THE BASEL CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND THEIR DISPOSAL

DR. I. RUMMEL-BULSKA¹ AND MS. K. KUMMER²

¹Chief, Environmental Law Unit, UNEP

²Programme Officer, Environmental Law Unit, UNEP

1. INTRODUCTION

After 18 months of negotiations, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was adopted on 22 March 1989 by 116 States participating in the Conference of Plenipotentiarities on the Global Convention on the Control of Transboundary Movement of Hazardous Wastes, which was convened by the Executive Director of the United Nations Environment Programme (UNEP) and held in Basel at the invitation of the Government of Switzerland. The Final Act of the Basel Conference was signed by 105 States and the European Economic Community (EEC). The Conference also adopted eight resolutions relating to the further elaboration and the implementation of the Convention.

The Basel Convention is the result of negotiations in an organizational meeting and five sessions of the Ad Hoc Working Group of Legal and Technical Experts with a Mandate to Prepare a Global Convention on the Control of Transboundary Movements of Hazardous Wastes, which were held between October 1987 and March 1989. Experts from 96 States participated in the sessions of the Working Group and representatives of over 50 Organizations attended as observers.

As of 22 March 1990, 53 States and the EEC have signed the Basel Convention. In accordance with Article 25 of the Convention, it will enter into force upon ratification by 20 States. To date, three States have ratified the Convention and a number of others have initiated the ratification process.

2. OUTLINE OF THE GENERAL PRINCIPLES OF THE BASEL CONVENTION

The Basel Convention is based on the following principles regarding the generation, management and disposal of hazardous wastes and other wastes.

(1) The generation of hazardous wastes and other wastes must be reduced to a minimum in terms of quantity as well as hazard potential (Preamble, para. 3, 17; Article 4, para. 2(a)).

(2) Where the generation of hazardous wastes or other wastes is unavoidable, they must be disposed of as close as possible to their source of generation. (Preamble, para. 8; Article 4, para. 2(b) and (d)). Moreover, the environmentally sound management of the wastes must be guaranteed, whatever the place of their disposal (Preamble, para. 4, 5: Article 4 para. 8). Hazardous wastes shall be exported only if the state of export does not have the technical capacity and facilities to dispose of them in an environmentally sound manner (Article 4, para. 9(a)). The export of hazardous wastes and other wastes is prohibited if the exporting state has reason to believe that their environmentally sound management and disposal would not be guaranteed in the prospective state of import (Preamble, para. 23: Article 4, para. 2(e)). Likewise, a state shall prohibit the import of hazardous or other wastes into its territory if it has reason to believe that they would not be managed in an environmentally sound manner (Article 4, para. 2(g)).

In other words, the ultimate aim of the provisions of the Basel Convention is to provide an incentive for the reduction of the generation and transboundary movements of hazardous wastes and other wastes to a minimum, and for the environmentally sound management and disposal of such wastes (Preamble, para. 9, 10, 17, 18, Article 4, para. 2(d)).

(3) Every state has the sovereign right to ban the import of hazardous wastes or other wastes (Preamble, para. 6). A state exercising this right shall inform the other states, through the Secretariat of the Convention, of its decision. No state shall allow any transboundary movement of hazardous wastes or other wastes to a state which has prohibited their import (Article 4, para. 1(a), (b); Article 13). The parties shall also prohibit the export of hazardous or other wastes to a group of states belonging to an economic and/or political integration organization if the national legislation of these states prohibits such imports (Article 4, para. 2(a)).

(4) The export of hazardous wastes to a state which is not a party of the Basel Convention, as well as the import of hazardous wastes from a non-party state, is prohibited (Article 4, para. 5). Parties have the right, however, to enter into multilateral, bilateral or regional agreements with other parties or with non-parties, provided that such agreements establish requirements no less environmentally sound than the Basel Convention and their provisions are no less stringent. The Secretariat of the Convention must be informed of any such agreement entered into by a party (Article 11).

(5) Any transboundary movement of hazardous wastes or other wastes which is permissible under the provisions of the Basel Convention must be carried out in accordance with the control measures stipulated by the Convention. A summary of these control measures is given in paragraph 3 below.

(6) Hazardous wastes or other wastes subject to transboundary movement must be packaged, labeled and transported in conformity with generally recognized international rules and standards and due account must be taken of relevant internationally recommended practices (Article 4, para. 7(c)).

3. THE PROBLEM OF ENFORCEMENT

The above outline already gives an idea of the importance of appropriate enforcement mechanisms. In fact, enforcement is one of the most essential problems in connection with international treaties. Without strong enforcement measures, the principles outlined above would be in danger of remaining a mere declaration of intentions.

The importance of enforcement measures is particularly evident in the case of the Basel Convention. Unlike some other international agreements, this treaty puts a very strong emphasis on monitoring and control. It obligates States to adopt specific control measures and sets up a control system which shall be coordinated by the Convention Secretariat.

(1) The international level: The Convention contains various provisions related to enforcement. A number of these outline the procedures in some detail, spelling out the responsibilities of the Party States towards each other. The Convention Secretariat has the function of coordinating and monitoring these efforts.

(2) The national level: Some provisions of the Convention provide a framework for enforcement and delegate the elaboration of concrete measures to Party States. Measures also have to be adopted which are not explicitly spelled out in the Convention. In both cases relevant measures have to be adopted by national legislation, and government authorities have to be established to assume the responsibility of carrying out enforcement measures. The role of industry in this context will also need to be examined.

Since the Basel Convention has not as yet entered into force and no country has completed the establishment of relevant rules, regulations and enforcement mechanisms, this paper cannot give an account of practical achievements in this field. The following paragraphs provide a summary of the main provisions of the Convention and discuss, in outline, enforcement measures which will need to be adopted in the light of each provision.

4. FOCAL POINT AND COMPETENT AUTHORITY

The Basel Convention obligates each state to establish two governmental bodies, the functions of which shall be related to carrying out and monitoring the enforcement of its provisions:

(1) one as more “competent authorities” whose main function shall be the handling of the notification procedures (Art. 5, art. 2 para. 6). This procedure is outlined in para. 6 below.

(2) one “focal point” which shall be in charge of receiving and transmitting the information which states are required to provide to each other under the provisions of the Convention (art. 5, art. 2 para. 7). The exchange of information is referred to in para. 6 below.

The legal character of these bodies and the exact definitions of their functions must be determined by the national legislation of each party. Since additional enforcement measures will have to be adopted by states, other functions may be attributed to these agencies, or additional government agencies may be established to carry out enforcement measures provided for by national laws and regulations.

5. DEFINITION OF HAZARDOUS WASTES AND OTHER WASTES COVERED BY THE BASEL CONVENTION

The Basel Convention defines wastes as “substances which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law” (Article 2, para. 1). Disposal is defined in Annex IV. Besides operations leading to final disposal of the wastes, such as landfill, incineration or release into a water body, the definition includes operations leading to resource recovery, recycling, reclamation, direct re-use or alternate use. Thus, not only wastes intended for disposal but also wastes subject to the recycling operations contained in Annex IV are subject to the provisions of the Convention.

The scope of the Basel Convention includes two categories of wastes:

(1) Hazardous Wastes: this category is defined in two of the technical annexes of the Convention. A waste is considered hazardous for the purposes of the Convention if it belongs to any category contained in Annex I, unless it does not possess any of the characteristics listed in Annex III (Article 1, para. 1(a)). A waste which is not covered by the Annexes is also considered hazardous for the purposes of the Convention if it is defined as, or considered to be, hazardous by the national legislation of one or more of the parties involved in a movement of the waste in question (Article 1, para. 1(b)).

(2) “Other wastes”: Annex II lists two types of wastes – household wastes and incinerator ash – which are not defined as hazardous wastes but are also included in the scope of the Convention (Article 1, para. 2).

Radioactive wastes and wastes covered by the International Convention for the Prevention of Pollution from Ships (MARPOL) are excluded from the scope of the Basel Convention (Article 1, para. 3 and 4).

In this instance, it is very important that the list of wastes covered by the Convention (Annex I and II) and the list of hazardous characteristics (Annex III) be made available to the relevant enforcement agencies of the Party States. In addition, every Party State should incorporate into its national legislation comprehensive lists of wastes defined as hazardous in addition to the wastes contained in Annexes I-III of the Convention. These lists must also be made available to enforcement agencies.

In every case of an intended transboundary movement of hazardous wastes, it will have to be determined whether or not the waste in question is considered hazardous and is therefore within the scope of the Convention.

Article 4 para. 7(a) provides that States shall prohibit all persons under their national jurisdiction from transporting or disposing of hazardous wastes unless such persons are authorized to perform this type of operation. In practice, this means that States will have to introduce a licensing or permit system. Such a system could take different forms. It could either provide for a general license or permit to be issued to a limited number of persons to carry out such operations, or it could provide for a license or permit to be issued for every intended shipment. In any event, such a system could provide a mechanism to establish which wastes are covered by the Convention and are therefore subject to the control system. Among other things, it would provide the agency with the relevant information on intended waste transports which would enable it to verify the compliance with the regulations by the holders of permits or licenses.

6. CONTROL MEASURES

As noted above, transboundary movements of hazardous wastes and other wastes are permissible only if there does not exist a more environmentally sound alternative, and if they take place between parties to the Convention, none of which has prohibited the import of such wastes. Where transboundary movement is generally permissible, the Convention provides for an elaborate control system which is based on the principle of prior informed consent (PIC). The following is a summary of the rights and obligations of the states of export, import and transit in this context.

The state of export has the duty to inform the competent authority of the state of import off any intended transboundary movement of hazardous wastes or other wastes. The state of export can provide this information itself or require the generator or exporter to do so. The information provided must be sufficiently detailed to enable the authorities of the state of import to assess the nature and the risks of the intended movement. Among other things, it must specify the reason for the export: the exporter, the generator, the site of generation and the process by which the wastes are generated, the nature of the wastes and their packaging as well as the intended itinerary, the site of disposal, the disposer and the method of disposal as per Annex IV (Article 6, para. 1; Annex V A).

As noted above, the handling of these requirements are within the competence of the “competent authority” which shall be established by every state under article 5 of the Convention. A system will have to be established by the competent authority under which the relevant information can be obtained from individual shipping companies or any other person designed to be responsible by the authority. Since the exporting state has the responsibility to transmit comprehensive and correct information on each shipment to the state of import, a system will also need to be established by the information provided will be verified. This, of course, means that substantive technical expertise would have to be made available to the competent authority. In this context, the possible involvement of industry would have to be examined. A feasible approach would be, for example, to license private companies having the relevant technical expertise to assess the contents of hazardous waste shipments and their conformity with the information provided by shipping companies in accordance with the licensing system.

The state of import must respond to the notifier in writing, consenting of the movement with or without conditions, denying permission for the movement or requesting further information. The state of export may not allow the movement to commence until written consent has been given and confirmation of the existence of a contract between the exporter and the disposer, specifying the environmentally sound management of the wastes in question, has been received (Article 4, para. 1(c); Article 6, para. 2 and 3).

A transboundary movement of hazardous wastes and other wastes can take place through one or more states other than the states where the wastes are finally disposed. Unlike the states of export and import, a transit states can be a state which is not party to the Convention. Regarding the rights and duties of transit states, the Convention provides for the following:

The state or states of transit, whether or not parties to the Convention must be given prior notification containing the same information as is given to the state of import (Article 6, para. 1 and 4; Article 7).

If the state of transit is not a party to the Convention, the subsequent procedure is the same as for the state of import, namely that the movement of hazardous wastes may not be allowed to commence unless the transit state has given prior written consent (Article 7; Article 6, para. 2).

In the case of a transit state which is a party to the Convention, the transit state must also be given prior notification of any intended movement. After receiving the notification, the transit state which is a party must first provide the notifier with an acknowledgement on receipt of notification. It shall then respond to the notifier within 60 days, granting or denying permission for the movement to take place (Article 6, para. 4). However, a state which is a party to the Convention can also decide to waive the requirement of prior written consent for transit transboundary movements of hazardous wastes, either generally or under specific conditions. Notice of such a decision must be given to the other parties through the Secretariat. If a party state has waived the requirement of prior written consent, the state of export may allow the transit movement to proceed through that state if it has received no response within 60 days after receipt of a given notification by the state of transit (Article 6, para. 4: Article 13).

In other words, every transit state has to be given prior notification of an intended hazardous waste movement. A transit state which is a party can waive the requirement of prior written consent, whereas a non-party transit state has to reply to the notification, otherwise the transit cannot proceed.

The Convention specifies modifications of the procedure of prior informed consent in a case where the wastes in question are not considered to be hazardous by all the state involved in the movement (Article 1, para. 1(b)). The principle is that every state which considers the waste to be hazardous is accorded the rights pertaining to its position in the transaction, even if other states concerned do not define the wastes as hazardous (Article 6, para. 5(a) to (c)).

*(Transit states have to adopt the same measures as import states. For states which are export states as well as import or transit states, the enforcement system would have to be modified accordingly).

Every person who takes charge of a transboundary movement of hazardous wastes or other wastes must be required to sign a movement document. The disposer must inform the exporter and the state of export of the receipt of the wastes and the completion of their disposal. Insurance coverage must be provided for every transboundary movement of hazardous wastes or other wastes (Article 6, para. 9 and 11, Annex V B).

*(Movement document is extremely important for assessment and enforcement. Ideally it would be standardized or a multilateral basis to facilitate cooperation between states).

*(Insurance: guidelines to be adopted).

7. ILLEGAL TRAFFIC

Any transboundary movement of hazardous wastes or other wastes which does not conform to the provisions of the Convention is deemed illegal traffic. Specifically, any movement carried out in contravention of the control system as outlined above is illegal under the Convention (Article 8, para. 1(a) to (d)).

The Convention states that illegal traffic of hazardous wastes or other wastes is criminal (Article 4, para. 3). Every party has an obligation to introduce national legislation to prevent and punish illegal traffic in hazardous wastes and other wastes (Article 4, para. 4: Article 9, para. 5).

In the context of illegal traffic, the state of export is responsible for the actions of the exporter and the generator, and the state of import is responsible for the actions of the importer and the disposer. The state responsible for the action leading to an illegal movement has the obligation to ensure the environmentally sound disposal of the wastes in question, by re-importation into the state of export or otherwise, within 10 days of receiving information about the illegal movement. If the responsibility cannot be assigned to any state, the states involved in the movement must cooperate in ensuring the environmentally sound disposal of the wastes (Article 9, para. 2 to 4).

The parties may request the Secretariat of the Convention to assist them in identifying case of illegal traffic. The Secretariat shall immediately circulate any information on such cases to the parties concerned (Article 16, para. 1(i)).

*(Role of Secretariat in this to be discussed – very important).

8. DUTY TO RE-IMPORT

If a transboundary of hazardous wastes or other wastes which is otherwise carried out in accordance with the provisions of the Convention cannot be completed according to the contractual agreement, the state of export has a duty to ensure the re-importation of the wastes if alternative arrangements for their environmentally sound disposal cannot be made within 90 days from the time the exporting state and the Secretariat have been informed (Article 8).

9. INTERNATIONAL COOPERATION, TECHNICAL ASSISTANCE AND TRANSMISSION OF INFORMATION.

In accordance with the aim to reduce the generation as well as the transboundary movements of hazardous wastes and other wastes to a minimum, the Convention calls for international cooperation between parties in areas related to environmentally sound waste management, such as development of low-waste technologies and environmentally sound waste management systems, transfer of technology and know-how, training of technicians, harmonization of technical standards and guidelines, and monitoring of the effects of waste management on human health and the environment. Special consideration is to be given to assisting developing countries which are parties in these areas (Preamble, para. 20, 21, Article 10). Every developing country which is a party is entitled to receive technical assistance from developed countries which are parties, without differentiation between developing countries consenting to important hazardous wastes from the industrialized world and countries banning such important. In accordance with Articles 4 para. 8 and 15 para. 5(e), the Conference of Plenipotentiaries adopted Resolution 8, which calls for the establishment of a working group to develop technical guidelines for the environmentally sound management of hazardous wastes, taking into account the situation of developing countries in particular. UNEP is currently working on the preparation of a first draft.

The effectiveness of the control measures provided by the Convention depends largely on the accessibility of relevant information. The Convention therefore calls for transmission of information related to the control system, such as nation definitions of hazardous wastes, authorities responsible for giving and receiving notifications or transboundary movements, decisions made by parties to ban the import and/or export of hazardous wastes and other wastes, decisions by transit states not to require prior written comment, and bilateral multilateral or regional agreements entered into by parties. The parties shall also inform each other on particulars of transboundary movements in which they have been involved, accident occurring during transboundary movements, and measurements adopted by them in implementation of the Convention (Preamble, para. 11; Article 4, para. 2(h); Article 13).

10. PROTOCOL AND LIABILITY

The Basel Convention obligates the contracting parties “to cooperate with a view to adopting, as soon as practicable, a protocol setting out rules and procedures in the field of liability and compensation for damage resulting from the transboundary movement and disposal of hazardous wastes and other wastes” (Article 12). The Basel Conference also adopted a resolution requesting the Executive Director to establish a working group of legal and technical experts to develop elements for inclusion in a protocol on liability (Resolution 3). The UNEP secretariat is currently preparing a first draft for submission to the groups of experts.

11. CONVENTION SECRETARIAT

The Convention provides for the establishment of a Secretariat, the main functions of which shall be to ensure the cooperation between Parties and the transmission of information required under the provisions of the Convention. It shall also assist parties in the implementation of the Convention, mainly by identifying sources of technical assistance, training and know-how related to the environmentally sound waste management and the handling of the notification system, as well as consultants or consulting firms qualified to assist them in the assessment of notifications, hazardous wastes shipments and disposal facilities. The Secretariat shall also assist parties, on request in identifying cases of illegal traffic and cooperate to assist parties in emergency situations (Article 16, para. 1). Thus, the Convention Secretariat has an important monitoring function in the implementation of the provisions of the Convention.

In accordance with Article 15, para. 2, UNEP carries out the duties of the Secretariat on an interim basis. The interim Secretariat is located in Geneva (Switzerland). The conference of the parties, at its first meeting after entry into force of the Convention, will designate the Secretariat from among the competent intergovernmental organizations which have indicated their willingness to assume its functions (Article 16, para. 3). It will also adopt financial rules to determine the financial participation of the parties (Article 15 para. 3). During the interim period of operation, the costs of the Secretariat shall be met by voluntary contributions from signatory states and parties. To this end, Resolution 6, adopted by the Basel Conference, calls upon all states to consider voluntary contributions towards the costs of the interim Secretariat.

12. THE POSITION OF DEVELOPING COUNTRIES

Developing countries as well as non-governmental organizations, have repeatedly expressed their concern about the fact that the Basel Convention does not, in principle, ban transboundary movements of hazardous wastes and other wastes. Concern has also been expressed regarding the adequacy of the control system provided by the Convention. It is feared that many countries, especially developing countries, do not possess the necessary technical capacity and know-how to make appropriate use of the control system, and that illegal practices will therefore continue.

The Convention emphasizes the sovereign right of every state to ban the import of hazardous wastes into its territory. This right is enforced by the notification of such decisions to the other parties, who then have a legal obligation to prohibit any exports of hazardous wastes and other wastes to such a state. The monitoring function of the Secretariat is important in this context.

The Basel Convention, as a global legal instrument, must meet the needs and requirements of all the regions of the earth. A total ban of all transboundary movements of hazardous wastes and other wastes would be inappropriate in cases where it is more environmentally sound to dispose of a certain type of wastes of another country where the necessary disposal facilities are available. A general prohibition of such movements would be contrary to the principle of environmentally sound waste management. It would, for example, prevent the transfer of hazardous wastes from one developed country to another which has special disposal facilities for that particular type of wastes. It would also prevent the establishment of joint disposal facilities by a group of neighboring countries, and would force every country to provide its own disposal facility for every type of wastes. This would lead to inappropriate situations, for example if a factory was located near a border and the wastes generated by it could be best disposed in a facility on the other side of the border, or if the amount of a certain type of waste generated within one country was so small that the establishment of a special disposal facility for that country alone would not be justified. In this context, it should be noted that the vast majority of the transboundary movements of wastes generated in developed countries take place between one developed country and another, in accordance with bilateral agreements.

However, the specific needs of groups in states or regions with similar conditions and aims can be met under the provision of Article 11 of the Convention. This provision allows parties to enter into bilateral, multilateral or regional agreements with other parties or non-parties, provided such agreements establish requirements no less environmentally sound than those of the Basel Convention.

Any group of states could, for example, adopt an agreement providing for a total ban of imports of hazardous wastes and other wastes into their territories. Such an agreement would then be notified, through the Secretariat, to all parties to the Basel Convention, who would have the obligation to prohibit exports to or through any of the states party to the agreement. Article 4, para. 2(e) specifically prohibits exports of hazardous wastes or other wastes to a group of states belonging to an economic and/or political integration organization – particularly developing countries – which have banned the import of such wastes. Thus, the provisions of the Basel Convention would ensure that such a collective ban would be respected by all its parties.

The control system, which is one of the cornerstones of the Basel Convention, ensures the enforcement of import bans and provides for strict control of such movements as are permissible under environmental aspects. The monitoring function of the Secretariat is essential in this context. Without such a system, transboundary movements of hazardous wastes would continue uncontrolled.

The justified concerns of developing countries regarding the lack of technical capacity and know-how which would enable them to handle the control system are taken into account by the strong emphasis on international cooperation between parties in technical matters related to environmentally sound waste management. Special consideration is given to assisting developing countries in such matters. Therefore, the Convention facilitates the improvement of developing countries’ capacities regarding the management of wastes, including wastes generated within those countries. This is of particular importance, given the growing industrialization of developing countries.

The Basel Convention is the only existing global legal instrument regulating transboundary movements of hazardous wastes. As noted above, its provisions ensure protection of countries against uncontrolled dumping of toxic wastes and promote environmentally sound waste disposal and minimization of waste generation. The control system ensures that the Convention does not remain a mere declaration of intentions, but that the rights of countries are respected. It is therefore important that as many countries as possible become parties to the Basel Convention to achieve effective control of transboundary movement and disposal of hazardous wastes worldwide.