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PARADOKS Ekonomi, Sosyoloji ve Politika Dergisi
PARADOKS Economics, Sociology and Policy Journal
Waste Trade and the Effectiviness of the Legal Arrengements
for Tranfortier Movement of Hazardous Wastes
Atık Ticareti ve Tehlikeli Atıkların Sınıtötesi Taşınımına İlişkin
Hukuki Düzenlemlerin Etkinliği
Dr. Yasemin KAYA
Uludag University, Department of Public Administration
Temmuz/July 2012, Cilt/Vol: 8, Sayı/Num: 2, Page: 63-82
ISSN: 1305-7979
© 2005 - 2012
Temmuz/July 2012, Cilt/Vol: 8, Sayı/Num: 2
ISSN: 1305-7979
Editör/Editor-in-Chief
Öğr.Gör.Dr. Elif KARAKURT TOSUN
Editör Yardımcıları/Co-Editors
Öğr.Gör.Dr.Sema AY
Öğr.Gör.Dr.Hilal YILDIRIR KESER
Uygulama/Design
Dr.Yusuf Budak
Tarandığımız İndexler / Indexes
Dergide yayınlanan yazılardaki görüşler ve bu konudaki
sorumluluk yazarlarına ai=ir.
Yayınlanan eserlerde yer alan
tüm içerik kaynak gösterilmeden kullanılamaz.
All the opinions wrien in articles are under responsibilities of
the authors.
None of the contents published
cannot be used without being
cited.
Yayın ve Danışma Kurulu / Publishing and Advisory Committee
Prof.Dr.Veysel BOZKURT (İstanbul Üniversitesi)
Prof.Dr.Recai ÇINAR (Gazi Üniversitesi)
Prof.Dr.R.Cengiz DERDİMAN (Uludağ Üniversitesi)
Prof.Dr.Zeynel DİNLER (Uludağ Üniversitesi)
Doç.Dr.Aşkın KESER (Uludağ Üniversitesi)
Yrd.Doç.Dr.Emine KOBAN (Beykoz Lojistik Meslek Yüksek Okulu)
Yrd.Doç.Dr.Ferhat ÖZBEK (Gümüşhane Üniversitesi)
Yrd.Doç.Dr.Senay YÜRÜR (Yalova Üniversitesi)
Dr.Sema AY (Uludağ Üniversitesi)
Dr.Zerrin FIRAT (Uludağ Üniversitesi)
Dr.Elif KARAKURT TOSUN (Uludağ Üniversitesi)
Dr.Hilal YILDIRIR KESER (Uludağ Üniversitesi)
Hakem Kurulu / Referee Committee
Prof.Dr.Veysel BOZKURT (İstanbul Üniversitesi)
Prof.Dr.Recai ÇINAR (Gazi Üniversitesi)
Prof.Dr.Mehmet Sami DENKER (Dumlupınar Üniversitesi)
Prof.Dr.R.Cengiz DERDİMAN (Uludağ Üniversitesi)
Prof.Dr.Zeynel DİNLER (Uludağ Üniversitesi)
Prof.Dr.Hasan ERTÜRK (Uludağ Üniversitesi)
Prof.Dr.Erkan IŞIĞIÇOK (Uludağ Üniversitesi)
Prof.Dr.Bekir PARLAK (Uludağ Üniversitesi)
Prof.Dr.Ali Yaşar SARIBAY (Uludağ Üniversitesi)
Prof.Dr.Şaban SİTEMBÖLÜKBAŞI (Süleyman Demirel Üniversitesi)
Prof.Dr.Veli URHAN (Gazi Üniversitesi)
Prof.Dr.Uğur YOZGAT (Marmara Üniversitesi)
Doç.Dr.Hakan ALTINTAŞ (Sütçü İmam Üniversitesi)
Doç.Dr.Hamza ATEŞ (Kocaeli Üniversitesi)
Doç.Dr.Kenan DAĞCI (Yalova Üniversitesi)
Doç.Dr.Kemal DEĞER (Karadeniz Teknik Üniversitesi)
Doç.Dr.Bülent GÜNSOY (Anadolu Üniversitesi)
Doç.Dr.Ömer İŞCAN (Atatürk Üniversitesi)
Doç.Dr.Vedat KAYA (Atatürk Üniversitesi)
Doç.Dr.Sait KAYGUSUZ (Uludağ Üniversitesi)
Doç.Dr.Aşkın KESER (Uludağ Üniversitesi)
Doç.Dr.Veli Özer ÖZBEK (Dokuz Eylül Üniversitesi)
Doç.Dr.Serap PALAZ (Balıkesir Üniversitesi)
Doç.Dr.Abdülkadir ŞENKAL (Kocaeli Üniversitesi)
Doç.Dr.Sevtap ÜNAL (Atatürk Üniversitesi)
Doç.Dr.Sevda YAPRAKLI (Atatürk Üniversitesi)
Doç.Dr.Gözde YILMAZ (Marmara Üniversitesi)
Yrd.Doç..Dr.Aybeniz AKDENİZ AR (Balıkesir Üniversitesi)
Yrd.Doç.Dr.Doğan BIÇKI (Muğla Üniversitesi)
Yrd.Doç.Dr.Cantürk CANER (Dumlupınar Üniversitesi)
Yrd.Doç.Dr.Canan CEYLAN (Uludağ Üniversitesi)
Yrd.Doç.Dr.Kadir Yasin ERYİĞİT (Uludağ Üniversitesi)
Yrd.Doç.Dr.Burcu GÜLER (Kocaeli Üniversitesi)
Yrd.Doç.Dr.Ferhat ÖZBEK (Gümüşhane Üniversitesi)
Yrd.Doç.Dr.Emine KOBAN (Beykoz Lojistik Meslek Yüksek Okulu)
Yrd.Doç.Dr.Ceyda ÖZSOY (Anadolu Üniversitesi)
Yrd.Doç.Dr.Senay YÜRÜR (Yalova Üniversitesi)
Temmuz/July 2012 - Cilt/Vol: 8 - Sayı/Num: 02
Sayfa/Page: 63-82
Waste Trade and the Effectiviness of the Legal Arrengements
for Tranfortier Movement of Hazardous Wastes
Atık Ticareti ve Tehlikeli Atıkların Sınıtötesi Taşınımına İlişkin
Hukuki Düzenlemlerin Etkinliği
Dr. Yasemin KAYA
Uludag University, Department of Public Administration
Özet:
Atıkların gelişmiş ülkelerden gelişmekte olan ülkelere transferi 1970’lerden buyana uluslararası toplumun gündeminde olan bir sorundur. Gelişmiş ülkelerde atık yönetim maliyetlerinin yükselmesi ve yeni kurulacak bertaraf
tesislerinin tepki ile karşılanması neticesinde ortaya çıkan bu etik dışı faaliyet, bir takım yası dışı olay ve kazaların
medyada geniş yer bulması ile birlikte kamuoyunun dikkati çekmiştir. Bu tip faaliyetlerin engellenmesine yönelik
protesto ve baskılara karşılık olarak, atıkların sınır ötesi hareketine sınırlama ya da yasaklama getiren bölgesel ve
küresel nitelikte çeşitli yasal düzenlemeler oluşturulmuştur. Ancak bu düzenlemelere rağmen, tehlikeli atıkların
uluslararası ticaretinin artmaya devam ettiği görülmektedir. Özellikle miktarı giderek artan elektronik atıkların
yoğun bir şekilde gönderildiği Afrika ve Asya ülkeleri bu konuda ciddi bir tehdit altındadır. Bu durum doğal olarak bu alandaki yasal düzenlemelerin etkinliğini tartışılır kılmaktadır. Bu bağlamda çalışmada Basel Sözleşmesi
başta olmak üzere atık ticaretini düzenleyen temel yasal araçlar değerlendirilmekte ve bu düzenlemelerin söz konusu sorunun çözümüne ne derece katkı sağladığı/sağlayabileceği analiz edilmektedir.
Anahtar kelimeler: atık ticareti, atık ticaretine ilişkin düzenlemeler, Basel Sözleşmesi, tehlikeli atık, atık yönetimi
Abstract:
Transfer of wastes from developed countires to developing countires has been a problem on the agenda of the international community since 1970s. This unethical practice that have emerged as a result of increase in the cost of
waste management and public’s reaction to the new disposal facilities in developed countries have attracted the attention of the public due to a wide coverage of some illegal activities and accidents in the media. In response to the
protests and pressures destined to prevent these types of practices, various regional and global arrangements aiming
to restricting or banning the transboundary movement of wastes has been made. However, despite these arrangements, it is seen that the international trade of wastes have been on the rise. Especially African and Asian countries where increasing amounts of electronic wastes are transported have been under a serious threat. This naturally
calls the effectiveness of the legal arrangements into question. In this context, in particular with Basel Convention leading the way, the basic legal instruments regulating waste trade are reviewed and it will be analyzed to what
extent these arrangements can/will contribute to the resolution of the problem in question.
Keywords: waste trade, waste trade regulations, Basel Convention, hazardous waste, waste management.
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1. INTRODUCTION
The transfer of hazardous waste from the
developed countries to the developing ones
has been a problem on the agenda of the international community for a long time. This
particular problem defined by such terms as
dirty trade or toxic colonialism can be seen
as a new dimension of the pressure generated by the developed countries on the
ecosystems of the developing countries.
Waste trade is one of those areas in which
concerns related to environmental justice becomes visible the most. This is because while
this trade protects the developed countries
from the hazards of the waste that they have
themselves produced, it, on the other hand,
take away the rights of developing countries
to live in healthy and balanced environment.
The amount of waste that has been on the
increase especially in the last half century
due to the changes in the pa=erns of production and consumption has made the
waste management one of the important
problems of states. Unless the waste is properly managed, it is likely to have some serious impact on the human and
environmental health. Dumping the wastes
haphazardly in the environment cause them
to penetrate into the under and over ground
water resources, mix into the soil and the atmosphere and eventually generate long term
and irreversible damage (O’Neill, 2002: 3).
Increase in the awareness of risks posed by
the wastes brought along the demand for environmental protection and led to formation
of strict environmental standards with regards to waste management. The cost of
waste management has significantly increased due to these standards. The efforts to get
rid of these wastes in an inexpensive manner that has taken place in the form of waste
export form the developed countries to the
developing ones has eventually generated a
trade that represents a profit through an
unethical transfer of risk due to the vulnerable economical position of these countries
(Shin-Strohm, 1993: 226). However, these countries where the hazardous wastes are exported are, on the whole, administratively,
technologically and financially incapable of
managing them (Jurdi, 2002: 12). The unavailability of proper processing and disposal
means in those countries in question poses a
serious problem in terms of waste management.
The process of making an a=empt by the
international community in order to resolve
the problem of waste trade has been initiated by the extensive media coverage of some
illegal transfer of wastes into the developing
countries.1 All these events have helped this
issue to be brought to people’s a=ention on
the national as well as international levels
and initiated the international protests with
regards to these kinds of incidents (Kummer, 1992: 53). In connection to the increase
in the interest with regards to the environmental justice, some international arrangements were initiated to be formed. The
problem of waste trade has been tackled initially on the regional scale and then through
the regulations made by the OECD and the
EU. Afterwards, the Basel Convention on
the Control of Transboundary Movements of
Hazardous Wastes and Their Disposal, the
first most comprehensive and global convention in this field, has been adopted. Following the Basel Convention, some regional
arrangements were made in order both to
support the implementation of this Convention on the regional scale and to correct its
weaknesses in terms of banning the waste
trade.
However, it has to be noted here that ma-
1 The fact that cargo ship Khian Sea with a load of 14.000 tons of toxic ash came from the state of Philadelphia in 1986 and dumped its load on the shores of Haiti, this news was extensively covered on the
media (Tsimplis, 2001: 297; Lloyd 2008: 18). A similar case is the Koko beach accident. Thousands tons of
toxic and radioactive wastes labeled as construction waste were shipped to Koko, Nigeria 1987 (Lipman,
2002: 67).
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Waste Trade and the Effectiviness of the Legal Arrengements for Tranfortier Movement of Hazardous Wastes
king legal arrangements in relation to waste
trade is a difficult ma=er since it is an economically and politically sensitive issue.
Firstly, the solutions developed as a response to the problem have different impacts
on the interests of the developed and developing countries. On the other hand, restrictions with regards to waste trade are
perceived as interferences to the states’
rights of waste export and import and are reacted against. Naturally, all these problems
turn the arrangements related to waste trade
into regulations offering compromises that
will hold the sensitive interests and preferences on balance. The compromise offers in
question, on the other hand, prevent these
arrangements from being powerful enough
and effective. Based on this claim, the aim
of this study is, by assessing the arrangements related to the waste trade, to analyze
to what extent these arrangements can contribute to the resolution of the problem. Within this perspective, there will initially be an
assessment of the reasons behind the hazardous waste trade and their scope and this
will be followed by an analysis of basic arrangements in this field.
2. INTERNATIONAL TRADE IN HAZARDOUS WASTE
The transfer of hazardous wastes from
the developed countries to the developing
one began as a general practice in late 1970s
and continued to grow throughout the following decades. 95% of the total hazardous
waste in the world is generated by the developed countries and a significant part of
these wastes are imported to the developing
countries either for recycling or for disposal
(Clapp, 2001: 22). It is possible to collect the
reasons behind why the developed countries
export their wastes to developing countries
under few headings. The most important
reason constituting the source of the problem is the discrepancy in the costs of waste
management stemming from the quality of
the environmental standards. The strict standards developed as a result of increased con-
cern over the risks posed by the wastes in the
developed countries have significantly augmented the cost of waste management
(OECD, 2008: 242). In fact, the fact that environmental standards are quite light in the
developing countries, that there is no efficient legal legislation concerning this issue,
that there is a low level of awareness about
the hazards generated by the wastes and
thus that there is no strong public opposition
in this field lead to the disposal costs to stay
at the minimum level (Lipman, 2002: 68).
This discrepancy in the cost of waste management makes the waste trade an effective
and a=ractive choice in terms of costs. Another reason triggering the waste trade is the
reaction in the society against the disposal
facilities to be established in the developed
countries (Shin-Strohm, 1993: 227). This opposition defined as “not in my backyard
syndrome” constitutes a serious obstacle
with respect to the establishment of new disposal facilities in the developed countries.
The other reason for the international transfer of hazardous wastes is the prospective
value of the wastes for the developing countries in terms of recovery, reuse and recycling (Krueger, 2001: 44). This particular
situation, at the same time, leads to the perception of waste as a commercial commodity
and legitimizes the trade in question. Moreover, the rules and regulations regarding
the globalization and liberalization of trade
also have an important role to play in the rise
of waste trade.
The fact that countries have differing definitions of waste, the use of different register systems in imports and exports and
because the majority of waste trade is done
illegally, it is difficult to reach the exact and
correct information about the extent of the
international waste trade. However, while
waste trade constituted 5.2% of the world
trade in 1980, this percentage rose to 29% in
1993 (Krueger, 1999: 15). Even though the
Basel Convention, the basic regulation regarding the cross-border transfer of hazardous waste, took effect in 1992, the fact that
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countries failed to decrease their waste production and the rapid increase in the electronic waste led to the increased continuation
of this trade especially illegally. The reports
of international organizations and NGOs
operating in this field give us clues about the
extent and direction of waste trade. For instance, in the inspections of IMPEL (Implementation
and
Enforcement
of
Environmental Law) formed as an informal
network to inspect the implementation of
environmental legislation in the member states and to enable them to harmonize with
the union’s legislation, that it carried out between 2004 and 2009 in order to control the
cross-border waste transfer, it was found
that there were some serious problems of
harmony regarding the legislation in this
field. In the inspections performed in 13 EU
countries between September 2004 and May
2006, it was found that 26% of the total
physically controlled transport contained
waste, 51% was illegal and 43% contained
some administrative infractions (IMPEL,
2006: 10; OECD, 2008: 243). In the inspections performed between 2006 and 2008, on
the other hand, it was found that 15% of the
total controlled transport was waste and 15%
was against the legal regulations. In the inspections performed in 26 European countries between October 2008 and May 2009, it
was found that 24% of the total transport
contained waste and nearly 20% of waste
transport was against the regulations
(INECE, 2009: 8). INECE (International Network for Environmental Compliance and
Enforcement), another international organization established to enable the states to fulfill their international environmental
responsibilities, performed some harbor inspections in June and July of 2010. It was
found in these inspections that 53% of the
hazardous waste transports were against the
basic legal regulations (INECE, 2010: 10). Besides, in the waste-transport related research
reports of NGOs such as Basel Action Network (BAN), a civic initiation established to
enable the implementation of the Basel Convention and Greenpeace; it was found that
those reports contained many illegal incidences.2
The most important aspect of waste trade,
without a doubt, is that these wastes are exported to those countries that are unable to
manage them adequately. The investigations
carried out by revealed that some important
part of the illegal waste transport were made
to the developing regions such as Africa and
Asia (IMPEL, 2005: 34-36; OECD, 2008: 243).
In the reports prepared by INECE, it was revealed that wastes were mostly transferred
to from America to Asia and from Europe to
West Africa and Asia (INECE, 2010: 14). The
Greenpeace reports revealed that tons of hazardous waste containing computer and
other metal pieces were dumped in China
and these wastes were recycled through unsafe methods (such as dismantling them by
hand). Besides, it is possible to trace many
incidences from the Greenpeace reports that
hazardous wastes were illegally dumped in
Africa (Abidjan/Ivory Coast, Guinea Bissau)
and India (Delhi, Bhopal) (h=p://www.greenpeace.org/international/ 24.12.2011). In the
investigations carried out by the Basel Action Network, many illegal incidences of especially e-waste transfers to Asia and Africa
were encountered (h=p://www.ban.org
/toxic-trade-news/ 24.12.2011).
The illegal transfer of hazardous wastes
to developing countries became a topic on
the agenda of the international community
in the 1980s and from mid 1980s, many legal
arrangements both at regional level and at
global level aimed at tackling this problem
were made. However, the increase in the
number of incidences of the illegal transfer
of hazardous wastes has naturally made the
efficiency of these arrangements controversial. In this connection, in the rest of this
2 Available from: h=p://www.ban.org/toxic-trade-news/; h=p://www.greenpeace.org/international/en/publications/reports/ (Accessed 24.12.2011).
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study, an a=empt will be made to analyze
the basic arrangements in this field and their
capacity to constitute a solution to the problem of illegal waste trade.
3. REGULATIONS OF OECD AND EU FOR
TRANSFRONTIER MOVEMENT OF WASTES
The legal regulations and arrangements
regarding the transfrontier movement of hazardous and other wastes have been made
within the body of OECD and EU. OECD
took a council decision in 1984 with respect
to control of the movement of wastes between the member states. Similarly, The Directive on Transfrontier Shipment of
Hazardous Waste was prepared within the
EU in 1984 on the movement of waste between the member states. Both regulations
evolved in 1988 into a form in which they
started to include trade with third countries
as well. Similar regulations of OECD and
EU impose an obligation of prior notification
for the waste trade between the member states. In compliance with this obligation, a
member state is to notify the other member
state of her intention of waste transport. The
competent authority of the recipient state
could object to proposed transaction with
one month of receiving the notification; the
directive thus incorporated the concept of
tacit consent. Nonetheless, trade with the
third countries requires prior notification
and wri=en consent (Kummer, 1995: 126161; Clapp, 2001: 39).
OECD developed a new system in 1992
aimed at controlling the transfrontier movement of waste for the purposes of recycling.
According to this system, wastes were divided into different categories and a different
control procedure for each category was determined. This system was exactly adopted
in the 1993 EU Regulations on Shipments of
Waste. This system divide wastes destined
for recycling into three categories, known as
“red, amber and green”. The wastes in the
“red list” are considered the most toxic wastes. These wastes are subject to strict prior
notification procedures including wri=en
consent of the importing country before they
can be exported. The wastes in the “amber
list” are seen to be potentially hazardous but
less risky than red wastes. These amber wastes are subject to a more limited prior notification procedure. Notification of export
must be given, but consent can be tacit rather
than in writing. The wastes in the “green
list” wastes are regarded as safe and are not
subject to the prior notification procedure
but are governed by rules of normal commercial transaction. While OECD implemented this system for the trade between the
member-states, EU resort to this system for
trade with the third countries3 (Clapp, 2001:
60).
Based on OECD’s 2001 Council Decision,
the waste lists were downgraded to two lists
of green and amber. This change in the
OECD’s Council Decision was adopted by
the EU’s 2006 dated Regulation on Shipments of Wastes as well. In parallel to prior
regulations, the wastes in green list are subject to regular transfrontier trade rules. For
the wastes in amber list, the procedure of
prior notification prevails. In the new regulations, the wastes whose exports are banned, on the other hand, are classified as a
separate list (EU, 2011; OECD, 2011). The
main discrepancy between EU and OECD
regulations and the Basel Convention is that
they envisage different procedures for the
wastes transferred for the final disposal and
for recycling. The transfrontier movement
of wastes for the final disposal between the
member states is subject to prior notification
consent of the Basel Convention. However,
a simplified procedure is adopted for the
trade of recycling without making any difference between hazardous and non-hazardous wastes. While direct trade regulations
3 OECD countries, contracting states of Basel Convention and those countries with which a special agreement was made based on the article 11 of Basel Convention.
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prevail for the transfrontier movement of
some wastes, a tacit consent is accepted for
some others. In the current EU and OEDC
regulations, the transfer of wastes to third
countries for the final disposal has been banned. However, for the transfer of wastes to
the third countries for the purpose of recycling, prior notification consent procedure of
the Basel Convention is implemented. Unlike the Basel Convention, the main purpose
of the regulations in question is not to minimize the transfrontier trade of wastes. The
purpose of these regulations is to set up a
monitoring system regarding the waste
trade and establish a less strict control
system for the trade of recyclable wastes
(Kummer, 1995: 167-168).
4. THE BASEL CONVENTION
The Basel Convention on the Control of
Transfrontier Movement and Disposal of
Hazardous Wastes, which is the most comprehensive arrangement on a global scale for
the management of hazardous and other
wastes, was adopted on the March 22nd,
1986 and took effect in 1992. The Convention
to which 178 countries are a party, aims to
protect human health and environment against the detrimental effects likely to stem
from the generation, management, transfrontier movement and disposal of hazardous and other wastes (SBC, 2008a: 1).4 For
the realization of this objective, the scope of
activity of the Basel Convention can be considered under the framework of four headings. These are; minimizing the generation
of hazardous wastes, supporting the environmentally sound management of hazardous wastes, ensuring the disposal of
hazardous wastes in the closest area where
they are generated and scrutinizing the
transfrontier movement of hazardous wastes and minimizing it (Sand, 1992: 328).
The Basel Convention constitutes a comprehensive and dynamic regime in terms of
regulating the transfrontier movement of hazardous wastes and ensuring their environmentally sound management and disposal.
However, the underlying basis of the Basel
Convention is to prevent the illegal transfer
and dumping of wastes from the developed
countries to the developing ones (SBC,
2008b). Therefore, it is possible to say that issues related to this problem were mainly
dealt with throughout the debates and the
contract text took its existing shape within
the context of this problem. Since Basel
Convention was constituted as a response to
the increasing reaction of international community against the dumping of into the developing countries, the main purpose of
discussions was how to eliminate these
types of activities in the future (Kummer,
1998: 227).
The debates of Basel Convention were
very tough and contentious. The main point
of discussion throughout the debates stemmed from the fact that developed and developing countries had different preferences
and demands for the control of transfrontier
movement of wastes. While developing countries supported a stance of a total global
ban on this issue, the developed countries focused on the choice of a controlled waste
trade. Especially, the demand of many developing countries comprising the Organization of African Unity (OAU) for a total ban
of hazardous wastes for all their movement
throughout the world was strongly supported by many non-governmental organizations.
However, many industrialized
countries, on the other hand, refused to
agree on the criterion that would introduce
restrictions on the waste and recyclable
metal trade by focusing on the choice of controlled waste traffic (Kummer, 1992: 536).
This conflict blocked a serious consideration
of a total ban on that day and the demand
for a ban was not included in the Convention Instead, a monitoring system based on
the criterion of prior informed consent was
4 The text of the Basel Convention can be accessed through the following address; h=p://www.basel.int.
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included in the Convention (Kummer, 1998:
227).
The regime formed by the Convention regarding the transfrontier transfer of wastes
can be examined within the framework of a
binary division of situations, in which waste
transfer is banned, of one, and of situations,
in which it is subject to wri=en permission,
of the other. The Basel Convention principally has banned waste transfer in some certain situations. In other situations, on the
other hand, it is possible through a controlled manner based on the procedure of prior
informed consent. According to the Convention, the following are the situations in
which waste transfer is banned:
- The party that has banned the import of hazardous and other wastes cannot export
them either.5
- It is not allowed to export hazardous and
other wastes to the party that is unable to
provide an environmentally safe management of them.6
-
The waste trade between the countries
that are not a party of the contracting states is not allowed.7
- It is prohibited to transfer hazardous and
other wastes for disposal to the regions
that are in the south of the 60 degrees
south latitude.
According to the Convention, the export
of hazardous wastes can only be allowed if
the exporting country does not have the
technical capacity and experts to dispose the
waste in environmentally sound manner
and if the importing country needs the waste
as raw material for recycling and recovery
(Art. 4/9a and 4/9b). The waste transfer can
be possible through the prior informed consent procedure as stated in article 6 of the
Convention. Waste transfer carried out in
violation of the terms and conditions of the
Convention is regarded as illegal.
The prior informed consent procedure
constitutes the basis of control regime generated by the Basel Convention and waste
trade between the parties can be materialized based on this procedure. According to
this procedure, the exporting country is obliged to inform the importing country and
the transit countries of the expected transboundry movement of hazardous and other
wastes. This information should be detailed
enough to enable the authorities of importing and transit countries to assess the nature
and risks of the expected transboundry movement. The importing state is to send to the
notifying party in writing whether it conditionally or unconditionally consents to the
movement in question; whether it refuses to
allow for it or whether it requires additional
information. In her response, the importing
state should confirm that a contract has been
signed between the exporting party and the
disposing party over the environmentally
sound management of wastes. Moreover,
transboundry movement of hazardous and
other waste will be subjected to insurance,
5 Article 3 of Basel Convention entitles contracting states the right to ban the entry of hazardous wastes into
their countries, in accordance with their national regulations, even if they are not listed in the Convention
(Art.3/1). Those parties that exercise this right will notify the Secretariat of the Convention and exporting
countries will ban the export of waste in question to the country concerned (Art.4/1a-b).
6 According to the provisions of Basel Convention (Art. 4/2e), exporting countries should not allow for the
export of wastes if there is evidence that waste transfer would not be managed in an environmentally
sound manner. However, due to the lack of necessary inspection and monitoring mechanisms, this provision has not been operative in practice.
7 Article 11 of Basel Convention entitles contracting states to have bilateral or multilateral agreements with
non-contracting countries as long as they are consistent with waste management provision of the Convention. According to these agreements, the waste transfer made is exempt from the provisions of Basel
Convention.
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warrantee or any other form of assurance
that the importing state or the transit state
sees as required (Art. 6/1–6/4 and 6/11).
In fact, this particular regulation is quite
detailed. In spite of this, some of the gaps
may create problems. For instance, exporting state does not have any obligation to
confirm the content of the contract signed
between the exporter and the disposer over
the environmentally sound management of
wastes. Transboundary movement may be
initiated by the confirmation of the existence
of the contract in question. And this makes
whether the wastes will in reality be managed in an environmentally sound way uncertain. Moreover, since the concept of
‘environmentally sound management’ has
not been clearly defined in the Convention,
there is still uncertainty what the content of
the contract should be (Kummer, 1992:548).
Another subject that weakens the control
regime constituted by the Convention is the
agreements signed in accordance with the
article 11. According to this article, the parties can sign bilateral, multilateral or regional agreements or make arrangements with
the party or non-party states on the condition that they are not against the environmentally sound management of wastes
provisions of the Basel Convention. These
agreements and arrangements should be at
least powerful as the provisions of the Basel
Convention in terms of the environmentally
sound management of wastes. The second
paragraph of the article is related with the
agreements that took effect before the Basel
Convention. The parties can only implement
the agreements on that condition that they
comply with the environmentally sound management of wastes provisions of the Basel
Convention. In this case, the provisions of
Basel Convention, on the grounds of the concerned agreement, will not impinge on the
transboundary movement performed.
Article 11 has always been a source of
conflict since the Convention took effect.
Both the content and wording of the concerwww.paradoks.org
ned article has created some serious conflicts. Of course, the most important reason
is that the article refers to a serious gap with
regards to agreement regime. If the conditions in article 11 are met, the Basel Convention will not be affected by the
transboundary movement based on such agreements. This will both clear the way for the
trade with non-party states banned by the
Basel Convention and weaken the required
control regime needed by the contracting
parties.
Since the Basel Convention took effect,
the debates for more limitations over the
transboundary movement of hazardous
wastes has never been out of the agenda
(Lawrence, 1998:249). Since waste trade is
economically and politically sensitive subject, no regional or global trade ban has been
included in the text of the Convention and
the ‘prior informed content procedure’ has
actually been constituted as a consensus resolution. As a result of a pressure to introduce more strict limitations on this subject, it
was decided on the 3rd Conference of Parties
in 1995 that the Convention would be amended to include a provision of a ban on waste
transfer (SBC, 1995). This amendment became concrete with the addition of a new
provision (Article 4a) and a new annex
(Annex 7) in the Convention. In accordance
with this ban amendment, it was prohibited
to transfer hazardous wastes for the purposes of disposal and recycling from those countries in Annex 7 (EU, OECD and
Liechtenstein) to those not in Annex 7. This
decision is an important step taken to prevent the victimhood of the southern countries stemming from waste transfer, which is
the main reason behind the Convention.
Although it has been a long time since the
decisions taken in 1995, the ban amendment
has not yet taken effect. For the amendment
to take effect, it needs to be signed by the
three quarters of the contracting countries. It
has currently been signed by 70 countries.
The reason why the ban amendment has
been delayed for so long can be a=ributed to
the criticisms and to the problems likely to
come from this ban. These criticisms and
problems can be summed up as in the following (Wirth, 1998: 239; Krueger, 1999:15;
OECD, 1999: 121-132);
- The Ban Amendment has been far from
creating a consensus between the contracting parties: Countries, for their own interests, approach the subject of banning
differently. Apart from the differentiation
between the developed and developing countries, even the developing countries presumed to think that the ban is in favor of
them, approach the subject of a ban differently. For instance, such countries as
China, India, Brazil, Malaysia, Indonesia,
Philippines that have the recycling industry, do not lean towards the ban
amendment. Therefore, it is somewhat difficult to convince countries with different
self-interests to adopt the same amendment.
- Clarifying the waste definitions: since ban
amendment, unlike the original Convention, is to be applied only to hazardous
wastes, it is an important question to know
which wastes will be regarded under this
ban. In order to overcome this problem,
the Convention has added two new lists to
the existing waste lists. However, it is still
a controversial question as to under which
conditions a waste will be characterized as
a hazardous waste.
- The countries where the ban will be implemented: The ban amendment comprises
the waste trade between the north-south
countries; however, it excludes the aspects
of this trade including north-north, southnorth and south-south countries. It is one
of the principle objectives of the Basel Convention to reduce the transboundary movement of wastes and to ensure the
disposal of the waste as near as possible to
the center where it is generated. However,
it does not seem as if the ban amendment
with its current form will serve sufficiently
to fulfill the objective in question. It is
simply because, even though the ban
amendment reduces the transboundary
movement of wastes, it will lead to the
change of direction of most of this trade
(OECD, 1999: 121). These circumstances,
naturally, are interpreted as a state which
is against objectives of the Convention and
rationale of the ban.
- The relation between Ban Amendment and
article 11 agreements: It is uncertain whether it would be legal for the countries to
implement this ban in order to earn immunity from this ban and this uncertainty
weakens the power and efficiency of the
ban.
- The question of determining criteria for the
membership of Annex 7: It is a question
that has created heated debates between
the contracting parties to include new
members into Annex 7 and to determine
more specific criteria for this annex. Some
of the contracting states, in relation to the
Annex-7 membership, objected to a possible expansion claiming that adding new
countries will endanger the ban. It is a sufficient criterion for these countries to be a
member of OECD. Some of the contracting
states, on the other hand, argued that a criterion based on a membership of economic
organization like OECD could not be a
basis for a ban. It is simply because many
states that are not members of OECD have
equal technical, legal and institutional conditions just with the OECD members in
terms of the management capacity of hazardous wastes. Therefore, even though
these countries have environmentally
sound recycling facilities, they will have
been penalized by this ban with the interruption of supply of OECD. For this reason, if a country wishes to import waste
from Annex 7 countries for recycling purposes, it should be able to be added to the
Annex 7. Another drawback of limiting
Annex 7 only to OECD countries is that countries such as Monaco, Slovenia and Israel have been excluded from the
recyclable waste trade with the developed
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countries, which will eventually lead to export of the waste of those countries in
question to the developing countries for
recycling. This is a situation that creates
problems on both fronts. First of all, this
will damage the main objective of the ban
whose purpose is to protect the developing
countries from the developed one against
the import of hazardous wastes. On the
other hand, allowing this group of developed countries (those not included in Annex
7) in such as way to constitute a problem
according to rules of the World Trade Organization (WTO), to have trade with developing countries will create an
imbalance between this group of countries
and OECD members (Kummer, 1998: 230).
To state more clearly, OECD membership
is not an appropriate criterion. However,
since the debates aimed at determining
new criteria did not bear fruit, it was decided that there would be any change in the
composition of Annex 7 until the ban
amendment took effect in the 4rd Conference of Parties (SBC, 1998).
- Banning the recycling trade: Maybe the
most important problem related to ban
amendment is that it does not differentiate
between the transfers of wastes for recycling and disposal. The parties in general
are not against the ban of transboundry
trade of wastes for final disposal. However, the fact that this ban amendment includes recycling trade as well leads to
serious criticism and heated debates. As is
commonly known, since the process of
recycling amounts to the reuse of the resource, it is vitally important for the efficient
use of the resources and sustainable development. From this fact, it is argued that
the ban is in contradiction to the basic principles of sustainable development (Alter,
1997: 30). Another criticism about this subject is that ban amendment is to create an
adverse impact on the economies of those
countries with a recycling industry (Lipman, 2002: 69). Imposing such a ban countries with a recycling industry despite their
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opposition also constitutes interference
into their right of sovereignty in complying with their importing hazardous
wastes (Lipman, 2002: 71).
As a ma=er of fact, the Basel Convention
supports recycling. However, it prohibits
recycling-oriented waste trade. It is because
this trade does not take place under appropriate circumstances. For once, most of the
countries to which hazardous wastes are
transported for recycling purposes, do not
have the capacity to manage these wastes safely in terms of environment and human health. Therefore, the trade in question
constitutes a serious threat for developing
countries in terms of environment and
human health. On the other hand, allowing
for hazardous waste trade for recycling purposes is to increase sham practices regarding
waste trade and to render the ban meaningless. According to Onyerikam, the regulations regarding the recyclable wastes are
crucial in terms of preventing the sham practices of some states. Had the recyclable wastes not been included within the scope of the
ban, the parties would have avoided complying with the Convention by faking their
own hazardous wastes as recyclable ones
(Onyerikam, 2007: 11).
In a word, the Basel Convention supports
recycling, but bans waste trade for recycling
purposes. In this way, the costs of the hazardous wastes will have to be met by those
that generate them, reducing the waste production will be encouraged, the possible
transportation risks will diminish and the
developing countries will be saved from having to be exposed to this pollution. However, when we compare this ideal situation
with the existing reality, we see that we are
faced with a serious conflict rather than compliance. Due to the high costs of disposal
and their unwillingness to establish a disposal facility, it was highlighted before that developed countries opted for the choice of
transferring the wastes especially to developing countries and thus, were already against the idea of a ban. On the other hand,
most of the developing countries are against
the ban anyway. Especially countries such as
China, Brazil, India, Malaysia and Philippines that are dependent upon recycling industry are to lose their potential resources
regarding the secondary materials; hence
they will be damaged (Krueger, 1999, 15).
These realities have an adverse impact on
the effectiveness of the Convention and lead
to its weakening in favor of serving for the
interests of powerful parties rather than protecting the interests of the environment. This
particular situation can easily be seen through the provisions creating a gap in the Convention as well as the weakness in its
institutional structure.
However, it has to be accepted that the
Basel Convention today is the most comprehensive and most important international
environmental agreement regarding the hazardous wastes (Choksi, 2001: 518). Even
though the Basel Convention does not offer
any exact resolution to the problem of transboundary movement of hazardous wastes
and their safe disposal, it is an important
step taken in the right direction since it points to almost all the dimensions of the problem (Kummer, 1992: 560). The Basel
Convention that has brought the export of
hazardous wastes on the international
agenda, it has greatly supported the creation
of a political pressure on the exporting countries to put an end to their practices. All
in all, even though it is not available in the
text of the Convention, a tacit ban has been
introduced regarding the export of hazardous wastes from North to the South (Krueger, 1999: 12, 48). Nonetheless, the Basel
Convention has been criticized by some developing countries and environment organizations by a=racting public a=ention on
some of its shortcomings and drawbacks.
First of those criticisms is that the Convention has some ambiguous and indefinite provisions. The concept of environmentally
sound management and hazardous waste
lists are the most striking subjects in this context. Another criticism regarding the Con-
vention, on the other hand, is that it does not
envisage a total ban with respect to transboundary trade. As is known, regarding the
transboundary movement of the waste in the
initial text of the Convention, there is a restricted ban that includes the trade with nonparty states and the transfer of wastes to
Antarctica. The ban amendment adopted in
1995, on the other hand, comprises only
north-south dimension of waste transfer.
Therefore, Basel Convention fails to envisage
a total ban on a global scale. An important
drawback of the Convention is the insufficiency of the mechanisms envisaged to monitor, prohibit and penalize the illegal traffic
(Jurdi, 2002: 10). The main responsibility of
locating and penalizing the illegal traffic is
on the contracting countries. However, majority of the contracting countries do not
have the required capacity in this subject.
An important criticism regarding the Convention within the context of article 11 is that
waste trade is allowed through bilateral and
multilateral agreements.
Restricting the power of the Convention
Secretariat and especially its function of inspection is another drawback of the Convention. As is known, a powerful secretariat is
crucially important in the implementation of
multilateral environmental agreements and
ensuring the contracting states to comply
with them. However, it is difficult to talk
about a powerful secretariat in terms of institutional and functional aspects in the Basel
Convention. Especially, by-passing the Secretariat in the “prior notification procedure”
creates a significant gap in terms of monitoring and inspecting the waste transfer (Kummer, 1992: 562).
Another criticism directed at the Convention is that there are some missing conditions regarding the meeting of the costs of
possible accidents during the transboundary
transfer of wastes. The failure to determine
the responsible party in the case of an accident or lack of required financial resources
of the responsible party or se=ing up a response fund to meet the financial damages of
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the party suffering from the accident in the
case of an emergency are all crucially vital
issues for the Basel Convention (Choksi,
2001: 518). The other problem related to this
issue is to establish the responsible party and
to decide on the compensation. In the 4th
Conference of Parties’ held in 1999, a Protocol was adopted in respect of Liability and
Compensation. Since Liability and Compensation Protocol has not been adopted by required number of parties, it has not yet taken
effect.
Basel Convention is principally an agreement that depends upon the contracting states regarding the implementation of the
Convention. The Convention essentially determines the basic objectives and principles,
but leaves the main responsibility up to the
contracting states in their implementation.
According to the Basel Convention, all the
contracting countries are liable to fulfill the
necessary legal obligations and take the required measures to comply with it. However, the compliance of the contracting states
is a ma=er of both willingness and capacity.
Some contracting states of Basel Convention
may avoid compliance deliberately and intentionally. Some other contracting states, on
the other hand, due to financial and institutional inabilities, fail to fulfill the obligations
of the Convention. Overcoming these problems depends on the fact that the Convention has an institutional structure. However,
it is difficult to say that Basel Convention has
a powerful institutional structure. For instance, it is insufficient to detect the non-compliance of a monitoring and inspection
mechanism based on the self-reports arranged by the contracting states for themselves
(Shibata, 2003: 183-186). Article 19 of Basel
Convention entitles the contracting states to
notify the secretariat of the non-compliance
claims about one another. However, it is uncertain how this notification is to be considered. Besides, due to the reluctance of the
contracting states to express the claims of the
non-compliance about one another, it seems
to be difficult for this article to become funcwww.paradoks.org
tional. The compliance mechanism generated in 2002 in order help the contracting states to comply with the Convention, on the
other hand, is far from being an effective instrument in detecting non-compliances within the context of restricting the functions
regarding monitoring and inspection (Shibata, 2003: 186-193). On the other hand, in
the case of any non-compliance, there is no
any obligatory mechanism of disputes se=lement and enforcement that will enable to
overcome this non-compliance and oblige
the concerned party for compliance. Besides, financial and technical support and incentive mechanisms to ease the parties’
compliance with the Convention are somewhat insufficient as well. All these problems, naturally, lead to the contracting
countries to have a low level of compliance
and weaken the effectiveness of the Basel
Convention.
5. REGIONAL ARRANGEMENTS
There are many arrangements composed
regarding the management of hazardous
wastes and their transboundry control both
before and after the Basel Convention. The
arrangements made within the framework
of OECD and EU can be regarded as the pioneer arrangements that have become the
basis of Basel Convention. The agreements
made after the Basel Convention, on the
other hand, can be seen as arrangements that
support the implementation of the Convention on a regional scale. These regional agreements made for the management of
hazardous wastes and their transboundry
control are those that are assessed within the
context of the article 11 of Basel Convention.
The agreements in question also constitute,
with the Basel Convention, the basis of the
legal regime set up with regards to hazardous wastes all over the world. Main types
of these arrangements are the IV. Lome Convention composed between EU and African,
Caribbean and Pacific (ACP) states, the Bamako Convention made between the member countries of the Organization of African
Unity (OAU), the Waigani Convention made
between pacific region countries and the
Izmir Protocol as an annex of Barcelona Convention between countries with a shore on
the Mediterranean (Cubel, 1997: 450-451).
5. 1. IV. Lome Convention
In 1989, the EC and its member states,
and sixty nine ACP states concluded the Fourth Lome Convention. The Convention
came into force in 1991. The Fourth Lome
Convention is a co-operation treaty. It does
not only focus on environmental issues. It is
an aid and trade agreement between EU and
the ACP states. Nonetheless, the Fourth
Lome Convention devotes a section to environmental ma=ers; particularly, it devotes
Article 39 as well as annexes VIII, IX and X to
the issue of transboundary movement of hazardous wastes. The Fourth Lome Convention was the first binding agreement
between developed and developing nations
banning transboundary movements of hazardous waste and nuclear waste (Kummer,
1995: 107; Clapp, 1994: 513; Cubel, 1997: 458).
The agreement bans all shipment of hazardous or radioactive wastes from EC countries to ACP countries. In addition, the ACP
countries agreed not to import any wastes
from non-EC countries. The Lome Convention was the first international treaty to ban
the trade in radioactive wastes and the first
commitment by EC countries to ban hazardous waste exports. (Harjula, 2006: 468).
Fourth Lome Convention imposes imbalanced obligations on EU and ACP nations.
It prevents EU states from exporting hazardous wastes to ACP nations, but it does neither affect intra-EU hazardous waste traffic
nor EU exportation to non-ACP nations. However, Article 39 prohibits ACP nations from
directly or indirectly importing into their territory waste from the EU or from any other
nation (Cubel, 1997: 459). According the this
obligation, whereas ACP states must prohibit imports from the EU and from any other
states, EU members must prohibit export to
ACP states only, but may continue to export
to third states (Kummer, 1995: 108).
5.2. The Bamako Convention
Another arrangement on this subject is
the Bamako Convention that prohibits the
Import of Hazardous Wastes to Africa, and
Control and Management of the Transboundary Movement of Hazardous Wastes in Africa. The Bamako Convention was adopted
in January 1991 and entered into force in
April 1998. The Convention was convened
under the auspices of the Organization of
African Unity (OAU) that includes every African nation except South Africa and Morocco (Harjula, 2006: 468). The Bamako
Convention was negotiated as a result of the
dissatisfaction of African countries with the
Basel Convention and the increased transportation of hazardous wastes to the continent (Eguh, 1998: 256). Since the Basel
Convention did not ban every type of transboundary movement of hazardous waste,
African states considered it a futile legal instrument to be used by industrialized nations
to legitimize their waste exports. Therefore,
the OAU instigated the adoption of a regional treaty for transboundary movements of
hazardous waste (Cubel, 1997: 455).
The two main aims of the Bamako Convention were determined, firstly as a common commitment by African states to
prohibit the import of hazardous wastes into
the continent and secondly, the establishment of a regime for the management of hazardous wastes generated within Africa
(Kummer, 1995: 100). The text of the Bamako
Convention closely mirrors that of the Basel
Convention in some respects, but for the African countries, it is an important improvement on the la=er. It imposes an outright ban
on the import of hazardous wastes, including radioactive wastes, into African countries. The Bamako Convention also bans all
forms of ocean dumping of wastes; outlaws
the import of hazardous substances that
have been banned in the country of manufacture; and includes provisions on clean
production methods within Africa (Clapp,
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2001: 49). The Convention requires each
Party to impose strict, unlimited liability as
well as joint and several liabilities on hazardous waste generators (Eguh 1998: 257). The
scope of waste covered by the Bamako Convention is wider than that of the Basel Convention.
The Bamako Convention requires parties
to prohibit the import, for any reason, of all
hazardous and nuclear wastes from noncontracting parties. As only OAU member
states may become parties to the Convention, it amounts to a ban on imports of hazardous wastes generated outside the
African continent. However, it also prohibits
Bamako parties from importing hazardous
wastes from OAU member states which
have not acceded to the Bamako Convention
(Kummer, 1995: 101). Bamako Convention
provides a highly detailed and ambitious regime, incorporating a number of innovative
and potentially effective concepts. Its implementation, however, will require significant
technical, personnel, and financial resources.
In view of the limited capacities of most African states in this respect, the question of
successful implementation imposes itself
even more strongly than in the case of the
Basel Convention (Louka, 1994: 52).
5.3. The Waigani Convention
The Waigani Convention adopted in September 1995 and took effect in October 2001,
on the other hand, is the other regional arrangement that bans the import of hazardous wastes to the developing countries in
the Pacific region. The Parties of the Waigani
Convention are: Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati,
New Zealand, Papua New Guinea, Samoa;
Solomon Islands and Tuvalu. The objectives
of the Convention are to reduce or eliminate
transboundary movements of haz¬ardous
and radioactive wastes into and within the
Pacific region; to minimize the production of
hazardous and toxic wastes in the Pacific region; to ensure that disposal of wastes is
done in an environ¬mentally sound manner
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and as close to the source as pos¬sible; and
to assist Pacific island countries that are Parties to the Convention in the environmentally sound management of hazardous and
other wastes that they generate (Harjula,
2006: 469; SPREP, 2008).
According to general obligation of the
Conventions, Parties should ban the import
of hazardous and radi¬oactive wastes. They
should minimize the production of hazardous wastes and cooperate to ensure that
wastes are treated and disposed of in an environmentally sound manner. The main contribution of the Convention is the
establishment of a system to prevent hazardous and radioactive waste entering or
being dumped in the region.
5.4. The Barcelona Convention and Izmir
Protocol
Nineteen countries in the Mediterranean
region agreed in late 1993 to negotiate a protocol banning the waste trade within the framework of the existing Barcelona
Convention for the Protection of the Mediterranean Sea against Pollution (1975). This
agreement came following a decision in 1991
of the parties to the Barcelona Convention to
establish a working group of experts to draft
this protocol. The result was the Protocol on
the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of
Hazardous Wastes and Their Disposal,
known as the Izmir Protocol, which was
adopted in 1996 in Izmir, Turkey. The protocol came into force in 2008. The protocol calls
for protecting of the Mediterranean Sea from
hazardous waste by banning the trade and
transit of hazardous wastes and their disposal (including wastes destined for recycling)
between industrialized and developing countries in the region (Clapp, 2001: 50).
The protocol incorporates aims and provisions similar to those of the Basel and Bamako Conventions. It calls for prohibition of
hazardous waste export from developed to
developing countries within the Mediterranean region, but does not explicitly ban the
import of hazardous wastes from non-parties into the region.
CONCLUSION
Transfer of hazardous wastes to developing countries, far from being an environmental problem, has long been on the
agenda of the international community as an
economical and political problem. Waste
trade, before anything else, is a problem that
has to be considered multidimensionally, is
sensitive and has dilemmas. Firstly, the
problem in question triggers inequalities
and tensions existing between the north and
south countries. Secondly, waste trade has a
direct impact on the economical interests of
countries. Thirdly, this problem brings
along the conflict between the arrangements
that imposes some commercial restrictions
with the intent of environmental protection
and free trade rules. Finally, restricting
waste export and import brings up the conflict between the international rules aiming
at protection of the environment and the sovereignty rights of countries to the agenda.
The multidimensional and complex nature of this problem necessarily complicates
the resolution of this problem as well. These
arrangements to be composed regarding the
waste trade should, firstly, balance off these
dilemmas. This necessity prevents the arrangements in this subject from generating
powerful resolutions aimed at the crux of the
problem and leads to arrangements that will
offer consensus solutions balancing off sensitive self-interests. It is really observed that
the basic arrangements in this subject have
introduced only limited or partial bans. For
instance, in the EU and OECD arrangements, even though waste transfer for the
purpose of final disposal has been banned,
it is observed that waste transfer for the purpose of recycling is clearly supported. Although Basel Convention, the principle
arrangement in this subject, does not discriminate between the waste transfer for the
purpose of final disposal and recycling, it
still envisages a partial ban on waste trade.
In the initial text of Basel Convention, only
waste trade with the non-contracting states
and transfer of wastes to Antarctica was banned. However, Article 11 of the Convention
creates a serious gap with regards to banning waste trade with non-contracting states. The ban amendment adopted in 1995,
on the other hand, only encompasses the
north-south dimension of waste trade, but
has not taken effect yet. In the regional trade
regimes comprised of African countries together with Pacific countries, it is generally
observed that unilateral bans focusing on export or import have been adopted. On the
other hand, monitoring, inspection and sanction mechanisms of both Basel Convention
and other regional arrangements have been
extremely weak. Therefore, it is difficult to
state that the arrangements in question have
the capacity and power to ban the transport
of waste to developing countries.
The basic issue that leaves the problem of
illegal dumping of wastes to developing countries unse=led is the pressure that the
waste trade for recycling should continue.
As is known, there has been a ban, even though tacit, on banning the transfer of wastes
to developing countries for final disposal
and countries in general are not against this
ban. However, especially developed countries and the developing countries with a
recycling industry are against banning of
recyclable wastes. However, allowing this
trade is likely to increase fake practices.
Some states, by this way, may get away with
avoiding the ban by labeling their own wastes as recyclable material. However, recycling
practices
performed
under
inappropriate conditions are likely to create
consequences that are at least as adverse as
disposal process. Besides, only as small part
of the waste, as it is mostly the case, is recycled and the remaining part requires final disposal. This is mostly the case with e-waste
trade. These wastes have posed a serious
threat for the countries where they have
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tion has included the waste trade done for
recycling within the ban coverage. There is
one point that needs to be highlighted here
that this trade is unlike any other trade available in the market. This, in essence, is a
trade based on taking advantage of the disadvantaged groups (Shin-Strohm, 1993:
237).
However, a ban regarding the export of
hazardous wastes will have an adverse impact on the economies of those countries
with a recycling industry and cost thousands
of jobs there. There is an undeniable dilemma here; the justice of banning the export
of hazardous wastes that seriously harms
those people in the developing countries and
the reality of engendering the livelihood of
those people (Lipman, 2002: 71). Lipman has
taken up this problem in his article within a
framework which he considers as “dirty dilemma”. Accordingly, developing countries
will suffer either from pollution or from poverty. Even though this reveals severity of
the problem, it is a superficial explanation.
In fact, the issue goes deeper that it looks.
After all, the cost of ge=ing rid of poverty
should not be having to put up with pollution. Besides, the pollution in question is not
simple ma=er of contamination either. It
amounts to irrecoverable deterioration of
human health and environment through the
poisoning of water, soil and air; and it may
even be a sign of the loss of future generations. The main conflict in this dilemma is
the unjust nature of the existing economic
system that exposes the developing countries to poverty and to pollution together
with poverty. The arrangements, aimed at
preventing the illegal transfer and dumping
of wastes from developed to developing countries, are not capable of overcoming this
injustice within the environmental scope.
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ALTER, Harvey (1997) “Industrial Recycling
and The Basel Convention”. Resources,
Conservation and Recycling. 19. pp. 29–
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BAN – Basel Action Network (2011)
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CHOKSI, Sejal (2001) “The Basel Convention
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Disposal: 1999 Protocol Liability and
Compensation”. Ecology Law Quarterly. Vol. 28: 509. ss. 509–539.
CLAPP, Jennifer (2001) “Toxic Exports: The
Transfer of Hazardous Wastes From
Rich to Poor Countries”. Cornell University Press. USA.
CLAPP, Jennifer (1994) “The Toxic Waste
Trade With Less-Industrialized Countries: Economic Linkages And Political
Alliances”. Third World Quarterly. Vol
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CUBEL, Pablo (1997) “Transboundary Movements of Hazardous Wastes in International Law: The Special Case of The
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