ENVIRONMENTAL

LAW

PROJECT TOPIC The

International Law on Trans-boundary
movement of Hazardous Waste

PRESENTED BY- DEEPANSHU MEHTA

BA LLB {HONS}
8th SEMISTER
ROLL NO- 21/11
ACKNOWLEDGMENTS
I wish to thank my teacher Proff. Dr.

SABINA SALIM for allotting me this

project topic and hence in a way giving me

this opportunity to enhance my endeavours

by getting more knowledge through this

project.

I would like to thank my parents and all

friends who helped me in completing this

project. I would like to convey my sincere

regards to everyone associated in

completing the project.

 Introduction

The Basel Convention on the Control of Transboundary Movements of

Hazardous Wastes and Their Disposal, usually known as the Basel
Convention, is an international treaty that was designed to reduce the
movements of hazardous waste between nations, and specifically to prevent
transfer of hazardous waste from developed to less developed
countries (LDCs). It does not, however, address the movement of radioactive
waste. The Convention is also intended to minimize the amount
and toxicity of wastes generated, to ensure their environmentally sound
management as closely as possible to the source of generation, and to assist
LDCs in environmentally sound management of the hazardous and other
wastes they generate.

The Convention was opened for signature on 22 March 1989, and entered
into force on 5 May 1992. As of January 2015, 182 states and the European
Union are parties to the Convention. Haiti and the United States have signed
the Convention but not ratified it.

Background

The management of hazardous wastes has been on the international

environmental agenda from the early 1980s, when it was included as one of
three priority areas in the United Nations Environment Programmes
(UNEP) first Montevideo Programme on Environmental Law in 1981. The
volume of hazardous waste generated annually worldwide has increased
from roughly five million metric tons in 1947 to in excess of 300 million
metric tons in 1988. The overwhelming majority of the amount of waste
generated in 1988 an estimated 265 million metric tons-was generated by the
United States, with another thirty-five million metric tons from Western
European countries. While the amount of waste has risen dramatically in the
United States and Western Europe, the expense of adequately disposing
of this waste has increased enormously, in some cases surpassing $2,000
per metric ton. In addition, space for such waste is on the decline as
increasingly strict requirements have prompted many disposal facilities to
close, particularly in the United States. Awakening environmental awareness
and corresponding tightening of environmental regulations in the
industrialized world in the 1970s and 1980s had led to increasing public
resistance to the disposal of hazardous wastes in accordance with what
became known as the NIMBY (Not In My Back Yard) syndrome and to an
escalation of disposal costs. This in turn led some operators 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.

It was against this background that the Basel Convention was negotiated in
the late 1980s, and its thrust at the time of its adoption was to combat the
toxic trade, as it was termed. It was adopted in 1989 and entered into force
in 1992

Moreover, the "not in my backyard" (NIMBY) philosophy of nearby

residents has prevented construction of many new facilities. As a result,
United States and Western European waste producers have looked elsewhere
to dispose of their waste. The developed countries also have turned to
developing countries for disposal of hazardous waste in transactions often
arranged by waste brokers. The economics of such disposal allow
developing countries to dispose of hazardous waste at far lower costs, while
still providing the receiving nation with substantial revenue. Because these
countries may be ill-equipped to handle the waste properly, however, the
wastes can present health and environmental problems for the receiving
nation. Even faced with such a prospect, poor countries find it difficult to
decline such activities because of the sheer amount of revenue possible. For
example, Guinea Bissau entered into several contracts to receive American
and European wastes over a five year period for $600 million, which roughly
matches its annual gross national product.

Even though Guinea Bissau subsequently canceled the contract (due to

pres sure from its neighbors), the situation reflects the dilemma
confronted by many emerging nations facing monetary offers to receive
hazardous waste.

The export of hazardous waste to developing countries has created

problems for several reasons. First, a number of exporters have mis
informed or deceived the recipient country of the true contents of the
waste. Second, many countries do not possess the necessary technology or
expertise to properly dispose of hazardous wastes." Third, the
transportation and disposal of hazardous waste itself has been fraught with
problems.

In the past several years, there have been numerous prominent events,
some of which include:
-Mismarked barrels of hazardous waste from Singapore labeled for a false
destination sat unclaimed on a Bangkok, Thailand dock for years
releasing their toxic contents to the environment.

-In Koko, Nigeria, 8,000 improperly marked barrels of hazardous waste

were inadequately stored and they leaked into the environment. Italy
ultimately agreed to repackage the wastes and return them to Italy after
other countries refused to accept the waste on the Karin B.

-The Khian Sea, carrying municipal ash from Philadelphia, ferried its
waste around the world for several years as nation after nation re fused
to let it dispose of the waste, before the waste was finally dumped.

-The Junior, the Herald of Free Enterprise, and the Olar, each vessel
carrying hazardous waste, capsized at sea releasing their contents.

-United States exporters falsely labelled hazardous military wastes and

disposed of them improperly in Zimbabwe.

-Radioactive wastes from various European countries and the Soviet

Union have been dumped in Benin without adequate treatment."

-The Guinea island of Kassa received 15,000 tons of material im

properly labelled as raw material for bricks. After the death of nearby
vegetation, the wastes were analyzed and discovered to be incinerator
ash.25

-Workers at ports in the United Kingdom declined to unload PCB

waste shipped from Canada for incineration in the United Kingdom.

As a result of such events, the Organization of African Unity passed a
resolution in 1988 condemning the disposal of hazardous wastes in
Africa and demanding that those responsible clean up the wastes."
Several member nations have enacted laws penalizing the unlawful dis
posal of hazardous waste, most notably Nigeria, which has threatened to
impose the death penalty for improper disposal."

The amount of hazardous waste exported either globally or to devel oping

countries is unknown.28 Furthermore, the consequence of such exports
is equally elusive. Nevertheless, the events discussed above evi dence the
existence of at least some problems, and more importantly, the perception
of such problems. Due to these events, environmental groups such as
Greenpeace and the Natural Resources Defense Council have called for a
ban on all exports of hazardous waste.29 A ban on exports, however,
may be counterproductive Greenpeace and the Natural Resources Defense
Council have called for a ban on all exports of hazardous waste. A ban on
exports, however, may be counterproductive. Economic efficiencies may be
achieved through disposal at foreign sites. Moreover, exports to these
foreign facilities may provide for more environmentally protective disposal
because they may be better equipped to handle certain wastes. Additionally,
sovereignty rights of individual countries may be subverted if they are
forbidden from electing to receive such wastes." For these and other
reasons, the world community has chosen through UNEP to regulate
rather than ban exports of hazardous wastes.

In 1987, UNEP adopted the Cairo Guidelines and Principles for the
Environmentally Sound Management of Hazardous Wastes (Cairo
Guidelines), which set forth recommendations regarding the export of
hazardous waste. The Cairo Guidelines call for notification to receiving and
transit nations of any export and consent by those nations prior to export.
The exporter is to ensure that the disposal site is adequate to handle the
hazardous waste and that disposal complies with require ments at least
as stringent as those in the exporting nation.

Following the adoption of the Cairo Guidelines, UNEP sought to

embody similar principles in a Convention. Work began with an or-
ganizational meeting in Budapest, Hungary, in October 1987. Conflicting
views on major matters impeded reaching an agreement. Some countries
pressed for a complete ban on the trade of hazardous waste, while others
urged for minimal regulation.

The Conference of Plenipotentiaries on the Global Convention on the

Control of Transboundary Movements of Hazardous Wastes, convened at the
invitation of the Swiss Government from 20 to 22 March 1989 in Basel, and
in which 116 States were represented, considered the final draft of the
Convention submitted to it by the Working Group.

The Basel Convention was adopted unanimously by the Conference on 22

March 1989. The Conference also adopted eight resolutions related to the
further development and the implementation of the Basel Convention.

Definition of hazardous waste

A waste falls under the scope of the Convention if it is within the category
of wastes listed in Annex I of the Convention and it exhibits one of the
hazardous characteristics contained in Annex III. In other words it must
both be listed and possess a characteristic such as being explosive,
flammable, toxic, or corrosive. The other way that a waste may fall under
the scope of the Convention is if it is defined as or considered to be a
hazardous waste under the laws of either the exporting country, the
importing country, or any of the countries of transit.

Hazardous waste as under the annexure 1 of this very convention contains

the wastes as follows:

Clinical wastes from medical care in hospitals, medical centers and clinics,
Wastes from the production and preparation of pharmaceutical products,
Waste pharmaceuticals, drugs and medicines Wastes from the production,
formulation and use of biocides and phytopharmaceuticals, Wastes from
the manufacture, formulation and use of wood preserving chemicals,
Wastes from the production, formulation and use of organic solvents,
Wastes from heat treatment and tempering operations containing cyanides,
Waste mineral oils unfit for their originally intended use, Waste oils/water,
hydrocarbons/water mixtures, emulsions, Waste substances and articles
containing or contaminated with polychlorinated biphenyls (PCBs) and/or
polychlorinated, terphenyls (PCTs) and/or polybrominated biphenyls
(PBBs), Waste tarry residues arising from refining, distillation and any
pyrolytic treatment, Wastes from production, formulation and use of inks,
dyes, pigments, paints, lacquers, varnish, Wastes from production,
formulation and use of resins, latex, plasticizers, glues/adhesives, Waste
chemical substances arising from research and development or teaching
activities which are not identified and/or are new and whose effects on man
and/or the environment are not known, Wastes of an explosive nature not
subject to other legislation, Wastes from production, formulation and use
of photographic chemicals and processing materials, Wastes resulting
from surface treatment of metals and plastics, Residues arising from
industrial waste disposal operations.

Further this very annexure also includes the following elements and their
compounds as waste e.g. Metal carbonyls, Beryllium, Hexavalent
chromium, Copper, Zinc, Arsenic, Selenium, Cadmium, Antimony,
Tellurium, Mercury, Thallium, Lead, Inorganic fluorine compounds
excluding calcium fluoride Inorganic cyanides, Acidic solutions or acids in
solid form, Basic solutions or bases in solid form, Asbestos (dust and
fibres), Organic phosphorus compounds Organic cyanides, Phenols; phenol
compounds including chlorophenols, Ethers, Halogenated organic solvents,
Organic solvents excluding halogenated solvents, Any congenor of
polychlorinated dibenzo-furan, Any congenor of polychlorinated dibenzo-
p-dioxin, Organohalogen compound.

The annexure also contains the hazard levels of various kinds of waste and
their priority in which they have to be dealt with.

General Obligations:

These are the general obligations which shall apply to all the signatory
countries/nations.

1. (a) Parties exercising their right to prohibit the import of hazardous

wastes or other wastes for disposal shall inform the other Parties of their
decision pursuant to Article 13.
(b) Parties shall prohibit or shall not permit the export of hazardous
wastes and other wastes to the Parties which have prohibited the import of
such wastes, when notified pursuant to subparagraph (a) above.
 (c) Parties shall prohibit or shall not permit the export of hazardous
wastes and other wastes if the State of import does not consent in writing
to the specific import, in the case where that State of import has not
prohibited the import of such wastes.
2. Each Party shall take the appropriate measures to:
(a) Ensure that the generation of hazardous wastes and other wastes
within it is reduced to a minimum, taking into account social, technological
and economic aspects;
b) Ensure the availability of adequate disposal facilities, for the
environmentally sound management of hazardous wastes and other wastes,
that shall be located, to the extent possible, within it, whatever the place of
their disposal;

(c) Ensure that persons involved in the management of hazardous wastes

or other wastes within it take such steps as are necessary to prevent
pollution due to hazardous wastes and other wastes arising from such
management and, if such pollution occurs, to minimize the consequences
thereof for human health and the environment;

(d) Ensure that the transboundary movement of hazardous wastes and

other wastes is reduced to the minimum consistent with the
environmentally sound and efficient management of such wastes, and is
conducted in a manner which will protect human health and the
environment against the adverse effects which may result from such
movement;
(e) Not allow the export of hazardous wastes or other wastes to a State or
group of States belonging to an economic and/or political integration
organization that are Parties, particularly developing countries, which have
prohibited by their legislation all imports, or if it has reason to believe that
the wastes in question will not be managed in an environmentally sound
manner, according to criteria to be decided on by the Parties at their first
meeting;
(f ) Require that information about a proposed transboundary movement
of hazardous wastes and other wastes be provided to the States concerned,
according to Annex V A, to state clearly the effects of the proposed
movement on human health and the environment;

(g) Prevent the import of hazardous wastes and other wastes if it has
reason to believe that the wastes in question will not be managed in an
environmentally sound manner;

(h) Co-operate in activities with other Parties and interested organizations,

directly and through the Secretariat, including the dissemination of
information on the transboundary movement
of hazardous wastes and other wastes, in order to improve the
environmentally sound management of such wastes and to achieve the
prevention of illegal traffic.

3. The Parties consider that illegal traffic in hazardous wastes or other

wastes is criminal.
4. Each Party shall take appropriate legal, administrative and other
measures to implement and enforce the provisions of this Convention,
including measures to prevent and punish conduct in contravention of the
Convention.

5. A Party shall not permit hazardous wastes or other wastes to be

exported to a non-Party or to be imported from a non-Party.

6. The Parties agree not to allow the export of hazardous wastes or other
wastes for disposal within the area south of 60 South latitude, whether or
not such wastes are subject to transboundary movement.
7. Furthermore, each Party shall:
(a) Prohibit all persons under its national jurisdiction from transporting or
disposing of hazardous wastes or other wastes unless such persons are
authorized or allowed to perform such types of operations;
(b) Require that hazardous wastes and other wastes that are to be the
subject of a transboundary movement be packaged, labelled, and
transported in conformity with generally accepted and recognized
international rules and standards in the field of packaging, labelling, and
transport, and that due account is taken of relevant internationally
recognized practices;
(c) Require that hazardous wastes and other wastes be accompanied by a
movement document from the point at which a transboundary movement
commences to the point of disposal.

8. Each Party shall require that hazardous wastes or other wastes, to be

exported, are managed in an environmentally sound manner in the State of
import or elsewhere. Technical guidelines for the environmentally sound
management of wastes subject to this Convention shall be decided by the
Parties at their first meeting.

9. Parties shall take the appropriate measures to ensure that the

transboundary movement of hazardous wastes and other wastes only be
allowed if:
(a) The State of export does not have the technical capacity and the
necessary facilities, capacity or suitable disposal sites in order to dispose of
the wastes in question in an environmentally sound and efficient manner;
or
(b) The wastes in question are required as a raw material for recycling or
recovery industries in the State of import; or
(c) The transboundary movement in question is in accordance with nother
criteria to be decided by the Parties, provided those criteria do not differ
from the objectives of this Convention.

10. The obligation under this Convention of States in which hazardous

wastes and other wastes are generated to require that those wastes are
managed in an environmentally sound manner may not under any
circumstances be transferred to the States of import or transit.

11. Nothing in this Convention shall prevent a Party from imposing

additional requirements that are consistent with the provisions of this
Convention, and are in accordance with the rules of international law, in
order better to protect human health and the environment.
12. Nothing in this Convention shall affect in any way the sovereignty
of States over their territorial sea established in accordance with
international law, and the sovereign rights and the jurisdiction which States
have in their exclusive economic zones and their continental shelves in
accordance with international law, and the exercise by ships and aircraft of
all States of navigational rights and freedoms as provided for in
international law and as reflected in relevant international instruments.

13. Parties shall undertake to review periodically the possibilities for the
reduction of the amount and/or the pollution potential of hazardous wastes
and other wastes which are exported to other States, in particular to
developing countries.

Indian Perspective on the Basel convention and its effects:

Hazardous wastes belong to the category of special wastes having

constituents of chemicals, metals and other compounds which can cause
environmental pollution. In order to regulate and ensure environmentally
sound management of the hazardous wastes, the Govt. of India notified the
Hazardous Wastes (Management & Handling) Rules, 1989 under the
Environment (Protection) Act, 1986. The Government of India has ratified
the Basel Convention on the control of transboundary movement of
hazardous wastes and their disposal (under the aegis of UNEP). Provisions
and certain decisions of the Basel Convention will have to be harmonised
within the domestic legislation according to the Indias commitment to the
Convention. These will have implications on the Indian industry and
environment.
After ratification of this convention, India will be unable to source
hazardous wastes for treatment from Organization for Economic Co-
operation and Development (OECD) countries because of the ban. The
convention requires specialized treatment facilities in order to ensure an
environmentally sound recovery or disposal. Therefore, transboundary
shipment of hazardous waste is regulated by the convention. Import of
hazardous waste is legally prohibited in India but the import may be

allowed for the purpose of recycling, recovery or reuse [84]. However, the
convention is unable to prevent inflow of hazardous wastes into India from
countries that have not ratified the agreement (USA and other northern
developed countries). Industrialized countries want to dump their wastes in
developing countries such as India due to strict regulations of disposal and
management of such wastes in their own country. Restrictions imposed by
the convention aim at encouraging signatory countries to reduce
generation and disposal in safe manner.

National Hazardous Waste Management Strategy

The hazardous waste management strategy incorporates the essence of

National Environmental Policy 2006, relevant multilateral environmental
agreements like Basel Convention and the national regulations. It deals
with effective management of hazardous wastes to avoid environmental
pollution call for appropriate strategy for regulatory bodies, generators,
recyclers and operators. The strategy also facilitates implementation of
action plan as per National Environment Policy 2006 and obligations
under the Basel Convention. Application of polluter pays principle,
inventory of hazardous waste generation, cement kilns for incineration,
common treatment, storage and disposal facilities, interstate transportation,
safe disposal, illegal dump sites, remediation and strengthening of the
infrastructure of regulatory bodies are some core areas of immediate
attention in this field. Further India has enacted the following acts in
accordance of the Basel convention.

Hazardous Waste (Management and Handling) Amended

Rules, 2003

The Ministry of Environment and Forests has promulgated Hazardous

Wastes (Management and Handling) Rules, 1989 and amended the same in
2000 and 2003 for effective management and handling of hazardous
wastes. These rules define hazardous waste as any waste which by reason
of any of its physical, chemical, reactive, toxic, flammable, explosive or
corrosive characteristics causes danger, or is likely to cause danger, to
health or environment, whether alone or when on contact with other wastes
or substances. There are 36 types of industrial processes listed in schedule-
I of these rules. Wastes containing Hg, As, waste Asbestos (dust or
fibers), waste oil etc., are in the list of banned wastes for import and
export. The 2003 amendment rules have excluded biomedical wastes,
MSW wastes and wastes related with lead batteries from the list of
hazardous wastes as these are covered under special rules. These rules have
also listed the hazardous wastes mainly mercury, its compounds, clinical
and related wastes which are prohibited for import and export .
The Hazardous Wastes (Management, Handling and
Transboundary Movement) Rules, 2008

The rules establish responsibility for safe and environmentally sound

handling of wastes by any occupier of hazardous waste. Recycling
is defined as reclamation or reprocessing of hazardous waste in an
environmentally sound manner for the original purpose or other purposes.
The occupier and operator of a facility shall be responsible for proper
collection, reception, treatment, storage and disposal of hazardous wastes .
It is also the duty of occupier and operator to prevent accidents and limit
their consequences, provide information, training and equipment to
persons working on-site to ensure safety. A person engaged in all types of
handling of such wastes must obtain an authorization from concerned
SPCB. The occupier or handler may store hazardous wastes for a period
up to 90 days. He has to keep the records of sale, transfer, storage,
recycling and reprocessing of such wastes and shall make it available for
inspection. Any occupier may only sell or transfer it to a recycler having a
valid registration from the CPCB. In order to use hazardous wastes for
energy generation, the occupier has to obtain approval from CPCB.
Any persons who wish to operate a facility, for the management of
hazardous wastes must have treatment, storage and disposal facility
(TSDF) in compliance with the technical guidelines issued by the CPCB.
The state government, occupier or any association shall identify possible
sites for disposal facility but only after preliminary impact assessment
studies. In case of interstate transport of hazardous wastes for final
disposal, No Objection Certificate is must condition from SPCBs of
both states. The occupier, transporter and operator of a facility shall be
liable for damages caused to the environment resulting due to improper
handling and disposal of hazardous waste. In addition to these rules, the
government has moved to enact into legislation, additional incentives for
industries to comply with environmental provisions

In this vein, the Public Liability Insurance Act, 1991 was adopted to
require industries dealing with hazards and to ensure against accidents or
damages caused by pollutants. The National Environmental Tribunal Act,
1995 provides provisions for expeditious remedies to parties injured by
environmental crimes. Legislation on a Community Right to Know, 1996
has also been adopted to provide more access to information regarding
potential hazards from industrial operations.

Biomedical Waste (Management and Handling) Rules, 1998

amended 2011

Management of biomedical wastes (BMW) is governed by the

Biomedical Waste (Management and Handling) Rules, 1998 and are
published under EPA,1986 . Prior to 1998, the management of healthcare
waste in India was the responsibility of municipal or governmental
authorities. Hospitals generate various kinds of wastes from wards,
operation theatres and outpatient areas. These wastes include
bandages, cotton, soiled linen, body parts, sharps (needle, syringes
etc), medicines (discarded or expired), laboratory wastes etc. Other
wastes generated in healthcare settings include radioactive wastes,
mercury containing instruments and polyvinyl chloride (PVC) plastics.
These are among the most environmentally sensitive by-products of
healthcare. Tuberculosis, pneumonia, diarrhoeal diseases, tetanus,
whooping cough etc., are other common diseases spread due to improper
waste management . The government hospitals and major private hospitals
have their own arrangement for treatment of biomedical waste. Lakshmi
argues that the management of health care waste in India is bleak. It is
common scene in India that biomedical waste generated from health care
facilities in most of the places are collected without segregation and are
disposed in municipal bins located either inside or outside the facility
premises. These rules apply to all persons who generate, collect, receive,
store, transport, treat, dispose, or handle biomedical waste in any form.

The Batteries (Management and Handling) Rules, 2001

Amendment 2010

The Batteries (Management and Handling) Rules, 2001 amended in

2010 apply to every manufacturer, importer, re-conditioner, assembler,
dealer, recycler, auctioneer, consumer and bulk consumer involved in
manufacture, processing, sale, purchase and use of batteries. They also
ensure that used batteries are collected back for the purpose of recycle or
proper disposal. These rules also required to file a half-yearly return of
their sales and buy-back to the concerned state board, set up collection
centers and ensure that used batteries are sent only to the registered
recyclers without any damage to the environment. It is also the duty of
producers and others to raise public awareness, publications, posters or by
other means against the hazards of lead. It is the responsibility of
consumers to return their used batteries only to the dealers at designated
collection centers to avoid environmental damage. The importer shall get
himself registered with MoEF. Only one export-import (EXIM) code
exists for both old and new computers, preventing targeted compliance
monitoring. Furthermore, imports are often falsely declared to be for
charity, going instead to informal recyclers or becoming e-waste within
two or three years. Lacking an effective enforcement mechanism and
awareness throughout the country, the legislation remains fruitless, as the
success at selected urban areas cannot form the basis of ideal output as
expected.

Bibliography

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Allahabad Law Agency.
Leelakrishnan, P., Environmental Law in India, 2nd Edition, 2010, Nagpur:
LexisNexis Butterworths Wadhwa.
Tiwari, H. N., Environmental Law, 4th Edition, 2010 Faridabad: Allahabad Law
Agency.