Entry into Force of the 1995 Ban Amendment: What Next for the Trade in Hazardous Waste?

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Entry into Force of the 1995 Ban Amendment: What Next for the Trade in Hazardous Waste?

Dr Ellie Smith

On 5 December 2019, the 1995 Ban Amendment to the Basel Convention entered into force. The Amendment, hailed as “[t]he most important idea ever conceived to promote environmental justice at a global level”, effectively outlaws the shipment of hazardous waste materials from the developed to the developing world.

The market in hazardous waste has certainly proven to be controversial. For communities affected by unlawful waste dumping, or for receiving States that lack adequate and safe recycling and processing capacities, the health and environmental consequences of communities living and/or working in the vicinity of the waste materials can be catastrophic. For companies involved in the movement or trade in hazardous waste, the economic costs when things go wrong – not to mention the reputational damage and impact on share prices – can be astronomical.

The Ban Amendment applies only to the 98 States that have currently signed up to it. Many countries – including significant producers of waste – have yet to sign. They include the United States, Canada, Japan, Australia, New Zealand, Russia, India and Brazil. It is likely, however, that entry into force of the Amendment, together with a growing awareness of the global impacts of hazardous waste and the monitoring activities of specialist NGOs, will create further momentum on the issue and generate further State ratifications in the future.

Notably, while the Amendment itself has taken 25 years to become law, its entry into force now is no accident: it emerges within the wider prevailing context of environmental protection awareness and pressure, that places additional expectations on Western companies and States, and seeks to identify the means by which corporations could be held legally liable when environmental damage arises.

At the UN, for example, both the Special Rapporteur on Toxic Wastes and the Working Group on Business and Human Rights are able to respond to complaints from affected communities and liaise directly with the company concerned, as well as with the State in which the company is based, to identify and highlight concerns. Though the mechanisms do not have legal teeth, the pressure and reputational damage that public disapprobation from a UN body may occasion can be significant.

Moreover, work is already underway at the UN to draft a treaty that will mean companies could be held accountable for environmental damage caused in third party States by its cross-boundary activities.

The issue of access to justice for victims of human rights abuses and environmental damage occasioned by the activities of European multinationals in third countries is also a live issue for the EU. A report commissioned by the Policy Department of the European Parliament in February of this year makes a number of specific recommendations aimed at improving access to legal remedies in such situations.

The current appetite is therefore to enhance prospects for corporate responsibility in situations where environmental damage arises in third States as a result of a company’s activities.

Change is almost certainly coming, with transnational corporations likely to find themselves exposed to potential liabilities that they had not previously envisaged. Planning now (including the possibility of pre-emptive compliance as a positive example of best practice) will not only save a company from the significant costs of legal action, but also, as a preventive measure, reduce the potential for devastating environmental impacts, to the enormous benefit of communities in the developing world.

Dr Ellie Smith is a Principal Associate of GSDM, with a background in International Criminal Law, International Human Rights and International Humanitarian Law. She has particular expertise in relation to trauma and the management of victims, including in relation to hazardous waste.

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