Details of the Trans-Pacific Partnership (“TPP”) are now available. This is now an opportunity to see what was negotiated with respect to the environment.
Chapter 20 of the TPP focuses on the environment. The objectives as set out acknowledge the need to balance the interests of free trade with environmental protection. The TPP proceeds to achieve this balance through a scheme of general pledges and objectives, as well as issue-specific provisions. Notably, the TPP tries to strengthen existing multilateral environmental agreements (MEAs) in certain areas by requiring Parties to adhere to the standards developed by such agreements. This levels the playing field for industry and provides a consistently robust standard of environmental protection across the Parties. It also may help to force slow movers in the area of environmental regulation to speed up the pace of environmental protection in order to garner the benefits of the TPP.
There is criticism that the TPP doesn’t address certain issues. For instance, some prominent MEAs are missing from the TPP, such as the United Nations Convention on Climate Change (UNCCC) and the International Convention for the Regulation of Whaling (ICRM). The TPP does not include the phrase “climate change” and instead refers to a transition to a low emissions economy. It does not provide any specific measures, prohibitions, or targets. It does not address how the expansion of free trade (and therefore the encouragement of emissions-intensive activities such as shipping, for example), fits into such a transition.
As was stated by the Australian Minister of Trade, the TPP is a trade agreement, not a climate change policy.1 However, it seems recognized within the TPP itself that although it does not talk about “climate change” per se, that sustainable development, environmental protection, and conservation are imperatives that must be considered.
The General Commitments of Chapter 20 contain several important pledges. For instance, Parties commit to “high levels of environmental protection”. This is not defined. Chapter 20 further provides that the Parties will strive to continue to improve their policies. This at least points to the idea a baseline below which the Parties should not fall.
The TTP recognizes the “sovereign right of each Party to establish its own levels of domestic environmental protection.”2 It further provides that “no Party shall fail to effectively enforce its environmental laws through a sustained or recurring course of action or inaction in a manner affecting trade or investment between the Parties.”3 This aspect essentially requires Parties to consistently enforce environmental laws that may impact trade or investment; this could be applied to a potentially broad array of environmental legislation.
Importantly, the TTP provides that it is inappropriate to encourage trade by weakening environmental laws.4 This provision is without prejudice to the sovereign right of a Party to make its own environmental laws, recognizing yet another tension in the agreement between sovereignty and holding states to high environmental standards. It is unclear how this tension might be resolved, but the overall weight of Chapter 20 and its objectives make clear that environmental laws are to move forwards and be continuously improved, not move backwards – even where doing so may be advantageous to trade and investment.
The TTP contains a commitment from the Parties to implement the MEAs to which they are Party.5 This would appear to include both agreements that are currently in force as well as future agreements that the Parties may sign. Many of the issue-specific provisions outlined below are tied to the standards set by certain MEAs.
However, some MEAs are notably missing from Chapter 20. For instance, the ICRW. Japan is one of the 12 Pacific Rim countries that negotiated the TPP yet continues to conduct whaling, arguably in violation of the ICRW. Including this MEA in the TPP could have provided an addition method to exert pressure on Japan to cease whaling, but the ICRW is not mentioned.
Protection of the Ozone Layer: The TPP ties its general provision to “take measures to control the production and consumption of, and trade in,” ozone-depleting substances to the standard established under the Montreal Protocol. Parties are deemed to be compliance with this section if they are meeting the standards of that Protocol or exceeding them. This information is required to be made public.6
Protection of the Marine Environment from Ship Pollution: Set up in a parallel manner to the ozone layer articles, this section incorporates the standards of the International Convention for the Prevention of Pollution from Ships and its subsequent amendments (“MARPOL”). Parties are deemed to be compliance where they implement the MARPOL obligations or an equivalent or higher standard of environmental protection. These measures are also required to be made public.7
Biodiversity: The Parties have agreed to promote the conservation of biodiversity. This section contains a specific provision to respect and maintain the knowledge and practices of indigenous and/or local communities that contribute to the conservation of biodiversity.
Invasive Alien Species: This article recognizes that the movement of invasive species across borders through trade can adversely affect the environment. It provides that the Environment Committee will coordinate with the Committee on Sanitary and Phytosaniary Measures (established under Article 7.5) to share information to enhance efforts to address the risks associated with the movement of such species.8 No specific commitments or measures are required.
Low Emissions: This article encourages Parties to cooperate to develop actions to transition to a “low emissions economy”, but provides no firm commitments in this respect.9
Marine Capture Fisheries: This is the longest issue-specific article of the TPP. It covers fisheries management, subsidies, conservation efforts, and combating illegal, unreported and unregulated (IUU) fishing. In addition to the broad commitments to cooperate and develop strong fisheries management systems,10 it contains specific prohibitions relating to subsidies. It provides that no Party shall grant a subsidy for fishing “that negatively affect(s) fish stocks that are in an overfished condition”.11 Subsidy programs that pre-date the ratification of the TPP must be brought into compliance with this Article within three years of the date that it enters into force, and all new subsidies must comply. Parties are required to report every two years on subsidies that the Party grants or maintains to persons engaged in fishing or fishery related activities. Regarding IUU fishing, the TPP states that each Party will take certain measures to combat IUU fishing and deter trade form species harvested through it, such as supporting monitoring, surveillance, and enforcement systems and implementing port measures.
Conservation: This Article requires Parties to adopt, maintain, and implement laws to fulfill their obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, as well as to take action to protect wild fauna and flora that it has determined to be as risk within its territory. This Article also contains broad language to effect cooperation and information sharing among the Parties, for instance to create and participate in law enforcement networks to combat the illegal take or and trade in wild fauna and flora.12
Environmental goods and services are those goods and services which function to prevent, reduce and eliminate pollution or environmental degradation or assist in managing natural resources. They include a wide range of services such as consultancy services, and goods such as renewable energy technologies or specialized air filters. This Article recognizes the importance of environmental goods and services in addressing global environmental challenges and aims to promote trade and investment in this area. To that end, this Article contains a commitment to identifying and addressing non-tariff barriers to environmental goods and services through the Environment Committee.13
The TPP sets up an Environment Committee that will oversee the implementation of Chapter 20, provide reports on its implementation, provide a forum for cooperative action, as well as to act as a mid-level dispute resolution body.14
If the Parties cannot resolve an issue under Chapter 20 through the provided consultation process, and the Environment Committee, the requesting Party may request a panel under Chapter 28 (the general Dispute Settlement process for the TPP).
Where a Panel determines that a party is not in compliance with its obligations under the TPP, that Party shall eliminate that non-conformity.
The TPP has been criticised by environmentalists for not going far enough: it does not mention climate change, has a lack of firm standards, prohibitions, or targets, and it is missing important MEAs. The dispute resolution procedure, modelled on that of the World Trade Organization (WTO) can also be viewed with skepticism as the WTO has a poor track record for handling environmental matters effective through its process. Many of its commitments, such as those related to corporate social responsibility or cooperative measures, are completely voluntary. The few mandatory provisions, such as those related to fishery subsidies, will also be ineffective if not enforced vigorously. It will take some time before the full impact of Chapter 20 is known, to determine the impact of the environmental provisions of the TPP.
10 Fisheries management systems are to be based on the best science available and internationally recognized best practices as reflected in the provisions of several enumerated international instruments, such as the United Nations Law of the Sea and the FAO Code of Conduct for Responsible Fisheries, among others. See Footnote 12 to this Article in Chapter 20.
11 Article 20.16. This Article specifically defines “fishing”, “affect” and “overfished” in several footnotes. “Subsidies” refer to subsidies within the meaning of Article 1.1 of the Agreement on Subsidies and Countervailing Measures that are specific within the meaning of Article 2 of that Agreement.
14 Articles 20.10 and 20.20.