Sustainability & Environmental Impact Assessment of Trade Negotiations: Doha and Beyond

1. Sustainability & Environmental Impact Assessment of Trade Negotiations: Doha and Beyond WTO Public Forum 2006 “What WTO for the XXIst Century?” 25-25 September 2006 WTO Building, Geneva, Switzerland

2. Sustainability & Environmental Impact Assessment of Trade Negotiations: Doha and Beyond Chair: Prof. Marie-Claire Cordonier Segger, Director, Centre for Int’l Sustainable Development Law (CISDL)Keynote: Rupert Schlegelmilch, Head, European Commission DG Trade F3 (Sustainable Development)Panellists:* Prof. Clive George, Institute for Development Policy and Management, University of Manchester* Michelle Cooper, First Secretary, Permanent Mission of Canada to the UN and the WTO* Darlan Fonseca Martí, Counsel, Trade Law, South Centre * Dr. Markus W. Gehring, Lead Counsel, Trade Investment & Competition Law, CISDL & Lecturer in International Law, University of Cambridge *Prof. Gabrielle Marceau,Conseiller, Cabinet du Directeur général, WTO Secrétariat & University of Geneva WTO Public Forum 2006 “What WTO for the XXIst Century?” 25-25 September 2006 - WTO Building, Geneva, Switzerland

3. CISDL? • Legal Research Centre: Collaborative relationships with McGill Law Faculty and Cambridge Faculty of Law. • Mission: To promote sustainable societies and the protection of ecosystems by advancing the understanding, development and implementation of international sustainable development law. • R-SIA Project: A team of developed and developing country legal scholars researching regulatory aspects of impact assessments of regional and global trade negotiations, creating: • - legal briefs / web resources, • - legal research papers, and • - a proposed ‘best practice’ methodology / instrument for regulatory assessment in IAs . • www.cisdl.org Centre for International Sustainable Development Law:

4. Sustainability and Environmental Impact Assessment of Trade Negotiations: Doha and Beyond Legal Challenges and Proposals for Impact Assessment of Trade Agreements in the XXIst Century Dr. Markus W. Gehring, LL.M. (Yale)Centre for International Sustainable Development Law Montreal, Canada / Cambridge, United Kingdom www.cisdl.org 25-25 September 2006 WTO Building, Geneva, Switzerland

5. Outline Part 1: Stocktaking of Existing National Rules on Impact Assessment of Trade Agreements • 1 a: Canada’s Environmental Assessments • 1 b: US’ Environmental Reviews • 1 c: EU’s Sustainability Impact Assessments Part 2: Proposals for the XXIst Century Proposal 1 – Regulatory Elements of IAs Proposal 2 – A ‘Low Impact’ Model for IAs Proposal 3 – Developing a Multilateral Dimension? Part 3: Elements of aWay Forward

6. Part 1: Stocktaking of Existing National Rules on Impact Assessment of Trade Agreements 1a) Canada’s Environmental Assessment of Trade Policies How to Assess Regulatory Impacts? Regulatory effects refer to the likely legal and/or policy effects of agreements. (p 4.12) • Stage 1 Initial EA Regulatory Effects: Would domestic economic policy changes be required as a result of the agreement? If so, what sort of changes required? (p 4.13) • Stage 2 Identification of Impacts / Regulatory Effects: How is the economic change related to any current environmental regulations, standards, or voluntary initiatives? Are there current international environmental agreements or negotiations related to the sector(s)? (p 4.15) • Draft EA Regulatory Effects: How is the economic change related to any current environmental regulations, standards, or voluntary initiatives? Are there current international environmental agreements or negotiations related to the sector(s) to which Canada is a party? Are there issues of public concern regarding government policy in the sector? (p 4.31) Canadian Handbook for Conducting Environmental Assessments of Trade Negotiations (Oct. 2004)

7. 1: Stocktaking of Existing National Rules on Assessments 1a) Canada’s Environmental Assessments What are the Limits of CanadianAssessment? • Analyses only effects on domestic (ie: Canadian) laws,and international regulatory impacts as these affect the Canadian ability to meet treaty obligations, or specific project application in foreign countries; • Analyses only environmental impacts; • Analyses only potential impact on ability to meet international and national legal obligations, so does not address impact on use ofrights, nor constraints/enhancements of implementing measures.

8. 1: Stocktaking of Existing National Rules on Assessments 1b) United States’ Environmental Reviews How to Assess Regulatory Impacts? • “b. Solicitation of Information: (1) The scoping process shall draw upon the knowledge of any agency with relevant expertise in the subject matter under consideration, as well as the views of Congress, the public, and advisory committees. (2) Where matters affecting state, local and tribal government regulatory authority may be at issue, USTR shall consult with the Intergovernmental Policy Advisory Committee (IGPAC) and other appropriate sources of information.” • “2. Examples of possible regulatory implications include impacts on the ability to maintain, strengthen and enforce laws, regulations and policies on pollution control; control of toxic and hazardous wastes and materials; protection of natural resources, wildlife and endangered species; relevant product standards; control and regulation of pesticides; food safety; and the public’s ability to obtain information regarding the environment.” •  “I. Regulatory Effects: A. Potential positive and negative implications of the proposed trade agreement for U.S. environmental regulations, statutes, and binding obligations such as multilateral environmental agreements, as well as potential implications for the ability of state, local and tribal authorities to regulate with respect to environmental matters. B. Potential positive and negative implications of the proposed trade agreement for environmental policy instruments and other environmental commitments.” Guidelines for Implementation of  Executive Order 13141: Environmental Review of Trade Agreements

9. 1: Stocktaking of Existing National Rules on Assessments 1b)United States’ Environmental Reviews What are the Limits of USAssessment? • Analyses only environmental impacts; • Analyses impacts for both the US and trading partners, and international regulatory impacts as these affect the US ability to meet treaty obligations, but assessment is done for trading partners rather than locally owned. • Analyses only potential impact on ability to meet international and national legal obligations, so does not address impact on use ofrights, nor constraints/enhancements of implementing measures(eg: ERs of Jordan-US FTA, Chile-US FTA, US-CAFTA FTA found certain reduction of regulatory space but also role for enviro chapter to strengthen laws in partner countries).

10. 1:Stocktaking of Existing National Rules on Assessments 1c) What are the Limits of European Union SIAs? • Analyses environment + social + development aspects = SD approach; • Analyses impacts for EU and trading partners = very global application (but not systematic, eg: SIA for EU/Arab Gulf countries); • Engages partner organisations, many of whom have capacity to analyse relevant laws; • ‘Handbook for Trade Sustainability Impact Assessment’ appears open to elements of regulatory assessment; • Regulatory assessments could be a useful additional tool in current SIA toolkits, as there is potential to extend from analysis of impacts on domestic and treaty obligations, to also take into account impacts on domestic and treaty rights , and potential constraints on measures to implement SD laws.

11. Part 2: Proposals for the XXIst Century Proposal 1 - Regulatory Elements of IAs Objective: Regulatory elements of impact assessments have potential to enable negotiators to identify potential intersections between new trade obligations and other international, regional and domestic treaties / laws. In addition: Regulatory assessments can go beyond allowing negotiators to deal with intersections, identifying areas where a trade treaty could promote SD through active support for other SD treaty instruments and laws.

12. Proposal 1 - Regulatory Elements of IAs • 2a) Domestic challenges implementing national SD policies and laws related to trade • Many countries are facing serious challenges in enacting effective domestic laws to implement international/regionalSD and trade obligations • Many ministries/jurisdictions are involved, interests can overlap and even collide • Need to effectively address complex issues with very few resources • Case Study: Implementing Cartagena BiosafetyProtocol in Africa • Concerns have been raised by national officials in domestic biosafety law-making processes, and in trade law-making processes, as to synergies / overlaps of obligations / rights / implementing measures. • There is a need for reliable ex ante analysis to inform the domestic implementation of international/regional agreements to avoid potential conflicts and enhance the positive synergies that might occur.

13. Proposal 1 - Regulatory Elements of IAs • 2b) International challenges negotiating multilateral treaties related to trade and sustainable development • Many countries face challenges in effectively negotiating a complex array of overlapping international and regional treaties, • Many countries seek greater coherence in international obligations, • Need for mechanisms to coordinate between different officials with distinct subject-matter jurisdictions, • Need for greater capacity, also analytical and informational resources. • Case Study: Intersections in post-Kyoto Protocol negotiations and market access provisions of WTO Agreements & TBT • Debates in the UNFCCC COP/KP MOP: Use of economic instruments post-2012 • Debates in WTO and other regional/bi-lateral FTAs regarding discrimination based on PPMs, standards, etc, for non-parties to MEAs • Need for ex ante information during the negotiation of international/regional agreements to avoid potential conflicts and enhance the positive synergies that might occur.

14. Proposal 1 - Regulatory Elements of IAs Include Regulatory Elements in Impact Assessments • Increasing technical and legal complexity of trade and other SD law requires additional information and analysis for more effective trade negotiations • Where present proliferation of international commitments leads to intersections of rules addressing the same subject matter, assessment can help to ensure greater coherence in trade and other SD policies. • Trade policies and laws that foster rather than frustrating sustainable development objectives are more likely to last.

15. CISDL’s R-SIA Research Agenda • Potential rules for regulatory aspects of IAs • During negotiations: identify and analyse all existing national, regional, and international regulation that can have intersections with the trade negotiation; • Consider potential obligations deriving from trade agreements and analyse potential effects for obligations, rights, and implementing measures of other SD treaties and domestic laws; • Propose enhancement and mitigating options to adjust/control these effects. • Potential outcomes? • Avoid or resolve conflicts or overlaps between economic, social and environmental law and policy before they arise; • 2) Support and promote SD objectives of national, regional and international trade law.

16. Proposal 2 – A ‘Low Impact’ IA • Challenge: - In many countries, resources are very limited - Basic data, knowledge and capacity are lacking - For these policy makers, IAs may appears to be a ‘luxury project’… • How to conduct streamlined ex-ante / ongoing / ex-post IAs of trade agreements, taking into account existing gaps in: - information (including basic economic, social & enviro data) - awareness and participation - capacity and analysis - human and financial resources Basically, if we have a Mercedes, a Cadillac and a Ford model of Impact Assessments… what would be the ‘Volkswagen Beetle’ model (or should we say – the ‘Smart Car’)?

17. Proposal 2 – A ‘Low Impact’ Model for IAs Key Principles for a ‘Low Impact’ IA: • Streamlined, based on existing data • Specifically relevant to agreed SD interests • Country-driven, focused on essential priorities & concerns • Not just simpler, smarter. Potential Elements of New Rules for ‘Low Impact’ IA • Timing (before last round of negotiations in each area?) • Scope of IA (focused on key laws & sectors of most interest to the country?) • Models of Economic Effects of Trade (based on existing data?) • Scoping / Assessment of Impacts (only two phases?) • Identification of Environment, Social Development and Economic Indicators / Impacts (selected variables/indicators only, using multilateral sources?) • Intra-governmental, Public and Private Participation (stakeholder-friendly outreach materials, capacity-building elements, rules for intervenor funding?) • Mitigation and Enhancement Measures (identify low-cost options, capacity-building opportunities for negotiators, sources of financing / cooperation?)

18. CISDL’s R-SIA Research Agenda • What rules could be useful for a ‘low-impact’ IA process? • What are the key challenges for countries and governments that wish to conduct IAs and cannot, and how could these challenges be overcome? • What are the principles and options for ‘low-impact’ IAs? • What new rules and tools are needed to put such processes into place? • Outcomes? • Facilitate the use of IA processes by all WTO members. • 2) Support and promote SD objectives of national, regional and international trade law and policy.

19. Proposal 3 – Developing a Multilateral Dimension? 3a) Integration of IAs into future WTO negotiations? • Not prevented but not yet required by WTO rules… • Processes are easier to install than hard standards… • Concrete steps are possible in WTO negotiations: - DDA Para. 51 type provisions could become standard in all trade negotiation mandates. - Co-operation with UNEP, UNCTAD & UNDP could be deepened. - CTE and CTD could seek common methodologies. - Ongoing & further IAs could be facilitated in WTO negotiations through increased sharing of results among members. - Sharing of results & cooperative IA ventures among members could further strengthen internal /external WTO transparency & participation.

20. Proposal 3 – Developing a Multilateral Dimension? 3b) Coordination, Information Sharing & Support for Impact Assessment through the WTO? • Allow IA and SD information sharing in TPRM, and develop appropriate mechanisms for public participation in TPRM. • Increase information sharing with regards to IAs and circulate results among membership. • Facilitate coordination of Regional Agreement IAs and consider facilitating bi-lateral IAs between WTO members. • Consider co-ordination of financing mechanisms for IA, such as funds or IA technical support.

21. Proposal 3 – Developing a Multilateral Dimension? Case Study: The GATS Assessment • Commitment to conduct assessments of trade in services “For the purposes of establishing [negotiating] guidelines, the Council for Trade in Services shall carry out an assessment of trade in services in overall terms and on a sectoral basis with reference to the objectives of this Agreement, including [increased developing country participation]” Art. XIX:3 GATS • 2000 Special Session of the Services Council (and 2002 Symposium) • Members decided on an ongoing exercise and received various contributions including from Thailand, South Africa, China and the USA • Specific development focus (see also UNCTAD and International Trade Centre studies) • No public participation / no single methodology

22. Part 4: Elements of aWay Forward • Convert existing EA mechanisms into sustainable development IAs. • Strengthen regulatory elements of IAs. • Develop and test ‘low impact’ models for IAs • Multilaterlise parts of IAs. • The CISDL’s ongoing R-SIA research is investigating… • Case studies of existing IAs, with emphasis on regulatory elements & basics • Studies on how IAs actually affect national / international negotiations & laws • Potential instruments for assessment of regulatory aspects of IAs. • Potential ‘low impact’ models of IA for low data / resource countries • Potential for cooperation between countries at the regional and multilateral levels. • IA instruments could provide an additional tool for trade negotiations, and could help to increase coherence in the creation and application of international, regional and domestic laws for sustainable development (including trade agreements).

23. THANK YOU Markus Gehring (mgehring@cisdl.org) Centre for International Sustainable Development Law Special thanks to Prof. Marie-Claire Cordonier Segger and Ms. Christine Frison Centre for International Sustainable Development Law www.cisdl.org