The Broken System of Consumerism: The Right to Repair Movement and Its Impact on European Union Directive Revisions

By Tia Rowe

Consumer concerns and environmentalism are two of the motivations behind the blossoming “Right to Repair” movement that is developing across the United States and Europe.[1] This movement seeks to address both the monetary cost and the environmental impact of consumer goods being manufactured, specifically, goods which stop working shortly after the warranty period ends and are constructed in such a way that it is nearly impossible to make repairs to them.[2] This movement has led the European Union to consider new revisions to its Ecodesign Directive.[3] These revisions would direct manufacturers to make consumer goods that can be repaired and to provide spare parts for such repairs.[4] This blog post will briefly explore the growing Right to Repair movement and the proposed European Union directive to implement regulations reflective of that movement.

In 2015 a German study found that “the share of large household appliances that had to be replaced within the first five years of use grew from 7% of total replacements in 2004 to 13% in 2013.”[5] This concern over the increased consumption of goods is one of the driving factors behind community groups known as “Repair Cafes” and “Restart Parties.”[6] These groups are usually comprised of volunteers – although there are also repair shops that are run as businesses – and the groups fix products brought to them that no longer work.[7] The Right to Repair movement was developed from a desire to address planned obsolescence and to oppose companies that do not allow repairs to be made to their products.[8] For instance, one Repair Café volunteer described making repairs as a “political act” when making such repairs “is actively discouraged by manufacturers."[9]

In addition to planned obsolescence concerns, there is also an issue regarding the impact that throwing away large amounts of consumer goods has on the environment.[10] Throwing away consumer goods, especially electronics and large appliances, and subsequently purchasing new goods uses CO2 and the discarded products are often not properly recycled.[11] The right to repair regulations would be part of a revision to the European Union’s Ecodesign Directive, which has been primarily focused on directing manufacturers to create more energy efficient products.[12] By introducing the regulations under the mantle of the Ecodesign Directive, the European Union is acknowledging the environmental concerns associated with the inability to fix products, which causes the consumer to throw out the broken product and replace it with a new product.[13] For example, many lamps sold in the United Kingdom and Europe are designed so that the lightbulb cannot be changed once it dies.[14]  This forces the consumer to throw out the lamp and buy a new one when the lightbulb burns out, which is incredibly wasteful and can be expensive to the consumer.[15]

The European Union will be voting on regulations based on which consumer good is being considered.[16] Specifically, the European Union will be voting on regulations for refrigerators, lighting, electronic displays, dishwashers, and washing machines.[17] The first vote was on December 10, 2018 and pertained to refrigerators.[18] The Member States ultimately voted that “manufacturers selling refrigerators in the EU will have to sell consumers the spare parts they need to fix their own machines. They also have to be designed to be repaired with common tools.”[19] This vote was seen as a beginning victory for the Right to Repair movement, but it is just the first step with more votes and discussions to come.[20] There is a tension between focusing on making it easier to recycle consumer goods versus making it easier to repair the goods prior to recycling them.[21] The former position is supported by lobbyists for manufacturing and tech companies while the latter is supported by groups like Repair Cafes.[22] This tension, paired with the scheduled voting on different major appliances, may lead to a discrepancy between regulations based upon the appliance in question.[23]

If regulations are different for each consumer good, it may be harder for Repair Cafes and repair shops in general to maintain clientele. It might be difficult to create a culture that repairs instead of replaces if the consumer can only repair certain goods and only in certain ways. For example, it would be confusing to the consumer if – hypothetically – refrigerators can only be repaired by professional repair shops, washing machines can be repaired by anyone, and lighting fixtures cannot be repaired but can be broken down to be recycled. The possibility of different regulations for different products could exacerbate one of the problems in the Right to Repair movement: the lack of a repair culture.[24] Despite the tension between lobbyists and the Right to Repair movement, it is notable that the European Union is addressing the issue of consumer waste and the environmental impact associated with discarding rather than repairing consumer goods. Regardless of the regulation outcome and hypothetical confusion that may result, the conversation generated by the revised directive may help encourage people to seek repairs before throwing out their broken products, thus helping to cultivate a repair culture. The system of consumerism is broken, but hopefully, like an old washing machine, it too can be repaired.


[1] See generally Lucy Hooker, What should I do with my broken kettle?, BBC (Oct. 31, 2018), https://www.bbc.com/news/business-45969676; Lucas Laursen, The 'Right to Repair' Movement Is Gaining Ground and Could Hit Manufacturers Hard, Fortune (Jan. 09, 2019), http://fortune.com/2019/01/09/right-to-repair-manufacturers/.  

[2] See Roger Harrabin, Climate change: 'Right to repair' gathers force, BBC (Jan. 09, 2019), https://www.bbc.com/news/science-environment-46797396?fbclid=IwAR3cgev2KhfaXBUvUfL7jcFsC5YbNKFkitw7MJBD7-sSFtkUWMZTI2_xz_0.

[3] See generally Laursen, supra note 1; id.

[4] See generally Laursen, supra note 1; id.

[5] Susanna Ala-Kurikka, Lifespan of consumer electronics is getting shorter, study finds, Guardian (Mar. 03, 2015), https://www.theguardian.com/environment/2015/mar/03/lifespan-of-consumer-electronics-is-getting-shorter-study-finds.

[6] See generally Maarten Depypere, EU votes to make refrigerators more repairable, iFixitorg (Dec. 13, 2018), https://ifixit.org/blog/12497/eu-ecodesign-vote/; The Manchester Declaration, https://manchesterdeclaration.org (last visited Jan. 13, 2019).

[7] See e.g., Kate Lyons, Can we fix it? The repair cafes waging war on throwaway culture, Guardian (Mar. 15, 2018), https://www.theguardian.com/world/2018/mar/15/can-we-fix-it-the-repair-cafes-waging-war-on-throwaway-culture.

[8] See e.g., id.

[9] Id.

[10] Gaby Hinsliff, ‘Make do and mend’ is a good, green motto for our wasteful times, Guardian (Jan. 11, 2019), https://www.theguardian.com/commentisfree/2019/jan/11/mend-eu-right-to-repair-white-goods-planet.

[11] See generally Electronic waste poses ‘growing risk’ to environment, human health, UN report warns, UN News (Dec. 13, 2017), https://news.un.org/en/story/2017/12/639312-electronic-waste-poses-growing-risk-environment-human-health-un-report-warns; Harrabin, supra note 2; Hooker, supra note 1.

[12] Mauro Anastasio, EU to deny citizens longer-lasting and repairable popular consumer products – MEDIA BRIEF, Eur. Envtl. Bureau (Nov. 29, 2018), https://eeb.org/eu-to-deny-citizens-longer-lasting-and-repairable-popular-consumer-products-media-brief/.

[13] See generally id.

[14] Harrabin, supra note 2.

[15] Id.

[16] Anastasio, supra note 11.

[17] Id.

[18] Matthew Gault, Protesters Are Slowly Winning Electronics Right-to-Repair Battles in Europe, Motherboard (Dec. 14, 2018, 7:00 AM), https://motherboard.vice.com/en_us/article/9k487p/protesters-are-slowly-winning-electronics-right-to-repair-battles-in-europe.

[19] Id.

[20] See generally id.

[21] Id.

[22] See generally id.

[23] See generally id.; Laursen, supra note 1.

[24] Gault, supra note 17.

Shipwrecks, Ancient History, and the “Inhospitable Sea:” Ownership Implications for Discoveries in the Black Sea

By Tia Rowe

In October 2018, a team of scientists, marine archeologists, and surveyors discovered what is believed to be the world’s oldest intact shipwreck.[1] The ship is thought to be from Ancient Greece and to be over 2,400 years old.[2] Notably, the ship resembles the vessel pictured on the “Siren Vase.”[3] The Vase depicts a scene in which Odysseus is tied to the mast of his ship.[4] This find is incredibly valuable because it may contain more ancient artifacts within its hold and could inform researchers about ancient seafaring and shipbuilding.[5] This shipwreck was found as part of a larger expedition that led to the discovery of over 60 other shipwrecks in the Black Sea.[6] The team also discovered “Roman trading ships and a 17th Century Cossack trading fleet.”[7] These invaluable discoveries raise the question of who owns or has rights to these shipwrecks; this post aims to answer that question by analyzing another shipwreck and looking at two international law schemes that deal with maritime cultural heritage.

            A similar question arose when the San Jose shipwreck was found off the coast of Colombia.[8] The San Jose shipwreck is thought to be carrying somewhere between $1 billion and $17 billion worth of treasure.[9] The Colombian government has claimed ownership over the wreck because it argues that the wreck was found in Colombian “territorial waters.”[10] However, Spain has also claimed ownership because San Jose was a Spanish ship that was sunk by the British in 1708.[11] Initially, courts would look to treaties governing the issue of shipwrecks, but Colombia is not a party to the United Nations treaties that cover underwater cultural heritage.[12] Thus, courts can look to the international custom rule favoring “flag states,” which allows “the country whose flag is on the sunken ship [to] only lose[] its right to what's onboard if it formally relinquishes that right.”[13] Additionally, the type of ship matters in ownership claims because of the custom of “sovereign immunity.”[14] Sovereign immunity “refers to a specific category of ships that are immune from legal proceedings by another state. Warships and other government ships operated for non-commercial purposes enjoy sovereign immunity.”[15] The dispute over the San Jose wreck is still ongoing, but it illustrates two main tenants of international law regarding underwater cultural heritage: treaty law and international custom law.[16]

The countries that border the Black Sea are Ukraine, Russia, Georgia, Turkey, Bulgaria, and Romania.[17] Out of those countries, only the Ukraine, Bulgaria, and Romania are parties to the UNESCO Convention on the Protection of the Underwater Cultural Heritage, which has a provision regarding shipwreck ownership.[18] Thus, the UNESCO Convention is unlikely to be applicable to any shipwreck claims made in the Black Sea, unless the dispute is among those countries.[19] There is an agreement between the aforementioned countries, and others in the region, that commits to working toward a prosperous Black Sea region.[20] The Black Sea Economic Cooperation does outline cultural goals for the region, but it does not explicitly explain what a country should do to claim or defend a shipwreck found outside of its territorial waters.[21]

If there is not a clear international agreement, which there does not appear to be for the countries bordering the Black Sea, then disputes can be solved using international customs.[22] As previously mentioned, the state whose flag is on the ship has ownership rights over the shipwreck.[23] This is a problematic approach to the oldest intact shipwreck that was recently found in the Black Sea because it is unclear exactly what kind of ship has been found and what flag the ship was sailing under.[24] While the ship is initially believed to be an ancient Greek trading ship,[25] the question remains whether the ship was flying under a particular state flag or whether this concept even had the same meaning 2,400 years ago.

This question may never need to be answered because the ship may never leave the bottom of the Black Sea. While researchers are concerned with the stability of the ship, one of the primary issues with doing further research on the shipwreck is the lack of funding.[26] Thus, an alternative form of ownership determination is giving rights to whichever government is able to fund the research into the shipwreck. This approach could be problematic because it does not adhere to typical ownership systems, but one must ask what should be more highly valued: a country’s claim to an ancient treasure or the knowledge gained from research of that treasure? Regardless of the answer, this shipwreck will provide invaluable knowledge by presenting a new legal question that is sure to become more relevant as underwater technology becomes more advanced and the “inhospitable sea” reveals more of its secrets.

 


[1] Kevin Rawlinson, World’s oldest intact shipwreck discovered in Black Sea, The Guardian (Oct. 22, 2018), https://www.theguardian.com/science/2018/oct/23/oldest-intact-shipwreck-thought-to-be-ancient-greek-discovered-at-bottom-of-black-sea.  

[2] Id.

[3] Id.

[4] Id.

[5] Id.; Shipwreck found in Black Sea is ‘world’s oldest intact’, BBC (Oct. 23, 2018), https://www.bbc.com/news/world-europe-45951132.

[6] Rawlinson, supra note 1.

[7] Shipwreck found in Black Sea is ‘world’s oldest intact’, supra note 4.

[8] See Willie Drye, Fight for 'World's Richest Shipwreck' Heats Up, Nat’l Geographic (July 20, 2018), https://www.nationalgeographic.com/science/2018/07/news-san-jose-shipwreck-colombia-salvage/.

[9] Chris Opfer, Who Owns the $17 Billion San Jose Loot?, howstuffworks (Jun. 14, 2018), https://history.howstuffworks.com/historical-events/who-owns-17-billion-dollar-san-jose-loot.htm.

[10] Id.

[11] Spain says it has rights to Colombian treasure ship, BBC (Dec. 08, 2015), https://www.bbc.com/news/world-latin-america-35036121.

[12] Opfer, supra note 8.

[13] Id.

[14] Shipwrecks: Who owns the treasure hidden under the sea?, BBC (June 04, 2018), https://www.bbc.com/news/world-44302476.

[15] Id.

[16] See Opfer, supra note 8.; see also Christopher Mirasola, Swimming Against the Tide: Colombia’s claim to a Shipwreck and Sunken Treasure, Harv. Int’l L.J. (Jan. 26, 2018), http://www.harvardilj.org/2016/01/swimming-against-the-tide-colombias-claim-to-a-shipwreck-and-sunken-treasure/.

[17] Aleksey Nilovich Kosarev, Vladimir Petrovich Goncharov, & Luch Mikhaylovich Fomin, Black Sea, Encyclopaedia Britannica, https://www.britannica.com/place/Black-Sea (last updated Sep. 21, 2018).

[18] UNESCO, Convention on the Protection of the Underwater Cultural Heritage, States, (Nov. 02, 2001), available at: http://www.unesco.org/eri/la/convention.asp?KO=13520&language=E&order=alpha.  

[19] See generally id.

[20] See Organization of the Black Sea Economic Cooperation, BSEC, http://www.bsec-organization.org (last visited Nov. 04, 2018).

[21] Culture, BSEC, http://www.bsec-organization.org/areas-of-cooperation/culture (last visited Nov. 04, 2018).

[22] See Mirasola, supra note 14.

[23] Opfer, supra note 8.

[24] See generally Rawlinson, supra note 1.

[25] Id.

[26] Sarah Pruitt, This Ancient Greek Vessel is the World’s Oldest Intact Shipwreck, Hist. (Oct. 23. 2018), https://www.history.com/news/oldest-shipwreck-discovery-ancient-greece.