SAIS Review

SAIS Review 22.1 (2002) 141-155

Seeping Through the Regulatory Cracks

Jennifer Clapp

The management of toxic waste has become an increasingly global business. The worldwide generation of hazardous waste is currently around 440 million tons, of which an estimated 10 percent makes its way across international boundaries. ¹ A variety of industries generate toxic wastes, ranging from chemicals to electronics and from plastics to metal plating. These toxic wastes have adverse affects on the natural environment and have been linked with various health problems, including respiratory diseases as well as immune and reproductive disorders. These environmental and health concerns make decisions about where to dispose of toxic waste highly contentious politically, especially when transboundary issues are involved.

Hazardous materials are nonetheless transported with relative ease from one country to another, albeit subject to certain rules. The international trade in hazardous wastes is governed by various national and international regulations, such as the Basel Convention, which purport to deal with wastes in an environmentally sound manner. Although the purpose of global regulations is to prevent adverse environmental outcomes, the existing agreements nonetheless contain several key weaknesses or "cracks" that allow the trade to continue, often in ways that fall short of environmental standards. Following is an overview of the rise of the waste trade and the rules that have come about to govern it. [End Page 141]

The Rise of the Waste Trade and the Emergence of Global Rules to Govern it

Prior to the late 1980s, there was little regulation at either the national or the international level to control the transboundary trade in toxic wastes. The bulk of the hazardous waste trade flowed between rich countries, and thrived on regulatory differences in each country. ² However, it is estimated that at least twenty percent of these wastes also made their way to poorer, developing countries, where costs were lower and environmentalregulations weaker. ³ A number of high profile cases of hazardous waste exports from firms in industrialized to developing countries in the 1980s and the early 1990s brought international attention to this issue. Wastes were shipped from countries with high disposal costs and strict regulations to countries with low disposal costs and weak regulations. Because most poor countries did not have the equivalent capacity to dispose of wastes in an environmentally sound manner, concern mounted over the trade in wastes between rich and poor countries. ⁴ Toxic wastes sent to poor countries were often disposed of in ways that led to adverse and harmful environmental effects. For example, the Italian firm's waste dumped in a Nigerian farmer's field and the toxic fly ash from a Philadelphia waste broker that wound up littering the beaches of Guinea and Haiti illustrate potential health and environmental impacts of careless disposal. ⁵ This is in stark contrast to the way toxic wastes are stored in rich industrialized countries, where storage and disposal facilities have to meet high safety and environmental standards.

Many developing countries were outraged by what they viewed as negligent dumping practices by the industrialized world under the guise of trade. This provided the impetus for the development of strong international, regional, and national regulations to control these particular trade flows. At the international level, the Basel Convention on the Transboundary Movement of Hazardous Wastes and their Disposal seeks to regulate the trade of toxic wastes and, in particular, aims to protect developing countries from unwanted toxic waste imports. The Basel Convention was adopted in 1989 and came into legal force in 1992 after being ratified by 20countries. The convention establishes that parties should reduce their exports of toxic wastes to a minimum and that wastes should only be traded internationally if the exporting state does not have the capacity to dispose of them in an environmentally sound manner or if the wastes constitute "raw materials" (i.e., [End Page 142] they are to be "recycled") to be used by the importing countries. The convention also requires parties to refrain from exporting wastes to states that have banned such imports. Additionally, it stipulates that parties should refrain from trade in hazardous wastes...