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Liberal environmentalism and the international law of hazardous chemicals Barrios, Paula 2007

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LIBERAL ENVIRONMENTALISM AND THE INTERNATIONAL LAW OF HAZARDOUS CHEMICALS by  Paula Barrios LL.M., The University of British Columbia LL.B., University of Los Andes  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in The Faculty of Graduate Studies  (Law)  THE UNIVERSITY OF BRITISH COLUMBIA  December 2007  © Paula Barrios 2007  Abstract  This study looks at the role that liberal economic norms are playing in international environmental negotiations on hazardous chemicals (including wastes), and the implications of these norms for the protection of the environment and human health from the thousands of chemicals on the market. The key trait of liberal economic norms in relation to global environmental governance is their assumption that the liberalisation of trade and finance and economic growth are both consistent with and necessary for environmental protection. From this assumption follows, for instance, the idea that states should adopt the "least-trade restrictive" measures required to protect the environment and human health. I argue that liberal economic norms are "hegemonic," in a Gramscian sense, in chemicals-related international environmental negotiations. This means that a wide range of actors, including those that do not necessarily accept the liberal economic perspective, are upholding liberal economic norms in their statements and proposals if not out of conviction then out of a perceived need to be realistic or persuasive. The most important implication of liberal economic hegemony is that it is widely assumed that human health and the environment can be effectively protected from the negative effects of hazardous chemicals even though the volume of chemicals and chemical-containing products being consumed is increasing at a spectacular rate. The issue of growing consumption of chemicals is therefore consistently framed as a problem of quality (hazardousness) rather than quantity. To understand consumption in this narrow sense is problematic, however, because there is considerable scientific uncertainty concerning the environmental and health effects of most of the chemicals on the market and because chemicals that pose minimal risks to the environment and human health might be very hazardous when they are being manufactured or upon becoming waste. In order to address the problem of hazardous chemicals effectively, it is necessary to challenge the hegemony of liberal economic norms in international environmental negotiations. This can be done, I conclude, by deepening a number of fissures in the hegemony of the liberal economic perspective that can be detected in the context of chemicals-related instruments.  ii  TABLE OF CONTENTS Abstract ^ Table of Contents ^ Acronyms ^ Acknowledgments ^ Introduction ^  ii iii .vii . ix 1  Chapter One: Liberal Environmentalism and Global Environmental Governance ^ 15 I. Introduction ^  .15  II. Liberal Economic Norms as Hegemony ^ 18 1. Gramsci's understanding of hegemony ^ 18 a) Historical bloc ^ 19 2. Hegemony and world order relations ^ . 20 a) Neo-liberal hegemony in the postwar period ^23 b) The crisis of neo-liberal hegemony and the new historical bloc......25 3. Hegemony as discourse ^ 31 4. Hegemony and international environmental negotiations ^ 34 5. Hegemony and the law ^ ..38 a) Law as process and rules ^ .42 III. The Role of Agency and the Structuration of Social Systems ^ 1. International environmental negotiations as "social systems" ^ 2. Hegemony and structuration ^  43 .47 .52  IV. Methodological Issues ^ 1. Questionnaire ^  56 58  Chapter Two: The Basel Convention on Hazardous Wastes ^  60  I. Introduction ^  .60  II. Antecedents ^ 1. What are hazardous wastes? ^ 2. The Cairo Guidelines ^  .62 62 64  III. The Basel Convention ^ 70 1. The Basel negotiations ^ 70 a) Scope: from transboundary movements to waste management.. ...... 75 i) Final outcome ^ 78 b) From prior consent to export bans ^ 80 i) Final outcome ^ 86 ii) The Ban amendment ^ .87 c) Waste minimization ^ 100  iii  d) The Partnership approach and the role of industry ^ i) The mobile phone partnership initiative (MPPI) ^ IV. Conclusion ^ Chapter Three: The Rotterdam Convention on Hazardous Chemicals ^ I. Introduction ^  .110 113 117 121 121  II. Antecedents ^ 1. What are hazardous chemicals? ^ 2. Multilateral responses ^ a) The International Register of Potentially Toxic Chemicals ^ b) Regulatory efforts: From information exchange to PIC ^ i) The OECD's pre-emptive move ii) UNEP's London Guidelines ^ iii) The FAO Code of Conduct on Pesticides ^ iv) UNEP, FAO and Prior Informed Consent ^ v) The London Guidelines (as amended in 1989) ^ vi) The Code of Conduct (as amended in 1989) ^  124 124 127 127 .128 ..133 135 142 145 147 .148  III. The Rotterdam Convention Negotiations ^ 1. Antecedents ^ 2. The mandate ^ 3. Scope (and the mandate of the INC) ^ a) INC discussions ^ b) The 1996 government-designated group of experts report ^ 4. Bans and phase-outs ^ 5. International trade and PIC ^ 6. The "PIC list" (Annex III) ^ a) Final outcome and recent developments ^  150 150 153 153 .155 .160 163 .165 .168 171  IV. The Rotterdam Convention ^  173  V. Conclusion ^  . 176  Chapter Four: The Stockholm Convention on Persistent Organic Pollutants ^  182  I. Introduction ^  182  II. Antecedents ^ 1. What are persistent organic pollutants? ^ 2. International responses ^ a) POPs as an international issue ^ i) UNECE's regional Protocol on POPs ^ ii) POPs as a global issue ^ 3. Towards a negotiating mandate: the IFCS report ^  186 186 189 191 .191 197 200  iv  a) The IFCS proceedings and the global POPs treaty ^ b) The mandate ^  205 206  III. The Stockholm Convention Negotiations ^ 1. Scope of the convention ^ 2. Control measures ^ a) Intentionally produced POPs ^ b) Unintentionally produced POPs ^ i) Reduction vs. elimination ^ ii) Control measures ^ 3. The listing of new POPs ^ a) Scientific uncertainty and the identification of new POPs ^ b) Precaution and the listing of new POPs ^  .208 .209 210 .212 .217 218 220 226 228 .231  IV. Conclusion ^  238  Chapter Five: The Strategic Approach to International Chemicals Management  244  I. Introduction ^  244  II. Antecedents ^ 1. The need for a strategic approach ^ 2. Preliminary thoughts about a strategic approach ^ 3. The mandate ^ a) The foundation of SAICM: the Bahia instruments ^ b) The IFCS "gaps analysis" ^  247 247 254 260 .261 264  III. The SAICM Negotiations ^ 265 1. SAICM's legal nature ^ 267 272 2. Scope ^ 3. The "overarching goal" of SAICM ^ .276 4. Production and consumption in SAICM ^ .279 a) Cleaner pr