Issues in International Trade Law: Restricting Exports of Electronic Waste

Issues in International Trade Law: Restricting Exports of Electronic If declared a violation of the GATT, e-waste export restrictions could be.
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Electronic waste e-waste is a term that loosely refers to obsolete, broken, or irreparable electronic devices. Because e-waste is generated in high volumes in the United States and contains hazardous materials, it is a growing area of domestic concern. Currently, e-waste is essentially unregulated at the federal level and can be disposed of with common household garbage in municipal solid waste landfills or incinerators. Recently, momentum has developed for domestic legislation restricting U.

These restrictions could take many forms, including a partial or total ban on e-waste exports, an e-waste export licensing system, or a quota on e-waste This report is part of the collection entitled: It has been viewed 78 times. More information about this report can be viewed below. People and organizations associated with either the creation of this report or its content.

Serving as both a federal and a state depository library, the UNT Libraries Government Documents Department maintains millions of items in a variety of formats. Descriptive information to help identify this report. Follow the links below to find similar items on the Digital Library. These restrictions could take many forms, including a partial or total ban on e-waste exports, an e-waste export licensing system, or a quota on e-waste exports. This report looks at how such legislation could affect and work with prior US disposal laws.

The WTO rules bind all member states and the existence and binding nature of these rules implies that member states are obliged to take them into consideration in designing their trade policies, to ensure that such policies are in line with their WTO obligations. Member states are obliged to submit to WTO dispute settlement process relating to any challenge that their laws or practices are inconsistent with their WTO obligations, and they are bound by the decision reached.

Notwithstanding their obligations to submit to dispute settlement process as stated above, each WTO member state has a sovereign right to protect their environment as well as the health of their inhabitants. The WTO rules recognize the right of each member state to adopt legitimate policy measures aimed at protecting human health and environment within their territorial jurisdiction. Such measures could take the form of import restrictions and technical regulations, and requirements applicable to goods traded within their jurisdiction.

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Import restriction is a form of quantitative restriction and could take the form of express bans on the importation of certain goods into a country, imposition of import quotas, or embargoes on the issuance of import licenses. Reasons vary for decisions by states to restrict the importation of certain products into their territory. For instance, a state may impose import restriction on hazardous products which in its view pose a serious threat to human health and the environment. Technical regulations could also be adopted by states to address particular safety and environmental concerns regarding specific products.

Thus, technical regulations could take the form of a state requiring that a product meet certain minimal environmental standards before it could be legally imported into its territory.

Issues in International Trade Law: Restricting Exports of Electronic Waste | HeinOnline

By applying technical regulations, a state can ensure that only products that meet a defined regulatory standard are imported into its territory. While import restrictions and technical regulations could be used to pursue legitimate state policy, they could also create unnecessary obstacles to international trade. This paper takes the position that technical regulations requiring the use of a certification mark or label on imported UEEE to serve as physical evidence of compliance with the requirement for reusability, and import restrictions on commercial importation of UEEE not complying with the requirement could be conveniently used as trade measures within the context of the WTO framework to regulate the transboundary movement of e-waste.

Governments in developing countries have a legitimate responsibility to adopt policy measures to prevent or minimize the transboundary dumping of obsolete e-waste under the guise of international trade in UEEE. In doing so, they may choose to adopt measures aimed at preventing or minimizing the accumulation of obsolete e-waste in their country, which will inevitably entail import ban or restrictions. Alternatively, they may permit free trade in UEEE while developing remedial measures for dealing with the consequential accumulation of obsolete e-waste.

Such remedial measures may include but are not necessarily limited to the management and disposal of e-waste through landfilling, incineration or material recycling. In designing trade measures tailored along the framework of trade bans or restrictions, a WTO member state has an obligation to bring the measures within the context of WTO framework bearing in mind that generally, WTO rules frown upon measures that restrict trade.

A non-trade-restrictive policy if possible and feasible in dealing with the identified problem will be less contentious and may represent the best possible option. Hence, in developing a framework to regulate the transboundary harm arising from e-waste, the starting point should be an analysis of non-trade-restrictive remedial measures as well as the feasibility of such measure s within the context of developing countries.

If this analysis reveals that the measure s do not provide a viable solution to the problem, it then becomes imperative to extend the analysis to other trade restrictive measures within the confines of the WTO framework. Developing countries could adopt a non-trade-restrictive framework for the management of health and environmental impacts arising from transboundary movement of obsolete e-waste.

This could take the form of a framework permitting free trade in UEEE, coupled with a domestic process for the safe disposal and management of junk electronics or e-waste that will inevitably flow along with such used goods. The latter process will require state of the art incineration, landfilling or recycling technology necessary to curtail the health and environmental risks from such e-waste.

Whether such technologies exist in developing countries to make this framework viable will be discussed later. Health and environmental protections are legitimate public policy objectives which states are allowed to set and pursue by measures or policies they choose. Hence it is important to examine whether the non-trade-restrictive framework above which does not entail any obstacles to international trade is feasible in addressing the health and environmental impacts arising from transboundary movement of e-waste to developing countries.

Examination of these remedial measures will also require examination of the risks associated with the implementation of the measures as well as the availability of resources or technology for the implementation of the measures. The process of e-waste disposal via landfilling will require an organized e-waste collection system, transportation to and final disposal in designated landfills. Risks associated with landfilling as an e-waste management strategy have been highlighted in various research studies.

This risk exists even in developed countries with state-of-the-art landfilling facilities, and is exacerbated by the lack thereof in developing countries. In developing countries, therefore, e-waste is indiscriminately disposed of in open landfills and in stagnant water bodies, resulting in underground and fresh water contaminations.

Thus landfilling of e-waste in developing countries is not an effective measure to prevent or curtail the adverse health and environmental impacts arising from international trade in UEEE. The most common form of e-waste incineration found in developing countries is informal incineration in open landfills and dumpsites.

Accordingly, the incineration of e-waste results in large emissions of hazardous substances that may constitute threats to humans and the environment directly exposed to the emissions, as well as contributing to the global spread of such substances. E-waste recycling entails breaking down various components of electronic equipment, thus liberating valuable materials and reusing the same in the manufacturing process.

The recycling of e-waste in developing countries presents greater risks to human health and the environment as a result of exposure to large levels of fumes and dust containing hazardous substances. It also presents occupational hazards to workers involved in the processing of the waste.

For example, workers engaged in the informal dismantling of CRTs may be exposed to phosphor powder covering the inner surface of the front panel, barium oxide in the electron gun and lead present in the glass. Even formal recycling of e-waste still presents risks. This is evident in the process of collection and dismantling, mechanical shredding and separation, as well as pyrometallurgical and hydrometallurgical processing.

Of the three remedial measures discussed above, recycling seems to be the most environmentally-friendly. In essence, it is the best of the worst alternatives as it extracts the greatest environmental benefit from e-waste. E-waste recycling results in the conservation of natural resources by reducing the amount of virgin resources that are utilized in the production of new electronics.

These benefits cannot be ignored, notwithstanding the impact of recycling on human health and the environment especially in developing countries. While state-of-art recycling technologies might help in reducing but not eliminating these impacts, such advanced technologies are not readily available in the developing world.

I argue that material recycling, just like landfilling and incineration, is not currently an effective or feasible framework for management of e-waste in developing countries. It is also not currently a feasible framework for reducing risks to human health and the environment arising from accumulation of e-waste so as to justify free trade in UEEE in the region. However, assuming for the purpose of argument that landfilling, incineration and recycling are effective measures for the disposal and management of e-waste in developing countries, and that developing countries have the resources and capacity for environmentally sound management or disposal of obsolete e-waste via landfilling, incineration and recycling, an argument could still be made against a trade regime which permits transboundary movement of obsolete e-waste from Europe and North America to developing countries.

This argument is founded on the fact that it is contrary to the rules of international law to permit free trade that allows for transboundary movement of obsolete e-waste to developing countries for disposal or recycling. Obsolete e-waste as opposed to functional UEEE comes within the definition of hazardous waste in the Basel Convention. In the absence of any existing framework for effectively differentiating between the two, e-waste is now conveniently shipped to developing countries in the guise of UEEE. This is because the hazardous nature of e-waste makes it the subject matter of a much rigorous regulatory regime.

Transportation of obsolete e-waste across national borders for recycling or disposal come under the rules for transboundary movement of hazardous wastes set forth in the Basel Convention and the Basel Ban Amendment. One of the fundamental principles and objective of the Convention is that hazardous waste should be recycled or disposed of as close as possible to their source of generation. Additionally, the Basel Amendment bans transboundary movement of hazardous wastes from developed to developing countries.

Even in limited situations where the transboundary movement of hazardous waste is possible between developed countries , it must be in line with the provisions of the treaty which requires among other things prior informed consent of the receiving country. The facts presented above along with the thinking in international law evidenced in the Basel Conventions point towards the need for a rationale application of trade restraint in international trade in UEEE especially where such trade obviously has the tendency to provide a conduit for transboundary movement of obsolete e-waste to developing countries in violation of the Basel Convention.

Although the Basel framework bans the transboundary movement of e-waste to developing countries, the absence of any measure under the framework for differentiating between e-waste and functional UEEE is a major defect in the Basel framework that continues to sustain the problems associated with e-waste shipment to developing countries. The discussion of the remedial measures evident in the non-trade-restrictive framework above clearly shows that this framework does not adequately safeguard against the health and environmental impacts associated with international trade in UEEE in developing countries.

Hence it cannot form a sound basis for a sustainable framework for the management of the negative impacts arising from international trade in UEEE. The discussion so far has noted that a non-trade-restrictive, remedial measure involving landfilling, incineration or recycling of e-waste is not feasible in addressing the health and environmental impacts arising from transboundary movement of e-waste to developing countries. Hence it is necessary to examine whether a preventive, trade-restrictive measure modelled in line with WTO rules may be a more sustainable solution.

Going further, this paper will propose adopting a trade-restrictive framework in the form of a technical regulation and import ban as preventive measures for dealing with the problem. The paper will therefore examine the feasibility for the adoption of a compulsory certification and labelling system as well as a prohibition on commercial importation of used electrical and electronic devices not complying with the said certification and labelling system.

The first aspect of the proposed framework will require the development of an international certification system for UEEE. The proposed certification system which is non-existent in the Basel Convention framework will serve to set a standard which UEEE must comply with before it can be fit for export to developing countries. The certification framework could be developed building on the e-stewards certification system.

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The e-stewards certification is awarded to electronic recyclers that comply with the highest environmental standards with respect to recycling, refurbishing, processing and the disposal of such equipment. The e-stewards certification process provides a high level of assurance that e-stewards certified recyclers and exporters consistently adhere to set standards. It precludes a certified recycler from exporting e-waste to developing countries. Only UEEE which has been tested and is shown to be fully functional may be exported to developing countries.

This element of the e-stewards certification is very important as it serves to differentiate between functional UEEE and junk e-waste which contributes to adverse health and environmental impact in the region. A framework that can be used to adequately restrict the transboundary flow of obsolete e-waste to developing countries can be developed building on the e-stewards certification system. The current e-stewards certification mechanism can be further developed to incorporate the use of a product certification mark or label which can be affixed to UEEE to serve as a physical evidence of compliance with set criteria.

The development of such certification systems by environmental NGOs or certification bodies in developed countries should be accompanied by a regulatory regime in developing countries which, among others, requires compliance with a certification and labelling mark as a condition for import eligibility for UEEE.

The use of certification labels in the electronics industry is not new. Over the years, regulatory and voluntary standards has been designed and applied on various consumer products including electronic products. Manufacturers are required to certify their products as complying with the set standards before placing them for sale in the EU market.

Compliance with the Directives in some cases is required to be evidenced by a design mark in the product e. Non-compliance with the Directives will result in the products being ineligible for sale in the EU. It is argued here that the idea behind certification scheme and label can be applied in developing a certification framework for regulating the transboundary flow of e-waste into developing countries.

To reduce the transboundary movement of e-waste to developing countries in the guise of UEEE export, such a certification system should be developed with the objective of distinguishing functional used electronics meant for resale from obsolete e-waste devices transported for dumping which in essence constitutes a health and environmental hazard. Electronic products that meet the criteria for reuse and functionality could be identified by a certification mark or label, while those that fail to meet that criteria and hence e-waste should be ineligible for importation into the territory of the applicable developing country.

To be viable, a certification and labelling scheme must be designed to conform to the provisions of WTO Agreements otherwise they may invoke WTO dispute resolution mechanisms. Hence it is important at this stage to consider the relevant WTO agreements and their jurisprudence in relation to the applicability of certification schemes and marks in international trade. Within the context of WTO Agreements, the various labelling schemes available in international trade can be classified into two broad categories — mandatory or voluntary.

A mandatory scheme is usually mandated by law or a regulatory instrument and enforced by regulatory mechanism. Such information disclosure has the dual effect of enabling the consumer to make an informed purchasing decision while at the same time providing incentive for manufacturers to improve their products to achieve higher environmental standards.

The possible technical barriers to trade covered by the TBT Agreement include technical regulations and standards. While in the case of technical regulations compliance is mandatory, this is not the case with regards to standards. However, in both cases, the document may include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.

These basic conditions are further discussed below. While the TBT Agreement requires that a technical regulation must relate to an identifiable product or group of products , this does not necessarily imply that the product or group of products must be expressly identified in the document containing the measure. To better comprehend this definition, it is necessary to examine the ordinary meaning of the word characteristics.

Thus, in the case of technical regulation, marking or labelling requirements refers to a set of criteria or conditions that must be fulfilled before a mark or label can be applied or used, or before the product can be marketable. The later part of Annex 1. In this sense, the subject matter of marking or labelling requirements must be confined to at least one of these items. Technically, this was sufficient for the Panel to rule that the measure falls within the scope of the second part of Annex 1.

Hence while the label is applied on the final product, the condition for the use of the label is complied with during the harvesting process for the tuna products. It might be safe then to state that the technical regulation should apply to the product and the process or production method where a trade measure requires a particular process or production method be followed in the processing of a product, and compliance with the said method is mandatory in other for the product to be fit to bear a mark or label which is essential for marketing the product.

The mere fact that a trade measure incorporates this requirement does not imply that compliance is mandatory unless expressed or implied from the document. It must be evident that the document in which the trade measure is contained has the effect of regulating in a legally binding way the use or non-use of the mark or label. It must be able to impose or prescribe in a legally binding fashion that a product or group of products must possess certain marking or labels.

Where the document prescribes compulsory use of a label, it may also go further to state that the label may not be used unless the prescribed conditions are met. The framework proposed in this paper argues for the development of a certification scheme which entails the application of a certification mark or label on UEEE which has passed the test of functionality. Such a certification scheme could be developed by environmental NGOs or certification bodies in developed countries.

These countries often do not have safe recycling processes or facilities, and people process the toxic waste with their bare hands. The hazardous waste trade has disastrous effects upon the environment and natural ecosystems. Various studies explore how the concentrations of persistent organic pollutants have poisoned the areas surrounding the dump sites, killing numerous birds, fish, and other wildlife.

The hazardous waste trade has serious damaging effects upon the health of humans. People living in developing countries may be more vulnerable to the dangerous effects of the hazardous waste trade, and are particularly at risk from developing health problems. These toxic wastes are often disposed of in open landfills, burned in incinerators, or in other dangerous processes. Workers wear little to no protective gear when processing these toxic chemicals, and are exposed to these toxins through direct contact, inhalation, contact with soil and dust, as well as oral intake of contaminated locally produced food and drinking water.

There have been various international responses to the problems associated with the global waste trade and multiple attempts to regulate it for over thirty years. The hazardous waste trade has proven difficult to regulate as there is so much waste being traded, and laws are often difficult to enforce. Furthermore, there are often large loopholes in these international agreements that allow countries and corporations to dump hazardous wastes in dangerous ways.

The most notable attempt to regulate the hazardous waste trade has been the Basel Convention. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, usually known as the Basel Convention , is an international treaty that plays a crucial role in regulating the transnational movement of hazardous wastes. The Basel Convention was created in and attempts to regulate the hazardous waste trade, specifically to prevent the dumping of hazardous waste from more developed countries into less developed countries.

The Convention was opened for signatures on 22 March , and officially entered into force on 5 May Because the issue of the transnational hazardous waste trade crosses many borders and affects many nations, it has been important to have a multinational, multilateral organization presiding over these affairs. The members of ENFORCE include one representative from each of the five United Nations regions that are parties to the Convention as well as five representatives from the Basel Convention regional and coordinating centers, based on equitable geographical representation.

In the Basel Convention passed the Protocol on Liability and Compensation that sought to improve regulatory measures and better protect people from hazardous waste. However, this Protocol remains unsigned by most countries, so its applicability is limited. In multiple developing nations in Africa met to discuss their dissatisfaction with the Basel Convention in regulating the dumping of hazardous waste into their countries, and designed a ban on the import of hazardous wastes into their countries called the Bamako Convention.

Therefore, the application of the Bamako Convention was very limited. Some of the problems with these international agreements include continued illegal shipments and unclear definitions of terms. Another issue with the Basel Convention and other international agreements to regulate the waste trade is the difficulty of establishing clear, uniform definitions regarding wastes. These overly broad and ambiguous definitions cause problems with the international agreements, as different parties interpret the language of the agreements differently and thus act accordingly.

From Wikipedia, the free encyclopedia. Transboundary Toxic E-Waste Flow: Environmental Injustice through Neo-ecological Imperialism. Erasmus U Rotterdam, International Institute of Social Studies, n. Slow Violence and the Environmentalism of the Poor. Mexico Free Trade Agreement. An International Quarterly 6. An Interview With Henry A. A Call for Socialism?

The Socialist Party of Great Britain, n. Women, Culture, Nature , pages 58—