Compare the level of environmental commitments in the CPTPP Agreement with environmental commitments in WIO Agreements and some other free trade G06 Oi CNB cna setecnersercusinpcteeretta
Overview of environmental commitments in the CPTPP Agreement
Overview of the content of environmental commiments in the CPTPP 1.2.2 Compare the level of environmental commitments in the CPTPP Agreement
The CPTPP Agreement is a new generation free trade agreement Compared to traditional FTAs environmental commitments in CPTPP are higher in both complexity and level of environmental commitment and constraints Environmental commitments in CPTPP are mandatory for member countries to implement through the use of economic tools This is also the first multilateral trade agreement that Vietnam participates in that includes environmental content as a chapter in its commitments Accordingly, the regulations require participating parties to have the obligation to implement commitments on environmental protection, biodiversity and climate change, enforcement institutions and resolve arising disputes The content of the commitments aims to promote mutual support between trade and environmental policies, support countries to take appropriate measures to further promote environmental protection activities, limit exploitation and depleting use of natural resources, at the same time, further promote trade liberalization for goods and services towards a transition to a green economy and a low-carbon economy.
Within the CPTPP framework, 11 members commit to effectively enforce environmental laws and not undermine countries environmental legal systems to encourage trade and investment Chapter 20 of CPTPP sets out regulations on promoting trade, protecting the environment and effectively enforcing environmental laws The main contents on environmental protection in chapter 20 of CPTPP include
23 articles, which can be summarized into 4 basic contents including
Group 1: General provisions related to definitions, objectives and general statements of the Agreement, including 3 articles 1, 2 and 3,
Group 2: Provisions related to regulations on transparency and public participation, including 3 articles7, 8 and 9;
Group 3: Provisions related to organizational activities, responsible agencies and mechanisms for coordinating implementation and resolving disputes, complaints and clarifying related issues between participating parties, including 6 articles 12, 19,
Group 4: Includes direct provisions on environmental issues: (1) Environmental goods and services; (2) Multilateral environmental agreements; (3) Protect the ozone layer; (4) Protect the marine environment from pollution caused by shipping, (5) Trade and biodiversity, (6) Trade and conservation (wildlife), (7) Invasive alien species, (8) Transition to a low-carbon and self-reliant economy, (9) Fisheries industry catches fish at sea, (10) Voluntary mechanisms to promote environmental enforcement; (11) Social responsibility cooperation.
Compared to the first FTAs, the CPTPP Agreement for the first time officially included four new outstanding issues including (1) Commitments on environmental goods and services, (2) Commitments on transition to a low carbon economy, (3) Issues related to ocean pollution and decline of marine aquatic resources due to fishing activities, (4) Establishment of the environmental committee, issues related to national communication and mechanisms to resolve trade and environm ental issues between countries.
On that basis, the CPTPP Agreement has identified a group of cooperative commitments and a group of in-depth commitments between the Parties participating in the Agreement Accordingly, the group of commitments has a cooperative nature, including commitments on cooperation to facilitate trade in goods and services with support, contributing to the implementation of green growth and a low-carbon economy The group of in-depth commitments includes content on limiting pollution and resource depletion due to commercial activities This group focuses on biodiversity, conservation, voluntary environmental enforcement mechanisms, ozone layer protection, and alien species.
122 Compare the level of environmental commitments in the CPTPP Agreement with environmental commitments in WIO Agreements and some other free trade agreements
Due to the sensitive nature of trade and environmental issues, so far, within the framework of the WTO, there has not been a multilateral agreement specifically addressing this trade and environmental issue However, the urgency of environmental protection are recognized in the preamble of the agreement establishing the WTO and in many WTO agreements Accordingly, the preamble of the Marrakesh Agreement acknowledged:
The Parties to this Agreement recognize that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living ensuring full employment and a large and steadily growing volume of real income and effective demand , while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment.
In WTO, environmental regulations are shown in GATT; GATS; The Technical Barriers to Trade (TBT) Agreement, The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement); Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), Agreement on Subsidies and C ountervailing Measures SCM Agreement); Agreement on Agriculture (AoA) The specific regulatory framework of these provisions is different, but in general, such measures are subject to the following conditions:
First, they must be necessary to achieve the desired level of protection. Second, they may not constitute arbitrary or unjustifiable discrimination between Members Third, they may not be used as disguised trade barriers. Fourth, they are to be based on scientific principles risk assessment methods Fifth, they should be the least trade restrictive, consistent with achieving the desired level of protection and recognising the risks associated with non-compliance Sixth, members should adhere to the principle of transparency in the adoption and enforcement of such measures Seventh, members should provide technical assistance to other
Members, particularly to the developing and least developed countries, in complying with such measures for market access `
Specifically, Article XX.b and Article XX.g allows WTO members to implement policy measures inconsistent with GATT where necessary to protect life in general and natural resources in particular, However, Article XX also clearly
The United Nations Food and Agricukure Orgmnization (FAO) (1999), Culaiveaing Ora Funaes, Backgrovaxt Paper 4: Zyvironment coxa Trade, Netherlnds.
Limk: https /Axvri fao org/3h2775e0775E06 hm , accessed on March 30, 2024. stipulates that member countries may not use these exceptions to create arbitrary discrimination or disguised restrictions on the products of other members In addition, to avoid cases where countries have measures to build disguised trade barriers, WTO has introduced the principle of non-discrimination in the WTO, including most- favored nation (MEN) treatment whichis specifiedin Article I and specifiedin Article
TH of GATT The GATT principle of non-discrimination has a fundamental bearing on the formulation and enforcem ent of environm ental policies by WTO Members and also helps prevent the abuse of environmental policies and their use as disguised restrictions on international trade.
Next, the general exception specified in the Article XIV of GATS is similar to the general exception specified in the Article XX of GATT Accordingly, WTO members are not prevented from implementing or enforcing measures necessary to protect human, animal or plant life or health It can be seen that the common point between Article XX GATT and Article XIV GATS is that WTO allows members to deviate from the basic principles of the WTO in some cases to protect important interests Specifically, policies affecting trade in goods and services that protect human, animal, and plant life and health are exempt from the normal rules of GATT and GATS under certain conditions In particular, the application must not create arbitrary or absurd discrimination between countries with the same conditions or create disguised restrictions on international trade.
Besides, environmental commitments are integrated into some WTO Agreements but are mainly expressedin the form of necessary measuresimplemented for environmental protection and sustainable development Specifically:
Firstly, the TBT Agreement regulates the development, enactment and application of technical requirements for products as well as procedures related to the assessment of conformity of that product with technical requirements The Preamble and Article 2.2 of this Agreement recognize that WTO members have the right to take necessary measures to pursue certain legitimate objectives, including the objective of protecting the health and safety of people, the health and life of plants and animals,and environmental protection To achieve these objectives, members have the right to apply a level of protection that they consider reasonable However, measures implemented to meet these legitimate objectives must comply with the provisions of the TBT Agreement, including not being applied in a way that creates arbitrary or unreasonable discrimination bebveen countries with the same conditions or disguised barriers to international trade (Preamble and Article 2.1 of the TBT Agreement). Technical (mandatory) regulations must not be more trade-restrictive than necessary to achieve legitimate objectives such as environmental protection This Agreement encourages members to apply international standards to limit differences between. national technical standards Members must use international standards as the basis for technical regulations, except where international standards are not an effective or appropriate means of meeting legitimate objectives (Article 4 of TBT Agreement). Regulations on notification obligations to make technical requirements for imported goods transparent and limit trade distortions that technical regulations, including environmental regulations and standards cause In fact, many trade-related environmental measures have been notified by members under the TBT Agreement.
Second, the SPS Agreement in the WTO regulates the application of regulations about food safety and animal and plant health Basically, the SPS Agreement is similar to the TBT Agreement in terms of mechanism and method of operation, except for the subject and scope of application Article 3.2 SPS Agreement: “Sanitary or phytosanitary measures which conform to international standards, guidelines or recommendations shall be deemed to be necessary to protect hanan, animal or plant life or health, and prestoned to be consistent with the relevant provisions of this Agreement and GATT 1994” Similar to the TBT Agreement, WTO members must ensure that these measures are not applied to create arbitrary or unreasonable discrimination between members with similar conditions or to leading to restrictions on international trade According to the provisions of this law, as long as a member country "complies" with international standards, it is considered complying with WTO regulations, meeting the standards of necessity to protect people's health, animals and plants The Agreement also recognizes that member states have the right to apply SPS measures for environmental protection purposes Article 3.1 of the SPS Agreement stipulates the case of “based on” international standards - the level of protection is equivalent to international standards Article 3.2 regulates the case of
“compliance” - using international standards as national standards and Article 3.3 regulates the case of applying standards higher than international standards The SPS
ENVIRONMENTAL COMMITMENTS IN THE CPTPP 2.1.1 Scope of the environmental chapter
Objectives of the environmental chapter
Asticle 20.2.1 of the Agreement affirms that the environment chapter has three objectives: (i) promote mutually supportive trade and environmental policies, (13 promote high levels of environmental protection and effective enforcement of environmental laws, (iit) enhance the capacities of the Parties to address trade-related environmental issues, including through cooperation Although these are goals consistent with Vietnam's general policies on environmental issues, the CPTPP's approach is different from the traditional approach of Vietnam's environmental law, specifically as follows:
First, CPTPP focuses on the balance between trade and the environment. Originating from its nature as a new-generation free trade agreement, CPTPP regulates environmental issues directly affected by trade activities This requires agencies that develop and implement environmental policies to also have their own approach when policies have an impact on commercial activities.
Second, CPTPP focuses more on environmental law enforcement compared to just stopping at the legal framework building stage like many previous international treaties In other words, if Vietnam only enacts regulations compatible with CPTPP,
‘but does not implement them or enforce them ineffectively, it will be considered non- compliant.
In addition, CPTPP also focuses on improving the capacity of countries to address trade-related environmental issues Vietnam is considered one of the countries with a low level of development, so Vietnam will mainly be the recipient of much support from other CPTPP member countries in capacity building As analyzed, CPTPP is essentially a free trade agreement, not an international environmental treaty, so the scope of support that Vietnam will receive will only stop at environmental issues that affect trade and investment between CPTPP countries.
Article 20.2.2 of the agreement also affirms the benefits of increased cooperation between member states to protect the environment and contribute to achieving the goals of the Agreement Accordingly, countries should promote comprehensive cooperation, not only on normal cooperation contents but also pay attention to the balance between trade and the environment This is not only an
“opportunity” to implement global sustainable development goals but also an opportunity to shorten the economic gap between developed and developing countries members,
Article 20.2.3 stipulates the principle of not creating disguised restrictions on trade or investment Accordingly, the agreement provides that countries must not abuse environmental laws to create disguised restrictions on trade and investment. This regulation is similar to the principles stipulated in the WTO, but on a broader level If the WTO only applies this principle to technical barrier measures for cross- border goods, then the CPTPP also applies to all other environmental regulations In other words, if previously the prohibition of "disguised" only applied to policies on import and export goods, the CPTPP has expanded to cover all environmental lavs such as the scope of the environmental chapter has been determined in Article 20.1.
This is considered an important regulation, but it is difficult to determine, especially the "disguised" factor in policy enactment and enforcement Determining whether the enacted policy is really for the purpose of protecting the environment or just a "disguised" measure to distort trade is extremely difficult Currently, there isno specific regulation of the WTO or any other trade agreement that specifically defines
“what is a disguised measure" According to the provisions of the TBT Agreement, if the policy has a scientific basis, based on the results of scientific research on the environment, it is not considered “disguised" The WTO also does not make any regulations that require that scientific research must be truly reliable, but only that scientific evidence is enough to justify the policies being implemented truly for the purpose of protecting the environment This regulation of CPTPP inherits commitments under the WTO framework on environmental protection in trade activities Therefore, when developing environmental policies, state agencies need to supplement scientific evidence to prove that the country's environmental policies are aimed honestly at environmental protection.
Article 20.3 sets out seven general commitments, providing for commitments on all matters relating to trade and the environment
First, member states recognize the importance of mutually supportive trade and environmental policies and practices for environmental protection in the furtherance of sustainable development Accordingly, the parties need to be clearly aware of the close relationship between trade and environmental protection The commitment also emphasizes the aspect of mutual support between trade and the environment within each member state and between member states This regulation means that commercial development must not cause negative impacts on the environment and environmental protection must not create disguised restrictions on trade
Second, the Parties recognize the sovereign right of each party to determine the level of environmental protection and its own environmental priorities, and to establish, adopt or modify environmental laws and policies Basically, this commitment is the same as the commitments under the WTO framework CPTPP did not set a common standard requiring all members to comply, but accepted that each member would have its own levels of protection and priorities in environmental protection This is considered an important factor in ensuring the balance between. trade and the environment in each country, minimizing conflicts due to national lavs being incompatible with international treaties However, in addition to creating flexibility for countries in implementing environmental protection policies, member state policies and priorities must still ensure that ligh-level environmental protection and effective implementation of those policies as the goals of CPTPP In addition, respect for national sovereignty in environmental protection is also stipulated in the CPTPP that authorities of one party are not allowed to undertake environmental law enforcement activities in the territory of another party.
Third, CPTPP does not allow any member to avoid effective enforcement of its environmental laws through repeated prejudicial actions to trade and investment
‘between the parties, after the date of entry into force of this Agreement for that party.This regulation of CPTPP has many fundamental differences compared to WTO regulations WTO focuses on building laws while the CPTPP focuses on implementing those regulations In particular, CPTPP emphasizes the obligations of members to develop and enforce laws on environmental protection at a high level In addition, CPTPP also stipulates that parties may not reduce the level of environmental protection that the country stipulates to encourage trade or investment Accordingly,
CPTPP member countries will not be allowed to weaken or reduce the environmental protection laws to promote trade or investment among members The reason for this commitment is because of the negative impact of environmental policies on trade. Reality shows that when businesses invest in a country with highly demanding environmental policies, it will lead to increased costs of complying with those regulations Therefore, businesses will tend to reduce these costs by shifting investment to countries with lower levels of environmental protection At this time, in order to ensure the attraction of foreign investment, countries will often not pass environmental regulations with high standards or not effectively enforce those regulations or lower the standards that have been and are being enforced.
Fourth, CPTPP allows members the right to exercise discretion and to make decisions such as investigation, prosecutorial, regulatory and compliance matters; the allocation of environmental enforcement resources with respect to other environmental laws determined to have higher priorities In exercising their right of discretion and making decisions in environmental law enforcement, the parties are deemed to have complied with clause 4 of this article by taking an act that represents areasonable application of the right of self-determined, or as a result of a transparent decision regarding the allocation of resources according to environmental enforcement priorities Accordingly, if national self-determination aims at protecting the environment at a high level, those policies are considered appropriate This provision of the CPTPP also demonstrates the higher desire of the parties to promote relationship between trade development and environmental protection.
Terms of transparency and public participatiom
First, promote public awareness of environmental policies and laws Article20.7 requires each member state to promote public awareness of environmental policies and laws, including enforcement and promotion processes, by ensuring that relevant information is available to the public In addition, in order to raise people's awareness, CPTPP also stipulates that national members must create the best conditions for people to access information related to the implementation of regulations in Chapter 20 of the Agreement In addition, each party must provide appropriate sanctions or solutions to deal with violations of environmental laws, and enforcement of these measures must be fair, equitable, transparent and comply with due process of law CPTPP also stipulates that each member must ensure transparency and faimess in judicial, quasi-judicial or administrative proceedings in the enforcement of environmental lews, including the handling of violations and force members to carry out procedures under the law The inspection and enforcement of these measures must be published with evidence, unless national law provides otherwise Each party shall ensure that individuals and legal entities with legitimate interests have unimpeded access to continuing judicial, quasi-judicial or administrative proceedings Each member must also ensure appropriate consideration of relevant factors when issuing appropriate sanctions and remedies that are appropriate to the seriousness of the violation with respect to the environment and economic interests This regulation ensures to limit the punishment of wrong crimes and wrong subjects, while at the same time improving people's compliance with environmental laws.
Second, use of existing, or established new, consultative mechanisms to seek views on matters related to the implementation of this Chapter Accordingly, Article 20.8 of the CPTPP also suggests that member countries can use national advisory committees to act as authorities to receive opinions on issues related to regulations and implementation of commitments in this Chapter These authorities may be operated by people with experience related to business, conservation and natural resource management, or other environmental issues This regulation opens up new opportunities for people who are the first to be directly affected by polluting the environment to express their views and opinions toward the effective implementation of environmental commitments in that country.
Third, Article 20.9 stipulates measures that countries can take to implement environmental protection obligations under Chapter 20 of the Agreement CPTPP stipulates the obligation to publicly the institutions applied to implement the provisions of this Chapter First of all, member states are obliged to receive and consider written submissions from individuals related to the implementation of the commitments of this Chapter At the same time, member states must respond in a tim ely to such submissions in writing and this process must be disclosed to the public through the mass media Regarding the publication of information mentioned above,CPTPP allows parties to freely decide which method of information publication is most suitable for the national situation Therefore, there needs to be more effective mechanisms to enforce and avoid complaints that may arise from investors under the provisions of CPTPP This helps improve transparency in the operations of state management agencies and the people's ownership as well as create people's trust in the implem entation of state laws.
In addition, CPTPP also requires member countries to designate an authority responsible for receiving and responding to written submissions and notify other parties within 180 days after the Agreement takes effect in this country.
Terms of enforcement and disp ute settlement mechanisms 29 2.4 Terms of environmtentalissues 3l 2.4.1 Environmental goods and serVices erect SL
Firstly, on the cooperation mechanism for implementing environmental commitments CPTPP regulates the cooperation mechanism between members in Article 20.12 Accordingly, the parties acknowledge the important role of cooperation to enhance the region's common capacity as well as the individual capacity of each member country in protecting the environment to promote sustainable development. The forms of cooperation stipulated by the CPTPP are also extremely diverse, and consistent with current cooperation practices in the world such as: dialogues, seminars, conferences, coordinated programs and projects, and technical assistance to promote and support cooperation and training, sharing of best practices related to policies, procedures and expert exchange It can be seen that CPTPP opens up many cooperation opportunities for countries in environmental trade issues, by stipulating many forms of cooperation so that countries can choose methods suitable to their political conditions and society of them
In addition, CPTPP also stipulates that each country must designate one or more authorities responsible for cooperation issues to its national contact point on matters that relate to coordination of cooperation activities and shall notify the other Parties in writing within 90 days of the date of entry into force of this Agreement for that party of its contact point At the same time, in addition to the focal agency, each party needs to establish an environmental committee consisting of high-level representatives of the Government, or designated persons of each party's environmental and trade-related authorities responsible for implementing the above commitments The Parties, through contact points and environmental committees,need to periodically review the implementation of these commitments and report the results in writing andm ake them publicly available, unless otherwise specified These authorities must be responsible for providing public information on issues related to the work of the contact points authorities and the committee as appropriate to enhance public participation in the development of and implement cooperative activities.
Secoud, on the consultation and dispute resolution mechanism The environmentel dispute resolution mechanism in the CPTPP is regulated separately in addition to the dispute resolution mechanism arising from the Agreement specifiedin Chapter 28 The environmental dispute resolution mechanism in CPTPP is basically not too different from conventional international dispute resolution mechanisms The dispute resolution mechanism specified in Chapter 20 is closely related to the general dispute resolution mechanism of the Agreement.
Accordingly, when environmental disputes arise between members, members will conduct consultations according to Articles 20.20; 20.21; and 20.22 specifically environment consultations, senior representative consultations, and ministerial consultations If the consulting parties are unable to resolve the issue within 60 days after the date of receipt of a request for consultations, the consulting members or the member requesting consultations may request the establishment of a panel underArticle 28.7 (Establishment of a Panel) (Article 20.23.1) The establishment of an arbitration tribunal to resolve environmental issues is carried out according to the order, procedures and composition specified in the general dispute resolution mechanism of the Agreement (Chapter 28) The processes and procedures for establishing an arbitration tribunal in the CPTPP are very specific and have regulations to ensure good implementation Basically, environmental disputes between members that cannot be resolved by the consultation mechanism will be resolved by the arbitration mechanism established in the Agreement This means that disputes at the environmental, trade, investment, labor, and intellectual property levels all have the same dispute resolution mechanism: the establishment of an arbitration tribunal The differences in the environmental dispute resolution mechanism compared to the general dispute resolution mechanism in the specific regulations related to the law applicable to the environmental field Specifically,according to Clause 2, Article 20.23, no matter how the role of experts in the arbitration tribunal is prescribed, in a dispute arising from conservation and trade issues, the arbitration tribunal must seek appropriate assistance from organizations and individuals under CITES to resolve specific issues and at the same time create conditions for disputing parties to contribute and comment on such technical assistance The arbitration tribunal, when issuing its report, is also responsible for considering and using the advice and guidance it has received with the utmost care in accordance with the nature of the case in dispute Before initiating environmental dispute resolution, the initiating party should consider whether its environmental enforcement is substantially consistent with the environmental laws that will apply to the dispute That party, if a member requests consultations with other parties on matters giving rise to general commitments (Articles 20.3.4 and 20.3.6) and the party that responds to the request does not uphold its environmental laws substentially equivalent in the scope of environmental law that will apply to the subject matter in dispute, the parties will discuss the matter during consultations.
CPTPP stipulates the obligations of members to protect the environment in many fields, covering almost all current urgent environmental issues This is difficult to find in the FTAs that Vietnam has previously signed such as VKFTA, AANZFTA, IVEPA, etc Accordingly, some environmental fields are specifically regulated in Chapter 20 of the CPTPP including (1) Environmental goods and services; (2) Multilateral environmental agreements, (3) Protect the ozone layer, (4) Protect the marine environment from pollution caused by shipping; (5) Trade and biodiversity, (© Trade and conservation (wildlife); (7) Invasive alien species; (8) Transition to a low-carbon and self-reliant economy, (9) Fisheries industry catches fish at sea, (10) Voluntary mechanisms to promote environmental enforcement, (11) Social responsibility cooperation.
Article 20.18 regulates environmental goods and services This regulation encourages parties to recognize the importance of trade and investment in environmental goods and services as a means of improving the economy and addressing global environmental challenges The outstanding content of this regulation is that another country can express opinions on issues related to trade in environmental goods and services, including issues identified as potential non-tariff barriers of another member state In other words, if one party's trade barriers hinder or threaten to hinder the circulation of goods and environmental services of another member state, that country has the responsibility to resolve them through the implementation of appropriate measures This may be done through the committee and may be cooperated with other committees of this Agreement This regulation demonstrates the CPTPP's goal of strengthening cooperation in resolving environmental issues related to trade and investment Therefore, to avoid conflicts, countries when promulgating any trade or investment policies need to consider whether those policies are likely to cause obstacles to trade and environmental services, to mimmize the possibility that those policies will be proposedto be adjusted by other countries.
Article 20.4 stipulates the role of multilateral environmental agreements in protecting the environment to achieve environmental goals Accordingly, CPTPP encourages parties to participate in multilateral environmental agreements and commit to effectively implem enting those agreements At the same time, CPTPP also stipulates the strengthening of reciprocity between laws and policies on trade and the environment through negotiation, signing and implementing multilateral environmental agreements By participating in multilateral environmental agreements, countries will shorten the gap in environmental protection goals, while increasing the support that countries receive from mutual assistance in environm ental protection to effective implementation of policies that balance trade development and environmental protection In addition, the establishment of multilateral environmental agreements will establish an international standard in environmental protection, reducing differential impacts on the environment due to the influence of trade development, investment between groups of developed, developing and underdeveloped countries, avoiding the situation where underdeveloped countries suffer the most severe consequences from the trade policies of developed countries.
First, measures to control substances that deplete the ozone layer Accordingly,CPTPP stipulates that some substances can significantly deplete and otherwise modify the ozone layer in a way that has negative effects on human health and the environment Therefore, each party must have measures to control the production, consumption and sale of such harmful waste to the environment However, according to this article, a country is only considered in violation when it fails to implement measures to control the production, consumption, and sale of substances that cause significant depletion or otherwise modify the ozone layer in a direction has a negative impact on human health and the environment, and negatively affects trade between CPTPP countries Thus, it is extremely difficult to determine whether a country has taken measures to control substances harmful to the ozone layer.
In addition, the parties need to maintain the measure listed in Annex 20-A CPTPP or and implement their obligations under the Montreal Protocol or any measures whichever is equivalent or higher Appendix 20-A also lists legal documents on ozone layer protection that Vietnam has issued and is obliged to maintain, including: Law on Environmental Protection 2020, Joint Circular 47/2011/TTLT- BCT-BTNMT (amended and supplemented by Circular 05/2020/TT-BCT and Decision 15/2006/QD-BTNMT) So, basically, Vietnamese law has fully complied with the provisions of Article 20.5 of the CPTPP with the level of effective enforcement of those regulations and can be considered to have exceeded the requirements of the CPTPP on this issue
Second, transparency and public participation in ozone layer protection activities Article 20.5.2 requires parties to make publicly available appropriate inform ation on programs and activities, including international cooperation programs on ozone layer protection In addition, this regulation also encourages parties to increase public participation and consultation on measures to protect the ozone layer. Regarding the issue of disclosing information about programs and activities, currently in Chapter 20 of CPTPP there are 3 articles of law requiring member countries to disclose information about programs and activities, including Article 20.5.2 on programs and activities to protect the ozone layer; Article 20.6.2 on preventing pollution from ships, Article 20.13.5 on biodiversity protection It can be seen that the three environmental issues that CPTPP requires to disclose information are all particularly serious issues, strongly affecting the lives of animals, plants and humans.However, reality shows that currently there are no programs or plans related to ozone layer protection that have been consulted before implementation On the contrary, in terms of information disclosure, currently in Vietnam the website of environmental authorities does not have much inform ation about Vietnam's projects and programs on protecting the ozone layer Ế
Third, international cooperation on protecting the ozone layer CPTPP also stipulates that countries must strengthen cooperation to solve problems of ozone layer depletion, focusing mainly on the exchange of information and experience in the fields of: “(i) environmentally friendly alternatives to ozone-depleting substances; (ii) refrigerant management practices, policies and programmes, (iti) methodologies for stratospheric ozone meastremenis; and (iv) combating illegal trade in ozone- depleting substances” (Article 20.5.3)
These provisions open up many new opportunities for member countries, especially developing countries like Vietnam, to access new technology and learn from other countries’ experiences in protecting the ozone layer or receive abundant support resources in eliminating andreplacing substances that deplete the ozone layer and refrigeration equipment that uses these substances Because, for developing countries, balancing economic development and environmental protection is extremely difficult when the national budget is not enough to pay for advanced technologies Therefore, strengthening international cooperation is both a trade bridge between countries and regions and an opportunity to access new technology andreceive support from other countries in implementing general objectives.
2.4.4 Protect the marine envirorment from pollution caused by shipping
Article 20.6 CPTPP regulates environmental protection from pollution caused by maritime transport with 3 regulations similar to protecting the ozone layer including: () implementing measures to prevent environmental pollution from ships, (i) regulations on transparency and public participation and (iii) international cooperation on marine environmental pollution from ships.
First, CPTPP requires each party to take measures to prevent environmental pollution from ships, including substances controlled within the framework of The
* Nguyen Quang Huy (2020), Syntromental commitments in the Comprehensive and Progressive Agreement for Trems-Pacific Parmership (CPTPP) Oppornonties and challenges for Viemam, Vatram NationalUniversity - The School of Law, pp 23.
International Convention for the Prevention of Pollution from Ships (Marpol) amended in 1978 and 1997 Similar to ozone layer protection measures, a country is only considered to be violating this regulation if that violation affects CPTPP trade.
A state is considered to comply with this provision if it maintains the measure or measures listed in Annex 20-B to implement its obligations under the Marpol Convention or any of the following measures that are equivalent to or higher than the level of environmental protection as the measure or measures listed Thus, just like determining violations in protecting the ozone layer, determining whether violations have occurred when implementing measures to protect the marine environment is extremely difficult Therefore, the possibility of a country violating this regulation is very small Appendix 20-B also lists legal documents on marine environmental protection that Vietnam has issued and is obliged to maintain, including: Law on Environmental Protection 2020; Vietnam Maritime Code 2015; Circular No. 50/2012/TT-BGTVT on the management of receiving and treating oil-containing waste from ships at Vietnamese ports; National technical regulation 26/2014/BGTVT on anti-pollution systems of ships According to CPTPP, Vietnam only needs to maintain the regulations in these four legal documents and effectively enforce those regulations to be considered compatible with the commitments in the CPTPP. However, in reality, effectively implementing the provisions of these four legal documents is extremely difficult Because the regulations in the legal framework on combating pollution from ships are not yet consistent and many regulations are not closely aligned with reality For example, the regulation that wastes from ship operations must be collected and treated according to environmental technical regulations is relatively difficult to enforce because it is difficult to monitor compliance with the entire implementation process Furthermore, Vietnam currently does not have its own environmental technical regulations for wastewater from ships, but is forced to apply general industrial wastewater technical regulations.
Fisheries industry catches fish at sea 4I 2.4.10 Voluntary mechanisms to promote environmental enforcement
CPTPP pays special attention to the marine capture fisheries sector This is a special content of the CPTPP Agreement stipulated in Article 20.16
Firstly, the management system for fisheries exploitation With a high awareness of the urgency of ensuring the sustainability of the fishing industry, CPTPP has proposed many solutions for sustainable development of this industry. Accordingly, parties commit to implementing a fishery management system, shark conservation, combating illegal, unreported and unregulated fishing CPTPP requires parties to seek to operate a fisheries management system that regulates wild fisheries and is designed to:
(@ prevent overfishing and overcapacity, (ii) reduce bycatch of non-target species and juveniles, including through the regulation of fishing gear that results in bycatch and the regulation of fishing in areas where bycatch is likely to occur, and; (iii) promote the recovery of overfished stocks for all marine fisheries in which that party’s persons conduct fishing activities. (Asticle 20.16.3)
In addition, CPTPP requires this fishing management system to be based on science and international experience such as the Agreement ơn the implementation of a number of relevant contents of the United Nations Convention on the Law of the Sea (UNCLOS) relevant to conservation and management of fisheries, the Code of Conduct for Responsible Fisheries, The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (The C ompliance Agreement) and the 2001 IUU Fishing Plan of Action A special feature is that CPTPP uses the concept of "IUU fishing" according to FAO's regulations in the 2001 Plan of Action regulating illegal, unreported, and illegal fishing Regarding this regulation, Vietnam's current legal regulations are considered quite compatible with CPTPP Accordingly, Article 7.6 of the 2017 Fisheries Law stipulates: “egal, tơreported wregulated fishing (referred to as illegal fishing) "
It can be seen that Vietnam's legal framework has been built with the goal of achieving the maximum level of compatibility with international treaties.
Second, preserve marine life CPTPP stipulates that parties need to promote the long-term conservation of sharks, marine turtles, seabirds and marine mammals through effective implementation and enforcement of conservation and management measures Such measures could include:
For sharks: the collection of species specific data, fisheries bycatch mitigation measures, catch limits, and finning prohibitions, and; for marine turtles, seabirds, and marine mammals: fisheries bycatch mitigation measures, conservation and relevant management measures, prohibitions, and other measures in accordance with relevant international agreements to which the party is party.
Third, fishing subsidy measures In this aspect, CPTPP has made many references to the provisions of the WIO's SCM Agreement Accordingly, the CPTPP requires any member state to grant or maintain any subsidy for (i) fishing activities that have a negative impact on overexploited fishing (ii) any fishing vessel that has been named by the flag state or regional fishing management organization Fishing here is understood to include actions such as searching, luring, identifying, capturing fish or any action that can be considered to result in the lure, identification, capture of fish without notice in a reasonable way The time to eliminate these subsidy measures is 3 years from the date CPTPP takes effect for that country For subsidies not prohibited by CPTPP, the parties make efforts not to supplement, expand, or enhance existing subsidies to ensure compliance with Article 1.1 and Article 2 of the SCM Agreement.
In Vietnam, although many Vietnamese legal regulations in this field are quite compatible with CPTPP, there are still some concepts that are not really suitable. Accordingly, the concept of fishing vessels in the Fisheries Law is "ships, boats and other floating struchwes specialized for exploiting cultivating preserving and processing aquatic products" This concept is not really compatible with the CPTPP's concept of a fishing vessel, which is a ship, boat or any type of vessel used or equipped for the purpose of fishing or related fishing activities
Fourth, measures to combat IUU fishing CPTPP stipulates that the parties make an effort to combat IUU fishing activities and prevent trade in products harvested from such activities, including (i) strengthening cooperation with other parties, (ii) supporting monitoring control, surveillance, compliance and enforcement systems, including by adopting reviewing or revising as appropriate, of measures to prevent vessels flying its flag from engaging inIUU and address the transfer of seafood at sea that has been subject to IUU fishing Even if they are not members, the parties need to fulfill their port state obligations, trying to implement conservation, management measures of regional fishing management organizations.
Currently, in Vietnam, the issue of combating IUU fishing is being enforced through three main tools: (1) fishing vessel observation equipment and information,
(2) fisheries surveillance force and specialized fisheries inspection, coast guard, border guard, navy; and (3) management of fishing ports and storm shelters ° In addition, foreign fishing vessels operating in Vietnamese waters can also be ˆ Nguyên Quang Huy (2020), tldd 6,pp 38. controlled by supervisors appointed on board by Vietnamese state agencies.
2.410 Voluntary mechanisms to promote environmental enforcement
In addition to regulations on current serious environmental issues, CPTPP also encourages member countries to use flexible and voluntary mechanisms to protect natural resources and the environm ent within their territories Voluntary mechanisms such as auditing, self-reporting, market-based reward schemes, voluntary information and experience sharing and public-private partnerships can contribute to achieving high levels of environmental protection and support domestic management measures To achieve this goal, CPTPP also encourages members to create conditions for businesses, business organizations, non-governmental organizations and other individuals to participate in the development of criteria used to Evaluate environmental protection activities to continue improving existing criteria In addition, CPTPP also encourages voluntary mechanisms to promote products based on their environmental quality, but must ensure requirements such as (i) being truthful, are not misleading and take into account scientific and technical information; Gi) evaluated and guided based on international standards; (iii) promote competition and innovation, (iv) do not treat a product less favourably on the basis of origin This is also an advancement of CPTPP compared to environmental regulations under the WTO framework and early FTAs when regulations on voluntery environmental protection mechanisms and corporate social responsibility were included Although itis a voluntary mechanism, CPTPP also sets high and clear standards for countries to comply with and develop policies to suit their countries practical situations.
CPTPP encourages businesses operating in the territory or jurisdiction of a member state to voluntarily apply or incorporate into their policies and operations principles of corporate social responsibility related to the environment This is extremely consistent with current international practice when corporate social responsibility is increasingly focused on improving, because in fact, the trade and investment activities of businesses are important factors that directly impact on the environment Enterprises integrating environmental protection regulations in their trade plans will help reduce the burden on the host country in balancing economic development and environmental protection.
It can be seen that Chapter 20 of the CPTPP Agreement provides quite comprehensive regulations on urgent environmental issues Environmental commitments in CPTPP represent a higher and more comprehensive level of commitment than WTO regulations and some early FTAs In addition to reaffirming the basic principles of the WTO on trade and environmental issues, CPTPP sets higher requirements for the effective implementation of those commitments In particular, CPTPP emphasizes transparency and public participation in the effective formulation andimplem entation of environmental commitments For each specific environmental issue, CPTPP also sets out its own standards that clearly stipulate the measures that the parties must comply with and implement Notably, this agreement also requires strict sanctions for violations of environmental regulations, causing disguised trade barriers that negatively affect trade and the environment Although Vietnamese law has basically met the environmental commitments in the CPTPP, there are still some incompatible regulations, which will cause unmecessary conflicts between international treaties and national laws, seriously affecting the effective enforcement of legal provisions.
OPPORTUNITES AND CHALLENGES FOR VIETNAM IN
According to some experts, although the US withdrew from the CPTPP Agreement, this is still one of the highest quality agreements that Vietnam has participated in so far The CPTPP Agreement helps Vietnam's economy deeply integrate with the world trade system in a greener and more sustainable direction According to the World Bank's assessment, CPTPP brings many economic benefits to Vietnam, helping our country increase GDP by 1.1% by 2030 and if productivity improves, GDP will increase by 3.5% 1 With a market scope of more than 500 million people and a GDP exceeding 10 trillion USD, accounting for about 13.5% of global GDP and about 14% of total world trade |!, CPTPP is expected to open up many new opportunities for Vietnam in promoting the process of perfecting market economic institutions, aiming for sustainable development and achieving Net Zero ty 2050.
First, CPTPP helps develop the environmental industry The environmental industry is one of the most dynamic, innovative and rapidly growing sectors in the global economy under the pressure of climate change and environmental degradation. National policies and goals on environment and climate change, promote circular economic development; international environment and climate change initiatives and final agreements; and environmental and climate change commitment provisions in trade agreements have been enhancing opportunities for environmental industry development Vietnam is currently a large net importer of environmental goods. However, Vietnam has a number of inherent advantages in the production and export
'° The World Bank (2018), Economic œad Dismbutional Inpacts of Comprehensive and Progressive Agreement for Trans-Pacific Partnership: The case of Viemam , Hong Duc Publishing house ,pp.7
`! Ministry of Industry and Trade of the Socialist Republic of Vietnam (2022), “CP TPP — The first agreement to be auplemented in the 21st century”, Ministry of Industry and Trade Web Portal (MOIT).
Link: https:/mmoi gov xavtin-tuc Mhictraong-mmoc-ngoai/eptyp-hiep-dinh-dauctien- daoc-thuc-thi-cus-the-ky-3L hmmsl accessed om March 30, 2024. of environmental goods that can be used to develop the industry and export capabilities, one of which is the production and export of solar panels Trade liberalization of environmental goods and services will provide growth space for the environmental industry and assist Vietnam in reducing environmental pollution at lower costs Taking advantage of incentives from import-export commitments in CPTPP will help Vietnam have many new export opportunities for strong environmental products and promote the import of high-quality environmental goods at preferential fees.
Secoud, CPTPP creates opportunities for Vietnamese businesses to improve their competitiveness in the world market Commitments to environmental protection inthe CPTPP are a driving force for Vietnamese businesses to prioritize and pay more attention to implementing environmental protection in the process of promoting trade and investment Extensive commitments in the field of environment will create opportunities for Vietnamese businesses to access international environmental standards, high technology and technical resources, with modern management and. production technology levels from developed countries, to increase productivity and improve product quality, especially for products and services in which Vietnamese enterprises have strengths From there, Vietnamese products and services that meet international standards will enhance the ability to participate in regional and global supply chains, creating pressure to improve the competitiveness of businesses and nations Besides, signing CPTPP helps Vietnam enjoy tariff reduction roadmaps to 0- 5%, which will help Vietnamese businesses improve their competitiveness in product prices At the same time, reducing import taxes to other countries helps Vietnamese
‘businesses have more opportunities to expand the supply of products to member countries markets The more the product consumption market expands, the more competitive the product becomes At the same time, reducing import taxes for imported products to Vietnam will also help Vietnamese businesses have new types of goods to expand the scale of goods for production and business activities The more diverse the product consumption market is, the more competitive the business becomes In addition, the financial strength of a business is also one of the key factors in determining the competitiveness of a business Through implementing environmental commitments in CPTPP, Vietnamese businesses may have the opportunity to seek financial sources from economic organizations or member countries From there, businesses with strong financial resources will improve their competitiveness.
Third, CPTPP promotes attracting foreign investment Free trade combined with increasingly deep international economic integration is the opportunity to help Vietnam become a “promised land" for investment, especially foreign direct investment (FDI) with high value CPTPP helps Vietnam improve its economic and trade relations with other countries, through which foreign investors begin to pay more attention to the Vietnamese market, thereby opening up investment cooperation prospects between Vietnam and foreign investors In particular, Vietnam will enjoy benefits and have the opportunity to receive funding for the implementation of sustainable trade activities due to the cooperation and assistance mechanism of developed countries In fact, since CPTPP took effect for Vietnam in January 2019, each year, attracting FDI from member countries has become more and more positive.
If in 2019, Vietnam attracted approximately 9.5 billion USD in FDI from CPTPP countries, by 2022, Vietnam attract approximately 11.5 billion USD in FDI from CPTPP countries, an increase of 2.6 billion USD compared to 2021 The number of new projects reached 577 projects, an increase of 77 projects compared to 2021 13, It can be seen that the Comprehensive and Progressive Agreement for Trans-Pacific Parmership facilitates cross-border investment activities, so when the Agreement takes effect, Vietnam will have better conditions to attract FDI from other countries because trade is closely linked to investment, especially with countries with which Vietnam does not have free trade agreements such as Mexico This is also an opportunity for Vietnamese businesses, especially large economic corporations, to seek investment markets in other member countries.
Fourth, CPTPP contributes to eliminating hunger, reducing poverty and creating more jobs for workers CPTPP promotes economic growth and many social
!? Finance magazme (2023), “Exploiting opportunities to attract FDI and transfer technology from CP TPP countries”.
Link dutps:/ap chitaichinhh vide -Hhai-thac.-tot-co-hoi-thu-lut-fdi- churyen-gino-cong-nghe-tu-cac-mmoc- ppp hmm text=N%E]% BAN BEU%W 20% C4% 83nn% 2020 19% 2C% 20VI%E1% BBWS 7% 20Nam % C3
MA Im$%20so%20v%E1%BB%9B1%20n% C4968 3m% 202021, accessed ơn March 30,2024. benefits According to research results of the Ministry of Planning and Investment, CPTPP can help the total number of jobs increase by an average of 20,000 - 26,000 workers each year Regarding poverty reduction benefits, according to World Bank research, by 2030, CPTPP is expected to help reduce 0.6 million poor people at the poverty line of 5.5 USD/day All income groups are expected to benefit 3 Besides, thanks to attracting foreign investment, job opportunities and people's income will also increase, contributing to solving the problem of unemployment, improving the living standards of workers, reducing poverty, and promoting sustainable growth
3.1.2 Promotion of improvement of environmental laws
CPTPP is among the trade agreements with the highest requirements related to the environment and is generally consistent with Vietnam's orientation on sustainable development Compared to other countries in the CPTPP, Vietnam is a country that integrated later than the countries negotiating the CPTPP Therefore, Vietnam still has a gap in environmental protectionlaws aswell as policies to ensure a balance between. trade and the environment To effectively implement environmental commitments in CPTPP, Vietnam will have to adjust and amend many legal regulations on issues related to the environment and the balance between trade and the environment In fact, Vietnam's current regulations on environmental protection are still incomplete, leading to ineffective enforcement of the legal system Thisis extremely necessary to
‘bring Vietnam's legal framework closer to modern standards In addition, the improvem ent of Vietnam's environmental laws to ensure the effective implementation of environmental commitments in the CPTPP is also an opportunity for the state to consider and promulgate accompanying policies to complete the national orientation development Besides, with the limitation of overlapping legal systems, unclear regulations and many conflicts between legal documents, improving the law will
‘bring many benefits to Vietnam in opening and expanding the market, creating a transparent investment environment in a greener and more sustainable direction In
`? Ministry of Industry and Trade of the Socialist Republic of Vietram (2022), “Attractiveness of the CPTPP
Link https:/moz gov saviin-tuc Rhš truợng 1mo¢-ngoai/epttp-de-cap-viec-ketap-thanh-vien- moihnnli- text= Theo% 20k%E]% BAY BEA200%E1%BA% AI% 2nghis C3% AAN% 20 %E]% BBA91% C4%91% C3% B4%2D1a%20M%E1% BBY BO% 2Ehg% C3% AO, accessed om March 30,2024 addition, Vietnam ese law needs to assess the level of compatibility between Vietnam's environmental legal system and commitments in the CPTPP to develop existing regulations and overcome imperfections in the law system This is extremely necessary and creates more favorable conditions for Vietnam in implementing its membership obligations From there, increase the ability to realize the opportunities that Vietnam has Overall, CPTPP is a high-quality agreement, requiring Vietnam to have strong breakthrough reforms so that Vietnam's environmental protection programs can operate more effectively and bring real results, not just stopping at surface activities like existing regulations.
Each member country participating in CPTPP has development opportunities and challenges to face Vietnam is no exception when the CPTPP standard officially takes effect in Vietnam in 2019 After the CPTPP takes effect, Vietnam's commitments to the CPTPP are considered a part of the legal system Vietnamese law regulates investment and trade relations and issues related to investment and trade between Vietnam and member countries This directly affects environmental law because in reality, Vietnam's environmental law still has many limitations compared to environmental commitments in CPTPP.
3.2.1 Competitive pressure for domestic businesses
First, standards for environmental protection during the exploitation, processing and production of products for export will be increasingly high Especially for the export of agricultural products, seafood and wooden products For example, Vietnam's offshore fishing industry and seafood export activities from fishing will suffer due to requirements to eliminate subsidies on fishing activities and regulations and standards on certification of fishing products that meet sustainable standards, and commitments on handling IUU fishing activities Shipping operations will also face many challenges with increased discharge standards and environmental compliance requirements In particular, Vietnam is currently quite weak in equipping ships with waste treatment equipment, so if this regulation is not met, it will have a significant impact on maritime transport operations.
Second, Vietnam will face competition in the domestic market for environmental goods and services and goods and services supporting the transition to a low-carbon economy due to the opening of trade liberalization The reason is that Vietnam's environmental industry is still in its early stages of development, mainly importing environmental goods from outside, while exports are mainly from FDI enterprises Many export products and products with high growth depend on raw materials and semi-finished products imported from abroad Meamvhile, the prices of these raw materials in the world are always fluctuating, leading to many product groups having a high proportion of raw material costs For small and medium-sized enterprises - accounting for a large number of the total number of domestic enterprises established in Vietnam, due to their small scale and poor financial resources, if there is no appropriate form of cooperation and association when buying raw materials, so they will always be at a disadvantage in negotiating prices.