Domestic Implications of International Treaty-Making: The Basel Convention & Hazardous Waste
The 1989 Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal provides an important but incomplete framework addressing “hazardous waste” (excluding radioactive waste, which is covered by a different treaty scheme). Hazardous waste itself is a term of art, which in the alternative may be regarded as a serious burden in the case of disposal, or more of a resource in the case of industrial-level recycling. The Basel Convention’s background lies effectively in a three-way contest during the 1980s. Meanwhile, its trigger involved several 1980s scandals of ocean-going barges or ships loaded typically with (US) municipal incinerator ash (constituting hazardous waste) sailing internationally from port to port, where their docking was rejected, following which they allegedly either offloaded their cargo somewhere without approval in the dead of night, or disposed of the hazardous waste at sea.
The first contest thread involved developing countries, particularly in Africa, rejecting the concept that they should become a dumping ground for the toxic wastes of industrialized countries (an internationalized version of NIMBY, referred to at the time as environmental colonialism). They favored the ability generally to prohibit importation of all hazardous waste from the developed world. The second contest thread involved environmental NGOs in the developed world pressing for the minimization of transboundary disposal of hazardous waste, based upon a calculation that the best way to minimize the generation of hazardous waste in the first place would be to keep it in the jurisdictions where it was generated. The idea was that initial generation of hazardous waste could only be diminished, if the industrialized countries began to drown figuratively in their own industrial wastes. The third contest thread involved industrialized country private sector interests, which sought the responsible regulation of transboundary transport and disposal of hazardous waste in lieu of its prohibition as a matter of self-interest, to ensure cheaper disposal possibilities overseas.
On the positive side, originally the Basel Convention established an extensive reporting structure for exporting, importing and transit states, which is perhaps more suited to waste disposal than recycling operations, linked with three important limitations on exporting states. The first is that exports are not to be permitted unless the importing state is capable of “environmentally sound management” of the hazardous wastes (so what exactly does that mean?). The second is an obligation on the part of exporting states to reimport the hazardous wastes, if the export-import exercise were found to be not in compliance with the Basel Convention. And the third is an obligation under normal circumstances for member states not to import hazardous waste from, or export hazardous waste to, non-member states. Coincidentally, the US never ratified the Basel Convention, although the US to a great extent is subject via the OECD control system to OECD waste recovery restrictions harmonized with the Basel Convention, albeit for transboundary hazardous waste movements between OECD members as developed countries. The US has also made use of limited provisions for waste disposal agreements between member countries and non-member countries, with a focus initially on Canada and Mexico under NAFTA Agreement. Meanwhile, the Basel Convention originally hardly contemplated hazardous waste transfers between developed countries, but such a demand became evident with the passage of time.
Again on the positive side, the Basel Convention in practice has been administered cooperatively more recently together with the 1998 Rotterdam Convention on the Prior Informed Consent Procedure in Certain Hazardous Chemicals and Pesticides in International Trade (pesticides says it all), and the 2001 Stockholm Convention on Persistent Organic Pollutants (POPs, referred to also as endocrine disruptors, including a series of pesticides like DDT, as well as PCBs and various fire-retardant chemicals). POPs tend to persist in the environment, and as a chemical matter “bio-accumulate” in organisms and so move up the food chain, leading to problems like unacceptable accumulation of POPs in livestock and humans, with negative health consequences.
The Basel Convention has become in practice an anchor for an international system trying to regulate families of chemicals perceived as useful for some purposes, but dangerous also to human health and the environment. The Basel Convention covers waste disposal and recycling, and is paired meanwhile with conventions governing use and transport. Similarly, via amendment the Basel Convention was extended to ship-breaking or decommissioning as specific activity, on the basis of the relatively high content in ships of hazardous substances like asbestos, mercury and bunker fuel (although the Convention was not intended initially to govern ship decommissioning as activity). Similarly, the Basel Convention now plays a prominent role in the prospective recycling and disposal of e-waste (meaning that veritable tidal wave of old computers, printers, cellphones and the like in our rapidly developing, digitally oriented society– whatever became of the 3-6 notebook computers and cellphones you may have already owned since high school, full of heavy metals like lead solder and nicad or lithium batteries, etc.?).
Most law students are generally familiar with climate change and GHGs as a leading international environmental law challenge, meanwhile many fewer are probably conscious of POPs issues, and indirectly the cooperatively managed Basel Convention structure. You might reflect on two specific aspects. First, that the Basel Convention came into being initially to a great extent as a result of pressure from the developing world, but it is not generally perceived as pitting developing and developed states’ interests so directly against each other. It lacks the climate change debate’s juxtaposition of the developing world seeking more economic development, with the developed world seeking a “greener” future. Second, it does largely follow the 1987 Montreal Protocol’s approach in proscribing or limiting lists of specified substances, so it does have a wide application, but it was viewed as focused to a great degree on immediate health concerns and allowed for more targeted responses involving listed substances. So there may be some grumbling about compliance costs and interference with recycling, but there is no Basel Convention analogue to climate change denial. Most recently, an amendment to the Basel Convention (not joined in by China and Canada) extended the coverage to certain plastic waste, particularly those with fire retardant characteristics, of members’ obligations not to import from, or export covered substances to, non-member countries.
So much as the 1987 Montreal Protocol on Ozone Depleting Substances paralleled and foreshadowed in some ways the 1992 UNCCC’s attention to climate change, the Basel Convention is slowly being extended in a fashion to enable more general cross-border transfer regulation of chemicals deemed to be hazardous. It has also been extended to specific categories of waste recycling including hazardous elements, such as ship-breaking and e-waste recycling, although the rationale for the extension in practical terms has been to try forcing oversight of areas in which there was before little or no prior attention to environmentally sound management practices.
On the negative side, following the Basel Convention’s initial adoption, attempts were made via the so-called Basel Ban amendment (Article 3a) to formalize a permanent ban on the export by OECD member states (plus the EU and Luxembourg) of hazardous waste to all developing countries for final disposal or recycling. After considerable pushback, the Basel Ban finally attracted the necessary 75% supermajority vote, taking effect in December 2019, so less than a year ago, and thirty-five years after the Basel Convention took effect. The goal of excluding industrialized country hazardous waste from developing countries has finally been achieved, but people still worry about implementation issues (and what may happen on the recycling front; but the problem is that in practice claimed recycling was too easily abused as a front for simple storage). Plus, the rising number now of rapidly industrializing countries has moved many traditional heavy industries largely out of OECD countries, so the older concept of hazardous waste moving only from industrialized to developing countries may not be what it once was 20-30 years ago. Also, the black-market problem visible early on under the 1987 Montreal Protocol Concerning Ozone Depleting Substances (smuggling freon over the Mexico-US border, because of price differences resulting from differing rules applicable to developed and developing countries) is visible in the form of continuing corruption problems involving (often mislabeled) shipments of hazardous waste to locations unable to deal with the materials in an environmentally sound manner.
It is too early to tell what the ultimate effect will be of the Basel Ban Amendment’s adoption, but it probably will remake the calculus in place since 1989, because it arguably has shifted emphasis from what might be called the “reasonable regulation” position of the private sector in favor of the developing world’s rejection of “environmental colonialism.” But on the other hand, the US as non-member, for example, has had for a long time bilateral agreements covering hazardous waste to avoid the Basel Convention’s prohibition on member states accepting hazardous waste from, or exporting it to, non-member states. So might those states not voting in favor of the Basel Ban simply shift to the bilateral agreement track, etc.? Hazardous waste disposal policy aside, the practical difficulty is that some further parallel action will presumably be necessary for any progress on the recycling front, or the broader approach under which an effort has been made to integrate POPs and pesticide transport control under the Rotterdam and Stockholm Conventions. So only time will tell….
In the alternative, the suspicious disposal or storage location in a developing country may be simple farmland or a municipal trash dump (leaving expensive clean-up costs to the destination government, when hazardous waste shipped in containers like 55-gallon drums eventually begin to leak). The other common occurrence in a world of modern containerized shipping ports is that numerous containers full of such 55 gallon drums containing hazardous waste will simply be intentionally “lost” by port workers in the kind of container parks holding hundreds, if not thousands, of stacked, 40-foot containers hosted at modern ports. An amendment to the Basel Convention provides for the criminalization of such faulty disposal, but the amounts of money in question and the uncertainty of prosecution have seen such misbehavior continue.
The problem that the Basel Convention’s scheme is more tailored to governing hazardous waste disposal than recycling presents one set of problems, while another grows out of a different factual pattern not foreseen in the treaty text. The Basel Convention contemplates a single transport, end to end, of hazardous waste from a generator in an exporting country to a suitable disposal site in an importing country. But in practice, hazardous waste brokerage and consolidation in intervening “waste hub” ports is a reality, as is the practice that hazardous waste may be mixed in with normal municipal waste (although the rule exists that mixing hazardous with non-hazardous waste renders the entire mix “hazardous”). But in practice the real provenance of a single container full of mixed hazardous and normal waste in 55 gallon drums often can only be guessed typically from addresses printed on plastic shopping bags found in the waste containers, and they may come from separate countries, so which country has a duty to take back the illicit transshipped container of hazardous waste with arguable ties to several countries?
In summary, the Basel Convention might serve as a classic example of the heuristic test whether a glass is half empty, or half full. But with all its complications and shortcomings, it seems a fair statement that the Basel Convention as the transboundary hazardous waste disposal glass seems much fuller than the climate change glass at present.