AN EXAMINATION OF THE INTERNATIONAL LEGAL FRAMEWORK FOR THE CONTROL OF TRANSBOUNDARY MOVEMENT OF HAZARDOUS WASTE
Author: O. M. Atoyebi S.A.N FCIArb. (U.K.)., Contributor: VICTOR ATANG
The transboundary movement and disposal of hazardous waste became an issue of global concern in the early 1970s. The major and primary concern was the exportation of hazardous waste from industrialized and developed countries to developing countries for disposal. The growing concern in this regard made the development and implementation of international and regional legal frameworks, regulations, policies and agreements as well as principles a matter of exigency. One such principle is the principle of Prior informed consent (PIC) which provides for the regulation of the international exchange of resources or products, including hazardous waste, that could have adverse effects on human health and the environment and such exchange may not proceed without informed agreement or consent of the competent authority in the recipient State.
The first effort to manage and regulate hazardous waste movement internationally came from the Organization for Economic Cooperation and Development (OECD).[1] [1] The OECD developed a set of principles to develop and control the movement of hazardous waste among countries in the OECD and created a system to classify and control such waste. This article primarily examines the movement and trade of hazardous waste between countries and the international regulations in place to address such movement. The aim is to secure an environmentally safe society.
CONCEPTUAL CLARIFICATION AND DEFINITION OF TERMS
It is worth noting from the onset that there is no globally accepted definition of the term hazardous waste. Different scholars have proffered their definitions of the term. The United Nations Environmental Programme (UNEP) defined hazardous waste as any waste or combination of waste with the potential to damage human health, living organisms or the environment[2] [1]. UNEP further stated that hazardous waste usually require special handling and disposal procedure which are regulated by national and international laws.[3] [2] Hazardous wastes are spiked materials that pose a substantial threat to human health and the environment when segregated, sorted, handled, treated, stored, transported and disposed of under improper as well as uncontrolled conditions. The types of hazardous waste include infectious waste, anatomical waste, radioactive waste, pharmaceutical waste, sharps, genotoxic/cytotoxic waste, chemical waste, etc.
On the other hand, Transboundary movement of waste involves the movement of hazardous waste or other waste from an area under the national jurisdiction of one State to, or through an area under the jurisdiction of another State or to, or through an area not under the national jurisdiction of any State, provided at least two States are involved in the movement[4] [3]. Transboundary movement of hazardous waste is principally governed by the principle of prior informed consent (renamed Advanced Prior Informed Consent) which is the principle that States should have the right to know what they might be allowing across their border and what dangers it could cause and that based on this knowledge should be able to refuse import. There are four stages involved in the prior informed consent principle, namely;
- Notification
- Consent and Issuance of document
- Transboundary movement
- confirmation of disposal[5] [4]
INTERNATIONAL FRAMEWORK FOR TRANSBOUNDARY MOVEMENT OF HAZARDOUS WASTE
When hazardous waste disposal regulations expanded in developed nations during the 1970s and 1980s, many entities and countries started looking for less expensive disposal locations. Shipments of hazardous waste therefore increased dramatically. Less developed countries were tempted by offers of substantial revenues to accept wastes but lacked the technology or administrative capacity to dispose of them safely. Some of this trade was legal, but much was not, with the wastes entering countries covertly due to bribes or labelled as something else. In light of this, it became imperative for an international legal instrument to be enacted to regulate the transboundary movement of hazardous waste and also prohibit the illegal movement of such waste. Over the years, several international and regional legal instruments have been enacted to regulate this environmental menace among which include; the Basel Convention, the Bamako Convention, and the Stockholm Convention. It is now proposed to examine these international legal instruments individually.
The Basel Convention
The Basel Convention on the Control of Transboundary Movement of Hazardous Waste and Their Disposal was opened for signature in 1989 and entered into force in 1992. Nigeria ratified the Basel Convention on the 13th of March 1991, and it entered into force on the 5th of May, 1992[6] [1]. Thus, the provisions of the Basel Convention are applicable to Nigeria. The following essential objective guides the Convention’s provisions:
- The reduction of hazardous waste generation and the promotion of environmentally sound management of hazardous wastes, wherever the place of disposal
- The restriction of transboundary movement of hazardous waste except where it is perceived to be in accordance with the principles of environmentally sound management, and
- A regulatory system applying to cases where transboundary movements are permissible[7] [2]
As earlier stated, the Basel Convention adopts the principle of prior informed consent. This principle is encapsulated in Article 6 paragraphs 1, 2 and 3 of the Basel Convention which states that:
- The state of export shall notify or shall require the generator or exporter to notify in writing, through the channel of the competent authority of the State of export, the competent authority of the States concerned of any proposed transboundary movement of hazardous wastes or other wastes. Such notification shall contain the declarations and information specified in Annex V A, written in a language acceptable to the State of import. Only one notification needs to be sent to each State concerned.
- The State of import shall respond to the notifier in writing, consenting to the movement with or without conditions, denying permission for the movement, or requesting additional information. A copy of the final response of the State of import shall be sent to the competent authorities of the States concerned which are Parties.
- The State of export shall not allow the generator or exporter to commence the transboundary movement until it has received written confirmation that:
(a) The notifier has received the written consent of the State of import; and
(b) The notifier has received from the State of import confirmation of the existence of a contract between the exporter and the disposer specifying environmentally sound management of the wastes in question[8] [3].
It is worth noting that any transboundary movement of hazardous waste that is not in compliance with the above provisions is illegal.[9] [4] The convention also places the duty to re-import. The implication of the duty to re-import is to the effect that when a transboundary movement of hazardous wastes to which the consent of the State concern has been given, subject to the provisions of the Convention, cannot be completed in accordance with the terms of the contract, the State of export shall ensure that the wastes in question are taken back into the State of export, by the exporter, if alternative arrangements cannot be made for their disposal in an environmentally sound manner, within 90 days from the time that the importing State informed the State of export and the Secretariat, or such other period as the States concerned agree[10] [5]. The Convention also encourage international cooperation among member-states[11] [6], creation of bilateral and multilateral regional agreement[12] [7] (e.g., Bamako Convention) as well as easy transmission of information[13] [8].
Article 15 of the Basel Convention established the Conference of the Party. This is the decision-making body comprising all members and they meet at regular intervals. At the 15th meeting of the COP held from 6th – 17th June 2022, parties agreed to amend the Convention to make all electronic and electrical waste subject to the PIC procedure. The latest meeting of the Conference of the Party being the 16th Meeting was held in Switzerland from 1-12 May, 2023 with the theme “Accelerating action: Targets for the sound management of chemicals and waste. Some of the key outcomes of the meeting were the adoption of updated technical guidelines on the environmentally sound management of plastic waste and the ignition of work to improve the functioning of Prior Informed Consent (PIC) procedure and to develop a new strategic framework[14] [9]
The Stockholm Convention
The Rotterdam Convention on Organic Persistent Pollutants adopted in September 1998 and entered into force in February 2004, encourages cooperation and shared accountability amongst parties involved in the worldwide trade of some hazardous chemicals in order to prevent potential harm to the environment and human health. Nigeria ratified the Stockholm Convention on 24th May 2004 and it came into force on 22nd August 2004[15] [1]. Consequently, the provisions of the Stockholm Convention are binding on Nigeria.[16] [2]
The Convention enjoins parties to take legal and administrative measures necessary to eliminate the production of organic persistent pollutants (POP) which are toxic chemicals that adversely affect human and the environment around the world[17] [3]; and the import and export of these pollutants[18] [4]. Paragraph 2 of Article 3 of the Convention however allows POPs to be imported for the purpose of environmentally sound disposal. At the recent meeting of the COP[19] [5] of the Convention, delegates considered a proposal to add a new Annex to the convention that would list chemicals on which Parties could not reach a consensus.
The Rotterdam Convention
The Rotterdam Convention on the Prior Informed Consent Procedure for certain Hazardous Chemicals and Pesticides in International Trade was adopted in 1998 and entered into force in 2004. Nigeria ratified the Rotterdam Convention on 28th June 2001 and it entered into force on 24th February 2004. Consequently, the provisions of the convention are binding on Nigeria. Each party to the Convention is mandated to designate one or more national authorities that shall be authorized to act on its behalf in the performance of the administrative functions required by this Convention. This is otherwise known as the focal point.
The primary objective of the Rotterdam Convention is to promote shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous chemicals in order to protect human health and the environment from potential harm and to contribute to their environmentally sound use, by facilitating information exchange about their characteristics, by providing for a national decision-making process on their import and export and by disseminating these decisions to Parties[20] [1]
The essential attention of the Convention is on chemical waste. The Convention establishes a list of covered chemicals[21] [2] and requires parties seeking to export a chemical on that list to first establish that the intended importing country has consented to the import[22] [3]. At recent the nineteenth meeting of the Chemical Review Committee and the Persistent Organic Pollutants Review Committee of the Rotterdam Convention held from 3rd – 6th October 2023 in Rome, there was an adoption of draft decision guideline documents for methyl bromide and paraquat as chemical waste to be listed in Annex III of the Convention[23] [4]. There is however an increasing need to amend the Rotterdam Convention to reflect recent developments and occurrences in chemical waste.
CONCLUSION
This article has copiously examined the issue relating to the transboundary movement of hazardous waste, as well as the international legal instrument to regulate or otherwise restrict this activity among independent member states who are parties to the identified legal instrument. It has been established that these legal instruments are binding on Nigeria, as the same has been ratified. It has been also established that the trade in hazardous waste is essentially guided by the principle of Prior Informed Consent, which gives a recipient state the power to either consent or reject the exportation of harmful waste. Furthermore, these wastes are to be disposed of in an environmentally sound manner and where it is impossible to do so, a duty is imposed on the exporting state to re-import such hazardous waste.
[1] Organization for Economic Co-operation and Development, ‘Guidance Manual For The Implementation Of Council Decision’ (2001)107 at 7
[2] UNEP, ‘Hazardous Waste’ (https://leap.unep.org/en/knowledge/glossary/hazardous-waste [10])
[3] Supra
[4] Article 2(3) Basel Convention 1989
[5] Article 6, Basel Convention
[6] Parties to the Basel Convention on the Control of Transboundary Movement of Hazardous Waste and their Disposal; https://www.basel.int/Countries/StatusofRatifications/PartiesSignatories/tabid/4499/Default.aspx [11]
[7] Supra
[8] Article 6, Basel Convention 1989
[9] Article 9(1) Basel Convention 1989
[10] Article 8, Basel Convention 1989
[11] Article 10, Basel Convention 1989
[12] Article 11, Basel Convention 1989
[13] Article 13, Basel Convention 1989
[14] Meetings of the Conferences of the Parties to the Basel, Rotterdam and Stockholm Convention in 2023 (https://www.brsmeas.org/2023COPs/Overview/tabid/9316/language/en-US/Default.aspx [12])
[15] Status of Ratification https://chm.pops.int/Countries/StatusofRatifications/PartiesandSignatoires/tabid/4500/Default.aspx [13]
[16] Status of Ratification https://chm.pops.int/Countries/StatusofRatifications/PartiesandSignatoires/tabid/4500/Default.aspx [13]
[17] Persistent Organic Pollutants: A Global Issue, A Global Response (https://www.epa.gov/international-cooperation/persistent-organic-pollutants-global-issue-global-response [14])
[18] Article 3(1) Stockholm Convention 2001
[19] The meeting was held on 1-12 May, 2023 and was a joint meeting with the Basel and Rotterdam Convention
[20] Article 1, Rotterdam Convention 1998
[21] Annex III, Rotterdam Conention 1998(it includes Alachlor, Aldrin, Carbofuran, Dieldrin etc)
[22] Article 10, Rotterdam Convention 1998
[23] Outcomes of the Nineteenth Meetings the Chemical Review Committee and the Persistent Organic Pollutants Review Committee https://www.pic.int/Default.aspx?tabid=4215&meetId=9BF61A35-266F-EE11-90C9-005056A3140F&lang=en [15] ) accessed 20th November, 2023