Climate change is considered to be one of the most serious (‘the most serious’?) of all the threats that our planet is facing currently. Research shows that in its potential impact, climate change poses a graver problem than weapons of mass destruction, cyber war, terrorism, armed conflict and every other peril. One of the main reasons that climate change figures strongly is due to its interrelatedness with other problems, including the adverse effects of international trade on the environment. It has been argued that although beneficial and indispensable economically, trade can exacerbate pollution and other forms of environmental degradation, particularly carbon dioxide (CO₂) emissions. An unprecedented expansion of international trade since the 1950s has significantly impacted upon the environment. Trade is predicted to continue to be one of the major factors driving economic growth in the future. In parallel, it is expected that carbon dioxide emissions will continue to accelerate with growth indefinitely and that the very fact of increased trade, in and of itself, will lead directly to more global greenhouse gas (GHG) emissions. As free trade agreements (FTAs) are being increasingly negotiated throughout the world,the questions of whether and how these agreements can be used to support a successful transition to a low emission and resilient economy is becoming more and more significant. By considering the effects of climate change on the Great Barrier Reef in Australia as an example, this article pinpoints (albeit tangentially) some of the trade-climate-change-related concerns in the context of the recently signed Comprehensive and Progressive Agreement for the Transpacific Partnership (CPTPP).
The preliminary question that begs an answer is why to utilise FTAs in tackling climate change problems. Research reveals that in terms of general sources concerning the relationship between trade and climate change there is a common notion to be found that the existing trade arrangements, weather within or outside the purview of the WTO, do not incorporate sufficient climate change protection measures (citation needed). Yet, trade and environmental sustainability are indivisible. The pressing issue of climate change warrants close attention in FTAs, especially in the so-called ‘new generation’ plurilateral FTAs, such as the CPTTP, due to multiple factors, including the size of their membership and their potential to influence future trade deals. In light of the present crisis within the WTO and States’ consequent increasing reliance on FTAs, harmonising the existing FTAs with the current and future trade issues in regards to climate change is of great significance. This is especially true with respect to the requirements emanating from the Paris Agreement, in accordance with which States will need to actively invest in and support industries such as the renewable energy industry in order to achieve the set goals of keeping the world’s average temperature increase to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, and to concomitantly honour individual, nationally determined contributions (NDCs). Australia’s 2020 target, for example, is to reduce its GHG emissions to around 402-403 million tonnes of CO₂, that is, to reduce GHG emissions by 26-28% below 2005 level by 2030. It is of paramount importance that future, as well as existing FTAs, including the CPTPP, incorporate this aspect. But what exactly is the CPTPP?
The CPTPP has been described as a high quality 21stcentury mega-free trade agreement. The negotiations, which commenced in March 2010, culminated, on 4 February 2016, in signing the Trade Pacific Partnership(TPP), as this agreement was then called, by the following 12 States: Singapore, New Zealand, Brunei, Chile, the United States, Australia, Peru, Vietnam, Japan, Canada, Mexico and Malaysia. On 23 January 2017, US President Donald Trump withdrew the US from the TPP, claiming that this was a bad trade deal and that the withdrawal was ‘a great thing for the American worker’. This withdrawal posed a big challenge given the US’ significance in the world of trade generally. Additionally, this represented an obstacle at the time due to the wording of the provisions concerning the TPP’s entry into force. Notwithstanding this challenge, the remaining 11 States continued to work on the TPP, which was now referred to as TPP-11, and on 21 February 2018, released the final text of a revised CPTPP, which was subsequently signed in Santiago, Chile (on 8 March 2018), and is expected to enter into force soon. The text of the TPP, signed in February 2016, became part of the CPTPP.
As the look at its signatories indicates, the CPTPP not only seeks to connect a large number of contracting state parties in terms of geographical location but also in terms of varied stages of economic development. Importantly, the CPTPP makes room for enlargement as well, as it allows for other States to join it in the future, which is predicted to amplify its benefits.
The scope of the CPTPP is equally impressive. This agreement has been lauded as an agreement ‘which has a remarkable economic potential’ and which, as described by the Australian Department of Foreign Affairs and Trade, goes well beyond trade, with rules governing investment, intellectual property, as well as public health and a range of other matters, including the environment. The environment is in fact given a prominent place in the CPTPP. Of its 30 chapters, one entire chapter — Chapter 20 — is dedicated to the environment.
This chapter is comprehensive, containing23 articles which deal with a range of important questions, such as protection of the ozone layer, protection of the marine environment from ship pollution, marine capture fisheries, trade and biodiversity, and conservation and trade. Notwithstanding the importance of its scope, Chapter 20, together with other provisions of the CPTPP, has been the subject of heavy criticism — relating to, inter alia, secrecy of its negotiations; privileged position of corporations; largely weak and unenforceable language; and its silence on climate change.
With regard to climate change, there is generally a concern that as States take action to protect climate, conflicts between trade rules and climate goals will escalate. What is a worry in relation to the CPTPP in particular is that this agreement as a whole is stunted by the omission of any express reference to climate change even though this is what scientists are arguing the most severe environmental threat facing humanity. Not only that the Agreement fails to acknowledge the burgeoning global threat, but it also neglects the United Nations Framework Convention on Climate Change(UNFCCC), a treaty to which all CPTPP signatories are party as well, and the Paris Agreement, also ratified by all CPTPP signatories.
Curiously, global warming was included in the TPP draft, but later omitted. This exclusion from the final iteration of the TPP (and subsequently from the CPTPP) has been seen to be tremendously controversial to date. The omission of climate change is surprising given the potential for increased trade to aggravate climate-disruptive emissions. As it has been observed by some scholars, by such exclusion trade and climate change have been permitted to function as two solitudes, each pretending that the other failed to exist and in turn ignoring the effect one would have on the other. While it is true that it is within States’ prerogative to choose to deal with issues concerning trade and other issues separately, it needs to be kept in mind that trade is indivisible from many issues, especially climate change. Accordingly, pledges and promises to partake in serious direct action policies to climate change in general are highly relevant to the context of trade as well because, as noted, climate change is very much trade issue.
As far as the Australian environment is concerned, its vulnerability to the ongoing repercussions that climate change is exhibiting is evident in a number of areas. The effects of climate change are particularly being observed throughout the Great Barrier Reef. It has been argued that the number one danger that is affecting the survivability of the Reef is in fact climate change — evidenced through rising sea levels and temperature, ocean acidification and increased frequency of severe weather events. Deep concerns have been expressed, particularly by environmental activists, vis-à-vis utilising the Great Barrier Reef as a trade route and a proposthe proposed mega mining projects, as well as with regard to gas fracturing in its vicinity. Such concerns are not surprising given the Great Barrier Reef’s special status.
The Great Barrier Reef — the world’s most extensive coral reef ecosystem, stretching over an area of 348,700km² — was inscribed on the World Heritage List in 1981, as one of the humankind’s most outstanding natural properties, sheltering,inter alia, 411 types of hard corals and one third of the world’s soft corals, and thousands of other species, survival some of which is threatened. Alarmingly, this part of the World’s Heritage has recently suffered severe bleaching of the corals because of an extraordinary 0.4°C increase of water temperature. It is feared that as immense arrays of organisms rely and live off these corals, they, too, are at a high risk of being directly and indirectly affected by changes within the environmental conditions that are at the hand of climate change.
Being World Heritage listed, this site of outstanding beauty and of exceptional importance in terms of biological diversity belongs not only to Australians, but also to all humankind. Consequently, Australia and the rest of the international community have the responsibility to protect the Great Barrier Reef. This is not only moral obligation, but also a duty under international law. One way how to fulfil this duty is through close consideration of the impact of trade on climate change. As trade and climate change are greatly intertwined, consistent with the UNFCCC’s and Paris Agreement’smain objective to stabilise GHG emissions, efforts must be made when creating treaties as to how they can be best negotiated in order to set limits on such emissions. Because we, humans, have degraded the environment to an alarming degree, we must act urgently and holistically if we are to fulfil our obligation towards future generations to transfer them the Earth in a shape that is fit for living. Because we, humans, are also ‘capable of greatness’, this mission should be feasible.
* This blog contribution is based on a journal article I am working on at the time of this writing and two papers presented first at the ‘The Just Transition towards a Low-Carbon Economy: Integrating Climate, Energy and Environmental Justice’, Edinburgh , UK, March 2018, and the ILA 2018 Biennial Conference, ‘Developing International Law in Challenging Times’, Sydney, Australia, August 2018.
According to the WTO’s data, as of 1 May 2018, 287 FTAs, were in force. Some States are party to a number of FTAs. The US, for example, has 14 FTAs in effect; Canada’s list of notified FTAs in force comprises 13 FTAs; Australia presently has twelve FTAs in force and a number of FTAs under negotiations.
See eg, Jean-Frédéric Morin, ‘The Untapped Potential of Preferential Trade Agreements for Climate Governance’ (2018) 27(3)Environmental Politics541; Rafael Leal-Arcas, Climate Change and International Trade(Edward Elgar, Cheltenham, UK and Northampton, MA, USA, 2013);Trade Justice Movement (TJM) reports on climate change and trade: Take Back the Power –Energy,Transition and the International Trade Investment Regime; Can Trade and Investment Policy Support Ambitious Climate Action?<www.tjm.org.uk/trade-issues/climate-change>;Matthew Rimmer, ‘Greenwashing the Trans-Pacific Partnership: Fossil Fuels, the Environment and Climate Change’ (2016) 14 Santa Clara Journal of International Law488;Natassia Curiak, ‘Climate Change and the Trading System: Implications of the Trans-Pacific Partnership’ (2016) 30(4) The International Trade Journal345;Nilmim Silva-Send, ‘Climate Change Dispute at the World Trade Organization: National Energy Policies and International Trade Liability’ (2012-2013) 4 San Diego Journal of Climate and Energy Law195; William Krist, ‘Chapter 7: Uneasy Neighbours: Trade and the Environment’ <www.wilsoncenter.org/chapter7-uneasy-neighbors-trade-and-the-environment>;Christian Häberli, ‘WTO Rules Can Prevent Climate Change Mitigation for Agriculture’ Society of International Economic Law (SIEL) Fifth Biennial Global Conference, Working Paper No. 2016/06 <https://papers.ssrn.com/siel13/papers.cfm?abstract_id_2800011>; Satoshi Yoshida, ‘Climate Change, Trade and Emissions Leakage: Trade Measures and Climate Agreements’ Centre for International Environment and Resource Policy –Sustainable Development Diplomacy and Governance Program (SDG) The Fletcher School, Tufts University <https://sites.tyfts.edu/cierp/files/2014/02/SDG_Yoshida_MA2014_9doc.pdf>;Matthew C. Porterfield,Kevin P. Gallagher,Judith C. Schechter, ‘Assessing the Climate Impact of US Trade Agreements’ (2017) 7(1)Michigan Journal of Environmental and Administrative Law51; Aadihya Mattoo and Arvind Subramanian, ‘Four Changes to Trade Rules to Facilitate Climate Change Action’ Washington DC: Centre for Global Development (CGD) Policy Paper 021 (May 2013) <www.cgdev.org/doc/full_text/policyPapers/3120362/four-changes-trade-climate-change.html>.
The CPTPP will enter into force 60 days after ratification by 50% of the signatories, or after six signatories have ratified it. As of 26 October 2018, the following States have ratified this agreement: Mexico (26 June 2018); Japan (6 July 2018); Singapore (19 July 2018); and New Zealand (25 October 2018).