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Email this citationCIAO DATE: 05/02
The Basel Convention and Transboundary Movements of Hazardous Wastes
Jonathan Krueger
The Royal Institute of International Affairs
Energy and Environmental Programme
May 1998, Briefing No. 45
The international community is increasingly turning to the use of multilateral environmental agreements (MEAs) to solve problems of global environmental degradation and transboundary pollution. One of the most important of these MEAs is the 1989 Basel Convention dealing with transboundary movements of hazardous waste. The Convention has been instrumental in helping to eliminate the dumping of industrialized countries' hazardous wastes on developing countries. However, the development of the regime has been slow and it is now tackling the more controversial issue of regulating 'recyclable' hazardous wastes. This briefing paper provides a short guide to the development and current status of the international effort to manage transboundary movements of hazardous wastes.
Introduction
One of the most contentious environmental issues brought to the international political agenda during the 1980s was the growth in uncontrolled transboundary movements of hazardous wastes. In particular, there was concern about rich, industrialized countries exporting such waste to poor, developing countries that lacked the administrative and technological resources to dispose of or recycle it safely. International awareness of the problems associated with the trade in hazardous wastes increased noticeably owing to several factors: the growing amounts of wastes being generated, closure of old waste disposal facilities and political opposition to the development of new ones, and the dramatically higher costs associated with the disposal of hazardous wastes in industrialized countries and thus the potential for profits to be made by exporting such wastes to countries with low disposal costs (i.e. developing countries).
In addition to these general trends regarding hazardous waste management, there were a number of prominent cases of illegal international hazardous waste movements – including the voyage of the 'toxic waste ship' Khian Sea in 1987–8 and the dumping of polychlorinated biphenyls (PCBs) from Italy in a farmer's backyard in Koko, Nigeria in 1988 – that further raised concern in the international community. 1 Combined with the increased preoccupation with environmental issues that characterized public opinion in industrialized countries in the late 1980s, these elements formed the wider international context surrounding the debate over controlling transboundary hazardous waste movements. This debate culminated in 1989 in the establishment of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.
The international generation of and trade in hazardous wastes
Exact figures regarding the amounts of hazardous waste generated internationally are quite difficult to obtain. The International Maritime Organization noted in its 1995 Global Waste Survey that 'the level of quantitative information that is available on hazardous waste generation around the world is sparse'. 2 Waste is, after all, usually an unwanted by-product of industrial, consumer or chemical production processes. Despite these limitations, however, some sources of information do exist. 3 The United Nations Environment Programme (UNEP) estimates total annual international generation of hazardous wastes to be between 300 and 500 million tonnes (mt), with OECD countries accounting for 80–90% of this quantity. The OECD estimates that hazardous waste generation in east European countries is around 19 mt per year while other non-OECD countries account for approximately 16 mt. Unfortunately, even within the OECD, different definitions of 'hazardous waste' are employed and such figures must therefore be treated with care. The key problem is that the definition of 'hazardous' can vary from country to country and the definition employed by the non-governmental sector (e.g. Greenpeace) is sometimes different again. Moreover, there are differences in the reporting systems for exports and imports in various countries, and often there is simply a failure or inability to provide data about waste imports and exports, hazardous or otherwise. (See Table 1 for data on hazardous waste generation in the OECD.)
It is generally accepted that about 10% of generated hazardous waste is shipped across international boundaries and that the majority of this is traded between OECD countries. Nevertheless, it has been estimated by Greenpeace that, before the Basel Convention came into force, approximately 5.2 mt of hazardous wastes were exported by industrialized states to eastern Europe and developing countries in the period 1986–90, and 2.5 mt exported from OECD to non-OECD countries between 1989 and March 1994. A report from UNEP also suggests that several hundred thousand tonnes of hazardous waste moved from OECD to non-OECD countries each year until 1994.
What are the causes of the international, and especially the North–South, waste trade? Briefly, it is usually suggested that the main causes are cheaper disposal costs in the South and opposition in the North to new hazardous waste disposal facilities to cope with increasing generation. This is illustrated by the fact that in the late 1980s, the average disposal cost for one tonne of hazardous waste in Africa was between US $2.50 and $50, while in the OECD it ranged from $100 to $2,000. However, there is another reason for international transfers of hazardous waste: their potential value as secondary raw materials to be recovered, reused or recycled. For example, the lead in spent lead-acid batteries may be recovered and reused. As Table 2 shows, the percentage of exported OECD waste destined for final disposal decreased from 53% to 41% from 1990 to 1993, while the share destined for recycling or recovery increased from 46% to 58% over the same period. The issue of the trade in 'recyclable' hazardous waste has become central to the development of the Basel regime.
The 1989 Basel Convention
The Basel Convention was negotiated under the auspices of UNEP between 1987 and 1989. Experts from 96 states participated in one or more of the often contentious negotiating sessions, and representatives of over 50 international organizations and NGOs attended as observers. In general, developing countries advocated a North–South ban on hazardous waste transfers, while some OECD countries preferred a regulatory system based on notification and consent. The Convention initially chose regulation over prohibition when it was signed in March 1989.
The objectives of the Basel Convention are to minimize the generation of hazardous wastes and to control and reduce their transboundary movements so as to protect human health and the environment. In order to achieve these objectives, the Convention contains several general obligations. For example, waste exports are prohibited to Antarctica (Art. 4.6) and to countries that have banned such imports as a national policy (Art. 4.1); additionally, waste exports to non-parties are prohibited unless they are subject to an agreement that is as stringent as the Basel Convention (Arts. 4.5 and 11). Those hazardous waste transfers that are permitted under the Basel regime are subject to the mechanism of prior informed consent (PIC), which requires parties not to export hazardous wastes to another party unless the 'competent authority' in the importing state has been properly informed and has consented to the trade. As of February 1998, there are 117 parties to the Convention, the only notable non-party being the United States.
The main decision-making body of the Convention, the Conference of the Parties (COP), has met four times since the Convention came into force in May 1992. There have also been working groups established on implementation issues, technical issues and the development of a protocol on liability and compensation. The UNEP-based Secretariat, located in Geneva, provides support and assistance to the parties, but has limited supervisory functions and is generally considered to be under-funded. 4 The issue of funding for the Basel Convention as a whole has been controversial. A Trust Fund for the Basel Convention and a voluntary trust fund for technical assistance to developing countries were established in 1992, but concerns regarding late and missing payments to these funds persist. The establishment of an Emergency Fund to assist in the event of accidents involving transboundary movements of hazardous waste also remains under discussion. 5
Developing country concerns
Before the conclusion of the Basel Convention in 1989, developing countries, and especially those from Africa, were keen to institute a global ban on hazardous waste movements from North to South. The transfer of hazardous wastes to poorer countries was seen by many in the developing world as a continuing form of colonial exploitation. When the Basel Convention resulted in a notification and consent regime rather than an outright ban, many developing countries and regions instituted their own import bans. In 1991 the African countries concluded the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, which has recently come into force, and there are now several regional hazardous waste trade agreements that ban waste imports. The number of individual countries with hazardous waste import bans is now over one hundred. The particular concerns of developing countries include the problems of 'sham' and 'dirty' recycling, illegal traffic, and the building of capacity to monitor and manage hazardous waste movements.
Many developing countries have supported the idea of a total ban on hazardous waste exports to their territories because of the dangers of 'sham' recycling (the listing of a waste as being destined for recycling when in fact it is simply dumped unsafely). Many of the most notorious instances of hazardous waste dumping, such as the Koko, Nigeria case, took place under the pretext of 'recycling'. 6 Dirty recycling – recycling or recovery of materials from hazardous wastes in such a manner as to be hazardous to the environment or the health of the people involved in the recycling operation (such as extracting lead from scrap metal waste without appropriate protection) – was another consideration for those seeking a global ban.
Developing countries have also expressed particular concerns about the illegal traffic in hazardous wastes because they often lack the resources and ability to monitor movements and are most vulnerable to health and environment problems resulting from illegal shipments. The parties to the Basel Convention have completed a draft 'Form for Confirmed Cases of Illegal Traffic' to be used to officially report cases of illegal movements, but many countries have expressed their desire for a more comprehensive set of activities that would monitor and prevent illegal traffic. 7
Underlying most of the concerns of developing countries is the issue of capacity. They feel that without the proper resources and ability to manage hazardous wastes and wastes traded internationally, there should be a global ban on this activity. The issue of such a ban was not settled with the signing of the Basel Convention and has been the focus of discussions at all the subsequent Conferences of the Parties.
From regulation to ban
The parties to the Basel Convention decided at the third Conference of the Parties (COP-3) in 1995 to ban hazardous waste exports for final disposal and recycling from what are known as Annex VII countries (members of the OECD, European Community and Liechtenstein) to non-Annex VII countries. The most controversial aspect of this decision, known as Decision III/1, is the ban on exports of wastes intended for recovery and recycling. Because of the economic interests of certain industrialized countries and, increasingly, some developing countries as well, in the maintenance of a trade in wastes for recycling, the ban may or may not be endorsed. The amendment must be ratified by two-thirds of the parties who were present at COP-3 in order to enter into force. As of March 1998, only eight countries (Finland, Norway, Luxembourg, Spain, Denmark, Sweden, the UK and Ecuador) and the European Community had ratified the ban amendment. 8
The debate has centred on the question of which wastes are defined as 'hazardous' for the purposes of recycling and recovery. One of the most frequent criticisms of the Basel Convention is that its definition of 'hazardous waste' is vague and open-ended. Wastes are designated as 'hazardous' if they belong to certain categories (Annex 1 of the Convention) or exhibit certain characteristics (Annex 3). Moreover, any waste defined as hazardous in the national legislation of a party is automatically considered hazardous in terms of the Convention. Concern that some wastes defined as hazardous in one country but not in another would be 'caught' by the blanket ban was addressed by assigning a Technical Working Group (TWG) the task of drawing up a list of banned (and exempt) wastes for report to the fourth Conference of the Parties, which was held in February 1998. At COP-4, parties accepted the lists that the TWG had created:
* List A (wastes characterized as hazardous and subject to the ban);
* List B (wastes exempt from the ban);
* List C (wastes not yet assigned to Lists A or B). (See Table 3.)
List A is now incorporated as Annex 8 of the Convention and List B as Annex 9. It is hoped that the legal clarity given by the decision to adopt the lists of wastes that are and are not subject to the ban will spur ratification of Decision III/1. The TWG is now tasked with discussing the placement of List C wastes in either Annex 8 or 9 and creating a procedure for reviewing or adjusting the lists for report to COP-5 in December 1999.
The impact of the Basel regime
It is generally accepted that the Basel Convention has helped to eliminate the most harmful of international hazardous waste transfers destined for final disposal. However, the ban on wastes for recycling has a potentially large impact on some recycling industries. For example, the trade in metal scrap and metal-bearing residues, used in some industries as 'secondary materials', had an average value of $37.2 billion per year (in constant 1985 US$) between 1980 and 1993, with the export of metal scrap from the OECD to developing countries totalling $2.9 billion in 1993. 9 Moreover, the flow ofmetal scrap from OECD to non-OECD countries (as a percentage of total world trade in metalscrap) increased from 5.2% in 1980 to 29% in 1993. 10 However, because trade statistics do not distinguish between hazardous and non-hazardous metal scraps, it is difficult to know how great an increase in hazardous material transfers to non-OECD countries this represents. The metal recycling industry has generally succeeded in having clean metal scrap exempted from the scope of the ban (as long as the metal is not contaminated with toxic materials, it is an Annex 9 entry).
Concern has also been expressed that developing countries, especially those that are quickly developing more advanced industrial capacities, would be harmed by the ban decision because they would lose access to a potential source of secondary raw materials. However, at least one study, on the case of non-ferrous metal-bearing waste (containing, for example, iron, steel, lead, copper or zinc), has concluded that while trade in some particular wastes (such as lead-acid batteries) may be adversely affected, the majority of non-ferrous metal waste with secondary value will not be subject to the ban. 11
Critics of the ban point out that it does nothing to address South–South trade in hazardous wastes, which can be as environmentally harmful as North–South trade. Moreover, there are increasing differences in the category of 'developing' (or non-Annex VII) countries. Those with recycling and secondary material industries may be less enthusiastic about the ban than those that have no such industry. A country that is not in Annex VII now may eventually wish to be included in the group of OECD countries that may trade wastes with one another. Lim Cheng Sang of the Federation of Malaysian Manufacturers Committee put it this way at COP-4: 'What about when we have become a developed country? We will be generating hazardous wastes then and we may want to trade wastes with OECD countries'. 12 What is clear is that the Basel Convention is continuing to evolve and will need to address these and other issues in the near future.
Future challenges: ratification of the ban, WTO concerns and the move to cleaner production
The Basel Convention is now entering a critical phase. Environmentalists have characterized the 'Basel Ban' as the most significant environmental achievement since the Rio Earth Summit in 1992. However, the resolution of a number of issues in the near future will be of great importance in deciding whether the Basel Convention will be able to evolve into a truly global and comprehensive instrument for the safe management, and eventual reduction, of hazardous wastes. First, in order for the Convention to move forward and address more completely issues such as the protocol on liability and compensation and the improvement of the technical capacity in developing countries to manage hazardous wastes, Decision III/1 must be ratified. This would allow the international community to refocus its efforts away from the political debates surrounding the ban issue and tackle other urgent matters; however, ratification of the ban decision is unlikely before COP-5 and so arguments related to the ban (such as the membership of Annex VII – see below) are likely to resurface.
Second, there are continuing concerns, especially among some OECD countries and the waste management industry, about the compatibility of the ban with the multilateral trading system (MTS), as overseen by the World Trade Organization (WTO). 13 Critics argue that a trade ban between OECD and non-OECD countries is discriminatory (asit based solely on membership in an economic organization) and that certain 'products'(such as metal scrap) ought to fall under the rules of the MTS rather than thetrade-restrictive Basel Convention. Several OECD delegations raised this question atCOP-4, and segments of the waste management industry remain especially hostile to the banand suggest that a challenge in the WTO would be a way for them to pursue their goal ofexempting recyclable hazardous waste from the scope of the Convention. 14 Two important issues with regard to a potential WTO challenge are the availability of Article 11 agreements under the ban (allowing for bilateral, multilateral or regional trade agreements between a Basel party and non-party that are not less environmentally sound than the Basel Convention) and the status of Annex VII membership. At COP-4, Israel, Slovenia and Monaco all applied to join Annex VII, but these requests were rejected. While parties have agreed not to change the composition of Annex VII until Decision III/1 enters into force, the question of how a party might join Annex VII and the status of the availability of Article 11 agreements have not been resolved.
Lastly, there is the question of how the Convention can actually encourage movement towards cleaner production processes such that the amounts of hazardous waste generated and traded are reduced. NGOs such as Greenpeace argue that closing the 'recycling loophole' with the ban decision will encourage countries to become more self-sufficient in their waste management strategies and encourage moves towards cleaner production. However, the Basel Convention does not explicitly include measures to encourage the development of clean production technology or to assist developing countries, in particular, to avoid the hazardous waste problems faced by many OECD countries. If parties can move on to consideration of issues other than the ban, more time and resources could be devoted to this question. The establishment of regional training centres for the implementation of the Basel Convention (located in Beijing, Bratislava and Montevideo) should assist this process, but these centres have only recently begun to operate and will require future resources that have not yet been assured.
Conclusion
The establishment of the Basel Convention has been central to the elimination of some of the worst forms of 'toxic waste dumping' by industrialized countries on developing countries. There is now international consensus that rich countries should not send hazardous wastes to poorer countries for final disposal, as exemplified by the ban on final disposal in Decision III/1. However, the question of when and under what conditions hazardous waste should move across borders for purposes of recycling or reuse remains contentious. While attempts to ban this trade in the Basel Convention are one way of dealing with the situation, the reality is that materials that are considered waste by one country may be seen as valuable secondary materials by another. Since definitions of 'waste' are intrinsically subjective, the Convention would be better served by improving the capacity of countries to manage and reduce hazardous waste, and thus its transboundary movement, rather than continuing to focus on the 'fairness' of the ban decision. For example, the Secretariat has been working with the World Customs Organization to identify hazardous wastes in separate categories in the Harmonized Commodity Description and Coding System which will assist customs officers in identifying when hazardous wastes are entering their countries, as well as the composition of those wastes.
The Basel Convention will celebrate its tenth anniversary in 1999. While perhaps not perceived as being as successful or significant as other multilateral environmental agreements such as the Montreal Protocol or the Framework Convention on Climate Change, the Basel regime remains an important part of the international community's attempts to protect the global environment and human health from hazardous materials. The recently completed negotiations (March 1998) for a convention on hazardous chemicals and pesticides in international trade and the beginning of a new process for a convention on persistent organic pollutants (POPs) also form part of this framework. However, the continued viability of the Basel Convention is not necessarily assured. Parties face several important challenges in terms of ratifying Decision III/1; how these challenges are met will be crucial in determining the Basel Convention's role in assisting the international community to manage hazardous wastes more safely.
Further references
In addition to the documents referred to in the footnotes, readers may find the following of interest:
Jonathan Krueger, 'Prior Informed Consent and the Basel Convention: The Hazards of What Isn't Known', Journal of Environment and Development 7:2 (June 1998).
Mark Montgomery, 'Reassessing the Waste Trade Crisis: What Do We Really Know?', Journal of Environment and Development 4:1, 1995.
Bill Moyers, Global Dumping Ground: The International Traffic in Hazardous Waste (Cambridge: The Lutterworth Press, 1991).
Laura Strohm, 'The Environmental Politics of the International Waste Trade', Journal of Environment and Development 2:2, 1993.
Appendix: Decision III/1 of the Parties to the Basel Convention (adopted at COP-3, September 1995)
The Conference,
Recalling that at the first meeting of the Conference of the Parties to the Basel Convention, a request was made for the prohibition of hazardous waste shipments from industrialized countries to developing countries;
Recalling Decision II/12 of the Conference,
Noting that:
* the Technical Working Group is instructed by this Conference to continue its work on hazard characterization of wastes subject to the Basel Convention (Decision III/12)
* the Technical Working Group has already commenced its work on the development of lists of wastes which are hazardous and wastes which are not subject to the Convention;
* those lists (document UNEP/CHW.3/Inf.4) already offer useful guidance but are not yet complete or fully accepted;
* the Technical Working Group will develop technical guidelines to assist any Party or State that has sovereign right to conclude agreements or arrangements including those under Article 11 concerning the transboundary movements of hazardous wastes.
(1) Instructs the Technical Working Group to give full priority to completing the work on hazard characterization and the development of lists and technical guidelines in order to submit them for approval to the fourth meeting of the Conference of the Parties;
(2) Decides that the Conference of the Parties shall make a decision on a list(s) at its fourth meeting;
(3) Decides to adopt the following amendment to the Convention:
'Insert new preambular paragraph 7 bis:
Recognizing that transboundary movements of hazardous wastes, especially to developing countries, have a high risk of not constituting an environmentally sound management of hazardous wastes as required by this Convention;
Insert new Article 4A:
(1) Each Party listed in Annex VII shall prohibit all transboundary movements of hazardous wastes which are destined for operations according to Annex IVA [final disposal], to States not listed in Annex VII.
(2) Each Party listed in Annex VII shall phase out by 31 December 1997, and prohibit as of that date, all transboundary movements of under Article 1(i)(a) of the Convention which are destined for operations according to Annex IVB [recovery, recycling or reuse] to States not listed in Annex VII. Such transboundary movement shall not be prohibited unless the wastes in question are characterized as hazardous under the Convention.
Annex VII:
Parties and other States which are members of the OECD, EC and Liechtenstein.
Note 1: There is a postscript to the Khian Sea case: between 2,000 and 4,500 tons of toxic incinerator ash from Philadelphia were dumped on a beach in Haiti ten years ago, but there are now plans to return the remaining ash to the US and clean up the dumpsite; see 'New York Tries to Clean Up Ash Heap in the Caribbean', The New York Times, 14 January 1998, p. 5. Back.
Note 2: International Maritime Organization, Global Waste Survey, Final Report (IMO, 1995). Back.
Note 3: All statistics taken from: Katharina Kummer, International Management of Hazardous Wastes: The Basel Convention and Related Legal Rules (Oxford: Clarendon Press, 1995), pp. 5–7; UNEP, Environmental Data Report 1993–94 (London: Blackwell, 1994); OECD, Transfrontier Movements of Hazardous Wastes:1992–93 Statistics (Paris: OECD, 1997); and Jim Vallette and Heather Spalding, eds, The International Trade in Wastes: A Greenpeace Inventory, 5th edn. (Washington DC: Greenpeace USA, 1990). Back.
Note 4: For more detail on the institutional arrangements of the Convention, see Kummer, pp. 74–83. Back.
Note 5: On the current status of the Emergency Fund, see UNEP/CHW.4/27. Back.
Note 6: In the Koko case, 4,000 tons of toxic wastes, including PCBs, were sent to Nigeria from Italy under the label of substances 'relating to the building trade'. Back.
Note 7: See UNEP/CHW.4/14. Back.
Note 8: Personal communication with the Secretariat of the Basel Convention, 1 May 1998. Back.
Note 9: Harvey Alter, 'Industrial Recycling and the Basel Convention,' Resources, Conservation and Recycling, No. 19 (1997), pp. 29–53; Maria Isolda P. Guevara and Michael Hart, Trade Policy Implications of the Basel Convention Export Ban on Recyclables from Developed to Developing Countries, Report for the International Council on Metals and the Environment, May 1996, p. 2. Back.
Note 10: Anthony Cox and Terry Sheales, 'Basel Convention: Economic Issues in the Ban on Shipments of Hazardous Waste,' Australian Commodities, vol. 3, no. 3 (September 1996), p. 389. Back.
Note 11: Nick Johnstone, 'The implications of the Basel Convention for developing countries: the case of trade in non-ferrous metal-bearing waste', Resources, Conservation and Recycling (forthcoming 1998). Back.
Note 12: Quoted in Ester Tan, 'Loopholes in Basel Treaty Remain', New Straits Times (Malaysia), 22 March 1998. Back.
Note 13: For assessments of the compatibility of the Basel Convention with the WTO, see K. Kummer, Transboundary Movements of Hazardous Wastes at the Interface of Environment and Trade (Geneva: UNEP Environment and Trade Series No. 7, 1994); David A. Wirth, 'International Trade in Wastes: Trade Implications of the Recent Amendment to the Basel Convention,' Paper presented at conference on Trade and Environment: Challenges for 1996 (19 January 1996); and James Crawford and Philippe Sands, Article 11 Agreements Under the Basel Convention (Ottawa: The International Council on Metals and the Environment, 1997). Back.
Note 14: See, for example, Statement of Australian delegation to COP-4, 26 February 1998; and International Chamber of Commerce, 'Basel Convention: environmental protection, recycling and development,' ICC Document 210/555 (31 October 1997). Back.
Jonathan Krueger is completing his Ph.D. on the use of trade restrictions in MEAs, in the Department of International Relations at the London School of Economics and Political Science.
