In most governmental systems, the ministry responsible for negotiating the RTIA will be given a mandate by the relevant organ of government. In order for the negotiators to draft an agreement that respects the environment and promotes a green economy, they will need instructions to that effect built into their mandate. Such instructions may come in ad hoc form, specific to each RTIA, or they may exist as a standing order.
Option 1:Sustainability elements in the negotiating mandate issued for each new RTIA
Ad hoc instructions allow for the mandate to easily adapt over time as appropriate, in response to new events, priorities.
The European Commission’s mandate for negotiating the TTIP contains the following elements:
- The preamble should refer to “[t]he commitment of the Parties to sustainable development and the contribution of international trade to sustainable development in its economic, social and environmental dimensions, including economic development, full and productive employment and decent work for all as well as the protection and preservation of the environment and natural resources.”
- As a general objective, “[t]he Agreement should recognise that sustainable development is an overarching objective of the Parties and that they will aim at ensuring and facilitating respect of international environmental and labour agreements and standards while promoting high levels of protection for the environment, labour and consumers, consistent with the EU acquis and Member States’ legislation. The Agreement should recognise that the Parties will not encourage trade or foreign direct investment by lowering domestic environmental, labour or occupational health and safety legislation and standards, or by relaxing core labour standards or policies and legislation aimed at protecting and promoting cultural diversity.”
- “Regulatory compatibility shall be without prejudice to the right to regulate in accordance with the level of health, safety, consumer, labour and environmental protection and cultural diversity that each side deems appropriate, or otherwise meeting legitimate regulatory objectives, …”
- There is a separate section on trade and sustainable development that outlines specifically what is expected in terms of environmental and labour outcomes, including environmental goods and services, green procurement, implementation of international agreements, enforcement of domestic environment and labour laws including civil society participation, and a mandated sustainability impact assessment.
- In the investment section, the mandate says: “Consideration should be given to the possibility of creating an appellate mechanism applicable to investor-to-state dispute settlement under the Agreement, and to the appropriate relationship between ISDS and domestic remedies.”
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Option 2:Sustainability elements in the negotiating mandate as a standing order
A standing order makes it clear and predictable that environmental considerations will be part of any negotiating mandate.
The New Zealand Cabinet in 2001 issued a standing mandate to the government to integrate trade and environment policies in all international negotiations: the Framework for Integrating Environmental Standards and Trade Agreements.
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