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Tuesday, March 6, 2012

Issues in International Trade Law: Restricting Exports of Electronic Waste

Emily C. Barbour
Legislative Attorney

Electronic waste (e-waste) is a term that loosely refers to obsolete, broken, or irreparable electronic devices like televisions, computer central processing units (CPUs), computer monitors, laptops, printers, scanners, and associated wiring. Because e-waste is generated in high volumes in the United States and contains hazardous materials like lead, mercury, and chromium, 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. However, the international trade in e-waste is subject to the international agreements governing the hazardous waste trade. The United States is a party to several of these agreements, but it is not a party to the largest multilateral agreement in this field: the Basel Convention.

Although it is difficult to know exactly how much e-waste is exported from the United States, developing countries in Asia or Africa appear to be active importers of it. Many of these countries lack, or do not enforce, labor or environmental laws that would mitigate or prevent the harms to human and environmental health that are associated with e-waste processing. The result is that some overseas e-waste recycling operations may pose a significant risk to human and environmental well-being.

Recently, momentum has developed for domestic legislation restricting U.S. e-waste exports. 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. However, these restrictions may be difficult to reconcile with the General Agreement on Tariffs and Trade (GATT), one of the World Trade Organization (WTO) Agreements, and could be susceptible to challenge before a WTO panel.

In particular, e-waste export restrictions may be deemed inconsistent with Articles XI:1, XIII:1, and I:1 of the GATT. If declared a violation of the GATT, e-waste export restrictions could be justified under Article XX of the GATT if they (1) fit under one of the exceptions listed in paragraphs (a) to (j) of Article XX of the GATT and (2) satisfy the requirements imposed by the Article XX chapeau. It would be difficult, however, for U.S. export restrictions on e-waste to meet this standard for justification if they are imposed without serious U.S. engagement in international negotiations on the hazardous waste trade or without the concurrent operation of comparable restrictions on domestic e-waste production.

Date of Report: February 24, 2012
Number of Pages: 21
Order Number: R42373
Price: $29.95

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