Legal analysis calls into question the validity of Basel Article 11 agreements

The Center for International Environmental Law (CIEL), Washington, has released a legal opinion analyzing the legal obligations for Organisation for Economic Co-operation and Development (OECD) members trading in plastic scrap. The opinion was prepared by CIEL attorney David Azoulay and CIEL law fellow Nathaniel Eisen.

The analysis notes that the OECD was unable to reach a consensus on the incorporation of most of the Basel Plastic Amendments into the OECD Decision on the Control of Transboundary Movements of Wastes Destined for Recovery Operations (the OECD Wastes Trade Decision). The OECD Wastes Trade Decision is a multilateral agreement governing the trade of certain hazardous and other wastes for recovery purposes among OECD members. Because the agreement covers trade in hazardous waste between parties to the Basel Convention and nonparties, it must contain provisions governing the environmentally sound management of waste equal to or stronger than those in the Basel Convention for OECD members to continue to engage in trade without breaching their obligations, the CIEL says.

According to the analysis, the OECD’s failure to reach consensus removes the plastic wastes deemed “other wastes” under the Basel Convention from the OECD Wastes Trade Decision’s scope. OECD members that are Basel parties and have not objected to the Basel Plastic Amendments, therefore, must apply the relevant Basel control and ban mechanisms to trade in those wastes with Basel parties and nonparties, the CIEL says.

This legal opinion also analyzes two agreements or arrangements among OECD members since the adoption of the Plastic Amendments, those between the U.S. and Canada and among the member states of the European Union. The agreements are intended to allow plastic scrap shipments to continue between the parties under the understanding that Article 11 of the Basel Convention permits agreements between specific countries to allow exceptions to the Basel controls.

According to the analysis, “Those agreements must ‘not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention’ and ‘shall stipulate provisions which are not less environmentally sound than those provided for by this Convention in particular taking into account the interests of developing countries.’”

The analysis states that to be considered valid, Article 11 agreements “must guarantee an equivalent level of protection and control to that of the Basel Convention for such wastes. … While Article 11 agreements may have some flexibility in how they achieve the goal of ensuring the sound management of covered waste equivalently, and they can require more rigorous controls and protection, they cannot completely exempt a party from any one of its core obligations under the Basel Convention, for example by redefining the categories of covered waste identified in the Basel annexes, or by allowing free trade of any such waste.”

The analysis concludes that these agreements between the U.S. and Canada and among the European Union countries do not ensure equivalent levels of control to Basel and are therefore are invalid as Article 11 agreements. Parties to these agreements must instead apply Basel control procedures or risk breaching their binding legal obligations, according to the CIEL analysis.

Regarding the arrangement between the U.S. and Canada, “First, the arrangement states that it is not legally binding, which is a key feature in providing equivalent control … . Second, its control procedures entirely fail to guarantee environmentally sound management,” according to CIEL. The analysis notes the agreement does not include a system for notification and prior informed consent nor tracking or reporting requirements (for either private parties or the two governments).

Canada and the U.S. had a pre-existing bilateral Article 11 agreement covering trade in some hazardous and other waste “that the new arrangement purports to supplement through application to wastes not covered by the original,”  according to the analysis, which notes that original agreement “is also insufficient as an Article 11 agreement: It requires the exporter to provide less information that is important for ensuring safe disposal than Basel does; contains provisions to keep some of this information confidential, which Basel does not; and does not contain a requirement to minimize the generation of hazardous wastes or to treat it domestically wherever possible.” However, the analysis explains that the agreement does “at least contain the basic principle of ‘prior informed consent.’ Therefore, it is illuminating that the two governments did not make an effort to amend that agreement to add the new plastics listing of Y48 but instead chose to create a new arrangement without this basic principle.”

The agreement among the EU countries uses the sections of the EU Waste Shipment Regulation (WSR) governing trade among member states as its Article 11 agreement. According to the analysis, “While the WSR creates, like Basel and the OECD Decision, a system of notification and consent for shipments among covered wastes among EU members (as well as separate provisions on trade with countries outside the EU/EEA), the amended WSR departs from the Basel Plastic Amendments in two key ways: First, it allows for the free trade of the same categories of uncontaminated plastic waste as the new Basel B3011 listing but does so where the waste is destined for any of a number of “recovery” operations rather than the more stringent Basel stipulation that such uncontaminated waste is destined for “[r]ecycling/reclamation of organic substances which are not used as solvents. …

“Second, the WSR provisions also allow for the free trade of some categories of plastic wastes that are  subject to PIC requirements under the Basel Convention, including polyvinyl chloride (PVC) and Polytetrafluoroethylene (PTFE), as well as a greater number of mixtures of plastic wastes (again, where destined for any of a broad list of recovery operations).”

For these reasons, the analysis concludes that the Article 11 agreement among the EU member states “has no validity if it fails to ensure equivalently environmentally sound management and control of all wastes covered under the Basel Convention within its scope. Through the above deficiencies, the EU WSR clearly does not meet this bar, and the updated WSR should therefore not be considered a valid Article 11 agreement.”

Comments or questions on the legal opinion can be sent to dazoulay@ciel.org and to neisen@ciel.org.

The full analysis is available here.