US and compliance with MEAs

Legal assistance paper

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Date produced: 01/11/2012

What is the analysis of the United States “ratification packages” of the following MEA’s: the 1982 Law of the Sea Convention, 2001 Stockholm Convention on POPs, and the Basel Convention and associated PIC Convention? For each example, please explain whether:

(1) substantive compliance requires no domestic legislation to be enacted (if for example, the international agreement is (a) a framework agreement requiring little or no domestic transposition, and/or (b) codifies existing customary international law);

(2) substantive compliance is achieved as existing U.S. domestic legislation already enacted covers the provisions of the MEA; or

(3) substantive compliance required passing domestic legislation. If there is an indication as to the extent to which new domestic legislation was in fact spurred by the international agreement, please say so, but this is not intended to be an independent research priority.

Summary:

Based on our analysis of whether, and how, the U.S. substantively complies with each of these MEAs which it has not ratified, we would categorize the conventions as follows:

• U.N. Convention on the Law of the Sea– Category (1) (no domestic legislation required);

• Stockholm Convention on POPs – Category (2) (domestic legislation enacted prior to treaty);

• Basel Convention – Category (2) (domestic legislation enacted prior to treaty);

• Rotterdam Convention on PIC – Category (2) (domestic legislation enacted prior to treaty).

However, these categorizations are only generalizations. Each treaty creates obligations which do not fit into the categorization given above, either because the U.S. does not currently comply with the obligation, or because compliance was achieved through a different means.

Convention on the Law of the Sea:

The 1982 U.N. Convention on the Law of the Sea (UNCLOS) is unique among these four treaties, as many of its provisions codify customary international law and do not require domestic legislation in order to be implemented. In addition, some treaty provisions were enacted in the U.S. through executive order by the President, rather than legislation. A notable example of this is that U.S. jurisdiction over its Exclusive Economic Zone, which extends 200 nautical miles from the coast (in accordance with UNCLOS), was established by President Reagan without the need for domestic legislation.

However, some provisions of UNCLOS do require domestic legislation to be enacted (for example, in relation to the management of fisheries). Generally, the legislation necessary to comply with these obligations was in place prior to the treaty being finalized.

Stockholm, Basel and Rotterdam Conventions:

Substantive compliance with the Stockholm Convention, the Basel Convention and the Rotterdam Convention on PIC was achieved through U.S. domestic legislation, which had already been enacted at the time at which each Convention was entered into.

However, while the U.S. has generally complied with the substantive obligations of each of these three treaties since the time at which they were entered into, in each case the Department of State believes that implementing legislation would be necessary before ratification to ensure full compliance with the treaty obligations. Implementing legislation has not yet been passed for any of these three Conventions.

The need for further implementing legislation is particularly clear in relation to the Basel Convention. The Senate consented to ratification of the Convention in 1992, but it has not yet been ratified because domestic legislation is required to ensure that the U.S. is in full compliance. For example, the Basel Convention creates an obligation to prevent export of hazardous waste if it is believed that it will not be managed in an environmentally safe manner. Under U.S. domestic law, the EPA does not have the authority to prevent waste export on this basis (however, in practice, this is of limited importance as U.S. exports of hazardous waste are very small and are generally carried out in accordance with bilateral agreements).

Advice:

We have analysed reports prepared by the U.S. Department of State, as well as by relevant committees of the U.S. Congress and the Congressional Research Service, along with proposed implementing legislation (where available) for each of the four identified MEAs. Set out below are the details of whether the U.S. substantively complies with the central obligations of each agreement, and if so, whether that compliance was achieved without legislation, through existing legislation or with legislation enacted subsequent to the treaty.

The UN Convention on the Law of the Sea (UNCLOS):

UNCLOS was agreed upon in 1982 after almost a decade of negotiations. It is a comprehensive treaty covering a wide range of issues relating to marine resources and use of the seas. Issues covered by the treaty include navigational rights, territorial sea limits, exclusive economic zones and fishing rights, legal status of resources on the seabed, passage of ships through narrow straits and conservation and management of living marine resources and the marine environment.

Many of the provisions of UNCLOS reflect customary international law, or are rules which by their nature do not require domestic legislation in order to be implemented. For example, delineating the maritime boundaries between countries or protecting the right to navigation or over-flight on the high seas (which are outside of national jurisdiction), are matters of international law which do not generally require domestic implementing legislation. Further, the establishment of an Exclusive Economic Zone (EEZ) covering 200 nautical miles from the baseline of the U.S. territorial sea was done by President Reagan in 1983 through a Presidential Proclamation, and did not require legislative action or changes to U.S. domestic law.

In 1983 President Reagan established a policy of compliance with all provisions of UNCLOS except those relating to exploitation of minerals in the deep sea bed (Part XI of UNCLOS). To the extent that compliance with UNCLOS required domestic legislation, much of that legislation was already in place in 1982. The management of U.S. fisheries, encompassing 200 nautical miles from the coast, was already provided for under the Fishery Conservation and Management Act of 1976. The signatories to UNCLOS negotiated a second treaty which was agreed to in 1994, the Agreement on the implementation of Part XI of UNCLOS, to address the concerns of the U.S. and other nations with the deep sea-bed mining regime. The authority necessary to implement the obligations of the U.S. under that Agreement on Part XI was already in place under the Deep Seabed Hard Mineral Resources Act of 1980.

The view of the U.S. Department of State is that further implementing legislation would not be necessary in order for the U.S. to ratify the Convention. The one area in which implementing legislation would be necessary for the U.S. to be fully in compliance is to ensure that decisions of the dispute settlement body established under UNCLOS in relation to use of the deep sea-bed, the Sea-bed Disputes Chamber of the International Tribunal on the Law of the Sea, were enforceable. However this is a minor part of the overall scheme of UNCLOS, particularly given that the Chamber has not yet issued any binding decisions (and any such decisions are unlikely in the short-term, given that deep-sea bed mining has not yet been widely commercialized).

The Stockholm Convention on Persistent Organic Pollutants (POPs):

The purpose of the Stockholm Convention is to safeguard human health and the environment from highly harmful organic chemicals such as polychlorinated biphenyls (PCBs), dioxins and dichlorodiphenyl trichloroethane (DDT), which persist in the environment and affect the well-being of humans and wildlife. The Convention requires parties to eliminate and/or reduce the production, use and trade of these and other persistent organic pollutants (POPs).

At the time that the Stockholm Convention was entered into in 2001, nearly all of the substantive obligations could have been met by the U.S. through EPA actions under existing legislative authority.

The Stockholm Convention initially targeted twelve POPs, none of which are now used or manufactured in the U.S. These so-called “dirty-dozen” POPs are generally subject to stringent regulation under the Toxic Substances Control Act (TSCA) in the case of industrial chemicals or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in the case of pesticides. The EPA had used its regulatory authority under TSCA and FIFRA to restrict these substances well before the Stockholm Convention was completed in 2001 (most of these substances were restricted during the 1970s or 1980s). In addition to TSCA and FIFRA, many POPs are subject to regulation as hazardous air pollutants under the Clean Air Act, or as priority toxic pollutants under the Clean Water Act. Industry has also taken voluntary action to reduce the prevalence of these POPs.

However, the U.S. Department of State noted that some legislative amendments would be required in order for the U.S. to fully implement the Convention. While these changes are of limited practical significance, given that the POPs regulated under the Stockholm Convention are generally no longer produced or used in the U.S., to fully comply with the treaty legislation would be required to:

• Absolutely prohibit the production, use, import and export of intentionally produced POPs in accordance with Article 3.1 of the Stockholm Convention, with only limited exceptions as allowed under the Convention (for example, DDT may be used for public health measures). While regulations in the U.S. currently strictly limit or outright ban the production and use of the original POPs covered by the Stockholm Convention, there is no legislation which would prevent these substances being registered for sale or distribution in the U.S. in the future (with the exception of PCBs, the manufacture, use and distribution of which are specifically banned under TSCA);

• Provide for timely regulation of any chemicals added to the POPs regime established by the Stockholm Convention (through amendment of the Convention). This issue is increasing in importance as several POPs were added to the Stockholm Convention regime in 2009, and Endosulfan was added in 2011. While most of these chemicals that have been added to the POPs regime are already regulated under FIFRA and / or TSCA, there are several other chemicals that are currently being considered for listing under the Stockholm Convention. Some of these chemicals, such as Pentachlorophenol and certain short-chained chlorinated paraffins, continue to be manufactured and / or used in the U.S.

Since 2002, several different bills have been introduced to the U.S. Congress that would provide these additional legislative authorities that are necessary to fully implement the Stockholm Convention, along with the Rotterdam Convention and other related international laws. To date, none of these bills have been enacted, although one is currently pending before Congress (the Safe Chemicals Act of 2011 (S. 847)).

The Basel Convention on Transboundary Movements of Hazardous Wastes:

The Basel Convention establishes a notice and consent process to govern the import and export of hazardous wastes. It also prohibits the movement of hazardous wastes if there is reason to believe that they will not be handled in an environmentally sound manner.

To the extent that the U.S. substantively complies with the requirements of the Basel Convention, the necessary legislation was already in place prior to the treaty being signed in March 1989. Importantly, the U.S. Senate consented to the ratification of this treaty in 1992, but ratification has not actually occurred as legislation is needed “to provide the necessary statutory authority to implement its requirements.”

To take an example of where the U.S. complies with the Basel Convention, the Resource Conservation and Recovery Act (RCRA) does not allow export of hazardous waste unless the importing country has given its consent, and stringent procedural requirements in relation to labelling, packaging and shipping of hazardous are imposed. Similarly, once hazardous waste is imported into the U.S., it must be stored, treated or disposed of in accordance with the strict standards imposed under RCRA. This would fulfil the requirements imposed on importers under the Basel Convention to handle waste in an appropriate manner.

The U.S. domestic legislation and regulations imposing these requirements were enacted before 1989. RCRA itself became law in 1976. The specific rules relating to the import and export of hazardous waste are set out in § 3017 of RCRA and in regulations codified in 40 C.F.R. Part 262, Subparts E, F and H. Section 3017 of RCRA was adopted in 1984, as an amendment to the original statute, and final regulations for subparts E and F of 40 C.F.R. Part 262 were promulgated in 1986. Some rules relating to import and export of waste were enacted after 1989, such as subpart H of 40 C.F.R. Part 262, which regulates export to OECD countries for recycling and was adopted in 1996.

However, there are key elements of the Basel Convention which were not at the time (and have not subsequently been) incorporated into U.S. domestic law:

• The relevant requirements for export and import of wastes under RCRA apply only to hazardous waste as defined in that Act, and do not cover the movement of some categories of waste which are regulated by the Basel Convention, such as household wastes and incinerator ash (under RCRA incinerator ash may be a classified as a hazardous waste, if it exhibits certain characteristics, but it is not automatically deemed to be hazardous).

• RCRA § 3017 and the regulations under it require notice of export to be given to the EPA, and for the government of the country receiving the waste to consent to its importation (consent must also be obtained from any transit countries). While this gives the EPA the authority to impose notice and consent requirements on exports, there is no authority under RCRA for the EPA to prohibit waste shipments if they have reason to believe that the wastes will not be handled in an environmentally sound manner, as required under Article 4, Paragraph 2(e) of the Basel Convention.

• The Basel Convention requires parties to ensure that any wastes that are illegally exported are taken back by the generator or exporter, or if necessary, the party must itself take back the waste and return it to its territory (unless return of the waste is impractical, in which case the party must arrange for environmentally sound disposal). There is no legislation in the U.S. which gives the EPA (or another government body) the authority to do this.

In practice, however, the failure to incorporate these elements of the Basel Convention into U.S. domestic legislation is of limited importance. Exports of hazardous waste from the U.S. are very low, with the EPA estimating that less than 1% of the hazardous waste regulated under RCRA was exported from the U.S. in 1995. The vast majority of exported waste is transported to Canada or Mexico, in accordance with bilateral agreements with those countries, or to OECD countries in accordance with the OECD Decision on the Control of Transfrontier Movements of Wastes Destined for Recovery Operations. As these bilateral and multilateral instruments contain similar requirements for hazardous waste management as those which apply under the Basel Convention, it is likely that waste exported in accordance with those agreements will be managed in an environmentally sound manner. The number of shipments of hazardous waste from the U.S. to non-OECD countries is extremely limited.

These bilateral and multilateral agreements also ensure that hazardous waste can be exported to the U.S. by parties to the Basel Convention. While the Basel Convention generally prohibits the transport of waste to countries which are not party to the Convention (Article 4, Paragraph 5), an exception is made for exports / imports which are subject to a bilateral or multilateral agreement which provides for management of waste which is “not less environmentally sound” than that provided for under the Basel Convention (Article 11).

The Rotterdam Convention on Prior Informed Consent (PIC):

The Rotterdam Convention aims to give governments the information they require to make informed decisions about risks of importing certain chemicals and pesticides. Once a chemical is subject to the Convention, a “decision guidance document” is circulated to all Parties (Article 7). Each party then prepares a response, which states whether they will allow import, or if they will not allow import or only allow it subject to conditions (Article 10). Other parties are then obligated to ensure that exporters within their jurisdictions comply with these decisions (Article 11). There are currently 39 chemicals which are subject to this PIC procedure under the Rotterdam Convention.

The Rotterdam Convention was finalized in 1998, and at that time, the U.S. could have met most of its obligations under the agreement through existing legislation. The Rotterdam Convention built its PIC procedure on an earlier, voluntary international process in which the U.S. had actively participated. That voluntary procedure had covered 27 of the chemicals which are now subject to the Rotterdam Convention.

A central obligation under the Rotterdam Convention is to ensure that exporters do not transport chemicals to countries which have not consented to their importation (Article 11). The U.S. Department of State’s view is that this article is similar to the requirements of U.S. law that were in force at the time at which the treaty was entered into, which oblige exporters to comply with the directions of importers. In particular, the EPA has some authority to govern export of hazardous chemicals under TSCA, for the category of industrial chemicals, and FIFRA, for the category of pesticides. In order to export chemicals covered by FIFRA which are not authorized for use in the U.S., the consent of the importing country must be obtained along with a written statement acknowledging the status of the chemical in the U.S. (FIFRA, § 17 and regulations at 40 C.F.R. § 168.75). Under TSCA, importing nations must be notified of exports of certain chemicals (TSCA § 12).

However, similarly to the Stockholm Convention, while the U.S. already substantively complied with the Rotterdam Convention at the time of its negotiation, some legislative changes would be required to ensure full compliance with the treaty terms. In particular, legislation would be needed to clarify that the EPA has the authority to prohibit exports of all chemicals covered by the Rotterdam Convention, unless that export complies with the decision of the importing party to allow, not allow or allow subject to conditions the import of that chemical (currently the EPA only has authority over substances regulated by TSCA or FIFRA). Legislative changes may also be needed to meet some of the procedural requirements of the Convention, relating to notification of export and labelling requirements.