International Environmental Law Part 9 docx

P1: JZP 0521868122c09a Printer: Sheridan CUFX037/Louka 0 521 86812 2 August 16, 2006 8:41 Intellectual Property Rights and Trade 415 unimproved germplasm that has been cultivated and protected for years by people of the developing world has remained, until recently, a free-access resource. In the meantime, the power of the seed industry has increased. The top ten seed companies control a sizeable piece of the total seed market and 90 percent of the agrochemical market. 193 The power of the seed industry and its ability to set prices for the advanced varieties it produces 194 set off the seed wars of the 1980s. The disputes focused on the open-access policies for unmodified germplasm implemented by gene banks and the IARCs. 195 Developing countries argued that international gene banks benefit essentially multinational seed corporations. The IARCs used to allow, until recently, free access to unimproved germplasm in their collections, but the high-yielding varieties produced by seed companies, by using that germplasm, are quite expen- sive to acquire because they are protected by patents or breeders’ rights. Devel- oping countries argue that it is unfair to have to pay for these varieties, which would have not been developed, without the free-access policies to unmodified germplasm located in international gene banks, and, initially, discovered within their territory. The seed wars demonstrated the unwillingness of developing countries to keep sharing their germplasm resources with multinational corporations and triggered the adoption of a number of instruments that asserted national sovereignty over germplasm resources. The Biodiversity Convention adopted in 1992 is one of these instruments. 196 The Biodiversity Convention mandates the equitable sharing of benefits derived from the use and exploitation of biodiversity resources. 197 The convention does not define what equitable sharing entails. But equitable sharing has generally been interpreted to mean the sharing by developing countries in the roy- alty system established by intellectual property rights over modified genetic resources. These are modified resources that were initially found or cultivated by indigenous peoples and farmers in the developing world. Because the Biodiversity Conven- tion could be interpreted to include rules that mandate the sharing of royalties, the U.S. biotechnology industry has urged the U.S. government not to ratify the convention. However, the adoption of the convention has not been without consequences. Seed and pharmaceutical industries, which, up to the late 1980s, were able to obtain germplasm from developing countries without monetary compensation, must now request permission for access and pay a fee for the use and commercialization of plant resources. The CBD encourages a sort of bilateralism by which corporations and nonprofit organizations must sign agreements with developing countries governments in order to obtain germplasm. These agreements, called Material Transfer Agreements (MTAs), have been used for the transfer of germplasm from developing 193 The seed market and agro-chemical market are valued respectively at US $23 billion and US $31 billion. See Dawkins, supra note 104. 194 Id. 195 The International Agricultural Research Centers (IARCs) were established in the early 1970s and they have been the repository of many crops and plants. They contain today some of the major gene banks of the world. See Chapter 7, Section 2.1.2.3. 196 See CBD, Chapter 7, Section 2.1. 197 See art. 16(1) & (3), id. P1: JZP 0521868122c09a Printer: Sheridan CUFX037/Louka 0 521 86812 2 August 16, 2006 8:41 416 Trade and Environment countries to institutions and companies of the developed world that wish to experiment with raw germplasm. Attempts by corporations to obtain seeds, to isolate their properties, and to claim intellectual property rights over them without acknowledging and compensating the contributions of indigenous peoples and farmers have been called biopiracy. 198 Incidents involving alleged misappropriation of germplasm, and the knowledge asso- ciated with it, have acquired international dimensions entangling states, nongovern- mental institutions, indigenous farmers, and corporations. Some of these incidents have implicated the IARCs. It has been claimed, for instance, that seed companies frequently acquire germplasm from the centers and, by performing minor modi- fications, seek to privatize germplasm resources through the intellectual property rights system. Such incidents put in the forefront the debate of whether the isola- tion and purification of genetic material from its natural state could possibly qual- ify as an invention entitled to patent protection. The climate of distrust has been reflected in the international instruments that have been adopted that embody the transition from a common heritage system over germplasm to a property rights system. In addition to the CBD, which essentially does away with perceptions that germplasm could be free-access resource, the evolution of another instrument indi- cates the gradual transition from a common heritage regime to a property regime. The International Undertaking on Plant Genetic Resources was one of the first instruments to deal with germplasm resources for food and agriculture. In the 1983 version of the Undertaking, it is mentioned that plant genetic resources are a heritage of mankind and should be available without restriction. 199 The Undertaking was modified in 1989 to clarify that “free access does not mean free of charge.” 200 It was modified further in 1991 to clarify that the principle that genetic resources are the heritage of mankind is subject to the “sovereignty of states over plant genetic resources.” 201 4.3.4. TRIPs and Traditional Knowledge As mentioned earlier, the CBD repeatedly provides for the equitable sharing of benefits, coming from the exploitation of germplasm resources, with the country of origin of those resources. Although the convention does not specifically describe the parameters of equitable sharing, one could gauge that such sharing would not involve the monopolization of rights by a patent holder. Thus, the content of the convention is clearly distributive. 202 The collision between the TRIPs agreement and the Biodiversity Convention (CBD) 203 is a result of the fact that the TRIPs agreement does not provide anything about the equitable sharing of benefits – coming out of innovations using germplasm resources – with the country of origin of such resources. The TRIPs agreement has to do with the protection of intellectual 198 See The Captain Hook Awards for Outstanding Achievements in Biopiracy, News Releases, Rural Advancement Foundation International (RAFI), May 17, 2000. 199 Art. 1, Resolution 8/83, Twenty-Second Session, FAO Conference, Nov. 5–23, 1983. 200 Resolution 4/89, Twenty-Fifth Session, FAO Conference, Nov. 11–29, 1989. 201 Resolution 3/91, Twenty-Sixth Session, FAO Conference, Nov. 9–27, 1991. 202 See also Raustiala, supra note 133, at 25. 203 Art. 16(1) and (3), CBD, supra note 196. P1: JZP 0521868122c09a Printer: Sheridan CUFX037/Louka 0 521 86812 2 August 16, 2006 8:41 Intellectual Property Rights and Trade 417 property rights and the potential abuse of such rights. But no article in the TRIPs agreement supports the redistribution of benefits connected with such rights. The TRIPs agreement does not recognize collective property rights for indigenous peoples’ innovations in plant resources or farmers’ rights. The discontent with the TRIPs approach to intellectual property rights over genetic resources is evident in the Doha Ministerial Declaration. The Doha Min- isterial Declaration instructs the TRIPs council to examine the relationship among the TRIPs agreement, the CBD, and the protection of traditional knowledge and folklore and other relevant developments presented by member states. 204 The TRIPs council is directed to receive guidance from the objectives and principles articles of the TRIPs agreement and to take into account fully the development dimension. 205 Given the protection of intellectual property rights over bioengineered living organisms, developing countries have claimed that in both biodiversity and biotechnology, the final product of legal protection is a living organism. If developed countries can grant intellectual property rights over genes, developing countries should be able to grant property rights over resources that would have disappeared without the input of indigenous peoples and farmers. From the perspective of the formal intellectual property regime (e.g., the TRIPs agreement), much of indigenous peoples’ and farmers’ knowledge has been viewed as public domain knowledge and, thus, freely accessible to everyone. Treating indigenous peoples’ knowledge as public domain knowledge legitimized the exploitation of such knowledge by outsiders. These outsiders used the knowledge “as an upstream input for later downstream innovations” that they then privatized through intellectual property rights. 206 In this respect, the CBD provides that the knowledge, innovations, and practices of indigenous and local communities can be used only with the approval of those communities and the benefits from use must be equitably shared. 207 Because intellectual property rights over natural genetic resources are difficult to establish and enforce, it has been proposed that a system of sui generis rights must be established. Such sui generis rights, under the name “traditional resource rights,” it is proposed, would constitute a framework into which the claims of indigenous groups could be integrated. 208 Such rights could be established for all resources in situ and ex situ that have been experimented with and have been singled out for use by indigenous peoples. Intellectual property protection for indigenous peoples’ traditional knowledge is being explored by the human rights regime since the beginning of the 1990s. The Draft UN Declaration on the Rights of Indigenous Peoples includes an article that provides for the right of indigenous peoples to the full ownership, control, and protection of their cultural and intellectual property. 209 Such property, according to 204 World Trade Organization, Doha Ministerial Declaration, Ministerial Conference, Fourth Session, Doha, WT/MIN(01)/DEC/1, Nov. 14, 2001. 205 Para. 19, id. 206 Helfer Human Rights, supra note 164, at 52. 207 See Chapter 7, Section 2.1.2.2. 208 Darrell A. Posey, Intellectual Property Rights and Just Compensation for Indigenous Peoples, 6 Anthro- pology Today 13 (1990). 209 Art. 29, Commission on Human Rights, Draft of the United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. E/CN.4/Sub.2/1994/2/Add.1 [hereinafter Draft Declaration]. P1: JZP 0521868122c09a Printer: Sheridan CUFX037/Louka 0 521 86812 2 August 16, 2006 8:41 418 Trade and Environment the declaration, must be subject to restitution if it has been taken without the free and informed consent of indigenous peoples and in violation of their laws, traditions and customs. 210 The Draft Principles and Guidelines for the Protection of the Heritage of Indige- nous Peoples 211 define heritage, inter alia,ascultural property of all kinds – scientific, agricultural, medicinal, biodiversity-related, and ecological knowledge, including innovations based on that knowledge. 212 National laws, for the protection of indigenous peoples’ heritage, should guarantee that indigenous peoples obtain full restitution and just compensation for the acquisition, documentation, or use of their heritage without proper authorization by them. 213 By the same token, third parties are denied the ability to obtain patent, copyright, or other legal protection for any component of indigenous peoples’ heritage unless they can document the free and informed consent of traditional owners to an arrangement for the sharing of ownership, control and benefits. 214 Thus, the Guidelines and the Draft Declaration attempt to ensure that indigenous knowledge is not free-access knowledge. These provisions are in conformity with the TRIPs agreement because they provide restrictions for access to traditional knowledge appreciating, thus, such knowledge as proprietary knowledge. At the same time, however, the protection of traditional knowledge in these instruments is schematic because no specific legal entities are designated that would benefit from legal protection. The absence of enforceable provisions for the protection of indigenous peoples’ knowledge is the weak element of human rights instruments. The first real confrontation between the human rights regime and the TRIPs agreement took place in the Sub–commission on the Promotion and Protection of Human Rights. The sub–commission adopted a resolution in 2000, 215 in which it challenged the TRIPs agreement as antithetical to the realization of economic, cultural, and social rights. The resolution noted that actual and potential conflicts exist between the implementation of the TRIPs agreement and the realization of economic, social, and cultural rights. The resolution emphasized the obstacles to the transfers of technology to developing countries and the impacts of TRIPs on the right to food through the patenting of plant varieties. It alluded to the phenomenon of biopiracy and the reduction of communities’ control over their own genetic resources and cultural values. The impacts of restrictions on access to pharmaceuticals and on the right to health also were underlined. The resolution gave the impetus for the adoption of a number of other soft law instruments underlining the incompatibility between the human rights regime and 210 Art. 12, id. 211 Sub–commission on the Promotion and Protection of Human Rights, Draft Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples, Decision 2000/07 [hereinafter Guidelines]. See also Report of the Seminar on the Draft Principles and Guidelines for the Protection of the Heritage of Indigenous People, Subcommission on the Promotion and Protection of Human Rights, Fifty-second session, Item 7 of the provisional agenda, UN Doc. E/CN.4./Sub.2/2000/26, June 19, 2000. 212 Guideline 13, Guidelines, id. 213 Guideline 23(b), id. 214 Guideline 23(c), id. 215 Sub–commission on the Promotion and Protection of Human Rights, Resolution 2000/7 on Intellectual Property Rights and Human Rights, Aug. 17, 2000. P1: JZP 0521868122c09a Printer: Sheridan CUFX037/Louka 0 521 86812 2 August 16, 2006 8:41 Intellectual Property Rights and Trade 419 the TRIPs Agreement. 216 The subcommission itself issued another resolution in 2001 in which it requested the UN Commissioner for Human Rights to seek an observer status in the ongoing review of the TRIPs agreement. The 2001 resolution asked the commissioner to investigate into whether the patent, as a legal instrument, was compatible with the protection of human rights and to conduct an analysis of the impact of the TRIPs agreement on the rights of indigenous peoples. The 2001 resolution encouraged all the special raporteurs on the right to food, education, and adequate housing to include in their reports a review of the implications of the TRIPs agreement for rights that fall under their mandate. 217 It remains to be seen how the evolution of the debate within the human rights regime will impact the evolution of the TRIPs agreement. Developing countries have adopted laws that establish collective rights for the knowledge of indigenous peoples. For instance, the Organization of African Unity (OAU) has drafted legislation that provides comprehensive sui generis rights, as an alternative to patents, to compensate local communities for developing plant varieties. Ecuador’s constitution recognizes collective intellectual property rights. The Andean nations – Bolivia, Columbia, Ecuador, Peru, and Venezuela – have enacted regional intellectual property laws that conform with the TRIPs. Other countries, such as Brazil and Costa Rica, have established rights for indigenous communities to protect their knowledge and resources. 218 4.3.5. TRIPs and Farmers’ Rights Farmers’ rights have been recognized by various international instruments. The 1989 Undertaking on Plant Genetic Resources recognizes, in both Annexes I and II, farmers’ rights 219 that are “vested in the international community, as a trustee for present and future generations of farmers,” so as to ensure full benefits to farmers and support for their contributions. 220 The recently adopted International Treaty on Plant Genetic Resources also clearly recognizes the rights of farmers 221 but leaves it up to national law to determine the breadth of those rights. 222 Overall, however, the modern approach to intellectual property rights cannot be well fitted to protect farmers’ rights. Intellectual property is fashioned as a discrete innovation, at a moment in time, by identifiable persons. Farmers’ rights involve 216 See Commission on Human Rights, Resolution 2001/33 on access to medication in the context of pandemics such as HIV/AIDS, April 20, 2001; Progress Report submitted by Mr. J. Oloka-Onyango and Ms. D. Udagama on globalization and its impact on the full enjoyment of human rights, UN Doc. E/CN.4/Sub.2/2001/10; Report of High Commissioner for Human Rights on the impact of TRIPS Agreement on Human Rights, UN Doc. E/CN.4/Sub.2/2001/13. 217 Sub–commission on the Promotion and Protection of Human Rights, Resolution 2001/21 on Intel- lectual Property Rights and Human Rights, Aug. 16, 2001. 218 Dawkins, supra note 104. 219 See Undertaking on Plant Genetic Resources, supra note 200, which recognizes the contributions of farmers to the improvement of plant genetic resources. 220 Id. 221 International Treaty on Plant Genetic Resources for Food and Agriculture, Nov. 3, 2001, available online at http://www.fao.org/ag/cgrfa/itpgr.htm. Article 9.1 provides that “Contracting Parties recognize the enormous contributions that the local and indigenous communities and farmers of all regions of the world . . . have made and will continue to make for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production throughout the world.” 222 Art. 9.2, id. P1: JZP 0521868122c09a Printer: Sheridan CUFX037/Louka 0 521 86812 2 August 16, 2006 8:41 420 Trade and Environment the protection of innovation that happens through the slow aggregation of novel approaches by many “unknown” members of a community. 223 Avariety of mechanisms have been proposed for the protection of farmers’ rights ranging from an international fund to market mechanisms or a mixture of mechanisms. 224 The implementation of such mechanisms, however, could encounter problems, for example: 225 • Va r ieties cultivated by farmers present more diversity in their gene pool than breeder varieties that are uniform and stable. Genetic techniques to identify landraces eligible for intellectual property protection could be costly and incon- clusive. • It would be difficult to identify the farmers to be compensated. There is no global institutional mechanism that represents the interests of farmers. Therefore, either an international association of farmers must be established or states could represent the interests of farmers. But again which farmers of which states must be compensated will become an issue. • The basis for the contributions to a fund that will compensate farmers could create significant conflict. 226 As mentioned in Chapter 7,amechanism to compensate farmers has been adopted under the Treaty on Plant Genetic Resources for Food and Agriculture 227 according to which companies must make payments to a trust account every time a patent removes germplasm from the public domain. This provision imposes, for the first time, a tax on companies that use and experiment with germplasm when such experimentation is fruitful. Many issues, however, remain unresolved, such as the level, form, and manner of payment. The governing body established under the treaty will eventually decide how the payments will be structured and may resolve to impose different levels of payment for different categories of recipients. 5. CONCLUSION Although one would expect a WTO dispute settlement procedure to always strike the balance in favor of trade liberalization, this has not been the case. The dispute settlement process has progressed cautiously since the first Tuna-Dolphin case to include more environmental considerations into the WTO decision-making process. It is remarkable, for instance, that the Appellate Body makes reference to concepts, such as sustainable development. In the 2001 Shrimp-Turtle decision, the Appellate 223 Raustiala, supra note 133, at 42. 224 Commission on Plant Genetic Resources, Sixth Session, Item 8 of the Provisional Agenda, Revision of the International Undertaking on Plant Genetic Resources, Analysis of Some Technical, Economic and Legal Aspects for Consideration in Stage II: Access to Plant Genetic Resources and Farmers’ Rights, CPGR-6/95/8 Supp. (CPGR-EX1/94/5 SUPP.), June 19–30, 1995. 225 Id. 226 It has been proposed that contributions could be based on the sales of improved varieties, the value added in agriculture, the gross domestic product, or the scale of a country’s contributions to the FAO or the UN. Id.at54. 227 See supra note 221. P1: JZP 0521868122c09a Printer: Sheridan CUFX037/Louka 0 521 86812 2 August 16, 2006 8:41 Conclusion 421 Body upheld a unilateral ban on trade based on environmental considerations after evidence was presented that the United States had engaged in sincere efforts to solve the issue multilaterally with no success. The WTO frequently points out that it has consistently upheld international standards that usually reflect the best practices of developed countries. Such standards, for instance, are included in the SPS agreement that embodies the food standards established by Codex Alimentarius–ajoint body of two UN specialized agencies, the WHO, and the FAO. Furthermore, the WTO allows for higher domestic standards, than the established international standards, if a state can prove, by conducting a valid risk assessment, that such standards are justified. The interpretation of the SPS agreement demonstrates that risk assessment based on sound scientific evidence could play a significant role in the future WTO decisions. A state that adopts measures prohibitory of free trade needs to engage in a credible risk assessment that would demonstrate, with some valid probability, that consumer protection is at stake, rather than the protection of a domestic industry. WTO emphasizes multilateral measures in resolving trade matters as they come into conflict with other legitimate state policies. But WTO has been viewing with suspicion a general resort to unilateralism for the support of national policies even when the national goal to be achieved seems legitimate. Nondiscriminatory unilateralism has been supported only when a country has engaged in good faith efforts to conclude a multilateral treaty that eventually failed. The TRIPs agreement is a curious development in the history of the WTO, as it does not address the liberalization of trade per se but the protection of intellectual property rights. The TRIPs agreement has encountered its first significant chal- lenge with regard to patents granted for pharmaceuticals. Countries have used the exceptions to the agreement and the principles and objectives clauses to support an interpretation of the agreement that facilitates an understanding of property rights as vehicles for the pursuit of a public good – here, public health. In the case of property rights over biotechnology inventions, countries have challenged the legitimacy (and morality) of declaring property rights over living organisms. In a self-contradictory manner, however, countries have asked for intellectual rights protection on germplasm resources found in nature that have been propagated by indigenous peoples and farmers so as to safeguard the knowledge of those groups and to certify that such knowledge is not free-access knowledge. Va r ious stakeholders have sought to shift intellectual property rights protection to other international organizations, such as the WIPO, the WHO, the Human Rights Commission, and the FAO. Whether such efforts would lead to the dissipation of theTRIPs agreement or its further expansion and amplification is hard to gauge at this time. Another possibility is that such forum shifting acts just as a temporary tension relief mechanism. The cases that the DSB has attempted to resolve and the challenges to the TRIPs agreement have given the WTO the opportunity to engage in introspection, so to speak. The WTO gauges the circumstances under which national policies, the pursuit of public good (in terms of environmental standards, SPS measures), and property rights justify a turn away from the pursuit of trade liberalization. The WTO seems to be struggling between two roles. One role has to do with execution of the responsibility of an international trade institution with the goal to support P1: JZP 0521868122c09a Printer: Sheridan CUFX037/Louka 0 521 86812 2 August 16, 2006 8:41 422 Trade and Environment free trade. The other role has do to with an assumption of a role of an arbitrator on issues that are trade-related but also touch the core of public policy making of the nation-state. There is no doubt that the WTO is involved in some important issues of international policymaking. Some argue that the WTO is not the institution to deal with the articulation of public policy because it is not a democratically elected institution and lacks overall legitimacy and transparency. 228 Lately, and to its credit, the WTO is becoming more open, transparent, and participatory. Public access to the WTO documentation has improved and many of the WTO decisions are available on the WTO Web site. NGOs can attend the plenary meetings of WTO and some 750 such organizations attended the plenary meeting of the WTO in Seattle. A procedure that could enhance transparency in the WTO is the recognition of amicus standing in the dispute settlement procedure. The enhancement of the NGO participation in the dispute settlement process, however, has been resisted by the new members of the WTO, largely developing countries. 229 Undoubtedly, the WTO today is one of the most authoritative international bod- ies. The WTO has intruded into many areas of national economic action. Because of its active participation in a variety of international matters, it has been sug- gested that the Appellate Body of the WTO could become the supreme constitutional/international adjudicative body. Such a transformation could be modeled after the transformation of the European Court of Justice (ECJ). The ECJ (which started basically as a trade court) has become the supreme constitutional body of the Euro- pean Union. Because of the effectiveness of the WTO, commentators have argued for extension of its jurisdictional reach to other issues including human rights. Despite this optimism, there are fundamental differences between the Appellate Body of the WTO and the ECJ, including the lack of direct effects (that is, decisions binding on nationals of states not only on states) and the teleological approach to interpretation of legislative provisions. As the EU matures, it would become even harder to fairly compare EU developments with international developments. In a recent study, commissioned by a consultative board put together by the WTO, the role of the WTO as an “international economic regulatory level of government” 230 has been proposed. It has been claimed that the support of the WTO by governments would help them regain the loss of sovereignty that they experience because of globalization. Sovereignty means that governments have meaningful control over their borders, have internal authority, policy autonomy, and are subject to nonintervention. State autonomy and independence are being challenged, however, in the age of globalization in which there are a significant number of market failures, externalities, competition problems, and asymmetries of information. 231 If countries are losing their capacity to regulate in a meaningful fashion at the domestic level, they 228 Robert Keohane & Joseph Nye, The Club Model of Multilateral Cooperation and the WTO: Problems of Democratic Legitimacy, Paper Presented at the Center for Business and Government at Harvard University ( June 2000). 229 The Future of the WTO: Addressing Institutional Challenges in the New Millennium (2005) (This report on the future of the WTO was commissioned by an independent consultative board put together by the Director-General of the WTO). 230 Id.at34. 231 Id.at33. P1: JZP 0521868122c09a Printer: Sheridan CUFX037/Louka 0 521 86812 2 August 16, 2006 8:41 Conclusion 423 can reclaim that possibility by putting together their resources at the multilateral level. Thus, the loss of control, which is becoming evident at the national or local level, is regained through multilateral efforts. 232 An encouraging trend in this direction is provided by the dispute settlement procedure of the WTO, which has been eval- uated as a positive development in the establishment of “rules-based international trade diplomacy.” The WTO dispute settlement procedures enhance the “security and predictability” of the international trade system 233 and, as a consequence, of the whole international order. 232 Id.at34. 233 Id.at49. P1: IBE 0521868122c10 Printer: Sheridan CUFX037/Louka 0 521 86812 2 August 16, 2006 8:45 10 Hazardous and Radioactive Wastes 1. STATE OF INTERNATIONAL WASTE TRADE Waste generation could be conceived a domestic problem that acquired global dimensions as countries started to export their wastes to other countries, especially developing countries. The exports of wastes from developed countries to developing countries that did not have waste regulations and infrastructure caused uproar in international circles, in the beginning of 1980s, and led to the adoption of instruments that have imposed regulatory controls or even have banned waste movements. Waste transfers to other countries and, especially, to developing countries, were motivated by the high costs of waste disposal in developed countries. Such high costs were due to the Not-In-My Backyard (NIMBY) attitude that inhibited the construction of new waste disposal facilities in many developed countries. Current trends show that waste generation is on the increase. 1 The biggest waste generators continue to be the United States and member states of the EU. The amount of wastes traded internationally is increasing steadily. 2 The main factor that has contributed to this increase in trade is the growth of transboundary waste movements destined for recovery among the EU countries. 3 Movements of wastes involving developing countries show large fluctuations over time. 4 The databases available, however, are still incomplete in terms of the data on waste generated and on waste traded. This is because not the same countries report annually on the amounts of wastes they generate and trade. Furthermore, there are still many differences in the national classifications of hazardous wastes. 5 The bulk of the data provided is based on legal, reported waste transfers. Illegal waste transfers are not included in the data unless an illegal waste shipment is appre- hended. 1 Global Trends in Generation and Transboundary Movements of Hazardous Wastes and other Wastes 1, Basel Convention Series/SBC No. 02/14, Nov. 2002. 2 Id. at 2. 3 Id. 4 Id. 5 Id. at 1. 424 [...]... 617, 628 ( 197 8) For other decisions of the Court and lower courts on this matter, see Louka, supra note 6, at 136– 39 Council Directive 91 /156/EEC of 18 March 199 1 amending Directive 75/442 on waste, OJ L 78/32, 26.03. 199 1 [hereinafter Framework Directive] Council Directive 91 /6 89/ EEC of 12 December 199 1 on hazardous waste, OJ L 377/20, 31.12. 199 1 [hereinafter Hazardous Waste Directive] Art 9( 1), Framework... place by 2010 In 199 9, the Department of Energy (DOE) issued a Draft Environmental Impact Assessment for the proposed repository in Yucca Mountain 110 111 112 113 114 115 116 117 118 42 U.S.C § 96 04 42 U.S.C § 96 22 United States Office of Technology Assessment (OTA), Coming Clean: Superfund Problems Can Be Solved 28– 29 ( 198 9) See 42 U.S.C 96 01(20)(A) 42 U.S.C 96 07(a)(1)–(4) See 42 U.S.C 96 01(D)(23)–(24)... and Reauthorization Act in 198 6 (SARA) Both these acts are referred to as “CERCLA” or as “CERCLA as amended by SARA.” See 31 U.S.C § 96 01 96 75 ( 198 6) 42 U.S.C § 690 2(b) 42 U.S.C.§ 692 5 42 U.S.C.§ 697 4(b) 42 U.S.C.§ 692 4(o) 42 U.S.C.§ 692 4(o)(2) 42 U.S.C § 692 8 42 U.S.C § 692 4(a) CERCLA, supra note 100 42 U.S.C § 96 11(a) 438 Hazardous and Radioactive Wastes the private responsible parties.110 Often the discovery... and a list of management practices and strategies A 199 2 resolution provides a preliminary system for radioactive waste classification.158 148 1 49 150 151 152 153 154 155 156 157 158 Art 4, id Art 1, id See arts 7 & 8, id See also Annex V and Annex IV, id Council Directive 199 9/31/EC of 26 April 199 9 on the landfill of waste, OJ L 182/1, 16.07. 199 9 Preamble (10), id Preamble (20), id Art 1(1), id See... group was established in 199 9 Another organization involved in nuclear waste management is the Nuclear Energy Agency of the Organization for Economic Co-operation and Development (NEA/OECD) as well as the International Commission on Radiological Protection The World Association of Nuclear Operators (WANO) plays an important role in radioactive waste management 92 93 94 95 96 97 98 Art 36, id Convention... African countries should agree on a common position to improve the Basel Convention See OAU Council of Ministers Res CM/Res 1 199 (XLIX) ( June 12, 198 9) Art 2(2), Bamako Convention, id Art 2(1)(d), id Fourth ACP-EEC Lom´ Convention, Dec 15, 198 9, reprinted in 29 ILM 8 09 ( 199 0) e Art 4(1), Bamako Convention, supra note 52 Art 12, id Art 4(3)(b), id Art 16, id Art 4(2), id Art 6(6), id Art 4(3)(d), id... a 198 6 directive See Council Directive 86/2 79/ EEC of 12 June 198 6 amending Directive 84/631/EEC on the supervision and control within the European Community of the transfrontier shipment of hazardous waste, OJ L 181/13, 04.07. 198 6 Council Regulation (EEC) No 2 59/ 93 of 1 Feb 199 3 on the supervision and control of shipments of waste within, into and out of the European Community, OJ L 30/1, 06.02. 199 3... February 199 7 on a Community strategy for waste management, OJ C 76/1, 11.03. 199 7, which invites the Commission to examine the possibility of simplifying the administrative procedures of Regulation (EEC) No 2 59/ 33 Council Directive 92 /3/Euratom of 3 February 199 2 on the supervision and control of shipments of radioactive waste between Member States and into and out of the Community, OJ L 35/24, 12.02. 199 2... action plan for the management of radioactive wastes in 198 0 This 198 0– 199 2 plan included provisions for a continuous analysis of the situation with regard to the management of radioactive wastes, consultation on the practices of sound radioactive waste management, and research and development The plan, which covers the period between 199 2 and 199 9, encourages states to cooperate in developing a common... satisfied Further amendments to the convention, however, have undermined such an interpretation 39 40 41 42 43 44 45 46 47 48 49 50 51 Art 6(8), id Art 8, id Art 9( 2), id Art 9( 3), id Art 9( 4), id Art 9( 1)(a)–(d), id Art 9( 1)(e), id Art 10, id Art 14(1), id Art 14(2), id Art 11, id Art 12, id Art 19, id International Instruments 431 Regional Instruments The Bamako Convention adopted by the OAU52 incorporates . Res. CM/Res. 1 199 (XLIX) ( June 12, 198 9). 53 Art. 2(2), Bamako Convention, id. 54 Art. 2(1)(d), id. 55 Fourth ACP-EEC Lom ´ e Convention, Dec. 15, 198 9, reprinted in 29 ILM 8 09 ( 199 0). 56 Art Conference, Nov. 5–23, 198 3. 200 Resolution 4/ 89, Twenty-Fifth Session, FAO Conference, Nov. 11– 29, 198 9. 201 Resolution 3 /91 , Twenty-Sixth Session, FAO Conference, Nov. 9 27, 199 1. 202 See also Raustiala,. Agreement, Dec. 17, 199 2, reprinted in 32 ILM 2 89 ( 199 3). 17 S. D. Myers, Inc., (“SDMI”) v. Government of Canada, Partial Award, Nov. 11, 2000 (NAFTA Arbi- tration Case). 18 Para. 92 , id. 19 Para. 162,

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