Negotiating environmental protection in trade agreements: A regime shift or a tactical linkage?

Abstract

The prolific literature on the relationship between the trade and environmental regimes suffers from three shortcomings. First, it myopically focuses on multilateral institutions, while the vast majority of trade and environmental agreements are bilateral. Second, when studies consider preferential trade agreements’ (PTAs) environmental provisions, they are often limited to USA and EU agreements. Third, it examines how the trade and environmental regimes negatively affect each other, leaving aside their potential synergies. Conversely, this article assesses the potential contribution of PTAs to international environmental law. Several PTAs include a full-fledged chapter devoted to environmental protection and contain detailed commitments on various environmental issue areas. One possible scenario is that countries that are dissatisfied with traditional settings for environmental lawmaking engage in a process of “regime shifting” toward PTAs to move forward on their environmental agenda. The alternative is that PTAs’ environmental provisions are the result of “tactical linkages” and merely duplicate extant obligations from international environmental law to serve political goals. We shed light on this question by building on two datasets of 690 PTAs and 2343 environmental treaties. We investigate four potential contributions of PTAs to environmental law: the diffusion of multilateral environmental agreements (MEAs), the diffusion of existing environmental rules, the design of new environmental rules, and the legal prevalence of MEAs. The article concludes that the contribution of PTAs to the strengthening of states’ commitments under international environmental law is very modest on the four dimensions examined.

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Fig. 1

Notes

  1. 1.

    To be clear, these two concepts are meant to describe the contribution (or absence of contribution) of PTAs to international environmental law, rather than negotiators’ intentions, insofar as both “regime shift” and “tactical linkage” can result from purely strategic motivations.

  2. 2.

    Some notable exceptions include Durán and Morgera (2012) and Jinnah and Lindsay (2016).

  3. 3.

    This broad definition of rules includes principles, norms, and procedures.

  4. 4.

    If we consider the ratification date of MEAs instead, the Treaty instituting the West African Economic Community contributed to the adoption of the rule on harmonization by 5 countries, i.e., when the PTA was signed, 4 countries had already signed but not yet ratified MEAs including this rule. The duration of the MEAs ratification process probably explains this discrepancy.

  5. 5.

    20 countries in the analysis based on ratification date.

  6. 6.

    21 countries in the analysis based on ratification date.

  7. 7.

    61 countries in the analysis based on ratification date.

  8. 8.

    70% in the analysis based on ratification date, another 13% being attributable to the 1984 third Lomé Convention.

  9. 9.

    To be sure, several of these rules existed in domestic law, soft law, or case law well before their first inclusion in a trade or environmental treaty. However, tracing back their true origin is beyond the scope of this article, which focuses on conventional international law only.

  10. 10.

    Agreement Establishing the South Pacific Commission, 1947, art. 124 (2).

  11. 11.

    North American Agreement on Environmental Cooperation, 1992, art. 17.

  12. 12.

    For example, the PTA between Colombia and the USA [2006, art. 18.12 (6)], the Trans-Pacific Partnership [2016, art. 20.23 (1)], and the recent United States–Mexico–Canada Agreement [2018, art. 24.32 (1)].

  13. 13.

    Namely, the Fourth Lomé Convention (1989, art. 41), the European Association Agreement between the European Communities and Poland [1991, art. 80 (2)], and the European Association Agreement between the European Communities and Hungary [1991, art. 79 (2)].

Abbreviations

CAFTA:

Central America Free Trade Agreement

CBD:

Convention on Biological Diversity

CCAMLR:

Convention on the Conservation of Antarctic Marine Living Resources

CITES:

Convention on International Trade in Endangered Species of wild fauna and flora

COMESA:

Common Market for Eastern and Southern Africa

EC:

European Communities

IEA:

International environmental agreement

MARPOL:

International Convention for the Prevention of Pollution from Ships

MEA:

Multilateral environmental agreement

NAFTA:

North American Free Trade Agreement

OECD:

Organization for Economic Cooperation and Development

PTA:

Preferential trade agreement

TREND:

TRade and ENvironment Database

UNFCCC:

United Nations Framework Convention on Climate Change

VCLT:

Vienna Convention on the Law of Treaties

WTO:

World Trade Organization

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Appendix: List of 41 rules identified in PTAs and MEAs

Appendix: List of 41 rules identified in PTAs and MEAs

Rule Example References
1. Mutual supportiveness between the environment and trade or development “The Parties recognize the mutual supportiveness between trade and environment policies and the need of implementing this Agreement in a manner consistent with environmental protection and conservation and sustainable use of their resources” Free Trade Agreement between Canada and Colombia [2008, art. 1701 (2)]
2. Recognition of a development gap or of different capabilities “Recognizing the difference in levels of development between the coastal States, and taking account of the economic and social imperatives of the developing countries” Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based Sources (1980, preamble)
3. Polluter pays principle “The Contracting Parties agree that the polluter in the Areas of Contracting Parties, should, in principle, bear the cost of pollution” Energy Charter treaty [1994, art. 19 (1)]
4. Cost–benefit analysis “Parties […] shall endeavour to evaluate the costs, benefits and other consequences that can result from eco-tourism at selected wetlands with concentrations of populations listed in Table 2 Agreement on the Conservation of African-Eurasian Migratory Waterbirds (1995, art. 4.2.2)
5. Coherence between environmental measures and trade or investment policies “Recognizing that this Agreement should be implemented with a view toward raising the standard of living, creating new job opportunities, and promoting sustainable development in a manner consistent with environmental protection and conservation” Free Trade Agreement between China and Chile (2005, preamble)
6. Inappropriateness to relax environmental measures to encourage trade or investment “Neither Party may encourage trade or investment by weakening or reducing the levels of protection afforded in its environmental laws” Free Trade Agreement between Canada and Jordan (2009, art. 5)
7. Precautionary principle “Acknowledging that, where there are threats of serious or irreversible damage, the lack of full scientific certainty should not be used as a reason for postponing protective measures” Trade Agreement between the EU, Colombia And Peru (2012, art. 278)
8. Prevention principle “Each State Party shall ensure that activities within its jurisdiction or control do not cause damage to the wildlife resources of other states or in areas beyond the limits of national jurisdiction” Protocol on Wildlife Conservation and Law Enforcement to the Treaty of the Southern African Development Community [1999, art. 3 (1)]
9. Sovereignty over resources “States have the sovereign right to exploit their own resources pursuant to their policies on the environment” Framework Convention on Environmental Protection for Sustainable Development in Central Asia (2006, art. 4)
10. Common but differentiated responsibilities principle “The extent to which developing country Parties will effectively implement their commitments under this Convention will […] take fully into account the fact that economic and social development and eradication of poverty are the first and overriding priorities of the developing country Parties” Convention on Biological Diversity [1992, art. 20(4)]
11. Interaction between gender and the environment “Stressing the important role played by women in regions affected by desertification and/ or drought [….] and the importance of ensuring the full participation of both men and women at all levels in programmes to combat desertification and mitigate the effects of drought” Convention to Combat Desertification (1994, preamble)
12. Interaction between indigenous community and the environment “The Parties recognize the importance of respecting and preserving traditional knowledge and practices of indigenous and other communities that contribute to the conservation and sustainable use of biological diversity” Trade Promotion Agreement between the USA and Colombia [2006, art. 18.11 (3)]
13. Prohibition of the import of an environmental good from a Party where its use or export is prohibited by that Party “The two Governments […] undertake to curb the import into or transit through their respective territories of natural products, originating in either Party, the export of which is banned in the territory of that Party” Agreement for the Conservation of Fauna and Flora in the Amazonian Territories of Brazil and of Peru (1975, art. V)
14. Prohibition of the export of an environmental good from a Party where its use or import is prohibited within that Party’s territory “The Contracting Parties shall vigorously oppose the export […] of waste and environmentally hazardous materials to the extent that it is contrary to the law of one of the Contracting Parties” Agreement between the government of Poland and the Federal Republic of Germany on Cooperation in Environmental Protection (1994, art. 8)
15. Encouragement for trade in environmental goods and services “The Parties shall encourage trade and dissemination of environmental products and environment-related services in order to facilitate access to technologies and products that support the environmental protection and development goals” Agreement on Free Trade and Economic Partnership between Japan and the Swiss Confederation [2009, art. 9 (1)]
16. Use of voluntary label, standards and certification “In accordance with its domestic law and policy, each Party shall promote the development, establishment, maintenance, or improvement of performance goals and standards used in measuring environmental performance” Agreement on Environmental Cooperation between Canada and Honduras [2013, art. 11 (2)]
17. Emission trading schemes “Cooperation shall seek to facilitate joint initiatives in the area of climate change mitigation and adaptation to its adverse effects, including the strengthening of carbon market mechanisms” Agreement Establishing an Association between Central America and the European Union [2012, art. 50 (3) (d)]
18. Equitable sharing of benefits arising from the use of natural or genetic resources “The Contracting Parties agree that benefits arising from the use, including commercial, of plant genetic resources for food and agriculture under the Multilateral System shall be shared fairly and equitably” International Treaty on Plant Genetic Resources for Food and Agriculture [2001, art. 13 (2)]
19. Commitment to enforce domestic environmental law “A Party shall not fail to effectively enforce its environmental laws, through a sustained or recurring course of action or inaction, in a manner affecting trade between the Parties […]” Free Trade Agreement between Chile and the USA [2003, art. 19.2 (1) (a)]
20. Prevention of subsidies harmful to the environment “Progressive reduction or phasing out of […]subsidies in all greenhouse gas emitting sectors that run counter to the objective of the Convention” Kyoto Protocol to the United Nations Framework Convention on Climate Change [1997, art. 2 (1) (v)]
21. Joint scientific cooperation related to the environment “The Parties exchange results of scientific studies through arranging joint seminars and scientific conferences, organization of joint publications or in another form” Agreement between Estonia and the Russian Federation on Cooperation in the Field of Protection and Sustainable Use of Transboundary Watercourses (1997, art. 8)
22. Exchange of scientific information related to the environment “Cooperation shall concern […] systems of information on the state of the environment” Free Trade Agreement between the European Communities and Bulgaria [1993, art. 81 (2)]
23. Other exchange of information related to the environment “Each Party shall facilitate the exchange of: […] technical, economic and legal information concerning mercury and mercury compounds” Minamata Convention on Mercury [2013, art. 17 (1) (a)]
24. Establishment of contact point on environmental matters “Each Party shall designate a contact point for environmental matters to facilitate communication between the Parties” Free Trade Agreement between Korea and Australia [2014, art. 18.6 (1)]
25. Harmonization of environmental measures “The Parties shall cooperate bilaterally […] to harmonize standards for motor vehicle environmental performance and safety” Free Trade Agreement between the USA and the Republic of Korea [2007, art. 9.7 (1)]
26. Environmental impact assessment of the agreement “The Parties shall conduct a comprehensive review and assessment of this Agreement, and its implementation, during the fifth year after its entry into force” Agreement between Canada and the USA on Air Quality [1991, art. X (2)]
27. Negotiation of environmental agreements “The Parties also recognize the continuing importance of current and future environmental cooperation activities in other fora” Central America Free Trade Agreement [2004, art. 17.9 (5)]
28. Participation of the public in the implementation of the agreement “The Parties should also endeavour to promote the participation of their public and their nature conservation organizations in appropriate measures which are necessary for the protection of the areas concerned” Protocol Concerning Mediterranean Specially Protected Areas and Biological Diversity in the Mediterranean (1982, art. 11)
29. Commitment to communicate with the public on the implementation “Each Party may develop mechanisms, where appropriate, to inform its public of activities undertaken pursuant to this Agreement in accordance with its laws, regulations, policies and practices” Free Trade Agreement between New Zealand and Malaysia [2009, art. 4 (9)]
30. Environmental education or public environmental awareness “Each Contracting Party shall promote education and disseminate general information on the need to conserve species of wild flora and fauna and their habitats” Convention on the conservation of European wildlife natural habitats [1979, art. 3 (3)]
31. Technical assistance, training or capacity-building “The Parties shall strive to strengthen and to enlarge the capacity of national institutions responsible for the conservation and sustainable use of biological diversity, through instruments such as the strengthening of capacities and technical assistance” Trade agreement between the EU, Colombia and Peru [2012, art. 272 (6)]
32. Technology transfer in the field of the environment “Parties undertake to co-operate actively, subject to their national laws, regulations and policies, in the transfer of technology in respect of oil pollution preparedness and response” International Convention on Oil Pollution Preparedness, Response and Co-Operation [1990, art. 9 (2)]
33. Financial assistance in the field of the environment “The developed country Parties shall provide new and additional financial resources to enable developing country Parties and Parties with economies in transition to meet the agreed full incremental costs of implementing measures which fulfill their obligations under this Convention” Stockholm Convention on Persistent Organic Pollutants [2001, art. 13 (2)]
34. Emergency assistance in case of natural disaster “In case of environmental emergencies of possible transboundary impact, the Parties shall inform each other and take immediate coordinated actions in order to eliminate the consequences of such emergencies” Agreement between Latvia, Estonia and Lithuania on cooperation in the field of environment [2010, art. 5 (2)]
35. International secretariat on environmental issues “The Council shall have a Secretariat which shall consist of a Secretary-General and such technical and clerical staff as may be required for the working of the Council” African Migratory Locust Convention [1952, art. IV (1)]
36. Intergovernmental committee on environmental issues “The Participants establish an Environment Committee comprising senior officials of their government agencies responsible for environmental matters” Thailand-New Zealand Closer Economic Partnership Agreement (2005, art. 3.1)
37. Advisory and stakeholder international committee on environmental issues “Each Contracting Party may establish an Advisory Committee for its national section to be composed of persons who shall be well informed concerning North Pacific fishery problems of common concern” International Convention for the High Seas Fisheries of the North Pacific Ocean [1952, art. II (8)]
38. Creation of joint research institutions “There shall be established an independent international organization entitled the ‘Center for International Forestry Research’ […]” Establishment agreement for the center for international forestry research (1993, art. 1)
39. Non-jurisdictional dispute settlement mechanisms “Should any issue arise between the Parties over the interpretation or implementation of this Agreement, the Parties will make every effort to settle it amicably through cooperation, consultation, and dialogue” Environmental Cooperation Agreement between China and New Zealand [2008, art. 4 (1)]
40. Arbitrage, courts and tribunals “Any dispute between Contracting Governments relating to the interpretation or application of the present Convention which cannot be settled by negotiation shall be referred at the request of either party to the International Court of Justice for decision unless the parties in dispute agree to submit it to arbitration” International Convention for the Prevention of Pollution of the Sea by Oil (1954, art. XIII)
41. Sanction or suspension of benefits “The Commission may suspend the voting rights of any Contracting Party when its arrears of contributions equal or exceed the amount due from it for the two preceding years” International Convention for the Conservation of Atlantic Tunas [1966, art. X (8)]

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Laurens, N., Morin, JF. Negotiating environmental protection in trade agreements: A regime shift or a tactical linkage?. Int Environ Agreements 19, 533–556 (2019). https://doi.org/10.1007/s10784-019-09451-w

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Keywords

  • Trade agreements
  • International environmental agreements
  • Tactical linkages
  • Institutional interactions
  • Regime shifting