Could a trade agreement strengthen the enforcement of domestic environmental laws? Envisioning the impacts of the US–Peru environmental submissions mechanism

Abstract

Could a trade agreement strengthen the enforcement of domestic environmental laws? This article explores this question in the context of the US–Peru Trade Promotion Agreement (TPA). The article examines, in particular, the potential role of the Secretariat for Submissions on Environmental Enforcement Matters (SEEM) of the TPA. The SEEM is an advisory mechanism to the parties to the TPA which allows citizens to bring direct submissions. This article considers the extent to which the SEEM can facilitate the enforcement of domestic Peruvian environmental law thus helping secure Peruvians' constitutional right to a healthy environment. Existing domestic mechanisms of administrative, civil or criminal law are already available to Peruvian citizens. These can apply to varied situations and provide a range of remedies, but often, they are also costly and lengthy. The SEEM began operating in 2018, and its first six submissions already hint at its potential to become a useful complement to domestic legal avenues. The SEEM could become increasingly used in the future due to Peru's prevalent institutional problems and its interest in maintaining good commercial relations with the United States. The mechanism also has the potential to provide a way to address the autonomous actions of the Peruvian Congress or its subnational governments that sometimes act in defiance of the environmental laws and regulations enforced by the executive branch of the national government. Importantly, however, citizens need to be aware of the limitations of the SEEM as a non-adjudicatory mechanism and the fact that it is not a policymaking forum. Future research on the SEEM could provide a better understanding of how the process of increasingly mainstreaming the environment in international trade law is beginning to have concrete effects.