Client Alerts

Basel Convention: entry into force of the ban on trade in hazardous waste between developed and developing States accelerated

Volterra Fietta Client Alert
21 November 2011

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989 (the “Basel Convention”) regulates but does not prohibit trade in hazardous waste between its States parties.

However, the Basel Convention’s Ban Amendment will ban the movement of hazardous waste from OECD to non-OECD States parties, when it enters into force. The Ban Amendment was adopted in 1995 but has not entered into force for over 15 years because of a dispute amongst the States parties over treaty interpretation. On 21 October 2011, the Conference of Parties to the Basel Convention determined that it will enter into force once it attains only 17 more ratifications.

Risks in the hazardous waste trade

Over the past decades, health and safety regulation expanded and space in landfills diminished in developed States. As a result, those involved in the manufacture and processing of hazardous waste have increasingly taken to sending the developed world’s hazardous waste for disposal or processing in the developing world. This transnational trade in hazardous waste has resulted in a number of high profile and serious humanitarian and environmental disasters.

Background: the Basel Convention

The Basel Convention created a “passport” system for hazardous waste. It enabled this waste to be moved between States but, theoretically, only in a regulated manner. The system was based on the concept of the “Prior Informed Consent” (or “PIC”) of States to the import of properly documented waste into their territory. The Convention also obliges parties not to allow the export of hazardous waste to non-parties, as well as to follow sound waste management practices.

As with many international regulatory regimes, whilst the system set up by the Basel Convention was robust on paper, its effectiveness in practice has been limited. The effectiveness of regulation under the Convention depends almost entirely on government officials in the States that import hazardous waste. Technical, financial, capacity, training and other issues that generally present challenges to good governance in the developing world have similarly challenged the Convention’s effective regulation in many developing States that import hazardous waste.

A possible solution: the Ban Amendment

The practical difficulties that the Basel Convention has encountered were to some extent foreseen during its negotiations, prompting some to fear that it might not restrict but, rather, legitimise trade in hazardous waste. Even at that time, a school of thought was coalescing around the conclusion that only a ban on imports, at least into the developing world, could result in effective regulation of hazardous waste disposal.

Due to these concerns, the African States caucus at the negotiations for the Convention refused to sign it. Instead, they adopted the Bamako Convention on the Ban on the Import into Africa and the Control of Transboundary Movement of Hazardous Waste within Africa. This treaty purported to ban imports of hazardous waste into Africa entirely. However, largely as a result of the governance challenges identified above, shipments of hazardous waste continued to arrive.

By the early 1990s, the G-77 developing States began calling for a ban on the export of hazardous waste from OECD countries to non-OECD countries. A complete ban on transnational movements of hazardous waste from OECD to non-OECD countries (the Ban Amendment) was adopted as an amendment to the Basel Convention in 1995.
The Deadlock and the Swiss-Indonesian Country Led Initiative that Broke it

Until October 2011, it was not clear when, if ever, the Ban Amendment would enter into force. This was because of an ambiguity caused by the imprecise wording of clause 17(5) of the Basel Convention, which requires any amendments to the Convention to have:

“ratification… by at least three-fourths of the Parties who accepted them”.

The Ban Amendment has been ratified by 71 States to date. The States parties to the Basel Convention were divided into two camps over how to calculate the number that represents the “three-fourths” referred to in clause 17(5) and against which the number of ratifications must be measured. Not surprisingly, the interpretive camps reflected the split between States that wanted to see the Ban Amendment enter into force and States that did not. One camp argued that the “three-fourths” must be measured against all States parties to the Convention at the present time (thus increasing the threshold for each new signatory). The other camp argued that the “three-fourths” must be measured against only the States parties that originally accepted the Ban Amendment (which means that only 17 more ratifications are required for it to enter into force).
This second interpretation was championed by the Indonesian-Swiss Country-Led Initiative to Improve the Effectiveness of the Basel Convention. As a guiding principle, they argued that:

“In the interest of facilitating the entry into force of new amendments, the interpretation that would require fewest future ratifications would be the most appropriate.”

The Indonesian-Swiss interpretation, along with proposals to provide technical and other assistance to developing States so that they can implement the Ban Amendment, was finally adopted in its totality by the States parties to the Basel Convention at the Conference of October 2011.

Impact: the Basel Convention, the Ban Amendment and the rules of treaty interpretation

The Indonesian-Swiss initiative followed an interpretation of the Basel Convention that was based on the Vienna Convention on the Law of Treaties 1969. This included article 31(1), which requires a good faith interpretation, in accordance with the ordinary meaning of the terms of the treaty in the light of their context and object and purpose. The object and purpose of article 17(5) of the Basel Convention, “to allow an early entry into force of the Ban Amendment”, was the primary focus of the Indonesian-Swiss interpretation. Nevertheless, its proponents did not lose sight of the ordinary meaning of the terms of the treaty, and rejected the interpretation that presented the “fastest option” because it was inconsistent with the wording of article 17(5).

The decision of the 118 States parties who participated in the Conference of Parties to the Basel Convention in October 2011 is informal. It is not legally binding on the States parties to the Basel Convention. However, observers have concluded that the consensus decision will carry the day and settle the question in practice.

The recent decision on interpretation does not bring the Ban Amendment into force. However, the decision is a declaration of political determination of the States parties to do so and clears the way for further ratifications.

Conclusion

The October 2011 Conference of the Parties to the Basel Convention brought much-needed legal clarity to the status of the Ban Amendment. It also gave momentum to the global political initiative to reinvigorate the international regulation of the transboundary movement of hazardous waste.