Environmental Provisions in American and EU Free Trade Agreements: A Preliminary Comparison and Research Agenda

• Author: Elisa Morgera,Sikina Jinnah
• Published date: 01 November 2013
• DOI: http://doi.org/10.1111/reel.12042
• Date: 01 November 2013

Environmental Provisions in American and EU Free

Trade Agreements: A Preliminary Comparison and

Research Agenda

Sikina Jinnah and Elisa Morgera

Environmental provisions are included into bilateral

trade agreements in increasingly creative ways. This

article offers an initial exploration of the policy and

legal dimensions of environmental provisions included

in recent bilateral trade agreements concluded by the

United States and by the European Union. Based pri-

marily on a coding analysis of the environmental

provisions contained in American and EU trade agree-

ments since the mid-2000s, the article illuminates the

variable characteristics of these environmental provi-

sions, including the different approaches of the United

States and the EU (punitive versus cooperative) to

their implementation. The article pays particular

attention to the unprecedented links that these treaties

create with multilateral environmental agreements. It

concludes with a discussion of avenues for future

research, including approaches that are comparative

and interdisciplinary in nature.

INTRODUCTION

In comparison to other areas of international law, inter-

national environmental law may be considered tooth-

less. For example, unlike international trade law, which

can leverage sanctions for enforcement, enforcement

power is generally weak in international environmental

law. The latter rather secures compliance by leveraging

reputational and normative force,1and relying heavily

on nongovernmental organizations (NGOs) for moni-

toring and ‘naming and shaming’.2With over 1,000

international environmental agreements currently in

force,3there is an impressive level of international

cooperation on these issues. Yet, global environmental

problems continue to worsen.4As a result, those

seeking to achieve more robust environmental goals

have long attempted to link environmental objectives to

other areas of international law where the sticks are

bigger and the carrots are tastier.

Despite a strong scholarly focus on trade-environment

linkages in the context of the World Trade Organization

(WTO), the growing importance of these linkages is

currently nowhere better illustrated than in recent

bilateral free trade agreements (FTAs). Indeed, due in

part to stalled negotiations within the WTO, bilateral

trade policy and law have grown dramatically in the last

decade, with at least 546 such agreements negotiated to

date, 5many of which contain environmental provi-

sions.6In particular, most FTAs concluded by the

United States and the European Union (EU) contain

environmental provisions that have become increas-

ingly far reaching over time.7

The first American FTA with Israel8in 1985 did not

contain any environmental provisions. In 1994, the

United States, Mexico and Canada incorporated inno-

vative, but weak, environmental provisions into the

North American Free Trade Agreement (NAFTA) and

its North American Agreement on Environmental

1E. Brown Weiss and H. Karan Jacobson, Strengthening Compliance

with International Environmental Accords (MIT Press, 2000), at 2–4.

2K. Raustiala, ‘NGOs and International Environmental Institutions’,

41:4 International Studies Quarterly (1997), 719, at 719–720; F.

Yamin, ‘NGOs and International Environmental Law: A Critical Evalu-

ation of Their Roles and Responsibilities’, 10:2 Review of European

Community and International Environmental Law (2001), 149, at 160.

3R.B. Mitchell, ‘International Environmental Agreements: A Survey of

Their Features, Formation and Effects’, 28 Annual Review of Envi-

ronment and Resources (2003), 429, at 430.

4The Worldwatch Institute, The State of the World 2013: Is

Sustainability Still Possible? (Island Press, 2013), at 4–5.

5WTO, ‘Regional Trade Agreements’ (2013), found at: <http://www

.wto.org/english/tratop_e/region_e/region_e.htm>.

6For a more detailed discussion on the legal implications of bilateral

and regional trade agreements on WTO law see, e.g., J. Bhagwati,

Termites in the Trading System: How Preferential Agreements

Undermine Free Trade (Oxford University Press, 2008); S. Powell

and T. Low, ‘Is the WTO Quietly Fading Away? The New Regionalism

and Global Trade Rules’, 9:1 Georgetown Journal of Law and Public

Policy (2011), 261.

7S. Jinnah and J. Kennedy, ‘Environmental Provisions in US Trade

Agreements: A New Era of Trade-Environment Politics’, Whitehead

Journal of Diplomacy and International Relations (2011), 19, at 20;G.

Marín-Durán and E. Morgera, Environmental Integration in the EU’s

External Relations: Beyond Multilateral Dimensions (Hart, 2012).

8Agreement on the Establishment of a Free Trade Area between the

Government of Israel and the Government of the United States of

America (Washington, DC, 22 April 1985; in force 1 September

1985).

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Review of European Community & International Environmental Law

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Cooperation (the NAFTA ‘side agreement’).9Most

recently, the 2009 US-Peru Trade Promotion Agree-

ment (TPA)10 not only required the development of new

domestic environmental law and institutions, but also

leveraged trade sanctions to enforce the implementa-

tion of a multilateral environmental agreement

(MEA).11

A comparable pattern is visible with EU FTAs. Early

agreements concluded in the late 1990s limit their ref-

erences to general environmental clauses, which either

identify environmental issues for cooperation, or

mandate the incorporation of environmental concerns

into other cooperation areas (such as fisheries, trans-

port and agriculture).12 In addition, these early agree-

ments only linked trade and the environment through

a general exception clause, allowing parties to

pursue environmental protection objectives through

trade measures.13 Yet, a change in approach is clearly

observed in later agreements concluded since the mid-

2000s, which notably include whole chapters devoted

to trade and sustainable development and a focus on

domestic environmental performance of MEAs.14 The

EU considers that ‘the first completed agreement in a

new generation of Free Trade Agreements launched by

the EU in 2007’15 was the FTA concluded with South

Korea in 2010.16 All subsequent FTAs negotiated by the

EU have followed the same approach,17 which – inter-

estingly for present purposes – was inspired by the

United States.18

Against this background, this article’s primary objec-

tive is to identify and compare the environmental pro-

visions contained in American and EU FTAs, and

explain how these provisions have changed over time.

Secondarily, the article seeks to better understand the

implications of these environmental provisions for

environmental governance through MEAs. Finally, the

article aims to sketch a future research agenda on this

topic by identifying several key research questions that

would help us to better understand and ultimately

design environmental linkages in FTAs.

The subsequent two sections position this study in the

broader literature on trade-environment politics and

law. The central part of the article compares the envi-

ronmental provisions in American and EU FTAs, focus-

ing in particular on those provisions that have

implications for MEAs. We then present the results of a

coding analysis19 demonstrating the various types of

linkages that the United States and the EU have created

with trading partners. We conclude by outlining key

unanswered questions and directions for future

research.

9North American Free Trade Agreement (San Antonio, TX, 17

December 1992; in force 1 January 1994) (‘NAFTA’).

10 For a discussion of the difference in nomenclature between FTAs

and TPAs, see J.M. Smith, D.T. Shedd and B.J. Murrill, Why Certain

Trade Agreements are Approved as Congressional-Executive Agree-

ments rather than Treaties (Congressional Research Services,

2013).

11 S. Jinnah, ‘Strategic Linkages: The Evolving Role of Trade Agree-

ments in Global Environmental Governance’, 20:2 Journal of Envi-

ronment and Development (2011), 191, at 208; United States-Peru

Trade Promotion Agreement (Washington, DC, 12 April 2006; in force

1 February 2009) (‘US-Peru TPA’).

12 The EU agreements are too numerous to be summarized here, but

have been exhaustively analyzed and compared in G. Marín-Durán

and E. Morgera, n. 7 above, at Chapter 2. Some of the most inter-

esting agreements from an environmental perspective will be relied

upon just for the purposes of contrasting them with the ‘new genera-

tion’ of EU FTAs. These earlier agreements include: the Agreement

Establishing an Association between the European Community and

Its Member States, of the One Part, and the Republic of Chile, on the

Other Part, [2002] OJ L352/3 (‘EU-Chile AA’); and the Agreement on

Trade, Development and Cooperation between the European Com-

munity and Its Member States, of the One Part, and the Republic of

South Africa, of the Other Part, [1999] OJ L311/3 (‘EU-South Africa

TDCA’).

13 EU-Chile AA, n. 12 above, Article 91.1; and EU-South Africa TDCA,

n. 12 above, Article 27; see G. Marín-Durán and E. Morgera, n. 7

above, at 138–139. See also, generally, G. Marín-Durán, ‘The Role of

the EU in Shaping the Trade and Environment Regulatory Nexus:

Multilateral and Regional Approaches’, in: B. Van Vooren, S.

Blockmans and J. Wouters (eds.), The EU’s Role in Global Gover-

nance: The Legal Dimension (Oxford University Press, 2013), 224.

14 See G. Marín-Durán and E. Morgera, n. 7 above, at 135–136,

138–141; R. Zvelc, ‘Environmental Integration in EU Trade Policy:

The Generalised System of Preferences, Trade Sustainability Impact

Assessments and Free Trade Agreements’, in: E. Morgera (ed.), The

External Environmental Policy of the European Union (Cambridge

University Press, 2012), 174, at 193–194.

15 See <http://ec.europa.eu/trade/policy/countries-and-regions/

countries/south-korea/>. However, R. Zvelc, n. 14 above, at 195,

argues that the f‌irst ‘new-generation’ FTA is actually the Economic

Partnership Agreement concluded with CARIFORUM countries in

2008: Economic Partnership Agreement between the CARIFORUM

States, of the One Part, and the European Community and Its

Member States, of the Other, [2008] OJ L289/3 (‘EU-CARIFORUM

EPA’).

16 Free Trade Agreement between the EU and Its Member States, of

the One Part, and the Republic of Korea, of the Other Part, [2011] OJ

L127/6 (‘EU-Korea FTA’). This agreement entered into force in July

2011.

17 For an update as of 1 August 2013 of all EU FTA agreements

concluded or under negotiations, see: <http://trade.ec.europa.eu/

doclib/docs/2012/november/tradoc_150129.pdf>.

18 See R. Zvelc, n. 14 above, at 195.

19 To understand and compare how the United States and the EU

incorporate environmental provisions into bilateral and regional FTAs,

we coded all FTAs by hand, searching for provisions that related to

environmental matters. Each provision was assigned a code accord-

ing to the environmental function it performed (e.g., listing covered

agreements, enhancing environmental cooperation). We excluded

bilateral investment treaties from the study because they contain a

different universe of environmental provisions that are specif‌ically

related to private sector operations in trading partner nations. In terms

of case selection, all American FTAs that were concluded since the

mid-2000s and all the EU post-Global Europe agreements concluded

until 2011 and currently in operation were included in the analysis

as they are the f‌irst to contain entire chapters devoted to the

environment/sustainable development and are the most relevant from

an MEA perspective.

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