29 AUGUST 2019

New Paper published: “Enforcement Practice under Preferential Trade Agreements: Environmental Consultations and Submissions on Environmental Enforcement Matters in the US-Peru PTA”

by Yilly Vanessa Pacheco*

The protection of forests does not seem to be an exclusive concern of Multilateral Environmental Agreements anymore. Preferential Trade Agreements have been including environmental provisions on forest protection since two decades ago. Provisions on sustainable trade of forest products, forest governance and sustainable forest management, have been established over time in several EU Association Agreements and in the US Free Trade Agreements creating a new set of rules to add to the international -and already, complex forest regime.

However, it is only this year that there emerged some disputes on the implementation of these kinds of provisions. One such dispute is the request for bilateral dispute settlement consultations made by the European Union with Ukraine in the context of the EU-Ukraine Association Agreement, last 15 January 2019, with regard to certain Ukrainian export restrictions on wood. The second one, is the first-ever environment consultations under the US-Peru PTA for the effective implementation of the Annex on Forest Sector Governance. In the first case, the dispute is related to economic concerns; in the second one, the dispute is more connected to environmental issues, which is the topic of my paper.

The paper offers an overall assessment of the enforcement of environmental chapters in PTAs through the lens of the US-Peru TPA, which contains on the one hand, governmental environmental consultations linked to the general dispute settlement mechanism of the PTA, and which could lead to the imposition of trade sanctions and fines to the non-compliant Party. On the other hand, the treaty grants the right to file a submission to any person when a Party is failing to effectively enforce its environmental laws, with a Secretariat created only in 2015 (six years later after the treaty´s entry into force): the Secretariat of Submissions on Environmental Enforcement Matters.

Up to today, three files have been already submitted against Peru with the Secretariat, one of them seeking the implementation of one provision of the Annex on forest governance. Furthermore, the US Government requested in January 2019 the first consultations on environmental matters involving forest issues under a Preferential Trade Agreement.

Forest in Peru (Photo: Hans Luiggi, Unsplash).

The paper presents first the general background of the US-Peru TPA and the adoption of its environmental chapter. Secondly, it encompasses the obligations imposed in the Annex on Forest Sector Governance, and explains in detail the procedure of the two enforcement mechanisms in the environmental chapter: the environmental consultations and the submissions for enforcement on environmental matters. Thirdly, it addresses the practice of enforcement in the context of the US-Peru TPA by analysing: a) the overall practice with respect to enforcement, b) the Peru-Forest Sector Governance Dispute, and c) the effects of the enforcement procedures on Peru´s legal framework for environmental protection.

The article concludes that PTAs have the potential to improve the protection of forests, and environmental protection more broadly, through cooperation and by providing appropriate mechanisms to pursue the effective implementation of commitments. Further developments might be expected in terms of sustainable development and environmental protection of forests due to the effective implementation of the environmental provisions of PTAs.