MGM College of Law

Topic: - Basel Convention.

Submitted By: -

Name: - Tia Gupta

Class: - F.Y. LLB “A”

Roll No.: - 3421

Date: - 17/10/2022

Signature: -

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Sr. No Table of Contents Page No.
1. Meaning of Environmental Law 3
2. Indian Environmental Law 4-5
3. Levels of Environmental Law 5-6
4. What is Environmental legislation 6
5. Resource Sustainability 6-7
6. History of Environmental Law 7-8
7. Types of Environmental Law 8-11
8. Constitution on Environmental Law 11-14
9. Meaning of Basel Convention 14-15
10. History of Basel Convention 15-16
11. Definition of Hazardous waste 16-17
12. Basel convention on the control of Transboundary 17-18
movement of hazardous waste
13. Obligations 18-19
14. Basel Ban Amendment 19-20
15. Regulation of Plastic Waste 20-21
16. Main Provisions of Basel Convention 21
17. Aims of Basel Convention 22
18. Members of Basel Convention 23-25
19. Webliography 26
20. Bibliography 27

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Meaning of Environmental Law: -
Environmental law is a collective term encompassing aspects of the law that provide protection
to the environment1. A related but distinct set of regulatory regimes, now strongly influenced
by environmental legal principles, focus on the management of specific natural resources, such
as forests, minerals, or fisheries. Other areas, such as environmental impact assessment, may
not fit neatly into either category, but are nonetheless important components of environmental
law.

Early examples of legal enactments designed to consciously preserve the environment, for its
own sake or human enjoyment, are found throughout history. In the common law, the primary
protection was found in the law of nuisance, but this only allowed for private actions for
damages or injunctions if there was harm to land. Thus, smells emanating from pigsties2, strict
liability against dumping rubbish 3 , or damage from exploding dams. Private enforcement,
however, was limited and found to be woefully inadequate to deal with major environmental
threats, particularly threats to common resources. During the "Great Stink" of 1858, the
dumping of sewerage into the river Thames began to smell so ghastly in the summer heat that
Parliament had to be evacuated. Ironically, the Metropolitan Commission of Sewers Act 1848
had allowed the Metropolitan Commission for Sewers to close cesspits around the city in an
attempt to "clean up" but this simply led people to pollute the river. In 19 days, Parliament
passed a further Act to build the London sewerage system. London also suffered from terrible
air pollution, and this culminated in the "Great Smog" of 1952, which in turn triggered its own
legislative response: the Clean Air Act 1956. The basic regulatory structure was to set limits
on emissions for households and businesses (particularly burning of coal) while an inspectorate
would enforce compliance.

1
Phillipe Sands (2003) Principles of International Environmental Law. 2nd Edition. p. xxi Available at [1]
2
Aldred's Case (1610) 9 Co Rep 57b; (1610) 77 ER 816
3
R v Stephens (1866) LR 1 QB 702

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Environmental law, principles, policies, directives, and regulations enacted and enforced by
local, national, or international entities to regulate human treatment of the nonhuman world.
Indian Environmental Law: -

The need for protection and conservation of environment and sustainable use of natural
resources is reflected in the constitutional framework of India and also in the international
commitments of India. The Constitution under Part IVA (Art 51A-Fundamental Duties) casts
a duty on every citizen of India to protect and improve the natural environment including
forests, lakes, rivers and wildlife, and to have compassion for living creatures. Further, the
Constitution of India under Part IV (Art 48A-Directive Principles of State Policies) stipulates
that the State shall endeavour to protect and improve the environment and to safeguard the
forests and wildlife of the country.

Several environment protection legislations existed even before Independence of India.

However, the true thrust for putting in force a well-developed framework came only after the
UN Conference on the Human Environment (Stockholm, 1972). After the Stockholm
Conference, the National Council for Environmental Policy and Planning was set up in 1972
within the Department of Science and Technology to establish a regulatory body to look after
the environment-related issues. This Council later evolved into a full-fledged Ministry of
Environment and Forests (MoEF).

MoEF was established in 1985, which today is the apex administrative body in the country for
regulating and ensuring environmental protection and lays down the legal and regulatory
framework for the same. Since the 1970s, a number of environment legislations have been put
in place. The MoEF and the pollution control boards ("CPCB", i.e., Central Pollution Control
Board and "SPCBs", i.e., State Pollution Control Boards) together form the regulatory and
administrative core of the sector.

Some of the important legislations for environment protection are as follows:

• The National Green Tribunal Act, 2010

• The Air (Prevention and Control of Pollution) Act, 1981
• The Water (Prevention and Control of Pollution) Act, 1974
• The Environment Protection Act, 1986
• The Hazardous Waste Management Regulations, etc.

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The vast field covers a broad range of topics in diverse legal settings, such as state bottle return
laws in the United States, regulatory standards for emissions from coal-fired power plants in
Germany, initiatives in China to create a “Green Great Wall”—a shelter belt of trees—to
protect Beijing from sandstorms, and international treaties for the protection of biological
diversity and the ozonosphere.

Levels of Environmental Law: -

Environmental law exists at many levels and is only partly constituted by international
declarations, conventions, and treaties. The bulk of environmental law is statutory—
i.e., encompassed in the enactments of legislative bodies—and regulatory—i.e., generated by
agencies charged by governments with protection of the environment.

In addition, many countries have included some right to environmental quality in their national
constitutions. Since 1994, for example, environmental protection has been enshrined in the
German Grundgesetz (“Basic Law”), which now states that the government must protect for
“future generations the natural foundations of life.” Similarly, the Chinese constitution declares
that the state “ensures the rational use of natural resources and protects rare animals and plants”;
the South African constitution recognizes a right to “an environment that is not harmful to
health or well-being; and to have the environment
protected, for the benefit of present and future generations”; the
Bulgarian constitution provides for a “right to a healthy and favourable environment, consistent
with stipulated standards and regulations”; and the Chilean constitution contains a “right to live
in an environment free from contamination.”

Much environmental law also is embodied in the decisions of international, national, and local
courts. Some of it is manifested in arbitrated decisions, such as the Trail Smelter arbitration
(1941), which enjoined the operation of a smelter located in British Columbia,
Canada, near the international border with the U.S. state of Washington and held that “no
State has the right to use or permit the use of its territory in such a manner as to cause injury by
fumes in or to the territory of another or the properties or persons therein.” Some environmental
law also appears in the decisions of national courts. For example, in Scenic Hudson
Preservation Conference v. Federal Power Commission (1965), a U.S. federal appeals court
voided a license granted by the Federal Power Commission for the construction of an
environmentally damaging pumped-storage hydroelectric plant (i.e., a plant that would pump

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water from a lower to an upper reservoir) in an area of stunning natural beauty, demonstrating
that the decisions of federal agencies could be successfully challenged in the courts. Significant
local decisions included National Audubon Society v. Superior
Court (1976), in which the California Supreme
Court dramatically limited the ability of the Los Angeles to divert water that might otherwise
fill Mono Lake in California’s eastern desert.

What is environmental Legislation: -

Environmental legislation is a collection of laws and regulations related to water quality, air
quality, endangered wildlife, and several other environmental factors. Environmental
legislation covers many laws and regulations, but they all work towards a common goal of
regulating human-nature interactions to reduce threats to the environment and improve public
health. As we can imagine, environmental legislation is broad, mainly because the natural
environment encompasses several aspects. All this means that environmental law must take
into account everything from the air we breathe, to the natural resources we depend on, to the
flora and fauna that share this world with us.

After so much interconnection with each other, it becomes important for us to understand
environmental legislation because we all share the same resources.

Resource Sustainability: -

Important assessment: - Environmental impact assessment (EIA) is the assessment of the

environmental consequences of a plan, policy, program, or actual projects prior to the decision
to move forward with the proposed action. In this context, the term "environmental impact
assessment" (EIA) is usually used when applied to actual projects by individuals or companies
and the term "strategic environmental assessment" (SEA) applies to policies, plans and
programmes most often proposed by organs of state.4 It is a tool of environmental management
forming a part of project approval and decision-making.5 Environmental assessments may be

4
MacKinnon, A. J., Duinker, P. N., Walker, T. R. (2018). The Application of Science in Environmental Impact
Assessment. Routledge.
5
Caves, R. W. (2004). Encyclopaedia of the City. Routledge. p. 227.

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governed by rules of administrative procedure regarding public participation and
documentation of decision making, and may be subject to judicial review.

History of Environmental Law: -

Throughout history national governments have passed occasional laws to protect human health
from environmental contamination. About AD 80 the Senate of Rome passed legislation to
protect the city’s supply of clean water for drinking and bathing. In the 14th century England
prohibited both the burning of coal in London and the disposal of waste into waterways. In
1681 the Quaker leader of the English colony of Pennsylvania, William Penn, ordered that one
acre of forest be preserved for every five acres cleared for settlement, and in the following
century Benjamin Franklin led various campaigns to curtail the dumping of waste. In the 19th
century, in the midst of the Industrial Revolution, the British government passed regulations to
reduce the deleterious effects of coal burning and chemical manufacture on public health and
the environment.

Prior to the 20th century there were few international environmental agreements. The accords
that were reached focused primarily on boundary waters, navigation, and fishing rights along
shared waterways and ignored pollution and other ecological issues. In the early 20th century,
conventions to protect commercially valuable species were reached, including the

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Convention for the Protection of Birds Useful to Agriculture (1902), signed by 12 European
governments; the Convention for the Preservation and Protection of Fur Seals (1911),
concluded by the United States, Japan, Russia, and the United Kingdom; and the Convention
for the Protection of Migratory Birds (1916), adopted by the United States and the United
Kingdom (on behalf of Canada) and later extended to Mexico in 1936. In the 1930s Belgium,
Egypt, Italy, Portugal, South Africa, Sudan, and the United Kingdom adopted the Convention
Relative to the Preservation of Fauna and Flora in their Natural State, which committed those
countries to preserve natural fauna and flora in Africa by means of national parks and reserves.
Spain and France signed the convention but never ratified it, and Tanzania formally adopted it
in 1962. India, which acceded to the agreement in 1939, was subject to the sections of the
document prohibiting “trophies” made from any animal mentioned in the annex.

Types of Environmental Law: -

1. Command-and-Control Legislation: - Most environmental law falls into a general

category of laws known as “command and control.” Such laws typically involve three
elements: (1) identification of a type of environmentally harmful activity, (2) imposition
of specific conditions or standards on that activity, and (3) prohibition of forms of the
activity that fail to comply with the imposed conditions or standards. The United States
Federal Water Pollution Control Act (1972), for example, regulates
“discharges” of “pollutants” into “navigable waters of the United States.” All three
terms are defined in the statute and agency regulations and together identify the type
of environmentally harmful activity subject to regulation. In 1983 Germany passed a
national emission-control law that set specific air emission thresholds by power plant
age and type. Almost all environmental laws prohibit regulated activities that do not
comply with stated conditions or standards. Many make a “knowing” (intentional)
violation of such standards a crime. The most obvious forms of regulated activity
involve actual discharges of pollutants into the environment (e.g., air, water, and
groundwater pollution). However, environmental laws also regulate activities that
entail a significant risk of discharging harmful pollutants (e.g., the transportation of
hazardous waste, the sale of pesticides, and logging). For actual discharges,
environmental laws generally prescribe specific thresholds of allowable pollution; for
activities that create a risk of discharge, environmental laws generally establish
management practices to reduce that risk.

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2. Environmental assessment mandates: - Environmental assessment mandates are
another significant form of environmental law. Such mandates generally perform three
functions: - (1) Identification of a level or threshold of potential environmental impact
at which a contemplated action is significant enough to require the preparation of an
assessment, (2) establishment of specific goals for the assessment mandated, and (3)
setting of requirements to ensure that the assessment will be considered in determining
whether to proceed with the action as originally contemplated or to pursue an alternative
action. Unlike command-and-control regulations, which may directly limit discharges
into the environment, mandated environmental assessments protect the environment
indirectly by increasing the quantity and quality of publicity available information on
the environment consequences of contemplated actions. This information potentially
improves the decision making of government officials and increases the public’s
involvement in the creation of environmental policy. The United States National
Environmental Policy Act (1969) requires the preparation of an environmental impact
statement for any “major federal action significantly affecting the quality of the human
environment.” The statement must analyse the environmental impact of the proposed
action and consider a range of alternatives, including a so-called “no-action alternative.”
The statute and regulations imposed by the Council on Environmental Quality, which
was established under the 1969 act to coordinate federal environmental initiatives,
require federal agencies to wait until environmental impact statements have been
completed before taking actions that would preclude alternatives. Similarly, the
European Union (EU) requires an environmental impact assessment for two types of
projects. So-called “annex-I
Projects” (e.g., oil refineries, toxic waste landfills, and thermal power stations with heat
output of 300 or more megawatts) are generally subject to the requirement, and
“Annex-II Projects” (e.g., activities in chemical, food, textile, leather, wood, and paper
industries) are subject to an environmental impact assessment only where “member
states consider that their characteristics so require.” Such assessments must describe
and evaluate the direct and indirect effects of the project on humans, fauna, flora, soil,
water, air, climate, and landscape and the interaction between them.
3. Economic incentives: - The use of economic instruments to create incentives for
environmental protection is a popular form of environmental law. Such incentives
include pollution taxes, subsidies for clean technological and practices, and the creation

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 of markets in either environmental protection or pollution. Denmark, The Netherlands,
and Sweden, for example, impose taxes on carbon dioxide emissions, and the EU has
debated whether to implement such tax at the supranational level to combat climate
change. In the United States, water pollution legislation passed in 1972 provided
subsidies to local governments to upgrade publicly owned sewage treatment plants. In
1980 the U.S. government, prompted in part by the national concern inspired by
industrial pollution in the Love Canal neighbourhood in Niagara Falls, New York,
created a federal “superfund” that used general revenues and revenue from taxes on
petrochemical feedstock, crude oil, and general corporate income to finance the clean-
up of more than 1,000 sites polluted by hazardous substances.
By the 1990s, “tradable allowances schemes”, which permit companies to buy and sell
“pollution credits” or legal rights to produce specified amounts of pollution, had been
implemented in the United States. The most comprehensive and complex such program
created as part of the 1990 Clean Air Act, was designed to reduce overall sulphur
dioxide emissions by fossil-fuel fired power plants. According to proponents, the
program would provide financial rewards to cleaner plants, which could sell their
unneeded credits on the market, and allow dirtier plants to stay in business while they
converted to cleaner technologies.
4. Set-aside schemes: - A final method of environmental protection is the setting aside of
lands and waters in their natural state. In the United States, for example, the vast
majority of the land owned by the federal government (about one-third of the total land
area of the country) can be developed only with the approval of a federal agency. Europe
has an extensive network of national parks and preserves on both public and private
land, and there are extensive national parks in southern and eastern Africa in which
wildlife is protected. Arguably, the large body of law that regulates use of public lands
and publicly held resources is “environmental law.” Some, however, maintain that it is
not.
Many areas of law can be characterized as both “set aside” and regulatory. For example,
international efforts to preserve wetlands have focused on setting aside areas of
ecological value, including wetlands, and on regulating their use. The Ramsar
Convention provide that wetlands are a significant “economic, cultural, scientific and
recreational” resource, and a section of the Clean Water Act, the primary U.S. law for
the protection of wetlands, contains a prohibition against unpermitted discharges of

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 “Dredge and fill material” into any “waters of the United States.”

Constitution on Environmental Law: -

The constitution of India is not an inert but a living document which evolves and grows with
time. The specific provisions on environment protection in the constitution are also result of
this evolving nature and growth potential of the fundamental law of the land. The preamble to
our constitution ensures socialist pattern of the society and dignity of the individual. Decent
standard of living and pollution free environment is inherent in this. The Environment
(Protection) Act, 1986 defines environment as “environment includes water, air and land and
the interrelationship which exists among and between airs, water and land and human beings,
other living creatures, plants, micro-organism and property”.

The chapter on fundamental duties of the Indian Constitution clearly imposes duty on every
citizen to protect environment. Article 51-A (g) says that “It shall be duty of every citizen to
protect and improve the natural environment including forests, lakes, rivers and wildlife and to
have compassion for living creatures.
He Directive principles under the Indian constitution directed towards ideals of building
welfare state. Healthy environment is also one of the elements of welfare state. Article 47
provides that the State shall regard the raising of the level of nutrition and the standard of living
of its people and the improvement of public health as among its primary duties. The
improvement of public health also includes the protection and improvement of environment
without which public health cannot be assured. Article 48 deals with organization of agriculture
and animal husbandry. It directs the State to take steps to organize agriculture and animal
husbandry on modern and scientific lines. In particular, it should take steps for preserving and
improving the breeds and prohibiting the slaughter of cows and calves and other milch and
draught cattle. Article 48 -A of the constitution says that “the state shall endeavour to protect
and improve the environment and to safeguard the forests and wild life of the country”.

The Constitution of India under part III guarantees fundamental rights which are
essential for the development of every individual and to which a person is inherently entitled
by virtue of being human alone. Right to environment is also a right without which development
of individual and realisation of his or her full potential shall not be possible.

Articles 21, 14 and 19 of this part have been used for environmental protection.

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 According to Article 21 of the constitution, “no person shall be deprived of his life or
personal liberty except according to procedure established by law”. Article 21 has received
liberal interpretation from time to time after the decision of the Supreme Court in Maneka
Gandhi vs. Union of India, 6 . Article 21 guarantees fundamental right to life. Right to
environment, free of danger of disease and infection is inherent in it. Right to healthy
environment is important attribute of right to live with human dignity. The right to live in a
healthy environment as part of Article 21 of the Constitution was first recognized in the case
of Rural Litigation and Entitlement Kendra vs. State, 7 (Popularly known as Dehradun
Quarrying Case). It is the first case of this kind in India, involving issues relating to
environment and ecological balance in which Supreme Court directed to stop the excavation
(illegal mining) under the Environment (Protection) Act, 1986. In M.C. Mehta vs. Union of
India, the Supreme Court treated the right to live in pollution free environment as a part of
fundamental right to life under Article 21 of the Constitution.

Excessive noise creates pollution in the society. The constitution of India under Article
19 (1) (a) read with Article 21 of the constitution guarantees right to decent environment and
right to live peacefully. In PA Jacob vs. The Superintendent of Police Kottayam8 the Kerala

6
AIR 1978 SC 597
7
AIR 1988 SC 2187
8
, AIR 1993 Ker 1,

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High Court held that freedom of speech under article 19 (1)(a) does not include freedom to use
loud speakers or sound amplifiers. Thus, noise pollution caused by the loud speakers can be
controlled under article 19 (1) (a) of the constitution.

Article 19 (1) (g) of the Indian constitution confers fundamental right on every citizen to
practice any profession or to carry on any occupation, trade or business. This is subject to
reasonable restrictions. A citizen cannot carry on business activity, if it is health hazards to the
society or general public. Thus, safeguards for environment protection are inherent in this. The
Supreme Court, while deciding the matter relating to carrying on trade of liquor in Coo Verjee
B. Bharucha vs. Excise commissioner, Ajmer 9 observed that, if there is clash between
environmental protection and right to freedom of trade and occupation, the courts have to
balance environmental interests with the fundamental rights to carry on any occupations.

Public Interest Litigation under Article 32 and 226 of the constitution of India resulted
in a wave of environmental litigation. The leading environmental cases decided by the Supreme
Court includes case of closure of limestone quarries in the Dehradun region (Dehradun
Quarrying case, AIR 1985 SC 652), the installation of safeguard at a chlorine plant in Delhi
(M.C. Mehta V. Union of India, AIR 1988 SC 1037) etc. In Vellore Citizens Welfare Forum
vs. Union of India (1996) 5 SCC 647, the Court observed that “the
Precautionary Principle” and “the Polluter Pays Principle” are essential features of
“Sustainable Development.”

At local and village level also, Panchayats have been empowered under the constitution
to take measures such as soil conservation, water management, forestry and protection of the
environment and promotion of ecological aspect.

Environment protection is part of our cultural values and traditions. In Atharvaveda, it

has been said that “Man’s paradise is on earth; this living world is the beloved place of all; It
has the blessings of nature’s bounties; live in a lovely spirit”. Earth is our paradise and it is our
duty to protect our paradise. The constitution of India embodies the framework of protection
and preservation of nature without which life cannot be enjoyed. The knowledge of

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(1954, SC 220

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constitutional provisions regarding environment protection is need of the day to bring greater
public participation, environmental awareness, and environmental education and sensitize the
people to preserve ecology and environment.

Meaning of Basel Convention: -

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and
Their Disposal, usually known as the Basel Convention, is an international treaty that was
designed to reduce the movements of hazardous waste between nations, and specifically to
prevent transfer of hazardous waste from developed to less developed countries (LDCs). It does
not, however, address the movement of radioactive waste. The convention is also intended to
minimize the rate and toxicity of wastes generated, to ensure their environmentally sound
management as closely as possible to the source of generation, and to assist LDCs in
environmentally sound management of the hazardous and other wastes they generate.
The convention was opened for signature on 21 March 1989, and entered into force on 5 May
1992. As of September 2022, there are 190 parties to the convention. In addition, Haiti and the
United States have signed the convention but not ratified it.1011

Following a petition urging action on the issue signed by more than a million people around
the world, most of the world's countries, but not the United States, agreed in May 2019 to an
amendment of the Basel Convention to include plastic waste as regulated material.12 Although
the United States is not a party to the treaty, export shipments of plastic waste from the United
States are now "criminal traffic as soon as the ships get on the high seas," according to the
Basel Action Network (BAN), and carriers of such shipments may face liability, because the
transportation of plastic waste is prohibited in just about every other country.13

10
"Status as at 13 January 2013". United Nations Treaty Database. Archived from the original on 9 September
11
. Retrieved 13 January 2013
12
Phys.org, 10 May 2019 "180 Nations Agree UN Deal to Regulate Export of Plastic Waste"
13
The Maritime Executive, 14 March 2021 "Report: U.S. Plastic Waste Exports May Violate Basel Convention"

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History of Basel Convention: -
With the tightening of environmental laws (for example, RCRA) in developed nations in the
1970s, disposal costs for hazardous waste rose dramatically. At the same time, globalization of
shipping made transboundary movement of waste more accessible, and many LDCs were
desperate for foreign currency. Consequently, the trade in hazardous waste, particularly to
LDCs, grew rapidly.

One of the incidents which led to the creation of the Basel Convention was the Khian Sea waste
disposal incident, in which a ship carrying incinerator ash from the city of Philadelphia in the
United States dumped half of its load on a beach in Haiti before being forced away. It sailed
for many months, changing its name several times. Unable to unload the cargo in any port, the
crew was believed to have dumped much of it at sea.

Another is the 1988 Koko case in which five ships transported 8,000 barrels of hazardous waste
from Italy to the small town of Koko in Nigeria in exchange for $100 monthly rent which was
paid to a Nigerian for the use of his farmland.

At its meeting that took place from 27 November to 1 December 2006, the conference of the
parties of the Basel Agreement focused on issues of electronic waste and the dismantling of
ships.

According to Maureen Walsh, only around 4% of hazardous wastes that come from OECD
countries are actually shipped across international borders. 14 These wastes include, among
others, chemical waste, radioactive waste, municipal solid waste, asbestos, incinerator ash, and

14
Walsh, Maureen (1992). "The global trade in hazardous wastes: domestic and international attempts to cope
with a growing crisis in waste management". Catholic University Law Review. 42: 103–140.

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old tires. Of internationally shipped waste that comes from developed countries, more than half
is shipped for recovery and the remainder for final disposal.

Increased trade in recyclable materials has led to an increase in a market for used products such
as computers. This market is valued in billions of dollars. At issue is the distinction when used
computers stop being a "commodity" and become a "waste".

As of September 2022, there are 190 parties to the treaty, which includes 187 UN member
states, the Cook Islands, the European Union, and the State of Palestine. The six UN member
states that are not party to the treaty are East Timor, Fiji, Haiti, San Marino, South Sudan, and
United States.

Definition of Hazardous Waste: -

Waste falls under the scope of the convention if it is within the category of wastes listed in
Annex I of the convention and it exhibits one of the hazardous characteristics contained in
Annex III. In other words, it must both be listed and possess a characteristic such as being
explosive, flammable, toxic, or corrosive. The other way that a waste may fall under the scope
of the convention is if it is defined as or considered to be a hazardous waste under the laws of
either the exporting country, the importing country, or any of the countries of transit.

The definition of the term disposal is made in Article 2 al 4 and just refers to annex IV, which
gives a list of operations which are understood as disposal or recovery. Examples of disposal
are broad, including recovery and recycling.

Alternatively, to fall under the scope of the convention, it is sufficient for waste to be included
in Annex II, which lists other wastes, such as household wastes and residue that comes from
incinerating household waste.15

15
"Archived copy" (PDF). Archived (PDF) from the original on 14 February 2015. Retrieved 14 February 2015.,
p.16

16
Radioactive waste that is covered under other international control systems and wastes from
the normal operation of ships are not covered.

Annex IX attempts to define wastes which are not considered hazardous wastes and which
would be excluded from the scope of the Basel Convention. If these wastes however are
contaminated with hazardous materials to an extent causing them to exhibit an Annex III
characteristic, they are not excluded.

Article 11 Arrangements and Agreements: -

Article 11 of the Basel Convention provides that, notwithstanding the Convention’s non-Party
trade restriction, Parties may enter into agreements or arrangements allowing trans boundary
movement of hazardous wastes or other wastes with Parties or non-Parties, provided that such
agreements or arrangements (1) do not derogate from the Convention’s requirements for
environmentally sound management and (2) stipulate provisions which are not less
environmentally sound than those provided for by the Convention. Such Article 11 agreements
or arrangements enable Basel Parties to trade in waste and scrap covered by the Convention’s
PIC procedures with non-Parties (like the United States) The United States has entered into
several such agreements or arrangements, as described below.

Basel Convention on the Control of Transboundary Movements of

Hazardous Waste: -
The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and
their Disposal was adopted in 1989 and it came into force in 1992. It is the most comprehensive
global environmental agreement on hazardous wastes and other wastes. With 175 Parties (as at
31 March 2011), it has nearly universal membership. The Convention aims to protect human
health and the environment against the adverse effects resulting from the generation,
transboundary movements and management of hazardous wastes and other wastes. The Basel
Convention regulates the transboundary movements of hazardous wastes and other wastes and
obliges its Parties to ensure that such wastes are managed and disposed of in an
environmentally sound manner. The Convention covers toxic, poisonous, explosive, corrosive,
flammable, ecotoxic and infectious wastes. Parties also have an obligation to minimize the
quantities that are transported, to treat and dispose of wastes as close as possible to their place
of generation and to prevent or minimize the generation of wastes at source.

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Obligations: -
In addition to conditions on the import and export of the above wastes, there are stringent
requirements for notice, consent and tracking for movement of wastes across national
boundaries. It is of note that the convention places a general prohibition on the exportation or
importation of wastes between parties and non-parties. The exception to this rule is where the
waste is subject to another treaty that does not take away from the Basel Convention. The
United States is a notable non-party to the convention and has a number of such agreements for
allowing the shipping of hazardous wastes to Basel Party countries.

The OECD Council also has its own control system that governs the transboundary movement
of hazardous materials between OECD member countries. This allows, among other things, the
OECD countries to continue trading in wastes with countries like the United States that have
not ratified the Basel Convention.

Parties to the convention must honour import bans of other parties.

Article 4 of the Basel Convention calls for an overall reduction of waste generation. By
encouraging countries to keep wastes within their boundaries and as close as possible to its
source of generation, the internal pressures should provide incentives for waste reduction and
pollution prevention. Parties are generally prohibited from exporting covered wastes to, or
importing covered waste from, non-parties to the convention.

The convention states that illegal hazardous waste traffic is criminal but contains no
enforcement provisions.

According to Article 12, parties are directed to adopt a protocol that establishes liability rules
and procedures that are appropriate for damage that comes from the movement of hazardous
waste across borders.

The current consensus is that as space is not classed as a "country" under the specific definition,
export of e-waste to non-terrestrial locations would not be covered.

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Basel Ban Amendment: -
After the initial adoption of the convention, some least developed countries and environmental
organizations argued that it did not go far enough. Many nations and NGOs argued for a total
ban on shipment of all hazardous waste to LDCs. In particular, the original convention did not
prohibit waste exports to any location except Antarctica but merely required a notification and
consent system known as "prior informed consent" or PIC. Further, many waste traders sought
to exploit the good name of recycling and begin to justify all exports as moving to recycling
destinations. Many believed a full ban was needed including exports for recycling. These
concerns led to several regional waste trade bans, including the Bamako Convention.

Lobbying at 1995 Basel conference by LDCs, Greenpeace and several European countries such
as Denmark, led to the adoption of an amendment to the convention in 1995 termed the Basel
Ban Amendment to the Basel Convention. The amendment has been accepted by 86 countries16
and the European Union, but has not entered into force (as that requires ratification by three-
fourths of the member states to the convention). On 6 September 2019, Croatia became the
97th country to ratify the amendment which will enter into force after 90 days on 5 December
2019. The amendment prohibits the export of hazardous waste from a list of developed (mostly
OECD) countries to developing countries. The Basel Ban applies to export for any reason,
including recycling. An area of special concern for advocates of the amendment was the sale
of ships for salvage, shipbreaking. The Ban Amendment was strenuously opposed by a number
of industry groups as well as nations including Australia and Canada. The number of
ratification for the entry-into force of the Ban Amendment is under debate: Amendments to the
convention enter into force after ratification of "three fourths of the Parties who accepted them"
[Art. 17.5]; so far, the parties of the Basel Convention could not yet agree whether this would

16
Convention, Basel. "Ratification of the Basel Convention Ban Amendment". www.basel.int. Archived from the
original on 24 February 2014.

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be three-fourths of the parties that were party to the Basel Convention when the ban was
adopted, or three-fourths of the current parties of the convention [see Report of COP 9 of the
Basel Convention]. The status of the amendment ratifications can be found on the Basel
Secretariat's web page.17 The European Union fully implemented the Basel Ban in its Waste
Shipment Regulation (EWSR), making it legally binding in all EU member states. Norway and
Switzerland have similarly fully implemented the Basel Ban in their legislation.

In the light of the blockage concerning the entry into force of the Ban Amendment, Switzerland
and Indonesia have launched a "Country-led Initiative" (CLI) to discuss in an informal manner
a way forward to ensure that the trans boundary movements of hazardous wastes, especially to
developing countries and countries with economies in the transition, do not lead to an unsound
management of hazardous wastes. This discussion aims at identifying and finding solutions to
the reasons why hazardous wastes are still brought to countries that are not able to treat them
in a safe manner. It is hoped that the CLI will contribute to the realization of the objectives of
the Ban Amendment. The Basel Convention's website informs about the progress of this
initiative.

Regulation of Plastic waste: -

In the wake of popular outcry, in May 2019 most of the world's countries, but not the United
States, agreed to amend the Basel Convention to include plastic waste as a regulated material.
The world's oceans are estimated to contain 100 million metric tons of plastic, with up to 90%
of this quantity originating in land-based sources. The United States, which produces an annual
42 million metric tons of plastic waste, more than any other country in the world, opposed the
amendment, but since it is not a party to the treaty it did not have an opportunity to vote on it
to try to block it. Information about, and visual images of, wildlife, such as seabirds, ingesting
plastic, and scientific findings that nanoparticles do penetrate through the blood–brain barrier
were reported to have fueled public sentiment for coordinated international legally binding
action. Over a million people worldwide signed a petition demanding official action. Although
the United States is not a party to the treaty, export shipments of plastic waste from the United
States are now "criminal traffic as soon as the ships get on the high seas," according to the
Basel Action Network (BAN), and carriers of such shipments may face liability, because the

17
"Ban Amendment". 15 December 2004. Archived from the original on 15 December 2004.

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Basel Convention as amended in May 2019 prohibits the transportation of plastic waste to just
about every other country.

The Plastic Waste Amendments of the convention are now binding on 186 States. In addition
to ensuring the trade in plastic waste is more transparent and better regulated, under the Basel
Convention governments must take steps not only to ensure the environmentally sound
management of plastic waste, but also to tackle plastic waste at its source.18

Main Provisions of Basel Convention: -

The overall goal of the Basel Convention is to protect human health and the environment
against the adverse effects that may result from the generation, transboundary movements and
management of hazardous and other wastes. To achieve this several interrelated objectives are
to be fulfilled:

• Reducing transboundary movements of wastes to a minimum consistent with their

environmentally sound and efficient management, and controlling any permitted
transboundary movement under the terms of the Convention;
• Minimising the quantity and the hazardousness of wastes generated and ensuring their
environmentally sound management including the treatment of these wastes as close as
possible to their sound of generation;
• Assisting developing countries in environmentally sound management of the hazardous
and other wastes they generate.

The aim of the Basel Convention is, therefore, to help reduce the number of transboundary
movements and the quantity of hazardous wastes to a minimum, and to manage and dispose of
these wastes in an environmentally sound manner.

18
Environment, U. N. (21 October 2021). "Drowning in Plastics – Marine Litter and Plastic Waste Vital
Graphics". UNEP - UN Environment Programme. Retrieved 21 March 2022.

21
Aim of Basel Convention: -
The Basel Convention aims to protect the environment by bringing measures to control and

regulate hazardous and other waste disposals. The negotiations for the convention were started

in the late 1980s under the auspices of the United Nations Environment Programme (UNEP).

Salient Points of Basel Convention:

1. It came into force in 1992.

2. The Basel Convention secretariat is situated in Geneva, Switzerland.

3. It applies Prior Consent Approval procedure to regulate the transboundary movement

of the hazardous and other wastes.

4. Non-parties cannot transport hazardous waste to and from each other unless specially

agreed. Basel Convention states such transportation, illegal.

5. The member nations to the convention are required to have domestic legislation for both

prevention and the punishment of the illegal trafficking of such hazardous wastes.

6. It ensures that the member nations control the generation, storage, transportation,

treatment, reuse, recycling, recovery and final disposal of hazardous wastes.

7. Conference of Parties (COP) is a primary organ of the Basel Convention and is

responsible to make decisions about the operations of the convention. It meets

biennially.

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Members of Basel Convention: -
There are 188 members of the Basel Convention.

Is India member of Basel Convention

Yes, India is a member of the Basel Convention. It ratified the convention in June 1992 and
brought it into force on 22nd September 1992.

India’s Domestic Legislation for Waste Management

1. The Ministry of Environment, Forest & Climate Change

(MOEF&CC) introduced Hazardous and Other Wastes (Management and
Transboundary Movement) Rules of 2016. Recently in 2019, these rules were amended. The
amendments were:

• Prohibition of the import of the solid plastic waste including in the special economic
zone (SEZ) and export-oriented units (EOU).

• Exemption to Silk Waste Exporters – They will no longer need permission from the
Ministry.

• Defective electrical and electronic assemblies and components can be imported back
within one year of export without obtaining permission from the ministry.

• Exemption of Industries from Hazardous and Other Wastes (Management and

Transboundary Movement) Rules of 2016 – Those industries that are already exempted
from requiring consent under Water (Prevention and Control of Pollution) Act 1974
and Air (Prevention and Control of Pollution) Act 1981 are now exempted for the same
from Hazardous and Other Wastes Rules too.

2. New Bio-Medical Waste Management Rules 2016 too have been brought by the
MOEF&CC.

3. Electronic Waste – E-waste Management Rules 2016 – MOEF&CC announced these

rules replacing E-Waste (Management and Handling) Rules of 2011.

Impacts of the Basel Convention: -

The Basel Convention established a “soft” law procedure whereby enforcement relies on
countries establishing their own measures to comply with the treaty. The aim of the convention
is to regulate the trade and mitigate illegal trade of hazardous materials. As a result, stricter

23
regulations have led to more trade enforcement. For example, Indonesia has returned nearly
250 shipping containers of waste, and investigated thousands more, to the United States,
Britain, France, Germany, and Australia. Indonesia has also increased its border controls to
address imports of toxic and dangerous materials. As Indonesia illustrates, the Basel
Convention provides standards and tools for countries to tackle the problem, but it is the job of
member states to create their own legislation and regulatory authority to implement aspects of
the convention.

E-waste—discarded electronics (for example old phones, computers, fax machines) or

electronic devices nearing the end of their “useful life”—has been another area of focus covered
in the Basel Convention. However, according to a report released by the Basel
Action Network (BAN), a nongovernmental organization advocating for Basel compliance,
“Scam recycling” still occurs when e-waste is illegally sent to developing countries. In most
cases, importing countries do not have sufficient recycling technological capabilities, resulting
in the dumping of refuse in fields and wastelands. Because the United States does not have
sufficient domestic statutory authority to implement all provisions of the Basel Convention, the
United States is not a party to the convention. However, the United States is one of the world’s
largest producers of e-waste, which means that its absence undermines the overall effectiveness
of the treaty.

Despite the fact the United States has not ratified the agreement, the Basel Convention has
influenced other members to institute new policies. One such policy is China’s National Sword
Policy. This initiative banned waste, pairings, and scraps of plastic from being imported into
the country. While effective for reducing waste imports into China, trade flows have increased
to other Southeast Asian countries as a result. Furthermore, the continued lack of transparency
regarding waste trade has led to an increase of illegal waste trafficking under the guise of
recycling. Some methods of circumvention include the mislabelling of shipments as recyclable
and the mixing of recyclables and hazardous waste.

The Basel Convention depends on countries’ policy alignment with broader goals of the
convention, as well as countries’ abilities to carry out relevant policies that would help them
meet Basel Convention objectives. While the Basel Convention is a step in the right direction,
particularly in terms of coordination among signatories, that member states are left to
implement elements of the convention on their own reduces its overall efficacy. Furthermore,

24
there are stark differences among parties when it comes to regulation requirements, standards,
and labelling procedures, which continue to reduce the effectiveness of the treaty.

25
Webliography: -

http://www.basel.int/

https://www.unep.org/resources/report/basel-convention-control-transboundary-
movements-hazardous-wastes

https://en.wikipedia.org/wiki/Basel_Convention

https://en.wikipedia.org/wiki/Environmental_law

https://www.law.cornell.edu/wex/environmental_law

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Bibliography: -

Environmental Law – Dr. H.N. Tiwari

Environmental law – S.C. Shastri

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