January 4, 2024

The Basel Convention on the Control of Trans- boundry movements of hazardous wastes: a Global approach

This article has been written by Mr. Abhishek Singh, a first year student of Banaras Hindu University, Varanasi.

 

Abstract-

With the rise of globalization, connectivity throughout the world increased and slowly the physical distance became immaterial for business and personal transaction. However, this too was not devoid of vices as slowly, Developed countries found ways to circumvent stringent laws of waste management and moved their wastes to developing countries for waste management. The selfish motives of some individuals would have caused unfathomable damage if at the right time, initiatives were not taken by the developing countries to formulate a convention which led to the formulation and adoption of Basel Convention on the control of transboundary movement of Hazardous wastes. While the convention, itself has not remained without any debate but it has remained a novel step. This Article aims to provide an account of the convention and the debates surrounding it and concludes with a brighter note about its relevancy in modern world order.

Keywords- International law, Basel Convention, Waste management, North-South divide. 

 

Introduction-

When after decolonisation, new countries emerged, many political theorists concluded that the colonisation would end and divided the world into Global South and Global North. However, there were also some dissenting voices who emphasized that the colonizing forces would take new characteristics and termed it as neo colonialism. This, however, became the reality where even after decolonisation, previous colonisers developed new ways to maintain their hegemony. One of these ways was directing of hazardous wastes with a substantial increase in 1980s to developing countries with the sole purpose of escaping the stringent environment policies existing in the Developed countries. Seeing the overall harmful effect to not a single country or individual but to whole of humankind, negotiations were started which ultimately led to formulation and adoption of The Basel Convention in 1989 by 116 states initially and the final act of the Basel Conference was signed by 105 States and the European Economic Community(EEC). The convention remains an effective instrument in dealing with the trans-boundary movement of hazardous wastes and despite being a first attempt in regulating the movement of trans-boundary hazardous wastes, till date it has remained the only legally binding global instrument dealing with the subject matter. The growing quantum of hazardous wastes in recent decades necessitates the analysis and understanding of present legal provisions and gaps in their implementation so as to understand how to deal with these newly arising problems.

Basel Convention: History

The Basel Convention on the control of Transboundary Movements of Hazardous Wastes and their Disposal was adopted on 22 March 1989 and entered into 5 May 1992. It is a culmination of international efforts stretching over a decade which started with inclusion of management of hazardous wastes as one of the priority areas in United Nations Environment Programme’s first Montevideo programme on Environmental Law in 1981 in the backdrop of the public outcry for the dumping of toxic wastes. Eventually, in 1987, Governing Council of UNEP approved the Cairo Guidelines which was non-binding legal instrument and were designed to help the governments in managing their toxic wastes. At the same time, Hungary and Switzerland moved a joint proposal which led Governing Council of UNEP to mandate Executive director to convene a group for formulating a global convention on the control of transboundary movements of hazardous wastes while taking inspiration from Cairo guidelines and experiences of relevant national, international and regional bodies. The Council also authorised the director to convene a diplomatic conference to adopt and enact the convention. 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 began its deliberations at an organizational meeting in October 1987 and held a total of five negotiation sessions between February 1988 and March 1989. 

The Conference of Plenipotentiaries on the Global Convention on the Control of Transboundary Movements of Hazardous Wastes, convened at the invitation of the Swiss Government from 20 to 22 March 1989 in Basel in which 116 states took and deliberated on the Final draft of the resolution.

Eventually, The Basel Convention was adopted unanimously by the Conference on 22 March 1989 and when on 22 March 1990, when the Basel Convention was closed for signature in accordance with its article 21, fifty-three States and the European Economic Community (EEC) had signed it. The current status as of March 2022, 189 states and the European Community are parties to the convention.

Basel Convention: It’s Machinery-

The main stages of the control procedure are given under-

  • Exporter concludes a contract with the disposer and arranges necessary financial guarantees and insurance.
  • Then, Exporter provides a notification to the state of export and from there to state of import and transit for their consent.
  • State of Import and State of transit can either give consent or raise an objection. While provision of tacit consent exists in state of transit, same is not applicable in case of state of Import.
  • According to the consent or objection tendered by the other parties, State of export issues a decision with authorization or objection. If Authorization is given, then movement may proceed.

The convention also provides provisions for tracking the consignments after approval. The details are as follows-

  • After approval is given then Exporter completes the Movement Document when taking possession of the consignment.
  • Carrier completes the Movement Document when taking possession of the consignment.
  • Upon receiving the consignment, Disposer also completes the Movement Document and sends a signed copy to the concerned Exporter and Exporter State.
  • Upon completion of disposal, disposer completes the Movement Document and sends a signed copy to the exporter and the state of export while retaining the original one for filing.
  • After receiving of the documents, the competent authority will release the security money.

 

Amendments: Procedure and History

Article 17 of the Convention deals with the proposal, adoption and entry of amendments in the Convention. Any amendment proposal should be submitted before six months of the conference of parties in which it is ought to be discussed. Every amendment is accepted or passed by consensus and if consensus is not possible, then three-fourth majority is resorted as the last option. Paragraph 5 of the Article deals with the entry into force of the amendments adopted and mentions that only the party to the convention can propose any amendments. Adoption and amendment of annexes to the Basel convention is dealt under Article 18. The procedure of proposal and adoption of new annexes is similar to proposal and adoption of amendments. The main difference lies in entry of force of new annexes as within six months of notification of amendment in annexes or new annex, parties can declare whether it will accept or not and once, the amendment enters into force, the amendments will bind only those parties who have not notified their dissent.

Notable Amendments–

  • Ban Amendment- Originally, the amendment was originally adopted as a decision in the second meeting of Conference of Parties in March 1994. The basic reasoning behind this amendment was that it will help in addressing the issue of developing countries according to which they were receiving hazardous wastes, which they are not able to dispose off. Parties agreed that members of OECD, EU and Liechtenstein should prohibit all transboundary movement of hazardous wastes which are transferred to other states for their disposal. For several years, there was differing views which ultimately led to a statement by President in ninth meeting of the Conference of the Parties about possible way forward for implementation of the Amendment. This statement led Indonesia and Switzerland to organize a country-led initiative which was adopted at the eleventh meeting. The same was implemented in 1999, however, it has still not come into action and the protocol has still not been signed by India.
  • Plastic Waste Amendment– Fourteenth meeting of the Conference of Parties adopted amendments to the Annexes II, VIII and IX to the convention to enhance the control of transboundary movement of plastic waste and to remove any such ambiguity. The amendment clarifies the position of hazardous plastic waste and what procedure one have to follow for their disposal. Amendment in annexes IX also clarifies which plastic wastes are not hazardous through an entry B3011. The non-hazardous wastes enumerated in the list are-a group of cured resins, non-halogenated and fluorinated polymers, provided the waste is destined for recycling in an environmentally sound manner and almost free from contamination and other types of wastes; mixtures of plastic wastes consisting of Polyethylene (PE), Polypropylene (PP) or Polyethylene Terephthalate (PET) provided they are destined for separate recycling of each material and in an environmentally sound manner, and almost free from contamination and other types of wastes. The third amendment in Annex II deals with plastic waste and including other such combination of wastes. The entries along with amendments became effective on 1 January, 2021.
  • E-waste Management Amendment– Fifteenth Meeting of Conference of Parties adopted amendments for enlarging the scope of transboundary movement of e-wastes and made all electric wastes subject to prior informed consent procedure. Amendments were made for comprehensive inclusion of all e-wastes and provided procedures their disposal. The entries will be made effective from January,2025.

Analysis of its working:-

The convention established an easy law procedure where countries were encouraged to formulate their own laws to comply with the provisions of the conventions. The Convention acts as a sketch in which individual member states are encouraged to formulate laws according to their personal needs. However, overall effectiveness of the convention have remained a mixed bag. As according to Basel Action Network, a non-governmental organization, the transfer of e-wastes still continues to developing countries albeit illegally which also creates law and order problems. Absence of United states of America is also an issue as being the largest producer of e-waste, it continues to defy its moral duty making much of the traffic of e-waste outside the purview of the convention. Another issue which persists is that actions by individual states only diverts the transfer to other developing countries, making it only partially effective as differences between criteria and regulations between states exists which gives scope for ambiguity.

Beneficial Aspects

Originally, plastic wastes were not mentioned in the convention, thereby, by an amendment transboundary movement of plastic wastes were included. The redeeming point was inclusion of restrictions for trade with non-party members as the new amendment prohibits parties to the convention from trading in certain plastic wastes and scraps with non-party members. As new categories of wastes are included, the convention is becoming comprehensive in nature and with additional supports from the secretariat, helps the countries in developing circular economies and becoming sustainable.

Future Changes-

The Change in globalization and world order has been rapid. Therefore, to account for these changes along with technological changes, Basel Convention also needs to be amended to maintain it’s viability. One of the prominent issues that the convention needs to account for is the mixing of hazardous and household wastes which not only creates issues in recycling of hazardous wastes but also of household wastes. The “All waste” coverage should be based on life-cycle approach and integrated-waste management. The consistency at statutory levels of the countries should be aimed and for this regional certification scheme can be launched for sustainable management of all these types of wastes and should be coupled with incentives to follow these certifications 

Conclusion- 

The Basel Convention has from its inception been a topic of discussion in Conference of Parties as well scholarly discussion. From its date of implementation, two streams of thoughts emerged, one supporting the convention while other who termed it as discriminatory to the developing countries as valuable metals and chemicals of wastes would be lost. However, instead of retarding the conventions, these debates have instead, strengthened the convention as new amendments were introduced and accepted to fill the initial lacunas. While its efficiency in achieving its goals has also been subjected to criticism as Major producer of e-wastes and plastic waste, USA, has remained out of the convention. But nevertheless, the contribution of Basel Convention in controlling the transboundary movement of Hazardous waste is enormous and has helped countries in moving towards sustainable waste management and at the same time, also ensured that the interests of developing countries are secured and well represented at the international fora.

 

References-

 

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