Transboundary shipments of hazardous waste for recycling and recovery operations

Stanford Journal of International Law

Volumn 34, Issue 2, 1998, Pages 219-285

  Gudofsky, Jason L ^a,b,c,d  

^a YORK UNIVERSITY   (Canada)

^b UNIVERSITY OF WESTERN ONTARIO   (Canada)

^c Stikeman ^*  (United States)

^d Corp and Competition Law Depts ^*

Author keywords

[No Author keywords available]

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EID: 0032394532     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (394)

1. Until around 1985, few shipments of hazardous wastes were made from higher-income countries (HICs) to lower-income countries (LICs). Before that time, generators had very little incentive to search for foreign sites for disposing their wastes because the cost of domestic disposal was not yet prohibitively high and there was a general lack of transportation options. See David J. Abrams, Regulating the International Hazardous Waste Trade: A Proposed Global Solution, 28 COLUM. J. TRANSNAT'L L. 801, 807 (1990); Maureen T. Walsh, The Global Trade in Hazardous Wastes: Domestic and International Attempts to Cope with a Growing Crisis in Waste Management, 42 CATH. U. L. REV. 103, 103-04 (1992).
2. Until around 1985, few shipments of hazardous wastes were made from higher-income countries (HICs) to lower-income countries (LICs). Before that time, generators had very little incentive to search for foreign sites for disposing their wastes because the cost of domestic disposal was not yet prohibitively high and there was a general lack of transportation options. See David J. Abrams, Regulating the International Hazardous Waste Trade: A Proposed Global Solution, 28 COLUM. J. TRANSNAT'L L. 801, 807 (1990); Maureen T. Walsh, The Global Trade in Hazardous Wastes: Domestic and International Attempts to Cope with a Growing Crisis in Waste Management, 42 CATH. U. L. REV. 103, 103-04 (1992).
3. Although the desire to maximize wealth is probably universal, the discussion here focuses on the HICs, which generally are members of the Organization for Cooperation and Economic Development (OECD). HICs account for more than 95% of the global production of hazardous wastes. See Report of the First Meeting of the Conference of the Parties to the Basel Convention, at 2, U.N. Doc. UNEP/CHW. 1/24 (1992) [hereinafter Report of the First Conference].
4. Generally, jurists view the U.N. Conference on the Human Environment, which was signed in 1972 and is also known as the "Stockholm Convention," as the birth of modern international environmental law. See United Nations Conference on the Human Environment, 11 I.L.M. 1416 (1972). Before that time, there had only been a few dozen bilateral and multilateral agreements addressing matters concerning the environment The Stockholm Convention represented the first major attempt by the international community to promulgate broad principles for protecting the environment. PATRICIA W. BIRNIE & ALAN E. BOYLE, INTERNATIONAL LAW & THE ENVIRONMENT 39-47 (1992).
5. See Barbara D. Huntoon, Emerging Controls on Transfers of Hazardous Waste to Developing Countries, 21 LAW & POL'Y INT'L BUS. 247, 247 (1989); Cristina L. Douglas, Hazardous Waste Export: Recommendations for United States Legislation to Ratify the Basel Convention, 38 WAYNE L. REV. 289, 289-90 (1991).
6. See Barbara D. Huntoon, Emerging Controls on Transfers of Hazardous Waste to Developing Countries, 21 LAW & POL'Y INT'L BUS. 247, 247 (1989); Cristina L. Douglas, Hazardous Waste Export: Recommendations for United States Legislation to Ratify the Basel Convention, 38 WAYNE L. REV. 289, 289-90 (1991).
7. See David P. Hackett, An Assessment of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 5 AM. U. J. INT'L L. & POL'Y 291, 294 (1990); Grant L. Kratz, Implementing the Basel Convention into U.S. Law: Will It Help or Hinder Recycling Efforts?, 6 BYU J. PUB. I. 323, 324 (1991).
8. See David P. Hackett, An Assessment of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 5 AM. U. J. INT'L L. & POL'Y 291, 294 (1990); Grant L. Kratz, Implementing the Basel Convention into U.S. Law: Will It Help or Hinder Recycling Efforts?, 6 BYU J. PUB. I. 323, 324 (1991).
9. For example, Scan Murphy notes that while the cost of disposing of polychlorinated benzene (PCB) in the United States can be more than US$3000 per ton, it can be as low as US$2.50 per ton in the LICs. See Sean Murphy, Prospective Liability for the Transboundary Movements of Hazardous Wastes, 88 AM. J. INT'L L. 24, 31 (1994); see also Hackett, supra note 5, at 294; Kratz, supra note 5, at 324.
10. See Jack Isaacs, U.S. Hazardous Waste Exports: Regulations and Proposals, 15 MD. J. INT'L L. & TRADE 69, 70-71 (1991).
11. These disasters, dubbed "garbage barges" by the popular media, include: 1) The Khian Sea incident: In 1986, a Philadelphia contractor arranged to export 15,000 tons of incinerator ash to the Bahamas. The ash was to be used in the construction of a road through fresh and saltwater wetlands. While the waste was not classified as hazardous under the U.S. Resource Conservation and Recovery Act, tests showed that it contained many heavy metals and toxic chemicals, including dioxins. The Bahamas refused the shipment after learning of its true character. The ash was then relabeled as fertilizer and sold to Haiti. After three tons of ash had been unloaded, Haiti ordered the ship to leave the country. For the next two years, the ship looked for a port where it could unload its cargo. The ship eventually showed up in Singapore under a new name, but with no more waste in its hold; presumably it was dumped into the Indian Ocean. See Isaacs, supra note 7, at 73-74; Hao-Nhien Q. Vu, The Law of Treaties and the Export of Hazardous Waste, 12 UCLA J. ENVTL. L. & POL'Y 389, 389-90 (1994). 2) The Koko incident An Italian company arranged to ship 3800 tons of hazardous waste, the components of which were not disclosed, to a farmer in the port city of Koko, Nigeria. The waste was shipped from August 1987 to May 1988. During that time, a number of dock workers became severely ill (suffering, for example, from paralysis, premature births, and acute burns). When Nigeria learned of the contents of the wastes, it immediately recalled its ambassador from Italy. Also, Nigeria captured an Italian ship (the MV Piave) and demanded that Italy take back the waste. See Abrams, supra note 1, at 811; Sylvia F. Liu, The Koko Incident: Developing International Norms for the Transboundary Movement of Hazardous Waste, 8 J. ENERGY NAT. RESOURCES & ENVTL. L. 121, 121 (1992-93). 3) The Brussels and Turkey incidents: In 1983, a West German aluminum company admitted to dumping more than 5000 tons of toxic wastes illegally at a quarry in Brussels. Separately, in 1987, a German company was licensed to export 1581 tons of sludge containing metals and poisons, amid sawdust, supposedly used as a "fuel substitute," for incineration in Turkey. Later, Turkey learned that the waste contained PCBs. See Murphy, supra note 6, at 31. 4) The Sierra Leone incident: In 1987, 625 bags of hazardous wastes from the United Kingdom were discarded in a garbage dump in Freetown, Sierra Leone (West Africa). Nearby residents became very ill as vapors from the wastes were emitted into the air and leaked into a nearby estuary. See Wordsworth Filo Jones, The Evolution of the Bamako Convention: An African Perspective, 4 COLO. J. INT'L ENVTL. L. & POL. 324, 327 (1993).
12. These disasters, dubbed "garbage barges" by the popular media, include: 1) The Khian Sea incident: In 1986, a Philadelphia contractor arranged to export 15,000 tons of incinerator ash to the Bahamas. The ash was to be used in the construction of a road through fresh and saltwater wetlands. While the waste was not classified as hazardous under the U.S. Resource Conservation and Recovery Act, tests showed that it contained many heavy metals and toxic chemicals, including dioxins. The Bahamas refused the shipment after learning of its true character. The ash was then relabeled as fertilizer and sold to Haiti. After three tons of ash had been unloaded, Haiti ordered the ship to leave the country. For the next two years, the ship looked for a port where it could unload its cargo. The ship eventually showed up in Singapore under a new name, but with no more waste in its hold; presumably it was dumped into the Indian Ocean. See Isaacs, supra note 7, at 73-74; Hao-Nhien Q. Vu, The Law of Treaties and the Export of Hazardous Waste, 12 UCLA J. ENVTL. L. & POL'Y 389, 389-90 (1994). 2) The Koko incident An Italian company arranged to ship 3800 tons of hazardous waste, the components of which were not disclosed, to a farmer in the port city of Koko, Nigeria. The waste was shipped from August 1987 to May 1988. During that time, a number of dock workers became severely ill (suffering, for example, from paralysis, premature births, and acute burns). When Nigeria learned of the contents of the wastes, it immediately recalled its ambassador from Italy. Also, Nigeria captured an Italian ship (the MV Piave) and demanded that Italy take back the waste. See Abrams, supra note 1, at 811; Sylvia F. Liu, The Koko Incident: Developing International Norms for the Transboundary Movement of Hazardous Waste, 8 J. ENERGY NAT. RESOURCES & ENVTL. L. 121, 121 (1992-93). 3) The Brussels and Turkey incidents: In 1983, a West German aluminum company admitted to dumping more than 5000 tons of toxic wastes illegally at a quarry in Brussels. Separately, in 1987, a German company was licensed to export 1581 tons of sludge containing metals and poisons, amid sawdust, supposedly used as a "fuel substitute," for incineration in Turkey. Later, Turkey learned that the waste contained PCBs. See Murphy, supra note 6, at 31. 4) The Sierra Leone incident: In 1987, 625 bags of hazardous wastes from the United Kingdom were discarded in a garbage dump in Freetown, Sierra Leone (West Africa). Nearby residents became very ill as vapors from the wastes were emitted into the air and leaked into a nearby estuary. See Wordsworth Filo Jones, The Evolution of the Bamako Convention: An African Perspective, 4 COLO. J. INT'L ENVTL. L. & POL. 324, 327 (1993).
13. These disasters, dubbed "garbage barges" by the popular media, include: 1) The Khian Sea incident: In 1986, a Philadelphia contractor arranged to export 15,000 tons of incinerator ash to the Bahamas. The ash was to be used in the construction of a road through fresh and saltwater wetlands. While the waste was not classified as hazardous under the U.S. Resource Conservation and Recovery Act, tests showed that it contained many heavy metals and toxic chemicals, including dioxins. The Bahamas refused the shipment after learning of its true character. The ash was then relabeled as fertilizer and sold to Haiti. After three tons of ash had been unloaded, Haiti ordered the ship to leave the country. For the next two years, the ship looked for a port where it could unload its cargo. The ship eventually showed up in Singapore under a new name, but with no more waste in its hold; presumably it was dumped into the Indian Ocean. See Isaacs, supra note 7, at 73-74; Hao-Nhien Q. Vu, The Law of Treaties and the Export of Hazardous Waste, 12 UCLA J. ENVTL. L. & POL'Y 389, 389-90 (1994). 2) The Koko incident An Italian company arranged to ship 3800 tons of hazardous waste, the components of which were not disclosed, to a farmer in the port city of Koko, Nigeria. The waste was shipped from August 1987 to May 1988. During that time, a number of dock workers became severely ill (suffering, for example, from paralysis, premature births, and acute burns). When Nigeria learned of the contents of the wastes, it immediately recalled its ambassador from Italy. Also, Nigeria captured an Italian ship (the MV Piave) and demanded that Italy take back the waste. See Abrams, supra note 1, at 811; Sylvia F. Liu, The Koko Incident: Developing International Norms for the Transboundary Movement of Hazardous Waste, 8 J. ENERGY NAT. RESOURCES & ENVTL. L. 121, 121 (1992-93). 3) The Brussels and Turkey incidents: In 1983, a West German aluminum company admitted to dumping more than 5000 tons of toxic wastes illegally at a quarry in Brussels. Separately, in 1987, a German company was licensed to export 1581 tons of sludge containing metals and poisons, amid sawdust, supposedly used as a "fuel substitute," for incineration in Turkey. Later, Turkey learned that the waste contained PCBs. See Murphy, supra note 6, at 31. 4) The Sierra Leone incident: In 1987, 625 bags of hazardous wastes from the United Kingdom were discarded in a garbage dump in Freetown, Sierra Leone (West Africa). Nearby residents became very ill as vapors from the wastes were emitted into the air and leaked into a nearby estuary. See Wordsworth Filo Jones, The Evolution of the Bamako Convention: An African Perspective, 4 COLO. J. INT'L ENVTL. L. & POL. 324, 327 (1993).
14. These disasters, dubbed "garbage barges" by the popular media, include: 1) The Khian Sea incident: In 1986, a Philadelphia contractor arranged to export 15,000 tons of incinerator ash to the Bahamas. The ash was to be used in the construction of a road through fresh and saltwater wetlands. While the waste was not classified as hazardous under the U.S. Resource Conservation and Recovery Act, tests showed that it contained many heavy metals and toxic chemicals, including dioxins. The Bahamas refused the shipment after learning of its true character. The ash was then relabeled as fertilizer and sold to Haiti. After three tons of ash had been unloaded, Haiti ordered the ship to leave the country. For the next two years, the ship looked for a port where it could unload its cargo. The ship eventually showed up in Singapore under a new name, but with no more waste in its hold; presumably it was dumped into the Indian Ocean. See Isaacs, supra note 7, at 73-74; Hao-Nhien Q. Vu, The Law of Treaties and the Export of Hazardous Waste, 12 UCLA J. ENVTL. L. & POL'Y 389, 389-90 (1994). 2) The Koko incident An Italian company arranged to ship 3800 tons of hazardous waste, the components of which were not disclosed, to a farmer in the port city of Koko, Nigeria. The waste was shipped from August 1987 to May 1988. During that time, a number of dock workers became severely ill (suffering, for example, from paralysis, premature births, and acute burns). When Nigeria learned of the contents of the wastes, it immediately recalled its ambassador from Italy. Also, Nigeria captured an Italian ship (the MV Piave) and demanded that Italy take back the waste. See Abrams, supra note 1, at 811; Sylvia F. Liu, The Koko Incident: Developing International Norms for the Transboundary Movement of Hazardous Waste, 8 J. ENERGY NAT. RESOURCES & ENVTL. L. 121, 121 (1992-93). 3) The Brussels and Turkey incidents: In 1983, a West German aluminum company admitted to dumping more than 5000 tons of toxic wastes illegally at a quarry in Brussels. Separately, in 1987, a German company was licensed to export 1581 tons of sludge containing metals and poisons, amid sawdust, supposedly used as a "fuel substitute," for incineration in Turkey. Later, Turkey learned that the waste contained PCBs. See Murphy, supra note 6, at 31. 4) The Sierra Leone incident: In 1987, 625 bags of hazardous wastes from the United Kingdom were discarded in a garbage dump in Freetown, Sierra Leone (West Africa). Nearby residents became very ill as vapors from the wastes were emitted into the air and leaked into a nearby estuary. See Wordsworth Filo Jones, The Evolution of the Bamako Convention: An African Perspective, 4 COLO. J. INT'L ENVTL. L. & POL. 324, 327 (1993).
15. ELLI LOUKA, OVERCOMING NATIONAL BARRIERS TO INTERNATIONAL WASTE TRADE: A NEW PERSPECTIVE ON THE TRANSNATIONAL MOVEMENTS OF HAZARDOUS AND RADIOACTIVE WASTES 5 (1994).
16. One alternative, recycling and recovery, is discussed infra Part V.
17. According to Louka, supra note 9, at 6, this fact makes it more difficult to regulate hazardous wastes than many other environmental concerns, such as trade in endangered species, which she notes can be controlled by pressuring and lobbying consumers. See also Abrams, supra note 1, at 806.
18. While this Article is not intended to be an exposé on general principles of international law, a general understanding of such principles is necessary in order to contextualize the narrower issue of transboundary movements of hazardous wastes. For a more substantial analysis, see generally BIRNIE & BOYLE, supra note 3; PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW I: FRAMEWORKS, STANDARDS AND IMPLEMENTATION (1995); Alan E. Boyle, Nuclear Energy and International Law: An Environmental Perspective, in THE BRITISH YEAR BOOK OF INTERNATIONAL LAW 269 (1989); Ian Brownlie, A Survey of International Customary Rules of Environmental Protection, 13 NAT. RESOURCES J. 179 (1973).
19. While this Article is not intended to be an exposé on general principles of international law, a general understanding of such principles is necessary in order to contextualize the narrower issue of transboundary movements of hazardous wastes. For a more substantial analysis, see generally BIRNIE & BOYLE, supra note 3; PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW I: FRAMEWORKS, STANDARDS AND IMPLEMENTATION (1995); Alan E. Boyle, Nuclear Energy and International Law: An Environmental Perspective, in THE BRITISH YEAR BOOK OF INTERNATIONAL LAW 269 (1989); Ian Brownlie, A Survey of International Customary Rules of Environmental Protection, 13 NAT. RESOURCES J. 179 (1973).
20. While this Article is not intended to be an exposé on general principles of international law, a general understanding of such principles is necessary in order to contextualize the narrower issue of transboundary movements of hazardous wastes. For a more substantial analysis, see generally BIRNIE & BOYLE, supra note 3; PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW I: FRAMEWORKS, STANDARDS AND IMPLEMENTATION (1995); Alan E. Boyle, Nuclear Energy and International Law: An Environmental Perspective, in THE BRITISH YEAR BOOK OF INTERNATIONAL LAW 269 (1989); Ian Brownlie, A Survey of International Customary Rules of Environmental Protection, 13 NAT. RESOURCES J. 179 (1973).
21. See Boyle, supra note 12, at 278; Brownlie, supra note 12, at 179; Ian Brownlie, International Law and the Activities of Armed Bands, 7 INT'L & COMP. L.Q. 712, 724 (1958); Brian R. Popiel, From Customary Law to Environmental Impact Assessment: A New Approach to Avoiding Transboundary Environmental Damage Between Canada and the United States, 22 B.C. ENVTL. AFF. L. REV. 447, 450 (1995).
22. See Boyle, supra note 12, at 278; Brownlie, supra note 12, at 179; Ian Brownlie, International Law and the Activities of Armed Bands, 7 INT'L & COMP. L.Q. 712, 724 (1958); Brian R. Popiel, From Customary Law to Environmental Impact Assessment: A New Approach to Avoiding Transboundary Environmental Damage Between Canada and the United States, 22 B.C. ENVTL. AFF. L. REV. 447, 450 (1995).
23. Cases cited for this proposition include: Trail Smelter Arbitration (U.S. v. Can.), Decision of Apr. 16, 1938, 33 AM. J. INT'L L. 182 (1939); Trail Smelter Arbitration (U.S. v. Can.), Decision of Mar. 11, 1941, 35 AM. J. INT'L L. 684 (1941); Corfu Channel Case, I.C.J. 4 (1949); Lac Lanoux Arbitration (Fr. v. Spain), 24 I.L.R. 101 (1957); Gut Dam, Settlement of Claims (U.S. v. Can.),8 I.L.M. 118 (1969). However, with regard to the Gut Dam case, Birnie and Boyle disagree that it provides a clear inference of the sic utere tuo principle, while Popiel argues otherwise. See BIRNIE & BOYLE, supra note 3, at 231 ; Popiel, supra note 13, at 453.
24. Stockholm Declaration, supra note 3, at 1420.
25. It does not, however, require prior informed consent
26. Brownlie, supra note 12, at 179. Michael Walls, on the other hand, argues that general principles of international law are strong enough to protect against abuses. Accordingly, he asserts: Exporting governments have an interest in preventing harm to international trade in their hazardous products. Importing governments (particularly those in developing countries) utilize these products to develop their own resources, including export markets. Both importing and exporting governments, therefore, have a strong interest in minimizing the possible external effects on trade, while adhering to a commonly accepted sense of responsibility. All of the parties involved in the PIC debate have generally recognized a moral responsibility to assure the safe use of chemical products. Michael P. Walls, Chemical Exports and the Age of Consent: The High Cost of International Export Control Proposals, 20 N.Y.U.J. INT'L L. & POL. 753, 765 (1988).
27. See, for example, the discussion of the Bamako Convention, infra Part II.C, and the Basel Convention, infra Part II.A.
28. Lillian M. Pinzon, Criminalization of the Transboundary Movement of Hazardous Waste and the Effect on Corporations, 7 DEPAUL BUS. L.J. 173, 179 (1994).
29. GREENPEACE INTERNATIONAL, THE INTERNATIONAL TRADE IN WASTES: A GREENPEACE INVENTORY (J. Valletta & H. Spalding eds., 5th ed. 1990).
30. See ALEXANDRE Kiss & DINAH SHELTON, INTERNATIONAL ENVIRONMENTAL LAW 313 (1991).
31. According to John Thomas Smith II: [O]nce a material is branded with the label "waste," citizens mobilize to prevent its presence in their community. The public is rarely persuaded by nice distinctions between recyclable waste and conventional waste. To preserve opportunities for beneficial material recovery and re-use, it is better not to stigmatize recyclable secondary materials as waste, since doing so is a catalyst for community opposition, transport restrictions, demands for extensive permitting procedures, and the like. John Thomas Smith II, The Challenges of Environmentally Sound and Efficient Regulation of Waste: The Need for Enhanced International Understanding, 5 J. ENVTL. L. & LITIG. 91, 96 (1993).
32. Abrams, supra note 1, at 805-06.
33. U.N. Environment Programme Governing Council Decision, U.N. Doc. UNEP/GC.10/24 (1982).
34. Cairo Guidelines and Principles of Environmentally Sound Management of Hazardous Wastes, U.N. Doc. UNEPA/WG.122/3 (1985), approved, U.N. Doc. UNEP/GC.14/17 (1987).
35. Huntoon, supra note 4, at 260.
36. U.N. Environment Programme Conference of Plenipotentiaries on the Global Convention on the Control of Transboundary Movements of Hazardous Wastes: Final Act and Text of the Basel Convention, Basel Convention on the Control of Transboundary Movements of Hazardous Wastes, 281.L.M. 649 (1989) [hereinafter Basel Convention].
37. For example, except for Nigeria, the members of the Organization of African Unity refused to sign the Convention.
38. See BIRNIE & BOYLE, supra note 3, at 332; Katharina Kummer, The International Regulation of Transboundary Traffic in Hazardous Wastes: The 1989 Basel Convention, 41 INT'L & COMP. L.Q. 530, 535-36 (1992).
39. See Basel Convention, supra note 27, art. 8(1), 28 I.L.M. 666.
40. See id. art. 6, 28 I.L.M. 664.
41. See id. art. 1(1) (b), 4(1) (b), 28 I.L.M. 659, 661.
42. Id. pmbl., 28 I.L.M. 657. The preamble to the Basel Convention is examined in greater detail in the following Subpart. See also Implementation of Decision 11/16 on Documentation: Notification and Movement Document (Instructional Manual - Draft), Third Meeting of the Conference of the Par-ties to the Basel Convention, at 5, U.N. Doc. UNEP/CHW.3/19 (1995) [hereinafter Draft Notification and Movement Document].
43. For example, Dr. Harvey Alter claims that the "Basel Convention is as much a convention on trade as it is on the environment." Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal: Hearing Before the Senate Comm. on Foreign Relations, 102d Cong., 2d Sess., at 15 (1992) (statement of Dr. Harvey Alter). On the other hand, many antitrade advocates point to Article 15(7) of the Convention, which provides: The Conference of the Parties shall undertake three years after the entry into force of this Convention, and at least every six years thereafter, an evaluation of its effectiveness and, if deemed necessary, to consider the adoption of a complete or partial ban of transboundary movements of hazardous wastes and other wastes in light of the latest scientific, environmental, technical and economic information. Basel Convention, supra note 27, art. 15(7), 28 I.L.M. 670
44. Basel Convention, supra note 27, pmbl., 28 I.L.M. 657.
45. The meanings of "wastes" and "hazardous wastes" as used in the Basel Convention are discussed infra Part II.A.3. However, for the purposes of this Article, the two terms are used interchangeably.
46. In addition, the "main objectives" of the Convention are: • to reduce transboundary movements of hazardous and other wastes to a minimum consistent with their environmentally sound management; • to treat and dispose of hazardous wastes and other wastes as close as possible to their source of generation in an environmentally sound way; • to minimize the generation of hazardous wastes and other wastes (in terms of both quantity and potential hazard). See Drafl Notification and Movement Document, supra note 33, at 5.
47. The meaning of the term "disposal" is explained infra note 58.
48. The concept of minimization is generally represented by two principles, the first of which is often referred to as the "self-sufficiency principle." It provides that "countries should ensure that the disposal of the wastes generated within their territories are undertaken in a manner which is compatible with environmentally sound management" U.N. Environment Programme, Framework Document on the Preparation of Technical Guidelines for the Environmentally Sound Management of Wastes Subject to the Basel Convention, at 6 (Dec. 1992) (hereinafter Framework Document] (adopted provisionally by the First Meeting of the Conference of the Parties to the Basel Convention). The second principle, referred to as the "proximity principle," provides that "the disposal of hazardous wastes must take place as close as possible to their point of generation." Id. The main difference between the principles is a matter of degree (i.e., the first principle merely requires that the waste be disposed of within the producing nation, while the second discusses solely on the distance between production and disposal). However, both principles recognize that in some situations it might be more environmentally sound to transport and dispose of wastes outside the State where they were generated. See id.
49. The rationale for encouraging a total ban on transboundary movements is a mixture between a desire to force countries to establish their own waste management programs and facilities rather than passing such wastes off to other countries, and a belief that a total ban will reduce the risks of accidents. See Louka, supra note 9, at 24-27. In contrast, Louka argues that most accidents occur as a result of improper loading or unloading techniques or careless error and not as a result of the distances that wastes travel. See id.
50. Basel Convention, supra note 27, pmbl., 28 I.L.M. 657
51. Id. "Disposal," which is explained in more detail infra note 58, includes recycling and reclamation operations.
52. Id.
53. Id. Considering that under the Basel Convention, "hazardous wastes" include substances and objects sent for recycling, see infra Subpart II.A.3.b, it is odd that the Parties here indicate that "recycling options" should be explored for the purposes of minimizing the generation of such wastes. Since the recycling process does not itself reduce the amount of wastes, but rather converts such wastes from valueless to valuable "wastes" (under the terminology employed by the Convention), it is unclear how the recycling process will lead to waste minimization. Interestingly, however, if wastes sent for recycling are defined as "controlled or secondary substances" rather than "hazardous wastes," then this provision makes sense, since substances that would normally be described as wastes would be considered viable products, hence reducing the total amount of wastes.
54. Article 1 of the Basel Convention provides that the following "wastes" that are subject to "transboundary movement" shall be "hazardous wastes" for the purposes of the Convention: (a) Wastes that belong to any category in Annex I, unless they do not possess any of the charac-teristics contained in Annex III; and (b) Wastes that are not covered under paragraph (a) but are defined as, or are considered to be, hazardous wastes by the domestic legislation of the Party of export, import or transit. See Basel Convention, supra note 27, art. 1, Annexes I, III, 28 I.L.M. 659, 678-79. The Convention excludes radioactive wastes that are subject to other international control systems, including international instruments, applying specifically to radioactive materials, and wastes that derive from the normal operations of a ship and whose discharge is covered by another international instrument. See id. art. 1, 28 I.L.M. 659.
55. Radioactive wastes are regulated by the International Atomic Energy Agency (IAEA) pursuant to the Code of Practice on the International Transboundary Movement of Radioactive Waste, IAEA Doc. GC(34)/RES/530 (Sept. 21, 1990).
56. Such wastes are covered by other international agreements such as the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972, 1046 U.N.T.S. 120; and die International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, I.M.C.O. Doc. MP/CONF/WP.35, 12 I.L.M. 1319. Additionally, these wastes are covered by a host of regional agreements.
57. Basel Convention, supra note 27, art. 2(1), 28 I.L.M. 659-60 (emphasis added).
58. Article 2(18) provides that a "generator" is "any person whose activity produces hazardous wastes or other wastes or, if that person is not known, the person who is in possession and/or control of those wastes." Id., 28 I.L.M. 661. By including the latter part of the definition, the Parties have protected against a situation where the true producer of the wastes covertly transfers it to some other party, possibly a shell corporation, in order to avoid responsibility. In addition: If two or more batches of wastes are mixed before being moved and disposed/recovered, and/or otherwise subjected to physical or chemical operations which render the original wastes indistinguishable or inseparable in the resulting mixture, the party or parties who perform(s) these operations is (are) considered to be the generator of the new wastes resulting from these operations. Draft Notification and Movement Document, supra note 33.
59. For example, compare the definition of "wastes" in the Basel Convention with the one in the Bamako Convention. See infra Part U.C.
60. See Basel Convention, supra note 27, Annex I, 28 I.L.M. 678. The heading to Annex I provides that the substances and objects listed are "categories of wastes to be controlled." Id. This seems to imply that the Convention automatically treats the listed substances and objects as wastes rather than as goods or products. This provision of the Basel Convention should be compared with the Bamako Convention, which goes even further by referring to these substances and objects as "hazardous wastes." See infra Part U.C.
61. Basel Convention, supra note 27, Annex II, 28 I.L.M. 679.
62. In this respect, Abrams asserts that "[a]s a result of this broadening of the scope of the Basel Convention, the fine line between certain hazardous wastes and non-hazardous wastes is largely eliminated although non-hazardous chemical and industrial wastes are still outside the scope of the Convention." Abrams, supra note 1, at 820. However, this Article will not deal spe-cifically with the "other wastes" listed in Annex II.
63. Basel Convention, supra note 27, art. 3(1), 28 I.L.M. 661.
64. The counterargument is that Annex I does not list substances or objects that are hazardous, but rather ones that may be hazardous if they exhibit any of the characteristics enumerated under Annex III. Thus, Article 3(1) of the Convention only seeks to list those wastes that have been deemed as hazardous. See id.
65. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal: Hearing Before the Senate Comm. on Foreign Relations, 102d Gong., 2d Sess., at 16 (1992) (statement of Dr. Harvey Alter); see also Kratz, supra note 5, at 338.
66. Kummer, supra note 29, at 543.
67. Basel Convention, supra note 27, art. 2(4), 28 I.L.M. 660.
68. Id. Annex IV, 28 I.L.M. 681.
69. Id., 28 I.L.M. 682.
70. Section B includes recycling and reclamation of organic substances that are not used as solvents, metals and metal compounds, and other inorganic materials, as well as regeneration of acids and bases. See id.
71. For example, Section A includes incineration, permanent storage, deposit into land, and deep injection. See id. 28 I.L.M. 681.
72. Id., 28 I.L.M. 682 (emphasis added).
73. See id. art 2(1), Annex IV, 28 I.L.M. 659-60, 682.
74. Smith, supra note 22, at 96.
75. See id.
76. This latter requirement only applies to the second interpretation.
77. Hackett, supra note 5, at 315, 316-17.
78. Kathleen Howard, The Basel Convention: Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 14 HASTINGS INT'L & COMP. L. REV. 223, 228-29 (1990).
79. See Basel Convention, supra note 27, Annex IV, 28 I.L.M. 682.
80. Alter, supra note 56, at 16.
81. This term is defined in the following Subpart
82. Annex III lists fourteen characteristics that may describe wastes, such as "explosive," "flammable liquids," and "ecotoxic." These characteristics are organized as headings, and each is accompanied by a brief description of what the characteristic means and what it includes. See Basel Convention, supra note 27, Annex III, 28 I.L.M. 679.
83. See supra Part II.A.3.a, describing the considerable debate concerning whether the wastes listed in Annex I are all assumed to be incorporated within domestic legislation by virtue of their presence in Annex I, or whether individual wastes must be specifically enumerated in a Party's domestic legislation to be considered incorporated into that legislation. The former interpretation makes the most sense in light of Annex III (i.e., by viewing Annex I as a "catch-basin ' and Annex III as a "sieve"). See Basel Convention, supra note 27, Annex III, 28 I.L.M. 679. Furthermore, such an interpretation is in accordance with the Convention's objective of regulating rather than prohibiting transboundary shipments of hazardous wastes.
84. See Hackett, supra note 5, at 316. Hackett notes that even the more obvious characteristics can be troublesome and unclear. In this same vein, Kummer asserts, "In fact, one of the key problems with the efficient implementation of the Convention concerns the use of Annex III, which lists hazardous characteristics. There is a lack of criteria to define some of these characteristics, namely the last four classes in the list (H10-H13)." KATHARINA KUMMER, INTERNATIONAL MANAGEMENT OF HAZARDOUS WASTES: THE BASEL CONVENTION AND RELATED LEGAL RULES 50 (1995).
85. According to Annex III: The potential hazards posed by certain types of wastes are not yet fully documented; tests to define quantitatively these hazards do no exist. Further research is necessary in order to develop means to characterize potential hazards posed to man and/or the environment by these wastes. Standardized tests have been derived with respect to pure substances and materials listed in Annex I, in order to decide if these materials exhibit any of the characteristics listed in this Annex. Basel Convention, supra note 27, Annex III, 28 I.L.M. 679.
86. In this regard, the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa provides that "each Party shall strive to adopt and implement the preventive, precautionary approach to pollution problems which entails, inter alia, preventing the release into the environment of substances which may cause harm to humans or'the environment without waiting for scientific proof regarding such harm." Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Wthin Africa, Jan. 29, 1991, art. 4:3(f), 30 I.L.M. 773 781 [hereinafter Bamako Convention]. By not adopting this type of "precautionary principle," the Parties to the Basel Convention clearly intended that the national testing guideline provision be read narrowly.
87. Hackett, supra note 5, at 316.
88. See Vu, supra note 8, at 413.
89. id.
90. Article 3 of the Basel Convention sets out requirements for Parties to follow when enacting legislation defining certain substances or objects as "hazardous wastes." See Basel Convention, supra note 27, art 3, 28 I.L.M. 661. According to paragraph 1, within six months of becoming a Party to the Convention, the Parties are expected to inform the Secretariat of any wastes, other than those listed in Annexes I and II, that are considered hazardous under national legislation. Subsequent to this initial notice, paragraph 2 provides that Parties must inform the Secretariat of any "significant" changes to the information provided in paragraph 1. The Secretariat is subsequently responsible for disseminating the information to the Parties, while each individual Partyis responsible for ensuring that the information is accessible to its exporters. See id. art. 3(3)-(4), 28 I.L.M. 661.
91. This could include a "generator," "exporter," "carrier," and/or "disposer." See id. art. 2, 28 I.LM. 660-61.
92. Id. art 1(1) (b), 28 I.L.M. 659. In this respect, Article 4(11) of the Basel Convention, though specifically dealing with obligations, provides that "[n]othing in this Convention shall prevent a Party from imposing additional requirements that are consistent with the rules of in-ternational law, in order to protect human health and the environment." Id. art 4(11), 28 LLM. 663. One caveat to this, however, is that the Parties may be restricted by virtue of other treaties or international agreements from defining just any waste as "hazardous." For example, multilateral agreements like the World Trade Organization and bilateral ones like the North American Free Trade Agreement might require that such regulation not be arbitrary and be based on scientific proof, among other things.
93. Id. art 2(4), 28 I.L.M. 660. An "area under the national jurisdiction of one State" is "any land, marine area or air space within which a State exercises administrative and regulatory re-sponsibility in accordance with international law in regard to the protection of human health or the environment" Id. art 2(9), 28 I.L.M. 660. The provision thus covers any area under the legislative control of a State.
94. At the Third Meeting of the Conference of the Parties to the Basel Convention, the Parties adopted Decision III/I as an amendment to the Convention; this amendment will significantly impact trade in secondary materials. See Decisions Adopted by the Third Meeting of the Conference of the Parties to the Basel Convention, at 23, U.N. Doc. UNEP/CHW.3/35 (1995) [hereinafter Decisions Adopted by the Third Meeting].
95. At the Third Meeting of the Conference of the Parties to the Basel Convention, the Parties adopted Decision III/I as an amendment to the Convention; this amendment will significantly impact trade in secondary materials. See Decisions Adopted by the Third Meeting of the Conference of the Parties to the Basel Convention, at 23, U.N. Doc. UNEP/CHW.3/35 (1995) [hereinafter Decisions Adopted by the Third Meeting].
96. The Members of the OECD are: Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United States.
97. In addition, OECD Members have used more than 30 billion tons of hazardous wastes as landfill and dumped many more tons at sea. See Report of the First Conference, supra note 2, at 2. Approximately 23 tons of wastes cross the borders of OECD Member countries every five minutes. In terms of the countries of the European Union (EU), Mark Allen claims that they are responsible for more than two billion tons of wastes annually, of which 30 million are deemed "dangerous." See Mark E. Allen, Slowing Europe's Hazardous Waste Trade: Implementing the Basel Convention into European Union Law, 6 COLO. J. INT'L ENVTL. L. & POL'Y. 163 (1995). Moreover, 10% of these wastes are subject to transboundary movements, either within die EU or to other countries. See id. In North America, the United States generated 250 million tons of hazardous wastes in 1990, one-tenth of which was exported to Canada or Mexico (amounting to 90% of all hazardous wastes shipped). In addition, the U.S. trade in hazardous and nonhazardous wastes ex-ceeds US$5 billion per year. See Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal: Hearing Before the Senate Comm. on Foreign Relations, 102d Cong., 2d Sess., at 8,16 (1992) (statements of Richard Smith and Dr. Harvey Alter).
98. In addition, OECD Members have used more than 30 billion tons of hazardous wastes as landfill and dumped many more tons at sea. See Report of the First Conference, supra note 2, at 2. Approximately 23 tons of wastes cross the borders of OECD Member countries every five minutes. In terms of the countries of the European Union (EU), Mark Allen claims that they are responsible for more than two billion tons of wastes annually, of which 30 million are deemed "dangerous." See Mark E. Allen, Slowing Europe's Hazardous Waste Trade: Implementing the Basel Convention into European Union Law, 6 COLO. J. INT'L ENVTL. L. & POL'Y. 163 (1995). Moreover, 10% of these wastes are subject to transboundary movements, either within die EU or to other countries. See id. In North America, the United States generated 250 million tons of hazardous wastes in 1990, one-tenth of which was exported to Canada or Mexico (amounting to 90% of all hazardous wastes shipped). In addition, the U.S. trade in hazardous and nonhazardous wastes ex-ceeds US$5 billion per year. See Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal: Hearing Before the Senate Comm. on Foreign Relations, 102d Cong., 2d Sess., at 8,16 (1992) (statements of Richard Smith and Dr. Harvey Alter).
99. OECD, Council Decision on a Comprehensive Waste Management Policy, C(76)155 Final (1976); see also Rebecca A. Kirby, The Basel Convention and the Need for United States Implementation, 24 GEORGIA J. INT'L & COMP. L. 281, 288 (1994); Sands, supra note 12, at 493.
100. SeeSands, supra note 12, at 493.
101. See Allen, supra note 87, at 166.
102. See J.W. MacNeill, Policy Issues Concerning Transfrontier Movements of Hazardous Waste, in TRANSFRONTIER MOVEMENTS OF HAZARDOUS WASTE: LEGAL AND INSTITUTIONAL ASPECTS 7 (OECD ed., 1985).
103. OECD, Decision and Recommendation of the Council on Transfrontier Movements of Hazardous Waste, C(83)180(Final), Feb. 1, 1984, 23 I.L.M. 214 (1985) [hereinafter 1984 Decision]. The 1984 Decision establishes recommendations for Members in implementing national control and notification procedures. 93 These four Decisions (not including amendments) are: • OECD Council Decision-Recommendation on Exports of Hazardous Wastes from the OECD Area, C(86)64(Final),June 5, 1986 [hereinafter 1986 Decision], The 1986 Decision aims at controlling hazardous waste shipments destined for non-OECD countries. • OECD Council Decision on Transfrontier Movements of Hazardous Wastes, C(88)90(Final), May 27, 1988 [hereinafter 1988 Decision]. The 1988 Decision creates a comprehensive definition of such key terms as "wastes," "hazardous wastes," and "disposal," and establishes the International Wastes Identification Code (IWIC) for classifying wastes. • OECD Council Decision-Recommendation C(90)178, Jan. 31, 1991 [hereinafter 1991 Decision], The 1991 Decision paves the way for rules regarding transfrontier shipments of wastes for recovery operations, essentially recommending the proximity and self-sufficiency principles for wastes destined for final disposal. This Decision calls upon OECD Members, to the extent possible, to construct disposal facilities and regulate wastes "consistent with environmentally sound and efficient management practices." • OECD Council Decision Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery Operations, C(92)39/FINAL, Mar. 30, 1992 [hereinafter 1992 Decision]. The 1992 Decision establishes a comprehensive scheme for classifying and regulating transboundary shipments of wastes destined for recovery operations between OECD Members.
104. OECD Environment Policy Committee Waste Management Policy Group, Implementation of Council Decision C(92)39/FINAL Draft Report to Council, at 23, ENV/EPOC/WMP(93)8/REV2 (May 4, 1994).
105. See 1984 Decision, supra note 92, 23 I.L.M. 214; 1992 Decision, supra note 93, at 3.
106. See 1986 Decision, supra note 93, 25 I.L.M. 1010. The 1986 Decision states that OECD Members are "[c]onvinced that the exports of hazardous wastes may, if not properly monitored and controlled, result in serious risks to health and the environment" Id.
107. See id., 25 I.L.M. 1012.
108. The 1984 Decision effectively adopts the sic utere tuo principle by providing that "countries have the sovereign right to manage hazardous waste within their jurisdiction pursuant to their own environmental policies and legislation, taking account of the rules of international law." 1984 Decision, supra note 92, 23 I.L.M. 214.
109. 1992 Decision, supra note 93, at 3.
110. Although this Article is primarily concerned with transboundaiy shipments for recycling and recovery purposes, many of the terms pervade and are common to both.
111. This can be contrasted with the 1992 Decision, supra note 93, which does not define a waste on the basis of whether it is hazardous per se, but rather establishes varying degrees of control on wastes destined for recovery operations on the basis of the hazard that particular wastes pose to the environment.
112. The OECD Decisions exclude radioactive materials from the definition of wastes. This exclusion, however, is not as wide as the one in the Basel Convention, which also excludes wastes that "derive from the normal operations of a ship, the discharge of which is covered by another international instrument" Basel Convention, supra note 27, art. 1 (4), 28 I.L.M. 659.
113. According to the 1988 Decision, "[T]hose wastes which belong to any of the categories described in Table Y shall be controlled unless such wastes do not possess any of the hazardous characteristics listed in Table 5." 1988 Decision, supra note 93, 28 I.L.M. 261.
114. 1984 Decision, supra note 92, 23 I.L.M. 217.
115. This is also true of the 1986 Decision, supra note 96, 25 I.L.M. 1013, which merely adopts the definition provided in the 1984 Decision, supra note 92, 23 I.L.M. 217.
116. 1988 Decision, supra note 93, 28 I.L.M. 257, 261.
117. Id.
118. Id.
119. See supra text accompanying notes 63-66 (discussing the note to Section B of Annex IV of the Basel Convention); see also Basel Convention, supra note 27, Annex IV, 28 I.L.M. 682. However, Section A of Table 2 of the 1988 Decision not only provides that it "encompass[es] all such disposal operations which occur in practice," but also includes the proviso "whether or not they are adequate from the point of view of environmental protection. 1988 Decision, supra note 93, 28 I.L.M. 257. Nonetheless, because this statement has no substantive or practical effect, Table 2 and Annex IV are essentially identical.
120. The Basel Convention did not adopt this requirement.
121. 1984 Decision, supra note 92, 23 I.L.M. 217.
122. See 1988 Decision, supra note 93, 28 I.L.M. 260.
123. Id., 28 I.L.M. 261.
124. A similar critique has been raised with respect to the Basel Convention.
125. 1988 Decision, supra note 93, 28 I.L.M. 260.
126. 1984 Decision, supra note 92, 23 I.L.M. 217 (defining "countries concerned" as "the exporting, transit, and importing countries"); 1986 Decision, supra note 96, 25 I.L.M. 1013.
127. The only quasi-exceptions are the various Council Directives of the European Economic Community (EEC) concerning hazardous wastes generally and transboundary movements of such wastes specifically. As early as 1975, the EEC recognized the importance of recycling wastes. For example, the preamble to Council Directive 75/442, # 1975 O.J. (L 194) 39 No. 75/442, states that the Members recognize that "the recovery of waste and the use of recovered materials should be encouraged in order to conserve natural resources." See id.; see also Council Regulation on the Supervision and Control of Shipments of Waste Within, Into, and Out of the European Community (EEC) 259/93, Feb. 1, 1993, O.J. (L 30) (establishing a comprehensive regulatory scheme to govern wastes destined for recovery). This regulation establishes different requirements on the basis of whether a waste is being sent to: (a) a Member country of the EEC; (b) a non-EEC country that is a member of the OECD; (c) a country that is a member of neither the EEC nor the OECD; or (d) a nonEEC country that is a member of Fourth Lomé Convention. The regulation incorporates the 1992 OECD Decision. For a review of the EEC's waste legislation, see Louka, supra note 9, at 182-85. See generally Kurt M. Rozelsky, European Economic Communities - Environmental Policy - Legal Basis and International Implications of Council Regulation on the Supervision and Control of Shipments of Hazardous Wastes, 23 GA. J. INT'L & COMP. L. 111 (1993); Alke Schmidt, Transboundary Movements of Waste Under EC Law: The Emerging Regulatory Framework, 4J. ENVTL. L. 57 (1992).
128. The only quasi-exceptions are the various Council Directives of the European Economic Community (EEC) concerning hazardous wastes generally and transboundary movements of such wastes specifically. As early as 1975, the EEC recognized the importance of recycling wastes. For example, the preamble to Council Directive 75/442, # 1975 O.J. (L 194) 39 No. 75/442, states that the Members recognize that "the recovery of waste and the use of recovered materials should be encouraged in order to conserve natural resources." See id.; see also Council Regulation on the Supervision and Control of Shipments of Waste Within, Into, and Out of the European Community (EEC) 259/93, Feb. 1, 1993, O.J. (L 30) (establishing a comprehensive regulatory scheme to govern wastes destined for recovery). This regulation establishes different requirements on the basis of whether a waste is being sent to: (a) a Member country of the EEC; (b) a non-EEC country that is a member of the OECD; (c) a country that is a member of neither the EEC nor the OECD; or (d) a nonEEC country that is a member of Fourth Lomé Convention. The regulation incorporates the 1992 OECD Decision. For a review of the EEC's waste legislation, see Louka, supra note 9, at 182-85. See generally Kurt M. Rozelsky, European Economic Communities - Environmental Policy - Legal Basis and International Implications of Council Regulation on the Supervision and Control of Shipments of Hazardous Wastes, 23 GA. J. INT'L & COMP. L. 111 (1993); Alke Schmidt, Transboundary Movements of Waste Under EC Law: The Emerging Regulatory Framework, 4J. ENVTL. L. 57 (1992).
129. See 1988 Decision, supra note 93, 28 I.L.M. 261.
130. See 1992 Decision, supra note 93, Annex 1, at 5, 28 I.L.M. 5 (defining "transfrontier movement" as "any shipment of wastes destined for recovery operations from an area under the national jurisdiction of one OECD Member country to an area under the national jurisdiction of another OECD Member country").
131. Id. The 1992 Decision defines "OECD area" as "all land or marine areas under the national jurisdiction of any OECD Member country" and "recovery operations" as "activities leading to resource recovery, recycling, reclamation, direct re-use or alternative uses as listed in Table 2B" of the 1988 Decision. Id. However, the definition of recovery operations is not entirely complete since Table 2B merely lists operations that are considered to lead to resource recovery rather than actually defining recycling or recovery. This could be very important since it seemingly allows a Member to define the most minimal efforts at recovery as a "recovery operation." Each Member must use good faith in defining what constitutes recovery and recycling under its domestic legislation. See id.
132. See id. Annex 1 (II), 28 I.L.M 6-7.
133. See id., 28 I.L.M. 6-7 (defining "recovery facility" as "an entity which, under applicable domestic law, is operating or is authorized to operate in the importing country to receive wastes and to perform recovery operations on them").
134. The green, amber, and red lists are in Appendices 3-5 of the 1992 Decision. Each color list contains general category headings under which specific wastes are enumerated. Only the wastes specified under a general category heading are part of the list, not the category headings themselves. (While the 1992 Decision only states this condition explicitly with respect to green tier wastes, the condition clearly also applies to wastes on the amber and red lists.) Whenever possible, a waste is categorized by reference to its tariff classification number under the Harmonized Commodity Description and Coding System, which was established by the Brussels Convention on June, 14 1983, under the auspices of the Customs Co-Operation Council. By applying die Harmonized System Codes, the Members clearly intended to narrow each category heading, rather than allow the headings to serve as a broad category for identifying wastes. This safeguard ensures that only nonhazardous wastes are exempt from the disciplines of the OECD system.
135. Some environmentalists and LICs have complained that a number of the wastes listed in the green tier should, at the very least, be controlled under the amber tier. Critics of the OECD system point to the inclusion of metals like lead and thallium waste scrap as evidence of the OECD's failure to meet its supposed environmental soundness requirement. See, e.g., Vu, su-pra note 8, at 425.
136. 1992 Decision, supra note 93, Annex 1 (II) (2) (a), 28 I.L.M. 6.
137. Id. Annex 1 (III)(4), 28 I.L.M. 19.
138. Id. Annex 1 (III) (2), 28 I.L.M. 9. This requirement demonstrates that while green-listed wastes are prima facie free from control, OECD Members nevertheless are expected to examine whether wastes possess hazardous characteristics.
139. Id. Annex 1 (II) (2) (a), 28 I.L.M. 6-7. Presumably the environmental-soundness standard applies under such circumstances.
140. See id. app. 4, 28 I.L.M. 28.
141. See id. app. 5, 28 I.L.M. 32.
142. See id. Annex 1 (II) (7) (iv), 28 I.L.M. 8. However, if a waste is not yet assigned to a tier or does not display any of the hazardous characteristics enumerated in Table 5, then it may be transported across boundaries subject to the domestic laws of the countries concerned in the shipment. The OECD Review Mechanism committee must be promptly informed by member countries of unclassified wastes so that it can study them and duly add them to one of the tiers.
143. See id. Annex 1 (II) (4), 28 I.L.M. 7-8.
144. See id., 28 I.L.M. 4.
145. Resolution on Dumping of Nuclear and Industrial Waste in Africa, Res. 1153, OAU Doc. CM/RES/1153/ (XLVIII) (May 23, 1988), 28 I.L.M. 567.
146. See id., 28 I.L.M. 568-69.
147. Vu, supra note 8, at 422; see C. Russel Shearer, Comparative Analysis of the Basel and Bamako Convention on Hazardous Waste, 23 ENVTL. L. 141, 142-43 (1993).
148. Eventually bowing to world pressure, Nigeria broke ranks with its OAU brethren and signed the Basel Convention.
149. Bamako Convention, supra note 77, 30 I.L.M. 773. The Bamako Convention was signed in January 1991 by the Conference of Environment Ministers, OAU, at Bamako, Mali. The Parties to the Convention are: Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo, Cote d'Ivoire Djibouti, Egypt, Equatorial Guinea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea Bissau, Kenya, Lesotho, Liberia, Socialist People's Libyan Arab Jamahiriya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Mozambique, Namibia, Niger, Rwanda, Sahrawi Arab Democratic Republic, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zaire, Zambia and Zimbabwe. See also Jones, supra note 8, at 329 (arguing that the ultimate reason for the adoption of the Bamako Convention was to address and correct perceived flaws in the Basel Convention).
150. Bamako Convention, supra note 77, 30 I.L.M. 773.
151. J. Wylie Donald, The Bamako Convention as a Solution to the Problem of Hazardous Waste Exports to Less Developed Countries, 17 COLUM. J. ENVTL. L. 419, 429-30 (1992).
152. See Howard S. Kaminsky, Assessment of the Bamako Convention on the Ban of Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, 5 GEO. INT'L ENVTL. L. REV. 77, 78 (1992).
153. Bamako Convention, supra note 77, pmbl., 30 I.L.M. 782-84.
154. But see Louka, supra note 9, at xiv (characterizing the Bamako Convention as "politicalidealistic legislation" that "establish [es] ambitious goals but [has] no means to materialize them").
155. See Bamako Convention, supra note 77, pmbl. 3, 30 I.L.M. 775.
156. See id. pmbl. 2, 14,30 I.L.M. 775-76.
157. See id. arts. 2, 4 (3) (f) 30 I.L.M. 778-79, 781.
158. Id. art. 1 (1), 30 I.L.M. 777.
159. Id. art. 2(1), 30 I.L.M. 778-79.
160. Id. art. 2(2), (3), 30 I.L.M. 779. It is interesting that while the Basel Convention excludes both wastes derived from a ship and radioactive materials, the 1988 Decision extends its definition of wastes to include the former but not the latter. The Bamako Convention, on the other hand, excludes the latter, but not the former.
161. See id. art. 4(2)(a), 30 I.L.M. 780; see also id. art. 1(23), 30 I.L.M. 778 (defining "dumping at sea" as "the deliberate disposal of hazardous wastes at sea from vessels, aircraft, platforms or other man-made structures at sea, and includes ocean incineration and disposal into the seabed and sub-seabed").
162. The only other change is the addition to the of category Y.0, "[a]ll wastes containing or contaminated by radionuclides, the concentration or properties of which result from human activity." Id. Annex I.
163. The Basel Convention titles Annex I "categories of wastes to be controlled," while the Bamako Convention dues it "categories of wastes which are hazardous wastes." See id.; Basel Convention, supra note 27, Annex I, 28 I.L.M. 678.
164. Bamako Convention, supra note 77, art. 2(1)(b), 30 I.L.M. 779. It is unclear why the OAU did not employ the term "States concerned," which is defined to specifically include Parties and non-Parties to the Convention, and instead restricted the application of this provision to "Parties" to the Convention.
165. See id. art. 3, 30 I.L.M. 779.
166. This result could have been accomplished simply by employing positive language in the national testing requirement Otherwise, presuming that a Party is acting in good faith, national testing procedures include whatever methods and standards a country deems appropriate for examining a waste.
167. Bamako Convention, supra note 77, art. 4:3(f), 30 I.L.M. 773. With respect to the precautionary principle, Howard Kaminsky asserts: The precautionary approach is a shift away from scientific proof and economic analysis. It emphasizes the vulnerability of the environment, the limitations of accurately predicting threats to the environment and the measures required to prevent such threats, the availability of practical alternatives which enable the termination or minimization of inputs into the environment, and the need for long term holistic economic consideration accounting for environmental degradation and the cost of waste management Kaminsky, supra note 141, at 85.
168. See Bamako Convention, supra note 77, art. 2(1) (d), 30 I.L.M. 779. While the Basel Convention extends to hazardous substances, it does not prescribe any specific requirements other than those applicable to hazardous wastes generally. See Basel Convention, supra note 27, art. 2(1), 28 I.L.M. 659-60. However, at the Third Conference of the Parties to the Basel Convention, discussed infra Part V, the Parties adopted, among other Decisions, Decision III/27, which provides that the Secretariat is to cooperate with other international agencies in developing a binding instrument concerning trade in hazardous chemicals. See Decision III/27, Decisions Adopted by the Third Meeting, supra note 85, at 23. Furthermore, as discussed in Part IV of this Article, a bilateral agreement between Mexico and the United States also includes provisions con-cerning trade in hazardous substances. See infra Part IV.B. With respect to Africa, Wordsworth Filo Jones asserts that the nations of Africa have been particularly susceptible to the importation of hazardous chemicals: African nations frequently lack the technical expertise and regulatory infrastructure to safely handle, store, and eliminate hazardous wastes substances. African soil, groundwater, and living marine resources have been contaminated by such wastes, which eventually enter the food chain and potentially could have numerous other long-range repercussions. Jones, supra note 8, at 324.
169. Walls, supra note 17, at 754.
170. See Faith Halter, Regulating Information Exchange and International Trade in Pesticides and Other Toxic Substances to Meet the Needs of Developing Countries, 12 COLUM. J. ENVTL. L. 1, 1-3 (1987).
171. Bamako Convention, supra note 77, art. 2(1) (d), 30 I.L.M. 779.
172. For example, after reviewing the requirements imposed by the Basel Convention on transboundary shipments, Grant Kratz claims that "[apparently the drafters intend to make trade in hazardous waste so expensive that it will be more cost effective for an entity to reduce its output rather than find new places to ship it." Kratz, supra note 5, at 327.
173. However, at the Third Meeting of the Conference of the Parties to the Basel Convention, held in September 1995, the Parties agreed to an amendment to the Convention which, at least in the short term, treats wastes destined for final disposal differently from wastes destined for recovery operations. See infra Part V; Decision III/1, Decisions Adopted by the Third Meeting, su-pra note 85, at 1-2.
174. For a definition of these terms, see Basel Convention, supra note 27, art 2(10), (11), (12), 28 I.L.M. 660.
175. Id. art. 4(2)(a), 28 I.L.M 662 (emphasis added).
176. Id. pmbl., 28 I.L.M. 658.
177. Id. art 4(2)(b), 28 I.L.M. 662. This subparagraph adopts the self-sufficiency principle as disposal facilities are to "be located, to the extent possible, within it, whatever the place of their disposal." This requirement is fairly hollow since self sufficiency is merely encouraged to "the extent possible." Id.
178. The Parties to the Basel Convention note that the Convention applies equally to States of export, import, and transit Accordingly, a Party must prohibit an export when "it has reason to believe that the wastes in question will not be managed in an environmentally sound manner"; similarly, a Party must refuse an import where "the wastes in question will not be managed in an environmentally sound way in the State of import or elsewhere." Implementation of Decision 11/14 on Transboundary Movements of Hazardous Wastes Destined for Recovery Operations, Report of the Secretariat and Guidance Document on Transboundary Movements of Hazardous Wastes Destined for Recovery Operations, Third Meeting of the Conference of the Parties to the Basel Convention, at 8-9, U.N. Doc. UNEP/CHW.3/17 (1995) [hereinafter Guidance Document].
179. Basel Convention, supra note 27, art 2(8), 28 I.L.M. 660. Birnie and Boyle note that the Cairo Guidelines provide more detailed guidance ... which include [s] the use of best practicable means, approval of sites and facilities, disposal plans, monitoring, public access to information and contingency planning." BIRNIE & BOYLE, supra note 3, at 339.
180. Framework Document, supra note 39, at 4-5. These criteria are intended to provide the Parties with guidance "on waste avoidance and the management of wastes, particularly hazardous wastes, produced within their territory," as well as on whether to permit or reject a proposed transboundary shipment See Framework Document, supra note 39, at 4-5.
181. See Basel Convention, supra note 27, art. 4(4), 28 I.L.M. 662.
182. See id. art 4(7), 28 I.L.M. 663. This requirement is particularly important in light of the Technical Guidelines for the Environmentally Sound Management of Wastes, which provide that "[a]n essential feature necessary for the environmentally sound management of wastes subject to the Basel Convention generally, and hazardous wastes in particular, requires the establishment of a firm legal basis upon which to be able to regulate any operations concerned with wastes arising within or imported into the country." Framework Document, supra note 39, at 4. The Convention thus requires that the Parties establish a suitable domestic regulatory and enforcement framework necessary for ensuring that hazardous wastes are managed in an environmentally sound manner.
183. See Basel Convention, supra note 27, art 9, 28 I.L.M. 665-67, defining "illegal trafficking."
184. See id. art 4(2) (h), 28 I.L.M. 662.
185. A "State of export" is "a Party from which a transboundary movement of hazardous wastes or other wastes is planned to be initiated or is initiated." Id. art 2(10), 28 I.L.M. 660.
186. Article 4(2) (e) provides, inter alia, that a transboundary shipment must be prohibited if the Party "has reason to believe that the wastes in question will not be managed in an environmentally sound manner." Id. art 4(2) (e), 28 I.L.M. 662. This provision goes far towards adopting a proactive approach for transboundary shipments. It requires Parties to prohibit shipments on the basis of a "belief" rather than only where there is scientific or other objective evidence. Thus, under Article 4(8), States of Export are directed to ensure that exported wastes are managed in an environmentally sound manner. See id. art 4(8), 28 I.L.M. 663. Both articles provide that the Parties to the Convention must develop common criteria for making such assessments. This latter requirement seems intended to minimize possible encroachments on the sovereignty of an importing State.
187. A "State of import" is defined as: a Party to which a transboundary movement of hazardous wastes or other wastes is planned or takes place for the purpose of disposal therein or for the purpose of loading prior to disposal therein or for the purpose of loading prior to disposal in an area not under the national jurisdiction of any State. Id. art 2(11), 28 I.L.M. 660. For example, Article 4(1) (b) provides that a State of export, assuming that it has been notified in accordance with Article 13, must not allow hazardous wastes to be shipped to any Party that has prohibited the import of such wastes. See id. art. 4(1) (b), 28 I.L.M. 661. Also, a State of export may not grant permission to a transboundary shipment of hazardous wastes until it has received written consent for the specific shipment See id. art 4(1)(c), 28 I.L.M. 661. This requirement, however, is subject to the general notification requirements in paragraphs 6 through 8 of Article 6. Id. art 6(6)-(8), 28 I.L.M. 665.
188. See id. art 4(5), 28 I.L.M. 662.
189. Id. art. 8, 28 I.L.M. 666. This obligation is extremely open-ended since it does not limit what is meant by the phrase "cannot be completed in accordance with the terms of the contract"
190. An "exporter" is "any person under the jurisdiction of the State of export who arranges for hazardous wastes or other wastes to be exported." Id art. 2(15), 28 I.L.M. 660.
191. Unless the Parties to a shipment agree upon a different time schedule or make alterna-tive arrangements, re-shipment must commence 90 days from the time in which notice was tendered to the State of export and die Secretariat. An alternative disposal plan must be environmentally sound. See id.
192. See id. Presumably, the duty to re-import may be frustrated if a State of transit (i.e., "any State, other than the State of export or import, through which a movement of hazardous wastes or other wastes is planned or takes place," Basel Convetion, supra note 27, art 2(12), 28 I.L.M. 660) is not a Party to the Convention. Under such circumstances, there would be no effective means to ensure that the non-Party would grant permission for the re-shipment of hazardous wastes through its territory. For a discussion of non-Party States of transit, see infra notes 220-226 and accompanying text
193. See id. art 4 (5), 28 I.L.M. 662.
194. See id. art. 4(1), 28 I.L.M. 661.
195. See id. art 4(2) (g), 28 I.L.M. 662.
196. A "generator" is "any person whose activity produces hazardous wastes or, if that person is not known, the person who is in possession and/or control of those wastes." Id. art 2(18), 28 I.L.M. 661. According to the Draft Notification and Movement Document If two or more batches "of wastes are mixed before being moved and disposed/recovered, and/or otherwise subjected to physical or chemical operations which render the original wastes indistinguishable or inseparable in the resulting mixture, the party or parties who perform (s) these operations is (are) considered to be the generator of the new wastes resulting from these operations. Draft Notification and Movement Document, supra note 33, at 7. However, the Draft Notification and Movement Document is only an explanatory document that replaces neither the Convention nor national law.
197. An "exporter" is "any person under the jurisdiction of the State of export who arranges for hazardous wastes or other wastes to be exported." Basel Convention, supra note 27, art. 2(15), 28 I.L.M. 660.
198. A "disposer" is "any person to whom hazardous wastes or other wastes are shipped and who carries out the disposal of such wastes." Id. art 2(19), 28 I.L.M. 661. (Recall that disposal includes operations which may lead to recycling and reclamation.)
199. An "importer" is "any person under the jurisdiction of the State of [i]mport who arranges for hazardous wastes or other wastes to be imported." Id. art 2(16), 28 I.L.M. 660.
200. The Draft Notification and Movement Document provides: One important condition of the Basel Convention is that all persons involved in transboundary movement of hazardous wastes or other wastes must notify and obtain con-sent from the appropriate authorities of the concerned countries in advance of the intended shipment and that all Parties shall require that each shipment of hazardous wastes or other wastes be accompanied by a Movement Document from the point at which a transboundary movement begins to the point of disposal. Draft Notification and Movement Document, supra note 33, at 6.
201. Each Party must establish one or more competent authorities. See Basel Convention, supra note 27, art 5(1), 28 I.L.M. 664. A "competent authority" is a: governmental authority designated by a Party to be responsible, within such geographical areas as the Party may think fit, for receiving the notification of a transboundary movement of hazardous wastes or other wastes, and any information related to it, and for responding to such notification, as provided in Article 6. Id. art. 2(6), 28 I.L.M. 660.
202. See id. art. 6(1), 28 I.L.M. 664. Since the paragraph explicitly refers to "States" rather than "Parties," it presumably applies to both Parties and non-Parties.
203. See id. art 4(2) (f), 28 I.L.M. 662. The information required includes, inter alia: reasons for the shipment; a list of the exporter and any generator(s) or carrier(s); the countries involved; and the quantity, weight, and type of packaging employed. See id. Paragraph 17 of Annex V A requires that the wastes be described with reference to the nature and concentration of its most hazardous substance. See id. Annex V A(17), 28 I.L.M. 683.
204. For example, the conditions might include that the wastes be packaged, labeled, and transported in a certain manner. See id. art. 4(7), 28 I.L.M. 663. Another possibility is that a State of import or transit could demand that a particular shipment be covered, pursuant to Article 6 (11), by insurance, bond, or other similar guarantee.
205. See id. art. 6(2), 28 I.L.M. 664.
206. Article 6(2) actually provides that only States "which are Parties" must be notified, rather than all States generally. Id. art. 6(2), 28 I.L.M. 664. This stipulation, however, is modified by Article 7, which states that "the Convention shall apply mutatis mutandis to transboundary movement of hazardous wastes or other wastes from a Party through a State or States which are not Parties." Id. art. 7, 28 I.L.M. 666. Thus, while Article 6(2) only refers to Parties, it in fact applies to all States concerned in a shipment.
207. Id. art. 6(4), 28 I.L.M. 664-65.
208. The Convention fails to define or elucidate the exact nature of the general notification procedure. Article 6(7) merely requires that the States concerned consent in writing to the use of the general notification and that certain specified information, "such as the exact quantities or periodical lists of hazardous wastes... to be shipped," be supplied. Id. art. 6(7), 28 I.L.M. 665.
209. Id. art. 6(6), 28 I.L.M. 665 (emphasis added).
210. See id. art. 6(8), 28 I.L.M. 665.
211. See id. art. 6(4), 28 I.L.M. 664-65.
212. Id. It is unclear why the Parties introduced tacit consent here. Except in situations where a State of transit has entirely relinquished its right of prior consent, there is no reason to treat modification differently from the "normal" obligations in of Article 6(4) unless the modification is specifically in respect of the consent procedures.
213. See Basel Convention, supra note 27, art 6(3), 28 I.L.M. 663.
214. Depending on who the State of export designates, a notifier can be the competent authority of either the State of export, the generator, or the exporter. See id. art. 6(1), 28 I.L.M. 664.
215. The contract "should confirm that the carriers, traders and disposal/recovery facilities operate under the legal jurisdiction of the Contracting Parties to the Basel Convention and have appropriate legal status. Draft Notification and Movement Document, supra note 33, at 8.
216. See Basel Convention, supra note 27, art 6(3), 28 I.L.M. 664.
217. See id. art 4(7) (c), 6(9), 28 I.L.M. 663, 665. Interestingly, while Annex V B lists the "information to be provided on the movement document," id. Annex V B, 28 I.L.M. 651, neither Article 4(7) (c) nor Article 6(9) formally mentions the Annex. However, particularly considering that Article 18(1) provides that the Annexes are an "integral part" of the Convention, id. art 18(1), 28 I.L.M. 674, it is clear that Annex V B applies. Thus, every shipment must be accompanied by both a notification document and a movement document Only one type of waste may appear on each document See Draft Notification and Movement Document, supra note 33, at 7.
218. The purpose of the notification and movement documents is to: provide detailed, accurate and complete information of the parties involved with the movement(s), on the waste itself, on the disposal/recovery operations to which the waste is destined, and on other details relating to the proposed movement This information will allow the Competent Authorities concerned to make informed judgement on whether to object or consent to the movement according to the Basel Convention and to their national legislation. Draft Notification and Movement Document, supra note 33, at 7.
219. See Basel Convention, supra note 27, art 6(9), 28 I.L.M. 665. Article 6(9) also requires an exporter or a State of export to notify the State of import if it has not received the required information from the disposer.
220. See id. arts. 4(5), 7, 28 I.L.M. 662, 666. In other words, except for general principles of international law, a State that is not a Party to the Basel Convention is not bound to the Convention.
221. According to the Technical Working Group considering the Notification and Movement Document, there is broad interest in harmonizing the notification procedures used for transboundary shipments of hazardous wastes. The Technical Working Group notes that its proposals could be a "suitable way in which to harmonize documentation at international level." Implementation of Decision 11/16 on Documentation: Notification and Movement Document (Note of the Secretariat), Third Meeting of the Conference of the Parties to the Basel Convention, U.N. Doc. UNEP/CHW.3/19 (1995).
222. See Basel Convention, supra note 27, art. 11(1)-(2), 28 I.L.M. 668.
223. Pursuant to Article 11 (2), Parties may also enter into agreements or arrangements with other Parties. See id. art. 11 (2), 28 I.L.M. 668.
224. Id. By employing the phrase "for the purpose of," this provision ensures that only agreements in which the dominant purpose is to control transboundary movements of hazardous wastes, rather than agreements that merely touch upon transboundary shipments of hazardous wastes within the scheme of a different matter, are covered.
225. Id. This requirement applies under Article 11(2) to agreements or arrangements entered into both before and after the Convention came into force. However, for the latter, Article 11(1) also requires that such agreements "do not derogate from environmentally sound management of hazardous wastes." Id. art. 11 (1), 28 I.L.M. 668. It is not yet clear whether the phrase "do not derogate" will be read as synonymous with "compatible" or whether it will be read as imposing a higher standard.
226. It is unclear whether compatibility refers to each provision individually or to the provisions as a whole. While the Convention does not provide any definitive rules, the latter seems the more likely interpretation since Article 11(2), unlike 11(1), refers to the Convention generally. See id. art. 11(1)-(2), 28 I.L.M. 668.
227. Basel Convention, supra note 27, art. 11(1), 28 I.L.M. 668.
228. Article 15 of the Basel Convention established a Conference of the Parties and provided that meetings of the Conference shall be held at regular intervals starting no more than one year after the Convention's entry into force. See id. art 15, 28 I.L.M. 670. The first Conference was held in 1992; since that time, three additional Conferences of the Parties have been held, in 1994, 1995, and 1998.
229. Annex to Decision 11/10, Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1989, and Decisions Adopted by the First (1992) and the Second (1994) Meetings of tht Conference of the Parties, at 75, U.N. Doc. UNEP/SBC/94/3 (1994) [hereinafter Decisions Adopted by the first and Second Meetings].
230. Annex to Decision 11/10, Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1989, and Decisions Adopted by the First (1992) and the Second (1994) Meetings of tht Conference of the Parties, at 75, U.N. Doc. UNEP/SBC/94/3 (1994) [hereinafter Decisions Adopted by the first and Second Meetings].
231. Basel Convention, supra note 27, art. 4(2) (d), 28 I.L.M. 662.
232. The fact that non-Parties cannot be bound raises some interesting problems. First, there is no means for ensuring that a shipment will in fact comply with the Convention while in transit. Second, as discussed earlier, the impossibility of binding non-Parties complicates the reimportation requirement under Article 8. In other words, because a non-Party State of transit is not bound by the Convention, it could effectively deny re-shipment through its territory.
233. The movement documents follow a shipment. See Basel Convention, supra note 27, art 4(7) (c), 28 I.L.M. 663. Also, a non-Party is entitled to a copy of a State of import s final response to a request to ship hazardous wastes to a facility within its territory. See id. art. 6(2), 28 I.L.M. 664.
234. id. art. 4(2) (f), 6(1), 28 I.L.M. 662, 664.
235. id. art. 4(2)(f), 28 I.L.M. 662.
236. See id. art. 6(4), 28 I.L.M. 662.
237. See id. art. 6(6), 6(7), 28 I.L.M. 665.
238. For an example of the self-sufficiency principle, see id. art. 4(2) (b), 28 I.L.M. 662.
239. Id. art. 4(9), 28 I.L.M. 663.
240. KUMMER, supra note 75, at 55-56. In this respect, Kummer claims that "one author argues that the use of the term 'efficient' means that lower disposal costs abroad may justify export, provided that minimum environmental standards are observed." Id. at 56.
241. This rationale is not problematic as long as the purpose behind Article 4(9) was not to restrict HICs, which include a disproportionate number of States of export, from transporting wastes to LICs.
242. Essentially, this maxim provides that "the expression of one thing is the exclusion of another." BLACK'S LAW DICTIONARY 5:1 (6th ed. 1990). Realistically, such an argument would be without merit since Article 4(2)(g) ultimately requires that Parties prohibit the importation of hazardous wastes where "the wastes in question will not be managed in an environmentally sound manner." Basel Convention, supra note 27, art 4(2) (g), 28 I.L.M. 662.
243. Katharina Kummer notes that this provision may "encourage fake recycling schemes." KUMMER, supra note 75, at 56.
244. See 1992 Decision, supra note 93, Annex 1 (IV) (1). Although not specifically stated in the Basel Convention, this is also a precondition to any shipment made pursuant to the Convention. See Basel Convention, supra note 27, art. 6(3) (b), 28 I.L.M. 664.
245. See 1992 Decision, supra note 93, Annex 1 (IV) (1).
246. See id.
247. "Any person" includes natural or legal persons, whether public or private. See id. Annex 1 (I)
248. The competent authorities of the State of export may instead designate themselves responsible for sending notice. However, the notifier is often better suited for the task since the notifier is usually more knowledgeable about the contents and characteristics of the wastes.
249. 1992 Decision, supra note 93, Annex 1 (IV) (1) Case (1) (a), V (1).
250. See id. app. 2(A). The notification document must include such information as the particulars concerning the notifier, recovery facility, consignee, and, if applicable, carrier(s); the States of import and export; the countries of transit; the time of commencement; and certification of the existence of a contract (which must include a financial guarantee and insurance). Additionally, the notification must identify the waste's color tier and its classification pursuant to an accepted scheme. In this regard, the 1992 Decision proposes use of the International Waste Identification Code (IWIC), which was established by the 1988 Decision. The IWIC operates by providing a number of numerical and alphabetical codes which, when compiled together, can identify certain categorized hazardous qualities of a waste. A waste can then be subjected to the level of control assigned to it under domestic legislation.
251. This requirement is not imposed on either the State of export or the State of transit
252. See 1992 Decision, supra note 93, Annex 1 (IV) (2) Case (1) (b), V (1).
253. See id. Annex 1 (IV) (2) Case (1) (c)-(e), V (1).
254. See id. Annex 1 (IV) (2) Case (1) (g), V (1).
255. See id. Annex 1 (IV) (2) Case (1) (h), V (1).
256. Id. Annex 1 (IV) (2) Case (1) (k). Wastes may be "essentially similar" based on their physical and chemical characteristics, for example. See id. The requirements for receiving a general notification are less onerous than are the general notification procedures established under the Basel Convention, whereby in addition to possessing similar physical and chemical characteristics, wastes must be sent "via the same customs office of exit of the State of export via the same customs office of entry of the State of import, and, in the case of transit, via the same customs office of entry and exit of the State or States of transit." Basel Convention, supra note 27, art. 6(6), 28 I.L.M. 665. While the OECD provides that a general notification document may cover shipments made "periodically," 1992 Decision, supra note 93, Annex I (IV) (2) Case (1) (k), the Basel Convention states that shipments must be made "regularly." Basel Convention, supra note 27, art 6(6), 28 I.L.M. 665.
257. See 1992 Decision, supra note 93, Annex 1 (IV) (2) Case (1) (k), V (1).
258. See id. Annex 1 (IV) (2) Case (1) (k) (i), V (1).
259. See id. Annex 1 (IV) (2) Case (1) (k) (ii), V (1).
260. See id. Annex 1 (IV) (2) Case (1) (i), V (1).
261. See id. app. 2(B).
262. Unlike the Basel Convention, which specifically provides that a shipment must not be completed if the terms of the contract cannot be met, see Basel Convention, supra note 27, art. 8, 28 I.L.M. 666, the 1992 Decision does not explain what constitutes "cases where arrangements for the shipment and the recovery operations cannot be carried out as foreseen." 1992 Decision, supra note 93, Annex 1 (IV) (1) (i).
263. See 1992 Decision, supra note 93, Annex 1 (IV) (1) (i).
264. While Annex 1 provides that these actions must be carried out "within a limited period of time," it does not stipulate a specific period. 1992 Decision, supra note 93, Annex 1 (IV) (1) (ii). In contrast, Article 8 of the Basel Convention requires that all of the necessary arrangements be made within a 90-day period. See Basel Convention, supra note 27, art. 8, 28 I.L.M. 666.
265. See 1992 Decision, supra note 93, Annex 1 (IV) (1) (ii).
266. The concerned authorities may not hinder the re-importation of wastes.
267. See 1992 Decision, supra note 93, Annex 1 (IV) (2) Case (1) (j), (V) (I). Interestingly, unlike the Basel and Bamako Conventions, the OECD system does not require that notification be sent to either the notifier or the competent authorities of the concerned countries that the wastes have been recovered in an environmentally sound manner. See Basel Convention, supra note 27, art. 6(9), 28 I.L.M. 665; Bamako Convention, supra note 77, art. 6(8), 30 I.L.M. 786. However, the 1992 Decision does require that additional information be provided where irastes are designated for exchange or accumulation prior to recovery. See 1992 Decision, supra note 93, Annex 1 (IV) (5).
268. See 1992 Decision, supra note 93, Annex 1 (IV) (2) Case (1) (f).
269. See id. Annex 1 (IV) (2) Case (2) (a). Upon granting pre-consent, a competent authority must inform the OECD of the name and address of the facility, the technology used, the types of wastes involved, and the period in which the consent is valid. See id. Annex 1 (IV) (2) Case (2) (b).
270. See id. Annex 1 (IV) (2) Case (1) (k).
271. See id. Annex 1 (IV) (2) Case (2) (c).
272. Id.
273. See 1992 Decision, supra note 93, Annex 1 (IV) (2) Case (2) (d).
274. See id. Annex 1 (IV) (2) Case (2) (e).
275. See id. Annex 1 (IV) (2) Case (2) (f).
276. See id. Annex 1 (IV) (2) Case (2) (a). The OECD Secretariat must be informed where prior consent is revoked. See id. Annex 1 (IV) (2) Case (2) (b).
277. See 1992 Decision, supra note 93, Annex 1 (V) (1).
278. See id..
279. See Bamako Convention, supra note 77, art. 4(1), 30 I.L.M. 780. The Bamako Convention prescribes a host of requirements, most of which are similar to the Basel Convention, covering shipments between Party members. Notably, the Convention requires that all shipments be made pursuant to specific consent and notification procedures and that Parties only permit hazardous wastes to be imported at specified border crossings. See id. art 6(6)-(7), 30 I.L.M. 786.
280. Id. art. 4(1), 30 I.L.M. 780. However, Donald notes that "[u]nless recycled or reused hazardous wastes are strictly monitored, a non-OAU member, such as Morocco or South Africa, could bring European wastes into Africa as raw materials, identify them as such, and then export the wastes from processes using those materials to other African nations." Donald, supra note 140, at 433 n.78.
281. See Bamako Convention, supra note 77, art. 3(1), 30 I.L.M. 779.
282. Id. art. 11 (1), 30 I.L.M. 789.
283. Sre Donald, supra note 140, at 433 n. 73.
284. Id.
285. Virtually all North American transboundary shipments of wastes are transferred among the three North American countries. According to internal research conducted between 1989 and 1992 by the U.S. Environmental Protection Agency (EPA), well over 92% of all hazardous wastes exported by the United States was sent to either Canada or Mexico; except in 1992, Canada received the majority of those wastes. In 1989, 118,927 metric tons of wastes were exported from the United States, 85,418 tons (71.8%) to Canada and 25,493 tons (21.4%) to Mexico. In 1990, 118,416 tons were exported, 78,304 tons (66.1%) to Canada and 35,750 tons (30.1%) to Mexico; in 1991, 108,466 tons were exported, 58,978 tons (54.3%) to Canada and 46,615 tons (43%) to Mexico; and finally, in 1992, 145,556 tons were exported, 71,969 tons (49.4%) to Canada and 72,178 tons (49.6%) to Mexico. See U.S. Environmental Protection Agency, Internal Research Data, 1989-1992 (on file with the author). These numbers are particularly significant considering that the United States "is the major waste exporter in the world." TRANSBOUNDARY MOVEMENTS AND DISPOSAL OF HAZARDOUS WASTES IN INTERNATIONAL LAW, at LII (Barbara Kwiatkowska & Alfred H.A. Soons eds., 1993).
286. Basel Convention, supra note 27, art 11(1), 28 I.L.M. 668.
287. The Annex to Decision II/10 of the Parties to the Basel Convention provides the following list of questions that may be used to assess whether an agreement or arrangement made pursuant to Article 11 of the Convention meets the standard of environmentally sound management 1. Does the agreement address the control of the transboundary movement of hazardous wastes and other wastes subject to the Basel Convention? 2. Taking all practicable steps, will the management of hazardous wastes under the agreement or arrangement be such that it will protect human health and the environment against adverse effects? 3. How does the agreement or arrangement take into account the interests of developing countries? 4. Does the agreement or arrangement require prior notification? 5. Does the agreement or arrangement require prior consent? 6. Does the agreement or arrangement provide for the tracking of the wastes? 7. Does the agreement or arrangement provide for alternative measures for wastes which cannot be managed as planned? 8. Does the agreement or arrangement provide for the identification of authorities responsible for the implementation of such an agreement? 9. Are the obligations of the Article 11 agreement or arrangement consistent with the control measures related to transboundary movements of hazardous wastes as provided for by the Basel Convention? 10. Are the wastes covered by the Article 11 agreement or arrangement consistent with the scope of the Basel Convention? Annex to Decision 11/10, supra note 218. 276 Agreement Between the Government of Canada and the Government of the United States of America Concerning the Transboundary Movement of Hazardous Waste, Nov. 8, 1986, Canada-U.S., 39 Can T.S. 1986 [hereinafter Canada-U.S. Agreement].
288. See id. art. 1 (b).
289. Id. art. 2.
290. Id.
291. In this respect, Article 2 imposes a positive obligation on the Parties to permit the "export, import, and transit of hazardous waste across their common border for treatment, storage, or disposal." Id. The Agreement, however, fails to define what constitutes either "treatment," "storage," or "disposal." Accordingly, it is left up to each Party to define these terms. See id.
292. Id. pmbl.
293. "Designated authority" refers to the government departments responsible for receiving notice. See id. art 1 (a).
294. Id. art 3 (a). However, the use of a general notification procedure is permitted. Such a procedure may cover multiple shipments and extend over a maximum period of twelve months. See id. art. 3 (b).
295. The Agreement does not specify an amount of time. However, with respect to wastes destined for recovery, the 1992 Decision provides that an importing country must send its ac-knowledgement within three working days. See 1992 Decision, supra note 93, Annex I (IV) (2) Case (1) (b).
296. See Canada-U.5. Agreement, supra note 276, art. 3(c).
297. See id.
298. See id. art. 3(d).
299. See id.
300. See id. art. 3(f).
301. A "country of transit" refers to "the country which is neither the country of export nor the country of import, through whose land territory or internal waters hazardous waste is transported, or in whose ports such waste is unloaded for further transportation." Id. art 1 (e).
302. The required notification document contains the same information that must be sent in respect of shipments to an importing country, except that it includes a few questions specific to the particular transit See id. art 4(a).
303. See id. art. 4(a).
304. See id. art. 11 ("The provisions of this Agreement shall be subject to the applicable laws and regulations of the Parties.").
305. Annex III to the Agreement on Cooperation for the Protection and Improvement of the Environment in the Border Area, U.S.-Mex., Jan. 29, 1987. [hereinafter Mexico-U.S. Agreement]. Annex III is entitled, "Agreement of Cooperation Between the United States of America and the United Mexican States Regarding the Transboundary Shipments of Hazardous Wastes and Hazardous Substances." Id. Note that all subsequent references and citations in this Article to subdivisions of the Mexico-U.S. Agreement refer to subdivisions within Annex III of that Agreement.
306. "Activities" is defined to include "handling, transportation, treatment, recycling, storage, application, distribution, reuse or other utilization." Id. art 1(4) (emphasis added).
307. Id. pmbl., art. II(2).
308. Interestingly, neither the Mexico-U.S. Agreement nor the Canada-U.S. Agreement incorporates the goal of waste minimization demanded by the Basel Convention. Rather, the focus of both agreements is on lessening the risks caused by and associated with transboundary shipments. See generally KUMMER, supra note 75, at 113-18.
309. Mexico-U.S. Agreement, supra note 294, pmbl.
310. Interestingly, the Mexico-U.S. Agreement fails to clearly prescribe the relationship between the agreement and domestic law. For example, it provides that the Mexico-U.S, Agreement is not to be "construed to prejudice other existing or future agreements concluded between the Parties, or affect the rights or obligations of the Parties under international agreements to which they are a Party." Id. art. XV. Similarly, the Canada-U.S. Agreement states that "[t]he provisions of this Agreement shall be subject to the applicable laws and regulations of the Parties. Canada-U.S. Agreement, supra note 276, art. 11. While the Mexico-U.S. Agreement fails to explicitly state whether the treaty or domestic law takes precedence, it is reasonable to assume that domestic law prevails to the extent of any inconsistency, since the provisions of the Mexico-U.S. Agreement, particularly in regard to the definition of hazardous wastes, discussed infra, defer for the most part to the domestic law of the Parties.
311. Hazardous wastes are defined by the "national policies, laws or regulations" of the Parties. Mexico-U.S. Agreement, supra note 294, art 1(2). While the Mexico-U.S. Agreement does not provide a method for determining whether a material is hazardous, it does describe hazardous materials as those materials which, "if improperly dealt with in [recycling and reuse] activities associated with them, may result in health or environmental damage." Id. However, under a 1987 decree, hazardous wastes may no longer be sent for final disposal to Mexico. Instead, Mexico will only accept shipments when they are destined for recycling. See KUMMER, supra note 75, at 114.
312. Mexico-U.S. Agreement, supra note 294, art. II(3).
313. See id. art. III(1)-(2).
314. See id. III(2).
315. See id. According to subparagraph (vi), a notification document shall contain a "description of the treatment or storage to which the waste will be subjected in the country of import." Id. It is unclear what "treatment" and "storage" refer to since they were distinguished from "handling," "recycling," and "reuse" in the definition of "activities." See id. art. I (4).
316. See id. art. III(4); Canada-U.S. Agreement, supra note 276, art. 3(c).
317. Article X(2) of the Mexico-U.S. Agreement provides that the Parties may consider, inter alia, a regime for providing specific consent Mexico-U.S. Agreement, supra note 294, art X (2).
318. See id. art. III (1), (4).
319. Both agreements provide that the importing country may at any time issue conditional consent and withdraw or amend such consent See Canada-U.S. Agreement, supra note 276, art 3 (c), (e), (f); Mexico-U.S. Agreement, supra note 294, art III (5).
320. For example, the Agreement neither prescribes a specific length of time that a State of transit has between notification and shipment, nor does it formally stipulate the information that must be submitted to the competent authorities.
321. Mexico-U.S. Agreement supra note 294, art III(7).
322. See id. art. X. The Parties have been quite successful in this regard. For example, the U.S. EPA recently devised a joint program, the Transboundary Hazardous Waste Electronic Data Interchange (THWEDI), to improve the efficiency and effectiveness of the notification and tracking procedures. Using THWEDI, the EPA tracks all hazardous wastes shipped through EPA Regions 6 or 9 (which border Mexico) by using a computerized central database known as HAZTRAKS. The system is intended to reduce unnecessary delays and transaction costs incurred by businesses (currently, a business shipping wastes between Mexico and the United States can be required to complete more than 30 paper forms, reports, and notifications), while aiding in the compliance and enforcement of domestic laws and international commitments. Additionally, THWEDI allows the designated authority of both countries to quickly and inexpensively amend the information required for approving a shipment See U.S.-Mexico Border Pilot Project Aims to Use Computers to Track Hazardous Waste Crossing Borders, BNA INT'L ENVTL. DAILY, Mar. 3, 1995; U.S. EPA, INFORMATION SHEET - HAZTRAKS: THE US/MEXICO HAZARDOUS WASTE TRACKING SYSTEM.
323. The emphasis on exchanging information and data is particularly important in light of the fairly extensive provisions established for protecting against damage caused through hazard-ous wastes shipments. See Mexico-U.S. Agreement, supra note 294, art. XIV.
324. The Bamako Convention automatically treats the wastes enumerated in its Annex I as hazardous. Moreover, the Parties are expected to employ the precautionary principle for determining whether any other waste exhibits a hazardous characteristic. Article 4(3) (f) provides: Each Party shall strive to adopt and implement the preventative, precautionary approach to pollution problems which entails, inter alia, preventing the release into the environment of substances which may cause harm to humans or the environment without waiting for scientific proof regarding such harms. The Parties shall co-operate with each other in taking the appropriate measures to implement the precautionary principle to pollution prevention through the application of clean production methods, rather than the pursuit of permissible emissions approach based on assimilative capacity assumption. Bamako Convention, supra note 77, art 4 (3) (f), 30 I.L.M. 781.
325. Paragraph 20.33(c) of the U.N. Conference on Environment and Development's (UNCED) Agenda 21 states that countries should "promote the development of control proce-dures for the transboundary movements of hazardous wastes destined for recovery operations under the Basel Convention that encourage environmentally and economically sound options." Report of the Second Meeting of the Conference of the Parties to the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal, at 55, U.N. Doc. UNEP/CHW.2/30 (1994) [hereinafter Report of the Second Meeling]; see also Pinzon, supra note 19, at 179. Interna-tional trade in secondary materials is estimated at approximately US$50 billion annually. See Dirty Tricks in a Dirty Business: Export of Hazardous Wastes, CHEMICAL BUS. NEWS BASE, May 29,1995.
326. Paragraph 20.33(c) of the U.N. Conference on Environment and Development's (UNCED) Agenda 21 states that countries should "promote the development of control proce-dures for the transboundary movements of hazardous wastes destined for recovery operations under the Basel Convention that encourage environmentally and economically sound options." Report of the Second Meeting of the Conference of the Parties to the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal, at 55, U.N. Doc. UNEP/CHW.2/30 (1994) [hereinafter Report of the Second Meeling]; see also Pinzon, supra note 19, at 179. Interna-tional trade in secondary materials is estimated at approximately US$50 billion annually. See Dirty Tricks in a Dirty Business: Export of Hazardous Wastes, CHEMICAL BUS. NEWS BASE, May 29,1995.
327. This is typically referred to as either "fake recycling," see KUMMER, supra note 75, at 10, or "sham recycling." See Abrams, supra note 1, at 833; Kirby, supra note 88, at 287.
328. See GREENPEACE INTERNATIONAL, supra note 20.
329. This is tempered, of course, by the fact that the United States, the largest single producer of hazardous wastes, is not a Party to the Convention. See KUMMER, supra note 75, at 5.
330. See Basel Convention, supranote 27, art. 15, 28 I.L.M. 670.
331. The first meeting of the Conference of the Parties was held in December 1992 in Piriapolis, Uruguay; the second and third meetings were held in Geneva, Switzerland in March 1994 and September 1995; and the fourth meeting was held in February 1998 in Kuching, Malaysia.
332. As to hazardous wastes destined for recovery, this requirement only applies to transboundary movements of hazardous wastes under Article 1 (i) (a) of the Basel Convention. See Decision III/1, Decisions Adopted by the Third Meeting, supra note 85, at 1-2. The significance of this limitation is discussed below. As Decision III/1 has not yet been ratified, the December 31 deadline has been pushed forward to a yet undetermined date.
333. See Basel Convention, supra note 27, art 17, 18 I.L.M. 673.
334. Id.
335. Id. art. 17(3), 28 I.L.M. 673. Parties also must submit any proposed amendment to the Secretariat at least six months before the meeting at which it will be proposed for adoption. In this way, the Convention safeguards against Parties "blind-siding" one another. See id. art. 17(2), 28 I.L.M. 673.
336. Id. art. 17(3), 28 I.L.M. 673. "Parties present and voting" means "Parties present and casting an affirmative or negative vote." Id. art. 17(6), 28 I.L.M. 673.
337. The Secretary-General of the United Nations acts as the Depository for the Convention. See id. art 28, 28 I.L.M. 677.
338. Id. art. 17(5), 28 I.L.M. 673. Interestingly, paragraph 5 does not require that such instruments be submitted within a certain specified length of time.
339. it should be noted that while Article 16(1) (a) specifically requires the Secretariat to "arrange for and service meetings" provided for in, inter alia, Article 17 (i.e., amendments to the Convention), it does not require the same for Article 18. Presumably, however, the Secretariat would not refuse such a request See id. art. 16(1) (a), 28 I.L.M. 671.
340. Id. art. 18 (2) (a), (3), 28 I.L.M. 674.
341. It is unclear whether the word "unable" refers to situations where a Party is legally precluded from accepting an additional Annex (e.g., for constitutional reasons), or where a Party merely does not support the Annex (e.g., for economic, political or social reasons).
342. Basel Convention, supra note 27, art, 18(2) (b), 18 I.L.M. 674.
343. Id. art 18(3).
344. Article 25(1) provides that the Convention shall enter into force 90 days after the twentieth country has deposited its instrument of ratification, acceptance, formal confirmation, approval, or accession. See id. art. 25(1), 28 I.L.M. 676; see aiso Walsh, supra note 1, at 119.
345. Decision I/16, Decisions Adopted by the first and Second Meetings, supra note 218, at 55-56.
346. Decision I/22, Decisions Adopted by the first and Second Meetings, supra note 218, at 60-61.
347. Id. ¶ 1. Although this provision of Decision I/22 does not formally distinguish among disposal operations, it is apparent from the nature of the provision that it refers solely to final disposal activities. See id.
348. While the Parties pledged to work together in order to develop common principles, a number of countries warned against going too far. For example, Canada's representative asserted that the Parties must not forget that "unbridled passion could sometimes be dangerous." Report of the First Conference, supra note 2, at 54.
349. The brunt of the lobbying came from Sri Lanka, Malaysia, and Senegal, on behalf of the G-77 countries; El Salvador, on behalf of the Latin American countries; Finland, on behalf of the Nordic countries; and Denmark. See Letter from John C. Bullock to Denise O'Brien, ICC, Marc Patten, BIAC, Norine Kennedy, USCIB, and Walter Blum, Preussag AGA (Mar. 27, 1994) (on file with the author) (discussing the Second Meeting of the Conference of the Parties to the Basel Convention).
350. Their rationale was that both the quality of facilities and the regulations on disposal are invariably higher in an OECD Member country than in a non-OECD country. A few or the Parties also reported that on a number of occasions they had intercepted shipments that were sup-posedly destined for recovery but were in fact slated for final disposal. See Report of the Second Meeting, supra note 314, at 6.
351. Decision II/12, Decisions Adopted by the First and Second Meetings, supra note 218, at 76-77.
352. Report of the Second Meeting, supra note 314, at 7.
353. Id. at 9-10.
354. See id. 10.
355. Id.
356. Guidance Document, supra note 167.
357. See id. at 15-16, 19. The paper provides a host of criteria that should be considered before determining the environmental soundness of a particular operation. These criteria include, inter alia. • The physical and chemical state of the hazardous waste product and/or mixture; • The amount of recoverable material that will be obtained; • Where and how the waste or hazardous waste generated by the recovery operation will be finally disposed of; • Whether the waste is routinely traded internationally through established channels and whether that is evidenced by commercial transactions and contracts; • The nature and use of the product of the recovery operation; • The types of residues arising from the disposal operation; • Whether the hazardous wastes will be stored prior to recovery/recycling operations, and whether the storage environmentally adequate; •The degree of difficulty of clean-up in the case of accidental spillage or mismanagement; •The economic value of waste, bearing in mind price fluctuation; •Whether there is a technical capacity to recover/recycle the waste; • Whether there is a history of adverse environmental incidents arising from transboundary movements of the waste destined for recovery/recycling operations; • The overall environmental benefits arising from the recovery/recycling operations; • The extent of use of the waste subjected to recovery/recycling operations; and • Whether the State of export has assessed the facilities, technologies, and regulations in the State of import. See id.
358. See id.
359. Decision III/1, Decisions Adopted by the Third Meeting, supra note 85, at 1-2.
360. Decision III/1 also includes the following addition to the Preamble: "Recognizing that transboundary movements of hazardous wastes, especially to developing countries, have a high risk of not constituting an environmentally sound management of hazardous wastes as required by this Convention." Id. This new statement clearly favors further limitations on transboundary shipments.
361. This should appear as Article 1 (1) (a).
362. Decision III/1, Decisions Adopted by the Third Meeting, supra note 85, at 2.
363. Id. Liechtenstein was only included after it formally requested to be enumerated in the Annex. In a statement concerning the adoption of the amendment, the representative of Australia noted: A second area of concern to us ... was the simplistic differentiation between groups of countries. Australia is pleased to see that arbitrary distinctions between Parties are no longer part of the text of the Convention itself. The placement of a list of Parties in the Annex provides a mechanism trough which other Parties can be similarly listed if they wish. Report of the Third Meeting of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Annex III, at 23, U.N. Doc. UNEP/CHW.3/34 (1995) [hereinafter Report of the Third Meeting].
364. One difference between the two Decisions in respect to wastes destined for final disposal is that now "final disposal" is defined to include only those operations listed in Annex IV A. Also, countries are now differentiated on the basis of being specifically enumerated pursuant to an Annex rather than on the basis of membership in the OECD.
365. Report of the Third Meeting, supra note 351, at 2.
366. See Basel Convention, supra note 27, Annex III, 28 I.L.M. 678-79.
367. AS previously noted, the Technical Working Group was charged with the responsibility of providing suggestions for the clarification of Annex I and Annex III. Among other things, the Technical Working Group was asked to develop criteria for determining whether a de minimis level of hazard potential may be established for determining whether a waste enumerated under Annex I is hazardous, and to further study and develop standards for describing the characteris-tics listed in HlO to H13. See Decision III/12, Decisions Adopted by the Third Meeting, supra note 85, at 9-10. The Working Group prepared a "Consolidated Preliminary List of Wastes Placed on List A and on List B" whereby, based on their potential hazard, wastes are categorized under list "A" or list "B" or, alternatively, list "C" if the waste is yet to be categorized. This categorization, by beginning to identify possible secondary wastes, is necessary if the Parties are to fully implement Decision III/1 in the future. See Technical Working Group to Prepare Draft Technical Guidelines for the Environmentally Sound Management of Hazardous Wastes Subject to the Basel Convention, U.N. Doc. UNEP/CHW/WG.4/11/2 (1996). As discussed infra, the lists were adopted at the Fourth Conference of the Parties.
368. AS previously noted, the Technical Working Group was charged with the responsibility of providing suggestions for the clarification of Annex I and Annex III. Among other things, the Technical Working Group was asked to develop criteria for determining whether a de minimis level of hazard potential may be established for determining whether a waste enumerated under Annex I is hazardous, and to further study and develop standards for describing the characteris-tics listed in HlO to H13. See Decision III/12, Decisions Adopted by the Third Meeting, supra note 85, at 9-10. The Working Group prepared a
369. Report of the Third Meeting, supra note 351, Annex II, at 20. Similarly, the representative of Australia declared that Australia would "only consider ratifying the amendment when the work on the definition of hazardous characteristics is completed to our satisfaction." Id. Annex III, at 22. The delegate of Brazil noted that "to transform Decision II/12 into a disposition of the Basel Convention through an amendment would be desirable only if that decision was perfect and not as it stands nowadays." Id, Annex III, at 16.
370. Id. Annex I, at 19.
371. See id.
372. Id. at 8.
373. See id. at 16-17.
374. See id. at 8.
375. This is not to suggest that this was the only concern felt by the Parties. The Republic of Korea, for example, indicated that one of its concerns was the "need to respect the sovereign right of the importing country." Id. at 17.
376. Id. Annex II, at 20.
377. Id. Annex III, at 22.
378. Alternatively, of course, the Parties to the Convention may elect to keep the list of countries closed to all others except OECD members, the EC, and Liechtenstein.
379. Under Decision III/12, the Technical Working Group is charged with the responsibility of providing suggestions for the clarification of Annex I and Annex III. Among the many elements to be addressed, the Group is requested to develop criteria for determining
380. Decision III/14, Decisions Adopted by the Third Meeting, supra note 85, at 11-12.
381. The meeting replaced an earlier planned meeting in October 1997, which was canceled due to severe forest fires in Malaysia. At the time this Article was written, the official text of the Fourth Meeting had not yet been published. For an unofficial copy of the text, see the website of the Basel Convention, (visited Apr. 12, 1998).
382. Proposal of Monaco, U.N. Doc. UNEP/CHW.4/8, (visited Apr. 12, 1995).
383. Proposal of Israel, U.N. Doc. UNEP/CHW.4/9, (visited Apr. 12, 1995).
384. For an example, see the review papers of the Fourth Meeting, published by the Basel Action Network at (visited Apr. 12, 1998).
385. Guidance Document, supra note 167, at 17.
386. As mentioned, this may also lead to other benefits, such as a decrease in the amount of energy consumed. Kratz notes the examples of India and Turkey, whose respective steel industries employ electric arc furnaces rather than coke batteries and blast furnaces. As a result, energy consumption has decreased by 72%; toxic and other airborne pollutants have decreased by 86%; waste generation has decreased by 97%; and water use has decreased by 40%. See Kratz, supra note 5, at 337-38. The arc furnaces, however, rely on metal scrap, and since India and Turkey do not produce enough to supply themselves, they must rely on others. See id. By imposing a total ban, their supply could be jeopardized. See id.
387. This is consistent with the "waste management hierarchy" supported by the Technical Working Group which, in the Guidance Document, provides the following list of priorities: • Prevention of the generation of hazardous wastes; • Reduction at the source of the quantity and hazardousness of the wastes nonetheless generated; • Recovery of hazardous wastes; • Final disposal of hazardous wastes. Guidance Document, supra note 167.
388. See Donald, supra note 140, at 422.
389. See GREENPEACE INTERNATIONAL, supra note 20.
390. See Donald, supra note 140, at 423.
391. Some of the reasons often given for a complete prohibition on trade in hazardous wastes from HICs to LICs are: • It is easy to administer; • At least in respect of the banned waste, it will enhance environmental protection; • The fact that a country has consented to a shipment does not mean that it understands the nature of the wastes imported or has the capacity to deal with them in an environmentally sound manner; • Those countries that gain from die benefit of producing wastes should also incur the cost of having to deal properly with their disposal; • Environmental regulations in the LICs are bound to be lower than in the HICs, making it more difficult for LICs to meet environmental soundness standards; » Financial inducements to accept shipments of hazardous wastes are often so great that they make it difficult for LICs to reasonably assess whether to accept a shipment; and • Many LICs do not have the resources available to monitor and control every shipment See Letter from John C. Bullock, supra note 337; Donald, supra note 140, at 445-47.
392. Neither the self-sufficiency nor the proximity principle is consistently the more prudent from an environmental perspective. For example, in certain circumstances, the closest waste facility may be in a neighboring country. It may also be environmentally beneficial to transport hazardous wastes to another country if the importing country has suffer environmental regulations and/or more advanced raste facilities. These principles must not be viewed in a vacuum. Instead, countries must either develop technology to treat wastes or support those countries that establish more environmentally sound facilities. In this vein, Hackett aptly notes that "[a] ban on exports, however, may be counterproductive. Economic efficiencies may be achieved through disposal at foreign sites. Moreover, exports to these foreign facilities may provide for more environmentally protective disposal because they may be better equipped to handle certain wastes." Hackett, supra note 5, at 295.
393. LOUKA, supra note 9, at 30-31.
394. It is unclear how this classification system will help ensure that hazardous wastes are managed in an environmentally sound manner. It seems that a ban, if accepted, should extend to all transfers between non-Annex VII countries. In other words, if these countries are unable to accept wastes from Annex VII countries then they must also be incapable of handling wastes from fellow non-Annex VII countries. With respect to this issue, Canada noted that it "recognizes that many countries may not possess the technical ability to properly manage hazardous wastes in an environmentally sound manner. Canada believes that such countries view imports of hazardous wastes as threatening whether they arise from OECD or non-OECD sources." Report of the Third Meeting, supra note 351, Annex II, at 20.