Invasive Alien Species and the Protection of Biodiversity: The Role of Quarantine Laws in Resolving Inadequacies in the International Legal Regime

S. Riley
2005 Journal of environmental law  
The problem of invasive alien species (IAS) is recognized as the second most serious threat to loss of biodiversity after habitat destruction. It is a problem largely created by humans as they transport and introduce species, deliberately and accidentally, from one part of the globe to another. The pressures exerted on biodiversity by international trade are one of the most serious aspects of the IAS problem. Although states are under obligations in international environmental law to prevent
more » ... entry of, and control, those alien species that threaten biodiversity, to date state practice has often been found wanting. In particular, quarantine regulation, which can be a state's first line of defence against IAS, is mainly used by states to protect their farming and agricultural product sectors rather than biodiversity at large. The reasons for this include lack of domestic resources and lack of guidance at the international level. However, even if states were to expand the purview of quarantine, the question arises whether they would be able to use quarantine regulation to protect biodiversity from IAS while simultaneously fulfilling their international trade law obligations. This study seeks to answer this question by examining international environmental law and international trade law in their application to quarantine regulation. In doing so, the study identifies many areas of conflict. The different policies that underpin environmental and trade regimes mean that environmental concepts, such as the precautionary principle and the ecosystem approach, are difficult to apply within the international trade law regime. A way of achieving a more harmonized international response to the problem of IAS is suggested by incorporating environmental considerations into the international standards used by states to design and implement domestic quarantine measures. To facilitate the practical implementation of international standards the study further recommends appropriate financial and institutional capacity building mechanisms. from the IMO secretariat and to Ricardo Guillermo Muñoz Ossandon of the FAO David Lubin Memorial Library for assistance in retrieving information and documents. iii To Mrs Lazar and Miss Ruprecht, two teachers extraordinaire and Frank, my loving husband and partner. iv TABLE OF CONTENTS ABSTRACT (i) ACKNOWLEDGMENTS (ii) DEDICATION (iii) TABLE OF CONTENTS (iv) LIST OF ABBREVIATIONS (xiv) INTRODUCTION 1 CHAPTER 1 THE PROBLEM OF INVASIVE ALIEN SPECIES 1.0 INTRODUCTION 19 1.1 DEFINING "INVASIVE ALIEN SPECIES" 21 1.1.1 An Abundance of Terminology 21 1.1.2 The Meaning of "Alien" 25 1.1.3 The Meaning of "Invasive" 31 1.2 METHODS AND MEANS OF INTRODUCING IAS 39 1.2.1 Deliberate vs Accidental Introductions 40 1.2.2 Pathways and Vectors of Introduction for Invasive Alien Species 44 1.3 THE CHALLENGE OF REGULATING IAS 50 1.3.1 Invasive Alien Species or Useful Resource? 50 1.3.2 The Problem of Borders 52 1.3.3 Evaluating the Existence of a 'Threat' 55 v 1.3.4 Detecting and Intercepting Introductions 1.3.5 Prevention vs Cure 1.3.6 The Cost of Prediction, Detection and Eradication 1.4 CONCLUSION CHAPTER 2 INVASIVE ALIEN SPECIES AND INTERNATIONAL ENVIRONMENTAL LAW 2.0 INTRODUCTION 2.1 INTERNATIONAL LAW AND THE OBLIGATION TO PROTECT BIODIVERSITY 2.1.1 What is Biodiversity? 71 2.1.2 Rationale for Protection of Biodiversity 2.1.3 Historical Development of International Law and Biodiversity 2.1.4 Current International Law and Biodiversity 2.2 INTERNATIONAL LAW AND THE PROTECTION OF BIODIVERSITY FROM INVASIVE ALIEN SPECIES 2.2.1 Customary International Law and Invasive Alien Species 2.2.2 Historical Development of the Obligation to Protect Biodiversity Against IAS 2.2.3 Sustainable Use of Biodiversity and IAS 2.2.4 IAS in Regional, Species-Specific and Global Treaties 3.2.1 Quarantine and Domestic Law 3.2.2 Quarantine and International Law vii 3.2.3 Quarantine, Harmonization of Measures and Cooperation 3.3 THE CURRENT INTERNATIONAL QUARANTINE REGIME 3.3.1 The 1997 IPPC 3.3.2 The OIE 3.3.3 Commonalities in the 1997 IPPC and OIE 3.3.4 The Essential Elements of Quarantine 3.4 QUARANTINE AND THE PROTECTION OF BIODIVERSITY FROM IAS 3.4.1 The Current International Quarantine Regimes and the Protection of Biodiversity from IAS 3.4.2 State Practice in Quarantine Regulation for the Protection of Biodiversity from IAS 3.4.2.1 Trend one: the focus on economic Interests 3.4.2.2 Trend two: lack of legal and institutional mechanisms 3.4.2.3 Trend three: partial implementation of the continuum of quarantine 3.4.2.4 Trend four: the need for international collaboration and cooperation 3.5 THE AUSTRALIAN QUARANTINE REGIME -A CASE STUDY 3.5.1 The Origins and Institutional Basis of Quarantine Regulation in Australia 3.5.2 The Legislative Base of Quarantine Regulation in Australia: The Quarantine Act 1908 3.5.3 Biosecurity Australia and Risk Analysis viii 3.5.4 AQIS and Operational Matters -Detecting and Intercepting Unauthorized Introductions 3.6 THE LIMITS OF QUARANTINE IN PROTECTING BIODIVERSITY FROM IAS 3.7 CONCLUSION CHAPTER 4 INTERNATIONAL TRADE LAW and INVASIVE ALIEN SPECIES 4.0 INTRODUCTION 4.1 THE WTO 4.2 GATT 4.2.1 IAS and Articles I, III and XI of GATT 4.2.2 IAS and Article XX GATT Table 9 Summary Of Decisions On Articles XX(b) & XX(g) GATT 4.3 THE AGREEMENT ON THE APPLICATION OF SANITARY AND PHYTOSANITARY MEASURES 4.3.1 Background to the Introduction of the Agreement on the Application of Sanitary and Phytosanitary Measures 4.3.2 Overview of the Agreement on the Application of Sanitary and Phytosanitary Measures 4.3.3 The Relationship Between the Agreement on the Application of Sanitary and Phytosanitary Measures and GATT Article XX 4.3.4 The Meaning of an SPS Measure 4.3.5 The Appropriate Level of Protection ix Table 10 Relationship of the ALOP to Level of Risk and Future Harm 4.3.6 Limitations to the Setting of an Appropriate Level of Protection 4.3.7 Limitations on Design and Implementation of SPS Measures 4.3.8 International Standards Figure 1 How the SPSA Operates 4.3.9 Risk Assessment 4.3.10 Discriminatory, Unnecessary or Disguised Trade Restraints 4.4 CONCLUSION CHAPTER 5 QUARANTINE, TRADE AND INVASIVE ALIEN SPECIES
doi:10.1093/jel/eqi028 fatcat:4p6hiphbaffhniftmxfhq4236e