Global Marine Plastic Waste and the Newly Recommended Amendment to the Basel Convention: a Bandage or a Bandaid?

The management of plastic waste is a global problem, but it lacks a global legal framework. In particular, the ubiquitous transboundary movement of plastic waste is of major concern; gaps in environmentally sound waste management, and often the insufficient capacity of importing States to deal with the plastic they receive, is a significant factor contributing to vast amounts of plastic making its way into oceans across the world. An international legal instrument regulating the movement and management of waste is the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention); with 186 State parties it includes all top plastic waste exporters except the United States. However, most plastic waste is not subject to the Convention.

Last week, a meeting of the Convention’s Open-Ended Working Group Meeting decided to recommend an amendment to the Convention for adoption at the next Conference of States Parties in May 2019 that would significantly widen the scope of plastic waste covered. The blog post will outline the legal implications of this important amendment, before addressing the broader question of whether the regime created by the Basel Convention, in conjunction with the Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention), is the appropriate avenue for such an approach seeking to reduce the impact of marine plastic litter.

The Proposed Amendment

The Basel Convention’s objective is to protect human health and the environment against the adverse effects of hazardous wastes and “other wastes”. It is clear that the Convention’s primary purpose is to address transboundary considerations, in particular those stemming from the movement of waste from more developed to developing states, with the Preamble “taking into account … the limited capabilities of the developing countries to manage hazardous wastes and other wastes”, against the backdrop of the considerable international trade of unwanted, and often dangerous, waste.

The Convention has notable gaps when it comes to plastic. “Solid plastic waste” is included in the Annex IX list of wastes considered “non-hazardous”, and is thus excluded from the scope of the general obligations of the Convention, unless it has one of the following two characteristics. First, if it exhibits specific hazardous properties set out in Annex I, to such an extent that it shows the “hazardous characteristics” set out in Annex III. This is applicable to certain plastics containing persistent organic pollutants, as regulated by the Stockholm Convention. Alternatively, as the general obligations of the Convention apply to both “hazardous waste” and “other waste”, plastics classified as the latter are also included. Annex II restricts “other waste”to two categories: “wastes collected from households” and “residues arising from the incineration of household wastes”, thus only plastic wastes characterised as household waste are covered.

The recommended amendments are twofold; first, the deletion of “solid plastic waste” from the list of non-hazardous waste under Annex IX. Secondly, the addition of plastic waste as a category of “other waste” under Annex II, explicitly “plastic waste: waste and scrap from plastic and mixed plastic materials and mixtures of waste containing plastics, including microplastic beads”. These measures would significantly increase the amount of plastic waste regulated by the Convention.

The impact of the Amendment

The amendment to include plastic waste as a category of “other waste” under Annex II would subject it to the general obligations of the Convention, which establish a strict regulatory system based on the concept of prior informed consent. These obligations, applicable to both “hazardous wastes” and “other wastes”, impose conditions on import and export, as well as stringent requirements for notice, consent and tracking of movement across national boundaries. If adopted, the amendment would accordingly require the exporting State authorities to notify their counterparts in the importing and transiting States before any movement of plastic waste. The movement may only proceed once all States concerned have given their written consent (Articles 6 and 7). The Convention also provides for cooperation between parties, ranging from exchange of information on implementation issues (Article 10), to providing technical support to developing countries (Articles 13), the latter is of particular pertinence for plastic waste. Moreover, the removal of plastic waste from the Annex IX list of non-hazardous waste would provide additional clarity, as its inclusion under this Annex is often used to ship plastic as “green” waste.

The Summary of Reasons provided with the initial amendment proposal by Norway argued that overall these amendments will result in “less marine plastic litter, increased traceability, more control, and less illegal dumping of plastic waste”. It is added that, in general, “waste streams can be controlled, and mismanagement of plastic waste avoided”. The notification requirements will also create a paper trail of every shipment, leading to more accurate data, monitoring, and transparency. Whilst the proposal received broad support, certain actors including the EU, Canada, Japan, and Australia voiced positions that would entail stopping, delaying, or watering-down the proposal. The Institute of Scrap Recycling Industries (ISRI) has objected to the proposal, arguing that it would lead to “administrative burdens for plastic strap traders worldwide”, adding that the “proposal would do more to discourage plastic recycling than it would help curb plastic waste in the oceans”.

ISRI voiced concerns in particular over the ramifications of the amendment for States not party to the Convention, such as the US. Under Article 4(5) States parties will be banned from accepting plastic waste from those not party, regardless of whether they consent to it or not. There are, however, exceptions where the waste is subject to another bilateral, multilateral, or regional agreement that does not derogate from the requirements of the Basel Convention (Article 11). For example, the US would still be able to send plastic waste to any other member of the Organisation for Economic Cooperation and Development, as the OECD Council has its own control system that governs the trans-boundary movement of hazardous materials between OECD member States.

Nevertheless, the amendment would go towards addressing the fallout of China’s “National Sword” policy that bans the importation of various plastic, paper and solid wastes. Due to Article 4(5), the US would not be able to export plastic waste to Malaysia, Vietnam or Thailand, three countries that have seen a significant increase in imports since China, previously the world’s largest importer of scrap plastic, began to stringently enforce its new policy. All three of these countries are listed in the top 10 for quantity of plastic waste entering the ocean, with Vietnam the highest-placed of the three, in fourth place.

The Process for Amendment

Amendment of the aforementioned Annexes is arguably simpler than amendment of the main text of the Convention. Amendments to both the Convention text and the Annexes are to be passed through reaching agreement by consensus or, if this fails, a three-fourths majority vote. Whilst amendments to the Convention text shall then be submitted to all Parties for ratification, approval, formal confirmation or acceptance before having binding effect, amendments to the Annexes do not need to go through this formal ratification state by state. Parties objecting to the Annex amendment will simply be excluded from its application; the amendment will automatically become binding on all others on the expiry of six months from the date of communication by the Depositary. This factor has led Jim Puckett, Executive Director of the Basel Action Network, to affirm his view that the amendment proposals have a “very strong chance of passing”.

A Global Solution?

Many initiatives have been launched to address the marine pollution problem, a key actor being the Global Partnership on Marine Litter. At the EU-level, a number of Regulations and Directives have been enacted over the last 20 years, including the Waste Framework Directive (2008/98/EC) and the Marine Strategy Framework Directive (2008/56/EC), as well as the recent Commission proposal for a Directive on the reduction of the impact of certain plastic products on the environment (2018/0172(COD)). A handful of international documents also focus on plastic pollution, including MARPOL, the Honolulu Strategy, and UNEP’s Clean Seas campaign; but whilst these strategies at the international level are an important step forward, they contain no binding commitment to meet the challenge.

The regime established by the Basel and Stockholm Conventions therefore remains the best avenue at present to decrease the impact of plastic waste globally. The opportunities have already been recognised for a while; in May 2017, COP-13 included in the work programme of the Open-ended Working Group for the biennium 2018-2019, the mandate to consider relevant options available under the Basel Convention to further address marine plastic litter and micro-plastic.

The newly recommended amendment would undoubtedly represent important progress in plastic waste management; the Basel Convention can certainly play a role in reducing the impacts of plastics globally, including marine litter, in terms of both hazard potential and quality of waste management. But this avenue is simply a bandaid for a much wider problem.

With its almost exclusive focus on waste management, the Basel Convention does not adequately address the root cause, i.e. the waste generation itself. Despite containing a broad duty to “ensure that the generation of hazardous wastes and other wastes within it is reduced to a minimum”(Article 4(2)), the primary focus of the Convention’s operative provisions is management of existing waste, and therefore its regime cannot comprehensively address the global marine plastic litter issue.

A piece-meal process through amendments to widen the scope of these existing conventions to incorporate plastic waste cannot replace a binding agreement to address the potential impacts to the environment and human health throughout the entire lifecycle of plastic products. A holistic approach is needed, from design, to manufacture, consumption and final treatment of plastic. Next year, at its fourth session, the United Nations Environment Assembly will have the possibility to give the mandate to negotiate such an agreement: a new comprehensive framework to address the global plastic pollution problem.