Transboundary pollution, defined as “pollution whose physical origin is situated wholly or in part with in the area under the jurisdiction of one (state) and which has adverse effects, other than effects of a global nature, in the area under the jurisdiction of (another state)” is one of the oldest and most persistent problems in environmental law.
While transboundary pollution problems can be found along political borders at any level of government, international transboundary pollution has proved particularly difficult to address. The challenge in creating and enforcing a transnational pollution control regime lies in harmonizing international and domestic law. Substantively, the principles and norms regarding transboundary pollution are well-established and compatible, if not identical, under international and domestic law. However, the mechanisms for effectuating transnational pollution principles through international and domestic law are very different, and the two approaches often resemble ships passing in the night, unaware of each other’s presence and the potential for both harmonious interaction and collision.
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 1) 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. The Convention entered into force in 1992.
The Basel Convention recognizes the rights and obligations of States with respect to each other as related to transfrontier movement of hazardous wastes. It establishes an international control mechanism to block and prevent illicit traffic in hazardous waste trade. From the very beginning of the Basel Convention, a total ban on transboundary movement of hazardous waste, as opposed to a mere regulatory control of it, has been a volatile and contentious issue. After much deliberations, a recent Conference of the Parties (COP) to the Basel Convention ultimately decided to impose a total ban on the movement of hazardous wastes from developed countries to developing countries and amended the Basel Convention accordingly.
The overarching objective of the Basel Convention is to protect human health and the environment against the adverse effects of hazardous wastes. Its scope of application covers a wide range of wastes defined as “hazardous wastes” based on their origin and/or composition and their characteristics, as well as two types of wastes defined as “other wastes” - household waste and incinerator ash.
The provisions of the Convention center around the following principal aims:
The first aim is addressed through a number of general provisions requiring States to observe the fundamental principles of environmentally sound waste management2). A number of prohibitions are designed to attain the second aim: hazardous wastes may not be exported to Antarctica, to a State not party to the Basel Convention, or to a party having banned the import of hazardous wastes3). Parties may, however, enter into bilateral or multilateral agreements on hazardous waste management with other parties or with non-parties, provided that such agreements are “no less environmentally sound” than the Basel Convention4). In all cases where transboundary movement is not, in principle, prohibited, it may take place only if it represents an environmentally sound solution, if the principles of environmentally sound management and non-discrimination are observed and if it is carried out in accordance with the Convention’s regulatory system.
The regulatory system is the cornerstone of the Basel Convention as originally adopted. Based on the concept of prior informed consent, it requires that, before an export may take place, the authorities of the State of export notify the authorities of the prospective States of import and transit, providing them with detailed information on the intended movement. The movement may only proceed if and when all States concerned have given their written consent5). The Basel Convention also provides for cooperation between parties, ranging from exchange of information on issues relevant to the implementation of the Convention to technical assistance, particularly to developing countries6). The Secretariat is required to facilitate and support this cooperation, acting as a clearing-house7). In the event of a transboundary movement of hazardous wastes having been carried out illegally, i.e. in contravention of the provisions of articles 6 and 7, or cannot be completed as foreseen, the Convention attributes responsibility to one or more of the States involved, and imposes the duty to ensure safe disposal, either by re-import into the State of generation or otherwise8).
The Convention also provides for the establishment of regional or sub-regional centre’s for training and technology transfers regarding the management of hazardous wastes and other wastes and the minimization of their generation to cater to the specific needs of different regions and sub-regions9). Fourteen such centres have been established. They carry out training and capacity building activities in the regions.
India ratified the Basel Convention in 1992, shortly after it came into force. The Indian Hazardous Wastes Management Rules Act 1989 encompasses some of the Basel provisions related to the notification of import and export of hazardous waste, illegal traffic, and liability.