Out of Sight, Out of Mind: Ratifying the Basel Convention on Transboundary Waste

by Noah M Sachs

May 01, 2012

a(broad) perspective

Today’s post is third in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these ten treaties.  Previous posts are here.

Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal
Adopted and Opened for Signature on March 22, 1989
Entered into Force on May 5, 1992
Signed by the United States on March 22, 1990
Sent to the Senate, May 17, 1991, and approved by the Senate on August 11, 1992

Loaded with toxic ash from Philadelphia waste incinerators, the Khian Sea, a cargo ship, left port in 1986 – and spent two years wandering at sea attempting to dispose the ash.  Some of the ash was dumped in Haiti as so-called “topsoil,” and the remaining ash disappeared somewhere between Singapore and Sri Lanka.  Years later, at trial, the crew admitted dumping the nearly 10,000 tons of toxic ash in the Atlantic and Indian Oceans.  It was one of the most outrageous incidents of toxic waste dumping – but sadly, this was hardly an isolated incident.

Today, international trade in hazardous waste is a multi-billion dollar industry that moves highly toxic materials, such as pesticide residues, used solvents, and process wastes from manufacturing.  The fastest growing part of the trade is electronic waste (such as laptops, cellphones, and televisions), which contain lead, mercury, and other toxic components.   And just like the Khian Sea incident, there is still an enormous incentive to ship waste to poor countries with lax or nonexistent environmental regulation.  

In response to international outrage over the export of waste from rich nations to poor nations, the international community adopted the Basel Convention in 1989.  The Basel Convention does not ban the waste trade but instead attempts to manage the trade by requiring the prior informed consent of the receiving country.  The Convention also imposes obligations on the shipping country, such as ensuring that the waste will be managed in an environmentally sound manner in the receiving country.  In other words, the exporting country cannot just turn a blind eye to environmental hazards once the waste leaves its shores.

Today, 178 countries are Parties to the Convention, making it one of the most widely ratified treaties in the world.  Afghanistan, Haiti, and the United States are the only countries that have signed but not ratified the Convention.  The United States was actively involved in the negotiation of the Convention and signed the treaty in 1990.  Moreover, the Senate consented to ratification in 1992, but the United States cannot ratify the Convention until Congress passes implementing legislation.

Specifically, Congress must enact legislation restricting the import and export of hazardous waste as set forth by the Basel Convention, through amendments to the Resource Conservation and Recovery Act of 1976 (RCRA).  These amendments would require waste shippers to obtain assurances of environmentally sound disposal and would grant authority to re-import hazardous wastes that are found to be illegally transported.    

By not joining the Convention, the United States has missed opportunities to participate fully in key Basel Convention decisions, such as control of electronic wastes and liability rules for environmental damage from hazardous waste.  Moreover, U.S. firms that operate in countries that are Parties to the Basel Convention are already subject to Basel Convention rules.  Because the United States is a non-Party, these firms are also highly restricted in sending wastes back to the United States, even to their own parent or sister companies and even for recycling.  The barriers to joining the treaty are minimal and surmountable, and the Obama Administration and Congress should move quickly to draft and pass the necessary amendments to RCRA.

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Professor Noah Sachs is Professor of Law and Director, Robert R. Merhige, Jr. Center for Environmental Studies at the University of Richmond School of Law.

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