WTO Environment Committee Begins To Tackle Doha Environment Mandate

Convening on 22 March for the first special (negotiating) session of the WTO Committee on Trade and Environment (CTE), Members addressed items under the environment heading in the Ministerial Declaration -- adopted at the Fourth WTO Ministerial Conference in November last year -- including the relationship between existing WTO rules and specific trade obligations set out in multilateral environmental agreements (MEAs), including the CBD and others.

Discussions on how to improve interaction between the CBD and other international regimes will also feature at the Sixth Conference of the Parties (COP-6) of the CBD on 7-19 April in The Hague. In this context, the draft statement to the World Summit for Sustainable Development put forward by the CBD Executive Secretariat for consideration at COP-6 stresses the importance of integrating biodiversity considerations into other sectors, "particularly in areas that traditionally are economically and politically dominant such as industry, trade and transport". "At the global level, what is needed above all, is for other international regimes to take on board the concerns of this Convention," the draft statement says (see related story, this issue).

WTO discusses MEA-WTO relationship

The 22 March special session of the CTE focused on the organisation of future work and began discussions around the three sub-paragraphs of the Doha environmental negotiating mandate in para. 31. In brief, they include (i) the relationship between WTO rules and specific trade obligations set out in MEAs; (ii) procedures for regular information exchange between MEA secretariats and the relevant WTO Committees, and the criteria for granting of observer status; and (iii) the reduction or elimination of tariff and non-tariff barriers to environmental goods and services (see BRIDGES Trade BioRes, 22 November 2001).

Many observers have termed the environmental negotiating objectives in the Doha Declaration as being limited in scope or circumscribed, in particular para. 31(i) on the MEA-WTO relationship which was further qualified by adding that the negotiations "shall not prejudice the WTO rights of any Member that is not a party to the MEA in question". According to one UNEP official, Members thereby effectively skirted the 'party versus non-party' issue. That is, a WTO Member, which is not a party to a particular MEA, might be affected by a trade measure taken pursuant to the MEA. The WTO Member could then decide to challenge the measure at the WTO, raising the question of which agreement should prevail if the measure was found to be consistent with the MEA but inconsistent with WTO rules. Environmental groups are also concerned that this qualification could in fact prove to be a disincentive for getting countries to sign on to MEAs. In addition, the Declaration further waters down the mandate under (i) and (ii) by saying that the negotiations "shall not add to or diminish the rights and obligations of Members under existing WTO agreements". According to sources, this may shift the possible outcomes of negotiations on these points away from rule changes and towards clarifications or footnotes to existing rules.

The EC, which at the Doha Conference was the main demandeur for environmental negotiations, initiated discussions by circulating a controversial paper outlining some preliminary ideas on para. 31(i) on the WTO-MEA relationship. Inter alia, the EC paper pushes for clarification of the WTO Agreements on how they relate to MEAs and sets out the EC's initial thoughts on 'specific trade obligations' in MEAs and 'among parties' as contained in 31(i). Most other delegations -- Australia in particular -- viewed the EC position as overly ambitious. In the words of one diplomat who attended the meeting, the EC's ideas "bear little resemblance to reality". Countries were concerned primarily on two points. First, that the EC was going beyond the scope of mandated negotiations by talking about both party and non-party issues, whereas the Doha text limits the applicability of talks to parties of MEAs only. Second, there is concern that the EC was attempting to revive previous proposals to reverse the burden of proof in environment-related disputes, which is opposed by many -- particularly developing country -- Members.

Discussions on para. 31(ii) (procedures for regular information exchange between MEA secretariats and the relevant WTO Committees) were not as focused as those under 31(i), as there was no paper to stimulate talks and countries did not have well-developed positions. The US and Canada said that there could be potential for an 'early harvest' on this item, since its main focus of procedures for information exchange between WTO Committees and MEA secretariats is viewed to be one of the less contentious issues on the mandate.

The question of whether to grant observer status to MEA secretariats to attend the special sessions of the CTE remained unresolved after Members at an informal meeting prior to the CTE session had decided to refer the matter to the General Council, following remarks by some countries, including Malaysia and India, that this was a systemic question as other negotiating Committees are also running into this divide. According to sources, many countries would favour granting observer status to MEA secretariats for the CTE special sessions in order to allow them to contribute substantively, particularly in light of the fact that the negotiations concern specific trade obligations in MEAs (para. 31(i)) and information exchange with MEAs (Paragraph 31(ii)).

On para. 31(iii), most Members see the CTE as playing primarily a monitoring role, as negotiations on environmental goods and services have been allocated to the Negotiating Committee on Market Access and the special sessions on Services, respectively. While a list of environmental services already exists under Services, sources indicate that a list of what qualifies as an environmental good is likely to be left with Market Access.

The regular CTE agreed to hold three meetings in 2002, back-to-back with the CTE special sessions. The next meetings will be on 13-14 June (focusing on Trade-Related Aspects of Intellectual Property Rights issues) and 8-9 October (focusing on eco-labelling). Members expressed their support for a scheduled information session with MEA secretariats on 13 June on technical assistance and capacity building. Expected participants include the UNEP Executive Secretary and the heads of the following six MEAs: the Convention on Biological Diversity (CBD); the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); the Basel Convention; the Montreal Protocol; the UN Framework Convention on Climate Change; and UNEP Chemicals (PIC and POPs Conventions).

Linkage with the CBD

Discussions on the relationship between the WTO and the CBD have been underway in the CTE since 1996, primarily under Item 8 of the CTE's work agenda - 'the relevant provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)'. Issues discussed under this item include the relationship of the TRIPs Agreement to the environment; transfer of environmentally-sound technology; environmentally-unsound technologies; indigenous and traditional knowledge; and certain MEAs, in particular the CBD (see related story, this issue).

While the CBD is an observer at the CTE, it has been refused observer status at the TRIPs Council by the US, which is not a member of the Convention due primarily to its pharmaceutical and biotechnology interests. The US argues that the most effective means for providing access to genetic resources, and for ensuring that any benefits that arise from their use are shared fairly and equitably, is through contracts between those granting access to the resources and those to whom access is granted. At COP-6 of the CBD, Parties are expected to renew their request for observer status in the TRIPs Council.

Document exchange between the CTE and the CBD has been underway since 1997. A 29 September 1997 communication from the Executive Secretary of the CBD on the Convention and its relation to trade (WT/CTE/W/64), for instance, outlines CBD provisions of major importance for trade. These include Article 8(j) on preservation of traditional knowledge and benefit-sharing, Article 10 on the sustainable use of components of biodiversity, and Article 11 on incentive measures. The note further states that, "as the Convention deals with all aspects of living resources, trade is an integral part of its area of concern."

The WTO has regularly sent staff to attend CBD Conferences of the Parties, and the CBD secretariat has been actively engaged in MEA information sessions convened yearly by the CTE. According to trade sources, information exchange between the two institutions has focused on (i) traditional knowledge (TK) and (ii) the broader relationship between the TRIPs Agreement and the CBD. On TK, the CTE discussions have contributed to the inclusion of TK in the TRIPs mandate by breeding familiarity with the protection of TK and with Article 8(j). Sources indicate that this process helped lead to the establishment of the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore in the World Intellectual Property Organization (WIPO).

Additional Resources

Draft CBD statement for WSSD (UNEP/CBD/COP/6/15), http://www.biodiv.org/meetings/cop-06.asp

WTO Ministerial Declaration.

WTO documents are searchable at http://docsonline.wto.org/.

ICTSD Internal Files.