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WTO Negotiations on Environmental Goods: Selected Technical Issues

Discussion paper by UNCTAD, 2011

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This paper highlights some technical issues on the Doha Round of WTO negotiations, focusing on environmental goods, regulations covering environmental markets, the definition and scope of environmental products, and how to negotiate non-tariff concessions.

U N I T E D N A T I O N S C O N F E R E N C E O N T R A D E A N D D E V E L O P M E N T


W T O N E G O T I A T I O N S
O N E N V I R O N M E N T A L G O O D S :
S E L E C T E D T E C H N I C A L I S S U E S


New York and Geneva, 2011




i


NOTE


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a symbol indicates a reference to a United Nations document.


The designations employed and the presentation of the material in this publication do not imply the expression
of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any
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Material in this publication may be freely quoted or reprinted, but acknowledgement is requested, together with
a reference to the document number. A copy of the publication containing the quotation or reprint should be sent
to the UNCTAD secretariat.


The views expressed in this publication are those of the author and do not necessarily reflect the views of the
United Nations.


This document has been released without official editing.


ACKNOWLEDGEMENTS
This paper was prepared by Alexey Vikhlyaev, Economic Affairs Officer, Division on International Trade in Goods
and Services.


The author is grateful to the following for contributing valuable information and insights to the paper: Grant Ferri-
er, Environmental Business International, Barbara Fleiss, OECD, Gabriele Marceau, WTO, Thomas Cottier, World
Trade Institute, Joost Pauwelyn, Graduate Institute. This document was prepared for publishing by Rafe Dent.


UNCTAD/DITC/TED/2011/1


UNITED NATIONS PUBLICATION


Copyright © United Nations, 2011
All rights reserved




ii


CONTENTS


I. Introduction ...................................................................................................................... 1


II. Environmental markets and international trade: how big is the interface? .................... 3


III. How environmental are “environmental goods”? .......................................................... 7


IV. What would be a logical outcome of an agreement based on listing? ....................... 11


V. How to negotiate non-tariff concessions? .................................................................... 17


VI. Conclusions ................................................................................................................. 21






1I. INTRODUCTION


I. INTRODUCTION


The food crisis, the energy crisis and finally the
financial crisis, with international trade being one key
victim, have all but eclipsed the Doha Round of the
WTO negotiations. Now that recovery is underway,
a long impasse in the Doha Round may well be
over. Although even before the crises, the events
of mid-2006—the suspension of negotiations, and
the deadlines of mid-2007—the expiration of trade
promotion authority in the United States, set the WTO
system up for some hard choices.


The debates have largely shifted to the academic
domain and “zoomed-out” of the more technical
issues to highlight problems in the way the WTO
conducts its intergovernmental business.1 Admittedly,
these problems go beyond the trade and environment
agenda, stipulated in paragraph 31(iii) of the Doha
Ministerial Declaration. However, this agenda may well
be the best testing ground for trade officials as they
consider the choice of subjects for the negotiations,
the set of principles the WTO employs when
negotiating, and, last but not least, the implementation
of the agreements.


Indeed, the last-minute inclusion of paragraph 31
(iii) is a good example of a case-by-case approach
to identifying win-win situations through linkages and
trade-offs in the particular bargaining context of the
time. The WTO Committee on Trade and Environment,
in Special Sessions (CTESS), has spent years
trying to post-rationalize the mandate and promote
substantive link between the mandate and the
negotiating process, with some delegations reading
too much—and the others reading too little—into the
Doha language.


The political momentum was not strong enough
for the discourse in the CTESS to follow through
on the various negotiating approaches. Although
inconclusive, it did serve their main purpose—to
remind the delegations that the environment and,
in broader terms, sustainable development, should
be the most important part of the complex scale


by which achievement in market access will be
measured.


Should the signs of a new dynamic emerging on other,
admittedly more important fronts prove true, the timing
of what can be done with respect to the negotiations
in the CTESS will be affected greatly. Particularly since
the negotiations on environmental goods still lag
behind in terms of maturity. Once having an elaborate
negotiation is no longer an option, can the WTO
Members settle for something focused and concrete,
while preserving their chances for “triple-win”?


The new submissions in the CTESS concern mainly
technical issues relating to the product coverage and
special and differential (S&D) treatment. One can
reasonably expect specific proposals with respect to
non-tariff barriers (NTBs) in order for the negotiations
to make progress on this aspect of the mandate. As
far as the NTBs part of the mandate is concerned,
it appears that Members are still in an educational
phase in respect of some options, and are making
progress in deepening their understanding of the
various proposals and their implications. All these
concerns—techhical issues relating to the product
coverage, NTBs, development-related issues and
S&D treatment—were articulated by the developing
Members that have taken special interest and active
part in the negotiations.


For those on the technical track, time will be a factor,
and there may simply not be enough of it to work
through the issues that have been plaguing the
negotiations from the outset. How big is the actual
interface between the environmental industry and
international trade? Can ex-outs really help “drill
down” to single—environmental—use? What would
be an outcome of an agreement based on listing
environmental goods? Which approaches and
modalities can the negotiators use to deal with non-
tariff issues? Now that the Members start testing the
various “what ifs”, we thought it might be useful to
bring these and other relevant questions into focus.


1 The Multilateral Trade Regime: Which Way Forward? The report of the first Warwick Commission, University of Warwick,
2007.






3II. ENVIRONMENTAL MARKETS AND INTERNATIONAL TRADE: HOW BIG IS THE INTERFACE?


While environmental markets display a diversity of
conditions, restrictions and regulatory strategies
across sectors, there is certain logic to their
development as they go through several phases,
centred on environmental media.


Air is normally the first priority, with most of the attention
focused on big cities and mostly on automobiles. As
a result, there are changes in the fleet and fuel used.
Factories are also targeted, with some being closed
or moved. However, all in all, the contribution to the
growth of the environmental industry is marginal.


A second phase usually focuses on water, and large
equipment vendors and international engineering
firms come in to service municipal contracts.


A third phase focuses more on waste. Vendors set
up collection networks and disposal sites. New
waste reduction laws come in emphasizing the 3Rs
of reduce, reuse and recycle and eventually waste
avoidance. Capacity becomes the main issue as
needs for infrastructure are many and the facilities are
few.


The fourth phase is about remediation as well as
the site assessments, analysis, design engineering
and compliance issues that precede remediation.
Regulations are being put in place, although
enforcement activity may be minimal. However,
what is really driving the remediation business are
transactions: property development, brownfield
investment and corporate mergers and acquisitions.
Lots of former industrial sites are going to commercial
development. Remediation related to mergers
and acquisitions is mostly multinationals buying
companies or facilities and cleaning up to avoid
liability or industrial companies cleaning up before
selling, or just front-end analysis of sites to determine
likely cleanup costs or potential liability to account for
in the transaction value.


The gradual introduction of market instruments to
complement regulation, with a more differentiated
demand for goods in the cleaner technologies and
resource management categories—environmentally
preferable products (EPPs). The shift towards cleaner
production is driven mainly by cost-efficiency because
of the gap between environmental needs and financial
resources available for environmental purposes.


The divergent approaches to, and widely different
levels of ambition in, the negotiations find their
explanation in market realities, which are far from
being uniform.


Some (developing) countries are in the first phases
of addressing environmental problems through
command and control instruments, which generates
demand for a broad spectrum of environmental goods
used in conjunction with environmental services
relating to water, sanitation and energy.


In developed countries, augmenting regulations
in some segments creates an incentive for “better
than compliance” through partial internalization of
environmental costs and tips the balance in the
environmental activities in favour of environmental
services and EPPs.2 To the point that some analysts
are redefining the environmental markets as the
HP2—as in Healthy Products, Healthy Planet—
markets, which may include products as diverse as
organic food and fitness equipment, complementary
and alternative medicine, ecotourism, water filtration
and wind power systems, environmental consulting
and waste management, sales of recycled materials
and emerging categories like “green building”,
sustainable timber and hybrid cars. Many HP2
categories represent just a tiny fraction of their
conventional counterparts, indicating a vast potential
for growth, which is expected to continue at more than
twice the rate of the economy. 3


II. ENVIRONMENTAL MARKETS AND INTERNATIONAL TRADE:
HOW BIG IS THE INTERFACE?


2 The concept of EPPs draws on aspects of the work undertaken by UNCTAD, which defines EPPs as products that cause
significantly less environmental harm at some stage of their life-cycle than alternative products serving the same purpose.
Less environmental harm according to the following criteria: (a) use of natural resources and energy; (b) amount and hazar-
dousness of waste generated by the product along its life cycle; (c) impact on human and animal health; and (d) preserva-
tion of the environment. UNCTAD (1995) Environmental Preferable Products (EPPs) as a Trade Opportunity for Developing
Countries, Geneva, UNCTAD (UNCTAD/COM/70).


3 Environmental Business Journal, Green Products, Volume XVII, Number 7/8, 2004.




4 WTO negotiations on environmental goods: selected technical issues


More recent, but not much different attempts at
redefining the environmental markets have prompted
the concept of a Green Economy. Consumer products
and industrial services are at opposite ends of the
Green Economy, but its segments converge on the
objectives of sustainable development. The value
proposition may be health, it may be sustainability,
it may be minimizing the footprint of each citizen,
but, taken together, these markets represent the
early stages of an inexorable trend towards a more
sustainable economy and healthier lifestyles.4


The various stages in developing the environmental
markets, or HP2 markets—or “greening the
economy”—are accompanied by, and managed
through, the accumulation of environmental measures
and policies: from raising awareness—to articulating
policy addressing the various environmental
issues—to environmental legislation—to specific
standards, technical regulations and rules governing
environmental performance. With all these laws,
measures and policies in place, a strong and
consistently growing environmental market grows and
evolves fairly rapidly to a contribution of around 2,5
percent of the nation’s GDP. In an optimistic scenario,
consistent environmental markets emerge over a
course of ten years. And while the commercial activity
of companies solving environmental problems is no
sure measure of environmental quality, it is a valuable
indicator of the impact that various policy instruments
are having on environmental expenditures.


As the environmental market grows, so does the
national environmental industry. If it doesn’t or if it
does, but at a lower rate, a deficit in environmental
goods and services arises, and imports may come in
to fill in the gap.


There is a tendency to equate environmental markets
and trade in environmental goods (and services),
while the actual interface may not be as big as is
commonly presumed. How much of environmental
capacity is actually translating into trade flows? Are
there factors that drive environmental markets the
same as the factors that affect trade in environmental
goods and services? Are there problems that could be
addressed through the negotiations and that cannot


be dealt effectively by businesses themselves? How
interested are businesses really in bringing down the
tariffs?


There are—and there may be—no precise figures,
but the EBI estimates put the share of tradable
environmental goods and services, i.e. environmental
goods and services that enter the international trade
flows, at 10 percent.5


The goods are traded to a larger extent, with 35
to 45 percent of equipment entering trade flows,
mostly related to air pollution control and water
management. The tradability of services is lower—15
percent. According to other sources, trade accounts
for less than one fifteenth of the global environmental
markets.6 The fact that trade in environmental goods
outperforms trade in environmental services is to a
large extent due to the fact that environmental goods
have multiple uses and are, in reality, industrial goods.
Trade in EPPs, if those are included in the calculations,
can only magnify the picture.


Although market quantifications are derived from
aggregated sets of data or incomplete census of
companies, one can safely say that the environmental
industry in developing countries is still relatively new
and unformed. There is anecdotal evidence that
capacity in environmental goods and services is
building in certain sectors, mostly from involvement
in partnerships with established foreign firms but also
from the increased demand in their domestic market.
However, there is little data to indicate that any of this
capacity is translating into exports.


What about trade liberalization? The respondents to
the EBI surveys and questionnaire rate it only eighth
out of twelve market drivers, well behind regulations,
enforcement, global standards of multinationals,
overall economic growth and …even media coverage.
The observer organizations have tried to reach out
to the business community with questionnaires,
interviews etc. Judging from these communications,
tariffs do not figure among the big 5 or even big 10
problems companies have to deal with.


The same surveys confirm that environmental
regulations and enforcement levels are consistently


4 Towards a Green Economy. Pathways to Sustainable Development and Poverty Eradication, UNEP, 2011.
5 Information provided by Environmental Business International, cited from Environmental Priorities and Trade Policy for


Environmental Goods: A Reality Check, ICTSD Environmental Goods and Services Series, by Veena Jha, issue paper 7,
September 2008.


6 Ibid.




5II. ENVIRONMENTAL MARKETS AND INTERNATIONAL TRADE: HOW BIG IS THE INTERFACE?


and by far the two most significant drivers in
developing environmental markets, and are often
the most significant in developed markets as
well. A third place goes to global environmental
standards maintained by multinational corporations,
which customarily “import” their own standards for
operational, corporate image and liability protection
reasons. The state of the economy in general and of
the company’s client base in particular is also seen as
considerable factors in driving environmental markets.
Some growth is achieved off the government projects.


Clearly, the environmental industry is mostly driven by
domestic interests. Trade policy plays only a minimal
role. That said, trade liberalization may and does
serve to reinforce the more highly ranked factors. In
some cases, it may facilitate the development of the
environmental industry, without being causative. In
using trade to fill in the capacity gap, an important
decision for developing countries to take is, should
they go as far as to allow imports outpace the
development of the local environmental industry? This
decision can only be made on a case-by-case basis.


The development of environmental markets is mainly
about investment, and not about trade. And the vast
majority of leading environmental companies consider
developing markets too risky and not profitable enough
to validate the additional efforts of developing overseas
business. This is particularly true of small companies


that make up the vast majority of the environmental
industry, but many large companies have pulled
back from international markets as well. Both Waste
Management Inc. and Allied Waste, US’ largest and
second largest environmental firms respectively,
have divested foreign operations and eliminated any
efforts at developing overseas business in solid waste.
Japanese equipment firms have responded to tighter
economic conditions by focusing on more predictable
domestic markets. US, German and Dutch firms have
cited inconsistent market demand and other barriers to
pursuing more work outside western Europe, including
public procurement problems, difficulty in collecting
payments and currency issues among others.


While the developing members may be concerned
about the erosion of tariff protection, the developed
members are more concerned about the erosion
of protection for their companies! Indeed, once
environmental companies move in and set up their
business, they may not necessarily be interested in any
imports coming in; successfully invested companies
have little interest in opening up the markets to their
competitors. Some of the issues that could be done
through the WTO negotiations are pretty well dealt with
by businesses themselves. Against this background,
enhancing market access for select “environmental
goods” through negotiations that are hinged on
reciprocity may seem oddly out of touch.






7III. HOW ENVIRONMENTAL ARE “ENVIRONMENTAL GOODS”?


Anyone familiar with the negotiations in the CTESS
would agree that dual use had emerged as the main
structural problem, with the developing Members
favouring environmental goods specifically designed
or used for environmental purposes. The analysis
conducted for UNCTAD by environmental industry
experts is instructive. Out of some 440 entries
appearing in the WTO compilation,7 for which HS8


codes have been provided, only about half a dozen
are singularly used for environmental purposes, with
the exact count depending on whether certain EPPs
are included or not.9


These findings echo some of the problems
encountered by the OECD/Eurostat informal working
group, convened in late nineties with a view to
forging an agreement on an interim definition of, and
classification system for, the environment industry.
At that time, the experts could already see that the
existing classification system was not up to the task
of deriving environmental industry data, even as some
kind of “subset” of the industry data, without either
additions or modifications to the system.


First of all, there was no single environmental industry
classification. A question was raised as to whether
resources—water, scrap, energy—should be in or
out of the categories. Another question was, who
had the infrastructure to collect the data? How were
they going to share the data? To what extent could


the input/output analysis be useful? Why couldn’t
the classification system be modified to include this
important industry analysis category?


The experts did not attempt to address product
identification issues for the Customs. They focused
primarily on industry economic analysis. A question
came up about the possibility of updating tariff
nomenclature in such a way as to “design in” single
use designations. However, the experts were not
charged nor had the authority to do this. In any
case, for most goods, this would not have been
possible. The industrial product classification codes
were not a particularly usable system for attempting
to specifically, or uniquely, classify environmental
goods. The potential solutions envisaged and
discussed extensively were: a separate (!) data
collection process, not based on the existing system
for acquiring consistent environmental industry
data; creating unique classification codes for the
environment; weaving in resource amounts as part of
a “next generation” approach—a system that would
run parallel to the existing product classification
systems.10


The resource management categories were still little
more than a concept. The question, how to link the
concept with goods and services remained open.
The later attempts—by member economies of the
Asia Pacific Economic Cooperation (APEC) and the


III. HOW ENVIRONMENTAL ARE “ENVIRONMENTAL GOODS”?


7 All in all 480 goods have been identified as environmental in the lists submitted by nine Members and compiled into an
informal document by the WTO Secretariat in November 2005, TN/TE/W/63.


8 The Harmonized Commodity Description and Coding System generally referred to as “Harmonized System” or simply “HS”
is a multipurpose international product nomenclature developed by the World Customs Organization (WCO). It comprises
about 5,000 commodity groups; each identified by a six digit code, arranged in a legal and logical structure and is suppor-
ted by well-defined rules to achieve uniform classification. The system is used by more than 200 countries and economies
as a basis for their Customs tariffs and for the collection of international trade statistics. Over 98 % of the merchandise in
international trade is classified in terms of the HS.


9 Examples of single-use goods in the WTO compilation are: Animal & vegetable fertilizers (entry 45, HS 310100), Hydraulic
Turbines (entry 219, 841012, entry 220 HS 841013), Electric Trains (, Self-propelled railway or tramway coaches, electrical
(entry 352, HS 860310), Bicycles (entry 368, HS 871200), Brooms and brushes (entry 441, HS 960310). Only two types of
renewable energy equipment can pass the single use test at the HS 6-digit level: (1) hydraulic turbines (8410.11, 8410.12,
8410.13) and (2) wind powered electricity generating sets (8502.31). Ethanol (2207.10) and methanol (2905.11) fail the sin-
gle use test as these are common chemicals in many synthetic hydrocarbon reactions, in addition to being “green fuels”.
Biodiesel is exclusively used for transportation or energy production but is an ex-out 38(3824.90 ex) as it is categorized
under the large subheading of “products, preparations and residual products of the chemical or allied industries”. Solar
cells also form part of a large subheading (8541.40), which includes semiconductor devices and light emitting diodes.


10 A classification systems have as their starting point either economic activity (SIC and ISIC and their European, American
and Australian cum New Zealand derivatives—NACE, NAICS and ANZSIC); or the characteristics of a product (HS and the
less specific SITC, derived from the UN Central Product Classification—CPC). It is, however, possible to build a relation
between an industry classification (ISIC or SIC) and a product classification (HS) through the CPC.




8 WTO negotiations on environmental goods: selected technical issues


WTO—to negotiate these essentially resource based
products have not been particularly successful. In
APEC they were considered a deal breaker and put at
risk the entire Early Voluntary Sectorial Liberalization
(EVSL)!


The EVSL exercise in APEC has managed to nuance
these findings by relaxing the criterion of single use and
looking for goods with predominantly environmental
use. Applying this, relaxed criterion to the WTO
compilation would leave us with round about 20 entries,
which, while being of dual use, are likely to be used for
environmental applications in more than 50 percent
of the cases.11 However, for some of these entries,
specifically those relating to water and wastewater,
e.g. pipes, pumps, valves and meters —all under
separate HS codes—predominant environmental use
presupposes that drinking and industrial water are
counted in. Limited to the wastewater treatment, they
will not pass the 50 percent threshold.


These are only very rough estimates, of course. More
accurate market assessments should be performed if
precise percentages of environmental vs. other uses
are desired. However, who would recommend that
path?


There have been proposals by experts, echoed
by UNCTAD and the EC in their submissions to
the CTESS, 12 to include within the scope of the
negotiations entire plants or technology systems, 13


which are, by definition, devoid of multiple-use and
relativism in time problems. The same approach
could apply to entire technology systems, e.g. oil
recovery systems. In many cases there appears to
be a possibility to classify entire technology systems
under a single HS heading. However, more work is
needed to find the appropriate tariff headings or to
create new ones.


Since the existing definitions of EPPs are as much
about the resources as they are about the environment,


the negotiators could, in principle, consider a
particular category of EPPs as single source or single
process from an environmental impact perspective.
For instance, renewable energy goods could pass the
test based on the source or resource rather than the
use of the products as their categorization is not so
much based on the specific category of technologies,
e.g. electrical generating motors, power converters
and inverters, etc., as it is on the source of the power,
i.e. bio-fuels, low-head hydro, solar, wind, geothermal,
etc. Other goods using a particular source of energy
could be classified as a single source within a
particular HS category.


Some WTO Members operate duty drawback
schemes, where duty collected at the border is
refunded based on an application by the user.
Theoretically, such schemes could be extended
to environmental goods, but their requirements in
terms of monitoring and verification are beyond
the capacity of Customs in most Members. The
Combined Nomenclature of the EC has additional
provisions, which apply, under certain conditions, to
the classification of the so-called “split consignments
of machines”. Under these provisions, importers need
not provide a full import declaration for the individual
components of a particular machine classifiable
in Chapter 84 or 85 and brought into the country at
different moments. These components are classified
for import declaration purposes at the moment that
they have been assembled.14


The system is limited to the 27 members of the EU.
However, this is not the only concern. In the China–
Autoparts case, the Appellate Body had to decide
whether a charge on imported car parts was a border
tariff, i.e. subject to GATT Article II or an internal duty,
i.e. subject to Article III. China claimed it was under
Article II and within its bindings, while the US claimed
it was under Article III and, since it only applied to
imports, discriminatory. The Appellate Body found it


11 Examples of goods with predominant environmental use in the WTO compilation are: ceramic pipes (entry 142, HS 6906),
glass wool (entry 154, HS 701932, entry 155, HS 701939), water pipes (entry 167, HS 730431), accessories to pipes (entry
170, HS 730630-90), pumps (entries 230, 231, 232, HS 841350, 841360, 841370), hand air pumps (entry 236, HS 841420),
water filtering and purifying machinery (entry 256, HS 842121), UV lamps (entry 343, HS 853949), photosensitive semicon-
ductor devices (entry 344, HS 854140), mufflers (entry 367, HS 870842), flat Panel Displays (entry 387, HS 901380), liquid
meters (entry 413, HS 902820), brushes and parts (entry 442, HS 960350), mechanical brushes (entry, 443, HS 960390).


12 UNCTAD’S Work on Environmental Goods and Services: Briefing Note, TN/TE/INF/7, 5 October 2004; European Commu-
nities, TN/TE/W/47.


13 Examples of entire plants that could be considered are numerous: recycling plants, plants for waste management, sulphu-
ric acid recovery plants, plants for co-generation of heat and power.


14 HS codes and the Renewable Energy Sector, Izaak Wind, Paper for the ICTSD, 2009.




9III. HOW ENVIRONMENTAL ARE “ENVIRONMENTAL GOODS”?


was an internal duty as it was triggered and decided
based on internal use and assembly of the car parts
within China. So, for environmental goods, if we let the
duty be decided by internal use, it risks becoming an
internal tax and if it is only applied on imports, it would
violate GATT Article III.


Can a WTO Member rely upon different end-uses in
defining non-likeness of a physically similar product?
The United States contends in its submission to the
CTESS that likeness cannot be exclusively defined on
the basis of end-use alone, while India emphasizes the
importance of end-use in the context of environmental
projects. The case law of the WTO does not seem to
allow, at this stage, for a clear answer.15 While most cases
relate to the interpretation of likeness in the context of
Article III GATT, in this particular context, the analysis of
likeness in Article I is of paramount importance.


Hudec argued that likeness under the MFN should be
defined differently depending on whether we talk about
tax, regulation or tariff. For Hudec, since we need to
give members room to define carefully where they
want to give a concession, likeness for tariffs should
be defined narrowly, in other words, one should not
too easily find likeness between two products.16


If the criterion of end-use on its own, with or without a
nationally defined project, does not stand the test of
differential tariff treatment, can distinctions be lawfully
drawn on the basis of different regulatory purposes
within the criterion of end-use?17


Assuming selective privileges for imports of
environmental products for the purpose of national
environmental projects are inconsistent with GATT
Article I, can they be justified through recourse to
GATT Article XX, more specifically Articles XX(d) and
XX(g), which allow exemptions if these are required
to implement GATT consistent domestic market
regulations or for the protection of non-renewable
resources?


Admittedly, the matter can only be dealt with on a
case-by case basis, taking fully into account the
particularities of the project, specifically its legal
structure. According to Cottier, Article XX(d) offers the
most promising option. However, he argues, it would
be difficult to meet the necessity test unless one can
demonstrate that the extra costs incurred would render
the environmental project impossible to operate, or if
privileged access would merely confer a fiscal benefit
to those procuring project related goods.18


What if regulatory distinctions are not treated as
exceptions? Can the limits and relevance of the
concept of like product be pushed in the context of
the provisions for non-discrimination?


In her recent paper, Cossy suggests there is scope
for reviewing the potential of the aims and effect
approach.19 The approach stresses the importance of:
(1) the role of alternative, non-protectionist objectives
(“aim”) and (2) the measure’s effect on imports
(“effect”). The aim and effect would complement rather
than replace the traditional GATT test to determine
whether goods, services and service suppliers are
like.


According to this approach and to the extent that a
product differentiation does not have discriminatory
effects, members are entitled to operate product
differentiation for regulatory purposes, including
taxation. The approach could arguably apply as a
guideline for defining essential products in the context
of implementing a specific environmental objective. A
priori that would not be more arbitrary or artificial than
relying on tariff classification. It may offer guidance
to include products used for specific purposes,
while excluding other products which, on the basis
of standard criteria, may be considered like, but are
mainly used in a different context.


The aim-and-effect test has so far been formally
rejected in both GATT and GATS. On the other hand,


15 See Cottier, T. Baracol Pinhao, D., The WTO Negotiations on Environmental Goods and Services: A Potential Contribution
to the Millennium Development Goals, UNCTAD/DITC/TED/2008/4.


16 Robert E. Hudec, GATT/WTO Constraints on National Regulation: Requiem for an “Aim and Effects” Test, 32 International
Law, 619, 1998.


17 Of course, one can always argue that the criteria of end-use has been conceived and used as a factual element. It relies
upon end-use as found on markets and on the basis of consumer preferences. The criterion was not intended to respond
to different regulatory purposes. This argument can be employed to discard practically any negotiating proposal alternative
to the list.


18 Cottier, T. Baracol Pinhao, D. ibid.
19 Cossy, M., Determining “likeness” under the GATS: Squaring the circle? WTO Staff Working Paper ERSD-2006-08, Septem-


ber 2006.




10 WTO negotiations on environmental goods: selected technical issues


the Appellate Body, with its “accordion metaphor”,
has already made it clear that likeness needs not to
have the same scope across the different provisions
of a given agreement, let alone in different WTO
agreements. For instance, the concept of likeness
is not necessarily identical in goods and services.
And parties to RTAs as well as the case-law define
likeness in services on the basis of broader concepts
than those used in the WTO jurisprudence in goods.20


Would the negotiators be willing to take the task of
refining these criteria to take better into account the
specificities of trade in environmental goods (and
services)?


In his comments on Cossy’s paper, Pauwelyn argues
rather convincingly that the focus on likeness as
the defining element of MFN and national treatment
may be misguided.21 The more important question
is whether or not a measure affords less favourable
treatment to imports. Even if a particular environmental
good and its analogue are to be found like, this does
not mean a measure is inconsistent with MFN or
national treatment. The MFN and national treatment
principles are about discrimination based on origin,


its rationale is not grounded in perceived differences
between goods (and services). Consequently, the
MFN and national treatment analysis should focus
on the regulatory purpose and protectionism. Which
means tackling the main question: is the measure
origin neutral?


Pauwelyn’s view was reiterated most recently in the
panel report on EC—Biotech. In that case, the panel
assumed that biotech products and non-biotech
products were like, skipping the likeness question
altogether, but pointed out that the EC treats all
biotech and non-biotech products alike, irrespective
of origin.22


Two conclusions can be drawn from this analysis.
First, likeness is overrated. Second, what matters is
finding de facto discrimination related to origin. We
would not equate that with aims-and-effects, but with
a holistic check as to whether based on all evidence,
including structure of the measure, its application,
impact, regulatory purpose etc., we can speak of a de
facto discrimination of imports.


20 In the field of services, the doctrine of like products is far from settled. Art XVII: 3 GATS essentially relies upon the concept
of modification of competition between different products and service providers.


21 The Unbearable Lightness of Likeness. Joost Pauwelyn, For a similar argument in respect of GATT, see William Davey and
Joost Pauwelyn, http://www.law.duke.edu/fac/pauwelyn/pdf/unbearable_lightnes...


22 Panel Report on EC – Biotech Products, WT/DS291/R, adopted on 21 November 2006, para. 7.2514.




11IV. WHAT WOULD BE A LOGICAL OUTCOME OF AN AGREEMENT BASED ON LISTING?


A default option is a sectorial agreement, coloured
by preconceived notions stemming from the work
conducted previously by the OECD and APEC, where
purely market access considerations prevail. This may
be a problem in itself as there are members opposed
to the idea of sectorial agreements in general, and
with respect to environmental goods in particular.
Brazil, for instance, argues that the environmental
goods negotiations are not exactly market access
negotiations nor should they lead to a “super-sectorial”
agreement. Other members, including some leading
trading nations, consider sectorial breakthroughs
as an important contribution to the overall package
and most often cite environmental goods, along with
chemicals and information technology goods, as a
likely subject of such initiatives.


Generally speaking the incidence of sectorial
approaches in international negotiations—regional,
plurilateral, multilateral—is relatively limited. More
often than not, sectorial negotiations had been tried
for several sectors in parallel, and cross-sectorial
demands and linkages contributed towards a balanced
overall outcome. For the sake of our analysis, we set
aside these political concerns and consider the WTO
experience, weighing the pros and cons of such an
outcome from a mere technical perspective.


The OECD list was never meant for trade negotiations.
And even if it were, it is just too comprehensive and
would never get the critical mass. The APEC members


do not negotiate. Their list was produced in part to
meet the optimistic expectations of a new WTO round.
Contrary to the popular belief, it was not based on
consensus; the individual lines had multiple sponsors;
some countries had reservations against the EVSL,
because of other sectors. The list was time-bound
as it represented the not necessarily shared views
of twelve at that time APEC members, but was open
to new proposals. Arguably, the OECD list and its
derivative—the APEC list—represent the best, readily
available reference for the negotiations, but could they
serve as a blueprint?23


Not surprisingly, most list-based submissions come
from APEC members and are based on the lists they
had built at the time of the Early Voluntary Sectorial
Liberalization Initiative. There are two notable
exceptions: the proposal by Qatar,24 targeting low-
carbon (natural gas) and carbon-free (renewable
energy) technologies, and that of the Brazil, EC, New
Zealand and Switzerland25 which seeks to broaden the
scope of the negotiations to include certain examples
of EPPs of interest to developing countries. Brazil also
argues for broadening the scope of the negotiations
on product coverage to include agricultural goods of
particular interest to developing countries, and not the
industrial products only.


For non-APEC members, coming up with a
negotiating proposal complete with a list is not that
easy. It presupposes extensive internal consultations


IV. WHAT WOULD BE A LOGICAL OUTCOME OF AN
AGREEMENT BASED ON LISTING?


23 The OECD list includes goods spanning 132 6-digit Harmonized Commodity Description and Coding System (HS) codes.
Of these, 25 are minerals and chemicals used in water and waste treatment, and in renewable energy systems, and 97 are
manufactures that serve as components of the systems and infrastructure used to provide environmental services. Also
included in the list are some environmentally sound technologies, such as integrated turn-key pollution prevention systems
and cleaner/resource efficient systems (e.g., fuel cells, electric transportation vehicles and fluidized bed combustion),
however, there exist no HS codes to classify these technologies in the form of integrated capital goods, and thus their trade
is not tracked by internationally reported national trade flows at the 6-digit HS level. The APEC list of environmental goods
spans 104 HS codes, with 44 goods on the APEC list qualified by ex-heading specifications (i.e., providing descriptive pro-
duct details at a higher level of desegregation than the international or common 6-digit HS level). A comparison of the APEC
and OECD lists of environmental goods reveals similarities – both lists share a common set of environmental functions for
which they seek to define goods and the two lists have 54 goods in common – and differences – 50 (68) goods on the
APEC (OECD) list do not appear on the OECD (APEC) list (OECD, 2003). Differences in the composition of the two lists are
significant; minerals and chemicals for water/waste treatment are exclusive to the OECD list, while the APEC list includes
a relatively more extensive set of goods needed for environmental monitoring and assessment. The OECD list contains a
large number of EPPs, whereas the APEC list contains a more limited number.


24 Qatar, TN/TE/W/19, TN/MA/W/24, 28 January 2003.
25 Brazil, TN/TE/W/59, European Communities, TN/TE/W/47, New Zealand, TN/TE/W/49/Suppl.1., Switzerland, TN/TE/W/57.




12 WTO negotiations on environmental goods: selected technical issues


involving domestic businesses—to identify actual
products on the market, environmental authorities—
as environmental regulations are the prime drivers
of the environmental industry, trade authorities—
to assess defensive and offensive interest in the
negotiations, and last but not least, customs officials—
as it is the customs who will be responsible for the
implementation of any eventual agreement.


The range of questions is very large: the validation
of environmental claims for particular products;
potential for overlap with other sectorial initiatives, e.g.
chemicals harmonization, Information Technology
Agreement (ITA), construction equipment; trade
coverage of the hypothetical reduction to “0”;
principal and substantial suppliers; extent of dual
use, if relevant; specificity of the respective HS code;
possibility of going beyond the HS 6-digit harmonized
tariff line; immediate spare parts and accessories:
whether to include these or not, on a selective basis
or not; level of tariff protection (MFN bound, applied);
preferential tariffs applied in the regional trading
arrangements (RTAs) the members may be party to
and possible erosion of preferences; level of tariff
protection for primary and intermediate goods used in
the production of the product in question to avoid the
risk of “negative protection”; the relevance of NTBs;
the evaluation of reciprocity. The list goes on…


Some of these points will have to be addressed with
the eventual negotiations in NAMA in mind: e.g.
reciprocity—in a particular product group, in trade with
a principal and substantial suppliers, if applicable;
reciprocity through exception from formula reduction;
reciprocity though “critical mass”, S&D treatment
carve-outs for sensitive items, staging; focus on
select NTBs.


UNCTAD has been involved in such consultations,
both in Geneva and on the ground. When done
properly, they tend to turn into a rather resource
intensive and time consuming exercise, even in those
countries where there is an interagency coordinating
mechanism in place to facilitate the process. Making
use of the existing lists as a reference may save some
time and effort, but cannot substitute for a thorough
country-based analysis.


Shortly before the suspension of the negotiations in
2007, Brazil, China, India, and South Africa, in a joint
statement echoed by Argentina and Egypt, summed up
the problems that had been plaguing the negotiations
from the outset.26 Dual use has emerged as the main
problem in the discussions on product coverage. As
for the majority of “environmental goods”, dual use is
a function of their ubiquitous nature for uses other than
environmental, ex-outs cannot be used to effectively
“design in” single environmental use into the HS
system. Moreover, the use of ex-outs tends to frustrate
the objectives of tariff elimination by leading to trade
restrictive or trade distorting measures.27 Recourse
to ex-outs in other trade agreements has invariably
led to problems at the implementation stage. In
fact, concerns about the difficulties stemming from
implementing ex-outs domestically is the main reason
the trade negotiators are trying to keep those to an
absolute minimum. Unlike the sectorial agreements,
any agreement on environmental goods would span
practically the entire HS, i.e. in fact be cross-sectorial
and affect a great number of traders, making the use
of ex-outs even more dubious.


Four years later the technical negotiations resume, and
Argentina, Brazil, China, India and South Africa remain
critical of a list of 153 environmental goods submitted
for tariff elimination by a group of mostly developed
Members in 2007. They argue that the majority of the
goods are used predominantly for non-environmental
purposes and tend serve the export interests of
developed Members more than any environmental
objective. Brazil stresses the need for an outcome
that offers measurable environmental gains along
with improved trade opportunities for developing
Members, and remains critical of the CTESS for
failing to shed any light on how the environmental and
developmental dimensions of the mandate are to be
fulfilled through essentially tariff negotiations on a list
of goods of interest to some Members only.


To allay these concerns, some analysts have been
focusing on the statistical analysis of reciprocity
and arguing that the proposed list is not all that bad
as far as the developing Members are concerned.
There is nothing wrong with using the statistics as a


26 Summary report on the sixteenth meeting of the Committee on Trade and Environment in Special Session, 6-7 July 2006,
Note by the Secretariat, TN/TE/R/16, 22 December 2006, paragraphs 293, 294 and 302.


27 Extensive recourse to ex-outs would actually mean that many Members could end up liberalizing more than what was re-
quired by the agreement that they would have negotiated. Being cognizant of this risk, some Members could put in place
special provisions, e.g. in the form of licensing or end use certificates, which were often described as NTBs.




13IV. WHAT WOULD BE A LOGICAL OUTCOME OF AN AGREEMENT BASED ON LISTING?


starting point in evaluating reciprocity, of course. The
danger lies in it becoming the end point. Doing “due
diligence” on reciprocity presupposes that factors
other than statistics are taken fully into account: tariff
profiles, the incidence of NTBs, supply and demand
elasticity, and, finally, the size and composition of
markets.


Even as a first step, statistical analysis may be
misleading, especially when applied to artifacts such
as “environmental goods”. More often than not, the
value of trade in the underlying “environmental good”
is just a fraction - in some instances as small as one
percent - of the corresponding HS line at the six-digit
level. Besides, the analysis is often conducted for
groups of products and groups of countries. What
kind of conclusions can be drawn from the fact that
nine developing countries account for ninety percent
of trade in “environmental goods”? Isn’t it obvious that
we are talking about the biggest developing country
exporters of industrial goods?


Nobody wants to conduct the negotiations almost
unencumbered by any facts. On the other hand, there
is not much point in superimposing measurables on
the unknown. The ubiquitous nature of “environmental
goods” is such that it can thwart any correlations and
regressions.


Some Members have engaged in simulation
exercises to see how tariffs on the proposed list of 153
environmental goods might be reduced. The most
recent ones, conducted by China, present tentative
outcomes for three major developed Members - the
US, the EU and Japan - and three major developing
Members - China, India and Brazil.


The results of the simulation show that the standard
tariff treatment for developed Members in the NAMA
negotiations, i.e. a “Swiss formula” applied with a
coefficient of 8, would reduce the average tariff rate
on selected environmental goods from 1.31 percent
to 0.94 percent in the US, form from 2.01 percent to
1.45 percent in the EU, and from 0.24 percent to 0.16
percent in Japan. Assuming the “Swiss formula”
will be applied to the developing Members with a
coefficient of 20, an average tariff for the same set
of goods would come down from 7.59 percent to


5.02 percent in China, from 31.71 percent to 12.08
percent in Brazil, and from 30.47 percent to 11.28
percent in India.28 All in all, the results are rather
intuitive and play into the developing Members’
arguments in favour of special and differential
treatment.


If the delegations choose to pursue the sectorial
scenario, it is not going to be important whether or
not the goods included in the product coverage are
really “environmental”. The negotiations will hinge on
reciprocity and proceed in the absence of an agreed
definition, with the WTO members playing the game of
artifacts and equivalences.


In a classical WTO afterthought, the negotiations may
turn into a request-and-offer process, with the WTO
members trying to make deals by seeking to identify
bilateral coincidences of wants. In this case, a list of
environmental goods may evolve as a post-scriptum to
a bottom-up process of bilateral requests and offers,
with subsequent multi-lateralization of concessions.
We hinted at such a possibility in our earlier analysis;
more recently, this approach was formally proposed
by the delegation of Brazil.29 The request-and-offer
process can also be conducted in a plulirateral mode,
as collective meetings between demandeurs and
targeted countries. Such meetings, organized along
sectorial and modal lines, are a common feature in the
services negotiations.


Some Members advocate hybrid approaches. For
instance, Mexico believes Members could undertake
tariff-reduction commitments on a self-selected list of
environmental goods, and then use a request-offer
process to negotiate further commitments. Singapore,
Australia, Hong Kong, China and Norway propose to
have a core list of single-use environmental goods,
complemented by a self-selected list and a request-
and-offer procedure.


If an agreement on environmental goods is negotiated
as part of the single undertaking, and given the
asymmetries in environmental markets, the developing
members will be looking for trade-offs against the
other negotiating agendas, and this kind of bargaining
is indeed taking place.


28 Bridges Trade BioRes, Volume 11, Number 4, 7th March 2011.
29 UNCTAD’S work on environmental goods and services: briefing note, Committee on Trade and Environment in Special Ses-


sion, TN/TE/INF/7, 5 October 2004; Submission by Brazil, entitled: Environmental Goods for Development, which develops
further some of the issues pointed out in TN/TE/W/59 of 7 July, 2005.




14 WTO negotiations on environmental goods: selected technical issues


The developing Members will also be seeking less
than full reciprocity and S&D treatment so as to hedge
against the indiscriminate product coverage, limit the
scope for unintended commitments, increase trade
opportunities, safeguard own interests, introduce
flexibility of commitments, of actions, including the
use of policy instruments, and promote technical
assistance and capacity building. The concept of
a development list, promoted by China at the early
stages in the negotiations, is one case in point.
A special category of S&D may target LDCs and
constitute, or border on, full exemption. For example,
in their most recent submission to the CTESS, the U.S.
and EU proposed exempting so-called Paragraph 6
countries, such as Kenya, which the Doha round
would only obligate to bind their industrial tariffs, rather
than subject to formula cuts. Also exempted from Tier
Two obligations are LDCs and small and vulnerable
economies.


If the negotiations on environmental goods proceed
on a plurilateral—à la carte basis, reciprocity will be
achieved through the critical mass requirement. The
S&D treatment will either be insignificant or take the
blanket form, allowing members to opt for a complete
exemption. Such an outcome would make the
agreement on environmental goods similar to the three
sectorial agreements concluded during the period of
the “built-in agenda”—on information technology,
financial services and basic telecommunications
services, where a large number of developing
countries that had signed on were not, and did not
expect to become exporters in the near future.


A full implementation of such an agreement would
require going through three phases.


In phase one, the WTO members agree on a list that
determines the product coverage. This list sometimes
takes a legal form and is incorporated in the WTO
Agreements, but in most cases it merely determines
the basis of a commitment to be inscribed in the
schedule.


In the second phase, the list has to be transcribed
into individual schedules of concessions for the WTO
Members (Article II of GATT 1994). In the process,
items that are not uniquely defined at the HS 6-digit
level, must take the form of an ex-out or be specifically
described in the national nomenclature (e.g. 8-,
9-, or 10- digits, internationally non-harmonized).
A process of verification typically takes place, i.e.
technical meetings in which the delegations assess


the way their trading partners have reflected the list of
products in their schedules, or in more recent times,
electronic verification by the WTO Secretariat has also
been used. The individual schedules of concessions
of the Members constitute the legal outcome and are
binding. Any disputes regarding the product coverage
would be addressed on the basis of these binding
schedules.


In the third phase—domestic implementation—the
individual WTO Members must do further work to apply
the WTO commitments at the border, which determines
how the traders see the negotiated outcome in reality
and practice. This phase is beyond the WTO legal
concessions, and it is up to each Member to determine
the most suitable way to implement the concessions
based on its experience, practice, legal constraints,
and organization of its Customs service. In practice,
domestic implementation may mean the following:
creation of national codes at the 8-, 9-, 10-digit level;
recourse to HS Chapters beyond 1-97; “wholesale”
implementation at the HS 6-digit, i.e. essentially a
“WTO plus” outcome; or special provisions such
licenses or additional procedures which have often
been described as non-tariff barriers. Except in the
cases of a customs union, domestic implementation
invariably results in different outcomes across the
WTO Members participating.


The use of 8-, 9-, and 10-digit codes for domestic
implementation can be quite straightforward and
transparent when a Member has such definition
in its national nomenclature. However, for many
developing countries whose tariff structure is simple
(i.e. at the HS 6-digit level), codes at the 8, 9, or 10
digit level are non-existent, are too few, or are beyond
their capabilities to create. Thus they face a choice:
make the necessary changes in their national tariff
nomenclature and follow through these changes with
adequate implementation measures and procedures,
or alternatively, liberalize the corresponding HS 6-digit
tariff line in its entirety.


Taking such a decision presupposes comparing the
costs of complex implementation to costs of foregone
tariff revenue in case of a “wholesale” liberalization.
The relevant questions here are: how much of the HS
6-digit tariff line is accounted for by the underlying
(environmental) good, and what is the value of trade
of this good. Whereas the latter question can relatively
easily be answered, the former requires in-depth
analysis which may not be obtainable. In other words,
extensive recourse to ex-outs actually means that




15IV. WHAT WOULD BE A LOGICAL OUTCOME OF AN AGREEMENT BASED ON LISTING?


many developing Members may end up liberalizing
more than what is required by the agreement they
have negotiated. Being cognizant of this risk, some
developing Members put in place special provisions,
e.g. in the form of licensing, end-use certificates etc.,
which are not unlike some of the measures that are
contained in other proposals already made in these
negotiations, for example, in the context of the project-
based approach, advocated by India, and which have
sometimes been described by others as non-tariff
barriers.


This short analysis explains why the trade negotiators
like ex-outs, and why the Customs people do not.
Ex-outs can certainly make negotiating a trade
agreement easier. However, the same ex-outs may
frustrate the objectives of tariff elimination by leading
to trade restrictive or trade distorting measures. It
seems that of late, trade negotiators have been more
aware of the issues and problems that are created.
Their concerns about the difficulties stemming from
implementing ex-outs domestically is the main reason
the trade negotiators are trying to keep those to an
absolute minimum.


The sectorial agreements have used ex-outs to
varying degrees. For example, there is one ex-out
for Agricultural Equipment, no ex-outs for Chemical
Harmonization, mostly all ex-outs for the Civil Aircraft,
one ex-out for Construction Equipment, one ex-out for
Furniture, three ex-outs in the Medical equipment, two
ex-outs in the Steel, none on Paper, many ex-outs in
certain lists of the Pharmaceuticals, and no ex-outs
in Toys.


The Information Technology Agreement (ITA) is
of relevance in this regard. While one list in the ITA
is relatively straightforward and contains few ex-
outs, there has been extensive on-going technical
work to correct some of the problems created with
a second list which is essentially all ex-outs. After
many years, a significant number of these have been
rectified through changes to the HS nomenclature
(internationally harmonized 6-digits) by the World
Customs Organization (WCO).


Experience with the ITA has fully revealed the problem
of ensuring consistent interpretation of customs


classification, leading to disagreements among trade
negotiators as well as between Customs authorities
and traders. To the point that some analysis are
questioning the relevance of the Agreement and the
technological assumptions it was based on.


If there is an overall lesson to be drawn from the
sectorial agreements, it is that ex-outs have been—and
should remain—the exception rather than the rule. The
problem with dual use may arise either because the
HS is not specific enough to capture “environmental
goods”, or because multiple use is inherent to these
goods. Creating ex-outs in national nomenclature may
serve to address the former problem, but not the latter.
Environmental industry experts converge on the view
that for the vast majority of “environmental goods”,
dual use is a function of their ubiquitous nature for
uses other than environmental. Therefore, using ex-
outs to “drill down” to single use from dual use does
not seem to be a viable option.


The recent legal challenge to the application of the ITA
Agreement is very telling. The US, Japan and Taiwan
Province of China have brought the case against the
EU regarding certain dual use products.30


The United States argued that “[w]hile the particular
measures the EC has adopted to eliminate duty-
free treatment for the products in question differ, all
share a common theme: the use of arbitrarily chosen
technical characteristics to reclassify products and
thereby exclude an increasingly significant share of
products from duty-free treatment.”


The EC argued that “[t]he complainants’ position…
is guided by the notion that any multifunctional
product which happens to have among its functions
one covered by an ITA concession must always be
classified according to that function, irrespective of
that function’s relative importance when compared
to other functions not covered by the ITA.” The EC
stated that “[i]n essence, the complainants’ view
is that an ITA concession always trumps a non-ITA
concession.”31


The case has revealed the drawbacks of the
Agreement. The positive list, based on a precise
nomenclature, proves self-limiting and does little to
solve the structural problem of dual use. The all but


30 The products in question—TV set-boxes, flat screen monitors—can be used in applications that ITA did not cover, e.g.
consumer electronics and certain kinds of printer.


31 Quoted from WTO Panel report: EC—Tariff Treatment of Technology Products, by Brendan McGivern, White and Case,
available on http://www.whitecase.com/geneva/.




inoperable review mechanism has largely failed to
manage the product coverage.32


The Panel stressed that the ITA listed the covered
goods not just by specific HS headings, but also
through a narrative list of products that were
“covered by this agreement wherever they are
classified in the HS.”33 The decision of the Panel in
this case is consistent with prior WTO rulings that
have imposed strict disciplines on the use of tariff
reclassification.


This case was more complicated as the EC argued
that technological innovation had essentially
transformed certain goods into entirely new products.
Nonetheless, the Panel insisted that goods subject
to ITA commitments had to remain duty-free, even if
some covered products have since become capable
of performing additional functions. A ruling to the


contrary could have vitiated the value of the ITA.
Moreover, continuing product evolution is not limited
to IT goods.34


Will litigation help develop a case law regarding the
tariff classification issues for dual use products? We
do not know, but the ruling may serve as a basis for
renegotiating the ITA in such a way that it becomes
more accommodating of technological change. In
the meantime, analysts converge on the following
conclusions. To be manageable, the product list
should be negative, i.e. only exceptions should be
listed. There should be disciplines on handling dual
use products at customs, especially those products
that embody technological change. Last, but not least,
a new Agreement should deal with non-tariff barriers,
specifically inadequate licensing or government
procurement practices.35


32 The review is based consensus, no objectives or timelines are specified for the negotiations.
33 ITA participants considered that the traditional approach of listing HS codes was inadequate to address the full scope of


the product coverage that was intended by participants to the ITA and agreed to implement their commitments though a
“dual” approach, which included binding and eliminating duties for both: (i) products classified or classifiable in HS codes,
down to the six digit level, as set out in Attachment A (“list of HS headings”), and (ii) products identified through a narrative
description, without any reference to the HS system, as set out in Attachment B (“list of products”). This approach was
considered as a “[p]ositive list of specific products to be covered by this agreement wherever they are classified in the HS.”


34 The decision of the Panel in European Communities and its Member States – Tariff Treatment of Certain Information Tech-
nology Products (DS375, DS376, DS377) was released on August 16, 2010; see analysis by Brendan McGivern, White and
Case, available on http://www.whitecase.com/geneva/


35 Deyer I., Hindley B., Trade in Information Technology—Adapting the ITA to the 21st Century technological Change, available
on www.ecipe.org.


WTO negotiations on environmental goods: selected technical issues




17V. HOW TO NEGOTIATE NON-TARIFF CONCESSIONS?


In theory, negotiating a sectorial agreement allows
the simultaneous treatment of the tariffs and NTBs
affecting trade in a particular group of products. It
also brings together the most important exporters and
importers and makes the exchange of concessions
more dynamic.36


In practice, sectorial approaches in international
negotiations have never entailed an exhaustive
coverage of actual or potential barriers to trade.
The ITA and other agreements demonstrate rather
convincingly that it is a fallacy to think that a sectorial
approach would necessarily be instrumental in dealing
with NTBs. More often than not, sectorial negotiations
are tried for several sectors in parallel, and it is
through cross-sectorial demands and linkages that
the negotiators try and achieve a balance in the overall
outcome.


It would appear that the principle of critical mass—
identifying and addressing critical sectors and
barriers—especially if applied at the beginning of
the negotiating process, can help bring the NTBs
dimension of environmental goods into focus and
deal with the most burdensome or urgent NTBs.


Various means may be used to make the principle of
critical mass operational. A comparison may be drawn
between regulatory measures applied domestically
and internationally, or between measures applied
to domestic as compared to imported products.
The sheer number of complaints from the exporters
converging on particular products may also serve as
a criterion.


The process of identifying and inventorying NTBs by
members—similar to the efforts made in the Kennedy
Round—was initiated by the Chairman of NAMA in
2001. Some 30 plus members have participated in this
process. Its outcome suggests that standards and
technical regulations play by far the most important


role in developing countries’ access to developed
country markets. 37


In principle, the CTESS could, at Members’ request,
take upon itself to evaluate NTBs relevant to trade
in environmental goods and to identify possible
approaches. It could also help the developing
members manage the risks implicit in the notification
process in NAMA, which is aimed at promoting
exposure, rather than promoting transparency¸ which
is the objective of the notifications made in the WTO
Committee on Technical Barriers to Trade (TBT).


Once the evaluation exercise and non-technical
discussions in the CTESS are over, NAMA and
other relevant bodies will have to take over as the
CTESS lacks the specialised technical expertise to
go beyond and negotiate on its own multiple NTBs
simultaneously.


It would be logical for NTBs that are more issue-
specific to be taken up in relevant committees or
negotiating groups, while sector-specific NTBs
could be discussed in NAMA. NAMA could also
discuss issue-specific NTBs that other committees or
negotiating groups have no mandate to address.


There are those who consider it futile and even
counterproductive to refer NTBs to subsidiary bodies
that do not have a mandate to negotiate. They feel
the bodies will do little or nothing at all, and the matter
will simply bounce back to NAMA. So, even if the
agreements implied are not strictly under the purview
of the NAMA, it would still be desirable to negotiate
them in NAMA, with assistance from experts in existing
groups, as appropriate—the argument goes.


This argument operates on a growing perception
that the two current mechanisms for dealing with
NTBs in the WTO—the committees that oversee
the implementation of relevant Agreement, and the


V. HOW TO NEGOTIATE NON-TARIFF CONCESSIONS?


36 A priori, any specifically identified NTB would be considered and reduced to the maximum extent possible so as to facilitate
trade in environmental goods. However, the NTB discussion could not take place in the abstract, and there is a need to
identify specific NTBs in connection with the product coverage, i.e. the goods that are being considered. New Zealand had
proposed on numerous occasions that the discussions needed to move from the abstract to the specific. The US welcomed
other delegations’ efforts to identify specific barriers to trade in environmental goods. Australia welcomed advice from any
Member on specific barriers faced in the exportation of environmental goods. Several WTO Members have notified NTBs
faced by them in the markets of other Members and have also suggested mechanisms for addressing them . See for exam-
ple, TN/MA/W/25 and TN/MA/W/46 series of documents.


37 As well as SPS-related measures such as conformity assessment and certification.




18 WTO negotiations on environmental goods: selected technical issues


dispute settlement—are insufficient. This perception
has been articulated in a number of proposals for an
efficient and effective horizontal mechanism that is
solution based rather than rights based and meant
for mediation rather than arbitration, e.g. proposal by
NAMA-11 and a similar proposal from the EU. Earlier
on, such ideas had been mooted by China.


Indeed, there are many NTBs that can—and should—
be dealt with by experts on a case-by-case basis,
without going into the legality of the measures and
focusing primarily on their adverse trade impact.
Since NTBs change over time, a legal solution is not
necessarily a definitive one, as the NTB in question
may be replaced by another, leaving the complainant
in the same situation as before. The proposed
horizontal mechanism would allow interested parties
deal with NTBs in real time, in real terms and at any
stage in their life cycle. It could also reduce the risk of
NTBs arising in the future.38


Other, more traditional proposals fall into four
categories: (i) horizontal or multilateral approaches
(ii) vertical or sectorial approaches—plurilateral or
multilateral; (iii) request/offer—bilateral, or plurilateral;
and (iv) an NTB package. None of these proposals
is a reflection of the degree of convergence between
members on the issues.


The horizontal modality would be the most appropriate
and effective way to deal with issue-specific measures
such as tariff classification, customs valuation or pre-
shipment inspection. Their advantages draw from
the experience of WTO Members in negotiating
the Agreements on Customs Valuation and Import


Licensing, not to mention the ongoing negotiations
on Trade Facilitation.39 The main disadvantage
is that generic issues that may prove relevant to
environmental goods are yet to be clearly identified.


The WTO Members’ have gained some experience
with vertical NTB negotiations, including the “TBT
plus”40 approach in the ITA. Incidentally, most of the
sectorial proposals entertained in NAMA foresee
a simultaneous treatment of tariffs and NTBs.41


Vertical agreements in areas of interest to developing
countries could constitute a form of S&D in the
NTB negotiations. Some developed members have
actually welcomed such suggestions.


An avenue that seems particularly promising for
vertical NTB negotiations is “positive agreements”,
which are essentially plurilateral NTB agreement.
For example, a group of Members could agree to
implement specific international standards, which
would then be applied on an MFN basis. Members
might also consider a “smorgasbord” approach,
along the lines of the current trend in the ISO towards
declaring specific national, or regional or international
standards as equivalent rather than having one
standard as the only option.42 Of course, Members
already are free to adopt such standards, subject to
the provisions of the TBT. Doing so in the context of
vertical NTB packages would be just another way to
reduce fragmentation and promote harmonization
efforts where they make sense.43


A vertical approach, including plulirateral positive
agreements, would be appropriate should the CTESS
decide to focus on a particular environmental area or


38 Striving To Achieve Fair, Balanced And Development Friendly Modalities In NAMA, Submission by NAMA 11 Group Of De-
veloping Countries, dated 24 March 2006, by the delegations of Argentina, Bolivarian Republic of Venezuela, Brazil, Egypt,
India, Indonesia, Namibia, Philippines, South Africa and Tunisia, Negotiating Group on Market Access, TN/MA/W/68, 30
March 2006. A similar proposal from the EU, entitled: “Improving WTO Means to Reduce the Risk of Future NTBs and to Fa-
cilitate Their Resolution”; earlier on, similar ideas had been mooted by China. TN/MA/W/68/Add.1, 8 May 2006. Resolution
of NTBs through a Facilitative Mechanism, Submission by NAMA 11 Group Of Developing Countries.


39 The experience has not been easy though. The Customs Valuation Agreement, which was negotiated during the Tokyo
Round, i.e. 30 years ago, has not been implemented multilaterally. The list of rules of origin, which are really the “meat” of
the respective agreement, has already taken almost 10 years and not been done, creating a lot of scepticism in the process.
In the meantime, textile quotas are going away, the only remaining importance being with regard to trade remedies.


40 The approach refers to the Agreement on Technical Barriers to Trade
41 In NAMA, the following sectors have been put forth as possibilities using this method: automotive products, fisheries, forest


products, and textiles and clothing.
42 Another interesting example comes from New Zealand, which allows the importation of cars that meet the safety standards


of any of the EU, US, Japan, Australia or the UN-ECE. Such an approach could serve as a relatively efficient way for this
negotiation to reduce transaction costs and distortions arising from multiple standards and technical regulations in major
global markets.


43 A number of industries, including automobiles, chemicals and IT, have already engaged in devising ways of removing NTBs.




19V. HOW TO NEGOTIATE NON-TARIFF CONCESSIONS?


on a particular group of EPPs. The main advantage of
this approach is seen in that it can help sequence the
removal of NTBs. The disadvantage of this approach
is that issues, e.g. investment-related issues, not
included in the current round of negotiations can enter
through the “back-door”.


Specific bilateral issues relating to existing WTO
disciplines might be tackled through a request and
offer procedure. There is a natural incentive for pairs
of countries to negotiate mutual concessions on pairs
of goods for which each was the other’s principal
supplier. The principal supplier bargaining has proved
successful in securing tariff reductions and offered a
promising approach to the reduction of NTBs today.


The request and offer approach can also be used
plurilaterally. Although as the number of participants
in the negotiations increases, the process tends to
become more cumbersome. At best, this approach
can serve as a complement for specific stages or
parts of the negotiating process. It could also be used
as a residual method of negotiating to take up issues
that do not fit neatly into the other methods outlined
above. The procedure may also be used to fine tune
or to customize NTBs agreements.


If necessary, this case-by-case approach to dealing
with specific NTBs, could be supplemented by more
horizontal provisions based on GATT Articles III and
XI. According to some developed members, the
usefulness of including such individual commitments
in some members’ schedules has been demonstrated.
And some developing members consider this modality
appropriate.


An agreement on environmental goods may also
include pilot projects, as did the ITA II. If the negotiators
decided to borrow from the Agreement on Subsidies
and Countervailing Measures or the Agreement on
Agriculture, they could also identify NTBs by “boxes”
which are given the colours of traffic lights: green
(permitted), amber (to be reduced), red (forbidden).
There may also an “S&D box”—exemptions for the
developing Members. However, no such proposal has
been advanced in the negotiations so far.


Most probably, NTBs relevant to environmental
goods or EPPs will have to be dealt with through
several complementary approaches. WTO Members
may engage in bilateral and plurilateral negotiations
to make the reciprocal adjustments, including with
respect to NTBs that they consider necessary for a
balanced outcome. The results of these multiple


bilateral or multilateral negotiations, which could
deal with specific measures, types of measures, or
specific environmental sectors, would be included in
the Members’ new schedules of commitments and
applied on a MFN basis at the end of the current
Round.


The various negotiated elements can be combined into
an NTB package pertaining to an environmental area,
while providing enough room for flexibility in terms
of scope. Participation in vertical NTB packages can
also be flexible. Multilateral aspects of the package
would clearly include all WTO Members. However,
the core group of countries needed for the various
plurilateral—or positive—elements of a single vertical
agreement need not be the same. All agreements
within a single vertical package—whether multilateral,
plurilateral, or bilateral – would be applied on an
MFN basis. In other words, plurilateral and bilateral
components will create rights for non-participating
WTO Members. Individual WTO Members can then
customize the agreement by adding bilateral issues
negotiated on a request and offer basis.


It will be up to NAMA to identify the elements
of a particular vertical package, e.g. customs
documentation, licensing, etc. NAMA will then need to
determine if the issues are being—or could be—dealt
with elsewhere in the WTO, or whether they should
be negotiated in NAMA, and to devise appropriate
mechanisms to ensure transparency between
the relevant committees and negotiating groups.
Transparency will especially be important with respect
to the status of relevant request and offer negotiations,
conducted bilaterally or plurilaterally. Reports could
come directly from the chairs of such committees or
negotiating groups or from NAMA Members pursuing
particular initiatives in other committees or negotiating
group.


The packaging of NTB negotiations so as to allow
for cross-issue trade-offs—and repackaging
them afterwards—is unavoidable as the members
differ in their rankings of the relative importance
of various NTBs. Moreover, there are great cross-
country variations in the roles played by government
(environmental) policy, and in the policies themselves.


As most NTBs are prompted by government priorities
or concerns that can claim a degree of legitimacy, and
unlike with tariffs, elimination is not necessarily an issue
or a goal. Rather, the objective is to promote more
harmonized approaches to non-border regulation




20 WTO negotiations on environmental goods: selected technical issues


through the elaboration of rules that acknowledge the
legitimacy of government interventions while seeking
to control untoward trade effects.


Negotiators need to be creative in tailoring ways to
address developing members’ concerns relating to NTBs
where they might collide with legitimate public policy
interests, such as public health, safety and environmental
protection. So far, no concrete options have been tabled
that would assist developing country exporters in dealing
with NTBs. And developing countries have requested
S&D, including in the area of NTBs! Indeed, they may
have to deploy certain non-tariff measures to create
markets and to level the playing field.


Cottier’s idea of progressive regulation—as opposed
to progressive liberalization—may provide a key.
Drawing from the idea of progressive liberalization, i.e.
liberalization commensurate with diverging levels of
development, Cottier argues that graduation, based
on recourse to economic factors within substantive
rules, and scheduling of additional commitments
could replace traditional approaches to S&D treatment
and render the negotiations more responsive to the
needs of developing members44.


Establishing linkages between economic factors
and legal rules and predicating the application of an
agreement on economic factors would not be without
precedent. Take, for instance, non-actionable subsidies
under Article 8 of the ASCM (currently suspended),
with the threshold for environmental assistance limited
to 20 percent of adaption costs. There are other
examples: safeguard measures under Article 9 of the
Agreement on Safeguards, the de minimis exception for
developing members from Article 6 of the Agreement
on Agriculture, determination of the customs value
under the Agreement of Implementation of Article VII.
The concept of substantial sector coverage in Article V
GATS or substantially all trade in Article XXIV GATT also
depend on economic analysis.


As a practical matter, progressive regulation can be
formalized through specific commitments in individual


schedules of members. Requests and offers may
serve as a basis for such commitments. In fact, this
modality may prove particularly useful as it can reflect
better the particular regulatory needs of exporters
seeking improved access to particular markets.
Negative or positive lists can be elaborated to exempt
or apply the rules-based disciplines of the agreement
to specific products or institutions—as in government
procurement. The approach can be used to elaborate
Annexes of exemptions or specific rules.


According to Cottier, existing schedules relating to
the GATT and GATS, as well as the Agreement on
Government Procurement, are suitable for prescriptive
rules. In fact, GATT schedules already contain a
considerable number of such rules.45 Some of these
additional commitments, e.g. in the Agreement on
Government Procurement, are applicable on the basis
of reciprocity and thus to particular members only.


How does one apply this, essentially GATS-like
approach to goods? In principle, it can be done either
within the existing parameters of the GATT agreement,
specifically under part III of the GATT schedules,
which deals with non-tariff concessions. In a more
far-reaching scenario, an additional part—”part V”—
would need to be added to the GATT schedules, to
deal specifically with regulations concerning trade
and environment. This, latter scenario presupposes
a negotiated agreement, establishing “part V” in the
GATT schedules and linking this part to the GATT
substantively and in legal terms. This approach
seems to be neither system-changing nor particularly
radical though.


Even the concept of S&D treatment may be developed
to accommodate the idea of applying WTO rules in
a manner that the differing levels of environmental
markets are taken into account, perhaps even
considered as inherent to the rule itself. Such an
approach would mean phasing in of obligations,
rather than defining opt-outs and exceptions.46


44 From progressive liberalization to progressive regulation in WTO law, Thomas Cottier, Journal of International Economic
Law 9(4), 779–821, December 2006.


45 Cottier points out that specific conditions are often enshrined in footnotes to schedules, and sometimes the subject matter
of dispute settlement, can be found in schedules. Likewise, disciplines on tariff quotas and limitations on domestic support
in agriculture amount to prescriptive rules. The schedules of the GATS Agreement contain such rules in particular in the field
of telecommunication, introduced on the basis of the 4th Protocol. Finally, additional commitments, so-called “WTO plus”
elements, are sometimes inscribed in the Protocol of Accession, the one on China being the most prominent example.


46 Ibid.




21VI. CONCLUSIONS


VI. CONCLUSIONS


The reason why environmental goods should be
negotiated in the WTO as a separate agreement is yet
to be explained. Not only is it an artifact to talk about
environmental goods, there are simply not enough
environmental markets or these markets are not
strong enough to be concerned about market access.
And trying to promote equal competitive opportunities
is in vain where there is no or little competition. True,
some goods (and services) are dynamic but not yet
considered as vital to the broader economy as e.g.
the IT products. It is little wonder the industry is not
pushing for trade liberalization, not even in developed
WTO Members.


There appears to be nothing special about the tariff
and non-tariff barriers to trade in environmental goods,
or indeed the negotiating objectives. The only thing
that makes these negotiations special is the mandate,
which is there, to be accounted for.


Clearly, WTO Members could attempt bringing down
or doing away with tariffs on environmental goods as
part of a broader deal in NAMA. As a practical matter,
that would mean making sure that HS categories at the
six-digit level, with a certain percentage of underlying
environmental goods, are all included and subject
to the deepest cuts in or elimination of tariffs. In fact,
dealing with environmental goods as part of a broad-
based tariff reduction exercise using request-offer or
other negotiating approaches would be instrumental
in facilitating trade-offs across products and across
sectors.


Not to mention that the WTO itself has moved far
beyond the realm of tariffs, bargaining, reciprocal
deals, and balancing and rebalancing concessions
to become an agreement about rules—rules primarily
focused on non-discrimination but also allowing
governments to take actions in derogation of the
norms of non-discrimination as necessarily to deal
with non-trade concerns, including the environment.


When it comes to rules-based negotiations, it is
important to make sure that the disciplines negotiated
target those with the means of distorting markets


and competition. From this perspective, one can
envisage, for instance, disciplines on environmental
or energy subsidies targeting economies or sectors
that are capable of distorting competition by means
of subsidization.


The fact that NTBs affecting trade in environmental
goods are no different from other NTBs has received
broad confirmation, including in work done by
observers in the negotiations, most notably the
OECD.47 With multilateral rules covering a vast
array of barriers that are reported, the need for new
agreements specifically dealing with environmental
goods is not obvious.


It is a fitting irony that the negotiating approaches
currently on the table have one thing in common—
they do not necessarily require the negotiations to be
implemented. It is little wonder that the negotiating
proposals that make most sense look like an alternative
to the negotiations rather than an alternative in the
negotiations.


Cross-issue trade would have to play an important
part in obtaining any agreement on environmental
goods, and that would require reconfiguring the
set of trade-offs across the various negotiating
mandates. Of course, there may be half-way options
between member-specific and the comprehensive
(horizontal) approach, which fall short of a new
agreement, which would somehow take into account
the fact that conditions of access associated with
similar commitments may vary significantly between
Members.


Admittedly, there are those who tend to see at least
some—if not most—of the technical issues that
we have revisited in this paper as unnecessary
complication. However, brushing them off is hardly
an option. All the submissions and discussions in the
CTESS, no matter what the perspective, are a valuable
experience, an acquis for subsequent negotiations.
Particularly since the current negotiations are not
meant to deal with environmental goods and services
once and for all.


47 Analysis of non-tariff barriers of concern to developing countries, OECD Trade Policy Woking paper number 16, Barbara
Fleiss and Liza Lejarraga, TC/TD/WP(2004)/47 FINAL, OECD, November 2005; Business perceptions of non-tariff barriers
facing trade in selected environmental goods and associated services: survey results, OECD Trade and Environment Wor-
king Paper 2007-02 Part I by Barbara Fliess and Joy Kim, COM/ENV/TD(2006)48/FINAL, OECD, September 2007.




22 WTO negotiations on environmental goods: selected technical issues


We are not quite sure how and why this happened,
but it is a fact that, while the mandate includes both
environmental goods and environmental services,
tariffs and NTBs, it is the tariff negotiations on
environmental goods, and more specifically questions
relating to the product coverage, that have grabbed
the lion share of time and attention. In this article we
had little choice but to acknowledge this fact, but
it was our intention to erase the pattern rather than
imprint it even more.


Indeed, some procedures and methods developed for
services may eventually bring about more productive
approaches to liberalizing trade in environmental
goods. Making operational the concept of progressive
regulation, using the purchasing power of the
government to bundle goods and services and to
putt pressure on foreign suppliers to build facilities or
transfer technology as offsets, affording preferential
treatment to environmental goods supplied for
priority investment projects—these and other options
are there to be explored in the context of the WTO
negotiations on environmental goods and services.


It is a task for the future to develop a comprehensive
negotiating approach applicable to both goods and
services for sector-specific agreements in the various
areas of the WTO law. The most promising avenue, it
would seem, is exploring the negotiating approaches
enshrined in GATS, although such approaches are
currently lacking.


A comprehensive approach would presuppose linking
the negotiations and discussions on environmental
goods with issues such as the treatment of
horizontal issues in services, namely emergency
safeguard mechanisms, government procurement
and classification; the role of subsidies for both
environmental goods and services, particularly in
developed countries; existing market structures and
related anti-competitive practices; linkages to other
negotiating areas, notably agriculture; the relationship
with objectives and instruments in relevant multilateral
environmental agreements, and last but not least the


supply capacity. After all, what is the point of having
opportunities if there is no capacity?


The negotiations put into question—again—the
desirability of expanding the WTO agenda in a
particular direction by seeking linkages between
trade and non-trade issues. As in virtually every one
of the “trade and …” areas, the liberalization of trade
in environmental goods (and services) can generate
complex and often contradictory effects. Much
depends on the type of trade liberalization undertaken,
and the underlying economic and environmental
conditions. How should these so-called non-trade
issues be dealt with in the WTO? What is the current
state of scope and linkage of these subjects between
the WTO and other intergovernmental instruments or
within the WTO treaty itself? Where does the mandate
of the WTO—and the expertise of trade negotiators—
stop in this particular case? How do other forms of
governance—domestic and multilateral—fit in?


In clarifying the various options, the CTESS serves as
a place for delegations to test the various approaches
and hypotheses as the true progress is born not of
knowledge secured but of its willing suspension. In
such a process, differences are the source, not the
stumbling blocks, they should enhance and not
diminish the quality of the negotiating process. That
presupposes a playful exchange of ideas that fosters
solutions through respect for the novel elements
in the proposals by others—rather than a forensic
questioning that tries to close distance.


As attempts are still being made to identify ways
towards the objectives of this particular negotiating
mandate, a better alignment between the mission
and means would be helpful. Sticking to the letter
of the mandate, pushing for an outcome despite
the apparent absence of a substantive link between
the mandate and the negotiations—the “just do
it” approach—is no substitute for finding a policy
framework to be able to say what makes sense and
what doesn’t.




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