Free Trade Area of the Americas - FTAA

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Trade Negotiations

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May 15, 2002

Original: Spanish
Translation: FTAA Secretariat



Name (s) Mesa de Trabajo hacia un Diáologo Nacional sobre Comercio y Ambiente – Sociedad Peruana de Derecho Ambiental [Panel for a National Dialogue on Trade and the Environment—Peruvian Society of Environmental Law]
Organization (s) Trade associations, employers’ associations, entrepreneurs, NGOs, academics, public sector
Country Peru


The implementation of WTO trade agreements in developing countries has revealed a variety of weaknesses that constitute severe obstacles to the fulfillment of international commitments, but at the same time throw into relief the limited capacity of developing countries to derive any significant benefit from globalized free trade. Therefore, with regard to the implementation of the FTAA agreements in general, and its relation to environmental management in particular, we feel strongly that a Chapter on Measures for Implementation of FTAA Agreements should be adopted, in order to ensure that the Free Trade Area of the Americas may become a trading space in which all countries enjoy real and equal chances to further their economic growth and their overall sustainable development, the latter concept being understood as the proper integration of economic growth, environmental protection and social well-being in every State Party to the FTAA, and as the foundation for the implementation of all trade provisions in the free trade area.

Even if no specific chapter on the relationship between trade and environment is negotiated or adopted, the fact that many aspects of the negotiations are implicitly linked to environmental management in States Party to the Agreement should be taken into account. In general, it must be recognized that practically any economic policy or decision indirectly implies an environmental decision. A proper analysis of the agreements being negotiated is therefore advisable, in order to make their environmental implications explicit and adopt the necessary measures to avoid disputes or obstacles in the spheres of trade and the environment.

Outlined below are some of the subjects we think should necessarily be included in the proposal for an FTAA chapter on implementation measures, or which could be addressed across the board in the various chapters of the final text of the FTAA Agreement. Nevertheless, our recommendation would be to incorporate the measures, which are based on the characteristic shortcomings and weaknesses of the developing countries, rather than on differences in the subject matter of the various chapters of the FTAA Agreement, in a separate chapter to prevent them from receiving uneven treatment. This is particularly relevant with regard to environmental management, in view of the great asymmetries and differences between the progress made by the developed countries and the severe limitations faced by the developing countries in environmental management. These differences call for flexible rules conducive to progressive improvements in environmental stewardship, while ensuring that environmental rules do not become hindrances to economic growth. Furthermore, the negotiation of these aspects as a separate chapter would ease the practical problem of sparse representation, in some negotiating forums, of countries with weaker economies, which cannot afford to include specialists in each subject in their delegations.

These aspects are:

1. Special and Differential Treatment for the developing countries of the region, or those facing severe macroeconomic crises, in order to ensure that the implementation of the FTAA agreements shall not affect, limit, or restrict the adoption or implementation of active national, regional, or local development policies, plans, programs or activities, without prejudice to due consideration of the Principle of National Treatment.

2. A principle of gradual implementation of the various agreements, with differential time frames and flexibility-oriented measures that would permit the temporary, exceptional suspension or postponement of compliance with certain specific provisions, in view of the particular characteristics, capacities, and development conditions of the individual countries.

3. Respect for Multilateral Environmental Agreements , to prevent the weakening or circumvention of commitments by the States Party to them, through provisions of the FTAA agreement.

4. Implementation of environmental protection policies, rules, or instruments on strict criteria of territoriality, according to which national environmental protection regulations cannot be applied to the goods or services of other countries, based on aspects related to their methods and processes of production, except for proven reasons of health or the public security of the importing country.

5. Recognition of the Principle of Common but Differential Responsibilities enshrined in the Conference on Human Environment and Development (Stockholm, 1972) and in the United Nations Conference on Environment and Development (Rio de Janeiro, 1992), as the foundation of a strategy of cooperation towards developing countries, to guarantee technical and financial assistance for the development of skills for strengthening the synergies between trade and environment and sustainable development, and to mitigate the severe impacts of trade liberalization on such unequal partners as the developed economies and the developing countries, mainly as regards microenterprises and small and medium businesses.

6. Recognition of the principle of Prior Informed Consent for international trade in goods whose use or consumption is prohibited in their country of origin, since these may adversely affect or endanger the environment or public health.

7. Adoption of intellectual property measures in accordance with the terms of the Convention on Biological Diversity, according to which the recognition of the ancestral knowledge of indigenous communities and the equitable distribution of benefits derived from its use must be guaranteed.

8. Dispute resolution measures with differential and adequate conditions for resolving conflicts between developed and developing countries, with particular reference to aspects of environmental management, in order to ensure results that are consistent with environmental protection and the sustainable development of the parties to the dispute.

9. Measures relating to Foreign Direct Investment, to ensure that foreign investors do not pursue a lower standard of environmental protection than that adhered to by their home offices, in countries with weak or embryonic environmental management laws and institutions.

It must further be emphasized that better instruments and forums for dissemination of information are a necessity, to ensure due transparency in the negotiating process. In this regard, we believe that the environmental implications or impacts of the chapters should be assessed as they are negotiated, so that dissemination of the results may bring about better and more proactive participation of civil society in the FTAA process.

In keeping with this principle of transparency, we also request an explicit and well-grounded account of the approval or rejection of the civil society contributions, in the framework of the public consultation process promoted by the Committee of Government Representatives on the Participation of Civil Society in the FTAA.

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