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Mainstream, VOL LX No 26-27, New Delhi, June 18 & June 25 2022 [Double issue]

Why India must ratify Ban amendment to Basel Convention on Hazardous Waste Movement & Disposal in order to prevent dumping of waste | Gopal Krishna

Friday 17 June 2022

by Gopal Krishna

The 15th Conference of the Parties to the Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal (COP-15) is underway with the 10th Conference of Parties to the Rotterdam Convention and the 10th Conference of Parties to the Stockholm Convention from 6 to 17 June 2022 in Geneva. These meetings are focused on the theme: "Global Agreements for a Healthy Planet: Sound management of chemicals and waste". Prior to the COP-13 of Basel Convention Union Ministry of Environment, Forests & Climate Change had sought comments and suggestions on matters of the Basel Convention (BC), Rotterdam Convention (RC) and Stockholm Convention (RC). It was a good initiative but that approach has not been abandoned.
It may be recalled that on the opening day of the COP-13 of Basel Convention, India’s official delegation had shocked everyone with its statement in opposition to UN accord to stop the flow of hazardous wastes from developed to developing countries like India. This position was akin to opposing Prime Minister’s Clean India Mission. This position was also contrary to Supreme Court’s verdict in the hazardous wastes case. The verdict was based on the recommendations of Prof. M.G.K. Menon headed High Powered Committee on Hazardous Wastes Management.

During COP-15, India has raised the issue of mixutre of hazardous and non-hazardous wastes which are mis-labeled as products imported for recycling or recovery along with other countries. This needs to be looked at in the light of India’s Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 under the Environment (Protection) At, 1986. It may be noted that the “transboundary movement” means any movement of hazardous or other wastes form an area under the jurisdiction of one country to or through an area under the jurisdiction of another country or to or through an area not under the jurisdiction of any country, provided that at least two countries are involved in the movement. It reveals that "transboundary movement" of hazardous waste has become part of ministry’s sound environmental management approach. This term was introduced in 2008 when Hazardous Waste (Management, Handling & Transboundary Movement) Rules, 2008 was farmed apparently under the influence of hazardous waste traders when the pre-existing Hazardous Waste Rule was amended. This term has been lifted from UN’s Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal.

It may be recalled that the 2008 Rules was initially proposed as “Hazardous Materials (Management, Handling and Transboundary Movement) Rules”. The use of the term “Materials” instead of “Wastes” was an exercise in linguistic corruption whereby an attempt was made define waste as non-waste. The Rules of 2016 does not factor in Ban Amendment to Basel Convention of 1995 which goes beyond "transboundary movement" of hazardous waste and other wastes. Since July 1989 till November 2021, the Hazardous Wastes Management Rules have been amended to dilute its original intent and purpose to steer clear of ban on free trade in hazardous waste.

The seemingly innocent observation of the Indian delegate at COP-15 assumes significance because India is yet to ratify Ban Amendment to Basel Convention which came into force on December 5, 2019. Now that the Basel Ban Amendment has become an international law, it prohibits the export of hazardous wastes from member states of the European Union, Organization for Economic Cooperation and Development (OECD), and Liechtenstein to all other countries. The Ban Amendment was adopted by the parties to the Basel Convention in 1995 which banned all forms of hazardous waste exports from the 29 wealthiest most industrialized countries of the Organization of Economic Cooperation and Development (OECD) to all non-OECD countries from January 1, 1998.

In compliance with the spirit of Supreme Court’s verdict that endorsed Basel Convention in October 2003 and in the light of the Ban Amendment to Basel Convention of 1995, India will have to amend its Hazardous Waste Rules again. Meanwhile, there is a need for joint reading of the Hazardous and Other Wastes (Management & Transboundary Movement) Amendment Rules, 2019 with the circular of Central Pollution Control Board (CPCB) dated November 2, 2018 sent to all State Pollution Control Boards (SPCBs) on the subject of "Directions Under Section 18(1)(B) of The Water (Prevention & Control Of Pollution) Act, 1974 And The Air (Prevention &Control Of Pollution) Act, 1981 Regarding Streamlining Of Consent Mechanism". It reveals how exemption from requirement of consent and authorization under the Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016 will be deeply detrimental to the cause of environmental protection. Given the fact that under Water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act 1981, it is for the SPCBs and Pollution Control Committees (PCCs) of Union Territories which give consent and authorisation under these two Acts, the provision stating that "environmental surveillance of industries should be on random basis, and SPCBs/PCCs shall evolve mechanism for that" instead of 24X7 environmental surveillance on a regular basis paves the way for very serious disruption of existing regulatory mechanisms. Such directions have already been implemented in some States who have exempted over 100 categories of industries from Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016 and Water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act 1981. This is fraught with unprecedented adverse consequences for environmental and occupational health and related disease burden.
At COP-13, one of the official delegates from India had given a speech crticising the Ban Amendment to Basel Convention belittling India’s stature and its scientific community by claiming that the Ban Amendment is contrary to sustainable consumption and the circular economy as well as the Sustainable Development Goals. This strange claim implied India permits import of hazardous waste in a situation where services and infrastructure to deal with their hazardous waste and other wastes such as laboratories for testing samples of imported waste and treatment facilities and landfills are almost non-existent. This amounted to turning India into a land of landfills for foreign hazardous wastes by allowing free trade in hazardous waste in a business as usual manner unmindful of Prime Minister’s Clean India Mission and Supreme Court’s verdict. Notably, Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 has a provision for “the import license from Directorate General of Foreign Trade”, Ministry of Commerce and Industry. It disregards National Environment Policy that includes strategies for cleanup of toxic and hazardous waste dump legacies, developing a national inventory of such dumps, an online monitoring system for movement of hazardous wastes and taking legal measures for addressing emergencies arising out of transportation, handling, and disposal of hazardous wastes. The fact is that India does not have the capacity to scientifically treat and dispose of waste that is generated in the country.
Supreme Court’s verdict states that “Hazardous Wastes are highly toxic in nature. The industrialization has had the effect of generation of huge quantities of hazardous wastes. These and other side effects of development gave birth to principles of sustainable development so as to sustain industrial growth. The hazardous waste required adequate and proper control and handling. Efforts are required to be made to minimise it. In developing nations, there are additional problems including that of dumping of hazardous waste on their lands by some of the nations where cost of destruction of such waste is felt very heavy. These and other allied problems gave birth to Basel Convention.” This verdict was pronounced in Writ Petition (Civil) No.657 of 1995. Notably, Basel Convention has been made part of the verdict by the Court due to alarming situation created by dumping of hazardous waste, its generation and serious and irreversible damage, as a result thereof, to the environment, flora and fauna, health of animals and human beings. The Court took cognizance of dumping of hazardous wastes in Indian waters as violation of Article 14 and 21 of the Constitution of India.

It emerges that the Court’s verdict creates a compelling logic for India to ratify Ban Amendment to the Basel Convention to prevent dumping of all kinds of hazardous wastes including end-of-life ships in Indian waters. According to Basel Convention, “wastes are materials which are disposed of, or intended to be disposed of, or required to be disposed of, to the environment”. The Court’s verdict has directed the Union of India to incorporate the Basel list in the existing Rules and had actively argued for expanding the list of prohibited items for import.
India’s position articulated on June 8, 2022 at Geneva is linked to motivated attempts which have faced strident criticism from environment, public health groups and even the Confederation of Indian Industry (CII) when hazardous wastes and hazardous materials and recyclable materials was being made synonymous by redefining "hazardous waste" as "hazardous material" in a manifest act of linguistic corruption. It is noteworthy that in a study, Associated Chambers of Commerce & Industry (ASSOCHAM) also recommended ban on trade in hazardous wastes. They who are complicit in promoting hazardous waste dumping in the country are doing so at the behest of hazardous waste traders. Their role merits probe.

The reluctance of India in ratifying Ban Amendment to prohbit hazardous waste trade implies that Indian government is welcoming globalisation of the toxic hazardous waste and it arrival in Indian waters. India should call for the development of guidance to aid countries to help prohibit efforts to reclassify hazardous waste as non-waste in an exercise of circuitous defintition. Hazardous waste exporters from rich countries have been consistently seeking to export toxic scrap to India and likewise, there has been a similar trend amongst businesses in the India to import such waste. This is being done despite the fact that National Environment Policy acknowledges how "Environmental factors are estimated as being responsible in some cases for nearly 20 percent of the burden of disease in India". India should resist the influence of global hazardous waste traders. She must take a principled stand in tune with the main principles of this UN treaty. These principles state that transboundary movements of hazardous wastes should be reduced to a minimum consistent with their environmentally sound management; hazardous wastes should be treated and disposed of as close as possible to their source of generation; and hazardous waste generation should be reduced and minimized at source.

The current position of Indian government is contrary to these principles and stands in manifest contrast with its position in 1992. It may be recollected that by decision III/1, of September 22, 1995, at COP-3, the Third meeting of the Conference of the Contracting Parties to Basel Convention that took place in Geneva in September 1995, adopted the Ban Amendment to the Convention. This amendment banned the export of hazardous wastes for final disposal and recycling from rich countries to poorer countries.

Indian government seems to be guided by the position of hazardous waste traders from countries like USA, United Kingdom, Australia, Canada, South Korea and Japan in general and U.S. Chamber of Commerce, the world’s largest business federation representing the interests of more than three million businesses, International Chamber of Commerce (ICC), US Institute of Scrap Recycling Industries and Bureau of International Recycling (BIR), the international trade federation representing the world’s recycling industry. These countries and their waste traders have been against Ban Amendment.
For long the government of USA and ICC have been instrumental in outwitting the UN ban on hazardous waste trade through bilateral Free Trade Agreements between countries. In one of its position paper on the Basel Convention, ICC has even called for the ban on hazardous waste to be stopped by the World Trade Organization (WTO) because it is trade disruptive. This undermines the customary environmental law principles as well. As Chief Economist of World Bank, Summers wrote an internal memo in 1991 which stated, “I think the economic logic behind dumping a load of toxic waste in the lowest-wage country is impeccable and we should face up to that.” Unless India wriggles out of the vice like grip of the Lawrence Summers principle, it cannot ban free trade in wastes.
At COP-15, as part of Clean India Mission, Indian government ought to regain its original stance of being a strong opponent of the international waste trade and an ardent supporter ban on toxic waste exports from the world’s richest countries to less industrialized ones. Government of India should recollect its position at the First Conference of Parties to the Basel Convention (COP-1) in Piriapolis, Uruguay, from 3-4 December, 1992. A. Bhattacharja, Head of the Indian delegation who pleaded with industrialized countries to stop exporting hazardous waste. “You industrial countries have been asking us to do many things for the global good — to stop cutting down our forests, to stop using your CFCs. Now we are asking you to do something for the global good: keep your own waste.” It is apparent that he was responding to Lawrence Summers’ memo dated December 12, 1991.

It may be noted that Indian government was based on scientific evidence even at the Second Conference of Parties Basel Convention (COP-2) in March 1994. It advocated ban on all hazardous waste exports from the world’s most industrialized countries, the members of the Organization of Economic Cooperation and Development (OECD) to non-industrialized countries like India. It was only in 1995 that Indian government reversed its position at the Third Conference of Parties to Basel Convention (COP-3) in September 1995 under the deletrous influence of representatives of the US and Australia. Indian delegate announcing that it was reconsidering its position on the Basel Ban. It was a consequence of the regressive statement of Kamal Nath, the then Union Minister of Environment & Forests who observed that “We are against environmentally unfriendly recycling. We are not against the movement of waste, provided the recipient has adequate equipment, facility and the proper process to deal with it.” India’s position on the ratification of the ‘Ban Amendment’ to the Basel Convention is caught in a time warp crafted in 1995. It has paved the way for India to become a leading dumping ground of foreign hazardous waste.

To safeguard country’s environmental security and maritime security, India must not allow itself to be misled by hazardous waste traders who are blinded by their lust for profit at any human and environmental cost. In any case the truth about who all were immorally, unethically and unpatriotically complicit with the hazardous waste traders and who all defended public health will not remain hidden for long.
Recalling Court’s verdict on hazardous waste and India’s original position against hazardous waste, India should ratify Ban Amendment to save India from becoming the dumping ground of rich countries which are transferring harm because they want to protect their own environment and public health before the end of COP15 on June 17. India must take a scientific and moral position, recover the lost ground and re-adopt the 1992 position and ask the rich countries to “keep your own waste” for global common good to ensure that foreign toxic waste does not flow in the veins and arteries of present and future Indians.

(Author: Gopal Krishna is a law and public policy researcher. He has been an applicant in the hazardous wastes case in the Supreme Court. He is associated with www.toxicswatch.org )

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