The transboundary movement of hazardous waste in the Mediterranean regional context.

• Author: Scovazzi, Tullio

I.

TWO CASES INVOLVING ITALY BEFORE THE ADOPTION OF THE BASEL CONVENTION

Despite some loopholes and ambiguities, the Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel, 22 March 1989)(1) should be considered a major achievement in international environmental law.(2) One of its main merits is the establishment of the concept of prior informed consent, according to which the State of export must previously notify any intended movement of hazardous waste to the State of import.(3) The Basel Convention put an end to the previous NIMBY ("Not in my Backyard") and OSOM ("Out of Sight, Out of Mind") practices which seem hardly compatible with the principles of cooperation, transparency and good neighbourliness that should inspire international relations.

As examples of what the situation was before the adoption of the Basel Convention, two cases which involved Italy may be recalled.(4) Of course, Italy and its nationals have not been the only protagonists of the transboundary traffic of hazardous waste. Several other industrialized countries and their nationals could be cited as well.(5) Nevertheless, the two cases in question have highlighted the need for both a new domestic and an international regime and have prompted the adoption of the relevant instruments.

1. The Seveso Drums

   The Seveso incident, so called after the most affected locality, is a well known case of serious pollution by harmful substances, where the contamination extended beyond the limits of a chemical plant and involved a densely populated area located in four Italian municipalities.

   On 10 July 1976 the safety valve of a reactor used in a chemical plant run in Meda, Italy, by the corporation ICMESA,(6) for the production of trichlorophenol burst. Blown by the winds, a cloud containing the highly toxic substance TCDD (tetrachlorodibenzoparadioxin, commonly known as dioxin) polluted an area of 1,807 hectares. The damage caused by the accident was estimated at about 121 billion Italian liras (of that time), without taking into consideration compensation paid to people who suffered physical injuries.(7)

   After the rehabilitation of the site, it turned out that on 10 September 1982, 41 drums containing soil polluted by the Seveso dioxin had crossed the border between Italy and France at Ventimiglia. It is likely that the customs officers did not realize that the drums actually contained the dioxin of the Seveso incident.(8) For several months there was no trace of the drums at all, despite the extensive efforts made by the governments concerned. The private companies involved in the movement kept silent. Articles about the mystery of the "wandering drums" were published in periodicals.

   On 19 May 1983 the drums were finally located - sealed in a perfectly safe manner- in an abandoned slaughterhouse in the French village of Anguilcourt-le-Sart, were they had been deposited in the expectation of a final disposal.(9)

   The facts prompted the Council of the European Economic Community(10) to adopt the directive No. 84/631 of 6 December 1984 (called the "Seveso II directive"), which established a regime for the control of transboundary movements of hazardous wastes within the Community.(11) Two aspects of the directive deserve particular attention: a) the principle of transparency, as any movement is subordinated to a previous communication to the States of import and transit; b) the principle of consent, as the States of import and transit can object to the movement. Under the directive, the two principles apply also in the case of movements from a Community member State to a third State.(12)

   The same facts also prompted the Council of the Organization for Economic Co-operation and Development (OECD) to adopt the decision/recommendation of 1 February 1984 on transfrontier movements of hazardous waste and the decision/recommendation of 5 June 1986 on exports of hazardous wastes from the OECD area.(13) These instruments set forth some precise obligations of OECD member States,(14) namely: to ensure that the competent authorities of the States concerned are provided with adequate and timely information on the movements; to prohibit movements without the consent of the import State; to prohibit movements to a non-member country unless the wastes are directed to an adequate disposal facility.

2. The Waste that, after Having Left Italy, Returned to Italy

   In 1987, world public opinion was struck by several cases of covert traffic of hazardous waste from industrialized to developing countries. Some of the ships involved in the traffic -for example, Karin B, Zanoobia, Jolly Rosso, Deep Sea Carrier - sailed from Italian ports carrying wastes produced or shipped in Italy. The wastes were abandoned in the territory of certain developing countries (including Venezuela, Nigeria, and Lebanon). In the case of the Koko incident, about 4,000 tons of toxic wastes were dumped in a delta area of Nigeria under a deal arranged between an Italian trader and a Nigerian national, who received US$100 a month.(15) When the wastes were discovered, the government of Nigeria protested to the Italian government and adopted a retaliatory measure. An Italian ship, which had nothing to do with the traffic of waste, was prevented from leaving a Nigerian port.

   Italy agreed to take the wastes back and provide for the rehabilitation of the sites where the waste had been abandoned.(16) The action was undertaken at the expense of the Italian Ministry of Foreign Affairs, without prejudice to any legal action that it might bring in order to be refunded by the persons found liable.(17)

   This result can be seen as a good, although not explicitly admitted, instance of application of the rules of international law governing State responsibility to the field of protection of the environment.(18) It is assumed that there is a rule of customary international law prohibiting a State to use its territory in order to create serious harm to the territory of another State (in other words, a rule prohibiting transfrontier pollution). If this rule is violated - for instance, because a State has failed to control private companies shipping abroad and to inform the other States concerned - the responsible State is obliged to re-establish the situation which existed before the wrongful act (restitutio in integrum) and to provide compensation for the damage.(19) More or less, this is what happened in the case in question.

   Similar problems are now resolved by the Basel Convention. Very clearly, the convention recognizes that every State has the right to ban the entry or disposal of foreign waste into its territory and that the export of hazardous wastes is in any case prohibited, if there is reason to believe that they will not be managed in an environmentally sound manner.(20)

   II.

   THE BASEL CONVENTION AND THE REGIONAL AGREEMENTS ON MOVEMENTS OF HAZARDOUS WASTES

   As a treaty having a world sphere of application, the Basel Convention allows the parties to enter into regional agreements, provided that they stipulate to provisions which are not less environmentally sound than those of the Basel Convention itself. To be precise, Art. 11 of the Basel Convention (Bilateral, Multilateral and Regional Agreements) provides as follows:

   1. Notwithstanding the provisions of Article 4, paragraph 5, Parties may enter into bilateral, multilateral or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with Parties or non-Parties, provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention. These agreements or arrangements shall stipulate provisions which are not less environmentally sound than those provided for by this Convention in particular taking into account the interests of developing countries. 2. Parties shall notify the Secretariat of any bilateral, multilateral or regional agreements or arrangements referred to in paragraph 1 and those which they have entered into prior to the entry into force of this Convention for them, for the purpose of controlling transboundary movements of hazardous wastes and other wastes which take place entirely among the Parties to such agreements. The provisions of this Convention shall not affect transboundary movements which take place pursuant to such agreements...