International Regulation of Hazardous and Toxic Waste: The Basel Convention and Others and Their Ineffectiveness

LaTasha T. Johnson

International Regulation of Hazardous and Toxic Waste:  The Basel Convention and Others and Their Ineffectiveness

for

Political Science 491 Honors, Senior Seminar in International Environmental Policy

Professor Robert V. Bartlett

Fall 1997

 

 

 

 

 

 

 

 

 

 

 

 

 

Introduction

With the long extensive title of this paper, there are many directions it could take, many things it could encompass, and a number of things upon which it could focus. The scope of this paper, as it relates to international environmental policy, concerns  international disposal of hazardous and toxic waste.  It will encompass the trade and transport of hazardous and toxic waste, and it will focus on the environmental policy involved in international waste disposal, trade, and transport. An underlying theme throughout the paper will deal with the role international economic systems play in international environmental policy.   The paper will explore how sovereign states dispose of their hazardous wastes, where exactly this waste goes, and what are the, if there are any, international environmental policies which regulate this international activity.

International environmental policy and the international regulation of hazardous and toxic wastes affect many subject areas within international environmental policy including but not limited to United States foreign policy, the United Nations and international intergovernmental and international non-governmental organizations, bio-diversity, sustainable development, and trade and economics. More specifically:  The foreign policy of the United States plays a role in determining to what extent Americans will be affected by the disposal of hazardous and toxic wastes other than those generated within the federal state.  Also the United States has generally been against bans on hazardous waste exportation because it is against intervention in sovereign matters.  A better reason would be because of the amount of hazardous waste that it exports.  The Clinton Administration reversed this policy in anticipation of environmental conventions focused on hazardous wastes.  The United Nations and international intergovernmental and international non-governmental organizations all have a definite role in making and influencing international environmental policy in general.  The subject of international regulation of hazardous and toxic wastes is simply an aspect of international environmental policy.  Greenpeace was a decisive component in the transformation of the 1989 Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal in Basel, Switzerland, from a weak regime to a strong regime.  International non-governmental organizations were also (along with developing countries) influential in the regime concerning global trade in dangerous pesticides.

Further examples of relevance:  The disposal, trade, and transport of hazardous and toxic wastes has  negative effects on the bio-diversity of the earth, most of which we are unaware or upon which we may only speculate.  As for sustainable development, the by-products of development include hazardous and toxic materials which question sustainability.  Sustainable development, disposal, and trade and transport of hazardous and toxic wastes play a large role in trade and economics as it concerns international environmental policy.  For example the United States metal industry strongly opposed an international ban on hazardous waste trade while the chemical and waste management industries were in favor of it.  The United States Chamber of Commerce agreed with the metal industry.  This directly affected negotiations of the Basel Convention.  The United States exports a lot of scrap metals which are included in the category of hazardous waste.

International regulation of hazardous and toxic waste disposal is ineffective without economic considerations taken into account.  States which are desperate for international exchange and for a part in the international economy are more susceptible to accepting hazardous and toxic waste despite the environmental consequences.  The states which pay other states to bury their waste, the states which dump their waste into the oceans, the air, the biosphere, the universe, are in need of a regulation that not only controls the dispersion of hazardous and toxic waste but also serves if not to eliminate environmental problems then to greatly decrease the potential for widespread environmental damage.  With the rise of nuclear power there is the potential for greater disposal of low-level radioactive wastes into our oceans.

Question and Answer

With all of this in mind, many questions arise that demand an answer.  Six of them are briefly addressed here.  (1.)  Are there efforts to control production of waste?  Of course every entity which produces waste claims to use a production method which minimizes waste at least as far as it is technically capable.  (2.)  Who gets the waste and why?  Recipients of waste include states with a desperate need for funds, states that are former colonial holdings, states with little concern for the environment, and states who focus solely on economic gain.  Some would say that recipient states are being bullied into accepting waste from exporting.  Others would say that recipient states are starving for a part in the occidental wealth which dominates the world economy.  (3.)  What are the effects of this waste?  Hazardous and toxic waste has a profound effect on the environment which includes the destruction of parts of the ocean, human exposure to radioactive wastes, and a number of other things that we may not even realize.  (4.)  Where is the voice of the people? With the politicization of this issue, recipient states (particularly former colonies) are beginning to say that they will no longer accept waste.  Greenpeace and other international non-governmental organizations have always spoken out and even taken action against it.  Countries affected by the trade among France, Great Britain, and Japan have formed coalitions against transport of such materials, particularly in locations close to or within their sovereign jurisdiction.  (5.)  What kind of regulations are needed? Who will enforce them? Is the threat to the environment and the fate of humanity enough to be its own enforcer of international environmental policy concerning hazardous and toxic waste disposal?  Regulations are needed that not only control the dispersion of hazardous and toxic waste but also serve if not to eliminate environmental problems then to greatly decrease the potential for widespread environmental damage. The enforcers need to be the major producers of the waste.  Recipient states need to stop being recipient states.  Economic and trade sanctions are more realistic enforcers. One would think that the answer to this question is a simple yes.  Obviously, the question is more complex than that and if a simple answer must be given, it would have to be no based on current evidence.  The scientific evidence of the Basel Convention did not play a primary role.  (6.)  When will we see a change?  Soon, we hope, but in the real world, in reality, we do not know.  Perhaps the current conventions and innovations in technology will bring about rapid change in the near future.

The Basel Convention

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal of 1989 does something towards the regulation of hazardous and toxic waste trade.  It places conditions on the trade; it allows for agreements between signatory or non-signatory states which is in direct opposition to the earlier provision of signatory states not shipping hazardous waste to non-signatory states.  The Basel Convention is lacking in a number of ways.  It does not include a liability clause. The United States never ratified it.  Most African countries refused to sign it.  International non-governmental organizations were not allowed to participate in working groups.  Countries have had (and continue to have) actual plans for dumping waste.  For example, Japan has had plans in the past to dump radioactive wastes into the South Pacific.  The Basel Convention basically states that a state can not send hazardous waste to another state without informing the receiving state of the waste and without prior written consent of the receiving state.  Or in other words, the exporting state needs a permission slip from the importing state.  Initially, this was an excellent solution.  However, problems have arisen.  The countries which were receiving previously unregulated wastes enjoyed a great amount of income for their economies.  An article in The Economist reports on the attitude changes since the Convention (which went into force on May 5, 1992).  States are suffering from the lost revenue, and are wanting to change regulations so that they may regain some of this lost income.  Particularly, Asian states are interested in the scrap trade (of metals, old batteries, et cetera).  These nations use this “scrap” to extract raw materials at a cheaper cost that importing.  The ban on exporting hazardous wastes for disposal is already in place.  The ban for exporting hazardous wastes for recycling is not supposed to go into effect until the end of this year.

The Basel Convention was not a total waste; it shows that trade sanctions are a useful enforcement tool in international environmental policy.  It clearly shows that funds are needed to correct the havoc already wreaked.  It is not clear on clean-up costs, or on who should be responsible for such costs–the recipient state, the exporting state, or the international community.  It generally is a move to disallow areas to be contaminated with toxic wastes by putting conditions on where the waste may go.  The Basel Convention regime has strengthened since its naissance; developing countries are uniting against the major exporters of waste.  States are also being influenced by their former colonies.  Overall, the Basel Convention is a positive, even significant step towards the international regulation of hazardous and toxic waste disposal, trade, and transport.

Agenda 21 and Organizational Structures

Agenda 21 is from the 1992 United Nations Conference on Environment and Development in Rio de Janeiro, Brazil.  It focuses on  global sustainable development.  The implementation of Agenda 21, in states, agencies, and organizations, particularly the United Nations, has a number of obstacles.  Henry (1996) discusses this in detail.  Many reforms are needed before implementation is possible.  One of the major problems is that the United Nations’ agencies which focus on development and those that focus on environment often clash.  This is the case in numerous instances within, between, and among United Nations agencies as well as states.  Agenda 21 is supposed to be integrated into current systems of “economic, social, and environmental activities.”  The biggest obstacle to this integration is that organizational restructuring, a revamping of the current systems, must occur.

Structural reforms are difficult at best, and impossible at worst.  Structural revolution would be the solution I would propose.  However, the parties involved are opposed to change.  Henry goes on to discuss the debate over whether or not reforms are enough to integrate Agenda 21 into the United Nations.  Obstacles arise at every turn.  There are financing problems with Agenda 21 activities.  There are administrative dilemmas.  There is the “red tape” which is an inherent part of any bureaucratic system.  There are debates over agency autonomy.  The list continues.  Henry concludes his discussion of the United Nations implementation of Agenda 21 by saying that the United Nations must engage in structural reform despite the obstacles in order for it to begin Agenda 21 implementation on a global scale.

Structural  organizational problems are not exclusively limited to the United Nations.  Many states suffer from the same dilemma.  Weale and others (1996) discuss the same problem in six states. [Specifically, Germany, Greece, Italy, The Netherlands, Spain, and the United Kingdom, all are members of the European Union.]  They argue that administrative reorganization must be considered in relation to environmental policy.  They also argue that organization is key to “policy output”.  One of the biggest obstacles noted is that old bureaucratic agencies have always dealt with certain environmental issues.  The Waste Management Department, for example, has generally dealt with waste management.  The problem arises, however, when new issues arise which may require the development of new agencies.  An agency that has previously dealt with human waste may not be equipped to handle other types of waste problems.  Expanding existing agencies is not always a viable solution.  Weale and the others conclude by reasserting the argument that organizational structure is a determining factor in environmental policy “output”.

Lester and others (1983) foreshadowed these structural problems in their discussion of responses to hazardous waste issues in the form of policy formation in the United States.  They discuss theoretical consideration involved in policy formation and formation methods.  They then give a detailed analysis and discuss the implications.  The main idea is that policy formation will depend on factors which include the amount of waste involved, the people and environment it affects, the actual effects and so on.  In attempting to reach answers and solutions to the dilemmas and problems surrounding the transboundary movement of hazardous waste, more dilemmas and problems arise.  This is not exclusive to organizational structure of states, agencies, and organizations.  The problem is truly global.

Examples

International environmental policy concerning hazardous and toxic wastes may sound vague and unrelated without specific examples of issues, events, and occurrences to support all of the rhetoric.

On 1 September of this year, Greenpeace filed a charge with the European commission.  It accused France of violating European and international environmental law.  The French nuclear company COGEMA conducted an operation to remove nuclear material from inside its discharge pipes.  Greenpeace asserts that COGEMA proceeded with this operation without an Environmental Impact Assessment.  Greenpeace’s argument is that such an operation requires this assessment under French and European law.  This report is an example of an attempt at enforcing international environmental law and policy concerning hazardous and toxic waste.

Greenpeace’s actions are a direct threat to the sovereignty of France.  COGEMA is a state-owned company within the state, and non-state intervention of state affairs has always been, is, and will always be an issue of great debate. However, in the COGEMA case as well as in the following case, many other factors are involved.

The United Kingdom of Great Britain, France, and Japan have been involved in the transportation of nuclear waste (plutonium) for a number of years now.  The goal is for a specific amount of nuclear waste from Britain and France to be transported to Japan by the year 2010; Japan, in turn, ships irradiated nuclear fuel from its reactors to reprocessing factories in France and Britain.  As noted earlier, the ban against exporting hazardous wastes for recycling is not supposed to go into effect until the end of this year (1997).  However, several news reports say that when this waste reaches Japan, it is disposed.   A 1994 Greenpeace press release discusses the potential hazard of these transports.  At the time British, French, and Japanese officials refused any environmental assessments or analyses, and the route of transport was undisclosed.  A British vessel carried nuclear waste (and weapons-usable plutonium) from the French port of Cherbourg (near the La Hague plutonium reprocessing factory) to the Japanese port of Mutsu-Ogawara.  At the time the three confirmed possible transport routes were:  “[1] through the Caribbean Sea and the Panama Canal, [2] around southern Africa and either through the Straits of Malacca and through the South China Sea or around Australia and up through the Tasman Sea and islands of the South Pacific, or [3] around Latin America/Cape Horn and across the Pacific.”  [http://www.greenpeace.org/]  A Greenpeace news release at the end of 1996 revealed that the transport routes were still undisclosed.  A shipment in April of 1995 took the third route, around South America and across the Pacific.

What is the significance of all of this disposal, trade, and transport of nuclear material (hazardous and toxic waste)?  The transport routes alone are an issue of great importance to the global environment.  There is the potential there to leave a trail of waste around the world affecting all life not simply human life.  Uimonen (1992) discusses the link between trade and environmental policies.  He states that the basic economic principles of supply and demand and cost and efficiency  impact environmental policy.  Pollution taxes are given as an example of revenue from waste.  Uimonen points that domestic environmental regulations are often trade barriers.  This is a good thing in regard to hazardous and toxic wastes.  However, the competitive nature of the economic system allows for a search for states with fewer regulation with which to do business.  On the other hand, in article in The Economist (January 8, 1994) briefly discusses the benefits the  waste management industry receives from increased state regulations on environmental issues.  The more regulations in place, the more efforts are needed to meet these regulations, and the waste management industry makes more money.

Any number of factors must be taken into account when attempting to regulate this trilateral exchange.  France, Great Britain, and Japan are major players in the world economy.  The routes consist mostly of areas included in the sovereign holdings of these states, open sea, or areas under the influence of these states.  There is also the potential for states which control significant areas (such as the Panama Canal) to allow these shipments to pass uninhibited and un-inspected.  Inspection of a vessel could be interpreted as a threat to sovereignty which brings us back to the major dilemma in the international arena. The trade among Britain, France, and Japan could be viewed as three sovereign entities engaging in free enterprise and outside international intervention is unnecessary.  Despite all of these factors, the issue is not destitute.

There is hope for regulating international trade of hazardous and toxic wastes; there is even the potential to effectively destroy such waste. The Organization for Economic Cooperation and Development (OECD) has a Nuclear Energy Agency to develop standardized management practices for nuclear wastes.  With the advancement of technology, there are other examples as well.

ELI Eco Logic International Inc. claim to have developed a technology which safely destroys hazardous waste without incineration.  It specifically targets poly-chlorinated biphenyls (PCBs), pesticides, dioxins/furans, coal-tars, and chemical warfare agents.  The corporation details its successes in the past, its current operations, and its future innovations.  In 1991, at Hamilton Harbour, Ontario, the company had positive test results in processing coal-tar contaminated harbour sediment and PCBs.  In 1992, at Bay City, Michigan, it had positive results in processing PCBs in aqueous, organic, and soil matrices.  Currently, Eco Logic, Inc. has two of its seemingly miraculous units (commercial scale SE25 ELI Destructors) in use.  One is in Kwinana, Western Australia and the other is at a General Motors of Canada Ltd. facility in St. Catharines, Ontario, Canada.  Eco Logic, Inc. also has “field-scale treatability studies”; it specifically mentions three, one in New Bedford Harbour, another with the United States Department of Energy (dealing with low level radioactive mixed wastes and complex hazardous wastes), and the other in Warren, North Carolina.  A list of Eco Logic, Inc.’s future innovations include expansion of current operations and also operations with General Electric Canada, Inc., Toronto Hydro (Canada), Tokyo Boeki/Nippon Sharyo (Japan), U.S. Army Chemical Stockpile Disposal Program [including “disposal of distilled sulphur mustard (HD) and nerve agent (VX) stored in . . . Aberdeen, Maryland and at the Army Ammunition Plant at Newport, Indiana.”], and operations with the U. S. Naval Air Station, Patuxent, Maryland.  [http://www.eco-logic-intl.com/]

These technological innovations are wonderful, but it brings us again to the issue of economics.  The very countries which have engaged in this new technology are the very ones which export their hazardous and toxic wastes.  The recipient countries are still left with the trash, waste, “excrement” of the sovereign bodies of the exporting states, and the recipient states do not have the funds, the technology, or even sometimes the desire to do anything other than to simply dump the waste that it has received.  One wonders if there is any real environmental concern about the disposal, trade, and transport of hazardous and toxic waste on a state level as well as on civic levels.  All of this serves to create further thought and reflection upon the entire discourse of the issue.

Challenges

Wapner (1994) discusses state sovereignty as an obstacle to cooperation in environmental policy making. State cooperation is essential to this policy making.  He briefly suggests convergence of national and international interests as one possible solution to this obstacle.  Payne (1996) also discusses the need for cooperation as it relates to the environment.  He proposes that “deliberative mechanisms” be created to achieve global cooperation.  He suggests that these “deliberative mechanisms” be developed by changing self-interests into general interests.  I am not sure how this transformation of interest is to take place.  However, the main idea is that measures must be taken to put the environment on the top of everyone’s priority lists by any means necessary.  Schwarz (1994) discusses new waste management agencies, companies and other developments.  The fundamental flaw is that these new waste management projects lack  cooperation and enforcement; so, they do not really help.  There are specific obstacles to multinational or international waste management companies.  The most significant one is national regulations which hinder foreign companies from operating in certain areas.  Public involvement is important in influencing domestic policies concerning environmental issues.  Schwarz notes that the final obstacle to waste management companies are costs.  The bottom line is money, more specifically, hard cash.

Murphy (1994) brings up the issue of liability in the transboundary movement of hazardous wastes.  The question of liability is, perhaps, the question which underlies the set of questions presented earlier.  In Murphy’s assessment of the situation, he states that the next step is a “liability regime to deter mismanagement of hazardous wastes both during and after their transboundary movement, and to provide compensation for adverse effects they may have on human health and the environment.”  [Murphy goes much further to propose prospective regimes, to give elements for a successful regime, and so on.  I only deal with the idea of his general assessment.]  I totally agree with this assessment.  However, this problem is not without its dimensions.  Murphy discusses these dimensions, which include definitions, data, and regulations.  The biggest problem with definition is that there is no standard global definition of hazardous wastes accepted by all states.  Simply put, different states have different definitions.  What may be hazardous in the United States may not be hazardous elsewhere and vice versa.  One effect of varying definitions of hazardous wastes on data is that the “hazardous” waste may have been only recently regulated.  As a result, information is sketchy or non-existent on certain materials.  The process of collecting information may be flawed as well.  Information may be withheld or omitted in the process of reporting destination and quantity concerning transport of hazardous wastes.  Obviously, varying definitions, and sketchy data are not effective tools in the regulation of transboundary movement of this waste.  An all out ban on hazardous wastes is ineffective if the waste being moved is in fact hazardous but not defined as so.

Consequences or Coincidences

“Thousands of tonnes of illegally dumped hazardous waste exploded at Bangkok’s            Klong Toey port in 1991, killing 10 people and spreading a toxic cloud over the             city.  Tens of thousands of people suffered serious health problems afterwards.”            (Schwarz, 1994)

Does anyone really care?  By “anyone” I mean everyday people.  I will never forget one day there was a news byte about this woman who had given birth to Siamese twins that shared a body.  At the end of the few seconds of coverage the reporter said that two other women had also given birth to Siamese twins that shared a body, in the same hospital, within that same year.  The infants did not survive.  I am thinking to myself, that means that within one year, three women, in the same hospital, have given birth to two-headed babies.  I am not a statistics or genetics expert, but that seems extremely unlikely without some outside influence such as hazardous or toxic waste or some other by-product of modern civilization.  Other issues begin to surface as the discourse of hazardous and toxic waste continues.

If regulations are put into place and enforced, how many generations will it be before a significant effect is readily apparent?

 

 

Sources

Class Materials

Caldwell, Lynton K.  International Environmental Policy, 3rd ed.  Durham, N.C.:  Duke   University Press, 1996

Porter, Gareth and Janet Welsh Brown.  Global Environmental Politics, 2nd ed.  Boulder,             Co.:  Westview Press, 1996

Susskind, Lawrence E.  Environmental Diplomacy:  Negotiating More Effective Global    Agreements.  Albany:  State University of New York Press, 1996

Books

Barnett, Harold C.  TOXIC DEBTS and the Superfund Dilemma.  Chapel Hill:  The         University of North Carolina Press, 1994

Hird, John A.  SUPERFUND:  The Political Economy of Environmental Risk.  Baltimore:            The John Hopkins University Press, 1994

Rabe, Barry G.  Beyond NIMBY:  Hazardous Waste Siting in Canada and the United      States.  Washington, D.C.:  The Brookings Institute, 1994

Internet:

http://www.eco-logic-intl.com/

http.//www.eco-logic-intl.com/CURRAPPS.HTM

http://www.eco-logic-intl.com/FUTRAPPS.HTM

http://www.eco-logic-intl.com/PASTDEMO.HTM http://ww.fao.org/unfao/bodies/conf/c97/w5918e.htm http://www.globelaw.com/Nukes/iaeacod.htm

http://www.greenpeace.org/~comms/97/nuclear/press/prsept09.html

http://www.greenpeace.org/home/ftp/pub/campaigns/cdromgp/press.releases.95/bnfl.txt

http://www.greenpeace.org/updates/96_12_4.html

http://www.unep.ch/basel (Basel Convention Homepage, maintained by iuc@unep.ch)

Scholarly Journal Articles

Copeland, Brian R.  “International Trade in Waste Products in the Presence of Illegal        Disposal,” Journal of Environmental Economics and Management, Vol. 20, March       1991, pp. 143-162

Henry, Reg.  “Adapting United Nations Agencies for Agenda 21:  Programme Coordination        and Organisational Reform,” Environmental Politics, Vol. 5, No. 1, Spring 1996,          pp. 1-24

Motta, Massimo and Jacques-FranÁois Thisse.  “Does Environmental Dumping Lead to    Delocation?”  European Economic Review, Vol. 38, April 1994, pp. 563-576

“Muck and Morals,” The Economist, Vol. 336, September 2, 1995, p. 61

Murphy, Sean D.  “Prospective Liability Regimes for the Transboundary Movement of      Hazardous Wastes,” American Journal of International Law, Vol. 88, January      1994, pp. 24-75

Lester, James P., James L. Franke, Ann O’M. Bowman, and Kenneth W. Kramer.              “Hazardous Wastes, Politics, and Public Policy:  A Comparative State Analysis,”            The Western Political Quarterly, Vol. 36, June 1983, pp. 257-285

Payne, Rodger A.  “Deliberating Global Environmental Politics,” Journal of Peace Research, Vol. 33, No. 2, May 1996, pp. 129-136

“Regulate Us, Please,” The Economist, Vol. 330, January 8, 1994, p. 69

Schwarz, Adam.  “Everybody’s Business:  Asia has plenty of waste, but profiting from it is tough.”  Far Eastern Economic Review, Vol. 157, November 24, 1994, pp.         136, 138, 140

Uimonen, Peter.  “Trade Policies and the Environment:  How do current trading rules        affect environmental policy issues?”  Finance and Development, vol. 29, June       1992, pp. 26-27

Von Moltke, Konrad.  “The United Nations Development System and Environmental       Management,” World Development, Vol. 20, No. 4, April 1992, pp. 619-626

Wapner, Paul.  “International Cooperation and global Environmental Challenges,” Politics             and the Life Sciences, Vol. 13, February 1994, pp. 31-32

Weale, Albert, Geoffrey Pridham, Andrea Williams, and Martin Porter.  “Environmental   Administration in Six European States:  Secular Convergence or National        Distinctiveness,” Public Administration, Vol. 74, Summer 1996, pp. 255-274

 

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