Purpose and issues
With the development of global trade and international transport, risks related to transboundary movement and use of hazardous wastes and substances sparked increasing fears, especially in developing countries yet lacking the technical capacity and infrastructure to guarantee proper management and disposal under safe conditions.
The Basel Convention aims to protect human health and the environment against the deadly consequences of production, management, transboundary movement, and disposal of hazardous wastes. The driving philosophy of the text is that movement of hazardous waste is only justified in exceptional cases. Signatory Parties also commit to reduce hazardous waste production and carry out disposal as close as possible to the source of generation.
The Convention defines hazardous wastes, but the Parties are free to add other substances they consider hazardous to this list. This flexibility makes it possible for these countries to progress at their own pace, depending on their capacity for treatment of hazardous waste, and also their culture and prevalent public opinion.
The Convention imposes a certain number of general obligations. Parties shall:
– prohibit the export or import of hazardous and other wastes in or out of a State which is not Party to the Convention.
– prohibit the export of hazardous wastes covered by the Convention if the Party State of import does not consent in writing to the specific import.
– state clearly, to the countries concerned, the effects of transboundary movements on human health.
– assess health and environmental consequences for any planned movements of hazardous waste.
– limit the transboundary movement of waste involving no transport or disposal hazards.
– ensure proper packaging, labelling, standardisation of transport conditions, and traceability of authorised movements.
These obligations are therefore quite strict, requiring prohibitions, consent, and monitoring.
In 1999, the Parties to the Convention adopted the Protocol on Liability and Compensation, which has not yet entered into force. This protocol should ease the concerns of developing countries lacking the technical and financial resources required to deal with illegal or accidental spills of waste. The Protocol aims to establish a detailed model of liability and to implement financial compensation for damage resulting from transboundary movement of hazardous waste. Accidents linked to illegal waste trafficking are covered. For other incidents, the Protocol sets out financial responsibility at each stage of the transboundary movement (exporting, transit, importing, and final disposal).
Effects and application
Although with 170 Parties, the Convention aims for a worldwide scope, it is noteworthy that the world’s top waste producer, the United States, did not ratify the text. Waste disposal for that country is mainly organised through regional accords, such as those with Mexico and Canada. Several regional conventions restate various Basel Convention measures, such as the Bamako Convention of 20 March 1996, for Africa. The European Union, for its part, transposed the Basel Convention by the Council Regulation of 1 February 1993 (OJ L 30 6.2.1993). Moreover, on 30 March 1992, the OECD also issued its Council Decision on the Control of Transboundary Wastes Destined for Recovery Operations. Today, by reason of the large number of regulations on waste, there is a danger of contradictions between texts (Basel Convention, EU Council Regulation, and OECD Council Decision). International institutions are working towards harmonising these regulations.
There is still room for considerable progress, however, in the area of civil responsibility and implementing the Convention.
During the disposal controversy surrounding the decommissioned French aircraft carrier, Clemenceau, a French administrative judge ruled that the hull constituted “waste” (ruling of 15 February 2006) (1). Authorities thus had to suspend its shipment to India. The country’s highest administrative court, the Conseil d’Etat, based its ruling on: the EU Council Regulation of 1 February 1993 (interpreted as the transposition of the Basel Convention); French texts publishing the Convention; and the Council Directive of 15 July 1975 on hazardous waste. The ruling stated that these texts define “waste” as any object or substance which an owner seeks to dispose of, especially given its dangerous nature. It further stated that the export of waste for disposal or recovery is prohibited to all countries with the exception of OECD countries and those in the European Free Trade Association; India belongs to neither.
Monitoring and applying the Convention are overseen by the Conference of the Parties (COP) and the Secretary-General. The Convention especially provides for settlement via a prescribed arbitration process (article 20 and Annex VI). However, only a regime requiring individual civil responsibility for illegal waste disposal will ensure full application of the Convention.