THE BLOG

The Trans-Pacific Partnership (TPP) and the Ocean

06/02/2015 03:53 pm ET | Updated Jun 02, 2016

World governments are embroiled in a new conversation regarding the inherent tension between the elimination of most trade constraints advocated by corporations, investors and some economists and environmental protections advocated by environmentalists and labor who point to the already adverse impact of such unregulated exchange as evinced by actions taken by the World Trade Organization and the North American Free Trade Agreement (NAFTA).

The conflict has risen again in the proposed Trans-Pacific Partnership under negotiation and consideration by 12 countries from Asia and the Americas and pertaining to complex and complicated attempting to manage a global economy that now includes the growing, successful trade-based economies of Pacific nations. The debate is intense, and is further confused by the lack of information available to the public, and even to many of the elected officials, who must vote to accept conditions of which they are not fully aware. The deliberate secrecy may have its justifications, but not in a society that prides itself on transparency and open discussion of the issues. Deliberations have been going on for eight years, and still we know virtually nothing about the specific terms and possible impacts.

Enter Edward Snowden and Wikileaks, that in 2014 published the draft chapter on environmental issues many of which directly affect the ocean. In January 2015 an analysis of the draft chapter was published in The New York Law Journal by Stephen L. Kass of the New York firm Carter Ledyard & Milburn that provides interesting insights into the prospective terms of the proposed agreement.

Past such agreements hardly referred to environmental issues at all and the consequence is the basis for much of the current opposition. The TPP environmental chapter has sub-sections on fisheries protection, endangered species, climate change, corporate conduct, conflict resolution and enforcement. It addresses compliance with prior multi-lateral environmental agreements such as the Convention on International Trade in Endangered Species, the Convention on Marine Pollution, the Ramsar Convention on Wetlands, the International Whaling Convention, the Convention of Antarctic Marine Living Resources, and several more.

Environmental groups' reaction to these terms is mixed. Many (including the Natural Resource Defense Council, the Sierra Club and the World Wildlife Federations) have actively objected that the new agreement dilutes the required standards and enforcement obligations of these prior commitments by allowing individual nations options to dilute, ignore or fail to enforce -- in other words to weaken environmental protections already established.

Further, according to Kass's analysis:

Alleged violations of TPP environmental commitments are subject to a lengthy three-stage consultation process... virtually guaranteed to require several years of negotiations which, if successful, lead to arbitration before a specially constituted arbitral panel whose only power, at the end of that undoubtedly length additional proceeding, is to issue a report determining whether the alleged violation has occurred and, if so, to require the disputing parties to 'endeavor to agree'...on a mutually satisfactory action.

If you follow that, you will have followed a long and inconclusive quasi-judicial process that takes you right back to where the disagreement started.

With regard to illegal, unreported and unregulated fishing, Kass points out that while the language includes numerous and welcome commitments to protection of wild fish-stocks, marine mammals and ocean pollution, the document, "suffers from the ineffective enforcement provisions," as well as weak language on certain practices (shark-finning, for example), trade in threatened and endangered species, and fishing subsidies that create known unfair practices that contribute to over-fishing and declining stocks.

Regarding climate change, the language seems even weaker, allowing actions to, "reflect domestic circumstances and capabilities," which Kass concludes in the United States means, "no foreseeable federal legislation." There is recognition of an option to reduce dependence on fossil fuel subsidies that encourage wasteful consumption, but that too is delimited by existing dependence and policies that fail to curtail consumption demand and correlative government policy and corporate profit. Given the exceptions, conventional behaviors and voluntary commitment, it seems as if climate action comes down to, "sharing information and experiences."

Kass makes one key observation regarding U.S. involvement and leadership leverage in this debate: our lack of political creditability and standing as a result our failure to ratify other earlier relevant treaties, from the Kyoto Protocol on climate to the UN Convention on the Law of the Sea, failures that do not provide moral or actual leadership by which to hold others to account.

That ocean issues are included in this proposed international agreement at all is to be celebrated. But not as "blue wash," language that means nothing when it comes to international behaviors in the ocean left unchanged because we could mean what we say, nor say what we mean.