What specific measures have been put in place under the Basel Convention and how does this relate to non-Parties?

Yvonne Nzelle Ewang-Sanvincenti 1

3 Trade control measures

3.2 What specific measures have been put in place under the Basel Convention and how does this relate to non-Parties?

One of the measures relied on by the Basel Convention is its detailed PIC proce-dure with strict requirements for transboundary movements of hazardous and other wastes. This is based on: notification; consent and issuance of a movement document;

transboundary movement; and confirmation of disposal of the wastes subject to the shipment.

Parties have the right to adopt additional trade control measures under their nation-al legislation or other measures, including a right to prohibit import of hazardous wastes or other wastes for disposal.²⁵ These need to be in accordance with the rules of international law, such as the principle of non-discrimination embodied in the World Trade Organization (WTO) regime, and must not derogate from the provi-sions of the Convention.²⁶ Parties exercising the right to prohibit imports need to inform others of their decision through the Secretariat and the notification is made available on the Convention website.²⁷ Exporting Parties have an obligation to pro-hibit or not permit the export of hazardous wastes and other wastes to the Parties which have prohibited import of such wastes.²⁸

Another control measure available to Parties is the inclusion of additional wastes in their national definitions of hazardous wastes, through Article 3. This provides an ave-nue to extend the scope of the Convention to wastes that would otherwise fall outside the control procedure but that a Party may feel that it does not have the capacity to manage otherwise or simply that it wishes to control under the PIC procedure. The information database maintained by the Secretariat includes national definitions of hazardous wastes²⁹ as well as texts of implementing measures adopted by Parties.³⁰ Unusually for an environmental treaty, the Basel Convention specifically addresses illegal traffic, which Parties consider criminal.³¹ Illegal traffic is defined as any trans-boundary movement of hazardous wastes or other wastes:

• without notification pursuant to the provisions of the Convention to all states concerned; or

• without the consent pursuant to the provisions of the Convention of a state concerned; or

25 Article 4(1).

26 Articles 4(1) and (11).

27 Basel Convention, ‘Decisions to prohibit or restrict import or export of hazardous or other wastes’, avail-able at <http://www.basel.int/Countries/ImportExportRestrictions/tabid/4835/Default.aspx> (visited 10 April 2018).

28 Article 4(2).

29 Basel Convention, ‘Overview’, supra note 6.

30 Basel Convention, ‘National legislation’, available at <http://www.basel.int/Countries/NationalLegisla-tion/tabid/1420/Default.aspx> (visited 10 April 2018).

31 Article 4(3).

41 Yvonne Nzelle Ewang-Sanvincenti

• with consent obtained from states concerned through falsification, misrep-resentation or fraud; or

• that does not conform in a material way with the documents; or

• that results in deliberate disposal (for instance, dumping) of hazardous wastes or other wastes in contravention of the Convention and of general principles of international law. ³²

Each Party has an obligation to introduce appropriate national legislation to prevent and punish conduct in contravention to the Convention’s provisions, including il-legal traffic.³³ As such, the implementation of the Basel Convention provisions de-pends on measures put in place nationally. This is because the text is formulated in a manner that leaves a certain flexibility to Parties in how they implement it at the national level, for instance whether civil (fines) or criminal (imprisonment) penalties imposed for illegal traffic. Consequently, Parties might encounter difficulties to con-sider Basel Convention illegal traffic provisions as self-executing due to the need for further legislative or administrative measures to be fully operational and applicable at the national level.

A further feature of the control procedure established under the Convention is that Parties are not to permit hazardous wastes or other wastes to be exported to a non-Party or to be imported from a non-Party.³⁴ There is an exception in cases where the states concerned by the movement have entered into a bilateral, multilateral or regional agreement or arrangement that does not derogate from the ESM of haz-ardous wastes and other wastes required by the Convention. The provisions need to be not less environmentally sound than those provided for under the Convention, preventing a loophole whereby wastes could be subject to disposal in lesser condi-tions in non-Parties.³⁵

So, how are these controls on import, export and transit implemented in practice?

Firstly, Parties have an obligation to ensure that transboundary movements of wastes within the scope of the Convention only take place if:³⁶

• the state of export does not have the technical capacity and the necessary fa-cilities, capacity or suitable disposal sites to dispose of the wastes in question in an environmentally sound and efficient manner; or

32 Article 9(1).

33 Articles 4(4) and 9(5).

34 Article 4(5).

35 Parties notify of any such agreements or arrangements. See Basel Convention, ‘Text of the Bilateral Agreements or Arrangements in Force as Transmitted to the Secretariat’, available at <http://www.basel.

int/Countries/Agreements/BilateralAgreements/tabid/1517/Default.aspx>; and Basel Convention, ‘Text of the Multilateral / Regional Agreements or Arrangements in Force as Transmitted to the Secretariat’, available at <http://www.basel.int/Countries/Agreements/MultilateralAgreements/tabid/1518/Default.

aspx> (both visited 10 April 2018).

36 Article 4(9).

Trade Measures and Specific MEAs: The Case of the Chemicals and Wastes Conventions

• 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.

The Convention defines environmentally sound management as ‘taking all practica-ble 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 which may result from such wastes...’³⁷ (Article 2(8)). Let us examine a little closer the four key stages of this control procedure, which are principally based on Article 6 of the Convention, setting out the conditions, procedures and rules for trans-boundary movements with the aim of facilitating the effective implementation of the Convention.

Stage 1: Notification

This stage focuses on information sharing with the state of import to enable it to take an informed decision as appropriate in light of its national circumstances and the movement in question.

31 into a bilateral, multilateral or regional agreement or arrangement that does not derogate from the ESM of hazardous wastes and other wastes required by the Convention. The provisions need to be not less environmentally sound than those provided for under the Convention, preventing a loophole whereby wastes could be subject to disposal in lesser conditions in non-Parties.³⁵

So, how are these controls on import, export and transit implemented in practice? Firstly, Parties have an obligation to ensure that transboundary movements of wastes within the scope of the Convention only take place if:³⁶

• the state of export does not have the technical capacity and the necessary facilities, capacity or suitable disposal sites to dispose of the wastes in question in an environmentally sound and efficient manner; or

• 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.

The Convention defines environmentally sound management 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 which may result from such wastes...’³⁷ (Article 2(8)). Let us examine a little closer the four key stages of this control procedure, which are principally based on Article 6 of the Convention, setting out the conditions, procedures and rules for transboundary movements with the aim of facilitating the effective implementation of the Convention.

Stage 1: Notification

This stage focuses on information sharing with the state of import to enable it to take an informed decision as appropriate in light of its national circumstances and the movement in question.

35 Parties notify of any such agreements or arrangements. See Basel Convention, ‘Text of the Bilateral Agreements or Arrangements in Force as Transmitted to the Secretariat’, available at

<http://www.basel.int/Countries/Agreements/BilateralAgreements/tabid/1517/Default.aspx>; and Basel Convention,

‘Text of the Multilateral / Regional Agreements or Arrangements in Force as Transmitted to the Secretariat’, available at <http://www.basel.int/Countries/Agreements/MultilateralAgreements/tabid/1518/Default.aspx> (both visited 10 April 2018).

36 Article 4(9).

37 Article 2(8).

Table 3: Notification of a transboundary movement under the control procedure.

The first step is to inform the competent authority³⁸ of the state of export of the proposed movement, who decides to refuse or allow the export. Already, the state of export before allowing export should ensure there is a contract for the disposal of the wastes in an environmentally sound manner. If the state of export has no

objec-37 Article 2(8).

38 Communications take place involving competent authorities, which are governmental authorities desig-nated by Parties to be responsible within such geographical areas as the Party may think fit for receiving notification of a transboundary movement and any related information and for responding (Article 2(6)).

43 Yvonne Nzelle Ewang-Sanvincenti tion to export, it notifies states of import and transit of the proposed transboundary movement.³⁹

Stage 2: Consent and issuance of the Movement document

On receipt of the notification document, the state of import responds in writing, consenting with or without conditions, denying permission or requesting additional information.⁴⁰

32 Table 3: Notification of a transboundary movement under the control procedure.

Stage 2: Consent and issuance of the Movement document

On receipt of the notification document, the state of import responds in writing, consenting with or without conditions, denying permission or requesting additional information.⁴⁰

Table 4: Steps towards consent and issuance of movement document.

The state of export has an obligation to not allow the transboundary movement to commence 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. At such time, a movement document is issued and the state of export authorizes the shipment to start.⁴¹

Stage 3: Transboundary movement

Each person who takes charge of a transboundary movement has to sign the movement document, which contains detailed information about the wastes. Annex V B to the Convention sets out information to be provided in the movement document, with the notes stating that the information required on the movement document where possible needs to be integrated in one document.

38 Communications take place involving competent authorities, which are governmental authorities designated by Parties to be responsible within such geographical areas as the Party may think fit for receiving notification of a transboundary movement and any related information and for responding (Article 2(6)).

39 There are many different types of certification – national, international, third party certification, self-certification etc.

For further information, see the Basel Convention Practical manual on certification schemes, available at

<http://www.basel.int/Implementation/CountryLedInitiative/EnvironmentallySoundManagement/ESMToolkit/Practical manuals/tabid/5847/Default.aspx> (visited 10 April 2018).

40 Article 6(2).

41 For further information on the procedure as well as the notification and movement documents, see Basel Convention,

‘Notification and Movement Documents’, available at

<http://www.basel.int/Procedures/NotificationMovementDocuments/tabid/1327/Default.aspx> (visited 10 April 2018).

Table 4: Steps towards consent and issuance of movement document.

Stage 3: Transboundary movement

Each person who takes charge of a transboundary movement has to sign the move-ment documove-ment, which contains detailed information about the wastes. Annex V B to the Convention sets out information to be provided in the movement document,

39 There are many different types of certification – national, international, third party certification, self-cer-tification etc. For further information, see the Basel Convention Practical manual on cerself-cer-tification sche-mes, available at <http://www.basel.int/Implementation/CountryLedInitiative/EnvironmentallySound-Management/ESMToolkit/Practicalmanuals/tabid/5847/Default.aspx> (visited 10 April 2018).

40 Article 6(2).

41 For further information on the procedure as well as the notification and movement documents, see Basel Convention, ‘Notification and Movement Documents’, available at <http://www.basel.int/Procedures/

NotificationMovementDocuments/tabid/1327/Default.aspx> (visited 10 April 2018).

Trade Measures and Specific MEAs: The Case of the Chemicals and Wastes Conventions

with the notes stating that the information required on the movement document where possible needs to be integrated in one document.

Stage 4: Confirmation of disposal

The Convention requires the disposer to confirm that the disposal has taken place as specified in the notification document. If this does not occur, the state of export needs to inform the competent authority of the state of import accordingly. The state of import may then wish to follow up to confirm that the transboundary movement of wastes has been completed as initially stated. From the information transmitted by Parties, it would appear this confirmation is often not received.⁴²

33 Stage 4: Confirmation of disposal

confirm that the transboundary movement of wastes has been completed as initially stated. From the information transmitted by Parties, it would appear this confirmation is often not received.⁴²

Table 5: Confirmation of disposal following transboundary movement.

3.3 Specific measures in place and information exchange under the Rotterdam Convention

In document International environmental law-making and diplomacy review 2017 (sivua 57-61)