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Introduction

The Basel convention is a global agreement to address and challenge problems posed by hazardous wastes generation and disposal. Major problems posed by these wastes are uncontrolled transboundary movements and Illegal dumping in developing countries; the threat to health and environment by poisoning water and land. Any threat to the environment is a global problem. And the disposal of hazardous may pose dangerous environmental problem affecting health unless precautions are taken to prevent pollution. Some hazardous wastes may not seem dangerous today, but with decomposition, their toxicity can increase. Because of this eventuality, the secretariat of the convention (UNEP: UN environmental program) and the epistemic community has classified hazardous waste according to their toxicity. Depending on their composition, some waste may have one or more toxic property. Some are explosives, some oxidizing, some flammable and other are whether irritant or harmful, carcinogenic, corrosive, infectious, teratogenic, mutagenic, ecotoxic… (1) The secretariat of the convention has set up objectives to minimize the generation of these wastes, to keep them as close as possible to the source of their generation, to control their transboundary movement and to protect developing countries against illegal dumping. The Basel convention is quite a young convention a young convention and its implementation may lack effectiveness because firstly, still these waste are generated; secondly the disposal sites are worldwide and sometimes without no records about their contents, quantity, toxicity …; thirdly, to protect sovereign developing states is a complicated task and lastly, some big generator of hazardous wastes like the USA have not ratified the convention. This report will comprise two chapters: an overview of the Basel convention and its implementation in Africa’s countries. A short conclusion will end the whole    

   

Chap 1. The Basel convention: overview

The Basel convention (administered by UNEP, the governing body is the COP conference of parties)is a global agreement ratified by 150 members. It addresses and challenges the problem posed by hazardous waste.

The purpose of the convention is to protect human health and the environment.

4 main objectives of the Basel convention are:

The wastes are classified in organics solvents, petroleum residual, household waste,… Some of the wastes are for landfill, some are incinerated on land, some are recycled and some residual from oil are re- refined and reused. There are technical and scientific guidelines about the composition and toxicity of each waste. The scientific and technical guidelines also provide the necessary light in how to handle different wastes in an environmentally sound way. Some definitions are important to catch the true goals of the convention: "Wastes" are substances or materials which are disposed of, or are intended to be disposed of, or are required to be disposed of by the provisions of national law; "Hazardous wastes" means wastes that may endanger environment and/ or health; "Management" means the prevention and reduction of hazardous wastes and the collection, transport, storage, and treatment either for the reuse or disposal, of hazardous wastes including after-care of disposal sites; "Transboundary movement" means any movement of hazardous wastes from an area under the national jurisdiction of any State to or through an area under the national.jurisdiction of another State, or to or through an area not under the national jurisdiction of another State, provided at least two States are involved in the movement. About transboundary movement, there is a distinction that must be underlined. There are "voluntary" and "involuntary" transboundary movements: (2)

But about the definition of hazardous wastes, states have the freedom to specify what, nationally, they consider as wastes and which should therefore fall under the Basel convention’s spirit. Each State shall, within six months of becoming a Party to this Convention, inform the Secretariat of the Convention of the wastes, other than those listed in the Convention, considered or defined as hazardous under its national legislation and of any requirements concerning transboundary movement procedures applicable to such wastes.

- who is the generator? The convention regulates activities of multinational or national public or private firms and industries. Who is the exporter? the importer? the disposer? The carrier? The State of transit? This is very important when it comes to the 1999 protocol on liability and compensation. It also helps States members to formulate clearly their national law so that it does not conflict with the convention. For ex the exporter is the State of generation from where the first shipment takes place. 3   Chap2: The implementation in Africa

A. A small picture of the Waste trade (4)

Between 1985 -1992, there was a huge amount of wastes on the market generated in USA and Europe. But these countries had almost no free land where to dump these wastes. The growing awareness of the public on danger posed by toxic wastes posed a massive pressure on the government. Also, the storage and disposal of these wastes was very expensive: recycling, reuse, incineration or landfill are mode of disposal but the cheapest of all is landfill. The solution to this problem came from poor countries and particularly African countries. These countries had vast unoccupied land, the political body was not under public pressure and the operation could be cheaper. In Western, Africa alone more than seven countries signed contract (short and long-term) against cash to receive for disposal these wastes. Bearing in mind that data may be manipulated, below, are few cases. For example, in 1986 - 1992, some Western Africa State’s deals4 Then came the Basel convention in 1989 and its adoption in 1992. Some of these countries have ratified but have they given up these contracts? More poor countries in Africa and elsewhere continue this trade and the convention has no issue. When looking at the data reports ( map and chart A &B), it resorts that quantity of wastes on the European market are huge and that Hazardous wastes (according to Basel convention) are just a small component of them. As sovereign states defines what is Waste, there are possibilities that the trade is done on unreliable records. An effective implementation means also the management of these existing sites and the use of appropriate technology.

B. ratification

34 African states have so far ratified the convention but still most of them have not elaborated suitable legislation to respond to the Basel convention objectives.  

In international law, the hierarchy of States’ legislations operates as follow: Treaty, constitution, national law (public and private) and regulations. Once a treaty has been ratified, it is part of national law and the formulation of any legislation should harmonize and not conflict with the treaty’s spirit. But still each sovereign State remains own judge on how to incorporate a treaty in its national set of law. The convention leaves choice of free bilateral cooperation between State. In case one of the state is not party to the convention, then their contract has to be out of the convention. (5) This offer to opportunist the choice to continue trade of Hazardous waste justifying it under the WTO agreement.  

C. the problem of implementation of the convention.

In Africa particularly, and in developing countries in general, the implementation of the Basel convention is not easy. It can be observed even that Africa plays a unnoticed role in the success of any international treaty. Is about environment or Human right, Africa, in practice, has poor records. Unless serious pressure comes from outside Africa, international treaties get little application in Africa. Is it because of economical weakness? Is it political and intellectual decadence? One fact is evident: since the end of cold war and its consequence on poor countries internal security, everything seems darker than before. (6) This African reality underlies difficulties of implementation of a treaty like the Basel convention. This assumption can be high lightened when focusing on the Basel convention procedures like the notification procedure (notification procedure). There must be a written notification from the State of export to the proposed State of disposal. It can be noticed here that actors are State, no matter who is the generator. This notification has to specify who is the generator, what are the characteristic and toxicity of the wastes, who is the carrier, what is the final purpose of the waste ( reuse, recycling, disposal..), what are the precaution for management of the disposal site… There must also be a written consent of the state of import and that of transit before any shipment can proceed. The consent may be direct or may require more details or specify its conditions before the shipment can start. These document have to accompany the shipment any time. But who is the competent authority to decide? This convention being dealing with the protection of poor countries from illegal dumping, it insist that the legitimate government of a State is the legitimate authority but that, in case of instability, civil war or rebellion, it should be considered that there is no government, no decision-maker and consequently the shipment can not proceed. Even when there is a legitimate authority in period of stability, there remain another major problem: the public is not aware of the government action and despite the convention, sovereign State remain free of choice. There is for example a number of poor countries in Africa and elsewhere that have signed contract with hazardous wastes traders before the convention came in force ( as shown above). Some of those have since ratified the convention, some have not; but still, in most of cases, those contracts remain.  

As says Sonia Wither (7), legislation without implementation is a waste. That is why, to meet its objectives and to reach the full implementation of the convention, the political decision-making and governing body of the Basel convention (conference of parties) has taken various actions:

c. 1. Establishment of a working group:

The extended bureau ( actual and previous members of the COP) provides general policies between the meeting of COP.

c. 2. Establishment of a technical working group (TWG): It provides - guidelines for the E.S.M of hazardous wastes - clarification of of what constitute hhazardous wastes under the convention

c. 3. Establishment of a legal working group (LWG) It gives guidelines on how:

c. 4. Establishment of training in management and minimization of hazardous wastes: Up today 15 centre of training have installed in Asia, south America and Africa… .

c. 5. Establishment of the technical cooperation trust fund

In case of incidents during transboundary movement of hazardous waste, the secretariat will collect fund from parties to provide technical cooperation to support the emergency assistance in clean up operations that can not afford most developing countries. The secretariat will assist also parties in identification of responsibilities; it will also help in settling disputes whether peacefully by negotiation or in courts (ICJ)  

c. 6. Partnership with international organizations

D. Basel Convention Epistemic community and Africa.

There are some critics about the cosmopolitanism character of environmental policies and the way research is used. When looking at the climate change regime, the process is hostage of national interest. The epistemic community was dominated by few government with strong atmospheric science/ climatologic research capacities and space lobbies: the USA, UK, Sweden, Canada, Japan, Germany and Australia. For example there was a big convergence between normative construction of green peace’s policies and the German state because only Germany funded the ENGO so it could use it for its own interest.( 8) For the Basel convention, firstly, although the epistemic community recognize that such trade is morally wrong and that export should be banned as claims Greenpeace, the balance in term of economics interests will decide the issues; Secondly, Africans countries’ interest are not likely to influence the issue of the process because of corruption and lack of interest of Africans in global questions.            
 

Conclusion

The implementation of this convention in Africa particularly poses various problems. The first problem is that most of the 34 African countries members, have ratified the convention recently. Most of them have ratified the convention after 1995 and have not yet elaborated a suitable legislation. And in case the legislation is done, the convention is not effectively implemented. For example the management of anterior disposal sites are not managed in an environmentally sound way. It may be because of lack of technology, of trained staff or of supervising authority. Also, protecting developing countries against illegal dumping may depend only on good will of exporting countries and the impact of ENGOs in circulating information. Since the end of the cold war, big number of developing countries are facing civil wars and political institutions are not working properly. So it is easy for any political body to deal with wastes traders for cash. There is no data about wastes trade and no stable institutions to deal with such a serious issue: Hazardous wastes are dangerous for centuries. The convention, although waiting for the adoption of the 1995 export ban amendment, leave free doors to wastes traders to contract with any country, provided that procedure of notification is respected and precautions are taken for an effective management of the disposal site. " the polluter pays" principle (9) is one of the easiest way to implement the convention: at least the environmentally sound management of disposal site is guaranteed. This principle is, in theory, one of the best way to implement the Basel convention because if the transboundary movement cannot be banned, the exporter ( presumed to be a rich country) will take precaution not to endanger the global environment and health. International ENGOs and various partners like the Interpol, by circulating information may help in the effective implementation of the principle. A general idea is that any environment threat is a global problem so it is better for all actors that hazardous wastes are managed in an environmentally sound way. The implementation of convention also is difficult because the USA that produce more than 50% of wastes are not party to the convention and is likely to carry on with his long term contract with poor countries. The UNEP has not the media power and funding of Greenpeace. It is difficult for the epistemic community to radicalise its policies (like export ban) if they have not enough fund and support to implement them. Developing countries, mostly in Africa, without a strong public opinion and pressure groups will easily take cash against hazardous wastes… For the moment being, the management of disposed sites, the training centre and the control of transboundary movement of wastes are the effective mean of implementing the objectives of the Basel Convention in Africa…        
  

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