In my backyard: how enabling hazardous waste trade to developing nations can improve the Basel Convention's ability to achieve environmental justice.

• Author: Widawsky, Lisa

1. INTRODUCTION II. ENVIRONMENTAL JUSTICE--CENTRAL PRINCIPLES A. Domestic Origins of Environmental Justice 1. Categories of Domestic Environmental Justice 2. Two Central Methods for Achieving Environmental Justice B. International Environmental Justice III. BASEL CONVENTION--HISTORY, COMPONENT PARTS, AND ENVIRONMENTAL JUSTICE A. The Basic Mechanics of the Basel Convention 1. Minimizing Transboundary Movements Under the Convention 2. Environmentally Sound Management of Hazardous and Other Wastes 3. Confronting Illegal Movements of Hazardous and Other Wastes B. How the Major Components of the Basel Convention Emphasize Environmental Justice 1. Prioritizing Protection of Human Health and the Environment 2. Differential Treatment of Industrialized and Developing Nations 3. Prior Informed Consent: Engaging Exporting and importing Nations in a Safety Dialogue 4. Regional Training Centers for Transfers of Technology 5. Finances, Compliance, and Liability IV. IMPEDIMENTS TO ENVIRONMENTALLY JUST WASTE DISPOSAL: KEY WEAKNESSES OF THE BASEL CONVENTION A. Insufficiency of the Trust Funds to Enable the Convention to Achieve Environmental Justice B. Inability of the PIC Procedure to Accurately Verify ESD Facilities C. Inefficacy of BCRCs to Transfer Adequate Training or Technology to Developing Nations D. Inefficacy of the Compliance Committee to Monitor Compliance E. Protocol on Liability's Failure to Garner Support V. THE BASEL BAN AMENDMENT: WHY IT AROSE AND OBSTACLES TO RATIFICATION VI. ALTERNATIVES TO THE BASEL BAN FOR BOLSTERING THE ACHIEVEMENT OF ENVIRONMENTAL JUSTICE IN THE BASEL CONVENTION A. Pre-Trade Safeguard: An Inspection and Authorization Requirement B. Post-Trade Safeguards." Implementation of the Protocol on Liability and A Stable Fund to Nourish Regional Centers and Respond to Environmental Disasters 1. Generating Funding Through Implementation of the Protocol on Liability 2. Generating Funding Through Public and Private Sector Donations VII. CONCLUSION I. INTRODUCTION

   Just after midnight on August 19, 2006, a small company in Cote d'Ivoire accepted over five hundred tons of toxic sludge that had been refused for disposal in Europe, pumped it into trucks, and dumped it in at least eighteen public locations throughout the city of Abidjan, poisoning ten people to death and provoking more than 100,000 others to seek medical treatment. (1) The lethal waste arrived on the African coast in a ship owned by a Greek shipping company, (2) flying a Panamanian flag, and leased by the London branch of a Swiss corporation fiscally headquartered in the Netherlands. (3) Relying on the corporation's assertions that it required disposal of only 250 tons of "regular slops," Amsterdam Port Services, a waste processing company, had originally agreed to accept the waste for $15,000. (4) However, after finding that the volume of wastes had been grossly underreported, noting that the waste looked different from any waste that it had seen before, and watching as many of its workers were falling ill from the "seeping fumes," Amsterdam Port Services tested and confirmed that the waste was hazardous and re-estimated that $300,000 would be required for safe disposal. (5) Refusing to remit this amount, the multi-billion dollar carrier corporation withdrew from the European continent and searched until it found an entity willing to accept a cheaper price for disposal. (6) It eventually sold its wastes to the local Cote d'Ivoire company for not just a cheaper price but for the original price of only $15,000. (7)

   Unfortunately, the Cote d'Ivoire incident is only one of many instances in which industrialized nations have exported their wastes to developing nations. In 1998 alone, reported instances of transboundary movements of wastes from industrialized to developing nations exceeded 800,000 metric tons. (8) The propensity of wealthy, industrialized nations to export their wastes to poorer, developing nations is a classic and pervading example of international environmental injustice. Although the concept of environmental justice originated in the United States to recognize that communities and regions with higher levels of poverty and higher percentages of minorities bear a disproportionately large number of environmental burdens, (9) environmental justice has become "increasingly relevant in the international setting" (10) as globalization has enabled nations with poor and minority populations to bear the brunt of the world's environmental refuse.

   The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention or Convention) (11) arose in 1989 as an international response to the disproportionate burden developing nations bear specifically in regard to hazardous waste disposal. (12) It regulates trade of hazardous wastes to ensure the safe disposal and reduce the transboundary movement of wastes, (13) and has been touted as one of the international agreements at the forefront of integrating environmental justice principles into global international trade. (14) However, the Basel Convention has received more criticism than praise, being described as "a compromise treaty that is long on rhetoric and short on substance and effectiveness." (15) The disaster in Abidjan is a testament to the reality that implementation of the Basel Convention falls woefully short of achieving environmental justice. (16)

   To increase protection for developing nations, the parties proposed an amendment to the Basel Convention in 1994 that would ban all exports of hazardous wastes from Annex VII nations (members of the Organization for Economic Co-operation and Development (OECD), the European Community (EC), and Lichtenstein) to non-Annex VII nations by December 31, 1997. (17) However, the Basel Ban has not been ratified by the requisite three-fourths of the nations that adopted it for it to take effect. (18) While it may not be surprising that many of the states that have failed to agree to or ratify the Basel Ban are OECD nations, there are also a large number of non-OECD, developing nations that have failed to ratify the amendment. (19) The Basel Ban fails to account for the developing nations that, hoping to grow their economies and presumably not aiming to compromise human or environmental safety, are averse to a system in which they are universally deemed ineligible for importing wastes, especially those "wastes" from which valuable scrap metals are often recovered. Although elements of the Basel Convention seem to provide a promising route toward achieving environmental justice, environmental justice can not be realized without understanding that the unique pressures of developing nations require the harmonization of a precautionary attitude with tools for economic growth.

   There are several impediments to the success of the Basel Convention, as currently in force, which can be improved upon to better enable the Convention to achieve environmental justice without mandating a permanent total ban on transboundary movement of wastes. The Convention's main barriers to achieving environmental justice are: 1) insufficient funding of the Basel Trust Funds, especially the Technical Trust Fund established specifically to aid developing nations with technology transfers, 2) the failure of the prior informed consent (PIC) procedure to verify environmentally sound management (ESM) facilities, 3) inefficacy of the Basel Convention regional centers (BCRCs) to transfer training or technologies to developing nations, and 4) the Parties' lack of support for the Convention's Compliance Committee or Protocol on Liability.

   To better achieve environmental justice, changes can be made to the Convention's weaker provisions to protect developing nations from bearing the brunt of environmental harms without necessitating a total ban that is undesirable to many nations. For one, the loophole in the PIC process currently enabling misrepresentation by Parties regarding ESM practices could be closed by predicating use of a facility in a developing nation upon prior inspection and authorization by an implementation body. The International Atomic Energy Agency's (IAEA) inspection process, combined with the Clean Water Act's pollution permitting system, provides guidance on how such a precautionary procedure could operate. Next, the Parties need to propel the currently ineffectual yet promising Protocol on Liability into force, because it would both deter illegal waste movements and secure vital funding to respond to current and future accidents. Finally, funding sources must be established to support the BCRCs so that developing nations could build facilities to deal with wastes. This funding system should implement a cooperative model that imposes strict penalties against violators, as in the Kyoto Protocol's Compliance Committee (20) or the Convention on the International Trade in Endangered Species (CITES), (21) and maximizes international contributions, as in the Montreal Protocol's Multilateral Fund. (22)

   Accordingly, the Basel Ban on all exports to non-Annex VII nations should be modified to only apply until a developing nation can establish a facility able to pass inspection and receive a permit certifying ESM practices. In this way, the "burden" developing nations might have incurred when previously accepting wastes would be diminished by the curtailment of potential negative environmental consequences and by the economic benefit and accordant bargaining power developing countries would gain in the global arena. This approach has the potential to both achieve economic progress in developing nations and ensure a safe, legal means for controlling hazardous wastes that will discourage the health concerns and environmental injustice associated with illegal hazardous wastes trades.

   Part II of this Comment discusses the driving principles behind environmental justice. Part III analyzes the component parts of the...