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How the Trans-Pacific Partnership will—and won’t—protect wildlife

National Geographic | 5 Novembre 2015

How the Trans-Pacific Partnership will—and won’t—protect wildlife

By Rachael Bale

On the first Monday in October, the United States and 11 other Pacific Rim countries announced they’d reached an agreement on a sweeping free-trade deal that’s been in the works since President Barack Obama’s first term. On Thursday, the final text became public. The Trans-Pacific Partnership’s goal is to make trade among these countries easier. But there’s one type of trade the countries are expected to restrict: the illegal wildlife trade.

The Obama Administration is using these wildlife and environmental provisions as a selling point to try to boost Americans’ support for the agreement. Promoting the deal in May from the Nike headquarters, in Oregon, Obama said:

“It’s got strong, enforceable provisions on the environment, helping us to do things that haven’t been done before, to prevent wildlife trafficking, or deforestation, or dealing with our oceans. And these are enforceable in the agreement.”

But many conservation organizations say the environmental chapter is more like window dressing for a deal that could encourage environmentally destructive pursuits, such as palm oil plantations and more fossil fuel exports. There are also concerns that the language is too weak to provide meaningful protections for animals such as whales and sharks.

“Yes, there is potential for the TPP to strengthen wildlife trade provisions,” said Jacob Phelps, an environmental scientist at Lancaster University in England who studies the effects of free trade on biodiversity. “There’s equally and arguably far greater potential for it to devastate wildlife.”

The wildlife black market funds terror organizations and is itself a form of organized crime. It’s also one of the biggest threats to endangered species. Hundreds of millions of animals and animal parts, from tens of thousands of species, are sold as pets, medicine, food, souvenirs, and spiritual and luxury items each year.

It’s impossible to say exactly how big the illicit market is, but in 2009, Traffic, the wildlife trade monitoring organization, estimated the global value of legal wildlife imports at around $323 billion.

Yes, there is potential for the TPP to strengthen wildlife trade provisions. There’s far greater potential for it to devastate wildlife.

Jacob Phelps
environmental scientist at Lancaster University

The Trans-Pacific Partnership is well positioned to clamp down on wildlife trafficking. Much of the demand comes from Asian countries. And although China, the world’s biggest consumer of ivory, is not part of the Trans-Pacific Partnership, Vietnam and Malaysia are. They’re both hot spots in the battle against wildlife trafficking: Vietnam’s demand for rhino horn is driving rhino poaching, and Malaysia is a major transit country for smuggling everything from elephant ivory to tropical birds to rare reptiles.

“How do you reconcile breaking down the barriers [for legal trade] while increasing the barriers for a small number of [illegal] products?” Phelps said.

It’s going to be tough.

What Will the TPP Do?

Here are some of the things the Trans-Pacific Partnership says countries must do to protect wildlife:

– Each country “shall … fulfill its obligations” under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the global treaty that regulates wildlife trade. To protect vulnerable species, CITES signatories are responsible for making sure that the import and export of certain animals are licensed.
– Each country “commits to take appropriate measures to protect and conserve” wildlife it has determined is at risk in its territory.
– Countries must not weaken their environmental laws to attract investment.
– They “shall combat and take measures to prevent” trade in wildlife captured illegally.
– They must end some of the most harmful fisheries subsidies. Overfishing is considered a pressing problem facing marine ecosystems and is responsible for the disappearance of 90 percent of the world’s big fish, such as tuna, cod, and swordfish.
– Read the full text of the environment chapter here.

One of the most hard-won agreements, according to Jennifer Prescott, an assistant U.S. trade representative who helped negotiate the environment chapter, is the provision that importing countries must combat the trade in any species taken illegally in an origin country, whether the species is protected by law in the destination country or not. If they’re given a credible tip, that is.

This was a new idea for many of the other countries, and it was daunting too, because it’s open-ended. There’s no list defining the species law enforcement must look for.

Let’s say someone imports a bird to Malaysia that was snatched from the wild illegally in Peru. A Peruvian official, or maybe an NGO on the ground, finds out about the poaching and tells Malaysian law enforcement. Under this provision, Malaysia must go after that as a crime, even if the bird isn’t legally protected in Malaysia.

“It took a lot of effort on [other countries’] part to get their head around the idea of taking on an obligation that went beyond their international commitments and involved, in some form or another, recognizing another country’s laws,” said U.S. Trade Representative Michael Froman.

Hairsplitting

Because this is a legal document, every single word matters. Splitting hairs makes a difference, which is why many conservation groups and some lawmakers in the U.S. Congress are disappointed that the final text says countries must “take measures to combat” the trade in wildlife taken illegally, rather than requiring them to “prohibit” it.

The latter is legally clear-cut, which means it would be much easier to bring enforcement action against a country that allows the black market to continue.

But how do you decide whether a country is appropriately “combating” wildlife trafficking?

“Words like ‘endeavor’ and ‘take steps to’ are not going to lead to the revolutionary changes we have been told to expect,” said Representative Sandy Levin, a Michigan Democrat, on the U.S. House floor in May.

More disappointing to conservationists is that the agreement doesn’t include the full list of seven multilateral environmental agreements: international treaties that set environmental standards.

In May 2007, a bipartisan agreement in Congress laid out an approach for all future trade agreements, and it supported including these international environmental treaties.

Among them is CITES, which did make it into the Trans-Pacific Partnership and was a priority for U.S. negotiators, since it regulates the international trade in endangered species. The trade agreement gives CITES sharper teeth by linking lack of compliance with the threat of economic penalties.

But missing are international agreements protecting whales, waterfowls’ wetland habitats, fish, and marine animals. Instead of the multilateral environmental agreements themselves, the Trans-Pacific Partnership has stand-alone provisions that address these topics.

It’s unlikely we’d ever see trade sanctions imposed on a country for not living up to its wildlife protection obligations.

Ilana Solomon
Sierra Club

For example, instead of requiring countries to abide by the International Convention for the Regulation of Whaling, which put a moratorium on commercial whaling, the agreement says countries “shall promote the long-term conservation of sharks, marine turtles, seabirds, and marine mammals.”

This phrasing is weak and too vague to be enforceable, critics say. But the U.S. trade representative sees it as potentially stronger than the whaling convention, because it’s open-ended: Unlike the whaling convention, it applies to all marine mammals, including dolphins. Plus it doesn’t have a “scientific use” exemption, which Japan has used to continue whaling, despite the International Court of Justice’s finding that it was abusing the exemption.

It goes on to say that measures “should include, as appropriate,” shark finning bans and “relevant management procedures” for sea turtles, seabirds, and marine mammals.

Enforcing the Provisions

Theoretically, a country that allows the illegal wildlife trade to proliferate, in violation of the Trans-Pacific Partnership, could be hit with sanctions.

But how likely is that?

Take the example of Peru. In 2009, the U.S. and Peru entered into a trade agreement that was groundbreakingly detailed in its environmental provisions. The language is clear and strong, especially against illegal logging and timber trafficking, and conservationists hold it up as a model trade deal.

Such language should make enforcement easier. But six years after the deal went into effect, Peru has not clamped down on illegal logging.

And whereas the U.S. has been working closely with Peru to combat illegal logging, it has not taken any actions against the country under the trade agreement.

Formal dispute settlement under a trade agreement is always a last resort, said Assistant U.S. Trade Representative Prescott, since the process can close the door on cooperation. If cooperation is producing results, that’s always the preferred route.

It’s not just Peru. A 2009 report from the U.S. Government Accountability Office found that many free-trade partner countries were having trouble upholding obligations under trade agreements—and that the U.S. didn’t have the capacity to monitor or enforce the provisions.

Five years later, the Government Accountability Office noted that the U.S. had made progress but was still struggling to monitor environmental commitments.

Unlike past treaties, which have involved the U.S. and one other country, this time the U.S. isn’t the only enforcement monitor.

"Everyone expects that we’ll be more focused and more aggressive than everybody else,” said Froman. “But a lot of other countries care about this issue as well, and TPP gives them the opportunity to use the enforcement mechanisms also."

Dispute Settlement Between Countries

The final language of the environment chapter’s dispute resolution process is seen as a win for conservationists, unlike a previous, highly criticized draft released by WikiLeaks at the beginning of 2014. In that version, countries were merely required, essentially, to talk it out, with no plan for recourse if they didn’t reach an agreement.

The final document says that if one country believes another isn’t upholding its environmental responsibilities, the dispute will be subject to the same resolution process—and threat of economic penalties—as the rest of the commercial clauses in the trade deal.

Suppose there was evidence that Vietnam’s police regularly look the other way when shopkeepers sell rhino horn. The U.S., or any other country, could file a complaint. An internal panel would hear the dispute and make a decision. If the complaining country were to win, it could impose penalties, such as trade sanctions (the most severe measure).

Still, conservationists are skeptical given what they see as the U.S.’s weak record on taking formal actions against trade partners for environmental violations.

“It’s unlikely we’d ever see trade sanctions imposed on a country for not living up to its wildlife protection obligations,” said Ilana Solomon, of the Sierra Club, one of the loudest critics of the Trans-Pacific Partnership.

And even if the U.S. did decide to bring a complaint, the language in the deal is, in many cases, weak enough that the accused country wouldn’t have too much trouble fighting it off, she said.

Corporate Lawsuits

The Trans-Pacific Partnership allows corporations to challenge government policies, including environmental ones, that they believe discriminate against them and harm their investment. Through a mechanism called investor-state dispute settlement, a corporation can sue a government to bring its complaint to an arbitration tribunal.

Investor-state dispute settlement first came to prominence in multilateral treaties when it was introduced as part of NAFTA. Its record has been controversial.

Even the threat of a suit can cause countries to reconsider passing environmental protections, said Rachel Wellhausen, who studies these legal challenges at the University of Texas at Austin.

Corporations win about one-third of the suits they bring before arbitration tribunals, and another one-third are settled, according to Wellhausen. It can be difficult to tease out which suits were over environmental issues, she said, but the Canadian Centre for Policy Alternatives, a left-leaning think tank, tried to do just that for suits brought under NAFTA.

Is the world better with this or without this? I don’t think there’s any question.

Michael Froman
U.S. Trade Representative

It found that more than 60 percent of the suits filed against Canada under NAFTA’s investor-state dispute chapter were related to environmental or resource management policies. In the U.S., that number was closer to 30 percent.

The United States, however, has never lost such a suit against an investor corporation.

“If you look at the cases that have been decided on their merits, they have upheld environmental rules,” said Michael Smart, a vice president at Rock Creek Global Advisors, an international economic policy advisory firm. Smart pointed to the case of Chemtura, a U.S. chemical company that challenged Canada’s ban on a particular pesticide. Chemtura’s case was dismissed, and it was ordered to pay the costs of arbitration.

The Trans-Pacific Partnership has new language that will allow frivolous suits to be dismissed earlier in the process, and it includes standard free-trade agreement preamble language that the deal recognizes each country has the right to adopt or enforce regulatory measures to protect the environment (among other things).
Picture of bottles of illegal wildlife pharmaceuticals

But this boilerplate language is often seen as more diplomatic than legal, especially given the fact that suits over environmental policies have been brought in the past. While the Trans-Pacific Partnership’s investor-state dispute settlement chapter has a specific carve-out to prevent suits over tobacco regulations, no such extra protection exists for environmental regulations, despite calls for that from Senate Democrats.

“We should all be tremendously concerned about the prospect of giving corporations the power to challenge our laws through an unaccountable international tribunal,” said Oregon Senator Jeff Merkley, a Democrat. “Whether it’s laws to protect wildlife, to improve our air quality, or to take on the enormous challenge of climate change, policies that protect our environment and our public health could easily be imperiled in this setting with little to no recourse.”

Will Free Trade Save Animals?

“I don’t think we view TPP or any trade agreement as the panacea when it comes to wildlife trafficking,” Froman said. “But we think it’s an important tool that can be used to enhance and augment other tools to try and address the problem.”

Even some critics of the deal see it as a big step forward.

“No major trade agreement before this one has gone so far to address growing pressures on natural resources like overexploited fish, wildlife, and forests,” World Wildlife Fund President and CEO Carter Roberts said in a statement.

“But the member countries need to go beyond good words and intentions in the agreement to support and implement effective environmental protections as TPP requires.”

Some critics, including the Sierra Club, remain concerned about weak language, lackluster enforcement, and potential corporate lawsuits.

"There’s no such thing as a perfect trade agreement,” said Froman. “It’s a negotiation.

“But when you look at this one, is the world better with this or without this? I don’t think there’s any question."