Why India should ratify Ban Amendment to UN’s Basel Convention

 Why India should ratify Ban Amendment to UN’s Basel Convention to ban trade in hazardous wastes and end-of-life ships, end its romance with IMO’s Hong Kong Convention, repeal  Recycling of Ships Act

Position Paper

 December 2021

India should ratify Ban Amendment to UN’s Basel Convention to ban trade in hazardous wastes and end-of-life ships, end its romance with IMO’s Hong Kong Convention, repeal The Recycling of Ships Act 

ToxicsWatch Alliance (TWA) welcomes European Commission’s decision to return to the UN treaty against dumping of hazardous wastes in countries like India

Flags of convenience remain a major hurdle for the implementation of Ban Amendment  

For long ToxicsWatch Alliance (TWA) has been critical of romance of European Commission (EC) and India with International Maritime Organisation (IMO)’s Hong Kong Convention Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009. EC’s new decision to return to its original position against dumping of hazardous wastes including wastes such as end-of-life ships in countries like India in compliance with the Ban Amendment to the Basel Convention on transboundary movement of hazardous wastes and their disposal, vindicates the stance of TWA. It paves way for countries like India to incorporate Ban Amendment in their domestic laws dealing with transboundary movement of hazardous wastes and to end their romance with Hong Kong Convention. It also creates a compelling logic for India to repeal The Recycling of Ships Act, 2019 because it is inconsistent with Ban Amendment to Basel Convention which entered into force on 5 December 2019. 

The Ban Amendment, adopted by the Parties to the Basel Convention in 1995, prohibits, for those countries ratifying it, the export of hazardous wastes from member states of the European Union, Organization for Economic Cooperation and Development and Liechtenstein to all other countries. As of December 2021, 100 countries are parties to the Ban Amendment. India has ratified Basel Convention but it is yet to ratify Ban Amendment to the Convention for complete ban on trade in hazardous wastes.

In a regressive move, EU-flagged vessels were removed from the scope of the waste shipment rules under the EU Ship Recycling Regulation in 2013. It had ditched Basel Convention and aligned itself with the Hong Kong Convention designed by the IMO’s Marine Environment Protection Committee (MEPC) unmindful of the fact that MEPC has acted contrary to the interest of the marine environment.  

The EU Waste Shipment Regulation new proposal revisits its questionable stance and adopts its erstwhile environmentally righteous position by stating that EU-flagged end-of-life ships meant to be dismantled are no longer exempted from EU waste laws and need to comply the with Article 4a of the Basel Convention, as long as they are under EU jurisdiction. As a consequence, export of any form of hazardous waste from OECD to non-OECD countries for any reason is illegal from now onwards. TWA has been urging EU to resist the influence of global hazardous waste traders who have been busy writing the obituary of the Basel Convention and the Ban Amendment to the Convention. EU’s new position demonstrates that IMO’s Hong Kong Convention cannot outwit EU’s original position and the Basel Convention. It has been crystal clear from the very outset that end-of-life ships come under the ambit of the international hazardous waste law.

While the EU’s revised position merits appreciation, the disturbing fact is that sleight of hand like corporate veils and flags of convenience continue to enable hazardous waste traders in general and end-life-ship traders in particular to outwit the Ban Amendment to the Basel Convention by declaring their intent on the high seas or in the ports of non-OECD countries. Being a weak and indulgent treaty, Hong Kong Convention does not regulate change of flags done to escape the international hazardous waste law. The hazardous waste laws need to be strengthened to extend their ambit from port states and flags states to the countries of hazardous waste traders and ship owners.

The clout of the hazardous wastes traders and traders of end-of-life ships can be understood from the fact that the subject of ship-breaking industry which was under the Steel Ministry from 1983 to July 2014 was brought under the supervision of the Ministry of Shipping. The fact remains ship breaking/recycling is a secondary steel production activity, an activity which is beyond the competence of Ministry of Shipping. Not only this their lobbying succeeded in the enactment of Bangladesh Ship Recycling Act, 2018 and Indian Ship Recycling Act, 2019 drawing on IMO’s Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 which has not entered into force as yet. The EU’s changed stance indicates that it is unlikely to enter into force. It is noteworthy that the Bangladesh Ship Recycling Act, 2018 which was legislated by Jatiya Sangsad on January 24, 2018 was done admittedly at the behest of foreign lobbies who wished to create an world order where free trade in hazardous wastes and end-of-life ships gets legalised so that major ship owning companies/countries can escape decontamination costs.

Some foreign global shipping lobbies and hazardous waste traders worked to ensure that India ratifies IMO's Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 (the Hong Kong Convention) because shipbreakers, environmental and labour groups of India, Bangladesh and Pakistan were opposed to it as it is anti-environment, anti-workers and contrary to supreme national interest. These lobbies have succeeded in Bangladesh and India.

Ahead of the entry into force of the Ban Amendment to the Basel Convention which prohibits dumping of hazardous wastes and end-of-life products in myriad disguises, in a startling move the Press Information Bureau, Government of India, announced on 20th November, 2019 that the Union Cabinet has approved “proposal for enactment of the Recycling of Ships Bill, 2019 and accession to the Hong Kong International Convention for Safe and Environmentally Sound Recycling of Ships, 2009.”

Union Cabinet which rightly acknowledged that “the ship-recycling industry is a labour-intensive sector, but it is susceptible to concerns on environmental safety”, was misled by some external lobbies at work with an aim to outwit India into disregarding its position against dumping of hazardous wastes through linguistic corruption wherein waste is defined as “non-new good” or recyclable material.

India cannot be turned into a land of landfills for foreign hazardous wastes. Unless all the waste that is generated in our own country has been treated and disposed of in an environmentally sound manner, how can hazardous waste import be permitted?

India’s callousness towards the UN accord to stop the flow of hazardous wastes from developed to developing countries like India is akin to opposing the Prime Minister’s Clean India Mission. It is also in violation of Hon’ble Supreme Court’s verdict in Writ Petition (Civil) No 657 of 1995 based on the recommendations of Prof MGK Menon headed the High Powered Committee on Hazardous Wastes that dealt with ship breaking at length.

Such indifference lowers the stature of India and its scientific community because it is contrary to sustainable consumption and the circular economy as well as the Sustainable Development Goals.

The enactment of the Recycling of Ships Act, 2019 facilitates trade in hazardous wastes related to end-of-life ships, which are also hazardous wastes as per the Basel Convention. How can this happen in a business as usual manner unmindful of the Prime Minister’s Clean India Mission and Supreme Court’s verdict?

This position is inconsistent with the 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. India’s current position seems to be inconsistent with our the Prime Minister’s Clean India Mission.

 According to the verdict of the court:

“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 the Basel Convention.”

This verdict has been given in Writ Petition (Civil) No 657 of 1995. The Convention was made part of its order 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 germane to note that such attempts have attracted widespread 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.

In a study, the Associated Chambers of Commerce & Industry (ASSOCHAM) also recommended ban on trade in hazardous wastes. Two members of the court's own monitoring committee on hazardous wastes had also raised objections. They who are complicit in promoting hazardous waste dumping in our country are doing so at the behest of hazardous waste traders. Their role needs to be probed.

Basel Convention’s very clear and simple definition of waste states: "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. If India does not revise its position it will amounts to a formal announcement that India is welcoming globalisation of the toxic hazardous waste and its arrival in Indian waters.

Instead of falling into the trap of hazardous waste traders, 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 definition. Hazardous waste exporters from rich countries have been consistently seeking to export toxic scrap to India and likewise, there has been a similar trend among businesses in the India to import such waste.

This is being done despite the fact that the 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 must take a principled stand in tune with the main principles of this UN treaty which are: 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 present position is contrary to these principles and stands in manifest contrast with its position in 1992. The Ban Amendment has now entered into force without India. Its parent treaty, the Basel Convention, is in force and India is a party to it.

Under the influence of countries like USA, Germany, United Kingdom, Australia, Canada, South Korea and Japan in general and the US Chamber of Commerce, the world’s largest business federation representing the interests of more than 3 million businesses, the International Chamber of Commerce, US Institute of Scrap Recycling Industries and the Bureau of International Recycling (BIR), the international trade federation representing the world’s recycling industry, India’s position have faced continued dilution. These countries and interests never wished the Basel Convention, the Ban Amendment and the compliant Rules to come into force.

There is a need to examine how as part of the Clean India Mission, the Government of India can try 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. The Government of India should recollect its position at the First Conference of Parties to the Basel Convention 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.”

The Government of India was firm even at the Second Basel Convention Conference of Parties, in March 1994 and 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 the Government of India revised its position at the Third Basel Conference of Parties in September 1995 under the harmful influence of representatives of the US and Australia.

The US government 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.

To safeguard our country’s environmental security and maritime security, India should 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 merchants of death, the hazardous waste traders and who all defended public health will not remain hidden for long. This is required to ensure that foreign toxic waste does not flow in the veins and arteries of present and future Indians.

For more information contact: Gopal Krishna, ToxicsWatch Alliance (TWA), E-mail: krishnagreen@gmail.com See: www.toxicswatch.org

About ToxicsWatch Alliance (TWA): Founded in 2005, ToxicsWatch Alliance (TWA), is an independent research and advocacy alliance that remains focused on corporate crimes, disasters, hazardous technologies, hazardous substances and wastes.