Sustainability

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Sustainability Environmental Impact Assessment
of Trade Negotiations Doha and Beyond

• WTO Public Forum 2006
• What WTO for the XXIst Century?
• 25-25 September 2006
• WTO Building, Geneva, Switzerland

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Sustainability Environmental Impact Assessment
of Trade Negotiations Doha and Beyond
Chair Prof. Marie-Claire Cordonier Segger,
Director, Centre for Intl Sustainable
Development Law (CISDL)Keynote Rupert
Schlegelmilch, Head, European Commission DG
Trade F3 (Sustainable Development)Panellists
Prof. Clive George, Institute for Development
Policy and Management, University of
Manchester Michelle Cooper, First Secretary,
Permanent Mission of Canada to the UN and the
WTO Darlan Fonseca Martí, Counsel, Trade Law,
South Centre Dr. Markus W. Gehring, Lead
Counsel, Trade Investment Competition Law,
CISDL Lecturer in International Law,
University of Cambridge Prof. Gabrielle
Marceau, Conseiller, Cabinet du Directeur
général, WTO Secrétariat University of
Geneva

• WTO Public Forum 2006 What WTO for the XXIst
  Century?
• 25-25 September 2006 - WTO Building, Geneva,
  Switzerland

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CISDL?

• Legal Research Centre Collaborative
  relationships with McGill Law Faculty and
  Cambridge Faculty of Law.
• Mission To promote sustainable societies and the
  protection of ecosystems by advancing the
  understanding, development and implementation of
  international sustainable development law.
• R-SIA Project A team of developed and developing
  country legal scholars researching regulatory
  aspects of impact assessments of regional and
  global trade negotiations, creating
• - legal briefs / web resources,
• - legal research papers, and
• - a proposed best practice methodology /
  instrument for regulatory assessment in IAs .
• www.cisdl.org

Centre for International Sustainable Development
Law
4
Legal Challenges and Proposals for Impact
Assessment of Trade Agreements in the XXIst
Century

Sustainability and Environmental Impact
Assessment of Trade Negotiations Doha and Beyond

• Dr. Markus W. Gehring, LL.M. (Yale)Centre for
  International Sustainable Development Law
• Montreal, Canada / Cambridge, United Kingdom
• www.cisdl.org
• 25-25 September 2006
• WTO Building, Geneva, Switzerland

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• Outline
• Part 1 Stocktaking of Existing National Rules
  on Impact Assessment of Trade Agreements
• 1 a Canadas Environmental Assessments
• 1 b US Environmental Reviews
• 1 c EUs Sustainability Impact Assessments
• Part 2 Proposals for the XXIst Century
• Proposal 1 Regulatory Elements of IAs
• Proposal 2 A Low Impact Model for IAs
• Proposal 3 Developing a Multilateral
  Dimension?
• Part 3 Elements of a Way Forward

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• Part 1 Stocktaking of Existing National Rules on
  Impact Assessment of Trade Agreements
• 1a) Canadas Environmental Assessment of Trade
  Policies
• How to Assess Regulatory Impacts?
• Regulatory effects refer to the likely legal
  and/or policy effects of agreements. (p 4.12)
• Stage 1 Initial EA Regulatory Effects Would
  domestic economic policy changes be required as a
  result of the agreement? If so, what sort of
  changes required? (p 4.13)
• Stage 2 Identification of Impacts / Regulatory
  Effects How is the economic change related to
  any current environmental regulations, standards,
  or voluntary initiatives? Are there current
  international environmental agreements or
  negotiations related to the sector(s)? (p 4.15)
• Draft EA Regulatory Effects How is the economic
  change related to any current environmental
  regulations, standards, or voluntary initiatives?
  Are there current international environmental
  agreements or negotiations related to the
  sector(s) to which Canada is a party? Are there
  issues of public concern regarding government
  policy in the sector? (p 4.31)
• Canadian Handbook for Conducting Environmental
  Assessments of Trade Negotiations (Oct. 2004)

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• 1 Stocktaking of Existing National Rules on
  Assessments
• 1a) Canadas Environmental Assessments
• What are the Limits of Canadian Assessment?
• Analyses only effects on domestic (ie Canadian)
  laws, and international regulatory impacts as
  these affect the Canadian ability to meet treaty
  obligations, or specific project application in
  foreign countries
• Analyses only environmental impacts
• Analyses only potential impact on ability to
  meet international and national legal
  obligations, so does not address impact on use of
  rights, nor constraints/enhancements of
  implementing measures.

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• 1 Stocktaking of Existing National Rules on
  Assessments
• 1b) United States Environmental Reviews
• How to Assess Regulatory Impacts?
• b. Solicitation of Information (1) The scoping
  process shall draw upon the knowledge of any
  agency with relevant expertise in the subject
  matter under consideration, as well as the views
  of Congress, the public, and advisory committees.
  (2) Where matters affecting state, local and
  tribal government regulatory authority may be at
  issue, USTR shall consult with the
  Intergovernmental Policy Advisory Committee
  (IGPAC) and other appropriate sources of
  information.
• 2. Examples of possible regulatory implications
  include impacts on the ability to maintain,
  strengthen and enforce laws, regulations and
  policies on pollution control control of toxic
  and hazardous wastes and materials protection of
  natural resources, wildlife and endangered
  species relevant product standards control and
  regulation of pesticides food safety and the
  publics ability to obtain information regarding
  the environment.
•  I. Regulatory Effects A. Potential positive
  and negative implications of the proposed trade
  agreement for U.S. environmental regulations,
  statutes, and binding obligations such as
  multilateral environmental agreements, as well as
  potential implications for the ability of state,
  local and tribal authorities to regulate with
  respect to environmental matters. B. Potential
  positive and negative implications of the
  proposed trade agreement for environmental policy
  instruments and other environmental commitments.
• Guidelines for Implementation of  Executive Order
  13141 Environmental Review of Trade Agreements

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• 1 Stocktaking of Existing National Rules on
  Assessments
• 1b) United States Environmental Reviews
• What are the Limits of US Assessment?
• Analyses only environmental impacts
• Analyses impacts for both the US and trading
  partners, and international regulatory impacts as
  these affect the US ability to meet treaty
  obligations, but assessment is done for trading
  partners rather than locally owned.
• Analyses only potential impact on ability to
  meet international and national legal
  obligations, so does not address impact on use of
  rights, nor constraints/enhancements of
  implementing measures (eg ERs of Jordan-US FTA,
  Chile-US FTA, US-CAFTA FTA found certain
  reduction of regulatory space but also role for
  enviro chapter to strengthen laws in partner
  countries).

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1 Stocktaking of Existing National Rules on
Assessments

• 1c) What are the Limits of European Union SIAs?
• Analyses environment social development
  aspects SD approach
• Analyses impacts for EU and trading partners
  very global application (but not systematic, eg
  SIA for EU/Arab Gulf countries)
• Engages partner organisations, many of whom have
  capacity to analyse relevant laws
• Handbook for Trade Sustainability Impact
  Assessment appears open to elements of
  regulatory assessment
• Regulatory assessments could be a useful
  additional tool in current SIA toolkits, as there
  is potential to extend from analysis of impacts
  on domestic and treaty obligations, to also take
  into account impacts on domestic and treaty
  rights , and potential constraints on measures to
  implement SD laws.

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Part 2 Proposals for the XXIst Century Proposal
1 - Regulatory Elements of IAs Objective
Regulatory elements of impact assessments have
potential to enable negotiators to identify
potential intersections between new trade
obligations and other international, regional
and domestic treaties / laws. In
addition Regulatory assessments can go beyond
allowing negotiators to deal with intersections,
identifying areas where a trade treaty could
promote SD through active support for other SD
treaty instruments and laws.
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• Proposal 1 - Regulatory Elements of IAs
• 2a) Domestic challenges implementing national SD
  policies and laws related to trade
• Many countries are facing serious challenges in
  enacting effective domestic laws to implement
  international/regional SD and trade obligations
• Many ministries/jurisdictions are involved,
  interests can overlap and even collide
• Need to effectively address complex issues with
  very few resources
• Case Study Implementing Cartagena Biosafety
  Protocol in Africa
• Concerns have been raised by national officials
  in domestic biosafety law-making processes, and
  in trade law-making processes, as to synergies /
  overlaps of obligations / rights / implementing
  measures.
• There is a need for reliable ex ante analysis to
  inform the domestic implementation of
  international/regional agreements to avoid
  potential conflicts and enhance the positive
  synergies that might occur.

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• Proposal 1 - Regulatory Elements of IAs
• 2b) International challenges negotiating
  multilateral treaties related to trade and
  sustainable development
• Many countries face challenges in effectively
  negotiating a complex array of overlapping
  international and regional treaties,
• Many countries seek greater coherence in
  international obligations,
• Need for mechanisms to coordinate between
  different officials with distinct subject-matter
  jurisdictions,
• Need for greater capacity, also analytical and
  informational resources.
• Case Study Intersections in post-Kyoto Protocol
  negotiations and market access provisions of WTO
  Agreements TBT
• Debates in the UNFCCC COP/KP MOP Use of
  economic instruments post-2012
• Debates in WTO and other regional/bi-lateral
  FTAs regarding discrimination based on PPMs,
  standards, etc, for non-parties to MEAs
• Need for ex ante information during the
  negotiation of international/regional agreements
  to avoid potential conflicts and enhance the
  positive synergies that might occur.

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• Proposal 1 - Regulatory Elements of IAs
• Include Regulatory Elements in Impact Assessments
• Increasing technical and legal complexity of
  trade and other SD law requires additional
  information and analysis for more effective trade
  negotiations
• Where present proliferation of international
  commitments leads to intersections of rules
  addressing the same subject matter, assessment
  can help to ensure greater coherence in trade and
  other SD policies.
• Trade policies and laws that foster rather than
  frustrating sustainable development objectives
  are more likely to last.

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• CISDLs R-SIA Research Agenda
• Potential rules for regulatory aspects of IAs
• During negotiations identify and analyse all
  existing national, regional, and international
  regulation that can have intersections with the
  trade negotiation
• Consider potential obligations deriving from
  trade agreements and analyse potential effects
  for obligations, rights, and implementing
  measures of other SD treaties and domestic laws
• Propose enhancement and mitigating options to
  adjust/control these effects.
• Potential outcomes?
• Avoid or resolve conflicts or overlaps between
  economic, social and environmental law and policy
  before they arise
• 2) Support and promote SD objectives of national,
  regional and international trade law.

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Proposal 2 A Low Impact IA

• Challenge
• - In many countries, resources are very limited
• - Basic data, knowledge and capacity are lacking
  
• - For these policy makers, IAs may appears to be
  a luxury project
• How to conduct streamlined ex-ante / ongoing /
  ex-post IAs of trade agreements, taking into
  account existing gaps in
• - information (including basic economic, social
  enviro data)
• - awareness and participation
• - capacity and analysis
• - human and financial resources
• Basically, if we have a Mercedes, a Cadillac and
  a Ford model of Impact Assessments what would be
  the Volkswagen Beetle model
• (or should we say the Smart Car)?

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Proposal 2 A Low Impact Model for IAs

• Key Principles for a Low Impact IA
• Streamlined, based on existing data
• Specifically relevant to agreed SD interests
• Country-driven, focused on essential priorities
  concerns
• Not just simpler, smarter.
• Potential Elements of New Rules for Low Impact
  IA
• Timing (before last round of negotiations in each
  area?)
• Scope of IA (focused on key laws sectors of
  most interest to the country?)
• Models of Economic Effects of Trade (based on
  existing data?)
• Scoping / Assessment of Impacts (only two
  phases?)
• Identification of Environment, Social Development
  and Economic Indicators / Impacts (selected
  variables/indicators only, using multilateral
  sources?)
• Intra-governmental, Public and Private
  Participation (stakeholder-friendly outreach
  materials, capacity-building elements, rules for
  intervenor funding?)
• Mitigation and Enhancement Measures (identify
  low-cost options, capacity-building opportunities
  for negotiators, sources of financing /
  cooperation?)

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• CISDLs R-SIA Research Agenda
• What rules could be useful for a low-impact IA
  process?
• What are the key challenges for countries and
  governments that wish to conduct IAs and cannot,
  and how could these challenges be overcome?
• What are the principles and options for
  low-impact IAs?
• What new rules and tools are needed to put such
  processes into place?
• Outcomes?
• Facilitate the use of IA processes by all WTO
  members.
• 2) Support and promote SD objectives of national,
  regional and international trade law and policy.

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• Proposal 3 Developing a Multilateral Dimension?
• 3a) Integration of IAs into future WTO
  negotiations?
• Not prevented but not yet required by WTO rules
• Processes are easier to install than hard
  standards
• Concrete steps are possible in WTO negotiations
• - DDA Para. 51 type provisions could become
  standard in all trade negotiation mandates.
• - Co-operation with UNEP, UNCTAD UNDP could be
  deepened.
• - CTE and CTD could seek common methodologies.
• - Ongoing further IAs could be facilitated in
  WTO negotiations through increased sharing of
  results among members.
• - Sharing of results cooperative IA ventures
  among members could further strengthen internal
  /external WTO transparency participation.

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• Proposal 3 Developing a Multilateral Dimension?
• 3b) Coordination, Information Sharing Support
  for Impact Assessment through the WTO?
• Allow IA and SD information sharing in TPRM, and
  develop appropriate mechanisms for public
  participation in TPRM.
• Increase information sharing with regards to IAs
  and circulate results among membership.
• Facilitate coordination of Regional Agreement IAs
  and consider facilitating bi-lateral IAs between
  WTO members.
• Consider co-ordination of financing mechanisms
  for IA, such as funds or IA technical support.

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• Proposal 3 Developing a Multilateral Dimension?
• Case Study The GATS Assessment
• Commitment to conduct assessments of trade in
  services For the purposes of establishing
  negotiating guidelines, the Council for Trade
  in Services shall carry out an assessment of
  trade in services in overall terms and on a
  sectoral basis with reference to the objectives
  of this Agreement, including increased
  developing country participation Art. XIX3
  GATS
• 2000 Special Session of the Services Council (and
  2002 Symposium)
• Members decided on an ongoing exercise and
  received various contributions including from
  Thailand, South Africa, China and the USA
• Specific development focus (see also UNCTAD and
  International Trade Centre studies)
• No public participation / no single methodology

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• Part 4 Elements of a Way Forward
• Convert existing EA mechanisms into sustainable
  development IAs.
• Strengthen regulatory elements of IAs.
• Develop and test low impact models for IAs
• Multilaterlise parts of IAs.
• The CISDLs ongoing R-SIA research is
  investigating
• Case studies of existing IAs, with emphasis on
  regulatory elements basics
• Studies on how IAs actually affect national /
  international negotiations laws
• Potential instruments for assessment of
  regulatory aspects of IAs.
• Potential low impact models of IA for low data
  / resource countries
• Potential for cooperation between countries at
  the regional and multilateral levels.
• IA instruments could provide an additional tool
  for trade negotiations, and could help to
  increase coherence in the creation and
  application of international, regional and
  domestic laws for sustainable development
  (including trade agreements).

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• THANK YOU
• Markus Gehring (mgehring_at_cisdl.org)
• Centre for International Sustainable Development
  Law

• Special thanks to
• Prof. Marie-Claire Cordonier Segger and Ms.
  Christine Frison
• Centre for International Sustainable Development
  Law
• www.cisdl.org