The primary audience for this toolkit is negotiators of regional trade and investment agreements (RTIAs)1. Those from an environmental background will have a mandate to help ensure environmental protection, and may not have in-depth expertise in how trade policy can affect that goal. Likewise, trade policy negotiators may be charged with ensuring that the RTIA has strong environmental protections, but may not have a depth of expertise on environmental matters or how they are affected by trade law and policy. This toolkit aims to help both types of policy makers, as well as those that formulate their respective mandates in the negotiations. It should also serve a broader audience with an interest in how trade and the green economy interact, and a desire to assess the environmental performance of specific RTIAs: non-governmental organizations, academics, private sector actors, inter-governmental organizations, etc.
The toolkit runs through the major areas of any RTIA that will have environmental implications, whether intentionally or incidentally, and tries to identify what could be considered best practices. In many cases, best practices are impossible to define, since the “best” options will depend on the nationally enunciated priorities, and those will vary from state to state. As such, in some cases the discussion is an assessment of the various options available, their strengths and weaknesses, with no judgment as to which is most appropriate.
The toolkit features over 200 text examples drawn from over 90 different source agreements. Most are from RTIAs in force. A few are from agreements that have been finalized but are not yet ratified by all the signatories. Even fewer are from countries’ model agreements; some of these latter examples may not yet be found in agreements actually in force.
Section 1 sets the context by asking why we should bother to consider green economy issues in the context of trade and investment agreements. Section 2 then broaches the fundamental question of how to house environmental considerations in an agreement, describing the various options for environmental chapters or side agreements, and noting the elements and institutions of each that would distinguish them as effective. Section 3 looks at environmental provisions—those elements of the text that are deliberately included because of their environmental impacts—and surveys the rich experience of existing RTIAs, highlighting lessons and examples of note. Section 4 looks at three areas of trade provisions that, while they are not environmental in intent, are potentially environmental in their impacts: intellectual property rights, services and government procurement. Section 5 looks at investment provisions, both within trade agreements and within other international investment agreements, such as bilateral investment treaties. Finally, Section 6 turns to questions of process: how should the negotiations be conducted, and what sorts of procedures should support them?
The toolkit was co-developed and is maintained by the United Nations Environment Programme (UNEP) and the International Institute for Sustainable Development (IISD), and was funded by UNEP. Anja von Moltke served as project manager for UNEP, and was assisted by John Maughan and Ying Zhang. Aaron Cosbey served as project manager for IISD, and as lead author, assisted by Nathalie Bernasconi-Osterwalder and Joe Zhang. Background papers on IPRs and services were contributed by (respectively) Carlos Correa and Ellen Gould. Thomas Cottier, Maria Cristina Hernandez, Harro van Asselt and Elisabeth Tuerk served as peer reviewers. The authors are grateful to the participants of a Geneva workshop in 2015 that drew experts from around the world to give their input on the toolkit’s content. Final content is, of course, the responsibility of UNEP and IISD alone. Katherine Clark of IISD managed the process of production, assisted by Matt Rock, Lisa Muirhead and Damon Vis-Dunbar. Web design and architecture were provided by Zeitguys Inc.
The term RTIA is used in this toolkit to include: bilateral and regional trade agreements (with and without investment provisions) and bilateral and regional investment agreements.