International Environmental Law and International Commercial Treaties John Pendergrass Environmental Law Institute Senior Attorney, Co-Director International Programs

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International Environmental Law 700 Multilateral Environmental Agreements Common Approaches

Multilateral Environmental Agreements (MEAs) Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) Montreal Protocol - ozone Basel Convention – hazardous waste

MEAs United Nations Framework Convention On Climate Change – Kyoto Protocol Stockholm Convention on Persistent Organic Pollutants

MEAs Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC) Convention on Biological Diversity

MEAs UN/ECE Convention on Access to Information, Public Participation in Decision- making, and Access to Justice in Environmental Matters (Aarhus Convention)

MEAs Rio Declaration on Environment and Development of the United Nations Conference on Environment and Development (UNCED) Agenda 21

Common Approaches Precaution – “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

Common Approaches Public Participation Differential Obligations – Developed Country Leadership – Extended Time for Compliance for Less Developed Countries

Common Approaches Control of Trade to Protect Environment – Endangered Species (protect species) – Hazardous Substances (protect human health and environment)

Comparison to Trade Law International Environmental Law is not as Mature Compliance and Enforcement – Many MEAs lack mechanisms – CITES and Montreal Protocol have focused on implementation – Nothing comparable to World Trade Organization

Comparison to Trade Law Participation Varies Widely – Kyoto Protocol – significant contributors not participating – CITES and Montreal Protocol have broad membership

Relationship of MEAs to Trade Law Potential for Conflict – Scholarship has explored issues – Potential but little actual conflict to date – Conflicts with domestic law

Case Study Ivory Coast dumping of Hazardous Wastes – Is this an example of a conflict? – Violation of Basel? – Not specifically a trade issue – Hazardous waste is a “good” – an article of trade

Current Status MEAs & WTO WTO Compliance Mechanisms Widely Used MEAs Just Beginning to Focus – UNEP Guidelines and Manual Failure of Doha Round – Increases Significance of Regional Trade Agreements

An Environmental View of FTAs NAFTA Citizen Submission Process Promotes Enforcement of Domestic Law – But no actual enforcement mechanism Regional and Bilateral FTAs have Provided a Framework and Funds for Capacity Building – Judges, prosecutors, inspectors, customs officers

An Environmental View of FTAs Public Participation Lags Behind MEAs Beginning to Bring Environmental and Trade Officials To the Same Table – Separate national implementers – Rarely meet internationally – Need for more