Introduction

Principle 7 of the Rio Declaration on Environment and Development, adopted by the United Nations in 1992, explicitly declares the principle of Common but Differentiated Responsibilities (CBDR) as one of the guiding principles of International Environmental Law (IEL). It says, “The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.”

The idea behind this principle is: (i) there ought to be a spirit of global partnership in pursuance of the goals related to the environment; (ii) the countries that have to face the brunt of environmental degradation, not because of their own contribution, should be given certain relaxations while complying with IEL; and (iii) the countries that are relatively more responsible for environmental degradation should be at the forefront of the implementation of IEL.

In this article, I argue that the principle of CBDR is instilled within the law of transboundary harm, despite its lack of explicit recognition in legal instruments and relevant literature. Addressing this, I trace the principle of CBDR in existing relevant instruments – namely, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes (Basel Convention) and the Articles on Prevention of Transboundary Harm from Hazardous Activities (The Articles on Prevention).

Identifying the Gap

The Basel Convention was adopted in response to a common phenomenon of ‘waste dumping’ prevalent until the 1990s. It has been estimated that the average rate of disposal costs in Africa was 4-15 times lower than equivalent costs in Europe, and 12-36 times lower in case of the USA. The developed countries, therefore, took advantage of the need of developing countries for hard currency, coupled with their lack of awareness, laws, and control over compliance, in order to ‘dump’ their waste into the developing countries. Thus, there were instances of Italian, American, and French companies dumping waste in Nigeria, Lebanon, and Bangladesh to escape stringent home regulations at a much lower cost.

The negotiations behind the Basel Convention involved a rift between developing and developed countries. The ‘Organization of African Unity’ (OAU) demanded a complete ban on all transboundary movements of hazardous waste, while the developed countries opposed this. The end result was a compromise between the two proposed measures, laying down the groundwork for the principle of CBDR. Clearly, the inception of the problem of transboundary movement of hazardous waste lies in the skewed contribution of the countries towards environmental degradation.

The principle of CBDR has been discussed extensively in terms of its application to IEL in toto, but not to transboundary movement of waste, specifically. Katharina Kummer, Executive Secretary of the Basel Convention, in her comprehensive and authoritative work on the Convention, has delineated the following main principles of the ‘global waste management system’: Waste Minimisation and Proximity of Disposal; Prohibition/Restriction of Hazardous Waste Disposal Outside the Generating State; Environmentally Sound Management of Waste and Non-Discrimination; Prior Informed Consent; Duty to Re-Import Illegally Exported Wastes. Notably, the principle of CBDR does not find a mention in this authoritative list.

Discussion

Firstly, the General Obligations enshrined in Article 4 of the Basel Convention allow the transboundary movement of hazardous wastes only if certain conditions have been met. Examples of the mentioned conditions are: lack of technical capacity in the state of export; requirement of waste as a raw material for recycling or recovery industry in the state of import; etc. In effect, the transboundary movement of hazardous wastes is prohibited into a country that does not have the requisite infrastructure to carry out environmentally sound disposal. This provision is reflective of the differential responsibilities of countries in the global waste management system.

The INTERPOL Operation Enigma was held in 2012 to identify and curb the illegal movement of hazardous electronic waste. Interestingly, as part of the operation, checks were conducted in Belgium, Germany, the Netherlands, and the United Kingdom because they are considered to be the sources of such illegal shipments, while checks in Ghana, Guinea, and Nigeria were conducted because these countries are considered to be destinations for the waste. In an operation that saw the coordination of a number of European and African countries, such a protocol is reflective of the wide recognition of differential contributions and responsibilities of the countries involved in the problem.

Secondly, the fundamental principle of Prior Informed Consent (PIC) is the prime example of CBDR in global waste management. Article 6 of the Basel Convention and Article 8, along with Articles 9, 11, 12 and 13 of the Articles on Prevention, lay down that the state of export is required to notify in writing the proposed transboundary movement of wastes through appropriate authority, which is subject to the consent of the state of import. The state of import has the right to deny or permit the said movement with/without conditions. In fact, under Article 9 of the Convention, the transboundary movement of waste without the required notification and consent is treated as illegal traffic. This corrects the historical issue of ‘waste dumping’ by giving the final authority to allow or disallow the transboundary movement of wastes to the country of import.

In 2019, the Philippines sent 69 containers of waste back to Canada. It was claimed that the waste, shipped to the Philippines between 2013 and 2014 as ‘recyclable waste’, actually contained household waste. The Philippines took a stand against such illegal movement of waste on account of the absence of prior consent. Similar actions being taken by other Asian and African countries show that the principle of PIC, which closely aligns with CBDR, is gaining prominence.

Thirdly, Article 10 of the Basel Convention talks about international cooperation. Herein, the parties are required to cooperate with each other for the environmentally sound management (ESM) of wastes through the transfer of technology and management systems, amongst other things. This principle of cooperation has also been given under Article 4 of the Articles on Prevention.

Various examples of such global cooperation can be found across countries. The US Agency for International Development (USAID) provided training on waste classification to environmental officials and members of local organisations in Vietnam as recently as August 2023. The World Bank has also, time and again, come forward to foster global cooperation in waste management by contributing towards infrastructure development, financial stability, and other technical assistance, furthering the recognition of the common but differential responsibilities of the developed countries in the ESM of waste.

Fourthly, under Article 16 of the Articles on Prevention, the responsibility of emergency preparedness is given only to the state of export. The state of export is obliged to be prepared with anticipatory action, in case of any undesirable contingencies or emergencies. Since it is the states of export that are responsible for the origin of waste in the first place, they have been given the differential responsibility to prepare for such unforeseen circumstances. Further, under Article 17, the state of export is responsible for the expeditious notification of such an emergency to the state which is likely to be affected.

From the above discussion, four broad features of the global waste management system can be inferred. First, the transboundary movement of waste is prohibited if the state of import does not have the requisite capacity to carry out ESM. Second, the transboundary movement of waste is subject to Prior Informed Consent of the state of import. Third, the parties are required to globally cooperate in matters of ESM and provide technical assistance to those in need. Fourth, only the state of export is responsible for the notification of and preparation for any emergency.

Evidently, the very essence of CBDR, which is the fixing of liability commensurate with the role in the issue, runs through the rules and principles of the global waste management system.

Conclusion

Transboundary movement of waste is an important area of study in IEL as it lays down the obligations of States with respect to the management of waste, prior to, during, and after the transboundary movement. Moreover, with worrying projections about the manifold increase in global waste in the coming years, this field becomes extremely important from the perspective of global health.

The principle of CBDR involves a recognition of the historical responsibilities of countries in matters of IEL. It is thus a noble principle that ensures an equitable implementation of the law. However, the exploration of this principle with respect to transboundary movement of wastes has so far been meagre, making it a latent principle in the law of transboundary waste. As established by this article, there is enough evidence to recognise the principle of CBDR as a general principle of global waste management under IEL. Such recognition of this normative principle will pave the way for a more equitable global waste management system.

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Kusha Grover is an undergraduate law student at Rajiv Gandhi National University of Law, Punjab. Her research interests include public international law and constitutional law.

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