nature of the criteria used, and that all criteria
involved in granting an eco-label should be covered by WTO disciplines.
From an operational perspective an eco-labelling scheme programme
needs to be treated as an integrated whole under WTO provisions.
62. One Member noted that the
business community in both developed and developing countries
acknowledged non-product-related PPMs as one of the realities
of the marketplace. In many cases, business was more concerned
about transparency and consultation issues, rather than with whether
or not a particular standard was based upon non-product-related
PPMs. However, developing country exporters appeared to require
additional time to adapt to new requirements. A number of individual
case studies demonstrated the pragmatic attitude of some developing
country textile exporters in meeting non-product-related PPM requirements.
63. Another Member noted that
a number of developing countries had reported difficulties in
complying with standards based on non-product-related PPM. These
problems were particularly acute for small firms, because of difficulties
in obtaining and adapting required technology, among other factors.
While transparency was a basic requirement, it was not considered
adequate, as complying with the standard would restrict their
market access.
64. Some others have expressed
concern that multiple criteria-based schemes/programmes will inevitably
reflect the environmental conditions, preferences and priorities
prevailing in the domestic market, and that this can create market
access difficulties. Overseas suppliers operating under different
sets of environmental conditions could find it difficult and costly,
especially in developing countries, to adjust their products to
meet the criteria required in their export markets, and may even
be placed in a situation of having to adopt practices unsuited
to their local environmental conditions. They have expressed concern
also about the implications of the use of LCA based inter alia
on non-product-related PPMs, particularly where these are chosen
selectively by an ecolabelling authority, for the maintenance
of WTO disciplines based on the principle of "like product".
65. The view of some is that
there is a need to extend the examination to different types of
eco-labelling standards and discuss the trade implications of
each. In this regard, it is felt important when designing LCA-based
eco-labelling standards to recognize adequately different countries'
particular environmental conditions and to accommodate different
approaches that produce an equivalent, environmentally-beneficial
result. Also, eco-labelling schemes/programmes should be designed
so as to ensure that they provide sufficient and accurate information
to consumers regarding the relative environmental impacts of competing
products, and in that respect the principles of truthfulness,
scientific basis and substantiability are important.
66. The CTE examined the relationship
of the provisions of the TBT Agreement to ecolabelling in
the light of a document prepared by the WTO Secretariat. The CTE
discussed (i) the application of the notification and other transparency
provisions of the TBT Agreement to voluntary eco-labelling standards,
and (ii) the applicability of the provisions of the TBT Agreement
to voluntary eco-labelling schemes/programmes based, inter
alia, on criteria on nonproduct-related PPMs.
67. Divergent views were expressed
in this regard. Some expressed the view that the analysis of the
two issues may not be conducted separately, and consequently should
be dealt with together.
68. With regard to the first
issue, given various trade-related concerns about ecolabelling
schemes/programmes, it is a widely held view that full transparency
plays a pivotal role in avoiding potential trade difficulties
and increasing the legitimacy of such schemes/programmes and participation
by interested parties in their development. It was recalled that
the TBT Committee has decided that mandatory labelling requirements
are subject to the notification provisions of Article 2.9 of the
TBT Agreement regardless of the kind of information that is provided
on the label.
69. Some consider that all voluntary
eco-labelling standards are subject to the transparency provisions
of the Code of Good Practice for the Preparation, Adoption and
the Application of Standards (Annex 3 of the TBT Agreement). Some
others consider that voluntary schemes/programmes based on LCA
do not seem to be fully covered by the transparency provisions
of the TBT Agreement to the extent that criteria concerning non-product-related
PPMs do not fall within the definition of "Standard"
in Annex 1. Furthermore, in accordance with this view, a
partial coverage is not in practical terms sensible, because in
the operation of these schemes/programmes all criteria established
for specific categories of products have to be jointly taken into
account when awarding the label.
70. With regard to the second
issue, many delegations expressed the view that the negotiating
history of the TBT Agreement indicates clearly that there was
no intention of legitimizing the use of measures based on non-product-related
PPMs under the TBT Agreement, and that voluntary standards based
on such PPMs are inconsistent with the provisions of the Agreement
as well as with other provisions of the GATT. There is objection
to any attempt through CTE work on eco-labelling to extend the
scope of the TBT Agreement to permit the use of standards based
on non-product-related PPMs.
71. Another view is that the
definition of the term "Standard" in the TBT Agreement
is ambiguous with respect to its coverage of standards based on
non-product-related PPMs. Some Members suggested that the definition
does not seem to cover standards based, inter alia, on
nonproduct-related PPMs. It cannot be stated, therefore,
a priori, that such standards are inconsistent with the
terms of the Agreement. It has been suggested that, if any kind
of inconsistency between the use of LCA tools in the context of
voluntary eco-labelling and the provisions of the multilateral
trading system were identified, the CTE should, in accordance
with its terms of reference and the first preambular paragraph
of the Agreement establishing the WTO, devise positive solutions
to preserve the integrity of LCA. This would not imply that the
use of nonproduct-related PPM requirements would be generally
allowed.
72. Still others have stated
that the TBT Agreement does not cover measures based on nonproduct-related
PPMs, and voluntary eco-labelling schemes/programmes based on
LCA are not covered by transparency provisions of the Agreement,
since criteria concerning non-product-related PPMs do not fall
within the definition of "Standard" in Annex 1. The
CTE is not the proper forum to discuss preserving the integrity
of LCA. Further, environmental impacts of different stages of
a product depend on the absorptive capacities of different countries.
73. Another view is that all
forms of eco-labelling, including eco-labels that involve nonproduct-related
PPMs, are covered by the TBT Agreement and that the inclusion
of nonproduct-related PPM-based elements in an eco-labelling
regime is not per se a violation of WTO rules. According
to this view, the TBT Agreement provides sufficient flexibility
to permit non-product-related PPM-based eco-labelling to be used,
subject to appropriate trade disciplines, and the validity of
any eco-labelling regime under the WTO must be judged according
to the relevant rules of the multilateral trading system.
74. A number of specific proposals
have been made. One is to confirm that the provisions of the TBT
Agreement and its Code of Good Practice for the Preparation, Adoption
and Application of Standards apply to all eco-labelling schemes/programmes,
whether voluntary or mandatory, and whether administered by governmental
or nongovernmental bodies. In addition, the CTE, jointly
with the TBT Committee should in its future work-programme analyse
the impact of the development of international standards based
on LCA in a way that does not prejudice the views of Members regarding
non-product-related PPMs. In this regard it has been suggested
that the scope of the TBT Agreement should be interpreted to cover
the use of standards based upon nonproduct-related PPMs
in eco-labelling schemes/programmes provided that these standards
adhere to multilaterally-agreed eco-labelling guidelines based
on scientific criteria, are transparent, consensual and non-discriminatory.
75. In response to this proposal, some have stated that they do not see any need to confirm what is already included in existing provisions of the TBT Agreement, and they have opposed changing the interpretation or application of the TBT Agreement to permit standards to be based on nonproductrelated PPMs. In this regard, they have objected to including as a point of reference in the TBT Agreement international standards based on LCA that are currently being developed by the International Organization for Standardization (ISO). In their view, accepting LCA under the TBT Agreement would permit one country to impose its environmental priorities on another. They have also expressed concern about the ISO process and the difficulties for some WTO Members, particularly developing countries, to participate effectively in it because of the considerable resource commitments it involves. Consequently, they do not consider that the ISO standards currently being developed in this field take their trade interests adequately into account.
76. Some have suggested more
generally that where environmental standards, not only ecolabelling
but also in such areas as packaging and waste handling, are based
on national environmental attributes which are not necessarily
shared by other countries, international standardization will
not prove to be an acceptable way forward under WTO provisions
as a means of avoiding unnecessary trade restriction or distortion.
Rather, they consider there is a need to examine and develop
the TBT provisions relating to the "equivalence"
of standards and "mutual recognition" of conformity
assessment procedures as a way of alleviating trade concerns.
They have referred to the work of UNEP and UNCTAD in this regard.
77. Another proposal is that
full transparency should be encouraged to enable timely public
input at each stage of an eco-labelling programme's development.
This would reduce the risk that environmental criteria in eco-labelling
schemes/programmes narrowly reflect national considerations, take
different environmental approaches into account, and help ensure
that foreign producers or countries with significant trade interests
in a labelled product have both timely and effective input throughout
the entire eco-labelling process. Transparency provisions should
emphasize the timely access to information regarding product group
definition; the identification and elaboration of environmental
criteria; procedures used in the awarding of labels, and other
factors. Transparency, it has been noted, is of importance not
only to the trading system but to the environmental policy objectives
as well.
78. Another proposal in support
of the importance of full transparency in the development and
operation of voluntary eco-labelling schemes/programmes based
on LCA suggests that two possible options should be considered:
(i) seeking full coverage by the TBT Agreement; and (ii) negotiating
an ad hoc instrument such as a code of conduct taking
as a point of reference the mechanisms and procedures established
in the TBT Agreement. However, the proposal notes that it may
be inappropriate to address the transparency issue without first
clarifying the status of LCA-based voluntary ecolabelling
schemes/programmes.
79. In response to this proposal, some have expressed objection to developing a separate code of conduct.
80. One proposal emphasizes the
potentially adverse market access impact which ecolabelling
schemes/programmes can have on developing countries, and seeks
clarification of the extent to which countries, particularly developing
countries, are able to participate effectively in existing transparency
provisions. Article 12 of the TBT Agreement has been recalled,
in which special and differential treatment of developing country
Members should be accorded. In this regard, the proposal includes
consideration of the transfer of appropriate technologies as one
aspect of an effective transparency regime with regard to eco-labelling
schemes/programmes.
81. Some consider that the discussions
on this Item to date have focused on eco-labelling to such an
extent that insufficient attention has been given to other environmental
product requirements, notably packaging and waste handling requirements,
including recycling requirements. In that regard, one view is
that eco-packaging requirements generally are based on conditions
which reflect the national priorities in the country which imposes
them. Applying these measures to imports might not only be environmentally
inappropriate but also have a negative impact on market access.
According to this view, in depth discussion is necessary on the
best way of ensuring that eco-packaging requirements effectively
comply with the relevant provisions on non-discrimination and
national treatment, since these requirements might lead to significant
de facto trade barriers. Equality of opportunity to
compete is central to this issue, and the effective application
of the concept of necessity is also important.
ITEM 4
The provisions of the multilateral trading system with respect
to the transparency of trade measures used for environmental purposes
and environmental measures and requirements which have significant
trade effects
82. Ensuring that trade measures
used for environmental purposes and environmental measures and
requirements which have significant trade effects (hereinafter
trade-related environmental measures) are transparent helps to
avoid unnecessary trade restriction and distortion from occurring
and provide important information to producers and traders about
overseas market access opportunities. The role which transparency
plays in dispute avoidance was also noted.
83. Trade-related environmental
measures should not be required to meet more onerous transparency
requirements than other measures that affect trade. However, it
has been felt important to examine whether any category of trade-related
environmental measures currently escapes entirely coverage by
WTO transparency provisions, whether existing levels of transparency
provided for are adequate in the light of a measure's potential
trade effects, and what improvements might be made to facilitate
WTO Members' access to information about these measures. Many
emphasize the horizontal nature of transparency and its links
to discussions under Items 1, 3, 6, 7, 8 and 9.
84. There were initial concerns in the CTE that certain categories of trade-related environmental measures may not be covered at all by WTO transparency provisions and that consequently there may be absolute gaps which would need to be filled. A list was drawn up of the measures mentioned in this regard. On the basis of a Secretariat survey, it was noted that notifications of these measures are being made by at least one Member under one or other WTO provisions. From the point of view of some therefore, the new Uruguay Round Agreements have filled the gaps which were previously identified. It has been noted also that some Trade Policy Review (TPR) reports contain information on these measures, and that TBT and SPS enquiry points are available to provide supplementary information on measures covered by those Agreements.
85. As regards the adequacy of existing levels of transparency for particular categories of trade-related environmental measures, it has been noted that WTO provisions provide incremental degrees of transparency. Beyond the general GATT obligation to publish information about all trade-related measures, higher degrees of transparency are achieved through ex post notification requirements, ex ante notification requirements, and through the establishment of enquiry points under the TBT and SPS Agreements. One view is that the degree of transparency should be correlated with the potential significance of a measure's trade effects, and a suggestion was made for the CTE to conduct more work on the potential significance of the effects of trade-related environmental measures. Some feel that in any event these measures warrant being made subject to ex ante notification so that foreign suppliers can comment upon them at an early stage in the development of legislation, and that special enquiry points should be established in each Member to provide upon request additional information about them. Others feel, however, that while the introduction of more stringent transparency requirements might be warranted in specific instances, no transparency provision is without cost and this issue should be pursued on a case-by-case basis under other Items of the CTE work programme or in specialized WTO Committees. Specific concerns raised about the adequacy of existing provisions for ensuring the transparency of trade measures taken pursuant to MEAs and of voluntary ecolabelling schemes/programmes were pursued further under other Items of the work programme dealing directly with those measures.
86. The issue of establishing
special enquiry points in Members to provide upon request information
about trade-related environmental measures was taken up in the
context of discussions on what improvements might be made to facilitate
Members' access to information about these measures. One proposal
suggests consideration be given to establishing enquiry points.
Another proposes that information on trade-related environmental
measures which do not fall within the purview of TBT or SPS enquiry
points should be provided through national enquiry points or relevant
authorities. They could handle requests for additional information
on measures notified under the WTO, or more generally supply information
to Members, especially developing country Members, about any non-notified
trade-related environment measures in effect as well as informing
exporters about market opportunities created by environmental
measures, such as government incentives for the consumption of
certain products, government procurement requirements which give
preference to products that fulfilled voluntary environmental
standards, and information on NGO programmes for environmentally-friendly
products.
87. Concern has also been expressed
about the creation of enquiry points. Some have expressed doubts
about the appropriateness of establishing a mechanism that is
based on a measure's policy purpose rather than its characteristics,
which is not traditional WTO practice. There are concerns also
about the administrative costs involved in operating them, which
it is felt would need to be weighed against their potential benefit
in terms of increased transparency in order to justify the use
of resources. Some stress the need not to duplicate the work of
TBT and SPS enquiry points or other WTO transparency provisions,
and some express concern about the essentially bilateral nature
of the transparency which would be generated in this way.
88. Views have been expressed
that lack of transparency may be associated more with differences
in interpretation among Members of how existing WTO transparency
provisions apply to trade-related environmental measures or differences
in compliance with those provisions than with any systemic inadequacy.
This could make it difficult for Members to have comprehensive
and consistent information about trade-related environmental measures.
It is proposed, therefore, that Members should collectively clarify
existing notification obligations covering traderelated
environmental measures. Some others feel this matter could be
addressed more properly in the Working Group on Transparency Obligations
and Implementation than in the CTE, and it is suggested that the
results of the CTE's discussions on this issue should be transmitted
to that Working Party.
89. Some have noted that the
absence of a centralized collection point in the WTO for notifications
of trade-related environmental measures which makes it difficult
at present for Members to retrieve information about these measures
easily and efficiently. In this respect, a proposal was made that
the Secretariat should therefore collect from the Central Registry
all such notifications in a single database, which would be regularly
updated. The database could contain the following information
for each notified measure: its nature/title; objective(s); product
coverage; relevant WTO or MEA provisions; a description of how
it operates; and comments on its trade effects. It could include
also information provided on an essentially bilateral basis by
national enquiry points, which should be copied to the WTO Secretariat
so that this could be made available on a multilateral basis,
as well as information on trade-related environmental measures
provided in TPR reports. Attention has been drawn in this context
to the existence of other databases of this nature, for example
one maintained by UNCTAD, and it is felt it would be important
not to create duplication.
90. Some suggest that TPR reports
can help improve transparency by covering trade-related environmental
measures systematically. However, others feel it is not appropriate
for the TPRM to become involved in environment-related issues
which they consider lie outside its mandate.
91. One point raised in relation
to all of these proposals is the difficulty of defining the term
"environment" in an operational way for the WTO. Many
trade-related measures can be associated with a variety of different
policy objectives, and environmental or conservation aims may
be only a secondary or related policy characteristic. For some,
this makes it difficult to arrive at any conclusion on whether
gaps in transparency exist, and they feel that greater definitional
clarity would be particularly important in the context of considering
proposals for enquiry points dedicated to trade-related environmental
measures.
ITEM 6
The effect of environmental measures on market access, especially
in relation to developing countries, in particular to the least
developed among them, and environmental benefits of removing trade
restrictions and distortions
92. This Item is of relevance to many aspects of the CTE's terms of reference and to WTO Members' agreement to conduct their trade relations in a way which allows for the optimal use of the world's resources in accordance with the objective of sustainable development, while seeking to both protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.
93. Extensive reference has been
made by some during discussions under this Item to the importance
of a number of the general principles contained in the Rio Declaration.
94. One is that poverty is a
basic cause of environmental degradation in many Member countries,
and that the contribution trade can make to the eradication of
poverty by raising income levels is an indispensable requirement
for the promotion of sustainable development.
95. A second is that it is not
trade that is generally at the root of environmental degradation,
but rather unsustainable production and consumption processes.
Some consider this has important implications for choosing and
assigning corrective policy measures efficiently. Some have noted
in this regard that the key to the achievement of environmental
benefits is the development of more sustainable patterns of production
and consumption.
96. A third is the principle
of "common but differentiated responsibility". Some
feel this should be applied to an examination of the introduction
of new trade-related environmental measures which could create
high adjustment costs for developing countries exporters. Some
others have noted that all countries have the sovereign right
to make their own judgements on the standards which they apply
within their own territories and that in this regard there is
a need to ensure flexibility and fairness in the implementation
of sustainable development strategies in all countries.
97. A fourth principle is that policy measures applied to promote the internalization of environmental costs should not distort international trade and investment. One comment made in this regard is that measures to improve environmental conditions in one country should not shift the costs onto others. Another is that the polluter should, in principle, bear the costs of pollution.
98. A fifth is that Members should
cooperate to promote a supportive and open international economic
system that would lead to economic growth and sustainable development
in all countries, to better combat the problems of environmental
degradation. Some considered that where trade liberalization does
not bring environmental benefits, it should be accompanied by
complementary environmental and resource management policies if
its full potential contribution to better protecting the environment
and promoting sustainable development through more efficient allocation
and use of resources is to be realized. Some others stressed that
while an open multilateral trading system makes possible a more
efficient use of natural resources in both economic and environmental
terms, the achievement of sustainable development depends crucially
on the implementation of sound environmental policies at the national
and as appropriate at the international level. Some consider that
trade liberalisation in general results in environmental benefits
although in some cases it may need accompanying environmental
policies.
99. One proposal describes the
problems of low-income, commodity-dependent countries and other
countries which remain marginal participants in world trade, and
notes that the most urgent environmental problems they face are
often different from those of other countries. It suggests that
action by their trading partners to assist the expansion and diversification
of their export opportunities, including diversification into
higher value-added products, could help these countries in their
efforts to both reduce poverty and protect the environment. Some
others consider that trade liberalization should be accompanied
by technology and financial transfers to developing countries.
100. Some consider there is a
need for more empirical and analytical work on the design and
sequencing of trade and environmental policies to address the
fact that trade liberalization might exacerbate environmental
problems in terms of the income, scale, composition, technology
and product effects resulting, in certain circumstances, from
market and policy failures. Some take the view that the elimination
of trade restrictions and distortions that affect international
commodity prices is a sine qua non for achieving the goals
of environmental protection and sustainable development, particularly
in developing countries; their elimination should not be made
conditional on changes in environmental policies in exporting
countries. Some feel that even if in certain circumstances trade
liberalization may magnify existing environmental problems, the
proper policy response is to put in place the necessary environmental
and domestic resource management policies. Policy choices in that
regard, it is felt, are the responsibility of governments at the
national level.
101. One proposal suggests that:
(i) freer trade can contribute to an expansion of economic growth;
(ii) economic growth, accompanied by sound environmental policy,
can improve environmental quality; (iii) eliminating market distortions
leads to more rational and efficient use of market resources,
thereby supporting sustainable development; (iv) opening agricultural
markets contributes to a more efficient allocation of resources
and may improve environmental quality; and (v) agro-environmental
policies that internalize environmental externalities contribute
to a more efficient allocation of resources and improve environmental
quality. It also notes that sound environmental policies directed
at those unique nationally-specific environmental problems are
preferable to trade restrictions. It concludes that free trade
and environmental policies can work in tandem to achieve social
benefit, economic growth and environmental quality.
102. Many consider that environmental
problems should be dealt with at the national level by Members
at their source, and not indirectly through trade restricting
or distorting measures applied by their trading partners. In this
regard, Principle 11 of the Rio Declaration was recalled. This
Principle recognizes that "States shall enact effective environmental
legislation. Environmental standards, management objectives and
priorities should reflect the environmental and development context
to which they apply. Standards applied by some countries may be
inappropriate and of unwarranted economic and social cost to other
countries, in particular developing countries." Measures
based on non-product-related PPMs were referred to particularly
in this regard. Some expressed concern that while it might prove
necessary to base environmental measures on life cycle analysis
and non-product-related PPMs, these should not be applied in such
a way as to differentiate "like products" at the border.
Some have noted that Members have a responsibility to ensure that
activities within their jurisdiction do not cause physical environmental
damage elsewhere, but transboundary environmental problems should
be resolved cooperatively through the negotiation of MEAs; claims
that unilateral action may be necessary where it proves difficult
to negotiate an MEA are unacceptable and such action would damage
seriously the trading system.
103. In that context, many have
noted that environmental standards differ from one country to
another and trade-related measures should not be used to try to
harmonize them or compensate for differences between them. Some
feel this could amount to the extra-jurisdictional imposition
of a country's environmental standards on its trading partners.
In addition, it could cause both adverse economic and adverse
environmental effects where producers are required to adapt to
PPMs that are not suited to the local environmental conditions
of countries in which their production is based. Some have referred
to the 1995 Report on Trade and Environment to the OECD Council
at Ministerial Level in which governments confirmed their commitment
to Agenda 21 and Principle 12 of the Rio Declaration, and
agreed that "these principles also extend to unilateral import
restrictions based on PPM-related requirements". It has been
suggested by some that enhanced market access could be granted
for some sectors like wood products, fisheries and agriculture,
particularly to developing countries having better environmental
absorptive capacities, thereby enhancing their income and engendering
balanced environmental protection.
104. The effect of environmental measures on market access, especially in relation to developing countries, in particular to the least developed among them, is widely viewed as a cross-cutting issue which could be taken up in part in a more detailed way in respect of particular trade-related environmental measures addressed under other Items of the CTE work programme.
105. At the general level, some
have recalled the conclusions of the OECD that high levels of
environmental protection can have positive effects on the competitiveness
of domestic producers by encouraging them to economize on resource
use and otherwise increase their efficiency, and can stimulate
the development of new products, services and technologies, thereby
creating new market opportunities.
106. Some others consider these
opportunities may not be easy to access by producers in a large
number of WTO Members, particularly small and medium scale enterprises
(SMEs) in developing and least developed countries. Analysis and
empirical work by UNCTAD was recalled in this regard which, it
was stated, showed that compliance costs could be considerably
more burdensome for developing countries. Substantial financial
and technological resources as well as technical and administrative
expertise, and in certain cases even material resource endowments,
might be required to adapt to new regulations and standards in
export markets, and these are frequently not available to developing
country producers. This could take on an important dimension and
lead to the creation of non-tariff trade barriers. Eco-labelling
and packaging requirements and eco-taxes have been mentioned in
this connection. There is, therefore, concern that environmental
measures could have, and do have in the view of some, significant
adverse trade effects, particularly for developing countries.
107. One view is that to mitigate
and eliminate their adverse trade effects, environmental measures
should be based on the criteria of sound science, transparency,
and equity, and they must be compatible with the open, equitable
and non-discriminatory nature of the trading system and conform
to its basic provisions and disciplines. Some consider that in
the design of environmental measures, use of environmental principles
such as the precautionary principle and the principle of proportionality
between environmental benefits and economic costs should be studied
from the point of view of the effects of their application on
the trade of developing countries.
108. Some consider that strengthened
WTO disciplines might be justified to reduce and eliminate the
adverse trade effects of certain environmental measures. In this
regard, one contribution suggests that work should focus on safeguarding
existing market access opportunities, particularly for SMEs which
account for a large share of manufactured exports in developing
countries. Various WTO provisions should be reviewed from this
point of view, in particular the provisions of the TBT and SPS
Agreements, the Agreement on Subsidies and Countervailing Measures
and the TRIPs Agreement, as well as all WTO provisions for special
and differential treatment for developing countries. Further work
should also address means of increasing market access for environmentally-friendly
products from developing countries including the development of
environmentally-sound technologies for such products and their
use. One suggestion made in this regard is to examine how best
to allow developing countries to benefit from differential schedules
for compliance with trade-related environmental measures, such
as time limited exceptions, or the development of an environmental
de minimis clause. Another is to explore the means of providing
additional technical assistance to developing countries.
109. In discussions on the environmental benefits of removing trade restrictions and distortions, the environmental benefits that are accruing from implementation of the commitments agreed in the Uruguay Round negotiations have been widely noted. Many consider the focus of further work should be trade and trade-related measures applied by Members that will remain after the Uruguay Round results are fully implemented. Measures cited by one or more Members in the CTE are tariff escalation and tariff peaks, production and export subsidies, high internal taxes particularly on tropical products, export restrictions and export taxes, the export practices of state trading enterprises, and various non-tariff barriers. Reference has been made in particular to the potential environmental benefits which could accrue from the reduction and removal of remaining trade restrictions and distortions affecting sectors and products in which developing countries have a particular export interest, such as textiles and clothing, leather and leather products, footwear, forest products, fish and fish products, minerals and mining products, agricultural products, other natural resource-based products and primary commodities. Many support the need for further empirical work and analysis in these areas. These effects could be positive or negative. Positive effects, or opportunities, are not always easy to exploit and require expertise, technology and resources which may not always be available to developing countries. It also was noted that the globalization of the economy suggests the need to look for trade liberalization across the board.
110. Environmental benefits are
expected to accrue in a variety of ways. Some consider they accrue
most directly through the removal of trade restrictions on environmentally-friendly
goods and environmental services; they will accrue also through
the removal of restrictions on the transfer of environmentally-sound
technologies (discussion under Item 8 reflects different views
on this point); in addition, trade restrictions and distortions
can lead to an inefficient allocation of resources, hold back
income growth, particularly in developing countries, and artificially
shift resources into activities which place additional pressure
on domestic, environmentally sensitive resources; reducing or
removing them would help to correct this. Some others also consider
that to ensure direct and substantial environmental benefits,
trade liberalization should be complemented by measures to improve
market access, access to environmentally-sound technologies, finance
and capacity building.
111. The environmental effects
of subsidies, in particular in the agriculture sector, and of
tariff escalation were paid particular attention in the CTE discussions.
112. Some have focused on the
adverse environmental effects of the subsidization of agricultural
production and exports. These are described as involving or arising
from intensified land use, increased application of agro-chemicals,
the adoption of intensive animal production practices and overgrazing,
the degradation of natural resources, loss of natural wildlife
habitats and biodiversity, reduced agricultural diversity and
the expansion of agricultural production into marginal and ecologically
sensitive areas. Agricultural assistance through output-related
policies in many OECD countries was shown to have imposed high
environmental costs in those countries at high financial expense.
It also imposed high economic and environmental costs on other
countries with a comparative advantage in agricultural production
and trade, particularly developing countries. Empirical work by
the OECD, UNCTAD, and the FAO was cited in this regard, and many
consider it important to extend that further. A number of delegations
consider that further reductions of agricultural protection and
support would represent a "win-win" situation for trade
and environment.
113. Some others feel it is inappropriate for the CTE to focus narrowly on the agricultural sector. They also consider that it would not be appropriate for the CTE to engage in discussions that would prejudge the agriculture negotiations. They feel that the WTO Agreement on Agriculture remains the best suited forum for the consideration of agricultural liberalization, since it already contains a built-in structure for dealing with such issues, and they express caution about drawing generalized conclusions on the environmental impact of agricultural support programmes, which they feel is a complex issue. Further analysis is needed to take account of differing geographic and environmental conditions between countries, different levels of socioeconomic development, and other factors, and this should be done on a country basis
case-by-case. The environmental
externalities associated with agriculture need not only be negative;
agriculture has a dual environmental function and it can have
positive environmental effects through conservation and related
practices. Abandoning farming might lead to environmental damage
associated with soil erosion or biodiversity loss. Well-designed
agricultural support programmes, they feel, could have beneficial
effects on the environment, as well as on the linked issues of
food security and sustainable development. A reference has been
made in this regard to FAO work on Sustainable Agriculture and
Rural Development. These Members noted that sustainable agriculture
requires an integrated approach combining environmental, social
and economic factors into a comprehensive framework of political
and economic decision-making. They considered that strategies
resulting from the understanding of these linkages should correspond
to the multiplicity of functions of agriculture, including the
protection of natural resources and the preservation of the landscape.
114. Many point to the potential
economic and environmental benefits they feel would accrue from
the reduction and removal of tariff escalation by helping to raise
the value added by producers in commodity-dependent countries,
increase incomes in those countries, and reduce direct pressure
on natural resource exploitation. Some suggest that on similar
grounds benefits could be expected to accrue also from the reduction
and removal of export restrictions on primary products.
115. One proposal focuses on
the need for environmental policy to build upon prices that reflect
full private costs of production. Therefore, it suggests that
the first step to this end should be to identify and eliminate
those governmental policies responsible for these price distortions.
It proposes that the CTE address in its future work the need for
fundamental, on-going reform in the agricultural sector and identify
ways and means to reduce and eliminate trade restrictions and
distortions there. This, it is suggested, would be a contribution
to future negotiations under the Agreement on Agriculture.
116. Another proposal notes that
there is considerable scope to promote more sustainable agricultural
policies and practices in the context of the agenda built-in to
the Uruguay Round results for the continuation of the reform process
in agriculture.
117. One proposal suggests that there are various inter-related factors, including natural conditions, and socio-economic circumstances in each country which cause environmental problems, and the CTE should advance empirical and theoretical analysis. Agricultural trade liberalization could cause environmental problems in some Members by intensifying pressure on and the degradation of their natural resources if effective environmental policies were not in place. This proposal also suggested that in more general terms trade liberalisation without appropriate environmental policies may have negative effects on the environment.
118. Another proposal, which
is based on the premise that there is no simple or automatic link
between trade liberalization and environmental protection, notes
with respect to the link between pricing policies and environmental
policies, that the effect of trade liberalization on prices cannot
be predicted with certainty, and that adjustment of prices is
not a priori environmentally efficient. Such environmental
efficiency would depend to a certain extent both on wider economic
factors in agricultural markets and the conditions conducive to
structural adjustment in producer economies. Furthermore, market
mechanisms could only lead to both an economically and ecologically
optimal allocation of production resources if full internalization
of environmental costs were achieved. This is difficult to achieve,
and is a function not only of price levels but also of political
will.
119. In reaction, the difficulties
involved in the internalization of environmental externalities
have been noted by some. In their view, an important consideration
is that internalization needs to take account of and coincide
with development priorities. Other questions also have been raised,
such as who would decide what and when to internalize, and whether
the decision should be taken based on scientific evidence and
relying on cost-benefit analysis.
120. Another proposal suggests that it is not appropriate to draw the hasty conclusion that the removal of trade distorting agricultural measures will have environmental benefits, or that distorting measures necessarily have negative environmental effects when helping to correct market failures. It is therefore proposed to undertake analytical and empirical studies, on a caseby-case basis taking into account country-specific conditions, to determine the relationship between agricultural trade and the environment. This proposal also suggests that particular respect should be given to the issues of food self-sufficiency towards food security, particularly in net food importing countries.
121. Another proposal suggests
that in negotiations on further trade liberalization, the WTO
should ensure that environmental consequences are considered.
In this respect, the WTO should be supportive of efforts to internalize
environmental costs. One way to proceed in the CTE may be to identify
sectors where trade liberalization could be conducted in a way
so as to yield both economic and environmental gains. The energy
sector was pointed out as one example where trade liberalization
(inter alia, the reduction of subsidies and other measures)
may result in such a double dividend. Further, the links between
trade rules and environmental principles, in particular the polluter-pays
principle (PPP) and the precautionary principle, should be examined.
The CTE should also examine how to integrate concerns related
to use of the life-cycle approach. It was suggested that the multilateral
trading system should offer scope for incentives for the use of
environmentally friendly products, and that the multilateral trading
system should not encompass incentives for production and use
of environmentally-damaging products.
122. Some have questioned and
objected to this proposal, particularly in reference to the energy
sector. One specific reaction is that any proposal regarding analysis
of incentives for the use of environmentally-friendly products
should take account of the complexities of the links between energy
generation and use and environmental quality. National decision
making on energy choices includes such variables as efficiency
in production, availability of energy sources, economic costs
for users and social impacts on the local population. Offering
or withdrawing incentives to products, for example energy, cannot
be undertaken on a selective basis.
ITEM 7
The issue of exports of domestically prohibited goods
123. This issue covers products
whose sale and use are banned or severely restricted domestically
on the grounds that they present a danger to human, animal, plant
life or health or the environment, but which nevertheless may
be exported. It is of particular concern to many developing and
least-developed countries. In 1991, a GATT Working Group on Domestically
Prohibited Goods and other Hazardous Substances (DPGs) produced
a "draft Decision on Trade in Banned or Severely Restricted
Products and Other Hazardous Substances". Consensus to adopt
the decision could not be reached. Taking account of the need
not to duplicate or impede work done or underway in other intergovernmental
fora to improve the monitoring and control of trade in DPGs, the
CTE has examined what additional contribution the WTO might make
in this area.
124. Since the examination of
this issue by the GATT Working Group on DPGs, a number of new
international agreements and conventions dealing, inter alia,
with the monitoring and control of trade in certain DPGs have
entered into force and others are under negotiation. Particular
mention has been made in this regard of the Basel Convention on
the Control of Transboundary Movements of Hazardous Wastes and
their Disposal, the preparation under the Amended London Guidelines
of an internationally legally-binding instrument for the application
of the Prior Informed Consent (PIC) procedures for certain hazardous
chemicals in international trade, the decision to develop a draft
Protocol on Liability and Compensation for Damage Resulting from
Transboundary Movements of Hazardous Wastes and their Disposal,
and the draft Protocol on Bio-Safety. Multilateral rules on exports
of DPGs should continue to be developed primarily through environmental
instruments such as these.
125. A draft Decision on Exports
of Domestically Prohibited Goods has been submitted to the CTE
for consideration. It draws on elements of the 1991 draft GATT
Decision on this subject, including, inter alia, the definition
of product coverage, the obligation of exporting countries to
notify other WTO Members of DPGs they export if these are not
already being notified under another international instrument,
and the need to ensure that measures taken for the purpose of
the Decision are in conformity with WTO rules. The draft Decision
includes provisions for technical assistance to be provided to
Members in this area, for enquiry points to be established, and
it encourages exporting Members to consider whether the measures
they apply to DPGs domestically should also be applied to exports.
126. Some consider that while
the WTO's role should be limited strictly in this area to supplementing
the activities of other specialized international organizations,
it nevertheless has within its competence an important contribution
to make by helping to fill any gaps which may be left by existing
mechanisms in the monitoring or control of exports of DPGs and
by helping to strengthen the regimes of other international instruments
whose provisions are not legally-binding or which are voluntary.
Two general areas of potential gaps have been suggested: DPGs
not covered by other international instruments, and DPGs exported
by WTO Members which are not Parties to those other international
instruments. With regard to this first area, some consider that
special emphasis should be placed on exports of domestically prohibited
or severely restricted consumer goods, cosmetics, foodstuffs and
certain pharmaceutical products. Another view is that hazardous
wastes should not be dealt with under this Item since they are
already fully covered by the Basel Convention.
127. Some consider that much
trade in DPGs is already covered by existing international instruments
and that with further improvements in their operation the issue
of exports of DPGs will prove to be of decreasing importance.
They feel that the identification of potential gaps in coverage
of DPGs, to the extent they exist, is technical work which lies
outside the WTO's competence and which could be undertaken better
by, or only in consultation with, other relevant international
organizations such as UNEP and WHO. They have pointed to the information
contained in existing notifications by Members under the TBT and
SPS Agreements about technical regulations they impose on the
sale or use of products on the domestic market, and they have
suggested that this may provide an important source of information
on DPGs and help resolve the perceived problem. They doubt there
is a further contribution which the WTO could make in this area
that would fall within its competence or mandate, beyond ensuring
that WTO rules do not conflict with the rules of other multilateral
instruments applied in this area.
128. Ensuring the transparency
of trade in DPGs has been felt by some to be an area where the
WTO could contribute, but without duplicating existing transparency
and notification procedures in other relevant international instruments
to which priority should always be given, nor in relevant WTO
Agreements such as the TBT and SPS Agreements. Some have suggested
that countries exporting DPGs could be required to notify the
products in question, and that they could establish enquiry points
to provide, on request, information about why the domestic sale
or use of the products notified has been banned or severely restricted.
Another suggestion is that WTO Members may limit exchange of information
in this area to regulatory actions relating to DPGs. Some emphasize
the importance of ensuring that one Member's notification of a
DPG in the WTO would not lead to its exports being treated differently
by an importing country from exports of the same product from
other countries or from domestically produced goods. Some others
consider that a DPG notification programme, including prohibited
but also severely restricted goods, would create a serious administrative
burden and the important amount of notifications resulting from
such a programme would eventually impair transparency. One suggestion
is to consider to what extent an environmental data base, as examined
under Item 4, could address the problem, or whether a chapter
dealing with DPG regulations could be included in TPR reports.
129. One issue examined was where
the responsibility for taking a decision to restrict trade in
DPGs should lie: with the exporting country, the importing country,
or jointly between the two? Some feel that a reasonable degree
of the responsibility for controlling trade should lie with the
exporter, which should consider extending its domestic sales bans
and restrictions to exports or engage in mandatory labelling of
DPGs. However, some express concern that this could imply endorsement
of a Member applying its own health or environmental standards
extra-jurisdictionally. Another view is that the decision to restrict
trade in a product should lie exclusively with the importing country,
but that the exporting country could be asked to cooperate in
ensuring the decision was implemented effectively.
130. Providing technical assistance
to help Members improve their capacity to take informed decisions
about whether or not to import DPGs and to monitor their imports
of DPGs more effectively has been viewed as a potentially important
part of the solution to problems in this area, particularly over
the longer term. It has been noted that the customs authorities
of developing countries often lack adequate product testing facilities
and that the absence of product standards and regulations in these
countries adds to the problem, for example by enabling products
to be marketed beyond their expiry dates. It has been recalled
that Chapter 19 of Agenda 21 on "Environmentally sound
management of toxic chemicals, including prevention of illegal
international traffic in toxic and dangerous products" recommends,
inter alia, that capacitybuilding for trade in DPGs
be consolidated by assisting developing countries in developing
and strengthening risk assessment capabilities in order to make
informed decisions about their imports. One view is that the WTO
could cooperate in this regard with other organizations, such
as the Amended London Guidelines and the Basel Convention, which
could provide the necessary technical expertise. Another is that
technical assistance of this kind does not fall within the WTO's
competence or mandate.
131. One suggestion has been
made that compensation and liability should be considered, linked
with a dispute settlement provision, without being necessarily
related to notification and transparency provisions. The rationale
for a compensation and liability provision within the framework
of an instrument which would focus mainly on transparency and
notification has been questioned by others.
ITEM 8
The relevant provisions of the Agreement on Trade-Related Aspects
of Intellectual Property Rights
132. Issues discussed under this
Item include the relationship of the TRIPs Agreement to the following:
the environment generally; the generation of, access to and transfer
of environmentally-sound technology (EST); environmentally-unsound
technologies; indigenous and traditional knowledge; and certain
MEAs in particular the UN Framework Convention on Biological Diversity
(CBD).
133. Recalling the CTE's terms
of reference, one view is that this Item should be approached
from the perspective that WTO rules should promote sustainable
development, with special consideration to the needs of developing
countries. Some feel, in that regard, that the TRIPs Agreement
lacks specific mechanisms to achieve the objectives of sustainable
development and environmental protection. Some others feel that
effective implementation of the TRIPs Agreement enhances the protection
of the environment and encourages the transfer of EST.
134. The role of the TRIPs Agreement
in the generation of, access to and the transfer of EST has been
described by some as the need to strike a balance between the
rights and obligations of IPR holders on the one hand and IPR
users on the other, and between promoting the generation of EST
on the one hand and ensuring access to it and its transfer on
the other. Some believe that such a balance is built into the
TRIPs Agreement, for example in Article 7, and that the Agreement
also authorizes the use of appropriate measures to prevent abuse
of IPRs to ensure that unreasonable restraints will not be placed
on trade or on the international transfer of technology.
135. Some feel that the utility
of EST can be questioned if it is not disseminated and used widely
and that additional rules may be necessary to limit the discretionary
power of owners of technologies to restrict access to EST. It
has been suggested in that regard to review those provisions of
the TRIPs Agreement which deal with patents, compulsory licensing
and anticompetitive practices. Some consider, furthermore,
that IPR protection increases the cost of technology. Obtaining
new technology at a reasonable cost is a concern in developing
countries, particularly for small and medium scale enterprises
(SMEs). Insufficient access to EST can adversely affect developing
countries' competitiveness in export markets as well as their
capacity to protect their environments. Reference has been made
to Agenda 21, which regards access to and transfer of EST
on concessional terms as essential for sustainable development.
Attention has also been drawn to the importance of capacity-building
to allow recipients to identify the technologies most suitable
to their needs. Some feel that in the case of anti-competitive
practices or if access to technologies is not being provided within
a reasonable period by IP owners, such technologies should be
made available through compulsory licensing. Regarding the consequences
of IPR protection for access to and the transfer of EST not in
the public domain, it has been suggested that the lack of adequate
financial resources to facilitate access to technology is an impediment
in the implementation of environmental measures, including those
mandated in MEAs.
136. Some others expressed the
view that by ensuring, inter alia, publication of new knowledge
and by providing R&D returns, effective IPR systems promote
innovation and technology transfer. They noted that technology
must exist before its transfer can be promoted or the benefits
associated with its commercialization shared. They also noted
that consistent rules regarding IP actually facilitate technology
transfer by providing a platform for cooperation among private
and public sector entities. Moreover, the existence of an IP regime
is only one of the factors which supports technology transfer;
others are economic and political stability in the country of
destination, the level of infrastructure and availability of skilled
labour, access to financial resources, as well as domestic policies
concerning investment, market access, services and environmental
regulation which play a more direct role in technology transfer.
137. One contribution, focuses
on the relationship between IPRs and the environment, in particular
the need to encourage the global use of ESTs and products which
are produced with them (EST&Ps) that benefit or protect the
environment. It seeks to reconcile the TRIPs Agreement with the
encouragement of the global use of proprietary EST&Ps relating
to the limited cases where these EST&Ps are mandated to be
used under an MEA or by national authorities or where standards
or other environmental measures are laid down by multilateral
bodies. It proposes that the TRIPs Agreement reconcile the development
or generation of EST&Ps with the easy access to and wide dissemination
of them on "fair and most favourable conditions", interpreted
as "preferential and non-commercial terms". It suggests
that the compulsory licensing provisions in Article 31 and the
term of protection provision in Article 33 should be examined
in such a way as to ensure that they encourage the transfer of
EST&Ps. It also suggests that an obligation be imposed on
IP owners of EST&Ps in the TRIPs Agreement to transfer such
technology and sell such products on "fair and most favourable
conditions" upon demand to any interested party which has
an obligation to adopt these under the national law of another
country or under international law. Such IP owners should be compensated
through a financial mechanism for any losses incurred by them
in complying with such an obligation.
138. Some consider there is no
need to undertake the kind of reconciliation proposed. The experience
of countries with TRIPs-consistent IP systems does not indicate
that a problem exists with the dissemination of EST&Ps as
a result of these systems, but that, rather, problems related
to transfer of proprietary technology or to trade in products
based on such technologies tends to occur as a result of impediments
to foreign investment and trade in such products. No actual problem
with the transfer of proprietary technology or in trade in products
based on such technologies has been established and, should an
actual problem be identified, the true source of the problem should
be identified rather than simply presuming that the source lies
in the TRIPs Agreement.
139. Concerns have been expressed by some Members about the negative effects of some technologies on the environment, in particular the effects of bio-technologies which involve genetically modified organisms whose effects are uncertain. Some have voiced concern over the patenting of micro-organisms, genes, genetic materials and genetically-engineered crops and plants, which they feel raises ethical, moral and religious problems, and over the patenting of life forms which may lead to biodiversity loss and so create environmental and development problems.
140. The view expressed by some
others is that Articles 27.2 and 27.3 of the TRIPs Agreement are
adequate to address real problems in this area, should any arise,
and that national health and safety standards as well as MEAs
can offer additional protection. Also, it is not within the competence
of the WTO to seek to remedy ethical, moral and religious problems.
141. Noting that Article 27.3(b)
of the TRIPs Agreement is to be reviewed in 1999, one view is
that a detailed discussion of its implications in the area of
trade and environment be part of the review. Another view is that
the CTE does not have a role to play in this review, given that
the TRIPs Council is the proper forum and has the necessary expertise
for conducting a review of specific TRIPs provisions, including
Article 27.3(b) as specified in the TRIPs Agreement.
142. With regard to traditional
and indigenous knowledge, one view is that this knowledge has
been the basis for much of the development of modern agriculture
and medicine, yet these communities have to pay for patented products
that are derived from their knowledge and innovation. One suggestion
in this regard is that the TRIPs Agreement should exclude the
possibility of patenting processes and products derived from naturally
occurring biological resources, since it is doubtful these can
be considered "novel" in terms of the criteria for patentability,
but it should accord recognition to traditional interests and
rights holders. New legislation and codes of conduct, including
changes in the notion of trade secrets, may be needed to ensure
that communities which are the source of traditional knowledge
receive benefits from its exploitation. It has been suggested
by those sharing this view that the review of Article 27 of the
TRIPs Agreement should take account of the results of negotiations
on "farmer rights" under the FAO Global System for Plant
Genetic Resources and other developments regarding protection
of traditional knowledge, both in the realm of the CBD and at
the domestic level.
143. Another view is that it
is inappropriate to consider amending the TRIPs Agreement because
traditional or indigenous knowledge is not an IP and involves
subject matter that is widely known or in the public domain. Therefore,
it cannot and should not be deemed to be an IPR. Pursuant to this
view, unrestricted and unpaid access to plant genetic resources
for food and agriculture needs to be maintained for it is to the
advantage of all countries, and that an open exchange of such
genetic material leads to better research, improved knowledge,
more productive crop cultivars and more and better food. Free
movement of plant genetic resources for research and breeding
facilitates gene conservation, including the improvement of crop
gene banks. Rather than seeking a solution in an IPR context,
it was proposed that voluntary agreements involving firms, foreign
governments and indigenous people could provide for benefit-sharing
and technological cooperation to information providers which would
represent an effective means for compensating traditional knowledge
not subject to IP protection; such private contractual arrangements
do not require multilateral disciplines and remove the need for
an international sui generis system in this area.
144. In considering the relationship
of the TRIPs Agreement to MEAs containing IPR-related provisions,
some suggested taking a cautious approach because so little experience
in the implementation of either is available so far. They feel
it lies outside the CTE's competence to judge or interpret provisions
of MEAs, and the CTE should not prejudge or prejudice future MEA
discussions. It has been suggested that input from the private
sector, the scientific community, or NGOs should be sought when
relevant to facilitate work in this area.
145. With a view to ensuring
the objectives and provisions of MEAs and the TRIPs Agreement
are mutually supportive, some suggested an examination of Articles
7 and 8 of the TRIPs Agreement, particularly Article 8.1 which
grants Members the authority to limit R&D activities or approval
of technology on grounds of environmental protection. In that
respect attention has been drawn to Chapter 34 of Agenda 21
which states that technologies in the public domain should be
freely transferred to further MEA objectives and the means explored
to encourage the transfer of privately-owned technologies protected
by IPRs. Another suggestion is to interpret Article 27.2 of the
TRIPs Agreement in a way that is conducive to MEA objectives while
not derogating from it. One question raised is whether the term
"necessary" in Article 27.2 should be interpreted
in the same way as it has been in GATT Article XX, or
whether it should be given a broader interpretation in the context
of MEAs. Noting that, on one hand, some MEAs, such as the Montreal
Protocol either implicitly or explicitly prohibit the use of certain
types of technology in favour of alternative EST, and that, on
the other hand, patent holders may refuse to license EST on reasonable
commercial terms, one proposal has been to ensure that Article
31(b) does not hamper the actual transfer of EST by favouring
a monopolistic position for patent holders of alternative technology,
and by examining whether, for the purpose of Article 31(l), it
would be appropriate to interpret the alternative EST technology
in an MEA as an "important technical advance of considerable
economic significance". This proposal explicitly mentions
that it does not intend to modify the TRIPs Agreement as such,
but to introduce such IPR-related matter involving an MEA and
the TRIPs Agreement to the CTE with a view to clarifying potential
ambiguities, if any. Another view is that the elements of Article
31 of the TRIPs Agreement adequately address the issue of remedying
anti-competitive practises.
146. The relationship between
the TRIPs Agreement and the CBD has been discussed. Some consider
they have a different scope, subject matter and intent but there
is no conflict or inconsistency between their obligations and
objectives. By ensuring adequate protection for the innovator,
the TRIPs Agreement promotes the CBD's objective of furthering
technology transfer related to the commercialization and use of
genetic resources. By setting as an objective the equitable sharing
of the benefits of commercialization or other uses of genetic
resources, the CBD addresses IPRs indirectly and identifies technology
transfer as one form of benefit sharing its Parties should promote.
The CBD does not address specific IPR systems or the particular
characteristics of IPRs but it does provide that mechanisms used
to promote technology transfer should recognize and be consistent
with adequate and effective IPR protection, which is the standard
demanded by the TRIPs Agreement. Both agreements are viewed as
having the flexibility to achieve environmental objectives. The
TRIPs Agreement permits Members to carry out national policies
in favour of sustainable development and to take adequate measures
in conformity with the CBD. Accordingly, they did not see the
need for further work in this area.
147. Some feel there is a need
to examine possible inconsistencies between WTO provisions and
the CBD in the following areas: which agreement would prevail
if a conflict arose between them, specifically between Parties
and non-parties; what is the relation between the terms of access
to genetic resources under the CBD (which is based on the idea
of mutually-agreed terms) and the MFN and national treatment principles
of the TRIPs Agreement; and what are the possible consequences
of CBD Article 22 which provides that "[t]he provisions of
this Convention shall not affect the rights and obligations of
any Contracting Party deriving from any existing international
agreement, except where the exercise of those rights and obligations
would cause a serious damage or threat to biological diversity"?
148. A number of more specific
questions have been raised: for example, what is the relationship
between preferential access to genetic resources under Article
15 of the CBD and GATT provisions such as Articles I and XI, and
what is the link between rights and obligations under the SPS
and TBT Agreements and a country's policies regarding bio-safety
pursuant to the CBD? Noting Article 16.5 of the CBD provides that
IPRs should be implemented in a way that is supportive of and
does not run counter to the objectives of the Convention, it has
been asked whether Parties are entitled to use measures which
limit or restrict IPR protection, or resort to compulsory licensing,
on grounds that this is consistent with the CBD's objectives,
especially as it relates to technology transfer. A related issue
is whether Article 16.1 of the CBD, which provides for transfer
of technology relevant to the conservation and sustainable use
of biodiversity or technology which uses genetic resources in
an environmentally-sound manner, and Article 33 of the TRIPs Agreement
have consistent objectives.
149. Comparing the relevant provisions
of the CBD and those of the TRIPs Agreement, one contribution
proposes various changes to the latter in order to accommodate
the former: (i) in order to better address biotechnological inventions,
Article 29 of the TRIPs Agreement on conditions on patent applicants
including full disclosure of patentable inventions should be modified
so as to require a clear mention of the biological source material,
the known country of origin and all known information pertaining
to knowledge and practices of the use of biological source material
by indigenous communities in the country of origin. This part
of the patent would be open to full public scrutiny immediately
after filing of the application; (ii) to remedy the lack of prior
informed consent mechanism in the TRIPs Agreement, a Material
Transfer Agreement with the country of origin would be necessary
where the inventor wishes to use biological material, and an Information
Transfer Agreement (ITA) where the inventor makes use of indigenous
or traditional knowledge; and (iii) an obligation on patent owners
to execute ITAs for any traditional or indigenous knowledge which
is already in the public domain or is a part of the recorded or
otherwise publicly accessible knowledge systems. It is also proposed
that the CTE examine the pros and cons of evolving a system for
patenting of indigenous knowledge and local, contemporary innovations
of traditional folk.
150. Some consider it contradictory
to recognize the importance of EST development while at the same
time calling for changes in the TRIPs Agreement which would have
the effect of diminishing incentives to develop and disseminate
EST, both absolutely and relative to other technologies. One suggestion
is that solutions to problems faced by developing countries in
obtaining EST should not be sought in the TRIPs Agreement but
through the relevant MEAs. According to this view, technical issues
of this sort would require at a minimum fuller study in more appropriate
fora. Those expressing this view questioned the value and feasibility
of the proposal relating to patent information.
151. There have been suggestions
for possible areas of cooperation between the TRIPs Agreement
and MEAs which contain IPR-related obligations. One is that those
obligations should be notified under the TRIPs Agreement so as
to facilitate synergies with MEAs. Another is to consider channelling
relevant information on the implementation of IPR-related commitments
contained in these MEAs through the TRIPs Agreement's notification
mechanisms. The CTE should be kept informed of developments in
other fora such as the CBD and International Convention for the
Protection of New Varieties of Plants, and of the developments
of emerging IPR-related concepts, such as farmer's rights and
plant breeder's rights in relevant international organizations.
Some support closer cooperation between the WTO Secretariat and
other international organizations in this area. Following a request
from the Biodiversity Convention's Secretariat to assist in the
preparation of a report on "Biological Diversity and Trade-Related
Intellectual Property Rights: Synergies and Relationships",
the CTE agreed to derestrict relevant parts of its documentation.
152. One proposal suggests discussion
continue on a number of issues raised by the relationship between
the TRIPs Agreement and environmental objectives: (i) the generation,
access to and transfer of ESTs; (ii) the provision of incentives
for the conservation and sustainable use of biological resources
and the equitable sharing of the benefits of this use, including
in relation to the knowledge, innovations and practices of indigenous
and local communities embodying traditional lifestyles; and (iii)
the treatment of technology that may adversely affect the environment.
ITEM 9
The work programme envisaged in the Decision on Trade in Services
and the Environment
153. Pursuant to the Ministerial
Decision on Trade in Services and the Environment, the Council
for Trade in Services, at its meeting on 1 March 1995, adopted
a Decision "[a]cknowledging that measures necessary to protect
the environment may conflict with the provisions of the Agreement;
and [n]oting that since measures necessary to protect the environment
typically have as their objective the protection of human animal
or plant life or health, it is not clear that there is a need
to provide for more than is contained in paragraph (b) of Article
XIV". It decided "[i]n order to determine whether any
modification of Article XIV of the Agreement is required to take
account of such measures (i.e. measures necessary to protect the
environment), to request the CTE to examine and report, with recommendations
if any, on the relationship between services trade and the environment
including the issue of sustainable development. The CTE shall
also examine the relevance of intergovernmental agreements on
the environment and their relationship to the Agreement. The CTE
shall report the results of its work at the first biennial meeting
of the Ministerial Conference after the entry into force of the
Agreement Establishing the World Trade Organization".
154. Discussions on this Item
have been only exploratory. One view is that similar issues with
regard to trade and environment arise in the area of trade and
services to those that arise in the area of trade in goods, but
that they might need to be approached differently in view of the
differences between the GATT and the GATS provisions. Careful
analysis is needed to distinguish environmental measures applied
directly to trade in services from environmental measures applied
to products associated with that trade in order to identify whether
the issues raised should be addressed in the context of the GATS
or of other WTO provisions. In this regard, some are of the view
that services, being intangible, are not polluting per se;
environmental considerations may occur only when the delivery
of services is associated with trade in goods. Those considerations
are already covered by the WTO provisions relevant to trade in
products.
155. Given that GATS Article
XIV(b) contains the same language as GATT Article XX(b), one view
is that the need to modify it should be considered only after
progress has been made on Item 1. It has been noted, however,
that the GATS is still evolving and includes concepts that are
not contained in the GATT so that conclusions reached in the area
of goods trade may not apply automatically to services trade.
It has been noted that there is no analog to GATT Article XX(g)
in the GATS. A suggested approach is to identify restrictive measures
applied to services trade, consider whether these could be justified
by GATS provisions other than Article XIV(b), such as Article
VI, VII and XIV(c), and examine whether Article XIV(b) is an adequate
basis on which to address environmental concerns. One potential
problem raised in this context is that invoking Article XIV(b)
after a service supplier has invested and established in a domestic
market could prove particularly disruptive and costly if the supplier
is obliged to disinvest. Before the CTE conducts a separate analysis
of this issue, Members have been asked to bring to its attention
evidence they may have of measures which they feel may need to
be applied for environmental purposes to services trade but which
may not be covered by the GATS provisions and in particular Article
XIV(b).
156. Concerning the relationship
of relevant MEAs to the GATS, it is suggested that progress might
be possible independently of progress under Item 1 and that a
first stage would be to identify possible points of contact between
relevant MEAs and the GATS. The importance of taking account of
work in other fora, such as the Negotiating Group on Maritime
Services as well as the International Civil Aviation Organization
and the International Maritime Organization is emphasized. Analysis
could focus on the relationship of the GATS provisions, such as
Article VI, to trade measures applied pursuant to MEAs dealing
with services trade, such as the Basel Convention, the London
Convention on Dumping and the Montreal Protocol. Consideration
should also be given to whether MEAs indicated that particular
services sectors need special environmental measures.
157. With regard to the relationship
between services trade and the environment, including the issue
of sustainable development, one suggestion is that sectoral case
studies could be conducted, taking account of work in other fora,
to identify the environmental impact of the liberalization of
trade in services (e.g. transport and tourism) and the impact
that certain environmental legislation might have on trade liberalization
(e.g. conditions applicable to services suppliers in the field
of waste management). One view is that improved market access
for environmental services and technology resulting from the GATS
hold out "win-win" opportunities for trade and the environment.
Another view is that the CTE has neither the mandate nor the capability
to conduct studies on the environmental impact of service trade
or its liberalization.
158. It has been suggested that
particular attention should be paid to ensuring that GATS Article
XXVIII(c)(ii) measures are applied on a national treatment basis
to allow all services suppliers access to and use of public environmental
services. Further analysis is also suggested on the trade effect
of environmental subsidies and how this might be reflected in
future GATS disciplines.
ITEM 10
Input to the relevant bodies in respect of appropriate arrangements
for relations with intergovernmental and non-governmental organizations
referred to in Article V of the WTO
159. This Item was discussed
in informal consultations under both the Sub-Committee on Trade
and Environment of the WTO Preparatory Committee and the CTE,
as well as on a number of occasions in informal and formal meetings
of the CTE.
160. Pending a decision by the
General Council on conditions and criteria for observer status
for intergovernmental organizations (IGOs), the CTE extended observer
status on an ad hoc basis to fourteen IGOs. The procedures
were confirmed by the General Council at its meeting on 18 July
1996. The WTO Secretariat was requested to keep the CTE informed
about work on trade and environment underway in other intergovernmental
organizations, including relevant MEA bodies.
161. There has been support for
continuing to improve the transparency of the work of the WTO
in the area of trade and environment and increasing public access
to information through timely derestriction of the CTE's working
documents and the records of its formal discussions, while emphasizing
the importance attached to each Member respecting fully the confidential
nature of WTO documentation that is restricted in its distribution.
It is recognized that there is a need to respond to public interest
in this area, to provide a clear idea of what is being discussed
in the WTO and how those discussions are progressing, and to build
public support for the contribution that the WTO can make to better
environmental protection and the promotion of sustainable development.
At its meeting on 18 July 1996, the General Council adopted a
Decision on "Procedures for the Circulation and Derestriction
of WTO documents".
162. Different views have been
expressed about the involvement of non-governmental organizations
(NGOs) in the work of the CTE.
163. One view is that NGOs could
play a constructive role by providing information and technical
expertise on environmental matters, and their presence at formal
CTE meetings would be a recognition of the public interest that
exists in this area of the WTO's work and would help to make that
work more broadly available to the public. Untransparent proceedings,
it is felt by some, perpetuated a secretive image of the WTO and
diminished public confidence in and support for WTO work. This
leads to misunderstanding and suspicion of the deliberative processes
of the trading system. A suggestion has been made to invite representatives
of specialized NGOs with a direct interest in trade and the environment
to make contributions to CTE meetings.
164. A second view is that it
would not be appropriate to allow NGOs to participate in the proceedings
of the CTE. Many feel that primary responsibility for taking account
of the many different elements of public interest which are brought
to bear on trade policy-making, and consequently for relations
with NGOs, lies at the national level. Arrangements in the WTO
cannot substitute for this. Furthermore, some feel that such arrangements
would unnecessarily complicate the consultative process with NGOs
at the national level, and that the WTO's deliberations could
be compromised if public interest groups were allowed to participate
directly in its work. Also, practical difficulties have been foreseen
in involving NGOs directly in CTE meetings.
165. At its meeting of 18 July
1996, the General Council adopted a Decision on "Guidelines
for arrangements on relations with non-governmental organizations".
III. CONCLUSIONS AND RECOMMENDATIONS
166. The WTO Committee on Trade
and Environment (CTE) has initiated work on all Items of its work
programme set out in the Marrakesh Ministerial Decision on Trade
and Environment. The CTE's discussions were enriched by the work
undertaken previously by the GATT Group on Environmental Measures
and International Trade and in the WTO Preparatory Committee.
Discussions have demonstrated the comprehensive and complex nature
of the issues covered by the Ministerial work programme, which
reflects the WTO's interest in building a constructive relationship
between trade and environmental concerns.
167. The CTE's discussions have
been guided by the consideration contained in the Ministerial
Decision that there should not be nor need be any policy contradiction
between upholding and safeguarding an open, equitable and non-discriminatory
multilateral trading system on the one hand and acting for the
protection of the environment on the other. These two areas of
policy-making are both important and they should be mutually supportive
in order to promote sustainable development. Discussions have
demonstrated that the multilateral trading system has the capacity
to further integrate environmental considerations and enhance
its contribution to the promotion of sustainable development without
undermining its open, equitable and non-discriminatory character;
implementation of the results of the Uruguay Round negotiations
would represent already a significant contribution in that regard.
168. The CTE's discussions have
been guided also by the consideration that the competence of the
multilateral trading system is limited to trade policies and those
trade-related aspects of environmental policies which may result
in significant trade effects for its Members. It is recognized
that achieving the individual as well as the joint objectives
of WTO Member governments in the areas of trade, environment and
sustainable development requires a coordinated approach that draws
on interdisciplinary expertise. In that regard, policy coordination
between trade and environment officials at the national level
has an important role to play. Work in the CTE is helping to better
equip trade officials to make their contribution in this area.
169. WTO Member governments are
committed not to introduce WTO-inconsistent or protectionist trade
restrictions or countervailing measures in an attempt to offset
any real or perceived adverse domestic economic or competitiveness
effects of applying environmental policies; not only would this
undermine the open, equitable and non-discriminatory nature of
the multilateral trading system, it would also prove counterproductive
to meeting environmental objectives and promoting sustainable
development. Equally, and bearing in mind the fact that governments
have the right to establish their national environmental standards
in accordance with their respective environmental and developmental
conditions, needs and priorities, WTO Members note that it would
be inappropriate for them to relax their existing national environmental
standards or their enforcement in order to promote their trade.
The CTE notes the statement in the 1995 Report on Trade and Environment
to the OECD Council at Ministerial Level that there has been no
evidence of a systematic relationship between existing environmental
policies and competitiveness impacts, nor of countries deliberately
resorting to low environmental standards to gain competitive advantages.
The CTE welcomes similar policy statements made in other intergovernmental
fora.
ITEM 1
The relationship between the provisions of the multilateral
trading system and trade measures for environmental purposes,
including those pursuant to multilateral environmental agreements
ITEM 5
The relationship between the dispute settlement mechanisms
in the multilateral trading system and those found in multilateral
environmental agreements
170. These two Items have proved
to be closely linked. The CTE has discussed them together and
drawn conclusions and recommendations on them jointly.
171. The CTE notes that governments
have endorsed in the results of the 1992 U.N. Conference on Environment
and Development their commitment to Principle 12 of the Rio Declaration
that "Unilateral actions to deal with environmental challenges
outside the jurisdiction of the importing country should be avoided.
Environmental measures addressing transboundary or global problems
should, as far as possible, be based on an international consensus."
There is a clear complementarity between this approach and the
work of the WTO in seeking cooperative multilateral solutions
to trade concerns. The CTE endorses and supports multilateral
solutions based on international cooperation and consensus as
the best and most effective way for governments to tackle environmental
problems of a transboundary or global nature. WTO Agreements and
multilateral environmental agreements (MEAs) are representative
of efforts of the international community to pursue shared goals,
and in the development of a mutually supportive relationship between
them due respect must be afforded to both.
172. The relationship between
the provisions of the multilateral trading system and trade measures
for environmental purposes taken pursuant to multilateral environmental
agreements is multifaceted. Finding the right balance to describe
and address this relationship in the CTE has proved to be a very
demanding task, particularly given the varying nature of the issues
involved in each MEA.
173. Adequate international cooperation
provisions, including among them financial and technological transfers
and capacity building, as part of a policy package in MEAs are
important and can be indispensable elements to facilitate the
ability of governments, particularly of developing countries,
to become Parties to an MEA and provide resources and assistance
to help them tackle the environmental problems which the MEA is
seeking to resolve and thus to implement the provisions of the
MEA effectively, in keeping with the principle of common but differentiated
responsibility. Trade measures based on specifically agreed-upon
provisions can also be needed in certain cases to achieve the
environmental objectives of an MEA, particularly where trade is
related directly to the source of an environmental problem. They
have played an important role in some MEAs in the past, and they
may be needed to play a similarly important role in certain cases
in the future.
174. The CTE recognizes that
the evolving relationship between MEAs and the multilateral trading
system is complex and that different questions may emerge. In
this respect, the following points have been noted in the course
of discussions in the CTE:
(i) Trade measures have been
included in a relatively small number of MEAs. There is no clear
indication for the time being of when or how they may be needed
or used in the future. Up to now, there has been no GATT or WTO
dispute concerning trade measures applied pursuant to an MEA.
(ii) A range of provisions in
the WTO can accommodate the use of trade-related measures needed
for environmental purposes, including measures taken pursuant
to MEAs. That includes the defined scope provided by the relevant
criteria of the "General Exceptions" provisions of GATT
Article XX. This accommodation is valuable and it is important
that it be preserved by all.
(iii) In the context of the consideration
of the inclusion of specifically agreed-upon trade provisions
in MEAs, mutual respect should be paid to technical and policy
expertise in both the trade and environment areas.
(iv) In practice, in cases where
there is a consensus among Parties to an MEA to apply among themselves
specifically mandated trade measures, disputes between them over
the use of such measures are unlikely to occur in the WTO.
(v) In the negotiation of a future
MEA, particular care should be taken over how trade measures may
be considered for application to non-parties.
(vi) Policy coordination between
trade and environment policy officials at the national level plays
an important role in ensuring that WTO Members are able to respect
the commitments they have made in the separate fora of the WTO
and MEAs and in reducing the possibility of legal inconsistencies
arising.
175. In order to enhance understanding
of the relationship between trade and environmental policies,
co-operation between the WTO and relevant MEAs institutions is
valuable and should be encouraged. The CTE recommends that the
WTO Secretariat continue to play a constructive role through its
cooperative efforts with the Secretariats of MEAs and provide
information to WTO Members on trade-related work in MEAs. As noted
in the CTE's conclusions under Item 10 of its work programme,
observer status for relevant MEAs in WTO bodies, as appropriate,
can play a positive role in creating clearer appreciation of the
mutually supportive role of trade and environmental policies.
Requests from the appropriate bodies of MEAs for observer status
should be considered in this light. The CTE should also consider
extending invitations to appropriate MEA institutions to attend
relevant discussions of the CTE.
176. As described in Section
II of this Report, views differed on whether any modifications
to the provisions of the multilateral trading system are required
under this Item of the work programme. This matter should be kept
under review and further work under this Item should be carried
out drawing on the work undertaken to date.
177. The CTE notes that both
the WTO and MEA dispute settlement mechanisms emphasize the avoidance
of disputes, including through parties seeking mutually satisfactory
solutions.
178. The CTE recognizes that
WTO Members have not resorted to WTO dispute settlement with a
view to undermining the obligations they accepted by becoming
Parties to an MEA, and the CTE considers that this will remain
the case. While WTO Members have the right to bring disputes to
the WTO dispute settlement mechanism, if a dispute arises between
WTO Members, Parties to an MEA, over the use of trade measures
they are applying between themselves pursuant to the MEA, they
should consider trying to resolve it through the dispute settlement
mechanisms available under the MEA. Improved compliance mechanisms
and dispute settlement mechanisms available in MEAs would encourage
resolution of any such disputes within the MEA.
179. The CTE recognizes the benefit
of having all relevant expertise available to WTO panels in cases
involving trade-related environmental measures, including trade
measures taken pursuant to MEAs. Article 13 and Appendix 4 of
the DSU provide the means for a panel to seek information and
technical advice from any individual or body which it deems appropriate
and to consult experts, including by establishing expert review
groups.
ITEM 2 The relationship between environmental policies relevant to trade and environmental measures with significant trade effects and the provisions
of the multilateral trading
system
180. A number of trade-related
environmental policies and measures not covered elsewhere in the
work programme have been discussed in a preliminary way under
this Item. Further examination and analysis of these policies
and measures in the CTE will be required, including analysis of
their effects on trade.
181. There has also been some
discussion of the use by governments at the national level of
environmental reviews of trade agreements, and of the relationship
and compatibility of general trade and environmental policy-making
principles. No conclusions have been drawn so far on either of
these issues. Further work will be required on this Item in the
CTE.
ITEM 3(A)
The relationship between the provisions of the multilateral
trading system and charges and taxes for environmental purposes
182. Scope exists under WTO provisions
for Member governments to apply environmental charges and taxes.
The CTE has undertaken so far a preliminary examination of some
of these issues under this Item. Further work on this Item is
needed.
ITEM 3(B)
The relationship between the provisions of the multilateral
trading system and requirements for environmental purposes relating
to products, including standards and technical regulations,
packaging, labelling and recycling
183. The major part of the CTE's
work so far under this Item has involved examination and analysis
of voluntary eco-labelling schemes/programmes, including those
based on life cycle approaches, and their relationship to WTO
provisions and to the Agreement on Technical Barriers to Trade
(TBT) in particular. Well-designed eco-labelling schemes/programmes
can be effective instruments of environmental policy to encourage
the development of an environmentally-conscious consumer public.
The CTE noted that Chapter IV of Agenda 21 encouraged the
expansion of environmental labelling and other environmentally-related
product information programmes designed to assist consumers in
making informed purchasing decisions. The CTE also noted that
eco-labelling schemes/programmes have raised, in certain cases,
significant concerns about their possible trade effects.
184. Increased transparency can
help deal with trade concerns regarding eco-labelling schemes/programmes
while it can also help to meet environmental objectives by providing
accurate and comprehensive information to consumers. The CTE felt
that an important starting point for WTO Members to address some
of the trade concerns raised over eco-labelling schemes/programmes
is by discussing how to ensure adequate transparency in their
preparation, adoption and application, including affording opportunities
for participation in their preparation by interested parties from
other countries. The transparency provisions contained in the
TBT Agreement, including the Code of Good Practice for standardizing
bodies contained in Annex 3 of the Agreement provide a reference
point to the further work of the CTE in enhancing transparency
of eco-labelling schemes/programmes.
185. As stated above, the CTE's
discussion on eco-labelling has focused primarily on voluntary
eco-labelling schemes/programmes and in particular on the transparency
of such schemes/programmes. Without prejudice to the views of
WTO Members concerning the coverage and application of the TBT Agreement
to certain aspects of such voluntary eco-labelling schemes/programmes
and criteria, i.e. those aspects concerning non-product-related
PPMs, and therefore to the obligations of Members under this Agreement
regarding those aspects, the CTE stresses the importance of WTO
Members following the provisions of the TBT Agreement and its
Code of Good Practice, including those on transparency. In this
context, the CTE underlines the particular importance of ensuring
fair access of foreign producers to eco-labelling schemes/programmes.
186. The CTE will conduct further
work on all issues contained under this Item, including with respect
to developing countries and least developed countries. Such further
work could involve cooperation with the Committee on TBT and take
into account the work of other international fora, for instance
UNEP, UNCTAD, OECD, ITC and ISO, as appropriate.
ITEM 4
The provisions of the multilateral trading system with respect
to the transparency of trade measures used for environmental purposes
and environmental measures and requirements which have significant
trade effects
187. WTO transparency provisions
and mechanisms are not an end in themselves. However, they fulfil
an important role in ensuring the proper functioning of the multilateral
trading system, in helping to prevent unnecessary trade restriction
and distortion from occurring, in providing information about
market opportunities and in helping to avoid trade disputes from
arising. They can also provide a valuable first step in ensuring
that trade and environment polices are developed and implemented
in a mutually supportive way. The CTE considers transparency to
be an important aspect of all Items of its work programme where
the relationship of WTO provisions to specific trade-related environmental
measures is receiving attention.
188. The CTE recognizes that
trade-related environmental measures should not be required to
meet more onerous transparency requirements than other measures
that affect trade.
189. The CTE concludes that no
modifications to WTO rules are required to ensure adequate transparency
for existing trade-related environmental measures. Nevertheless,
the CTE should keep under review the adequacy of existing transparency
provisions with respect to trade-related environmental measures,
including the results of the work of the Working Group on Notification
Obligations and Procedures and whether the Committees and Councils
dedicated to individual WTO Agreements consider there is any need
to review the transparency provisions of those Agreements in particular
instances and whether compliance with the provisions is viewed
as satisfactory.
190. The CTE notes that some
WTO Members are dealing with some notifications differently, both
in terms of their understanding of which types of environmental
measures require notification, and under which WTO provisions.
Such a situation needs to be improved through joint efforts by
Members to clarify the understanding of the notification requirements
concerned.
191. The CTE suggests that Members
consider requests for additional information on measures notified
under the WTO, or more generally supply information to Members,
especially developing country Members, about market opportunities
created by environmental measures.
192. In the meantime, the CTE
recommends that the WTO Secretariat compile from the Central Registry
of Notifications all notifications of trade-related environmental
measures and collate these in a single database which can be accessed
by WTO Members. The database could contain information where available
for each notified measure: its nature/title; objective(s); product
coverage; relevant WTO provisions and MEA provisions; and a description
of how it operates. This database should be kept updated.
193. The CTE welcomes the efforts
of other inter-governmental organizations, in particular the UNCTAD
and ITC, to collect and disseminate additional information on
the use of trade-related environmental measures, and recommends
the WTO Secretariat cooperate with those organizations to ensure
duplication is avoided.
194. The possibility of information
on trade-related environmental measures being made available voluntarily
by Members in their Trade Policy Reviews and of the Secretariat
including such information in its TPR Reports was noted as a possible
issue to be explored in consultation with the TPR Body.
ITEM 6
The effect of environmental measures on market access, especially
in relation to developing countries, in particular to the least
developed among them, and environmental benefits of removing trade
restrictions and distortions
195. It is under this Item that
the CTE has discussed how the WTO can contribute to making international
trade and environmental policies mutually supportive through trade
liberalization and appropriate development and environmental policies
determined at the national level for the promotion of sustainable
development.
196. The CTE acknowledges that
an open, equitable and non-discriminatory multilateral trading
system and environmental protection are essential to promote sustainable
development and that there is a close linkage between poverty
and environmental degradation. Emphasis has been placed on the
importance of cooperation in the essential task of alleviating
and eradicating poverty in order to achieve sustainable development
and the important role that increased trade and market access
opportunities can make in this regard. It was noted that many
countries remain marginal participants in world trade. In this
respect, the CTE could contribute to the identification of trade
policy actions which can enhance the participation in world trade
of developing countries, and in particular the least developed
among them, and promote environmental protection in the interest
of sustainable development.
197. The possible effects of
environmental measures on market access, especially in relation
to developing countries, in particular to the least developed
among them, have been discussed. There is concern that environmental
measures and requirements may adversely affect the competitiveness
and market access opportunities of small and medium-sized enterprises
especially in developing countries. The environmental benefits
of trade liberalization, including the removal of trade restrictions
and distortions, has been addressed at both a general and sectoral
level and in relation to specific trade restrictions. The CTE
emphasizes the importance of market access opportunities in assisting
developing countries obtain the resources to implement adequate
developmental and environmental policies determined at the national
level, diversify their economies and provide income-generating
activities for the poor. Consequently, improving market access
opportunities and preservation of the open, equitable and non-discriminatory
nature of the multilateral trading system is essential for supporting
countries in their efforts to ensure sustainable management of
their resources. It has been recognized that trade liberalization
including the elimination of trade restrictions and distortions
can yield developmental and environmental benefits by facilitating
a more efficient allocation and use of resources. At the same
time, however, the CTE underlines that implementing appropriate
environmental policies determined at the national level as part
of sustainable development strategies is needed in order to ensure
that these benefits are realized and that trade-induced growth
will be sustainable. From this perspective, it has been recognized
that the prompt and full implementation of the commitments made
in the Uruguay Round will constitute an important contribution
in this regard.
198. Discussions have taken place
on whether and how the removal of trade restrictions and distortions,
in particular high tariffs, tariff escalation, export restrictions,
subsidies and non-tariff measures, has the potential to yield
benefits for both the multilateral trading system and the environment.
Up to now discussions have been centred on the agriculture sector,
and a proposal on the energy sector has been tabled. Nevertheless,
the Committee agrees that it should broaden and deepen its analysis
also to other sectors, such as tropical and natural resource-based
products, textiles and clothing, fisheries, forest products, environmental
services and non-ferrous metals. Further work on this Item should
be based on analytical work and empirical evidence and should
take into account different country-specific natural and socio-economic
conditions and the specificity of the sectors and measures involved.
199. Further work should also
focus on the environmental benefits that may arise from enhancing
existing market access opportunities for developing countries,
and in particular the least developed among them, and the contribution
that improved market access opportunities could make in assisting
developing countries in implementing adequate environmental policies
determined at the national level. In this context, particular
attention should be devoted to the environmental benefits of initiatives
that could enhance the trade performance of countries which remain
only marginal participants in world trade, including low income
commodity-dependent countries. Environmentally-friendly products
from developing countries should also be considered in this regard.
This work should take particular account of the needs of small
and medium-sized enterprises. Further work is needed to ensure
that the implementation of environmental measures does not result
in disguised restrictions on trade, particularly those that have
adverse effects on existing market access opportunities of developing
countries.
ITEM 7
The issue of the export of domestically prohibited goods
200. The CTE recognizes that
serious concerns have been expressed by some developing and least-developed
country Members about the export to them of products whose domestic
sale or use is banned or severely restricted because they pose
a threat to human, animal or plant life or health or the environment.
These Members consider that they do not have sufficient timely
information about the characteristics of these products nor the
technical or technological capacity to make informed decisions
about importing them.
201. At the same time, progress
continues to be made in other inter-governmental organizations
in addressing problems created by trade in potentially hazardous
or harmful products. The CTE recommends that WTO Members also
consider participating in the activities of other organizations
which have the relevant expertise for providing technical assistance
in this field.
202. The CTE needs to continue
to concentrate on what contribution could be made in this area
by the WTO, bearing in mind the need for this work neither to
duplicate nor to deflect attention from the work of other specialized
inter-governmental fora.
203. In the meantime, the CTE:
(a) recommends that the WTO Secretariat determine what information
is already available in the WTO on trade-related environmental
measures which relate to trade in domestically prohibited goods,
including on restrictions or bans on domestic sales or use of
products which are or may be exported; (b) encourages WTO Members
to submit to the Secretariat any additional information they have
which they feel could help it in drawing up a comprehensive picture
of the situation throughout the WTO system.
204. This database can assist
the further work of the CTE in this area, as well as potentially
provide valuable information to individual WTO Members. The information
should be installed in the database of trade-related environmental
measures referred to under Item 4.
205. The CTE recognizes the important
role that technical assistance and transfer of technology, on
mutually agreed terms and conditions, related to domestically-prohibited
goods where trade is allowed by the international community can
play in this field, both in tackling environmental problems at
their source and in helping to avoid unnecessary additional trade
restrictions on the products involved. WTO Members should be encouraged
to provide technical assistance to other Members, especially developing
country Members, particularly the leastdeveloped among them,
either bilaterally or through appropriate inter-governmental organizations,
to assist these countries in strengthening their technical capacity
to monitor and, where necessary, control imports of domestically
prohibited goods.
ITEM 8
The relevant provisions of the Agreement on Trade-related Aspects
of Intellectual Property Rights
206. The CTE has discussed a
wide variety of issues related to the generation, access to and
transfer of environmentally sound technology and products (EST&Ps),
including in the relevant provisions of some MEAs, as related
to the TRIPs Agreement. The CTE recalls the reference in the preamble
to the TRIPs Agreement to the need to promote the effective and
adequate protection of intellectual property rights and the objectives
of the TRIPs Agreement that the protection and enforcement of
intellectual property rights should contribute to the promotion
of technological innovation and to the transfer and dissemination
of technology, to the mutual advantage of producers and users
of technological knowledge and in a manner conducive to social
and economic welfare and to a balance of rights and obligations.
207. The CTE noted the statement
in Paragraph 34.7 of Agenda 21 that ". . . access to and
transfer of environmentally-sound technology are essential requirements
for sustainable development." The CTE also noted that the
TRIPs Agreement has an essential role in facilitating such access
and transfer. Positive measures, such as access to and transfer
of technology both according to the terms and conditions stipulated
in the covered MEAs and without prejudice to the requirements
of the TRIPs Agreement can be effective instruments to assist
developing countries to meet multilaterally-agreed targets in
some MEAs and in keeping with the principle of common but differentiated
responsibilities in the Rio Declaration.
208. Further work is required
to help develop a common appreciation of the relationship of the
relevant provisions of the TRIPs Agreement to the protection of
the environment and the promotion of sustainable development,
and whether and how, in comparison to other factors, these provisions
relate, in particular, to the following issues: (a) facilitating
the generation of EST&Ps; (b) facilitating the access to and
transfer and dissemination of EST&Ps; (c) environmentally-unsound
technologies and products; and (d) the creation of incentives
for the conservation of biological diversity, the sustainable
use of its components, and the fair and equitable sharing of the
benefits arising out of the utilization of genetic resources including
the protection of knowledge, innovations and practices of indigenous
and local communities embodying traditional lifestyles relevant
to the conservation and sustainable use of biodiversity.
209. Some issues are under consideration
by the Parties to the Convention on Biological Diversity who are
also looking at the synergies and relationship between its objectives
and the TRIPs Agreement. Information has been shared by the CTE
regarding its work in response to requests by the Secretariat
of the Convention on Biodiversity. The exchange of information
between the CTE and the Convention on Biodiversity might be pursued
further, as appropriate.
ITEM 9
The work programme envisaged in the Decision on Trade in Services
and the Environment
210. The GATS is a new agreement
which is still evolving and includes concepts which are not contained
in the GATT. Preliminary discussion in the CTE to date on this
Item has not led to the identification of any measures that Members
feel may need to be applied for environmental purposes to services
trade which would not be covered adequately by GATS provisions,
in particular Article XIV(b). An invitation by the CTE to Members
to submit any further information in this regard remains open.
211. Further work in the CTE
on this Item is necessary before it could be in a position to
draw any conclusions on the relationship between services trade
and the environment, or on the relevance of inter-governmental
agreements on the environment and their relationship to the GATS
in the context of sustainable development.
ITEM 10
Input to the relevant bodies in respect of appropriate arrangements
for relations with intergovernmental and non-governmental organizations
referred to in Article V of the WTO
212. It is recognized in the
CTE that there is a need to respond to public interest in WTO
activities in the area of trade and environment and to build support
for the contribution that can be made through the WTO towards
mutually supportive trade and environment policies and the promotion
of sustainable development.
213. The CTE considers that closer
consultation and cooperation with NGOs can also be met constructively
through appropriate processes at the national level where primary
responsibility lies for taking into account the different elements
of public interest which are brought to bear on trade policy-making.
214. In the Decisions of the
General Council of 18 July 1996 on "Procedures for the circulation
and derestriction of WTO documents" and on "Guidelines
for arrangements on relations with nongovernmental organizations",
WTO Members have agreed to improve public access to WTO documentation
and to develop communication with NGOs.
215. The adoption of WTO procedures
for the derestriction of documentation will provide public access
to the CTE's working documents and the records of its meetings.
In this regard, it is noted that the Decision on Procedures for
the Circulation and Derestriction of WTO Documents, inter alia,
affords WTO bodies substantial freedom to make their documents
available to the public in order to increase transparency. The
CTE has taken decisions already to derestrict a number of the
working documents prepared for it by the Secretariat. It recommends
that all remaining working documents prepared during these first
two years of its operations be derestricted. The CTE encourages
all Members that have submitted papers and non-papers that have
not already been derestricted to agree that these be derestricted
along with this Report.
216. The WTO Secretariat has
laid the foundations for providing timely public access to the
proceedings of the CTE through issuing periodically its Trade
and Environment Bulletin and for enhancing its contacts with
NGOs concerned with matters related to those of the CTE, inter
alia through the organization of informal meetings with NGOs.
The CTE recommends that the Secretariat continue its interaction
with NGOs which will contribute to the accuracy and richness of
the public debate on trade and environment.
217. Following the Decision of
the General Council of 18 July 1996 on "Guidelines for observer
status for international intergovernmental organizations in the
WTO", the CTE has agreed to extend observer status on a permanent
basis to those intergovernmental organizations which previously
participated as observers on an ad hoc basis at CTE meetings.
The CTE has extended observer status to all those intergovernmental
organizations which have so requested, and the possibility exists
on the basis of the General Council's Decision to consider future
requests from other relevant intergovernmental organizations,
including MEAs. Observer status of relevant MEAs in WTO bodies,
as appropriate, can play a positive role in creating clearer appreciation
of the mutually supportive role of trade and environmental policies.
Requests from the appropriate bodies of MEAs for observer status
should be considered in this light.
218. The CTE will continue to
keep these issues under review.
Future of the CTE
219. Work in the WTO on contributing
to build a constructive policy relationship between trade, environment
and sustainable development needs to continue. Therefore, the
CTE recommends that it continue to work, reporting to the General
Council, with the mandate and terms of reference contained in
the Ministerial Decision on Trade and Environment of April 1994.
Its rules of procedure shall be adopted by consensus.
ANNEX I
Trade and Environment
Decision of 14 April 1994
Ministers,
meeting on the occasion of signing the Final Act embodying the
results of the Uruguay Round of Multilateral Trade Negotiations
at Marrakesh on 15 April 1994,
Recalling
the preamble of the Agreement establishing the World Trade Organization
(WTO), which states that members' "relations in the field
of trade and economic endeavour should be conducted with a view
to raising standards of living, ensuring full employment and a
large and steadily growing volume of real income and effective
demand, and expanding the production of and trade in goods and
services, while allowing for the optimal use of the world's resources
in accordance with the objective of sustainable development, seeking
both to protect and preserve the environment and to enhance the
means for doing so in a manner consistent with their respective
needs and concerns at different levels of economic development,"
Noting:
- the Rio Declaration on Environment
and Development, Agenda 21, and its follow-up in GATT, as
reflected in the statement of the Chairman of the Council of Representatives
to the CONTRACTING PARTIES at their 48th Session in December 1992,
as well as the work of the Group on Environmental Measures and
International Trade, the Committee on Trade and Development, and
the Council of Representatives;
- the work programme envisaged
in the Decision on Trade in Services and the Environment; and
- the relevant provisions of
the Agreement on Trade-Related Aspects of Intellectual Property
Rights,
Considering
that there should not be, nor need be, any policy contradiction
between upholding and safeguarding an open, non-discriminatory
and equitable multilateral trading system on the one hand, and
acting for the protection of the environment, and the promotion
of sustainable development on the other,
Desiring
to coordinate the policies in the field of trade and environment,
and this without exceeding the competence of the multilateral
trading system, which is limited to trade policies and those trade-related
aspects of environmental policies which may result in significant
trade effects for its members,
Decide:
- to direct the first meeting
of the General Council of the WTO to establish a Committee on
Trade and Environment open to all members of the WTO to report
to the first biennial meeting of the Ministerial Conference after
the entry into force of the WTO when the work and terms of reference
of the Committee will be reviewed, in the light of recommendations
of the Committee,
- that the TNC Decision of 15 December 1993
which reads, in part, as follows:
"(a) to identify the relationship
between trade measures and environmental measures, in order to
promote sustainable development;
(b) to make appropriate recommendations
on whether any modifications of the provisions of the multilateral
trading system are required, compatible with the open, equitable
and non-discriminatory nature of the system, as regards, in particular:
- the need for rules to enhance
positive interaction between trade and environmental measures,
for the promotion of sustainable development, with special consideration
to the needs of developing countries, in particular those of the
least developed among them; and
- the avoidance of protectionist
trade measures, and the adherence to effective multilateral disciplines
to ensure responsiveness of the multilateral trading system to
environmental objectives set forth in Agenda 21 and the Rio
Declaration, in particular Principle 12; and
- surveillance of trade measures
used for environmental purposes, of trade-related aspects of environmental
measures which have significant trade effects, and of effective
implementation of the multilateral disciplines governing those
measures;"
constitutes, along with the preambular
language above, the terms of reference of the Committee on Trade
and Environment,
- that, within these terms of
reference, and with the aim of making international trade and
environmental policies mutually supportive, the Committee will
initially address the following matters, in relation to which
any relevant issue may be raised:
- the relationship between the
provisions of the multilateral trading system and trade measures
for environmental purposes, including those pursuant to multilateral
environmental agreements;
- the relationship between environmental
policies relevant to trade and environmental measures with significant
trade effects and the provisions of the multilateral trading system;
- the relationship between the
provisions of the multilateral trading system and:
(a) charges and taxes for environmental
purposes;
(b) requirements for environmental
purposes relating to products, including standards and technical
regulations, packaging, labelling and recycling;
- the provisions of the multilateral
trading system with respect to the transparency of trade measures
used for environmental purposes and environmental measures and
requirements which have significant trade effects;
- the relationship between the
dispute settlement mechanisms in the multilateral trading system
and those found in multilateral environmental agreements;
- the effect of environmental
measures on market access, especially in relation to developing
countries, in particular to the least developed among them, and
environmental benefits of removing trade restrictions and distortions;
- the issue of exports of domestically
prohibited goods;
- that the Committee on Trade
and Environment will consider the work programme envisaged in
the Decision on Trade in Services and the Environment and the
relevant provisions of the Agreement on Trade-Related Aspects
of Intellectual Property Rights as an integral part of its work,
within the above terms of reference;
- that, pending the first meeting
of the General Council of the WTO, the work of the Committee on
Trade and Environment should be carried out by a Sub-Committee
of the Preparatory Committee of the World Trade Organization (PCWTO),
open to all members of the PCWTO;
- to invite the Sub-Committee of the Preparatory Committee, and the Committee on Trade and Environment when it is established, to provide input to the relevant bodies in respect of appropriate arrangements for relations with intergovernmental and non-governmental organizations referred to in Article V of the WTO.
ANNEX II
RESTRICTED
WORLD TRADE WT/CTE/W/17
12 December 1995
ORGANIZATION
(95-4039)
Committee on Trade and Environment
SUMMARY OF ACTIVITIES OF THE
COMMITTEE ON TRADE AND ENVIRONMENT(1995)
PRESENTED BY THE CHAIRMAN
OF THE COMMITTEE
1. As directed by the Ministerial
Decision on Trade and Environment, the Committee on Trade and
Environment (hereinafter "Committee") was established
by the General Council at its first meeting on 31 January 1995.
At that meeting, the General Council also agreed to the nomination
of Ambassador J. Sánchez Arnau (Argentina) as the Chairman
of the Committee.
2. The first meeting of the Committee
was held on 16 February 1995 (WT/CTE/M/1). The Committee
adopted a schedule of meetings and programme of work for 1995
(Annex 1). The Committee agreed that meetings would be organized
such that, once discussion of the item(s) constituting the focus
of the meeting had been completed, delegations could address,
if they wished, the item(s) that were discussed at the previous
meeting. Delegations could submit papers on any of the items at
any time which would be discussed at the appropriate time according
to the agreed schedule of work.
3. Other formal meetings of the
Committee were held on 6 April, 21 June, 12 September and 26-27
October 1995 (WT/CTE/M/2 to 5); the items discussed at these meetings
were as per the work programme decided at the meeting of 16 February
1995. With regard to item ten of the work programme, i.e.
appropriate arrangements for relations with non-governmental organizations,
the Committee decided to postpone the discussions pending results
of discussions in the General Council.
4. At the October meeting, the
stocktaking exercise was completed. As a result of this exercise,
the Committee decided on its work programme through to May 1996
(Annex 2).
5. The work of the Committee
was assisted by documents prepared by the Secretariat (WT/CTE/W/1,
3 to 10, 12) and documents submitted by delegations (WT/CTE/W/2
and 11); Annex 3 lists the topics covered by these documents.
6. The discussions in the Committee
meetings were wide ranging and there was a very high level of
participation by WTO Members. Forty governments are observers
to the Committee. The Committee extended observer status to those
intergovernmental organizations (IGOs) which had had observer
status in the Sub-Committee on Trade and Environment, pending
agreement by the General Council on the conditions and criteria
for IGO observer status. These IGOs were: the United Nations (UN),
the United Nations Conference on Trade and Development (UNCTAD),
the World Bank, the International Monetary Fund (IMF), the United
Nations Environment Program (UNEP), United Nations Development
Program (UNDP), Commission for Sustainable Development (CSD),
the Food and Agriculture Organization (FAO), the International
Trade Centre (ITC), the Organization for Economic Cooperation
and Development (OECD), and the European Free Trade Association
(EFTA).
7. The Committee noted that the
Secretariat had received several requests for information and
advice from MEAs. There was no WTO procedure which would permit
it to adequately reply to such requests and the establishment
of new procedures went beyond the Committee's mandate and was
of interest to the WTO in general. For this reason, the Chairman
had referred this matter to the Chairman of the General Council
who would be consulting on the issue.
8. Following a decision taken
at the meeting of the Committee on Technical Barriers to Trade
(CTBT) on 20 October 1995, the Committee agreed to convene
joint informal meetings on ecolabelling with the CTBT. It
was agreed that the Chairman would consult informally on the possibility
of holding a joint meeting of the Committee and the CTBT possibly
around the time of the December or February meeting of the Committee.
Annex 1
At its meeting on 16 February
1995, the Committee on Trade and Environment adopted the following
schedule of meetings and programme of work:
6-7 April: - Item 4: "the provisions of the multilateral trading system with respect to the transparency of trade measures used for environmental purposes and environmental measures and requirements which have significant trade effects"
- Item 5: "the relationship between the dispute settlement mechanisms in the multilateral trading system and those found in multilateral environmental agreements"
- Item 10: "appropriate
arrangements for relations with non-governmental organizations
referred to in Article V of the WTO and transparency of documentation"
21-22 June: - Item 8: "TRIPs"
- Item 9: "Services"
- Item 2: "the relationship
between environmental policies relevant to trade and environmental
measures with significant trade effects and the provisions of
the multilateral trading system"
early
September: - Item 6: "the
effect of environmental measures on market access, especially
in relation to developing countries, in particular to the least
developed among them, and environmental benefits of removing trade
restrictions and distortions"
late
October: - Item 1: "the relationship between the provisions of the multilateral trading system and trade measures for environmental purposes, including those pursuant to multilateral environmental agreements"
- Item 3: "the relationship between the provisions of the multilateral trading system and:
(a) charges and taxes for environmental purposes
(b) requirements for environmental purposes relating to products, including standards and technical regulations, packaging, labelling and recycling
- Stocktaking and planning program
of work for 1995/1996
Annex 2
The Committee on Trade and
Environment
The informal consultations made
evident the following points:
That the stocktaking is more
a process-related exercise than a substance-related analysis and,
therefore, the result of this exercise has to be a detailed work
programme to advance the CTE mandate, i.e. to produce a report:
a) identifying the relationship
between trade measures and environmental measures in order to
promote sustainable development;
(b) making recommendations on
whether any modifications to WTO provisions are required, compatible
with the open, equitable and non-discriminatory nature of the
system; and
(c) complying with the mandate
of the Ministerial Decision on Trade in Services and Environment.
In order to establish a more
focused but well balanced work programme, the Chairman submits
the following proposals:
(a) to keep all items on our
agenda, but to move, whenever possible, from the discussion of
agenda items to the analysis of those issues identified during
the debate as the core of each item and, to that end, to organize
our future work programme on the basis of the proposal submitted
below;
(b) to continue the process of
analysis of these issues until May 1996, when a new review of
the work programme will take place;
(c) the list of issues identified
next to each item is not necessarily exhaustive. Once the discussion
of the identified issues is carried out by the Committee, Members
would be free to raise other related issues under each agenda
item at the same meeting;
(d) As part of the work programme:
(i) joint informal meetings of
the CTE and the CTBT are envisaged, subject to the agreement of
the CTBT, to analyse the applicability of the TBT Agreement
to eco-labelling and the possible need for further disciplines
for eco-labelling;
(ii) all other issues identified
in the table below and items in the agenda would be discussed
in the Plenary but informal open-ended meetings, back to back
to the Plenary, would be convened when a detailed analysis of
a topic is necessary or a paper on a specific issue is submitted
for discussion;
(iii) some few studies/reports
to be prepared by the Secretariat have been suggested in addition
to those already in course. The Secretariat is encouraged to continue
to cooperate closely with, and to take full advantage of available
and forthcoming studies in, UNCTAD, UNEP and other intergovernmental
institutions.
The Committee on Trade and
Environment
Item on the
Work Programme | Issues | Studies | When to be discussed |
Item one: "The relationship between the provisions of the multilateral trading system and trade measures for environmental purposes, including those pursuant to multilateral environmental agreements" | - ensuring the compatibility of trade measures taken pursuant to MEAs and the WTO
- adequacy of WTO transparency mechanisms concerning trade measures included in relevant MEAs - see item 5 | 26/27 October 95
early February 96
(7/8 February 96) 26/27 October 95 early February 96
(7/8 February 96) | |
Item three: "The relationship between the provisions of the multilateral trading system and: (a) charges and taxes for environmental purposes | - environmental taxes which could be adjusted at the border and their WTO-consistency | - gather information on national environmental taxes for the study | 26/27 October 95 early February 96 (7/8 February 96) |
(b) requirements for environmental purposes relating to products, including standards and technical regulations, packaging, labelling and recycling" | - applicability of the TBT Agreement to eco-labelling
- adequacy, from both the trade and environmental perspectives, of WTO rules regarding eco-labelling and possible need for further disciplines and transparency | Joint Informal Meetings of the CTE + CTBT*
| |
Item three (b) cont'd | - adequacy, from both the trade and environmental perspectives, of WTO rules regarding packaging, handling, and other environmental regulations, requirements and standards, including the possible need for further disciplines and transparency | 26/27 October 95
early February 96
(7/8 February 96) | |
Item four: "The provisions of the multilateral trading system with respect to the transparency of trade measures used for environmental purposes and environmental measures and requirements which have significant trade effects" | - examination of the proposal that Members should establish environmental enquiry points
- see items 1 and 3 | 14/15 December 95
- item to be revisited in May 96, in order to determine whether and where further gaps in transparency existed | |
Item five: "The relationship between the dispute settlement mechanisms in the multilateral trading system and those found in multilateral environmental agreements" | - see item 1
- environmental expertise in trade dispute settlement - trade expertise in environmental dispute settlement | early February 96
(7/8 February 95) | |
Item six: "The effect of environmental measures on market access, especially in relation to developing countries, in particular to the least developed among them, and environmental benefits of removing trade restrictions and distortions" | - the effect of environmental measures on market access
- the environmental benefits of removing trade restrictions and distortions, including tariff escalation, subsidies, state trading, excessively high tariffs | - environmental measures on market access and setting up of a mechanism to survey environmental measures | mid March 96
(13/14 March 96) mid March 96 (13/14 March 96) |
Item seven: "The issue of exports of domestically prohibited goods"
| - DPGs, and whether there is a need for a DPG Agreement | 14/15 December 95 | |
Item eight: "Trade-Related
Aspects of Intellectual Property Rights and the environment" | - the relationship of the TRIPs Agreement to access to and transfer of technology and the development of environmentally-sound technology
- the relationship between the TRIPs Agreement and MEAs which contain IPR-related obligations | - analytical paper on factors affecting transfer of environmentally-sound technology | end April 96
(17/18 April 96) end April 96 (17/18 April 96) |
Item nine: "Services and the environment" | - sufficiency of Article XIV of GATS
- possible points of contact between relevant MEAs and GATS | early February 96
(7/8 February 96) early February 96 (7/8 February 96) | |
Item two: "The relationship between environmental policies relevant to trade and environmental measures with significant trade effects and the provisions of the multilateral trading system" | May 96
(21/22 May 96) | ||
Item ten: "Appropriate arrangements for relations with non-governmental organizations referred to in Article V of the WTO and transparency of documentation" | in the CTE** |
Annex 3
WT/CTE/W/1 Environmental benefits
of removing trade restrictions and distortions (background paper
prepared by the Secretariat for item 6)
WT/CTE/W/2 Submission by Chile
on relationship between dispute settlement in WTO and in multilateral
environmental agreements, with special reference to Convention
on the Law of the Sea which in certain parts emphasises the provisions
of the General Agreement on Tariffs and Trade (including dispute
settlement)
WT/CTE/W/3 Report submitted by
the Secretariat on its own responsibility to the Secretariat of
the Commission on Sustainable Development for the meeting of the
Third Session of the Commission on 11-28 April 1995
WT/CTE/W/4 Approaches to the
relationship between the provisions of the multilateral trading
system and trade measures pursuant to multilateral environmental
agreements (background paper prepared by the Secretariat for item 1)
WT/CTE/W/5 Provisions of the
multilateral trading system with respect to the transparency of
trade measures used for environmental purposes and environmental
measures and requirements which have significant trade effects
(background paper prepared by the Secretariat for item 4)
WT/CTE/W/6 A description of international
agreements and instruments dealing with trade in domestically
prohibited goods and other hazardous substances (background paper
prepared by the Secretariat for item 7)
WT/CTE/W/7 Secretariat's note
on the results of the third session of the Commission on Sustainable
Development
WT/CTE/W/8 Environment and TRIPs
(background paper prepared by the Secretariat for item 8)
WT/CTE/W/9 Environment and services
(background paper prepared by the Secretariat for item 9)
WT/CTE/W/10 Negotiating history
of the coverage of the Agreement on Technical Barriers to Trade
with regard to labelling requirements, voluntary standards, and
processes and production methods unrelated to product characteristics
(background paper prepared by the Secretariat for item 3)
WT/CTE/W/11 Communication from
the delegations of Nigeria and Senegal regarding the issue of
domestically prohibited goods
WT/CTE/W/12 Trade measures for
environmental purposes taken pursuant to multilateral environmental
agreements: recent developments (note prepared by the Secretariat)
ANNEX III
RESTRICTED
WORLD TRADE WT/CTE/W/33
4 June 1996
ORGANIZATION
(96-2090)
Committee on Trade and Environment
RESULTS OF THE STOCKTAKING
EXERCISE
Adopted at the 28-29 May 1996
meeting
I. The informal consultations
on the stocktaking permitted the following consensus to be reached:
1. According to the results of
the first stocktaking in October 1995, the CTE has completed two
full rounds of analysis of each individual Item of the agenda
(Items 2 and 4 will be revisited during the May session). The
Secretariat has submitted a number of background and analytical
documents and the Committee has benefitted from the discussion
of a number of Items on its agenda in other intergovernmental
fora (UNEP, UNCTAD, CSD). On the issue of "ecolabelling"
a joint informal meeting was organized with the CTBT and the opportunity
was given to managers/practitioners of national/regional ecolabelling
schemes/programmes to present their experience to both Committees.
2. In preparing for the Singapore
Ministerial Conference, the CTE has held a general debate on all
Items of its agenda. Some agenda Items have been disaggregated,
some specific issues and problems have been identified. The general
debate clarified and promoted understanding of some issues and
also permitted the identification of divergences of view. In some
cases more analytical work is required. As a result of this process,
the CTE is now in a position to centre its attention on specific
issues, including issues covered by proposals submitted or to
be submitted by Members, keeping in mind the need for a balanced
and focused approach to the whole agenda.
3. A number of proposals have
been submitted to the Committee either orally or as formal or
informal documents and additional proposals are anticipated.
4. Thus, the next stage of the
CTE activities in preparation for Singapore needs to be devoted
to the preparation of the Final Report to be submitted to the
Ministerial Conference including the identification of possible
agreed conclusions and recommendations in the light of the CTE
mandate.
II. To that end the following
work programme, to be developed in the light of the CTE terms
of reference contained in the Ministerial Declaration of Marrakesh,
is adopted by the Committee:
Date | Meeting | Items/Issues | Objective |
28, 29 May | CTE formal |
2 and 4
6 and 8 1 + 5 and 7 | To adopt the outcome of the stocktaking.
To complete second review. To revisit and to discuss proposals submitted on these Items. Presentation of new proposals. |
30 May | CTE informal | 1 + 5 and 7 | Clarification and analysis of new proposals. |
20 June | CTE formal | 1 + 5 2/3/4/6/7/8 | Possible presentation of new proposals on these Items. Clarifications, comments and reactions. |
21 June | CTE informal | same | Discussion of proposals. |
30 June | The Secretariat starts preparing the first draft of the Final Report:
Introduction + Chapters 1 and 2 | ||
3-24 July | Informal consultations | same | Start of the process of informal consultations to build up consensus on individual issues. |
24 July | CTE formal | 2/9/BTA/
packaging | (a) Items/issues revisited in view of possible presentation of proposals on them.
(b) Chairman's report on results of informal consultations on specific issues/Items/proposals. |
24-25 July | CTE informal | 1 + 5
2/3/4/6/7/8 | Discussion of specific issues/Items/proposals. |
30 July | The Secretariat submits the first draft of Final Report to the Chairman for review and clearance. | ||
31 July | Distribution of the first draft of the Final Report (introduction + Chapters 1 and 2). | ||
11 Sept | CTE formal | All Items | Statements on any issue. |
11/12/13 Sept | CTE informal | same | Discussion of proposals on any Item/issue. |
16 Sept to
23 Oct | Informal consultations2 | All Items | (a) Continuation of consultations on specific Items/issues/proposals. The work is oriented towards building a consensus on possible conclusions and recommendations.
(b) Consultations on the draft Final Report. |
10 Oct | Secretariat completes draft Final Report to the largest possible extent. Review and clearance by the Chairman. | ||
15 Oct | Distribution of the draft Final Report
(introduction + Chapters 1 and 2 + Chapter 3) | ||
24-25 Oct | CTE formal | (a) Report by the Chairman on informal consultations on:
(i) all Items/issues/proposals
(ii) draft Final Report
(b) Final discussion on proposals/conclusions/recommendations (c) Adoption of the Final Report. |
III. The Final Report to be produced
by the Committee needs to involve the following broad components:
1. An introductory section briefly
sketching the CTE's establishment, describing its mandate and
pointing to previous GATT work (particularly in the EMIT Group)
and outlining its work programme.
2. Three chapters covering each
individual agenda Item:
(a) The first one, describing
the problems/issues under each agenda Item and their background,
and making reference to documents submitted by the Secretariat,
with a short reference to their content.
(b) The second would be the analytical
component, drawing on the discussions at 13 November 1996
Committee meetings, describing the proposals and documents submitted
by delegations and the debate which followed their submission.
(c) The third chapter would include
the conclusions and recommendations if any.
The Final Report has to be comprehensive, balanced among Items/issues and, at the same time, among the different "schools of thought"/perceptions on specific issues. The analytical component will be the most substantial part of the report and will need to be carefully structured. At the same time, a major effort has to be made to keep the report rather short.
ANNEX IV
List of documents and non-papers
prepared on Items of the work programme
Item 1: The relationship between
the provisions of the multilateral trading system and trade measures
for environmental purposes, including those pursuant to multilateral
environmental agreements
WT/CTE/W/4 + Corr. Note by the
Secretariat on Approaches to the Relationship between the Provisions
of the Multilateral Trading System and Trade Measures Pursuant
to Multilateral Environmental Agreements
WT/CTE/W/12 Note by the Secretariat
on Trade Measures for Environmental Purposes taken pursuant to
Multilateral Environmental Agreements: Recent Developments
WT/CTE/W/15 + Corr. Note by the
Secretariat on Trade Measures for Environmental Purposes taken
pursuant to Multilateral Environmental Agreements: Recent Developments
- FAO Code of Conduct for Responsible Fisheries
WT/CTE/W/18 Note by the Secretariat
on the Convention on Biological Diversity: Recent Developments
WT/CTE/W/19 Note by the Secretariat
on Trade Measures for Environmental Purposes taken pursuant to
Multilateral Environmental Agreements: Recent Developments - Seventh
Meeting of the Parties to the Montreal Protocol
WT/CTE/W/20 Submission by New
Zealand on Item 1
WT/CTE/W/31 Submission by Japan
on Item 1
WT/CTE/W/39 Submission by ASEAN
on Item 1
Non-paper (19 February 1996)
Submission by the European Community on Item 1
Non-paper (20 May 1996) Submission
by Switzerland on Item 1
Non-paper (12 June 1996) Submission
by Korea on Item 1
Non-paper (23 July 1996) Submission
by Hong Kong on Item 1
Non-paper (23 July 1996) Submission
by India on Items 1 and 5
Non-paper (11 Sept. 1996) Submission
by the United States on Multilateral Environmental Agreements
Item 2: The relationship between
environmental policies relevant to trade and environmental measures
with significant trade effects and the provisions of the multilateral
trading system
WT/CTE/W/16 Note by the Secretariat
on the Negotiating History of Footnote 61 of the Agreement on
Subsidies and Countervailing Measures
WT/CTE/W/37 Submission by the
United States on Environmental Review of Trade Agreements at the
National Level
Non-paper (23 July 1996) Submission
by India on Item 2
Non-paper (11 Sept. 1996) Submission
by the United States: Draft Decision on Environmental Reviews
of Trade Agreements at the National Level
Item 3: The relationship between the provisions of the multilateral trading system and:
(a) charges and taxes for environmental purposes; and (b) requirements for environmental purposes relating to products, including standards and technical regulations, packaging,
labelling and recycling
WT/CTE/W/10-G/TBT/W/11 Note by
the Secretariat on the Negotiating History of the Agreement on
Technical Barriers to Trade with Regard to Labelling Requirements,
Voluntary Standards, and Process and Production Methods unrelated
to Product Characteristics
WT/CTE/W/21-G/TBT/W/21 Submission
by Canada on Elements of a Possible Understanding to the TBT Agreement
on Eco-labelling
WT/CTE/W/23-G/TBT/W/23 Eco-labelling
Programmes. Information provided by Canada, Chile, the Czech Republic,
the European Community, Norway and the United States at the informal
joint meeting of the Committees on Trade and Environment and Technical
Barriers to Trade held on 27 February 1996 regarding their
national and regional ecolabelling programmes
WT/CTE/W/27; G/TBT/W/29 Proposal
by the United States on Further Work on Transparency of Eco-labelling
WT/CTE/W/38-G/TBT/W/30 Proposal
by Canada on a Draft Decision on Eco-labelling Programmes
Non-paper (18 June 1996) Submission
by the Arab Republic of Egypt
Non-paper (23 July 1996) Submission
by the European Community on Eco-labelling Programmes
Non-paper (23 July 1996) Submission
by India on Item 3
Non-paper (11 Sept. 1996) Submission
by the United States: Draft Decision on Transparency in Eco-labelling
Programmes
Item 4: The provisions of
the multilateral trading system with respect to the transparency
of trade measures used for environmental purposes and environmental
measures and requirements which have significant trade effects
WT/CTE/W/5 Note by the Secretariat
on Item 4
WT/CTE/W/28 Note by the Secretariat
on Item 4
WT/CTE/W/34 Note by the Secretariat on the WTO Central Registry of Notifications
Non-paper (28 May 1996) Submission
by Hong Kong on Transparency: A Proposal on an Environmental Database
Item 5: The relationship between
the dispute settlement mechanisms in the multilateral trading
system and those found in multilateral environmental agreements
WT/CTE/W/2 Communication from
Chile on Item 5
Item 6: The effect of environmental
measures on market access, especially in relation to developing
countries, in particular to the least developed among them, and
environmental benefits of removing trade restrictions and distortions
WT/CTE/W/1 Note by the Secretariat
on the Environmental Benefits of Removing Trade Restrictions and
Distortions
WT/CTE/W/24 + Corr. Submission
by Argentina on The Environmental Benefits of Removing Trade Restrictions
and Distortions, including tariff escalation, subsidies, state
trading, and excessively high tariffs
WT/CTE/W/25 Note by the Secretariat
on Tariff escalation
WT/CTE/W/26 Note by the Secretariat
on The effects of environmental measures on market access, especially
in relation to developing countries, in particular to the least
developed among them
WT/CTE/W/35 Contribution by the
United States on Trade Liberalization and the Environment
WT/CTE/W/36 Submission by Australia
on Trade Liberalization, the Environment and Sustainable Development
(replaces the non-paper submitted on 21 May 1996)
Non-paper (20 June 1996) Submission
by India on Item 6
Non-paper (20 June 1996) Submission
by Norway on Market Access and Environmental Effects of Removing
Trade Restrictions and Distortions
Non-paper (28 June 1996) Preliminary
views of Japan on Item 6
Non-paper (23 July 1996) Submission
by the European Community on Item 6
Non-paper (24 July 1996) Submission
by Korea on Item 6
Item 7: The issue of exports
of domestically prohibited goods
WT/CTE/W/6 Note by the Secretariat
on A description of international agreements and instruments dealing
with trade in domestically prohibited goods and other hazardous
substances
WT/CTE/W/11 Communication from
Nigeria and Senegal under Item 7
WT/CTE/W/14 Proposal by Nigeria
on Domestically Prohibited Goods
WT/CTE/W/29 Note by the Secretariat
on Domestically Prohibited Goods: An assessment of the product
coverage in specific international instruments
WT/CTE/W/32 Proposal by Nigeria
on Domestically Prohibited Goods
Item 8: Trade-Related Aspects
of Intellectual Property Rights and the environment
WT/CTE/W/8 Note by the Secretariat
on Environment and TRIPs
WT/CTE/W/22 Note by the Secretariat
on Factors affecting transfer of environmentally-sound technology
Non-paper (20 June 1996) Submission
by India on The Relationship of the TRIPs Agreement to the development,
access and transfer of environmentally-sound technologies and
products (revises the non-paper submitted on 2 April 1996)
Non-paper (23 July 1996) Submission
by India on The Relationship between the TRIPs Agreement and the
Convention on Biodiversity
Non-paper (23 July 1996) Submission
by Korea on Consideration of relevant provisions of the Agreement
on TRIPs
Non-paper (11 Sept. 1996) Submission
by Australia on the TRIPs Agreement
Item 9: The work programme
envisaged in the Decision on Trade and Services and the Environment
WT/CTE/W/9 Note by the Secretariat
on Services and the Environment
Non-paper (23 July 1996) Submission
by India on Services and the Environment
General
WT/CTE/W/3 Report submitted by
the Secretariat on its own responsibility to the Secretariat of
the Commission on Sustainable Development at its Third Session,
11-28 April 1995
WT/CTE/W/7 Note by the Secretariat
on UNCED Follow-up: Results of the Third Session of the Commission
on Sustainable Development, 1128 April 1995
WT/CTE/W/13 Draft Rules of Procedure
for the Meetings of the Committee on Trade and Environment
WT/CTE/W/17 Summary of activities
of the Committee on Trade and Environment (1995) presented by
the Chairman of the Committee
WT/CTE/W/30 + Corr. Note by the
Secretariat on UNCED Follow-up: Results of the Fourth Session
of the Commission on Sustainable Development, 18 April -
3 May 1996
WT/CTE/W/33 Results of the Stocktaking
Exercise adopted at the 28-29 May 1996 CTE meeting
Non-paper (11 Sept. 1996) Submission
by Nigeria: Preliminary comments on the draft of Sections I and
II of the CTE Report to the Ministerial Conference
ANNEX V
Matrix for the Korean Approach
Trade measures | ||||||
Procedural | Substantive | |||||
Between Parties | Specific Measures | A |
Qualified Codification | Notificationsubject to review | Least inconsistency |
All Parties of an MEA |
Non-specific measures | B | Least trade restrictiveness, necessity | ||||
Parties to non-Parties | Specific measures | C | Non-binding
guidelines for MEA negotiator | GATT Art. 20 or
WTO Art.9 | Party; Notif, Non-Party; Counter-notif. | |
Non-specific measures | D |
No accommo- dation | GATT Art. 20
or WTO Art. 9 | |||
Unilateralism | Unilateral measures | E | Imposer; Notif.
Imposed; Counter-notif. |
END