Mizanpaj 1 - DergiPark
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Mizanpaj 1 - DergiPark
PARADOKS Ekonomi, Sosyoloji ve Politika Dergisi PARADOKS Economics, Sociology and Policy Journal Waste Trade and the Effectiviness of the Legal Arrengements for Tranfortier Movement of Hazardous Wastes Atık Ticareti ve Tehlikeli Atıkların Sınıtötesi Taşınımına İlişkin Hukuki Düzenlemlerin Etkinliği Dr. Yasemin KAYA Uludag University, Department of Public Administration Temmuz/July 2012, Cilt/Vol: 8, Sayı/Num: 2, Page: 63-82 ISSN: 1305-7979 © 2005 - 2012 PARADOKS Ekonomi, Sosyoloji ve Politika Dergisi PARADOKS Economics, Sociology and Policy Journal Temmuz/July 2012, Cilt/Vol: 8, Sayı/Num: 2 ISSN: 1305-7979 Editör/Editor-in-Chief Öğr.Gör.Dr. Elif KARAKURT TOSUN Editör Yardımcıları/Co-Editors Öğr.Gör.Dr.Sema AY Öğr.Gör.Dr.Hilal YILDIRIR KESER Uygulama/Design Dr.Yusuf Budak Tarandığımız İndexler / Indexes Dergide yayınlanan yazılardaki görüşler ve bu konudaki sorumluluk yazarlarına ai=ir. Yayınlanan eserlerde yer alan tüm içerik kaynak gösterilmeden kullanılamaz. All the opinions wrien in articles are under responsibilities of the authors. None of the contents published cannot be used without being cited. Yayın ve Danışma Kurulu / Publishing and Advisory Committee Prof.Dr.Veysel BOZKURT (İstanbul Üniversitesi) Prof.Dr.Recai ÇINAR (Gazi Üniversitesi) Prof.Dr.R.Cengiz DERDİMAN (Uludağ Üniversitesi) Prof.Dr.Zeynel DİNLER (Uludağ Üniversitesi) Doç.Dr.Aşkın KESER (Uludağ Üniversitesi) Yrd.Doç.Dr.Emine KOBAN (Beykoz Lojistik Meslek Yüksek Okulu) Yrd.Doç.Dr.Ferhat ÖZBEK (Gümüşhane Üniversitesi) Yrd.Doç.Dr.Senay YÜRÜR (Yalova Üniversitesi) Dr.Sema AY (Uludağ Üniversitesi) Dr.Zerrin FIRAT (Uludağ Üniversitesi) Dr.Elif KARAKURT TOSUN (Uludağ Üniversitesi) Dr.Hilal YILDIRIR KESER (Uludağ Üniversitesi) Hakem Kurulu / Referee Committee Prof.Dr.Veysel BOZKURT (İstanbul Üniversitesi) Prof.Dr.Recai ÇINAR (Gazi Üniversitesi) Prof.Dr.Mehmet Sami DENKER (Dumlupınar Üniversitesi) Prof.Dr.R.Cengiz DERDİMAN (Uludağ Üniversitesi) Prof.Dr.Zeynel DİNLER (Uludağ Üniversitesi) Prof.Dr.Hasan ERTÜRK (Uludağ Üniversitesi) Prof.Dr.Erkan IŞIĞIÇOK (Uludağ Üniversitesi) Prof.Dr.Bekir PARLAK (Uludağ Üniversitesi) Prof.Dr.Ali Yaşar SARIBAY (Uludağ Üniversitesi) Prof.Dr.Şaban SİTEMBÖLÜKBAŞI (Süleyman Demirel Üniversitesi) Prof.Dr.Veli URHAN (Gazi Üniversitesi) Prof.Dr.Uğur YOZGAT (Marmara Üniversitesi) Doç.Dr.Hakan ALTINTAŞ (Sütçü İmam Üniversitesi) Doç.Dr.Hamza ATEŞ (Kocaeli Üniversitesi) Doç.Dr.Kenan DAĞCI (Yalova Üniversitesi) Doç.Dr.Kemal DEĞER (Karadeniz Teknik Üniversitesi) Doç.Dr.Bülent GÜNSOY (Anadolu Üniversitesi) Doç.Dr.Ömer İŞCAN (Atatürk Üniversitesi) Doç.Dr.Vedat KAYA (Atatürk Üniversitesi) Doç.Dr.Sait KAYGUSUZ (Uludağ Üniversitesi) Doç.Dr.Aşkın KESER (Uludağ Üniversitesi) Doç.Dr.Veli Özer ÖZBEK (Dokuz Eylül Üniversitesi) Doç.Dr.Serap PALAZ (Balıkesir Üniversitesi) Doç.Dr.Abdülkadir ŞENKAL (Kocaeli Üniversitesi) Doç.Dr.Sevtap ÜNAL (Atatürk Üniversitesi) Doç.Dr.Sevda YAPRAKLI (Atatürk Üniversitesi) Doç.Dr.Gözde YILMAZ (Marmara Üniversitesi) Yrd.Doç..Dr.Aybeniz AKDENİZ AR (Balıkesir Üniversitesi) Yrd.Doç.Dr.Doğan BIÇKI (Muğla Üniversitesi) Yrd.Doç.Dr.Cantürk CANER (Dumlupınar Üniversitesi) Yrd.Doç.Dr.Canan CEYLAN (Uludağ Üniversitesi) Yrd.Doç.Dr.Kadir Yasin ERYİĞİT (Uludağ Üniversitesi) Yrd.Doç.Dr.Burcu GÜLER (Kocaeli Üniversitesi) Yrd.Doç.Dr.Ferhat ÖZBEK (Gümüşhane Üniversitesi) Yrd.Doç.Dr.Emine KOBAN (Beykoz Lojistik Meslek Yüksek Okulu) Yrd.Doç.Dr.Ceyda ÖZSOY (Anadolu Üniversitesi) Yrd.Doç.Dr.Senay YÜRÜR (Yalova Üniversitesi) PARADOKS Ekonomi, Sosyoloji ve Politika Dergisi PARADOKS Economics, Sociology and Policy Journal Temmuz/July 2012 - Cilt/Vol: 8 - Sayı/Num: 02 Sayfa/Page: 63-82 Waste Trade and the Effectiviness of the Legal Arrengements for Tranfortier Movement of Hazardous Wastes Atık Ticareti ve Tehlikeli Atıkların Sınıtötesi Taşınımına İlişkin Hukuki Düzenlemlerin Etkinliği Dr. Yasemin KAYA Uludag University, Department of Public Administration Özet: Atıkların gelişmiş ülkelerden gelişmekte olan ülkelere transferi 1970’lerden buyana uluslararası toplumun gündeminde olan bir sorundur. Gelişmiş ülkelerde atık yönetim maliyetlerinin yükselmesi ve yeni kurulacak bertaraf tesislerinin tepki ile karşılanması neticesinde ortaya çıkan bu etik dışı faaliyet, bir takım yası dışı olay ve kazaların medyada geniş yer bulması ile birlikte kamuoyunun dikkati çekmiştir. Bu tip faaliyetlerin engellenmesine yönelik protesto ve baskılara karşılık olarak, atıkların sınır ötesi hareketine sınırlama ya da yasaklama getiren bölgesel ve küresel nitelikte çeşitli yasal düzenlemeler oluşturulmuştur. Ancak bu düzenlemelere rağmen, tehlikeli atıkların uluslararası ticaretinin artmaya devam ettiği görülmektedir. Özellikle miktarı giderek artan elektronik atıkların yoğun bir şekilde gönderildiği Afrika ve Asya ülkeleri bu konuda ciddi bir tehdit altındadır. Bu durum doğal olarak bu alandaki yasal düzenlemelerin etkinliğini tartışılır kılmaktadır. Bu bağlamda çalışmada Basel Sözleşmesi başta olmak üzere atık ticaretini düzenleyen temel yasal araçlar değerlendirilmekte ve bu düzenlemelerin söz konusu sorunun çözümüne ne derece katkı sağladığı/sağlayabileceği analiz edilmektedir. Anahtar kelimeler: atık ticareti, atık ticaretine ilişkin düzenlemeler, Basel Sözleşmesi, tehlikeli atık, atık yönetimi Abstract: Transfer of wastes from developed countires to developing countires has been a problem on the agenda of the international community since 1970s. This unethical practice that have emerged as a result of increase in the cost of waste management and public’s reaction to the new disposal facilities in developed countries have attracted the attention of the public due to a wide coverage of some illegal activities and accidents in the media. In response to the protests and pressures destined to prevent these types of practices, various regional and global arrangements aiming to restricting or banning the transboundary movement of wastes has been made. However, despite these arrangements, it is seen that the international trade of wastes have been on the rise. Especially African and Asian countries where increasing amounts of electronic wastes are transported have been under a serious threat. This naturally calls the effectiveness of the legal arrangements into question. In this context, in particular with Basel Convention leading the way, the basic legal instruments regulating waste trade are reviewed and it will be analyzed to what extent these arrangements can/will contribute to the resolution of the problem in question. Keywords: waste trade, waste trade regulations, Basel Convention, hazardous waste, waste management. www.paradoks.org 66 PARADOKS Ekonomi, Sosyoloji ve Politika Dergisi PARADOKS Economics, Sociology and Policy Journal 1. INTRODUCTION The transfer of hazardous waste from the developed countries to the developing ones has been a problem on the agenda of the international community for a long time. This particular problem defined by such terms as dirty trade or toxic colonialism can be seen as a new dimension of the pressure generated by the developed countries on the ecosystems of the developing countries. Waste trade is one of those areas in which concerns related to environmental justice becomes visible the most. This is because while this trade protects the developed countries from the hazards of the waste that they have themselves produced, it, on the other hand, take away the rights of developing countries to live in healthy and balanced environment. The amount of waste that has been on the increase especially in the last half century due to the changes in the pa=erns of production and consumption has made the waste management one of the important problems of states. Unless the waste is properly managed, it is likely to have some serious impact on the human and environmental health. Dumping the wastes haphazardly in the environment cause them to penetrate into the under and over ground water resources, mix into the soil and the atmosphere and eventually generate long term and irreversible damage (O’Neill, 2002: 3). Increase in the awareness of risks posed by the wastes brought along the demand for environmental protection and led to formation of strict environmental standards with regards to waste management. The cost of waste management has significantly increased due to these standards. The efforts to get rid of these wastes in an inexpensive manner that has taken place in the form of waste export form the developed countries to the Temmuz/July 2012 - Cilt/Vol: 8 - Sayı/Num: 02 developing ones has eventually generated a trade that represents a profit through an unethical transfer of risk due to the vulnerable economical position of these countries (Shin-Strohm, 1993: 226). However, these countries where the hazardous wastes are exported are, on the whole, administratively, technologically and financially incapable of managing them (Jurdi, 2002: 12). The unavailability of proper processing and disposal means in those countries in question poses a serious problem in terms of waste management. The process of making an a=empt by the international community in order to resolve the problem of waste trade has been initiated by the extensive media coverage of some illegal transfer of wastes into the developing countries.1 All these events have helped this issue to be brought to people’s a=ention on the national as well as international levels and initiated the international protests with regards to these kinds of incidents (Kummer, 1992: 53). In connection to the increase in the interest with regards to the environmental justice, some international arrangements were initiated to be formed. The problem of waste trade has been tackled initially on the regional scale and then through the regulations made by the OECD and the EU. Afterwards, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, the first most comprehensive and global convention in this field, has been adopted. Following the Basel Convention, some regional arrangements were made in order both to support the implementation of this Convention on the regional scale and to correct its weaknesses in terms of banning the waste trade. However, it has to be noted here that ma- 1 The fact that cargo ship Khian Sea with a load of 14.000 tons of toxic ash came from the state of Philadelphia in 1986 and dumped its load on the shores of Haiti, this news was extensively covered on the media (Tsimplis, 2001: 297; Lloyd 2008: 18). A similar case is the Koko beach accident. Thousands tons of toxic and radioactive wastes labeled as construction waste were shipped to Koko, Nigeria 1987 (Lipman, 2002: 67). www.paradoks.org Waste Trade and the Effectiviness of the Legal Arrengements for Tranfortier Movement of Hazardous Wastes king legal arrangements in relation to waste trade is a difficult ma=er since it is an economically and politically sensitive issue. Firstly, the solutions developed as a response to the problem have different impacts on the interests of the developed and developing countries. On the other hand, restrictions with regards to waste trade are perceived as interferences to the states’ rights of waste export and import and are reacted against. Naturally, all these problems turn the arrangements related to waste trade into regulations offering compromises that will hold the sensitive interests and preferences on balance. The compromise offers in question, on the other hand, prevent these arrangements from being powerful enough and effective. Based on this claim, the aim of this study is, by assessing the arrangements related to the waste trade, to analyze to what extent these arrangements can contribute to the resolution of the problem. Within this perspective, there will initially be an assessment of the reasons behind the hazardous waste trade and their scope and this will be followed by an analysis of basic arrangements in this field. 2. INTERNATIONAL TRADE IN HAZARDOUS WASTE The transfer of hazardous wastes from the developed countries to the developing one began as a general practice in late 1970s and continued to grow throughout the following decades. 95% of the total hazardous waste in the world is generated by the developed countries and a significant part of these wastes are imported to the developing countries either for recycling or for disposal (Clapp, 2001: 22). It is possible to collect the reasons behind why the developed countries export their wastes to developing countries under few headings. The most important reason constituting the source of the problem is the discrepancy in the costs of waste management stemming from the quality of the environmental standards. The strict standards developed as a result of increased con- cern over the risks posed by the wastes in the developed countries have significantly augmented the cost of waste management (OECD, 2008: 242). In fact, the fact that environmental standards are quite light in the developing countries, that there is no efficient legal legislation concerning this issue, that there is a low level of awareness about the hazards generated by the wastes and thus that there is no strong public opposition in this field lead to the disposal costs to stay at the minimum level (Lipman, 2002: 68). This discrepancy in the cost of waste management makes the waste trade an effective and a=ractive choice in terms of costs. Another reason triggering the waste trade is the reaction in the society against the disposal facilities to be established in the developed countries (Shin-Strohm, 1993: 227). This opposition defined as “not in my backyard syndrome” constitutes a serious obstacle with respect to the establishment of new disposal facilities in the developed countries. The other reason for the international transfer of hazardous wastes is the prospective value of the wastes for the developing countries in terms of recovery, reuse and recycling (Krueger, 2001: 44). This particular situation, at the same time, leads to the perception of waste as a commercial commodity and legitimizes the trade in question. Moreover, the rules and regulations regarding the globalization and liberalization of trade also have an important role to play in the rise of waste trade. The fact that countries have differing definitions of waste, the use of different register systems in imports and exports and because the majority of waste trade is done illegally, it is difficult to reach the exact and correct information about the extent of the international waste trade. However, while waste trade constituted 5.2% of the world trade in 1980, this percentage rose to 29% in 1993 (Krueger, 1999: 15). Even though the Basel Convention, the basic regulation regarding the cross-border transfer of hazardous waste, took effect in 1992, the fact that www.paradoks.org 67 68 PARADOKS Ekonomi, Sosyoloji ve Politika Dergisi PARADOKS Economics, Sociology and Policy Journal countries failed to decrease their waste production and the rapid increase in the electronic waste led to the increased continuation of this trade especially illegally. The reports of international organizations and NGOs operating in this field give us clues about the extent and direction of waste trade. For instance, in the inspections of IMPEL (Implementation and Enforcement of Environmental Law) formed as an informal network to inspect the implementation of environmental legislation in the member states and to enable them to harmonize with the union’s legislation, that it carried out between 2004 and 2009 in order to control the cross-border waste transfer, it was found that there were some serious problems of harmony regarding the legislation in this field. In the inspections performed in 13 EU countries between September 2004 and May 2006, it was found that 26% of the total physically controlled transport contained waste, 51% was illegal and 43% contained some administrative infractions (IMPEL, 2006: 10; OECD, 2008: 243). In the inspections performed between 2006 and 2008, on the other hand, it was found that 15% of the total controlled transport was waste and 15% was against the legal regulations. In the inspections performed in 26 European countries between October 2008 and May 2009, it was found that 24% of the total transport contained waste and nearly 20% of waste transport was against the regulations (INECE, 2009: 8). INECE (International Network for Environmental Compliance and Enforcement), another international organization established to enable the states to fulfill their international environmental responsibilities, performed some harbor inspections in June and July of 2010. It was found in these inspections that 53% of the hazardous waste transports were against the basic legal regulations (INECE, 2010: 10). Besides, in the waste-transport related research Temmuz/July 2012 - Cilt/Vol: 8 - Sayı/Num: 02 reports of NGOs such as Basel Action Network (BAN), a civic initiation established to enable the implementation of the Basel Convention and Greenpeace; it was found that those reports contained many illegal incidences.2 The most important aspect of waste trade, without a doubt, is that these wastes are exported to those countries that are unable to manage them adequately. The investigations carried out by revealed that some important part of the illegal waste transport were made to the developing regions such as Africa and Asia (IMPEL, 2005: 34-36; OECD, 2008: 243). In the reports prepared by INECE, it was revealed that wastes were mostly transferred to from America to Asia and from Europe to West Africa and Asia (INECE, 2010: 14). The Greenpeace reports revealed that tons of hazardous waste containing computer and other metal pieces were dumped in China and these wastes were recycled through unsafe methods (such as dismantling them by hand). Besides, it is possible to trace many incidences from the Greenpeace reports that hazardous wastes were illegally dumped in Africa (Abidjan/Ivory Coast, Guinea Bissau) and India (Delhi, Bhopal) (h=p://www.greenpeace.org/international/ 24.12.2011). In the investigations carried out by the Basel Action Network, many illegal incidences of especially e-waste transfers to Asia and Africa were encountered (h=p://www.ban.org /toxic-trade-news/ 24.12.2011). The illegal transfer of hazardous wastes to developing countries became a topic on the agenda of the international community in the 1980s and from mid 1980s, many legal arrangements both at regional level and at global level aimed at tackling this problem were made. However, the increase in the number of incidences of the illegal transfer of hazardous wastes has naturally made the efficiency of these arrangements controversial. In this connection, in the rest of this 2 Available from: h=p://www.ban.org/toxic-trade-news/; h=p://www.greenpeace.org/international/en/publications/reports/ (Accessed 24.12.2011). www.paradoks.org Waste Trade and the Effectiviness of the Legal Arrengements for Tranfortier Movement of Hazardous Wastes study, an a=empt will be made to analyze the basic arrangements in this field and their capacity to constitute a solution to the problem of illegal waste trade. 3. REGULATIONS OF OECD AND EU FOR TRANSFRONTIER MOVEMENT OF WASTES The legal regulations and arrangements regarding the transfrontier movement of hazardous and other wastes have been made within the body of OECD and EU. OECD took a council decision in 1984 with respect to control of the movement of wastes between the member states. Similarly, The Directive on Transfrontier Shipment of Hazardous Waste was prepared within the EU in 1984 on the movement of waste between the member states. Both regulations evolved in 1988 into a form in which they started to include trade with third countries as well. Similar regulations of OECD and EU impose an obligation of prior notification for the waste trade between the member states. In compliance with this obligation, a member state is to notify the other member state of her intention of waste transport. The competent authority of the recipient state could object to proposed transaction with one month of receiving the notification; the directive thus incorporated the concept of tacit consent. Nonetheless, trade with the third countries requires prior notification and wri=en consent (Kummer, 1995: 126161; Clapp, 2001: 39). OECD developed a new system in 1992 aimed at controlling the transfrontier movement of waste for the purposes of recycling. According to this system, wastes were divided into different categories and a different control procedure for each category was determined. This system was exactly adopted in the 1993 EU Regulations on Shipments of Waste. This system divide wastes destined for recycling into three categories, known as “red, amber and green”. The wastes in the “red list” are considered the most toxic wastes. These wastes are subject to strict prior notification procedures including wri=en consent of the importing country before they can be exported. The wastes in the “amber list” are seen to be potentially hazardous but less risky than red wastes. These amber wastes are subject to a more limited prior notification procedure. Notification of export must be given, but consent can be tacit rather than in writing. The wastes in the “green list” wastes are regarded as safe and are not subject to the prior notification procedure but are governed by rules of normal commercial transaction. While OECD implemented this system for the trade between the member-states, EU resort to this system for trade with the third countries3 (Clapp, 2001: 60). Based on OECD’s 2001 Council Decision, the waste lists were downgraded to two lists of green and amber. This change in the OECD’s Council Decision was adopted by the EU’s 2006 dated Regulation on Shipments of Wastes as well. In parallel to prior regulations, the wastes in green list are subject to regular transfrontier trade rules. For the wastes in amber list, the procedure of prior notification prevails. In the new regulations, the wastes whose exports are banned, on the other hand, are classified as a separate list (EU, 2011; OECD, 2011). The main discrepancy between EU and OECD regulations and the Basel Convention is that they envisage different procedures for the wastes transferred for the final disposal and for recycling. The transfrontier movement of wastes for the final disposal between the member states is subject to prior notification consent of the Basel Convention. However, a simplified procedure is adopted for the trade of recycling without making any difference between hazardous and non-hazardous wastes. While direct trade regulations 3 OECD countries, contracting states of Basel Convention and those countries with which a special agreement was made based on the article 11 of Basel Convention. www.paradoks.org 69 70 PARADOKS Ekonomi, Sosyoloji ve Politika Dergisi PARADOKS Economics, Sociology and Policy Journal prevail for the transfrontier movement of some wastes, a tacit consent is accepted for some others. In the current EU and OEDC regulations, the transfer of wastes to third countries for the final disposal has been banned. However, for the transfer of wastes to the third countries for the purpose of recycling, prior notification consent procedure of the Basel Convention is implemented. Unlike the Basel Convention, the main purpose of the regulations in question is not to minimize the transfrontier trade of wastes. The purpose of these regulations is to set up a monitoring system regarding the waste trade and establish a less strict control system for the trade of recyclable wastes (Kummer, 1995: 167-168). 4. THE BASEL CONVENTION The Basel Convention on the Control of Transfrontier Movement and Disposal of Hazardous Wastes, which is the most comprehensive arrangement on a global scale for the management of hazardous and other wastes, was adopted on the March 22nd, 1986 and took effect in 1992. The Convention to which 178 countries are a party, aims to protect human health and environment against the detrimental effects likely to stem from the generation, management, transfrontier movement and disposal of hazardous and other wastes (SBC, 2008a: 1).4 For the realization of this objective, the scope of activity of the Basel Convention can be considered under the framework of four headings. These are; minimizing the generation of hazardous wastes, supporting the environmentally sound management of hazardous wastes, ensuring the disposal of hazardous wastes in the closest area where they are generated and scrutinizing the transfrontier movement of hazardous wastes and minimizing it (Sand, 1992: 328). The Basel Convention constitutes a comprehensive and dynamic regime in terms of Temmuz/July 2012 - Cilt/Vol: 8 - Sayı/Num: 02 regulating the transfrontier movement of hazardous wastes and ensuring their environmentally sound management and disposal. However, the underlying basis of the Basel Convention is to prevent the illegal transfer and dumping of wastes from the developed countries to the developing ones (SBC, 2008b). Therefore, it is possible to say that issues related to this problem were mainly dealt with throughout the debates and the contract text took its existing shape within the context of this problem. Since Basel Convention was constituted as a response to the increasing reaction of international community against the dumping of into the developing countries, the main purpose of discussions was how to eliminate these types of activities in the future (Kummer, 1998: 227). The debates of Basel Convention were very tough and contentious. The main point of discussion throughout the debates stemmed from the fact that developed and developing countries had different preferences and demands for the control of transfrontier movement of wastes. While developing countries supported a stance of a total global ban on this issue, the developed countries focused on the choice of a controlled waste trade. Especially, the demand of many developing countries comprising the Organization of African Unity (OAU) for a total ban of hazardous wastes for all their movement throughout the world was strongly supported by many non-governmental organizations. However, many industrialized countries, on the other hand, refused to agree on the criterion that would introduce restrictions on the waste and recyclable metal trade by focusing on the choice of controlled waste traffic (Kummer, 1992: 536). This conflict blocked a serious consideration of a total ban on that day and the demand for a ban was not included in the Convention Instead, a monitoring system based on the criterion of prior informed consent was 4 The text of the Basel Convention can be accessed through the following address; h=p://www.basel.int. www.paradoks.org Waste Trade and the Effectiviness of the Legal Arrengements for Tranfortier Movement of Hazardous Wastes included in the Convention (Kummer, 1998: 227). The regime formed by the Convention regarding the transfrontier transfer of wastes can be examined within the framework of a binary division of situations, in which waste transfer is banned, of one, and of situations, in which it is subject to wri=en permission, of the other. The Basel Convention principally has banned waste transfer in some certain situations. In other situations, on the other hand, it is possible through a controlled manner based on the procedure of prior informed consent. According to the Convention, the following are the situations in which waste transfer is banned: - The party that has banned the import of hazardous and other wastes cannot export them either.5 - It is not allowed to export hazardous and other wastes to the party that is unable to provide an environmentally safe management of them.6 - The waste trade between the countries that are not a party of the contracting states is not allowed.7 - It is prohibited to transfer hazardous and other wastes for disposal to the regions that are in the south of the 60 degrees south latitude. According to the Convention, the export of hazardous wastes can only be allowed if the exporting country does not have the technical capacity and experts to dispose the waste in environmentally sound manner and if the importing country needs the waste as raw material for recycling and recovery (Art. 4/9a and 4/9b). The waste transfer can be possible through the prior informed consent procedure as stated in article 6 of the Convention. Waste transfer carried out in violation of the terms and conditions of the Convention is regarded as illegal. The prior informed consent procedure constitutes the basis of control regime generated by the Basel Convention and waste trade between the parties can be materialized based on this procedure. According to this procedure, the exporting country is obliged to inform the importing country and the transit countries of the expected transboundry movement of hazardous and other wastes. This information should be detailed enough to enable the authorities of importing and transit countries to assess the nature and risks of the expected transboundry movement. The importing state is to send to the notifying party in writing whether it conditionally or unconditionally consents to the movement in question; whether it refuses to allow for it or whether it requires additional information. In her response, the importing state should confirm that a contract has been signed between the exporting party and the disposing party over the environmentally sound management of wastes. Moreover, transboundry movement of hazardous and other waste will be subjected to insurance, 5 Article 3 of Basel Convention entitles contracting states the right to ban the entry of hazardous wastes into their countries, in accordance with their national regulations, even if they are not listed in the Convention (Art.3/1). Those parties that exercise this right will notify the Secretariat of the Convention and exporting countries will ban the export of waste in question to the country concerned (Art.4/1a-b). 6 According to the provisions of Basel Convention (Art. 4/2e), exporting countries should not allow for the export of wastes if there is evidence that waste transfer would not be managed in an environmentally sound manner. However, due to the lack of necessary inspection and monitoring mechanisms, this provision has not been operative in practice. 7 Article 11 of Basel Convention entitles contracting states to have bilateral or multilateral agreements with non-contracting countries as long as they are consistent with waste management provision of the Convention. According to these agreements, the waste transfer made is exempt from the provisions of Basel Convention. www.paradoks.org 71 72 PARADOKS Ekonomi, Sosyoloji ve Politika Dergisi PARADOKS Economics, Sociology and Policy Journal warrantee or any other form of assurance that the importing state or the transit state sees as required (Art. 6/1–6/4 and 6/11). In fact, this particular regulation is quite detailed. In spite of this, some of the gaps may create problems. For instance, exporting state does not have any obligation to confirm the content of the contract signed between the exporter and the disposer over the environmentally sound management of wastes. Transboundary movement may be initiated by the confirmation of the existence of the contract in question. And this makes whether the wastes will in reality be managed in an environmentally sound way uncertain. Moreover, since the concept of ‘environmentally sound management’ has not been clearly defined in the Convention, there is still uncertainty what the content of the contract should be (Kummer, 1992:548). Another subject that weakens the control regime constituted by the Convention is the agreements signed in accordance with the article 11. According to this article, the parties can sign bilateral, multilateral or regional agreements or make arrangements with the party or non-party states on the condition that they are not against the environmentally sound management of wastes provisions of the Basel Convention. These agreements and arrangements should be at least powerful as the provisions of the Basel Convention in terms of the environmentally sound management of wastes. The second paragraph of the article is related with the agreements that took effect before the Basel Convention. The parties can only implement the agreements on that condition that they comply with the environmentally sound management of wastes provisions of the Basel Convention. In this case, the provisions of Basel Convention, on the grounds of the concerned agreement, will not impinge on the transboundary movement performed. Article 11 has always been a source of conflict since the Convention took effect. Both the content and wording of the concerwww.paradoks.org Temmuz/July 2012 - Cilt/Vol: 8 - Sayı/Num: 02 ned article has created some serious conflicts. Of course, the most important reason is that the article refers to a serious gap with regards to agreement regime. If the conditions in article 11 are met, the Basel Convention will not be affected by the transboundary movement based on such agreements. This will both clear the way for the trade with non-party states banned by the Basel Convention and weaken the required control regime needed by the contracting parties. Since the Basel Convention took effect, the debates for more limitations over the transboundary movement of hazardous wastes has never been out of the agenda (Lawrence, 1998:249). Since waste trade is economically and politically sensitive subject, no regional or global trade ban has been included in the text of the Convention and the ‘prior informed content procedure’ has actually been constituted as a consensus resolution. As a result of a pressure to introduce more strict limitations on this subject, it was decided on the 3rd Conference of Parties in 1995 that the Convention would be amended to include a provision of a ban on waste transfer (SBC, 1995). This amendment became concrete with the addition of a new provision (Article 4a) and a new annex (Annex 7) in the Convention. In accordance with this ban amendment, it was prohibited to transfer hazardous wastes for the purposes of disposal and recycling from those countries in Annex 7 (EU, OECD and Liechtenstein) to those not in Annex 7. This decision is an important step taken to prevent the victimhood of the southern countries stemming from waste transfer, which is the main reason behind the Convention. Although it has been a long time since the decisions taken in 1995, the ban amendment has not yet taken effect. For the amendment to take effect, it needs to be signed by the three quarters of the contracting countries. It has currently been signed by 70 countries. The reason why the ban amendment has been delayed for so long can be a=ributed to Waste Trade and the Effectiviness of the Legal Arrengements for Tranfortier Movement of Hazardous Wastes the criticisms and to the problems likely to come from this ban. These criticisms and problems can be summed up as in the following (Wirth, 1998: 239; Krueger, 1999:15; OECD, 1999: 121-132); - The Ban Amendment has been far from creating a consensus between the contracting parties: Countries, for their own interests, approach the subject of banning differently. Apart from the differentiation between the developed and developing countries, even the developing countries presumed to think that the ban is in favor of them, approach the subject of a ban differently. For instance, such countries as China, India, Brazil, Malaysia, Indonesia, Philippines that have the recycling industry, do not lean towards the ban amendment. Therefore, it is somewhat difficult to convince countries with different self-interests to adopt the same amendment. - Clarifying the waste definitions: since ban amendment, unlike the original Convention, is to be applied only to hazardous wastes, it is an important question to know which wastes will be regarded under this ban. In order to overcome this problem, the Convention has added two new lists to the existing waste lists. However, it is still a controversial question as to under which conditions a waste will be characterized as a hazardous waste. - The countries where the ban will be implemented: The ban amendment comprises the waste trade between the north-south countries; however, it excludes the aspects of this trade including north-north, southnorth and south-south countries. It is one of the principle objectives of the Basel Convention to reduce the transboundary movement of wastes and to ensure the disposal of the waste as near as possible to the center where it is generated. However, it does not seem as if the ban amendment with its current form will serve sufficiently to fulfill the objective in question. It is simply because, even though the ban amendment reduces the transboundary movement of wastes, it will lead to the change of direction of most of this trade (OECD, 1999: 121). These circumstances, naturally, are interpreted as a state which is against objectives of the Convention and rationale of the ban. - The relation between Ban Amendment and article 11 agreements: It is uncertain whether it would be legal for the countries to implement this ban in order to earn immunity from this ban and this uncertainty weakens the power and efficiency of the ban. - The question of determining criteria for the membership of Annex 7: It is a question that has created heated debates between the contracting parties to include new members into Annex 7 and to determine more specific criteria for this annex. Some of the contracting states, in relation to the Annex-7 membership, objected to a possible expansion claiming that adding new countries will endanger the ban. It is a sufficient criterion for these countries to be a member of OECD. Some of the contracting states, on the other hand, argued that a criterion based on a membership of economic organization like OECD could not be a basis for a ban. It is simply because many states that are not members of OECD have equal technical, legal and institutional conditions just with the OECD members in terms of the management capacity of hazardous wastes. Therefore, even though these countries have environmentally sound recycling facilities, they will have been penalized by this ban with the interruption of supply of OECD. For this reason, if a country wishes to import waste from Annex 7 countries for recycling purposes, it should be able to be added to the Annex 7. Another drawback of limiting Annex 7 only to OECD countries is that countries such as Monaco, Slovenia and Israel have been excluded from the recyclable waste trade with the developed www.paradoks.org 73 74 PARADOKS Ekonomi, Sosyoloji ve Politika Dergisi PARADOKS Economics, Sociology and Policy Journal countries, which will eventually lead to export of the waste of those countries in question to the developing countries for recycling. This is a situation that creates problems on both fronts. First of all, this will damage the main objective of the ban whose purpose is to protect the developing countries from the developed one against the import of hazardous wastes. On the other hand, allowing this group of developed countries (those not included in Annex 7) in such as way to constitute a problem according to rules of the World Trade Organization (WTO), to have trade with developing countries will create an imbalance between this group of countries and OECD members (Kummer, 1998: 230). To state more clearly, OECD membership is not an appropriate criterion. However, since the debates aimed at determining new criteria did not bear fruit, it was decided that there would be any change in the composition of Annex 7 until the ban amendment took effect in the 4rd Conference of Parties (SBC, 1998). - Banning the recycling trade: Maybe the most important problem related to ban amendment is that it does not differentiate between the transfers of wastes for recycling and disposal. The parties in general are not against the ban of transboundry trade of wastes for final disposal. However, the fact that this ban amendment includes recycling trade as well leads to serious criticism and heated debates. As is commonly known, since the process of recycling amounts to the reuse of the resource, it is vitally important for the efficient use of the resources and sustainable development. From this fact, it is argued that the ban is in contradiction to the basic principles of sustainable development (Alter, 1997: 30). Another criticism about this subject is that ban amendment is to create an adverse impact on the economies of those countries with a recycling industry (Lipman, 2002: 69). Imposing such a ban countries with a recycling industry despite their www.paradoks.org Temmuz/July 2012 - Cilt/Vol: 8 - Sayı/Num: 02 opposition also constitutes interference into their right of sovereignty in complying with their importing hazardous wastes (Lipman, 2002: 71). As a ma=er of fact, the Basel Convention supports recycling. However, it prohibits recycling-oriented waste trade. It is because this trade does not take place under appropriate circumstances. For once, most of the countries to which hazardous wastes are transported for recycling purposes, do not have the capacity to manage these wastes safely in terms of environment and human health. Therefore, the trade in question constitutes a serious threat for developing countries in terms of environment and human health. On the other hand, allowing for hazardous waste trade for recycling purposes is to increase sham practices regarding waste trade and to render the ban meaningless. According to Onyerikam, the regulations regarding the recyclable wastes are crucial in terms of preventing the sham practices of some states. Had the recyclable wastes not been included within the scope of the ban, the parties would have avoided complying with the Convention by faking their own hazardous wastes as recyclable ones (Onyerikam, 2007: 11). In a word, the Basel Convention supports recycling, but bans waste trade for recycling purposes. In this way, the costs of the hazardous wastes will have to be met by those that generate them, reducing the waste production will be encouraged, the possible transportation risks will diminish and the developing countries will be saved from having to be exposed to this pollution. However, when we compare this ideal situation with the existing reality, we see that we are faced with a serious conflict rather than compliance. Due to the high costs of disposal and their unwillingness to establish a disposal facility, it was highlighted before that developed countries opted for the choice of transferring the wastes especially to developing countries and thus, were already against the idea of a ban. On the other hand, Waste Trade and the Effectiviness of the Legal Arrengements for Tranfortier Movement of Hazardous Wastes most of the developing countries are against the ban anyway. Especially countries such as China, Brazil, India, Malaysia and Philippines that are dependent upon recycling industry are to lose their potential resources regarding the secondary materials; hence they will be damaged (Krueger, 1999, 15). These realities have an adverse impact on the effectiveness of the Convention and lead to its weakening in favor of serving for the interests of powerful parties rather than protecting the interests of the environment. This particular situation can easily be seen through the provisions creating a gap in the Convention as well as the weakness in its institutional structure. However, it has to be accepted that the Basel Convention today is the most comprehensive and most important international environmental agreement regarding the hazardous wastes (Choksi, 2001: 518). Even though the Basel Convention does not offer any exact resolution to the problem of transboundary movement of hazardous wastes and their safe disposal, it is an important step taken in the right direction since it points to almost all the dimensions of the problem (Kummer, 1992: 560). The Basel Convention that has brought the export of hazardous wastes on the international agenda, it has greatly supported the creation of a political pressure on the exporting countries to put an end to their practices. All in all, even though it is not available in the text of the Convention, a tacit ban has been introduced regarding the export of hazardous wastes from North to the South (Krueger, 1999: 12, 48). Nonetheless, the Basel Convention has been criticized by some developing countries and environment organizations by a=racting public a=ention on some of its shortcomings and drawbacks. First of those criticisms is that the Convention has some ambiguous and indefinite provisions. The concept of environmentally sound management and hazardous waste lists are the most striking subjects in this context. Another criticism regarding the Con- vention, on the other hand, is that it does not envisage a total ban with respect to transboundary trade. As is known, regarding the transboundary movement of the waste in the initial text of the Convention, there is a restricted ban that includes the trade with nonparty states and the transfer of wastes to Antarctica. The ban amendment adopted in 1995, on the other hand, comprises only north-south dimension of waste transfer. Therefore, Basel Convention fails to envisage a total ban on a global scale. An important drawback of the Convention is the insufficiency of the mechanisms envisaged to monitor, prohibit and penalize the illegal traffic (Jurdi, 2002: 10). The main responsibility of locating and penalizing the illegal traffic is on the contracting countries. However, majority of the contracting countries do not have the required capacity in this subject. An important criticism regarding the Convention within the context of article 11 is that waste trade is allowed through bilateral and multilateral agreements. Restricting the power of the Convention Secretariat and especially its function of inspection is another drawback of the Convention. As is known, a powerful secretariat is crucially important in the implementation of multilateral environmental agreements and ensuring the contracting states to comply with them. However, it is difficult to talk about a powerful secretariat in terms of institutional and functional aspects in the Basel Convention. Especially, by-passing the Secretariat in the “prior notification procedure” creates a significant gap in terms of monitoring and inspecting the waste transfer (Kummer, 1992: 562). Another criticism directed at the Convention is that there are some missing conditions regarding the meeting of the costs of possible accidents during the transboundary transfer of wastes. The failure to determine the responsible party in the case of an accident or lack of required financial resources of the responsible party or se=ing up a response fund to meet the financial damages of www.paradoks.org 75 76 PARADOKS Ekonomi, Sosyoloji ve Politika Dergisi PARADOKS Economics, Sociology and Policy Journal the party suffering from the accident in the case of an emergency are all crucially vital issues for the Basel Convention (Choksi, 2001: 518). The other problem related to this issue is to establish the responsible party and to decide on the compensation. In the 4th Conference of Parties’ held in 1999, a Protocol was adopted in respect of Liability and Compensation. Since Liability and Compensation Protocol has not been adopted by required number of parties, it has not yet taken effect. Basel Convention is principally an agreement that depends upon the contracting states regarding the implementation of the Convention. The Convention essentially determines the basic objectives and principles, but leaves the main responsibility up to the contracting states in their implementation. According to the Basel Convention, all the contracting countries are liable to fulfill the necessary legal obligations and take the required measures to comply with it. However, the compliance of the contracting states is a ma=er of both willingness and capacity. Some contracting states of Basel Convention may avoid compliance deliberately and intentionally. Some other contracting states, on the other hand, due to financial and institutional inabilities, fail to fulfill the obligations of the Convention. Overcoming these problems depends on the fact that the Convention has an institutional structure. However, it is difficult to say that Basel Convention has a powerful institutional structure. For instance, it is insufficient to detect the non-compliance of a monitoring and inspection mechanism based on the self-reports arranged by the contracting states for themselves (Shibata, 2003: 183-186). Article 19 of Basel Convention entitles the contracting states to notify the secretariat of the non-compliance claims about one another. However, it is uncertain how this notification is to be considered. Besides, due to the reluctance of the contracting states to express the claims of the non-compliance about one another, it seems to be difficult for this article to become funcwww.paradoks.org Temmuz/July 2012 - Cilt/Vol: 8 - Sayı/Num: 02 tional. The compliance mechanism generated in 2002 in order help the contracting states to comply with the Convention, on the other hand, is far from being an effective instrument in detecting non-compliances within the context of restricting the functions regarding monitoring and inspection (Shibata, 2003: 186-193). On the other hand, in the case of any non-compliance, there is no any obligatory mechanism of disputes se=lement and enforcement that will enable to overcome this non-compliance and oblige the concerned party for compliance. Besides, financial and technical support and incentive mechanisms to ease the parties’ compliance with the Convention are somewhat insufficient as well. All these problems, naturally, lead to the contracting countries to have a low level of compliance and weaken the effectiveness of the Basel Convention. 5. REGIONAL ARRANGEMENTS There are many arrangements composed regarding the management of hazardous wastes and their transboundry control both before and after the Basel Convention. The arrangements made within the framework of OECD and EU can be regarded as the pioneer arrangements that have become the basis of Basel Convention. The agreements made after the Basel Convention, on the other hand, can be seen as arrangements that support the implementation of the Convention on a regional scale. These regional agreements made for the management of hazardous wastes and their transboundry control are those that are assessed within the context of the article 11 of Basel Convention. The agreements in question also constitute, with the Basel Convention, the basis of the legal regime set up with regards to hazardous wastes all over the world. Main types of these arrangements are the IV. Lome Convention composed between EU and African, Caribbean and Pacific (ACP) states, the Bamako Convention made between the member countries of the Organization of African Waste Trade and the Effectiviness of the Legal Arrengements for Tranfortier Movement of Hazardous Wastes Unity (OAU), the Waigani Convention made between pacific region countries and the Izmir Protocol as an annex of Barcelona Convention between countries with a shore on the Mediterranean (Cubel, 1997: 450-451). 5. 1. IV. Lome Convention In 1989, the EC and its member states, and sixty nine ACP states concluded the Fourth Lome Convention. The Convention came into force in 1991. The Fourth Lome Convention is a co-operation treaty. It does not only focus on environmental issues. It is an aid and trade agreement between EU and the ACP states. Nonetheless, the Fourth Lome Convention devotes a section to environmental ma=ers; particularly, it devotes Article 39 as well as annexes VIII, IX and X to the issue of transboundary movement of hazardous wastes. The Fourth Lome Convention was the first binding agreement between developed and developing nations banning transboundary movements of hazardous waste and nuclear waste (Kummer, 1995: 107; Clapp, 1994: 513; Cubel, 1997: 458). The agreement bans all shipment of hazardous or radioactive wastes from EC countries to ACP countries. In addition, the ACP countries agreed not to import any wastes from non-EC countries. The Lome Convention was the first international treaty to ban the trade in radioactive wastes and the first commitment by EC countries to ban hazardous waste exports. (Harjula, 2006: 468). Fourth Lome Convention imposes imbalanced obligations on EU and ACP nations. It prevents EU states from exporting hazardous wastes to ACP nations, but it does neither affect intra-EU hazardous waste traffic nor EU exportation to non-ACP nations. However, Article 39 prohibits ACP nations from directly or indirectly importing into their territory waste from the EU or from any other nation (Cubel, 1997: 459). According the this obligation, whereas ACP states must prohibit imports from the EU and from any other states, EU members must prohibit export to ACP states only, but may continue to export to third states (Kummer, 1995: 108). 5.2. The Bamako Convention Another arrangement on this subject is the Bamako Convention that prohibits the Import of Hazardous Wastes to Africa, and Control and Management of the Transboundary Movement of Hazardous Wastes in Africa. The Bamako Convention was adopted in January 1991 and entered into force in April 1998. The Convention was convened under the auspices of the Organization of African Unity (OAU) that includes every African nation except South Africa and Morocco (Harjula, 2006: 468). The Bamako Convention was negotiated as a result of the dissatisfaction of African countries with the Basel Convention and the increased transportation of hazardous wastes to the continent (Eguh, 1998: 256). Since the Basel Convention did not ban every type of transboundary movement of hazardous waste, African states considered it a futile legal instrument to be used by industrialized nations to legitimize their waste exports. Therefore, the OAU instigated the adoption of a regional treaty for transboundary movements of hazardous waste (Cubel, 1997: 455). The two main aims of the Bamako Convention were determined, firstly as a common commitment by African states to prohibit the import of hazardous wastes into the continent and secondly, the establishment of a regime for the management of hazardous wastes generated within Africa (Kummer, 1995: 100). The text of the Bamako Convention closely mirrors that of the Basel Convention in some respects, but for the African countries, it is an important improvement on the la=er. It imposes an outright ban on the import of hazardous wastes, including radioactive wastes, into African countries. The Bamako Convention also bans all forms of ocean dumping of wastes; outlaws the import of hazardous substances that have been banned in the country of manufacture; and includes provisions on clean production methods within Africa (Clapp, www.paradoks.org 77 78 PARADOKS Ekonomi, Sosyoloji ve Politika Dergisi PARADOKS Economics, Sociology and Policy Journal 2001: 49). The Convention requires each Party to impose strict, unlimited liability as well as joint and several liabilities on hazardous waste generators (Eguh 1998: 257). The scope of waste covered by the Bamako Convention is wider than that of the Basel Convention. The Bamako Convention requires parties to prohibit the import, for any reason, of all hazardous and nuclear wastes from noncontracting parties. As only OAU member states may become parties to the Convention, it amounts to a ban on imports of hazardous wastes generated outside the African continent. However, it also prohibits Bamako parties from importing hazardous wastes from OAU member states which have not acceded to the Bamako Convention (Kummer, 1995: 101). Bamako Convention provides a highly detailed and ambitious regime, incorporating a number of innovative and potentially effective concepts. Its implementation, however, will require significant technical, personnel, and financial resources. In view of the limited capacities of most African states in this respect, the question of successful implementation imposes itself even more strongly than in the case of the Basel Convention (Louka, 1994: 52). 5.3. The Waigani Convention The Waigani Convention adopted in September 1995 and took effect in October 2001, on the other hand, is the other regional arrangement that bans the import of hazardous wastes to the developing countries in the Pacific region. The Parties of the Waigani Convention are: Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, New Zealand, Papua New Guinea, Samoa; Solomon Islands and Tuvalu. The objectives of the Convention are to reduce or eliminate transboundary movements of haz¬ardous and radioactive wastes into and within the Pacific region; to minimize the production of hazardous and toxic wastes in the Pacific region; to ensure that disposal of wastes is done in an environ¬mentally sound manner www.paradoks.org Temmuz/July 2012 - Cilt/Vol: 8 - Sayı/Num: 02 and as close to the source as pos¬sible; and to assist Pacific island countries that are Parties to the Convention in the environmentally sound management of hazardous and other wastes that they generate (Harjula, 2006: 469; SPREP, 2008). According to general obligation of the Conventions, Parties should ban the import of hazardous and radi¬oactive wastes. They should minimize the production of hazardous wastes and cooperate to ensure that wastes are treated and disposed of in an environmentally sound manner. The main contribution of the Convention is the establishment of a system to prevent hazardous and radioactive waste entering or being dumped in the region. 5.4. The Barcelona Convention and Izmir Protocol Nineteen countries in the Mediterranean region agreed in late 1993 to negotiate a protocol banning the waste trade within the framework of the existing Barcelona Convention for the Protection of the Mediterranean Sea against Pollution (1975). This agreement came following a decision in 1991 of the parties to the Barcelona Convention to establish a working group of experts to draft this protocol. The result was the Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and Their Disposal, known as the Izmir Protocol, which was adopted in 1996 in Izmir, Turkey. The protocol came into force in 2008. The protocol calls for protecting of the Mediterranean Sea from hazardous waste by banning the trade and transit of hazardous wastes and their disposal (including wastes destined for recycling) between industrialized and developing countries in the region (Clapp, 2001: 50). The protocol incorporates aims and provisions similar to those of the Basel and Bamako Conventions. It calls for prohibition of hazardous waste export from developed to developing countries within the Mediterranean region, but does not explicitly ban the Waste Trade and the Effectiviness of the Legal Arrengements for Tranfortier Movement of Hazardous Wastes import of hazardous wastes from non-parties into the region. CONCLUSION Transfer of hazardous wastes to developing countries, far from being an environmental problem, has long been on the agenda of the international community as an economical and political problem. Waste trade, before anything else, is a problem that has to be considered multidimensionally, is sensitive and has dilemmas. Firstly, the problem in question triggers inequalities and tensions existing between the north and south countries. Secondly, waste trade has a direct impact on the economical interests of countries. Thirdly, this problem brings along the conflict between the arrangements that imposes some commercial restrictions with the intent of environmental protection and free trade rules. Finally, restricting waste export and import brings up the conflict between the international rules aiming at protection of the environment and the sovereignty rights of countries to the agenda. The multidimensional and complex nature of this problem necessarily complicates the resolution of this problem as well. These arrangements to be composed regarding the waste trade should, firstly, balance off these dilemmas. This necessity prevents the arrangements in this subject from generating powerful resolutions aimed at the crux of the problem and leads to arrangements that will offer consensus solutions balancing off sensitive self-interests. It is really observed that the basic arrangements in this subject have introduced only limited or partial bans. For instance, in the EU and OECD arrangements, even though waste transfer for the purpose of final disposal has been banned, it is observed that waste transfer for the purpose of recycling is clearly supported. Although Basel Convention, the principle arrangement in this subject, does not discriminate between the waste transfer for the purpose of final disposal and recycling, it still envisages a partial ban on waste trade. In the initial text of Basel Convention, only waste trade with the non-contracting states and transfer of wastes to Antarctica was banned. However, Article 11 of the Convention creates a serious gap with regards to banning waste trade with non-contracting states. The ban amendment adopted in 1995, on the other hand, only encompasses the north-south dimension of waste trade, but has not taken effect yet. In the regional trade regimes comprised of African countries together with Pacific countries, it is generally observed that unilateral bans focusing on export or import have been adopted. On the other hand, monitoring, inspection and sanction mechanisms of both Basel Convention and other regional arrangements have been extremely weak. Therefore, it is difficult to state that the arrangements in question have the capacity and power to ban the transport of waste to developing countries. The basic issue that leaves the problem of illegal dumping of wastes to developing countries unse=led is the pressure that the waste trade for recycling should continue. As is known, there has been a ban, even though tacit, on banning the transfer of wastes to developing countries for final disposal and countries in general are not against this ban. However, especially developed countries and the developing countries with a recycling industry are against banning of recyclable wastes. However, allowing this trade is likely to increase fake practices. Some states, by this way, may get away with avoiding the ban by labeling their own wastes as recyclable material. However, recycling practices performed under inappropriate conditions are likely to create consequences that are at least as adverse as disposal process. Besides, only as small part of the waste, as it is mostly the case, is recycled and the remaining part requires final disposal. This is mostly the case with e-waste trade. These wastes have posed a serious threat for the countries where they have been transported for recycling. Therefore, it is positive step forward that Basel Convenwww.paradoks.org 79 80 PARADOKS Ekonomi, Sosyoloji ve Politika Dergisi PARADOKS Economics, Sociology and Policy Journal tion has included the waste trade done for recycling within the ban coverage. There is one point that needs to be highlighted here that this trade is unlike any other trade available in the market. This, in essence, is a trade based on taking advantage of the disadvantaged groups (Shin-Strohm, 1993: 237). However, a ban regarding the export of hazardous wastes will have an adverse impact on the economies of those countries with a recycling industry and cost thousands of jobs there. There is an undeniable dilemma here; the justice of banning the export of hazardous wastes that seriously harms those people in the developing countries and the reality of engendering the livelihood of those people (Lipman, 2002: 71). Lipman has taken up this problem in his article within a framework which he considers as “dirty dilemma”. Accordingly, developing countries will suffer either from pollution or from poverty. Even though this reveals severity of the problem, it is a superficial explanation. In fact, the issue goes deeper that it looks. After all, the cost of ge=ing rid of poverty should not be having to put up with pollution. Besides, the pollution in question is not simple ma=er of contamination either. It amounts to irrecoverable deterioration of human health and environment through the poisoning of water, soil and air; and it may even be a sign of the loss of future generations. The main conflict in this dilemma is the unjust nature of the existing economic system that exposes the developing countries to poverty and to pollution together with poverty. The arrangements, aimed at preventing the illegal transfer and dumping of wastes from developed to developing countries, are not capable of overcoming this injustice within the environmental scope. Temmuz/July 2012 - Cilt/Vol: 8 - Sayı/Num: 02 REFERENCES ALTER, Harvey (1997) “Industrial Recycling and The Basel Convention”. Resources, Conservation and Recycling. 19. pp. 29– 53. BAN – Basel Action Network (2011) http://www.ban.org/toxic-tradenews/ (24.12.2011) CHOKSI, Sejal (2001) “The Basel Convention on The Control of Transboundary Movements Hazardous Wastes and Their Disposal: 1999 Protocol Liability and Compensation”. Ecology Law Quarterly. Vol. 28: 509. ss. 509–539. CLAPP, Jennifer (2001) “Toxic Exports: The Transfer of Hazardous Wastes From Rich to Poor Countries”. Cornell University Press. USA. CLAPP, Jennifer (1994) “The Toxic Waste Trade With Less-Industrialized Countries: Economic Linkages And Political Alliances”. Third World Quarterly. Vol 15. No 3. ss. 505–518. CUBEL, Pablo (1997) “Transboundary Movements of Hazardous Wastes in International Law: The Special Case of The Mediterranean Area”. The International Journal of Marine and Coastal Law. Vol. 12. No. 4. ss. 447–487. EU (2011) “Shipments of Waste”. http://europa.eu/legislation_summaries/environment/waste_management/l11022_ en.htm. (14.12.2011). EGUH, Edna C. (1998) “The Bamako Convention and The First Meeting of The Parties: A Glance at Implementation Strategies”. RECIEL. Vol. 7. Issue 3. ss. 256–263. GREENPEACE (2011) http://www.greenpeace.org/international/en/publications/reports/ (24.12.2011). www.paradoks.org Waste Trade and the Effectiviness of the Legal Arrengements for Tranfortier Movement of Hazardous Wastes HARJULA, Henrik (2006) “Hazardous Waste Recognition of the Problem and Response”. Annals New York Academy of Sciences. 1076. ss. 462–477. IMPEL (2006) “IMPEL-TFS Seaport Project II: International Co-operation in Enforcement Hitting Illegal Waste Shipments”. Project Report. September 2004-May 2006. http://ec.europa.eu/environment/im pel/tfs_projects. htm.(15.07.2011). IMPEL (2005) “IMPEL-TFS Threat Assessment Project: The Illegal Shipment of Waste Among IMPEL Member States”. Project Report. May 2005. http://ec.europa.eu/environment/impel/tfs_projects.htm. (15.07.2011). INECE (2010) “International Hazardous Waste Inspection Project At Seaports: Results And Recommendations”. INECE Seaport Environmental Security Network. 21 December 2010. http://inece.org/seaport/exercise/IN ECE_SeaportInspectionProjectOutcomes_22dec.pdf (15.12.2011). INECE (2009) “The International Hazardous Waste Trade Through Seaports”. Working Paper. 24 November 2009. http://www.inece.org/seaport/SeaportWorkingPaper_24November.pdf (02.10.2011). JURDI, Mey (2002) “Transboundary Movement of Hazardous Wastes into Lebanon: Part 1 The Silent Trade”. Journal of Environmental Health. January/February. ss. 9–14. KRUEGER, Jonathan (2001) “The Basel Convention and the International Trade in Hazardous Wastes”. Yearbook of International Co-operation on Environment and Development 2001/2002. (ed.) Olav Schram Stokke and Øystein B. Thommessen. Earthscan Publications. London. ss. 43–51. KRUEGER, Jonathan (1999) “What’ to Become of Trade in Hazardous Wastes? The Basel Convention One Decade Later”. Environment. Vol. 41. No. 9. ss. 10–21. KUMMER, Katharina (1998) “The Basel Convention: Ten Years On”. RECIEL. Vol.7. Issue 3. ss. 227–236. KUMMER, Katharina (1995) “International Management of Hazardous Wastes: The Basel Convention and Related Legal Rules”. Oxford University Press. USA, New York. KUMMER, Katharina (1992) “The International Regulation of Transboundary Traffic in Hazardous Wastes: The 1989 Basel Convention”. The International and Comparative Law Quarterly. Vol. 41. No. 3. ss. 530–562. LAWRENCE, Peter (1998) “Negotiating of a Protocol on Liability and Compensation For Damage Resulting From Transboundary Movements of Hazardous Wastes and Their Disposal”. RECIEL. Vol.7. Issue 3. ss. 249–255. LIPMAN, Zada (2002) “A Dirty Dilemma The Hazardous Waste Trade”. Harvard International Review. Winter 2002. ss. 67–71. LLOYD, Jason (2008) “Toxic Trade: International Knowledge Networks & The Development Of The Basel Convention”. International Public Policy Review. Vol. 3. No. 2. ss. 17–27. LOUKA, Elli (1994) “Overcoming National Barrriers to İnternational Waste Trade”. Graham & Trotman/Martinus Nijhoff. Netherlands. OECD (2011) “The OECD Control System for Waste Recovery”. http://www.oecd.org/document/52/0,3746,en_2649_34395_267499 6_1_1_1_1,00.html (14.12.2011). www.paradoks.org 81 82 PARADOKS Ekonomi, Sosyoloji ve Politika Dergisi PARADOKS Economics, Sociology and Policy Journal OECD (2008) “OECD Environmental Outlook to 2030”. OECD Publications. France. OECD (1999) “Trade Measures in Multilateral Environmental Agreements”. OECD Publications. France. O’NEILL, Kate (2002) “Globalization and Hazardous Waste Management: From Brown to Green?”. Dynamics of Regulatory Change: How Globalization Affects National Regulatory Policies. UCIAS Edited. Volume 1. Article 4. ss. 1–19. ONYERIKAM, Ifeoma M. (2007) “Achieving Compliance With the Basel Convention on Transboundary Movement of Hazardous Wastes” Available at SSRN. http://ssrn.com/abstract =984067. SAND, Peter H. (1992) “The Effectiveness of International Environmental Agreements”. Grotius Publications. Cambridge. SBC-Secratary of Basel Convention (2008a) “The Basel Convention At a Glance”. http://www.basel.int/convention/ bc_glance.pdf (03.10.2011). SBC (2008b) “Long Description of the Convention”. http://www.basel.int/ convention/ basics.html (03.10.2011). SBC (1998) “Report of the Fourth Meeting of the Conference of the Parties to the Basel Convention”. http://www.basel.int/meetings/cop/ cop14/ cop4repe.pdf (22.10.2011). SBC (1995) “Report of the Third Meeting of the Conference of the Parties to the Basel Convention”. http://www.basel.int/meetings/cop/ cop1-4/cop3repe.pdf (22.10.2011). SHIBATA, Akiho (2003) “The Basel Compliance Mechanism”. RECIEL. 12: 2. ss. 183–198. www.paradoks.org Temmuz/July 2012 - Cilt/Vol: 8 - Sayı/Num: 02 SHIN, Roy W.-Strohm, Laura A. (1993) “Policy Regimes For The International Waste Trade”. Policy Studies Review. 12: 3/4. ss. 226–243. SPREP-Secretariat of the Pacific Regional Environment Programme (2008) “The Waigani Convention”. Factsheet. www.sprep.org. (03.01.2012) TSIMPLIS, Michael (2001) “Liability and Compensation in the International Transport of Hazardous Wastes by Sea: The 1999 Protocol to the Basel Convention”. The International Journal Of Marine And Coastal Law. Vol 16. No 2. ss. 295–346. WIRTH, David A. (1998) “Trade Implications of The Basel Convention Amendment Banning North-South Trade in Hazardous Wastes”. RECIEL. Vol. 7. Issue 3. ss. 237–248.