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Assessing the implementation and effectiveness of environmental provisions
At the turn of the decade, it became possible to draw meaningful lessons from the experience accumulated and provide guidance on implementation issues. In 2011, the JWPTE drew up a framework for evaluating the implementation of environmental provisions in RTAs, with a checklist approach to the evaluation of countries’ experience of implementation that complemented the checklist for negotiators published in 2008 (Gallagher and Serret, 2011[40]). Among the issues addressed were institutional arrangements, co-operation, capacity building, public participation, resolution of differences and assessment.
In 2014 the JWPTE took stock of environmental provisions in RTAs to identify trends and policy drivers that could explain the presence or absence of these provisions (George, 2014[34]). The analysis of the environmental provisions in RTAs revealed an upward trend in such provisions (Figure 6). The two most common basic provisions were either associated with Article XX of the General Agreement on Tariffs and Trade or Article XIV of the General Agreement of Trade in Services, or contained in a reference to environment or sustainable development in the RTA preamble. They figured in about 80% and 50% respectively of the RTAs reviewed. Nevertheless, the incidence of more substantive provisions had increased significantly, from around 10% of those entering into force in 2010 to 70% for those that did so in 2012, upholding environmental law, indicating specific environmental issues, pursuing environmental co-operation and setting implementation mechanisms being the most common. The provision for associated ex-ante impact assessment reached about 20%. There was also more reference to public participation and dispute settlement mechanisms. This could have been due to countries extending their political mandates for RTAs, for example to include provisions for compliance with MEAs, as well as more experience with the use of environmental provisions.
Since 2015, the JWPTE has continued to investigate RTAs and their environmental provisions, though attention has shifted from tracking and analysing the typology of environmental provisions in RTAs towards more analytical work. The focus has been on how governments actually implement these environmental commitments and whether these commitments have had an impact on environmental endpoints. Two main approaches have been used: documentation and analysis of the implementation of environmental provisions through surveys and desk analysis, and empirical assessment of the effectiveness of environmental provisions through econometric analysis.
Although many RTAs are subject to ex-ante impact assessments, few require the parties to carry out impact assessment of the environmental effects of the agreements after implementation. A 2018 report adopted a two-track approach to understanding this issue with a review of implementation and evaluation reports associated with environmental provisions, followed by a survey of government officials, trade negotiators and other experts (George and Yamaguchi, 2018[42]). The report develops a method for measuring the degree of commitment of environmental provisions in RTAs, which was then used to carry out an ex-post environmental impact assessment. It identified the key types of environmental provisions included in RTAs and outlines the specific areas they cover. Implementation is assessed using a range of measurements, from direct measurable changes (e.g. the creation of committees and co-operation bodies, or co-operation funding) to “softer” environmental policy changes, even if direct causality with environmental provisions could not be demonstrated. A set of indicators was developed to measure the degree of attention given to environmental issues in the agreement and the extent to which the legal texts bound the parties to adhere to or implement their environmental provisions. These commitment indicators were tested on a sample of twelve RTAs and found to be useful for ex-post impact assessment.
The exercise revealed a considerable lack of knowledge about the implementation of environmental provisions in RTAs. There was nevertheless anecdotal evidence that these provisions have contributed to positive outcomes, including stronger environmental regulations, new institutional arrangements, environmental co-operation and improved public awareness on environmental governance. Such results highlight the importance of measuring progress in implementing environmental provisions. While some countries may find it harder to obtain the necessary resources, all countries that promote the inclusion of environmental provisions in RTAs could benefit from strengthening their processes of monitoring, reporting and review. The study noted that the effectiveness of environmental provisions in providing environmental outcomes is poorly researched. Nevertheless, with 121 RTAs with explicit reference
