Explainer Series: The Basel Convention

Introduction

The 1980s were undoubtedly a defining decade for all forms of environmental conservation practices and the global commitments thereto. The 26 principles of the Stockholm Declaration on the Human Environment, adopted in 1972, served as the basis for making progress in the fields of climate change mitigation and environmental protection during the 80s. One such progressive step was the adoption of the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal in 1989, under the mandate of the United Nations Environment Programme (UNEP). The Convention came into force in 1992. It is named after the location of the Conference it was adopted during - the Conference of Plenipotentiaries held at the city of Basel in Switzerland. As of today, 188 states are parties to the Convention (having ratified, approved, accepted, acceded, or succeeded to it), and it has achieved near-universal membership. The Convention is also supplemented by a Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes. The Protocol elaborates an already extensive Convention by bringing into action the 13th Principle of the 1992 Rio Declaration on Environment and Development, which mandates the development of domestic laws regarding liability and compensation for the victims of pollution and other environmental damage, as well as calls for “expeditious” and “determined” cooperation among states to further international law regarding liability and compensation for adverse environmental impacts.

Provisions of the Convention

The Convention runs across 29 Articles and 9 Annexes with details ranging from what can be considered as ‘Hazardous waste’ and how this waste is to be managed by States parties to how parties to the Convention can resolve disputes through arbitration (Annex VI). In tandem with the provisions of Article 1 and 2 of the Convention, the first three annexes comprehensively list the categories of waste that are to be controlled (which are further subdivided under Annex I into ‘waste streams’ and ‘wastes having as constituents’), the categories of waste that require special considerations (which mainly include household waste - collected or incinerated), and the potential “hazardous” characteristics that waste or its constituents may possess. Not only does the Convention lay down obligations and guidelines for disposal and cooperation among states (evident from the provisions of Articles 4 and 10, and Annex IV), it also specifies when the transboundary movement of waste will be classified as “illegal traffic,” therefore becoming liable to be punished (Article 9). Although non-state actors carrying out transboundary waste movement have not been explicitly taken into account in the context of illegal traffic, the Convention has mandated cooperation and punishment through domestic legislation for movements of waste not attributable to states, under Article 9- subclauses 4 and 5.

The COP and the Secretariat

To enhance the prospect of global exchange of information and cooperation on the matter, Articles 15 and 16 of the Convention establish a ‘Conference of the Parties’ (hereby referred to as COP) and a Secretariat respectively. The main function of the COP is to oversee implementation of the Convention, the Protocol and their provisions. Further, if the need for an amendment to the Convention arises, the party states will have the opportunity to discuss the nature and relevance of the amendment through a COP, and then route the consensus through the Secretariat and incorporate it into the Convention text. Fifteen COPs have been conducted so far, the latest being in July 2021. The reports formulated at the conclusion of every Basel COP can be found enlisted here.

The Basel Convention is legally binding upon States Parties. This signifies that the provisions of the Convention have to be mandatorily followed by member states through domestic and/ or regional legislations. However, while the Convention gives great emphasis on the establishment of national laws and penalties to hold accountable violators of the Convention, it doesn’t set out its own set of guidelines on what the ideal punishment would look like when certain provisions of the Convention are violated. Annex VI of the Convention does lay down guidelines for the establishment of an arbitral tribunal to settle disputes between states. It also states that the judgements of the tribunal will be binding but still does not list out penal guidelines in case there is a lack of implementation. The primary reason for this can be seen as Article 3 (2[5]) of the Convention, which vows to not violate the sovereignty of any state.

The compliance to the provisions of the Convention is monitored by the Committee administering the Mechanism for Promoting Implementation and Compliance. This Implementation and Compliance Committee was established under Article 15 [5(e)] to help the party states understand and implement their obligations under the Convention. Since 2002, the Committee has followed a double mandate system, under which its ‘general’ mandate revolves around implementation and compliance issues underlying the Convention as a whole, while its ‘specific submission’ mandate focuses on individual, specified cases submitted to it by party states. The Committee is comprised of 15 members, who are elected by and accountable to the COP.

Protocol to the Convention

The Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal was opened for signature in 1999 and is yet to be enforced. It is bound to come into effect only 90 days after it has received 20 ratifications. Currently, the number of Parties to the Protocol stands at 12.

The Protocol runs across 33 Articles and 2 Annexes (A and B) detailing aspects of tort liability for states in terms of the movement and control of transboundary waste. The Protocol defines the scope of its applicability in relation to the Convention and its provisions under Article 3. In subsequent paragraphs, it elaborates on strict and fault-based liabilities, preventive measures, states’ right to take legal recourse, the competent court/ authority for arbitration, the role of the Secretariat in dispute-settlement, and the financial and time costs of liability. The first Annex of the Protocol lists out the States that are considered as “States of Transit,” as per the definition of the same provided under Article 3 [3(d)] of the Protocol. The list also comprises states that may not be a party to the Basel Convention’s Protocol but have ratified or acceded to other enforceable multilateral or regional instruments on transboundary movements of hazardous waste. Once in effect, the Protocol will set new standards for the methodical application of civil liability arbitration and compensatory mechanisms on the matter of global hazardous waste movement and control.

The BAN Amendment

The Ban Amendment was introduced to the Convention during the 1994 COP and adopted in 1995. It specifically bans export of hazardous wastes from three entities, namely the European Union, Organization for Economic Cooperation and Development (OECD), and Liechtenstein (a European principality). The amendment mandated so because the mentioned entities collectively contributed to the largest amounts of hazardous waste exports in the world, especially electronic and plastic wastes that led to pollution in receiving states across Africa and Asia. In 2019, the Amendment came into force and became Article 4A of the Convention. The article prohibits countries listed in Annex VII of the Convention (OECD and EU countries, as well as Liechtenstein) from exporting any hazardous wastes. The Annex itself has not been effectuated because of debates over the list of countries to be added or excluded, but the effectiveness of the Ban Amendment as a whole is a milestone in bringing accountability among countries that are involved in dumping of hazardous waste. Today, 100 states are a party to the amendment.

The Plastic Waste Amendment

In the 14th COP in 2019, Annexes II, VIII and IX of the Convention witnessed another amendment which expanded the scope of hazardous “plastic waste”. Dubbed the “Plastic Waste Amendment,” it came into force on 24 March 2020, while the amended Annexes themselves came into force on January 1, 2021. Annex II of the Convention was amended to add an additional entry ‘Y48’, which collates a list of plastics that require special considerations in terms of recycling and safe disposal and include plastic waste almost exclusively consisting of one or more non-halogenated polymers, fluorinated polymers, cured resin or condensation products. Annex VIII saw the addition of entry ‘A3210’, which in turn adds plastic waste or mixtures containing such waste to the list of A3 wastes - making them subject to the ‘Prior Informed Consent’ Procedure by which states parties dissent or assent to receiving classified chemicals/wastes for processing and/or disposal. Annex IX saw the replacement of entry B3010 with entry B3011, which clarifies the type of plastic wastes and mixtures that are relatively less hazardous in nature and hence, are free from the PIC procedure. These wastes would still require proper disposal and recycling in an environmentally-sound manner. So far, 188 state parties have given official statements over ratification, acceptance, formal confirmation, approval or accession to the Plastic Waste Amendments.

Authentic Texts

The Authentic texts of a Convention signify the languages in which the Convention can be interpreted by the public, with each linguistic text holding an equally authoritative standing. In the case of the Basel Convention, as well as its Protocol, the English, Spanish, Arabic, French, Chinese and Russian versions are equally authentic (as per provisions of Article 29 and Article 33 of the Convention and its Protocol, respectively).

Case-based Applications of the Basel Convention

The applicability of the Basel Convention has been studied in various national and international contexts to ascertain when and where guidelines pertaining to environmentally friendly management of hazardous wastes have been violated. A recent case study is that of Argentina, where in 2019, the-then President Mauricio Macri signed a new decree amending Argentina’s waste management laws to reduce the scope of what can be classified as “hazardous waste”. The decree number 591/2019 was deemed to be illegal by the Basel Action Network on grounds that Argentina, as a party to the Basel Convention, could not possibly take a policy measure that narrows the definition of wastes in violation of the scopes and definitions laid down by the Convention itself.. Consequently, the Ban Action Network undertook peaceful protests alongside Argentine civilians and other NGOs. They also wrote an open letter to the authorities concerned, emphasizing the illegality of the decree, in collaboration with Amsterdam-based NGO, Greenpeace. However, no dispute has yet been filed on the issue, and neither has the Basel COP/ Secretariat addressed the matter.

Similarly, in 2019 itself, legal opinion on the illegal traffic of wastes from Canada to Philippines found Canada to be in violation of article 9 of the Basel Convention, which prevents such illegal traffic. This case came to light in 2016, when the Philippine government under President Rodrigo Duterte refused to accept 50 containers of waste from Canada under provisions of its national law and its commitments to the Basel Convention. However, Canada took no action and the containers were left with the Philippines to manage and take care of. Consequently, a detailed legal analysis carried out by Pacific Centre for Environmental Law and Litigation Law Corporation, in collaboration with other concerned NGOs (including IPEN and Basel Action Network) found Canada’s actions to be ethically and morally questionable, and of course, illegal. They again addressed the issue through an open letter to Canadian Prime Minister Justin Trudeau - but there yet remains action to be taken. However, since then, Philippines and Canada have been engaged in an active “waste war,” and the former has actively returned cargoes of waste back to the latter in keeping with its national legal provisions prohibiting dumping of hazardous wastes.

India’s Commitments to Basel

India became a party to the Basel Convention in 1992 itself, and since then, has rallied for various provisions of the Convention as its foreign policy priority. India enacted the Hazardous Waste (Management & Handling) Rules in 1989 under the mandate of the Ministry of Environment, Forest and Climate Change (MoEFCC), even before the Basel Convention came into the picture, to regulate transboundary and internal movement of hazardous wastes. After ratifying the Convention, India upgraded the Hazardous Waste rules in 2000 and 2003, and finally in 2008, the MoEFCC released the final notification of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, in line with the Basel provisions. The 2008 rules were once amended in 2016 as well.

Since the beginning of discussions on transboundary movement of hazardous waste, India has been a significant voice for developing countries across various Basel COPs, as well as joint COPs for the Basel, Stockholm and Rotterdam Conventions. India’s main arguments on hazardous waste revolve around the opposition of export of such waste to developing countries. India banned the dumping of solid plastic waste into the country and has taken significant steps to phase-out the use of single-use plastics as well. The renewed focus of the MoEFCC and other Ministries like Agriculture, Chemicals, and Electronics and Information Technology is on phasing-out e-waste dumping in developing countries as well. To that end, India established the 2016 E-Waste Management Rules.

India has not yet ratified the BAN Amendment to the Basel Convention, which makes it open to exports of hazardous waste by Annex VII countries that have not yet ratified the BAN Amendment (after the PIC process takes place). Seeing as India is an emerging regional power and a rallying force for developing countries, it becomes significant for the country to ratify the BAN Amendment following in the footsteps of its Asian partners. Ratifying the ban will also be a step in the right direction for India’s commitment to curbing e-waste.

Conclusion

Further, the Convention is also in tandem with the provisions of various Sustainable Development Goals under the United Nations Agenda 2030, including SDGs 3 (ensuring good health and well-being), 11 (making cities and human settlements inclusive, safe, resilient and sustainable), 12 (ensuring sustainable consumption and production patterns), 13 (Climate Action), 14 (Securing life below water), 15 (securing life on land), and 16 (ensuring peace, justice and strong institutions). In effect, the successful implementation of the Basel Convention and its Protocol is a necessity for the fulfillment of the UNSDGs by 2030.

In conclusion, the Basel Convention is a landmark international instrument to regulate and control the transboundary movement of hazardous waste. Its various COPs have yielded significant technical and academic reports that expand our legal and political understanding of waste traffic management in the international arena. The Convention does not cover radiological and nuclear waste material, because it relies on other multilateral and regional arrangements to cover movement and control of such hazardous wastes. Nonetheless, the provisions of the Convention are a must-read, as they are helpful in explaining the near-universal obligations and commitments of states to the cause of waste management and climate change mitigation.

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