Elizabeth Maruma Mrema 1 and Tomkeen Onyambu Mobegi 2
8 Trade measures in MEAs
This part will consider trade measures in MEAs. The MEAs considered were either:
1) negotiated and adopted before the Uruguay Round of trade negotiations;
2) negotiated and adopted during the period when trade-policy negotiations were ongoing under the Uruguay Round; or
3) negotiated and adopted after the adoption of the Marrakesh Agreement and the establishment of the World Trade Organization.
162 Naomi Roht-Arriaza, ‘Trade and Environment: An Environmentalist View’, 86 Proceedings of the Annual Meeting (American Society of International Law) (1992) 241-246 at 243-244.
163 James Headen Pfitzer and Sheila Sabune, ‘Burden of Proof in WTO Dispute Settlement: Contemplating Preponderance of the Evidence’ (International Centre for Trade and Sustainable Development (ICTSD), 2009), available at <https://www.ictsd.org/sites/default/files/downloads/2012/02/burden-of-proof-in-wto-dispute-settlement.pdf> (visited 14 August 2018) at 44.
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There are, currently in force, more than 700 international environmental agreements governing various aspects of the environment; and several more are being negotiat-ed at the bilateral, regional, and global levels.164 The International Environmental Agreements (IEA) Database Project estimates that as of 2017, there are currently over 1,300 MEAs and over 250 other bilateral and multilateral environmental agree-ments between governagree-ments and international organizations or non-state actors.165 About 18 of these MEAs include provisions to control trade in order to prevent damage to the environment:
1) Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973);
2) Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) (1982);166
3) International Convention for the Conservation of Atlantic Tunas (ICCAT) (1966);167
4) United Nations Fish Stocks Agreement (UNFSA) (1995);168
5) FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Ille-gal, Unreported and Unregulated Fishing (PSMA) (2009);169
6) International Tropical Timber Agreement (ITTA) (2006);170 7) International Plant Protection Convention (IPPC) (1951);171 8) Convention on Biological Diversity (CBD) (1992);
9) Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Bio-logical Diversity (2010);
10) Cartagena Protocol on Biosafety to the Convention on Biological Diversity (2000);
164 Mrema and Mobegi, ‘Comparative Review of’, supra note 48, at 58.
165 The International Environmental Agreements (IEA) Database Project., available at <https://iea.uoregon.
edu/> (visited 30 August 2018).
166 Convention on Conservation of Antarctic Marine Living Resources, Canberra, 20 May 1980, in force 7 April 1982, 19 International Legal Materials (1980) 841, <http://www.ccamlr.org>.
167 International Convention for the Conservation of Atlantic Tunas, Rio de Janeiro, 14 May 1966, in force 21 March 1969; <http://www.iccat.int/en/>.
168 Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995, in force 11 December 2001, 34 International Legal Materials (1995) 1542, <http://www.un.org/Depts/los/convention_agreements/texts/fish_stocks_agree-ment/CONF164_37.htm> (visited 24 August 2018).
169 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unre-gulated Fishing, Rome, 22 November 2009, not yet in force; available at <http://www.fao.org/fileadmin/
user_upload/legal/docs/037t-e.pdf> (visited 24 August 2018).
170 International Tropical Timber Agreement, Geneva, 27 January 2006, in force 7 December 2011, availab-le at <http://www.itto.int/direct/topics/topics_pdf_download/topics_id=3363&no=1&disp=inline> (vi-sited 24 August 2018).
171 International Plant Protection Convention, Rome, 6 December 1951, into force 3 April 1952, 150 Unit-ed Nations Treaty Series 67.
123 Elizabeth Maruma Mrema and Tomkeen Onyambu Mobegi 11) Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress to
the Cartagena Protocol on Biosafety (2010);172
12) Vienna Convention on Substances that Deplete the Ozone Layer (1985) and the Montreal Protocol (1987);
13) United Nations Framework Convention on Climate Change (UNFCCC) (1992), the Kyoto Protocol (1992) and the Paris Agreement (2015);
14) Basel Convention on the Control of Transboundary Movements of Hazard-ous Wastes and their Disposal (1989);
15) Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (1991)
16) Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (1998);
17) Stockholm Convention on Persistent Organic Pollutants (2001); and 18) Minamata Convention on Mercury (2013).
Duncan Brack and Kevin Gray have presented three broad sets of reasons why trade restrictions have been incorporated in MEAs:
1) To provide a means of monitoring and controlling trade in products where the uncontrolled trade would lead or contribute to environmental damage.
This may extend to a complete exclusion of particular products from interna-tional trade (CITES, Basel Convention, Rotterdam Convention, Cartagena Protocol, Montreal Protocol, and the CCAMLR);
2) To provide a means of complying with the MEA’s requirements (Montreal Protocol, Kyoto Protocol);
3) To provide a means of enforcing the MEA, by forbidding trade with non-par-ties or non-complying parnon-par-ties (CITES, International Commission for the Conservation of Atlantic Tunas (ICCAT), CCAMLR, Montreal Protocol, Basel Convention, Kyoto Protocol.173
In addition, the United Nations Conference on Trade and Development (UNC-TAD) Trade and Environment Review has outlines four clusters of trade obligations under MEAs:
1) Trade measures explicitly provided for and mandatory under MEAs.
2) Trade measures neither explicitly provided for nor mandatory under the MEA itself, but consequential to the ‘obligation de résultat’ of the MEA. This cat-egory covers cases where an MEA identifies a list of potential policies and measures that Parties could implement to meet their obligations.
172 Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety, Nagoya, 15 October 2010, <http://bch.cbd.int/protocol/supplementary/>.
173 Brack and Gray, ‘Multilateral Environmental Agreements’, supra note 80, at 7-11.
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3) Trade measures not identified in the MEA, which has only an ‘obligation de résultat’, but that Parties could decide to implement in order to comply with their obligations. In contrast to the previous category, the MEA does not list potential policies and measures, so countries have greater scope regarding the exact nature of the measures they might decide to deploy to reach the objec-tives of the MEA.
4) Trade measures not required in the MEA, but which Parties can decide to imple-ment if the MEA contains general provisions stating that Parties can adopt strin-gent measures in accordance with international law. In some cases, the MEA may explicitly recognize the right of Members to apply specific trade measures.174 Most of the global south countries are parties to more than one of the major global environmental agreements hereinabove. While it is not fully settled that the forego-ing reasons for havforego-ing trade restrictions in MEAs and/or the clusters of trade obli-gations will completely benefit the environment from a general MEA perspective, it cannot be disputed that if the objective and other benefits of an MEA are accepted as valid, then the control of trade of the production and consumption of certain items and/or environmental resources, should be uncontroversial.175
Duncan Brack and Kevin Gray have concluded that
in general, trade measures can be an appropriate policy measure to use….in-ter alia: (a) when the inuse….in-ternational community agrees to collectively tackle and manage international trade as a part of the environmental problem; (b) when trade controls are required to make regulatory systems comprehensive in their coverage; (c) to discourage free-riding, which can often be a barrier to effective international co-operation; and (d) to ensure compliance with the MEA.
And that:
1) Trade measures in MEAs have become more common, and seem likely to continue to be so, as a logical reaction to the transboundary nature of envi-ronmental issues and patterns of economic activity. The increasing attention being paid to the problem of illegal trade provides another reason for employ-ing trade measures; and
2) In many instances, trade measures are the only realistic enforcement measure available to MEAs. They can bear a real cost (particularly where trade bans are used against non-parties or noncomplying parties), and should not in general be adopted in isolation from other compliance instruments, such as financial and capacity-building assistance. Nevertheless, trade measures in MEAs can be an effective tool and should always be considered when the MEA is designed.176
174 UNCTAD, ‘Trade and Environment Review’ (2003), available at <http://unctad.org/en/Docs/ditct-ed20034_en.pdf> (visited 14 August 2018) at 7
175 Brack and Gray, ‘Multilateral Environmental Agreements’, supra note 80, at 8-18.
176 Ibid. at 17-18.
125 Elizabeth Maruma Mrema and Tomkeen Onyambu Mobegi