Basel Convention Parties Take Global Lead on Mitigating Plastic Pollution

As chemical-intensive industries have grown, environmental contamination and human health degradation from chemical pollutants have heavily intensified, prompting global environmental concern.[1] In particular, plastic waste has emerged as one of the most problematic aspects of the rising wave of global chemical pollution. This Insight explains the impact of new rules adopted under the last Conference of the Parties (COP) to the Basel Convention[2] pertaining to transboundary movements of plastic waste. These amendments are regarded as creating a paradigm shift in international chemicals and waste law in introducing, for the first time ever, an international consent mechanism applicable to global movements of plastic waste.

Plastic Pollution

Plastics have become one of the most visible manifestations of the liberally toxic way society has produced, used, and disposed of chemically based products since their emergence in global markets beginning in the 1950s. These fossil fuel-based materials that last "hundreds to thousands of years,"[3] infiltrate food webs[4] and human bodies,[5] lie in all major ocean basins, and are ubiquitous throughout land and water ecosystems in micro to macro form,[6] have triggered a planetary health crisis. Moreover, transboundary flows of plastic waste follow longstanding global trends in international toxic waste trading, whereby wastes generated in affluent nations are internationally traded, or "dumped" in poorer nations.[7]

A lack of transparency and accountability in the international waste trade, combined with low levels of law enforcement and customs inspections at global ports have facilitated the proliferation of illegal waste trafficking under the guise of recycling. Deceptive practices such as the mislabeling of waste shipments as recyclable materials and the undeclared mixing of recyclables with hazardous waste are widespread.[8] These trends have become more apparent since China—the leading global destination for plastics recycling—decided to ban all imports of plastic waste as of 2018.

In July 2017, China notified the World Trade Organization (WTO) that it would no longer accept "waste, pairings and scrap of plastics" under its new National Sword Policy, which bans different categories of waste materials in order to safeguard human and environmental health from "illegal foreign garbage."[9] As a result of China's restrictions, both legal and illegal plastic waste exports to other Association of Southeast Asian Nations (ASEAN) countries rose considerably in 2018,[10] with at least Malaysia experiencing a concomitant rise in illegal and unlicensed recycling operations. Not long after China imposed its ban, Malaysia, Thailand, and Vietnam also adopted new plastic waste import restrictions, yet illegal trafficking involving waste shipments from Australia, the United States, Canada, Saudi Arabia, Japan, and the EU persists.[11]

Recent dynamics of the international plastic waste trade reveal that as some countries have strengthened their domestic plastic waste restrictions and oversight of imports, global flows of plastic waste have simply shifted elsewhere. However, this pattern of continually diverting plastic waste shipments to countries that have less strict regulatory standards for plastic waste imports will become increasingly difficult under new international rules that have been adopted under the Basel Convention by 187 countries.

Basel Convention Overview

The Basel Convention was adopted in 1989 as a response to toxic trading patterns that emerged in the 1970s whereby developed countries were found to be exporting hazardous wastes to developing countries. The Convention restricts trade in wastes categorized as "hazardous waste" under the Convention itself or under Basel parties' national legal definitions for hazardous waste.[12] Originally, the Convention prohibited hazardous waste exports for the purpose of disposal, from developed to developing countries. In 1995, the parties adopted an amendment to the Convention commonly referred to as the Basel Ban,[13] further prohibiting transfers of hazardous waste for recycling or recovery operations from developed to developing countries. While the Basel ban has yet to enter into force at the international level, it has been implemented by several parties at regional and national levels.[14]

The Basel Convention does not regulate new or used products (non-waste), nor does its controls apply to all transboundary movements of waste. The strict mechanism it establishes (the procedure of prior informed consent (PIC)), is applicable exclusively to transboundary movements of hazardous waste. The PIC is essentially a human health and environmental protection measure based on the principles of prevention and transparency. Under this system, parties are prohibited from exporting hazardous waste unless the state of import has consented to the shipment beforehand in writing and a series of other requirements have been met.[15]

One of the challenges of the Basel Convention is that it contains significant definitional loopholes regarding the distinction between waste and non-waste, as well as the distinction between hazardous waste and non-hazardous waste. This legal ambiguity creates the possibility for a wide range of hazardous shipments to evade the Convention's stringent controls. Until the last COP, solid plastic wastes were categorized as non-hazardous waste, meaning they fell out of the Convention's scope and could even be considered non-waste. However, at the 2019 COP, Basel Parties amended the Convention, adopting by consensus a legally binding framework to regulate and enhance transparency in the global trading of certain plastic waste streams. Widely hailed as a monumental success, the extension of the Basel Convention to plastic waste demonstrates its contemporary relevance and capacity to respond to an emerging global environmental health crisis.

New Rules Under Basel

Prior to the amendments adopted in May 2019, most plastic waste was not considered hazardous. Under the amendments, plastic waste is now separated into three legal categories: "hazardous waste" (plastics listed under Annex VIII); "other waste" requiring special consideration (plastics listed under Annex II); and "non-hazardous waste" (plastics listed under Annex IX).[16] Shipments of plastic waste listed under Annexes II and VIII are subject to the Convention's extensive control system. This includes: application of the prior informed consent mechanism; an obligation to ensure environmentally sound management (ESM); authorization requirements for traders and processors, as well as mandatory packaging, labelling, and transport requirements; information transmission requirements; and an obligation to re-import when ESM cannot be completed.[17] These amendments will enter into force on January 1, 2021. They affect all 187 Basel parties as well as their non-party trading partners such as the United States, one of the largest global generators and exporters of plastic waste.

In order for any shipment of plastic waste to not be subject to hazardous waste controls, Annex IX amendments require that it must be destined for recycling in an environmentally sound manner and must not be contaminated or mixed with other waste. Moreover, the shipment must consist almost exclusively of either one non-halogenated polymer, one cured resin or condensation product, or specific fluorinated polymer wastes. Mixtures of plastic wastes containing only polyethylene (PE), polypropylene (PP), or polyethylene terephthalate (PET) are also excluded from the scope of the Convention as long each material is destined for separate recycling in an environmentally sound manner and the shipment is almost free of contamination and other types of waste. In essence, only shipments of pre-sorted, uncontaminated recyclable plastics that are free from all non-recyclable material and have been prepared for immediate environmentally sound recycling can be considered "clean" or non-hazardous plastic waste and traded without restriction.

The most significant implication of the new hazardous waste classification of certain plastic waste streams is that Basel parties can no longer import these types of plastic waste shipments from non-parties, such as the United States. Parties are prohibited from shipping hazardous waste to and from non-parties, unless such transfers are regulated under special bilateral or regional agreements that contain standards equivalent to those established under the Basel Convention.[18] There are also significant implications for EU countries and other Basel parties that have implemented the Basel Ban Amendment, as the latter prohibits the export of hazardous waste (which now includes most plastic waste) from OECD to non-OECD countries. Evidently, the new amendments will massively disrupt current dynamics of the global plastic waste trade and force high-volume plastic waste generators such as North American and European countries to re-configure their collection, sorting, and export practices.

These progressive developments on regulating plastic waste illustrate the Basel Convention's potential to offer a meaningful level of human health and environmental protection against harmful global trade practices. At the same time, the Basel Convention applies only to the hazardous waste phase of the plastics lifecycle, and thus only addresses a narrow aspect of the much broader problem of plastic pollution. Even though certain streams of plastic waste are now regulated under the Basel Convention, there is an overwhelming lack of transparency on chemical pollution released in the manufacturing of plastics, and on the identity and quantity of hazardous chemical substances contained in plastic products, whether they are intentionally added (such as plasticizers and solvents) or non-intentionally produced (such as impurities and by-products).[19]

Beyond Basel

While the Basel Convention clearly plays an integral role in mitigating hazardous impacts of the plastics lifecycle, it is widely recognized that a more comprehensive approach to regulating plastics is required in order to effectively eliminate global plastic pollution. At the UN Environment Assemblies (UNEA), there have been ongoing discussions on the possible development of a "new global architecture to address marine plastic litter and microplastics."[20] The UNEA3 established an open-ended ad hoc expert group to address plastic pollution in the context of marine litter and microplastics, and its mandate notably includes exploring the possibility for "legally binding governance strategies and approaches."[21] Adopting a broader lifecycle perspective, the Environmental Investigation Agency and Centre for International Environmental Law have put forward a possible framework for a Convention on Plastics and Plastic Pollution that draws on features of the Montreal Protocol on Substances that Deplete the Ozone Layer.[22]

Despite strong momentum for the development of an international legally binding agreement to address plastic pollution, there was no significant progress on the issue at UNEA4, apart from the extension of the mandate of the ad hoc expert group on marine litter and microplastics. Hopefully the recent success of Basel Parties to bring plastic waste within the purview of international environmental law will provide added impetus to negotiations at UNEA5 (2021) for strengthened international action on eliminating plastic pollution from a lifecycle lens rather than a fragmented end-of-life approach.

About the Author: Sabaa A. Khan is a Senior Researcher at the Center for Climate Change, Energy and Environmental Law (University of Eastern Finland), Visiting Scholar at the Labour Law and Development Research Laboratory (McGill University) and Attorney Member of the Barreau du Québec.