"CONTROLS" vs. BANS

77. The debate over how best to prevent the environmental, political, social and moral ills presented by the international waste trade has manifested itself in two types of actions: control mechanisms and bans. The former are characterized by the fact that they are generally supported by major industrialized powers and consist of a notification and consent regimen known commonly as "prior informed consent" or PIC. The bans however, are more generally supported by less-industrialized countries--the potential victims of waste trade.

78. The relevant U.S. and European Community legislation as well as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes, all rely on various forms of the PIC as the basis for its "control system". Greenpeace firmly believes that instruments which rely on PIC cannot possibly combat waste trade or mitigate the political, ecological, moral or social ills created by it.

79. PIC cannot pretend to be a just system when we live in a world of such disproportional economic and political levels; in a world where the wastes of the rich can be offered as short term remedies for the poverty of the poor. PIC cannot pretend to redress the disincentive for both waste minimization and the implementation of clean production methodology that is served when industrial interests, with a minimum of paperwork can cheaply export their waste problems rather than take responsibility for them at home.

80. Thus, rather than accepting "control systems" based on some form of "prior informed consent", Greenpeace and much of the less-industrialized world insist on complete import or export bans as the only means to adequately remedy the problems associated with the international trade in hazardous wastes.

81. The following paragraphs elaborate the primary "control" legislation impacting the Wider Caribbean region -- The Basel Convention and U.S. law; and will point out their respective shortcomings. Then the existing policies and legal mechanisms which are helping to bring about real solutions will be reviewed --waste trade prohibitions or bans.

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal

82. In March 1989, the United Nations Environment Programme's attempt to deal with the waste trade problem culminated in the signing of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. The Convention negotiations were marked from the start by a division between a minority of powerful industrialized nations that wished to retain the possibility to sweep their waste problems out the "back door", and a majority of developing countries that came to Basel with hopes of closing that door. Due to the consensus decision making process used in the creation of international law, the lowest common denominator (U.S.A., U.K., U.S.S.R., Japan etc.) prevailed.

83. The Basel Convention's primary achievement is a requirement that waste exporters receive the written consent (PIC) of importing nations before any shipment takes place. However, this notification regimen is largely a duplication of existing laws in the U.S.A. and the European Community, and will do little to curtail existing or expected transboundary waste movements.

84. As of February 1991, the Basel Convention had only been ratified by 6 countries. Entry into force will occur on the ninetieth day after the deposit of the twentieth ratification instrument and the first meeting of the Contracting Parties will be convened not later than one year after entry into force. Thus it will be some time before even this weak instrument will come into force.

85. By 11 February 1991, seven countries in the Wider Caribbean region had signed or acceded to the Basel Convention: USA, Colombia, Guatemala, Haiti, Mexico, Panama, U.S.A. and Venezuela. None of these countries has yet ratified the Convention nor implemented its provisions into national law.

86. The primary flaws of the Basel Convention are summarized as follows:

i. There exist no general provisions to ban any sort of waste trade (except to Antarctica) including trade to developing countries (Article 4).

ii. By providing a legal framework within which to trade waste (PIC), the Convention legitimizes a practice which should be considered a criminal activity (Article 6).

iii. PIC is not an equitable contract in a world with the actual disproportional economic and technological levels.

iv. The PIC system does not assure that the national competent authority will have all the necessary information on the planned waste shipment.

v. With PIC there is no guarantee that the state of import, once the national competent authority gives the written authorization to receive the wastes, has the adequate facilities or the real possibility to manage the wastes in a environmentally sound manner (Articles 4 and 6).

vi. The Convention allows that the notification of a planned shipment could be delegated from the export government to the generator or exporter (Article 6). This represents a clear conflict of interest.

vii. Radioactive waste can be interpreted as being excluded from the scope of the Convention (Article 1).

viii. There are no liability provisions developed to this day (Article 12).

87. However, the Basel Convention recognizes that any State has the sovereign right to ban the entry or disposal of foreign hazardous wastes and other wastes in its territory (preamble and Article 4), and allows that Parties and Non-Parties enter into bilateral, multilateral or regional agreements regarding the transboundary movements of hazardous wastes. These agreements "shall stipulate provisions which are not less environmentally sound that those provided for by this Convention" (Article 11).

United States Legislation

88. An overwhelming majority of the waste transported legally or illegally to the Wider Caribbean region comes from the U.S.A. It is therefore important to consider the legislative effort that this country is making to control its own borders in respect to hazardous waste.

89. The Resource Conservation and Recovery Act (RCRA) as amended by the Hazardous and Solid Waste Amendments (1984), effective since November 1986, requires that exporters of hazardous waste notify the US Environmental Protection Agency (EPA) which in turn will notify the importing country. The importing country must then send the EPA its consent to import. If consent is not granted or the notification is ignored, the EPA cannot grant a permit to export the waste.

90. The U.S. Government has no authority to prohibit any attempt to export waste as long as notification procedures for such export are observed and consent is received from the importing country.

91. Four years of experience with the 1984 RCRA amendments, for which the EPA promulgated revised export regulations which became effective in November 1986, have revealed a set of weaknesses and loopholes. The major problems are as follows:

i. Above all, EPA's authority is too limited. Currently, the EPA has no authority to stop (and thus cannot stop) an export if there has been proper notification, and if the importing government has given its consent. Even if the EPA believes that the particular export is dangerous and may cause harm, it is bound to allow the export.

ii. The notification and consent procedures do not cover wastes that are not considered "hazardous" in the U.S.A., but which are legally defined as hazardous abroad. As a result, "the tendency to export solid waste classified as non-hazardous under RCRA is increasing and beginning to pose environmental, health and diplomatic problems..." as noted by Subcommittee Chairman Mike Synar (D-OK.) at a congressional hearing.

iii. Hazardous waste exports have not been adequately controlled. The EPA Inspector General "found instances where hundreds of tons of hazardous wastes were exported without notifications". Furthermore, "enormous quantities of hazardous wastes were exported without exporters filing the required annual reports". By 1986, less than 20 annual reports were filed with the EPA, despite the receipt of "hundreds" of notifications each year. As a result, the EPA "did not know the amount of hazardous wastes actually exported to other countries.

iv. The EPA did not have an enforcement strategy and failed to coordinate its efforts with those of Customs. Out of 274 manifests that the EPA National Enforcement Investigation Center (NEIC) received up to December of 1987, 143 manifests did not specify the port of exit. The EPA Audit report concludes that "consequently, hazardous waste exporters could disregard EPA regulations with little chance of detection". As a result, if exporters did not provide required notification, the EPA could not identify and prosecute violators. This practice had the consequence that importing countries were denied the right and opportunity to reject the wastes. In addition, "the receiving country's consent, which EPA forwards to the exporter for attachment to the manifest, did not always contain the data that Customs need to ensure the shipment is proper".

v. EPA's hazardous waste export regulations are unclear or ambiguous and resulted in the misclassification of hazardous wastes as materials for "recycling" and "reclamation". This practice led to "sham recycling" and "illegal" exports. Another problem stems from the fact that exporters claimed that their shipments did not contain hazardous wastes, but contained economic goods or "products".

vi. The system of Prior Informed Consent (PIC) did not always work. A waste export scheme to the Congo reveals that the country first consented the export, but withdrew its consent 10 days later. The Congolese government claimed that the information provided was insufficient to make an informed and sound decision, and if they had known all the information, they would have rejected it at first. The EPA's National Enforcement Investigation Office supports this claim by stating that hazardous waste manifests show "serious problems with proper completion of these documents and classification of wastes." At the congressional hearing Rep. Synar concluded that current application of prior informed consent "may not be as informed as it should be".

vii. It appears that there are no insurance requirements covering improper disposal and accidents abroad.

92. Besides these problems, there are a variety of other issues which effected the program's success. The entire EPA programme on hazardous waste exports is not adequately funded or staffed. For instance, a single person in the EPA is assigned to handle the programme. Moreover, the assignment of three agencies, the EPA, the Customs Service and the State Department, resulted in a bureaucratic burden with lack of coordination and final failure of effective control.

WASTE TRADE BANS IN THE WIDER CARIBBEAN REGION

National Bans

93. It is fortunate that many Caribbean countries have resolved to prevent hazardous waste shipments. However, others remain vulnerable. By the end of 1989, at least 19 States or Territories in the region had banned waste imports from industrialized countries, see Table I, while a number of others remain vulnerable, see Table II. Globally, at least 76 countries have banned all foreign waste imports, see Table III.

94. An excellent example of national legislation (Dominican Republic) banning waste imports can be found in Annex I.

95. The Caribbean region can be protected from the dangers inherent to waste trade through the implementation of waste import and export bans at the national, regional and international levels. Only through a complete ban can it be ensured that waste will not be transported under any pretext and end up endangering the lives and environments of these countries.

Note: Mexico allows waste imports for "recycling" operations. Guatemala allows waste imports for "commercial" activities.

TABLE II

WIDER CARIBBEAN STATES AND TERRITORIES WHICH REMAIN
VULNERABLE TO LEGAL WASTE TRADE. (NO FULL BAN IN PLACE).

TABLE III

DEVELOPING COUNTRIES WHICH HAVE BANNED WASTE IMPORTS

Underlined names indicate non-ACP states that have banned imports by their own policies or legislation. The ACP states make up the remainder of the list although many of these had instituted national bans prior to the signing of Lomé IV.

The Lomé IV Convention

96. Many of the Caribbean countries in the Cartagena Convention area have succeeded in helping establish a waste trade ban within the Lomé IV Convention. Fifteen countries in the region are now protected from foreign dumping of hazardous and nuclear waste under a trade and aid agreement between the African, Caribbean and Pacific (ACP) group of States and the European Economic Community (EEC) signed on 15 December 1989.

97. Article 39, see Annex II to this report, of the Lomé IV treaty represents the world's most comprehensive hazardous waste trade ban. When this 10-year pact enters into force, the EC will not be allowed to ship any hazardous (including nuclear) wastes to the 69 ACP countries. Also, under this agreement, the ACP countries agreed to prohibit hazardous, including radioactive waste imports from any country.

98. Under the terms of the Single European Act, the Convention first had to be approved at the EEC level by at least 260 of the 518 Members of the European Parliament. This occurred on 16 May 1990. Now the 80 contracting parties have a maximum period of 12 months within which to notify the competent EEC and ACP authorities that the Convention has been ratified according to the constitutional procedures operating in each State. The Convention comes into force on the first day of the second month after all of the EEC member states and two-thirds or more of the ACP States have deposited their ratification instruments.

99. Caribbean nations protected under the Lomé IV treaty are Antigua & Barbuda, The Bahamas, Barbados, Belize, Dominica, Dominican Republic, Grenada, Guyana, Haiti, Jamaica, St. Kitts & Nevis, St. Lucia, St. Vincent & the Grenadines, Suriname and Trinidad & Tobago.

OTHER RELEVANT FORA, DECISIONS AND POLICIES

Action Plan for the Environment in Latin America and the Caribbean

100. At the Seventh Meeting of Latin American and Caribbean Environmental Ministers (Port-of-Spain 22-23 October 1990), the Ministers adopted the Action Plan for the Environment. In chapter V "The Strategic Component of the Plan" all the parties agreed to:

"protect the region by prohibiting, under any circumstances, the entry from outside the region of all types of hazardous, toxic and radioactive wastes and implement monitoring and control mechanisms for the safe transport, treatment and disposal of wastes generated from within the region...."

101. In this meeting participated ministers and/or delegates from the following Wider Caribbean countries: Antigua and Barbuda, Bahamas, Barbados, Belize, Cuba, Dominica, Grenada, Guatemala, Guyana, Haiti, Jamaica, Mexico, Nicaragua, Panama, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago and Venezuela.

Caribbean Community (CARICOM)

102. At the Caribbean Community summit held in Grenada in late July 1989, leaders of 13 Caribbean States endorsed the Port-of-Spain Accord, an important regional document regarding conservation of the Caribbean environment. The accord condemns the dumping of hazardous and toxic wastes in the region from areas outside the region.

UN General Assembly

103. On 20 December 1988, the U.N. General Assembly adopted resolution 43/212, which among other things, urged all States, bearing in mind their respective responsibilities, to take the necessary legal and technical measures to halt and prevent the illegal international traffic in, and the dumping and resulting accumulation of, toxic and dangerous products and wastes; urged all States generating toxic and dangerous wastes to make every effort to treat and dispose of them in the country of origin to the maximum extent possible consistent with environmentally sound disposal."

U.N. Economic Commission for Latin America and the Caribbean-Caribbean Development and Co-operation Committee

104. The 11th session of the Caribbean Development and Cooperation Committee was held in the U.S. Virgin Islands on 18-22 November. The report of the meeting included a statement on international waste trade calling on the governments of developed countries to refrain from exporting wastes and to co-operate with affected countries to eliminate damages from foreign wastes.

Commonwealth Nations

105. In the October 1989 summit meeting in Langkawi, Malaysia, between heads of state of the then 48 and now 50 Commonwealth nations, a strong environmental declaration known as the Langkawi Declaration on the Environment was adopted. This declaration included a commitment to "strengthen international action to ensure the safe management and disposal of hazardous wastes and to reduce transboundary movements, particularly to prevent dumping in developing countries."

London Dumping Convention

106. At the Thirteenth Consultative Meeting of Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters, (London, 29 October -2 November 1990) contracting parties agreed on a resolution "to prohibit or not to permit the export of wastes for dumping at sea, particularly those containing substances referred to in Annexes I and II of the London Dumping Convention to States not Party to the Convention."

107. Regional parties to the London Dumping Convention include: Costa Rica, Cuba, Dominican Republic, Guatemala, Haiti, Honduras, Mexico, Panama, Saint Lucia, Suriname, and the U.S.A.

The Non-aligned Movement

108. The 9th Non-Aligned Movement summit meeting in September 1989 produced a statement on the environment which, inter alia, "called for the adoption of effective international measures, including conventions and other relevant legal instruments, to prohibit the dumping of toxic and other hazardous wastes in the territories of other countries. They also proposed that the developed countries should, in the meantime, adopt rigorous administrative measures and legislation to ban the export of toxic and other hazardous wastes to the territories of other, especially developing countries."

World Bank

109. World Bank President, Barber Conable on 16th February 1990 stated that "Industrial states have the capacity to dispose of these poisons. They must not be permitted simply to dump them on developing nations that lack even the means to handle their own pollution."

European Community

European Environment Council

110. As noted above the European Environment Council agreed on a policy on 7 June 1990 calling for member states "to take appropriate measures...to enable the Community as a whole to become self- sufficient in waste disposal and the Member States to move towards that aim individually..."

European Parliament

111. The European Parliament voted on May 26, 1989 for a total ban on hazardous waste exports to all developing countries.

Positions of EC Nations

112. During the Environment Council's Permanent Representatives Meeting of 31 May 1990 the delegations of Denmark, Federal Republic of Germany, France, Netherlands, and the U.K. are on record as feeling that in principle there must be national self-sufficiency in waste disposal as well as Community-wide self sufficiency.

FRANCE:

113. France has announced its intention to ban all waste trade nationally. The French Minister of Environment, Brice Lalonde, stated in September 1989 that he expected that an EC accord "will soon be reached requiring each nation to treat its own wastes."

FEDERAL REPUBLIC OF GERMANY:

114. In a German government press release of October 1989, Minister of Environment Topfer announced pending legislation "banning all (waste) exports to developing countries."

UNITED KINGDOM:

115. Chris Patten, the Secretary of the Environment urged all European partner governments to adopt a policy of insisting that richer nations dispose of all their own hazardous waste and to stop sending it abroad for treatment.

ITALY:

116. Europe's most prohibitive waste export law went into effect in Italy in June 1989. This export ban prohibits municipal, special, toxic, and hazardous wastes from being exported from Italy to any non-OECD country.

OTHER:

117. In addition, in a resolution attached to the Basel Convention, Belgium, Denmark, Federal Republic of Germany, France, Greece, Italy, the Netherlands, Portugal, United Kingdom as well as the Commission of the European Communities all committed themselves to "call upon the countries who will sign the Convention to join in making every effort to phase-out exports and imports of wastes for reasons other than for disposal in facilities established within a framework of regional cooperation."

THE AFRICAN EXAMPLE

118. Politically, Africa has been the first to respond to the threat of waste colonialism. In unprecedented numbers, African nations sent delegates to the pre-negotiations of the Basel Convention, only to have their concerns largely ignored by a small but powerful group of industrialized nations.

119. Following the outcome of the Basel Convention, which the African States regarded as a failure, the African States agreed to refrain from signing pending a joint position and response on that Convention and the continuing threat of waste trade. This responsibility was taken up under the auspices of the Organization of African Unity (OAU) which currently includes all African States with the exception of Morocco and South Africa. They are currently in the final stages of drafting an African Convention which among other things would ban all waste imports into the African continent.

The Organisation of African Unity (OAU)

120. The Resolution on the Dumping of Nuclear and Industrial Wastes in Africa declares, inter alia, that "the dumping of nuclear and industrial wastes in Africa is a crime against Africa and the African people."

121. The Resolution on the Global Convention for the Control of Transboundary Movement of Hazardous Wastes, expressed concern that the Basel Convention is "merely aimed at the regulation or control, rather than the prohibition of transboundary movement of hazardous wastes."

122. The Resolution on the Control of Transboundary Movements of Hazardous Wastes and their Disposal in Africa, "commended Member States which have promulgated laws prohibiting all forms of illegal transboundary movements of hazardous wastes into their countries and calls upon those who have not already done so to enact similar laws."

123. This resolution refers to the fact that following the Conference of Plenipotentiaries for Basel Convention, the African Group at the Conference in their disappointment over the outcome of the final Basel text, made a decision not to sign the Convention. The resolution "mandates the Secretary General of the OAU to undertake consultations with the view to adopting a common position on the Basel Convention" and "decides to set up a Working Group composed of legal and environmental experts to draw up a Draft African Convention on the Control of the Transboundary Movement of all forms of Hazardous Wastes in the Continent."

The Bamako Convention

124. This convention, entitled "The Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa" was adopted on 29 January 1991 in Bamako, Mali. Among other things, the Convention strictly bans the importation of all forms of hazardous and nuclear wastes into the African continent. This prohibition includes a ban on the import of products that have been banned for use in the country of manufacture.