[CTC] TPP Env Chapter Reportedly Falls Short of Bush-Era Requirements & Fast Track Negotiating Objectives

[Arthur Stamoulis]

TPP Enviro Text To Incorporate CITES, Reference Other MEA Obligations
Posted: October 22, 2015

Statements by Trans-Pacific Partnership (TPP) countries since the deal was reached on Oct. 5 indicate that the environment chapter will contain obligations related to three of the seven multilateral environmental agreements (MEAs) set forth by congressional Democrats as a minimum standard for inclusion in the final deal, but that only one of these agreements will be fully enforceable under TPP's dispute settlement mechanism.

Specifically, these statements make clear that the TPP environment chapter will include an obligation for all parties to uphold their commitments under the Convention on Illegal Trade in Endangered Species of Wild Flora and Fauna (CITES), which generally requires countries to ban trade in specific endangered species.

They also suggest that the environment chapter will include obligations similar to those contained in the Montreal Protocol on protection of the ozone layer, and the Convention on the Prevention of Pollution from Ships (MARPOL) -- without specifically subjecting these MEAs to the TPP dispute settlement mechanism.

Finally, the TPP environment chapter will contain a general obligation for countries to reaffirm their commitments to implementing other MEAs to which they are parties, without specifically making these enforceable under the TPP, countries have signaled.

This architecture would mean TPP falls short of the standard established in the May 10, 2007 agreement between House Democrats and the George W. Bush administration, which was that future free trade agreements would contain a commitment for to countries to adopt, maintain, and implement laws and regulations that fulfill their obligations under any of seven specific MEAs to which they are a party. The May 10 language also subjected this commitment to the regular dispute settlement mechanism of the FTA.

The missing MEAs in TPP are the Ramsar Convention on Wetlands and Waterfowl; the Convention on the Conservation of Antarctic Marine Living Resources; the International Convention for the Regulation of Whaling; and the Inter-American Tropical Tuna Convention.

The three MEAs whose commitments will be referenced in TPP are the only ones out of those seven that all TPP countries have ratified.
On CITES, a joint summary of the deal by all 12 TPP countries states that the environment chapter contains a commitment for parties "to fulfill their obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and to take measures to combat and cooperate to prevent trade in wild fauna and flora that has been taken illegally." This commitment is described the same way in U.S. and Canadian government fact sheets on the environment chapter.

However, the U.S. fact sheet suggests a broader coverage of MEAs, saying the TPP "adds teeth to the enforcement of major multilateral environmental agreements such as CITES.”

The joint summary does not specifically refer to the Montreal Protocol or MARPOL, but says parties have committed in the environment chapter to "protect the marine environment from ship pollution and to protect the ozone layer from ozone depleting substances.”

By contrast, the U.S. and Canadian fact sheets contain references these two MEAs by name. The Canadian fact sheet says the TPP environment chapter "includes commitments related to" the Montreal Protocol and MARPOL.

The U.S. fact sheet says the environment chapter requires TPP to "[p]rotect the marine environment from ship pollution, including by implementing their obligations under MARPOL" and "[p]rotect the ozone layer by taking measures to control the production and consumption of, and trade in, ozone depleting substances, including by implementing their obligations under the Montreal Protocol.”

Environmental sources skeptical of TPP said the absence of the whaling convention would be especially notable, since Japan is a signatory and continues to face criticism that it is engaging in illegal whaling.

Beyond the MEAs, the environment chapter as described by TPP countries contains commitments related to conservation issues, including fisheries subsidies, shark finning, and trade in illegally obtained plants and wildlife -- but with varying degrees of strength.
On fisheries subsidies, the environment chapter prohibits "some of the most harmful fisheries subsidies that negatively affect overfished fish stocks, and that support illegal, unreported, or unregulated fishing," according to the joint summary.

The language as described in the fact sheet suggests that TPP countries have settled on a broader scope of subsidies that will be prohibited than was contemplated at an earlier stage of the negotiations, which is viewed by environmental groups as a victory.

Specifically, a compromise text proposed by Canada that was leaked in January 2014 contained language that would have only banned subsidies "that target fishing of fish stocks that are in an overfished condition" or vessels known to have engaged in illegal, unreported or unregulated (IUU) fishing activities. The U.S. however, appeared to push for a broader scope in the negotiations.

One environmental advocate said the language in the joint summary was an improvement from the January 2014 language. According to this source, the joint summary's description shows that TPP countries responded to criticism that use of the word "target" would constitute too narrow of a scope. For this reason, some environmental groups are satisfied with the fisheries subsidies language, since it is the first time binding rules on fisheries subsidies have been included in an FTA.

The World Wildlife Fund (WWF), for example, lauded the deal's inclusion of fisheries and wildlife disciplines in an Oct. 5 press release, while still saying TPP countries must "go beyond good words and intentions" and implement the agreement effectively. But WWF did not explicitly say whether it would support the deal.

The conservation group Oceana, which previously criticized the "targeted" language on fisheries subsidies as too narrow, declined to comment on the deal reached in Atlanta, noting that the full text has not been made public.

Some environmental advocates took issue with indications that TPP will not contain binding language requiring countries to combat the practice of sharkfinning. The joint summary and the U.S. fact sheet both say TPP countries have committed to promote conservation of important marine species, including sharks, but stop short of referencing a binding commitment for countries to curb the trade of shark fins.
Separately, the Canadian fact sheet said the deal contains "provisions that recognize the importance of addressing climate change," although the joint summary and U.S. fact sheet contained no such reference.

The U.S. fact sheet says the environment chapter requires TPP countries to "[p]romote cooperative efforts to address issues such as energy efficiency; development of cost-effective, low-emissions technologies and alternative, clean and renewable energy sources; deforestation and forest degradation; and resilient development." The joint summary says parties will cooperate to "transition to low-emissions and resilient economies.”

One environmental source posited that, because of the lack of binding disciplines on some MEAs, the environment chapter could fall short of the principal negotiating objective on labor and environment outlined in the 2015 fast-track law.

That objective states that parties to FTAs with the U.S. should adopt and maintain measures its obligations under the seven May 10 MEAs, or any other MEAs the U.S. wishes to add for consideration.

Nineteen House Democrats who voted for the fast-track bill, led by Rep. Earl Blumenauer (D-OR), in a July 2015 letter to USTR Michael Froman laid out a number of demands on environmental issues including conservation, MEAs, and climate change.

The letter noted that their vote for fast-track did not necessarily indicate support for TPP, and that they were "concerned that the TPP would fail [their] scrutiny if it does not incorporate the standards set in the May 10th agreement … with respect to the environment chapter." However, the lawmakers signaled some openness to an environment chapter that contains non-binding language on some issues.

"Aspirational language is necessary in some instances, but their use does not guarantee that specific actions will be taken to meet those corresponding objectives," the letter said. Blumenauer's office declined to comment on the outcome of the TPP environment negotiations.
 
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