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When is a Waste Not a Waste? The Evolution of the Basel Convention and the International Trade in Hazardous Wastes
International Studies Association
March 1998
Paper presented at the 39th Annual Convention of the ISA, Minneapolis, USA, March 1998
Introduction 2
One of the key multilateral environmental agreements (MEAs) currently in force is the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. Originally conceived as a ‘notification and consent’ regime for managing international movements of hazardous waste, it is now moving towards a ban on the activity of exporting waste from rich countries to poor ones. However, some actors in the process, notably industry and a few countries, are expressing concern that a blanket ban will disrupt their trade in ‘secondary materials’. This situation was a key item of discussion at the recently completed fourth Conference of the Parties to the Basel Convention (COP-4) held in Kuching, Malaysia (February 1998).
Since the entry into force of the Basel Convention in 1992, related developments in the ‘trade and environment’ debate have put the issue of restricting trade for environmental purposes squarely on the international agenda. 3 Many bodies, including the WTO, the OECD and the EU, have commissioned studies to examine the implications of restricting trade in MEAs. 4 With new agreements on climate change and hazardous chemicals currently being negotiated, the issue of the trade implications of MEAs is likely to remain a central one in international environmental politics. 5
The purpose of this paper is to examine the attempt to ban hazardous waste transfers in light of the history of the international effort, particularly by developing countries, to ban this trade and the current discussion about the appropriateness of restricting trade for environmental purposes with specific reference to the export ban on hazardous wastes for ‘recycling’. It is suggested that the debates surrounding the ban reflect the most serious case to date of a conflict between an MEA and the ethos of free trade.
The following two sections will give brief overviews of the Basel Convention and some available data on the international hazardous waste trade. The fourth section of the paper will outline the effort to ban hazardous waste transfers from rich to poor countries. In the fifth section, the question of how a ‘waste’ is defined will be outlined. The sixth section will examine the relationship between the Basel Convention and the multilateral trading system (MTS) and the possible implications of a conflict between the goals of stopping hazardous waste transfers that harm human health and the environment and preserving a market for the international trade of (potentially hazardous) secondary materials. The final section will suggest some ways of making transfers of hazardous waste and international trade ‘mutually supportive’.
The Basel Convention
International awareness of the problems associated with the trade in hazardous wastes increased noticeably during the 1980s due to several factors: the increasing amounts of wastes being generated, closure of old waste disposal facilities and political opposition to the development of new ones, and the dramatically higher costs associated with the disposal of hazardous wastes in industrialized countries and thus the potential for profits to be made by exporting such wastes to countries with low disposal costs (i.e. developing countries).
Exact figures regarding the generation of and trade in hazardous wastes are quite difficult to obtain; however, some generally accepted figures are:
*300-500 million tons of hazardous wastes are generated internationally each year,* the majority of this waste (80-90 percent) is produced by OECD countries, of which roughly 10 percent is shipped across international boundaries,
* the majority of traded hazardous waste (80-90 percent) is traded amongst industrialized countries
nevertheless, approximately 5.2 million tons of hazardous wastes were exported by industrialized states to eastern Europe and developing countries in the period 1986-90, and 2.5 million tons exported from OECD to non-OECD countries between 1989 and March 1994 6
In addition to these general trends regarding hazardous waste management, there were a number of prominent cases of illegal international hazardous waste movements including the voyages of the ‘toxic waste ships’ Khian Sea and Karin B and the dumping of Italian PCBs in a farmer’s backyard in Koko, Nigeria. 7 Combined with the increased concern for environmental issues that characterized public opinion in industrialized countries in the late 1980s, these elements formed the wider international context surrounding the debate over controlling transboundary hazardous waste movements during the late 1980s. The apex of this debate was reached in 1989 with the establishment of the Basel Convention.
The Basel Convention was negotiated under the auspices of the United Nations Environment Programme (UNEP) between 1987 and 1989, and entered into force in 1992. 8 Experts from ninety-six states participated in one or more of the often contentious negotiating sessions, and representatives of over fifty international organizations and NGOs attended as observers. 9 There are now 117 Parties to the Convention (as of February 1998), with the most notable non-Party being the United States. 10
The objectives of the Basel Convention are to minimize the generation of hazardous wastes and to control and reduce their transboundary movements so as to protect human health and the environment. In order to achieve these objectives, the Convention contains several general obligations. For example, waste exports are prohibited to Antarctica (Art. 4.6) and to countries that have banned such imports as a national policy (Art. 4.1); additionally, waste exports to non-Parties are prohibited unless they are subject to an agreement that is as equally stringent as the Basel Convention (Art. 4.5 and 11). Those hazardous waste transfers that are permitted under the Basel regime are subject to the mechanism of prior informed consent (PIC). 11
The evolution of the Basel Convention since its adoption has been described in detail elsewhere. 12 However, the most significant development is the effort to ban hazardous waste exports from rich to poor countries. A 1995 decision by the Conference of Parties of the Basel Convention banned immediately the export of hazardous wastes for final disposal and, as of 1 January 1998, those wastes intended for recovery and recycling. The question of the ban, known as Decision III/1, will be considered in the fourth section of this paper.
The International Trade in Hazardous Wastes
As noted above, accurate data regarding the exact scale and direction of flows of international waste transfers is difficult to quantify. Indeed, this is one flaw of the Basel Convention’s PIC mechanism in that it has not improved our knowledge about the international hazardous waste trade. 13 The key problem is that the definition of ‘hazardous’ can vary from country to country and the definition employed by the non-governmental sector (e.g. Greenpeace) is sometimes different again. Moreover, there are differences in the reporting systems for exports and imports in various countries, and often there is simply a failure or inability to provide data about waste imports and exports, hazardous or otherwise. In sum, then, any data provided about the extent of the international trade in hazardous wastes should be approached with caution.
The limited data that is available suggests that, prior to the coming into force of the Basel Convention, approximately 5.2 million tons of hazardous wastes were exported by industrialized states to eastern Europe and developing countries in the period 1986-90, and 2.5 million tons exported from OECD to non-OECD countries between 1989 and March 1994 (Greenpeace data 14 ). A report from UNEP also suggested that several hundred thousand tons of hazardous waste moved from OECD to non-OECD countries each year until 1994. 15
As the data in Table 1 show, transfers of hazardous waste between OECD countries increased between 1990 and 1991, then began to decrease towards 1994. It has been suggested that the decline in OECD exports, at least for wastes destined for final disposal, appears to be due in part to the increasing stringency of the Basel regime. 16 Recall that the 1994 Second Conference of Parties introduced the OECD to non-OECD ban in wastes for final disposal and, by 1998, for recycling and recovery. However, export regulations within the EU and OECD have also become increasingly strict, so it is difficult to attribute the causes of these trends to the Basel Convention with certainty. 17
Table 1: Export of Hazardous Wastes (Source: Jan Adams, Experience with the Use of Trade Measures in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposals, Paris: OECD, draft mimeo, 1997)
| 1990 | 1991 | 1992 | 1993 | |
| 1,801,108 | 1,941,317 | 1,425,962 | 1,296,470 | Total Hazardous Waste Exports from OECD countries (tonnes) 18 |
| 53.1 | 51.3 | 49.8 | 41.6 | Average share going to final disposal (%) 19 |
| 46.9 | 48.7 | 50.2 | 58.4 | Average share going to Recovery (%) |
What are the causes of the international, and especially North-South, waste trade? Briefly, it is usually suggested that cheaper disposal costs in the South, and the opposition to new hazardous waste disposal facilities in the North to cope with increasing generation, are the main causes. This is illustrated by the fact that in the late 1980s, the average disposal costs for one ton of hazardous waste in Africa was between US $2.50 and $50, while the cost in the OECD ranged from $100 to $2,000. 20 However, there is another reason for international transfers of hazardous waste: their potential value as secondary raw materials to be recovered, re-used and recycled. As Table 1 shows, the percentage of exported OECD waste destined for final disposal has decreased from 53% to 41% from 1990-93, while the share destined for recycling or recovery has increased from 46% to 58% in the same period. It is not surprising, then, that there has been opposition to the attempt to ban OECD to non-OECD hazardous waste transfers for recycling and recovery.
To Ban or Not to Ban
As noted above, the Parties to the Basel Convention decided in 1995 to ban hazardous waste exports for final disposal and recycling from what are known as Annex VII countries (members of the EU, OECD and Liechtenstein) to non-Annex VII countries. 21 The most controversial aspect of this decision, originally known as Decision II/12 and then as Decision III/1 (once the ban was formally adopted as an amendment), is the ban on exports of wastes intended for recovery and recycling. Because of the economic interests of certain industrialized countries and, increasingly, some developing countries as well, in the maintenance of a trade in wastes for recycling, the ban may or may not be endorsed (the amendment must be ratified by two-thirds of the Parties who were present at COP-3 to enter into force). As of February 1998, seven countries (Finland, Norway, Luxembourg, Spain, Denmark, Sweden and the UK) and the European Community have ratified the ban amendment. 22
The debate has centered on the question of which wastes are defined as ‘hazardous’ for the purposes of recycling and recovery. One of the most frequent criticisms of the Basel Convention is that its definition of ‘hazardous waste’ is vague and open-ended. Wastes are designated as ‘hazardous’ if they belong to certain categories (Annex 1) or exhibit certain characteristics (Annex 3). Moreover, any waste defined as hazardous in the national legislation of a Party is automatically considered hazardous in terms of the Convention. Concern that some wastes defined as hazardous in one country but not in another country would be ‘caught’ by the blanket ban was addressed by assigning a Technical Working Group (TWG) the task of drawing up a list of banned (and exempt) wastes for report to COP-4 in February, 1998.
At COP-4, Parties accepted the work of the Working Group that had created three lists: List A (wastes characterized as hazardous and subject to the ban), List B (wastes exempt from the ban) and List C (wastes not yet assigned to Lists A or B). 23 List A includes wastes containing arsenic, lead (such as lead acid batteries), mercury, asbestos, and dozens of other chemicals and substances. List B includes scrap iron, steel or copper, certain electronic assemblies, non-hazardous chemical catalysts, and many ceramics, solid plastics, paper and textile wastes. List C includes materials such as PVC and PVC-coated cables. 24 The Working Group is now tasked with creating a procedure for reviewing or adjusting the Lists for the next COP in 1999. 25
The most recently available data (for 1994) shows that OECD countries were indeed engaged in sending hazardous waste for recycling to non-OECD countries. 26 Some examples:
*In 1994, Indonesia reported receiving notifications for imports from three OECD countries: the Netherlands, Sweden, and France. While Indonesia does allow the import of hazardous waste for recycling, this would be prohibited from industrialized countries if Decision III/1 is ratified.*In 1994, Germany exported 500 tonnes of wastes containing zinc compounds to Poland for recycling. All other reported German waste exports were to other OECD countries.
*In 1994, the UK exported 40 tonnes of lead contaminated hazardous waste to Saudi Arabia for recycling.
Strangely, the UNEP list of non-OECD imports of hazardous wastes for 1994 includes imports from OECD countries that were not listed as exports in those countries submitted data. For example, Brazil imported hazardous waste in 1994 from the Netherlands, Germany, the US, and the UK, but those countries did not report exports to Brazil. 27 More problematic still is that these wastes were not listed as being destined for recyling, so it is unclear if they were sent for final disposal or recycling. 28
A further controversy is over the question of whether or not Article 11 of the Basel Convention (which allows for trade with non-Parties subject to a bilateral or regional agreement that is not less ‘environmentally sound’ than Basel) applies to the ban. The EC and Greenpeace have argued that Article 11 agreements would not be allowed under the ban (that the ban is absolute), whereas the New Zealand and US disagreed. Canada initially supported the US view, then after legal consultations agreed with the EC that Article 11 agreements were not available under the ban. 29 However, in 1994 Germany reported concluding bilateral agreements under Article 11 for export with Kazakstan and Namibia. 30
For proponents of the ban, the Decision was partially inspired by the inability of poorer countries to protect themselves from imported hazardous waste because they lack the infrastructure and resources to properly implement the PIC procedure. Indeed, there have been attempts since the negotiation of the original Convention to institute a ban on North-South hazardous waste movements and Decision III/1 represents only the latest of a number of decisions that have attempted to move the regime from one managed by PIC to one that restricts certain hazardous waste trading absolutely. 31 Moreover, a large number of developing countries have instituted national import bans (over 100) and the number of regional agreements (such as Bamako, Lomé IV, the Central American Agreement on Hazardous Waste, the Waigani Convention and the protocol on waste trading of the Barcelona Convention) that ban hazardous waste imports has also increased since the 1980s, further suggesting that most developing countries want no waste exported to them by industrialized countries.
Critics of the ban, on other hand, argue that the ban reflects political, and not environmental or economic, considerations. 32 When prior informed consent was selected as the regulatory mechanism for the Convention in 1989, advocates argued that the obligations of PIC to document and monitor every hazardous waste movement would provide the necessary transparency for control and intervention in the case of an accident, whereas a ban would simply force such movements into secrecy and illegality. 33 This controversy remains significant in the debate regarding Decision III/1, with differing opinions as to whether the ban will simply increase the numbers of illegal transfers. 34 One observer has suggested that, in general, “countries with more advanced disposal facilities are more likely to import hazardous wastes legally, while those with less advanced facilities [such as developing countries] are more likely to be involved in illegal trade”. 35
The economics of the international toxic waste trade remain an influential factor in the current discussions, much as they were in the original negotiations. For example, the trade in metal scraps and metal-bearing residues, used in some industries as ‘secondary materials’, had an average value of $37.2 billion per year between 1980 and 1993 with the export of metal scrap from the OECD to developing countries totalling $2.9 billion in 1993. 36 Moreover, the flow of metal scrap from OCED to non-OECD countries increased from 5.2% in 1980 to 29% in 1993. 37 However, because trade statistics do not distinguish between hazardous and non-hazardous metal scraps, it is difficult to know how great an increase in hazardous material transfers to non-OECD countries this represents.
If this trade is stopped by Decision III/1, it is argued, then some importing countries may turn to the exploitation of virgin resources in order to gain the materials they need and this would not be in line with the concept of sustainable development. Moreover, critics argue that the ban does nothing to address environmentally damaging trade between non-Annex VII countries (South-South trade), a situation that is again contrary to sustainable development.
Thus, there seem to be two very different interpretations of the intent, and likely result, of the Basel ban. On the one hand, there are those who believe that any waste that is hazardous to human health and the environment should be banned from export from rich to poor countries; on the other hand, there are those who believe that preventing an economic activity that has significant value, even if that value is derived from a hazardous activity (such as recycling hazardous scrap), is wrong. So while the TWG of the Basel Convention has been busy trying to elaborate which hazardous wastes would be covered by the ban and which would be exempt, the more fundamental question is: should the international community be regulating wastes or products and what is the difference?
When is a Waste Not a Waste?
The Basel Convention defines a waste as follows: ‘wastes’ are 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. 38 The Convention then goes on to define ‘disposal’ as any “operations which do not lead to the possibility of resource recovery, recycling, reclamation, direct re-use or alternative use” (i.e. final disposal); disposal also means any “operations which may lead to resource recovery, recycling, reclamation, direct re-use or alternative uses” (i.e. to dispose of something, in Basel terms, is also to recycle it). 39 Here lies the heart of the problem: the Basel Convention defines hazardous materials that are intended for disposal and recycling as ‘wastes’ and hence subject to the regulations of the Convention. Industry, on the other hand, defines materials, hazardous or not, that are intended for recycling as ‘products’ or secondary raw materials, that should not be subject to waste regulations.
To add to the confusion, the Basel Convention also states that “Parties shall take the appropriate measures to ensure that the transboundary movement of hazardous wastes…only be allowed if…the wastes in question are required as a raw material for recycling or recovery industries in the State of import”. 40 However, this raises the question of who (importing state or exporting state) determines if the wastes are ‘required’ as raw material and whether or not the determination of a waste as ‘required’ as a raw material is consistent with the Convention’s requirements of ‘environmentally sound’ management, the definition of which is again vague. Environmental NGOs (ENGO) such as Greenpeace argue that sending hazardous wastes to be used for recycling or recovery is never environmentally sound because it still results in some amounts of hazardous material needing to be disposed of; moreover, legitimizing the North-South trade in hazardous wastes for recycling will likely result in both ‘dirty’ and ‘sham’ recycling. 41
Waste is, of course, easier to recognize than to define. Brian Wynne has noted that concepts of “hazard and waste…are not just imprecise or statistically fuzzy – they are fundamentally ambiguous. Their intrinsic physical meaning is not given and objectively predetermined in nature; it is always incomplete, and has to be completed in social construction”. 42 It would seem that the Basel Convention was originally designed to circumvent the problem of creating different rules for hazardous materials going to final disposal (i.e. materials generally considered as waste) and those going for recycling purposes (i.e. materials perhaps considered as waste by one group, but seen as reusable by another) by defining wastes as all those materials going for disposal and recycling. However, by using such a blanket definition, the emphasis of the Convention then became defining what is ‘hazardous’ rather than what is a ‘waste’. The Basel Convention did not define a ‘hazardous waste’ as such, only listing hazardous waste streams and hazardous constituents. However, definitions of ‘hazardous’ are not universal either. While the Technical Working Group has made progress with defining two lists of hazardous wastes subject to the ban and hazardous wastes exempt from the ban, the underlying issue remains whether or not a hazardous recyclable material should be treated as a waste, and if not, what regulations should govern the trade in hazardous recyclable hazardous material.
The case for and against recycling hazardous wastes is as follows:
On the one hand, by achieving re-use of potentially valuable substances that would otherwise be discarded, recycling can slow down the depletion of limited natural resources and reduce the quantity and hazard potential of wastes going to final disposal. Provided the country of destination has more environmentally sound facilities and higher environmental standards than the country of origin, export of hazardous wastes for recycling can ultimately lead to an overall reduction of air and water pollution. From an economic viewpoint, recycling of certain wastes leads to the recovery of valuable raw materials. In this case, there usually is an established market for the wastes in question, and the relevant trade has substantive economic significance. On the other hand, recycling must take place under conditions meeting certain environmental criteria if it is to have the environmental and economic benefits mentioned, and not provide a source of environmental hazard equal to that of disposal operations. This is often impossible in practice, especially in countries with little technical and infrastructural capacities. The factors that influence the international market for recyclable wastes do not necessarily correspond to the requirements of environmentally sound waste management. Subjecting the export of hazardous wastes for recycling to less strict rules than the export for disposal might provide a disincentive to the promotion of waste reduction in the country of origin. It could also encourage fake recycling schemes, i.e. the use of the label of recycling for disposal operations that would otherwise be prohibited. 43
Rulings of other bodies on the subject of ‘waste’ also warrant attention here. In 1992, the Belgian region of Wallonia placed import restrictions on wastes coming from other member states of the European Community. The European Commission brought this case to the European Court of Justice (ECJ), arguing that such restrictions were in breach EC law preventing quantitative restrictions on imports of goods. The ECJ agreed that wastes were in fact goods and therefore the Wallonian policy was in breach of EC law. However, the Court went on to uphold the policy on the grounds that these ‘goods’ constituted an environmental threat to the region and that such ‘goods’ should be disposed of as close as possible to their place of production (the proximity principle). Yet the Advocate General of the EC commented afterwards that the ECJ ruling was inappropriate because wastes are goods as long as they can be priced (even if that is a negative value - the owner will pay to get rid of them). 44 This case clearly shows the difficulty of deciding whether to subject materials considered wastes to environmental policy or whether those same materials should be considered goods and therefore be subject to trade disciplines.
The trend has not been to reclassify wastes with value (essentially wastes that can be recycled in some way) as ‘goods’ and thus allow them to circulate as freely as any other traded product, but to subject those wastes to slightly different regulations than those wastes that have no value (those intended for final disposal). In this way, both valueless wastes and wastes with value remain subject to environmental, rather than trade, disciplines. The EU and OECD treat wastes with value differently (red, amber, green scheme) from those wastes that would simply be sent for final disposal. 45
The ban amendment of the Basel Convention, however, treats disposal and recycling equally. This has led to the current situation where industry has been trying to undermine the environmental regulations for wastes with value in the Basel Convention (the ban). Given the choice between subjecting wastes with value to environmental regulations like the Basel Convention (by defining them as wastes) and re-classifying potentially hazardous wastes as ‘goods’ and allowing them to be governed by trade disciplines, it would seem that if there is a question of ‘hazard’ involved (that is, hazard to human health and the environment by the manner in which the wastes are recycled or reused), then they should remain classified as wastes. As Kummer notes: “Hazardous wastes are basically unwanted by-products of industrial activity; any economic value is incidental. It is their significance as a source of serious pollution and a danger to human health and the environment that calls for the adoption of relevant measures, rather than their significance as a tradeable commodity”. 46
The danger in this approach, as we are seeing with the Basel Convention, is that those actors with interests in reclassifying wastes as goods will try and undermine those environmental regulations that they perceive as too strict. The most extreme scenario would be for the ban to be challenged in the WTO. An industrialized country hostile to the ban on recyclable waste to developing (non-Annex VII) countries could argue that their WTO rights have been impaired in that their ability to send goods or products (hazardous wastes being used as secondary raw materials) has been over-ridden; conversely, an advanced developing country may argue that their access to secondary raw materials from industrialized countries has been taken away, thus negating their WTO rights (the WTO is discussed below, section 6).
The Basel Convention has attempted to deal with this problem by more clearly defining which wastes are subject to strict controls and which wastes are not (Lists A and B). It remains unclear, however, whether this approach will alleviate concerns that Basel could be challenged under the WTO because it is banning ‘products’ and not simply wastes. After all, it has been remarked that Basel “fails to address in a satisfactory manner” the special situation of wastes with value – wastes going for recycling and recovery – and the use of ‘lists’ may or may not prove successful in clarifying the situation. 47
A more proactive response to the situation would be for the Conference of Parties of the Basel Convention to re-visit questions regarding the fundamental scope of the Convention and more clearly designate what is ‘waste’. Otherwise, efforts to further define and improve the Convention may be overtaken by outside events and international efforts may be undermined by national and regional rulings. The European recycling industry, for example, is attempting to have wastes redefined in the context of the EU so as to allow exports of scrap metal that might otherwise be banned due to EU implementation of Basel regulations. However, the European Court of Justice ruled June 1997 that substances sold or sent for recycling or reuse still fall within the EC waste control legislation. 48 Discussions are also continuing within the context of the OECD Waste Management Policy Group as regards definitions of ‘waste’ and ‘product’.
The British Metal Federation, supported financially by the Bureau for International Recycling (BIR), is mounting a legal challenge to the inclusion of secondary metals in the UK government definition of waste. Industry has argued that such legal challenges “must be emulated in as many European countries as possible” and that “Europe-wide litigation at a sensible price” is the best way to advance industry interests in having certain materials currently considered wastes re-classified as products. 49 In the United States, a non-Party to Basel, the EPA ruled in 1997 that ‘excluded scrap metal’ would be no longer be considered ‘waste’; this reclassification has been welcomed as a ‘major victory’ by the Institute for Scrap Recycling Industries, an industry association. 50 Different definitions in the US have already caused international incidents. In August 1997, for example, a US company was found to be exporting lead acid batteries to a recycling plant in Brazil where lead contamination levels were found to be up to five times higher than is safe by EPA rules. 51 While Brazil had banned imports of scrap batteries since 1994, by US law such batteries are considered hazardous only if they are crushed and therefore were exported legally under US law. 52
What is clear from the preceding discussion is that the ban, and more significantly, the definitions of ‘waste’ and ‘product’, are not universally agreed. In addition to the attempt to re-define ‘wastes’ as ‘products’ in various pieces of legislation, the Basel ban may also be under threat from a challenge in the WTO.
Basel, the Ban and the WTO: a difficult reconciliation?
The Basel Convention, and more particularly the export ban on wastes for recycling, runs a high risk of being challenged in the WTO. This situation reflects the most serious case to date of a conflict between the international ‘trade’ and ‘environment’ regimes. While a detailed analysis of the WTO-compatibility of the Basel Convention is beyond the scope of this paper, it is clear from recent events that the possibility that Basel will be challenged in the WTO is extremely high. 53
The potential conflict between the Basel Convention and the WTO generally rests on two unresolved issues: the ‘openness’ of Annex VII and the availability of Article 11 agreements. As noted above, the ban on exports of hazardous waste is between those countries listed in Annex VII and those countries not listed in Annex VII. Annex VII currently consists of countries of the OECD, EU and Liechtenstein. At COP-4, however, Israel, Slovenia and Monaco all applied to join Annex VII; these applications were rejected by the COP. 54 The rationale given by supporters of a ‘closed’ Annex VII is that there are no clear criteria for how a country may accede to Annex VII and that a ‘loose’ Annex VII would undermine the clear need to ban hazardous waste exports from rich countries to the rest of the world as reflected by Decision II/12 (the 1994 decision banning OECD to non-OECD exports). 55
Supporters of a more ‘open’ Annex VII argue that a closed Annex would be contrary to the principle of environmentally sound management of hazardous wastes if countries with appropriate recycling facilities are denied access to the international trade in recyclable hazardous wastes. 56 More significantly, some supporters of an open Annex VII note that a ‘closed’ Annex VII could raise WTO problems as a trade barrier based on the arbitrary distinction of membership in an economic organization (as the current Annex VII is essentially OECD countries). 57 The question of the status of Annex VII in fact became the most serious debate at COP-4. The final decision, adopted by a fragile consensus, was that no change will be made to Annex VII until Decision III/1 enters into force. 58 However, some delegations indicated that a WTO challenge could be the result of a ‘closed’ Annex VII and that Israel would particularly be in a position to bring a challenge. 59
A related question to the WTO-compatibility of Decision III/1 is the availability of Article 11 agreements (bilateral or regional trade agreements) under the ban. If Annex VII is ‘closed’, then Article 11 agreements could provide a way in which countries wishing to engage in trade could do so. However, if Annex VII is closed and Article 11 agreements are not available (that is, the ban is ‘absolute’), then the chance of a WTO challenge by those still opposed to Decision III/1 increases as the ban would appear to discriminate against those countries not members of the OECD. 60 As noted above (p.10), however, there is no consensus among Basel Parties that Article 11 agreements are or are not available under Decision III/1.
Thus, it is clear that there are multiple opportunities for the Basel Convention and Decision III/1 to be challenged at the WTO. This is undesirable for several reasons. First, a challenge brought to the WTO because of the trade implications of an MEA would set an undesirable precedent. That is, while other MEAs such as the Montreal Protocol and CITES also restrict trade for environmental purposes, there has yet to be a challenge to the legitimacy of their trade measures in the GATT/WTO. Moreover, emerging regimes regarding climate change and hazardous chemicals regulation are also likely to have trade implications. While it is generally thought that a challenge to the trade measures in existing MEAs has not taken place because those measures have wide support in the international community, once a challenge would be brought to the WTO, the undesirable precedent of submitting policy decisions taken in MEAs to a trade dispute panel would be set. 61
Second, the threat and actual use of a challenge against a certain policy of an MEA sends a message to the negotiators of other MEAs that they should not use WTO-incompatible measures in their pursuit of environmental goals. 62 However, as the case of the Montreal Protocol demonstrates, the use of potentially WTO-incompatible trade measures can be an important part of the overall package of policies designed to solve an international environmental problem. 63 A challenge to the Basel ban in the WTO would strongly signal to negotiators that future MEAs best avoid policies that might conflict in any way with rules of the multilateral trading system. In reality, however, it is unlikely that MEA negotiators could perpetually design MEAs that had no trade implications whatsoever.
The third reason a WTO challenge to the Basel ban is undesirable is because it would create more conflict between trade and environment spheres at the international level. This is inconsistent with the stated objective of making trade and environment ‘mutually supportive’. If questions about the appropriateness of the ban need to be addressed, the WTO is not the place where this should happen.
Some suggestions for how to make hazardous waste transfers and international trade ‘mutually supportive’
*It is sometimes suggested that the ‘trade and environment’ debate is slowly converging around areas of agreement, such as the need to avoid unilateral trade restrictions and the removal of environmentally unfriendly subsidies (on agriculture, for example). However, the evolution of the Basel Convention should serve as a warning to note that even in the realm of restricting trade for seemingly internationally agreed environmental purposes, there remain major divisions regarding the extent to which trade should be restricted. Trade and environment have yet to become truly ‘mutually supportive’.*There are, however, two ways in which concerns about the Basel ban could be addressed as the Convention continues to evolve. First, critics of Decision III/1 argue that to treat developing countries differently (as non-Annex VII countries) is discriminatory; however, the practice of placing developing countries in a separate category with different commitments is becoming common practice in MEAs. The Montreal Protocol gave a 10-year grace period to developing countries (designated as Article 5 countries) and the UN Framework Convention on Climate Change similarly exempts developing countries from commitments. While the nature of the environmental issue is different for climate change and hazardous waste transfers, the logic that developing countries should be treated differently because of lesser ability to manage and devote resources to environmental problems that often require costly solutions is the same in both cases. The Basel Convention would benefit from an increased focus on improving the ability of developing countries to manage their own wastes rather than arguing about the ‘fairness’ of Annex VII. 64
*A second way in which the concerns regarding restricting trade ‘recyclable hazardous wastes’ could be dealt with is that Basel could reconsider its focus on ‘wastes’. That is, the Convention could more clearly define ‘waste’ and decide if different regulations should apply to potentially hazardous material that can be recycled. Perhaps a more comprehensive approach would be for the international community – whether in the forum of the Basel Convention or elsewhere – to consider harmonization of regulations pertaining to the international trade in hazardous materials, whether defined as waste or not.
At the moment, the approach to management of hazardous materials is fractured: there is the Basel Convention, the soon-to-be completed legal instrument for controlling trade in hazardous chemicals, the regulations governing the transport of dangerous goods and negotiations that will soon begin on regulating persistent organic pollutants (POPs). In such a situation, and as we are seeing in the Basel Convention, the need for protecting the environment and human health from the effects of hazardous materials may be side-tracked by debates over whether such materials should be governed by trade policy (‘products’) or environmental policy (‘waste’). Since the more fundamental question is not whether something is a waste but if it poses a risk to human health and the environment, then the debate could be re-oriented to questions of how to regulate the trade of hazardous materials. Thus, in the case of recyclable hazardous ‘wastes’ the need to monitor the potential danger of how this material is recycled if it is traded would take precedent over trying to decide if the material is a waste or not.
Perhaps once developing countries have had a political ‘victory’ in the Basel Convention with the entry into force of Decision III/1 (that is, finally instituting the ‘rich to poor’ ban that they had been trying to achieve from the outset), the Convention can evolve to consider questions related to the need to regulate hazardous recyclable materials that are not always perceived as waste. 65 Some developing countries have already indicated that they require imports of some materials that are ‘hazardous’ to some degree for their development (such as zinc ash in India). Since a change to cleaner production cannot take place overnight, regulating their use as hazardous materials rather than banning them as wastes would be a less controversial international policy approach that is more supportive of sustainable development.
Notes:
Note 1: I would like to thank the ISA, the LSE International Relations Department and the Postgraduate Travel Fund of the LSE for supporting my attendance at this conference. Back.
Note 2: The now infamous ‘tuna-dolphin’ dispute is often cited as putting ‘trade and environment’ on the international environmental politics agenda. See generally, Daniel Esty, Greening the GATT: Trade, Environment and the Future (Washington DC: Institute for International Economics, 1994) and more recently, Jonathan Krueger, “Trade and Environment: From Rio to UNGASS (via Singapore),” Environmental Politics, vol. 7, no. 1 (Spring 1998). There is now a postscript to tuna-dolphin: twelve countries, including the US and Mexico, have recently signed a regional conservation agreement (the La Jolla Agreement), with the core objective of “progressively reducing [and] eliminating dolphin mortality” in the Easter Pacific Ocean fishery. See “Twelve Nations Conclude Historic Eastern Pacific Ocean Tuna-Dolphin Agreement,” Greenpeace Press Release (9 February 1998). Back.
Note 3: See, for example, the Report (1996) of the WTO Committee on Trade and Environment, WTO/CTE/1 (12 November 1996); and Michael Reiterer, “Trade and Environment: Reflections on the Impact of the OECD Joint Session of Trade and Environment Experts on the Report of the WTO CTE and the Future Role of the Joint Session,” Conference Paper presented at International Business and the New Rules of Trade (London: Royal Institute of International Affairs, 18 November 1996). Back.
Note 4: See, for example, Duncan Brack, “The Potential Use of Trade Measures in the Climate Change Regime,” Conference Paper presented at Implementation of Multilateral Agreements – Ways and Means, The Hague (15-16 September 1997). Back.
Note 5: Laura A. Strohm, “The Environmental Politics of the International Waste Trade,” Journal of Environment and Development, Vol. 2, No. 2, Summer 1993. Back.
Note 6: Katharina Kummer, International Management of Hazardous Wastes: The Basel Convention and Related Legal Rules, Oxford: Clarendon Press, 1995, pp. 5-7; UNEP, Environmental Data Report 1993-94, London: Blackwell, 1994; and OECD, Transfrontier Movements of Hazardous Wastes:1992-93 Statistics, Paris: OECD, 1997; and Jim Vallette and Heather Spalding, eds., The International Trade in Wastes: A Greenpeace Inventory, 5th ed., Washington DC: Greenpeace USA, 1990. For a more sceptical argument that hazardous waste trading is neither as ‘big’ nor as dangerous as is often claimed, see Mark A. Montgomery, “Reassessing the Waste Trade Crisis: What Do We Really Know?” Journal of Environment and Development, Vol. 4, No. 1, Winter 1995. Back.
Note 7: For a good popular account of the developments during this period, see Bill Moyers, Global Dumping Ground: The International Traffic in Hazardous Waste, Cambridge: The Lutterworth Press, 1991. There is a postscript to the Khian Sea case: after dumping some 4,000 tons of toxic incinerator ash from Philadelphia on a beach in Haiti ten years ago, there are now plans to return the remaining ash to the US and clean up the dumpsite in Haiti; see “New York Tries to Clean Up Ash Heap in the Caribbean,” The New York Times, 14 January 1998, p.5. Back.
Note 8: See Iwona Rummel-Bulska, “The Basel Convention: A Global Approach for the Management of Hazardous Wastes,” Environmental Policy and Law, Vol. 24, No. 1, 1994, pp. 13-18; and Willy Kempel, “Transboundary Movements of Hazardous Wastes,” in, International Environmental Negotiation, Gunnar Sjöstedt, ed. Newbury Park: SAGE Publications, 1993, pp. 48-62. Back.
Note 10: UNEP/Secretariat of the Basel Convention Press Release, 23 February 1998. Back.
Note 11: On the notification and consent aspect of Basel, see Jonathan Krueger, “Prior Informed Consent and the Basel Convention: The Hazards of What Isn’t Know,” Journal of Environment and Development, vol. 7 (forthcoming 1998). Back.
Note 12: See especially Strohm; Roberto Sá nchez, “International Trade in Hazardous Wastes: A Global Problem with Uneven Consequences for the Third World,” Journal of Environment and Development, Vol. 3, No. 1, Winter 1994; and Armin Rosencranz and Christopher L. Eldridge, “Hazardous Wastes: Basel After Rio,” Environmental Policy and Law, Vol. 22, No. 5/6, 1992. Back.
Note 13: Krueger, “Prior Informed Consent and the Basel Convention: The Hazards of What Isn’t Know.” Back.
Note 14: Vallette and Spalding, eds., The International Trade in Wastes: A Greenpeace Inventory. Back.
Note 15: Katharina Kummer, Transboundary Movements of Hazardous Wastes at the Interface of Environment and Trade, UNEP: Environment and Trade Series #7 (1994), p. 7. Back.
Note 16: Nick Johnstone, “The Economic and Environmental Effects of the Basel Convention,” Draft Report for UNEP Environment and Trade Unit (16 January 1998), p. 11. Back.
Note 17: Recall also that while US data may appear in OECD waste export data, the US is not Party to the Basel Convention. Back.
Note 18: Figures for Australia, Canada, Finland, France, Netherlands, New Zealand, Norway, Portugal, Switzerland, the UK and the US are based on actual shipments of hazardous wastes whereas Austrian and German figures are based on notifications only. Most Swedish figures are based on notifications and Danish figures for wastes destined for recovery are based on actual shipments whereas those destined for final disposal are based on notifications. See OECD, Transfrontier Movements of Hazardous Wastes: 1992-93 Statistics (Paris: OECD, 1997), p. 8. Back.
Note 19: Averages based only on data from those countries where separate figures for recovery and final disposal are available. Back.
Note 21: The original decision referred to an OECD to non-OECD ban. Some countries vigorously opposed this as being an arbitrary distinction based on a country’s membership in an economic organization; moreover, it was argued that those non-OECD countries with environmentally sound and economically viable recycling operations would be penalized by such a distinction. The new Annex VII/non-Annex VII distinction, originally proposed by Australia, means that a non-Annex VII country wanting to receive hazardous wastes for recycling from an Annex VII country (which, at the moment, is essentially OECD countries, with the exception of Liechtenstein) could do so by joining Annex VII. While this is intended to facilitate the trade in recyclable wastes within the context of the Basel Convention (and joining Annex VII would presumably be easier than joining the OECD), it remains unclear as to how a country would change status and whether such a procedure could undermine the goals of the Convention to minimize transboundary movements of waste. See below, section 6. Back.
Note 22: UNEP/Secretariat of the Basel Convention Press Release, 23 February 1998. Back.
Note 23: See UNEP/CHW.4/L.2/Add.2 (26 February 1998). Back.
Note 24: See UNEP/CHW.4/3 (7 April 1997). Back.
Note 25: The listing of some wastes on List A (such as lead acid batteries), however, is not without controversy and some segments of industry remain opposed to the idea of lists all together; interviews with government and industry delegates at COP-4. Back.
Note 26: It is worth recalling that because industry doesn’t consider metal scrap as a waste but as a product, they are unlikely to elaborate the ‘hazardousness’ of the scrap, and so the scale of exports may well be greater than is known. This situation is compounded by the fact that the Basel Convention has not clearly delineated at what point a scrap material becomes sufficiently contaminated to become a ‘hazardous waste’. Supporters of the Basel Convention would argue that a broad definition is required because one aim of the Convention is to reduce the amount of hazardous material that is produced. Back. Back.
Note 27: The reported waste was contaminated with copper and lead compounds. The UN classifies lead compounds (UN Code H11) as being ‘substances or wastes which, if they are inhaled or ingested or if they penetrate the skin, may involve delayed or chronic effects, including carcinogenicity’. The US is not a Party to the Basel Convention and Brazil does not have a bilateral agreement (Article 11) with them, so the import of wastes from the US contravenes the Basel Convention. Back.
Note 28: All of the above data taken from Secretariat of the Basel Convention, Reporting and Transmission of Information Under the Basel Convention: Compilation, 1994 Information (received December 1995-February 1997), Geneva: SBC Document 97/014. Brazil’s hazardous waste imports from OECD countries in 1994 totalled 107,060 tonnes. Back.
Note 29: See “Basel parties make progress on hazardous waste lists,” ENDS Report, no. 255 (April 1996), p. 47. The availability of Article 11 agreements is also a central issue in the ‘WTO-compatibility’ of the ban; see below, section 6. Back.
Note 30: Secretariat of the Basel Convention, Reporting and Transmission of Information Under the Basel Convention: Compilation, 1994 Information, p. 123. Back.
Note 31: Decision I/22, requesting that industrialized countries ‘refrain’ from exporting wastes to developing countries, was taken in December 1992. Decision II/12, prohibiting waste transfers from OECD to non-OECD for disposal and recycling (by 31 December 1997), was taken in March 1994. Decision III/1, formally adopting Decision II/12 as an amendment to the Convention (but using the Annex VII/non-Annex VII distinction), was taken in September 1995. Back.
Note 32: Industry in general is extremely hostile to the ban for recycling, and characterizes it as being economically inefficient, patronizing to developing countries, and contrary to the principle of free trade; see John C. Bullock, “The Basel Convention and Trade,” Paper prepared for the Global Environment and Trade Study, 19 January 1996. Both Canada and Australia stated at the close of COP-3 that their support for Decision III/1 would be contingent on the results of the Technical Working Group. Some developing countries, specifically India and Brazil, are also voicing concerns about the economic costs of the ban; ENDS Report, No. 255, April 1996, pp. 46-7. Eileen Claussen, Assistant Secretary for oceans and international environmental and scientific affairs of the US State Department, has referred to the ban as “one of the dumbest provisions we had ever seen”; see “Claussen: Art of Treaty Negotiation,” Chemical and Engineering News, 2 June 1997, p. 25. Back.
Note 33: Kummer, TransboundaryMovements of Hazardous Wastes at the Interface of Environment and Trade, pp. 58-59. Back.
Note 34: The UNEP report on the matter reflects this debate: “...paradoxically, while Decision II/12 significantly restricts legal traffic and thereby should help simplify verification of compliance by enhancing overall transparency regarding global transboundary movements, it is also likely to create additional incentives to engage in illegal movements of hazardous wastes.” (UNEP/CHW.3/Inf.5, para. 5). It might be added that ‘illegal’ shipments under a ban would likely remain as unquantified as they are under PIC. However, the argument made by supporters of the ban is that by closing the recycling ‘loophole’, incentives are created to reduce hazardous waste generation, which in turn also reduces the need to export wastes. In this way, the ban may provide more incentive to achieve another of the Convention’s objectives: to minimize the generation of hazardous waste. Critics, on the other hand, argue that the ban as it is currently conceived will only distort the economics of waste recycling and not lead to less hazardous waste being generated; see Anthony Cox and Terry Sheales, “Basel Convention: economic issues in the ban on shipments of hazardous waste,” Australian Commodities, vol. 3, no. 3 (September 1996), pp. 384-97. Back.
Note 35: Kate O’Neill, “Regulations as Arbiters of Risk: Great Britain, Germany, and the Hazardous Waste Trade in Western Europe,” International Studies Quarterly, vol. 41, no. 4 (December 1997), p. 697. Back.
Note 36: Harvey Alter, “Industrial Recycling and the Basel Convention,” Resources, Conservation and Recycling, No. 19 (1997), pp. 29-53; Maria Isolda P. Guevara and Michael Hart, Trade Policy Implications of the Basel Convention Export Ban on Recylables from Developed to Developing Countries, report for The International Council on Metals and the Environment, May 1996, p. 2. Back.
Note 37: Anthony Cox and Terry Sheales, “Basel Convention: Economic Issues in the Ban on Shipments of Hazardous Waste,” Australian Commodites, vol. 3, no. 3 (September 1996), p. 389. Back.
Note 38: Basel Convention, Article 2(1). Back.
Note 39: Basel Convention, Article 2(4) and Annex IV. Back.
Note 40: Basel Convention, Article 4(9). Back.
Note 41: Dirty recycling is a recycling or recovery operation of materials from hazardous wastes that is done in such a manner to be hazardous to the environment or the health of the people involved in the recycling operation (for example, extracting lead from scrap metal waste without appropriate protection); Greenpeace has documented several instances of ‘dirty recycling’ in their Waste Trade Case Studies series. Sham recycling is listing a shipment of hazardous waste for recycling or reuse when, whether known or not, it will only result in final disposal. The 4,000 tons of hazardous waste dumped in Nigeria in the now infamous Koko case were under the guise of ‘substances relating to the building trade’; see Vallette and Spalding, eds., The International Trade in Wastes: A Greenpeace Inventory. Back.
Note 42: Brian Wynne, Risk Management and Hazardous Waste: Implications and the Dialectics of Credibility, quoted in Harvey Alter, “Industrial Recycling and the Basel Convention,” Resources, Conservation and Recycling, vol. 19 (1997): 29-53. Back.
Note 43: Kummer, International Management of Hazardous Wastes, p. 10. Back.
Note 44: See Elli Louka, Overcoming National Barriers to International Waste Trade, Dordrecht: Graham and Trotman, 1994, p. 177. EC hazardous waste legislation was subsequently modified, and substantially strengthened, in 1993 by Council Regulation 259/93. Back.
Note 45: For a comprehensive discussion about the EU and OECD regulations, see Kummer, esp. Chapter 4. The OECD regulations were designed to allow trade in hazardous recyclables within the OECD. Greenpeace, however, would argue that schemes treating wastes for recycling and disposal differently will only increase sham and dirty recycling. Back.
Note 48: See “European Court decision on meaning of ‘waste’”, ENDS Report, no. 270 (July 1997), p. 43. Back.
Note 49: See “Fast-track legal action to establish that secondary metals are not wastes,” BIR Press Release, 13 June 1997. Back.
Note 50: See “United States excludes secondary metals products from its waste classification,’ BIR Press Release, 2 May 1997. Back.
Note 51: Jane Bussey, “Toxic waste trade growing with few controls,” Miami Herald, 26 October 1997, p. F1. Back.
Note 52: Greenpeace has argued that this transfer contravened the Basel Convention because Brazil (a Basel Party) does not have an Article 11 agreement with the US (a non-Party). See “US Exports of Lead Acid Batteries Poisoning Brazil,” Greenpeace Press Release, 4 August 1997. Back.
Note 53: Most analysts accept that if ‘recyclable wastes’ are perceived as ‘products’, then the ban is clearly in conflict with WTO prohibitions on quantitative restrictions. Whether Article XX would exempt the ban due to a need to protect ‘human, animal or plant life and health’ – after meeting the criteria of ‘necessity’ in the chapeau of Article XX – remains unknown; whether a WTO panel would rule against an MEA, or an amendment to an MEA, with all the political implications that would entail, is also debatable. See James Crawford and Philippe Sands, Article 11 Agreements Under the Basel Convention (Ottawa: The International Council on Metals and the Environment, 1997); David Wirth, “International Trade in Wastes: Trade Implications of the Recent Amendment to the Basel Convention Banning North-South Trade in Hazardous Wastes,” Paper presented to Trade and Environment: Challenges for 1996 (19 January 1996); and Kummer, Transboundary Movements of Hazardous Wastes at the Interface of Environment and Trade, esp. Chapter 4. Back.
Note 54: However, the bids by Israel and Monaco to join Annex VII were supported by the US, Canada, Australia and new Zealand. According to Greenpeace, Slovenia’s bid was supported by Germany and Austria. See “Global waste trade ban prospects boosted,” ENDS Environment Daily, 27 February 1998. Back.
Note 55: Greenpeace argues that opening Annex VII to other countries would create a ‘domino’ effect whereby other countries, pressured by industrial interests, would also seek Annex VII status; see Greenpeace, Implementing the Basel Ban: Moving Towards Clean Production, presented at COP-4. The counter-argument is that, ideally, all countries should eventually be part of Annex VII because they would then have the waste management capability of the OECD and EU (interviews, COP-4). However, the number of ‘superfund’ sites awaiting clean-up in the US brings the notion that OECD countries have good hazardous waste management strategies into doubt. Back.
Note 56: See ‘Canadian Non-Paper on the Rationale for Accession To and Deletion From Annex VII,’ presented at COP-4 (UNEP/CHW.4/CRP.2). Back.
Note 57: Statement of Australian delegation to COP-4, 26 February 1998; interviews. Notably, there was no WTO observer at COP-4. Back.
Note 58: After the decision on Annex VII was taken, several delegations, including New Zealand and Australia, declared that they questioned the legal basis of that decision. Back.
Note 59: Interviews, COP-4. Moreover, until such time as Decision III/1 enters into force (and can therefore be seen as being supported by most of the international community), those countries who have already implemented Decision III/1 could be seen to have taken a unilateral measure which could be challenged at the WTO. The International Chamber of Commerce (ICC) has noted that “the EU has unilaterally taken a major step by banning shipments prior to ratification of the pending ban amendment (Decision III/1). The legality of this action under WTO rules must be questioned”; see ICC, “Basel Convention: environmental protection, recycling and development,” ICC Document 210/555 (31 October 1997). Industry in general would be very supportive of a WTO challenge to Decision III/1 due, among other things, to competitiveness concerns. The President of the Bureau for International Recycling (BIR) has expressed concern about the EU implementation of Decision III/1 because “world-leading United States scrap exporters were at an advantage because their government did not sign the Convention and it had ruled that materials ready for melting were not defined as waste” (Vera Eckert, “EU Waste Ban Ahead of Global Action to Hurt Metals,” Reuter News Service, 20 October 1997). Back.
Note 60: In general there appears to have been little effort to minimize the likelihood of conflict between the Basel Convention and the WTO (particularly if Article 11 agreements are not permitted for the ban). The Montreal Protocol, for example, included Article 4(8) which suspended the Protocol’s trade restrictions for those non-Parties deemed in compliance with its provisions in order to help ensure conformity with the GATT; see Jonathan Krueger, “Trade Restrictions and the Montreal Protocol,” in Diana Tussie, ed., Environmental Issues in North-South Trade Negotiations (Macmillan Press, forthcoming 1998). The current PIC negotiations for trade in hazardous chemicals have witnessed a more forthright approach to making that convention WTO-compatible. During the last negotiating session in October 1997, a proposal was presented to the Technical Working Group for a clause that would read: “The Parties shall ensure that measures taken to regulate the chemicals under this Convention do not create unnecessary obstacles that would constitute a means of arbitrary or unjustifiable discrimination or disguised restriction on international trade in accordance with WTO rules” (draft on file with the author). The specific reference to the WTO was opposed on the grounds that it would grant primacy to trade rules over environmental regulations and it remains bracketed in the current negotiating text. Back.
Note 61: Even if the challenge was overturned (i.e. the WTO panel ruled against a plaintiff who challenged the Basel ban as discriminatory), the precedent would be set and it would be easier for MEA policies to be brought to the WTO in the future. Back.
Note 62: Greenpeace has referred to this as the ‘chill factor’; see Greenpeace, “Threatening Basel with WTO: Don’t Give in to the Chill Factor,” Presented to COP-4, February 1998. Back.
Note 63: See Duncan Brack, International Trade and the Montreal Protocol (London: Royal Institute of International Affairs, 1996). In 1996, however, the then Director of the WTO Trade and Environment Division publicly questioned the necessity and efficacy of the trade restrictions of the Protocol (UK House of Commons Environment Committee hearings, 14 February 1996). Back.
Note 64: Providing more resources for assisting developing countries in MEAs is a common dilemma. While the Montreal Protocol created the Multilateral Fund in order to assist developing countries, the Basel Convention has been discussing the creation of an Emergency Fund as well as a Protocol for Liability and Compensation, but has provided little in the way of money. In such a situation, developing countries may well prefer a ban if few resources are forthcoming to assist them in improving their waste management infrastructure. Back.
Note 65: After all, the ban does not cover South-South trade, which could certainly be as ‘hazardous’ as North-South trade. Back.
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