venerdì, Marzo 29, 2024
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The “Ban Amendment”: tackling environmental crime

1. Introduction

On 5 December 2019, after 24 years from its adoption, the so-called “Ban Amendment”[1] to the Basel Convention entered into force. The amendment required 66 signatures and ratifications to enter into force. Efforts to gather political consensus to reach the required threshold included a multi-year country-led initiative by Indonesia and Switzerland launched in 2011.

The Basel Convention, adopted in 1989 and entered into force in 1992, is the main multilateral environmental agreement that aims to protect human health and the environment from the adverse effects arising from the generation, management, movement and disposal of hazardous and other wastes. The Convention, negotiated under the auspices of the United Nations Environment Programme, was adopted to tackle the export of wastes from industrialized countries to developing countries[2].

2. The Basel Convention and the transboundary movement of waste

Wastes are defined by the Convention as “substances or objects which are disposed of or are intended to be disposed of or are required to be disposed by the provisions of national law[3]. For the purposes of the Basel Convention, hazardous wastes are those included in Annexes I and III to the Convention, and those defined as such, or considered to be hazardous, by the domestic legislation of the state of import, export or transit[4].

However, the distinction between hazardous wastes and “other wastes” has no practical relevance for the purpose of the application of the Convention to the transboundary movement of waste. Indeed, transboundary movement is defined by the Convention as “any movement of hazardous waste or other waste from an area under the national jurisdiction of one State to or through an area under the national jurisdiction of another State or through an area not under the national jurisdiction of any State, provided at least two States are involved in the movement[5].

The transboundary movement of waste is regulated by Article 4 of the Convention. The cross-border movement of wastes is not permitted in the following cases: (i) if a Party has exercised its right to prohibit the import of hazardous and other wastes pursuant to Article 4(a); (ii) if a group of States, belonging to an economic and/or political organization, has prohibited the import of hazardous wastes by national legislation[6]; (iii) if there is “reason to believe that the wastes in question will not be managed in an environmentally sound manner”[7]; and (iv) between Parties and non-Parties to the Convention[8].

Exports of hazardous wastes to states parties that have not implemented an import ban can take place if they comply with the general obligations outlined in the Convention, and if the exporting state has obtained the unconditional and written consent of the state of export, and any other state of transit. In particular, the hazardous waste subject to transboundary movement must be disposed of in an environmentally sound manner[9]: the obligation to make sure that the waste will be disposed of safely is allocated to the generating state and cannot be transferred to the importing or transit state[10]. Thus, the generating state cannot allow the export of wastes if it has reason to believe that they will not be disposed of safely and in an environmentally sound manner[11]. Correspondingly, the state of import must prevent the import of hazardous and other wastes if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner[12].

The transboundary movement of wastes with other Parties, including non-Parties, is allowed by Article 11, which bestows upon Parties the right to enter into bilateral, multilateral or regional agreements with these other parties, provided that these agreements contain provisions not less environmentally sound than those of the Convention[13].

3. The “Ban Amendment”

The Parties to the Basel Convention, at the second meeting of the Conference of the Parties in 1994, adopted Decision II/12 that prohibited all transboundary movements of hazardous wastes which are destined for final disposal from OECD to non-OECD States.

Subsequently, at the meeting of the Conference of the Parties to the Basel Convention held in 1995, the Parties adopted Decision III/1 (the “Ban Amendment”), which requires Parties listed in Annex VII (members of the OECD, the European Union and Liechtenstein) to prohibit all transboundary movements of hazardous wastes to States not listed in Annex VII[14].

From now on, Parties which are not members of the OECD or the European Union have at their disposal a legally binding instrument to require Parties listed in Annex VII to abide by the Ban Amendment and make sure that hazardous waste is not exported to developing countries for final disposal.

Any transboundary movement of waste undertaken in contravention of the Basel Convention and other principles of international law and with the prior informed consent procedure is labelled as illegal traffic[15], which is considered criminal under the terms of the Convention[16]. If the illegal traffic has occurred as a result of the conduct of the exporter or generator, the state of export must take back the waste, or, if impracticable, dispose of the waste in accordance with the Convention, within 30 days from the time the state of export has been informed about the illegal traffic[17]. If the conduct is attributable to the importer or the disposer, the state of import must ensure that the wastes are disposed of in an environmentally sound manner, within 30 days from the time the conduct has come to its attention[18]. In those cases where the responsibility for the illegal traffic cannot be assigned, the Parties must ensure, through cooperation, that the wastes are disposed of in an environmentally sound manner as soon as possible where possible and appropriate[19].

4. Conclusions

Globally, the entry into force of the Ban Amendment has significant political weight, acting as a milestone for the international efforts to ensure that developed countries take the responsibility for the environmentally sound management of the hazardous waste generated within their borders, while still allowing developing countries to receive waste intended for recovery or recycling if they wish so.

This is all the more important considering that the European Union (“EU”) is one of the main players in the global waste trade market. In 2016 alone, the European Union exported 40 million tonnes of waste to non-EU countries, amounting to almost 20% of the global export of waste[20]. However, these numbers do not take into account the illegal and unreported waste trade, which is a major source of profits for organised crime groups and constitutes one of the most serious forms of environmental crimes. This is particularly significant in the case of plastics and e-waste, shipped from the EU to Africa and South-East Asia.

Enforcement will be now key for effectively ensuring that hazardous waste is not shipped towards countries that do not have the capacity and the technologies to appropriately manage this kind of waste.

The views expressed in this article are mines only.

[1] UNEP, Decision III/1 Amendment to the Basel Convention, Third Meeting of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, September 18-22 1995.

[2] http://www.basel.int/TheConvention/Overview/History/Overview/tabid/3405/Default.aspx.

[3] Article 2(1), Basel Convention.

[4] Article 1(a) and (b), Basel Convention.

[5] Article 2(3), Basel Convention.

[6] Article 4(2)(a), Basel Convention.

[7] Article 4(2)(e), Basel Convention.

[8] Article 4(5), Basel Convention.

[9] Article 4(8), Basel Convention.

[10] Article 4(10), Basel Convention.

[11] Article 4(2)(e), Basel Convention.

[12] article 4(2)(g), Basel Convention.

[13] Article 11, Basel Convention.

[14] UNEP, Decision III/1 Amendment to the Basel Convention, Third Meeting of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, September 18-22 1995.

[15] Article 9 (1), Basel Convention.

[16] Article 4(3), Basel Convention.

[17] Article 9(2) (a) and (b), Basel Convention.

[18] Article 9(3), Basel Convention.

[19] Article 9(4), Basel Convention.

[20] Commission Staff Working Document, “Leading the Way to a global circular economy: state of play and outlook”, 11 March 2020.

Selma Abdel-Qader

Laureata in Giurisprudenza all’Università di Bologna nel 2013 con 110 e lode con tesi in diritto internazionale, consegue nel 2016 doppio Master in Diritto Internazionale alla Facoltà di Legge dell’Università di Georgetown e in Politiche Ambientali alla Scuola di Affari Internazionali di Parigi - SciencesPo. Ha completato tirocini al Tribunale Speciale per il Libano a L’Aia, al Center for International Environmental Law a Washington D.C. e alla Commissione Europea a Bruxelles. Ha lavorato per due anni in quanto consulente per compagnie multinazionali, associazioni di imprese e organizzazioni non governative in una compagnia di public affairs e comunicazione a Brussels, specializzandosi in sostanze chimiche, economia circolare, sostenibilità, product design, settore tessile, commercio internazionale e diritti umani. È iscritta all'Ordine degli Avvocati di Bologna da Ottobre 2020 e, da gennaio 2021, all'Ordine degli Avvocati di Bruxelles in quanto avvocato stabilito. Lavora come Associate presso Fieldfisher LLP., a Bruxelles, nel dipartimento EU Regulatory, Competition and Trade, dove si occupa della legislazione europea in materia di sostanze chimiche, prodotti fitosanitari, legislazione sul prodotto e dispositivi medici.

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