Abstract
Prior to 1992 the international aspects of hazardous waste management were addressed in a fragmented and incomplete manner. The roots of the international regime can be traced to Principles 21 and 22 of the Stockholm Declaration.1 Principle 21 establishes that States have the sovereign right to develop their own domestic environmental policies, provided that those policies do not cause environmental damage in areas outside of a State’s national jurisdiction. Principle 22 encourages States to cooperate in the development of international law regarding liability and compensation for victims of environmental damage. However, neither principle is of legal force, although Principle 21 has become customary international law and finds more forceful embodiment through mlings of international tribunals. According to the rulings in the Trail Smelter Arbitration (1938)2 and the Corfu Channel case (1949)3, States have a clear obligation to exercise due diligence regarding hazardous materials within their jurisdictions. In both cases, the fundamental conclusion was that States might be held liable for the negative effects outside their jurisdiction of hazardous materials used within their jurisdiction. This liability may exist whether the State is able to undertake mitigating measures or not. Indeed where it cannot, the relevant State has a duty to warn those who may be potentially affected. These responsibilities and liabilities are a close parallel to the more commonly seen theories of negligence in the law of torts.
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References
Declaration of the United Nations conference on the Human Environment, adopted by the UN Conference on the Human Environment, Stockholm, 16 June 1972 (A/CONF.48/14/Rev. 1).
(1939) 33 AJIL 182 (1941) 35 AJIL 684
ICJ Rep. (1949) 4
The primary incentive for targeting developing countries for waste disposal is economic. The disposal costs in developing countries are often a fraction of the costs in developed countries. Another factor is the lack of environmental regulation or enforcement in developing countries.
United Nations Environment Programme (1981), Report of the Ad Hoc Meeting of Senior Government Officials Expert in Environmental Law. UN Doc. UNEP/GC.10/5/Add2 (1981), at 10–11.
United Nations Environment Programme (1987), Governing Council, 14th Sess., Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes, UN Doc, UNEP/GC.14/17 Annex II (1987) [Cairo Guidelines].
Cairo Guidelines, at 3.
Cairo Guidelines, at 5.
UN GAOR, 42nd Sess., Supp No. 25 at 83; UN Doc. A/42/25 (1987), at 84.
UN Doc UNEP/WG. 190/4. [28 ILM (1989) 657]
Basel Convention, Preamble.
UNEP (1991), Governing Council, 16th Sess., Report of the Executive Director, UN Doc, UNEP/GC.16/20 (1991) at 24.
Article 9.1.
Article 9.5. States are therefore empowered to make some types of transboundary movements of hazardous wastes subject to criminal sanction.
Article 9.2.
See Article 16.1.
See Article 4 paragraphs 7 to 13.
Resolution 1153 passed by the OAU Council of Ministers in 1988 was the first formal response by African countries to the dumping of hazardous wastes in Africa. See OAU (1988), Resolution on Dumping of Nuclear and Industrial Waste in Africa, OAU Council of Ministers Res. CM/Res. 1153 (XLVIII) (23 May 1988), reprinted in 28 ILM 567. The Resolution contained key themes: a) a ban on the import of hazardous wastes into Africa; b) the liability of waste generators for damage caused by their wastes; c) assistance from developed countries in monitoring and controlling hazardous waste movements; and d) the use of ecologically rational methods of disposal of hazardous wastes.
OAU (1989), Resolution on a Global Convention for the Control of Transboundary Movement of Hazardous Wastes, OAU Council of Ministers Res. CM/Res.1199 (XLIX) (25 Feb. 1989), reprinted in UN GAOR, 44th Sess., UN Doc A/44/291 (1989), at 31–32.
The precise meaning of ‘environmentally sound management’ was left open in the Basel Convention.
(1989), Western, African Nations Fail to Agree on Transboundary Movement of Toxic Wastes, 12 International Environmental Reporter (BNA) (8 Feb. 1989) at 49
Ibid. at 32. As a result, no OAU member state signed the Basel Convention in 1989. However, Nigeria has since signed and ratified the Basel Convention.
See Article 4.2 (e).
See J. Krueger (1998), “The Basel Convention and Transboundary Movements of Hazardous Wastes”, (The Royal Institute of International Affairs, Energy and Environmental Programme, Briefing No.45, May 1998).
Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement of Hazardous Wastes within Africa, opened for signature 30 January 1991, 30 ILM, 773. The Convention entered into force in February 1996.
See Law on Toxic and Nuclear Waste, Cote d’Ivoire Law No. 88651, 7 July 1988, translated in 28 ILM 391.
See C. Bruch (1999), “What’s the Constitutional Basis of Africa’s Environmental Law?” 6:2 Innovation;
C. Bruch (2000), Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa, Environmental Law Institute, Research Report, May 2000.
See Article 3 (f) and (g).
Article 4.3 (a).
Article 4.3 (d).
Article 4.3 (r).
See Article 4.3 (j).
Article 4.3 (n) (i).
Article 4.3 (n) (ii)
See Article 4.9 (c), (b).
Article 4.3 (u).
Article 4.2 (f).
See Basel Convention, Article 6.8; Bamako Convention, Article 6.1, 6.6.
Bamako Convention, Article 5.
See Basel Convention Conference of the Parties, Decision III/1.
See Basel Convention, Article 12.
Bamako Convention, Article 4.3(b).
Bamako Convention, Article 13, Basel Convention, Article 13.
See Western, African Nations Fail to Agree on Transboundary Movement of Toxic Wastes, 12 Int’l Env’t Rep. (BNA) (4 Feb. 1989), at 49.
For instance, inter alia, Cote d’Ivoire, Senegal, Tanzania and the Democratic Republic of Congo are parties to both Basel and Bamako.
Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington), (1973) 12 ILM 1085.
Protocol on Substances that Deplete the Ozone Layer (Montreal) (1987) 26 ILM 1550.
Protocol on Biosafety (Cartagena), (2000) 39 ILM 1027.
Protocol to the Framework Convention on Climate Change (Kyoto), (1997)(1998) 37 ILM 22.
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Chaytor, B., Manek, M. (2003). Reconciling Basel and Bamako: The Future of Hazardous Waste Management in Africa. In: International Environmental Law and Policy in Africa. Environment & Policy, vol 36. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0135-8_2
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DOI: https://doi.org/10.1007/978-94-017-0135-8_2
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