Introduction

The Basel Convention calls for international co-operation between parties in the environmentally sound management of hazardous wastes and the improvement of national capabilities to manage hazardous wastes in an environmentally sound manner. One of the most important decisions of the Basel Convention is the one establishing the immediate prohibition of export of all transboundary transfers of hazardous wastes which are destined for final disposal from OECD to non-OECD States. Further, the transboundary transfer of hazardous wastes for recycling or recovery operations from OECD to non-OECD states to be phased out by 31 December, 1997. However, notwithstanding the general obligations (ref. Article 4, paragraph 5), parties may enter into bilateral, multilateral or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with parties provided that such agreements or arrangements do not derogate from environmentally sound management of hazardous wastes and other wastes as required by the Basel Convention.

The present paper is an attempt to illustrate implications of the Basel decisions in the Indian context and to evoke discussion on the stepwise approach that could be considered for follow-up of the issues. A need for formulating comprehensive proposals for way forward need no emphasis.

Given these apparent inconsistencies, would anything in GATT Article XX (the general exceptions clause) provide justification for WTO members that are Parties to the ban amendment to discriminate against those WTO members that are non-Parties? Apparently not.

First of all, the export ban would be applied in a manner that arbitrarily or unjustifiably discriminates between countries where the same conditions prevail. Some non-Annex VII States are economically advanced and share similar conditions with a majority of Annex VII States, yet they would be discriminated against because they are not in Annex VII. Conversely, there are Annex VII States that do not necessarily share the same conditions as the rest of the group, but would be able to continue receiving waste recyclable because they are listed in Annex VII.

Also, the export ban does not appear to constitute a necessary measure for the protection of health and the environment. Parties do not appear to have explored alternatives that are less trade-restrictive yet able to achieve the Convention's environmental objectives. If the argument for the export ban is that capacity for environmentally sound management in developing countries is absent or weak, should the ban not also apply to trade between these countries? This is not the case, as the Convention does not prevent trade in recyclable wastes among non-Annex VII countries.

Finally, the Basel ban does not appear to be primarily aimed at conserving exhaustible natural resources. If recycling activity slackens or ceases because of the export ban, domestic wastes that would otherwise have been recycled may end up in final disposal because recycling them may no longer be profitable with environmentally sound management practices in the organized sector. Further, the consumption of virgin material and energy may increase due to shortage of secondary materials for recycling. This will also affect the competitive ability and pricing of the products.

This issue was discussed at Pretoria in November 1998 during the Joint Meeting of Technical Working Group with Consultative Sub-group of Legal and Technical Experts of the Basel Convention. Views expressed by the delegates as minuted in the report of the meeting are reproduced below:

Several delegates expressed the opinion that they would need more time to be able to consider the documentation related to this agenda item including further consultations in their countries. It was therefore agreed that the countries interested could send their comments and opinions on this issue to the Secretariat no later than 31 December 1998 which would be subject to further discussions at the next meeting of the Group.

There was a general agreement that the Bilateral, Multilateral or Regional Agreements or Arrangements cannot be seen and used to circumvent the provisions of the Basel Convention.

Many delegations stressed the relationship between Bilateral, Multilateral or Regional Agreements or Arrangements and Decision III/1 and underlined that Article 11 does not allow the conclusion of agreements or arrangements as an exception to the export ban laid down in Article 4A. Some other delegates, however, reserved their right to interpret the implementation of Article 11 in relation with Decision III/1 in accordance with the general rules of international law and emphasized that as long as the Amendment is not in force, the conditions of Decision III/1 do not constitute provisions of the Basel Convention.

One delegate stated that his country is still addressing the issue of the relationship between Article 11 agreements and Decision III/1. At this stage of the review, it believes that a country should be able to enter into bilateral agreements with any country that demonstrates its ability to manage hazardous wastes in an environmentally sound manner.

Some delegates were of the opinion that the Bilateral Agreements or Arrangements should be limited in time, and be subjected to prior notification to the Secretariat. One delegation expressed the view that these agreements or arrangements can only refer to certain specific hazardous wastes and another one emphasized that these agreements or arrangements should always be done with full knowledge and approval of the Focal Point of the Basel Convention to avoid situations in which another Ministry than the Focal Points makes the arrangements which then risks not to follow exactly the required provisions.

Many delegates made concrete proposals for the draft Guidance Elements for Bilateral, Multilateral or Regional Agreements or Arrangements and the Chairman decided to convene an Open-ended informal Group under the chairmanship of the United Kingdom to revise the text of Guidelines which was presented to the Conference of the Parties. (The outcome of the work of the Open-ended informal group under the chairmanship of the United Kingdom was reported to the meeting and is available with the Report as its Annex-2.)

At the time of the adoption of the draft guidance elements for bilateral, multilateral or regional agreements or arrangements, the following experts made statements and requested for their inclusion into the report:

Australia stated that it is unable to accept the amended point (c)(iii) of the draft guidance elements for bilateral, multilateral or “Decision III/1”. This conflicts with Australia’s view that Decision III/1 in no way impairs a Party’s right to enter into bilateral agreements or arrangements under Article 11 of the Convention. Australia’s view on this issue, which was recorded in a statement made at the time of adoption of Decision III/1 was that Parties have the right to interpret the Convention for themselves in accordance with international law and that this principle should be maintained with regard to Article 11 agreements and arrangements and their relation to Decision III/1.

South Africa stated that it was discussed in the Africa Group meeting that the issues listed in (c) (i) and (ii) are general in so far as they do not detail the obligations of Parties. Furthermore, many of the points listed in (d) are not optional considerations, but are in fact obligatory in the Convention. A clear distinction must be made between obligatory considerations in the Convention and additional factors for consideration in the conclusion of agreements. It would be useful to list in detail the obligations referred to in (c) (i) and (ii) and factors to be considered by Parties in order to give effect to such obligations.

New Zealand said it would have preferred to leave out amended point (c) (iii) of the draft guidance elements as it seemed to imply a restrictive interpretation of the relationship between Decision III/1 and Article 11 which is not agreed by all Parties at this time. It also considered that the contents of point (c) (iii) were already covered in the more general statement contained in paragraph (c)(i).

Denmark stated that it follows that there cannot be agreement or arrangement which constitute an exception to the export ban laid down in Article 4A. The United States stated that while the U.S. has always supported the principle that States should be encouraged to ratify the Basel Convention, the last sentence of paragraph (a) and the last phrase of paragraph (d) from the words: “conditions to the renewal …. (through) … ratification of the Basel Convention” of the draft guidance elements for bilateral, multilateral or regional agreements or arrangements are inappropriate. There are many reasons why nations enter into bilateral and multilateral agreements, and it is not the role of other States to sit in judgement of a State’s motivation for exercising its ordinary powers to conclude international agreements. The United States therefore requests that these new provisions be removed from the draft text.