Friends of the Earth Europe, Greenpeace & German NGO Forum on Environment & Development Working Group on Trade
July 2004
Discussion Paper
Summary
The WTO negotiations related to para. 31 (i) of the Doha Development Agenda (DDA) that seek to clarify the relationship between WTO rules and the trade measures based on the rules of Multilateral Environmental Agreements (MEAs) are in stalemate. Moreover, the negotiation process within the WTO indicates that the final outcome is likely to weaken the position of MEAs further rather than strengthen their provisions against WTO liberalization principles.
The EU therefore intends to shift the focus of the negotiations from the technical approach trying to define the trade measures and MEAs that would be covered by the negotiations to a more political approach of establishing an understanding of the interplay of two different systems of rules based on global governance principles. Although this is a welcome suggestion, a more detailed analysis shows that this line of negotiation within the WTO is unlikely to lead to an outcome that comprises a more general solution to the problem of giving appropriate priority to the legitimate concerns embodied in MEAs against the interests represented by the WTO.
Based on an overview of existing analysis regarding the relationship between WTO and MEA rules and principles of global (environmental) governance, the paper develops a new approach on how to solve this conflict outside the WTO. Since the mandate of the UN is much more appropriate to deal with such questions, the debate on the relationship between WTO rules and MEA trade-related measures should be moved to the UN-System. Current principles of public international law do not give sufficient guidance on how to deal with conflicts between international rule systems that promote different goals of public policy such as e.g. enhancing trade and protecting the environment. Therefore, the EU and other governments must take appropriate steps to initiate a discussion process within the UN-System that aims at drafting general, legally sound rules of solving conflicts between WTO and MEA measures.
Governments can do this either by pushing for a discussion in the CTE on how WTO rules can comply with MEA rules. Or, and this seems to be a more effective strategy, by initiating a discussion/negotiation forum or an official working group of interested governments either within UNEP or generally under UN auspices to address the clarification of the relationship between these different rule systems.
The initiative can build on the existing work of the MEA secretariats and focus on how MEAs understand the trade linkage. In addition, it can highlight how MEA rules and procedures increase the general welfare of countries and point at the socio-economic benefits of improving environmental quality by the implementation of MEAs.
It can also outline the existing system of rules and conflict resolution procedures in various environmental policy areas in order to illustrate that there is no danger of promoting arbitrary and disguised protectionist measures.
Moreover, UNEP, or the EU, should initiate a joint working group of experts from international institutions that represent environmental, trade and development interests, looking at ways of establishing general principles and rules for how to solve conflicts between multilateral trade and environment provisions.
This working group could take different forms, depending on the political support:
1. Create joint UNEP-MEA working group on trade. Such a group is already within the mandates of the MEA Secretariats and UNEP – which are requested by governments to enhance cooperation among each other and with other international organizations – and therefore does not require additional or new authorization. This could emerge from the existing UNEP informal process of facilitation or the Environmental Management Group initiated by UNEP in the context of the work on improving global environmental governance. Such a process can start immediately (given appropriate funding and impetus from governments), providing a useful first step towards more formal arrangements in the future.
2. With a view to ensure more political weight and the general acceptance of the deliberations and possible decisions of such an international working group may be enlarged to include representatives from MEA secretariats, the WTO secretariat and from WTO member states (trade as well as environment officials), UNCTAD, FAO, multilateral development agencies and civil society groups. The integration of UNCTAD, FAO and multilateral development agencies seems to be appropriate because they can contribute experiences regarding the developmental impacts and interests in the context of enhancing environmental protection and economic development at the same time.
The working groups should be set up with the aim of reaffirming that MEAs and not the WTO have the primary competence to interpret the environmental objectives and the necessity of MEA related trade measures.
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