INVASIVE ALIEN SPECIES AND THE PROTECTION OF BIODIVERSITY: THE ROLE OF QUARANTINE LAWS IN RESOLVING INADEQUACIES IN THE INTERNATIONAL LEGAL REGIME A thesis submitted in fulfillment of the requirements for the degree of Doctor of Philosophy Sophie Riley 2008 ABSTRACT 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 the 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. i ACKNOWLEDGEMENTS Heartfelt thanks to my husband, Frank, for his support , encouragement and patience; to my supervisors, Professors Andrew Byrnes, Ross Buckley and Professor Rosemary Rayfuse for their guidance, help and insightful questions and comments; and to Kerrie Daley for her assistance. Thank you also to Eileen Kee from the IMO secretariat and to Ricardo Guillermo Muñoz Ossandon of the FAO David Lubin Memorial Library for assistance in retrieving information and documents. ii To Mrs Lazar and Miss Ruprecht, two teachers extraordinaire and Frank, my loving husband and partner. iii 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 iv 1.3.4 Detecting and Intercepting Introductions 62 1.3.5 Prevention vs Cure 64 1.3.6 The Cost of Prediction, Detection and Eradication 64 1.4 CONCLUSION 65 CHAPTER 2 INVASIVE ALIEN SPECIES AND INTERNATIONAL ENVIRONMENTAL LAW 2.0 INTRODUCTION 70 2.1 INTERNATIONAL LAW AND THE OBLIGATION TO PROTECT BIODIVERSITY 71 2.1.1 What is Biodiversity? 71 2.1.2 Rationale for Protection of Biodiversity 72 2.1.3 Historical Development of International Law and Biodiversity 73 2.1.4 Current International Law and Biodiversity 74 2.2 INTERNATIONAL LAW AND THE PROTECTION OF BIODIVERSITY FROM INVASIVE ALIEN SPECIES 79 2.2.1 Customary International Law and Invasive Alien Species 79 2.2.2 Historical Development of the Obligation to Protect Biodiversity Against IAS 80 2.2.3 Sustainable Use of Biodiversity and IAS 81 2.2.4 IAS in Regional, Species-Specific and Global Treaties 85 v 2.2.5 The Convention on Biological Diversity and IAS 88 2.2.6 The Cartagena Protocol 95 2.3 THE PRINCIPLES APPLICABLE TO THE PROTECTION OF BIODIVERSITY FROM IAS 102 2.4 STATE PRACTICE IN THE PROTECTION OF BIODIVERSITY FROM IAS PURSUANT TO THE CONVENTION ON BIOLOGICAL DIVERSITY 104 Table 1 Implementation of the CBD Guiding Principles 104 Table 2 Prevention, Eradication and Control of IAS 106 Table 3 Sectoral Cooperation 112 Table 4 Identification and Tracking of IAS 113 Table 5 Assessment of Risks Posed by IAS 114 Table 6 The Ecosystem Approach 116 Table 7 The Precautionary Principle 117 Table 8 Financial, Human and Technical Resources 118 2.5 CONCLUSION CHAPTER 3 QUARANTINE AND INVASIVE ALIEN SPECIES 3.0 INTRODUCTION 124 3.1 THE MEANING OF “QUARANTINE” 125 3.2 THE DEVELOPMENT OF QUARANTINE AS A REGULATORY TOOL 128 3.2.1 Quarantine and Domestic Law 128 3.2.2 Quarantine and International Law 131 vi 3.2.3 Quarantine, Harmonization of Measures and Cooperation 136 3.3 THE CURRENT INTERNATIONAL QUARANTINE REGIME 140 3.3.1 The 1997 IPPC 141 3.3.2 The OIE 147 3.3.3 Commonalities in the 1997 IPPC and OIE 151 3.3.4 The Essential Elements of Quarantine 153 3.4 QUARANTINE AND THE PROTECTION OF BIODIVERSITY FROM IAS 156 3.4.1 The Current International Quarantine Regimes and the Protection of Biodiversity from IAS 156 3.4.2 State Practice in Quarantine Regulation for the Protection of Biodiversity from IAS 160 3.4.2.1 Trend one: the focus on economic Interests 160 3.4.2.2 Trend two: lack of legal and institutional mechanisms 161 3.4.2.3 Trend three: partial implementation of the continuum of quarantine 164 3.4.2.4 Trend four: the need for international collaboration and cooperation 165 3.5 THE AUSTRALIAN QUARANTINE REGIME – A CASE STUDY 167 3.5.1 The Origins and Institutional Basis of Quarantine Regulation in Australia 168 3.5.2 The Legislative Base of Quarantine Regulation in Australia: The Quarantine Act 1908 171 3.5.3 Biosecurity Australia and Risk Analysis 178 vii 3.5.4 AQIS and Operational Matters – Detecting and Intercepting Unauthorized Introductions 180 3.6 THE LIMITS OF QUARANTINE IN PROTECTING BIODIVERSITY FROM IAS 183 3.7 CONCLUSION 185 CHAPTER 4 INTERNATIONAL TRADE LAW and INVASIVE ALIEN SPECIES 4.0 INTRODUCTION 190 4.1 THE WTO 191 4.2 GATT 193 4.2.1 IAS and Articles I, III and XI of GATT 193 4.2.2 IAS and Article XX GATT 197 Table 9 Summary Of Decisions On Articles XX(b) & XX(g) GATT 200 4.3 THE AGREEMENT ON THE APPLICATION OF SANITARY AND PHYTOSANITARY MEASURES 209 4.3.1 Background to the Introduction of the Agreement on the Application of Sanitary and Phytosanitary Measures 210 4.3.2 Overview of the Agreement on the Application of Sanitary and Phytosanitary Measures 211 4.3.3 The Relationship Between the Agreement on the Application of Sanitary and Phytosanitary Measures and GATT Article XX 213 4.3.4 The Meaning of an SPS Measure 214 4.3.5 The Appropriate Level of Protection 217 viii Table 10 Relationship of the ALOP to Level of Risk and Future Harm 219 4.3.6 Limitations to the Setting of an Appropriate Level of Protection 220 4.3.7 Limitations on Design and Implementation of SPS Measures 224 4.3.8 International Standards 225 Figure 1 How the SPSA Operates 226 4.3.9 Risk Assessment 228 4.3.10 Discriminatory, Unnecessary or Disguised Trade Restraints 233 4.4 CONCLUSION 241 CHAPTER 5 QUARANTINE, TRADE AND INVASIVE ALIEN SPECIES 5.0 INTRODUCTION 245 5.1 QUARANTINE AND TRADE: A MULTIFACETED RELATIONSHIP 246 5.1.1 Quarantine Treaties and International Trade 248 5.1.2 Treaties of Trade and Commerce and Quarantine Regulation 249 5.2 THE MANAGED RISK APPROACH 255 5.2.1 The Managed Risk 255 5.2.2 Volume of Scientific Evidence 257 5.2.3 Sufficiency of Scientific Evidence 262 5.2.4 Risk and Harm 266 ix