1. In addition to their core trade liberalizing function, PTAs serve as instruments of regional integration, vehicles for strategic market access and security, and as tactical tools to influence multilateral negotiations. Recent trends in PTA structure reflect an increase in cross-regional (particularly North-South) and bilateral free trade areas (as opposed to regional customs unions). Many of these recent agreements mirror the WTO’s existing framework policies, while also increasingly providing reciprocal preferential treatment.
2. Our list of PTAs relies on the collection of the Design of Trade Agreements (DESTA) project (Dür et al 2014). This list of PTAs includes free trade agreements, customs unions, and partial scope agreements. Some of them are in force, but others were never ratified. The DESTA list is more comprehensive than the WTO list, as it includes agreements that were concluded by countries that are not WTO members as well as agreements that WTO members have failed to notify the WTO secretariat of.
3. These tariffs are called “production process method,” or PPM, tariffs. For more on PPMs, see Charnovitz (2002a).
4. See Bernasconi-Osterwalder et al. (2006) for a detailed history of how these environmental provisions have been interpreted by the WTO’s dispute-settlement body.
5. Several European agreements have a low number of environmental provisions. This is because the European Economic Community concluded several PTAs prior to the 1990s, when trade agreements typically included few environmental provisions. If one looks only at PTAs concluded in the last 15 years, the European Union and the United States have a similar median number of environmental provisions per PTA.
6. The TPP was signed by 12 countries, including the United States, in February 2016. The remaining 11 CPTPP countries are New Zealand, Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, Peru, Singapore, and Vietnam.
7. See Steinberg (2002) for a summary of how other regional trade organizations have addressed environmental issues.
8. Interpretations of Article XX were similar, if not more narrow, under the 1947 GATT. For a description of the 1947 GATT decisions and an analysis of political factors influencing them, see Kelemen (2001).
9. Only final adopted decision is reflected in table 1.1. Article XX disputes heard under the GATT prior to the establishment of the WTO are not reflected. All summary data in table 1.1 is drawn from WTO Secretariat (2019 and 2002).
10. Canada-Renewable Energy, Canada-FIT, China Wind Power Equipment, US-Countervailing Measures (China), India-Solar Cells, EU-Biodiesel, EU-Renewable Energy Generation Sector, and US-Renewable Energy.
11. These negotiations built on similar negotiations under the Asia Pacific Economic Cooperation, or APEC, which identified a list of 54 environmental goods on which tariffs would be reduced by 2015.
12. We unpack this particular question in greater depth in chapter 3.
13. Technically, the Doha issues are discussed in the CTE in special session (CTESS), which was established to negotiate these issues.
14. See Kent (2014) and Shaffer (2002) for more comprehensive assessments of the CTE’s work and the literature assessing it.
15. Although see Morin and Gauquelin (2016) for a discussion of how Latin American countries have been surprisingly influential in securing the inclusion of biodiversity provisions in US PTAs to which they are party.
16. This collection of PTAs was borrowed from the DESTA project (Dür, Baccini, and Elsig 2014).
17. Officially titled the Dominican Republic–Central America–United States Free Trade Agreement.
1. It should also be noted that Bourgeois and colleagues’ phases refer to US trade policy broadly, not specifically to environmental linkages.
2. See chapter 1 for a discussion of TREND.
3. The history of Article XX dispute settlement is more complex than we can cover here. For a detailed interpretation of the first 20 reports interpreting Article XX, see Moran (2017).
4. The US-Vietnam agreement was also negotiated during this time. It is an anomaly among US PTAs in that it contains very few environmental provisions. This exception resulted from the fact that the agreement is not a full-fledged free trade agreement. It is modest in all trade dimensions. It was concluded by the Clinton administration for political reasons, before the wave of PTAs concluded under the Bush administration.
5. Fast-track authority, also known as Trade Promotion Authority, expired on July 1, 2007. However, the agreements with Peru (2006), Colombia (2006), Korea (2007), and Panama (2007) were signed in time to be considered under fast-track authority as well. Because these agreements contain important new innovations, they are discussed in more detail in the third phase of US trade-environment politics below.
6. The final agreement stipulates that the provisions must also be applied to Colombia.
7. It should be noted that there were deep divisions between Latin American countries on these issues, and some Andean civil society groups regard the inclusion of biodiversity and traditional knowledge provisions in a PTA as an attempt at privatizing resources that have historically belonged to the Andean commons and are in contravention to Andean Community law. See, e.g., Toro Perez (2009).
1. Chapter 2 fleshes out the specifics of the Forest Annex in great detail.
2. Peruvian government officials contest this characterization, highlighting that the Annex also reflected their interests in forest conservation.
1. See Esty (1994) for a comprehensive overview of these positions.
2. For a discussion on environmentalists’ criticisms of free trade, see Daly (1993). On the issue of the regulatory capacity of states involved in trade negotiations, see Hudec (1992).
3. European PTAs are more likely to refer to climate change conventions, including the UNFCCC, the Kyoto Protocol, and the Paris Agreement. For their part, Latin American countries refer frequently to the Convention on Biological Diversity in their trade agreements. Yet a greater share of US PTAs refer to CITES and the Montreal Protocol than European PTAs refer to the UNFCCC and Latin American PTAs refer to the Convention on Biological Diversity.
4. It is important to look at date of agreement rather than entry into force, as parties may wish or be required to begin implementation of multilateral environmental agreement provisions prior to (or as a condition of) entry into force of the PTA.
5. It should be noted that the US-Peru provisions related to CITES almost exclusively focus on improving Peru’s performance in this regard. We therefore only look at implementation improvements in Peru.
6. The literature tends to describe the latter as an “enforcement”-based model. As both models describe enforcement approaches, we find this distinction confusing and therefore refer to this model as a “legalistic” one.
7. As we argue below, this is beginning to shift in the US context.
8. The same analysis could be used to compare compliance strength across PTAs.
9. Author interview with US government official, January 2010.
10. Conversion factors are used to convert specimens (i.e., sawn wood) into number of individual trees, and have been highly contentious in CITES negotiations because some see them as a way to obscure actual species take.
11. Under CITES, range states must publish export quotas for Appendix-II listed species, which should be based on scientific evidence confirming that quota does not threaten the survival of the species.
12. At time of writing, USTR has not yet formally evaluated Peru’s progress on the action plan.
13. Inside US Trade, “USTR Comes under Fire for Weak Oversight of Peru FTA Logging Rules,” June 12, 2015.
14. The Environmental Investigation Agency has been heavily involved in monitoring Peru’s implementation of the environment chapter, and very critical of Peru’s efforts. (See, for example, EIA 2015.)
15. Author interview with NGO representative, January 2010.
16. This excludes a massive spike in 2014, when the quota rose to 811,143 m3. We have excluded this year from the graph because we think it may be a data entry error.
17. All data is collected from the CITES Trade Database and the CITES’s Secretariat’s reporting of export quotas at www.cites.org.
18. Author interview with CITES secretariat staff, speaking in his/her personal capacity, February 2010.
1. Building on our definition of legalistic enforcement mechanisms in chapter 4, this definition is adapted from the NAAEC Article 45.1(b) (NAAEC 1993) and TPP Article 20.3.5 (TPP 2015).
2. Officially titled the Dominican Republic–Central America–United States Free Trade Agreement.
3. See also chapter 2.
4. Legalization is characterized by the degree of obligation, delegation, and precision. See chapter 4 for a discussion of legalization and how it is measured.
5. The various types of clauses on public participation and effective enforcement are documented in appendix 1.
6. Officially titled the Agreement Among the Governments of Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, and the United States of America on Environmental Cooperation.
7. See chapter 3 for a detailed discussion of all the new environmental provisions contained in this agreement.
8. See chapter 4 for detailed discussion of the Forest Annex and in particular its links to multilateral environmental agreements.
9. See RD Será Sede de la Séptima Reunión del Consejo de Asuntos Ambientales del DR-CAFTA, El Nacional (Dominican Republic), May 6, 2013.
10. See chapter 4 on this point.
1. See chapter 1 for a description of the TREND database.
2. Paragraph 31 of the Doha Declaration outlines the WTO’s negotiating mandate on environmental issues during the contemporary negotiating round. Although it has made some incremental progress on issues related to environmental goods and services, the other topics have seen little progress.
3. Milewicz et al. (2016) studied closed triads of countries, which signed agreements that included non-trade issues. They note that most of the agreements were initiated by the United States and conclude that the United States plays a central role in the diffusion of non-trade issues in PTAs.
4. See Trade and Environment Policy Advisory Committee reports on US FTAs.
5. Although the United States withdrew from the TPP in 2017, it was an active participant in the negotiations and agreed to the final text of the TPP under the Obama administration in 2016.
1. For a list and analysis of the 22 changes made, see New Zealand Ministry of Foreign Affairs and Trade, n.d.
2. Exec. Order. No. 13773, 82 Fed. Reg. 10691 (February 9, 2017), Available online at: https://www.federalregister.gov/documents/2017/02/14/2017-03113/enforcing-federal-law-with-respect-to-transnational-criminal-organizations-and-preventing. Accessed August 27, 2018.
3. GATT Article XX, which provides protection for environmental policies that would otherwise conflict with WTO rules, includes exemptions for the protection of human health.