Fordham Environmental Law ReviewVolume 8, Issue 2 2011 Article 3The United States, China & the BaselConvention On The TransboundaryMovements of Hazaroud Wastes and TheirDisposalMark Bradford∗∗Copyright c 2011 by the authors. Fordham Environmental Law Review is produced by TheBerkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/elrNOTESTHE UNITED STATES, CHINA & THE BASELCONVENTION ON THE TRANSBOUNDARYMOVEMENTS OF HAZARDOUS WASTES ANDTHEIR DISPOSALMark Bradford*T he Basel Convention on the Control of Transboundary Movementsof Hazardous Wastes and Their Disposal' ("Basel Convention"or the "Convention") is the first global regulatory regimeimposed upon the international trade, both legal andillegal, in hazardous solid and chemical wastes.2 The Conventionconcluded on March 22, 1989 at the end of a three-day UnitedNations Environment Programme ("UNEP") conference attendedby representatives of 116 states and observers from 34non-governmental organizations. 3 The Convention entered intoforce on May 5, 1992.4 The United States became one of the* J.D. Candidate, May 1998 Fordham University School of Law.1. Basel Convention on the Control of Transboundary Movementsof Hazardous Wastes and Their Disposal, Mar. 22, 1989, U.N. Doc.UNEP/WG.190/4, 28 I.L.M. 649 [hereinafter Basel Convention orConvention]2. See United Nations Officials See Basel Treaty As 'Limping' Into Effectwith Limited Support, Int'l Env't Daily (BNA) (May 22, 1992) [hereinafterTreaty Limping Into Effect] (quoting UNEP Executive Director MostafaTolba on the objectives and innovations of the Convention).3. See United Nations Environment Programme Conference ofPlenipotentiaries on the Global Convention on the Control of TransboundaryMovements of Hazardous Wastes: Final Act and Text of BaselConvention, Mar. 22, 1989, UNEP/WG.190/4, 28 I.L.M. 649, 652-53(1989) (listing participants).4. By its terms, the Basel Convention entered into force ninetydays after twenty nations had ratified it. See Basel Convention, supranote 1, art. 25, § 1. The first twenty nations to ratify the Conventionswere (in chronological order): Jordan, Switzerland, Saudi Arabia, Hun-305306 FORDHAM ENVIRONMENTAL LAW JOURNAL [Vol. VIIIConvention's first signatories on March 22, 1990.5In the seven years since then, however, the U.S. Congress hasfailed to enact the legislation necessary to ratify the Convention. 6In no way does the long delay in U.S. ratification moot the enhancementof the Convention that would likely result if theUnited States became a full participant. The United States generatesmore hazardous waste than any other nation in the world.Despite its capacity for disposing much of this hazardous wastedomestically, the U.S. is a primary exporter of such waste aswell.7 It is on account of the United States' extensive involvementin the trade - and not despite it - that ratification would be directly
beneficial to U.S. interests.
The prospective benefits of ratification are most clearly exemplified
by the United States' relationship with the People's Republic
of China. The United States and China are the most powerful
nations in the industrialized and developing worlds,
respectively. The division between industrialized and developing
nations is the controlling dynamic within the process of formulating
global regulation of hazardous waste traffic. The process is
gary, Norway, France, Panama, Mexico, Romania, Nigeria, Argentina,
Czechoslovakia, Sweden, Finland, El Salvador, China (on Dec. 17,
1991), Uruguay, Syria, Liechtenstein, Australia. Accordingly, the Convention
entered into force on May 5, 1992, ninety days after Australia's
ratification on Feb. 5, 1992. See Status of Signatures and Ratifications
for Basel Convention: There are 108 ratifications as of January 13, 1997
(visited Mar. 16, 1997) (hereinafter
Basel Status].
5. See Basel Status, supra note 4.
6. The Basel Convention is a "non-self-executing" treaty, meaning
that the United States may not become a full party to the Convention,
nor may the Convention bind the U.S. legally, until Congress has enacted
the requisite implementing legislation, bringing U.S. law into
conformity with the terms of the Convention. See RESTATEMENT (THIRD)
OF THE FOREIGN RELATIONS LAw OF THE UNITED STATES § 111 cmt. h
(1987). See infra text accompanying notes 91-96. Apart from the U.S.,
the only signatories that are not party-states to the Convention are Afghanistan,
Haiti and Thailand. See Basel Status, supra note 4.
7. See Hazardous Waste: Mishandled Exports Would Be Returned To U.S.
Under Administration's New Policy, Daily Env't Rep. (BNA), at dl0 (March
2, 1994). "Based on U.S. Customs Service reports, the [U.S. Chamber
of Commerce] estimated that the United States each year exports between
16 million and 20 million tons of waste that is covered under the
Basel Convention." Id.
THE BASEL CONVENTION
characterized by the need for the community of nations to collectively
prevent hazardous wastes from being transported to
those nations that not only lack the means to dispose of them
safely, but also may lack the means to effectively prevent their illicit
importation.
China has become a major economic power following less than
two decades of massive industrial development. 8 While China
generates an accordingly large amount of waste of its own,9 it is
also currently one of the world's largest importers of such wastes
from exporting countries, such as the United States.10 Although
China and the United States signed the Basel Convention on the
same day, the United States has yet to ratify the treaty. In contrast,
China ratified in 1991.12 This division has contributed to
8. Following Deng Xiao-Ping's assumption of the Premiership in
the late 1970s, China's documented gross domestic product rose from
approximately $302 billion in 1981 to $817 billion in 1996. See Nicholas
D. Kristof, The Communist Dynasty Had Its Run. Now What?, N.Y TIMES,
Feb. 23, 1997, § 4, at 1. For the past fifteen years, China's economy has
grown at an average rate of 9% annually and is today one of the tenth
largest in the world. See Deng's China: The Last Emperor, ECONOMIST, Feb.
22, 1997, at 21.
9. See China: Government to Step Up Inspections in Bid to Curb Transports
of Toxic Waste, 19 Int'l Env't Rep. (BNA) 229, (Mar. 20, 1996)
[hereinafter Government to Step Up Inspections].
10. Greenpeace estimates that between 1990 and 1993, toxic waste
moving from the United States to China totaled 220,665 metric tons
(twenty times the combined total for Australia, Canada, Germany and
the U.K.), although during that period far more toxic waste of U.S.
provenance went to India and South Korea. Greenpeace Report Says Asian
Countries Being Used as Dumping Ground for Waste, 17 Int'l Env't Rep.
(BNA) 113, 114 (Feb. 9, 1994) [hereinafter Greenpeace Report].
11. See Basel Status, supra note 4.
12. See id. As of January 13, 1997, the following 88 entities have ratified
the Basel Convention since Australia's ratification on Feb. 5, 1992
allowed the Convention to enter into force: Antigua, Austria, Bahamas,
Bahrain, Bangladesh, Barbados, Belgium, Bolivia, Brazil, Bulgaria,
Burundi, Canada, Chile, Colombia, Comoros, Costa Rica, Cote d'
Ivoire, Croatia, Cuba, Cyprus, Denmark, Ecuador, Egypt, Estonia, European
Economic Community, Germany, Greece, Guatemala, Guinea,
Honduras, Iceland, India, Indonesia, Islamic Republic of Iran, Ireland,
Israel, Italy, Japan, Republic of Korea, Kuwait, Kyrgyzstan, Latvia, Lebanon,
Luxembourg, Malawi, Malaysia, Maldives, Mauritania, Mauritius,
Micronesia, Monaco, Morocco, Namibia, Nepal, Netherlands, New Zea-
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308 FORDHAM ENVIRONMENTAL LAW JOURNAL [Vol. VIII
one of the most intriguing, albeit least-publicized, of the recent
disputes between the two governments.
In May 1996, the Chinese government announced that it had
filed a formal protest to the Secretariat of the Basel Convention
over alleged illegal transfers of hazardous waste from the U.S. to
China.1 3 If both China and the United States had been partystates
to the Basel Convention, the two governments would be
authorized to seek a resolution of the dispute through negotiation,
adjudication by the International Court of Justice, or
through the formal arbitration process outlined in the Convention.14
However, the United States was not - and is not - a partystate
and the Convention is not legally binding upon it. Thus, today,
a formal complaint under the Convention 5 would have little
legal significance.
As a political gesture, China's announcement was compromised
somewhat by its timing: essentially lost amidst the acrimonious
Sino-U.S. negotiations over China's observance of American
intellectual property rights.16 Even if China's threatened
protest over hazardous waste was merely rhetorical, however, the
rhetoric illuminates the hazardous waste issue on two levels at
once. First, beneath the high politics, China's actions point up
land, Oman, Pakistan, Papua New Guinea, Paraguay, Peru, Philippines,
Poland, Portugal, Qatar, Russian Federation, Saint Kitts and Nevis,
Saint Lucia, Saint Vincent and the Grenadines, Senegal, Seychelles, Singapore,
Slovenia, South Africa, Spain, Sri Lanka, Tanzania, Trinidad
and Tobago, Tunisia, Turkey, Turkmenistan, United Arab Emirates,
United Kingdom, Uzbekistan, Vietnam, Yemen, Zaire and Zambia. See
id.
13. See China Accuses U.S. of Dumping Illegal Waste: Formal Protest Alleges
Violation of Treaty, S.F. CHRON., June 1, 1996, at Cl, available in
LEXIS, News Library, Sfchrn File.
14. See Basel Convention, supra note 1, art. 20 & Annex VI.
15. It is not at all clear that the Chinese government has actually
filed any formal protest with the Basel Convention. In response to a
query from this author via electronic mail message, Susan Bragdon of
the UNEP Press Office in Geneva indicated that as of December 5,
1996, she could locate no information pertaining to any such complaint
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