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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^ ii Table of Contents^ iii Acronyms  .vii Acknowledgments . ix Introduction^ 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^ 43 1. International environmental negotiations as "social systems"^ .47 2. Hegemony and structuration^ .52 IV. Methodological Issues^ 56 1. Questionnaire 58 Chapter Two: The Basel Convention on Hazardous Wastes^ 60 I. Introduction^ .60 II. Antecedents .62 1. What are hazardous wastes?^ 62 2. The Cairo Guidelines 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^ .110 i) The mobile phone partnership initiative (MPPI)^ 113 IV. Conclusion^ 117 Chapter Three: The Rotterdam Convention on Hazardous Chemicals^ 121 I. Introduction^ 121 II. Antecedents 124 1. What are hazardous chemicals?^ 124 2. Multilateral responses^ 127 a) The International Register of Potentially Toxic Chemicals ^ 127 b) Regulatory efforts: From information exchange to PIC^ .128 i) The OECD's pre-emptive move ..133 ii) UNEP's London Guidelines^ 135 iii) The FAO Code of Conduct on Pesticides^ 142 iv) UNEP, FAO and Prior Informed Consent 145 v) The London Guidelines (as amended in 1989)^ 147 vi) The Code of Conduct (as amended in 1989) .148 III. The Rotterdam Convention Negotiations^ 150 1. Antecedents^ 150 2. The mandate 153 3. Scope (and the mandate of the INC)^ 153 a) INC discussions^ .155 b) The 1996 government-designated group of experts report^ .160 4. Bans and phase-outs 163 5. International trade and PIC^ .165 6. The "PIC list" (Annex III) .168 a) Final outcome and recent developments^ 171 IV. The Rotterdam Convention^ 173 V. Conclusion^ . 176 Chapter Four: The Stockholm Convention on Persistent Organic Pollutants^ 182 I. Introduction^ 182 II. Antecedents 186 1. What are persistent organic pollutants?^ 186 2. International responses^ 189 a) POPs as an international issue 191 i) UNECE's regional Protocol on POPs^ .191 ii) POPs as a global issue^ 197 3. Towards a negotiating mandate: the IFCS report^ 200 iv a) The IFCS proceedings and the global POPs treaty^ 205 b) The mandate^ 206 III. The Stockholm Convention Negotiations^ .208 1. Scope of the convention^ .209 2. Control measures 210 a) Intentionally produced POPs^ .212 b) Unintentionally produced POPs .217 i) Reduction vs. elimination 218 ii) Control measures^ 220 3. The listing of new POPs^ 226 a) Scientific uncertainty and the identification of new POPs^ 228 b) Precaution and the listing of new POPs^ .231 IV. Conclusion^ 238 Chapter Five: The Strategic Approach to International Chemicals Management 244 I. Introduction^ 244 II. Antecedents 247 1. The need for a strategic approach^ 247 2. Preliminary thoughts about a strategic approach^ 254 3. The mandate^ 260 a) The foundation of SAICM: the Bahia instruments^ .261 b) The IFCS "gaps analysis"^ 264 III. The SAICM Negotiations^ 265 1. SAICM's legal nature 267 2. Scope^ 272 3. The "overarching goal" of SAICM^ .276 4. Production and consumption in SAICM .279 a) Cleaner production, safer alternatives and waste minimization.....281 i) Cleaner production and safer alternatives^ 281 ii) Agriculture and non-chemical alternatives^ .283 iii) Waste minimization^ 288 5. Phase-outs and bans^ 292 6. Precaution and chemicals management .299 a) The precautionary approach/principle and SAICM^ 299 b) Precaution as a risk reduction objective^ .304 7. International trade and SAICM^ 309 IV. Questionnaire: liberal environmentalism as "hegemony"^ .315 1. Individuals vs. organizations^ .323 V. Conclusion^ .324 Chapter Six: Conclusion^ 329 Bibliography^  350 v i ACRONYMS AMAP^Arctic Monitoring Assessment Panel BAN Basel Action Network BAT^Best available techniques BCRCs^Basel Convention regional centres CEE Central and Eastern European countries (group of) CEFIC^European Council of Federations of the Chemical Industry CEG Criteria expert group (on POPs) CI^Consumers International (former IOCU) CIEL^Center for International Environmental Law CLTRAP^Convention on Long-Range Transboundary Air Pollution (of UNECE) CMA^Chemical Manufacturers Association COP Conference of the Parties CTE^Committee on Trade and Environment (of the WTO) DNA Designated National Authority (for PIC) DTIE^Division of Technology, Industry and Economics (of UNEP) EC European Community EHF^Environmental Health Fund ELV Emission limit values (for POPs emissions) ENGO^Environmental non-governmental organisation ESM Environmentally-sound management (e.g., of hazardous wastes) EU^European Union FAO Food and Agriculture Organization of the United Nations GATT^General Agreement on Tariffs and Trade GC Governing Council (e.g., of UNEP) GEF^Global Environment Facility GIFAP^Groupement International des Associations de Fabricants de Produits Agrochimiques (now Croplife International) GPA^Global Plan of Action (of SAICM) GRULAC Group of Latin American and Caribbean countries G77^Group of 77 (developing countries) ICC International Chamber of Commerce ICCA^International Council of Chemical Associations ICCM^International Conference on Chemic