WTO vs MEAs

A developing country perspective

 
By Ulrich Hoffman
Last Updated: Sunday 07 June 2015

WTO vs MEAs

-- The Doha Ministerial Declaration, in paragraph 31(i), mandates negotiations on the relationship between existing wto rules and specific trade obligations (stos) set out in Multilateral Environmental Agreements (meas) that aim to make trade and environment more mutually supportive. How can this mandate be approached from a developing country perspective?

First, it is inadvisable that negotiations remain narrowly focused on stos. Developing countries need to stress that trade measures generally are integral to a package of measures. Restrictive trade measures can be accompanied by supportive measures or enhanced flexibility elements. If properly used, balance and interplay between measures can also help address the internal differences among developing country parties. In short, developing countries should advocate a practical way that pays due attention to the development dimension of the package of measures taken by relevant meas.

Second, the objectives of developing countries are best taken into account by a "bottom-up" analysis of practical experience with stos in concerned meas. This will help identify real areas of conflict between both systems, rather than hypothetical areas.

Third, although it is important to clearly define the term "specific trade obligations", developing countries should avoid a too legalistic debate. It is better for developing countries that stos in meas leave little discretion to parties for unilateral measures taken "pursuant to meas". stos should not include those that are discretionary. On the other hand, the unfccc and its Kyoto Protocol, which do not provide for stos, but use trade measures as obligation de rsultat , would fall outside the mandate of paragraph 31(i), although these accords might have the most important trade implications of all meas. Therefore developing countries should advocate the introduction of some discipline for discretionary trade measures taken pursuant to meas.

Fourth, in meas, developing countries should insist on clear definitions of stos with objective, science-based criteria for use. This will be important for stos to be effective and efficient in meas, and avoid the risk that such measures be regarded as arbitrary and/or unjustifiably discriminatory.

Fifth, it seems logical to focus the next phase in the wto negotiations on an in-depth review of the stos in a small number of concerned meas. Such analysis should aim at identifying those stos that lack clarity, are inflexible and ineffective and thus might not be compatible with wto rules. Once such a list is established, it could be brought to the attention of mea parties. They could form a working group of environment and trade experts under the aegis of the respective mea, which studies potentially conflictive stos and recommends improvement and/or supportive measures or flexibility elements.

Such an approach would keep the decisive discussion under the control of mea constituencies. It can also safeguard the delicate balance between rights and obligations meas contain. It will require, however, a sincere and open attitude, and to consider wto principles such as least trade restrictive practices. It is important in this regard that individual meas demonstrate (i) they are effectively dealing with the relevant environmental threat, using trade measures that are the least restrictive to achieve the policy objective; (ii) they are a genuine platform for consensus; and (iii) that they have an effective dispute settlement mechanism.

Papers could be commissioned on the Basel Convention, cites, and the Montreal Protocol (known to possess areas of tension), and also on the Biosafety Protocol, the pic and pops Conventions. There could then be a debate on stos that may become or already are a source of tension, probably leading to two options: (1) Whether wto members want to bring to the attention of the concerned meas that a specific trade measure might generate trade tensions and that the proper mea bodies may wish to hold consultations, including key stakeholders and trade experts, on the concerned trade measures and discuss ways of enhancing their flexibility, including through the use of supportive measures; (2) Whether there is a larger number of stos with potential tensions in the studied meas that cannot be individually addressed by meas and for which a generic solution within the wto context would have to be found.

Finally, developing countries urgently need to improve policy coherence at national level regarding the need, shape and attached criteria for stos and other trade measures in meas. They need to develop a consistent agenda on the subject that reflects developmental priorities and discusses wto -compatibility issues as an integral part.

Ulrich Hoffman is with the United Nations Convention on Trade and Development. The views expressed here are his own.

For more go to www.cseindia.org/html/geg/cancun-indepth.htm

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