Prior Informed Consent and Hazardous Trade: Regulating Trade

Description

Over the past twenty years or so several global and regional agreements have emerged to address the problems associated with international shipments of hazardous substances. Such agreements are found in three main areas covering three categories of goods: hazardous wastes (Basel convention, Bamako convention, and a number of regional agreements), certain chemicals (Rotterdam Convention), and genetically modified organisms (Cartagena Protocol). . This ground-breaking study is the first book to take a comprehensive approach to the subject of transboundary shipments of hazardous substances and the instruments employed for regulating such shipments. It fully explains which types of trade regulating instruments are employed by which agreements, and then goes on to evaluate the pros and cons of these instruments with respect to their compatibility with international legal norms, especially WTO law. For the first time in any book, the various international legal regimes (hazardous waste, hazardous chemicals, and biosafety) are compared, based on such criteria as the following: effectiveness of the regulatory instruments; ability to protect the environment and/or human health; ability to accommodate new information; and where they place effective decision-making ability and authority. At the heart of the thesis is a recognition that the concept of prior informed consent (PIC) – a relatively new instrument for controlling international trade flows – has become a central tenet in hazardous trade regulation. The author demonstrates that PIC seems to offer a promising way to strengthen the ability to protect the environment and human health without unnecessarily impeding the free flow of goods, thus effectively addressing persistent conflicts between trade and environmental protection. Taken in conjunction with other trade-regulating measures, his analysis assesses the PIC concept/procedure from three perspectives: its effect on state sovereignty, its potential for enhancing environmental and health protection in importing states, and its relationship with the free-trade regime, represented primarily by the GATT and the SPS and TBT Agreements of the WTO. The analysis also includes coverage of the pertinent export laws of the EU and the United States, and of the export and import laws of India pertaining to potentially hazardous substances and products. Prior Informed Consent and Hazardous Trade vividly clarifies the objectives pursued by the international regulation of trade in hazardous substances – to strengthen regulatory control, to protect human health and the environment, and to prevent unjustified impediments to free trade. In its deeply-informed assessment of the relative weight attributed to each of these objectives, and in its keen analysis of the implications of that weighing on effective decision-making capacity with respect to hazardous trade, this book will be of immeasurable value to lawyers, policymakers and academics working with issues related to transboundary movements of hazardous substances, and especially with conflicts between trade and environmental protection. Cover Half Title Page Editorial Board Title Page Copyright Page Table of Contents Foreword Acknowledgements Abbreviations List of Tables Part I Issues and Concepts Chapter 1 Introduction 1.1 ASPECTS OF HAZARDOUS TRADE 1.1.1 THE PROTECTION ASPECT 1.1.2 THE SOVEREIGNTY ASPECT 1.1.3 THE TRADE ASPECT 1.2 PIC AND OTHER TRADE-REGULATING INSTRUMENTS 1.3 DEFINITIONS AND TERMINOLOGY 1.4 GENERAL STRUCTURE OF THE STUDY Chapter 2 International Law Premises 2.1 INTRODUCTION 2.2 PARTICULAR FEATURES OF INTERNATIONAL LAW 2.3 ON CUSTOMARY LAW 2.4 INDETERMINACY AND CONCRETENESS 2.5 THE ROLE OF DOMESTIC LAW Chapter 3 Sovereignty 3.1 INTRODUCTION 3.2 HISTORICAL OUTLINE 3.3 SOVEREIGNTY AND TERRITORY 3.4 ECONOMIC SOVEREIGNTY 3.5 SOVEREIGNTY A VIABLE NOTION? 3.6 EFFECTIVE SOVEREIGNTY AND HAZARDOUS TRADE 3.7 PERSPECTIVES ON SOVEREIGNTY 3.8 CONCLUSIONS Chapter 4 Hazardous Trade as Transboundary Harm 4.1 INTRODUCTION 4.2 THE NO-HARM PRINCIPLE 4.3 SUBSTANTIVE OBLIGATIONS 4.4 PROCEDURAL OBLIGATIONS 4.5 ILC’S DRAFT ARTICLES 4.6 THE CONTRIBUTION OF CASE LAW 4.7 CONCLUSIONS REGARDING THE NO-HARM PRINCIPLE 4.8 THE NO-HARM PRINCIPLE AND TRADE IN HAZARDOUS SUBSTANCES 4.9 DOMESTICALLY PROHIBITED GOODS Part II Hazardous-Trade Regimes Chapter 5 The Hazardous-Waste Regime 5.1 INTRODUCTION 5.1.1 HISTORICAL BACKGROUND 5.2 THE BASEL CONVENTION 5.2.1 THE NEGOTIATIONS 5.2.2 OBJECTIVES AND BASIC PREMISES 5.2.3 SCOPE 5.2.4 MINIMIZATION OF GENERATION AND TRADE 5.2.5 PREREQUISITES FOR EXPORT 5.2.6 THE PIC PROCEDURE 5.2.7 OBLIGATIONS PERTAINING TO EXPORTED WASTES 5.2.8 THE BASEL BAN 5.2.9 THE MEMBERSHIP AND NON-PARTIES 5.3 THE BAMAKO CONVENTION 5.3.1 INTRODUCTION 5.3.2 PROVISIONS OF THE CONVENTION 5.4 OTHER REGIONAL CONVENTIONS 5.4.1 THE WAIGANI CONVENTION 5.4.2 THE MEDITERRANEAN SEA PROTOCOL 5.5 RADIOACTIVE WASTE 5.6 EC LAW 5.7 INDIAN LAW 5.8 US LAW 5.9 COMMENTS AND CONCLUSIONS 5.9.1 INTRODUCTION 5.9.2 MINIMIZING GENERATION AND TRADE 5.9.3 THE PIC PROCEDURE 5.9.4 ENVIRONMENTALLY SOUND MANAGEMENT 5.9.5 TRADE BANS 5.9.6 PARTIES AND NON-PARTIES Chapter 6 The Hazardous-Chemicals Regime 6.1 INTRODUCTION 6.1.1 HISTORICAL BACKGROUND 6.2 THE ROTTERDAM CONVENTION 6.2.1 THE NEGOTIATIONS 6.2.2 INTERIM ARRANGEMENTS 6.2.3 OBJECTIVE 6.2.4 SCOPE AND DEFINITIONS 6.2.5 INCLUSION OF CHEMICALS IN THE PIC PROCEDURE 6.2.6 SEVERELY HAZARDOUS PESTICIDE FORMULATIONS 6.2.7 REMOVAL OF CHEMICALS FROM THE PIC PROCEDURE 6.2.8 FUNCTIONING OF THE PIC PROCEDURE 6.2.9 EXPORT NOTIFICATION 6.2.10 INFORMATION 6.2.11 THE MEMBERSHIP AND NON-PARTIES 6.3 EC LAW 6.4 INDIAN LAW 6.5 US LAW 6.6 COMMENTS AND CONCLUSIONS 6.6.1 INTRODUCTION 6.6.2 THE PIC PROCEDURE 6.6.3 RISK ASSESSMENT 6.6.4 INCLUSION OF CHEMICALS IN THE PROCEDURE 6.6.5 EXPORT NOTIFICATION 6.6.6 EXPORT IN BREACH OF OBLIGATIONS 6.6.7 DECISION-MAKING Chapter 7 The Biosafety Regime 7.1 INTRODUCTION 7.1.1 HISTORICAL BACKGROUND 7.2 THE CARTAGENA PROTOCOL 7.2.1 THE NEGOTIATIONS 7.2.2 SCOPE 7.2.3 INFORMATION AND EXPERTISE 7.2.4 FUNCTIONING OF THE AIA PROCEDURE 7.2.5 PROCEDURE FOR LMO-FFPS 7.2.6 PRINCIPLES FOR DECISION-MAKING 7.2.7 THE MEMBERSHIP AND NON-PARTIES 7.3 EC LAW 7.4 INDIAN LAW 7.5 US LAW 7.6 COMMENTS AND CONCLUSIONS 7.6.1 INTRODUCTION 7.6.2 THE AIA PROCEDURE 7.6.3 THE PROCEDURE FOR LMO-FFPS 7.6.4 NON-RESPONDING PARTIES 7.6.5 DECISION-MAKING: THE PRECAUTIONARY APPROACH 7.6.6 DECISION-MAKING: SOCIO-ECONOMIC CONSIDERATIONS 7.6.7 LMOS AND DEVELOPING COUNTRIES 7.6.8 NON-PARTIES Chapter 8 Comparison and Analysis of the Hazardous-Trade Regimes 8.1 INTRODUCTION 8.2 BANS 8.3 PIC PROCEDURES 8.3.1 THE SUBSTANCES TO WHICH PIC APPLIES 8.3.2 INSTANCES OF TRANSBOUNDARY MOVEMENTS TO WHICH PIC APPLIES 8.3.3 NATURE OF CONSENT REQUIREMENT 8.3.4 DECISION-MAKING ON PIC 8.3.5 HOW DECISIONS ARE MADE 8.3.6 PRINCIPLES GOVERNING DECISION-MAKING 8.3.7 THE ROLE OF PRECAUTION 8.3.8 CONCLUDING REFLECTIONS 8.4 EXPORT NOTIFICATION PROCEDURES 8.5 PRIOR NOTIFICATION IN MARITIME TRANSPORT Part III The Free-Trade Regime Chapter 9 Free-Trade Law 9.1 THE ROLE OF GENERAL INTERNATIONAL LAW Chapter 10 WTO Law 10.1 INTRODUCTION 10.2 THE WORLD TRADE ORGANIZATION 10.3 GENERAL OVERVIEW OF RELEVANT WTO LAW 10.3.1 THE GATT 10.3.2 OTHER RELEVANT AGREEMENTS 10.4 FOCUS AND PROCEDURAL ASPECTS 10.4.1 FOCUS OF THE ANALYSIS 10.4.2 PROCEDURAL ASPECTS 10.5 PERTINENT GATT PROVISIONS 10.5.1 ELIMINATION OF QUANTITATIVE RESTRICTIONS 10.5.2 MOST-FAVOURED-NATION 10.5.3 NATIONAL TREATMENT 10.5.4 ENVIRONMENTAL AND HEALTH EXCEPTIONS 10.6 THE TBT AGREEMENT 10.7 THE SPS AGREEMENT 10.8 RELATIONSHIP BETWEEN THE AGREEMENTS 10.9 COMPATIBILITY OF PIC-APPLYING MEAs WITH WTO LAW 10.9.1 BANS 10.9.2 PIC PROCEDURES 10.9.3 THE SPS AND TBT AGREEMENTS 10.9.4 EXPORT NOTIFICATION PROCEDURES 10.9.5 CONCLUSIONS Chapter 11 Conflicts between the Environmental Regime and the Free-Trade Regime 11.1 INTRODUCTION 11.2 THE SYMMETRICAL MEMBERSHIP CASE 11.3 THE ASYMMETRICAL MEMBERSHIP CASE Part IV Analysis and Reflections Chapter 12 Objectives and Regulatory Instruments 12.1 VALUES AND OBJECTIVES 12.2 ASSESSMENT CRITERIA 12.3 TRADE BANS 12.3.1 IMPORT BANS 12.3.2 EXPORT BANS 12.4 PIC PROCEDURES 12.5 EXPORT NOTIFICATIONS Chapter 13 Further Aspects of PIC 13.1 WHAT PIC IS NOT 13.2 PRECONDITIONS FOR THE FUNCTIONING OF PIC 13.3 STATUS OF PIC IN INTERNATIONAL LAW Chapter 14 General Conclusions 14.1 THE RIGHT TO REGULATE 14.2 THE ABILITY TO CONTROL Tables of Materials TREATIES AND LAWS CASES BIBLIOGRAPHY OFFICIAL DOCUMENTS MISCELLANEOUS Index Back Cover