WORLD TRADE
ORGANIZATIONTN/TE/W/2
23 May 2002
(02-2853)
Committee on Trade and Environment
Special SessionOriginal:  Spanish
MANDATE UNDER PARAGRAPH 31(i) OF THE DOHA DECLARATION
ON TRADE AND ENVIRONMENT
Submission by the Argentine Republic
Paragraph 31(i)
I. INTRODUCTION
1. Argentina wishes in this document to comment  on some of the issues arising from the
interpretation of the Doha Declaration on trade and environment, with a view to presenting criteria tohelp structure the discussions and work of the Special Session of the Committee on Trade and
Environment, in accordance with the mandate under paragraph 31(i) of this Declaration.
2. The Committee on Trade and Environment (CTE) has given - and will continue to give - great
consideration to "the relationship between the provisions of  the multilateral trading system and trade
measures for environmental purposes, including those pursuant to multilateral environmental
agreements (MEAs )", under Item 1 of the agenda, and, under Item 5, to " the relationship between the
dispute settlement mechanisms in the multil ateral trading system and those found in MEAs ".
However, we feel that the task set by the Ministers in paragraph 31(i) of the Doha Declaration is more
precise and specific .
II. MANDATE UNDER PARAGRAPH 31(i) OF THE DOHA DECLARATION
3. The task set by the Ministers in Doha (14 November 2001), albeit in the context of the work
of the Committee, is clear and eloquent. It is not a question of addressing the relationship betweentrade measures for environmental purposes, including those pursuant to multilateral environmental
agreements (MEAs) in general, but rather , and in particular, the relationship between  "existing WTO
rules" and "specific trade obligations " set out in multilateral environmental agreements (MEAs).
4. Paragraph 31(i) of the Doha Declaration reads as follows:
"With a view to enhancing the mutual supportiveness of trade and environment, we agree to
negotiations, without prejudging their outcome, on:
(i) the relationship between existing WTO rules and specific trade obligations  set out
in multilateral environmental agreements (MEAs).  The negotiations shall be limited
in scope to the applicability of such existing WTO rules as among parties to the MEA
in question. The negotiations shall not prejudice the WTO rights of any Member that
is not a party to the MEA in question". (emphasis added)
This text reflects the Ministers' will and intention to establish a mandate for negotiations -
without prejudging their outcome - on a specific and concrete aspect of the relationship betweenMEAs and the Marrakesh Agreement.TN/TE/W/2
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The first sentence of paragraph 31(i) identifies the provisions to be taken into consideration:
"existing WTO rules" and "specific trade obligations set out in  multilateral environmental agreements
(MEAs)".
The second sentence of paragraph 31(i) limits the scope of the negotiations to "the
applicability of such existing WTO rules as among parties to the MEA in question. The negotiations
shall not prejudice the WTO rights of any Member that is not a party to the MEA in question".
III. EXISTING WTO RULES AND SPECIFIC TRADE OBLIGATIONS
5. The reference to "existing WTO rules" encompasses all the provisions of agreements which
are currently in force, known as "covered agreements".
6. The reference to "specific trade obligations" covers the provisions of multilateral
environmental agreements which entail an "obligation".  All non-mandatory trade measures, non-trade
obligations and non-specific trade obligations in an MEA are therefore excluded. The meaning of the
expression "specific trade obligations"  should be borne in mind when determining which such
obligations in the MEA should be considered.
7. In accordance with paragraph 31(i) of the Doha Declaration, it is a question of the provisions
of multilateral environmental agreements that contain  "specific trade obligations", which should be
understood as follows:
- "obligation" means  a provision which prescribes "the enforceability of an act or
omission imposed by a rule of law"1;
- "trade", that is to say, such action is related to an import or export operation;
- "specific",  that is to say, the obligation has a singular feature distinguishing it from
the general category. This requirement means that only obligations which have been
explicitly identified as mandatory within the framework of an MEA may be included
in this category. It should be noted that an analysis of the different MEAs revealedthat some establish a particular outcome as mandatory (e.g., protection of the ozone
layer), whilst allowing countries the possibility of employing different measures to
achieve this objective. In that respect, the action taken with a view to achieving such
an outcome is not legally covered by the Doha mandate given that:
• The obligation does not relate to a particular type of behaviour to be adhered
to by a country, rather to a result which must be achieved. That is to say, the
MEA does not require countries to implement a particular measure, rather to
achieve an outcome, with the result that countries are entitled to achieve this
objective using different measures.
• The obligation in this case is not specific since the only thing explicitly
identified by the MEA is a particular outcome, the measures used to achieve
it being left to the countries’ discretion.
                                                     
1 Diez de Velázco, Manuel, "Instituciones del Derecho Internacional Público", (Tecnos, 1991),
page 667.TN/TE/W/2
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IV. APPLICABILITY OF EXISTING WTO RULES AMONG PARTIES TO THE MEA IN
QUESTION
8. Furthermore, criteria will have to be established for determining the kind of relationship
between the "specific trade obligations"  and the rules of the multilateral trading system.
9. The problem of the relationship between different legal provisions which relate to a single
issue is not unfamiliar to the WTO, the legal system of which is itself made up of several multilateral
and plurilateral agreements all coming under one international treaty: the Marrakesh Agreement.
Indeed, the Marrakesh Agreement comprises a series of independent agreements negotiated both in
earlier rounds ("Codes") and throughout the history of the GATT. The existence of provisions which
often wholly or partially overlap rules in other agreements or which appear to constitute an implicit
derogation can therefore be easily confirmed.
10. The work of the Panels and the Appellate Body of the dispute settlement system has involved
addressing situations in which several legal rules were applicable to a single issue. In that respect, the
following "criteria" - which, moreover, stem from international legal practice - were adopted to
identify the kind of relationship established between them:
• complementarity : meaning that concurrent obligations in two different, but
complementary, international agreements, if not mutually exclusive, should be
complied with at the same time.2  Commonly referred to as the "principle of
cumulation", this is what generally occurs at international level when a State is bound
by several international treaties3;
• express derogation : occurring when compliance with an obligation under one
convention - compliance with which would be incompatible with a provision of
another international agreement - is covered by an express exception in the latter4;
• conflict : occurring in situations where compliance with one obligation necessarily
entails failure to comply with anothe r, and the two cannot be reconciled.5
                                                     
2 The report "European Communities - Regime for the Importation, Sale and Distribution of Bananas"
(WT/DS27/R/USA) of 22 May 1997 states that "…the obligations arising from the former (the Agreements
listed in Annex 1A) and GATT 1994 can both be complied with at the same time without the need to renounce
explicit rights or authorizations.  In this latter case, there is no reason to assume that a Member is not capable of,
or not required to, meet the obligations of both GATT 1994 and the relevant Annex 1A Agreement"
(paragraph 7.160).
3 The Appellate Body Report "Canada - Certain M easures Concerning Periodicals" (WT/DS31/AB/R)
of 30 June 1997 states that "The ordinary meaning of the texts of GATT 1994 and GATS as well as Article II:2
of the WTO Agreement, taken together, indicates that obligations under GATT 1994 and GATS can co-exist
and that one does not override the other" (page 21).
4 The Appellate Body Report "European Communities - Regime for the Importation, Sale and
Distribution of Bananas" (WT/DS27/AB/R) of 9 September 1997 states that "The Agreement on Agriculturecontains several specific provisions dealing with the relationship between articles of the Agreement on
Agriculture and the GATT 1994.  For example, Article 5 of the Agreement on Agriculture allows Members to
impose special safeguards measures that would otherwise be inconsistent with Article XIX of the GATT 1994and with the Agreement on Safeguards…" (paragraph 157).
5 The Appellate Body Report "Guatemala - Anti-Dumping Investigation Regarding Portland Cement
from Mexico" (WT/DS60/AB/R) of 2 November 1998 states that "A special or additional provision should only
be found to prevail over a provision of the DSU in a situation where adherence to the one provision will lead to
a violation of the other provision, that is, in the case of a conflict between them. An interpreter must, therefore,
identify an inconsistency or a difference between a provision of the DSU and a special or additional provision ofa covered agreement before concluding that the latter prevails and that the provision of the DSU does not apply"
(paragraph 65) (emphasis added).TN/TE/W/2
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11. The above-mentioned criteria would allow a series of relationships between the " specific
trade obligations " in the MEAs and the provisions of the Marrakesh Agreement to be identified. This,
in turn, would enable us to assess the need for, and form which should be taken by, a possible
regulatory solution within the purview of the WTO to achieve greater complementarity betweenenvironmental and free-trade objectives.
12. We feel that this experience, which is characteristic of the WTO, constitutes a reference
which could serve as guidance when reviewing the relationship between existing WTO rules and
specific trade obligations in MEAs, given that both multilateral environmental agreements and the
Marrakesh Agreement, in their capacity as international treaties, belong to the same international legal
system.
V. MULTILATERAL ENVIRONMENTAL AGREEMENTS13. In addition to categorizing specific trade obligations, Members will have to agree upon the
kind of agreements to be covered by the expression " multilateral environmental agreements ". We are
of the opinion that such agreements should meet the following guidelines:
• in force : the review should be restricted to agreements which are currently in force.
Failure to do so would impair the Doha mandate, given that the negotiations cover
only " specific trade obligations ". No international obligation may be based on an
agreement which is not in force;
• multilateral : the agreement should have been negotiated by more than two parties and
under the aegis of the United Nations, its specialized agencies or the United Nations
Environment Programme (UNEP), and have attained a certain degree of universality;
• open : countries which did not participate in the negotiations should subsequently be
able to accede.
VI. MEMBERS THAT ARE NOT A PARTY TO AN MEA
14. The mandate under paragraph 31(i) establishes that the negotiations shall not prejudice the
WTO rights of any Member that is not a party to an  MEA. That is to say, the "intangibility" of the
rights of WTO Members that are not a party to an MEA has been established by the Ministers
regardless of the final outcome of the negotiations.
15. Negotiating in such circumstances raises questions about the legal effects and situations
which would result from a decision to adopt rules as a response to ensure compliance with " specific
trade obligations " which are potentially inconsistent with WTO principles.
Compliance with " specific trade obligations " which could come into conflict with WTO
provisions or principles would involve diminishing the rights currently enjoyed by WTO Memberswhich are also a party to an MEA. Two categories of WTO Members would therefore be established:
Members which are a party to an MEA: their rights would be diminished to ensure
compliance with specific trade obligations which are potentially inconsistent with the Marrakesh
Agreement;
Members which are not a party to an MEA: they  would enjoy more extensive rights under the
Marrakesh Agreement since they would not be affected by the outcome of the negotiations, as
expressly stated in paragraph 31(i) of the Doha Declaration.TN/TE/W/2
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16. Were this to be the final outcome, the legal situations and implications for WTO Members
which are a party to an MEA would be as follows:
(a) Some environmental agreements have been signed with a special safeguard clause
which protects rights and obligations under other international agreements, includingthe Marrakesh Agreement. Any modification of the WTO rights of Members which
are a party to an MEA would therefore involve a radical change in the nomative
context in which the agreement was signed. That is to say, it would alter the
conditions in which a WTO Member consented to be bound by an MEA.
(b) A change in the WTO rights of States which are a party to an MEA in order to
comply with " specific trade obligations " which may prove contrary to the Marrakesh
Agreement would involve modifying the scope of MEA obligations. In other words,an amendment of the Marrakesh Agreement would quite simply mean altering the
scope and extent of the obligations in the MEA, with consequent effects on the parties
thereto.
VII. SUMMARY17. The following conclusions may be drawn from the above:
(a) The mandate under paragraph 31(i) of the Doha Declaration is clear and precise both
as regards the subject matter of the negotiations (existing WTO rules and specific
trade obligations in MEAs) and their scope (the implementation of WTO rules).
(b) The criteria for identifying the relationsh ip between the "specific trade obligations" in
MEAs and "existing WTO rules" can be drawn from the experience of the Panels and
the Appellate Body of the dispute settlement system.
(c) The expression "multilateral environmental agreements" (MEAs) should cover only
agreements which are currently in force, have been negotiated and signed under the
aegis of the United Nations, its specialized agencies or the United NationsEnvironment Programme (UNEP), have attained a certain degree of universality and
are open.
(d) In the event of a normative solution being chosen to ensure compliance with the
specific trade obligations in multilateral environmental agreements, the legal
implications for Members party to the MEA should be taken into consideration since
this would involve a radical change in the normative context in which the agreement
was signed and a modification of the extent and scope of the specific tradeobligations in the MEA.
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