This article is part of a Synergies series on Next generation trade arrangements for environment and sustainable development. Any views and opinions expressed are those of the author(s).

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During the last year, United States agreements on reciprocal trade (ARTs) have emerged as a new form of trade-focused international agreement, with Washington having concluded 10 ARTs to date and further ARTs foreshadowed (see generally Manak and Smith, where the authors also map the numerous framework agreements concluded by the second Trump Administration).

Although US ARTs are not traditional comprehensive preferential trade agreements (PTAs), they are legally binding trade-focused instruments and, as will be demonstrated, they contain significant environment-related content. While the environmental provisions in ARTs draw on environment chapters in existing US PTAs, they also include certain noteworthy variations and innovations.

What I will refer to as the basic environmental provision is almost identical across all 10 ARTs and requires the partner country to “adopt and maintain environmental protections, effectively enforce its environmental laws, uphold or institute as necessary strong environmental governance structures, and address environment-related issues that contribute to non-reciprocal trade” (e.g. US-Cambodia ART, art. 2.9; US-Jordan ART, art. 2.10).

All 10 ARTs include additional environmental obligations, typically in an annex that contains “specific commitments” of the partner country. For convenience, the key findings of my analysis of the environmental commitments in the US ARTs, which are discussed in this article, are summarized in a table at the end of this article.

Eight out of 10 ARTs include a provision on “environmental law,” which requires that the partner country “shall ensure that its environmental laws and policies provide for, and encourage, high levels of environmental protection” (e.g. US-Jordan ART, Annex III, art. 1.15). In five of the ARTs, a second paragraph in this provision requires that the partner country “shall effectively enforce its environmental laws” (e.g. US–Indonesia ART, Annex III, art. 2.34(2)).

Both of these obligations draw on existing US PTA practice, although there are some differences. The first obligation merely adds one word and two commas to a commitment found in the Central America-Dominican Republic-US FTA (Art. 17.1). It removes a qualification in some US PTAs that each party shall “strive to” ensure this end (e.g. Trans-Pacific Partnership (TPP), art. 20.3(3); United States-Mexico-Canada Agreement (USMCA), art. 24.3(2)). The second obligation appears to be drawn, with more substantial drafting changes, from the obligation in earlier US PTAs that “[n]o Party shall fail to effectively enforce its environmental laws through a sustained or recurring course of action or inaction in a manner affecting trade or investment between the Parties” (e.g. TPP, art. 20.3(4); USMCA, art. 24.4(1)). Even more similar in formulation to the provision in the ARTs, the North American Agreement on Environmental Cooperation (a side-agreement to NAFTA) provided, in art. 5(1), that “each Party shall effectively enforce its environmental laws and regulations.”

All 10 ARTs include commitments on “illegal logging and associated trade.” There is significant variation in this provision across the ARTs. Two only include the basic commitment, present in all 10 ARTs, that the treaty partner “shall take measures to combat, and cooperate to prevent, trade in illegally harvested forest products" (US-Jordan ART, Annex III, art. 1.16; US–Taiwan ART, art. 3.11(4)). In the remaining eight ARTs, there are varying degrees of specificity regarding other actions that the partner country will take. For example, the US–Ecuador ART includes 10 subparagraphs that set out more specific actions to be taken by Ecuador, pursuant to the obligation on taking measures to combat trade in illegally harvested forest products (US-Ecuador ART, Annex III, art. 2.17(a)–(j)). The ARTs with Argentina, El Salvador, Indonesia, and Malaysia also specify significant additional obligations for, or actions to be taken by, the partner country (e.g. US-Argentina ARTI, Annex III, art. 1.14(2)–(4); US-Indonesia ART, Annex III, art. 2.35(2)).

Eight out of 10 ARTs include commitments on “a more resource efficient economy” with the basic obligation requiring the partner country to “take measures to promote a more resource efficient economy” and specifying a non-exhaustive list of what such measures may include (e.g. US-Indonesia ART, Annex III, art. 2.36(1)).

In four ARTs this provision also includes an additional obligation that the partner country “shall take measures to promote the recovery of critical minerals from waste streams” (e.g. US-Indonesia ART Annex III, art. 2.36(2); US-Taiwan ART, art. 3.11(6)).

All 10 ARTs include commitments on fisheries subsidies. For countries that are not already parties to the WTO Agreement on Fisheries Subsides (AFS), the ARTs require that the partner country “endeavor to accept, as soon as practicable” the WTO AFS or similar (e.g. US-Indonesia ART, Annex III, art. 2.37(1)).

Eight ARTs also include a commitment of the partner country to “fully implement the obligations of the AFS, notwithstanding Article 12 of the AFS” on termination of the AFS if comprehensive disciplines are not adopted within four years of its entry into force (e.g. US-Bangladesh ART, Annex III, art. 1.23(2)). The US-El Salvador ART achieves a similar substantive outcome through different drafting, providing that “[i]n the event that the AFS is terminated pursuant to Article 12 of the AFS, El Salvador shall nonetheless endeavor to implement the obligations of the AFS” (US-El Salvador ART, Annex III, art. 1.22(2)). The US-Indonesia ART requires Indonesia to “fully implement” the AFS and omits any mention of Article 12 and potential termination (US-Indonesia ART, Annex III, art. 2.37(1)).

All 10 ARTs also include a further provision on fisheries subsidies, which provides, with some minor variations, that the partner country “shall ensure its fisheries subsidies do not contribute to overcapacity and overfishing, including through the use of robust fisheries management regimes and reform of such subsidies” (e.g. US-Malaysia ART, Annex III, art. 2.27(2)).

All 10 ARTs include a provision on “sustainable fisheries management” and illegal, unreported, and unregulated (IUU) fishing. These provisions appear to draw on approaches to these issues in earlier US PTAs (compare TPP, art. 20.16, and USMCA, arts. 24.18–24.19 and 24.21).

There is a high degree of standardization in this provision across the ARTs, with the partner country committing to “operate a sustainable fisheries management system that regulates marine wild capture fishing and promotes the long-term conservation of marine species” (e.g. US-Indonesia ART, Annex III, art. 2.38(1)). In a second paragraph, the partner country commits to “strengthen enforcement of fisheries-related laws, regulations, and other measures to effectively combat IUU fishing,” for example through port state measures and measures to deter vessels flying its flag and its nationals from engaging in IUU fishing (US-Bangladesh ART, Annex III, art. 1.24(2)). 

In the ART with Ecuador, a third paragraph provides that “Ecuador will cooperate with the United States to improve Ecuador’s capacity with regard to sustainable fisheries management and combating IUU fishing” (US-Ecuador ART, Annex III, art. 2.20(3)).

All 10 ARTs include a provision on “combatting illegal wildlife trade.” Again, this provision draws significantly on wording used in the environment chapters of prior US PTAs (compare USMCA, art. 24.22, and TPP, art. 20.17). Essentially, the basic provision provides that the partner country “shall take measures to combat, and cooperate to prevent, the trade of wild fauna and flora that were taken or traded in violation of its law or another applicable law,” with three or four further subparagraphs setting out specific actions to be taken in implementation of this obligation (e.g. US-Indonesia ART, Annex III, art. 2.39). 

In the ARTs with Argentina, Cambodia, and Malaysia, this obligation applies to the trade of wild fauna and flora “that, based on credible evidence, were taken or traded in violation of” the partner country’s law or another applicable law, with footnotes in the Argentina and Malaysia agreements clarifying that the partner country “retains the right to determine what constitutes 'credible evidence’” (e.g. US-Malaysia ART, Annex III, art. 2.29). This drafting is borrowed from the TPP (compare TPP art. 20.17(5) and fn. 25).

Five out of 10 ARTs include a provision requiring the partner country to strengthen implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), specifically the ARTs with Bangladesh, Ecuador, Guatemala, Indonesia, and Malaysia. The ARTs with Bangladesh and Ecuador require these countries to finalize domestic legislation to implement CITES (US-Bangladesh ART, Annex III, art. 1.26, US-Ecuador ART, Annex III, art. 2.22). Again, this commitment draws upon precedents in earlier US PTAs (compare TPP, art. 20.17(2), and USMCA, art. 24.8(4)(a)).

The Indonesia ART also includes specific issues where Indonesia undertakes to strengthen its implementation of CITES, for example through “reviewing its reservation to the CITES Appendix II listing of seahorses” and “effective management of and reporting on pangolin scale stockpiles, including plans for their destruction” (US-Indonesia ART, Annex III, art. 2.40(a) and (c)).

It is difficult, based on publicly available information, to discern why only five out of 10 ARTs include the provision on strengthening implementation of CITES. Focusing on the five ARTs without this provision, in all cases except Taiwan the partner country is a party to CITES (see here).

Four out of 10 ARTs include a commitment of the partner country on illegal mining (those with Argentina, Ecuador, El Salvador, and Guatemala). There is some variation across these four ARTs regarding the wording and level of detail of this provision. 

The most specific and directive provision is in the US-Ecuador ART, which provides that: “Ecuador shall develop and implement a system to track precious metals from extraction through transport, processing, and export, including by requiring electronic tax receipts for the buying and selling of precious metals that include information such as the name and tax number of the seller, the corresponding extraction operation, and the authorization number of the mining license. This traceability process shall first apply with respect to copper and expand thereafter. Ecuador shall cooperate with the United States to improve Ecuador’s capacity and strengthen control and monitoring mechanisms” (US–Ecuador ART, Annex III art. 2.23(1)).

In contrast, the provision in the US-Argentina ART, while requiring Argentina to develop and implement a system to track precious metals from extraction to export, leaves Argentina discretion to achieve this outcome “according to its internal laws and procedures” (US-Argentina ARTI, Annex III art. 1.19(1)). 

The provisions just noted on illegal mining do not appear to have precedent in earlier US PTAs. Such provisions are also much more specific than the general recognition in the trade and sustainable development Annex of the recent European Union-MERCOSUR interim trade agreement, where the parties note that they are “determined to reiterate and step up the efforts to end illicit threats to nature and the environment, including . . . illegal mining” (EU-MERCOSUR interim trade agreement, Annex 18-A, para. 37).

This article has demonstrated that the US ARTs contain significant environment-related content. It has also shown that many of the environmental provisions in the ARTs draw on approaches taken in the environment chapters of earlier US PTAs and that, while there is a high degree of standardization in the commitments across the 10 ARTs, there are also various noteworthy differences between the ARTs.

The ARTs are a new form of trade-focused agreement, which are distinct from traditional comprehensive PTAs. The ARTs are unusual in their structure, as nearly all the commitments in them apply to the partner country, not to the US (see similarly Honywill and Behboodi). However, despite these differences, most of the environment-related provisions in the ARTs have precedent in earlier US PTAs. This conclusion reflects that this article has focused on environmental aspects of the ARTs, and not other areas where the ARTs break more novel ground (e.g. the provisions on “economic and national security”).

As Collins argues in a forthcoming article (see here for an earlier draft), the ARTs, despite their formally bilateral structure, appear to be giving rise to a form of US-led plurilateralism because they are negotiated from a highly standardized text, with limited variations, and potential partner countries are faced with either joining “on the US’s terms” or “exclusion and presumably, with it, elevated levels of protectionism vis a vis the US and other ART parties.”

Finally, it is worth highlighting that there are certain major environmental issues that are not addressed at all by the ARTs, perhaps unsurprisingly given the political orientations of the second Trump Administration. For example, the lack of any mention of climate change or the Paris Agreement in the ARTs is noteworthy and contrasts with many recent non-US PTAs, particularly those involving the EU. This is similar to earlier US PTAs, which only contained minimal references to climate issues (compare TPP, art. 20.15, and the brief mention of emissions-related issues in the work programme of USMCA’s environmental side agreement, art. 10(2)(m)). Other commentators have also noted that US PTAs do not include specific references to climate change (see for example Morin and Jinnah and Laurens and others).

Going forward, it will be interesting to track to what extent the environmental provisions in future ARTs may follow or depart from the relatively standardized set of commitments identified in this article and from the environmental provisions in US PTAs.

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Joshua Paine is Associate Professor in International Law, University of Bristol.

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