Both the Minstry of Foreign Affairs and the Ministry of Environment were represented in the Norwegian delegation for this informal meeting in the Special Session of the Committee on Trade and Environment (CTE-SS), and Ms. Kaja B. Edrén made the following intervention:
Thank you Mr. Chairman,
The CTE-SS has held fruitful discussions in the years since Doha on paragraph 31(i) of the mandate. Different perspectives have been put on the table, including different approaches to how the mandate should be interpreted and dealt with. Perhaps as importantly, there has been a lot of sharing of experiences on the relationship between WTO and Multilateral Environmental Agreements (MEAs) in general, and Specific Trade Obligations in particular, and on coordination at the national level in order to enhance the mutual supportiveness of WTO rules and MEAs.
The Doha Round as a whole seems to have received new impetus with the process that has recently been set in motion with the new texts on Agriculture and NAMA, and the possibility that a horizontal process may soon begin. We are, thus, approaching a phase where our negotiations in the CTE/SS could be finalized even as early as this year.
As others, we have been struggling over the past years to see what would be a possible out-come of our negotiations in the CTE-SS. We have studied with care the proposal by Australia and Argentina to have a “substantive report [...] highlighting key observations from CTESS discussions, and setting out areas of agreement and recommendations.” We have also studied the proposed Ministerial Decision suggested by the European Communities.
We have also noted your element paper, Mr. Chairman, which seems to be based on the Australian and Argentinian ideas of a “substantive report”, and providing some “guidelines” or “recommendations” at the same time.
While all of this is laudable, we are not certain that consensus can be achieved on guidelines or recommendations or decisions – or even on a report if it goes beyond factual statements of positions. Over the past 6 years of negotiations we have come to the conclusion that consensus is not likely to be reached on anything that upsets the current balance between WTO rules and rules in MEAs.
And indeed, Mr. Chairman, we are not certain that any of the guidelines or recommendations or decisions that have been suggested so far necessarily respond to what we are asked to do in this negotiating group. They all seem to try to upset the balance or create hierarchy between WTO or MEAs, rather than “enhancing the mutual supportiveness of trade and environment” – which was what Ministers at Doha had as their guiding principle.
The answer to what the mandate requires of us will only be evident when the negotiations are over. The “end-result” always responds to the mandate – no matter what it is.
If we try to interpret the wording more broadly on the basis of different additional means of interpretation, such broader interpretation may easily lead to disagreement on what aspects fall within, at the margins of and outside the scope of the mandate.
Therefore Mr. Chairman, in order to find common ground, we should make consistent effort to focus solely on the mandate in par 31(i).
We still find it instructive to pause once more at what the Ministers asked us to do at Doha, to explain where we – Norway – are coming from when contemplating possible results in these negotiations.
The Ministers asked us to negotiate, without prejudging the outcome of the negotiations, on the relationship between existing WTO rules and specific trade obligations set out in multilateral environmental agreements (MEAs). The outcome of this work shall not prejudice the WTO rights of any member that is not a party to the MEA in question. Futhermore, the negotiations shall not add to or diminish the rights and obligations of Members under WTO Agreements.
However, they specifically reminded us that the negotiations shall be limited in scope to the applicability of such existing WTO rules as among parties to the MEA in question.
You have heard us before stress the importance of the words “applicability of WTO rules” as opposed to “application of WTO rules”. Let me try to explain in some more detail why we believe that this choice of words are instructive to what we believe we should aim for – and also is within the realm of possible.
What does, then “applicability” mean to us, and how do we distinguish that from what we are seeing in other papers?
“Applicability” for us means simply the question of whether WTO rules are applicable or not, in a situation where a Specific Trade Obligation (STO) is implemented between two parties to an MEA. And this is only relevant if and when such STOs between the MEA parties are brought before the WTO.
The question is what should a WTO Panel do if ever there was a dispute between two Members, both also parties to the same MEA, regarding a specific trade obligation in an MEA? Clearly, a WTO panel would apply WTO rules.
That, for us, is the simple answer to the question of “applicability”.
It should be underlined, however, that this situation is unlikely to occur, because of the characteristics of the measures. They are specific in nature, multilaterally negotiated- and among parties. Presumably, this will be solved between the parties concerned.
We want to highlight some issues that in our opinion is not within our mandate:
I) “Applicability” ; Answer to the question of applicability does not require guidelines or recommendations or decisions on exactly how any particular WTO rule would apply in practice to any particular STO – if and when a dispute arises.
II) Trying to agree up-front to guidelines or recommendations or decisions here is not within our mandate.
Firstly because that would go beyond the mere question of applicability and into the question of the application of particular WTO rules to an actual situation where a particular STO is in place;
Secondly, because we believe that there are no generalized rules that can be agreed that would encompass all possible situations; and
Thirdly, because past experience tells us that we are not likely ever to agree on such guidelines or recommendations or decisions.
Some have suggested that we develop guidelines on how to develop and implement and coordinate STOs in MEAs. Our point of departure remains that the desirability of having STOs in any given MEA should be left for the parties of that MEA to decide. This is not a question for the WTO.
Furthermore, categorizing STOs as suggested by some, carries a connotation that some STOs are “good” and others are “bad” – something that the WTO is not equipped to pronounce itself upon and that Ministers never asked for. While we see a certain merit in categorization for the intellectual exercise of discussing what an STO actually is, we fail to see merits in making this part of any result of our negotiating group as it may carry consequences that are not desirable.
What sort of outcome do we then foresee? We consider it unlikely that a comprehensive result would come out of these negotiations under paragraph 31(i) of our mandate. The outcome will most likely be a confirmation of status quo. This view is strengthened by our impressions from the past negotiations that indicate to us that Members are not likely to agree on what any such changes should actually be.
Currently, our thinking goes in the direction of having just a simple “Ministerial Declaration” on par. 31(i). Such a declaration could refer to the useful work that has taken place in the negotiating group, and affirm the following:
1) The MEAs and the WTO Agreements are instrument of international law of equal standing between parties to the agreements, and that all obligations under international law should be implemented harmoniously and in good faith.
2) WTO rules are applicable to STOs in MEAs, should there ever be a dispute in the WTO between two WTO Members that are parties to the same MEA.
3) Specific trade obligations that are multilaterally negotiated, between parties and specific in nature are unlikely to be challenged in the WTO.
Such a declaration would, of course, not foreclose further discussion on trade and environment. We would, therefore, envisage an enhanced role of CTE-Regular in furthering discussions on trade and environment after the conclusion of the Doha Round.
We would like to discuss futher along the lines drawn up in this intervention, and remain open for comments and input. We have not finalized a proposal for such a declaration for this meeting. We might, however, submit a draft for a later meeting.
Thank you, Mr Chairman.