The Inclusion of Sustainable Development into New-Generation FTAS – What Can be Expected in Reserving Nations’ Rights to Regulate?

The last decade has seen a growing trend towards the combination of sustainability, in which environmental protection is the most important, with trade in both regional and international forums. Indeed, the term “sustainable development”, which rarely appeared in “traditional” trade or investment agreements, is easy to be found in many new-generation agreements such as CP-TPP or a series of FTAs recently signed by the EU with its partners such as Canada, Singapore and Vietnam.

It has been observed that the interaction between sustainable development and trade-investment, especially via dispute settlement activities, has been intensively studied. However, as the combination of sustainability in FTA has just been promoted recently with the aim to tackle the abovementioned issue. The provisions on sustainable and environmental protection are included in the new generation FTA, i.e. CP-TPP, EU-Canada Comprehensive Economic and Trade Agreement, EU-Singapore FTA and EU-Vietnam’s FTA. These sustainability-support regulations help to confirm the right of the hosting state to set its own levels of domestic protection in the environmental and social areas as well as to build and follow its own environmental policies. However, these provisions are still general compared to the set of trade-investment rules/obligations under the trade-investment agreements.

The aim of this paper is to find out the meaning and status of the sustainability-support regulations under trade-investment agreements. It examines these provisions in light of maintaining countries’ right to protect the environment under abovementioned preferential trade-investment agreements in order to critically evaluate the effect of these rules on future measures of relevant countries to protect the environment.