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.
Nature and Forms of CBDR
The principle of CBDR may manifest itself in various forms, for instance, giving more time to developing countries to implement agreements, difference in the degree of stringency of obligations, positive efforts on the part of developed countries to provide technical or financial assistance to developing countries, etc.
When we look at the existing literature around CBDR, the principle has been discussed extensively in terms of its application to IEL in toto, but notably not to transboundary movement of waste.
Katharina Kummer, Executive Secretary of the Basel Convention, in her comprehensive work on the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes (Basel 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. The principle of CBDR has not been included in this list.
In this article, the author argues that the principle of CBDR is a part and parcel of the global waste management system, though it has not been explicitly recognised as such. This is proved with the help of the Basel Convention and the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (Draft Articles). By way of this recognition, the author hopes to further the discourse around CBDR as a general principle of IEL.
Some Context for the Basel Convention
The Basel Convention was adopted in response to a common phenomenon of ‘waste dumping’ prevalent until the 1990s. The developed countries were able to take advantage of the need of developing countries for hard currency, coupled with their lack of awareness, laws, and control over compliance. 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. 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.
It can be clearly seen that the inception of the problem of transboundary movement of hazardous waste lies in the skewed contribution of the countries towards environmental degradation. 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. The following discussion of the relevant provisions of the Basel Convention and the Draft Articles will prove the same.
Evidence of CBDR in the Global Waste Management System
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. 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. On the other hand, checks in Ghana, Guinea, and Nigeria were conducted because these countries are considered to be destinations for the waste. Such a protocol in an operation that saw the coordination of a number of European and African countries clearly shows that there is wide recognition of the 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 Draft Articles, 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. Philippines took a stand against such illegal movement of waste on account of the absence of prior consent being obtained. 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 Draft Articles. 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, citizen engagement, and knowledge creation through loans, incentive-based programmes, and other technical assistance, the World Bank has furthered the recognition of the common but differential responsibilities of the developed countries in the ESM of waste.
Fourthly, under Article 16 of the Draft Articles, the responsibility of emergency preparedness is given only to the state of export. It is stated that 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 made out:
Transboundary movement of waste is prohibited if the state of import does not have the requisite capacity to carry out ESM;
Transboundary movement of waste is subject to Prior Informed Consent of the state of import;
Parties are required to globally cooperate in matters of ESM, and provide technical assistance to those in need; and
Only the state of export is responsible for the notification of and preparation for any emergency.
It is clear that the very essence of CBDR, which is the fixing of liability commensurate to the role in the issue, runs through the rules and principles of the global waste management system. Therefore, the global waste management system functions on the principle of CBDR.
Way Forward
Daniel Bodansky, while tracing the history of the United Nations Framework Convention on Climate Change (UNFCCC), stated how the principles of the UNFCCC, which include CBDR, were accepted after great opposition from the developed countries, particularly the US. While scholars like Matsui, Weiss and Stone talk about the growing importance of CBDR in the legal discourse, currently, there is not enough state practice or opinio juris to give it the status of CIL.
The purpose of the article, however, is not to examine the status of CBDR as CIL, but to illuminate the existence of this principle, which has so far remained latent in the global waste management system. There is a need to accord due recognition to it and codify it for its appropriate application in this field of IEL.
Conclusion
Transboundary movement of waste governs the shipment of waste from an area under the national jurisdiction of one State to that of another. It 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, studying this field is important from the perspective of global health.
The principle of CBDR involves a recognition of the historical responsibilities of countries in matters of IEL. Thereby, it is a noble principle that ensures an equitable implementation of IEL. However, the exploration of this principle with respect to transboundary movement of wastes has so far been meagre. As established by this article, the principle of CBDR can be seen in:
(i) the prohibition of transboundary movement of waste if the state of import cannot carry out ESM,
(ii) the principle of Prior Informed Consent,
(iii) the principle of global cooperation, and
(iv) the responsibility of the state of export in event of emergency.
Therefore, there is enough evidence to recognise the principle of CBDR as a general principle of global waste management. This is important because such recognition of this normative principle will pave the way for a more equitable global waste management system.
Author:
Kusha Grover is a law student at Rajiv Gandhi National University of Law, Patiala
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