Basel Convention

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (“Basel Convention”) is a binding international environmental agreement adopted in March 1989 to protect human health and the environment against the adverse effects resulting from the generation, management, transboundary movement, and disposal of hazardous waste. It came into effect in May 1992 and has been ratified by 170 countries (as of January 2009), though not by the United States. Despite notable success in strengthening the Basel regime and constructing requisite norms, critics charge that much work remains, such as ensuring effective compliance, minimizing hazardous waste generation and transboundary movement, enforcing liability on waste exporters, and halting illegal waste traffic.

The Basel Convention prohibits any export of hazardous waste, defined as toxic, poisonous, explosive, corrosive, flammable, ecotoxic, or infectious waste, to Antarctica, to countries that are not signatories to the convention, or to countries that have banned such activity under domestic legislation. Otherwise, it applies the “prior informed consent” principle, whereby waste shipments made without a prior written notification to, and consent of, importing (and transit) states' competent authority are deemed illegal. Basel also requires that parties manage and dispose of their hazardous waste in an “environmentally sound manner” by minimizing waste generation at the source, restricting the waste moved across borders, and treating and disposing of wastes as close as possible to their place of generation. Any transboundary movements of hazardous waste that violate Basel are considered “illegal traffic” and are subject to specific remedies such as the mandatory return of waste to the importing country at the latter's expense.

According to the United Nations Environment Programme, around 400 million tons of hazardous waste is produced annually. Increasing awareness and clout by consumer and environmental groups prompted industrialized countries, which produce roughly 90 percent of the world's hazardous waste, to enact increasingly stringent environmental regulations that made disposing of hazardous waste locally significantly more expensive (100 times more so than in some developing countries) and politically difficult (the “not-in-my-backyard” problem). Some of this waste (10–20 percent) naturally flowed across national boundaries as individual firms searched for cheaper disposal sites in developing countries that lacked the capacity or awareness to dispose of the waste safely.

[Page 28]The hazardous waste trade first gained notoriety in the 1980s following a series of dramatic scandals such as the infamous case of the vessel Khian Sea, which departed Philadelphia in 1986 loaded with 14,000 tons of toxic incinerator ash before dumping some of the load in Haiti and then crossing the waters of five continents during an epic voyage lasting 27 months in search of a dump site. Public outrage across the Third World, combined with the mobilization of transnational environmental networks, resulted in the United Nations Environment Programme adopting the “Cairo Guidelines” in 1987, establishing the first set of global procedures to manage and dispose of hazardous waste, based on the prior informed consent principle. However, these guidelines were nonbinding, soft-law instruments. That further, high-profile scandals involving dumped waste were uncovered in countries as far apart as Haiti, Nigeria, and Lebanon during and immediately after the adoption of the “Cairo Guidelines” spoke volumes about the effectiveness of such voluntary provisions. All in all, Greenpeace estimated that over 2.6 million tons of hazardous waste flowed from Organisation for Economic Co-operation and Development countries to non-Organisation for Economic Co-operation and Development countries between 1989 and 1994.

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