This tutorial involves application of the Basel Convention on the Transboundary Movements of Hazardous Waste and Their Disposal. Concerning parties to the Convention and any amendments, you may rely on the list of parties set forth under the status tab in Introductory Note by Katherina Kummer Peiry and text of the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal, subject to the following qualifier. Regarding the Basel Ban amendment, please answer in the alternative assuming first that the amendment is in force, and second that there is a diplomatic note between Sweden and Indonesia providing that Indonesia will continue to accept Swedish waste “in all forms” for disposal or recycling, given Sweden’s sterling environmental reputation. Beyond the text of the Convention, you should consult any standard atlas or similar work necessary to apply the treaty.

Vrozen Vrootjes AB is a company incorporated under the laws of Sweden and is a wholly-owned subsidiary of Ingeneral Foods, Inc., an American corporation incorporated under the laws of Delaware and listed on the New York Stock Exchange (“NYSE”). Vrozen Vrootjes produces frozen icicle pops at its Swedish factory, a production site in Northern Lappland. Vrozen Vrootjes’ factory is extremely energy efficient, given that temperatures in Lappland remain below freezing for most of the year. Vrozen Vrootjes has other difficulties, however, since in large quantities the brightly colored dyes used in printing its popsicle wrappers are potentially carcinogenic.

Whenever its popsicle wrapper printing presses are misaligned, Vrozen Vrootjes cannot use the misprinted wrappers for covering its premium popsicle product. Over the past several years Vrozen Vrootjes has misprinted 100,000 wrappers, all of which currently are stored at its Northern Lappland factory. Vrozen Vrootjes is now under pressure from local authorities to remove the misprinted wrappers from its factory. Under Swedish law, however, it cannot just dispose of the faulty wrappers in the local waste incinerator because the aggregate quantity of popsicle wrapper dye in all 100,000 wrappers equals five pounds, while Swedish law defines as hazardous waste three or more pounds of such potentially carcinogenic dyes. Vrozen Vrootjes consults with the American legal department of Ingeneral Foods, which is concerned about the problem because any measurable quantity of such carcinogenic dye is considered hazardous under American law. Following consultations Vrozen Vrootjes decides to dispose of its problem by sending the misprinted popsicle wrappers to a waste disposal site abroad.

Vrozen Frootjes has no prior experience with foreign disposal of waste, so it decides to retain the services of a broker specializing in such waste disposal. It sends out a request for proposals both to Svenska Fly-By-Night (Guernsey) Limited, a company incorporated under the laws of the Channel Isle of Guernsey (whence the cows), a hazardous waste broker which got its start arranging disposal of used submarine nuclear reactors in the Barents Sea, and to Hazardous Waste Management (International) BV, a wholly-owned Dutch subsidiary of the NYSE-listed American company Hazardous Waste Management Incorporated, which specializes in the disposal of hazardous and other waste. Hazardous Waste Management (International) BV is an industry leader in terms of its disposal technology and safety record. On the other hand, Svenska Fly-By-Night is little more than a post office box address in the Channel Isles. However, such low overhead costs allow Svenska Fly-By-Night to lowball bids when competing for disposal jobs with industry players like Hazardous Waste Management (International) BV.

Under the terms of its request for proposals, Vrozen Vrootjes solicits bids for the transport of two lots of 50,000 misprinted popsicle wrappers (each lot containing 2-1/2 pounds of potentially carcinogenic dyes). The Hazardous Waste Management (International) bid specifies that the misprinted popsicle wrappers will be disposed of in its affiliate’s hazardous waste disposal site located on the East Coast of the United States. Svenska Fly-By-Night’s bid specifies that the misprinted popsicle wrappers will be disposed of in Indonesia, a country where under local law the misprinted popsicle wrappers would not be considered hazardous waste, but does not further specify any details about their final disposal. Instead, it relies upon business acquaintances in the shadowy world of hazardous waste brokers to arrange the details when its shipments are consolidated at the Dutch Port of Rotterdam as the Northern European center of hazardous waste traffic.

Vrozen Vrootjes awards each of Svenska Fly-By-Night and Hazardous Waste Management (International) a contract for the disposal of a 50,000 wrapper lot. Svenska Fly-By-Night and Hazardous Waste Management (International) then separately contract with Svenska Road Hauler AB, a Swedish trucking company, to transport each’s 50,000 popsicle wrapper lots from Northern Lappland to Goteborg in Southern Sweden as the point of embarkation for Shipping Around Scandanavia (“SAS”), a Northern European shipping organization owned and operated as a sole proprietorship by the Greek shipping tycoon Zeus Herakles. SAS loads both lots in Goteborg, then ships them to the Dutch Port of Rotterdam, where they are offloaded for separate shipment to their ultimate destinations.

The Hazardous Waste Management (International) lot is transhipped and loaded on Zeus Herakles’ United States-registered freighter SS Minnow for shipment to the United States for ultimate disposal in Hazardous Waste Management’s East Coast hazardous waste disposal site. During transhipment in Rotterdam, at the direction of Svenska Fly-By-Night’s Rotterdam business acquaintances its lot is combined in a forty-foot intermodal shipping container with an independent hazardous waste shipment of fifty barrels of dioxin-contaminated oil from an indeterminant source within the European Union. The intermodal shipping container including the Svenska Fly-By-Night lot is then loaded on Zeus Herakles’ Liberian-registered freighter SS Leaky Sieve for shipment to Southeast Asia for ultimate disposal in Indonesia.

The SS Minnow set out on a fateful trip from Rotterdam directly to the Port of New York. Unfortunately, the SS Minnow was lost with all hands in a storm. Its cargo, including the Hazardous Waste Management (International) lot, now rests on the bottom of the Atlantic Ocean in international waters approximately 500 miles south of Greenland.

The SS Leaky Sieve headed south from Rotterdam through the English Channel with the intermodal shipping container including the Svenska Fly-By-Night lot. The SS Leaky Sieve crossed the Bay of Biscay and entered the Mediterranian Sea via Gibralter, from whence it sailed directly via the Suez Canal and Red Sea to the Indian Ocean, skirting the Indian Subcontinent at a distance of 250 miles. From the Indian Ocean the SS Leaky Sieve sailed to Indonesia via the Straits of Malacca, finally docking at the Port of Tanjung Priok in Jakarta. The SS Leaky Sieve then offloaded the intermodal container for delivery to PT Kurang Baik, an Indonesian corporation operating a waste disposal site on the island of Java, with which Svenska Fly-By-Night’s Rotterdam business acquaintances have a standing arrangement to dispose of European hazardous waste shipments. At this point, however, PT Kurang Baik pays a gratuity to a customs official at the Port of Tanjung Priok to ensure that the intermodal container will be permanently “misplaced” among the thousands of containers to be found at any major seaport. PT Kurang Baik simply pockets the difference between what it was paid nominally to dispose of the intermodal container of hazardous waste in a real waste disposal site and the cost of the bribe.

Remember when answering the questions below to focus on the perspective of the several generic parties in the fact pattern: an entity or person which produces the hazardous waste as a by-product of its manufacturing activities aka “Waste Producer,” versus an entity or person which arranges overseas disposal of hazardous waste aka “Waste Broker,” versus a railroad or trucking firm carrying its waste domestically aka “Origin State Transporter” to the port of export from which it leaves its territory aka “Origin State Port,” versus an air, trucking or shipping line carrying the waste across international boundries aka “Transboundry Waste Hauler,” versus the state of the waste’s origin aka “Origin State,” its ultimate destination state aka “Destination State” and any transit state along the way aka “Transit State,” versus the Destination State’s port of entry through which the waste is imported aka “Destination State Port,” versus a railroad or trucking firm from the Destination State’s sea or airport aka “Destination State Transporter” which will transport the hazardous waste from the port of entry to the entity running the dump site at which the waste is to be disposed aka “Waste Disposer.”

Please indicate in answering each question the specific treaty provisions dictating your answer, or where appropriate why the treaty does not provide a clear answer because of ambiguity, incorporation of national law, etc. When you resolve such an ambiguity yourself, please explain your reasoning. That part of your paper should demonstrate to the reader that you have a good grasp of what is, and what is not, formally governed by the Basel Convention. If you need to know more information to answer a particular question, specify exactly what further information you require and why you need it. Questions below are separated by number solely to structure your analysis, and you are welcome to organize your answers either in single essay form or in separate answers to each question.

Question 1. Which entity is the Waste Producer, Vrozen Vrootjes or Ingeneral Foods? Does it matter for purposes of the Basel Convention?

Question 2. Assume only for purposes of this question 2 that the popsicle wrapper dye is not listed on Annex I to the Basel Convention. Is the shipment of the popsicle wrappers from Northern Lappland to Tanjung Priok covered by the Basel Convention? Should you conclude that it is, please say specifically where and why.

Question 3. Assume only for purposes of this question 3 that the popsicle wrapper dye is listed on Annex I and has the necessary Annex III characteristics for hazardous waste under the Basel Convention. Is the shipment of the popsicle wrappers from Northern Lappland to Tanjung Priok covered by the Basel Convention? Should you conclude that it is, please say specifically where and why.

Question 4. Assume only for purposes of this question 4 that the popsicle wrapper dye is listed on Annex I and has the necessary Annex III characteristics for hazardous waste under the Basel Convention. Are the Origin State Transporter, or Destination State Transporter, or Transboundary Waste Hauler covered by the terms of the Basel Convention? Should you conclude that either of them are, please be specific in saying how and why.

Question 5. Assume only for purposes of this question 5 that the popsicle wrapper dye is not listed on Annex I to the Basel Convention, but that the dioxin-contaminated oil shipped together with the popsicle wrappers in the intermodal container is. Assume further that the Indonesian authorities did not give prior approval to the importation of the hazardous waste and discovered the dioxin-contaminated oil at Tanjung Priok, but the only identification information available were the container’s bill of lading identifying the SS Leaky Sieve as the ship which carried the container from Rotterdam and the popsicle wrappers with the name printed on them of Vrozen Vrootjes, Northern Lappland, Sweden. Are any of Sweden, or the Netherlands, or Liberia obligated to take back the container under the Basel Convention? Does it matter that you could trace the popsicle wrappers back through the Origin State Port of Goteborg to Northern Lappland, but the dioxin-laden oil trail vanishes in Rotterdam as a transhipment location?

Question 6. Assume only for purposes of this question 6 that the popsicle wrapper dye is listed on Annex I and has the necessary Annex III characteristics for hazardous waste under the Basel Convention. How do you treat the SS Minnow shipment, and does it present any particular problems under the Convention? What is the role, if any, of the Waste Disposer? Please answer this question both from the perspective of the Origin State and of the Waste Producer.

Question 7. Assume only for purposes of this question 7 that the popsicle wrapper dye is listed on Annex I and has the necessary Annex III characteristics for hazardous waste under the Basel Convention. How do you treat the SS Leaky Sieve shipment which does not ultimately make it to any Waste Disposer, and does it present any particular problems under the Convention? Please answer this question both from the perspective of the Origin State and of the Waste Producer.

Question 8. Assume only for purposes of this question 5 that the popsicle wrapper dye is not listed on Annex I to the Basel Convention, but that the dioxin-contaminated oil shipped with the popsicle wrappers in the intermodal container is. Assume further that the Indonesian authorities did not give prior approval to the importation of the hazardous waste and discovered the dioxin-contaminated oil at Tanjung Priok, but the only identification information available are the container’s bill of lading identifying the SS Leaky Sieve as the ship which carried the container from Rotterdam and the name and address of Svenska Fly-By-Night’s business acquaintances in Rotterdam who dispatched the shipment to PT Kurang Baik. Are Waste Brokers covered by the Basel Convention, and can the Destination State force the Netherlands to take back the container under the Basel Convention as a result? What is the effect, if any, under the Basel Convention of the apparent misbehavior of the Destination State Port customs official in taking the bribe?