ChemRegs Newsletter – November 2019

Basel Ban Amendment Becomes International Law

Awakening environmental awareness, and corresponding tightening of environmental regulations in the industrialised world in the 1970s and 1980s, led to increasing public resistance to the disposal of hazardous wastes. What became known as the NIMBY (Not In My Back Yard) syndrome led to an escalation of disposal costs for producer’s hazardous wastes.

This in turn led some businesses and companies to seek cheap disposal options for hazardous wastes in Eastern Europe and the developing world, where environmental awareness was much less developed and regulations and enforcement mechanisms were lacking or not enforced.

On 31 August 1986, the cargo ship Khian Sea was loaded with more than 14,000 tons of toxic ash from waste incinerators in the USA.

The waste ash from the incinerator was usually moved to another state in the USA, but neighbouring states were becoming more concerned about public opinion on interstate dumping of toxic waste.

Incineration of waste materials (including hazardous materials) converts waste into ash, this ash is toxic and hazardous to health.

A shipping company was paid to dump the ash, from the waste incinerators, in the Bahamas.

However, the Bahamian government turned the ship away and the incinerator plant withheld payment to the shipping company because the waste was not disposed of.

Over the next 16 months, the vessel Khian Sea searched all over the Atlantic for a place to dump its cargo. The Dominican Republic, Honduras, Panama, Bermuda, Guinea Bissau and the Dutch Antilles all refused to take it.

The Khian Sea tried to return to USA but was also refused entry.

In January 1988, the crew dumped 4,000 of the 14,000 tons of the waste in Haiti, un-informed farmers being told and believing it to be “topsoil fertilizer”.

When Greenpeace informed the Haitian government of the origin of the waste, the Haitian commerce minister ordered the crew to reload the ash, but the ship slipped away in the night, leaving the 4,000 tons of toxic ash behind.

Local clean-up crews later buried some of the waste in a bunker further inland, but the rest of the ash remained on the beach.

The ship continued its search for a port to dump the ash.

However, Greenpeace was now keeping track of the vessel and alerting port authorities of its toxic load.

So, the shipping company came up with a cunning plan.

It changed the name of the ship (twice) to fool the port authorities.

Unfortunately, the cunning plan did not work, and the ship was refused entry to ports under its new disguises.

Finally, the Captain dumped the remaining 10,000 tons of toxic ash into the sea.

It was against this background that the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, usually known as the Basel Convention, was negotiated in the late 1980s, the thrust of its adoption being to combat the “toxic trade”, as it was termed.

The Basel Convention was created to reduce the movements of hazardous waste between nations and entered into force in 1992.

The Convention has many stated aims, mainly to prevent transfers of hazardous waste between countries, which in theory, will encourage countries to process their own waste where it is generated.

This was an early manifestation of the “polluter pays principle” and tried to prevent these transfers of hazardous waste from rich developed countries to less developed, poorer countries. Although this has not happened in practice as richer countries find it cost effective to pay poorer countries to ‘process’ their waste.

However, the Basel convention is an international treaty.

A treaty in international law means different things to different countries.

For a treaty to be enforceable in the USA it must be made into domestic law.

The USA signed the Basel Convention in 1990 and although it supports ratification of the Convention, to date no implementing legislation has been enacted.

Therefore, the USA is not subject to the Basel Convention.

In the USA, domestic law can be in conflict with international law. This is in contrast to the UK/EU where the Basel Convention is implemented via Regulation (EC) No 1013/2006 on shipments of waste (Waste Shipment Regulation – WSR).

The WSR includes a ban on the export of hazardous wastes to non-OECD countries as well as a ban on the export of waste for disposal.

Therefore, the UK/EU is subject to the Basel Convention.

A number of other major countries – including the Canada, Japan, Australia and New Zealand – are still absent from the convention i.e. have not ratified it.

In 1995, the Basel Convention adopted the BAN Amendment (Basel Action Network, a charity that promotes and supports the Basel Conventions aims).

The Ban Amendment prohibits the export of hazardous waste for any purpose from European Union and/or OECD countries to developing countries. Proponents of the amendment say it is necessary because the Basel Convention was not doing enough to prevent developed countries from exporting their hazardous wastes to developing countries.

Although adopted by the Basel Convention, the amendment did enter not into force as international law as it had not been ratified by a required three-fourths majority. However, Croatia has now become the 97th country to ratify the Ban Amendment, surpassing the necessary three-fourths of the parties needed to become full international law.

This now makes enforcement of the Basel Convention easier, as the defence proffered by some nations for not enforcing, viz ‘the agreement wasn’t a legally binding part of the because it had not been ratified by a required three-fourths majority’, is no longer the case.

A number of major countries – including the USA, Canada, Japan, Australia, and New Zealand – are still absent from the Basel Convention i.e. have not ratified it.

The BAN Amendment will become a new Article in the Convention and will enter into force for the 97 countries after 90 days on the 5 December 2019.

It is hoped that the remaining developed countries will now ratify the BAN Amendment in full to avoid any international disputes for not applying in full, international law.

Other News

EC adopts postponement of first compliance date for reporting to poison centres

The European Commission has adopted a delegated act amending the CLP Regulation, which will postpone the first compliance date for harmonised reporting to poison centres, for mixtures intended for consumer use, from 1 January 2020 to 1 January 2021. Other compliance dates will not be affected. The same amendment also introduces a few changes to how the information should be provided.

The adoption is followed by a two-month period of scrutiny by the European Parliament and Council. If neither of them objects, the adoption enters into force after being published in the Official Journal.

The Commission is also working on an additional amendment of Annex VIII aiming to solve some of the concerns raised by stakeholders on the workability of the notification requirements. This amendment is expected in 2020.