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Wag the Dog: Towards a Harmonization of the International Hazardous Waste Transfer Regime

  • Karen Dawson (a1)

Abstract

This article considers the problems associated with the international regime addressing the transfrontier movement of hazardous waste. Significant gaps exist within the current regime, it is argued, because historically, policy-making has been predominated by the concerns of developed nations, to the detriment of the developing countries most likely to be the recipients of the waste. To better understand why and how this is the case, the regime is examined through the lens of Critical Race Theory (CRT), a theory advocating, among other things, the need to recognize the context in which the problem is set, outside of the confines of a legal structure defined and changed only incrementally by the enfranchised. The paper begins with an overview of why the problem is of concern, as well as sets out the tenets of CRT to be used as tools of analysis throughout the paper. The paper then highlights the international, regional and bilateral measures that exist, attempting to identify some of the gaps in the regime via application of the tenets of CRT. The final section of the paper offers three suggestions as topics to consider in future negotiations: a call for an ameliorated Prior Informed Consent regime, the establishment of an international fund mechanism and potential options for remedial tribunals.

Cet article étudie les problèmes liés au régime international encadrant le mouvement transfrontière de déchets dangereux. Il est souligné que d'importantes brèches existent dans ce régime car, historiquement, les intérêts des pays industrialisés ont prédominé les politiques au détriment des pays en développement qui sont le plus souvent destinataires des déchets. Afin de mieux comprendre pourquoi, ce régime est examiné sous l'angle de la théorie critique sur les races (Critical Race Theory – CRT), une théorie qui défend notamment la nécessité de tenir compte du contexte dans lequel le problème se situe, au-delà du cadre du juridique qui n'est guère défini et modifié par les affranchis. Une première partie du texte expose l'importance du problème ainsi que les principes de CRT qui serviront comme outils d'analyse. La deuxième partie aborde les mesures internationales, régionales et bilatérales et vise à identifier certaines brèches du régime dans la perspective de CRT. Enfin, trois sujets sont suggérés à considérer lors de futures négociations: l'amélioration du régime de consentement informé préalable; l'établissement d'un mécanisme pour créer un fonds international; et des instances judiciaires envisageables pour régler les litiges.

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1 F. Markius, “Toxic Waste in Taiwan” (4 March 1999), online: BBC News Online: http://news.bbc.co.uk/hi/english/world/from_our_own_correspondent/newsid_2 (date accessed: 14 October 2001).

2 Lohnes, J., “Hazardous Materials and Energy: Taiwanese Company Dumps 3000 Tons of Toxic Waste in Cambodia” (1999) 1999 Colo. J. Int'l Envtl. L.Y.B. 262 , online: LEXIS (Secondary Materials) at 3. A Cambodian court heard the criminal trials that proceeded the incident. While charges were laid against government officials involved with the shipment, none of their Taiwanese counterparts were ever sanctioned, Ibid. at 4.

3 Wastes can take many forms, from antiquated computer parts to used batteries, industrial incinerator ash, to materials contaminated with heavy metals. The primary source of hazardous waste in industrialized countries is industry and mining, although hospitals, transport services and small-scale companies also contribute to the accumulation. See J. Krueger, “What's to Become of Trade in Hazardous Wastes?” (1999) online: Findarticles.com http://www.findarticles.com/cf_/m1076/9_41/57476117/print.html (date accessed: 28 October 2001).

4 This principle is codified in Article 4(9)(a) of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal [Basel Convention or Basel] 22 March 1989, 28 I.L.M 657, 1673 U.N.T.S. 57, online: Secretariat of the Convention http://www.basel.int/text/con-e.pdf (date accessed: 25 September 2001).

5 Kiss, A., “The International Control of Transboundary Movement of Hazardous Waste” (1991) 26 Texas Int'l L.J. 521 at 522.

6 Ibid.

7 Krueger, supra note 3 at 3, cited from Repetto, R., “Trade and Sustainable Development”, UNEP Environment and Trade Series No. 1 (Geneva, 1994). The OECD's permanent membership consists predominantly of developed nations. For a list of member countries, visit the OECD website at www.oecd.org.

8 By way of example, the US, the world's largest producer of waste, generates over 250 million tons of refuse annually. Under domestic law, 40.7 million tons are characterized as “hazardous”. Federal government reports indicate that only one-tenth of one percent of hazardous waste is actually exported, the equivalent of 150,000 tons in 1990. Yet, a 1994 industry report disclosed that, in actuality, the US exported approximately 3,000,000 tons of hazardous waste in that year. The discrepancies, it is suggested, are reflective of a large quantity of undetected or unreported waste, as well as the US government's use of a narrower definition of what is “hazardous” than that used in the Basel Convention or in other parts of the world. See Choksi, S., “The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal; 1999 Protocol on Liability and Compensation” (2001) 28 Ecology L.Q. 509 at 513.

9 Krueger, supra note 3 at 3.

10 Ibid. Cited from United Nations Environment Programme and Secretariat of the Basel Convention, The Basel Convention: A Global Solution for Controlling Hazardous Wastes (New York and Geneva: United Nations, 1997).

11 Kitts, Jennifer reports in “Waste Exports to the Developing World: A Global Response” (1995) 7 Geo. Int'l Envtl. L. Rev. 485 at 488 that what would cost US generators $2000 per ton to incinerate at home costs approximately $40 per ton to dump in a landfill site in a developing country.

12 Kummer, K., International Management of Hazardous Wastes (Oxford: Clarendon Press, 1995) at 7. Note as well that it may be the case that a multinational enterprise (MNE) has a foreign subsidiary specializing in the elimination of certain wastes, necessitating the movement of wastes across borders. Kiss, supra note 5 at 529.

13 This phrase, ubiquitous to the literature on this subject, is attributed to then US Congressman Florio, a remark he made to the press in 1983 when discussing American industry motivations for the transborder movement of hazardous waste. See Porterfield, S. and Weir, D., “The Export of US Toxic Waste” (1989) Nation 245 at 344.

14 Kiss, supra note 5 at 529. Statistics show that some 4600 American facilities to treat, store or dispose of hazardous wastes closed in the 1980s, the result of increased regulations. Murphy, S., “Prospective Liability Regimes for the Transboundary Movement of Hazardous Wastes” (1994) 88 A.J.I.L. 24 at 31.

15 Lipman, Z., “Transboundary Movement of Hazardous Waste: Environmental Justice Issues for Developing Countries” (1999) 10 Acta Jur. 266 at 267. The Koko incident dates back to the late 1980s. The sanction for importing hazardous waste into Nigeria is now death; the same kind of punishment is allocated for such activity in neighbouring Cameroon.

16 The dumping of 15,000 tons of industrial incinerator ash on the Guinean island of Kassa in 1988 was allegedly approved by the Guinea-Bissau government, an incident better known as the Khian Sea disaster. Park, R.S., “An Examination of International Environmental Racism Through the Lens of Transboundary Movement of Hazardous Wastes” (1998) 5 Ind. J. Global Leg. Stud. 659 at 670.

17 Gudofsky, J.L., “Transboundary Shipment of Hazardous Wastes for Recycling and Recovery Operations” (1998) 34 Stan. J. Int'l L. 219 at 220.

18 Kummer, supra note 12 at 9.

19 Ibid. at 9.

20 Kummer explains: “The factors that influence the international market for recyclable wastes do not necessarily correspond to the requirements of environmentally sound waste management.” Ibid. at 10.

21 Lipman, supra note 15 at 268–269.

22 See for example: Westra, L. & Wenz, P.S., Faces of Environmental Racism (London: Rowman & Littlefield, 1995); Gover, K., Walker, J.L., “Escaping Environmental Paternalism: One Tribe's Approach to Developing a Commercial Waste Disposal Project in Indian Country” (1992) 63 U. Col. L.R. 933 ; Torres, G., “Race, Class, and Environmental Regulation” (1992) 63 U. Col. L.R. 839 ; Yamamoto, E. & Lyman, J., “Racializing Environmental Justice” (2001) 72 U. Colo. L. Ree. 311 ; Park, supra note 16; and Lipman, supra note 15.

23 Yamamoto, supra note 22 at 315. Traditionally, environmental hazards have tended to exist in non-white, lower income areas, whose residents, in most cases, wield little societal influence. P. Mahai and B. Bryant are two of the first authors to illustrate this point. Data collected from a study of the Detroit metropolitan area proved that racial minority groups are four times more likely to live in proximity to commercial hazardous waste facilities. Benjamin Chavis, the director of that study, coined the term “environmental racism”. Further studies have shown that damages awarded as a result of litigious problems tend to be lower in these communities, and that, government clean-up is often slower and less comprehensive. In “Environmental Injustice: Weighing Race and Class as Factors in the Distribution of Environmental Hazards” (1992) 63 U. Colo. L. Rev. 921.

24 Yamamoto, supra note 22 at 314. Note that it is not necessarily the case that locating a hazardous waste facility, for example, within a community's jurisdiction will prove environmentally problematic. K. Gover and J. Walker, both lawyers in Albuquerque, New Mexico, argue in “Escaping Environmental Paternalism,” supra note 22 at 933, that in some cases waste disposal facilities are not unwanted additions to a community. Rather it is unauthorized and illegal dumping that signals a problem. To paint all such activity with the same brush is tantamount to reverse racism, they argue, where zeal to protect the environment may ignore the rights of a well-informed community capable of making an educated decision about the matter, and determining their own future.

25 Environmental injustice or racism is also known as environmental paternalism. Moreover, it is commonly referred to as “toxic terrorism” by representatives of developing nations. See Choksi, supra note 8 at 515 citing from Doyle, W., “United States Implementation of the Basel Convention” (1995) 9 Temp. Int'l & Comp. L.J. 141 at 142.

26 It should be noted, however, that some suggest the goals of environmentalists and civil rights activists are so diametrically opposed that effective solutions are unlikely to emerge from a collaborative effort. Eugene Hargrove argues in the foreword to Faces of Environmental Fascism, supra note 22 at ix, that “[e]nvironmentalists are not especially interested in talking about human rights, preferring to speak about rights for nature instead (…) Advocates of the civil rights movement, on the other hand, though they have spent a great deal of time defending a host of human rights, have seldom focused on the right to a safe and healthy environment and have seen little need to work with environmentalists, whom they frequently consider to be part of the system to which they are opposed.”

27 Yamamoto, supra note 22 at 314.

28 See as an example Vasquez, X.C., “The North American Free Trade Agreement and Environmental Racism” (1993) 34 Harv. Int'l L.J. 357.

29 The crux of the ideological divide between environmental justice and CRT stems from the former theory's foundational reliance on liberal ideology. Liberals, believing individuals should be free to pursue their own happiness, without harming others, rely on government intervention to correct the harm. Liberalism is, at its essence, a belief in government with the consent of the governed, principles embodied in constitutions that are incrementally changed, based, again, on the consent of the empowered. So while environmental justice sheds light on how racial communities acquire differential status and power, and how these differences affect connections to the environment, it fails to address the more foundational dilemma that underscores the problem being discussed in this paper: if law is essentially politics, as CRT proponents insist, and politics is at its basis a reflection of what groups in power espouse, a reality in which all of us are in some way acquiescent, then the liberal legal system will continue to reflect and perpetuate racial subordination. CRT provides for an awareness of each racial group's different needs based on political power, cultural values and group ideals, as is explained in later sections of this paper. See Pyle, J.J., “Race, Equality and the Rule of Law: Critical Race Theory's Attack on the Promises of Liberalism40 B.C.L. Rev 787. See also Romero, V.C., “Symposium on Confronting Realities: The Legal, Moral, and Constitutional Issues Involving Diversity: Panel II: Immigration Policy: Critical Race Theory in Three Acts: Racial Profiling, Affirmative Action, and the Diversity Visa Lottery” (2003) 66 Alb. L. Rev. 375.

30 Delgado, R. & Stefanie, Jean, eds., Critical Race Theory. The Cutting Edge (Philadelphia: Temple University Press, 2000) at xvi–xvii.

31 Ibid. at xvii.

32 Ibid. at xviii.

33 Aylward, C., Canadian Critical Race Theory: Racism and the Law (Halifax: Fernwood, 1999) at 3435, 38.

34 Ibid. at 39. CRT proponents argue that improvement to the legal system will occur only after the insidiousness of the racist system as it currently stands is illuminated through an open and honest examination of the social and historical tendency for racism to inform the law. See Sandy, K.R., “The Discrimination Inherent in America's Drug War: Hidden Racism Revealed by Examining the Hysteria over Crack” (2003) 54 Ala. L. Rev. 665 at 675.

35 In so doing, CRT attempts to combat racism while simultaneously considering other forms of oppression, like sexism and classism. Romero, supra note 29 at 385.

36 Okafor, O.C., “Re-Conceiving “Third World” Legitimate Governance Struggles in Our Time” (2000) 6 Buff. Hum. Rts. L.Rev. 1 at 7.

37 Ibid.

38 Ibid. at 8.

39 Ibid. at 7. Okafor uses this term to refer to institutions and states that dominate the international policy-making and policy-implementation process. Ibid. at n. 10.

40 Richardson, B.J., “Environmental Law in Postcolonial Societies11 Colo. J. Int'l Envtl. L. & Pol'y 1 at 89.

41 See Shrader-Frechette, K., Risk and Rationality (Berkeley: University of California Press, 1991) at 147–66.

42 Ibid. as cited in Westra, supra note 22 at xx–xxi.

43 Karin Mickelson defines the voice of the “third world” as “a distinctive voice, or, more accurately, a chorus of voices that blend, though not always harmoniously, in attempting to make heard a common set of concerns”, in “Rhetoric and Rage: Third World Voices in International Legal Discourse” (1998) 16 Wis. Int'l L.J. 353 at 360.

44 Interestingly, these arguments are analogous to those put forward by critics of the “Learned Hand” analysis traditionally applied in tort law. As elucidated by Posner, Richard in “A Theory of Negligence”, (1972) 1 J. Leg. Stud. 29 at 32, Judge Learned Hand's famous formulation of the negligence standard in United States v. Carroll Towing Co, [1947] 159 F 2d 169 (2d Cir.) is said to be premised on a cost-benefit analysis. Posner argues that damages are accessed by measuring the costs of the potential accident; if the cost of safety measures exceeds the benefit in accident avoidance to be gained by incurring that cost, the enterprise would be better off, in economic terms, to forgo the precautionary measures. It is more beneficial, on the other hand, to incur costs when the benefit of accident avoidance is greater than the cost of accident prevention; it remains in the actor's best interest to adopt precautions allowing them to circumvent the high costs resulting from a negative tort judgment. In the field of critical legal studies, this formula and Posner's extrapolation from it are considered problematic because they encourage the maximization of wealth and the minimization of costs through cost-justified accident prevention, thereby discouraging an excessive investment in safety. The formula is inherently flawed then, since economic efficiency arguments ignore the existence of crucial considerations, including the characteristics of the parties. To that end, Leslie Bender, a leading feminist scholar on this issue, rejects an algebraic reliance on assessing behaviour impossible to quantify. She advocates dividing the notion of responsibility in tort law into two categories: pre-event (prevention) and post-event (response based). To responsibly exercise power, the potential risk creator should chose to prevent harm, to eliminate risks and to stress health, safety and human dignity in every situation. The end goal is to encourage people to act more responsibly by choosing activities that reflect consideration about their outcomes. See Bender, L., “Feminist (Re) Torts: Thoughts on the Liability Crisis, Mass Torts, Power and Responsibilities” (1990) Duke L.J. 848 at 897–908.

45 (U.S. v. Can.), 3 R. Int'l Arb. Awards 1911 (1938), later to be re-articulated in the Corfu Channel case, (U.K. v. Albania), [1949] I.C.J. Rep. 4.

46 Corfu Channel Case, [1949] I.C.J. Rep. 422 cited in Glazewski, J.I., “Regulating Transboundary Movement of Hazardous Waste: International Developments and Implications for South Africa” (1993) 26 CILSA 234 at 238.

47 Ibid. The good neighbourliness maxim, or sic utere tuo, ut alienum non laedas, is an international environmental law principle prescribing that states have a general duty to consult with and protect the interests of other nations whose resources may be adversely affected by their actions.

48 Nanda, V.P., Bailey, B.C., “Export of Hazardous Waste Technology: Challenge for International Environmental Law” (1988) 17 Den. J. Int'l L. & Pol'y 155 at 180.

49 Park, supra note 16 at 681, citing from Kiss, A. and Shelton, D., International Environmental Law (Ardsley: Transnational Publishers, 1991) at 119.

50 Kummer, supra note 12 at 20. See pages 32–34 for a discussion of why this principle does not solve the problems associated with the transboundary movement of hazardous waste.

51 Park, supra note 16 at 680.

52 See Nanda, supra note 48 at 180.

53 Ibid.

54 Ibid.

55 Kummer, supra note 12 at 20.

56 Kummer argues that while the rules of international customary law provide foundational guidance for further regulation of the issue, they “do not set sufficiently precise standards of behaviour to ensure effective pollution control.” Ibid. at 25.

57 OECD, Decision and Recommendation of the Council on the Transfrontier Movements of Hazardous Waste, OECD Doc. C(83) 180 (Final), February 1, 1984, reprinted in 23 U.M. 214 (1984).

58 From Nanda, supra note 48 at 182, cited from O.E.C.D. Doc C. (83), Principle 5.2.

59 Kiss, supra note 5 at 531.

60 Ibid.

61 OECD, Council Decision on Exports of Hazardous Wastes from the OECD Area, OECD Doc. C (86) 64 (Final), June 5, 1986, reprinted in 25 I.L.M. 1010 (1986).

62 Vu, H.Q., “The Law of Treaties and the Export of Hazardous Waste” (1994) 12 UCLA J. Envtl. L. & Pol'y 389 at 403.

63 Ibid. at 405.

64 Ibid. at 404. As Vu points out, imposing stricter controls would not only reduce these shipments, but also disrupt the industrial activity that produces them. Ibid.

65 Ibid. at 405.

66 In 1982, the Italian government ordered a Swiss Company to remove forty-one barrels of dioxin waste from the country. After a series of subcontracting transactions from a West German to a French company, the waste “disappeared”. Each government involved in the fiasco conducted their own search for the waste. The barrels were found many months later in a French slaughterhouse. See Scovazzi, T., “Industrial Accidents and the Veil of Transnational Corporations” in Francioni, F. & Scovazzi, T., International Responsibility for Environmental Harm, (London: Graham & Trotman, 1991) for a comprehensive assessment of the disaster. The EC directive was established seven months after the waste was found.

67 Directive on the Supervision and Control Within the European Community of the Transfrontier Shipment of Hazardous Waste, [1984] O.J.C.E. L326 at 31, amended by Directive amending Directive 84/631/EEC on the Supervision and Control Within the European Community of the Transfrontier Shipment of Hazardous Waste, [1986] O.J.C.E. 1/181 at 13.

68 Ibid. Art. 1.

69 Sperling, L., Feldman, I., “The Transboundary Movement of Hazardous Waste: Implementation and Enforcement of Control Regimes in the European Community” (1992) 22 Env. L. Rep. 10701 at 10704.

70 Supra note 67, art. 1.

71 Ibid. art. 13 and 14.

72 Sperling, supra note 69 at 10705

73 The Karin B, a German ship loaded with 2,100 tons of Italian hazardous waste, sailed to Nigeria to dump its cargo. Nigeria turned the ship away. Ibid.

74 Ibid.

75 The US, for example, is party to three bilateral agreements relating to cross-border waste transfers: Agreement of Cooperation Between the United States of America and the United Mexican States Regarding the Transboundary Shipments of Hazardous Wastes and Hazardous Substances, January 27, 1987, U.S.-Mex., T.I.A.S. No. 11.269; Agreement Between the Government of Canada and the Government of the United States of America Concerning the Transboundary Movement of Hazardous Waste, October 28, 1986, U.S.–Can., T.I.A.S. No. 11,099; and Agreement Concerning the Transboundary Movement of Hazardous Wastes from Malaysia to the United States, March 10, 1995, U.S. Malay., Int'l Env't Rep. Reference (BNA) 31: 0301 (July 1996). The two former agreements contain what, according to the OECD and EC initiatives, are standard, normative requirements, namely provisions for information and authorization. As is also the case with OECD and EC regulations, consent may be implied by silence. The U.S-Malaysia agreement applies only to exports of hazardous waste from Malaysia to the U.S. Interestingly, for the purposes of this agreement, both notification by competent Malaysian authorities (Art. 4(1)) and consent by the U.S (Art. 4(4)) must be in writing. No provision for implied consent exists. See O'Reilly, J., Cuzze, L.B., “Environmental Law and Business in the 21st Century: Trash or Treasure” (1997) 22 Iowa J. Corp. L. 507 at 521–24.

76 Choksi, supra note 8 at 516.

77 The Cairo Guidelines were a set of proposals adopting the sic utere tuo principle that encouraged countries to regulate their own hazardous waste trade. Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes, Apr. 2, 1987, Annex 11, U.N. Doc. EP/GC. 14/17. Cited from Choksi, supra note 8 at 516.

78 Ibid.

79 Basel Convention, online: Secretariat of the Convention http://www.basel.int/ratif/ratifhtml#conratif (date accessed: 14 January 2004). The United States, Haiti and Afghanistan are currently the three signatories yet to ratify the Convention.

80 Basel Convention, supra note 4, Art. 4, General Obligations.

81 See Basel Convention, online: Secretariat of the Convention http://www.basel.int/about.html (date accessed: 14 January 2004).

82 Article 1 defines the scope of the Convention. Article 2 provides the definition of waste as “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.”

83 Annex I and Annex II list the hazardous wastes covered by the treaty, categorizing the refuse into “wastes to be controlled”, such as clinical wastes from hospitals and wastes from the production of pharmaceutical products, and “wastes requiring special consideration” such as wastes collected from households and residues arising from the incineration of household wastes. Since the definitions of “waste” and “hazardous” are thought by many to lack a common basis, these provisions have been highly criticized. See Jaffe, D., “The International Effort to Control the Transboundary Movement of Hazardous Waste: The Basel and Bamako Conventions ” (1995) 2 ILSA J. Int'l & Comp L. 123 at 134–35 and Gudofsky, supra note 17 at 229–36.

84 Basel Convention, supra note 4, art. 1(2).

85 Ibid. art. 4(1).

86 Ibid. art. 4(2)(a)(b)(d).

87 Ibid. art. (2)(e)(g).

88 Ibid. art. 4(3). 89

89 Ibid. art. 4(9).

90 Aricle 6 requires that the importing state notify the authorities of all possible states involved in a potential transfer of their willingness to consent to, restrict or deny the shipment. The exporting state is obliged to disallow the generator or exporter to commence the transboundary movement until written consent has been received.

91 Ibid. art. 8.

92 Ibid. art. 9. Pursuant to subsection 5, Parties to the Basel Convention must introduce national or domestic legislation to prevent and punish illegal traffic.

93 Art. 4(5) provides “A Party shall not permit hazardous wastes or other wastes to be exported to a non-Party or to be imported from a non-Party.”

94 Shearer, Cr. H., “Comparative Analysis of the Basel and Bamako Conventions on Hazardous Waste” (1993) 23 Envtl. L. 141 at 173.

95 Choksi, supra note 8 at 519. Note that subsequent to the Basel Convention, the OECD and EU adopted further measures to deal with the transborder waste trade problem. OECD Council Decision C(92)(39) Concerning the Transfrontier Movements of Wastes Destined for Recovery Operations instituted a three tier colour-coded classification system for wastes shipped for recycling among its members. Wastes not characterized as hazardous pursuant to Basel Convention definitions are “green”, and therefore treated as normal goods. The balance of wastes are either “amber” or “red”. To trade in wastes under these categories, the exporter is required to procure prior consent within thirty days. Consent for wastes in the amber category may be tacit. Not surprisingly, constituent substances within the “green” category have raised objections. It seems therefore that “while the Basel Convention may have been intended to be a minimum standard, it has been taken, at least by OECD countries, as the maximum standard as well.” Vu, supra note 62 at 426. Also subsequent to Basel, the EU and sixty-three African, Caribbean and Pacific States (ACP) adopted the Lome IV Convention, a comprehensive trade agreement coming into force in 1991. Art. 39 of the agreement deals specifically with the transboundary movement of hazardous and radioactive waste, prohibiting all direct or indirect exports of such waste from EU states to ACP states. Likewise, ACP states are to prohibit the direct or indirect imports of hazardous and radioactive waste from the EU or any other country. Lome IV is, however, not self-executing; the technical details found in the Basel Convention regarding monitoring and information are absent from what is fundamentally a trade agreement. Its effectiveness depends therefore on the implementation of requisite provisions by the EC and member states. Furthermore, protection is circumscribed; it does not extend to potential waste shipments that use ACP countries as transit stopovers, nor do the provisions protect non-party states. See Vu, supra note 62 at 425–26, and Schneider, W., “The Basel Convention on Hazardous Waste Exports: Paradigm of Efficacy or Exercise in Futility?” (1996) 20 Suffolk Transnat'l L. Rev. 247 at 264–65.

96 Lack of a compliance mechanism represented perhaps the most significant deficiency of the Basel Convention's framework. While Article 20 provided for dispute settlement and arbitration procedures after diplomatic negotiations broke down, the process remained non-compulsory and lacked an executive body to enforce decisions. See Schneider, Ibid. at 272–54, Jaffe, supra note 83 at 135–36 and Choksi, supra note 8 at 519.

97 “Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal,” online: Secretariat of the Convention, Basel Convention-VNEP http://www.basel.int/Protocol/Protodes.html (date accessed: 14 January 2004) [Protocol].

98 UNEP Press Release on Basel Convention of Hazardous Wastes (14. December 1999), online: http://www.usinfo.state.giv/topical/global/environ/latest/99121491.htm (date accessed: 1 November 2001).

99 The fourteen countries are: Chile, Colombia, Costa Rica, Denmark, Ethiopia, Finland, France, Hungary, Luxembourg, Monaco, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, and the United Kingdom of Great Britain and Northern Ireland. See supra note 79.

100 The “notifying entity” is the nation, waste generating company, or shipping company that notifies the importing nation of their intention to export wastes, pursuant to art. 6 of the Basel Convention.

101 The “disposer” is the entity that actually carries out the disposal of the wastes when the substances or objects reach their final destination.

102 Protocol, supra note 97, art. 4(1).

103 Ibid.

104 Ibid. art. 4(3) and (4).

105 Ibid. art.5.

106 Ibid. art. 14.

107 Ibid.

108 Ibid. art. 17.

109 Ibid. art. 19.

110 Ibid. art. 21.

111 This quote is attributed to Kevin Stairs of Greenpeace. See “Toxic Waste Treaty Declares Next Decade: No Time For Waste” (1999) Online: Basel Action Network http://www.ban.org/ban_news/no_time_for_ wastes.html (date accessed: 10 June 2004).

112 See Long, J.A., “Hazardous Materials and Energy: Protocol on Liability and Compensation for Damage Resulting from the Transboundary Movement of Hazardous Wastes and Their Disposal” (1999) 1999 Colo. J. Int'l Envtl. L.Y.B. 253 at 3–4, Lohnes, supra note 2 at 7–8, and Choski, supra note 8 at 524–526.

113 For a list of the 51 member countries comprising the OAU, see the OAU website at http://www.state.giv/www/regions/africa/fs oau 971204.htm.

114 29 January 1991, 30 I.L.M. 773 [Bamako Convention or Bamako].

115 Ibid. art. 4.1.

116 Ibid. Art. 11.1.

117 Jaffe, supra 83 at 131.

118 Bamako Convention, supra note 114, art. 4.3(b).

119 Jaffe, supra note 83 at 133.

120 Lipman, supra note 15 at 286. It should be noted however, that Bamako does not provide for a liability regime any different than that found in the Basel Convention (pre-Protocol). Article 20 of the Bamako Convention reads exactly the same as article 20 in the Basel Convention, meaning that pending the breakdown of diplomatic negotiations of the countries involved, claims may be submitted to the International Court of Justice (ICJ) or to arbitration. The settlement of disputes in this manner presupposes that the parties involved have consented to ICJ jurisdiction, or to arbitration.

121 For a list of the twenty-four countries involved, see the Basel Convention Homepage, online: Waigani Convention http://www.unep.ch/basel/Misclinks/waigani.html (date accessed: 9 November 2001).

122 Lawrence, P., “Regional Strategies for the Implementation of Environmental Conventions: Lessons from the South Pacific?” (1994) 15 Aust. Y.B. Int'l L. 203 at 216.

123 Ibid. The Convention Area includes the territory, territorial sea, continental shelf and the Exclusive Economic Zone of the Forum member parties.

124 Waigani Convention, online: Yearbook of International Cooperation on Environment and Development http://www.greenyearbook.org/agree/haz-sub/waigani.htm (date accessed: 14 January 2004).

125 The categorization of approaches in this section as generally those of developed or developing countries is not meant to signal that the voices of each “group” are monolithic; the possibility of overlap amongst the decisions of different countries, regardless of their development standing, does, of course, exist. It is obviously the case that both industrialized nations and countries of the “South” sanction the principles of the Basel Convention and the Lome IV agreement, as well as parts of the OECD and EU initiatives. From an epistemological perspective however, the superficial separation created by the headings of this section are meant only to illustrate the shortcomings of these measures; viewed through the lens of CRT, their problems, it is contended, are rooted in their allowance of a hazardous waste trade not sufficiently vetted by those who face the greatest risk from its continued activity, i.e. developing nations.

126 Lipman, supra note 15 at 272. Lipman points to the Basel Convention's principle obligations, as enumerated supra. Others point to Article 11 as a means of allowing developing nations to form other arrangements relating to the issue. See note 94. The problem with these arguments is that they fail to consider, among other things, the unequal bargaining position developed nations have over cash-strapped countries, as the Cambodian incident referenced at the beginning of this paper highlights.

127 Although never enforced, a $600 million contract to dispose of toxic waste was offered to the government of Guinea-Bissau in 1988, a figure four times its gross national product. Lipman, supra note 15 at 267.

128 As in the case of Thor Chemicals in South Africa.

129 As in the Koko incident.

130 As in the Bamako Convention's liability provisions.

131 Means of sanction more efficient than the court hearing in Cambodia after the Formosa affair are required.

132 See Vu, supra note 62 at 422.

133 Decision 11/12 1994, cited from Lipman, supra note 15 at 276.

134 The Conference of the Party members inserted a new article 4A into the Convention, as well as a new Annex IVA to achieve the ban. Article 4A provides: 1. Each Party listed in Annex VII shall prohibit all transboundary movements of hazardous wastes which are destined for operations according to Annex IVA, to States not listed in Annex VII. 2. Each Party listed in Annex VII shall phase out by 31 December 1997, and prohibit as of that date, all transboundary movements of hazardous wastes under Article l(i)(a) of the Basel Convention which are destined for operations according to Annex B to States not listed in Annex VII. Such transboundary movement shall not be prohibited unless the wastes in question are characterized as hazardous under the Basel Convention. States listed in the proposed Annex VII are “Parties and other States which are members of the OECD, the European Community and Liechtenstein.” From Z. Lipman, “Trade in Hazardous Waste” (1998) online: http://www.arbld.unimelb.edu.au/envjust/papers/allpapers/lipman/home.html (date accessed: 28 October 2001).

135 The forty countries include: Belgium, France, Ethiopia, Gambia, Tunisia, United Republic of Tanzania, Brunei Darussalam, China, Malaysia, Quatar, Sri Lanka, Andorra, Austria, Cyprus, Denmark, Germany, Finland, Luxembourg, Liechtenstein, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, United Kingdom of Great Britain and Northern Ireland, Poland, Romania, Yugoslavia, Estonia, Slovakia, Bulgaria, Czech Republic, Ecuador, Panama, Paraguay, Saint Lucia, Turkey, Trinidad & Tobago and Uruguay. “Status of Ratification of the Basel Protocol”, online: http://www.unep.chibasel/ratif.html (date accessed: 14 January 2004).

136 The Bamako Convention required only ten signatures for ratification. See Bamako Convention, online: Yearbook of International Cooperation on Environment and Development http://www.greenyearbook.org/agree/haz-sub/bamako.htm (date accessed: 14 January 2004).

137 Krueger, supra note 3 at 5.

138 Kummer, supra note 12 at 81.

139 Schneider, supra note 95 at 283. See also supra note 24.

140 Kwiatkowska, B. & Soons, A., “Transboundary Movement of Hazardous Wastes and their Disposal: Emerging Global and Regional Regulation” (1993) 5 Hague Y.B. Int'l L. 68 at 76, both professors of international law at the University of Utrecht, citing from Tolba, M., “The Global Agenda and the Hazardous Wastes Challenge” (1990) 14 MP 205 at 208. It should be noted that while a comprehensive discussion of the potential problems associated with the ban is beyond the purview of this paper, the foremost argument against the ban's ratification is its incompatibility with the General Agreement on Tariffs and Trade (GATT).

141 Lawrence, P., “Negotiations of a Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal” (1998) 7 Reciel 249 at 253.

142 I am, of course, extrapolating from the evidence. Keeping true to a CRT analysis, this query would require vetting by “third world” voices, and does not, of course, negate erstwhile negotiations pertaining to this topic. What I am suggesting is that a call for a ban may be used to achieve one of two goals: an actual ban, if that is truly what is desired internationally, or leverage as an inducement for those who have, up until now, seemingly lead this discussion, to provide the financial, political and moral support necessary to comprehensively implement the regime's objectives: ensuring a safe, cradle-to-grave mechanism for hazardous waste transfers.

143 Krueger, supra note 3 at 11. Given that the Bamako Convention text contains the same provisions as found in the Basel Convention, the same criticisms apply to it as well.

144 Basel Convention and Bamako Convention, Art. 6(2) and (4).

145 Basel Convention and Bamako Convention, Art. 6(3).

146 Vu, supra note 62 at 419.

147 Ross, J., “Legally Binding Prior Informed Consent10 Colo. J. Int'l Envtl. L. & Pol'y 499 at 507.

148 Note that this reality is something which none of the measures within the international waste trade regime address. It is an anomaly of sorts to find relevant rules relating to the problem of corporate liability within international treaties. Perhaps the only example exists in Article 35 of the Charter of the Organization of American States, as amended by the Protocol adopted at Cartagena de Indias on 5 December 1985 providing: “Transnational enterprises and foreign private investments shall be subject to the legislation of the host country and to the jurisdiction of their competent courts and to the international treaties and agreements to which said countries are parties, and should conform to the development policies of the recipient countries”, ILM (1986), 538, cíted ín Scovazzí, supra note 66 at 423.

149 Baade, H.W., “The Legal Effects of Codes of conduct for Multinational Enterprises” in Horn, N., ed., Legal Problems of Codes of Conducts for Multinational Enterprises (The Netherlands: Kluwer, 1980) at 4.

150 The closest the current Article 6 comes to this is subsection 9 which provides: “The Parties shall require that each person who takes charge of a transboundary movement of hazardous wastes or other wastes sign the movement document either upon delivery or receipt of the wastes in question. (…)”

151 The possibility of the extraterritorial application of domestic law is not novel. Extraterritorial application of US and EU anti-competition law already exists. For example, section 6a of the Sherman Act of 1890, 15 USC. 1–7 (1994), America's governing antitrust legislation, explicitly provides for extraterritorial application of the Act in cases where foreign enterprises conduct restraints on trade that have a “direct, substantial, and reasonably foreseeable effect” on America's domestic market. The 1990 Regulation on “Control of Concentrations Between Undertakings”, Council Regulation No. 4064/89, O.J. L. 395/1 (1989), amended by O.J. L. 257/13 (1990) was passed, providing the European Commission with de jure jurisdiction over mergers, acquisition, and joint ventures, including those involvìng foreign companies. Moreover, the main thrust of the United States Foreign Corrupt Practices Act, 1977, Pub.L.No. 95–213, 91 Stat. 1494, reprinted in 1977 U.S.C.C.A.N. (91 Stat.) 1494–1500, 4098–127 is to prohibit US businesses and corporations from involvement in the bribery of foreign officials by rendering illegal the offering of valuable incentives for the purpose of obtaining or retaining business. Neff, Alan argues in “Not in their Backyards, Either” (1990) 17 Ecology L.Q. 477 for the passing of a Foreign Environmental Practices Act (FEPA) to sanction the activity of MNEs by applying domestic regulatory principles to their activity abroad. See also Mazzocchi, M.A., “Amlon Metals, Inc v. FMC Corp: U.S. Courts' Denial of International Environmental Responsibility” (1997) 9 Fordham Envtl. L.J. 155 for arguments supporting the possibility of the extraterritorial application of the United States' Resource Conservation and Recovery Act.

152 Effective corporate responsibility plays a crucial role in preventing problems related to the waste trade. The chemical industry, for example, endorses a concept known as “Responsible Care”, which recognizes the need of MNEs to “respond to community concerns” and to “participate with government and others in creating responsible laws, regulations and standards to safeguard the community, workplace and environment.” It is possible that through encouragement for the adoption of these kinds of in-house policies, large corporations could commence programs which, for example, share waste reduction technology with smaller generators both domestically, and abroad. See Scramstad, B., “Transboundary Movement of Hazardous Waste from the United States to Mexico” (1991) 4 Transnat'l. Law. 253 at 286–87. Note also the existence of the “Equator Principles” initiative. Twenty leading financial institutions have voluntarily agreed to adopt environmental and social safeguards into their ventures to finance global projects. These measures include direct consultation with the community where the project is to occur. See “Equator Principles” Online: www.equator-principles.com (date accessed: 15 February 2004).

153 Kummer, supra note 12 at 276.

154 Ibid. at 154.

155 42 U.S.C. §6901–6992(k)(1994). See also Baram, M.S. & Partan, D.G., Corporate Disclosure of Environmental Risks, (Salem: Butterworth, 1990) at 155–56, for a discussion of unorthodox manners of forming the opinio juris necessary to suggest a duty has crystallized into a principle of international law.

156 U.N. Doc. UNEP/FAO/PIC/CONF/5 (1998). Note also that while there is no explicit PIC obligation in the Cartagena Protocol on Biosafety, the transboundary movement of biotechnology products cannot occur without the express consent of the receiving country, via general import, custom or quarantine requirements. “Convention on Biological Diversity” online: http://www.biodiv.org/doc/meetings/hbs/iccp-01/official/iccp-01_05-en.doc (date accessed: 14 January 2004).

157 Article 2.2(c) clearly enumerates what “damage' means: (i) Loss of life or personal injury; (ii) Loss of or damage to property other than property held by the person liable (…); (iii) Loss of income directly deriving from an economic interest in any use of the environment, talcing into account savings and costs; (iv) The costs of measures of reinstatement of the impaired environment, limited to the costs of measures actually taken or to be undertaken; and (v) The costs of preventative measures, including any loss or damage caused by such measures. (…)

158 The purpose of the Basel Convention's Technical Cooperation Trust Fund for example is to assist developing state parties with their efforts to take emergency measures to prevent damages, and to eventually provide compensation for “reasonable measures of reinstatement” not compensated by the fund. French, D., “The 1999 Protocol on Liability and Compensation for Damage Resulting from the Transboundary Movements of Hazardous Wastes and their Disposal” (2000) 1 En v. Liability 3 at 10.

159 Ibid. art. 4(5), for example, provides: “No liability in accordance with this Article shall attach to the person referred to in paragraphs 1 and 2 of this article, if that person proves that the damage was: a) The result of an act of armed conflict, hostilities, civil war or insurrection (…).”

160 Sean Murphy argues that the purpose of an international fund regime could be three-fold: (1) to provide funding when a responsible entity cannot be identified, or where the entity is not fully liable for the fault, (2) to provide funding for litigation and immediate, emergency clean-up, and (3) to provide full compensation for clean-up, subsequently recouped by pursuing claims against the wrong-doer. Supra note 14 at 57.

161 Many industrialized nations have argued that there exists insufficient data to justify the need for a fund. Lawrence, supra note 141 at 252.

162 While it is far beyond the scope of this paper to provide details of how an international fund would operate, it is recognized that, while necessary, future negotiations on this issue will be rigorous.

163 Protocol, Art. 17. Whether dispute resolution is to occur under the yet-to-be-ratified Protocol mechanism or revert to the dispute resolution provisions of the Basel Convention remains uncertain. It seems, prima facie, that the parties may currently possess an either/or option.

164 Ibid. art. 19.

165 Ibid. This provision is subject to some restrictions. Parties are not required to recognize judgments obtained by fraud, where the defendant was not given reasonable notice and a fair opportunity to present his case, where.the judgment is irreconcilable with an earlier, validly pronounced judgment with regard to the same cause of action and where the judgment is contrary to the public policy of the Contracting Party. It is also important to note that this provision, while conceptually sound, is difficult to actually implement. Since it is impossible to know all legal systems of the Parties to the Protocol, some countries may not recognize foreign judgments without bilateral agreements. Sundram, M.S., “Basel Convention on Transboundary Movement of Hazardous Wastes: Total Ban Amendment” (1997) 9 Pace Int'l L. Rev. 1 at 44.

166 The panel is comprised of two panelists chosen from each side. A fifth panelist is then chosen by the other four members. North American Free Trade Agreement between the Government of Canada, the government of Mexico and the Government of the United States, 17 December 1992, Can. T.S. 1994 No.2, 32 I.L.M. 289 (entered into force 1 January 1994) [NAFTA] Chapter 19, art. 1904.

167 Vega-Canovas, G., “NAFTA and the Expansion of Free Trade: Current Issues and Future Prospects” (1997) 14 Ariz. J. Int'l & Comp. L. 479 at 482.

168 Bookchin, M., The Ecology of Freedom. The Emergence and Dissolution of Hierarchy, (Palo Alto: Cheshire Books, 1982) at 23.

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Wag the Dog: Towards a Harmonization of the International Hazardous Waste Transfer Regime

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