While it is common to oppose trade objectives to environmental concerns, it is equally common to oppose multilateralism to bilateralism. However, these dichotomies are not inevitable. Bilateral trade agreements can serve the purpose of multilateral environmental agreements.
Some trade agreements, for example, reinforce the global environmental regime on genetic resources. In a CIGI policy brief, we show that more than 50 trade agreements have at least one provision on genetic resources. Most of them call upon their parties to implement the 1992 Convention on Biological Diversity (CBD), either in its entirety or in relation to specific articles. Six agreements go as far as to affirm the primacy of the Convention in cases where a trade agreement’s provisions are inconsistent with the Convention. Even the US, which is not a party to the CBD, emphasises the importance of prior informed consent and benefit sharing in some of its trade agreements.
Protecting traditional knowledge in trade agreements
Several trade agreements also incorporate provisions relating to traditional knowledge that are analogous to those created by the CBD and its Nagoya Protocol. More than 40 agreements mention traditional knowledge, most often enjoining states to put into place domestic measures to ensure its protection. Some agreements ensure that access to this knowledge is subject to the prior informed consent of indigenous communities, and others encourage the sharing of benefits derived from the use of this knowledge.
Thirteen trade deals go even further than the Nagoya Protocol by explicitly authorising the parties to require disclosure of origin as a condition of patenting genetic resources, so as to evaluate whether the resources were legally obtained. Similarly, certain agreements call on their parties to put into place a specific intellectual property system to protect traditional knowledge emanating from indigenous communities. These provisions are so precise that they have been rejected in multilateral settings.
Opposing bilateralism and multilateralism?
Moreover, certain trade agreements determine that the general dispute-settlement mechanism of the agreement also applies to provisions on genetic resources. This marks a significant expansion of the means available to states to ensure the implementation of international obligations relating to genetic resources
These examples show that a country can use trade negotiations as a lever with respect to obligations contained in multilateral environmental agreements. In some cases, environmental provisions found in some bilateral trade agreements can be even more precise and enforceable than those of multilateral environmental agreements.
Thus, there is no reason to systematically oppose bilateralism to multilateralism, and trade promotion to environmental protection. While it remains only too rare, they can go hand in hand.
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