Likeness Agreement by hzz10105

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									  Subregional Workshop on the
    Trade and Environment
   Dimensions in the Food and
  Food Processing Industries in
 South-East and North-East Asia
  Jakarta, Indonesia, 26-27 July
              2006

       Nuria Castells (nuria.castells@unctad.org)
Division on International Trade in goods and services, and
                       Commodities
                        UNCTAD
Trade and Environment at WTO
 The committee on Trade and Environment
 was created by the Decision on Trade
 and Environment. Adopted by ministers
 at the meeting of the Uruguay Round
 Trade Negotiations Committee in
 Marrakesh on 14 April 1994
CTE’s REGULAR WORK PROGRAMME

  MEAs and WTO rules                        Item 1

  Environmental policies                    Item 2

  Taxes, technical regulations, labelling   Item 3

  Transparency                              Item 4

  Dispute settlement and MEAs               Item 5

  Market access                             Item 6

  Domestically prohibited goods (DPGs)      Item 7

  Intellectual Property (TRIPS)             Item 8

  Services                                  Item 9

  Arrangements with NGOs                    Item 10
             Trade and Environment:
             Doha work programme
The Doha Mandate on Trade and Environment:
Par. 31. With a view to enhancing the mutual supportiveness of trade and
      environment, we agree to negotiations, without prejudging their
      outcome, on:
•     (i) the relationship between existing WTO rules and specific trade
      obligations set out in multilateral environmental agreements
      (MEAs). The negotiations shall be limited in scope to the
      applicability of such existing WTO rules as among parties to the
      MEA in question. The negotiations shall not prejudice the WTO
      rights of any Member that is not a party to the MEA in question;
•     (ii) procedures for regular information exchange between MEA
      Secretariats and the relevant WTO committees, and the criteria for
      the granting of observer status;
•     (iii) the reduction or, as appropriate, elimination of tariff and non-
      tariff barriers to environmental goods and services.
           Trade and Environment:
          Doha work programme (2)
The Doha Mandate on Trade and Environment:
•    Par. 32.     We instruct the Committee on Trade and Environment,
     in pursuing work on all items on its agenda within its current terms
     of reference, to give particular attention to:
•        (i)      the effect of environmental measures on market access,
     especially in relation to developing countries, in particular the least-
     developed among them, and those situations in which the
     elimination or reduction of trade restrictions and distortions would
     benefit trade, the environment and development;
•        (ii)     the relevant provisions of the Agreement on Trade-
     Related Aspects of Intellectual Property Rights; and
•        (iii)    labellingrequirements for environmental purposes
        Trade and Environment:
       Doha work programme (3)
The Doha Mandate on Trade and Environment:
Par. 33. We recognize the importance of technical
    assistance and capacity building in the field of
    trade and environment to developing countries,
    in particular the least-developed among them.
    We also encourage that expertise and experience
    be shared with Members wishing to perform
    environmental reviews at the national level.
        Trade and Environment:
       Doha work programme (4)
The Doha Mandate on Trade and Environment:
Par. 51: The Committee on Trade and Development
  and the Committee on Trade and Environment
  shall, within their respective mandates, each act as
  a forum to identify and debate developmental and
  environmental aspects of the negotiations, in order
  to help achieve the objective of having sustainable
  development appropriately reflected.
        Trade and Environment:
       Doha work programme (5)
Par. 6:
  We strongly reaffirm our commitment to the
  objective of sustainable development, as stated in
  the Preamble to the Marrakesh Agreement. We
  are convinced that the aims of upholding and
  safeguarding an open and non-discriminatory
  multilateral trading system, and acting for the
  protection of the environment and the promotion
  of sustainable development can and must be
  mutually supportive.
         Trade and Environment:
        Doha work programme (6)
The Doha Mandate on Trade and Environment:
Par. 6 (2)
  We recognize that under WTO rules no country should be
  prevented from taking measures for the protection of
  human, animal or plant life or health, or of the
  environment at the levels it considers appropriate, subject
  to the requirement that they are not applied in a manner
  which would constitute a means of arbitrary or
  unjustifiable discrimination between countries where the
  same conditions prevail, or a disguised restriction on
  international trade, and are otherwise in accordance with
  the provisions of the WTO Agreements.
  WTO Agreements on TBT and SPS (I)
                                                   10




 WTO Agreement on Technical Barriers to Trade
            (TBT Agreement)

The Agreement on the Application of Sanitary and
          Phyto-sanitary Measures
              (SPS Agreement)
                                      11


Why an Agreement on TBT ?

The impact of technical regulations
   and standards on free trade
           The Costs !!
• Loss of economy of scale
• Information costs
• Adjustment costs to divergent
  technical regulations
• Costs resulting from uncertainty
                                                         12


 General Objective of the TBT Agreement


                 The right of WTO Members to adopt
Recognises      Technical Regulations, Standards and
                 Conformity Assessment Procedures


              Ensures that such measures do not create
However
                  unnecessary obstacles to trade
                Definitions - Annex 1
                                                                        13




  Technical        Document which lays down product characteristics
 Regulation ?          or their related processes and production
                   methods… with which compliance is mandatory…

                   Document approved by a recognized body, that
                    provides, for common and repeated use, rules,
Standard ?        guidelines or characteristics for products or related
                   processes and production methods, with which
                           compliance is not mandatory...

  Conformity          Any procedure used by producers, suppliers,
  Assessment          clients, regulatory bodies and third parties to
  Procedure ?       determine that relevant requirements in technical
                          regulations and standards are fulfilled
                                                            14


       Scope of the TBT Agreement

                All products,
including industrial and agricultural products

              TBT
                                            SPS

                        except,
- sanitary and phytosanitary measures
- regulations and standards related to services
- purchasing specifications for production or consumption
    of governments
                                        15


Main Principles of the TBT Agreement

            1. Non - Discrimination

          2. Avoidance of unnecessary
               obstacles to trade

              3. Harmonization

                4. Equivalence

            5. Mutual Recognition

               6. Transparency
                                                                      16


              1. Non-Discrimination (a)

                         Article 2.1
    Members shall ensure that ... products imported from
       the territory of any Member shall be accorded
   treatment no less favourable than that accorded to like
       products of national origin and to like products
               originating in any other country.
               applies in the preparation, adoption, and
              application of Technical Regulations, Standards
                 and Conformity Assessment Procedures



 Most-Favoured Nation (MFN)                  National Treatment
Article 2.1             Article 5.1.1                     Annex 3.D
                                                                  17


             1. Non-Discrimination (b)

  What is a “like product” for purposes of the TBT
                      Agreement?
       Likeness is determined on a case by case basis

                                      Physical characteristics

                                       Tariff Classification
4 criteria
                                   Consumers’ tastes and habits

                                         Product end uses
                                        18


Main Principles of the TBT Agreement

            1. Non - Discrimination

          2. Avoidance of unnecessary
               obstacles to trade
                                                           19


2. Avoid unnecessary obstacles to trade (a)


                    The measure shall be

  • No more trade restrictive than necessary

  • to fulfil a legitimate objective, taking account of
    the risks non-fulfilment would create


      Article 2.2         Annex 3.E        Article 5.1.2
                                                                        20


2. Avoid unnecessary obstacles to trade (b)

                         National security requirements

                         Protection of human health or safety

 Legitimate              Protection of animal or plant life or health
  objectives             Protection of the environment

                         Prevention of deceptive practices

                         …...

           Article 2.2                               Article 5.1.2
                                        21


Main Principles of the TBT Agreement

            1. Non - Discrimination

          2. Avoidance of unnecessary
               obstacles to trade

              3. Harmonization
                                                                 22


                  3. Harmonization (a)

Members shall participate in the
                                           Article 5.5
appropriate standardizing bodies


Members shall use relevant              Articles 2.4; 2.5; 2.6
international standards

                                   climatic factors
   Except when
   inappropriate                   geographical factors
   or ineffective for

                                   technological problems
                                                      23


           3. Harmonization (b)

 “… Whenever a technical regulation is prepared,
    adopted or applied for one of the legitimate
objectives explicitly mentioned in paragraph 2, and
    is in accordance with relevant international
 standards, it shall be rebuttably presumed not to
  create an unnecessary obstacle to international
                        trade”

                     Article 2.5
                                                           24


              3. Harmonization (c)


      International Standardizing Bodies

–   International Organization for Standardization (ISO)
–   International Telecommunications Union (ITU)
–   International Electrotechnical Commission (IEC)
–   Codex Alimentarius Commission
                                                                 25


                    3. Harmonization (d)

             Principles for the Development of
  International Standards, Guides and Recommendations


Transparency                                             Coherence


                                                 Development
  Openness                                        Dimension


      Impartiality and consensus   Effectiveness and relevance
                                        26


Main Principles of the TBT Agreement

            1. Non - Discrimination

          2. Avoidance of unnecessary
               obstacles to trade

              3. Harmonization

                4. Equivalence
                                                             27

                 4. Equivalence


                       even when they differ


Acceptance of other
   regulations as                    Article 2.7
     equivalent

                           provided that they fulfil the
                        objectives of their own regulation
                                        28


Main Principles of the TBT Agreement

            1. Non - Discrimination

          2. Avoidance of unnecessary
               obstacles to trade

              3. Harmonization

                4. Equivalence

            5. Mutual Recognition
                                                                  29

               5. Mutual Recognition


   Acceptance of each other’s conformity assessment results




Encouragement to enter into negotiations for the conclusions of
          Mutual Recognition Agreements (MRAs)


                   Articles 6.1 and 6.3
                                        30


Main Principles of the TBT Agreement

            1. Non - Discrimination

          2. Avoidance of unnecessary
               obstacles to trade

              3. Harmonization

                4. Equivalence

            5. Mutual Recognition

               6. Transparency
                  31


6. Transparency


 Notifications


Enquiry Points

TBT Committee
                                                             32

      6. Transparency: Notification (1)

                  Implementation and administration of the
                                Agreement

                  Draft technical regulations, and adopted
Members                       urgent measures
 have to
  notify
 what ?             Bilateral and multilateral agreements


                  Adherence or withdrawal to the Code of
                   Good Practice and work programme
                                                                 33


          6. Transparency: Notification (2)

                    Whenever a relevant international standard
                    does not exist, or a new requirement is not in
                      accordance with the technical content of
                     relevant international standards, guides or
                                   recommendations
 Members
  have to
notify when:          If the technical regulation or conformity
                    assessment procedure may have a significant
                          effect on trade of other Members
                                                                  34


      6. Transparency: Notification (3)
                       Members
                        have to
                      notify how?:

      Publish a notice in a publication at an early stage

Notify the WTO Secretariat of the regulation or procedure and
 the products covered, indicating the objective & rationale, at
      an early stage when amendments can be introduced

  Upon request, provide copies of regulations or procedures

Without discrimination, allow reasonable time for Members to
     comment in and take new regulation into account
                                                                           35

       6. Transparency: Enquiry Points(4)

          WTO Members must set up a national enquiry point


                                    Technical regulations, standards and
      Art. 10.1, 10.2, 10.3
                                     conformity assessment procedures

                                       Membership and participation in
                                   international and regional standardizing
Enquiry Points must respond       bodies and conformity assessment systems
  to enquiries and provide        / bilateral and multilateral arrangements
     relevant documents
          regarding:              Location of notices published

                                  Location of other Enquiry Points
                                                                            36

    6. Transparency: TBT Committee (5)

Composition    Representatives of each Member

               Consulting on any matters relating to the
Objective
               operation of the Agreement
                                                             Articles 13;
Chairperson    Elected by the Committee                       15.3 - 15.4

Meetings       As necessary, but not less than once a year

              The Committee shall review annually the operation and
              implementation of the Agreement.
              Every 3 years, the Committee shall review the
Reviews       implementation and operation of the Agreement…, with a
              view to recommending an adjustment of the rights and
              obligations of this Agreement where necessary to ensure
              mutual economic advance and balance of rights
                                       37


Provisions for developing countries



  Special and Differential Treatment



         Technical Assistance
                                                                                 38
        Provisions for developing countries (1):
           Special and Differential Treatment Article 12

                Take into account the special needs of developing country
                                        Members

              Avoid creating unnecessary obstacles to exports of developing
 All                  country Members (through regulatory activities)
Mem
bers
shall         Facilitate active and representative participation of developing
                 country Members in international standardizing bodies

               Facilitate preparation of international standards concerning
               products of special interest to developing country Members
                                                            39
 Provisions for developing countries (2): Article 12
    Special and Differential Treatment

                            Shall only use international
                            norms appropriate to their
                                       needs


Developing country
    Members


                          Can be granted specified, time-
                             limited exceptions from
                           obligations of the Agreement
                                                                          40
       Provisions for developing countries (3) :
                Technical Assistance        Article 11


                           … if requested and …
                         on mutually agreed terms

Preparation of technical                    Priority to the needs of least-
      regulations                           developed country Members


  Facilitate access to                        Facilitate participation in
   systems for CA                            international system for CA


                  Establishment of standardizing
                 bodies, regulatory bodies or bodies
                               for CA
                                                   41
      WTO Agreements on TBT and SPS (II)


 WTO Agreement on Technical Barriers to Trade
            (TBT Agreement)

The Agreement on the Application of Sanitary and
          Phyto-sanitary Measures
              (SPS Agreement)
                                                                       42


              Definition of an SPS Measure
     to protect:           from:
                       risks arising from additives,
human or animal life   contaminants, toxins or disease-causing
                       organisms in their food, beverages,
                       feedstuffs;
 human life            plant- or animal-carried diseases (zoonoses);

                       pests, diseases, or disease-causing
animal or plant life
                       organisms;

  a country            damage caused by the entry, establishment or
                       spread of pests
                                            43


    Not covered by SPS Agreement


Measures intended to protect, for example

• the environment, per se
• consumer interests (not health)
• animal welfare

are NOT covered by the SPS Agreement
                                                                         44

        Examples of TBT and SPS Measures
Fruit
  Regulation of treatment of imported fruit to prevent pests spreading
      SPS
  Regulation on quality, grading and labelling of imported fruit
      TBT
Bottled Water: Specification for Bottles
  Materials that can be used because safe for human health
      SPS
  Req; No residues of disinfectant, so water not contaminated
      SPS
  Permitted size to ensure standard volume                  TBT
  Permitted shape to allow stacking and displaying          TBT
                                                      45

                  SPS: Basis

•     Members have the right to take sanitary and
      phytosanitary measures necessary for the
      protection of human, animal and plant life or
      health…
•     BUT:
    - no unjustifiable discrimination
    - no disguised restrictions on international
      trade
                                                   46

         SPS: Scientific Justification

Ensure that SPS measures are applied
• only to the extent necessary to protect health
• based on scientific principles
• not maintained without sufficient scientific
  evidence
• precautionary use is possible, but subject to
  regular review, based on sufficient scientific
  evidence
                                               47


      SPS: Scientific Justification


Scientific justification can be based on


Risk Assessment       International Standard
                                          48

 International Standard Setting Bodies

• FAO/WHO Codex Alimentarius Commission
  (CODEX)

• International Office of Epizootics

• FAO International Plant Protection
  Convention (IPPC)
                                                    49

              Risk Assessment

   Countries must base SPS measures on an
   assessment of the risks involved, and, if
   requested, made known:

1. the factors which they took into consideration
2. the procedures they used
3. the level of risk determined to be acceptable
                                                            50

         Precautionary Principle


In cases where relevant scientific evidence is
insufficient, a Member may provisionally adopt SPS
measures on the basis of available pertinent information.

In such circumstances, a Member must try to obtain the
additional information necessary for a more objective
assessment of risk within a reasonable period of
time.
                                                 51

         Other Provisions

• Equivalence
 - accepting other Members’ measures if they
   achieve the same level of health protection
• Regionalization
 - recognizing pest - or disease - free areas
• Transparency
 - publication, notification requirements
                                                              52


             Transparency Provisions

1) Enquiry Points
- Respond to questions
- Provide documents

 2) Notifications
- SPS measures that differ substantially from existing
   international standards, or for which international standards
   do not exist
- SPS measures that may have a significant effect on trade
                                                       53

           Current discussions
• SPS and TBT Agreements not open for
  negotiations (there is a regular review of the
  TBT Agreement every 3 years; SPS only as the
  need arises)
• Implementing concerns identified by
  developing countries:
  - Early notification on planned regulations
  - Time between publication and entry into force of
    the regulation
  - Participation in standard setting
  - Technical assistance
 UNCTAD’s work on market access
• Consultative Task Force (CTF) on environmental and
  health-related requirements (funded by the Netherlands
  and other donors)
  (www.unctad.org/trade_env/test1/projects/taskforce.htm)
• Project on strengthening negotiating capacities for
  developing countries on key post-Doha issues on trade and
  environment (UK funded)
• UNCTAD-FAO-IFOAM International Task Force (ITF)
  on Harmonization and Equivalence in Organic Agriculture
• Research and publications (Trade and Enviroment Review
  2006, available on the website)
• Technical assistance upon request
                                              55

       On-line Reference Sources

UNCTAD’s Trade, Environment and Development
                  Website
        www.unctad.org/trade_env

								
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