The Basel Treaty's Ban on Hazardous Waste Exports: An Unfinished Success Story

By Jim Puckett, Published in International Environmental Reporter 23 INER 984 - 6 December 2000

Jim Puckett spearheaded Greenpeace's Toxic Trade campaign from Europe for many years. Currently he is executive director of the Seattle-based Asia Pacific Environmental Exchange (APEX) and is coordinator of the Basel Action Network (BAN), a global watchdog coalition of international environmental groups working to implement the Basel Convention's global ban on the export of hazardous wastes from developed to developing countries. He has written numerous articles on the subject of waste trade, some of which can be found at the BAN Web site: http://www.ban.org. The opinions expressed in this article are those of the author and not of The Bureau of National Affairs, Inc.

Introduction

It is rare in the course of history when an environmental crisis is prevented in time to avert global-scale disaster. It is rare when our collective response is one of great relief rather than an extended era of damage control. Such an outcome, however, has been realized with respect to the international community's timely decision to ban the export of hazardous wastes from developed to developing countries. Today, due to this global effort of just a few short years, an ad hoc ban now exists while a legally binding ban awaits the necessary ratifications to enter into the force of law.

Despite this stunning success at preventing a crisis, a small minority of countries and special industrial interests that would profit from the economic dumping of toxic wastes from rich to poor economies have claimed that the Basel ban was never really warranted, that it does not reflect the realities of today's world, and that the dam it has erected against the North-to-South, West-to-East waste flood should perhaps be cracked open again.

This article will trace the short history of the Basel ban as achieved under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal and assert that it can already be hailed as a major success (INER Reference File 1, 21:3701). It will show how the ban's success has allowed a small but vocal group of critics the luxury of finding relatively small faults while ignoring the overarching horrors it has avoided. The grave danger now is that because the economic dynamics that created the waste trade scandals of the late 1980s have actually increased, if ban detractors succeed in punching loopholes into what can only succeed as a strict prohibition, it is highly likely that we will finally realize the full-length nightmare from which we had the wisdom to awake upright in the early 1990s.

Why a Ban?

The treaty that became the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal was first proposed in 1987 as a rapid global response to a late 1980s outbreak of international waste dumping that had stung the world and threatened to become epidemic. For the first time, the combined effects of vastly increasing quantities of hazardous wastes in developed countries, and a clarion call in those societies to better control and manage such wastes, created an unintended and unexpected powerful economic incentive for waste generators to export their waste problems rather than solve them at home. The profits to be made by this most blatant form of cost externalization were so persuasive that even civic municipalities such as the City of Brotherly Love–Philadelphia—ignored onerous moral questions and, buffering themselves with brokers and unscrupulous traders, simply paid lowest bidders to make their noxious wastes go away.

It had become clear, as was stated so baldly in 1991 in an infamous leaked World Bank memo by now Secretary of the U.S. Treasury Department Lawrence Summers, that indeed the economic logic behind dumping a load of toxic waste in the lowest wage country is impeccable,—that is, if matters were left to the free market.

And yet the vast majority of the Earth's citizens, Mr. Summers notwithstanding, found such free trade in bads rather than goods unacceptable. A cry arose from the global community to create an international instrument to erect certain trade barriers and correct these market abuses on behalf of the environment, particularly in developing countries.

Since the Basel Convention's inception, the goal in the minds of the developing countries was to instate a full, no-exceptions ban on all exports of hazardous wastes from developed to developing countries. However, due to the consensus decisionmaking process required in the initial formation of international law, the lowest common denominator of negotiating countries prevailed.

The resulting convention, which upon adoption in 1989 only required an exchange of paperwork prior to wastes being traded, was condemned by environmental organizations and developing countries alike for doing little more than legitimizing what they believed should have been deemed a criminal activity. Indeed, Gianfranco Ambrosini, who masterminded a shipment of waste from Italy to Djibouti and tried to export tons of waste to Guinea Bissau and Senegal, claimed on Swiss television on the eve of adoption that obtaining a few signatures on a piece of paper was the least of the normal challenges he faced when putting together an international toxic waste trade deal.

But the failure of the Basel Convention was met with further resolve among developing countries. Because the Basel Convention did not ban waste trade, the African group walked out without signing the convention and vowed to create its own convention to protect Africa. By the time the Basel Convention entered into force in 1992 and held its first Conference of the Parties, not only had Africa adopted its waste-trade-banning Bamako Convention (21:4201), but the African, Caribbean, and Pacific countries had joined force with the European Union in 1989 and agreed to a full waste trade ban in the Lome´ IV Convention. A similar agreement was soon to be signed in Central America (1992), and additional efforts were launched in the Pacific Island region and in the Mediterranean, which have since created legal ban agreements.

The momentum for a global ban that placed the onus on the exporting countries rather than on potential importers continued to escalate. Finally in 1994, at the second Conference of Parties to the Basel Convention, over the objections of the United States, Canada, and Australia, the G-77 group representing developing nations was able to join with the European Union in adopting by consensus a full, no-exceptions ban on the export of hazardous wastes from countries of the Organization for Economic Cooperation and Development (OECD) to non-OECD countries. In 1995 the ban was transcribed into a decision to amend the convention accordingly. The amendment today has so far been ratified by 22 of the necessary 62 parties needed to enter into force.

The Basel Ban: Already a Stunning Success

Meanwhile, however, the instances of actual and proposed OECD to non-OECD hazardous waste trade have diminished dramatically across the globe. While Greenpeace, which monitored all such waste trade schemes, was able to publish phone-book-sized inventories of waste trade schemes in the early 1990s, the descriptions of such waste trade since 1994 are barely enough to fill three pages.

Thus it can be said with accuracy that an ad hoc, morally binding ban is in place. Ironically this success has been taken for granted and has made it far too easy for ban detractors to claim that it has had little impact. The ban has in a way been victimized by its own rapid success, which prevented the world from ever having to truly bear witness to the full ugly potential of an unbridled hazardous waste trade.

However, were it not for the collective move to erect the global ban against the most blatantly abusive forms of the international trade in wastes, the already sad environmental and occupational conditions in much of the developing world would have been made all the more tragic.

Imagine if certain developing countries in Africa, Asia, or Latin America had yielded to the Hobson's choice of poverty or poison and chose the latter. Imagine that they willingly designated large tracts of their territories as sacrificial zones for large-scale dumping of the toxic effluent of the affluent countries. Imagine also that the known abuses of present-day Third World sweatshops were compounded critically by a new industry—involving the inherently dangerous tasks of hand sorting and recycling of hazardous waste materials such as polychlorinated biphenyl (PCB)-contaminated electronic scraps, organic solvents, lead-acid batteries, or asbestos-impregnated materials. And yet realize that these would be countries without the necessary economic resources to begin to mitigate or prevent wide-scale contamination and loss of life and health of workers.

Such a scenario would have ensured that certain regions of the world would become massive superfund sites with no superfund available to ever clean them up. Without the ad hoc global ban in place, we would now have witnessed a continually escalating waste colonization process that would not only have further degraded the health of seriously stressed peoples and environments but would have seriously degraded all moral authority for those who find virtue in economic globalization. Finally and perhaps ultimately most important, by eliminating all incentive, we would have forever undermined all efforts by industrialized powers to minimize their hazardous waste and product generation.

The One that Got Away: The Grim Reminder of Shipbreaking

Those that might doubt this gloomy analysis need only look at what happened in the global shipbreaking industry, which in the short span of just 20 years, simply by the dictates of the free market, shifted virtually all operations from northern shipyards to South Asian beach junkyards. There the end-of-life ships, PCBs, paints, and asbestos are hand harvested around the clock for their steel, with costs to life, limb, and lungs never entering the balance books of the profiteers. In one such operation in Alang, India, alone, 40,000 persons toil daily under the most hazardous occupational conditions outside of warfare. While there are countless ways that such workers succumb in these waste warrens, it is estimated by occupational health experts that one in four of these workers will contract cancer from just the asbestos found on board these imported waste vessels.

It is essential to remember that it was only due to the unique nature of ships-as-waste that the global community overlooked shipbreaking in the quest to ban hazardous waste exports. The Basel Convention and its ban amendment are ineffectual at completely regulating end-of-life ships as hazardous waste exports. Now that this waste flow has taken global root, it is a global cancer far more difficult to cure than it would have been to prevent. Hopefully, this grievous oversight will serve as a grim reminder of what would have passed for all hazardous waste streams had there not been a decisive preventative global response.

Today's Waste Trade Pressures: Greater Than Ever

While it may be impossible to prove what might have been, it is not difficult to assert affirmatively that the forces that created the international trade in hazardous wastes in the last decade are more acute today than ever before. That is, the relative factors that define disposal cost differentials, which in turn create the impeccable logic of free-market waste trade flows, have actually increased the pressures to export. These factors are:

• rigid control over such wastes in OECD countries, leading to high disposal costs there;
• increasing volumes of hazardous wastes, primarily in OECD countries; and
• global disparities in relative wealth that both lower relative wages and relative ability to maintain rigid control over hazardous wastes, which in turn lead to lower disposal costs.

While the first factor has increased slightly in the last 10 years with generally stricter standards for incineration and landfilling in OECD countries, the second factor has in fact increased dramatically. OECD data show that in the last 30 years we have made little progress in reducing our mountains of wastes. Indeed there has been a steady increase even exceeding that of economic growth. In Europe, for example, according to the European Topic Center on Waste, from 1990 to 1995, there was a 10 percent increase—in just five years!

Meanwhile, the effects of globalization to date have seen the global gulf between the haves and have nots widening. In Prague, Czech Republic, this year at its annual meeting, World Bank President James Wolfensohn even felt compelled to exhort, these inequities can't exist in regard to recent trends that now find that 20 percent of the world controls 80 percent of the economy—with the rich getting richer as the poor are getting left further and further behind.

Clearly, the powerful vectors that create the tremendous gradient upon which hazardous waste toboggans across frontiers on its path of least resistance are actually increasing in dimension. Despite the claims of Basel ban opponents and free-trade zealots, it is certain that the realities that have stirred the global community in the last decade to act in concerted response to create a ban are more real than ever today.

"Nitpicking" the Ban

In this quiet, relatively scandal-free period, however, opponents of the ban have come out of their collective closets to take issue with it. They have based much of their critique on what is purported to be a slow rate of ban amendment ratifications as an indication that its global support has wavered—particularly among developing countries.

However, this premise has little basis other than perhaps some wishful thinking. The truth is that ratifications have proceeded at a steady, unfaltering rate and one that is comparable or faster than most other amendments to global treaties. Once the uncertainty over the debate on definitions of hazardous wastes was resolved in 1997, we witnessed seven ratifications that year, four in 1998, five in 1999, and five again in 2000. While this rate is too slow for many of us, virtually all subsidiary instruments (amendments and protocols) of existing treaties that require full ratification normally move at a slower pace than the acceptance of the treaty itself. To cite but one example, the 1996 protocol of the London Convention (on ocean dumping) has only four of 26 acceptances needed (21:1951).

Basel ban opponents also allege flaws and exceptions to the principles behind the ban. It is easy to find exceptions and flaws in any rule or legislation. But their arguments, even when valid, seem as small quibbling to those who understand the larger issues involved—they are drowned out by the furious economic pressures of the waste flood still boiling behind the dam. The admitted small losses must be observed in proportion to what the world has gained overall. Attempts now to accommodate small exceptions will almost certainly lead to an unenforceable, loophole-ridden instrument, one that is easily corrupted and manipulated by those well aware of the immense profits to be made.

For example, Basel ban opponents have noted that developing countries might in fact sometimes want hazardous wastes as a cheap source of metals that can be obtained through recycling rather than through continued extraction of primary sourced metals. While this case can sometimes be made in the short term, the argument usually looks far better on paper than in reality. In almost every case where this claim is made, a true costing of the long-term impacts of pollution and health impacts in the recipient country reveals the scheme to be a poor bargain for the country importing the hazardous waste.

Another common complaint is that the OECD/non-OECD divide upon which the ban is based is an artificial one. While such a divide will always be an imperfect one, once again the disadvantages of this divider pale before the advantages. Most notably, placing the onus of the ban on the OECD is seen as absolutely appropriate. The OECD produces an estimated 90 percent of the world's waste and at the same time possesses the greatest resources to take real responsibility for it. That is, rather than exporting their problems, the OECD members should surely be among the first tier of countries in the world to fulfill the obligations of the Basel Convention to become self-sufficient in the management of their own hazardous wastes by minimizing them at source (Article 4.2 (a, b)).

Conclusion

The above reminders of what has been, what might have been, and what are today's global realities clearly paint for us the big picture of why the Basel ban remains a vital environmental victory. Yet while the Basel ban must be celebrated, we must also remind ourselves that it remains as yet an unfinished success story—a fragile victory. While it remains in moral force, it has not yet received the necessary ratifications to become a bulwark of international law. Currently, many special interests that can profit enormously by exploiting poorer economies with unsustainable hazardous waste trade still seek to undermine its implementation. Meanwhile, today's economic conditions make the threat of a renewed transboundary waste flood more serious than ever before.

In this quiet period, relatively free of the international waste scandals previously witnessed, it is vital that the global community appreciates what has been gained by the rapid deployment of the Basel ban and realizes what could be lost if we allow it to be discredited and dismantled. Only vigilance and a determination to see it ratified and cemented in place will finally deter its opponents and force them to take a responsible path toward waste management through waste minimization at source. As much as we all have an urgent duty to create new innovative ways to protect our children's future, it is even more vital that we protect and uphold the difficult gains we have made.