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Hazerdous substances and waste (including shipments of waste)

25 important questions on Hazerdous substances and waste (including shipments of waste)

Which environmental law principle is central to international law on hazardous substances and how has the principle been translated into specific legal norm

Precautionary principle, because it is mentioned in the ILCs draft articles that hazardous substances covers activities, ‘which involve a risk of causing significant transboundary harm through their physical consequences.’

How does the Stockholm Convention regulate hazardous substances?

This convention is a global treaty that aims to protect human health and the environment for the effects of persistent organic pollutants (POPs). This convention requires parties to adopt a range of control measures to reduce, and where feasible, eliminate the release of POPs.

The Basel Convention aims to prevent the shipment of waste to developing countries. What legal rules have been adopted under this convention to achieve that aim?

The implementation of Annexes which describes the types of waste, characteristics, etc. In article 4 it is laid down that no shipments are allowed to developing countries, only between parties to the Convention. Als the concept of PIC is laid down here, a shipment cannot occur without out prior consent of the state which the waste is imported to. A liability protocol was also adopted under this Convention

A liability protocol was adopted but did not enter into force yet. Who will be liable for damage caused by an illegal shipment and how?

Two kinds of liability are distinguished in this protocol. - Strict liability  liability on the notifier, switches to the disposer after the waste is received by the Gedownload door Esmee De Koning (esmay100@gmail.com) lOMoARcPSD|5097417 disposer - Fault liability  liability on all others that contributed to the damage arising out of a shipment

What does a circular economy entail? What type of legal rules will be needed to achieve this?

The EU has adopted achieving a circular economy as its main policy goal. This concept is based on three principles, namely, to eliminate waste and pollution, to circulate products and materials at their highest value and to regenerate nature. This is quite a challenge to achieve. Legal rules will have to be implemented on three areas namely on the three principles mentioned.

What are the problems wth hazaourdous substances?

Hazardous substances from pesticides, solvents, pharmaceuticals and industrial chemicals accumulate in fat tissues animals and humans (mostly through diet) o 700 toxic chemicals that may accumulate in human body (causes cancer, allergies and hypersensitivity, damage to the central and peripheral nervous systems, reproductive disorders, and disruption of the immune system).  Recent research on pregnant women: 56 toxins on average (transferred to baby in womb and through breast feeding) - 2.12 billion tons of waste dumped per year (if on trucks: 24 times around the world)

WHat is the Stockholm Convention on Persistent Organic Pollutants (POPs) (2001)

184 parties, including EU, China (not US) o A big global convention that includes a lot of parties!

Based on precautionary principle (Art. 1) o The precautionary principle is of big importance because we need to make a difference even before there is scientific proof of harm such a substance can cause. - Covers >30 chemicals in 3 annexes

What is not allowed under PIC

No disguised trade restrictions are allowed (i.e., ban also has to apply to domestic production)

What does the complaince committe do under PIC?

Compliance Committee (2020) (quite unusual in international law) (role is to help parties with complying with the convention not to impose sanctions when they do not comply) o Assist with compliance issues (no sanctions) o Report to COP (‘naming and shaming’)  Hopes to prevent non-compliance

What is waste under the basel convention

Everything can be considered waste, that’s why this convention has open categories.

What are the waste categories in the basel convention?

Hazardous wastes and other wastes: o Hazardous: Annex I (types of waste) & III (characteristics) o Other: Annex II (household waste) o Including reusable waste

To who can you ship? Under the basel convention?

Shipments only between Parties to Basel Convention Gedownload door Esmee De Koning (esmay100@gmail.com) lOMoARcPSD|5097417 o No shipments to developing countries (Art. 4A)

PIC what steps need to be taken to ship?

Prior Informed Consent (PIC)(Art. 6(3)): Steps that need to be taken: o Notification o Consent in writing o Contract between exporter (‘notifier’) and disposer (environmentally sound management) o Illegal: take back duty, unless ‘impracticable’ (Art. 9(2)) o Duty to punish illegal traffic! (Art. 9(5))

What is the liability protocol and what kinds of liability do they have?

Liability Protocol (1999)
o Unique in international environmental law
 However: only 12 ratifications (13 signatories), of 20 ratifications needed before entry into force…
o Strict liability on notifier, switches to disposer after waste received by disposer o Fault liability on all others that contributed to the damage arising out of a shipment (incl. authorities!)

What falls under the liability of the liabiliy protocol?

Not just damage caused by illegal traffic o All costs: loss of life, personal injury, damage to property, loss of income, measures of reinstatement of the impaired environment, preventive measures

How is the liability protocol implemented in the eu?

o EU Regulation 1013/2006 on shipments of waste
 Prior written notification + consent (Art. 4)
 Standard documents (annexes to Regulation)
 Contract between notifier and disposer (Art. 5)
 Financial guarantee  for costs of storage and shipment back to place of origin by authorities (Art.6) ➔ duty to take back (Art. 22-25)

What categories of shipment are there in the 1013/2006 regulation?

Four categories of shipments (on each of these rules there are rules of disposal and recovery)  Within EU  Exports from EU  Imports in EU  Transit (including EU-3rd country-EU)

Based on the categories of shipment EU rules for each of these categories make distinction between. What is the goal of the waste?

o Waste destined for disposal (strict) 
Prohibit shipments based on principles of the Waste Framework Directive (self-sufficiency, proximity, priority for recovery), or in case of previous illegal shipments by notifier/disposer

o Waste destined for recovery (less strict)
 Prohibit shipments for same reasons, but not when recovery in the other member state is broadly equivalent (Free movement of goods!)

How did the probo koala case ended in Ivory coast?

Ivory Coast o settlement out of court by Trafigura  152 million euro paid to authorities by Trafigura  Trafigura stated that it did not except responsibility  All present and future civil and criminal cases in Ivory Coast dropped.o 20 years imprisonment of responsible person of the local waste company •

Probo Koala case in UK?

United Kingdom o liability/tort case  30,000 claimants (2006)  Settlement out of court: £ 30 million (2009)  Part of the money seized by criminals  Law firm held liable for this loss of around 7,000 claimants (2016)

What is Framework dirctive on waste 2008/98?

 Principles of self-sufficiency, proximity, priority for recovery  Range of waste reduction targets for MS. Many amendments 2018: Circular economy

Directive 94/62 on Packaging and Packaging Waste?

 Reduction of volume of packaging waste
 Return, recycling obligations
 Reduce plastic carrier bags (no more free of charge 31.12.18

Directive 99/31 on the landfill of waste?

 Permit requirements, after closing, etc.  Progressive reduction of landfill (2018 changes: circular economy)

Directive 2000/76 on the Incineration of Wast

e  Permit requirements, emission limit values, etc

The EU has adopted achieving a circular economy as its main policy goal o Focus primarily on plastics, what are the steps they take?

 First step: Single Use Plastics Directive (Directive 2019/904/EU)  Aims 2030: all plastics packaging is either reusable or can be recycled, >50% of plastics waste is recycled, sorting and recycling capacity has increased fourfold since 2015, leading to the creation of 200,000 new jobs in EU o Complete overhaul of legislation required  Laws on waste, chemicals, food safety and others may hamper closing product cycles

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