environment chapter of secret trans-pacific partnership draft

8/13/2019 Environment Chapter of Secret Trans-Pacific Partnership Draft

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Secret TPP treaty: Environment chapter for all 12 nations

WikiLeaks release: January 15, 2014

Description

This is the confidential draft treaty chapter from the Environment Working Group of the Trans-Pacific

Partnership (TPP) talks between the United States, Japan, Mexico, Canada, Australia, Malaysia, Chile,

Singapore, Peru, Vietnam, New Zealand and Brunei Darussalam. The treaty is being negotiated in

secret by delegations from each of the 12 countries, who together account for 40% of global GDP. The

chapter, covering proposed international obligations and enforcement mechanisms for protection of the

environment, was drafted by the Chairs of the TPP Environment Working Group, at request from the

TPP Ministers and at the Chairs' own responsibility, and is an attempt at a "landing zone" document to

quickly move the text along and identify outliers. The document demonstrates the state of the text at the

end of the Brunei round, as well as all discussions that have occurred in each negotiating round that the

Chairs have participated in since, up to the date of drafting. The text dates from the end of the Salt Lake

City meetings, and before the December Singapore TPP Ministerial Meeting. The text endeavours to

present a package from the Chairs that considers the interests of all Parties and encompasses

compromises across all issues, attempting to resolve tensions within the working group, which are thenfurther detailed in the corresponding Chairs' report.

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TPP, TPPA, treaty, asia, pacific, negotiation, environment, fisheries,

biodiversity, climate change, trade, investment

This Document Contains TPP CONFIDENTIAL Information

MODIFIED HANDLING AUTHORIZED

Trans-Pacific Partnership Agreement:

Environment Chapter

Consolidated Text

November 24, 2013

Trans-Pacific Partnership

Trans-Pacific Partnership Environment Working Group Chairs

http://wikileaks.org/tpp-enviro

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This document contains TPP Confidential Information

Modified Handling Authorized

November 24, 2!"

Trans#Pacific Partnershi$ Agreement negotiations

Environment Chapter

Consolidated Text

The follo%ing draft Trans#Pacific Partnershi$ &TPP' environment te(t is %ithout $re)udice to the $ositions of an*

TPP Part*+ It res$onds to the reuest b* TPP Ministers that Canada draft a consolidated te(t after bilateral

consultations %ith other TPP Parties to determine concerns and redlines and $ossible landing zones+

November 24, 2013

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Chapter SS

Environment

Article SS.1 !e"initions

-or $ur$oses of this Cha$ter.

environmental la#means an* statute or regulation of a Part*, or $rovision thereof, including

an* that im$lement its obligations under a multilateral environmental agreement, the $rimar*

$ur$ose of %hich is the $rotection of the environment, or the $revention of a danger to human

life or health, through.

&a' the $revention, abatement, or control of the release, discharge, or emission of $ollutants

or environmental contaminants/

&b' the control of environmentall* hazardous or to(ic chemicals, substances, materials, and%astes, and the dissemination of information related thereto/ or

(c) the $rotection or conservation of %ild flora or fauna, including endangered s$ecies, their

habitat, and s$eciall* $rotected natural areas!,2,

but does not include an* statute or regulation, or $rovision thereof, directl* related to %or0er

safet* or health, nor an* statute or regulation, or $rovision thereof, the $rimar* $ur$ose of %hich

is managing the subsistence or aboriginal harvesting of natural resources+

stat$te or re%$lationmeans.

1A&. for Australia, an act of the Common%ealth Parliament, or a regulation made b* theovernor#eneral in Council under delegated authorit* under an Act of the Common%ealth

Parliament, that is enforceable at the central level of government+3

1'N. for runei, an Act, 5rder or 6ule $romulgated $ursuant to the Constitution of runei

7arussalam, enforceable b* the overnment of His Ma)est* the 8ultan and *ang 7i#Pertuan of

runei 7arussalam+3

1CA. for Canada, an Act of the Parliament of Canada or regulation made under an Act of the

Parliament of Canada that is enforceable b* the central level of government+3

1(). for Mala*sia, an act of Parliament or regulation $romulgated $ursuant to an act ofParliament that is enforceable b* action of the federal government+3

1 specially protected natural areas as defined by the Party in its legislation.2 The Parties recognize that such protection or conservation ay include theprotection or conservation of biological diversity.

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1(*. for the 9nited Me(ican 8tates, an act of Congress or regulation $romulgated $ursuant to

an act of Congress that is enforceable b* action of the federal level of government+3

1+E. for Peru, a la% of Congress or 7ecree or 6esolution $romulgated b* the central level of

government to im$lement a la% of Congress that is enforceable b* action of the central level ofgovernment+3

1&S. for the 9nited 8tates, an act of Congress or regulation $romulgated $ursuant to an act of

Congress that is enforceable b* action of the central level of government+3

1N. for :ietnam, a la% of the National Assembl*, an ordinance of the 8tanding Committee of

the National Assembl*, or a regulation $romulgated b* the central level of government to

im$lement a la% of the National Assembl* or an ordinance of the 8tanding Committee of the

National Assembl* that is enforceable b* action of the central level of government+3

Drafters note: Language relating to equivalency in scope of coverage is attached. Placement isto be determined.

Article SS.2 -bectives

!+ The ob)ectives of this Cha$ter are to. $romote mutuall* su$$ortive trade and environment$olicies/ $romote high levels of environmental $rotection and effective enforcement ofenvironmental la%s/ and enhance the ca$acities of the Parties to address trade#relatedenvironmental issues, including through coo$eration+

2+ Ta0ing account of their res$ective national $riorities and circumstances, the Parties

recognize that enhanced coo$eration to $rotect and conserve the environment and

sustainabl* manage their natural resources brings benefits %hich can contribute tosustainable develo$ment, strengthen their environmental governance and com$lement the

ob)ectives of the TPP+"+ The Parties further recognize that it is ina$$ro$riate to set or use their environmental la%s

or other measures in a manner %hich %ould constitute a disguised restriction on trade or

investment bet%een the Parties+

Article SS.3 /eneral Commitments

!+ The Parties recognize the im$ortance of mutuall* su$$ortive trade and environmental

$olicies and $ractices to im$rove environmental $rotection in the furtherance of

sustainable develo$ment+2+ The Parties recognize the sovereign right of each Part* to establish its o%n levels of

domestic environmental $rotection and its o%n environmental $riorities, and to set, ado$t

or modif* accordingl* its environmental la%s and $olicies+"+ ;ach Part* shall strive to ensure that its environmental la%s and $olicies $rovide for and

encourage high levels of environmental $rotection and shall strive to continue to im$rove

its res$ective levels of environmental $rotection+

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4+ No Part* shall fail to effectivel* enforce its environmental la%s through a sustained or

recurring course of action or inaction in a manner affecting trade or investment bet%een

the Parties, after the date of entr* into force of this Agreement+". The Parties recognize that each Part* retains the right to e(ercise discretion and to ma0e

decisions regarding. &a' investigator*, $rosecutorial, regulator*, and com$liance matters/and &b' the allocation of environmental enforcement resources %ith res$ect to other

environmental la%s determined to have higher $riorities+ Accordingl*, the Parties

understand that %ith res$ect to the enforcement of environmental la%s a Part* is in

com$liance %ith $aragra$h 4 %here a course of action or inaction reflects a reasonable

e(ercise of such discretion, or results from a bona fidedecision regarding the allocation

of such resources in accordance %ith $riorities for enforcement of its environmental la%s++ Nothing in this Cha$ter shall be construed to em$o%er a Part*?s authorities to underta0e

environmental la% enforcement activities in the territor* of another Part*+

Article SS.4 ($ltilateral Environmental A%reements

!+ The Parties recognize that multilateral environmental agreements to %hich the* are $art*

$la* an im$ortant role globall* and domesticall* in $rotecting the environment and that

their res$ective im$lementation of these agreements is critical to achieving the

environmental ob)ectives of these agreements+ Accordingl*, each Part* affirms its

commitment to im$lement the multilateral environmental agreements to %hich it is a

$art*+2+ The Parties stress the need to enhance mutual su$$ortiveness bet%een trade and

environment la%s and $olicies through dialogue bet%een the Parties on trade and

environment issues of mutual interest, $articularl* %ith res$ect to negotiations and

im$lementation of relevant multilateral environmental agreements and trade agreements+!. If a Part* is found to be in non#com$liance %ith its obligations under a multilateral

environmental agreement through a$$licable com$liance $rocedures under such

agreement

"

, and such non#com$liance is in a manner affecting trade or investmentbet%een the Parties, an* other Part* %hose trade or investment is affected and is $art* to

the same multilateral environmental agreement ma* reuest that the Committee be

convened to consider the issue b* delivering a %ritten reuest to each national contact

$oint+ The Committee shall convene to consider %hether the matter could benefit from

coo$erative activities under this agreement, %ith a vie% to facilitating the relevant Part*

! #or greater clarity$ this does not include self%reporting of non%copliance.

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coming into com$liance %ith its obligations under the multilateral environmental

agreement+4

Montreal Protocol

&. The Parties recognize that emissions of certain substances can significantl* de$lete and

other%ise modif* the ozone la*er in a manner that is li0el* to result in adverse effects on

human health and the environment+ To that end, each Part* affirms its commitment to

ta0e measures to control the $roduction and consum$tion of, and trade in, such

substances b* im$lementing its obligations under the Montreal Protocol of 8ubstances

that 7e$lete the 5zone @a*er, including its amendments+

Article SS. +roced$ral (atters

!+ ;ach Part* shall $romote $ublic a%areness of its environmental la%s, regulations and

$olicies, including enforcement and com$liance $rocedures, b* ensuring that relevantinformation is available to the $ublic+

2+ ;ach Part* shall ensure that interested $ersons residing in or established in the territor* of

such Part* ma* reuest the Part*?s com$etent authorities to investigate alleged violations

of its environmental la%s, and that the com$etent authorities shall give such reuests due

consideration, in accordance %ith the Part*?s la%+"+ ;ach Part* shall ensure that )udicial, uasi#)udicial, or administrative $roceedings for the

enforcement of its environmental la%s are available under its la% and are fair, euitable,

trans$arent, and com$l* %ith due $rocess of la%+ An* hearings in such $roceedings shall

be o$en to the $ublic, e(ce$t %here the administration of )ustice other%ise reuires, and

in accordance %ith its a$$licable la%s+4+ ;ach Part* shall ensure that $ersons %ith a recognized interest under its la% in a

$articular matter have a$$ro$riate access to $roceedings referred to in $aragra$h "++ ;ach Part* shall $rovide a$$ro$riate sanctions or remedies for violations of its

environmental la%s for the effective enforcement of those la%s+ 8uch sanctions or

remedies ma* include a right to bring an action against the violator directl* see0ing

damages or in)unctive relief, or a right to see0 governmental action+


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Article SS. -pport$nities "or +$blic +articipation

!+ ;ach Part* shall see0 to accommodate reuests for information regarding the Part*?s

im$lementation of this Cha$ter+2+ ;ach Part* shall ma0e use of e(isting, or establish ne%, consultative mechanisms, such as

national advisor* committees, to see0 vie%s on matters related to the im$lementation of

this Cha$ter+ 8uch mechanisms ma* com$rise $ersons %ith relevant e($erience, as

a$$ro$riate, including e($erience in business, natural resource conservation and

management, or other environmental matters+

Article SS. +$blic S$bmissions

1. ;ach Part* shall $rovide for the recei$t and consideration of %ritten submissions from

$ersons of that Part* regarding its im$lementation of this Cha$ter+


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+ At its first meeting, the Committee shall establish $rocedures for discussing submissions

and res$onses referred to it+ 8uch $rocedures ma* $rovide for the utilization of e($erts, or

e(isting institutional bodies, for the $ur$ose of develo$ing a re$ort for the Committee

com$rised of information on facts relevant to the matter+


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&c' $romote com$etition and innovation/ and&d' do not treat a $roduct less favorabl* on the basis of origin+

Article SS.10 Cooperation 7rame#or8s

!+ The Parties recognize the im$ortance of coo$eration as a mechanism for im$lementationof this Cha$ter and enhancing its benefits and to strengthen their )oint and individual

ca$acities to $rotect the environment and to $romote sustainable develo$ment as the*

strengthen their trade and investment relations+2+ Ta0ing account of their national $riorities and circumstances, and available resources, the

Parties shall coo$erate to address matters of )oint or common interest among the

$artici$ating Parties related to the im$lementation of this Cha$ter, %here there is mutual

benefit from such coo$eration+ 8uch coo$eration ma* be carried out on a bilateral or

$lurilateral basis bet%een or among the Parties and, sub)ect to consensus b* the

$artici$ating Parties, ma* include non#government bodies or organizations and

non#Parties to this Agreement+"+ ;ach Part* shall designate the authorit* or authorities res$onsible for coo$eration related

to the im$lementation of this Cha$ter to serve as its national contact $oint on matters

relating to coordination of coo$eration activities and shall notif* the other Parties in

%riting %ithin da*s of entr* into force of this Agreement of its contact $oint+ 5n

notif*ing the other Parties of its contact $oint, or at an* time thereafter through the

contact $oints, a Part* ma*.&a' share its $riorities for coo$eration %ith the other Parties, including the ob)ectives

of such coo$eration/&b' $ro$ose coo$eration activities related to the im$lementation of this cha$ter to

another Part* or Parties+4+ =here $ossible and a$$ro$riate, the Parties shall see0 to com$lement and utilize their

e(isting coo$eration mechanisms and ta0e into account relevant %or0 of regional and

international organizations++ The Parties agree that coo$eration ma* be underta0en through modes such as dialogues,

%or0sho$s, seminars, conferences, collaborative $rograms and $ro)ects, and technical

assistance to $romote and facilitate coo$eration and training/ the sharing of best $ractices

on $olicies and $rocedures/ and e(change of e($erts+. In develo$ing coo$erative activities and $rograms, each Part* shall, %here relevant,

identif* $erformance measures and indicators to assist in e(amining and evaluating the

efficienc*, effectiveness and $rogress of s$ecific coo$erative activities and $rograms and

share those measures and indicators, as %ell as the outcome of an* evaluation during or

follo%ing the com$letion of a coo$erative activit* or $rogram, %ith the Parties+>+ The Parties, through their national contact $oints for coo$eration, shall $eriodicall*

revie% the im$lementation and o$eration of this Article and re$ort their findings, %hich

ma* include recommendations, to the Committee to inform its revie% under Article

88+!!&"'&c'+ The Parties, through the Committee, ma* $eriodicall* evaluate the necessit*

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of designating an entit* to $rovide administrative and o$erational su$$ort for coo$erative

activities+ In the event that the Parties agree to establish such an entit*, the Parties shall

agree on the $rovision of funds on a voluntar* basis to su$$ort its o$eration+B+ ;ach Part* shall $romote $ublic $artici$ation in the develo$ment and im$lementation, as

a$$ro$riate, of coo$erative activities+ This ma* include activities such as encouraging andfacilitating direct contacts and coo$eration among relevant entities and the conclusion of

arrangements among them for the conduct of coo$erative activities under this Cha$ter++ All coo$erative activities under this Cha$ter shall be sub)ect to the availabilit* of funds

and of human and other resources, and to the a$$licable la%s and regulations of the

$artici$ating Parties+ The funding of coo$erative activities shall be decided b* the

$artici$ating Parties on a case#b*#case basis+

Article SS.11 9nstit$tional Arran%ements

!+ ;ach Part* shall designate a national contact $oint from its relevant national authorities

%ithin three months of the date of entr* into force of this Agreement, in order to facilitate

communication among the Parties in the im$lementation of this Cha$ter+ Changes to the

national contact $oint shall be communicated $rom$tl* to the other Parties as the* occur+2+ The Parties hereb* establish an ;nvironment Committee &DCommitteeE' %hich shall

com$rise senior government re$resentatives, or their designees, of the relevant trade and

environment national authorities of each Part* res$onsible for the im$lementation of this

Cha$ter+"+ The $ur$ose of the Committee is to oversee the im$lementation of this Cha$ter and its

functions shall be to.&a' $rovide a forum to discuss and revie% the im$lementation of this Cha$ter/

&b' $rovide $eriodic re$orts to the 1Trans#Pacific Partnershi$ Commission3 regarding

im$lementation of this Cha$ter/&c' $rovide a forum to discuss and revie% coo$erative activities $ursuant to this

Cha$ter/&d' consider and endeavor to resolve matters referred to it under Article 88+!2

1Consultations3/&e' coordinate %ith other Committees under the Agreement as a$$ro$riate/ and&f' $erform an* other functions as the Parties ma* agree+

&. The Committee shall meet %ithin the first *ear of entr* into force of this Agreement+

Thereafter, the Committee shall normall* meet ever* t%o *ears unless the Committee

decides other%ise+ The Chair of the Committee and the venue of its meetings shall rotateamong each of the Parties in ;nglish al$habetical order, unless the Committee decides

other%ise++ All decisions and re$orts of the Committee shall be made b* consensus, unless other%ise

agreed, or unless other%ise $rovided in this Cha$ter+


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>+ 7uring the fifth *ear after the entr* into force of this Agreement, the Committee shall.&a' revie% the im$lementation and o$eration of this Cha$ter/&b' re$ort its findings, %hich ma* include recommendations, to the Parties and the

1Commission3/ and

&c' underta0e subseuent revie%s at intervals to be agreed b* the Parties+B+ The Committee shall $rovide for $ublic in$ut on matters relevant to the Committee?s

%or0, as a$$ro$riate, and shall hold a $ublic session at each meeting++ The Parties recognize the im$ortance of resource efficienc* in the im$lementation of this

Cha$ter and the desirabilit* of utilizing, %herever $ossible, ne% technologies to facilitate

communication and interaction among the Parties and %ith the $ublic+

Article SS.12 Cons$ltation:!isp$te esol$tion

Article SS.12.1 Environment Cons$ltations

!+ The Parties shall at all times endeavor to agree on the inter$retation and a$$lication of

this Cha$ter, and shall ma0e ever* effort through dialogue, consultation, e(change of

information, and, %here a$$ro$riate, coo$eration to address an* matter that might affect

the o$eration of this Cha$ter+2+ An* Part* &Dthe reuesting Part*E' ma* reuest consultations %ith an* other Part* &Dthe

res$onding Part*E' regarding an* matter arising under this Cha$ter b* delivering a

%ritten reuest to the national contact $oint designated in accordance %ith Article 88+!!

&Institutional Arrangements' of this Cha$ter+ The reuest shall contain information that is

s$ecific and sufficient to enable the res$onding Part* receiving the reuest to res$ond,

including identification of the matter at issue and an indication of the legal basis for the

reuest+"+ The reuesting Part* shall inform the other Parties through the national contact $oints, of

its reuest for consultations+ A Part* other than the reuesting or res$onding Part* that

considers it has a substantial interest in the matter &Da $artici$ating Part*E' ma*

$artici$ate in the consultations b* delivering a %ritten notice to the national contact $oint

of the reuesting and res$onding Parties %ithin seven da*s of the date of deliver* of the

reuest for consultations+ The $artici$ating $art* shall include in its notice an e($lanation

of its substantial interest in the matter+4+ 9nless the* other%ise agree, the reuesting and res$onding Parties &Dthe consulting

PartiesE' shall enter into consultations %ithin " da*s after the recei$t of the %ritten

reuest++ The consulting Parties shall ma0e ever* effort to arrive at a mutuall* satisfactor*

resolution to the matter, %hich ma* include a$$ro$riate coo$erative activities+ The

consulting Parties ma* see0 advice or assistance from an* $erson or bod* the* deem

a$$ro$riate in order to e(amine the matter+

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Article SS.12.2 Senior epresentative Cons$ltations

!+ If the consulting Parties fail to resolve the matter $ursuant to Article 88+!2+!

&;nvironment Consultations', an* consulting Part* ma* reuest that the Committee

re$resentatives from the consulting Parties convene to consider the matter b* delivering a%ritten reuest to the national contact $oint of the other consulting Part* and circulating

it to the national contact $oint of other Parties+2+ The Committee re$resentatives from the consulting Parties shall meet no later than

da*s follo%ing the deliver* of the reuest and shall see0 to resolve the matter including,

%here a$$ro$riate, b* gathering relevant scientific and technical information from

governmental or non#governmental e($erts+ Committee re$resentatives from an* other

Part* that considers it as a substantial interest in the matter ma* $artici$ate in the

consultations+

Article SS.12.3 (inisterial Cons$ltations

!+ If the consulting Parties have failed to resolve the matter $ursuant to Article 88+!2+2

&Committee Consultations', an* of the consulting Parties ma* refer the matter to the

relevant Ministers of the consulting Parties %ho shall see0 to resolve the matter+2+ Consultations $ursuant to Articles 88+!2+!, 88+!2+2, and 88+!2+" ma* be held in $erson

or b* an* technological means available agreed b* the consulting Parties+ If in $erson,

consultations shall be held in the ca$ital of the res$onding Part*, unless the consulting

Parties other%ise agree+"+ Consultations shall be confidential and %ithout $re)udice to the rights of an* Part* in an*

future $roceedings+

Article SS.12.4 Arbitral Trib$nal

!+ If the consulting Parties have failed to resolve the matter %ithin da*s of the reuest

made $ursuant to Article 88+!2+" &Ministerial Consultations', the com$laining Part* ma*

reuest in %riting the establishment of an arbitral tribunal under this Cha$ter+2+ The com$laining Part* shall circulate the reuest to all Parties through the national

contact $oints designated in accordance %ith Article 88+! &Institutional Arrangements'

of this Cha$ter+"+ An arbitral tribunal shall be established u$on deliver* of a reuest+4+ The com$laining Part* shall include in the reuest to establish an arbitral tribunal an

identification of the measure or other matter at issue and a brief summar* of the legal

basis of the com$laint sufficient to $resent the $roblem clearl*++ A Part* that is eligible under $aragra$h ! to reuest the establishment of an arbitral

tribunal regarding the same matter ma* )oin the arbitral tribunal $roceedings as a

com$laining Part* u$on deliver* of a %ritten notice to the other Parties+ The Part* )oining

the $roceedings shall deliver the notice at the earliest $ossible time and in an* event no

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later than seven da*s after the date of deliver* of the reuest for the establishment of an

arbitral tribunal+


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&a' have s$ecialized 0no%ledge or e($ertise in environmental la%, issues addressed in

this Cha$ter and, to the e(tent $ossible, the resolution of dis$utes arising under

international agreements/&b' be chosen on the basis of ob)ectivit*, reliabilit* and sound )udgment/

&c' be inde$endent of, and not be affiliated %ith or ta0e instructions from an* Part*/and

&d' com$l* %ith a code of conduct established b* the Parties under Article +F of

Cha$ter &7is$ute 8ettlement'+

Article SS.12. $les o" +roced$re

The 6ules of Procedure under Article +!! &6ules of Procedure Gfor Arbitral Tribunals' of

Cha$ter &7is$ute 8ettlement' shall a$$l* to arbitral $roceedings under this Cha$ter+

Drafters 2ote: 3his provision to be revie)ed once $rticle ***.&& is agreed.

Article SS.12. Third +art5 +articipation

A Part* that is not a dis$uting Part*, and that considers it has a substantial interest in the matter

before the arbitral tribunal, shall, on deliver* of a %ritten notice to the dis$uting Parties, be

entitled to attend all hearings, to ma0e %ritten submissions, to $resent vie%s orall* to the arbitral

tribunal, and to receive %ritten submissions of the dis$uting Parties+ The deliver* of the %ritten

notice shall occur no later than ! da*s after the date of circulation of the reuest for the

establishment of the arbitral tribunal $ursuant to $aragra$h ! of Article 88+!2+4 &Arbitral

Tribunal'+

Article SS.12.6 ole o" Experts

At the reuest of a dis$uting Part* or on its o%n initiative, the arbitral tribunal ma* see0

information and technical advice from an* $erson or bod* that it deems a$$ro$riate, $rovided

that the dis$uting Parties so agree and sub)ect to such terms and conditions as the dis$uting

Parties ma* agree+ The dis$uting Parties shall have an o$$ortunit* to comment on an*

information or advice so obtained+>

Article SS.12.10 9nitial eport

The arbitral tribunal shall $resent to the dis$uting Parties an initial re$ort in accordance %ith

Article +! &Initial 6e$ort' of Cha$ter &7is$ute 8ettlement'+ -or the $ur$oses of this

Cha$ter, the initial re$ort shall contain.

&a' findings of fact/&b' the determination of the arbitral tribunal as to %hether the res$onding Part* has

failed to com$l* %ith its obligations under this Cha$ter/

4 This provision shall be applied in accordance 0ith the 8ules of Procedure set out inrticle 999.11 (8ules of Procedure) of :hapter 999 (,ispute +ettleent).

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&c' an* other determination reuested in the terms of reference/&d' recommendations for the resolution of the dis$ute/ and&e' the rationale for an* findings, determinations and recommendations made b* the

arbitral tribunal+

Article SS.12.11 7inal eport

The arbitral tribunal shall $resent a final re$ort to the dis$uting Parties in accordance %ith Article

+!< &-inal 6e$ort' of Cha$ter &7is$ute 8ettlement'+

Article SS.12.12 9mplementation o" 7inal eport

!+ If in its final re$ort the arbitral tribunal determines that the res$onding Part* has failed to

com$l* %ith its obligations under this Cha$ter, the dis$uting Parties shall endeavor to

agree %ithin da*s of the $ublic issuance of the final re$ort on a mutuall* satisfactor*

action $lan $ursuant to the determinations and recommendations of the tribunal+ TheParties shall notif* the Committee of such action $lans and its im$lementation

timeframes+2+ The res$onding Part* shall 0ee$ the Committee informed in a timel* manner through the

national contact $oints of an* actions or measures to be im$lemented $ursuant to the

determinations and recommendations of the tribunal, including an* action $lan agreed to

$ursuant to $aragra$h !+"+ -or an* matter affecting the inter$retation or a$$lication of this Cha$ter, the Parties shall

onl* have recourse to the rules and $rocedures as set out in this Cha$ter+ At an* time, the

Parties ma* have recourse to good offices, conciliation, or mediation to resolve that

matter+

Article SS.13 Trade and 'iodiversit5

!+ The Parties recognize the im$ortance of conservation and sustainable use of biological

diversit* and their 0e* role in achieving sustainable develo$ment+2+ Accordingl*, the Parties are committed to $romoting and encouraging the conservation

and sustainable use of biological diversit* and sharing in a fair and euitable %a* the

benefits arising from the utilization of genetic resources+"+ The Parties reiterate their commitment to, sub)ect to national legislation, res$ecting,

$reserving and maintaining the 0no%ledge, innovations, and $ractices of indigenous and

local communities embod*ing traditional lifest*les relevant for the conservation andsustainable use of biological diversit*, and encourage the euitable sharing of the benefits

arising from the utilization of such 0no%ledge, innovations and $ractices+4+ The Parties recognize the sovereign rights of 8tates over their natural resources, and that

the authorit* to determine access to genetic resources rests %ith the national governments

and is sub)ect to national legislation+

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November 24, 2!"

+ The Parties recognize that, sub)ect to national legislation, access to genetic resources for

their utilization, %here granted, should be sub)ect to the $rior informed consent of the

Part* $roviding such resources, unless other%ise determined b* that Part*+ The Parties

further recognize that benefits arising from the utilization of these genetic resources

should be shared in a fair and euitable %a*+ 8uch sharing should be u$on mutuall*agreed terms+

+ The Parties are committed to enhance their coo$erative efforts in areas of mutual interest

related to biological diversit*, including through Article 88+! &Coo$eration'+

Coo$eration ma* include, but is not limited to, e(changing information and e($eriences

in areas related to.&a' the conservation and sustainable use of biological diversit*/&b' the $rotection and maintenance of ecos*stem and ecos*stem services/ and&c' the fair and euitable sharing of the benefits arising out of the utilization of

genetic resources, including b* a$$ro$riate access to genetic resources+

Article SS.14 9nvasive Alien Species

!+ The Parties recognize that the movement of terrestrial and auatic invasive alien s$ecies

across borders through trade#related $ath%a*s can adversel* affect the environment,

economic activities and develo$ment, and human health and that $revention, detection,

control and, %hen $ossible, eradication, of invasive alien s$ecies are critical strategies for

managing these im$acts+2+ Accordingl*, the Committee shall coordinate %ith the Committee on 8anitar* and

Ph*tosanitar* Measures established under Article F+F of Cha$ter FFF &8anitar* and

Ph*tosanitar* Measures' to identif* coo$erative o$$ortunities to share information and

management e($eriences on the movement, $revention, detection, control and eradication

of invasive alien s$ecies, %ith a vie% to enhancing efforts to assess and address the ris0s

and adverse im$acts of invasive alien s$ecies+

Article SS.1 Trade and Climate Chan%e

1. The Parties ac0no%ledge climate change as a global concern that reuires collective

action and recognize the im$ortance of im$lementation of their res$ective commitments

under the 9nited Nations -rame%or0 Convention on Climate Change &9N-CCC' and its

related legal instruments+2+ The Parties recognize the desirabilit* that trade and climate change $olicies be mutuall*

su$$ortive, and that $olicies and measures to deal %ith climate change should be cost

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November 24, 2!"

effective+ The Parties further recognize the role that mar0et and non#mar0et a$$roaches

can $la* in achieving climate change ob)ectives+"+ The Parties agree that migration and ada$tation actions should reflect domestic

circumstances and ca$abilities, and note efforts under%a* in a range of international fora

to. increase energ* efficienc*/ develo$ lo%#carbon technologies and alternative andrene%able energ* sources/ $romote sustainable trans$ort and sustainable urban

infrastructure develo$ment/ address deforestation and forest degradation/ reduce

emissions in international maritime shi$$ing and air trans$ort/ im$rove monitoring,

re$orting and verification of greenhouse gas emissions/ and develo$ ada$tation actions

for climate change+ The Parties agree to encourage and facilitate coo$eration on the

com$lementar*, trade#related, as$ects of these efforts in areas of mutual interest+4+ The Parties recognize that there are a suite of economic and environmental $olic*

instruments that can $la* a role in achieving domestic climate change ob)ectives and in

hel$ing achieve their international climate change commitments+ The Parties

ac0no%ledge the value of sharing information and e($eriences in develo$ing andim$lementing such instruments+ Accordingl*, %here relevant and a$$ro$riate, the Parties

agree to discuss matters such as.&a' best $ractices and lessons learned in designing, im$lementing, and o$erating

mechanisms to reduce carbon emissions, including mar0et and non#mar0et

measures/&b' best $ractices in the design, im$lementation and enforcement of regulator*

instruments/ and&c' best $ractices and lessons learned to enhance the trans$arenc* and accurac* of

such instruments+

+ Activities $ursuant to $aragra$hs " and 4 ma*, at the discretion of the $artici$atingParties and as a$$ro$riate, involve other governments in the Asia#Pacific region %ith an

interest in such mechanisms, as %ell as the $rivate sector and non#governmental

organizations+


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November 24, 2!"

livelihoods of their fishing communities, including artisanal or small#scale fisheries+ The

Parties also ac0no%ledge that the fate of marine ca$ture fisheries is an urgent resource

$roblem facing the international communit*+ Accordingl*, the Parties recognize the

im$ortance of ta0ing measures aimed at the conservation and the sustainable

management of fisheries+2. In this regard, the Parties ac0no%ledge that inadeuate fisheries management, fisheries

subsidies that contribute to overfishing and overca$acit*, and Illegal, 9nre$orted and

9nregulated &I99' fishingcan have significant negative im$acts on trade, develo$ment

and the environment and, thus recognize the need for individual and collective action to

address the $roblems of overfishing and unsustainable utilization of fisheries resources+!. Accordingl*, each Part* shall see0 to o$erate a fisheries management s*stem that

regulates marine %ild ca$ture fishing and that is designed to $revent overfishing and

overca$acit*, to reduce b*catch of non#target s$ecies and )uveniles, including through the

regulation of fishing gear that results in b*catch and of fishing in areas %here b*catch is

li0el* to occur, and to $romote the recover* of overfished stoc0s for all marine fisheriesin %hich its $ersons conduct fishing activities+ 8uch a management s*stem shall be based

on internationall* recognized best $ractices for fisheries management and conservation as

reflected in the relevant $rovisions of international instruments aimed at ensuring the

sustainable use and conservation of marine s$ecies+!

4+ ;ach Part*?s fisheries management s*stem shall, based on the best scientific evidence

available, $romote the long#term conservation of shar0s, marine turtles, seabirds, and

marine mammals, through the im$lementation and effective enforcement of conservation

and management measures that ma* include, as a$$ro$riate, the collection of s$ecies

s$ecific data, fisheries b*catch mitigation measures, catch limits, and $rohibitions, such

as on finning and commercial %haling+". The Parties also recognize the im$ortance of $rotecting and $reserving the marine

environment+ To that end, each Part* affirms its commitment to ta0e measures to $revent

the $ollution of the marine environment b* im$lementing its obligations under the

International Convention for the Prevention of Pollution from 8hi$s, !>", as modified

b* the Protocol of !>B relating thereto and b* the Protocol of !> &MA6P5@' and its

associated Anne(es+!!

6 The ter illegal$ unreported and unregulated fishing refers to the activities set outin paragraph ! of the nregulated #ishing of the >? #ood and gricultural -rganization.17 These instruents include$ aong others$ and as they ay apply$ the >nited?ations :onvention on the a0 of the +ea$ the >? #ish +toc@s greeent$ the #- :ode of:onduct for 8esponsible #isheries$ the 166! #- :opliance greeent and the 2771 #-nregulated (>) #ishing.11 #or purposes of this rticle$ a Partys *8P- obligations shall encopass those ine/isting or future protocols$ aendents$ anne/es$ and ad'ustents to 0hich it is Party anda Partys obligations shall be interpreted to reflect$ aong other things$ e/isting and futurereservations$ e/eptions and e/ceptions that are applicable to it.

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November 24, 2!"

. The Parties recognize that the im$lementation of a fisheries management s*stem that is

designed to $revent overfishing and overca$acit* and to $romote the recover* of

overfished stoc0s must include the control, reduction and eventual elimination of all

subsidies that contribute to overfishing and overca$acit*+ To that end, no Part* shall grant

or maintain an* of the follo%ing subsidies!2%ithin the meaning of Article !+! of the 8CMAgreement that are s$ecific %ithin the meaning of Article 2 of the 8CM Agreement.

(a) subsidies that target the fishing!"of fish stoc0s that are in an overfished!4

condition/ and(b) subsidies $rovided to an* fishing vessel!%hile listed b* the flag 8tate or a

relevant 6egional -isheries Management 5rganization or Arrangement for illegal,

unre$orted or unregulated fishing in accordance %ith the rules and $rocedures of

such organization or arrangement and in conformit* %ith international la%+>+ 8ubsid* $rograms established b* a Part* before the entr* into force of this Agreement

and %hich are inconsistent %ith $aragra$h < &a' shall be brought into conformit* %ith that

$aragra$h as soon as $ossible and no later than 1F *ears3 of the date of entr* into forceof this Agreement+

B+ In relation to subsidies that are not $rohibited b* $aragra$h < &a' and &b', and ta0ing into

consideration their social and develo$mental concerns, including food securit* concerns,

each Part* shall ma0e best efforts to refrain from introducing ne%, or e(tending or

enhancing e(isting, subsidies %ithin the meaning of Article !+! of the 8CM Agreement,

to the e(tent the* are s$ecific %ithin the meaning of Article 2 of the 8CM Agreement,

that contribute to overfishing or overca$acit*++ =ith a vie% to achieving the ob)ective of eliminating subsidies that contribute to

overfishing and overca$acit*, the Parties shall revie% the disci$lines in $aragra$h < at

regular meetings of the Committee+!+ ;ach Part* shall notif* to the other Parties, b* the first anniversar* of the entr* into force

of this Agreement and ever* t%o *ears thereafter, an* subsid* %ithin the meaning of

Article !+! of the 8CM Agreement %hich is s$ecific %ithin the meaning of Article 2 of

12 #or the purposes of this rticle$ a subsidy shall be attributable to the Party conferringit$ regardless of the flag of the vessel involved or the application of rules of origin to the fishinvolved.1! #or the purposes of this agreeent$ fishing eans searching for$ attracting$locating$ catching$ ta@ing or harvesting fish or any activity 0hich can reasonably be

e/pected to result in the attracting$ locating$ catching$ ta@ing or harvesting of fish.1& #or the purposes of this rticle$ a fish stoc@ is overfished if the stoc@ is at such a lo0level that ortality fro fishing needs to be restricted to allo0 the stoc@ to rebuild to a levelthat produces a/iu sustainable yield or alternative reference points based on the bestscientific evidence available. #ish stoc@s that are recognized by the relevant national

'urisdictions or regional fisheries anageent organizations as overfished shall also beconsidered overfished for the purposes of this paragraph.1" The ter fishing vessels refers to any vessel$ ship or other type of boat used for$e;uipped to be used for$ or intended to be used for fishing or fishing related activities asdefined in footnote ".

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November 24, 2!"

the 8CM Agreement, and that the Part* grants or maintains to $ersons engaged in fishing

or fishing related activities+11.8uch notifications shall cover subsidies $rovided %ithin the $revious t%o#*ear $eriod and

should include the follo%ing information, in addition to information reuired under

Article 2+" of the 8CM Agreement the 8CM notification $rocess, to the e(tent $ossible,the follo%ing information! #ishing$ the 2776 greeent on Port +tate *easures toPrevent$ ,eter and =liinate > #ishing$ as 0ell as instruents establishing and adopted by8egional #isheries *anageent -rganizations$ 0hich are defined as intergovernentalfisheries organizations or arrangeents$ as appropriate$ that have the copetence toestablish conservation and anageent easures.

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November 24, 2!"

d' strive to act consistentl* %ith relevant conservation and management measures

ado$ted b* regional fisheries management organizations of %hich it is not a

member so as not to undermine those measures/ ande' endeavor not to undermine catch or trade documentation schemes o$erated b*

regional fisheries management organizations &6-M5' or arrangements &6-MA'or an international organization that has in its sco$e the management of shared

fisheries resources, including straddling and highl* migrator* s$ecies, %here such

Part* is not a Member of those organizations or arrangements+!


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November 24, 2!"

&b' maintain or strengthen government ca$acit* and institutional frame%or0s to

$romote sustainable forest management and %ild fauna and flora conservation,

and endeavor to enhance $ublic $artici$ation and trans$arenc* therein/ and&c' endeavor to develo$ and strengthen coo$eration and consultation %ith interested

non#governmental entities in order to enhance im$lementation of measures tocombat the illegal ta0e of or illegal trade in %ild fauna and flora+

+ In a further effort to combat the illegal ta0e of, and illegal trade in, %ild fauna and flora,

including $arts and $roducts thereof, each Part* shall ado$t or maintain a$$ro$riate

measures that allo% it to ta0e action to $rohibit the trade, transshi$ment or transaction

%ithin its territor* of %ild fauna and flora that, based on credible evidence, %ere ta0en or

traded in violation of that Part*?s la% or a foreign la%, the $rimar* $ur$ose of %hich is to

conserve, $rotect or manage %ild fauna or flora+ 8uch measures should include sanctions

or $enalties at levels %hich act as a deterrent to such trade, transshi$ments or transaction++ In order to $romote the %idest measure of la% enforcement coo$eration and information

sharing among the Parties to combat the illegal ta0e of or illegal trade in %ild fauna and

flora, the Parties shall endeavor to identif* o$$ortunities, consistent %ith their res$ective

domestic la% and in accordance %ith a$$licable international agreements, to enhance la%

enforcement coo$eration and information sharing, for e(am$le b* creating and

$artici$ating in la% enforcement net%or0s+

Article SS.1 Environmental /oods and Services

!+ The Parties recognize the im$ortance of trade and investment in environmental goods and

services as a means of im$roving environmental and economic $erformance and

addressing global environmental challenges+2+ Accordingl*, each Part* has, consistent %ith its national circumstances, eliminated all

customs duties u$on entr* into force of this Agreement on a %ide range of environmental

goods and as soon as $ossible on all other environmental goods+!. -urthermore, in recognition of the im$ortance of environmental services in su$$orting

environmental goods trade and delivering benefits in their o%n right, each Part* has,

consistent %ith national circumstances, limited its restrictions on trade in environmental

services, including environmental service su$$liers, in accordance %ith Cha$ter FF

&Investment', Cha$ter FF &Cross order Trade in 8ervices', and Cha$ter FF &Tem$orar*

;ntr* for usiness Persons'+4+ The Committee shall consider issues identified b* Parties related to the trade in

environmental goods and services, including issues identified as $otential non#tariff

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November 24, 2!"

barriers to such trade+ The Parties shall endeavor to address an* $otential barriers to trade

that ma* be identified b* a Part*, including b* %or0ing through the Committee and in

con)unction %ith other relevant TPP Committees, as a$$ro$riate++ The Parties ma* develo$ bilateral and $lurilateral coo$erative $ro)ects on environmental

goods and services to address current and future global trade#related environmentalchallenges+

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November 24, 2!"

E;$ivalenc5 in Scope o" Covera%e

!+ efore initiating dis$ute settlement under the Agreement for a matter arising under

Article 88+" 1effective enforcement obligation and non#derogation3, a Part* &Dthe

initiating Part*E' shall consider %hether it maintains environmental la%s that aresubstantiall* euivalent in sco$e to those that %ould be the sub)ect of the dis$ute and

e(ercise restraint in ta0ing recourse to dis$ute settlement under this Agreement %ith

res$ect to an* la%s for %hich it has no substantiall* euivalent obligation+2+ =here an initiating Part* has reuested consultation %ith another Part* &Dthe res$onding

Part*E' under Article 88+!2 1;nvironment overnment Consultations3 for a matter

arising under Article 88+" 1effective enforcement and non#derogation3, and the

res$onding Part* considers that the initiating Part* does not maintain environmental la%s

that are substantiall* euivalent in sco$e to those that %ould be the sub)ect of the dis$ute,

the Parties shall discuss the issue during the consultations+

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Secret TPP treaty: Report from Chairs of

Environment Chapter for all 12 nations

WikiLeaks release: January 15, 2014

Description

This is the confidential Chairs' report from the Environment Working Group of the Trans-PacificPartnership (TPP) talks between the United States, Japan, Mexico, Canada, Australia, Malaysia,

Chile, Singapore, Peru, Vietnam, New Zealand and Brunei Darussalam. The treaty is being negotiated

in secret by delegations from each of the 12 countries, who together account for 40% of global GDP.

The report was drafted by the Chairs of the Environment Working Group, at the request of the TPP

Ministers and at the Chairs' own responsibility, and sets out the Party positions around the main areas

of tension in the Environment Working Group, noting that compromises will be needed by all the

Parties to reach a final agreement. The report accompanies the draft Consolidated Text made by the

Chairs on the same date and details the disagreements between the Parties on this Consolidated

Text. The report dates from the Salt Lake City meetings but before the December Singapore TPP

Ministerial Meeting was prepared.

keywords:

restraint:

title:

date:

group:

author:

link:

pages:

TPP, TPPA, treaty, asia, pacific, negotiation, environment, fisheries,

biodiversity, climate change, trade, investmentThis Document Contains TPP CONFIDENTIAL Information

MODIFIED HANDLING AUTHORIZED

Trans-Pacific Partnership Agreement:

Report from the Chairs for Environment Chapter

November 24, 2013

Trans-Pacific Partnership

Trans-Pacific Partnership Environment Working Group Chairs

http://wikileaks.org/tpp-enviro-chairsreport

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November 24, 2!"

TPP ENVIRONMENT WORKING GROUP

Report from the Chairs and Consolidated Text for the Environment Chapter

!# As re$uested b% TPP Ministers at their August 2!" meeting in &runei, 'lease find

attached a consolidated te(t drafted b% the Chairs of the TPP )nvironment *or+ingrou' in res'ect of the TPP )nvironment Cha'ter# In drafting this consolidated te(t, theChairs have been guided b%-

.a#/ The state of the te(t at the end of the &runei 0ound, as 1ell as discussions that haveoccurred, both in 'lenar% and in 1or+ing grou's, in each of the negotiating rounds in1hich the Chairs have 'artici'ated# The te(t is based solidl% on the ground established b%the Parties over the course of this negotiation

.b#/The vie1s and concerns e('ressed b% each Part% during the bilateral meetings held 1iththe Chairs during the 1or+ing grou' sessions in Mala%sia, &runei and the 3nited tatesand

.c#/ The 'ers'ective of the Chairs on 1a%s to bridge some of the differences bet1een the

Parties on s'ecific issues, dra1ing from its e('erience negotiating man% of these +inds of'rovisions over the 'ast decade#

2# The Chairs sought to 're'are a consolidated te(t that is balanced, 'resents a 'ac+age thatencom'asses com'romises across all issues, and attem'ts to consider the interests andconcerns of all TPP Parties# In doing so, the te(t has sought to resolve the three maintensions that e(isted 1ithin the )nvironment *or+ing rou'#

"# 5irst, ho1 best to balance the need for ambitious obligations in a trade agreement to'rotect and conserve the environment 1ith the +een interest from some Parties to includesubstantive commitments to coo'erate on s'ecific to'ics# 6n this issue, the consolidated

te(t sets out ambitious obligations 1hile 'roviding for fle(ibilit% and coo'eration 1herehel'ful to assist Parties in im'lementing these obligations#

4# econd, ho1 best to determine the a''ro'riate role for this Agreement in addressingissues that are being dealt 1ith or negotiated in other multilateral fora# The consolidatedte(t 'rovides a uni$ue role for TPP Parties b% setting out commitments that com'lement1or+ under1a% in other fora, and avoiding obligations that ma% serve to overla' ordu'licate, or even undermine, those issues under negotiation or addressed in othermultilateral fora#

7# Third, recognizing that the dis'ute resolution 'rovisions have been a 'articularl%

challenging issue, the te(t includes a credible a''roach, based on coo'eration andcollaboration to resolving 'otential dis'utes bet1een the Parties, 1hile ensuring a role foran inde'endent third 'art% to assist Parties to resolve the matter#

6. Nevertheless, and 1hile the Chair sought to accommodate all the concerns and red linesthat 1ere identified b% Parties regarding the issues in the te(t, man% of the red lines forsome Parties 1ere in direct o''osition to the red lines e('ressed b% other Parties# It bears

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November 24, 2!"

em'hasizing that it is these differences that have 'revented the )nvironment *or+ingrou' from reaching agreement on all as'ects of the Cha'ter#

7. *hile 'rogress has been made since the &runei meeting, these differences remain toda%#To reach agreement on the remaining Articles, it is clear that Parties 1ill need to find ameans to com'romise# All Parties in this negotiation have alread% made man%com'romises, ho1ever, in reflecting on the status of the remaining issues in the)nvironment Cha'ter, it is clear that more com'romises 1ill be re$uired to reach a finalagreement#

8# *ith that in mind, and noting that the Articles on 6b9ectives, eneral Commitments,Procedural Matters, 6''ortunities for Public Partici'ation, Public ubmissions,Cor'orate ocial 0es'onsibilit%, :oluntar% Mechanisms to )nhance )nvironmentalPerformance, Coo'eration 5rame1or+s, Institutional Arrangements and Invasive Alien'ecies are agreed, 'lease find belo1 a summar% of the status of the remaining Articles%et to be agreed-

!" #efinitions

C;, P), :N and M< o''ose the inclusion of ='rovision thereof> in the cha'eau of the

definition 1hile some other Parties cannot acce't such a narro1ing of the sco'e ofcoverage#

C; o''oses a reference to the multilateral environmental agreements in the

environmental la1 definition, lin+ing it to the obligations in the Cha'ter overall#

C; o''oses having a definition on statute or regulation because Parties are committing

1ith res'ect to environmental la1s at the central level of government onl% and is across?cutting issue#

@P considers that additional elements are necessar% to the language relating toe$uivalenc% in sco'e of coverage#

Parties continue to discuss a mechanism for a dialogue on sub?federal environmental

la1s#

M is considering the elimination of the 'hrase =in the Part%Bs territor%#>

!$ M%ltilateral Environmental &'reements

This issue relates to ho1 to address M)As in this Cha'ter one of the main tensions in

this cha'ter#

3 'ro'oses obligations to ado't, maintain, and im'lement measures to fulfill s'ecific

M)As .CIT), Montreal Protocol and MA0P6;/ into the TPP enforceable through the

D cha'ter if failure to do so 1ould affect trade or investment# A3, &N, CA, C;, @P, M, NE, P), and :N o''ose such incor'oration in this 1a% as

the% do not consider it a''ro'riate to incor'orate those obligations that have beennegotiated in different circumstances and sub9ecting them to a dis'ute settlementmechanism in the TPP#

:N, C;, M


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November 24, 2!"

!"( Cons%ltations)#isp%te ettlement

There is agreement amongst A3, &N, CA, C;, @P, M, M


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November 24, 2!"

Pending :N and Bs confirmation on a 'ossible com'romise language related to

'aragra'h !7.b/#

3 'osition is that a robust outcome on marine fisheries is necessar% to demonstrate

fle(ibilit% on the G M)As listed#

!"0 Conservation

3 'ro'osed obligations to ado't, maintain, and im'lement measures to fulfill CIT)

obligations into the TPP enforceable through the D cha'ter if failure to do so 1ouldaffect trade or investment#

A3, &N, CA, C;, @P, M, M

environment chapter of secret trans-pacific partnership draft

Documents