Mega-Trade Agreements: Could They Become the Foremost Vehicle to Unify Global and Regional Environmental Law?

By Radley, Maxwell C. | Albany Law Review, Winter 2017 | Go to article overview

Mega-Trade Agreements: Could They Become the Foremost Vehicle to Unify Global and Regional Environmental Law?


Radley, Maxwell C., Albany Law Review


I. INTRODUCTION

In this note, I will discuss how mega-trade agreements, like the all-but-defeated Trans-Pacific Partnership ("TPP") and Regional Comprehensive Economic Partnership ("RCEP"), present an opportunity to create binding international environmental law and discuss the evolution of environmental protection provisions in trade deals over time. I will first offer an analysis of the ramifications of developing international environmental law that has been taking shape in the international community and the creation of international customs and norms--primarily through the means of Convention of International Trade in Endangered Species of Wild Fauna and Flora ("CITES"). Second, I will provide an analysis of some of the environmental declarations and goals within the World Trade Organization ("WTO"). Thirdly, I will discuss how regional cooperation has been currently undertaken, providing a look at the North American Free Trade Agreement ("NAFTA") and analyzing its effectiveness. Lastly, I will discuss the TPP and RCEP and current provisions in those agreements, if any, that concern environmental protection and how a concerted effort could be put forth to combat climate change in a particularly environmentally sensitive region.

The recent international interest in pursuing mega-trade agreements like the TPP and the RCEP offer participating states a unique opportunity to enumerate and bring to force environmental protections in a more comprehensive and orchestrated manner. International norms are the first steps in the creation of international law, and international environmental law is currently seen following this trend, (1) thereby taking the next step to institutionalize environmental law regimes, which currently have limited effect. (2) The regional trade agreements that are currently in place typically have environmental protection provisions incorporated in them. For example, both the Association of Southeast Asian Nations ("ASEAN") and the NAFTA have forms or mechanisms of environmental regulation to provide for concerted environmental efforts. (3) As we will see, the provisions included in these agreements have varying enforceability, and they provide an ability to coordinate their efforts. These provisions provide a more comprehensive and effective approach, rather than the piecemeal approach that is being undertaken in some regions (including the United States as a natural function of federalism) (4) and ensures the undertaking of environmental action, as these agreements are quasi-binding or aspirational with regard to environmental regulations. (5)

Through the examples given by the TPP and RCEP, I aim to show that mega-trade agreements place member states in an awesome and unique position to be able to address climate change and protect their environment, while also increasing their country's prosperity. The crux of my argument is that the binding nature or the availability to provide technical assistance to these mega-trade agreements will provide a forum that will allow international environmental law to gain traction and guide arbiters to heed domestic and regional environmental concerns. Additionally, we will need to consider states' acquiescence in relinquishing some sovereignty to agree to the terms of the agreement. This is no small task, particularly in developing states, because they do not have the standard of living that provides their constituents the ability to focus on protecting the environment. (6)

As mentioned previously, we are taking a piecemeal approach globally, which leaves much to be desired when trying to effectuate progress towards sustaining the environment and combating climate change. (7) This derives from the fact that there is a multitude of ways in which environmental provisions are currently being enforced in bilateral treaties. (8) A 2011 report by the Organization for Economic Co-operation and Development ("OECD") identified the mechanisms that countries use in bilateral treaties, which include:

1. …

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