There are several ways in which RTIAs might relate to MEAs. One is a clarification of the legal relationship between MEAs and the agreement in the event of possible conflict. This may take the form of spelling out specifically the relationship between the agreement and certain MEAs.
Parties may also affirm their commitments to implement all the MEAs to which they are party. This formulation is not an actual commitment, but rather is an affirmation of a commitment made elsewhere. As such, it is a signalling feature, and would not be covered by any dispute settlement or consultation provisions.
Parties may also commit to policies and measures that support the objectives of MEAs, even where those are not specific obligations found in those MEAs. Typically, these will be trade-related commitments and can be helpful in furthering the MEA’s objectives.
Finally, parties may commit to respecting their MEA commitments via their domestic law and policies. While such a commitment does not create any obligations over and above those already contained in the MEAs, it is a strong signal, and may even be covered under the RTIA’s provisions for enforcement or consultation.
Option 1:Clarification of the legal relationship between the agreement and MEAs.
If specific MEAs are listed, it is important to leave flexibility to include new MEAs, and to envision amendments to the listed MEAs.
Such interpretations are useful in clarifying that the drafters do not intend the RTIA to modify their existing international trade-related obligations under MEAs.
Examples
“Nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Party of measures to implement the agreements referred to in this Article, provided that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.” (EU – Central America Association Agreement, Article 287.5)
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Examples
“In the event of any inconsistency between this Agreement and the specific trade obligations set out in: (… CITES, the Montreal Protocol, or) the agreements set out in Annex 104.1, such obligations shall prevail to the extent of the inconsistency, provided that where a Party has a choice among equally effective and reasonably available means of complying with such obligations, the Party chooses the alternative that is the least inconsistent with the other provisions of this Agreement.” (NAFTA Article 104)
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Examples
“In the event of any inconsistency between a Party’s obligations under this Agreement and a covered agreement [one of a list of MEAs specified in an annex], the Party shall seek to balance its obligations under both agreements, but this shall not preclude the Party from taking a particular measure to comply with its obligations under the covered agreement, provided that the primary purpose of the measure is not to impose a disguised restriction on trade.” (US – Korea FTA, Article 20.10(3))
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Option 2:Affirmation of parties’ commitments to implement specified MEAs
This is not a commitment in and of itself; rather, it is an affirmation of existing commitments. As such, its usefulness is as a signal of the parties’ commitments to environmental protection.
Examples
“Each Party reaffirms its commitment to effectively implement in its laws and practices, in its whole territory, the Multilateral Environmental Agreements to which it is a party.” (CETA Article 24.4(2))
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Option 3:Commitment to undertake policies that support the objectives of specified MEAs. Typically these will be trade-related commitments.
These may go beyond the commitments found in MEAs, and can be of value in supporting the environmental objectives of those MEAs.
Examples
TPP’s Article 20.17 commits the parties to a number of measures that further the aims of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) in combatting the illegal take of, and illegal trade in, wild flora and fauna. Several of these measures are not required by CITES itself.
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Option 4:Commitment to implement domestic laws and policies in support of objectives of MEAs
This is a strong commitment to be in compliance with the obligations of an MEA. It creates no additional obligations over and above those found in the MEA, but it may be subject to the RTIAs enforcement or consultation provisions.
Examples
“… each Party shall adopt, maintain and implement laws, regulations and any other measures to fulfill its obligations under the … CITES.” (TPP article 20.17(2))
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Examples
“A Party shall adopt, maintain, and implement laws, regulations, and all other measures to fulfill its obligations under the multilateral environmental agreements listed in Annex [XX] (‘covered agreements’).” (US – Korea FTA, Article 20.2)
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Examples
“The Parties also undertake, to the extent they have not yet done so, to ratify and effectively implement, at the latest by the date of entry into force of this Agreement, the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.” (EU – Central America Association Agreement, Article 287.4)
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