THE BASEL CONVENTION IN INDIAN CONTEXT*
Boralkar and Dilip Biswas
Central Pollution Control Board
Parivesh Bhawan, East Arjun Nagar,
Delhi 110 032
|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.
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
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.
||Basel Ban And Its Implications
On The Waste Recycling And Their Transboundary Movement
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.
Bilateral, Multilateral and Regional Agreements
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.
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.
|| Article 4
||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
take the appropriate measures to ensure that the transboundary
movement of hazardous wastes and other wastes only be allowed
||The wastes in question
are required as a raw material for recycling or recovery industries
in the State of import; or
||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.
||Arguments Against Ratification
Of The Basel Ban
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?
Article 11 arrangements, which allow for bilateral and multilateral
agreements with non-parties, be continued under the ban?
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.
||The Ban Amendment and
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.
||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.
||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,.
||Decision Iv/1 & Iv/2
IV/1: Bilateral, Multilateral and Regional Agreements or Arrangements
||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;
||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;
||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.
IV/2: Guidance Elements for Bilateral, Multilateral and Regional
Agreements or Arrangements
||Takes note of the draft
guidance elements developed by the Technical Working Group;
||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;
||Encourages Parties and
States non-parties to refer to the draft guidance elements when
considering bilateral, multilateral or regional agreements or
||Article Xi And Decision
Iii/1 (Basel Ban) And Decision Iv/8
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
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
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
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.
||Stepwise Approach For
|| 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
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) &
|| 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.
India’s Position Paper with respect to the following hazard
characters in the Annex III of the Basel:
||H 6.2 : Infectious substances
|| H 11 : Toxic (delayed
||H 12 : Ecotoxic
||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)
ratification of decision III/1 and decision IV/8 till all the
issues concerning Annex VII an Article XI are sorted.