THE TRANSBOUNDARY MOVEMENT OF HAZARDOUS WASTE: A CONTRIBUTION TO IMPROVE THE PRESENT TECHNICAL-JUDICIAL MODEL

Abstract

The expression "the transboundary movement of hazardous waste" refers, from the technical point of view, to a series of phases that begin with the creation of a hazardous waste and includes its identification according to international, regional and national standards, its delivery to specialized companies and its movement from the exporting country to the importing country; these phases end with the final destination of the waste (disposal or recovery). From the judicial point of view, this same expression means a set of international regulations, at the UN level, a judicial model constituted by various Multilateral Environmental Agreements-MEAs and in particular the Basel, Rotterdam and Stockholm Conventions. In spite of this model, an international market, dominated in certain strategic points by a chain of organized crime, has become established over the last 30 years, with consequent adverse effects on human health and the environment as well as on trade and competition. The illegal movement and transport of hazardous goods and waste undermine international policies and enforcement efforts and put law-abiding businesses at an economic disadvantage. It is here taken into account that there are in fact two judicial models that have to be referred to. Apart from the previously mentioned one, it is necessary to take into consideration the international judicial hazardous goods and waste transport model. The former model is examined (1) from a general point of view and during the various phases; (2) as far as the controls that the international regulations foresee along the chain are concerned; (3) with a case study concerning the PCB category, a category which is very vast and whose contents are sometimes considered as hazardous goods and sometimes as wastes. Because of the great complexity of the problems and in order to have a clear picture, a specific second study, which is closely connected to the first, has been conducted on the technical-judicial aspects of transport. The aim of both studies was to offer useful instruments to decision makers to help them make efficacious interventions. The different interpretations of the basic concept of waste at an international, regional and national level, together with the lack of clearly defined borders between the concept of waste and that of goods, are weak points of the regulations. The unresolved problem in the initial part of the model affects all the phases of the transboundary movement of waste. In particular, the important phase of controls, which in itself is already difficult and costly, is unable to reach its objectives. Decision makers should first of all intervene by establishing a univocal definition of waste and goods. However, the technical-judicial problem can only be resolved by legal practitioners and technical experts in the sector who are known to be super partes at an international level. In particular, it is necessary to monitor the increasingly rapid technological evolution in order to be able to identify what is waste, or has become so and what are (or continues to be) goods, considering the various degrees of development throughout the planet. Only once these aspects have been clarified will a more efficacious control of all the elements that make up the chain be possible.