1992 Biodiversity Convention, Sustainability & Indigenous Knowledge

1/4 We offer more video choices, namely please view as background either “a” & “b,” or “c” & “d,” or view all of them to build your scientific understanding of the problems, if you have time, plus read the written summary for “e.”

a. Sodhi, “Unearthing Biodiversity” (TED 09/13/18, 14:38) (Mr Wizard style, what is biodiversity?

b. Our Changing Climate, “Biodiversity is collapsing worldwide: Here’s why” (OCC, NCSE 05/20, 8:35) (generalized science ed, overlap between climate change and biodiversity)

c. Hadly, “Humans, Biodiversity and Habitat Loss” (HMII Bioactive Video 04/08/15, 33:04)(very sober looking undergrads, after the Stanford paleontology professor’s lecture)

d. Sukhdev, “Put a value on nature!” (TED 12/14/11, 16:31) (former banker’s economic approach to biodiversity and environmental services, with public versus private goods– now perhaps best characterized as the OECD view)

e. Living Planet Report 2020 (WWF, 2020) (read summary only for approaches to remediation of increasing loss of biological diversity)

2/4 Please read the texts of the
a. Convention on Biological Diversity (1992) as well as the related Cartagena (2003) and Nagoya (2014) Protocols

b. [Red hots may read as well the text of the CBD’s agricultural parallel in International Treaty for Plant Genetic Resources for Food and Agriculture (2009), plus the WTO TRIPS Agreement (1994) for IP rules aimed at private sector intellectual property, that may affect the CBD overlap]

3/4 Read
a. Blomquist, “Ratification Resisted: Understanding America’s Response to the Convention on Biological Diversity, 1989-2002,” 32 Golden Gate U L Rev 493 (2002). This is a fairly close examination of the contemporary domestic political US view of Rio, compared to our early attention to Dr Mahatir as the developing country view of what was going on in 1992.

b. Gonzales & Monagle, Biodiversity and Intellectual Property Rights: Reviewing Intellectual Property Rights in Light of the Objectives of the Convention on Biological Diversity (CIEL/WWF Joint Discussion Paper BW01-1, March 2001) (exploring policy issues involved in reconciling the CBD and TRIPS)

c. [For red hots, sample the various TEEB and OECD biodiversity publications, because these tend to be economically oriented and tend to make the business and economics case for sustainability, as opposed to the scientific or legal arguments.]

4/4 Take a look at the website of the 2012 Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (“IPBES,” formally based in Bonn, Germany, and unlike the IPCC, not formally affiliated with the UN– as in the UNCCC– although it prepared a 2019 assessment, see the summary for policymakers, if you have time). The IPBES is known most recently for issuing a report in the midst of the Covid-19 pandemic that increasing loss of biodiversity implies increasing threats to public health, including but not limited to more pandemics. Why had you probably heard nothing about it before reading about it here?

Copyright 2020–21 © David Linnan.

1992 Biodiversity Convention, Sustainability & Indigenous Knowledge

1/4 How would you propose to reconcile the Convention on Biological Diversity (1992, “CBD”) as well as the related Cartegena (2003) and Nagoya (2014) Protocols with the basic 1994 WTO multilateral trade law framework as visible in the Beef Hormones, Shrimp (TED) or Venezuelan Refineries Dispute Resolution Body environment and trade cases previously read? How would you analyze the CBD and WTO Agreements as competing treaties, under the Vienna Convention on the Law of Treaties. Remember, all such treaty law falls into the first half of the 1990s. It is not like they were ignorant of the parallel trade (1994 WTO Uruguay Round) and environment (1992 Rio Conference, resulting in the UNCCC and CBD) tracks, as a technical matter.

2/4 What is your own view of the view of the US’ response to the CBD, given what you read in the Blomquist article, and how would you compare it to Dr Mahatir’s articulation of the developing country view of what was going on in 1992? What, if anything, has changed, or are the differences of opinion and approach still as wide as in 1992? Why?

3/4 We talked about the Exoticwood CITES Petition Problem in Unit 13. Assume the US were a party to the CBD. How would the CBD be applicable to the facts of the Exoticwood problem?

4/4 What role do you think the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services or IPBES fulfills? Is it a wannabe IPCC, except for biodiversity instead of climate change, or what? On a programmatic level, beyond the US giving serious consideration finally to joining the CBD, what would you propose as a realistic CBD implementation program along the lines of something like the biodiversity crisis equivalent of the Kyoto Protocol, or the Paris Agreement? What might it look like, if the crisis accompanying biodiversity loss were not simply viewed in practical terms almost as a subcategory of the GHG-driven climate change crisis?

Copyright 2020–21 © David Linnan.

1992 Biodiversity Convention, Sustainability & Indigenous Knowledge

1/4 There are really three kinds of problems with biodiversity, two of which in the US context arguably grow out of our failure reaching back to the 1992 Rio Conference to join the Convention on Biological Diversity (“CBD,” which alongside the UN Convention on Climate Change or “UNCCC” constituted one of the Rio Conference’s major outputs). The third was visible in Dr. Mahatir’s speech we read early in the course. It reaches all the way back to 1960s international law discussions accompanying decolonization.

The first problem is the underappreciated fact that everyone has heard about climate change, and everyone focuses on the UNCCC with its Kyoto Protocol versus Paris Agreement fireworks (accompanied by those IPCC periodic assessments). But from the natural science point of view, we are actually experiencing two simultaneous and only somewhat related environmental crises. One is the climate change issue in terms of potential longer-term temperature and weather changes with attendant sea-level rise, etc. The other is the loss of biological diversity (species extinction), typically as a result of habitat loss, in terms of changes that may result from variable temperatures, rising sea-levels, ocean acidification, human-induced changes in the natural landscape, etc.

To the extent rising heat levels or perhaps ocean acidification leads to land or sea-based habitat changes, you can draw a fairly direct line between GHG-induced climate change and biodiversity loss. But clearing tropical forest land as in Brazil or SE Asia in favor of livestock in Brazil or perhaps CPO plantations in SE Asia, may also result in habitat loss with related species loss, and so loss of biodiversity. That casts biodiversity often as a kind of overgrown land use question. It sometimes looks like a climate change question in terms of eliminating large swaths of (typically tropical) forest and their carbon sink function. But in a broader sense, it relates more to land use and economic pressures, either in terms of growing populations wanting to improve their diets (how do you feel about mandating soy burgers, given animal protein’s carbon footprint– particularly beef’s carbon footprint in the Amazon River Basin?), or perhaps the increasing number of people expanding settled areas. Arable land is being lost on the urban-rural boundary area to suburbs, etc., so farming and ranching may expand in other, more rural areas, simply to replace lost arable land. But expanding arable land with its related habitat loss typically reduces biodiversity.

2/4 The second problem is related to the US failure to join the CBD, namely that most discussion of the CBD tends to be highly technical in collateral areas, such as discussing intellectual property problems in gray areas like the overlap between the WTO’s TRIPs IP system and the CBD’s articulation of inchoate rights in the genetic material of species’ genes (e.g., incorporating royalty-like payments payable to governments for products based upon, or developed from, a harvested organism from a specific country, simply because the organism originates in that country).

The debate around traditional knowledge versus TRIPs is part of this complex of issues. The basic conflict is that traditional knowledge among pre-literate indigenous peoples does not have any real place in TRIPs, which focuses on things like patent law registries for validity searches. There is a similar problem with geographic indications (e.g., “champagne” can only come from the Champagne region of France, while the Napa Valley only produces “sparkling wine”). But from an economic point of view, geographic indications may make a substantial contribution in areas like rural development So developing countries like Brazil may want to expand geographic indications to encompass new products like single origin coffees, meanwhile Maxwell House and the US may not be very excited at the prospect of any such expansion of geographic indications (think Kraft and Kraft cheddar cheese, bearing in mind that Cheddar is actually a town in the UK).

The US may also regard any recognition of inchoate rights under the CBD as ideologically inspired, or otherwise improper, meanwhile developing countries played upon it employing concepts like “bio-piracy,” making professional operations difficult in the life sciences. Similarly, GMOs were subjected to strict regulation in the CBD’s Cartegena Protocol, seemingly in contrast to the Beef Hormones case outcome in the WTO. So the issues behind the CBD have not diminished, even though the US remains outside the CBD after 20+ years. And it remains difficult to address biodiversity-related issues generally without being a party to the chief international agreement addressing the area. What is most striking in international environmental law terms about the biodiversity issue is how underdeveloped it seems, compared to the climate change issue.

You were exposed to the relatively well-known Intergovernmental Panel on Climate Change (“IPCC,” created in 1988), which predated the 1992 Rio Conference, in reading about climate change in Unit 11. They publish all those sobering natural science-oriented climate science reports designed to inform climate policy. Meanwhile, there is for biodiversity formally since 2012 the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (“IPBES”), except very few people focus on the IPBES. Why do you think biodiversity visibly takes second place next to climate change? After all, the CBD has been around since the 1992 Rio Conference.

3/4 The third problem is inherent in sovereignty concepts and the very basic principle going back to the 1960s that countries as sovereigns retain control over the exploitation of their own natural resources. Dr Mahatir had that in mind when he said that developed countries need to pay developing countries, if they want them to refrain from exploitation their natural resources (like turning exotic hardwoods from virgin tropical forests into Danish Modern furniture). This goes back to a 1960s discussion referred to generally as the “New International Economic Order” or NIEO, where the newly independent former colonies laid claim to control of their natural resources that were often still in the hands of private sector natural resource companies based in the former colonies’ metropolitan countries. There were overtones of economic subjugation and resistance to compensating colonial-era companies, who were often claimed to have exploited the “natives” mercilessly for an extended period of time preceding independence. Meanwhile, the black letter public international law rule is that existing private law relationships and the like would normally remain unchanged following a public law change like the national independence of a traditional colony.

4/4 So, go back to the founding documents of international environmental law like the 1972 Stockholm Declaration, and you always find somewhere a mention of individual countries’ sovereignty over exploitation of their natural resources as an article of faith. This is the ideological background to odd sounding language like “bio-piracy,” that there was a prequel in the NIEO and related discussions. The claim to sovereignty over natural resources is hardly remarkable in a legal sense, but the invocation of the claim comes with a lot of intellectual and historical baggage. The problem in practice is that while discussion and disagreement occurred in the climate change arena (meaning states continue to look for solutions, like via the Kyoto Protocol or Paris Agreement), there is mostly silence on the biodiversity side of the discussion. At best, biodiversity tends to be dealt with collaterally in conjunction with climate change related habitat loss and the like. That would be okay, except how do you feel about eventual mandatory soy burgers if biodiversity were simply off the agenda? There is seeming recognition of the biodiversity issue, but not nearly as much engagement in looking for ways to address it, as would be the case with climate change (even though states may disagree about specific measures to address climate change). But the focus on land use-type concerns moves the discussion back towards the 1960s-1970s narrative about effects of overpopulation and claimed limits to growth, etc. Is this why biodiversity apparently takes a backseat to climate change?

Copyright 2020–21 © David Linnan.

1973 CITES Convention & Approaches to the Marine Environment: New Science, Old Treaties & Regional Governance

1/3 Read the text of the basic CITES treaty and sample Appendices 1, 2 and 3, noting the decreasing regulatory restraints on export at each level, as well as exceptions such as animals raised in captivity (and individual states can choose to schedule the same species proposed for inclusion under the CITES scheme under differing appendices, effectively dictating the associated level of protection, that may differ from state to state, or may exclude species from coverage based upon individual circumstances):

a. Official CITES website (run administratively via UNEP in Geneva)

b. CITES going full steam ahead to ensure sustainable use of marine resources: Hard work begins after more shark species are listed under CITES (Geneva, 08/29/19)

c. Traffic, “Future of sustainable wildlife management: CITES considers links to post-2020 biodiversity framework” (Geneva, 08/23/19; note both the possibility of linking CITES to the CBD, at least informally, and take a look at the website since TRAFFIC is the CITES equivalent NGO to BAN for the Basel Convention)

2/3 Compare concerning the still variable meanings of conservation, environmentalism (or preservation) and sustainability, which discourse is over 100 years old, at this point:

a. UN Sustainable Development Knowledge Platform, A contribution to the global follow-up and review in the 2017 Hi-Level Political Forum (HLPF) on the work of the Convention on the International Trade in Endangered Species of Wild Flora and Fauna (2017, UN view)

b. Folk, “Sustainability vs. Conservation: Key Similarities and Differences” (Conservation Folks blog, 05/26/20)

c. Westover, “Conservation versus Preservation” (USDA Forestry Service Forest blog, 02/21/17)

d. Favre, “Debate Within the CITES Community: What Direction for the Future?”, 33 Natural Resources Journal 875 (1993)

3/3 Concerning approaches to the marine environment:

a. Read “Conservation of Marine Living Resources” in Birnie & Boyle, International Law and the Environment 490-542 (1992)

b. Silver, Acton, Campbell & Gray, “How a global ocean treaty could protect diversity in the high seas” (The Conversation, 06/04/20)

c. Scan the website for the International Commission for the Conservation of Atlantic Tunas (ICCAT) as regional ocean governance body under the 1982 LOS, as well as its latest (21st special) meeting in 2019, since it too has been closed down for the COVID-19 pandemic. Understand that ICCAT and similar LOS-approved regional bodies constitute part of the international fisheries governance structure, in particular for determining the total allowable catch on an annual basis for valuable commercial species (here Atlantic tuna, tuna-like species, and pelagic sharks). Basically, the job of ICCAT is periodically to gather scientific data, then make annual allocations in terms of total allowable catch for participating countries. If you want to know how enforcement might follow, under trade law (GATT/WTO) importing countries can exclude fish caught outside of quota. The key importing country for tuna is probably Japan, since in the Tokyo fish market an individual high quality sashimi-grade tuna will sell for the price of a small car, but only if there is documentation that it was caught within quota. The inducement for a country becoming a member of ICCAT and receiving a quota is that it then can sell fish “certified” as coming within its quota. Otherwise, it may wind up as much cheaper cat food.

d. [if you are red hot and are really interested, beyond the kind of renewable resource management questions on fish, in the marine environment you have a pollution and hazardous waste dumping problem which you can see summarized at “The Regulation of Marine Pollution” in Birnie & Boyle, International Law and the Environment 251-99 (1992) and “The International Control of Hazardous Waste,” in Birnie & Boyle, International Law and the Environment 300-44 (1992) (read 300-32 for the marine hazardous waste issues)]

Copyright 2020–21 © David Linnan.

1973 CITES Convention & Approaches to the Marine Environment: New Science, Old Treaties & Regional Governance

1/3 Take a look at the readings on the varying meanings of conservationism, environmentalism (or preservation) and sustainability under 2/3 of the Readings page. What is more striking, and why, that the Forest Service says the divergent emphases on conservation versus preservation reach back all the way to the founding of the U.S. Forest Service and John Muir, or that sustainability under the UN Sustainable Development Goals (SDGs) seems to unite the developing countries and environmentalists, or do they really? The SDGs may be regarded 30+ years later as the operationalization of the 1987 Brundtland Report. Is that accurate? What do you make of the differing views you see articulated in the four readings under 2/3?

2/3 Please work up individually the Exoticwood CITES Petition Problem, paying attention to the idea that an NGO is approaching the US government, suggesting that it present a proposal on listing Exoticwood in Appendix II of CITES. Why not just have the NGO present the petition itself at the next COP? Why did they suggest Appendix II versus Appendix I or III? How would you suggest the US government officials actually evaluate the suggestion made by Orangesegment? Is it a good or bad one, and why?

3/3 CITES was originally about land-based living organisms, so what drives its current extension to marine fauna like sharks? Why bother going to CITES, when there is an entire structure of LOS 1982 law and institutions, why not pursue matters via what might be considered core maritime or LOS agreements and institutions? You have read about ICCAT as a regional fisheries management commission for tuna under LOS 1982, plus ICCAT’s 2016 evaluation document, so why not form something similar for sharks, if the problem is that they are being overfished to make shark-fin soup? Or is there simply no difference between the largely land-based CITES approach (hold CBD, since that will be next week), and even LOS governance institutions? Why go to CITES instead of LOS 1982 for an answer to your shark problems?

Copyright 2020–21 © David Linnan.

Please advise Smith and Doe regarding the proper course of action concerning Orangesegment’s petition. What should they do and why?

Copyright 2020–21 © David Linnan.

1973 CITES Convention & Approaches to the Marine Environment: New Science, Old Treaties & Regional Governance

1/5 We commence the first of two units focused formally on the 1973 Convention on the International Trade in Endangered Species (CITES) and the 1992 Convention on Biological Diversity (CBD) targeting preservation of flora and fauna largely in the land-based context. Nonetheless, there is a further underlying message tying into technical, legal issues concerning species preservation. The initial problem involves how environmental treaty instruments were drafted, versus current scientific approaches to the protection of living organisms. At the same time, there are basic differences typically captured in the stereotypes that (Western) developed CITES member states under the influence of environmentalists invariably favor preservation, while developing CITES member states are more oriented to monetization of their flora and fauna for economic development purposes (remember Dr. Mahatir on the tropical forests of Malaysia).

A broad spectrum of beliefs is commonly captured in the evolution under US circumstances from conservation, to environmentalism (sometimes referred to as preservationism for CITES purposes), to sustainability approaches. The initial problem is the mismatch between the traditional approach of targeting for preservation individual species of “charismatic megafauna” (e.g., tiger and rhinoceros) versus the scientific insight that habitat management and preservation are actually the more effective way to preserve targeted species. Larger species do not exist in a vacuum, so sources of food, place in the ecosystem, etc., are overwhelmingly important. The secondary problem with CITES is an enduring difference in beliefs between “greener” developed states members and more economic growth-oriented developing state members whether the true purpose of CITES is stopping international trade versus regulating permitted trade in endangered species. That is best understood in terms of national interests, once you reflect that the positions are the mirror image of developed and developing country positions in the hazardous waste context (Basel Convention).

2/5 There are few strict definitions involved, but the conservation-environmentalism-sustainability trio reflects coincidentally changing “Western” value judgments in the sense that “conservation” (think Teddy Roosevelt’s creation of the National Park system 100+ years ago, and the US-Canada [UK] Migratory Bird Treaty of 1916) originally was based upon ideas of preserving wildness for aesthetic or cultural reasons as the experience of the wilderness, rather than in the name of science. Nonetheless, conservationism is still prominent among many groups (outdoorsmen, think Ducks Unlimited), who may ally themselves with environmentalists pursuing preservation of the environment rather as an independent value (so both agree that no more wetlands would mean no more ducks, but in the case of environmentalists also prospective loss of wetlands’ filtering function). Conservationism and wildness traditionally favored a large species focus, but coexisted comfortably with environmentalism’s growing transition towards essential habitat starting by the mid to late 1970s (in the US in particular under the 1976 Magnuson-Stevens Fisheries Management and Conservation Act, particularly as amended in 1996).

The shift from environmentalism to sustainability involved for the most part a common understanding of moving the focus towards the environment and habitat preservation. The difference since the 1990s lies more in the express incorporation under sustainability of human beings’ usage, to the extent the question became sustainable for whom, or what, linked with intergenerational calculations concerning the availability of biological resources.

3/5 The problem is, much as it might be easier to draft a treaty with lists of prohibited or controlled chemicals, it is easier both technically and in political terms to draft a treaty listing individually endangered charismatic megafauna (like elephants, listed in CITES because of ivory trafficking). Who wants to run a species preservation campaign for endangered insects, despite their ecological importance (pro-pollinator campaigns seem mostly to be about the flowers, although cartoon honey bees are attractive too…)? The comparison to drafting a treaty modelled on environmentalism and sustainability might encounter issues both in technical drafting and in political terms (in the CBD you encounter both a habitat focus, but also technology transfer and recognition of effective inchoate rights in species by their host governments, which seems to have been the largest stumbling blocks leading to the US eventually not joining the CBD).

But politics aside, international lawyers face a practical question concerning the extent to which they now can or cannot, should or should not at the technical level pursue legal strategies to “update” treaties like CITES, considered generally as a successful treaty, albeit limited in scope. This typically involves strategies to protect endangered species by protecting their habitat, and vice-versa. The domestic implementing legislation for the CITES treaty is basically the Endangered Species Act, so the issues are analogous to those encountered with claims that endangered species are being used instrumentally to protect their old-growth forest habitat (think of the red cockaded woodpecker in Southeastern old-growth pine forests as example). The contests over regulating versus prohibiting trade in endangered species typically occur in periodic COP meetings, where individual states can suggest individual species for inclusion on differing CITES annexes, providing differing levels of protection and commercial treatment.

4/5 Meanwhile, in practical terms, in some ways conservation of living organisms in the marine environment has been both more advanced and regionalized in governance terms than land-based preservation of living organisms. There is a tradition of husbanding commercial fisheries resources on a binational treaty basis reaching back to the 19th century. What differs typically in the marine setting was a tradition of open access fisheries on the high seas until modern times (so the high seas presented the problem of the commons), followed by the potential for imposition of fishing restrictions in conjunction with legal changes under 1982 LOS. This resulted largely from the expansion of territorial seas and the creation of the 200-mile exclusive economic zone (EEZ), vesting much broader control of fishing in littoral states (coincidentally, EEZ designation removed roughly 40% of existing fishing grounds from the high seas). The economic stakes still raise their heads publicly on occasion. Perhaps the most intractable on-going negotiating point in BREXIT has proven to be French demands to retain access to fishing grounds under UK legal control post-BREXIT. Meanwhile, the UK (Johnson) government had seemingly promised UK fisheries voters that they would retain sole access to UK fishing grounds as recognized by international law following BREXIT (meaning they could increase their fishing take if quotas held by EU countries, having been previously “traded away” in periodic EU negotiations by successive UK governments were available for redistribution, etc.). Access to fishing grounds vested in the UK under the new 1982 LOS may tank in the short term any negotiated UK successor economic arrangement with the EU, post-BREXIT.

There is a long history of fishing treaties and more recently special circumstances involving high-value migratory species and regional bodies authorized under the 1982 LOS treaty formed to address recognized problems with commercial fisheries (overfishing, etc., also with the participation of trawler fleets from distant countries). At a certain level, this has now produced a new set of problems, as littoral developing countries begin to lay political claim to fishing rights in limited quota situations, where traditional fishing nations, often industrialized countries, are called upon to surrender part of their own quotas. At the same time, there is political pressure to expand aggregate quotas for obvious reasons, while science might recommend more caution in limiting quota expansion. This is an area where differing human uses collide, such as recreational fishing (tourism) versus commercial fisheries (trawlers) in the Southeast, and in developing country waters perhaps traditional fishing for local consumption, versus long distance, international trawler fleets. (We can only note in passing mostly domestic fisheries law with its essential fish habitat and marine reserves, but those having more interest might look into Mr. Eagle’s domestic coastal and fishery law course offerings.)

5/5 The above issues are separate and apart from climate change considerations in the marine species and habitat preservation context, chiefly involving changing shallow water essential habitat for breeding purposes, as well as ocean acidification’s effects on other essential habitats like coral reefs (coral bleaching). These are largely science-oriented general problems, that are appearing collaterally in conjunction with climate change (involving rising sea levels, acidic atmospheric pollution linked with precipitation, and temperature increases). Instead, we focus chiefly on CITES and the CBD as treaties aimed typically at land-based living organisms.

Beyond our orientation to preservation of land-based living organisms, if you watch TV you may have noticed over the past 12-18 months those NGO-sponsored public service commercials about the negative effects of shark-fin cutting on shark populations worldwide. This represents the public face of an EU-based campaign to add various shark species to the scheduled CITES endangered species list. (Those are the commercials with people in wetsuits talking about how sharks are probably more afraid of humans than vice-versa, and we are invading their territory after all when we swim. The gist seems to be that sharks are really like big dogs, perhaps because the ecosystem case may be that sharks as large predators are necessary for a healthy ocean, but it is an easier sell to the public that sharks are rottweilers with fins.)

Indirectly, growing wealth in Asia has increased pressure on certain marine species as regional consumption demand has climbed (the problem being that no upscale Chinese banquet is complete without shark-fin soup as traditional delicacy– ultimately, a cultural issue, like the Japanese affinity for whale meat). The point to notice there is that growing consumption demand may be regional, but it affects worldwide seafood stocks. The COVID-19 pandemic has also crashed Asian regional demand for Maine lobster, depressing traditional fisheries in New England and Maritime Canada. So apparently localized fisheries issues may still fit in international environmental law, without regard to whether they occur on the high seas as traditional fisheries location. Meanwhile, the broader problem with concerns like overfishing in the face of growing human populations is that for ordinary people in much of the world, seafood remains their primary animal protein source.

Copyright 2020–21 © David Linnan.

Domestic Implications of International Treaty-Making: The Basel Convention & Hazardous Waste

1/4 Please read the Introductory Note by Katherina Kummer Peiry and text of the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal.

2/4 Please read as general background “The International Control of Hazardous Waste,” in Birnie & Boyle, International Law and the Environment 300-44 (1992) [read only 332-43, since here we are only concerned with hazardous waste transfer]

3/4 Read also for local color re continuing resistance in developing countries to importing industrialized/OECD country waste:

• a. “Malaysia uncovers largest abandoned shipment of illegal toxic waste from Romania” (Reuters, 07/19/20)
• b. Septiari, “Two Singaporeans named suspects in toxic waste import case” (Jakarta Post, 10/04/19)
• c. Boediwardhana, “After plastic, Indonesia now also returns contaminated paper waste to Australia” (Jakarta Post, 07/09/19)
• d. Newsdesk, “‘Why do you always export your waste to my country’: Indonesian pre-teen writes to Trump” (Jakarta Post, 07/13/19)

4/4 From the Basel Action Network (“BAN”), a Seattle-based NGO, scan:

• a. Electronics Stewardship: BAN protects people and the planet from the toxic components within electronic waste”
• b. BAN e-Trash Transparency Project: The public has a right to know (BAN has been working on the Basel Convention and compliance for a number of years, but achieved notoriety 4-5 years ago when they implanted tracking devices in circa 200 outdated printers, monitors, computers and the like to see where e-waste supposedly responsibly recycled under various highly lauded programs actually wound up– they delivered the e-waste items to designated recycling locations, but then tracked them via the tracking devices to their final locations, causing a certain amount of embarrassment among the sponsors of said responsible recycling like Dell, for those of you using Dell computers)

Domestic Implications of International Treaty-Making: The Basel Convention & Hazardous Waste

1/2 The four recent newspaper articles collected under readings capture the idea that suddenly the Southeast Asians seem to be inundated with hazardous waste, often from seeming fly by night operations. What did you think was behind the company entitled PT Advance Recycle Technology, apparently owned by the Singeaporeans (NB– PT is simply the Indonesian equivalent of “Inc.”)? This flurry of hazardous waste activity is somewhat unusual, so why do you think it all takes place now?

2/2 Understanding the details of the Basel Convention is the kind of exercise that requires you to work through a problem, for which purposes I would like you all in groups to work through the Vrozen Vruitjes Problem attached, for analysis and presentation in class.

This tutorial involves application of the Basel Convention on the Transboundary Movements of Hazardous Waste and Their Disposal. Concerning parties to the Convention and any amendments, you may rely on the list of parties set forth under the status tab in Introductory Note by Katherina Kummer Peiry and text of the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal, subject to the following qualifier. Regarding the Basel Ban amendment, please answer in the alternative assuming first that the amendment is in force, and second that there is a diplomatic note between Sweden and Indonesia providing that Indonesia will continue to accept Swedish waste “in all forms” for disposal or recycling, given Sweden’s sterling environmental reputation. Beyond the text of the Convention, you should consult any standard atlas or similar work necessary to apply the treaty.

Vrozen Vrootjes AB is a company incorporated under the laws of Sweden and is a wholly-owned subsidiary of Ingeneral Foods, Inc., an American corporation incorporated under the laws of Delaware and listed on the New York Stock Exchange (“NYSE”). Vrozen Vrootjes produces frozen icicle pops at its Swedish factory, a production site in Northern Lappland. Vrozen Vrootjes’ factory is extremely energy efficient, given that temperatures in Lappland remain below freezing for most of the year. Vrozen Vrootjes has other difficulties, however, since in large quantities the brightly colored dyes used in printing its popsicle wrappers are potentially carcinogenic.

Whenever its popsicle wrapper printing presses are misaligned, Vrozen Vrootjes cannot use the misprinted wrappers for covering its premium popsicle product. Over the past several years Vrozen Vrootjes has misprinted 100,000 wrappers, all of which currently are stored at its Northern Lappland factory. Vrozen Vrootjes is now under pressure from local authorities to remove the misprinted wrappers from its factory. Under Swedish law, however, it cannot just dispose of the faulty wrappers in the local waste incinerator because the aggregate quantity of popsicle wrapper dye in all 100,000 wrappers equals five pounds, while Swedish law defines as hazardous waste three or more pounds of such potentially carcinogenic dyes. Vrozen Vrootjes consults with the American legal department of Ingeneral Foods, which is concerned about the problem because any measurable quantity of such carcinogenic dye is considered hazardous under American law. Following consultations Vrozen Vrootjes decides to dispose of its problem by sending the misprinted popsicle wrappers to a waste disposal site abroad.

Vrozen Frootjes has no prior experience with foreign disposal of waste, so it decides to retain the services of a broker specializing in such waste disposal. It sends out a request for proposals both to Svenska Fly-By-Night (Guernsey) Limited, a company incorporated under the laws of the Channel Isle of Guernsey (whence the cows), a hazardous waste broker which got its start arranging disposal of used submarine nuclear reactors in the Barents Sea, and to Hazardous Waste Management (International) BV, a wholly-owned Dutch subsidiary of the NYSE-listed American company Hazardous Waste Management Incorporated, which specializes in the disposal of hazardous and other waste. Hazardous Waste Management (International) BV is an industry leader in terms of its disposal technology and safety record. On the other hand, Svenska Fly-By-Night is little more than a post office box address in the Channel Isles. However, such low overhead costs allow Svenska Fly-By-Night to lowball bids when competing for disposal jobs with industry players like Hazardous Waste Management (International) BV.

Under the terms of its request for proposals, Vrozen Vrootjes solicits bids for the transport of two lots of 50,000 misprinted popsicle wrappers (each lot containing 2-1/2 pounds of potentially carcinogenic dyes). The Hazardous Waste Management (International) bid specifies that the misprinted popsicle wrappers will be disposed of in its affiliate’s hazardous waste disposal site located on the East Coast of the United States. Svenska Fly-By-Night’s bid specifies that the misprinted popsicle wrappers will be disposed of in Indonesia, a country where under local law the misprinted popsicle wrappers would not be considered hazardous waste, but does not further specify any details about their final disposal. Instead, it relies upon business acquaintances in the shadowy world of hazardous waste brokers to arrange the details when its shipments are consolidated at the Dutch Port of Rotterdam as the Northern European center of hazardous waste traffic.

Vrozen Vrootjes awards each of Svenska Fly-By-Night and Hazardous Waste Management (International) a contract for the disposal of a 50,000 wrapper lot. Svenska Fly-By-Night and Hazardous Waste Management (International) then separately contract with Svenska Road Hauler AB, a Swedish trucking company, to transport each’s 50,000 popsicle wrapper lots from Northern Lappland to Goteborg in Southern Sweden as the point of embarkation for Shipping Around Scandanavia (“SAS”), a Northern European shipping organization owned and operated as a sole proprietorship by the Greek shipping tycoon Zeus Herakles. SAS loads both lots in Goteborg, then ships them to the Dutch Port of Rotterdam, where they are offloaded for separate shipment to their ultimate destinations.

The Hazardous Waste Management (International) lot is transhipped and loaded on Zeus Herakles’ United States-registered freighter SS Minnow for shipment to the United States for ultimate disposal in Hazardous Waste Management’s East Coast hazardous waste disposal site. During transhipment in Rotterdam, at the direction of Svenska Fly-By-Night’s Rotterdam business acquaintances its lot is combined in a forty-foot intermodal shipping container with an independent hazardous waste shipment of fifty barrels of dioxin-contaminated oil from an indeterminant source within the European Union. The intermodal shipping container including the Svenska Fly-By-Night lot is then loaded on Zeus Herakles’ Liberian-registered freighter SS Leaky Sieve for shipment to Southeast Asia for ultimate disposal in Indonesia.

The SS Minnow set out on a fateful trip from Rotterdam directly to the Port of New York. Unfortunately, the SS Minnow was lost with all hands in a storm. Its cargo, including the Hazardous Waste Management (International) lot, now rests on the bottom of the Atlantic Ocean in international waters approximately 500 miles south of Greenland.

The SS Leaky Sieve headed south from Rotterdam through the English Channel with the intermodal shipping container including the Svenska Fly-By-Night lot. The SS Leaky Sieve crossed the Bay of Biscay and entered the Mediterranian Sea via Gibralter, from whence it sailed directly via the Suez Canal and Red Sea to the Indian Ocean, skirting the Indian Subcontinent at a distance of 250 miles. From the Indian Ocean the SS Leaky Sieve sailed to Indonesia via the Straits of Malacca, finally docking at the Port of Tanjung Priok in Jakarta. The SS Leaky Sieve then offloaded the intermodal container for delivery to PT Kurang Baik, an Indonesian corporation operating a waste disposal site on the island of Java, with which Svenska Fly-By-Night’s Rotterdam business acquaintances have a standing arrangement to dispose of European hazardous waste shipments. At this point, however, PT Kurang Baik pays a gratuity to a customs official at the Port of Tanjung Priok to ensure that the intermodal container will be permanently “misplaced” among the thousands of containers to be found at any major seaport. PT Kurang Baik simply pockets the difference between what it was paid nominally to dispose of the intermodal container of hazardous waste in a real waste disposal site and the cost of the bribe.

Remember when answering the questions below to focus on the perspective of the several generic parties in the fact pattern: an entity or person which produces the hazardous waste as a by-product of its manufacturing activities aka “Waste Producer,” versus an entity or person which arranges overseas disposal of hazardous waste aka “Waste Broker,” versus a railroad or trucking firm carrying its waste domestically aka “Origin State Transporter” to the port of export from which it leaves its territory aka “Origin State Port,” versus an air, trucking or shipping line carrying the waste across international boundries aka “Transboundry Waste Hauler,” versus the state of the waste’s origin aka “Origin State,” its ultimate destination state aka “Destination State” and any transit state along the way aka “Transit State,” versus the Destination State’s port of entry through which the waste is imported aka “Destination State Port,” versus a railroad or trucking firm from the Destination State’s sea or airport aka “Destination State Transporter” which will transport the hazardous waste from the port of entry to the entity running the dump site at which the waste is to be disposed aka “Waste Disposer.”

Please indicate in answering each question the specific treaty provisions dictating your answer, or where appropriate why the treaty does not provide a clear answer because of ambiguity, incorporation of national law, etc. When you resolve such an ambiguity yourself, please explain your reasoning. That part of your paper should demonstrate to the reader that you have a good grasp of what is, and what is not, formally governed by the Basel Convention. If you need to know more information to answer a particular question, specify exactly what further information you require and why you need it. Questions below are separated by number solely to structure your analysis, and you are welcome to organize your answers either in single essay form or in separate answers to each question.

Question 1. Which entity is the Waste Producer, Vrozen Vrootjes or Ingeneral Foods? Does it matter for purposes of the Basel Convention?

Question 2. Assume only for purposes of this question 2 that the popsicle wrapper dye is not listed on Annex I to the Basel Convention. Is the shipment of the popsicle wrappers from Northern Lappland to Tanjung Priok covered by the Basel Convention? Should you conclude that it is, please say specifically where and why.

Question 3. Assume only for purposes of this question 3 that the popsicle wrapper dye is listed on Annex I and has the necessary Annex III characteristics for hazardous waste under the Basel Convention. Is the shipment of the popsicle wrappers from Northern Lappland to Tanjung Priok covered by the Basel Convention? Should you conclude that it is, please say specifically where and why.

Question 4. Assume only for purposes of this question 4 that the popsicle wrapper dye is listed on Annex I and has the necessary Annex III characteristics for hazardous waste under the Basel Convention. Are the Origin State Transporter, or Destination State Transporter, or Transboundary Waste Hauler covered by the terms of the Basel Convention? Should you conclude that either of them are, please be specific in saying how and why.

Question 5. Assume only for purposes of this question 5 that the popsicle wrapper dye is not listed on Annex I to the Basel Convention, but that the dioxin-contaminated oil shipped together with the popsicle wrappers in the intermodal container is. Assume further that the Indonesian authorities did not give prior approval to the importation of the hazardous waste and discovered the dioxin-contaminated oil at Tanjung Priok, but the only identification information available were the container’s bill of lading identifying the SS Leaky Sieve as the ship which carried the container from Rotterdam and the popsicle wrappers with the name printed on them of Vrozen Vrootjes, Northern Lappland, Sweden. Are any of Sweden, or the Netherlands, or Liberia obligated to take back the container under the Basel Convention? Does it matter that you could trace the popsicle wrappers back through the Origin State Port of Goteborg to Northern Lappland, but the dioxin-laden oil trail vanishes in Rotterdam as a transhipment location?

Question 6. Assume only for purposes of this question 6 that the popsicle wrapper dye is listed on Annex I and has the necessary Annex III characteristics for hazardous waste under the Basel Convention. How do you treat the SS Minnow shipment, and does it present any particular problems under the Convention? What is the role, if any, of the Waste Disposer? Please answer this question both from the perspective of the Origin State and of the Waste Producer.

Question 7. Assume only for purposes of this question 7 that the popsicle wrapper dye is listed on Annex I and has the necessary Annex III characteristics for hazardous waste under the Basel Convention. How do you treat the SS Leaky Sieve shipment which does not ultimately make it to any Waste Disposer, and does it present any particular problems under the Convention? Please answer this question both from the perspective of the Origin State and of the Waste Producer.

Question 8. Assume only for purposes of this question 5 that the popsicle wrapper dye is not listed on Annex I to the Basel Convention, but that the dioxin-contaminated oil shipped with the popsicle wrappers in the intermodal container is. Assume further that the Indonesian authorities did not give prior approval to the importation of the hazardous waste and discovered the dioxin-contaminated oil at Tanjung Priok, but the only identification information available are the container’s bill of lading identifying the SS Leaky Sieve as the ship which carried the container from Rotterdam and the name and address of Svenska Fly-By-Night’s business acquaintances in Rotterdam who dispatched the shipment to PT Kurang Baik. Are Waste Brokers covered by the Basel Convention, and can the Destination State force the Netherlands to take back the container under the Basel Convention as a result? What is the effect, if any, under the Basel Convention of the apparent misbehavior of the Destination State Port customs official in taking the bribe?