What Does TPP Really Say About Trade & the Environment?
By: Steve Craven
Environmental issues were among the most contentious – and the focus of much disinformation – during negotiation of the Trans Pacific Partnership. For example, just a day or so before the summer 2015 negotiating round began on Maui, local media in Hawaii featured a provocative statement by the Hawaii head of a major U.S. environmental organization, who charged that the TPP environment chapter was a disaster for the environment created by the big-business interests who controlled the negotiators. But wait! He went on to say that TPP was designed to hurt indigenous peoples. Of course, he had never seen the environment chapter and made copious misassumptions about how trade negotiations work. I wish I had seen his reaction the following day when the national office of his own organization, which had seen the latest draft, declared that it wasn’t bad. And I’ll never fathom the indigenous peoples angle since TPP doesn’t address this in the slightest. Of course, his press statement was never withdrawn that I saw, so the misinformation stood in our Hawaii community.
Environmental issues were rarely the subject of trade negotiations until this century. Article XX of the General Agreement on Tariffs & Trade (GATT), still the founding document of trade law, is quite clear that nothing will “prevent the adoption or enforcement … of measures … necessary to protect, animal or plant life or health”. Written in 1947, the GATT must be one of the first-ever references to the environment in international law. From then until the 2000s, the emphasis in trade was to make sure that environmental restrictions on trade were applied consistently to products of all countries and were not merely a hidden excuse for protectionism.
As environmental awareness rose, public pressure grew in the United States to treat environment issues more aggressively in trade agreements. The first practical impact was that liberal Democrats in the U.S. Congress prompted President Obama to re-open the free trade talks with Panama, Colombia and South Korea to insert language on the environment (as well as labor rights and investment issues). The TPP talks continued that and, if implemented by the U.S. Canada and Mexico, will effectively amend NAFTA to include stronger environmental rules.
So what are the new rules? TPP’s Chapter 20 creates enforceable commitments by the TPP countries to address wildlife trade, enforcement of national environment laws, implementation of other multinational environment agreements, elimination of environmentally-destructive subsidies, and free trade in environmentally-beneficial goods, services and technologies. The chapter promotes close cooperation to address transnational threats and to police crimes such as the endangered species trade, illegal logging and illegal fishing (a huge problem here in the Pacific). There will be help for poorer TPP members to build their capacity to administer environmental laws and conservation programs. The environment chapter requires open publication of laws and regulations, and promotes public participation in national policymaking and in TPP’s implementation of its environmental rules.
Chapter 20 clearly subjects environmental disputes to TPP’s dispute settlement mechanism (which we will look at in a later post). I suspect that some of the early disputes may involve Japan’s distant water fleets and TPP members such as New Zealand that seek sustainable fishing. It will be interesting to watch what happens, too, as countries use TPP’s stronger dispute settlement clauses to enforce multilateral environment agreements such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),the Montreal Protocol on Ozone Depleting Substances, and the International Convention for the Prevention of Pollution from Ships (MARPOL). I expect TPP will make these agreements and others more effective among the TPP members that have signed them.
There is a lot more in Chapter 20, which you can read at medium.com/the-trans-pacific-partnership. Suffice it to say that the naysayers have been pretty quiet since the TPP text was released in November. In fact, I saw an op-ed piece in USA Today, November 12, 2015, that stated TPP “…demonstrates how America’s trade policy can deliver not only economic benefits but also provide incentives to protect endangered wildlife, conserve tropical forests and restore ocean fisheries.” The authors were Bruce Babbitt and Ken Salazar, Secretaries of the Interior for Presidents Clinton and Obama. Their conclusion on TPP’s environment chapter? That TPP is “… the greenest trade deal ever”.
Steve Craven advises companies on international business strategies and how to overcome problems encountered in foreign markets. He is a former consultant, American diplomat and a U.S. trade negotiator. He served as a Career Diplomat and Senior Foreign Service Officer, member of the U.S. Commercial Service, U.S. Department of Commerce. Mr. Craven also previously served as Chair of the Hawaii Pacific Export Council.