Subregional Workshop on the Trade and Environment Dimensions in the Food and Food Processing Industr

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Subregional Workshop on the Trade and Environment
Dimensions in the Food and Food Processing
Industries in South-East and North-East
Asia Jakarta, Indonesia, 26-27 July 2006
Nuria Castells (nuria.castells_at_unctad.org) Divisio
n on International Trade in goods and services,
and Commodities UNCTAD
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Trade and Environment at WTO

• The committee on Trade and Environment was
  created by the Decision on Trade and Environment.
  Adopted by ministers at the meeting of the
  Uruguay Round Trade Negotiations Committee in
  Marrakesh on 14 April 1994

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CTEs REGULAR WORK PROGRAMME
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Trade and Environment Doha work programme

• The Doha Mandate on Trade and Environment
• Par. 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
• (ii) procedures for regular information exchange
  between MEA Secretariats and the relevant WTO
  committees, and the criteria for the granting of
  observer status
• (iii) the reduction or, as appropriate,
  elimination of tariff and non-tariff barriers to
  environmental goods and services.

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Trade and Environment Doha work programme (2)

• The Doha Mandate on Trade and Environment
• Par. 32. We instruct the Committee on Trade and
  Environment, in pursuing work on all items on its
  agenda within its current terms of reference, to
  give particular attention to
• (i) the effect of environmental measures on
  market access, especially in relation to
  developing countries, in particular the
  least-developed among them, and those situations
  in which the elimination or reduction of trade
  restrictions and distortions would benefit trade,
  the environment and development
• (ii) the relevant provisions of the Agreement on
  Trade-Related Aspects of Intellectual Property
  Rights and
• (iii) labelling requirements for environmental
  purposes

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Trade and Environment Doha work programme (3)

• The Doha Mandate on Trade and Environment
• Par. 33. We recognize the importance of technical
  assistance and capacity building in the field of
  trade and environment to developing countries, in
  particular the least-developed among them. We
  also encourage that expertise and experience be
  shared with Members wishing to perform
  environmental reviews at the national level.

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Trade and Environment Doha work programme (4)

• The Doha Mandate on Trade and Environment
• Par. 51 The Committee on Trade and Development
  and the Committee on Trade and Environment shall,
  within their respective mandates, each act as a
  forum to identify and debate developmental and
  environmental aspects of the negotiations, in
  order to help achieve the objective of having
  sustainable development appropriately reflected.

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Trade and Environment Doha work programme (5)

• Par. 6
• We strongly reaffirm our commitment to the
  objective of sustainable development, as stated
  in the Preamble to the Marrakesh Agreement. We
  are convinced that the aims of upholding and
  safeguarding an open and non-discriminatory
  multilateral trading system, and acting for the
  protection of the environment and the promotion
  of sustainable development can and must be
  mutually supportive.

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Trade and Environment Doha work programme (6)

• The Doha Mandate on Trade and Environment
• Par. 6 (2)
• We recognize that under WTO rules no country
  should be prevented from taking measures for the
  protection of human, animal or plant life or
  health, or of the environment at the levels it
  considers appropriate, subject to the requirement
  that they are not applied in a manner which would
  constitute a means of arbitrary or unjustifiable
  discrimination between countries where the same
  conditions prevail, or a disguised restriction on
  international trade, and are otherwise in
  accordance with the provisions of the WTO
  Agreements.

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WTO Agreements on TBT and SPS (I)
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Why an Agreement on TBT ?
The impact of technical regulations and
standards on free trade

• The Costs !!
• Loss of economy of scale
• Information costs
• Adjustment costs to divergent technical
  regulations
• Costs resulting from uncertainty

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General Objective of the TBT Agreement
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Definitions - Annex 1
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Scope of the TBT Agreement
All products, including industrial and
agricultural products
except,
- sanitary and phytosanitary measures -
regulations and standards related to services -
purchasing specifications for production or
consumption of governments
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Main Principles of the TBT Agreement
1. Non - Discrimination
2. Avoidance of unnecessary obstacles to trade
3. Harmonization
4. Equivalence
5. Mutual Recognition
6. Transparency
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1. Non-Discrimination (a)
Article 2.1 Members shall ensure that ...
products imported from the territory of any
Member shall be accorded treatment no less
favourable than that accorded to like products of
national origin and to like products originating
in any other country.
applies in the preparation, adoption, and
application of Technical Regulations, Standards
and Conformity Assessment Procedures
Article 2.1
Article 5.1.1
Annex 3.D
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1. Non-Discrimination (b)
What is a like product for purposes of the TBT
Agreement?
Likeness is determined on a case by case basis
4 criteria
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Main Principles of the TBT Agreement
1. Non - Discrimination
2. Avoidance of unnecessary obstacles to trade
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2. Avoid unnecessary obstacles to trade (a)

• The measure shall be
• No more trade restrictive than necessary
• to fulfil a legitimate objective, taking account
  of the risks non-fulfilment would create

Article 2.2
Article 5.1.2
Annex 3.E
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2. Avoid unnecessary obstacles to trade (b)
Article 2.2
Article 5.1.2
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Main Principles of the TBT Agreement
3. Harmonization
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3. Harmonization (a)
Members shall participate in the appropriate
standardizing bodies
Article 5.5
Articles 2.4 2.5 2.6
Members shall use relevant international
standards
Except when inappropriate or ineffective for
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3. Harmonization (b)
Whenever a technical regulation is prepared,
adopted or applied for one of the legitimate
objectives explicitly mentioned in paragraph 2,
and is in accordance with relevant international
standards, it shall be rebuttably presumed not to
create an unnecessary obstacle to international
trade
Article 2.5
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3. Harmonization (c)
International Standardizing Bodies

• International Organization for Standardization
  (ISO)
• International Telecommunications Union (ITU)
• International Electrotechnical Commission (IEC)
• Codex Alimentarius Commission

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3. Harmonization (d)
Principles for the Development of International
Standards, Guides and Recommendations
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Main Principles of the TBT Agreement
4. Equivalence
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4. Equivalence
Acceptance of other regulations as equivalent
Article 2.7
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Main Principles of the TBT Agreement
5. Mutual Recognition
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5. Mutual Recognition
Acceptance of each others conformity assessment
results
Encouragement to enter into negotiations for the
conclusions of Mutual Recognition Agreements
(MRAs)
Articles 6.1 and 6.3
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Main Principles of the TBT Agreement
6. Transparency
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6. Transparency
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6. Transparency Notification (1)
Members have to notify what ?
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6. Transparency Notification (2)
Members have to notify when
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6. Transparency Notification (3)
Members have to notify how?
Publish a notice in a publication at an early
stage
Notify the WTO Secretariat of the regulation or
procedure and the products covered, indicating
the objective rationale, at an early stage when
amendments can be introduced
Upon request, provide copies of regulations or
procedures
Without discrimination, allow reasonable time for
Members to comment in and take new regulation
into account
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6. Transparency Enquiry Points(4)
WTO Members must set up a national enquiry point
Enquiry Points must respond to enquiries and
provide relevant documents regarding
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6. Transparency TBT Committee (5)
Articles 13 15.3 - 15.4
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Provisions for developing countries
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Provisions for developing countries (1) Special
and Differential Treatment
Article 12
All Members shall
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Provisions for developing countries (2) Special
and Differential Treatment
Article 12
Developing country Members
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Provisions for developing countries (3)
Technical Assistance
Article 11
if requested and on mutually agreed terms
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WTO Agreements on TBT and SPS (II)
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Definition of an SPS Measure
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Not covered by SPS Agreement
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Examples of TBT and SPS Measures
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SPS Basis

• Members have the right to take sanitary and
  phytosanitary measures necessary for the
  protection of human, animal and plant life or
  health
• BUT
• - no unjustifiable discrimination
• - no disguised restrictions on international
  trade

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SPS Scientific Justification

• Ensure that SPS measures are applied
• only to the extent necessary to protect health
• based on scientific principles
• not maintained without sufficient scientific
  evidence
• precautionary use is possible, but subject to
  regular review, based on sufficient scientific
  evidence

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SPS Scientific Justification
Scientific justification can be based on
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International Standard Setting Bodies

• FAO/WHO Codex Alimentarius Commission (CODEX)
• International Office of Epizootics
• FAO International Plant Protection Convention
  (IPPC)

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Risk Assessment

• Countries must base SPS measures on an
  assessment of the risks involved, and, if
  requested, made known
• the factors which they took into consideration
• the procedures they used
• the level of risk determined to be acceptable

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Precautionary Principle
In cases where relevant scientific evidence is
insufficient, a Member may provisionally adopt
SPS measures on the basis of available pertinent
information. In such circumstances, a Member
must try to obtain the additional information
necessary for a more objective assessment of risk
within a reasonable period of time.
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Other Provisions

• Equivalence
• - accepting other Members measures if they
  achieve the same level of health protection
• Regionalization
• - recognizing pest - or disease - free areas
• Transparency
• - publication, notification requirements

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Transparency Provisions
1) Enquiry Points - Respond to questions -
Provide documents 2) Notifications - SPS
measures that differ substantially from existing
international standards, or for which
international standards do not exist - SPS
measures that may have a significant effect on
trade
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Current discussions

• SPS and TBT Agreements not open for negotiations
  (there is a regular review of the TBT Agreement
  every 3 years SPS only as the need arises)
• Implementing concerns identified by developing
  countries
• Early notification on planned regulations
• Time between publication and entry into force of
  the regulation
• - Participation in standard setting
• - Technical assistance

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UNCTADs work on market access

• Consultative Task Force (CTF) on environmental
  and health-related requirements (funded by the
  Netherlands and other donors)
• (www.unctad.org/trade_env/test1/projects/taskforc
  e.htm)
• Project on strengthening negotiating capacities
  for developing countries on key post-Doha issues
  on trade and environment (UK funded)
• UNCTAD-FAO-IFOAM International Task Force (ITF)
  on Harmonization and Equivalence in Organic
  Agriculture
• Research and publications (Trade and Enviroment
  Review 2006, available on the website)
• Technical assistance upon request

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On-line Reference Sources
UNCTADs Trade, Environment and Development
Website www.unctad.org/trade_env