LRTAP and extending MEAs to non-party states – Part II

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Print Friendly, PDF & Email

Date produced: 02/12/2010

1. Does LRTAP contain substantive pollution reduction standards and has it evolved to cover new and additional issues or expanded in geographical scope? 

2.Does the Basel Agreement and another Multinational Environmental Agreement (MEA) contain substantive pollution reduction standards? 

Summary

1. The LRTAP has evolved to cover new issues and in particular to impose substantial pollution reduction targets.

2. The Basel Convention has evolved to cover new issues. Its initial aim was to regulate trans-boundary movements of hazardous wastes by requiring the ‘prior informed consent’ of receiving countries, but it has been amended to include a ban on export of hazardous waste from OECD countries to non-OECD countries (not yet in force) and to clarify how liability and compensation for damage resulting from spillages from legal and illegal shipments. A number of bilateral and regional agreements on trans-boundary waste shipments by parties to the Basel Convention have been agreed and reported to the Basel Convention Secretariat.

Advice

1. LRTAP

The initial Convention has been extended by 8 Protocols which have imposed specific measures and obligations on the parties. The 1985 Helsinki Protocol on the Reduction of Sulphur Emissions or their Transboundary Fluxes by at least 30%, as its name suggests, established a commitment on all parties to reduce their national annual sulphur emissions or their transboundary fluxes by at least 30% as soon as possible and at the latest by 1993 using 1980 levels as the basis for calculation of the reductions. Further reductions were adopted by the 1994 Oslo Protocol on “Further Reduction of Sulphur Emissions”. A commitment to control nitrogen oxides was addressed in the third Sofia Protocol on the “Control of Emissions of Nitrogen Oxides or Their Transboundary Fluxes” in 1988. This required the reduction of “total annual emissions” and introduced into international law the concept of “national emission standards”. It also recognised the need to create more favourable conditions for exchange of technology. The fourth Protocol in Geneva in 1991 addressed the “Control of Emissions of Volatile Organic Compounds (VOCs) and their Transboundary Fluxes”. In 1998 the Aarhus “Heavy Metals Protocol” targeted 3 harmful heavy metals- lead, cadmium and mercury- and required the parties to reduce their emissions of those metals below the levels in a selected reference year between 1985 and 1995. The Aarhus Protocol on Persistent Organic Pollutants (POPs) was adopted at the same time with the objective of eliminating emissions and discharges of POPs to the atmosphere. This focused on 16 substances rated according to their risk to the environment The parties agreed to eliminate the production and use of some POPs and to restrict the use of others. Finally the 1999 Gothenberg Protocol to “Abate Acidification, Eutrophication and Ground- Level Ozone” aimed to control and reduce anthropogenic emissions of 4 pollutants- sulphur, NOx, ammonia and VOCs which are likely to cause adverse effects to human health, ecosystems and crops.

2. Basel Convention

The Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal (“The Basel Convention”) is a comprehensive global environmental agreement on hazardous and other wastes. It was agreed in 1989 and came into force in 1992. It has evolved over time by means of both additions to its signatories and also by use of amendments and protocols to tighten its requirements , which are discussed below. It currently has 175 parties whereas there were, for example, 148 in 2001. The US is not a party.

Summary of requirements

The Basel Convention regulates the trans-boundary movements of hazardous and other wastes applying the “prior informed consent” procedure. Shipments made without consent are illegal. Shipments to and from non-Parties are illegal unless there is a special agreement. Each Party is required to introduce appropriate national or domestic legislation to prevent and punish illegal traffic in hazardous and other wastes. The Basel Convention also obliges parties to ensure that hazardous and other wastes are managed and disposed of in an environmentally sound manner with an emphasis on minimizing the quantities that are moved across borders, treating and disposing of wastes as close as possible to their place of generation and preventing or minimizing the generation of wastes at source. Strong controls should be applied from the moment of generation of a hazardous waste to its storage, transport, treatment, reuse, recycling, recovery and final disposal.

Amendments and Protocols

Basel Ban

In 1995, the so-called Basel Ban amendment of 1995 essentially required OECD counties not to export to non-OECD countries any hazardous wastes intended for recovery, recycling or final disposal. The ban reflected concern that many non-OECD countries lack the capacity for monitoring trans-boundary movements, managing these wastes in an environmentally sound way and preventing illegal imports. An area of special concern was the sale of ships for salvage, ship-breaking. The Basel Ban was strenuously opposed by a number of industry groups as well as nations including Australia and Canada. The Basel Ban has not yet entered into force but is considered by many to be politically or morally binding.

Protocol on Liability and Compensation for Damage Resulting from the Trans-boundary Movement of Hazardous Wastes and their Disposal

In 1999, the Parties adopted the Protocol on Liability and Compensation for Damage Resulting from the Transboundary Movement of Hazardous Wastes and their Disposal. In the event of an accidental spill from a legal shipment or dumping by an illegal trader, the Protocol describes how to determine liability and how to ensure adequate and prompt compensation for any damage. It establishes an emergency fund, financed with an initial [$500,000] for the finance of immediate action in the event of an emergency and allowing more time to establish liability.

Compliance Committee

In 2002, the sixth meeting of the Conference of the Parties established a mechanism to promote the identification, as early as possible, of implementation and compliance difficulties encountered by Parties and to recommend solutions. A Compliance Committee, consisting of 15 members drawn in equal numbers from the five regional groups of the UN, was established to administer this facilitative mechanism and to receive and consider submissions regarding implementation and compliance issues.

Reporting obligations, designation and functioning of national competent authorities

In 2004, the seventh meeting of the Conference of the Parties directed the Compliance Committee to consider the identification and analysis of difficulties relating to reporting obligations, designation and functioning of national competent authorities, and the development of national legislation to effectively implement the Basel Convention.

Bilateral, Multilateral and Regional Agreements and Arrangements

Article 11 of the Basel Convention permits parties to enter into bilateral, multilateral or regional agreements or arrangements for trans-boundary waste provided they do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by the Convention and notify the Basel . A number of such agreements are listed below:

• Kuwait Regional Convention for co-operation on the Protection of the Marine Environment from Pollution

• Waigani Convention – Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Trans-boundary Movement and Management of Hazardous Wastes within the South Pacific Region adopted in 16 September 1995

• Bamako Convention – on the Ban of the Import into Africa and the Control the Trans-boundary Movement and Management of Hazardous Wastes in Africa, adopted in 30 January 1991

• Agreement of the Commonwealth of Independent States (CIS) on the Monitoring of Trans-boundary Shipments of Hazardous and other Wastes, entered into force on 12 April 1996

• Agreement of Unified Terms of Transit through the Territories of States-Members of the Custom Union

• OECD Council Decision C(2001))107/Final on the Control of Trans-boundary Movements of Wastes Destined for Recovery Operations

• Centro-American Agreement on Trans-boundary Movements of Hazardous Wastes

• Free Trade Agreement between the United Mexican States and the Republics of El Salvador, Guatemala and Honduras

• Protocol on the Prevention of Pollution of the Mediterranean Sea by Trans-boundary Movements of Hazardous Wastes and their Disposal