THE BASEL CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND THEIR DISPOSAL
IWONA RUMMEL-BULSKA AND PIERRE PORTAS
UNEP/ISBC, Case Postale 59, 1292 Chambesy-Geneva, Switserland
SUMMARY
The Basel Convention comprises realistic measures to reduce and strictly control the movement of hazardous wastes, reduce their generation, ensure that such wastes are disposed of in an environmentally sound manner, and protect the global environment from the possible harmful effects of movements and disposal of hazardous wastes.
The generation and movements of hazardous wastes originate in activities in individual countries. National capability to reduce the quantity and manage hazardous wastes in an environmentally sound manner should be developed as a priority. The development of national technical and legal infrastructure, including legislation and regulation, also needs to be undertaken. Training, education and public awareness are important elements in the development of countries' capability. Where there is a lack of resources and expertise, technical assistance should be provided through bilateral and multilateral funding.
The arena of international environmental law is dynamic, and the Basel Convention is designed to keep pace with change and to allow for future amendments and strengthening of its provisions. The Basel Convention is still evolving. The elements of a Protocol to the Convention on Liability and Compensation were identified by a UNEP working group during 1990-91, and mechanism for the implementation of the Convention will be considered by the Conference of the Parties to the Basel Convention. Draft technical guidelines for the environmentally sound management of hazardous wastes will be submitted to the Conference for adoption. Draft model national legislation on hazardous waste management and disposal has been developed and will be also presented to the Contracting Parties meeting.
1 INTRODUCTION
The generation, storage, treatment, transport, recovery and disposal of hazardous wastes pose a real problem to society and represent a serious danger for man and the environment. There is great concern for the future if this issue is not properly addressed; it will necessitate vigorous actions by governments, business and industry, by people and international organizations for decades to come.
No one knows the true sum of man's toxic throwaways. In the last 30 years, billions of tons of hazardous wastes have been dumped or land-filled in or on the land, some in the sea and vast amounts still move across frontiers unregistered.
Uncontrolled or inefficient surveillance of transboundary movements and disposal of hazardous wastes result too often in long term exposure of the population to their hazards. Illegal traffic of these wastes can and often had adverse effects, both acute and long term, on human health and the environment with related detrimental consequences on the quality of life.
The potential damaging effects of hazardous wastes has led the world community to take measures to manage these wastes in an environmentally sound manner and to aim towards minimizing their production and preventing their generation. In this context, health and environmental factors have started to play a major part in the selection of appropriate hazardous wastes management practices.
In response to the growing recognition of the health and environ-mental risks associated with hazardous wastes, governments have brought into force a series of laws to control the generation, handling, storage, treatment, transport, disposal and recovery of these wastes.
2 BASEL CONVENTION
The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was adopted unanimously on 22 March 1989 by the 116 States participating in the Conference of Plenipotentiaries, which was convened by the Executive Director of the United Nations Environment Program (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 Basel Convention is the result of six sessions of the Ad Hoc Working Group (Budapest, 27-29 October 1987, (organizational meeting)); Geneva 1-5 February 1988; Caracas, 6-10 June 1988; Geneva, 7-16 November 1988; Luxembourg, 30 January - 3 January 1989; and Basel, 13-17 March 1989), in which experts from 96 States and representatives of over 50 organizations participated. Informal negotiations conducted by the Executive Director with governments, organizations and industry also played an important part in the success of the preparatory process. 53 States and the European Economic Community have signed the Basel Convention and as of July 1992, 25 countries ratified or acceded to the Convention which entered into force on 5 May 1992. The following are the countries which ratified or acceded to the Convention:
Argentina Australia China Czech & Slovak F.R. El Salvador Estonia Finland France Hungary India Jordan Latvia Liechtenstein Maldives Mexico Nigeria Norway Panama Poland Rumania Saudi Arabia Sweden Switzerland Syria Uruguay 3 THE PROVISIONS OF THE CONVENTION
The generation of hazardous wastes as well as their transboundary movements shall be reduced to a minimum. The wastes should be disposed of as close as possible to their source of generation.
Every State has the sovereign right to ban the import of hazardous wastes. The parties to the Convention shall not allow any transboundary movement of hazardous wastes to a State that has prohibited their import. Transboundary movements shall also be prohibited if the exporting State has reason to believe that the wastes in question shall not be managed in an environmentally sound manner.
A party shall not permit hazardous wastes to be exported to a non-party or to be imported from a non-Party, unless it is in accordance with a bilateral, multilateral or regional agreement, the provisions of which are no less environ-mentally sound than those of the Basel Convention.
The State of export shall not allow a transboundary movement of hazardous wastes to commence until it has received the written consent, based on prior detailed information of the State of import, as well as of any State of transit.
When a transboundary movement of hazardous wastes which is carried out in accordance with the Convention cannot be completed in an environmentally sound manner, the State of export has the duty to ensure the re-importation of the wastes.
Transboundary movements of hazardous wastes which do not conform to the provisions of the Convention are deemed to be illegal traffic. The Convention states that "illegal traffic in hazardous wastes is criminal". The State responsible for an illegal movement of hazardous wastes has the obligation to ensure their environmentally sound disposal, by re-importing the wastes or otherwise. Every party shall introduce national legislation to prevent and punish illegal traffic in hazardous wastes.
The wastes covered by the Convention are defined in its Annexes which include a list of categories of wastes to be controlled (47 categories) and a list of hazardous characteristics. Hazardous wastes subject to transboundary movement must be packaged, labeled and transported in conformity with generally recognized international rules and standards. Since the authorities of many countries, especially developing ones, frequently do not have the trained specialists and technical know-how to assess information concerning hazardous wastes and handle it efficiently, the Convention calls for international co-operation involving, among other things, the training of technicians, the exchange of information, and the transfer of technology.
The Convention provides for the establishment of a Secretariat, the main functions of which shall be to process and disseminate information provided to it by the parties, to ensure co-operation between parties, and to provide assistance to them in implementing the Convention.
4 IMPLEMENTATION OF THE RESOLUTION ADOPTED IN BASEL (1989)
The Interim Secretariat for the Basel Convention (ISBC) which was established by UNEP in November 1989 in Geneva finalized in 1992 the implementation of the Resolutions included in the Final Act of the Conference of Plenipotentiaries which adopted the Basel Convention.
The Ad hoc Working Group which was established by the Executive Director of UNEP in order to implement Resolution 1 to consider the necessity of establishing mechanisms for the implementation of the Basel Convention, recommended the establishment and terms of reference of an open-ended Ad hoc Committee to meet between the meetings of the Contracting Parties.
In pursuance of Resolutions 2, 5 and 7, UNEP has taken requisite action for the harmonization of procedures provided for in the Basel Convention and other relevant international instruments. As a result of the cooperation with other organizations, the General Conference of the International Atomic Energy Agency (IAEA) adopted by its resolutions GC (XXXIV) Res. 530 (1990) a code of practice on the International Transboundary Movement of Radioactive Waste. Also, several resolutions were adopted within the framework of the International Maritime Organization regarding the control and prevention of dumping of hazardous and other wastes at sea as well as in respect to the rules and regulations related to the transport of hazardous wastes by sea.
As for the implementation of Resolution 3 on Liability and Compensation, the Ad hoc Working Group of Legal and Technical Experts which had two meetings was able to finalize its work in March 1992 by developing elements which might be included in a Protocol on Liability and Compensation for damage resulting from the transboundary movement and disposal of hazardous wastes and other wastes.
In accordance with Resolution 8 of the Basel Convention, the Executive Director established a Technical Working Group to prepare draft technical guidelines for the environmentally sound management of wastes subject to the Basel Convention. The Technical Working Group met twice in Geneva (in February and May 1992). A third meeting is scheduled to take place in Geneva in September 1992. The work undertaken, and recommendations made by the Group will be submitted for considerations by the parties at their first meeting and eventual adoption.
The main purpose of the technical guidelines is to:
provide information on the controls expected to be exercised at national level by governments of countries which are parties to the Basel Convention over the management of wastes, and in particular hazardous wastes, produced within national territories;
provide guidance to Competent Authorities designated by the parties to the Basel Convention in making a decision whether to consent or reject a proposed transboundary movement of wastes subject to the Basel Convention into or out of their country.
5 ENFORCEMENT IN THE CONVENTION
The Convention obligates parties to manage hazardous wastes in an environmentally sound way. This means that the States party to the Convention shall aim towards activities for the reduction and minimization of all risks of harm caused by hazardous wastes to health and the environment. Such activities should include, inter alia:
steps to reduce or avoid the generation of hazardous wastes;
steps to ensure proper recovery of such wastes;
steps to reduce to a minimum or eliminate the export/import of hazardous wastes. This entails the planning of environmentally sound disposal facilities, located as close as practicable to the source of generation, and the identification of the generators;
identification of the type of wastes subject to the Basel Convention and the total annual volumes by type acceptable for import, if any, and the corresponding environmentally sound disposal facilities to be used;
identification of all conditions required for granting of consent to exporters/importers desiring to move hazardous wastes through the territory of a transit country;
identification of the adequate and most effective process by which to optimize the environmentally sound disposal of wastes;
elaboration of contingency plans including risks analysis and emergency responses in case of accidents;
steps required to rehabilitate polluted landfilled areas or to redress ecological deterioration due to improper disposal of wastes;
steps needed to comply with recognized international transport rules, regulations, standards or code of practice;
steps to monitor pre-and-post disposal operations and effects;
steps to develop liability and compensation measures for damages resulting from transboundary movements and/or disposal of hazardous wastes;
timetable for implementation of the various and interrelated elements of a strategy for waste management.
6 ENFORCEMENT MEASURES
The importance of enforcement measures is particularly evident in the case of the Basel Convention.
A number of articles in the Convention obligate Parties to take appropriate legal, administrative and other measures to implement and enforce its provisions, including measures to prevent and punish conduct in contravention of the Convention as well as monitoring of measures taken. Examples are given below:
Article 4 (General Obligations), paragraph 13 requests Parties to review periodically the possibilities for the reduction of the amount and/or the pollution potential of hazardous wastes which are subject to transboundary movements.
Article 10 (International co-operation) obligates Parties to co-operate in monitoring the effects of the management of hazardous wastes on human health and the environment.
Article 13 (Transmission of information) states that Parties shall inform each other, through the Secretariat, of:
changes regarding the designation of competent authorities and/or focal points;
changes in their national definition of hazardous wastes;
decisions made by them not to consent totally or partially to the import of hazardous wastes or other wastes for disposal within the area under their national jurisdiction;
decisions taken by them to limit or ban the export of hazardous wastes or other wastes.
The Parties shall also submit an annual report, through the Secretariat, to the Conference of the Parties. The report shall contain information on:
The amount of hazardous wastes and other wastes exported, their category, characteristics, destination, any transit country and disposal method as stated on the response to notification.
The amount of hazardous wastes and other wastes imported, their category, characteristics, origin, and disposal methods.
Disposals which did not proceed as intended.
Efforts to achieve a reduction of the amount of hazardous wastes or other wastes subject to transboundary movements.
Measures adopted by them in implementation of this Convention.
Available qualified statistics which have been compiled by them on the effects on human health and the environment of the generation, transportation and disposal of hazardous wastes or other wastes.
Bilateral, multilateral and regional agreements and arrangements entered into pursuant to Article 11 to this Convention.
Accidents occurring during the transboundary movement and disposal of hazardous wastes and other wastes and on the measures undertaken to deal with them.
Disposal options operated within the area of their national jurisdiction.
Measures undertaken for the development of technologies for the reduction and/or elimination of production of hazardous wastes and other wastes.
Article 15 (Conference of the Parties) states that the Conference of the Parties shall keep under continuous review and evaluation the effective implementation of the Convention. Also, this article obligates the Conference of Parties to undertake three years after its entry into force, and at least every six years thereafter, an evaluation of its effectiveness and, if deemed necessary, to consider the adoption of a complete or partial ban of transboundary movements of hazardous wastes in light of the latest scientific, environmental, technical and economic information.
At 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 (i.e. duty to re-import). The Convention Secretariat has the function of coordinating these efforts and checking performance through annual reporting by parties and other information provided to it.
At 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 also needs to be examined.
The Basel Convention has entered into force in a limping way as the majority of the main generators have not yet ratified or acceded to the Convention. Although, these countries are adamant to become party to the Convention as soon as practicable, enforcement of the provisions of the treaty remains a difficult task without their presence and full participation. However, practical achievements in this field can be accounted for.
In order to provide assistance to the States to comply with obligations of the Basel Convention, which requests the parties to take appropriate legal, administrative and other measures to implement and enforce the provisions of the Convention, the Interim Secretariat for the Basel Convention has prepared a Model Law on the Control of Transboundary Movements of Hazardous Wastes and other Wastes and their Disposal.
Such model law focuses on both control of transboundary movements and the management of hazardous wastes. This model law which is being used by a number of countries, provides for elements to be included in national legislations in order to implement and enforce the Convention provisions, including measures to punish offenders.
The work undertaken by the Basel Convention Secretariat, and funded in great part by UNEP, in addition to voluntary contributions received from States, has greatly helped providing a frame for enforcement of the Convention in particular through the implementation of the Resolutions of the Final Act.
As mentioned earlier, the implementation of the Resolutions provides a foundation upon which parties can effectively comply with the provisions of the Convention.
In this regard, the following Resolutions are of importance for the development of enforcement mechanisms:
Resolution 1 - Mechanism for the implementation of the Convention
The Ad hoc Working Group of legal and technical experts set up by the Executive Director of UNEP recommended the establishment of an open-ended Ad hoc Committee to meet as necessary in order to present to the Conference of Parties proposals and recommendations. The proposed functions of the Ad hoc Committee are to:
Collect, through the Secretariat, information from parties and other sources on the operation of the Convention to provide the basis for the evaluation of its effectiveness.
Identify factors which might inhibit countries from becoming parties to the Convention.
Examine the practical implementation of the Convention.
Identify the specific needs of different regions and sub-regions for training and technology transfers regarding the sound management of hazardous waste and the minimization and the elimination where possible of their generation including clean production techniques. Taking into account existing structures, particularly UNEP, to consider the establishment, as a model in a region where the need is greatest, of a center for the training and transfer of technology; such a center of excellence should take into account the work on cleaner production and also draw on the work of existing institutions, particularly the Basel Convention Secretariat.
Review the technical guidelines for the environmentally sound management of wastes subject to this Convention, prepared by the technical working group established by Resolution 8 of the Basel Final Act, which might be required to continue its task after the first meeting of the Conference of the Contracting Parties.
Harmonize non-technical and administrative aspects such as notification, movement documents and corresponding procedures for transboundary movement, as a matter of priority.
Co-ordinate assistance to parties which may be in breach to enable them to comply with their obligations under the Convention.
Examine reports received from global, regional, sub-regional and other sources to monitor and assess all forms of illegal traffic of hazardous wastes, as well as the report of the Secretariat of the Basel Convention on the implementation of Article 16, paragraph 1(i) to assist parties upon request on their identification of cases of illegal traffic.
This Ad hoc Committee shall have the power to establish any other sub-groups to facilitate the performance of its functions.
Resolution 3 - Liability and Compensation
The set of elements developed by the Ad hoc Working Group will be recommended by the Executive Director of UNEP to the first meeting of the Contracting Parties to the Basel Convention for consideration with a view to adopting, in accordance with Article 12 of the Convention, a protocol setting out appropriate rules and procedures on the field of liability and compensation for damage resulting from transboundary movement of hazardous wastes.
These elements provide for a comprehensive regime to ensure adequate and prompt compensation from damage from the transboundary movement and disposal of hazardous wastes and other wastes, promote the protection of human health and the environment, and to enable the restoration of the environment.
At the request of the Ad hoc Working Group the ISBC elaborated draft articles of a Protocol on the financing, operation and management of an International Fund for immediate response and for compensation which will be considered by the first meeting of the Conference of Parties.
Resolution 8 - Technical Guidelines
The Secretariat for the Basel Convention prepared a draft Framework document at the request of the Technical Working Group set up by the Executive Director. The Framework document provides principles and elements for consideration by the parties to comply with the obligations of the Convention to manage wastes subject to this Convention in an environmentally sound way.
Although the Basel Convention provides for very stringent control mechanisms, dubious or illegal traffic in hazardous wastes continue. Developing countries, Eastern/Central European countries and the Russian Federation are particularly vulnerable to such abuses. There are many recorded cases of hazardous wastes destined for recovery which end up being dumped. Shortcomings in controls on the transport of wastes or discrepancies in the definition of wastes lead to many suspicious movements. Customs documents do not always correspond to the "product" transported. Illegal storage of hazardous wastes is often reported as interim storage which becomes later on a disposal operation. In addition, criminal acts still occur when hazardous wastes are illegally shipped into another country without the consent of that country.
7 CONCLUDING REMARKS
With the Basel Convention, the world community has the opportunity, for the first time, to implement a truly global legal instrument dealing with the control of transboundary movements of hazardous wastes and their disposal.
The Organization for Economic Co-operation and Development (OECD) estimates that in 1984, on average, a consignment of hazardous wastes crossed an OECD frontier every 5 minutes all year round. Over two million tonnes of those wastes are estimated to cross national frontiers of OECD European countries annually on the way to legal disposal sites. This figure represents 8 to 10% of all such wastes generated in these countries.
Other movements, which are illegal, are motivated by the possibility of important gains in transferring the problem to where controls or standards are less strict or because the vastness of the territory and the scant resources at the disposal of the importing country makes any attempt at serious surveillance impossible.
Such criminal acts prompted strong reactions by governments, international organizations and non-governmental groups.
In addition, faced with the increasingly higher costs of safely treating or disposing of hazardous wastes in countries where they are produced, many companies prefer to get rid of the problem at a lower cost by transporting them to another State.
Taking into account the fact that the quantity of wastes of all kinds is increasing, that the rapid pace of industrialization will necessitate careful attention to hazardous wastes prevention and management for decades to come, and that with the development of new chemical products, new sources of hazardous wastes are created, much remains to be done to properly address this complex challenge.
In exceptional cases and until the appropriate technology and adequate infrastructure are available, or if adequate storage or treatment is not possible in the generating country, it may be safer for human health and the environment to export hazardous wastes to a country capable of eliminating them in an environmentally sound manner.
Increased international co-operation is necessary to assist developing countries to manage and treat the wastes they generate in an environmentally sound way.
The Basel Convention will contribute substantially to improving the situation world-wide by reducing transboundary movements and by promoting environmentally sound management of hazardous wastes. The parties to the Convention will co-operate actively with each other to implement the Convention and, in particular, will assist developing countries in the development of sound management practices and adoption of cleaner production methods.
It is therefore of great importance that the provisions of the Basel Convention be implemented as soon as possible, effectively and efficiently, and in a spirit of solidarity, to be able to truly contribute to solving problems world-wide and to render accessible, practicable and environmentally acceptable options to deal with hazardous wastes.