The Commission’s position paper on the TSIA notes that “Japan recently adopted new legislation on illegal logging”. However, the 2016 Japanese law is based on a voluntary registration system, with no prohibition of illegally sourced timber. In addition, the law’s definition of legal timber and standards for due diligence remain unclear.
* Trade Sustainability Impact Assessments are a “DG Trade-specific tool for supporting major trade negotiations. SIAs provide the Commission with an in-depth analysis of the potential economic, social, human rights, and environmental impacts of ongoing trade negotiations.” According to the Commission, TSIAs are meant to help “steer the negotiations” and ensure “that the related policy choices are optimised”.
** See articles 24.10.2(b), (c), (d), 24.12.1 and (g), and 25.3)
Both CETA and TPP contain more substantial commitments to cooperate. In JEFTA, parties only state that they “may” cooperate, with the exception of the commitment to cooperate on regulatory cooperation (with the aim of enhancing trade and investment, rather than any sustainable development goals).Finally, non-compliance with the provisions in the Trade and Sustainable Development chapter will result, at best, in a report from a panel of experts prompting parties to “discuss actions or measures”. Evidently, JEFTA negotiators place little value on sustainable development and trade.
* Parties have the “right to use Article 28.3 (general exceptions) in relation to environmental measures, including those taken pursuant to MEAs to which they are a party” (CETA Article 24.4.4).
** This language mirrors provisions in GATT Article XX and GATS Article XIV. This language has been criticised for being circuitous and unclear.
The addition of the word “may” (compared to the equivalent text in CETA, see footnote 5) means that JEFTA only excludes claims based on potential losses, i.e. investors could bring claims for damages, provided their interests are actually affected.* “The mere fact that a Party regulates, including through a modification to its laws, in a manner which negatively affects an investment or interferes with an investor’s expectations, including its expectations of profits, does not amount to a breach” (CETA Article 8.9(2)).