Doha Mandate on MEAs

1. Doha Mandate on MEAs DIIS, Dec. 6, 2004 Laura Nielsen

2. 31.  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; What is the Doha Mandate on MEAs?

3. What is the REAL legal problem with MEAs and WTO? • A direct conflict of laws; i.e. that an obligation to create a trade barrier is laid down in a MEA – and this trade barrier is incompatible with WTO law. • A direct conflict of law is only possible if the exception in WTO law is not approved; which for the most part will be GATT Article XX. • To avoid conflict of laws, an interpretation of GATT Article XX could be that in the event an obligation to create a trade barrier stems from a MEA, GATT Article XX could be presumed to be satisfied

4. What is “Current” case law on GATT Article XX and environmental protection? • Shrimp case: protection of an endangered species ok with NPR-PPM if: • “good faith” effort negotiations (i.e. no requirement of conclusion of treaties with STOs) • Flexibility in certification process • And otherwise is “connected” with the “policy goal”; i.e. there is a “link” between the trade measure’s policy and the trade measure itself

5. The Shrimp case did not clarify what the relationship with MEAs are in general The Shrimp case was not a case that involved a STO The vast majority of trade measures do not arise out of STOs! Specific Trade Obligations in MEAs: Nobody really agrees on what that means Members agree that thus far there have not been any problems Shrimp and MEAs

6. What are the vast majority of trade related environmental measures in the foreseeable future? • In practical terms, it is not all trade barriers that do arise out of MEAs. The MEAs to protect e.g. biodiversity does not protect endangered species per se, but are designed to protect the species against special threats, such as e.g. CITES against trade. • Therefore, cases such as the Shrimp case (recalling that the Dolphin cases were about animal welfare and not biodiversity; i.e. dolphins were not endangered) did not arise out of an obligation in a MEA. • The obligations in MEAs in biodiversity is by and large put on the host country! The Shrimp case was a response by the US against countries, which did not protect the Sea Turtles – regardless of whether they had pledged they would in a MEA.

7. The Shrimp case in terms of MEAs • Protection of Sea Turtles can be found in e.g. CITES (trade of Sea Turtles) and in the Bonn Convention on Endangered Migratory Species (protection against taking, migration routes, etc.) • Neither the US nor Malaysia are parties to Bonn. • If they had been parties to Bonn, the trade measure taken by the US was still not mandated by the Convention!

8. An imperfect world leads to unilaterally prescribed trade measures • In the perfect world, the host countries of an endangered species would protect it! • In an imperfect world, other countries may wish to protect what they can in the course of trade! This is done by unilaterally prescribed trade measures • The legality of such measures depends on the GATT Article XX analysis

9. The Negotiations could lead to diminished access to approval under GATT Article XX • If it is being decided that solely those measures, which are provided for in MEAs should be legal under GATT Article XX, this would diminish the scope of the exception greatly • If it is being decided that non-parties should not be affected by obligation laid down in MEAs, this would equally diminish the scope of the exception greatly.

10. Perhaps we should hope for no harvest on 31:1 of the DDA • The current interpretation (Shrimp) gives much flexibility to the AB in interpreting GATT Article XX. • It is at present “allowed” to coerce a non-party into compliance of a MEA • The BIGGEST problem we face is NOT the legality of a MEA in terms of WTO law because of the “rareness” of such measures and because GATT Article XX can be interpreted to avoid “conflict of laws” in its classical sense • The BIGGEST problem is the interpretation of “nexus” in relation to GATT Article XX

11. NEXUS • Sufficient nexus was established for the US to protect Sea Turtles outside their own country because some Sea Turtles sometimes came into the jurisdictional limits. • The obvious problem with this is that the notion of “common concern” in relation to biodiversity was not considered! • Therefore, if e.g. Denmark was the defending party in the case, we would presumable not be able to “prove” our nexus!

12. Developing Countries • The developing countries have access to more expense sharing in MEAs than in unilaterally prescribed trade measures • One suggestion could therefore be that if a developing country is affected by a trade measure, that a requirement of technical assistance and perhaps funding or loans for new equipment was a “condition” for the GATT Article XX approval.