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

The 1989 Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal provides an important but incomplete framework addressing “hazardous waste” (excluding radioactive waste, which is covered by a different treaty scheme). Hazardous waste itself is a term of art, which in the alternative may be regarded as a serious burden in the case of disposal, or more of a resource in the case of industrial-level recycling. The Basel Convention’s background lies effectively in a three-way contest during the 1980s. Meanwhile, its trigger involved several 1980s scandals of ocean-going barges or ships loaded typically with (US) municipal incinerator ash (constituting hazardous waste) sailing internationally from port to port, where their docking was rejected, following which they allegedly either offloaded their cargo somewhere without approval in the dead of night, or disposed of the hazardous waste at sea.

The first contest thread involved developing countries, particularly in Africa, rejecting the concept that they should become a dumping ground for the toxic wastes of industrialized countries (an internationalized version of NIMBY, referred to at the time as environmental colonialism). They favored the ability generally to prohibit importation of all hazardous waste from the developed world. The second contest thread involved environmental NGOs in the developed world pressing for the minimization of transboundary disposal of hazardous waste, based upon a calculation that the best way to minimize the generation of hazardous waste in the first place would be to keep it in the jurisdictions where it was generated. The idea was that initial generation of hazardous waste could only be diminished, if the industrialized countries began to drown figuratively in their own industrial wastes. The third contest thread involved industrialized country private sector interests, which sought the responsible regulation of transboundary transport and disposal of hazardous waste in lieu of its prohibition as a matter of self-interest, to ensure cheaper disposal possibilities overseas.

On the positive side, originally the Basel Convention established an extensive reporting structure for exporting, importing and transit states, which is perhaps more suited to waste disposal than recycling operations, linked with three important limitations on exporting states. The first is that exports are not to be permitted unless the importing state is capable of “environmentally sound management” of the hazardous wastes (so what exactly does that mean?). The second is an obligation on the part of exporting states to reimport the hazardous wastes, if the export-import exercise were found to be not in compliance with the Basel Convention. And the third is an obligation under normal circumstances for member states not to import hazardous waste from, or export hazardous waste to, non-member states. Coincidentally, the US never ratified the Basel Convention, although the US to a great extent is subject via the OECD control system to OECD waste recovery restrictions harmonized with the Basel Convention, albeit for transboundary hazardous waste movements between OECD members as developed countries. The US has also made use of limited provisions for waste disposal agreements between member countries and non-member countries, with a focus initially on Canada and Mexico under NAFTA Agreement. Meanwhile, the Basel Convention originally hardly contemplated hazardous waste transfers between developed countries, but such a demand became evident with the passage of time.

Again on the positive side, the Basel Convention in practice has been administered cooperatively more recently together with the 1998 Rotterdam Convention on the Prior Informed Consent Procedure in Certain Hazardous Chemicals and Pesticides in International Trade (pesticides says it all), and the 2001 Stockholm Convention on Persistent Organic Pollutants (POPs, referred to also as endocrine disruptors, including a series of pesticides like DDT, as well as PCBs and various fire-retardant chemicals). POPs tend to persist in the environment, and as a chemical matter “bio-accumulate” in organisms and so move up the food chain, leading to problems like unacceptable accumulation of POPs in livestock and humans, with negative health consequences.

The Basel Convention has become in practice an anchor for an international system trying to regulate families of chemicals perceived as useful for some purposes, but dangerous also to human health and the environment. The Basel Convention covers waste disposal and recycling, and is paired meanwhile with conventions governing use and transport. Similarly, via amendment the Basel Convention was extended to ship-breaking or decommissioning as specific activity, on the basis of the relatively high content in ships of hazardous substances like asbestos, mercury and bunker fuel (although the Convention was not intended initially to govern ship decommissioning as activity). Similarly, the Basel Convention now plays a prominent role in the prospective recycling and disposal of e-waste (meaning that veritable tidal wave of old computers, printers, cellphones and the like in our rapidly developing, digitally oriented society– whatever became of the 3-6 notebook computers and cellphones you may have already owned since high school, full of heavy metals like lead solder and nicad or lithium batteries, etc.?).

Most law students are generally familiar with climate change and GHGs as a leading international environmental law challenge, meanwhile many fewer are probably conscious of POPs issues, and indirectly the cooperatively managed Basel Convention structure. You might reflect on two specific aspects. First, that the Basel Convention came into being initially to a great extent as a result of pressure from the developing world, but it is not generally perceived as pitting developing and developed states’ interests so directly against each other. It lacks the climate change debate’s juxtaposition of the developing world seeking more economic development, with the developed world seeking a “greener” future. Second, it does largely follow the 1987 Montreal Protocol’s approach in proscribing or limiting lists of specified substances, so it does have a wide application, but it was viewed as focused to a great degree on immediate health concerns and allowed for more targeted responses involving listed substances. So there may be some grumbling about compliance costs and interference with recycling, but there is no Basel Convention analogue to climate change denial. Most recently, an amendment to the Basel Convention (not joined in by China and Canada) extended the coverage to certain plastic waste, particularly those with fire retardant characteristics, of members’ obligations not to import from, or export covered substances to, non-member countries.

So much as the 1987 Montreal Protocol on Ozone Depleting Substances paralleled and foreshadowed in some ways the 1992 UNCCC’s attention to climate change, the Basel Convention is slowly being extended in a fashion to enable more general cross-border transfer regulation of chemicals deemed to be hazardous. It has also been extended to specific categories of waste recycling including hazardous elements, such as ship-breaking and e-waste recycling, although the rationale for the extension in practical terms has been to try forcing oversight of areas in which there was before little or no prior attention to environmentally sound management practices.

On the negative side, following the Basel Convention’s initial adoption, attempts were made via the so-called Basel Ban amendment (Article 3a) to formalize a permanent ban on the export by OECD member states (plus the EU and Luxembourg) of hazardous waste to all developing countries for final disposal or recycling. After considerable pushback, the Basel Ban finally attracted the necessary 75% supermajority vote, taking effect in December 2019, so less than a year ago, and thirty-five years after the Basel Convention took effect. The goal of excluding industrialized country hazardous waste from developing countries has finally been achieved, but people still worry about implementation issues (and what may happen on the recycling front; but the problem is that in practice claimed recycling was too easily abused as a front for simple storage). Plus, the rising number now of rapidly industrializing countries has moved many traditional heavy industries largely out of OECD countries, so the older concept of hazardous waste moving only from industrialized to developing countries may not be what it once was 20-30 years ago. Also, the black-market problem visible early on under the 1987 Montreal Protocol Concerning Ozone Depleting Substances (smuggling freon over the Mexico-US border, because of price differences resulting from differing rules applicable to developed and developing countries) is visible in the form of continuing corruption problems involving (often mislabeled) shipments of hazardous waste to locations unable to deal with the materials in an environmentally sound manner.

It is too early to tell what the ultimate effect will be of the Basel Ban Amendment’s adoption, but it probably will remake the calculus in place since 1989, because it arguably has shifted emphasis from what might be called the “reasonable regulation” position of the private sector in favor of the developing world’s rejection of “environmental colonialism.” But on the other hand, the US as non-member, for example, has had for a long time bilateral agreements covering hazardous waste to avoid the Basel Convention’s prohibition on member states accepting hazardous waste from, or exporting it to, non-member states. So might those states not voting in favor of the Basel Ban simply shift to the bilateral agreement track, etc.? Hazardous waste disposal policy aside, the practical difficulty is that some further parallel action will presumably be necessary for any progress on the recycling front, or the broader approach under which an effort has been made to integrate POPs and pesticide transport control under the Rotterdam and Stockholm Conventions. So only time will tell….

In the alternative, the suspicious disposal or storage location in a developing country may be simple farmland or a municipal trash dump (leaving expensive clean-up costs to the destination government, when hazardous waste shipped in containers like 55-gallon drums eventually begin to leak). The other common occurrence in a world of modern containerized shipping ports is that numerous containers full of such 55 gallon drums containing hazardous waste will simply be intentionally “lost” by port workers in the kind of container parks holding hundreds, if not thousands, of stacked, 40-foot containers hosted at modern ports. An amendment to the Basel Convention provides for the criminalization of such faulty disposal, but the amounts of money in question and the uncertainty of prosecution have seen such misbehavior continue.

The problem that the Basel Convention’s scheme is more tailored to governing hazardous waste disposal than recycling presents one set of problems, while another grows out of a different factual pattern not foreseen in the treaty text. The Basel Convention contemplates a single transport, end to end, of hazardous waste from a generator in an exporting country to a suitable disposal site in an importing country. But in practice, hazardous waste brokerage and consolidation in intervening “waste hub” ports is a reality, as is the practice that hazardous waste may be mixed in with normal municipal waste (although the rule exists that mixing hazardous with non-hazardous waste renders the entire mix “hazardous”). But in practice the real provenance of a single container full of mixed hazardous and normal waste in 55 gallon drums often can only be guessed typically from addresses printed on plastic shopping bags found in the waste containers, and they may come from separate countries, so which country has a duty to take back the illicit transshipped container of hazardous waste with arguable ties to several countries?

In summary, the Basel Convention might serve as a classic example of the heuristic test whether a glass is half empty, or half full. But with all its complications and shortcomings, it seems a fair statement that the Basel Convention as the transboundary hazardous waste disposal glass seems much fuller than the climate change glass at present.

Climate Change as the Ultimate Test for the Framework Convention Approach

1/4 We shall provide you with video choices, first either watch “a” and “b” in under 15 minutes combined for the high school science presenter-style for pro and con on climate change and science, or watch “c” for 1-1/2 hours of National Geographic lush videography on climate change with Leo Dicaprio as star, and a notable cast of international worthies as supporting actors (or watch a-c, if you have time to better inform yourself):

• a. “Climate Science: What You Need to Know,” It’s Okay to be Smart, PBS Digital, 6:19 (Bill Nye-style buzzy science presenter with a climate science precis)
• b. “Why Some People Don’t Believe in Climate Science,” It’s Okay to be Smart, PBS Digital, 7:33 (Bill Nye-style buzzy science presenter on why climate change denial?)
• c. “Before the Flood,” Leo Dicaprio’s documentary on climate change made while he was the UN Peace Messenger for Climate Change, ending with signing of the 2015 Paris Agreement. It is a bit episodic, but it hits all the expected notes and you get a movie star narrating in lieu of a chemistry professor, appearing alongside Elon Musk and the Pope, with great glacier calving photography (National Geographic,135 minutes)

2/4 Read the leading treaties and agreements concerning climate change, that you heard references to, or not, in the videos:

• a. 1992 UN Framework Convention on Climate Change
• b. 1998 Kyoto Protocol
• c. 2015 Paris Climate Accord

3/4 Concerning the climate science aspects, read the summary for policymakers of the IPCC Fifth Assessment Report for background, and Chapter 19 of the second volume of the US 4th National Climate Assessment. The IPCC Sixth Assessment was scheduled to be ready by Spring 2021, but it was just announced that it would be delayed because of the COVID-19 pandemic. That is why the UN climate science materials are effectively six years old at this point, and the slightly more timely reports like the 2018 Sixth Assessment Special Report on 1.5 Degree Centigrade increase speaking to likely conditions 2030-2045 are only a little more current (because the underlying scientific as opposed to editorial work was done more 2016-17):

• a. IPCC Fifth Assessment Report (2014)
• b. U.S. 4th National Climate Assessment (U.S.), Volume I (2017)
• c. U.S. 4th National Climate Assessment (U.S.), Volume II (2018) – Chapter 19 addresses issues in the Southeastern U.S., including a case study of Charleston’s sea level rise.

You should note that the most current talk in the climate science community is that some things are happening sooner than expected. The talk is about changing or updating models, based upon those which might have previously been considered outliers, but seemingly predicted the unexpected developments. Compare Roston, “The First Arctic Summer Without Ice Is Coming in Just 15 Years: New models convinced a team of scientists to move up projections for the first summer in 130,000 years without sea ice” (Bloomberg, 08/17/20) with Roston, “Climate Models Are Running Red Hot, and Scientists Don’t Know Why: The simulators used to forecast warming have suddenly started giving us less time” (Bloomberg, 02/03/20) with Roston, “Record Ice Loss in Greenland Is a Threat to Coastal Cities Worldwide: Data from two new studies gives scientists a much clearer idea of what’s contributing to sea-level rise” (Bloomberg, 08/21/20).

4/4 We shall add to the readings whatever Dr Linda Yanti Sulistiawati asks that you read in preparation for her discussion on what it looks like to participate in a climate change “COP” or UN-organized conference of the parties negotiating meeting as a member of a major developing state delegation (which meetings are coincidentally currently in abeyance due to the COVID-19 pandemic). So you understand how the treaty institutions work, the COPs are the periodic working party meetings that follow a framework convention at which they may work on scientific reports and subsequent protocols. Such meetings normally take place annually, although there is no rule strictly speaking, or formal measure of progress, so the parties could meet for 3-5 years of annual COP discussions before enough progress is made, or technical/scientific reports received, to formulate any formal protocol as amendment.

Climate Change as the Ultimate Test for the Framework Convention Approach

1/5 Have the ultimate arguments and stakes really changed much since Dr Mahatir’s talk just before the 1992 Rio Conference? Or does this reach back further to the “Limits to Growth” argument of the 1970s, now recast as “degrowth,” or was Kahn more correct in arguing that technology would set things right, see Rathi, “These Folks Think that Eternal Economic Growth Will Lead to Unstoppable Climate Change” (Bloomberg, 08/18/20)? How would you analyze this, realizing that you are now looking at discussions stretching over almost 50 years?

2/5 What do you make as a lawyer of the progression you see from the 1992 UNFCCC, through the 1997 Kyoto Protocol (effective 2005), to the 2015 Paris Agreement, both of which the US did not ratify, or withdrew from? Why has this not worked like the 1987 Montreal Protocol on Ozone Depleting Substances in its time? Is the problem that politicians like Dr. Mahatir have simply set expectations too high in terms of the developing world still seeking economic growth, is the problem that we need more Charlestons and Miamis domestically to reinforce the idea that this will also bring major problems for the US without regard to the developing world, is the problem that we really need a package deal like the LOS Convention because the framework approach provides insufficient incentives, is the problem that distributive justice on both the international and domestic levels is simply doomed to failure, or what? Can you at least analyze what seem to be the sticking points from the lawyer’s perspective?

If you are the international lawyer, how would you describe the options to your principal (presumably a domestic politician appearing in an international negotiation)? What seems to be the ultimate problem, as we seemingly slowly transition away from mitigation to adaptation in climate change terms? You might start by focusing on specific elements and approaches incorporated into the Kyoto Protocol and Paris Agreement, asking how could we use them now? (For example, note how “international” climate remediation schemes like tropical forest preservation are linked to “domestic” schemes like EU carbon off-sets.) They already achieved sufficient acceptance to make it into international agreements, so the idea is presumably to incorporate the better ideas people have already agreed to, while we look for further improvements and, hopefully, some eventual consensus.

3/5 Let us ask for at least a preliminary report on the Charleston issues, to see where people are roughly a month into the problem, and to exchange ideas.

4/5 We shall assign the following problem to groups of students, to see what answers they suggest. Let’s identify as a policy question the difficult issue of how to deal legally with so-called “climate refugees,” now that we are seemingly transitioning increasingly towards adaptation and away from mitigation considerations in the climate change context. I have mentioned this issue indirectly in class a couple of times in conjunction with the idea that despite climate change theoretically creating problems for all countries, assuming the scientific projections are correct, the effects of climate change are projected to be much greater closer to the equator in the existing equatorial or tropical zones, as opposed to temperate areas closer to the North or South Poles. There is a relatively minor problem linked with the idea that a small number of South Pacific nations with very small populations may actually be submerged completely due to anticipated sea level rise. That permanently disappearing island homeland is a sad story for 30,000-50,000 inhabitants, but the real problem relates more to potential displacements of much larger numbers of people generally in coastal areas of large countries like the US due to sea level rise, linked with potential displacements inland related more to failure of agriculture due to drought conditions, etc.

Understand that the traditional law of refugees was developed to address mostly “political” refugees with a well-founded fear of persecution and threats to their lives in their country of origin. The common examples would have been non-communist ”White” Russians who rejected “Red” Bolshevism in the 1920s-30s (and went into exile in places like Paris), or Jews fleeing National Socialism in Germany and Austria in the 1930s-40s (many of whom were rejected as refugees, at least until word started leaking out about extermination camps during World War II). Those were the original groups targeted by public international refugee law formulated post-World War II against a background of millions of so-called displaced persons in Europe, although it has been subsequently extended sometimes in domestic law to broader targets of social violence like domestic violence or anti-gay violence (anti-LGBTQ, etc.). There is not a “right” answer to who should enjoy protected legal status as a refugee as opposed to being treated as unprotected “economic migrant,” particularly when recourse is made to human rights law like the Universal Declaration of Human Rights post-World War II as touchstone for refugee law? But we need to recognize that the numbers are climbing already, and are likely to increase significantly if the natural scientists are right about climate change, so we should make a conscious (policy) decision how to deal with the issues. Is this just distributive justice again in a new setting, after the fact, to the extent you are talking about potential climate refugees from hotter equatorial or lower coastal areas, that we have already established probably fare worse than temperate areas some distance above sea level?

Modern refugee law exists mostly under the 1951 Convention Relating to the Status of Refugees, as amended by its1967 Protocol, concerning which legal principles you may consult UNHCR, A guide to international refugee protection and building state asylum systems (Handbook for Parliamentarians No 27, 2017). Having said all of that, the more recent politics of modern refugee law have not been easy to the extent the combination of Syrians, Afghans, etc. from the Middle East and Central Asia, together with the North Africans crossing the Mediterranean to land mostly in Italy, have created enormous political stresses in Europe, while you have seen the concerns in the US political narrative already presented by the “march” of 5,000-6,000 mostly Central American families endeavoring to escape violence in their home countries.

The refugees coming in from Syria and Afghanistan arguably look like traditional refugees fleeing war and violence. Meanwhile, a case can be made that at least some of the Africans fleeing to Europe might be fairly described in plain English as climate refugees. This is because the collapse of order and violence in their home countries relates to extended droughts destroying the livelihoods of smallholder farmers and villages on the edges of the Sahara desert, indirectly spawning violent groups like Boko Haram in Northern Nigeria, Niger and Mali, etc. (With the operative question being whether such droughts should be deemed products of climate change, much as the natural scientists are starting to refer to events like the California droughts and resulting wildfires as being products of climate change.) That is why the US Armed Forces have considered climate change a national security threat, because if it triggers resource competition and serious social dislocations, you may wind up with a violent social movement like Boko Haram in Africa.

At the same time, if you read the Fourth National Climate Assessment for the US, it predicts (potentially 13 million) Americans being displaced over time from coastal areas by rising sea levels, etc. These are the coastal people perhaps poor enough, or unlucky enough, not to live in a place like the Charleston Peninsula, deemed valuable enough on some scale to justify heavy investments in adaptation. The claim is that the US is simply not prepared for what would be designated in refugee law terminology “internally displaced persons,” meaning Americans moving within their home country, rather than across international borders. So if the Fourth National Assessment projects millions of Americans potentially being displaced from coastal areas (perhaps 3-4% of the total population), it seems likely there will be similar or even larger displacements in Central and South America, whose numbers would seemingly make the recent 5,000-6,000 “march” of Central Americans northward look puny by comparison. And in the American context, thus far there have been only limited experiments with support like resettlement funds, so it may be the case that there will eventually be a significant number of uncompensated forced evacuations.

5/5 So what to do about this problem looking forward on timelines like 2035-2050-2100? Current law regards claimed “refugees” moving for economic reasons like flooded houses or drought-parced fields merely to be “economic migrants” with no claim to refugee status entitling them to public support, and public discussions of climate refugees are commonly limited to the relatively small number of people occupying spaces like small South Pacific islands which are forecast to disappear completely beneath the waves (Nauru, etc.). But the mooted African example of Boko Haram is linked with claims that violence may be the result of worsening water availability, agricultural crop failures, and similar problems. The US Armed Forces themselves have designated climate change as a security threat, presumably because of the potential for violence, etc., raising the issue whether there would be enough climate change-related violence to satisfy the traditional refugee law standard. (So it is not just a human rights issue for declared progressives, because like the older ATCA cases you could theoretically cast and recast facts to reflect either traditional gross human rights violations– extrajudicial killings, torture, etc., versus related, less violent claims like forced displacement of indigenous peoples, or another level down habitat destruction interfering with indigenous peoples’ way of life.) Then there are problems evaluating legal or moral claims based upon considerations linking traditional precedents like Trail Smelter with ideas about joint and several liability being applied to carbon generation.

So please articulate the legal and policy case(s) for and against (NIMBY) recognizing “climate refugees,” so that you make a reasoned decision for whatever result you would favor. Please take a concrete position in the end, which you can then defend, or perhaps split your group to come up with differing teams presenting the arguments for and against. This is really a case where there is at best an appreciation of the coming problems rather than much real law, but climate science indicates that we shall face a lot more of these people, and sooner, than we realize, so in governance terms what should we do with them? Even domestically, it seems there will be too many to just declare them to be FEMA’s temporary concern.

Climate Change as the Ultimate Test for the Framework Convention Approach

1/4 Before there was “sustainability” as such, the commonest approach to widespread human pressure on the environment was to speak in terms of potential “overconsumption” of exhaustible natural resources, often linked with population increases, to which some form of intergenerational equity test might be applied. Sustainability made its first general appearance in the 1987 Brundtland Report “Our Common Future,” and soon thereafter the discussion shifted more in the direction of what would be called in current climate change terminology “mitigation” versus “adaptation.” The “climate change” GHG language took hold so that it was officially in the 1992 UN Framework Convention on Climate Change signed at the Rio Conference, although GHG concerns were widely recognized at least five years earlier by the time of the 1987 Montreal Protocol and the 1987 Brundtland Report (having been recognized in the atmospheric chemistry community already in the late 1970s-early 1980s in conjunction with ozone depletion, if not in governments or the general public). Mitigation was understood as taking specific current steps to avoid future environmental damage (for example, limiting GHG emissions currently in order to limit temperature increase beyond a specific threshold 5-10 years in the future). So by the late 1970s-early 1980s, and subject to any number of scientific uncertainties, climate change as natural science exercise intellectually became a “pay me (less) now, or pay me (more) later” exercise on the basis that prevention was cheaper than remediation, although both might be possible as a scientific matter.

2/4 But the language of “pay me now, versus pay me later” has now shifted effectively as we increasingly move from thinking about mitigation in favor of adaptation as successive maximum temperature increase targets have been exceeded as we marched through the series of the 1987 Montreal Protocol on Ozone Depleting Substances (itself furthering the 1985 Vienna Convention as framework exercise), the 1992 UNCCC, its 1997 Kyoto Protocol effective 2005, and the related 2015 Paris Agreement. The US either rejected or withdrew from the last two, severely undercutting them. Meanwhile, discussions of mitigation and adaptation invariably invoke the concept that mitigation strategies will be incorporated into adaptation to slow down the climate change process.

3/4 Nonetheless, when you consider building surge barriers in Charleston or raising sea walls in response to rising sea levels and heftier hurricanes, you are doing adaptation rather than mitigation planning in anticipation of sea level rise over a longer period, etc. It is probably the case that mitigation as such was still a general intellectual consideration when the Kyoto Protocol was under serious discussion in the early 2000s, but mitigation was already rapidly receding in the rearview mirror no later than abandonment by the US of the 2015 Paris Agreement, and now the majority of climate scientists are seemingly of the opinion that steps contemplated in the Paris Agreement will no longer be effective in mitigation terms to limit temperature increases to 1.5 degrees centigrade. There are still technologically enabled scenarios like carbon sequestration, or geo-engineering (placing giant mirrors in space, giant algae blooms in the ocean, etc.) that theoretically could permit reversals or at least freezing of on-going temperature increases, but as we shift more towards adaptation mode bad things happening generally become more likely, and as a result the distributive justice questions become more pressing as we consider various choices. So theoretically, “pay me now, versus pay me later” is still available if technological options are pursued, except they are considered somewhat risky (mostly an unknown side effects issue) and certainly expensive. At the very least, the “pay me [more] later” option seems to be rising steadily in price.

4/4 As to where we are now from a framework convention perspective, I would suggest you spend some time on the best available climate science, namely by reading the summary for policymakers in the IPCC Fifth Assessment Report (2014) on the international side, and on the domestic side Chapter 19 in the second volume of the US 4th National Climate Assessment (Volume II, 2018). Chapter 19 addresses issues in the Southeastern U.S., including a case study of Charleston’s sea-level rise issues, which analysis is easily transferable to a lot of coastal cities on a worldwide basis, except most of them are less affluent and so may lack the resources for purposes of similar adaptation and remediation.

Implementation & International Monitoring on the Example of Ozone

1/2 Read on Montreal Protocol:
a. 1985 Vienna Convention for the Protection of the Ozone Layer, and the related 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (refer to texts as necessary)

b. EPA Ozone Protection Layer, International Treaties and Coperation about the Protection of the Stratospheric Ozone Layer (short webpage overview)

c. Morrisette, “The Evolution of Policy Responses to Stratospheric Ozone Depletion,” 29 Natural Resources Journal 793 (1989) (short summary notes Montreal Protocol roots in domestic political discussions)

d. Peter M. Haas, “Banning Chlorofluorocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone,” International Organization, Vol. 46, No. 1, Knowledge, Power, and International Policy Coordination. (Winter, 1992), pp 187-224.

e. Report of the First Extraordinary Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, UNEP/OzL.Pro.ExMP/1/3, UN Environment Program, 03/27/04, pp 1-20 (US replacements for methyl bromide are only now reaching advanced testing circa 15 years later)

f. Elizabeth Barrett-Brown, “Building a Monitoring and Compliance Regime Under the Montreal Protocol,” 16 Yale Intl LJ 519 (1991)

2/2 Read on European Convention on Long-range Transboundary Air Pollution:

a. 1979 European Convention on Long-range Transboundary Air Pollution

b. European Convention’s list of 8 Protocols 1984-2019 (including targeted substances, just look at the short descriptions as an overview)

Copyright 2020–21 © David Linnan.

Implementation & International Monitoring on the Example of Ozone

1/5 According to Haas, what is the role of the scientific (epistemic) community in the ozone depletion debate? [There are hints of the same in the declared focus on a common scientific understanding under the European Convention.] If they are so important for ozone, why have folks in white lab coats to date not similarly carried the global climate change debate?

2/5 What is the role of industry in such a debate, and what changed industry’s mind since the chemical industry was originally about as pro ozone depletion treaty as the oil companies are typically pro-climate change restrictions?

3/5 Is an atmospheric treaty really enforceable, and if so on what model? What is the public health issue that recommends freon, etc. continue to be used, and is it justified? What does it mean to segregate usage by country stage of development, and is the smuggling market inevitable if substances are not totally banned on a worldwide basis?

4/5 If you establish certain exceptions like critical usage (meaning no reasonable substitutes), how will you prevent the exceptions from swallowing up the rule? What are the incentives in terms of state behavior?

5/5 What are the realistic options concerning verification of treaty compliance, particularly when the treaty approach is not an outright ban but rather devolved plans at the national level to reduce ozone depleting substances? Will private parties acquiesce in such a ban, or is smuggling the evidence that they will not? The 2015 Paris Agreement under the UN Framework Convention on Climate Change provides for devolved national plans to address climate change, so what would you expect as a result? Is it more or less helpful to have non-binding (political) environmental agreements at a certain stage, and does it matter then whether constraints on the parties are loose in terms of them entering into the agreements? But if constraints are too loose, what is the value of the agreement?

Copyright 2020–21 © David Linnan.

Congratulations on your job in the legal department of the Indonesian Ministry of Foreign Affairs. You have been seconded to the Ministry of Trade to offer legal advice in its on-going negotiation of trade agreements, including both multilateral agreements under the WTO, and regional trade agreements such as RCEP (and possibly TPP, should Indonesia follow the Indonesian President’s declared intention to join). The ever problematic overlap of environmental and trade law concerns is your brief.

The question you are asked by the Minister of Trade relates to an Indian proposal in the still continuing Doha Round WTO negotiations. It has two parts. The Indians have proposed that to protect endangered species such as the marine turtles, each country be obligated to use its best efforts in enacting legislation and regulation, taking into account its level of general development, to preserve marine turtles from unjustified killings that might negatively affect the survival of the species. The second part of the proposal touches on continued operations of Indian traditional fisherman in its territorial waters, who currently use nets that entrap and result in the drowning of not less than 1,000 endangered turtles per year.

The proposed Indian regulatory solution is that India shall establish turtle breeding centers to produce no fewer than 10,000 turtle hatchlings (turtle babies) a year, to offset the loss of 1,000 mature turtles each year to traditional fishermen’s nets (and traditional Indian fishermen should be allowed to continue using nets that kill 1,000+ mature marine turtles annually). Most of the fish caught by traditional fisherman are for local consumption, but approximately 20% of the catch is exported regionally to Sri Lanka, Bangladesh, and Myanmar. The North Americans’ Doha Round criticism in turn was that this regulatory approach was inadequate, because India should adopt their own regulatory practice of regulating existing fishing nets in a manner to lower turtle mortality (for example, to require that the nets have holes allowing the turtles to escape), plus should adopt the turtle breeding center solution to increase the number of endangered turtles. Please advise the Minister on what the existing WTO jurisprudence tells us about the Indian proposal. Is it consistent with the law, or does it violate existing WTO precedents? How would you evaluate the proposal, would you recommend that Indonesia support the Indian proposal, and why?

Should you wonder, as indicated by the geography this is another one of those questions originally written for Indonesian law students. I want to see if you and they understand the law, and the advisability of the proposal the same way.

Copyright 2020–21 © David Linnan.

Congratulations on your new job as foreign international law consultant. You have been seconded to the law department of the Indonesian Ministry of Trade (MOT). In conjunction with the Indonesian Ministry of Agriculture (MOA), the MOT is concerned about developments in the agribusiness industry, particularly concerning environmental issues affecting crude palm oil (CPO) as major Indonesian export product. The problems arise from continuing issues with burning being used to clear forest land in Sumatra (which land is then converted to plantation use by planting it with new oil palm trees to be grown for the production of CPO). Meanwhile, clearing forest land through burning is more than just a haze problem involving Singapore.

The CPO produced from these trees grown on land cleared by burning arguably could be used as bio-diesel fuel, which the MOT hopes will receive special trade treatment as an environmentally friendly “green fuel.” Additionally, such CPO may be sold to major European consumer products companies for their use in producing consumer products like soap and cookies. However, the European Union and major European companies like Nestle and Unilever have expressed concern about the negative environmental impacts that land-clearing activities like burning to clear plantation areas may have in ASEAN. The EU therefore has announced a preliminary prohibition on the import of biofuels that have been produced in such a way that it damages the rainforest and biodiversity (including presumably clearing land by burning), and the European companies have established a “sustainable CPO supplier” program that all their CPO suppliers will be required to qualify under, if they wish to continue to sell their CPO to such companies for use in their products. It seems unlikely that any company selling CPO produced on lands cleared by burning could ever qualify as a “sustainable CPO supplier.”

Such an EU biofuels import prohibition might seemingly discriminate against Indonesian biofuels in violation of general GATT/WTO prohibitions on discriminatory treatment. The question is whether it may be lawful on the basis of the exception rules in article XX of GATT/WTO, which provides in relevant part:

“Article XX

General Exceptions

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

…

(b) necessary to protect human, animal or plant life or health;

…

(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption….”

The European companies acting to establish their “sustainable CPO supplier” programs are not acting pursuant to any government regulations, but rather in response to consumer pressure. So there is no government regulation that establishes any obligation on the European companies’ part, they are simply acting on their perception that European consumers will not buy their products unless they can establish that their ingredients are sustainably sourced.

You have been asked to advise the MOT and MOA ministers concerning international legal aspects of the above problems. Please write a memorandum for them addressing the problems from a legal perspective of the EU barring imports of Indonesian bio-diesel produced on former forest land cleared by burning, and the issue of European companies refusing to buy CPO from any companies which do not qualify as “sustainable CPO suppliers.” What should the ministers do, what are their options and why?

Should you wonder, as indicated by the geography this is another one of those questions originally written for Indonesian law students. I want to see if you and they understand the law, and the advisability of any proposals the same way. The interesting thing is that one of the Jakarta-based LLM students, doing their equivalent of “working downtown” on the side, formerly had worked for one of the largest CPO suppliers with definite forest clearing concerns, meanwhile he was then working in an independent non-profit effort to figure out how to respond to the European companies’ “sustainable CPO suppliers” initiative, because that threatened a not insubstantial share of Indonesia’s existing CPO exports.

Copyright 2020–21 © David Linnan.

Trade & Environment (WTO & GATT Article XX(b)&(g) Exceptions, On-Going Negotiations)

1/4 Sample as an introduction to the trade and environmental overlap the WTO website The multilateral trading system and climate change: introduction (remember the “human environment” going back to the 1972 Stockholm Declaration?)

2/4 Review An Introduction to Trade and the Environment at the WTO (sample some of the materials, and note in particular that countries are already calling for more trade and climate change policy coherence).

3/4 Read from Environmental disputes in GATT/WTO:

a. US- Restrictions on Imports of Tuna (1991) (tuna-dolphin case; edited excerpt available at Dolphin Friendly Tuna appellate panel)

b. US- Standards for Reformulated and Conventional Gasoline (1996; edited excerpt available at Venezuelan Refinery appellate panel)

c. US- Import prohibition of Certain Shrimp and Shrimp Products (1998) (shrimp-turtle case; edited excerpt available at Shrimp TED appellate panel)

4/4 Note from paragraphs 31-33 of the Doha Declaration that green or “environmental goods and services” are already a concept in the negotiations, except what are green goods?

[ red hots might want to look at Joost Paulweyn, U.S. Federal Climate Policy and Competitiveness Concerns: The Limits and Options of International Trade Law, Working Paper, Nicolas Institute for Environmental Policy Solutions, Duke University 2007 to develop a broader understanding of border measures and the like in the climate change context as a way of reconciling unilateral environmental actions with competitiveness concerns as a matter of trade law compliance in the climate change area, which is distinctively different as a technical matter now from concerns about the WTO DSB jurisprudence on the environment we read above. ]

Copyright 2020–21 © David Linnan.