Multipolar governance across environmental treaty regimes.

Author:Peiry, Katharina Kummer
Position:International Law in a Multipolar World
 
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This panel was convened at 9:00 am, Saturday, April 6, by its moderator, Mark Drumbl of Washington and Lee University, who introduced the panelists: Kim Diana Connolly of Buffalo Law School; David Downes of the Office of International Affairs, U.S. Department of the Interior; Timo Koivurova of the Arctic Center, University of Lapland; and Katharina Kummer Peiry of Kummer EcoConsult.

INTRODUCTORY REMARKS BY MARK A. DRUMBL *

This panel, co-sponsored by the Government Attorneys Interest Group and the International Environmental Law Interest Group, firmly buttresses the theme of our 107th Annual Meeting, "International Law in a Multipolar World," within the specific context of international environmental law. Panelists will explore the vexing questions of how--and why--multipolar governance remains uneven across various environmental treaty regimes. They will approach this foundational question through case studies of five separate--although certainly interconnected--regimes. Dr. Katharina Kummer Peiry opens the discussion with the Basel Convention, the only global treaty covering waste management. David Downes follows with the Convention on Biological Diversity. Dr. Peiry and Mr. Downes will both assess how these two treaty regimes have moved from a North-South dyad to a much broader multipolar kaleidoscope animated by cross-cutting cleavages and addressing a wide spectrum of issues. Professor Kim Diana Connolly will set out the background and role of multiple actors in the Ramsar Convention, which relates to wetlands and is among the oldest of the international environmental treaties. Professor Timo Koivurova will consider the Arctic and Antarctic polar regimes, both of which differ considerably and one of which--the Arctic regime--is entering a state of considerable flux in light of climatic changes which are opening up fishing and other economic development possibilities in the region.

In their initial presentations, each speaker will introduce the specific treaty regime in question and then expound upon two questions. First, what are the implications for the particular environmental regime of the trends toward multipolarity? Second, what are--or should be--the roles of states as compared to other actors and levels of governance in the development, implementation, and effectiveness of the regime? The collective focus on these two questions should not obscure other important matters, including the relationship between science and treaty-making and the role of codes of conduct regarding corporate social responsibility. What is, moreover, the role of non-parties in the success of environmental regimes? Finally, what might environmental regimes stand to learn from governance regimes in other areas of international law such as, for example, foreign investment, intellectual property, human rights, and accountability for international crimes?

* Class of 1975 Alumni Professor and Director, Transnational Law Institute, Washington and Lee University, School of Law.

THE BASEL CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND THEIR DISPOSAL

By Katharina Kummer Peiry *

THE BASEL CONVENTION AT A GLANCE

The Basel Convention, adopted in 1989 and in force since 1992, is the sole global treaty on waste management. Negotiated in response to scandals involving illicit exports from developed to developing countries in the 1980s, its objective is to protect human health and the environment against the adverse effects of the generation and management of hazardous and other wastes. The Convention establishes a control system for transboundary waste movement, which is based on the requirement of prior informed consent (PIC) to every intended movement, by the prospective states of import and transit, as a prerequisite to the movement being initiated. It also imposes a general obligation on parties to ensure environmentally sound management of all hazardous and other wastes wherever they are located, and obliges parties to combat illegal traffic and to reimport or otherwise dispose of illegally exported wastes.

The Convention's institutional infrastructure is the same as that of all modern multilateral environmental agreements, consisting of the Conference of the Parties (COP) as the supreme organ, a number of subsidiary bodies, and the secretariat (joint with the Rotterdam and Stockholm Conventions since 2011). The COP has designated the following as priority waste streams: electric and electronic wastes (e-wastes); persistent organic pollutants (POPs); obsolete pesticides; medical and biomedical wastes; used lead-acid batteries (ULABs); obsolete ships destined for dismantling; asbestos wastes; and mercury wastes. Key activities over the last decade include the elaboration of technical guidelines to assist parties in the management of priority waste streams; regional capacity-building projects in developing countries; and partnerships with industry and civil society.

EVOLUTION OF THE BASEL CONVENTION--FROM BIPOLAR TO MULTIPOLAR

The Basel Convention is a good example of a treaty moving from a predominantly bipolar approach to embracing elements of a multipolar approach. Over the two decades of its existence, it has evolved from an instrument intended to address primarily the bilateral relations between the prospective export, transit, and import states of hazardous wastes, to a regime addressing multiple aspects of what is today recognized as a global issue. This evolution has taken place without amendments to the Convention text, through changes in focus of the soft-law instruments adopted by the COP, and changing negotiating patterns and roles of state and nonstate actors.

From the late 1980s to the late 1990s, there was a strongly bipolar negotiation pattern, due to a North-South divide in line with the predominant waste movement routes at that time. The industrialized countries and their industries were seen as perpetrators of harm ("bad guys"), while developing countries were viewed as innocent victims ("good guys"). An activist nongovernmental organization played a very strong role in the negotiations, demanding a total ban of waste exports from North to South; industry associations lobbied for continued legitimacy of transboundary movements of waste materials for the purpose of recycling and resource recovery.

The first years of the new millennium were marked by a total blockage of the policy discussion over the modalities of entry into force of a 1995 amendment banning all waste exports from OECD to non-OECD countries (the Ban Amendment). The negotiators therefore chose to set aside this issue and instead to focus on promoting environmentally sound waste management generally. As a result, the Basel Convention was increasingly perceived by industrialized countries as a "development cooperation" treaty, aiming to assist the South in improving waste management practices, but of limited relevance to them. Industry perceived the Convention as prohibitionist, and the single NGO following the Convention's development believed it to be largely insufficient to protect the environment and human health in poor countries. In general, waste management during this period was relegated to the bottom of the environmental political agenda, and the Convention thus received little interest. The negotiation patterns remained generally bipolar but with an element of overarching interest in environmental protection globally through the general promotion of environmentally sound management.

From around 2008, the changing trade patterns that followed the emergence of new materials and technologies, as well as the exponentially increasing prices for raw materials, were gradually being acknowledged as being relevant for the Convention. Wastes were no longer perceived only as a problem but in some cases as a source of valuable secondary raw materials, if properly managed. The resolution of the political blockage over the Ban Amendment through agreement on a practical way forward by the 10th meeting of the COP in 2011 sparked renewed interest from all stakeholders, including especially industry. The activist NGO continued to promote the prohibition of shipments of all waste materials for whatever purpose from North to South, but became gradually more willing to conditionally acknowledge the notion that wastes can be valuable resources if properly managed, and as such can create "green" business opportunities and jobs. To a certain extent, this period saw a shift in negotiating patterns as the "good guy-bad guy" approach became somewhat blurred. Emerging economies entered the stage as new players with an interest in the potential of green business opportunities and jobs that might be created through treating wastes as a secondary raw material.

In the future, there will be a need for international policy and law to address the entire materials life cycle: addressing only "downstream" operations, i.e., waste management, as the Basel Convention currently does, is no longer sufficient to avoid negative effects of hazardous materials on the environment. "Upstream" operations, i.e., clean production processes leading to waste avoidance, will also have to be addressed by multilateral environmental agreements. The process of creating synergies between the chemicals and waste conventions of the United Nations Environment Programme (the Basel, Rotterdam, and Stockholm Conventions), ongoing since 2006, could provide a starting point for grouping existing treaties into an overarching regime, and adopting new treaty rules to fill the gaps. Such a circular economy approach would again change negotiating patterns: among other things, there could be stronger roles and possibly new positions for large exporting countries of consumer goods. This might also attract a stronger interest of relevant industries, and a broader representation of NGOs.

INVOLVEMENT OF NONSTATE ACTORS

In addition to their traditional roles in treaty policy...

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