1. Transboundary Impacts and Transboundary Harm
A State’s sovereignty is limited by the sovereignty of the adjoining States. The law regulating activities with a transboundary impact emphasizes the principle of mutual consideration of interests.7 A State may not exercise its territorial sovereignty in a way that seriously damages the environment or substantially impairs the ecological balance of neighbour States. This duty of every State to duly consider the environmental integrity of neighbours is not limited to acts and omissions by the State, but also extends to harmful acts of private actors.8 The duty to respect the environment of other States has been recognized by several arbitral awards and nowadays must be considered customary international law.9 Due consideration of neighbouring concerns calls for a detailed analysis of the various interests involved and aims at a fair balance.
In the Pulp Mills case (Argentina v Uruguay), the International Court of Justice (ICJ) held that the operation of industrial facilities in the proximity of border rivers requires an environmental impact assessment. The ICJ derived this duty not only (p. 138) from a treaty which had been concluded between Argentina and Uruguay, but also from customary international law:
This understanding does not only place the duty to assess the cross-border impact on a broad legal basis, but also implies that States must refrain from allowing industrial activities which substantially impair the environment in a neighbour State.11
In treaty law, the Convention on Environmental Impact Assessment in a Transboundary Context of 1991, the so-called Espoo-Convention,12 catalysed the standard of carefully evaluating the cross-border implications of projects for the environment. The Convention, inter alia, covers the construction of crude oil refineries or the construction of large oil and gas pipelines (Annex I, No 1 and 8). The Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context of 2003 (SEA-Protocol) to the Espoo-Convention contains detailed criteria for the strategic impact assessment of specific plans and programmes.
There is a tendency in international law to subject ‘ultra hazardous activities’ to strict liability.13 Such liability does not rest upon the responsible State’s negligence or otherwise wrongful conduct, but flows from the high risk of the ultra-hazardous activity.14 Candidates for this form of strict liability are space operations and nuclear disasters causing vast cross-border contamination (as in Chernobyl 1986), possibly also certain high risk forms of genetic engineering.
A debated issue in international environmental law is the effect of administrative permits for installations with transboundary effects. In many States, neighbours must tolerate activities covered by authorization. In a transboundary context, the authorizing State cannot impose a duty to tolerate on the inhabitants of foreign territory. The authorization shares the territorial limits of national jurisdiction.
In a lawsuit filed before Dutch courts by Dutch tulip-producers against French extractors of potash for the pollution of the water of the Rhine, the French enterprises could not rely on the French authorization to discharge polluted water into the Rhine.15
(p. 139) A satisfactory solution normally will have to be sought on the level of an international treaty. Such a treaty exists, for example, between Germany and Austria with respect to the airport in Salzburg.16
It is for national law to determine whether the interests of neighbours on the other side of the frontier should be considered before authorization and whether these neighbours should have standing to challenge an authorization.
The German Federal Administrative Court has recognized that Dutch nationals living close to the German border could challenge the permit for a nuclear power plant and invoke certain individual rights (health, life, property) protected under the relevant legislation before the German courts.17
3. The Precautionary Principle
One of the prominent standards of international environmental law, as well as of the law of health protection is the ‘precautionary principle’.22 According to that principle, it is not always necessary for States to ascertain a scientifically proven risk before taking measures of protection and prevention. States can take preventive or pre-emptive measures of protection, even if a lack of scientific certainty does not permit a reliable risk assessment, in particular if the chain of causation possibly leading to environmental damages is not fully corroborated or the probability of harm remains to be clarified.
Principle 15 of the Rio Declaration on Environment and Development recognizes the principle of precaution in the field of environmental protection:
The precautionary principle does not justify every State action in the prevention of risks. Rather, it presupposes that the available scientific evidence is given full consideration. The precautionary principle can only be invoked if there is a substantial possibility for considerable damage to human health or the environment. The greater the possible damage, the lower is the threshold for possible measures.
In the European Union, the principle of precaution is the overarching standard for environmental policy. EU law also establishes the ‘polluter pays’ principle, which might extend to precautionary measures. The TFEU states in Article 191(2):(p. 141)
Under customary law, the precautionary principle does not directly establish rights and obligations. Rather, it helps to define pre-established rules and may guide the interpretation of statutes and treaties.
The European Court of Human Rights reads the precautionary principle into the guarantee of rights which may be affected by measures possibly harming the environment such as the right to private and family life (Article 8 of the European Convention on Human Rights).23 This approach provides the prevention of environmental damage with anthropocentric underpinnings.
At least to some extent, WTO law is also receptive to the precautionary principle.24 Members of the WTO may justify restraints on trade with fighting risks even if there is no consensus among scientists about the existence and relevance of risks:
Despite the broad recognition of precaution, the legitimacy of specific measures is often a matter of controversy. Different degrees of risk perception and risk aversion account for different regulatory philosophies. Residual risks are considered unacceptable in some countries but tolerated in others. In particular, in several fields of (p. 142) high-technology (eg biotechnology) this divergence accounts for significant legal and economic conflicts.
4. Treaties on Pollution Control and on the Liability for Environmental Contaminations
Numerous treaties in the field of international environmental law have established quite a complex architecture of rules. Some fields, such as pollution control or the liability for environmental damage, may have a particular impact on the international economic order. Pollution control often stands behind trade and transport restrictions as a mechanism to prevent environmental damages. Liability for environmental contamination addresses an important corporate risk.
Among the treaties on pollution control26 affecting international transport and trade is the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal of 1989.27 The Basel Convention establishes a regime with the aim of a uniform regulation of the transboundary movement of hazardous wastes. Parties to the Convention may prohibit the import of hazardous wastes or other wastes for disposal (Article 4(1)(a) of the Basel Convention). Other State parties must conform to this decision by prohibiting or not permitting the export of the wastes concerned (Article 4(1)(b) of the Convention). Article 4(1)(c) of the Convention establishes the so-called ‘Prior-Informed-Consent Procedure’ (PIC), which is often found in the context of international environmental law:
In Article 4, sections 2 to 4, the Basel Convention provides measures to control the traffic with hazardous and other wastes:
The Basel Convention bans the import or export of wastes from or to States which are not a party to the Convention in Article 4 section 5:
This provision aims to protect the integrity of the regulatory framework established by the Basel Convention with respect to non-parties. This is an important feature of modern environmental treaty ‘regimes’. They do not only lay down certain objectives for the State Parties but also try to achieve a spill-over effect and to ‘motivate’ other States to join the regime by direct or indirect economic incentives. The Basel Convention illustrates the importance of international environmental law also in an economic context.
Despite the Basel Convention, controlling the export of toxic wastes from industrial countries to poor countries has remained a matter of concern.28 As a response, a number of African States adopted the Bamako Convention on the Ban on the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (1991).29
Another treaty affecting international trade is the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, which entered into force in 2004. According to Article 1, the objective of the Rotterdam Convention
(p. 144) The very name of the Rotterdam Convention already indicates that it follows the PIC principle.30 The text of the Convention is an example of the ‘soft’ character of most environmental treaties. In sensitive areas like international environmental law, ‘soft mechanisms’ based on consent can be much more efficient than ‘hard rules’ which merely few States are willing to ratify. The same rationale applies to the Stockholm Convention on Persistent Organic Pollutants (‘POPs Convention’) which entered into force in 2004.31 The POPs Convention aims to prevent the bioaccumulation of certain pollutants through the food chain.32
Treaties on the liability for environmental contaminations have a significant impact on international business.33 The Paris Convention on Third Party Liability in the Field of Nuclear Energy of 1960 and the International Convention on Civil Liability for Oil Pollution Damage of 1969 both harmonize the standards of civil liability for particularly severe forms of environmental contamination. The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (2010) addresses the liability of operators for environmental damage caused by the transboundary movement of living genetically modified organisms.
5. Treaties on the Protection of the Atmosphere and for Climate Protection
Two of the fundamental legal instruments for climate protection in general and the protection of the atmosphere in particular34 are the Vienna Convention for the Protection of the Ozone Layer of 1985 and the Montreal Protocol on Substances that Deplete the Ozone Layer of 1987.35 The Montreal Protocol obligates its parties to reduce the production and the use of certain ozone-depleting substances continuously (Articles 2Aff; Article 5 contains special provisions for developing countries). The Montreal Protocol lays down extensive import and export restrictions (p. 145) from or to States which are not parties to the Protocol in Article 4. These provisions shall restrain ozone-depleting production processes in non-party countries and eliminate competitive advantages of States not bound by its rules on climate protection. This method operates as a ‘pull to compliance’ or a ‘pull to ratification’ for States not yet parties to the Protocol.
Another seminal legal instrument for climate protection is the United Nations Framework Convention on Climate Change of 1992 (Rio). Rather than setting precise and immediately operable standards, the Convention provides a gradual specification in subsequent protocols. The ultimate objective of the Convention is to reduce the emission of greenhouse gases in order to protect the ozone layer and to avoid detrimental effects on the environment in general. Despite its character as a framework convention, the Convention itself already contains certain duties to reduce the anthropogenic emission of greenhouse gases like carbon dioxide for industrial countries. However, the Convention did not bring about a significant progress in climate protection.
A first step towards a more efficient regime of climate protection was the Kyoto Protocol of 1997.36 The Protocol is based on the concept of a common, but differentiated responsibility of States. This approach assumes the common responsibility of all States for the prevention of a further climate change, while taking into account the very different positions of individual States in terms of causation and economic or technical capacity to take measures of reduction. Industrial countries account for two-thirds of the total emission of greenhouse gases. Developing countries and their industries often are not in a position to reduce their emissions effectively. The unequal distribution of the burden often does not follow the rules of logic but rather of political compromise. As a result, even States with high polluting rates are exempt from reduction obligations.
The Protocol requires most industrial States (States with an emission commitment, so-called ‘Annex B States’) to keep within an assigned emission target, which usually means bringing emissions of carbon dioxide and other greenhouse gases below the levels at a reference date (as a rule 1990) within a certain period. This reference level privileges States such as Russia which had relatively high emissions in past decades, but have long since brought them down through a change of industrial structure or by technological overhaul of entirely outdated installations. Certain adjustments, as for carbon sinks (eg large forested areas), privilege countries like Canada or Russia. Thus, some industrialized States even end up with a commitment of a zero per cent reduction (Russia) or a positive balance allowing them to increase their emission to the reference level.
The Protocol provides some flexible regulatory mechanisms which support international cooperation and technology transfer. It also creates economic incentives.
(p. 146) The ‘joint implementation’ mechanism (Article 6) allows forms of cooperation between different parties to the Protocol in keeping within the available quota. If keeping within their aggregated quotas, cooperating States may shift parts of their quota among themselves. The ‘clean development mechanism’ (Article 12) shall stimulate cooperation between industrial and developing countries including technology transfer. By supporting emission-reduction projects in developing countries, parties with an emission reduction or emission limitation commitment (‘Annex B States’) may benefit from ‘certified emission reduction’ (CER) credits, which can be set off against their own reduction debit. The system of ‘emission trading’ (Articles 6 and 17)37 allows trading with emission certificates which stand for a certain quota of emission reductions. This mechanism establishes some market-oriented incentives for reduction, but in itself does not change the overall emission balance. Emission trading is particularly profitable for States like Russia, which have a very high reference level well above the actual emission levels and a low (or zero) reduction target. These States have a relatively high quota that can be traded.
The Kyoto regime increasingly stands in contrast to reality. The growing economic strength and increase of industries in countries like China and India has resulted in a rising of emissions on a large scale. At the same time, the emissions of industrial countries have increased in absolute terms, even though they got much lower in relation to other countries. Even the technological progress of the last decades and the growing consensus on curbing emissions were insufficient to stop these developments. In all, global emissions have risen to alarming levels since 1990. Still, the entry into force of the Kyoto Protocol in 2005 with its binding commitments marks an important step towards an efficient climate protection strategy.
Under the Kyoto Protocol, the initial period of commitments only extended until 2012. The protracted post-Kyoto negotiations were marked by a most difficult quest for consensus. The UN Climate Conference in Doha (December 2012) adopted an amendment of the Kyoto Protocol which established a new period for the Protocol’s operation from 2013 until 2020 with new reduction targets. Only States undertaking new reduction commitments shall participate in emission trading. The few parties accepting these enhanced obligations include the European Union, Australia, Norway, and Switzerland. Whilst the United States by now recognizes the need to dramatically reduce greenhouse emissions, other important players like China and India still show only limited willingness to condition industrial development by clear and operable reduction commitments.
In December 2015, the parties to the Framework Convention on Climate Change adopted a new treaty on climate change, the so-called ‘Paris Agreement’.38 The Paris Agreement commits the parties to the overarching goal of keeping global warming well below the threshold of 2 per cent and establishes the related objectives such as low greenhouse gas emissions and climate-resilient development (Article 2(1)):(p. 147)
For the implementation of the Agreement, the concept of ‘common but differentiated responsibility’ serves as a guideline (Article 2(2)):
The Paris Agreement aims at reaching global peaking of greenhouse gas emissions as soon as possible, ‘in the context of sustainable development and efforts to reduce poverty’ (Art. 4(1)). Unlike the Kyoto Protocol, the Paris Agreement establishes no ‘hard obligations’ to reduce carbon emissions. Instead, the Agreement defers to ‘nationally determined contributions’ to the global response to climate change. The developed country parties shall provide financial resources to assist developing country parties (Article 9). The Paris Conference envisaged a floor of USD 100 billion per year. The Agreement shall enter into force after ratification by at least 55 parties to the Convention accounting for at least 55 per cent of the total greenhouse gas emissions (Article 21).
6. Treaties on Biodiversity, Access to Genetic Resources, and Biosafety
One of the most urgent challenges of environmental protection is the growing reduction of biodiversity. Most areas of ‘mega-biodiversity’ are situated Latin-American, African, and Asian countries. The density of biodiversity is particularly high in States like Costa Rica, Panama, Colombia, Ecuador, Peru, Bolivia, Brazil, China, Malaysia, and Papua New Guinea.
Recognizing the threat of extinction to many species, a number of treaties and soft-law instruments have been drafted to stop or at least slow down this development. These mechanisms also affect international trade.
(a) The Convention on Biological Diversity as a framework for the protection and sustainable use of biological resources
Modern treaties on the protection of biodiversity do not only lay down mandatory rules, but also provide economic or technological incentives and fair benefit sharing.
(p. 148) The basic international agreement on the protection of biodiversity and access to genetic plant or animal resources was negotiated and adopted at the ‘Earth Summit’ in Rio de Janeiro in 1992: the Convention on Biological Diversity (CBD).39 Almost all States are parties to the CBD. The United States has signed, but not ratified the CBD. The CBD can be legitimately called a ‘role model convention’, as it strikes a balance between the preservation of biodiversity and the economic use of natural (genetic) resources. It also tries to reconcile the interests of (mostly developing) biodiverse countries and the extractive interests of other (mostly industrial) countries. The CBD aims both at the protection and preservation of biodiversity on the one hand and its sustainable use on the other. At the same time, the CBD’s objectives extend to
This goal is particularly important for those developing countries which are providers of genetic materials to the pharmaceutical and chemical industry.
Biological diversity in terms of the CBD, as defined in Article 2(1),
The central idea, which reconciles preservation of biodiversity and economic utilization, is the ‘sustainable use’ of natural resources accounting for diversity in terms of an equilibrium of environmental and economic interests. In Article 2(16), the CBD defines sustainable use as
The approach of the CBD to biodiversity is somewhat ambivalent. On the one hand, the preamble considers the preservation of biodiversity as a ‘common concern of humankind’. On the other hand, the CBD stresses the sovereignty of States over their own biological resources, and the correlated responsibility for biodiversity and the environment of other States. Article 3 of the CBD provides:
States are responsible for the preservation of the biodiversity within their territory and for the sustainable use of their resources in terms of Articles 6 to 14 of the CBD. Article 14 requires an environmental impact assessment and measures to minimize adverse impacts on the environment.
(b) Access to genetic resources
Access to genetic resources40 is one of the salient issues of biodiversity. The use of genetic resources, often in conjunction with traditional knowledge of indigenous and other local communities, has opened a field of research with most promising prospects for the development of pharmaceuticals and breeding of animals and plants. Many drugs originate in countries of mega-biodiversity and were developed on the basis of the (synthesized or modified) genetic structure of plants and micro-organisms.
The CBD lays down general principles for the access to genetic resources (as defined in Article 2(10) CBD) in its Article 15:
Central elements of this regime are the sovereign right of States to determine access to their resources and facilitated access for environmentally sound uses on the basis of prior consent as well as a fair and equitable sharing of benefits in mutually agreed terms (Article 19 CBD).
The Bonn Guidelines on Access to Genetic Resources and Equitable Sharing of the Benefits Arising out of their Utilization (2002) specify the standards for a fair and equitable access to genetic resources and the sharing of benefits.41 At the Nagoya Conference (2010), the Parties to the CBD adopted the Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (‘Nagoya Protocol’). The Nagoya Protocol also addresses the participation of local and indigenous communities (Article 12) as well as the protection of traditional knowledge.
The CBD does not govern the status and the use of genetic resources without the required consent of the originating State. The Nagoya Protocol partly tries to compensate the deficits of the CBD in Articles 15 and 16:
The Andean Community addressed the issue in its Decision No 391 (1996).42 The Decision declares the genetic resources themselves as well as the resources gained from their utilisation (which contain the genetic information) as part of the ‘heritage’ of the States of origin (Article 6(1)). It even qualifies both kinds of resources as inalienable (Article 6(2)). In case of an illegal harvesting of genetic resources used for research, the Decision denies recognition of intellectual property rights or other claims associated with these resources (Second Complementary Provision to the Decision). This provision conflicts with the obligations regarding patent protection under the TRIPS Agreement. A number of WTO members, including the European Union support an amendment to the TRIPS Agreement with respect to certified origins of genetic resources in context with patent claims.
(c) Technology transfer
Many countries with regions of abundant mega-biodiversity lack the necessary technological level to use those natural resources effectively and in a sustainable manner. Therefore, a particular concern of the CBD refers to access and transfer of technology. The CBD strives to establish a balance between access to genetic resources and technical or scientific cooperation (Articles 16 to 18). Article 16 CBD provides:
The provisions on technology transfer in the CBD are somewhat controversial. The United States in particular is concerned about a possible erosion of intellectual property rights, for example through compulsory licensing. A close reading of Article 16 CBD (especially section 2) does not corroborate these concerns. Still, the United States has refrained from ratifying the CBD and therefore cannot be a party to the subsequent protocols either.
(d) Agreements on access and benefit sharing
In recent years, some agreements on access to genetic resources, benefit sharing, and technology transfer have been concluded between pharmaceutical companies and governmental institutions in charge of biodiversity. In 1991, the US pharmaceutical company MERCK and a governmental agency of Costa Rica concluded a sort of ‘pioneer agreement’.43
According to that agreement, the governmental agency for biodiversity of Costa Rica (INBio) should provide plants, animals, and soil samples for the exclusive use by MERCK. The company would retain the industrial property rights for the pharmaceuticals developed on the basis of these samples. In return, the company agreed to pay an amount of money to the governmental institute and to share benefits from the marketing of the products developed in context with the cooperation as well as to transfer technological equipment to the governmental agency.
(e) Biosafety
Complying with the mandate under Article 19(3), the Parties to the CBD adopted the Cartagena Protocol on Biosafety to the Convention on Biological Diversity (p. 153) (also known as the ‘Biosafety Protocol’) in 2000.44 The Biosafety Protocol governs the movement (especially the import) of living modified organisms (LMOs), that is, genetically modified living organisms.
The Biosafety Protocol establishes the principle of prior information and consent (‘advanced informed agreement’, AIA). It addresses the conditions for legitimate import and export restrictions and thus regulates trade measures covered by WTO law (GATT and the SPS Agreement). The Biosafety Protocol shows a clear tendency to accord considerably more freedom from trade restrictions to its parties than WTO law (Article XX of the GATT and the SPS Agreement). The relation of the Biosafety Protocol to the WTO agreements is rather unclear. Under the preamble of the Biosafety Protocol, this relation is one of chosen ambiguity. On the one hand, the preamble emphasizes ‘[…] that this Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements’. On the other hand, the preamble of the Biosafety Protocol continues with the understanding ‘[…] that the above recital is not intended to subordinate this Protocol to other international agreements’.
It is a matter of doubt whether the standard for import restrictions under the Biosafety Protocol conforms with or deviates from WTO rules, which are rather strict in terms of the required scientific justification with respect to the health of human beings, plants, and animals. In the same vein as WTO rules, the Protocol calls for a scientific risk assessment as the basis for any import restriction (see Article 10(1)) in terms of Article 15(1) with Annex III and Article 10(6). The risk assessment ‘shall be carried out in a scientifically sound manner […] taking into account recognized risk assessment techniques’.
Annex III section 8 of the Biosafety Protocol further specifies the criteria for risk assessment:
In its Article 10(6), the Protocol emphasizes the precautionary principle:45
However, the Biosafety Protocol also allows parties to consider other matters than scientific criteria, thus vesting them apparently with rather broad discretion. Article 26 of the Protocol permits import restrictions for living genetically modified organisms (LMOs) also to be based on ‘socio-economic considerations’, as long as these are compatible with the international obligations of the respective State. The term ‘socio-economic considerations’ is the source of a significant degree of uncertainty and results in substantial freedom of the parties. The EU has relied on the precautionary principle as defined by the Protocol and on ‘socio-economic considerations’ in its controversial policy of suspending authorizations for the marketing of genetically modified organisms (GMOs):
This approach has fostered controversies with States following a strictly scientific approach of justifying trade restrictions like the United States (which is not a party to the CBD and, therefore, also not party to the Biosafety Protocol). These different ‘regulatory philosophies’ have caused trade conflicts within the framework of the WTO.47
In 2010, some Parties to the CBD adopted the Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on (p. 155) Biosafety. The Protocol applies to damages resulting from LMO originating from transboundary movement (Article 3(1)).
7. The Law of Biotechnology
The dynamic development of biotechnology and its utilization in agriculture, in the pharmaceutical industry, and in medical science turned the regulation of this high-technology into one of the central topics of international law.48 Food, feed, seed, and drugs consisting of or produced from GMO advance on the markets. Genetic engineering also plays a role in medical therapy. In several countries (eg the United States, Argentina, Brazil, and China), genetically modified crops cover vast areas. On the other hand, regulation on the international as well as on the domestic level has to respond to proven or potential risks for human health, and to the environment. The regulation of biotechnology cuts through many areas of law. Restrictive trade measures affect obligations under WTO law. Interferences with the human genome and human life in the early stages affect human rights and human dignity. Despite all inherent risks, biotechnology may contribute to solving some of the problems of a growing world population and to the consequences of climate change in this respect (such as droughts and famines). The Food and Agricultural Organization of the United Nations (FAO) has constantly stressed these positive effects of biotechnology:
Biotechnology can overcome production constraints that are more difficult or intractable with conventional breeding. It can speed up conventional breeding programmes and provide farmers with disease-free planting materials. It can create crops that resist pests and diseases, replacing toxic chemicals that harm the environment and human health, and it can provide diagnostic tools and vaccines that help control devastating animal diseases. It can improve the nutritional quality of the staple foods such as rice and cassava and create new products for health and industrial uses.49
Within the framework of the United Nations, the UNESCO issued a declaration on the human genome in 1997. The UNIDO (United Nations Industrial Development Organization) elaborated a Voluntary Code of Conduct for the Release of Organisms into the Environment. The Codex Alimentarius Commission, instituted by the WHO and the FAO, presented guidelines for risk assessment of GMO and genetically modified plants and microorganisms foods derived from biotechnology
Different degrees of risk and risk perception underlie different regulatory ‘philosophies’ as to controlling genetic engineering and other forms of modern biotechnology. EU law (Directive 2009/41/EC on the contained use of genetically (p. 156) modified micro-organisms,50 Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms)51 still tends to classify the mere process of genetic engineering as causing relevant risks warranting specific legislation (process approach). Recent EU legislation on the marketing and labelling of food and feed containing GMO or consisting of GMO52 is widely based on an understanding of consumer protection, which is somewhat dissociated from scientifically relevant product properties. Thus, food and feed containing only minimum traces of genetically modified material (even if it has no longer an active function) are subject to relatively strict regulation. This tendency may perpetuate prejudices among consumers without a sufficient scientific basis. Even the adventitious and small-scale presence of GMO already authorized in another product raises complex issues of authorization for marketing and labelling.53 On the other hand, the democratic process will always strive to reflect prevailing societal concerns and expectations. Still, the freedom of States to restrict trade for merely ‘socio-economic’ reasons may result in curtailing customers’ choices.
The laws of other countries, such as the United States or Japan, focus on the properties of the organism to be modified or on the characteristics of the final product (product approach).54 WTO rules also aim at the strictly scientific justification for restrictive measures.
The tensions between an empirically substantiated risk management on the one hand and strong reservations to genetic engineering on the other hand are exacerbated by the receptivity of many of the EU States to recognize ‘socio-economic’ concerns as justification of barriers to trade. EU legislation allows Member States to ban the cultivation of genetically modified crops partly or entirely from their territory (‘opt out’), thus restraining the marketing of the products concerned.55 This ‘opt out’ legislation signifies a fundamentally new approach to free trade which raises sensitive problems. For it allows restrictions of the use of GMO which have been authorized not only for being placed on the market, but also for the very use at issue (ie cultivation) on the basis of a complex process of risk evaluation. Such restrictions of the use of products qualified as ‘safe’ can only be justified empirically (p. 157) (and ‘rationally’) if the restriction refers to a specific local or regional environment which is particularly sensitive.
Footnotes:
1 For a general overview of the topic, see U Beyerlin and T Marauhn, International Environmental Law (Hart Publishing 2011); D Bodansky, J Brunnee, and E Hey, The Oxford Handbook of International Environmental Law (OUP 2007); M Bowman and C Redgwell (eds), International Law and the Conservation of Biological Diversity (Kluwer Law International 1996); L Campiglio, L Pineschi, D Siniscalco, and T Treves (eds), The Environment after Rio: International Law and Economics (Springer Netherlands 1996); R Dolzer and J Thesing (eds), Protecting Our Environment (Konrad Adenauer Stiftung 2000); M Faure and G Skogh, The Economic Analysis of Environmental Policy and Law (Edward Elgar Publishing 2003); JC Carlson, GWR Palmer, and BH Weston, International Environmental Law and World Order (3rd edn, West Publishers 2012); AC Kiss and D Shelton, International Environmental Law (3rd edn, Hotei Publisher 2004); E Louka, International Environmental Law: Fairness, Effectiveness and World Order (CUP 2006); P Sands and J Peel, Principles of International Environmental Law (3rd edn, CUP 2012); R Wolfrum (ed), Enforcing Environmental Standards: Economic Mechanisms as Viable Means? (Springer 1996).
2 See Section 5 in this Chapter.
3 See Section 6(a) in this Chapter.
5 See NA Robinson (ed), Agenda 21: Earth’s Action Plan (Oceana Publications 1993).
6 For general remarks on the conflict of trade and environment, see C Robb (ed), International Environmental Law Reports 2: Trade and Environment (CUP 2001); P Sands and J Peel, Principles of International Environmental Law (3rd edn, CUP 2012) 940; TJ Schoenbaum, ‘International Trade and Protection of the Environment: The Continuing Search for Reconciliation’ (1997) 91 AJIL 268.
7 For the historical perspective, see SC McCaffrey, ‘The Harmon Doctrine One Hundred Years Later: Buried, Not Praised’ (1996) 36 Nat Resources J 965; see generally R Bratspies and R Miller (eds), Transboundary Harm in International Law (CUP 2006); G Handl, ‘Transboundary Impacts’ in D Bodansky, J Brunnee, and E Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 531; H Xue, Transboundary Damage in International Law (CUP 2003).
8 See G Handl, ‘Transboundary Impacts’ in D Bodansky, J Brunnee, and E Hey, The Oxford Handbook of International Environmental Law (OUP 2007) 531, 533 with reference to ICJ Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 para 29 and ICJ Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7 para 53.
9 See the arbitral award in the case Lac Lanoux (diversion of water in the Pyrenees) (1963) XII RIAA 281; see also A Epiney, ‘Lac Lanoux Arbitration’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2012) vol VI, 626; another ‘classic case’ Trail Smelter (air pollution by a Canadian smelter close to the US border) (1949) III RIAA 1905; see RA Miller, ‘Trail Smelter Arbitration’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2012) vol IX, 1010.
10 ICJ Case Concerning Pulp Mills on the River of Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14 para 204.
11 See N Craik, The International Law of Environmental Impact Assessment (CUP 2010). For a rather critical view of this concept, see J Knox, ‘The Myth and Reality of Transboundary Environmental Impact Assessment’ (2002) 96 AJIL 291.
13 See LFE Goldie, ‘Concepts of Strict and Absolute Liability and Ranking of Liability in Terms of Relative Exposure to Risk’ (1985) 16 NYIL 174.
14 For a general outline of the treatment of hazardous substances and activities in international law, see DA Wirth, ‘Hazardous Substances and Activities’ in D Bodansky, J Brunnee, and E Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 394.
15 See S Nassr-Esfahani and M Wemckstern, ‘Der Rheinversalzungsprozess’ (1985) 49 RabelsZ 740.
17 BVerwGE 75, 285 (288).
18 A Boyle and D Freestone, International Law and Sustainable Development (OUP 2001); MC Cordonier Segger and A Khalfan, Sustainable Development Law: Principles, Practices, and Prospects (OUP 2004); K Ginther, E Denters, and P de Waart, Sustainable Development and Good Governance (Springer 1995); D Magraw and LD Hawke, ‘Sustainable Development’ in D Bodansky, J Brunnee, and E Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 613; C Voigt, Sustainable Development as a Principle of International Law (Martinus Nijhoff Publishers 2009).
20 See D Magraw and LD Hawke, ‘Sustainable Development’ in D Bodansky, J Brunnee, and E Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 613, 616, and 622; WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products—Report of the Appellate Body (1998) WT/DS58/AB/R.
21 For the Statute of the Global Environmental Facility, see (1994) 33 ILM 1273; see also R Dolzer, ‘The Global Environment Facility—towards a new concept of the common heritage of mankind?’ in G Alfredsson and P Macalister-Smith (eds), The Living Law of Nations—In Memory of Atle Grahl-Madsen (Engel 1996) 331.
22 D Bodansky, ‘Scientific Uncertainty and the Precautionary Principle’ (1991) 33 Env’t 4; CE Foster, Science and the Precautionary Principle in International Courts and Tribunals (CUP 2011); D Freestone and E Hey (eds), The Precautionary Principle and International Law (Kluwer Law International 1996); H Hohmann, The Precautionary Legal Duties and Principles of Modern International Environmental Law (Springer Netherlands 1994); DA Motaal, ‘Is the World Trade Organization Anti-Precaution?’ (2005) 39 JWT 483; PH Sand, ‘The Precautionary Principle: A European Perspective’ (2000) 6 Human and Ecological Risk Assessment 445; A Trouwborst, Evolution and Status of the Precautionary Principle in International Law (Kluwer Law International 2002); JB Wiener, ‘Precaution’ in D Bodansky, J Brunnee, and E Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 597; S Boutillon, ‘The Precautionary Principle: Development of an International Standard’ (2001–02) 23 Mich J Int’l L 429; J Peel, ‘Precaution—A Matter of Principle, Approach or Process?’ (2004) 5 Melb J Int’l L 483.
23 On damages to family and private life caused by use of cyanide for the exploration of gold, see ECtHR Tatar v Romania App no 67021/01 (27 January 2009).
24 See HJ Priess and C Pitschas, ‘Protection of Public Health and the Role of the Precautionary Principle under WTO Law’ (2000–01) 24 Fordham Int’l LJ 519.
25 On Article 5.7 SPS see WTO, European Communities: Measures Concerning Meat and Meat Products (Hormones)—Report of the Appellate Body (1999) WT/DS 26/AB/R, WT/DS 48/AB/R para 194.
26 For an outline with a focus on the regulation of toxic substances, see M Pallemaerts, Toxics and Transnational Law: International and European Regulation of Toxic Substances as Legal Symbolism (Hart Publishing 2003).
27 (1989) 28 ILM 657; see K Kummer, International Management of Hazardous Wastes: The Basel Convention and Related Legal Rules (OUP 1995).
28 For a general outline of the problem, see J Clapp, Toxic Exports: The Transfer of Hazardous Wastes from Rich to Poor Countries (Cornell University Press 2001).
30 The Rotterdam Convention is therefore often referred to as the ‘PIC-Convention’.
32 See MA Olsen, Analysis of the Stockholm Convention on Persistent Organic Pollutants (OUP 2003).
33 See B Baker Röben, ‘Civil Liability as a Control Mechanism for Environmental Protection at the International Level’ in F Morrison and R Wolfrum (eds), International, Regional and National Law (Springer 2000) 821; A Boyle, ‘Globalising Environmental Liability: The Interplay of National and International Law’ (2005) 17 JEL 3; M Fitzmaurice, ‘International Responsibility and Liability’ in D Bodansky, J Brunnee, and E Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 1010; T Scovazzi, ‘State Responsibility for Environmental Harm’ (2001) 12 YIEL 43; WR Moomaw, ‘Can the International Treaty System Address Climate Change?’ (2013) 37 The Fletcher Forum of World Affairs 105.
34 For a general outline on atmosphere and climate protection, see SO Andersen and K Madhava Sarma, Protecting the Ozone Layer: the United Nations History (Routledge 2002); EA Parson, Protecting the Ozone Layer: Science and Strategy (OUP 2003); IH Rowlands, ‘Atmosphere and Outer Space’ in D Bodansky, J Brunnee, and E Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 315.
35 See EA Parson, ‘The Montreal Protocol’ in PG Le Prestre, JD Reid, and ET Morehouse Jr (eds), Protecting the Ozone Layer: Lessons, Models and Prospects (Springer 1998) 127.
36 For the text of the Protocol see (1998) 37 ILM 32; see also W Durner, ‘The Implementation of the Climate Change’ (1999) 37 AVR 357; M Faure, J Gupta, and A Nentjes, Climate Change and the Kyoto Protocol (Edward Elgar Publishing 2003); M Grubb, C Vrolijk, and D Brack, The Kyoto Protocol (Royal Institute of International Affairs 1999); S Oberthür and H Ott, The Kyoto Protocol: International Climate Policy for the Twenty-First Century (Springer 1999).
37 D Freestone and C Streck, Legal Aspects of Carbon Trading: Kyoto, Copenhagen and Beyond (OUP 2009).
38 FCCC ‘Paris Agreement’ (12 December 2015) FCCC/CP/2015/L.9 Annex.
39 See C Bail, R Falkner, and H Marquard (eds), Reconciling Trade in Biotechnology with Environment and Development? The Cartagena Protocol on Biosafety (Royal Institute of International Affairs 2002); A Sontot, ‘The Convention on Biological Diversity’ (2004/05) 7 Bio-Science Law Review 45; F McConnell, The Biodiversity Convention: A Negotiating History (Kluwer Law International 1996).
40 See CM Correa, ‘Access to Genetic Resources’ (1997) 20 W Comp 57; TR Young, ‘An Implementation Perspective on International Law of Genetic Resources: Incentive, Consistency, and Effective Operation’ (2004) 15 YIEL 3; KT Kate and SA Laird, The Commercial Use of Biodiversity (Earthscan Publications 1999); EC Kamau and G Winter, Genetic Resources, Traditional Knowledge and the Law (Routledge 2009); MT Mahop, Intellectual Property, Community Rights and Human Rights (Routledge 2010); KJ Ni, ‘Legal Aspects of Prior Informed Consent on Access to Genetic Resources: An Analysis of Global Lawmaking and Local Implementation Toward an Optimal Normative Construction’ (2009) 42 V and J Transnat’l L 227; YG Shim, ‘Intellectual Property Protection of Biotechnology and Sustainable Development in International Law’ (2003–04) 29 NCJ Int’l L & Com Reg 157.
41 For a general overview, see V Normand, ‘Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising Out of Their Utilization’ (2004) 1 JIB Law 133.
42 Gaceta Oficial del Acuerdo de Cartagena, Año XII—Número 213, 17 de julio de 1996, 1.
43 The so-called MERCK-INBio Agreement.
44 See C Bail, R Falkner, and H Marquard (eds), The Cartagena Protocol on Biosafety (Earthscan Publications 2002); B Eggers and R Mackenzie, ‘The Cartagena Protocol on Biosafety’ (2000) 3 J Int’l Econ L 525; AL Hobbs, JE Hobbs, and W Kerr, ‘The Biosafety Protocol: Multilateral Agreement on Protecting the Environment or Protectionist Club’ (2005) 39 JWT 281.
45 See JH Adler, ‘More sorry than safe: “Assessing the Precautionary Principle and the Proposed International Biosafety Protocol”’ (2000) 35 Texas Int’l LJ 173.
46 WTO, European Communities: Measures Affecting the Approval and Marketing of Biotech Products—Report of the Panel (2000) WT/DS291/R, WT/DS292/R, WT/DS293/R [67] paras 4.339 and 4.342.
47 See PWB Phillips and WA Kerr, ‘Alternative Paradigms: The WTO Versus the Biosafety Protocol for Trade in Genetically Modified Organisms’ (2000) 34 JWT 63.
48 See F Francioni and T Scovazzi (eds), Biotechnology and International Law (Irish Academic Press 2006); M Herdegen, ‘Biotechnology and Regulatory Risk Assessment’ in GA Bermann, M Herdegen, and PL Lindseth (eds), Transatlantic Regulatory Cooperation (OUP 2000) 301; M Herdegen, ‘The Coexistence of Genetically Modified Crops with other Forms of Farming’ (2005) 2 JIB Law 89; M Herdegen and H-G Dederer, Adventitious Presence of GMOs in Seed (CH Beck 2001); H Somsen (ed), The Regulatory Challenge of Biotechnology: Human Genetics, Food and Patents (Edward Elgar Publishing 2007); D Wüger and T Cottier, Genetic Engineering and the World Trade System (CUP 2008).
49 FAO, ‘The State of Food and Agriculture 2003–2004: Agricultural Biotechnology—Meeting the Needs of the Poor?’ (2004) 3 Agricultural Series No 35.
51 [2001] OJ L 106/1, amended by Directive 2008/27/EC of the European Parliament and of the Council of 11 March 2008, amending Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms, as regards the implementing powers conferred on the Commission [2008] OJ L 81/45.
52 Regulation (EC) No 1830/2003 of the European Parliament and of the Council of 22 September 2003 concerning the traceability and labelling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms and amending Directive 2001/18/EC [2003] OJ L 268/24.
53 On the ‘contamination’ of honey with pollen from authorised GM crops, see ECJ Case C-442/09 Bablok et al v Freistaat Bayern [2010] ECR I-7419.
54 M Herdegen, ‘Biotechnology and Regulatory Risk Assessment’ in GA Bermann, M Herdegen, and PL Lindseth (eds), Transatlantic Regulatory Cooperation (OUP 2000) 301.
55 Article 26b of Directive (EU) 2015/412 of 11 March 2015 amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of genetically modified organisms (GMOs) in their territory [2015] OJ L68/1.
