This is from the Trade and Sustainable Development chapter of the Japan-EU Economic Partnership Agreement (JEEPA), circulated by the EU last week:
Article 4
Multilateral environmental agreements
...
4. The Parties reaffirm their commitment to achieving the ultimate objective of the United Nations Framework Convention on Climate Change (UNFCCC). The Parties commit to work together to take actions to address climate change towards achieving the purpose of the Paris Agreement adopted by the Conference of the Parties to the UNFCCC at its 21st session.
5. Nothing in this Agreement prevents a Party from adopting or maintaining measures to implement the multilateral environmental agreements to which it is a party provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction on trade.
Paragraph 4 might seem to be the bigger deal, with its reference to the Paris Agreement, but it just has the usual soft language typically used for environmental issues. I'm more interested in paragraph 5. To my surprise, this looks, at first glance, like a real exception, and an interestingly worded one at that. (The EU-Singapore FTA also has this provision).
Perhaps I missed it, but I did not see a JEEPA general exception for trade in goods yet (the exceptions for services, investment and e-commerce are here). But presumably, such exceptions will be included when the agreement is fully negotiated (at least by incorporation from GATT Article XX), and will use language something like this (from Article XX):
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
(b) necessary to protect human, animal or plant life or health;
...
(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;
Note three key differences between the JEEPA Article 4, paragraph 5 language quoted above and GATT Article XX.
First, there is no qualification about measures being "necessary" or even "relating to." JEEPA just says "measures to implement the multilateral environmental agreements." Now, perhaps the "to" is enough of a connection to imply that such measures must be something close to "relating to," and the analysis would be a typical means-ends one. But even so, we have something easier to satisfy than "necessary." Why not include "necessary"? Is there a shift in thinking about the appropriateness of "necessary" tests?
Second, rather than saying "nothing in this Agreement shall be construed to prevent," the JEEPA says "[n]othing in this Agreement prevents." Does that matter? Is there an argument that paragraph 5 is not supposed to be an operative exception, like Article XX is, but rather paragraph 5 just describes the negotiators' view of the impact of the JEEPA more broadly?
And third, the provision is not in a section entitled "exceptions." Not that an exception has to be in such a section, but nonetheless does this give us any insight as to whether the negotiators meant this provision to be an exception?
So what's going on here? Is this a new, easier to satisfy, exception that applies only to a sub-category of environmental measures? Or is it more like a non-binding preambular statement?
