Pace International Law ReviewVolume 9Issue 1 Summer 1997 Article 1June 1997Basel Convention on Transboundary Movement ofHazardous Wastes: Total Ban AmendmentMuthu S. SundramFollow this and additional works at: http://digitalcommons.pace.edu/pilrThis Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in PaceInternational Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact cpittson@law.pace.edu.Recommended CitationMuthu S. Sundram, Basel Convention on Transboundary Movement of Hazardous Wastes: Total BanAmendment, 9 Pace Int'l L. Rev. 1 (1997)Available at: http://digitalcommons.pace.edu/pilr/vol9/iss1/1ARTICLESBASEL CONVENTION ONTRANSBOUNDARY MOVEMENT OFHAZARDOUS WASTES: TOTAL BANAMENDMENTMuthu S. SundramtTABLE OF CONTENTS1 Introduction ......................................... 42 Prelude to Basel Convention ........................ 93 Basel Convention ................................... 103.1 General Scheme ............................... 113.1.1 Definition of Hazardous Waste .......... 123.1.2 "Environmentally Sound Management". 133.1.3 Control Measures ....................... 153.2 Parties to Basel Convention ................... 163.3 Conference of Parties .......................... 163.3.1 Amendment of Convention for TotalB an ..................................... 193.4 Development of Liability Protocol .............. 24
3.5 General Objectives of Liability Protocol ........ 25
3.5.1 Scope of the Protocol .................... 27
3.5.1.1 "Point of Commencement" ..... 27
t The author is an Assistant Regional Counsel at U.S. Environmental Protection
Agency (EPA), Region II, New York, NY. This article was written by the author
in his personal capacity. The opinions expressed in this paper are solely that
of the author and do not in any way constitute to be an opinion, advice, or guidance
of U.S. EPA. This article was not reviewed by any government employee in his/her
official capacity.
The author gratefully acknowledges the encouragement, support and advice of
Prof. Nicholas Robinson, Pace University School of Law, White Plains, NY., who
was instrumental in undertaking this project.
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3.5.1.2 "Completion of Disposal and
Aftercare of Disposal Sites" 2
3.5.2 Potential Applications .................. 2
3.5.3 Liable Persons .......................... 3
3.5.3.1 First Alternative ............... 3
3.5.3.2 Second Alternative ............. 3
3.5.3.3 Third Alternative .............. 3
3.5.3.4 Proposed Alternative ........... 3
3.5.4 Contribution ............................ 3
3.5.4.1 First Proposed Alternative ..... 4
3.5.4.2 Second Proposed Alternative... 4
3.5.5 Defenses to Liability: ................... 4
3.5.6 Judgm ents .............................. 4
4 Conclusion .......................................... 4
Appendix A ............................................. 4
Table 1-Articles of Basel Convention ................. 4
Table 2-Annexes to Basel Convention ................ 4
Table 3-Scope of the Legislation Convention ......... 4
Table 4-Waste Definition ............................. 4
Table 5-Export of Hazardous Wastes ................. 4
Table 6-Import of Hazardous Wastes ................. 5
Table 7-Transit of Hazardous Wastes ................ 5
Table 8-Duty to Re-Import Hazardous Wastes ....... 5
Table 9-Illegal Traffic of Hazardous Wastes .......... 5
A ppendix B ............................................. 5
Table 1-Decisions Adopted by the Third Meeting ..... 5
Table 2-Development of Protocol on Liability ........ 5
Table 3-Representative Cases with Potential
Applicability ................................. 5
Executive Summary
Moving with an unusual speed, the third meeting of the Conference
of Parties to the Basel Convention, held in Geneva, Switzerland,
during September 18-22, 1995, adopted an amendment
to the Convention that immediately bans transboundary movement
of hazardous wastes destined for permanent disposal and
would also phase out, by December 31, 1997, even those wastes
that could be recycled, reused or reclaimed. The "total ban" selectively
applies to transboundary movement of hazardous wastes
and other wastes from developed countries to developing coun-
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tries. The total ban, essentially a North/South ban, does not affect
the movements between the developing countries themselves.
Theoretically, after December 31, 1977, no hazardous waste
can cross the boundaries of any developed country, if that "cargo"
was destined for a developing country, regardless of whether the
cargo was for permanent disposal or for recovery of valuable products
from it. But the deadline could be missed if the Working
Group is unable to come up with an acceptable, workable and definitive
definition of the term "waste" which, so far, has proved to
be too contentious, vague and confusing. Without a clear-cut definition
of "waste," the expeditious amendment to the Convention
appears to be both unnecessary and unwise.
Even if the Conference of Parties was right, that imposing
stern control measures banning "all wastes" was a proper thing
to do, the amendment presents substantial questions about Conventions'
authority and jurisdiction to implement the measures,
at least now. In addition, some concern has been raised whether
the Convention would achieve its intended goal without the
United States ratifying it.
Though one may read the amendment to the Basel Convention
with an accusation that the Conference of Parties was in a
rush to validate an unfinished "law" affecting the international
community as a whole, such an accusation may not be valid because
the Amendment simply fielded the question the Conference
"wanted" to decide on a future date and set an ambitious schedule
for the same.
However while the future Conference of Parties decides to define
"waste," many other elements of the Convention still remain
to be addressed without the resolution of which the real effectiveness
of the Convention appears to be somewhat doubtful. Of
them, the most important is the development of the Liability Protocol.
Already too late and crippled with too little funds, the
Working Group of the Legal and Technical Experts, that is responsible
for the development of the Liability Protocol, did not
succeed in finalizing the draft Liability Protocol by the fouth Conference
of the parties held in October 1997. The Working Group
has requested an extension to finish the Liability Protocol. The
Working Group's target is now the fifth Conference of the Parties
likely to be held in the latter part of 1998.
The Basel Convention is as much of a Convention affecting
the international trade, as it is to protect the global environment.
Whatever the discussions among the contracting parties may
have been, the amendment still has to respond to the concerns of
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many developing countries that would be affected by the lack of
ready availability of cheap raw materials to fuel their fast-paced
economic development.
The decision to amend the Convention should have been
taken with utmost deliberation, but, a penetrating inquiry reveals
that it was, however, done with rather unseemly haste. For example,
one wonders why the Conference of the Parties did not
consider least restrictive alternatives to a "total ban," such as requiring
the exporters and importers of covered wastes to jointly
undertake an Environmental Impact Statement before the
wastes are exported and before the establishment of an United
Nations "inspection team" to monitor the process is established.
The Basel Convention, as amended, is certainly an important
international document that establishes a "framework" to regulate,
control or ban "something" that is yet to be defined clearly.
In its present form, the Convention falls much short of being a
rule of law.
1 INTRODUCTION
"Beauty is in the eyes of the beholder." What this simply
means is that perception generally means a lot. This may be
why there is so much difficulty in defining the "simple" term
"waste,"' leave alone its exotic variation, "hazardous waste."2
For a chemist or a chemical engineer, "hazardous waste" is an
inevitable by-product of a chemical reaction or an engineering
process; for a recycling guru or a trade enthusiast, it is another
valuable "commodity" which is worth something in return
whatever that may be; and for a tree-hugging environmentalist
or the innocent public, it is nothing more a poison that destructs
1 The Basel Convention itself defines "waste" in a circular fashion as "substances
or objects which are disposed of or are intended to be disposed of or are
required to be disposed of by the provisions of national law." Basel Convention on
the Control of Transboundary Movement of Hazardous Waste and Their Disposal,
UNEP Doc. IG.80/L.12 adopted and open for signature, Mar. 22, 1989, reprinted in
28 I.L.M. 649 (1989) [hereinafter Basel Convention]. The document is available in
the Internet through the Home Page of United Nations Environmental Program
(UNEP), Geneva Executive Center, Geneva, Switzerland. The World Wide Web
Universal Resource Locator (URL) is: .
UNEP Home Page is an excellent resource for browsing and downloading Basel
Convention documents.
2 "Hazardous waste" refers to generally unusable by-products resulting from
industrial manufacture of goods and agriculture. THE ENCYCLOPEDIA OF THE ENvIRONMENT
314 (1994).
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the lives the people and slowly kills them in the long run. Trying
to determine which is a correct view or a better perception
would be an exercise in waste.
"The true amount of hazardous wastes generated is not
known, although the approximate amount is 40
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