Still Up to the Challenge? International Trade Issues Facing the Basel Convention as it Enters its Third Decade

Abstract

The Basel Convention is inarguably a noble effort to combat the grave threat to human and environmental health posed by hazardous wastes, but it has failed in at least one of its fundamental objectives: to minimize the movement of hazardous waste across international borders. Is the framework of the Convention sufficient to achieve its goals as well tackle emerging issues in international trade?The first half of the paper provides generous background information about the Basel Convention including: - its origins and purpose - a case study of the infamous Khian Sea incident - the organization and scope of the treaty - how the treaty employs trade measures to minimize trade in hazardous waste - how the Convention approaches compliance and dispute resolution - the future implementation of the Convention via the New Strategic Framework to be addressed at COP10 - proposed provisions including the Basel Ban Amendment and the Protocol on Liability and Compensation.The second half of the paper discusses the Basel Convention's strengths and analyzes its shortcomings. It also suggests improvements for the Convention to succeed in its original and assumed objectives. Topics addressed include: - the incorporation the Precautionary Principle into the treaty - inconsistent standards in Annex IX - the circumvention of the convention by traders of e-waste and ship breaking - hazardous wastes outside of the Convention such as ship wastes and radioactive waste - the failure of the treaty's trade measures to achieve its objectives - the potential conflict of the treaty's trade measures with the WTO Agreements - inadequacies of the Basel Compliance Mechanism - the lack of a dispute settlement system.After 20 years, the purpose of the Basel Convention remains as relevant as ever, but its framework, while not ill-conceived, has proven insufficient. Unfortunately, the New Strategic Framework fails to adequately address most of Convention’s most significant weaknesses. Ratification of the Ban Amendment and Liability Protocol in addition to significant tweaks, particularly in the arena of compliance, will likely afford the Basel Convention an opportunity to position itself to face the emerging issues of international trade and achieve a reduction in the transboundary movement of hazardous waste over its third decade.