The Development of a Global Solution: The Evolution of the Basel Convention

By Gabe Miller

Introduction

There is a growing global awareness that the health of the Earth and its inhabitants must not be taken for granted. Too little attention is paid to the state of the environment. There are countless threats to the health of the ecosystems in which we live, and here I will discuss one:  the transboundary movement of hazardous waste. This threatens not only the environment but also the health of countless communities.

            In recent years there has been an explosion of awareness over this issue, and as a result, there has been much debate over what to do about it. The Basel Convention has been the world's response to this problem, and though it is has met resistance on several fronts, it continues to thrive. In the following pages I will discuss the historical development of the issue of hazardous waste, the major points of contention, and the recommendation I give for reconciling these points. This is a complex issue, with a multitude of factors, which push and pull against one another to exert influence.

 

Historical Development of the Issue

Ever since the birth of the industrial age, waste, and specifically how to deal with it, has been a pressing issue. Of the 2.5 billion metric tons of industrial waste produced annually worldwide, 400 million of that is hazardous in nature, making transportation and disposal even more difficult.[1] The production of hazardous wastes has been increasing significantly in recent decades. In 1945 an estimated 5 million metric tons was generated from industrial processes, but that figure has grown to a staggering 400 million tons in the late nineties--an increase of 80-fold over the last fifty years![2] Relatively speaking, the amount of waste that is transported across international boundaries is quite small--it's estimated to be about 5%.[3] However, those 20 million tons of hazardous waste, consisting of everything from chemical and radioactive wastes to municipal solid waste, asbestos, incinerator ash and old tires, constitute a major threat to environmental and public health.[4] From the point of production to its final disposal, a single unit of waste may come into contact with hundreds of people in countless environments, thus making safety a primary concern. 

            If health risks involved in transboundary movement are so high, why do nations decide to participate in the trading of these hazardous wastes? The answer is capital--the importing country stands to gain a lot from the more developed exporter in terms of payment for its "storage" role. A developed country, producing a large amount of hazardous waste, will often be faced with several domestic issues thwarting its ability to dispose of certain hazardous wastes on its own. These obstacles range from spatial restrictions to environmental and public safety regulations. The nations more likely to generate hazardous waste are also the most likely to have the tightest regulations on what means can be used to dispose of it. However, the developed nations of the world also tend to be the most affluent, and a less developed country (LDC), with much fewer (if any) environmental regulations, and a great need for international financial investment, suddenly becomes a very attractive business partner. A North to South movement of waste is the central issue of debate concerning the trade of toxics in the global community as several LDC governments have began to protest against this seemingly irresponsible behavior. In recent years, several developed nations have also begun to fight to stop this North-South trading of hazardous wastes, in the name of both environmental preservation and public health.

 

The Birth of the Basel Convention

The Basel Convention is considered to be the hallmark of international regulation of hazardous waste trade because all legislation since has used it as a political precedent.  It was signed in 1989 by over 40 nations yet it was crude and extremely weak in terms of regulatory power in the trade of hazardous wastes. Furthermore, before official implementation of the terms of the convention, a specified number of ratifications were necessary. This made the initial development of the Convention nothing more than a symbolic effort.

            Following the Basel Convention, several other events occurred that are important to mention.[5] In November of 1989, the Iron Curtain came crumbling down and the waste invasion of the Eastern European bloc began. Western nations met little resistance in shipping their wastes to the newly opened region since any attempts at regulating the health of the environment in those nations were nothing more than mediocre.[6] Furthermore, those countries were not stable economically, and any foreign investment was welcomed with open arms.

            Enforcement was a major problem for many of the nations involved in the Basel Convention, and trade of hazardous wastes continued to grow.[7] But finally, in May of 1992, the Basel Convention received the 20th ratification necessary for its implementation. On November 30th of that year, the first Conference of the Parties (COP1) took place in Uruguay, where UNEP called for a total ban on all hazardous wastes.[8] Several of the countries didn't believe a total ban would be best economically, so a weak decision to request developing countries to prohibit the import of hazardous wastes from industrialized countries was reached. Though nothing concrete was implemented at COP1, the global awareness of the issue had been achieved.         

            On March 25, 1994, the COP2 convened and reached a monumental decision: to ban all exports of hazardous wastes intended for final disposal from OECD[9] to non-OECD countries, effective immediately. This was intended to stop the North-South waste trade which had become so prominent in recent years. The decision was not written officially into the Convention mandates--to do so would have required a formal amendment. During the next twelve months, the Nordic nations sent the ban proposal to the Basel Convention Secretariat, with a plan to introduce it at COP3.[10] Multi-lateral discourse on the issue was heavy, as countries for and against the ban tried to lobby their cause. And then, in September of 1995 at the COP3, the decision was transformed into an amendment of the Basel constitution, and OECD to non-OECD waste was destined to be banned as soon as the requisite number of countries ratified the amendment. However, as I will discuss later, the minimum number of ratifications required is still a distant goal, and as leaders at COP 4 pointed out, it must be prioritized as a major issue in the realm of foreign affairs.[11]

 

The Basel Convention: The Main Points

Now that I have discussed the notable events in global hazardous waste trade policy, I will take a closer look at the Basel Convention itself. The Basel Ban, as it is often referred to, didn't actually come into effect until COP3 in 1995, as I stated earlier. The previous two meetings of the Convention were not insignificant, but only served to help increase the global awareness of the issue and provide a working framework for further legislation. The Convention contained several obligations. Parties of the Basel Convention were obligated to take the following measures:[12]

            1) to minimize the generation of hazardous wastes;

            2) to ensure adequate and environmentally sound disposal facilities;

            3) to prevent pollution from the management of hazardous wastes; and

            4) to reduce the transboundary movements of hazardous wastes to a minimum

            The Convention defined environmentally sound management as "taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes.” However, although treatment and management was a prime concern, the overarching objective of the Basel Convention was to reduce the generation of hazardous wastes to a minimum, as stated in #4. After all, prevention is always more efficient than a cure.[13]

 

The Recycling/Recovery Ban

With these objectives in mind, I will now turn to specific points of contention enmeshed in the fabric of the Convention. The first I wish to discuss is the issue of recycling. This is a major topic of debate in the international forum, but to avoid confusion, I have thus far omitted it. The amendment of COP3 actually immediately bans the transfer of waste from OECD to non-OECD countries that is destined for final disposal only. This is an extremely important distinction because more than 90% of the world's transboundary movement of hazardous waste is destined for a recycling/recovery process of some kind.[14] The international forum acknowledged this loophole, and wrote into the amendment a second clause which stated that all trade from OECD to non-OECD countries destined for some sort of secondary use, must be stopped by January 1, 1998. Furthermore, any non-OECD state, not possessing a national hazardous waste import ban and which allows the import from OECD states of hazardous wastes for recycling until 1998, should inform the Secretariat of such arrangements. The country should specify the categories of hazardous wastes which are acceptable for import, the quantities to be imported, the specific recycling process to be used, and the final intended destination of the hazardous residues that result from that process.

            A vast majority of the countries involved eagerly agreed to the immediate ban for final disposal, but, as expected, the debate over the recycling clause was extensive. Most of the non-OECD nations were proponents of the total and complete ban, yet several nations including China, India, Mexico, and Brazil fought against the recycling ban in the name of economic stability. It was eventually adopted because of the overwhelming support from smaller countries, despite the objections of the fore mentioned nations.

 

Annex VII Membership

A second issue that is often debated is the issue of which countries are listed as OECD and which are not. In keeping with the accepted rationale of an OECD to non-OECD trade restriction, a new Annex VII was created to allow the explicit mentioning of the European Community as a separate entity within the OECD, as well as to include Liechtenstein under the ban since it adjoins Switzerland. Annex VII is now the list of nations determined to be 'developed,' and several nations that wish to import toxic wastes are making an effort to break into this list so as to avoid the ban:  Israel, Slovenia, and Monaco, three countries originally not included on that list, have requested admittance, claiming that they are environmentally conscious enough and industrially responsible enough to manage the imported waste efficiently.

 

Party to Non-Party Ban

The third and final issue that is often disputed by several countries deals with the amount of sovereignty that the Convention gives to pre-existing bilateral, regional, or multilateral agreements between parties and non-parties. Under the articles of the Convention, any pre-existing agreement concerning the transboundary movement of hazardous waste must simply be compatible with the environmentally sound management clause which I discussed earlier. At first, this does not appear to provide for much of a loophole. However, when it is compared to the guidelines that the Convention requires of agreements enacted after its implementation, the standards are much more stringent. Instead of simply being "compatible," international agreements must not "derogate" from the environmentally sound clause, and perhaps more importantly, parties must notify the Secretariat of the Convention of all arrangements. The Secretariat will make a decision on the agreements' viability. Many nations believe this to be a large loophole for many countries, including the United States, to continue to trade hazardous wastes.

 

A Framework for Analysis of the Issues                       

In considering these three major issues of contention surrounding the Basel Convention, there are two opposing motives driving the nations involved:  economic development and sustainability on the one hand; and environmental preservation and public health on the other. I will look closely at the issues of recycling, Annex VII membership, and Article 11, attempting to provide an argument for both sides of each issue. In doing so, I'll show how the environment and economic stability play such an integral part. Furthermore, through investigating the issues, I will make my own policy recommendations along the way, in an attempt to provide direction for further discussion of the topic.

            The Recycling/Recovery Ban

            As stated earlier, the distinction made in Decision II/12 of the Basel Ban between waste destined for final disposal and waste intended for recovery was monumental. However, although all sides agreed that such a distinction was necessary, there was heavy debate about how to apply it. On the pro-economic front, a small but vocal sector of industry, primarily comprised of companies dealing with scrap metal, launched a campaign to kill the Basel Ban because it believed that Basel's definition of waste was too broad. They have enlisted support of the ICC and rallied countries like India to go against the position of the G-77 nations. They argue that anything recyclable should be exempt from environmental regulations because it has little direct environmental impact. Even though these industries support a full ban on final disposal of wastes to non-OECD countries, they disagree with the Decision II/12 for industrial reasons.

            Furthermore, countries such as China and other developing Asian nations believe that they will be deprived of essential raw materials under the Convention. Delegates at the ICC meeting in Shanghai in April 1997 say that the Convention contravenes the spirit of the World Trade Organization and will lead to significant economic losses for many developing Asian nations. They believe that the mandates seek to limit global transport of hazardous waste, but also affects shipping of some harmless recyclable metals. Similarly, Australian industrialist Peter Netchaef refered to the Basel Ban as "eco-imperialism," whereby industrialized countries impose their environmental standards on developing nations. Other industrialists believe that the Convention will affect the $50 billion annual global trade in scrap plastics and electronic equipment.[15] In sum, several industries oppose the ban of recyclable materials in the name of economic development and growth.

            On the other side of the issue, proponents of the ban argue that recycling hazardous waste is not good for the environment--it is merely a band-aid approach to a disease with roots in the over-production of hazardous materials.[16] More than 90% of all waste trade schemes recorded in recent years involve some form of alleged or actual recycling. Thus, as proponents argue, banning waste trade for final disposal only, will in effect make little difference.[17] Because recycling is defined as "further use," virtually any waste transfer can be justified; but in reality, nothing can be 100% recycled. The Nordic nations in favor of the complete ban point out that all hazardous waste recycling involves some form of final disposal, even in the cleanest, most efficient process. In fact, often the waste that is disposed of after the recycling process is more deadly than what is originally exported. Furthermore, since recycling operations are more labor intensive and generally less regulated, waste trade for recycling is often more dangerous to human health and the environment than waste trade for final disposal. Even in the U.S., the most industrialized nation in the world, hazardous waste recycling creates pollution. Thus, the environmental impacts are certainly significant, and the proponents of the Basel ban on recyclable materials rely on them for support.

            The Expansion of Annex VII

            The largest issue before the COP4 dealt with the possible expansion of the list of countries loosely defined as "developed." As stated earlier, this includes the OECD countries, including the EU, and Liechtenstein. These nations are banned from exporting toxic waste to any nations not also this list. However, several of the countries both within Annex VII and external to it pushed for its expansion to include a handful of other nations.

            Monaco, for example, requested to be put on Annex VII because it shares a customs union with France, an OECD state. It cited the COP3 inclusion of Liechtenstein as a precedent case, which was included because it has a similar relationship with Switzerland. As Liechtenstein and Monaco both argued, non-membership of Annex VII represents a loophole for exports from OECD nations to non-Annex VII nations through a "mailbox" process. Both Liechtenstein and Monaco never had any interest in or need to get involved in the transboundary movement of hazardous wastes, and were requesting inclusion solely to preserve the ban.

            However, Israel and Slovenia also requested inclusion on completely different grounds:  both nations intended to import hazardous waste, mostly for recycling and recovery operations. Since intra-OECD waste trade would soon be the only permitted trade, they wanted to be classified as an OECD country. Israel actually announced during COP3 in Malaysia its intention to import hazardous wastes from industrialized countries and become a major waste management center in the region. The basis for this argument was two-fold. First, if nations like Mexico, Greece, and Turkey are included in Annex VII, then there appeared no reason to stonewall Israel's application. They believed that since they had already developed a strong enough industrialized sector that produced a large amount of hazardous waste, that they should be recognized as "developed" in this context. However, this first reason may have been given as a smoke screen to hide their real intentions. The much larger reason that they gave was that they were developed enough politically to handle massive imports of hazardous waste. They argued that they not only had the technology and manpower to "carefully" manage the toxics, but they felt they also had the appropriate environmentally conscious mindset to execute the operations successfully. These nations considered the expansion of Annex VII to be necessary for continued economic development.

            On the other hand, an overwhelming global majority felt that any altering of the list would be detrimental to the success of the entire Basel Convention. They cited the fourth obligation (listed above), which calls for the reduction of transboundary movements of hazardous wastes to a minimum, and claimed that any expansion would be in direct conflict with this clause. They argued that this could not be achieved as long as the generating OECD nations could escape the responsibility for their waste. Furthermore, and perhaps most importantly, they believed that accepting such a request would create a dangerous precedent, as it could lead to a domino effect whereby other countries under pressure from industrial interests would demand inclusion as well. From the standpoint of these nations against the expansion of Annex VII, any change to the list would undermine the ban, destroy the policy that many of them had worked a decade to construct, and dangerously threaten the environmental and public health of the people of the developing world.

            The Article 11 Loophole

            The eleventh article of the Basel Convention allows "compatible" international agreements to circumvent the Party to non-Party trade ban if they were established prior to the Convention's implementation. This does not mean that similar agreements between OECD and non-OECD parties are permissible, even if sufficient agreements did exist. It only pertains to the relationship between parties and non-parties of the Basel Convention. For example, Canada (party) is banned from moving hazardous wastes to the United States (non-party) under the Basel Convention regulations; but, since the Bilateral Agreement Between the United States and Canada Concerning the Transboundary Movement of Hazardous Waste was implemented in 1986, and it is compatible with the environmentally sound management policies of Basel, it circumvents the Convention.

            Many nations, including the U.S., Canada, Mexico, Australia, and the U.K. believe that Article 11 is necessary if any cooperation is expected on their behalf. They argue that older, workable and efficient treaties should not be disrupted, nor do the opponents to the exception have the right to override historically successful international agreements of which they were not a part. It is a loophole through the Basel Convention regulations, but these nations point to the fact that since their agreements are still required to be compatible with the environmentally sound obligations laid out in the Convention, there is no environmental or public health threat.

            On the flip-side, many nations of the Convention believe that this loophole allows the most industrialized nations that have been polluting the most to legitimize their actions through historical agreements that never should have been established in the first place. The nations most likely to be a part of such agreements are those with the largest need for them, and the largest propensity to be involved with the trade of hazardous waste. They answer the "compatibility" claim by pointing out that even though the standards may be similar, there is a second reason for a party to non-party ban:  encouragement towards membership. They believe that if non-parties such as the U.S. do not have to join in order to continue trade with the other industrialized nations of the world, then what incentive is there? After all, if they remain a non-party, they can trade with anyone they want to, undermining the overarching goals of the Convention. From a moral and environmental perspective, a majority of the nations of the Basel Convention believe that Article 11, though it tries to be diplomatic in tip-toeing around previous international agreements, eliminates the incentive for non-parties to join.

 

Recommendations and Evaluation

Now that I have presented three of the major issues involved with the Basel Convention, and illustrated how environmental and public health are polarized with economic and political development, I will evaluate the issues on two fronts:  international and domestic.

Internationally, the recycling/recovery ban, is clearly a step in the right direction. If 90% of the world's hazardous waste is destined for secondary use, then what do we expect to get from a policy limited to restricting final disposal? The great environmental significance of the Basel Convention is that it attempted to close this major loophole. But nations need to ratify! Two-thirds of the nations that are members of the Basel Convention have not ratified it and are acting in bad faith. It has been 10 years since the Convention was signed and four years since it was amended—there is no excuse for such a time delay in domestic ratifications.

            The small amounts of waste trade that are currently impacted by the ban are negligible. If the ban were overturned to allow toxic wastes to be traded freely, then any new industry in clean production and hazardous waste minimization would have no market impetus to thrive. Decision II/12 is a necessary policy if the impacts of hazardous waste trading are to be abated, and as delegates reiterated at the COP 4, ratification is a must!

            On the issue of Annex VII expansion, COP4 was successful in keeping the list closed, and rightfully so. If wishes of Monaco, Israel, and Slovenia were granted, the only enforceable global dividing line between the richest, most industrialized countries and the rest of the world would be erased, and the Basel Ban would be transformed into an open-ended agreement based on some form of unenforceable criteria. Some countries have tried to argue that allowing non-OECD states to join Annex VII would help to protect the remaining non-OECD nations from the former's waste exports. This is flawed. It acknowledges the damage from hazardous waste imports to non-OECD nations while allowing such imports at the same time. We must not allow Annex VII expansion or criteria establishment at COP V or any other COPs well into the future.      

            The final issue, and the one yet to be addressed in a Conference of Parties, concerns Article 11. If we are able to eliminate the trade of hazardous wastes, worldwide, then the cleaner alternatives will become prominent and the generation of the waste will be minimized. At this point it would be no longer necessary to have existing bilateral and multilateral agreements on the issue. Countries like the U.S. that have pre-existing agreements need to accept that the Basel Convention is worthy of implementation, despite the existence of prior treatises. Though they may continue to abide by the prior agreements, they must recognize the larger incentive of joining:  a global decrease in hazardous waste. We need to stop relying on Article 11 as a loophole. Party to non-Party trading undermines the legitimacy of the Convention entirely. It is simply a sly avenue for “bad faith” countries to take.

 

U.S Involvement

International enforcement and policy persuasion is difficult, yet domestic pressure is much easier to apply. From a domestic perspective, the United States has not done all it can do to encourage the growth and global ratification of the Basel Convention. In 1992, Congressional House Resolution 292 passed the senate overwhelmingly 87-11, urging President Bush to support the Basel Convention. President Bush did not sign the Convention, even though he was the "environmental President." Since then, the U.S. has made some progress, however. President Clinton has signed the agreement; it has been approved in the Senate, but implementing legislation has not yet been approved by the House. Clinton committed to submit draft legislation to the Congress this session, and committee action has already begun. House Committee Chairman Thomas Bliley (R-VA) asked Secretary of State Madeline Albright to provide input on whether the Convention should be ratified and how. On August 24th, 1998, Barbara Larkin, assistant secretary for legislative affairs at the State Department, sent a letter to Congress. The letter served as the official response from both the State Department and the Environmental Protection Agency (EPA). It outlined several reasons for ratifying the treaty. These include:  helping to provide our domestic waste recycling and reclamation industry with the same access to the international market that our competitors have--we are barred from trading in Basel-covered wastes with most of the world.

            Currently, the US Congress plans on ratifying only the original agreement which requested particular behavior on the part of member nations, but it didn’t provide for any regulatory or mandated power. The US does not plan on ratifying the 1995 amendment which calls for the elimination of trade from OECD nations to non-OECD nations in both final disposal and recycling/recovery operations. It is inexcusable for the US, a world leader in every facet, to not be at forefront of this Convention’s progress. If the world wants to see the necessary 48 countries ratify the Convention and the Amendment, then the US is vital. We are signatories to the Basel Convention, and it is time that we ratify its standards and stop acting in bad faith in front of the rest of the world.  

 

Concluding Statements

The Basel Convention is a monumental decision marking a major breakthrough for global environmental democracy  and a coalition of Northern, Southern, and Central and Eastern European nations.

            Though there have been several issues of debate concerning the Convention, including the recycling/recovery ban, the expansion of Annex VII, and the Article 11 loophole, most of the correct decisions have been made, and for the correct reasons. Work is not done. Ratification is the key, and the elimination of the Article 11 problem and other conflicts with trade regulations need to be addressed. There are currently only 16 countries that have ratified the Recycling/Recovery Ban and there needs to be 48--we need to strongly encourage ratification of this amendment. So far, the Conferences of the Parties have proven to be positive for the health of the Convention, and we can only hope to see more progressive work done at future conferences to ensure that the Basel Convention is eventually fully implemented. The transboundary movement of hazardous waste is a global problem, and can only be solved by an all encompassing, global solution.

 



[1]  See Table #1.

[2]  http://www.greenpeace.org/~comms/97/toxic/basban.html

[3]  Ibid.

[4]  Ibid.

[5]  See Table #2

[6] http://www.greenpeace.org/~comms/97/toxic/bbp.html

[7]  Ibid.

[8]  Ibid.

[9]  See Table #3

[10] Id: ~comms/97/toxic/bbp.html.

[11]  See Table #4.

[12]  http://www.greenpeace.org/~comms/97/toxic/baselwhatisitabout.html

[13] See Table #5.

[14] Id: ~comms/97/toxic/bbp.html

[15]  Ibid.

[16]  Ibid.

[17]  Ibid.