Trade, agriculture and UNFCCC

Legal assistance paper

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Date produced: 19/11/2009

1. Is trade related language redundant under the UNFCCC, or can trade obligations/performance standards etc be recognised in this entirely separate legal instrument?

2. Should language aimed at blocking international performance standards be deleted given that the regime for regulating international trade recognises the role of performance standards for such things as biosecurity, biosafety and food safety along with FSC certification? What might be the best language to use and/or what aspects of trade law might be useful to reference? 

1. Trade-related language is not necessarily legally redundant.  The UNFCCC clearly does not operate in a legal vacuum: it interacts with other international treaties, including WTO law and environmental treaties such as the Convention on Biological Diversity.  This interaction can either be expressly regulated, or be left to the operation of general principles of international law (in particular rules of treaty law in the Vienna Convention on the Law of Treaties).  Ideally, the former is to be preferred, because the general principles are ambiguous and uncertain.  Disputes may arise in other fora (such as the WTO), and their outcome is more uncertain if interactions are un-regulated.  However, it is clear that expressly regulating interaction requires substantial political commitment and opens up further, highly complex issues.

2. I wonder whether it is useful to refer to performance standards.  One could simply have a general reference to “measures” which adversely affect sustainable development or result in “unnecessary barriers” to and distortions of international trade in agricultural products.  Measures refer to both international and domestic measures.  The addition of the term “unnecessary” would constitute an implicit reference to principles developed primarily in WTO case-law, which strikes a good balance between free trade and environmental protection (though I am sure not all NGOs see it that way).  As the language is aspirational, it clearly would not have the effect of prohibiting environmentally useful performance standards.