Having leaked the disturbing details in the chapter on intelectual property rights in the secret proposed Trans-Pacific Partnership (TPP) last year, WikiLeaks released the TPP's environment chapter on January 15.
As well as the draft text of the chapter, WikiLeaks also leaked a report from the chairs outlining the positions of the countries involved. Whereas threats to corporate interests dealt with in the intellectual properties chapter come with stringent enforcement easures, serious environmnetal concerns are mostly met with mere sentiments.
The TPP is a “free trade” deal being negotiated between the United States, Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei. If implemeted, it will become the biggest free trade deal the world has ever seen ― covering a third of global trade.
The documents date from November 24 last year, when the round of talks held in Salt Lake City ended. In a January 15 statement, WikiLeaks said: “The Consolidated Text was designed to be a 'landing zone' document to further the negotiations quickly and displays what the Chairs say is a good representation of all Parties' positions at the time.”
Like previous TPP leaks, the documents show that progress in the negotiations continues to be blocked by disagreements.
The leaks also indicate that at least someone involved in the talks has a conscience ― or at least wants us to undermine competitors by revealing their shoddy positions. Leaking negotiation drafts is one way of pressuring countries that refuse to budge on an issue.
Lack of enforcement
WikiLeaks noted: “When compared against other TPP chapters, the Environment Chapter is noteworthy for its absence of mandated clauses or meaningful enforcement measures. The dispute settlement mechanisms it creates are cooperative instead of binding; there are no required penalties and no proposed criminal sanctions.
“With the exception of fisheries, trade in 'environmental' goods and the disputed inclusion of other multilateral agreements, the Chapter appears to function as a public relations exercise.”
Interestingly, the chairs' report reveals that the US appears to be the only country seeking any real enforcement provisions in the chapter. This is not saying much though ― the chapter is so weak that any provision that merely hints at having any concrete environmental regulation stands out.
If the US has actually been pushing hard for real enforcement, it fails to show in the draft. It has a dispute resolution procedure that basically consists of parties writing letters to each other expressing dismay.
An environment chapter is meant to contain environmental protection provisions that the signatory countries are obliged to abide by, backed by penalties such as fines or sanctions.
The leaked intellectual property chapter contained a range of provisions that demand signatories adopt stringent laws protecting patents and copyright, including penalties for not abiding by the agreement.
In contrast, the evironment chapter is weak. The language used merely encourages countries to act, rather than binding them to do anything concrete. Then again, there is not much in the chapter to enforce anyway.
The chapter mentions the usual noncommittal tripe, such as voluntary mechanisms to enhance environmental performance, cooperation frameworks, public participation and corporate social responsibility. This merely encourages governments and corporations to share ideas and experiences and to be mindful of the environment.
There are sections dealing with specific environmental issues, such as biodiversity, invasive species, climate change, fisheries, conservation and environmental goods and services. Unfortunately, they mostly amount to merely asking parties to recognise the issues and seek to do something about them.
The Natural Resources Defense Council, Sierra Club, and World Wildlife Fund released a joint analysis of the environment chapter where they detailed some of its weaknesses.
One issue raised is overfishing, which is devastating world fish stocks, damaging the ocean's ecosystem and placing our societies, so dependent on ocean resources, at risk.
Negotiating parties are asked to implement a fisheries management system to stop overfishing. However, there is no specific ban on shark finning, despite many TPP countries being shark finning nations and US law requires it to seek such a ban from other countries.
The propopsed provisions only ban government “subsidies that target the fishing of fish stocks that are in an overfished condition”. But very few subsidies would be targeted at overfished stocks anyway.
This is a big retreat from years of discussion in the World Trade Organisation, where subsidies for vessel building and modernisation are understood to play a significant part in overfishing.
Regarding illegal, unreported and unregulated fishing, the TPP merely asks countries to “endeavour to improve cooperation” and to “endeavour” not to undermine regional fisheries management organisations.
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is important for stopping trade of endangered species. Countries in the Asia-Pacific make up a large part of the illegal trade in endangered species.
For example, demand for rhino horn in Vietnam led to a 3000% rise of poaching in South Africa in the past four years. The TPP countries are already signatories to CITES, but it is often poorly implemented.
The TPP only “affirms its commitment” to obligations under CITES. Only the US wants to make CITES legally enforcable under the TPP.
The TPP does ask countries to “adopt or maintain” measures that “allow it to take action” to stop the trade in protected species, but fails to oblige them to do so.
Billed as a great, new, 21st century deal, the TPP provides nothing serious when it comes to the greatest environmental threat we face ― climate change.
The climate change section is filled with waffly language. It acknowledges climate change is a concern, and recognises committments under the United Nations Framework Convention on Climate Change. But unlike proposed penalties in defence of corporate patents, it contains no measures to enforce them.
It does recognise “that there are a suite of economic and environmental policy instruments that can play a role in achieving domestic climate change objectives”, just in case any governments involved had not realised there were some things they could do.
One part does state: “Parties recognize their respective commitments in APEC to rationalize and phase out over the medium term inefficient fossil fuel subsidies that encourage wasteful consumption.”
Countries would commit to “undertake, as appropriate, cooperative and capacity building activities designed to facilitate effective implementation of these commitments”. However, this is far from binding, given the lack of enforcing rules in the draft chapter.
Regarding other international environmental agreements that countries may be signatories to, the TPP says they merely recognise and affirm their committment to implement them.
Dispute settlement in the environment chapter, consists of liaising with each other if one party notices another not abding by provisions. If that fails, they take their dispute to an Environment Committee, which will try to resolve the problem.
Failing that, the issue can be taken to the respective ministers. And if that does not work, then it goes to an arbitration tribunal, which compiles a report.
From the report, the disputing parties are meant to create an action plan. At the moment, there is no mention of any measures to enforce such a plan. The US is alone in wanting penalties applied if the arbitration tribunal is not complied with, such as trade sanctions.
WikiLeaks editor-in-chief Julian Assange said the draft chapter “shows that the public sweetner in the TPP is just media sugar water. The fabled TPP environmental chapter turns out to be a toothless public relations exercise with no enforcement mechanism."