The present chapter provides an overview of the treatment of wastes in international law through a study of international and regional treaties, as well as some of the existing jurisprudence, in order to identify trends and gaps related to the international regulation of waste. Within this purpose, the chapter identifies three approaches based on different topics under international law: the protection of human rights; the protection of the environment; and economic concerns associated with trade and investment activities. The chapter allows us to observe that each of the approaches described serves to respond to specific concerns (e.g. the nuisances created by waste, pollution from certain types of waste, and technical and legal definitions). The chapter concludes that an economic approach, mainly supported by soft law instruments (e.g. international standards and publications from international organizations) is currently being developed in order to respond to the growing importance of the economic dimension of waste.
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Tarcísio Hardman Reis
Re-use, recycling, as well as environmentally sound waste management and disposal operations have become important economic factors, particularly in industrialized countries. It is thus not surprising that an international market for waste materials has emerged; waste and end-of-life goods are regularly traded and shipped across borders for their disposal and recovery. In addressing the transboundary movements of waste and end-of-life goods from the viewpoint of the law of the World Trade Organization (‘WTO’) and the General Agreement on Tariffs and Trade (‘GATT’) in particular, this chpater first raises the issue that the notion of ‘waste’ has a relative connotation. What is perceived as worthless ‘rubbish’ by some may be a valuable and tradable commodity for others, and as such, wastes and end-of-life goods will generally fall within the broad scope of application of WTO law and the GATT. As a consequence, states imposing trade restrictions on the transboundary movements of waste and end-of-life goods run the risk of breaching WTO law. In examining the compatibility of trade measures with general principles of the GATT, this chapter addresses questions that are bound to arise when applying concepts of the GATT to end-of-life materials. It then analyses the possibilities of and limitations to justifying trade-restrictive measures under Article XX of the GATT, according to which deviations from the GATT principles may be justified if a state can demonstrate that its measures are necessary to reach legitimate policy goals and are applied in a manner that does not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. In doing so, this chapter raises questions on the role of the WTO panels and the Appellate Body in addressing uncertain risk situations that touch on environmental, social and ethical (‘non-trade’) concerns. The chapter comes to the conclusion that while restrictions to cross-border movements of hazardous wastes and end-of-life goods are most likely to be justified when implemented with a view to environmental and human health concerns, justifying less clear-cut cases – for example, cases involving materials that are not generally acknowledged as ‘hazardous’ or trade restrictions grounded primarily on ethical considerations – is a more ambitious task. This outcome is also in accordance with the legal grey areas of the regulatory frameworks on transboundary movements of wastes on an international and regional level, which do not regulate or control non-hazardous, ‘green-listed’ wastes to a wide extent.
The increasing penetration of society with electrical and electronic equipment (EEE) is resulting in growing volumes of waste. Typical of this waste is the combination of its intrinsic value due to the high content of basic and precious metals, with health and environmental hazards caused by the occurrence of toxic substances in combination with inadequate recycling practices. Based on the principle of Extended Producer Responsibility (EPR), industrialized countries have legislated Waste Electrical and Electronic Equipment (WEEE) management. As a consequence, take-back schemes have been established and innovative recycling technologies developed to recover resources from this waste stream. Although collection rates are often low and technical as well as operational aspects to recover scarce and critical metals still need to be addressed, developing countries are catching up with both increasing waste volumes and addressing the challenge with legislation and policies. Inefficient and harmful recycling technologies in the informal sector, however, still prevail.
The history of the Basel Convention still needs to be written. This chapter attempts to provide a narrative based on experience and the events of the last decades. The past 25 years have seen the rise of the Basel Convention as a key international environmental instrument which aims at reducing the export of hazardous waste and ensuring that any such waste be managed in a way to protect human health and the environment. There are two interconnected factors that explain why the Convention only partially succeeded in achieving its aims. First, trade issues came into collision with the control system of the Convention, and second, a large majority of countries parties to the Convention did not and still do not possess the capacity to manage the hazardous waste they generate in an environmentally sound way. Throughout its history, parties made constant efforts to keep a balance between environmental protection and trade while implementing the Convention. This resulted in reducing the potential of the Convention to become a universal landmark for the environmentally sound waste management based on principles applicable to hazardous waste. As a consequence, and despite its concrete achievements, the Convention disappeared from the radar screen of politicians and became a technical instrument. The issue of recycling and recovery was never resolved in a satisfactory manner within the scope of the Convention. From an historical perspective, one could witness a loss of influence of the Basel Convention. One reason is that the parties, being preoccupied by the way the Convention would relate to trade, did not invest in exploring its potential to contribute to the emerging green economy movement. However, it might not be too late to face up to this new challenge.
General principles of international environmental law provide the theoretical foundation for the development of normative frameworks in international law. In the waste management context, five general principles are particularly relevant: the principle of permanent sovereignty over natural resources and the duty not to cause transboundary harm; the principle of preventive action; the corresponding principle of cooperation; the principle of sustainable development; and the precautionary principle. Operationalization of these principles in the waste context has led to the development of new principles, such as those of self-sufficiency, proximity, waste minimization, environmentally sound management and prior informed consent, all of which are further operationalized in the detailed rules set out in the Basel Convention and other treaties dealing with waste management. This chapter examines the interpretation and application of these general principles and the role they have played in the development of the international legal regime for the management and transboundary movement of waste.
Edited by Shelley Marshall and Colin Fenwick
Juliette Voïnov Kohler
The 1989 Basel Convention aims to protect human health and the environment against the negative impacts of hazardous and other wastes. Although a pre-Rio treaty, the Convention is not oblivious to social and economic concerns and contains the necessary provisions to ensure that such considerations are taken into account when achieving its environmental objective. The Basel Convention is based on a life-cycle approach: it sets out obligations pertaining to the generation of wastes and to the management of wastes, including their transboundary movements. Over the years, the parties to the Convention have given concrete meaning to the obligation to ensure the environmentally sound management of wastes. They have also striven to strengthen the treaty’s trade control regime through the adoption, in 1995, of a ban on the export of wastes from developed to developing countries. Less emphasis however was directed to the reduction of waste generation. During the Ninth Meeting of the Conference of the Parties in 2009, a decisive political push by the Indonesian President of the Conference of the Parties, relayed by Switzerland through the Country-Led Initiative, opened the door to overcoming the long-standing political deadlock over the ban. Colombia, in its capacity as host of the Tenth Meeting of the Conference of the Parties held in 2011, complemented the initiative by proposing the adoption of a Declaration on the Prevention, Minimization and Recovery of Hazardous Wastes and Other Wastes. This combination of efforts led to the historical outcomes of the Tenth Meeting of the Conference of the Parties. The meeting witnessed a paradigm shift in the Basel Convention, including the recognition of the economic potential of the environmentally sound recovery of wastes. In doing so, the parties to the Basel Convention gave concrete meaning to the green economy, a new strategic direction subsequently embraced at the Rio+20 Summit.
Jinhui Li, Xiaofei Sun and Baoli Zhu
Although the increase of solid waste generation is a big issue faced by the whole world, it is more severe in Asian countries owing to their rapid urbanization and industrialization over the past few decades, especially in large developing countries such as China and India. In order to solve the problems relating to the energy shortage and the rapid growth of resource consumption, and to address the environmental pollution caused by solid waste generation, more and more countries in Asia are focusing on energy and resource recovery from waste. This chapter introduces the current status of waste generation and recycling in selected Asian countries, and discusses the existing problems and challenges in waste management and recycling. It is found that increasing population and economic development not only contribute to the sharp rise in solid waste generation but also to its increasing complexity and hazardousness. In contrast to the selected developed and developing countries in Asia, the overall development of waste recycling is not balanced. Because of backward technologies, environmentally sound solid waste disposal levels and resource recovery rates of solid waste in Asia is very low. Nowadays, the awareness of the public and governments of solid waste management and recycling is rising; policies and regulation systems related to solid waste have been established; and new technologies (e.g. waste incineration power generation, biomass fuel, etc.) are being developed. The chapter concludes that energy and resource recovery in Asia has tremendous market potential in the future decades.
Landfills are found throughout the world and represent the prevalent method of waste disposal globally. Landfill gas, composed of approximatlye equal proportions of methane and carbon dioxide, is acknowledged as a significant contributor to greenhouse gas emissions. Methane is one of the short-lived climate pollutants, requiring urgent action to mitigate. However, landfill gas also represents a potential source of ‘green’ power where it is extracted and combusted in a power generation facility. Landfill gas-to-energy projects therefore have the potential for a dual contribution to greenhouse gas reduction through mitigation of methane emissions and avoidance of fossil-fuel power. In addition, landfill gas extraction and combustion represents a key component of sustainable landfill management practices, essential for reducing the risk of gas migration and associated human and environmental impacts. Given the available and proven technology, and the cross-benefits of improved landfill gas management, landfill gas-to-energy could be viewed as a ‘low hanging fruit’ for greenhouse gas mitigation. However, despite widespread adoption of landfill gas-to-energy projects in Northern European countries, North America, and metropolitan Australia and New Zealand, the majority of landfilled waste at the global level is not subject to gas capture and extraction systems. Barriers to growth in projects include technical limitations in some poorer regions, but are primarily due to weak regulatory environments and lack of financial incentives. Historically, the major drivers for development of landfill gas-to-energy projects have been regulatory requirements and revenue generated through a combination of power sales, carbon credits and/or renewable energy certificates. At both the international and national level, uncertainty in policies governing carbon and renewable energy markets, and the consequent market instability, have compromised the growth of investment in landfill gas to energy.