The Basel Convention (Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and Their Disposal)

The Basel Convention was brought on in part due to a number of cases involving international cases involving problems with waste disposal to include the Khian Sea case and the case Koko (Nigeria) case.

According to the ENVIS - Environmental Information System, the Basel Convention found its origin in the international outrage due to illegal transnational shipping of hazardous waste. In the later half of 1980s, the highly industrialized countries faced stringency in the environmental regulations, leading to a rise in the costs of hazardous waste disposal. Exploring a cheaper alternative, the hazardous wastes began finding an easy inlet into the developing countries. The European Environment Agency asserts that the central goal of the Basel Convention is to protect human health and the environment by minimizing hazardous waste production whenever possible through environmentally sound management. The convention requires that the production of hazardous wastes be managed using an integrated life-cycle approach, which involves strict controls from its generation to storage, transport, treatment, reuse, recycling, recovery and final disposal. The Convention encompasses the movement of  toxic, poisonous, explosive, corrosive, flammable, ecotoxic and infectious wastes across trans-boundaries.

According to the Congressional Research Service report, the Basel Convention has two overall purposes: "(1) to encourage the environmentally sound management of hazardous wastes, and (2) to protect developing countries from receiving hazardous wastes without prior informed consent."

Accordingly, the objectives  of the convention include:

·         Active promotion and use of cleaner technologies and production methods;
 

·         Further reduction of the movement of hazardous and other wastes;
 

·         The prevention and monitoring of illegal traffic;
 

·         Improvement of institutional and technical capabilities especially for developing countries and economies in transition;
 

·         Further development of regional and sub-regional centres for training and technology transfer.

According to James Salzman and Barton Thompson, Jr. Parties signing on to the Basel Convention agree that they will not initiate the exportation of waste without written confirmation of (1) "Consent of the importing country, (2) consent of any transient countries, and (3) confirmation from the importing country of a written contract between the exporter and the disposer specifying the environmentally sound management of the waste."

Under the convention, signatories obligate themselves to the following actions:

o        "Each Party can prohibit the import of hazardous wastes and other wastes. If it does, it should inform other Parties to the Convention (Article 4, paragraph 1 (a).

o        Each Party shall prevent the import of hazardous wastes and other wastes if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner (Article 4, paragraph 2 (g)).

o        Each Party that intends to export hazardous or other waste shall ensure that the waste will be managed in an environmentally sound manner at the place of its destination. (Article 4, paragraph 8)

o        Each Party shall not permit hazardous wastes or other wastes to be imported from a non-Party unless these is a bilateral, multilateral or regional agreement allowing this import (Article 4, paragraph 5) and (Article 11, paragraph 1)

o        Each Party shall not permit hazardous wastes or other wastes to be exported to a non-Party unless these is a bilateral, multilateral or regional agreement allowing this import (Article 4, paragraph 5) and (Article 11, paragraph 1)

o        Each Party shall ensure that persons involved in the management of hazardous wastes or other wastes shall prevent pollution and minimize potential impacts on human health and the environment (Article 4, paragraph 2 (c)).

o        Each Party shall prohibit all persons under its national jurisdiction from transporting or disposing of hazardous wastes or other wastes unless such persons are authorized to do so (Article 4, paragraph 7 (a)).

o        Each Party shall require that hazardous wastes and other wastes that are being transported to another country to be properly labelled according to international rules and standards (Article 4, paragraph 7 (b)).

o        Each Party shall require that any person who takes charge of a transport of hazardous wastes or other wastes from one country to another to sign the movement document (see details of movement document) (Article 6, paragraph 9).

o        Each Party shall require that any person who takes charge of a transport of hazardous wastes or other wastes that pass through (transits) another country to inform the transit country in writing. (Article 2, paragraph 13).

o        Each Party shall notify the Secretariat of any bilateral, multilateral or regional agreements or arrangements it has agreed upon for the purposes of moving hazardous or other wastes. (Article 11, paragraph 2).

o        Each Party which potentially could be an importer of hazardous or other wastes may write to the exporter and:

·         consent to the import with or without conditions,

·         deny permission for the import, or

·         request additional information (Article 6, paragraph 2)

o        Each Party shall ensure that any export of hazardous or other wastes is covered by insurance, bond or other guarantee as required by the importer or transit country (Article 6, paragraph 11)"

The Basel Convention was concluded in March of 1989 and a complete text of the final agreement can be found at Globelaw.com, as can the Basel Convention Rules of Procedure. For an interesting look at a case study involving the Basel Convention, look at the piece by Kevin Cuddy (1992) in American University's TED (Trade and Economic Development) Online Journal entitled "Basel Convention on Waste Trade." Likewise Phillipe Roch of Ourplanet.com provides another interesting retrospective on the Basel Convention entitled "The Basel Convention: Ten Years On." The Congressional Research 1998 report on the convention is also worth reviewing.

The Basel Convention defines wastes as "substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law." Under the Convention, 'disposal' means any operation specified in Annex IV to the Convention. Annex IV contains two lists of 'disposal operations'. These are:

·         Annex IVA which sets out operations which do not lead to the possibility of resource recovery, recycling, reclamation, direct re-use or alternative uses; and

·         Annex IVB which sets out operations which may lead to resource recovery, recycling, reclamation, direct re-use or alternative uses.

In 1995 the Basel Convention was amended with what is now known as the "Basal Ban" in which signatory parties " agreed to an immediate ban on the export from OECD to non-OECD countries of hazardous wastes intended for final disposal. They also agreed to ban, by 31 December 1997, the export of wastes intended for recovery and recycling." Since 1995, the Basel Ban has been the dominant goal and activity of the treaty. The U.S. has vociferously opposed the ban, preferring instead to selectively ratify the Basel Convention. While the U.S. has financially contributed to the Secretariat of the Basel Convention, it has not ratified the treaty - primarily because doing so would require a number of changes in the Resource Conservation and Recovery Act (RCRA) to include:

·         Expanding  EPA authority beyond its current statutory limits to  to stop waste exports in cases where it believes the waste would not be managed in an environmentally deleterious  manner.

·         Defining what the term " environmentally sound management" (ESM) means within the context of RCRA as well as addressing the issue of how the U.S. EPA would go about evaluating the "environmentally sound management" practices of  overseas receiving facilities.

·         Providing EPA the authority to repatriate wastes from other countries whenever such wastes are deemed to not be managed in an environmentally sound fashion (also known as the “go get it and bring it back provision”). Currently, EPA lacks the authority to require a company to retrieve waste from a foreign locale and return it to the U.S. for proper disposal. 

To date, the U.S. has not ratified the Basel Convention.

The Bamako Convention:

The Bamako Convention, adopted in January 1991 among African nations (Organization of African Unity), was a response to the Basel Convention, reflecting the concerns of OAU members that a the total ban on exporting hazardous wastes into Africa were not adequately addressed. According to the Center for International Earth Science Information Network at Columbia University, the objective of this convention was to " To create a framework of obligations to strictly regulate the trans-boundary movement of hazardous wastes to and within Africa." The convention can be summarized as follows:

"The summary of provisions include Scope of the Convention, which is confined to hazardous wastes, though not wastes from ship discharges covered by another Convention. Hazardous substances banned, cancelled or refused registration by government regulatory action for health or environmental reasons are defined as hazardous wastes under the Convention. Radioactive wastes are covered by the Convention. State Parties are tasked with responsibility for the enactment of legislation identifying and categorizing hazardous wastes not already listed in the Convention. The Convention enumerates general obligations of States Parties in respect of the enforcement of a ban on hazardous waste import, and on the dumping of hazardous wastes at sea and internal waters, in respect of waste generation, and the adoption of precautionary measures. State Parties are required to establish monitoring and regulatory authorities to report and act on trans-boundary movement of hazardous wastes. The Convention also stipulates the requirement of cooperation between States Parties, and with international organizations, in the fulfillment of the objectives of the Convention and provisions on the exchange of information among State Parties on incidents of hazardous wastes, and on approaches to a solution of the problems identified. The Convention establishes a secretariat to serve a Conference of the Parties and some financial. It also deals with the procedure for settlement of disputes. The Convention has the following annexes: categories of wastes which are hazardous waste; list of hazardous characteristics; disposal operations; information to be provided on notification; information to be provided on the movement document; arbitration."