Transfrontier Shipments of Waste: A Bureaucrat's Dream?

Abstract

In the April 1999 edition of European Environmental Law Review, AME Veldkamp analysed the implementation of Regulation (EEC) No 259/93 on the Supervision and Control of Shipments of Waste within, into and out of the European Community (the "European Shipments Regulation") and the difficulties faced by Member States in seeking to develop "transnational enforcement cooperation". Anyone involved with the movement of waste within, through, into or from Western Europe and in particular the European Community ("EC"), is faced with a myriad of legislation at international, European (and in some cases regional) and national levels. Not only is the volume of legislation daunting, but there appears to be no one coherent system of regulation. Recent attempts to simplify the procedure have, at least in the short term, only succeeded in making matters more complex. The new Annex V to the European Shipments Regulation, introduced by Regulation 2408/98, governs the ban on exports of waste to non-OECD countries, and uses three systems for classifying waste: the Basel Convention, the OECD Control System and the hazardous waste list under the Hazardous Waste Directive (Council Directive 91/689/EEC). Annex V exposes the weaknesses in a system riddled with cross reference and contradiction. "Waste" for the purposes of Annex V, will be banned if "it displays any of the properties listed in Annex III to Directive 91/689/EEC taking into account as regards H3 to H8 of the said Annex, the limit values laid down in Decision 94/904/EC as provided for in Article 1(4) second indent of Directive 91/689/EEC and in the header of Annex II to Regulation (EEC) No 259/93". Although the Basel ban has been implemented by European legislation it has not yet been brought into force at an international level. A controversial proposal for developing countries and exporters from the OECD, the ban exposes the weaknesses of the waste shipment system, and the lack of redress for a party aggrieved by a decision based on diverse definitions of "waste", "hazardous waste", "recovery" or "disposal", or on the absence of a definition. In this article, the evolution of the European and international systems for shipments of waste are discussed, uncovering a legislative maze.