Lifting the Tide on Biodiversity Conservation through Trade and Investment: Biodiversity Conservation under ChAFTA and the WTO

Trade has an important and lasting impact on biodiversity conservation. This is especially true for two of the most unique mega-diverse ecosystems in the world: Australia and China. Not only does trade perpetuate unsustainable economic practices that exacerbate biodiversity loss, but it also has a direct influence on the ability for both Australia and China to implement effective policies aimed at biodiversity conservation. This article will explore the nexus between biodiversity conservation and international trade through the lens of the Australia – China trade relationship. To explore this issue, this article will first discuss the ideological foundations of the WTO, viz, a rules-based system aimed at promoting trade liberalisation. Whilst the WTO does not specifically regulate biodiversity, the General Agreement on Tariffs and Trade (GATT) does contain several provisions as general exceptions which enable Members to reconcile competing priorities of trade liberalisation on one hand, and sustainable development on the other. This article will then explore the trade and biodiversity nexus present within the China and Australia Free Trade Agreement (ChAFTA). Whilst ChAFTA contains several innovations which can improve biodiversity conservation, the Agreement also contains provisions which inhibit transparency and the ability for environmental non-government organisations to submit amicus curiae briefs in ISDS arbitration. Through a comparative analysis of other bilateral trade treaties, this article advocates for an approach which addresses these issues, including addressing systemic concerns regarding global biodiversity conservation. Downloaded from Brill.com09/16/2023 03:48:17AM

tives for conservation, as the sale of sustainably produced goods can provide a source of income for local communities and can help to fund conservation efforts.
Whilst the orientation of agriculture towards export orientated activity has increased food production, this has resulted in land clearing and unsustainable economic activity which has had a negative impact on biodiversity. There are well documented examples which highlight this problem. Palm oil production has resulted in significant biodiversity loss through deforestation, with global trade contributing to approximately 30% of global species loss,2 and 17% of all biodiversity loss being attributed to agricultural products aimed for export only.3 By its very nature, trade liberalisation does not promote the conservation of raw materials but rather places the international community in a race towards over exploitation of resources in rich environmental areas. Free trade has the potential to protect and nurture international economic expansion at a rate which does not necessarily have to exceed environmental sustainability. Yet, unsustainable exploitation of the environment has, and continues to occur, because international trade continues to grow at a rate which exceeds environmental conservation restrictions. Responsibility for such environmental damages is avoided when States fail to include the associated environmental costs of a product's lifecycle, from raw materials to the end-life of products, when 'pricing products with a comparative advantage ' .4 In the context of unprecedented climate change and biodiversity loss, both symptoms of anthropogenic activity, the overexploitation of exhaustible natural resources will continue to detrimentally impact humanity and ecosystems alike. Inaction towards remedying unsustainable development will 'fail to deliver optimal outcomes' for people and the planet.5 Trade has also led to increased efficiencies in resource allocation, as well as shifting the location of consumption and production to less biodiverse areas.6 Bellora et al acknowledges that trade has several other direct impacts, including increased pollution contributions due to transport patterns, the introduction of alien and novel pest species, as well as the trade in endangered species.7 Comparative advantage production may not be efficient and desirable as non-economic costs (such as pollution and social deprivation) are unaccounted in the price. Fears abound that free trade may accelerate a 'race to the bottom' in environmental standards8 as least developed countries (LDC s) compete to lower production cost to attract investors. Profit-driven private multinational corporations (MNC s) are tempted to elude regulatory standards when exporting low-tech industries to LDC s, exploit cheap labour and non-renewable resources. It is difficult to legislate and enforce a 'polluter pays' principle.9 Ultimately, long-term biodiversity conservation and economic development through trade liberalisation are in a symbiotic relationship with one another. Despite an admirable policy objective of ensuring mutually supported10 relationship between environmental protection, on the one hand, and the global system of liberalised trade, on the other, ongoing points of conflict remain.
To arrest the rate of biodiversity loss, states and markets can implement a range of measures. Increasingly, environmental performance standards are being imposed in the process and production methods (PPM s) of goods, such as requirements which establish if a product can be considered 'environmentally friendly' . Implementing higher PPM s standards leads to market competition; thus, promoting innovation for economic growth that maintains a higher standard of environmental protection. In this way, implementing higher environmental standards of PPM s is a mechanism in aligning trade and environmental protection goals. This has a significant role in influencing consumer tastes and preferences. Goods are increasingly attempting to improve their environmental credentials and introduce marks and other forms of consumer advertising to reflect this. Governments can also mandate that certain goods be produced using a specific method, such as not using certain chemicals that can result in biodiversity loss, or the introduction of technology which can reduce bycatch in the fisheries industry. But such measures can have a significant impact on trade relations by effectively barring countries from market access which can, in turn, devastate local export-orientated industries. Within the international sphere, governments have also committed to a range of trade-related measures that restrict trade in several goods that create public moral dilemmas, such as the trade in endangered plant and animal species, as well as trade in hazardous waste.11 These commitments have a clear benefit in protecting biodiversity as well as achieving sustainable development. Against this backdrop, there has been a progressive push for increased trade liberalisation and removing non-tariff barriers to trade. In this respect, the World Trade Organization (WTO) plays a central role in facilitating trade liberalisation and creating a rules-based system to make trade freer and more predictable. The WTO also serves as an important platform to resolve trade related disputes by ensuring that countries do not impose measures which are a disguised trade barrier which prop up inefficient domestic industries. This is a controversial area, given that states possess autonomy to pursue legitimate policy objectives to preserve the natural environment and biodiversity assets.
This article will explore the nexus between biodiversity and international trade. To explore this issue, this article will first discuss the ideological foundations of the WTO, viz, a rules-based system aimed at promoting trade liberalisation. Whilst the WTO does not specifically regulate biodiversity, the General Agreement on Tariffs and Trade (GATT) does contain general exceptions which enable Members to reconcile both the competing priorities of trade liberalisation and environmental protection. This article will then explore the trade and biodiversity nexus between two mega biodiverse countries: Australia and China. It will explore this relationship by examining the China and Australia Free Trade Agreement (ChAFTA). Whilst ChAFTA contains several innovations which can improve biodiversity conservation, the Agreement also contains provisions which inhibit transparency and the ability for environmental non-government organisations to submit amicus curiae briefs in ISDS arbitration. Through a comparative analysis of other bilateral trade treaties, this article advocates for an approach which addresses these issues, including addressing systemic concerns regarding global biodiversity conservation.

WTO Agreements: Reconciling Trade Liberalisation with Biodiversity Conservation
The precursor to the WTO, the GATT, was created to establish greater trade liberalisation in the post-war era.12 Against this context, the primary objective of the GATT was to foster global economic recovery by eliminating trade tariffs, quotas and subsidies; underpinned by a free trade philosophy that squarely attacked the ideology of protectionist economic policy. In doing so, the GATT was a product of its time, and it was not until subsequent trade negotiations and the establishment of the WTO13 before the GATT considered, in greater detail, economic externalities to free trade, including the cost of free trade to the natural environment.14 The WTO achieves greater trade liberalisation by instituting a rules-based trade system. The paramount provisions of GATT in the 'trade and environment context' are Articles I, III and XI.15 Article I indicates that there is a requirement for parties to not discriminate between each other (the 'most favoured nation' or MFN principle).16 Whilst countries are still free to negotiate preferential trade agreements (PTA s) that offer lower than the MFN tariff rate, these tariff rates must cover 'substantially all the trade' between the countries. As such, states remain incentivised to comply with the GATT so that their industries can obtain an equal footing against other like products in the global marketplace. Similarly, Article III shows that there can be no discrimination between domestic and foreign 'like products' (the 'national treatment'

12
Enshrined in Charter of the United Nations, Chapter IX: International Economic And Social Co-Operation, Article 55: "the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples".

Like Products and the Importance of Process and Production Methods (PPM s)
One key issue which arises from the above core obligations under the GATT is what constitutes a 'like product' . Whilst it may be apparent, for instance, a consumer may be able to discern that a toothbrush is not 'like' a paint brush, serious questions arise: are products which have similar end-uses be 'like' each other if the process and production methods (PPM s) which were used to create the product are substantially different? This is referred to as a non-product related PPM. This remains a pertinent question as the MFN or national treatment principle may not apply to products which have similar end uses, but one uses an 'environmentally-friendly' PPM when compared to its competition. For measures aimed at biodiversity conservation, implementing a means to regulate producers which use PPMs that harm biodiversity makes sense from an environmental perspective. However, it raises several important trade issues.20 Firstly, standards that may be imposed that are aimed at conserving biodiversity may not be appropriate for some foreign competitors (e.g., laws that require biodiversity offsetting where the effected species is endemic to the foreign producer). Secondly, there is an equity issue for developing countries where more immediate development concerns, such as poverty alleviation, may outweigh compliance to higher environmental performance standards.
The WTO have weighed in on whether environmental non-product PPM s is a relevant factor in determining whether any competitive products are 'like products' . In US -Shrimp, the United States implemented a measure which restricted Indian, Malaysian, Pakistani and Thai shrimp imports on the basis that the PPM s used to harvest this shrimp endangered sea turtles through bycatch.21 In this instance, the shrimp products were considered 'like products' , however as discussed below, the United States successfully raised a defence that the measure was permissible as it was necessary to protect animal life pursuant to GATT Article XX(b). In a similar case, United States -Tuna Dolphin II, the United States implemented a measure which established standards for products to be labelled as 'dolphin safe' . These standards were higher than international standards and effectively locked Mexico out of the market as they did not possess the capacity to comply with these elevated standards and it modified the competitive conditions prevailing between the two countries.22 What these cases demonstrate is that whilst determining whether a non-product PPM makes any two products 'like products' remains a fluid analysis dependant on the facts and circumstances before the WTO, factors such as a country's capacity to implement higher biodiversity conservation measures can be a relevant factor in determining whether the measure has altered the competitive relationship between Members.

2.2
Environmental Exceptions under the GATT Whilst the mandate of the WTO remains silent on the issue of biodiversity, the WTO is not agnostic to social and environmental issues which influence Members and domestic policymakers. The Marrakesh Agreement, which established the WTO, recognises 'the objective of sustainable development, seeking both to protect and preserve the environment' .23 To achieve this objective, the GATT contains important exceptions to the core MFN and national treatment principles. Exceptions in GATT Article XX are passive and ambiguous, and previous GATT panels have adopted a strict interpretation of these exceptions. Article XX of the GATT enables Members to implement measures, so long as they are not applied arbitrarily, where it is necessary to protect human, animal or plant life or health (Article XX(b)), or to conserve an exhaustible natural resource (Article XX(g)). Matters before the WTO dispute settlement body (DSB) have demonstrated how countries can defend measures raised under Article XX(b). In relation to Article XX(b), the Appellate Body in China -Rare Earths determined that a Member raising Article XX(b) must do more than 'simply produce a list of measures referring, inter alia, to environmental protection and polluting products' .24 Members must demonstrate that the proposed measure is 'necessary' for protecting animal or plant life or health. This requires the measure to 'bring about' or make a 'material contribution' to the achievement of its objective25 and there must be a 'genuine relationship of ends and means between the objective pursued and the measures at issue' .26 Once necessity has been established, WTO DSB s then perform an assessment that a proposed measure is in conformity with the chapeau of Article XX, including how the measure materially contributes to biodiversity conservation27 and whether there is a least trade restrictive option available to achieve the protection of animal or plant life or health.28 Evidently, there is a high bar that policymakers must pass for a biodiversity conservation measure to remain consistent with the GATT and its exceptions. Previous Article XX(b) jurisprudence suggests that the application of measures aimed at preserving animal or plant life or health are largely consistent with the principle of sustainable development and the precautionary principle. In EC -Asbestos, the Appellate Body rejected Canada's argument that the European Union, which implemented a measure that banned asbestos imports, were required to undertake a risk assessment to justify the measure. According to the Appellate Body, 'relating to the quantification of the risk, we consider that, as with the SPS Agreement, there is no requirement under Article XX(b) of the GATT to quantify, as such, the risk to human life or health' .29 This determination by the Appellate Body is important for the application of the precautionary principle. The application of the principle, being that the lack of full scientific certainty should not be used to postpone measures which prevent environmental degradation where there is a threat of irreversible harm, would be undermined where governments were required to undertake a risk assessment for every measure aimed at conserving biodiversity. Practically, measures such as preventing the introduction of invasive species or unsustainable harvesting practices, cannot wait for such a risk assessment or full scientific certainty to take place. Rather, Article XX(b), and the SPS Agreement considered below,30 contemplate that such flexibility must be built into the system to provide Members with autonomy to implement measures, providing that they adhere to rules concerning transparency and adjust such immediate measures as scientific knowledge and the awareness surrounding risk crystalises.
GATT Article XX(g) allows Members to implement measures that aim to conserve exhaustible natural resources and has relevance for biodiversity conservation. In US -Shrimp, the Appellate Body determined that an 'exhaustible natural resource' includes both living and non-living resources, noting that the objective of the GATT is to achieve sustainable development and must be interpreted 'in light of contemporary concerns of the community of nations about the protection and conservation of the environment' .31 Despite the Appellate Body's finding that natural resources under Article XX(g) includes living resources, the text of the GATT has not been amended to include this vital distinction. When confronted with a dispute involving Article XX(g), the WTO does not follow a prescribed analytical framework.32 Rather, the WTO has assessed each contested measure on a case-by-case basis, and, as described by the Appellate Body in China -Rare Earths, examine the design and structure of the measure to perform a 'holistic assessment of its component elements'33 to determine whether the measure is 'primarily aimed at'34 protecting an exhaustible natural resource. The WTO have also determined that whilst Article XX(g) does not have the same 'necessity' test between the proposed measure and policy aim as in Article XX(b), there still must be a 'close and genuine relationship of ends and means' .35 According to the Appellate Body in China -Rare Earths, a GATT inconsistent measure that only incidentally aims at a conservation objective would not satisfy the requirement that the measure relates to conserving an exhaustible natural resource.36 Finally, Article XX(g) requires the Member implementing the measure to ensure that the measure is made effective in conjunction with restrictions on domestic production or consumption.37 According to the Appellate Body in US -Gasoline, this requires a measure to demonstrate an 'even-handedness' in the imposition of restrictions aimed at preserving the exhaustible natural resource.38 As such, policymakers are faced with several considerations when designing biodiversity protection measures that impact on GATT Members and must make genuine attempts to regulate both domestic and foreign firms in a fair and balanced way. Unlike Article XX(b), determining whether a proposed regulation achieves biodiversity conservation that is GATT consistent does not necessarily turn on whether the regulations have materially made an impact at conserving biodiversity. In US -Gasoline, the Appellate Body rejected the argument that the requirement to ensure measures are 'made effective' in conjunction with domestic restrictions under Article XX(g) required the measure to demonstrate some measurable positive effect at protecting the exhaustible natural resource.39 According to the Appellate Body, such a requirement to demonstrate a measurable positive effect raises evidentiary issues given the difficulties in establishing causation between the measure and effect, and that 'in the field of exhaustible natural resources, a substantial period of time, perhaps years, may have to elapse before the effects attributable to implementation of a given measure may be observable' .40 Whilst this finding has been criticised as it appears to move away from the plain English understanding of Article XX(g),41 it opens the WTO to permit measures based on a precautionary principle approach. For domestic policymakers, a repudiation of the 'empirical effects' test provides flexibility, which can be a determinative factor when introducing measures where an evidence base may be difficult to obtain or is entirely non-existent, such as sanitary or phytosanitary measures. By focussing on the design and structure of the proposed measure, rather than requiring proof of empirically greater biodiversity protection, the WTO can achieve greater alignment on measures based on a precautionary approach. Yet despite the conceptual alignment between trade liberalisation, biodiversity conservation and sustainable development, Members have generally had poor success in defending a biodiversity-related measure before the WTO. Generally, the question of conformity with the Article XX(g) turns on whether the measure at issue has been applied arbitrarily (in contravention of the chapeau of Article XX), or whether the measure have been applied in conjunction with restrictions on domestic production or consumption. In Tuna-Dolphin, Mexico brought proceedings against the US for regulations which prohibited tuna that did not conform to dolphin protection standards. Under the US regulations, fishing operators selling in the US market were required to reduce dolphin bycatch by using purse seine nets, and restricted the use of voluntary labels (i.e., products marked 'dolphin safe') where it did not meet certain harvesting performance standards.42 The US regulations also placed a restriction on any tuna goods from third party countries which did not also implement similar environmental performance standards. According to the Panel, the trade measures could not rely on Article XX(b) or (g) as the measure was applied arbitrarily and was not reasonably necessary to fulfil its policy objective.43 In US -Shrimp, which involved a measure aimed at preventing turtle bycatch by requiring fisheries to use turtle exclusion devises (TED s), the WTO found that whilst the measure did aim to protect an exhaustible natural resource, the measure was applied arbitrarily in contravention of the chapeau of Article XX.44  Agreement), aimed at regulating measures necessary to protect human, animal and plant life or health, also allows Members to undertake measures to protect biodiversity, where they pose a sanitary risk due to the introduction of pests or disease, based on scientific principles and risk assessment.47 As identified above, where such scientific evidence remains lacking, Members can implement measures provisionally on the basis that the Member later obtains the additional information necessary for a more objective assessment of risk to review the provisional measure.48 In essence, this enables Members to adopt a precautionary approach when implementing biodiversity conservation measures, in that they are not required to obtain certainty in scientific evidence for a provisional measure to be consistent with the SPS Agreement.

Addressing Technical Barriers to Trade for Biodiversity Conservation: The TBT and SPS Agreements
However, a key constraint of both the TBT and SPS Agreements is one of technical capacity. Given that most mega-diverse ecosystems are also developing countries, these Members often do not have the technical capability to justify or implement measures aimed at biodiversity conservation. Such measures, over the long term, require highly specialised scientific expertise to justify and ensure that it remains necessary and the least trade-restrictive option available, whilst achieving the desired level of protection. In addition, SPS and TBT measures are only effective when dealing with biodiversity threats from the outset. The lack of monitoring and scientific capacity within developing countries often means that threats to biodiversity, such as invasive species and pests, destroy ecosystems long before they are identified. which have become an increasingly sensitive issue following violent conflicts between Han majority and Muslim communities.53 Whilst there is a power imbalance given both the scale of the Chinese economy and Australia's reliance on China as its primary export market for natural resources, both economies remain highly integrated. Prior to negotiations, tariff barriers were already low, and Australia held important strategic significance for China for its iron ore and coal deposits.54 In this context, ChAFTA was negotiated with the aim to intensify this relationship and improve the comparative advantages already enjoyed by each Party. Primarily, during the negotiation process which took over a decade, China was concerned about Australia's foreign investment approval process, mining investment and visa requirements for Chinese workers.55 Conversely, Australia's interests were primarily concerned about China's domestic regulatory barriers to foreign investment and market access, which whilst Australia did not receive strong concessions in this area, did receive concessions in trade in goods and services.56 Australia also received concessions through the form of a narrow scope of matters which can be referred to ISDS, which was a concern for Australia given the high profile arbitration with Philip Morris' against legislation that introduced plain tobacco packaging.57 As a result of ChAFTA, Australia has increased coal exports to China by 35.7% and China's exports to Australia by 19.9% prior to the implementation of trade restrictions by China.58 Interestingly, because of ChAFTA, Australian coal exports has decreased to other countries, including -15.3% to the United States, with China intensifying its reliance on Australian coal by reducing its demand for Indonesian and US coal by 8.9% and 6.6% respectively prior to trade restrictions.59 Whilst trade restrictions imposed by China in 2020 has since altered this balance and has resulted in a significant draw down on natural resource stockpiles for Chinese consumers, Australia-China trade relations have warmed with China remaining highly motivated to regain access to Australian natural resources and for Australia to improve access to supply chains that were also disrupted by the COVID-19 pandemic.
When it comes to protecting biodiversity, ChAFTA remains silent on the issue of specific biodiversity conservation, however it does contain several key provisions relating to the protection of the environment generally. One key provision, article 9.11.4, contains a carve out which prevents non-discriminatory measures for the legitimate public welfare objectives of 'public health, safety, the environment, public morals or public order' from being subject to ISDS under ChAFTA.60 Where a respondent believes that a contested measure falls under the scope of article 9.11.4, they can issue to the claimant a 'public welfare notice' which suspends any related ISDS arbitration until the Parties develop a final determination that can be binding on the ChAFTA ISDS tribunal.61 However, it must be noted that to determine whether a measure is indeed 'non-discriminatory' , Parties reserve the right to pursue arbitration as described under articles 9.16.5 and 9.16.6 of ChAFTA.62 Whilst ChAFTA's ISDS provisions have been criticised as being too narrow in scope to have any significant impact on improving investor sentiment,63 according to Dickson-Smith et al, this modified process presents an innovative approach which 'seek to safeguard the sovereign's inherent regulatory powers' that enables countries to 'ratchet up or down' regulatory protections as it sees fit.64 Importantly, it provides space for both the Australian and Chinese Governments to negotiate and provide notice to impacted states before the implementation of measures aimed at preserving biodiversity to obtain the less trade-restrictive outcome. Where there is consensus that the measure is necessary for biodiversity conservation, the binding nature of the determination between parties can arrest any further ISDS claims brought by private entities.
Yet despite ChAFTA succeeding in providing both the Australian and Chinese Governments the policy autonomy to implement biodiversity conservation regulation, there has been deficiencies. As identified by the Office of Impact Analysis, ChAFTA does not contain any enforceable obligations on either party to improve their environmental standards or implement regulations which create minimum biodiversity conservation protections.65 In fact, this is indicative of a wider approach from Australia to not include social welfare objectives into their Free Trade Agreements (FTA s) more generally. Australia remains an outlier amongst other OECD countries for failing to include social standards, such as biodiversity conservation goals, into its FTA s.66 According to Postnikov et al, this reflects perceptions both within the Australian public and DFAT that such protections are a non-tariff trade barrier.67 A cultural shift that recognises the mutual benefits arising from mainstreaming environmental and biodiversity issues with trade will be necessary to move the pendulum towards reform. As evident from comparative jurisdictions and OECD countries, greater integration of biodiversity and trade matters can occur through the development of model FTA s and BIT s. In this respect, other jurisdictions such as the European Union have successfully pursued social standards into their FTA s, such as incorporating corporate social responsibility (CSR) objectives into agreements.68 Whilst such goals in the realm of biodiversity conservation will be explored in the next section, this highlights that the existing dichotomy between social objectives and free trade does not need to be continually framed as a non-tariff barrier to trade.
Despite the narrow scope of matters which can be referred to ISDS, the ISDS process contained in ChAFTA also suffer from transparency and procedural issues. ISDS has long been criticised by environmental advocates and non-government organisations for lacking transparency,69 such as requiring parties to release pleadings to determine what considerations that a tribunal have weighed in determining their decision. In response to this concern, bodies such as the United Nations Commission on International Trade Law (UNCITRAL) and the International Centre for Settlement of Investment Disputes (ICSID) have released rules on how parties conduct arbitration, including the release of information to the public.70 However, whilst ChAFTA enables a claimant to submit to ISDS arbitration under the UNCITRAL Arbitration Rules or the ICSID Convention,71 this is subject to any modification under the Side Letter on Transparency Rules Applicable to ISDS72 which explicitly rejects the transparency measures contained therein. This is further compounded by the fact that third parties, such as environmental non-government organisations, cannot participate in any arbitration through amicus curiae which would otherwise be enabled through Rule 4.1 of the UNCITRAL Rules on Transparency. These issues prevent scrutiny of ISDS arbitration decisions to ensure that decisions remain consistent with biodiversity conservation obligations held under domestic and international environmental law.
As the next section will consider, other regional and bilateral trade agreements have addressed the deficiencies contained in ChAFTA, such as successfully calling upon parties to implement minimum environmental regulations which can improve biodiversity conservation and reduce a 'race to the bottom' by incentivising a lack of environmental standards.

Best Practices and Alternative Models to Enhance Biodiversity Conservation through Trade
There are several regional trade agreements (RTAs) which contain provisions regulating biodiversity and have direct impact on measures aimed at biodiversity conservation. Some RTAs even go further than GATT obligations and provide additional protections to biodiversity, thus providing a useful model and best practices for a future, revised version of the regulations.73 According to Telesetsky, the CPTPP provides significant latitude and policy autonomy for Parties to implement their own effective measures to address sustainable development and biodiversity conservation. 74 The newly ratified United States -Mexico -Canada Agreement (USMCA), which replaces the North American Free Trade Agreement (NAFTA), also contains several provisions aimed at addressing biodiversity loss. Firstly, the USMCA replicates the general exceptions found under the GATT but goes further to include text which clarifies that exhaustible natural resources includes both living and non-living resources.75 This provides greater certainty to the status of measures aimed at biodiversity protection. Secondly, Chapter 24 of the USMCA contains several provisions which clarify the relationship between trade and the environment. A key provision is Article 24.4, which requires Parties to ensure that domestic environmental laws are not weakened in the furtherance of greater trade and investment.76 This is a remarkable provision that addresses a 'race to the bottom' scenario whereby a state can achieve comparative advantages by reducing their environmental protections or promoting carbon leakage.
The USMCA also require Parties to strengthen their cooperation on trade and environment matters. Article 24.8.3 requires Parties to perform consultation and information sharing 'with respect to environmental issues of mutual interest, in particular trade-related issues' .77 Article 24.8.4 also brings in several MEAs into the scope of the USMCA dispute resolution process, by requiring parties to mediate trade related disputes concerning these MEAs within the USMCA ISDS process.78 The MEA s covered under USMCA include the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES Agreement), the Montreal Protocol on Substances that Deplete the Ozone Layer and the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (the Ramsar Convention). Noting that it is a framework agreement, it remains to be seen whether the USMCA will be reformed in the future to include references to the biodiversity targets set by the Kunming-Montreal Global Biodiversity Framework Agreement, which replaces the Aichi Biodiversity Targets.79 Nevertheless, the inclusion of these MEA s into the USMCA dispute resolution process provides an effective mechanism to enforce environmental obligations where they demonstrate a nexus with trade and investment.
In terms of specific biodiversity protections, the USMCA also requires parties to promote conservation and sustainable use of biodiverse resources and recognizes the importance of indigenous knowledge and facilitating access to genetic resources.80 Finally, the USMCA contains several provisions regulating the sustainable management of fisheries,81 deforestation82 and the illegal trade in fauna and flora83 that is co-regulated under the CITES Agreement.
However, the devil remains in the detail. Provisions relating to greater cooperation on trade and environmental matters utilise non-binding language, such as 'recognising' or 'affirming' . Nevertheless, as demonstrated by the Appellate Body's reasoning in US -Shrimp,84 such language can still carry interpretive weight in future ISDS disputes.85 For Parties to the USMCA, particular attention has been paid towards establishing pre-emptive consultation to avoid environmental disputes and preserve policy autonomy for respective Parties, much like ChAFTA. Given that the USMCA has only been in force for two years at the time of writing, it remains to be seen whether subsequent ISDS panels will expand on the environmental and biodiversity protections and interpret obligations that will allow biodiversity measures to survive a ISDS challenge.
Historically, previous biodiversity-related matters which have gone before NAFTA ISDS have been rejected for non-conformity, albeit for foreign direct investments. In Metalclad Corp v United Mexican States, a purchase of a hazardous landfill site by Metalclad Corp was undermined by the denial of a construction permit from the local municipal government given their announcement of an Ecological Decree which aimed to protect a local cactus species. Metalclad Corp alleged that this Ecological Decree amounted to an indirect expropriation of the site. The NAFTA Tribunal affirmed that the Decree amounted to an indirect expropriation and ordered that that the Mexican municipal government pay compensation for the expropriation.86 In Clayton/Bilcon v Government of Canada, a marine terminal developer sued the Canadian Government for their rejection of a proposed marine terminal. Whilst the rejection was based on a recommendation made by an Environmental Assessment, the ISDS tribunal found that Canada failed to provide fair and equitable treatment to the developer and provide national treatment to the investment.87 These cases again demonstrate that biodiversity measures have a poor history in surviving a dispute resolution challenge, much like cases brought before the WTO DSB. The poor history that biodiversity conservation efforts have in surviving ISDS processes can be attributed to procedural factors which prevent biodiversity conservation from being effectively advocated in ISDS. Whilst ISDS processes are flexible, arbitration often rejects amicus curiae briefs from environmental groups which highlight the environmental impact of proposed conservation efforts. This remains a live issue in ChAFTA, with any amicus curiae submissions requiring the written approval of both parties, creating an 'onerous requirement' and a 'significant barrier to third party participation in (ChAFTA) ISDS' .88 This provides 'asymmetric' procedural rights to parties such as investors and creates fragmented legal norms in favour of multinational corporations that remain unchecked by other legal norms, including norms from international human rights, indigenous rights and international environmental law.89 This asymmetry also contributed to arbitration interpretations which often lack contextualisation for developing countries.90 In doing so, there is a long way to go for ChAFTA and other trade institutions to be the most ALAM Chinese Journal of Environmental Law 7 (2023) 19-41 appropriate body in balancing competing interests of biodiversity protection against trade liberalisation in practice.

Conclusion
Trade has several important impacts on biodiversity. On the ground, trade can accelerate biodiversity loss by driving unsustainable economic activity that destroys natural habitats and reduces genetic diversity, such as industrial agriculture. Trade also requires an extensive transportation network given the dislocation between supply and consumer demand. This can drive further biodiversity loss through pollution and land use change. But most critically, the global system of rules and regulations that enable trade between nations can create a regulatory chill for policies and action aimed at preserving biodiversity. Increasingly, domestic policymakers must consider the trade impact that proposed measures, that are aimed at conserving biodiversity, has on their trading partners.
As this article has explored, the WTO contains a set of several exceptions which enable states to pursue this legitimate policy objective. GATT Articles XX(b) and (g) enables states to implement measures aimed to safeguarding animal or plant life or health, as well as conserving exhaustible natural resources. In balancing these legitimate goals against trade liberalisation, the WTO have created additional rules that can enliven such exceptions, including introducing necessity tests and a requirement that such measures demonstrate an 'even-handedness' between domestic and foreign firms, as well as notification and transparency requirements under the TBT and SPS Agreements.
However, as GATT jurisprudence reveals, previous biodiversity measures have failed WTO DSB challenges, with measures often being found to have been applied discriminately. In addition, the text of the GATT continues to treat the status of 'living resources' and its relationship with MEAs ambiguously. This is further compounded within ChAFTA, which contains limited biodiversity protections. Whilst it is admirable that ChAFTA has retained policy autonomy to enable conservation-based measures by instituting a state-state negotiation process through the 'public welfare' notice process, this is undermined by the lack of transparency and ability for environmental non-government organisations to submit amicus curiae briefs in ISDS arbitration. The lack of amicus curiae also undermines the ability for ISDS to achieve consistent outcomes and coherence with domestic and international environmental law, including biodiversity conservation obligations. In this respect, there is an immediate opportunity for reform in this area to enable amicus curiae submissions