The use of the term “trade-related instruments” appears in the available literature, for all biodiversity trade, to be used almost interchangeably with the terms ‘trade-related measures’ and ‘trade-related mechanisms’. While the term ‘instrument’ does, in certain contexts, indicate a State or internationally developed and recognized legal or policy document, it is certainly not confined to this definition.
No attempt has been made in this analysis to provide a single definition of ‘trade-related instruments’ but rather to focus discussion and analysis on instruments that are directed at trade generally or the trade in NWFP. The following were considered in the determination of which instruments were to form part of the analysis and are helpful in assessing their relevance and potential to positively influence the sustainable use of NWFP and contribute towards the livelihoods of those dependant on them.
There exist innumerable international, regional, national and local measures on the use and conservation of wild plants and animals. Many of these measures have an impact both on the trade in NWFP and livelihoods, but not all can be described as trade-related instruments. For instance, measures that create or regulate formally protected areas frequently have indirect impacts on the harvesting of NWFP and in some instances, peoples’ livelihoods, but the underlying basis for developing and implementing the instrument is not to regulate trade, and it would be incorrect to refer to such a measure as a trade-related instrument. Conversely, there are measures such as biodiversity related national import or export controls or a multi-lateral environmental agreement, such as CITES, which are clearly trade-related instruments impacting on biodiversity and, in many instances, on livelihoods.
The impact of trade-related measures may be intentional, as for instance in the case of international or national species trade controls for conservation purposes, or it may be unintentional, as in the case of broad trade measures developed through regional or international trade agreements such as the WTO, where NWFP trade was not a major consideration or target in the development of the measures, yet where the implementation of the measures has the potential to impact on the trade in NWFP. The impact, either on biodiversity or people, is not always necessarily what was desired in the development of the relevant instrument.
A related consideration is that international trade controls do not act in isolation of market forces and in certain cases act in concert with them, which complicates efforts to identify the impacts of trade controls alone. For instance, declines in demand, market responses to changing fashion trends, or a change in the economic strength of consumer countries can all have an impact on international trade (Burgener, 2003).
The majority of trade-related instruments are premised on a command and control approach where a failure to comply with the instrument results in the imposition of a penalty or restriction on the trade. Voluntary trade-related instruments such as certification schemes are incentive-based and rely for their use and success on traders and consumers deriving benefit, either financial or ethical, from the trade in and consumption of NWFP sourced, processed and traded in accordance with sound social and environmental principles.
While this analysis has not attempted to separate or categorise the many instruments discussed according to whether they are considered legally binding or non-legally binding, a brief discussion of these terms is useful, particularly in understanding the obligations imposed by international agreements dealing with NWFP.
At a domestic level, the distinction between legally binding instruments and non-legally binding instruments is generally clear. Laws (be they national, provincial or local) in the form of acts, decrees, codicils, by-laws and so on are legally binding and can be enforced through criminal, civil or administrative procedures.
Policies, guidelines and other similar tools are not legally binding. They are frequently used to describe government policy on a particular issue but cannot be enforced and depend for their implementation on the development of associated legislation.
The status of regional and international instruments is less clear and certain agreements or processes pose greater or less obligations on those who align or, conversely, fail to align themselves with the relevant conservation and management measures. The terms ‘soft’ and ‘hard’ law are often used in reference to international agreements but a ‘hard law’ international agreement is not necessarily legally binding in the same manner that a national law is legally binding. The majority of international agreements, for instance, are non-self executing and thus require the development of specific national legislation to ensure their implementation and to enable Member States to fulfill their obligations in terms of an international agreement.
Edison (in press.) notes that the term ‘soft law’ is used to refer to instruments that were not intended to give rise to legal obligations but which have been drafted in a quasi-legal style, and for the most part were not intended (at least not directly) to create or lead to the development of any legal obligations.
There can be little doubt that a mixture of hard and soft law has had its advantages, in particular through allowing certain principles to be stated in soft law documents which are largely hortatory. Soft law documents often reveal the stages in the development of concepts and principles, such as the precautionary approach. They can provide testing grounds for new ideas, or adaptations of old ideas to new areas.