The Basel Convention on the control of transboundary movements of hazardous wastes and their disposal: 1999 Protocol on liability and compensation

Ecology Law Quarterly

Volumn 28, Issue 2, 2001, Pages 509-539

  Choksi, Sejal ^a  

^a NONE

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EID: 0039892199     PISSN: 00461121     EISSN: None     Source Type: Journal    
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References (187)

1. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 28 I.L.M. 657, 1673 U.N.T.S. 57, available at http://www.basel.int/text/con-e.pdf (last visited Apr. 15, 2001) [hereinafter Basel Convention].
2. Id. art. 12 ("The Parties shall co-operate with a view to adopting, as soon as practicable, a protocol setting out appropriate rules and procedures in the field of liability and compensation for damage resulting from the transboundary movement and disposal of hazardous wastes and other wastes.").
3. Hazardous Waste: Agreement on Liability Protocol Reached at Basel Conference of Parties, INT'L ENV'T DAILY, Dec. 13, 1999, at D2.
4. Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, Dec. 10, 1999, at http://www.basel.int/COP5/docs/prot-e.pdf (last visited Apr. 15, 2001) [hereinafter Basel Protocol].
5. Brief Description of the Basel Protocol on Liability and Compensation, at http://www.basel.int/Protocol/Protodes.html (last visited Apr. 23, 2001).
6. 138 Cong. Rec. S12,291 (1992).
7. The United States is the only industrialized country among the thirty countries that have yet to ratify the Basel Convention. News Focus: Basel Convention, PORTLAND OREGONIAN, Apr. 22, 1999, at A10.
8. Peter Obstler, Toward a Working Solution to Global Pollution: Importing CERCLA to Regulate the Export of Hazardous Waste, 16 YALE J. INT'L L. 73, 97 (1991).
9. See 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, 111 (1992).
10. Id. at 110.
11. Dean M. Poulakidas, Waste Trade and Disposal in the Americas: the Need for and Benefits of a Regional Response, 21 VT. L. REV. 873, 873 (1997). Greenpeace and other environmental non-governmental organizations (NGOs) currently provide the primary statistics regarding international hazardous waste transport. See id. at 876. The Basel Convention Secretariat may become a viable source for waste transport statistics in the future if the international reporting system established by the treaty succeeds.
12. UNEP, THE WORLD ENVIRONMENT: TWO DECADES OF CHALLENGE, 1972-1992 264 (1992).
13. This figure constitutes an eleven percent rise in U.S. generation of hazardous wastes since 1995. These estimates only include wastes produced by large quantity generators and defined as hazardous by the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6991 (2000), however, and completely exclude wastewater data. The National Biennial RCRA Hazardous Waste Report (Based on 1997 Data) ES-5, at http://www.epa.gov/epaoswer/hazwaste/data/br97/na_all.pdf (last visited Apr. 15, 2001). It is likely that the actual amount of U.S. generated hazardous waste is much higher under the Basel Convention's different definition of hazardous waste. See generally Obstler, supra note 8, at 77.
14. Poulakidas, supra note 11, at 876. Exact figures on hazardous waste transportation do not exist due to illegal dumping, improper reporting, and international disagreements over the definition of hazardous waste. Obstler. supra note 8, at 77-79.
15. This figure amounted to approximately 150,000 tons in 1990. Obstler, supra note 8, at 77.
16. At least one author has argued that noncompliance with RCRA export requirements is rampant. See id. at 84. The first U.S. criminal prosecution of an illegal hazardous waste export did not occur until 1993, when a federal jury convicted two exporters of knowingly exporting hazardous wastes from the United States to Pakistan without notifying the EPA and without acquiring the consent of the importing country, as required under RCRA. See Henry Weinstein, 2 Found Guilty of Exporting Toxic Waste, L.A. TIMES, Apr. 16, 1993, at 3. This lack of prosecution suggests that illegal trade has gone largely undetected. In a more recent discovery of illegal toxic trade in December 2000, Greenpeace brought the world's attention to 118 tons of U.S. mercury waste in illegal transit to an undisclosed dumping destination in India. When environmental activists and the governor of Maine tried to prevent the export, the U.S. refused to accept its own factory-recovered mercury, claiming the federal government lacked authority. Greenpeace Press Release, U.S. Scheme to Dump Used Mercury in India Faces Strong Opposition, Dec. 26, 2000, at http://www.greenpeaceusa.org/media/press_releases/01_01_05text.htm (last visited Apr. 15, 2001). For more information on current events regarding illegal waste activity, see Greenpeace Toxics Campaign, at http://www.greenpeace.org/~toxics (last visited Apr. 15, 2001); Basel Action Network (BAN), at http://www.ban.org (last visited Apr. 15, 2001).
17. At least one author has argued that noncompliance with RCRA export requirements is rampant. See id. at 84. The first U.S. criminal prosecution of an illegal hazardous waste export did not occur until 1993, when a federal jury convicted two exporters of knowingly exporting hazardous wastes from the United States to Pakistan without notifying the EPA and without acquiring the consent of the importing country, as required under RCRA. See Henry Weinstein, 2 Found Guilty of Exporting Toxic Waste, L.A. TIMES, Apr. 16, 1993, at 3. This lack of prosecution suggests that illegal trade has gone largely undetected. In a more recent discovery of illegal toxic trade in December 2000, Greenpeace brought the world's attention to 118 tons of U.S. mercury waste in illegal transit to an undisclosed dumping destination in India. When environmental activists and the governor of Maine tried to prevent the export, the U.S. refused to accept its own factory-recovered mercury, claiming the federal government lacked authority. Greenpeace Press Release, U.S. Scheme to Dump Used Mercury in India Faces Strong Opposition, Dec. 26, 2000, at http://www.greenpeaceusa.org/media/press_releases/01_01_05text.htm (last visited Apr. 15, 2001). For more information on current events regarding illegal waste activity, see Greenpeace Toxics Campaign, at http://www.greenpeace.org/~toxics (last visited Apr. 15, 2001); Basel Action Network (BAN), at http://www.ban.org (last visited Apr. 15, 2001).
18. For instance, in 1992 the U.S. exported twenty million tons of Basel hazardous wastes, but industry groups claimed that only 150,000 tons were hazardous under RCRA. Donna Valin, The Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal: Should the United States Ratify the Accord?, 6 IND. INT'L & COMP. L. REV. 267, 283 (1995).
19. See Ban Sought on Toxic Exports, AM. METAL MARKET, Mar. 8, 1994, at 8, available at 1994 WL 2893265.
20. Although recent figures were published in 1997, Poulakidas, supra note 11, new developments have caused government officials in the U.S. and Canada to suggest that U.S. hazardous waste exports are on the rise. Canada Becomes a Pollution Haven for U.S. Hazwaste (July 28, 2000), at http://www.ban.org/ban_news/canada_becomes.html (last visited Mar. 15, 2001); Hazardous Waste: Former UNEP Chief Blasts United States for Failing to Ratify 10-Year-Old Basel Pact, INT'L ENV'T DAILY, Dec. 10, 1999, at D3 (citing figures showing that U.S. exports increased by almost fifty percent between 1993 and 1995).
21. Although recent figures were published in 1997, Poulakidas, supra note 11, new developments have caused government officials in the U.S. and Canada to suggest that U.S. hazardous waste exports are on the rise. Canada Becomes a Pollution Haven for U.S. Hazwaste (July 28, 2000), at http://www.ban.org/ban_news/canada_becomes.html (last visited Mar. 15, 2001); Hazardous Waste: Former UNEP Chief Blasts United States for Failing to Ratify 10-Year-Old Basel Pact, INT'L ENV'T DAILY, Dec. 10, 1999, at D3 (citing figures showing that U.S. exports increased by almost fifty percent between 1993 and 1995).
22. Obstler, supra note 8, at 80.
23. Jennifer Kitt, Waste Exports to the Developing World: A Global Response, 7 GEO. INT'L ENVTL. L. REV. 485, 488 (1995). The discrepancy can be even larger. For example, U.S. treatment of PCBs can cost more than $3,000 per ton, whereas the cost to dump them in a developing country's landfill can be as low as $2.50 per ton. Sean D. Murphy, Prospective Liability Regimes for the Transboundary Movement of Hazardous Wastes, 88 AM. J. INT'L L. 24, 31 (1994).
24. Jennifer Kitt, Waste Exports to the Developing World: A Global Response, 7 GEO. INT'L ENVTL. L. REV. 485, 488 (1995). The discrepancy can be even larger. For example, U.S. treatment of PCBs can cost more than $3,000 per ton, whereas the cost to dump them in a developing country's landfill can be as low as $2.50 per ton. Sean D. Murphy, Prospective Liability Regimes for the Transboundary Movement of Hazardous Wastes, 88 AM. J. INT'L L. 24, 31 (1994).
25. Comprehensive Environmental Response, Compensation, and Liability Act of 1980 42 U.S.C. §§ 9601-9675 (2000).
26. See Kitt, supra note 21, at 488-89.
27. In 1998, the Taiwanese company Formosa Plastic Group illegally dumped 3,000 tons of mercury-laden sludge, labeled as "construction waste," in Sihanoukville, Cambodia. Cambodian news reports later alleged that customs officials were bribed more than $3 million to accept the toxic shipment. See Jud Lohnes, Taiwanese Company Dumps 3000 Tons of Toxic Waste in Cambodia, 1999 COLO. J. INT'L ENVTL. L. & POL'Y 262, 266 (2000). In June of 1999, two Cambodian customs officials were acquitted because the prosecution dropped charges. In a separate trial, a waste importer was sentenced to seven months in prison and fined $1,315, and three Taiwanese business men were convicted in absentia for their involvement in the dumping incident. See Ker Munthit, Cambodians Not Surprised at Acquittals in Toxic Waste Trial, ASSOC. PRESS NEWSWIRES, June 17, 1999.
28. In 1998, the Taiwanese company Formosa Plastic Group illegally dumped 3,000 tons of mercury-laden sludge, labeled as "construction waste," in Sihanoukville, Cambodia. Cambodian news reports later alleged that customs officials were bribed more than $3 million to accept the toxic shipment. See Jud Lohnes, Taiwanese Company Dumps 3000 Tons of Toxic Waste in Cambodia, 1999 COLO. J. INT'L ENVTL. L. & POL'Y 262, 266 (2000). In June of 1999, two Cambodian customs officials were acquitted because the prosecution dropped charges. In a separate trial, a waste importer was sentenced to seven months in prison and fined $1,315, and three Taiwanese business men were convicted in absentia for their involvement in the dumping incident. See Ker Munthit, Cambodians Not Surprised at Acquittals in Toxic Waste Trial, ASSOC. PRESS NEWSWIRES, June 17, 1999.
29. Poulakidas, supra note 11, at 877.
30. The environmental justice movement addresses the adverse environmental effects that activities such as hazardous waste disposal can wreak on minority communities, which often lack the political and economic clout to express their right to a healthy environment. Environmental justice concerns arise in the case of hazardous waste disposal, because industrialized countries often have economic incentives to dump their wastes in developing nations, which are frequently populated by disadvantaged communities who cannot afford to manage long-term environmental damages.
31. See Obstler, supra note 8, at 79.
32. Many residents of developing countries drink untreated water and fall victim to poisonous industrial contaminants because heavy precipitation causes landfilled waste to quickly leach into the groundwater. Additionally, as in the United States, landfills are often located in economically disadvantaged areas, and impoverished residents have been known to search landfills for possible items to use or sell. Kitt, supra note 21, at 491.
33. Representatives of developing nations used this term to discuss the industrialized countries' hazardous waste dumping. William N. Doyle, United States Implementation of the Basel Convention: Time Keeps Ticking, Ticking Away, 9 TEMP. INT'L & COMP. L.J. 141, 142 n.13 (1995).
34. In 1986, after attempts at domestic disposal failed, the city of Philadelphia loaded 15,000 tons of incinerator ash, labeled as "fertilizer," onto the ship Khian Sea. Refused by numerous ports including the Bahamas and Haiti and controversially publicized by Greenpeace, the crew changed the name of the ship to the Pelicano and continued to search for a dumping ground. Eventually reports emerged that the hazardous cargo had "disappeared." While 3,000 to 4,000 tons of the toxic ash continue to contaminate a Haitian beach, many suspect that the rest lies on the floor of the Indian Ocean. See Walsh, supra note 9, at 105-06; Valin, supra note 17, at 268.
35. See David J. Abrams, Regulating the International Hazardous Waste Trade: A Proposed Global Solution, 28 COLOM. J. TRANSNAT'L L. 801, 817 (1990).
36. Jason L. Gudofsky, Transboundary Shipments of Hazardous Waste for Recycling and Recovery Operations, 34 STAN. J. INT'L L. 219, 224-25 (1998).
37. Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes, Apr. 2, 1987, Annex II, U.N. Doc. EP/GC.14/17.
38. The Cairo Guidelines specifically addressed developing countries' hazardous waste treatment concerns and offered a framework to develop effective policies to self-manage hazardous wastes. See Abrams, supra note 31, at 816.
39. Id. at 817 (quoting Report of the Ad Hoc Working Group on the Work of Its Second Session 3, U.N. Doc. EP/WG.186/3 (1988)).
40. Special Report: U.N. Officials See Basel Treaty as 'Limping' into Effect, INT'L ENV'T DAILY, May 22, 1992.
41. Id.
42. See id.
43. Ratifications, at http://www.basel.int/ratif/ratif.html#conratif (last visited Apr. 15, 2001) (the United States, Haiti, and Afghanistan are currently the only signatories that have failed to ratify the Convention).
44. About the Basel Convention, at http://www.basel.int/about.html (last visited Apr. 15, 2001). See generally Basel Convention, supra note 1, art. 4.
45. The Basel Convention defines this term vaguely, as "taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects that may result from such wastes." Basel Convention, supra note 1, art. 2, § 8.
46. Id. art. 1 (describing the scope of Convention coverage); id art. 2 (defining wastes as "substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law"); id. Annex I (listing the hazardous wastes covered under the Treaty); id. Annex II (listing "Categories of Wastes Requiring Special Consideration" including household wastes).
47. Id. Annex II.
48. Id. art. 1, § 1(b).
49. Id. art. 6.
50. The information to be provided includes the reason for waste export, names of the exporter, generator and disposer, expected countries of transport, information relating to insurance, estimated quantity in weight and volume and the process by which the wastes were generated. For a complete list of the twenty requirements, see id. Annex V A.
51. See Kitt, supra note 21, at 497. See generally Basel Convention, supra note 1, art. 6.
52. Basel Convention, supra note 1, art. 8.
53. Id. art. 4, § 5.
54. Kitt, supra note 21, at 496.
55. Basel Convention, supra note 1, art. 10, § 2 (d).
56. Id. art. 16. No transfer of technology from an industrialized to a developing country has thus far been documented, however. See Kitt, supra note 21, at 497-98.
57. UNEP: Basel Convention, at http://www.basel.int/index.html (last visited Apr. 15, 2001).
58. United Nations: New UNEP Boss Says U.N. Must Help Restore Agency's Environmental Impact, INT'L ENV'T DAILY, Feb. 26, 1998, at D-2.
59. See. e.g., Special Report, supra note 36; Basel Action Network, at http://www.ban.org (last visited Apr. 16, 2001).
60. See Basel Convention, supra note 1, art. 14, § 2.
61. Hazardous Waste: Negotiations Stall on Basel Protocol on Liability, Compensation for Spills, INT'L ENV'T DAILY, Sept. 10, 1999, at D-2.
62. Id. The Basel Secretariat is not aware of any transboundary accidents requiring funds and has stated that there have been no requests from developing countries for international monetary assistance. E-mail from Pavel Suian, Official for the Basel Secretariat, to author (Apr. 14, 2001) (on file with author).
63. Basel Convention, supra note 1, art. 11 ("Parties may enter into bilateral, multilateral, or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with Parties or non-Parties provided that such agreements or arrangements do not derogate from the environmentally sound management . . . as required by this Convention.").
64. Id.
65. Kitt, supra note 21, at 499. Many Parties have notified the Basel Secretariat of the formation of art. 11 agreements, but thus far the Secretariat has not received any complaints that an outside agreement has circumvented the Convention. E-mail from Pavel Suian, Official for the Basel Secretariat, to author (Apr. 14, 2001) (on file with author).
66. Kitt, supra note 21, at 500.
67. William Schneider, The Basel Convention Ban on Hazardous Waste Exports: Paradigm of Efficacy or Exercise in Futility?, 20 SUFFOLK TRANSNAT'L L. REV. 247, 280-82 (1996). See generally Basel Convention, supra note 1, art. 9, § 5.
68. Basel Convention, supra note 1, art. 19.
69. Id. art. 20. Under the Convention, nations in dispute "shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice." Disputes that cannot be settled in this manner should be submitted to the International Court of Justice or to an arbitral tribunal to be established according to the procedures in Annex V. Id. 66. Telephone interview with Jim Puckett, Basel Action Network (Jan. 29, 2001).
70. Valin, supra note 17, at 275; Special Report, supra note 36.
71. Basel Convention, supra note 1, art. 11.
72. Gudofsky, supra note 32, at 246. African nations expressed their dissatisfaction with the Basel Convention's vague control mechanisms by forming their own convention in 1991. The Organization for African Unity (OAU) nations refused to sign the Basel Convention because of its lack of a total ban, impotent Secretariat, and ambiguous liability provisions. On January 29, 1991, OAU adopted the Bamako Agreement - a strict ban that prohibits the import of any hazardous wastes into Africa from non-Member countries and requires members to reduce their hazardous waste generation. See id.
73. Hazardous Waste: Basel Convention Partners Ban Exports from OECD to Developing World, INT'L ENV'T DAILY, Sept. 26, 1995, at D-2.
74. Basel Convention, supra note 1, art. 17. Three-fourths of the Parties present at the adoption of the Amendment must ratify. See The Basel Ban, at http://www.basel.int/pub/BaselBan.html (last visited Apr. 16, 2001).
75. Ratifications, at http://www.basel.int/ratif/ratif.htm#banratif (last visited Apr. 16, 2001).
76. Hazardous Waste: U.S. Chamber Reconsidering Opposition to Basel Pact in Wake of Recent Changes, INT'L ENV'T DAILY, Mar 10, 1998, at D3.
77. Under the 1998 agreement, prohibited List A wastes include arsenic, lead, and mercury, while permissible List B wastes materials include gold, silver, tin, and aluminum. There is also a List C that contains unclassified wastes which will eventually be placed on either List A or List B. See Hazardous Waste: Some Industry Opposition to Basel Treaty Addressed in Proposed Waste List System, INT'L ENV'T DAILY, Feb. 11, 1998, at D-5. For complete lists, see Report of the Fourth Meeting of the Conference of the Parties to the Basel Convention, at http://www.basel.int/meetings/sbc/cop/Feb4sess.pdf (last visited Apr. 16, 2001).
78. See supra notes 74-75. Greenpeace opposes the listing system because it believes the categories allow industrialized nations to weaken the Ban by sham recycling. Environmentalists claim that sham recycling permits industrialized countries to ship toxic, List A wastes to the developing world under the guise of recyclable wastes.
79. Basel Convention, supra note 1, art. 12.
80. Hazardous Waste: Agreement on Liability Protocol Reached at Basel Conference of Parties, INT'L ENV'T DAILY, Dec. 13, 1999, at D2.
81. Id.
82. Signatures of the Basel Protocol on Liability and Compensation, at http://www.basel.int/ratif/ratprot.htm (last visited Apr. 16, 2001). Chile, Colombia, Costa Rica, Denmark, Finland, France, Hungary, Luxembourg, Monaco, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, and the United Kingdom of Great Britain and Northern Ireland have signed the Basel Protocol.
83. Hazardous Waste: Agreement on Liability Protocol Reached at Basel Conference of Parties, INT'L ENV'T DAILY, Dec. 13, 1999, at D2.
84. Text: UNEP Press Release on Basel Convention on Hazardous Wastes, Dec. 14, 1999, at http://www.usinfo.state.gov/topical/global/environ/latest/ 99121401.htm (last visited Apr. 18, 2001).
85. The "notifying entity" is the nation, waste generating company, or exporting/shipping company that notifies the importing nation of the pending waste shipment. If the notifying entity is the exporting nation, the exporter (not the generator) is held liable. See Basel Protocol, supra note 4, art. 4.
86. The "disposer" is the entity that carries out the disposal of the wastes at their final destination. This entity can be a waste recycling or recovery company or a landfill agency. See Basel Convention, supra note 1, art. 2.
87. Basel Protocol, supra note 4, art. 4.
88. Id.
89. Id. art. 5.
90. Id. Annex B.
91. See id.
92. See id. For shipments of up to five tons of waste, for example, the award cannot be less than one million SDR (Special Drawing Rights, an international currency) or U.S. $1.38 million. In contrast to the method of liability determination outlined for notifiers, exporters, and importers, disposers are liable for at least two million SDR for any one harmful incident. Hazardous Waste: Agreement on Liability Protocol Reached at Basel Conference of Parties. INT'L ENV'T DAILY, Dec. 13, 1999, at D2.
93. Basel Protocol, supra note 4, art. 12.
94. Id. art. 14. Insurance companies have criticized the Protocol's liability provisions. They complain that the inclusion of both strict and fault-based liability complicates responsibility and makes insurance assessments difficult. They also argue that assigning liability for illegal waste shipments or negligent or reckless acts, as the Protocol attempts to do through Article 5, runs counter to the established principles of liability insurance. Hazardous Waste: Compromise Text on Liability Protocol Done; Final Draft of Basel Change Expected by Fall, INT'L ENV'T DAILY, June 29, 1999, at D2.
95. Despite the capacity for coverage, only a limited number of insurers offer these international environmental liability policies. Hazardous Waste: Insurers Seen Ready to Meet Demand for Cross-Border Liability Coverage, INT'L ENV'T DAILY, Dec. 10, 1999 (citing a report titled Financial Limits of Liability and Compulsory Insurance Under the Draft Protocol on Liability and Compensation for Damage Resulting from Transboundary Movement of Hazardous Wastes and Their Disposal, at http://www.unep.ch/basel/COP5/predocs/Eng/cop5-infl4e.pdf (last visited Apr. 17, 2001)).
96. Basel Protocol, supra note 4, art. 17.
97. Id. art. 14.
98. Toxic Waste Treaty Declares Next Decade: No Time for Waste, Dec. 10, 1999, at http://www.ban.org/ban_news/no_time_for_waste.html (last visited Apr. 17, 2001) (quoting Dr. Kevin Stairs of Greenpeace International).
99. Hazardous Waste: Negotiations Stall on Basel Protocol on Liability, Compensation for Spills, INT'L ENV'T DAILY, Sept. 10, 1999, at D-2. As UNEP stated after the tumultuous negotiations, "[t]he difficulties were not technical or legal but rather political." Id.
100. Saving the Basel Liability Protocol, Aug. 30, 1999, at http://www.ban.org/subsidiary/liability10.html (last visited Apr. 17, 2001).
101. Basel Protocol, supra note 4, art. 4.
102. Hazardous Waste: Agreement on Liability Protocol Reached at Basel Conference of Parties, INT'L ENV'T DAILY, Dec. 13, 1999, at D2 ("[CERCLA joint liability is] undercut by the option to terminate liability under the protocol, which acts as a significant and real incentive to export.").
103. Id. As a non-Party to the Basel Convention, U.S. generators only have to deal with OECD regulations and the requirements of relevant bilateral agreements.
104. See Saving the Basel Liability Protocol, supra note 98.
105. Many developing countries lack the technology to treat hazardous wastes properly, and thus wastes usually end up in landfills or in leaking waste storage facilities close to settlements. Additionally, the climate in many developing nations creates even more danger, as monsoons can cause chemicals from landfills and waste facilities to seep into the groundwater more quickly. Kitt, supra note 21, at 491; Abrams, supra note 31, at 808.
106. Basel Protocol, supra note 4, at art. 15(2).
107. Hazardous Waste: Agreement on Liability Protocol Reached at Basel Conference of Parties. INT'L ENV'T DAILY, Dec. 13, 1999, at D2 (developing countries lobbied for stronger wording that would make financing obligatory); Hazardous Waste: Negotiators Hit a Snag on Protocol on Spill Liability, Schedule Final Meeting, INT'L ENV'T DAILY, Feb. 9, 1999, at D4 (industrialized nations argue that they should not have to commit to an international fund since they are already prohibited from shipping hazardous wastes to developing countries).
108. Hazardous Waste: Agreement on Liability Protocol Reached at Basel Conference of Parties. INT'L ENV'T DAILY, Dec. 13, 1999, at D2 (developing countries lobbied for stronger wording that would make financing obligatory); Hazardous Waste: Negotiators Hit a Snag on Protocol on Spill Liability, Schedule Final Meeting, INT'L ENV'T DAILY, Feb. 9, 1999, at D4 (industrialized nations argue that they should not have to commit to an international fund since they are already prohibited from shipping hazardous wastes to developing countries).
109. Basel Protocol, supra note 4, art. 3(7)(a) ("The Protocol shall not apply to damage due to an incident occurring during a transboundary movement of hazardous wastes . . . pursuant to a bilateral, multilateral or regional agreement or arrangement").
110. Jerrold A. Long, Protocol on Liability and Compensation for Damage Resulting from the Transboundary Movements of Hazardous Wastes and Their Disposal, 1999 COLO. J. INT'L ENVTL. L. & POL'Y 253, 259 (1999); Gudofsky, supra note 32, at 237 (ninety-five percent of trade is OECD waste).
111. Hazardous Waste: Agreement on Liability Protocol Reached at Basel Conference of Parties, INT'L ENV'T DAILY, Dec. 13, 1999, at D2.
112. Mark Bradford, The United States, China & The Basel Convention on the Transboundary Movements of Hazardous Wastes and Their Disposal, 8 FORDHAM ENVTL. L.J. 305, 325-28 (1997).
113. 42 U.S.C. §§ 6901-6991 (2000).
114. RCRA has no extraterritorial effect, so all enforcement under the statute must take place before the wastes leave the United States. RCRA also defines hazardous wastes less expansively than the Basel Convention (it does not include household wastes, for example) and lacks requirements that the importing state be able to properly manage the wastes. See Kenneth D. Hirschi, Possibilities for a Unified International Convention on the Transboundary Shipments of Hazardous Wastes, 10 GEO, INT'L ENVTL. L. REV. 169, 181-83 (1997); Doyle, supra note 29, at 147 (noting that the 1984 Hazardous and Solid Waste Amendments attempt to address U.S. exports but do not go as far as the Basel Convention).
115. See Hazardous Waste: Administration Commits to Begin Process of Implementing Basel Early Next Congress, INT'L ENV'T DAILY, Aug. 27, 1998, at D2. RCRA currently authorizes EPA to develop criteria for identifying hazardous wastes, impose standards upon domestic generators, transporters, and disposers, and solicit waste export documentation such as notification and consent papers. See Kate Sinding, The Transboundary Movement of Waste: A Critical Comparison of U.S. Interstate Policy and the Emerging International Regime, 5 N.Y.U. ENVTL. L.J. 796, 819 (1996). Unfortunately, as one federal government official has complained, even baseline data is so lacking under RCRA that EPA "does not know whether it is controlling 90 percent of the existing waste or 10 percent." Obstler, supra note 8, at 78.
116. See Hazardous Waste: Administration Commits to Begin Process of Implementing Basel Early Next Congress, INT'L ENV'T DAILY, Aug. 27, 1998, at D2. RCRA currently authorizes EPA to develop criteria for identifying hazardous wastes, impose standards upon domestic generators, transporters, and disposers, and solicit waste export documentation such as notification and consent papers. See Kate Sinding, The Transboundary Movement of Waste: A Critical Comparison of U.S. Interstate Policy and the Emerging International Regime, 5 N.Y.U. ENVTL. L.J. 796, 819 (1996). Unfortunately, as one federal government official has complained, even baseline data is so lacking under RCRA that EPA "does not know whether it is controlling 90 percent of the existing waste or 10 percent." Obstler, supra note 8, at 78.
117. Many U.S. industry groups claim that any attempt to delegate control over hazardous wastes to the EPA would give the agency arbitrary power over U.S. trade. The most recent draft legislation gives EPA "a lot of discretion. They can refuse a shipment for any reason" and there would be no judicial review of such EPA decisions. Hazardous Waste: EPA Faulted for Grabbing Too Much Power Under Draft Basel Convention Legislation, INT'L ENV'T DAILY, Apr. 5, 1999, at D4.
118. Although the U.S. government intends for RCRA to protect residents from hazardous waste calamities, the federal government has no authority to reject an international waste import unless it violates a U.S. law. In fact, existing U.S. environmental waste laws provide such insufficient protection that, in the past, the United States has been forced to turn to the law of the exporting country to protect U.S. residents from hazardous waste imports See Hazardous Waste: Taiwan Waste Shipment Controversy Raises Questions about Import Policies, INT'L ENV'T DAILY, Aug. 22, 2000, at D5.
119. Bradford, supra note 109, at 327.
120. As a non-Party, the United States may not conduct hazardous waste trades with Basel Convention Parties unless it convinces Parties to form bilateral agreements under Article 11 of the Convention. Since the United States is now a member of NAFTA, a Basel-exempted multilateral agreement, the United States' non-party status does not affect its waste trade with Canada and Mexico.
121. H.R. 2580, 102d Cong. (1991) (sponsored by Representative Towns (D-NY)). This bill was also supported by environmentalists. See Doyle, supra note 29, at 149.
122. Walsh, supra note 9 at 129.
123. H.R. 3736, 101st Cong. (1989) (sponsored by Representative Synar (D-OK)). See Obstler, supra note 8, at 85.
124. Walsh, supra note 9, at 132.
125. H.R. 2398, 102d Cong. (1991) (introduced by the Bush Administration). See Walsh, supra note 9, at 132.
126. Doyle, supra note 29, at 153.
127. Hazmat Transport: Disputes Over Documentation, Classification Expected at U.N. Meeting, U.S. Officials Say, INT'L ENV'T DAILY, June 28, 1999, at D3. The Clinton Administration specifically complained that the Convention is too broad and that some wastes covered by the agreement are not subject to U.S. hazardous waste regulations. The Department of Transportation has stated that "some wastes" that U.S. companies are currently permitted to transport under RCRA as recyclable would be restricted under the Basel Convention. Id.
128. Ban Sought on Toxic Exports, AM. METAL MARKET, Mar. 8, 1994, at 8, available at 1994 WL 2893265.
129. Doyle, supra note 29, at 155.
130. H.R. 3706, 103d Cong. (1992) (sponsored by Representative Towns (D-NY)).
131. Doyle, supra note 29, at 158.
132. Principles For Basel Convention Implementing Legislation, Extension of Remarks, Proceedings, and Debates of the 103d Congress, at 1994 WL 69847, Mar. 8, 1994.
133. H.R. 3965, 103d Cong. (1994) (introduced by Representatives Al Swift (D-WA) and Mike Synar (D-OK)); Valin, supra note 17, at 286-87.
134. Bradford, supra note 109, at 328. Industry groups vehemently oppose waste trade restrictions on shipments intended for recycling and recovery. Not only does the U.S. economy profit from trade in recyclables and recoverables to foreign countries, but officials claim that developing nations rely on this access to essential raw materials. Doyle, supra note 29, at 155.
135. More controversially, ratification of the Basel Convention without the Ban Amendment could be viewed as an endorsement of the practice of dumping wastes in economically impoverished developing nations. Telephone interview with Jim Puckett, supra note 66.
136. Hazardous Waste: U.S. Chamber Reconsidering Opposition to Basel Pact in Wake of Recent Changes, INT'L ENV'T DAILY, Mar. 10, 1998, at D3 (hailing the classification system as "a milestone . . . 'a big advance' in international policy on hazardous waste trade").
137. Hazardous Waste: EPA Seeks Comment on Plan to Harmonize OECD Waste System with Basel Convention, INT'L ENV'T DAILY, Aug. 18, 1999, at D2.
138. Hazardous Waste: Basel Liability Protocol Would Not Help Countries Expand Capacity, Attorney Says, INT'L ENV'T DAILY, Oct. 21, 1996, at D7.
139. The Protocol sets minimum financial limits for compensation in strict liability situations. See supra Part II. The U.S. State Department believes these minimums will impact trade in recyclable materials. Industrialized nations also want to clarify the Protocol to exempt OECD waste activities. Hazardous Waste: Agreement on Liability Protocol Reached at Basel Conference of Parties, INT'L ENV'T DAILY, Dec. 13, 1999, at D2.
140. Long, supra note 107, at 260 (citing Daniel Pruzin, Hazardous Waste: Agreement on Liability Protocol Reached at Basel Conference of Parties, DAILY ENV'T REP., Dec. 13, 1999, at AA-1).
141. Doyle, supra note 29, at 159 (quoting Hazardous Waste: Administration Bill on Basel Convention Said Delayed by Lack of White House Moves, DAILY REP. FOR EXECS, No. 205, Oct. 26, 1993, at A2).
142. Search of the Congressional Record, Westlaw (executed Nov. 30, 2000). See also Telephone interview with Jim Puckett, supra note 66; Telephone interview with Julie Gourley, Foreign Affairs Officer at the State Dep't, former Environmental Protection Specialist at the EPA (Office of Solid Wastes), Feb. 28, 2001; Telephone interview with Paul Hagen, Attorney at Beveridge & Diamond, Feb. 27, 2001.
143. Congressman Thomas Bliley (R-VA) was a leading proponent of ratification. See Telephone interview with Julie Gourley, supra note 138.
144. Id. The wastes at issue are from U.S. military bases located in non-Party countries. If the United States became a Basel Party, it would be prohibited from importing the wastes under the ban on trade with non-Parties. Any military waste imports would have to be conducted under separate bilateral agreements, requiring a large expenditure of time and resources.
145. Special Report, supra note 36.
146. Id.
147. Id.
148. Basel Action Network, Briefing Paper: Why the U.S. Must Ratify the Entire Basel Convention, Dec. 1998, at http://www.ban.org/Library/briefp2.pdf (last visited Apr. 23, 2001).
149. Basel Action Network, Saving the Basel Liability Protocol, Aug. 30, 1999, at http://www.ban.org/subsidiary/liability10.html (last visited Apr. 17, 2001).
150. Id.
151. Telephone interview with Jim Puckett, supra note 66. Mr. Puckett stressed the lack of environmental presence during the final moments of the Protocol discussions as one reason for the weak provisions. Greenpeace missed two meetings due to lack of resources, and the Parties dropped the originally strong language regarding the international fund. Additionally, Mr. Puckett mentioned that the entire Protocol process was conducted in English and without interpreters, even though the Protocol debates were highly technical and legal.
152. Basel Basics, at http://www.basel.int/pub/basics.html#min (last visited Apr. 23, 2001).
153. Hazardous Waste: Basel Parties Call for Minimizing Waste, Improving Capacity-Building for Handling, INT'L ENV'T DAILY, Dec. 13, 1999, at D3.
154. Ratification without the Ban Amendment would allow the United States to benefit from trading wastes with Convention Parties, but continue to ship hazardous wastes to developing countries. In effect, partial ratification would undermine the efficacy of both the Amendment and the Basel Convention.
155. Industry groups with a stake in U.S. participation in the Basel Convention include the Scrap Metal Industry, the Chemical Manufacturers Association, and the Ship Scrapping Industry.
156. See Hazardous Waste: U.S. Chamber Reconsidering Opposition to Basel Pact in Wake of Recent Changes, INT'L ENV'T DAILY, Mar. 10, 1998, at D3.
157. Environmental groups argue that these activities will ultimately lead to sham recycling, in which industrialized countries send toxic wastes to the developing world under the guise of recyclable wastes. Telephone interview with Jim Puckett, supra note 66.
158. Hazardous Waste: U.S. Chamber Reconsidering Opposition to Basel Pact in Wake of Recent Changes, INT'L ENV'T DAILY, Mar. 10, 1998, at D3.
159. Telephone interview with Julie Gourley, supra note 138.
160. Walsh, supra note 9, at 136. The Philippines and Japan have also recently approached the United States about forming bilateral trading agreements. See Hazardous Waste: Philippine Group Urges Ratification of Treaty on Waste Traffic with U.S., INT'L ENV'T DAILY, June 15, 2000, at D6; Hazardous Waste: U.S. Embassy Says Cargo of PCB Waste Soon to be Sent to Wake Island in Pacific, INT'L ENV'T DAILY, May 9, 2000, at D2.
161. Walsh, supra note 9, at 136. The Philippines and Japan have also recently approached the United States about forming bilateral trading agreements. See Hazardous Waste: Philippine Group Urges Ratification of Treaty on Waste Traffic with U.S., INT'L ENV'T DAILY, June 15, 2000, at D6; Hazardous Waste: U.S. Embassy Says Cargo of PCB Waste Soon to be Sent to Wake Island in Pacific, INT'L ENV'T DAILY, May 9, 2000, at D2.
162. Austria, Germany, and Italy have all reported a rise in illegal waste trading. See Enforcement Experts Urge UNEP to Take Lead in Efforts to Combat Environmental Crimes, INT'L ENV'T DAILY, Aug. 19, 1999, at D7.
163. Anger over Import of Hazardous Waste, Panafrican News Agency Daily Newswire, Sept. 18, 2000, available at 2000 WL 26654711.
164. Australia and South Africa allegedly violated the Basel Convention's 1995 Ban Amendment and the Bamako Agreement in 2000. Australia (an OECD nation) exported sixty tons of hazardous wastes to South Africa (a developing country). While Australia had not ratified the Ban Amendment and South Africa had not signed the Bamako Agreement, both were Parties to the Basel Convention and were therefore obligated to comply with the agreement. Id. Additionally, Switzerland and Japan allegedly violated the Basel Convention by dumping ninety-two trucks of hazardous, mislabeled medical and industrial wastes in the Philippines in 1999. The Philippines initiated criminal prosecution against the countries, but Japan recently agreed to prevent the recurrences of such events by forming a bilateral agreement under the Basel Convention. Philippines: Government Alleged Swiss, Japanese Plan to Dump Hazardous Waste in Manila, INT'L ENV'T DAILY, Dec. 30, 1999, at D3.
165. Telephone interview with Paul Hagen, supra note 138. The EPA's latest draft implementation proposal also puts forward a "stronger ban" than the 1995 Ban Amendment. As one observer has noted: The plan imposes a strict control on U.S. exports that would set the bar so high that developing countries could not receive the waste unless they could manage it in an environmentally sound manner, in effect a de facto ban. It's up to the Bush administration, now. The problem is that the environmentalists don't trust the U.S. government or EPA. Telephone interview with Julie Gourley, supra note 138.
166. Kate Sinding, supra note 112, at 813; Theodore Waugh, Where Do We Go From Here: Legal Controls and Future Strategies for Addressing the Transportation of Hazardous Wastes Across International Borders, 11 FORDHAM ENVTL. L.J. 477, 498 (2000).
167. Waugh, supra note 161, at 498.
168. Hazardous Waste: Bliley 'Disappointed' as Administration Fails to Respond to Inquiry on Basel Convention, INT'L ENV'T DAILY, Feb. 7, 2000, at D2.
169. Hazardous Waste: Attempts to Implement Basel Treaty Delayed by Administration Conflicts, INT'L ENV'T DAILY, June 15, 1998, at D6.
170. GATT promotes the nondiscrimination of trade through Article I's "most favored nation" principle, Article III's "national treatment" guarantee, and Article XI's prohibition on quantitative restrictions.
171. These GATT violations may qualify as exceptions under Article XX, which states that violations can be justified if they are "necessary" to protect human, animal, and plant life and health. The Basel trade restrictions may be viewed as simply a mechanism to pressure countries to ratify the Convention, rather than as "necessary" to protect life and health, however. For more information on GATT and potential interference with environmental protection, see Mike Meier, GATT, WTO, and the Environment: To What Extent do GATT/WTO Rules Permit Member Nations to Protect the Environment When Doing So Adversely Affects Trade?, 8 COLO. J. INT'L ENVTL. L. & POL'Y 241 (1997).
172. Since the Ban Amendment has yet to enter into force and actions under the Basel Convention have yet to reach the judicial system, it is too soon to tell whether the Convention and existing free trade treaties can be reconciled. See id. at 281-82.
173. Hirschi, supra note 111, at 189.
174. NAFTA Flouts Global Toxic Waste Treaty, Nov. 15, 2000, at http://www.ban.org/ban_news/nafta.html (last visited Apr. 22, 2001). Canada, a Party to the Basel Convention, recently refused to export PCB waste to U.S. waste management companies under Article 4.9 of the Basel Convention. The court held, under NAFTA, that Canada was obligated to export the toxic waste shipment and awarded a judgement of $50 million to the United States. This NAFTA decision undermines the Basel Convention by demonstrating that free-trade interests trump the Convention, even though NAFTA provides and proponents insist that environmental interests should prevail. Many environmentalists claim that environmental interests were mocked in this first power struggle between international treaties.
175. See Hirschi, supra note 111, at 191.
176. Some observers have opposed U.S. ratification of the Basel Convention because scrap metal meant for recycling could be considered a hazardous waste under the Basel regulations. Asbestos & Lead Abatement Report: Basel Convention Approves Final Pact, But Some Question Fate of Agreement, Dec. 1, 1999, at 1999 WL 10391434.
177. Hazardous Waste: Recycling Industry Urges Military not to Export Ships for Scrapping, NAT'L ENV'T DAILY, Mar. 6, 1998, at D2. Scrap metal represents a major resource in many developing countries, such as India, and ships are usually sold to the "highest bidder," with little consideration of worker safety and environmental regulations regarding asbestos, PCBs, and other toxic substances contained by the obsolete ships.
178. Hazardous Waste: Agreement on Liability Protocol Reached at Basel Conference of Parties, INT'L ENV'T DAILY, Dec. 13, 1999, at D2 (It is "unreasonable to have the . . . levels of liability floors stipulated in the agreement" because there may be a low level of risk associated with the activity, yet the trade would be "unreasonably choked off.").
179. Telephone interview with Julie Gourley, supra note 138.
180. E-mail from Pavel Suian, supra note 61 ("We cannot name them or the countries involved.").
181. See Greenpeace and BAN websites. Greenpeace Toxics Campaign, at http://www.greenpeace.org/~toxics (last visited Apr. 15, 2001); Basel Action Network (BAN), at http://www.ban.org (last visited Apr. 15, 2001).
182. See General Public Policy Issues: New Protocol Sets Liability & Compensation Scheme in Europe for Transboundary Shipment & Disposal of Hazardous Waste, Mar. 9, 2000, at http://www.emi.org/public_policy/general_eu_waste_protocol.htm (last visited Apr. 22, 2001).
183. Public awareness may require an international hazardous waste disaster, a Hollywood dramatization of the international situation, or a charismatic champion.
184. The new Bush Administration may introduce Basel implementation legislation solely for the United States to regain its political clout in the international treaty making arena. If it ratifies the Basel Convention, however, it will most likely do so without the 1995 Ban and the 1999 Protocol. Telephone interview with Paul Hagen, supra note 138.
185. See Hearings Before the Subcomm. on Env't, Energy and Natural Resources, 100th Cong. 2 (1988).
186. Id.; see also Obstler, supra note 8, at 82.
187. The Basel Convention ratification ordeal, coupled with continued U.S. failure to ratify the Biodiversity Convention, Kyoto Protocol, and various human rights treaties, has hurt the United States' international reputation in terms of foreign relations and environmental solutions. See Hazardous Waste: Bliley 'Disappointed' as Administration Fails to Respond to Inquiry on Basel Convention, INT'L ENV'T DAILY, Feb. 7, 2000, at D2.