Introduction and background information
Numerous products that seem to make human life easier and more comfortable characterize the post-industrialization world. Mobile phones, personal computers, vehicles, pharmaceutical products, and polythene products are some of the products that are being manufactured in huge numbers. The mega-productions of these products result in the generation of massive hazardous wastes.
Oftentimes, hazardous wastes are not properly managed and, therefore, pose threats to both the environment and human health. Transboundary illegal shipments of these wastes expose unsuspecting countries and their communities to dreadful dangers. In most cases, the waste is disposed of in countries that lack the capacity and technology to manage the waste effectively. One of the most infamous cases was the Khian Sea incidence involving the US and some developing countries. Other similar incidences raised concerns of transboundary waste-disposal crisis prompting environmentalists and other leaders to enact regulatory policies.
North America countries have made many attempts to conserve the environment by the enactment of various policies, especially in the last five decades.
Several international policies and agreement affect the North America transboundary movement of hazardous waste. The policies and agreements include the Basel Convention, the Organization for Economic Cooperation Development (OECD) Council Decision, and other multilateral and bilateral agreement. However, the presence of such organisations does not guarantee effectiveness in transboundary movement and management of hazardous waste in the region.
Therefore, this report critically analyses the environmental policies that regulate the movement of hazardous waste across Mexico, Canada, and US borders.
The Basel Convention
The Basel Convention is the groundbreaking worldwide regulatory framework that controls hazardous waste management and dumping, especially in foreign countries. The agreement was realized after a conference organised by the UNEP. The conference ended on March 22, 1989, and it involved 116 nations and observers from 34 NGOs from different countries.
The Convention came into effect on May 5, 1992, and was aimed at promoting environmentally sound management of hazardous waste, especially uncontrolled transboundary dumping that was rampant in developing countries invalid source specified. The Basel Convention institutes global principles and criteria for the management of waste, regulating the notices and confirmations involving the importing and exporting countries.
By December 2015, the Basel Convention had 183 member countries and the EU. Notably, the North American countries are all parties to the Convention except the US. However, the US is a signatory to the Convention and is regulated by the Convention provisions regarding the transboundary waste movement.
Definitions
Hazardous waste
The Basel Convention defines hazardous waste according to characteristics of waste exhibits. For a substance to be considered as a waste, it must be listed in Annex I of the Convention. Annex III of the Convention contains characteristics exhibited by waste, which include explosive, flammable, toxic, and corrosive among other properties. For a waste to be considered hazardous by the Basel Convention, therefore, it must be in the Annex I and exhibit any of the characteristics in Annex III of the Convention.
It is imperative to note that the US definition of hazardous is narrower relative to the Basel Convention definition. The narrow definitions of waste by the US domestic bodies alter the disposal and management statistics. As such, the federal government claims that more than 90% of generated hazardous waste is disposed of domestically. Arguably, the differing definitions between the US regulatory bodies and the Basel Convention play a key role in deterring the US to being a party to the convention.
According to the Basel Convention, transboundary movement of hazardous waste is “movement of hazardous waste from an area under the national jurisdiction of one State to or through an area under the national 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” (p. 510).
Key objectives of the Basel Convention
- Decreasing the amount of transboundary movement of hazardous waste to levels consistent with environmentally sound management.
- To reduce the distance between the sources and disposal points of hazardous wastes.
- Reducing the generation of hazardous waste in both quantity and degree of danger.
- To strictly regulate shipments of hazardous waste across borders while preventing unlawful trafficking.
- Abolishing shipments of hazardous waste to countries that do not have legal administrative and technical frameworks to dispose of/recycle the waste in an environmentally sound manner.
- Assisting the third world and second world countries in the recycling/disposing techniques of the waste they generate.
Basel Convention Requirements
The Basel Convention stipulates that the country exposing hazardous waste should make written notification to all the affected countries. Affected countries include both the receiving country and transit countries. The legal shipment, therefore, should only occur after all the stakeholders have given the needed consent. Further, documentation with clear illustrations should accompany waste consignments from the exporting country to final recycling and disposal destination.
Furthermore, the Basel Convention gives a provision for packaging and labelling of hazardous waste in transit. The provisions comply with international rules. In cases where accidents lead to disruptions and unintended dumping, the policy necessitates that the responsible parties make a formal communication to the possibly affected nations.
Lastly, all countries that are party to the Convention are required to give reports on transboundary waste movement each year. It is an obligation for all reports to contain all the statistics on hazardous waste, including types/amounts of waste, exporting/ importing countries and the management/disposal procedures.
Basel Convention Restrictions and obligations
The Basel Convention broadly categorises restrictions on waste into two. The first category of restrictions pertains to countries that are party to the Convention and are provided for in Article 4 of the Convention.
Member states should exercise their rights to forbid the importation of hazardous waste
- Member states should prohibit the shipping of hazardous waste to countries that have forbidden the importation.
- Only written consents should be considered by the exporters regarding the acceptance of waste.
- For waste that lacks clarity on prohibition, exporters should prohibit shipment of the specific waste to the involved importers.
- All the member states should prevent exportation if they have reasons that the waste will not be managed properly by the importers.
- No disposal of hazardous wastes should be done in Antarctica.
- The member states should not permit the transboundary movement of waste with non-members unless the provisions of Article 11 are followed.
On the other hand, the second category comes in when a member country is dealing with nonmember states. Movement between parties with nonparties should only happen under separate agreements. However, the agreements must offer correspondingly sound management procedures for the transboundary movement of hazardous waste.
Organization for Economic Cooperation and Development (OECD) Council Decision
OECD Council Decision is a legally binding agreement that governs the transboundary movement of hazardous waste. Canada, the US, and Mexico are signatories to OECD. The main purpose of the agreement is to regulate the trade in waste while minimizing the possibilities of illegal disposal and handling of hazardous waste.
General conditions for the OECD Council Decision
Hazardous waste should be destined for recovery operation within recovery facilities that must recover wastes in environmentally sound manners. The recovery procedures must comply with national laws, regulations, and practices.
Shipment stakeholders in all contracts for transboundary movements of waste must have the appropriate legal status pertinent to local legislations regulations.
All the shipments must be carried out under the terms pertinent to international transport agreements.
In cases where the country of transit is a non-member, international law and all pertinent national laws and regulations should be applied.
The OECD Council Decision provides a tiered level of regulation for the transboundary movement of hazardous waste in North America and other member nations. The agreement classifies hazardous waste into three, including red, green, and amber wastes.
The green waste list includes those wastes that pose a minimal hazard to the environment and human health. The amber list consists of wastes that pose an intensified hazard to both the environment and human health while red wastes are critically hazardous. Lists of wastes are subjected to distinctive control procedures where the red and amber lists are subject to procedures that are more stringent than procedures for the green list.
The Canada-US Agreement
The agreement was signed between the two countries on October 28, 1986, and came into effect on November 8, 1986. The US-Canada Agreement regulates the movement of hazardous waste along the US-Canada border.
The agreement definition of hazardous waste is dependent on the definition of the exporting country. Notably, the Canada-US Agreement is compatible with the Basel Convention provisions on bilateral/multilateral agreements. Additionally, the agreement is in line with the OECD preference of recycling and recovery to disposal.
The most outstanding principles of the Canada-US agreement are:
- Both the US and Canada must sufficiently manage hazardous waste within their respective jurisdiction.
- The exporter of waste must give adequate timely communication to the importer before shipments. Also, the importer must issue the exporter with written consents for shipments to be lawful.
- Both the US and Canada must cooperate to warrant that shipment are accompanied by proper exhibits for ease of verification on compliance with the Agreement and domestic guidelines.
- In cases where the importing country objects to the reception of the shipment, the exporting country must permit re-entry.
Mexico-US border Agreement
The agreement was signed between the two countries in 1983 to govern the movement of hazardous waste between the two countries. The Agreement necessitates that the two countries enforce respective national laws regarding transboundary waste. The definitions are provided for by the two countries national policies, laws and regulations.
Other than the definition of hazardous waste, most of the provisions of the US-Mexican Agreement comply with the Basel Convention provisions. It is imperative to note that Mexico imports waste from the US for recycling only while the US imports waste from Mexico for recycling and disposal.
The legality of the Export
The major legal challenges facing transboundary hazardous waste movement are awareness and consent. The importing country and other nations through which the hazardous waste passes their geographical boundaries need to be aware and consent to the movement of toxic waste materials. The importing nation should provide consent and the transit nation should offer its permission to ensure effective control and monitoring of the movement of such hazardous waste materials.
The permission and consent are meant to uphold territorial integrity and mutual respect between states. It is however observed that many emerging nations do not have sufficient legal and administrative policies to control and restrict hazardous waste materials dumping in their territories.
Transboundary Hazardous Waste Movement
Since 1995, Canada has tracked and kept records on traffic of hazardous waste materials. It has observed that the tonnes of hazardous waste materials destined to Canada for final disposal or recycling have increased steadily. It is also imperative to recognise that Canada also exports some of its hazardous wastes. Specifically, the US has been the major source and recipient of hazardous waste. No data were available for Mexico hazardous waste movement into Canada. The increase in the volume of hazardous wastes has been attributed to growing imports of hazardous wastes for recycling. Conversely, Canada has maintained a stable rate of export albeit with noticeable differences across the periods.
Criticism of the Policies
A critical examination of environmental policies should focus on their effectiveness concerning the quality of the design, implementation, and aims achieved.
The Basel Convention
Concerning design, the Basel Convention is regarded as the broadest and the most vital international agreement on hazardous waste materials. Hazardous wastes have severe impacts on human health and the environment, specifically on the quality of land and water. As such, such wastes need effective control and disposal across all countries globally.
The Basel Convention was designed as a legal instrument to control the transboundary transportation and disposal of toxic wastes. The Convention has some specific guidelines designed for monitoring and controlling activities of state parties concerning the implementation of and compliance with all matters that emanate under it. State parties are expected to review and adjust their laws and regulation to enhance compliance. However, legal issues may arise.
One fundamental flaw in the design of the Convention is the element of Prior Informed Consent (PIC). Simply referred to as the ‘notice and consent’ process, it refers to all parties involved in exporting, importing, and transiting hazardous wastes. Exporting countries are required to notify their counterparts about the wastes and risks involved. The importing country, however, may reject the shipment. The involved parties should draw a contract to formalise shipping of hazardous wastes. Both parties are expected to adhere to terms of the contract. It is also important to recognise that when a party fails to comply with the terms, then the hazardous wastes may be shipped back to the country of origin.
The Convention contains different sets of rules for transit party and non-member countries, but the right to be informed prior may be lifted.
There is a lack of clarity on the type of rules, which apply to non-party states.
According to some critics, including Cusack, the Convention has failed to address the issue of regulating the transboundary shipment of hazardous wastes. Instead, it has merely created a worldwide movement tracking system for waste materials. This criticism remains relevant today because several proposed amendments such as the Ban Amendment have not been implemented.
Some provisions in the Convention allow state parties to have bilateral, multilateral, and even regional policies, but this provision weakens the ban imposed.
Contentious issues have been noted based on the definition of hazardous wastes. As such, the efficacy of the Convention relies significantly on the type of hazardous wastes considered. A lack of an international standard for hazardous waste definition often leads to non-compliance. Besides, it is difficult to determine the minimum standards of waste materials required. Radioactive wastes, for instance, are not included in the list of hazardous wastes under the Basel Convention. However, its proponents assert that such wastes are accounted for under the provisions of the International Atomic Energy Agency (IAEA). Besides, others have questioned the inclusion of residential wastes and incinerator ash as parts of the wastes under the Convention.
Considerable vagueness exists on the exact constituents of the phrase ‘environmentally sound management’. The Convention also requires party states to develop their laws to handle transboundary hazardous wastes. However, it remains unclear how they handle vague terms within the provision.
The Protocol – a legal instrument developed to identify liabilities and appropriate compensation for any damages that occur from the transboundary movement of such wastes. The Protocol is regarded as an important achievement to enhance the efficacy of the Convention because of liability clauses and assist in curbing illegal activities surrounding the transboundary hazardous waste movement. The provision shows how liabilities that result from damages could be allocated to various parties involved. Individuals are expected to have adequate insurance cover to cater for damages. However, it has been identified that the Protocol leads to new opportunities for hazardous waste generators to evade taking responsibilities because it targets individuals involved with operational aspects of the waste rather than waste generators.
The Convention also encourages state parties to share information to enhance environmentally sound management of hazardous wastes while reviewing technical aspects and practices to improve harmony, cooperation and develop new codes of practices and guidelines to promote best practices. That is, the Convention facilitates knowledge generation and transfer.
Ratification of the Convention could be a major issue. The current number of nations, which have ratified the Convention has increased since the 1990s, and by 2015, there were 183 state parties. The US, however, had signed the Convention, but it has not ratified it to date. Also, Congress has rejected all attempts to ratify the policy and further failed to introduce the Protocol on liabilities and damages. This implies that the US is a non-party to the Convention. It is however not clear why the country has failed to ratify the Treaty for over two decades. Perhaps the best explanation could be attributed to huge volumes of wastes it generates.
Implementation of the Convention has faced challenges. Currently, Congress has not granted adequate power to EPA ensure that it can ratify and implement the Convention.
It has also been identified that the Convention has not created any funds to combat hazardous waste impacts. As such, any environmental damages could negatively affect poor countries because of slow clean up while low compensation could be offered to the injured state.
The Convention lacks any formal execution and enforcement systems. The lack of an official body to ensure compliance has rendered the Convention ineffective. Rather, party states are expected to formulate laws to deter and punish illegal waste management practices.
Lastly, many environmentalists have asserted that the Convention has failed to attain its core fundamental goals. For example, the Basel Action Network, Greenpeace, and other similar environmental bodies have noted that the Basel Convention has not realised any waste reduction. Instead, it has facilitated the movement of wastes from industrialised nations to less developed countries. Further, the Convention has failed to transfer advance knowledge on waste management from industrialised nations to less developed ones.
OECD Council Decision
The Basel Convention does not allow the movement of covered hazardous wastes between a non-party state and a party state to the Convention, the first of which refers to states that are yet to ratify the Convention. However, states may have distinct international agreements or policies to ensure similar protection offered under the Convention. Such arrangements should not contravene the Convention but must offer an alternative for the environmentally sound management of the covered waste materials. States should, therefore, refer to the Convention when developing their arrangements.
Non-party states consider the OECD Council Decision as a Decision or multilateral arrangement that offers an alternative to the Convention about the transboundary movement of wastes for recycling. Hence, it allows OECD members, including the US to ship their wastes uninterrupted.
OECD Council Decision offers a more relaxed benchmark for protection. Hence, it cannot act as an alternative to the Convention. The Decision has reviewed and changed the strict conditions of the Basel Convention required for shipment of wastes intended for recycling.
One major strength of the OECD Council Decision is the classification of wastes into a three-tier system to monitor and control the transboundary shipment of hazardous wastes for recycling. The OECD Decision subjects the red tier to stringent standards, including tracking, a legal contract, relying on competent authorities, financial guarantees, and identification of the responsible party. The amber tier also offers tracking mechanisms, a contract, and a notification between the member states.
A competent authority may object if there is a need to do so on specific wastes within the time limit. While advance notification is required, consent or further acknowledgement may not be necessary from the importing member state. Finally, the green tier may only require the ‘regular controls used in commercial transactions’. These waste materials are generally considered nonhazardous. Nevertheless, the contaminated wastes must be shipped with higher standards applied to red or amber tiers.
Based on the Decision, any waste that cannot be recycled, reused, reclaimed or for direct reuse may not be moved to other countries because the Decision only applies to the above-mentioned conditions.
The OECD Decision has a clear provision on disputes that may emerge based on a different interpretation of wastes and waste classification. In this case, the exporting member bears the procedural notification obligations, and a Review Mechanism is established to improve the list and harmonise means of determining hazardous wastes.
It is imperative to recognise that the implementation of the OECD Council Decision has been a challenge to some extent. For instance, it is not clear what member countries can do collectively or individually to ensure successful implementation of the Decision.
Overall, the OECD Council Decision has been touted as an alternative adopted before the introduction of the Basel Convention to ensure proper arrangements for environmentally sound management of hazardous wastes. As such, all members, including those that have not ratified the Convention can ship their wastes without interruption. It also provides accelerated means of notification between Canada and the US irrespective of their membership status to the Convention.
The US and Canada continuously review their internal regulations to accommodate emerging issues.
America – Canada Agreement
Apart from the Basel Convention and the OECD Council Decision, there is also the USA-Canada Agreement on the Transboundary Movement of Hazardous Waste. The bilateral agreement between the two nations offers a safe, low-cost alternative for the management of hazardous wastes for which Canada or the US lacks the capacity or technology to handle appropriately.
It is generally recognised that the Agreement is compatible with the Basel Convention on Article 11. This Article allows individual states to enter into their agreements to ship hazardous wastes provided that these agreements adhere to environmentally sound management of wastes. All the control procedures are included in the Agreement as required under the Convention.
Either the US or Canada must first provide all the necessary documents and notice with all the relevant details regarding the proposed shipment. These countries have agreed that the most viable basic approach is to eliminate or lessen the production of or risks posed by hazardous waste materials.
The US approach referred to as ‘cradle-to-grave’ has ensured that all hazardous wastes are monitored across the entire process until disposal. It is noted that reclaiming, reusing, or recycling approach is the most appropriate than disposal while the two-tier Control System of the OECD assists both countries to improve environmental protection and promote economic growth.
The US-Canada Agreement has significantly contributed to the efficient handling of hazardous wastes between the two nations. It is however noted that improved domestic and international collaboration on hazardous waste management would lead to better control of health risks and environmental concerns posed by hazardous wastes.
Conclusion
This report has critically evaluated three environmental policies on the transboundary movement of hazardous waste materials regarding North America, specifically the US and Canada.
The Basel Convention is designed to assist party states to facilitate the shipment of hazardous wastes. It, however, faces critical challenges, including a lack of sufficient enforcement plan, liability assignment approach or sanctioning state parties, and ensuring compliance. Nevertheless, the Convention has established a standard framework for private players and governments to create a partnership to monitor and control hazardous wastes. Non-state actors such as Greenpeace have contributed significantly by improving the quality of the convention while the Convention continues to improve awareness.
The OECD Council Decision has offered an alternative to non-party states such as the US. As such, it works with Canada and other nations to ship hazardous wastes. However, the OECD Decision is said to have provided less stringent standards for member states to ship hazardous wastes.
Finally, the US-Canada Agreement is a bilateral agreement between the two countries to facilitate the management of hazardous wastes safely and cost-effectively using the capabilities of the two nations. It has helped the US – a non-party to the Convention to ensure the transboundary movement of hazardous wastes to Canada.
All these international policies on the transboundary movement of hazardous wastes have contributed significantly to environmental protection and curtailing of health risks.
Reference List
Atkinson, C., ‘Environmental Policy in North America: Approaches, Capacity, and the Management of Transboundary Issues’, American Review of Canadian Studies, vol. 45, no. 1, 2015, pp. 129-130. Web.
Bradford, M., ‘The United States, China & the Basel Convention On The Transboundary Movements of Hazardous Wastes and Their Disposal’, Fordham Environmental Law Review, vol. 8, no. 2, 2011, pp. 305-349. Web.
Choksi, S., ‘The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal: 1999 Protocol on Liability and Compensation‘, Ecology Law Quarterly, vol. 28, no. 2, 2011, pp. 510-540.
Cusack, M.M., ‘International Law and the Transboundary Shipment of Hazardous Waste to the Third World: Will the Basel Convention Make a Difference?’, American University International Law Review, vol. 5, no. 2, 1990, pp. 393-423. Web.
Environment and Climate Change Canada, Canada-US Agreement Concerning the Transboundary Movement of Hazardous Waste, 2013.
EPA, 2016, International Agreements on Transboundary Shipments of Waste. Web.
Gaba, J.M., ‘Exporting Waste: Regulations of the Export of Hazardous Wastes from the United States’, William & Mary Environmental Law and Policy Review, vol. 36, no. 2, 2012, pp. 405-490. Web.
Moskowitz, A., ‘Criminal Environmental Law: Stopping the flow of hazardous waste to Mexico’, California Western International Law Journal, vol. 22, no. 1, 1991, pp. 159-186. Web.
Office of the Auditor General of Canada, Harmonizing Canadian transboundary wasteregulations with international agreements. 2015.
Rummel-Bulska, I., Compliance with and Enforcement of the BASEL Convention on Control Transboundary Movements of Hazardous Wastes and Their Disposal. Web.
Temby, O., ‘Limits of Transnational Environmental Network Governance in North America. Global Environmental Politics’, vol. 15, no. 3, 2015, pp. 176-183. Web.
Winfield, M. S., The Transboundary Movement of Hazardous Wastes In North America: A Canadian Perspective, Canadian Institute for Environmental Law and Policy, Ontario, 1998. Web.