INTERNATIONAL MANAGEMENT OF HAZARDOUS WASTES. The Basel Convention and Related Legal Rules KATHARINA KUMMER

Transcription

1 INTERNATIONAL MANAGEMENT OF HAZARDOUS WASTES The Basel Convention and Related Legal Rules KATHARINA KUMMER CLARENDON PRESS OXFORD 1995

2 Contents Abbreviations Foreword Table of Cases Table of Legal Instruments of the EU and the OECD Table of Treaties and other International Legal Instruments Introduction xix xxiii xxv xxvii xxxvi i I. Transboundary Movements of Hazardous Wastes in International Law 4 TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES: QUANTITIES AND CAUSES 4 A. Quantities of Hazardous Wastes 4 B. Causes of the Increase in Transboundary Movements of Hazardous Wastes 6 1. Wastes following the 'path of least resistance' 6 2. Wastes exported on a regional scale 8 3. Wastes with value as secondary raw materials 9 C. Hazardous Waste Generation in the Future 10 THE NATURE OF THE PROBLEM: CRITERIA FOR LEGAL REGULATION 12 D. The Hazardous Waste Cycle as an International and Multi-sectoral Issue 12 E. Transboundary Movements of Hazardous Wastes as an Aspect of Transboundary Pollution 13 EXISTING AND EMERGING INTERNATIONAL LEGAL RULES RELEVANT TO THE HAZARDOUS WASTE CYCLE 14 F. Customary Law Related to Pollution Control The limitation on the 'freedom to pollute' and the concept of due diligence The right of states to control activities within their area of jurisdiction Duties of co-operation and information An assessment of the relevant customary law rules 25 G. Sectoral Pollution Control Regimes 25 H. International Rules on the Transport and Management of Hazardous Substances 26

3 x Contents THE NEED FOR A GLOBAL WASTE MANAGEMENT REGIME 28 I. Uniform Global Standards and Regional Rules 29 J. Sectoral and Integrated Regulation 30 K. 'Sovereignty-based' and 'Holistic' Rules 32 L. The Preventive and the Remedial Approach 34 M. Conclusions The Basel Convention: an Analysis and Assessment 38 THE ELABORATION OF THE BASEL CONVENTION 38 A. Preliminary Work within UNEP: the Montevideo Programme and the Cairo Guidelines 38 B. The Basel Negotiation Process The Working Group and the Basel Conference Background to the negotiations Subsequent developments 46 STRUCTURE AND CHARACTERISTICS OF THE BASEL CONVENTION 47 C. The Scope of the Basel Convention Wastes covered by the Basel Convention The definition of wastes and the 'recycling dilemma' Classification of hazardous wastes and hazardous characteristics Exclusion clauses Territorial scope 52 D. General Obligations Minimization of generation and transboundary movement of hazardous wastes Environmentally sound management of hazardous wastes and the principle of non-discrimination Nature of the general obligations 60 E. Restrictions on Transboundary Movements of Hazardous Wastes Hazardous waste traffic between parties Hazardous waste traffic between parties and non-parties Absolute prohibition of hazardous waste exports to Antarctica Prohibition of hazardous waste traffic from OECD to non-oecd countries 63 F. The Prior Informed Consent (PIC) Procedure The position of the states of export and import 65

4 Contents xi 14. The position of the state of transit Party transit states Non-party transit states Wastes defined as hazardous by national legislation 70 G. Illegal Traffic and the Duty to Re-import 70 H. Liability and Compensation 72 I. International Co-operation and Exchange of Information International co-operation Exchange of information 73 J. Institutional and Financial Mechanisms Institutional mechanisms Financial mechanisms 76 K. Compliance Monitoring and Settlement of Disputes 76 AN ASSESSMENT OF THE BASEL CONVENTION 77 L. Perceived Strengths of the Convention 79 M. Perceived Weaknesses of the Convention 80 THE NEED FOR CO-ORDINATION WITH OTHER RELEVANT LEGAL INSTRUMENTS 83 The Basel Convention as an Umbrella for Regional Hazardous Waste Treaties 87 ARTICLE 11 OF THE BASEL CONVENTION 88 A. Overview 88 B. Compatibility of Separate Agreements with the Provisions of the Basel Convention Interpretation of Article 11 based on the requirement of 'environmentally sound management' Suggested broader interpretation of Article C. Limitation of the Scope of the Agreements Addressed by Article D. The Relationship between the Basel Convention and Legal Instruments Addressed by Article E. Conclusions 98 THE BASEL CONVENTION AND THE 1991 BAMAKO CONVENTION 99 F. Outline of the Elaboration History and Provisions of the Bamako Convention Scope of wastes covered Ban on imports of hazardous wastes into Africa Transboundary movements and management of hazardous wastes generated in Africa 102

5 xii Contents 6. Other provisions 103 G. The Bamako Convention as a Regional Agreement Within the Meaning of Article 11 of the Basel Convention 104 THE BASEL CONVENTION AND ARTICLE 39 OF THE LOME IV CONVENTION IO7 H. Outline of the Provision of Article 39 of the Lome IV Convention 107 I. Article 39 of the Lome IV Convention Within the Framework of Article 11 of the Basel Convention no THE BASEL CONVENTION AND THE NORTH AMERICAN BILATERAL AGREEMENTS ON TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES II3 J. Outline of the Provisions of the Agreements The agreement between Canada and the USA on transboundary movements of hazardous waste The agreement between the USA and Mexico on transboundary movements of hazardous wastes and hazardous substances 114 K. The North American Bilateral Agreements Within the Framework of Article n of the Basel Convention General considerations Environmental standards established by the Canada-USA agreement Environmental standards established by the USA-Mexico agreement 117 THE BASEL CONVENTION AND OTHER EXISTING AND EMERGING REGIONAL AGREEMENTS ON TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES L. Post-Basel Agreements on Transboundary Movements of Hazardous Wastes 118 M. Hazardous Waste Agreements Currently Under Discussion 119 N. Agreements on Wider Environmental Issues 122 CONCLUSIONS 123 Il8 4. The Relationship Between the Basel Convention and the Waste Management Systems of the EU and the OECD 126 THE BASEL CONVENTION AND THE EU RULES ON THE MANAGEMENT OF HAZARDOUS WASTES 126 A. The Management of Hazardous Wastes in EU Policy and Law 126

6 Contents 1. The waste management policy of the EU: fundamental concepts EU legislation on the management of hazardous wastes The 1975/1991 framework Directive on waste The 1991 Directive on hazardous waste The 1984 Directive on transboundary movements of toxic and dangerous waste The 1993 Regulation on the supervision and control of shipments of waste within, into and out of the European Community An assessment of EU policy and legislation 136 B. The EU Rules Within the Framework of the Basel Convention The competence of the EU and its members with regard to the conclusion and implementation of the Basel Convention International competence of the EU in the field of hazardous waste management Legal basis of EU legislation in the field of hazardous waste management The modalities of the implementation of the Basel Convention within the EU, and between the EU and other states The legal nature of the EU for the purposes of the Basel Convention The EU waste management legislation as a regional 'arrangement' within the meaning of Article n of the Basel Convention The fundamental concepts of the Basel Convention and the free movement of goods 151 C. Is the Existing and Emerging EU Waste Management Regime Compatible with the Requirements of the Basel Convention? Transboundary movements of hazardous wastes within the EU Minimization of waste generation and proximity of disposal facilities Environmentally sound waste management and the principle of non-discrimination Establishment of a control system for waste transport based on environmental considerations Provisions on illegal traffic and the duty to re-import 157 xiii

7 xiv Contents 7. Transboundary movements of hazardous wastes between the EU and third states 157 D. Conclusions 158 THE BASEL CONVENTION AND THE WASTE MANAGEMENT SYSTEM OF THE OECD 159 E. Outline of Existing OECD Rules Addressing the Hazardous Waste Cycle Legal instruments elaborated prior to the adoption of the Basel Convention The 1992 Decision concerning the control of transfrontier movements of wastes destined for recovery operations An assessment of the waste management system of the OECD 163 F. The Relationship Between the OECD Waste Management System and the Basel Convention 164 n. General considerations The Basel Convention and the 1992 OECD Decision on recyclable wastes 165 CONCLUSIONS 168 The Basel Convention Regime and Sectoral Pollution Control Treaties 172 INTRODUCTION 172 THE BASEL CONVENTION REGIME AND EXISTING TREATIES ON OCEAN DUMPING AND INCINERATION OF WASTES AND OTHER NOXIOUS SUBSTANCES 176 A. Outline of the London Convention and Other Relevant Rules 176 B. The Relationship Between the Basel Convention and the London Convention Areas of conflict and overlap Transboundary movements of hazardous wastes for the purpose of dumping or incineration at sea Shipment of hazardous wastes to the Antarctic region for the purpose of dumping or incineration at sea Areas requiring harmonization Outlook 196 THE BASEL CONVENTION REGIME AND TREATIES ON THE CONTROL OF OTHER FORMS OF POLLUTION 196

8 Contents xv C. The Basel Convention Regime and Treaties on Marine Pollution from Land-Based Sources Outline of the relevant rules The relationship between the Basel Convention regime and treaties on land-based sources of marine pollution 200 D. The Basel Convention Regime and International Rules on the Pollution of Continental Waterways 201 E. The Basel Convention Regime and the 1991 Protocol on Environmental Protection to the Antarctic Treaty 203 CONCLUSIONS Ensuring Compliance: Relevant Concepts and Mechanisms 210 THE OBJECTIVES OF ENFORCEMENT MECHANISMS IN THE CONTEXT OF HAZARDOUS WASTE MANAGEMENT 212 A. Ensuring Compliance with Relevant Rules in Order to Prevent Environmental Damage Caused by Hazardous Wastes 212 B. Restoration of the Environment and Adequate Compensation of the Victims in the Event of Damage Caused by Hazardous Wastes 212 C. Equitable Allocation of the Costs of Minimization of Risks and Redress of Environmental Damage 213 STATE RESPONSIBILITY AND STATE LIABILITY 213 D. Existing and Emerging Rules on State Responsibility and Liability Relevant to Transboundary Movements of Hazardous Wastes Forms of state responsibility and state liability Attribution to states of acts entailing responsibility Forms of reparation 219 E. Conventional Rules Established by the Emerging Global Waste Management Regime Article 9 of the Basel Convention: a basis of state responsibility for illegal traffic in hazardous wastes Article 8 of the Basel Convention: duty to re-import wastes that were legally exported Related provisions in regional waste management systems and sectoral pollution control treaties An emerging basis for state responsibility and liability in the context of waste management? 224 F. The Contribution of State Responsibility and Liability to the Achievement of the Objectives: Strengths and Weaknesses 224

9 xvi Contents INSTITUTIONAL SUPERVISION 227 G. Existing and Emerging Forms of Institutional Supervision: Precedents in Environmental Treaty Systems 227. H. Institutional Supervision Under the Emerging Global Waste Management Regime The Basel Convention Regional waste management systems and sectoral pollution control regimes 233 I. The Contribution of Institutional Supervision to the Achievement of the Objectives: Strengths and Weaknesses 235 CIVIL LIABILITY AND COMPULSORY INSURANCE 238 J. The Emergence of International Civil Liability Regimes: Precedents for the Global Waste Management Regime Strict or absolute liability. 240 n. Channelling of liability or joint and several liability Definition of damage Limitations of liability Compulsory insurance or other financial guarantee Unified procedural rules, equal access, and mutual recognition of court decisions 242 K. Civil Liability Under the Global Waste Management Regime The proposed liability protocol to the Basel Convention Other existing and emerging liability provisions under the global waste management regime 246 L. The Contribution of the Civil Liability Regimes to the Achievement of the Objectives: Strengths and Weaknesses 247 ESTABLISHMENT OF AN INTERNATIONAL HAZARDOUS WASTE COMPENSATION FUND M. The Functioning of an International Fund: Precedents for the Global Waste Management Regime 250 N. Establishment of a Fund under the Basel Convention Regime Basel Convention emergency fund ('revolving fund') Basel Convention compensation fund Establishment of regional waste compensation funds? 255 O. Contribution of the Hazardous Waste Funds to the Achievement of the Objectives: Strengths and Weaknesses 256 CONCLUSIONS O

10 Contents 7. The Contribution of the Basel Convention and Related Rules to an Emerging Global Waste Management System 261 xvii INTRODUCTION 26l THE CONTRIBUTION OF THE BASEL CONVENTION AND RELATED LEGAL INSTRUMENTS TO EMERGING RULES AND CONCEPTS RELEVANT TO THE HAZARDOUS WASTE CYCLE 262 A. Principles of Waste Minimization and Proximity of Disposal 263 B. Prohibition or Restriction of Hazardous Waste Disposal Outside the Generating State Prohibition of export of hazardous wastes to states that have banned their import Prohibition of traffic in hazardous wastes from developed to developing and transitional countries Prohibition of hazardous waste trade with states that are not parties to a particular treaty or other waste control system Prohibition of waste export for disposal in parts of the global commons considered particularly vulnerable 271 C. Environmentally Sound Management of Hazardous Wastes and Principle of Non-Discrimination 272 D. Control System Including Prior Notification and PIC 274 E. Duty to Ensure Environmentally Sound Disposal of Hazardous Wastes that were Illegally Exported or Cannot be Disposed of in the State of Import 276 F. Conclusions 278 THE EMERGENCE OF A GLOBAL, HOLISTIC AND INTEGRATED REGIME FOR THE CONTROL OF THE HAZARDOUS WASTE CYCLE 279 G. Uniform Global Standards and Regional Rules 280 H. Sectoral and Integrated Regulation 281 I. Sovereignty-Based and Holistic Rules 282 J. The Preventive and the Remedial Approach 283 K. Conclusions 284 OUTLOOK 285 Appendices I Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (22 March 1989) 288 II Decision 11/12 of the Conference of the Parties to the Basel Convention (2nd Meeting) 25 March 1994) ' 316

11 xviii III IV V VI VII Contents Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (30 January 1991) 317 Lome IV Convention (15 December 1989), Article 39 and Annexes VIII-X 344 Agreement Between the Government of Canada and the Government of the United States of America Concerning the Transboundary Movement of Hazardous Waste (28 October 1986, as amended) 346 Agreement of Co-operation Between the United States of America and the United Mexican States Regarding the Transboundary Shipments of Hazardous Wastes and Hazardous Substances (12 November 1986) 351 EC Council Regulation on the Supervision and Control of Shipments of Waste within, into and out of the European Community (No 259/93, 2I February 1993) 360 VIII OECD Council Decision Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery Operations (0(92)39, 30 March 1992) 397 IX London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (29 December 1972, as amended) 418 Bibliography 430 Index 445