MODERNIZATION APPROACHES TOWARDS INTERNATIONAL ENVIRONMENTAL LAWS – REGARDING THE BASEL CONVENTIONON TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES

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ABSTRACT

“At its core, the issue of a clean environment is a matter of public health” .

–Gina McCarthy.

As the International laws are related with the inter state relations with the main core principle of Promotion of Human and Human rights. As reflecting the principle of the International laws, Article 21 of the Indian constitution indicates the decent standard of living and also a pollution free Environment. This paper highlights the research trends and need for the modernization of the Environmental laws not only towards the promotion of humans but also the Environment, where we Live. As precisely about the Basel convention which commands for a modern approach in the efficient prevention of flexibility of export opportunities to the developed nations, which continues with the reduction of ambiguity in terminologies (waste & hazardous) and the unfair influence of the developed nations on the application and ratification of the convention which also includes keeping the export flexibility and also not allowing the complete ban on some selected hazardous wastes which doesn’t include radioactive wastes. Because of these drawbacks in the conventions it affects the less developed countries which import the wastes for recycling and its end in causing Environmental pollution and adversely affects and moreover threats to humans health. The basic idea of the research is to provide prospects for the modernization towards prevention of transboundary movements of Hazardous wastes and their disposal which affect human health and environment. Not only Hazardous wastes, even the normal waste management in favour of the environment is a global issue which needs time to time approaches for the modernising world.

Keywords : Environment, Hazardous Waste, Basel Convention, Modernization, Human

Health.

INTRODUCTION

“Beauty is in the eyes of the beholder.” What this simply means is that perception generally means a lot. This may be why there is so much difficulty in defining the “simple” term “waste”, leave alone its exotic variation, “hazardous waste”. Hazardous wastes are discarded materials that can damage human health or the environment and it includes wastes that contain heavy metals, toxic chemicals, infectious medical wastes, electronics, plastics, and corrosive, flammable, explosive, or radioactive substances. Due to the innovation of technology, the production of goods and services, hazardous wastes have begun to rise in the developed countries. Subsequently the environmental awareness and corresponding tightening of environmental regulations in the industrialised world has led to increasing public resistanceto the disposal of hazardous wastes. Industrialised countries generate most of this waste, but quantities have increased rapidly in many developing countries. Most hazardous waste remains in the country where it was produced, but some is shipped across international boundaries for disposal or recycling too. Waste ‘out of sight’ is often ‘out of mind’ and usually is desirable elsewhere but ‘not-in-my-backyard’.

In order to prohibit the export of hazardous waste to developing nations, one of the most important multilateral environmental conventions adopted in 1989, was entitled, “the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal”. The first comprehensive attempt over 116 nations endorsed at regulating hazardous waste came with the drafting and adoption of the Basel Convention to control the transboundary movement and disposal of hazardous waste (Basel Convention or Convention). The transboundary movement of waste consists of various waste streams governed by a patchwork of national, regional and international laws. There is currently no reliable estimate for the amount of all waste categories that cross international boundaries for disposal. Notably, countries that lack the capacity for sound management of their own waste are included among the destinationsof transboundary waste exports.

OVERVIEW OF BASEL CONVENTION

In an effort to assist governments to develop a ‘cradle to grave’ system of “environmentally sound management” of hazardous wastes, United Nations Environmental Program (UNEP) adopted certain guidelines, known as the “Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes” in 1987. The Cairo Guidelines were merely guidelines. They were non-binding even upon the States that adopted the principles embodying it. After about two years of tough negotiations, the Basel Convention was born with its highly ambitious goals of establishing rules and procedures in law for governing the transboundary movements and disposal of hazardous wastes.

The Basel Convention on the Control ofTransboundary Movements of Hazardous Wastes and their Disposalwas adopted on 22 March 1989 bythe Conference of Plenipotentiaries in Basel, Switzerland, in response toa public outcry following the discovery, in the 1980s, in Africa and other parts of the developing world of deposits of toxic wastes imported from abroad. The Convention entered into force on 5 May 1992 and, as of 1January 2011, there are 175 Parties to the Convention. The overarching objective ofthe Basel Convention is to protect human health and the environment against theadverse effects of hazardous wastes. Its provisions of the Convention centre aroundthe following principal aims,

(i) the reduction of hazardous waste generation and the promotion of environmentally sound management of hazardous wastes, wherever theplace of disposal;

(ii) the restriction of transboundary movements of hazardous wastes except where it is perceived to be in accordance with the principles of environmentally sound management; and

(iii) a regulatory system applying to cases where transboundary movements are permissible.

THE ADVENT OF THE INTERNATIONAL WASTE CONVENTION

Before the Convention, hazardous waste was governed by the international principle of “good neighbourhood” or “Sic utere tuo, ut alienum non leaders.” This principle holds that states must control activities within their jurisdiction to ensure that those activities do not harm the resources of other states. This principle is very broad, unspecific, and, before the Convention, there was virtually no enforcement mechanism for its violation. Although this principle became customary international law, due to the difficulty of enforcing it, a dedicated international instrument for dealing with the sensitive issue of transboundary movement of hazardous waste became essential. Global cooperation is critical to dealing with such international transactions. To maintain the delicate balance of justice between developed and developing countries, the Basel Convention of the Transboundary Movement of Hazardous Waste was adopted in 1989. Despite fierce objections by many developed countries, the Convention was adopted with an overwhelming majority of the developing and leastdeveloped countries on March 22, 1989, and finally entered into force in 1992 upon the deposit of the twentieth instrument of accession.

FORMATION OF INTERNATIONAL CONVENTION (BASEL CONVENTION)

In August 1986, a ship carrying 15,000 metric tons of toxic incinerator ash departed Philadelphia, Pennsylvania19 after other U.S. states refused to take accept the waste (for cash) because they were suffering from the same problem of expensive landfills20. The owner of the ship tried to dispose of the waste in the Bahamas, but while the ship was on route, the island nation, realising the cargo’s toxicity, rescinded its offer to unload the waste. The ship carrying the load of toxic ash then attempted to offload at the ports of Bermuda, Puerto Rico, the Dominican Republic, Honduras, and the Netherlands Antilles; all ports denied it permission. Turning back from these countries, the ship managed somehow to unload 4,000 tons of ash in Haiti on the pretence that it was fertiliser.

Upon realising the deception, Haiti immediately returned the ash, and the ship then headed to the east coast of Africa, hoping to discharge the rest of the toxic waste in Cape Verde, Guinea-Bissau, or Senegal. But, again, the ship was refused. The vessel then began an uncertain journey to far East Asia, with the hope of disposing the load at the ports of Borneo, Indonesia, or the Philippines. All ports denied the load. The ship then travelled south, attempting to dump in Sri Lanka, who also rejected it. After a twenty-seven month world tour21 by sea with successive refusals by dozens of poor countries in different continents across the world, the saga ended22. The ship arrived in Singapore empty, with 11,000 tons of garbage missing somewhere at high sea in the Indian Ocean23. Surprisingly, the vessel was thereby able to manage the best deal at no cost of its own. This case shows a grave inadequacy of international legal instruments in dealing with the control of hazardous waste moving across borders and being disposed of in places other than its point of origin.

OTHER CONVENTIONS AND AGREEMENTS

The Basel, Rotterdam and Stockholm Conventions are multilateral environmental agreements international treaties that address hazardous waste and chemicals management. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal was adopted in 1989 to control the movement of hazardous waste between countries. The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade was adopted in 1998 to promote shared responsibility and cooperative efforts among parties in the international trade of certain hazardous chemicals. The Stockholm Convention on Persistent Organic Pollutants (POPs) is a global treaty to protect human health and the environment from highly dangerous, long-lasting chemicals by restricting and ultimately eliminating their production, use, trade, release and storage. Exposure to POPs can lead to serious health effects, including certain types of cancer, birth defects, developmental problems, dysfunctional immune and reproductive systems, and greater susceptibility to disease24. And also, The United States is party to major international waste agreements and established separate agreements for importing and exporting mainly hazardous waste with Canada, Mexico, Costa Rica, Malaysia, and the Philippines.

Canada

The bilateral agreement between Canada and the United States was established in 1986 and amended in 1992. It addresses the transboundary movement of hazardous waste, municipal solid waste (MSW), and ash from the incineration of MSW between the two countries for recycling or disposal. The bilateral agreement, among other goals, seeks to provide bothcountries with safe, low cost options for managing waste for which there is either a lack of domestic capacity or the technology to appropriately manage the waste. In addition to the bilateral agreement discussed above, the United States and Canada established a bilateral arrangement in late 2020 to address the transboundary movement of non-hazardous scrap and waste between the two countries for environmentally sound management. Under this bilateral arrangement, transboundary movements of non-hazardous scrap and waste, including the non-hazardous plastic scrap and waste covered by Basel listing Y48 are not subject to prior notice and consent requirements when subject to transboundary movement between the two countries and destined for environmentally sound management in either country.

Mexico

The bilateral agreement between Mexico and the United States was established in 1986 and amended in 2012. It addresses the transboundary movement of hazardous wastes from Mexico to the United States for recycling or disposal, and the transboundary movement of hazardous wastes from the United States to Mexico for recycling only. The changes in 2012 were made to:

1. Allow for the electronic transmission of notifications.

2. Remove the requirement for sending the notifications through diplomatic channels for

both U.S. hazardous waste exports to Mexico and hazardous waste imports from

Mexico into the U.S.

3. Reduce the review time of notifications from 45 to 30 days.

Costa Rica, Malaysia, and the Philippines

Costa Rica, Malaysia and the Philippines have separate bilateral agreements with the United States. The United States may receive waste for recycling or disposal from Costa Rica, Malaysia, and the Philippines, but may not export waste to these countries.

● The Agreement Between the Government of America and the Government of Malaysia Concerning the Transboundary Movement of Hazardous Wastes from Malaysia to the United States (1995)

● The Agreement on the Transboundary Movement of Hazardous Waste from Costa Rica to the United States (1997)

● The Agreement Between the Government of the United States of America and the Government of the Republic of the Philippines Concerning the Transboundary Movement of Hazardous Wastes from the Philippines to the United States (2001)

OBLIGATION OF BASEL CONVENTION

The Basel Convention is an international treaty that addresses the control and management of hazardous waste. It places several obligations on its member countries with the aim of minimising the movement and disposal of hazardous waste, thereby reducing its impact on human health and the environment. One key obligation of the Basel Convention is the requirement for member countries to control the transboundary movement of hazardous waste. This involves the establishment of a national regulatory framework to track and manage the export, import, and transit of hazardous waste. Member countries are obligated to implement procedures for notification, consent, and re-import of hazardous waste shipments, ensuring that such movements are conducted in an environmentally sound manner. Furthermore, the Convention obligates member countries to properly manage and dispose of hazardous waste within their own territories. This includes the development and enforcement of regulations for the environmentally sound management of hazardous waste, as well as the promotion of waste minimization and recycling efforts to reduce the generation of hazardous waste. It emphasises the importance of cooperation and information exchange among member countries. It encourages the sharing of technical know-how and best practices in the management and disposal of hazardous waste, as well as the facilitation of technology transfer and capacity-building initiatives to support developing countries in establishing effective waste management systems.

The Convention addresses the issue of illegal traffic of hazardous waste by requiring member countries to take necessary measures to prevent and combat such illicit activities. This can involve the implementation of stricter enforcement mechanisms, as well as international cooperation to address instances of illegal waste dumping or trafficking. Overall, the obligations of the Basel Convention underscore the collective responsibility of member countries to effectively manage hazardous waste, prevent its harmful effects on human health and the environment, and promote sustainable waste management practices. By upholding these obligations, member countries contribute to the global effort to safeguard public health and the environment from the adverse impacts of hazardous waste. Some obligations of basel convention are;

1. Compliance and Enforcement Mechanisms: Ensures that its member countries comply with its regulations and the mechanisms in place for enforcement.

2. Waste Classification and Management: Investigating how the Basel Convention categorises hazardous waste and the obligations of member states to manage and dispose of such waste in an environmentally sound manner.

3. Legal and Regulatory Framework: Analysing the legal and regulatory obligations that member countries have under the Basel Convention and how these obligations are implemented at the national level.

4. Transboundary Movement of Hazardous Waste: Examining the obligations and responsibilities of countries when it comes to the transboundary movement of hazardous waste, including notification and consent procedures.

5. Technology Transfer and Capacity Building: Discussing the provisions within the Basel Convention that aim to facilitate the transfer of environmentally sound technologies and build the capacity of member states to manage hazardous waste.

WEAKNESS OF BASEL CONVENTION

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal has been a significant international agreement aimed at addressing the management of hazardous waste. However, like any complex international treaty, it has its weaknesses and areas for improvement. One weakness of the Basel Convention is related to its limited enforcement mechanisms. While the convention outlines various obligations for its member countries, it lacks a robust system for monitoring and ensuring compliance. As a result, some member countries may not fully adhere to the provisions, leading to inadequate management and disposal of hazardous waste.

This can result in environmental and health risks, particularly in regions where regulatory oversight is weak or where there are economic incentives to circumvent the rules. Another weakness is the challenge of addressing the growing complexity and diversity of hazardous waste streams. The convention was established in a time when the types and volumes of hazardous wastes were different from what they are today. With advancements in technology and changes in production processes, new types of hazardous wastes have emerged, presenting challenges in effectively categorising and managing these evolving waste streams. Furthermore, the Basel Convention’s reach and impact may be limited by the lack of universal participation. Not all countries are signatories to the convention, and even among those that are, implementation and enforcement can vary widely. This fragmented approach can hinder the effectiveness of the convention in achieving its goals on a global scale.

Additionally, the convention’s focus on transboundary movements of hazardous waste may not fully address the issue of domestic hazardous waste management within countries. While controlling transboundary movements is important, effective management and disposal of hazardous waste within national borders are equally critical. Without robust regulations and infrastructure for domestic hazardous waste management, there may be gaps in addressing the full lifecycle of hazardous waste.The Basel Convention has played a crucial role in promoting international cooperation and setting standards for the management of hazardous waste; it faces challenges related to enforcement, evolving waste streams, universal participation, and domestic management. Addressing these weaknesses will require ongoing dialogue, collaboration, and potential adjustments to the convention to ensure that it remains effective in addressing the complex and dynamic issues related to hazardous waste management.

DRAWBACKS OF THE BASEL CONVENTION

The Basel Convention is an international treaty, signed in 1989, designed to prevent the movement of hazardous waste from developed to developing countries. About 20 years later, countries like Malaysia are still having to deport containers of waste smuggled to illegal recycling facilities back to rich countries, refusing to become the ‘garbage dump of the world’. Where did it go wrong? While it does not place a complete ban on the shipment of waste, the treaty aims to reduce the generation of hazardous waste and promoteenvironmentally-friendly management of this waste, wherever it is disposed of. It also aims to regulate and ensure that this transboundary movement of waste is minimised and occurs consensually to reduce its impact on human health and the environment of the importing country as much as possible. First, it is important to closely examine the language that is used to outline the constraints and rules that exporters of waste must follow. The Ambiguous language allows exporters to identify loopholes in the Basel Convention and continue their exporting of toxic waste to developing countries without it being technically illegal. Due to lack of uniformity in definitions of terminology such as ‘hazardous’ and ‘waste’, the requirements are left up to interpretation of the individual nation state. This gives exporters the flexibility to exploit this in a manner in which they can continue their exporting of waste to developing countries under the pretenc of it being ‘commodities’.

In this way, more toxic waste ends up in developing countries where it is picked apart by local workers, affecting their and the surrounding environment’s health and The exporters are allowed to ship their waste to developing countries by saying that it is being sent there to be recycled instead of just being dumped. This is termed ‘sham’ recycling and is another way for hazardous waste to be traded legally. It is also extremely important to note that the majority of those developing countries and environmental NGOs voted for a complete ban on the transfer of hazardous waste while the developed countries preferred a more flexible approach. Because richer countries historically have more political pull, the decision was ruled in their favour, leaving the developing countries to deal with the problems that arise from hazardous waste being shipped to their shores while exporters continue to find loopholes in the system.

ENVIRONMENTAL POLLUTION AND ITS PREVENTION

Environmental pollution occurs because imported waste was improperly managed and dumped indiscriminately, leading to poisoned land, polluted water, and dirty air, which resulted in severe health problems. In most cases, importing countries do not have sufficient recycling technological capabilities, resulting in the dumping of refuse in fields and wastelands which inturn affects the humans who take part in the cleaning and the recycling process and all the living things around them and Impacts on the environment can be just as devastating: killing organisms in a lake or river, destroying animals and plants in a contaminated area, causing major reproductive complications in animals, or otherwise limiting the ability of an ecosystem to survive. Certain hazardous substances also have the potential to explode or cause a fire, threatening both animals and human populations. Some hazardous substances produce toxic effects in humans or the environment after a single, episodic release. These toxic effects are referred to as acute toxicity. Other hazardous substances produce toxic effects in humans o the environment after prolonged exposure to the substance, which is called chronic toxicity. Hazardous waste has enormous impacts on the environment. Air, soil, water and wildlife and it’s health are all affected by the amounts of hazardous waste generated every day by business and industrious countries.As the illegally exported wastes is being imported into the developing countries certainly not for recycling instead for dumping.

PREVENTION

The highest priority for pollution prevention is source reduction, followed by recycling, treatment and disposal. Source reduction includes the use of environmentally friendly products and purchasing only the amounts needed. Recycle whenever possible for paper, tires, oil and other products as markets become available. Treatment includes, but is not limited to, stabilisation, neutralisation and evaporation. Disposal must be accomplished through the established hazardous waste program at the College that ensures the wastes are properly handled and taken to a permitted facility.Apart from all the measures for sustainable use of resources, it’s the time we must look into better waste management systems since it is potentially harmful to environment and human health if not treated well.

MODERNISATION APPROACHES AND SUGGESTIONS

As modernising refers to invention of new things and exactly making new changes in the already prevailing things. So here the prevailing Basel convention on the prevention of transboundary movements of hazardous wastes needs modernization,as per its theme it needs to work so as to ensure it more effectively. Firstly a significant and the basic thing in conventions , legislation is the righteous choice of words and definitions in which it can be interpreted to get a precise and clear meaning and as a rule is the place where the basel convention lacks so the suggestion is that the language and the definitions used in the convention needs amendment especially the main words “waste” and “Hazardous” need to be defined properly in a way in which it can’t be flex and let it’s own member nations to interpret in a way in which they want as favorly.In addition to that in the definitions of wastes the radioactive waste which is a high form of Hazardous wastes need to be included in the definition.As to effectively prevent the export of wastes by developed country to developing countries the convention needs strict standards and regulations regarding the movements of wastes instead it don’t even specialises any important waste management and Environmentally sound management of wastes .

The interpretation are left up to the individual nations which is the main thing need to be changed in the convention.As the main aim of the convention needs to be complete ban on transboundary movements of Hazardous wastes instead it vaguely talks about the minimising the generation of Hazardous wastes and also the management.As it’s about the transboundary movements of hazardous wastes it also needs to talk about the sound management and transportation of wastes domestically and inside the nation borders.The convention need to work on the intention to help and improve the Environment and the health of the humans involved in the process and thus create awareness amongst all the developing nation about the illegal dumping of wastes in their country.Following all these it need to create a provision which allows the developing nations to have bilateral and multilateral treaties with other developing nations.Radioactive Wastes & Wastes derived from normal operations of the ships are excluded from the list of hazardous wastes of Basel Convention till now after so many years have been passed still these wastes are not included in the definitions and these need to be added this shows the irregular management and careless implementation of the convention.

The convention needs to have a great management system in the tracking and movement of hazardous wastes and in turn it should make provisions where each and every member nations have to keep an eye on the industries and the generation of wastes. Waste is not only a nation issue it’s a global issue which needs time to time changes and approaches.

CONCLUSION

Though all the nations have deployed an array of Environmental Protection laws our planet continues to experience a lot of uncommon environmental crises. Why does this still continue to happen ? This paper has dealt with the common issue which is not unity among all the countries each and every individual nation only have a one sight on their economic development and environment instead it all need to work together to promote and provide all living things the life they deserve on earth.So the paper highlighted research trends and need for the modernization of the Environmental laws not only towards the promotion of the humans but the Environment where we live.As precisely about the Basel convention on the transboundary movement of Hazardous wastes which commands for a modern approach,in the efficient prevention of flexibility of export opportunities to the developed nations,which continues with the reduction of ambiguity in terminologies like (waste & hazardous) and the unfair influence of the developed nations on the application and ratification of the convention which also includes keeping the export flexibility and also not allowing the complete ban on some selected hazardous wastes which doesn’t include radioactive wastes.As what is the motive is that prevention of Environment and the people.

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