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IMPLICATIONS OF
THE BASEL CONVENTION IN INDIAN CONTEXT*

D.B. Boralkar and Dilip Biswas
Central Pollution Control Board
Parivesh Bhawan, East Arjun Nagar,
Delhi 110 032

ABSTRACT

Hazardous wastes belong to the category of special wastes having constituents of chemicals, metals and other compounds which can cause environmental pollution. In order to regulate and ensure environmentally sound management of the hazardous wastes, the Govt. of India notified the Hazardous Wastes (Management & Handling) Rules, 1989 under the Environment (Protection) Act, 1986. The Government of India has ratified the Basel Convention on the control of transboundary movement of hazardous wastes and their disposal (under the aegis of UNEP). Provisions and certain decisions of the Basel Convention will have to be harmonised within the domestic legislation according to the India’s commitment to the Convention. These will have implications on the Indian industry and environment. The issues and options available for India, within the framework of the Convention, have been discussed.
1.0

Introduction

  1.1
Hazardous wastes belong to the category of special wastes having constituents of chemicals, metals and compounds which can exhibit hazardous characteristics and damage environment. Disposal of the hazardous waste necessitate proper management and handling in an environmentally sound manner. The Basel Convention on the control of transboundary movements of hazardous wastes and their disposal, adopted by the Conference of Plenipotentiaries in Basel in 1989, was developed under the auspices of the United Nations Environment Programme. This instrument of multilateral environmental agreement represents the intention of the international community to solve the global environmental problem of hazardous waste in a collective manner
 
1.2


The Basel Convention calls for international co-operation between parties in the environmentally sound management of hazardous wastes and the improvement of national capabilities to manage hazardous wastes in an environmentally sound manner. One of the most important decisions of the Basel Convention is the one establishing the immediate prohibition of export of all transboundary transfers of hazardous wastes which are destined for final disposal from OECD to non-OECD States. Further, the transboundary transfer of hazardous wastes for recycling or recovery operations from OECD to non-OECD states to be phased out by 31 December, 1997. However, notwithstanding the general obligations (ref. Article 4, paragraph 5), parties may enter into bilateral, multilateral or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with parties provided that such agreements or arrangements do not derogate from environmentally sound management of hazardous wastes and other wastes as required by the Basel Convention.

The present paper is an attempt to illustrate implications of the Basel decisions in the Indian context and to evoke discussion on the stepwise approach that could be considered for follow-up of the issues. A need for formulating comprehensive proposals for way forward need no emphasis.

2.0 Basel Ban And Its Implications On The Waste Recycling And Their Transboundary Movement
 

The first and foremost problem that the recycling industry in India faces is the lack of a clear-cut definition of a hazardous waste as per Basel. Further, the Basel definition of wastes includes those meant for recycling/re-use operations as well. There is no distinction between (i) wastes that are hazardous in nature and, therefore, their movement should be prohibited, and (ii) wastes that are non-hazardous and recyclable, and their import/export should be allowed. As a result of this non-distinction, many of the important recyclable have been included under the Basel ban. The Basel ban also discriminates against non-parties and non-annex VII states, unless bilateral, multilateral or regional agreements under Article 11 of the Convention are allowed to continue when the export ban becomes legally binding after ratification of the amendment by 75% of the parties. If the Article 11 provision is negated by the amendment, then the export ban will clearly be discriminatory.

India is unable to continue sourcing recyclable from developed countries, even if one can ensure environmentally sound management of these materials in the country.

First, in the absence of availability of non-ferrous metallic scrap or wastes from the developed countries as a result of the ban and the scarcity of virgin ores, India is forced to resort to (i) the import of concentrate, as well as (ii) depend on primary production process of virgin metals, in order to meet the internal demand. Both options are uneconomical.

Second, if recycling operations for wastes generated/imported are not sustained properly, the wastes generated in the country will end up in the final disposal. In the long term, one would expect a proportional increase in waste generation in India matching the pace of rapid industrialization.

Third, dumped recyclable wastes may prove to be more environmentally hazardous. The metallic content that of leachates from the wastes upon exposure to different environments may cause ground water pollution. This again demands precautionary steps to be taken to carry out the disposal operations and the whole exercise will be even more costly.


3.0

Article 11
Bilateral, Multilateral and Regional Agreements
  1.
Notwithstanding the provisions of Article 4 paragraph 5, 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 of hazardous wastes and other wastes as required by this Convention. These agreements or arrangements shall stipulate provisions which are not less environmentally sound than those provided for by this Convention in particular taking into account the interests of developing countries.
  2.
Parties shall notify the Secretariat of any bilateral, multilateral or regional agreements or arrangements referred to in paragraph 1 and those which they have entered into prior to the entry into force of this Convention for them, for the purpose of controlling transboundary movements of hazardous wastes and other wastes which take place entirely among the Parties to such agreements. The provisions of this Convention shall not affect transboundary movements which take place pursuant to such agreements provided that such agreements are compatible with the environmentally sound management of hazardous wastes and other wastes as required by this Convention.
4.0 Article 4
  (5) A Party shall not permit hazardous wastes or other wastes to be exported to a non-Party or to be imported from a non-Party
  (9) Parties shall take the appropriate measures to ensure that the transboundary movement of hazardous wastes and other wastes only be allowed if:
    (b) The wastes in question are required as a raw material for recycling or recovery industries in the State of import; or
    (c) The transboundary movement in question is in accordance with other criteria to be decided by the Parties, provided those criteria do not differ from the objectives of this Convention.
5.0 Arguments Against Ratification Of The Basel Ban
  In 1995, Parties to the Basel Convention adopted Decision III/1, an amendment that would ban the transboundary movement of hazardous wastes destined for final disposal and for recycling/recovery operations from States listed in the Convention's Annex VII (mainly industrialized countries from OECD) to States not listed in Annex VII (mainly developing countries). The ban amendment is contentious because it prohibits such trade to the disadvantage of India that depend on waste recyclable as secondary raw materials. The Basel ban totally disregards the capacity that exists in the country for the environmentally sound management of such materials.(See Annexure I) At its 1998 meeting, Parties to the Convention addressed what the ban will cover, but remained silent on questions critical to its implementation, such as:
  Who can be listed in Annex VII and under what conditions?
  Would Article 11 arrangements, which allow for bilateral and multilateral agreements with non-parties, be continued under the ban?
   

The Parties decided to leave Annex VII unchanged until the ban amendment enters into force; they agreed to report the results of an analysis of Annex VII related issues at the next Conference. They also agreed to continue clarify criteria for establishing Article 11 arrangements.

While most traded recyclable material will not be subject to the ban at the moment except lead acid batteries, waste oil etc. but inclusion of some of the recylable wastes is possible in future because hazard characterization and waste classification are continuous activities. Moreover, Parties left room for interpretation that the ban might be extended by national governments to other materials. Therefore, non-Annex VII States (read India) are not guaranteed the ability to continue importing recyclable from Annex VII States. Consequently, if countries like India are not able to either enter into Article 11 arrangements or become listed in Annex VII, the trade disruption created by the export ban will be magnified to the undue disadvantage to the country.

  5.1 The Ban Amendment and the GATT
   

Another argument against the ban amendment is its contravention of basic General Agreement on Tariffs and Trade (GATT) rules. Contrary to the most-favored-nation (MFN) clause of GATT Article I, which requires that countries not to discriminate between goods on the basis of origin or destination. The ban appears to confer upon Annex VII States the advantage of access to supply not similarly accorded to non-Annex VII States. While non-Annex VII States would be prevented from sourcing their import requirements of waste recyclable from Annex VII States, the latter would be allowed to import the same materials from the former as well as from other countries in Annex VII group.

The ban amendment also violates GATT Article XI, which explicitly prescribes the use of prohibitions or restrictions other than customs tariffs. As well, the amendment does not appear to be justified by any of Article XI's exceptions. The exception relating to exports pertains to prohibitions for preventing or relieving critical shortages of foods and products essential to the exporting country; however, the Basel ban amendment does not cite critical shortages as justification.

  5.2 GATT Article XX
   

Given these apparent inconsistencies, would anything in GATT Article XX (the general exceptions clause) provide justification for WTO members that are Parties to the ban amendment to discriminate against those WTO members that are non-Parties? Apparently not.

First of all, the export ban would be applied in a manner that arbitrarily or unjustifiably discriminates between countries where the same conditions prevail. Some non-Annex VII States are economically advanced and share similar conditions with a majority of Annex VII States, yet they would be discriminated against because they are not in Annex VII. Conversely, there are Annex VII States that do not necessarily share the same conditions as the rest of the group, but would be able to continue receiving waste recyclable because they are listed in Annex VII.

Also, the export ban does not appear to constitute a necessary measure for the protection of health and the environment. Parties do not appear to have explored alternatives that are less trade-restrictive yet able to achieve the Convention's environmental objectives. If the argument for the export ban is that capacity for environmentally sound management in developing countries is absent or weak, should the ban not also apply to trade between these countries? This is not the case, as the Convention does not prevent trade in recyclable wastes among non-Annex VII countries.

Finally, the Basel ban does not appear to be primarily aimed at conserving exhaustible natural resources. If recycling activity slackens or ceases because of the export ban, domestic wastes that would otherwise have been recycled may end up in final disposal because recycling them may no longer be profitable with environmentally sound management practices in the organized sector. Further, the consumption of virgin material and energy may increase due to shortage of secondary materials for recycling. This will also affect the competitive ability and pricing of the products.

  5.3 Course of Action
    India, that would be disadvantaged by the Basel ban should therefore study the implication of the ban on the environment and industry. Outcome of this study could form the basis for review petition by the respondents before the Supreme Court of India against the court order dated 4th July, 1997 issued in the matter of Writ Petition (Civil) No.657 of 1995.
    For conflicts arising from the implementation of a multilateral environmental agreement (MEA), India may initiate steps to resolve the problems within the mechanisms available in the Basel (MEA) for dispute resolution.
    India should focus on building and maintaining capacity for the environmentally sound management of wastes rather than pursue the route of ban to achieve the environmental objectives of the Convention,.
6.0 Decision Iv/1 & Iv/2 Of Basel
  Decision IV/1: Bilateral, Multilateral and Regional Agreements or Arrangements
    The Conference
    1. Takes note of the information provided by the Parties on the conformity of their bilateral, multilateral and regional agreements or arrangements with Article 11 of the Basel Convention, taking into account the list of questions annexed to decision II/10 of the second meeting of the Conference of the Parties;
    2. Requests the Parties that have entered, in accordance with Article 11, into bilateral, multilateral and regional agreements or arrangements and that have not yet reported on the conformity of such agreements or arrangements with the said Article, to report through the Secretariat to the next session of the Open-ended Ad Hoc Committee, taking into account the list of questions annexed to decision II/10;
    3. Requests the Secretariat of the Basel Convention to establish and update a list of bilateral, multilateral and regional agreements or arrangements in effect, report to the Secretariat, and to distribute this list on a regular basis to Parties and non-Parties.
  Decision IV/2: Guidance Elements for Bilateral, Multilateral and Regional Agreements or Arrangements
    The Conference
    1. Takes note of the draft guidance elements developed by the Technical Working Group;
    2. Extends the mandate of its Technical Working Group and gives a mandate to the Consultative Sub-group of Legal and Technical Experts and requests these two groups to cooperate closely on this subject with a view;
      (a) To further elaborating on the text of the draft guidance elements;
      (b) To presenting to the next meeting of the Open-ended Adhoc Committee the revised draft elements for adoption by the fifth meeting of the Conference of the Parties;
    3. Encourages Parties and States non-parties to refer to the draft guidance elements when considering bilateral, multilateral or regional agreements or arrangements.
7.0 Article Xi And Decision Iii/1 (Basel Ban) And Decision Iv/8
 

This issue was discussed at Pretoria in November 1998 during the Joint Meeting of Technical Working Group with Consultative Sub-group of Legal and Technical Experts of the Basel Convention. Views expressed by the delegates as minuted in the report of the meeting are reproduced below:

Several delegates expressed the opinion that they would need more time to be able to consider the documentation related to this agenda item including further consultations in their countries. It was therefore agreed that the countries interested could send their comments and opinions on this issue to the Secretariat no later than 31 December 1998 which would be subject to further discussions at the next meeting of the Group.

There was a general agreement that the Bilateral, Multilateral or Regional Agreements or Arrangements cannot be seen and used to circumvent the provisions of the Basel Convention.

Many delegations stressed the relationship between Bilateral, Multilateral or Regional Agreements or Arrangements and Decision III/1 and underlined that Article 11 does not allow the conclusion of agreements or arrangements as an exception to the export ban laid down in Article 4A. Some other delegates, however, reserved their right to interpret the implementation of Article 11 in relation with Decision III/1 in accordance with the general rules of international law and emphasized that as long as the Amendment is not in force, the conditions of Decision III/1 do not constitute provisions of the Basel Convention.

One delegate stated that his country is still addressing the issue of the relationship between Article 11 agreements and Decision III/1. At this stage of the review, it believes that a country should be able to enter into bilateral agreements with any country that demonstrates its ability to manage hazardous wastes in an environmentally sound manner.

Some delegates were of the opinion that the Bilateral Agreements or Arrangements should be limited in time, and be subjected to prior notification to the Secretariat. One delegation expressed the view that these agreements or arrangements can only refer to certain specific hazardous wastes and another one emphasized that these agreements or arrangements should always be done with full knowledge and approval of the Focal Point of the Basel Convention to avoid situations in which another Ministry than the Focal Points makes the arrangements which then risks not to follow exactly the required provisions.

Many delegates made concrete proposals for the draft Guidance Elements for Bilateral, Multilateral or Regional Agreements or Arrangements and the Chairman decided to convene an Open-ended informal Group under the chairmanship of the United Kingdom to revise the text of Guidelines which was presented to the Conference of the Parties. (The outcome of the work of the Open-ended informal group under the chairmanship of the United Kingdom was reported to the meeting and is available with the Report as its Annex-2.)

At the time of the adoption of the draft guidance elements for bilateral, multilateral or regional agreements or arrangements, the following experts made statements and requested for their inclusion into the report:

Australia stated that it is unable to accept the amended point (c)(iii) of the draft guidance elements for bilateral, multilateral or “Decision III/1”. This conflicts with Australia’s view that Decision III/1 in no way impairs a Party’s right to enter into bilateral agreements or arrangements under Article 11 of the Convention. Australia’s view on this issue, which was recorded in a statement made at the time of adoption of Decision III/1 was that Parties have the right to interpret the Convention for themselves in accordance with international law and that this principle should be maintained with regard to Article 11 agreements and arrangements and their relation to Decision III/1.

South Africa stated that it was discussed in the Africa Group meeting that the issues listed in (c) (i) and (ii) are general in so far as they do not detail the obligations of Parties. Furthermore, many of the points listed in (d) are not optional considerations, but are in fact obligatory in the Convention. A clear distinction must be made between obligatory considerations in the Convention and additional factors for consideration in the conclusion of agreements. It would be useful to list in detail the obligations referred to in (c) (i) and (ii) and factors to be considered by Parties in order to give effect to such obligations.

New Zealand said it would have preferred to leave out amended point (c) (iii) of the draft guidance elements as it seemed to imply a restrictive interpretation of the relationship between Decision III/1 and Article 11 which is not agreed by all Parties at this time. It also considered that the contents of point (c) (iii) were already covered in the more general statement contained in paragraph (c)(i).

Denmark stated that it follows that there cannot be agreement or arrangement which constitute an exception to the export ban laid down in Article 4A. The United States stated that while the U.S. has always supported the principle that States should be encouraged to ratify the Basel Convention, the last sentence of paragraph (a) and the last phrase of paragraph (d) from the words: “conditions to the renewal …. (through) … ratification of the Basel Convention” of the draft guidance elements for bilateral, multilateral or regional agreements or arrangements are inappropriate. There are many reasons why nations enter into bilateral and multilateral agreements, and it is not the role of other States to sit in judgement of a State’s motivation for exercising its ordinary powers to conclude international agreements. The United States therefore requests that these new provisions be removed from the draft text.

8.0 Stepwise Approach For Way Forward:
  Study implications of the Basel ban on the industry and environment.
  Identify the wastes required for import for use as raw material from Annex VIII and Annex IX.
  Identify the potential candidate countries ( Annex VII and/or non-Annex VII) for bilateral/multilateral agreements under Article XI.
  Identify procedure to be followed separately for each type of waste to be imported i.e. PIC (prior informed consent, red ) or PIN (prior informed notification, amber ) or normal exchange of commercial papers (green) and include the same in the agreements
  Identify criteria for environmentally sound management of hazardous wastes imported in India for re-use/re-processing as raw material. The criteria so decided shall not differ from the objectives of the Basel Convention. [Reference: Article 4(9): (b) & (c)]
  For conflicts that may arise from the implementation of a multilateral environmental agreement (MEA), begin preparations to initiate steps to resolve the problems within the mechanisms available in the Basel (MEA) for dispute resolution.
  Formulation of systematic action plans that should focus on building and maintaining capacity for the environmentally sound management of wastes rather than pursue the route of ban to achieve the environmental objectives of the Convention.
  Prepare India’s Position Paper with respect to the following hazard characters in the Annex III of the Basel:
    (i) H 6.2 : Infectious substances
    (ii) H 11 : Toxic (delayed or chronic)
    (iii) H 12 : Ecotoxic
    (iv) H 13 : Capable, by any means, after disposal, of yielding another material, e.g. leachate, which may possesses any of the other characteristics listed in Annex III. (TCLP)
  Withhold ratification of decision III/1 and decision IV/8 till all the issues concerning Annex VII an Article XI are sorted.
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