Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1989 (Basel Convention)
Date of Signature: 22 March 1989
Entry into Force: 5 May 1992
Contracting Parties: list of Parties as of December 2010
Geographical Scope: Global
Current classification of CO2 under the Convention: not a regulated substance Current status of CCS under the Convention: not a regulated activity.
What are the aims and requirements of the Convention?
Aims and principles
The aim of the Basel Convention is to protect human health and the environment from risks caused by international trade in hazardous waste. The Convention calls for a reduction in the production of dangerous waste and establishes a global regime for the control of their transboundary movement. Overall, this Convention's approach relies on the 'principle of proximity', which establishes that waste should be disposed in the State where it is produced. At present, the Convention has 174 Contracting Parties. Some states, such as the US, have not yet ratified it. The European Union adopted Regulation 1013/2006 on shipment of waste, in order to implement the Basel Convention for all EU Member States.
Definition of hazardous waste and transboundary movement
Under the Basel Convention, wastes are those 'substances or objects which are disposed of ... by the provisions of national law'. The categories and characteristics of 'hazardous wastes' are listed in Annexes I to III. Contracting Parties can add other categories of waste that are considered hazardous under their national laws, subject to notification to the Secretariat of the Convention.
Carbon dioxide is not listed in any of these annexes, and therefore should be considered a substance whose transport is not restricted by the provisions of the Basel Convention.
Right to prohibit import and enabling conditions for transboundary transport of hazardous wastes
The Basel Convention provides that international trade in hazardous waste is subject to the prior consent of the receiving country, which is also entitled to prohibit this transport to, or across, its territory.
Transboundary movement is prohibited to non-Party countries, and if 'there is reason to believe that the waste in question will not be managed in an environmentally sound manner' in the State of import.
Transport must be accompanied by a specific authorisation and corresponding information documents; and must comply with 'generally accepted and recognised international rules' and 'relevant internationally recognised practices' (Article 4.7 (a)).
Pre-conditions for transport to be allowed under the Basel Convention are that:
the State of origin lacks the technical capacity, adequate facilities or suitable storage sites for the disposal in an environmentally sound way; and
the wastes in question are considered raw material for recycling or recovery industries in the State of import.
Additional conditions can be required by individual States.
International Co-operation
The Basel Convention requires Parties to cooperate by sharing information, monitoring the effects of the management of hazardous waste on human health and the environment, and developing 'appropriate technical guidelines and /or codes of practice' (Article 10).
1995 Basel Ban Amendment and the 1999 Protocol on Liability
In 1994, Contracting Parties to the Basel Convention decided to ban the transport of hazardous waste from developed to developing countries. In 1995, this ban was transposed into an amendment to the Convention (Decision III/1), applicable to transport of hazardous waste between Annex VII countries (EU Member States, Members of the Organization for Economic Cooperation and Development (OECD) and Liechtenstein) and non-Annex VII countries.
In addition, the 1999 Protocol on Liability establishes a liability and compensation mechanism for accidents occurring during the transport of hazardous waste. However, neither the Basel Amendment nor the Liability Protocol have yet come into force.
Key legal issues concerning CCS
The main issue arising under the Basel Convention is whether CO2 should be considered a hazardous waste and therefore included in the scope of the Convention. The fact that CO2 is not mentioned in the Convention seems to support the argument that transport of CO2 is not subject to any requirement or obligation. However, it has been noted that some of the hazardous characteristics listed in Annex III (such as corrosiveness, toxicity) could apply to CO2 under specific physical and chemical conditions. This could support arguments for its inclusion within the scope of the Basel Convention. Thus far, the Conference of the Parties has not addressed this issue; however, the inclusion of CO2 in the framework of the Basel Convention would have an impact upon the development of CCS, by imposing stricter conditions on CO2 when it is transported across international boundaries.
Annex IV on disposal operations has been suggested as the legal basis for including CO2 under the framework of the Basel Convention. Under this Annex, activities such as 'injection and storage' of waste are covered by the provisions of the Basel Convention. This could justify the regulation of CCS within the framework of the Basel Convention.
The classification of CO2 as a hazardous waste under the Convention could create tensions between States that decide to prohibit transport or transit of CO2 to, or across, their territory, and States that allow such transport. Such unbalanced regulation could represent an obstacle to the uniform development of CCS, causing detours in pipeline routes and increased costs.
The Convention also refers to international standards that should be complied with in order legally to transport hazardous wastes. However, no uniform international standards regulate the transport of CO2 for geological storage, indicating a legislative gap. However, the Convention requires Parties to co-operate in developing 'appropriate technical guidelines and/or codes of practice'. If it applied to CO2, this provision might stimulate the formulation and harmonisation of uniform international standards for transport of CO2 for the purpose of geological storage.
Under the Convention, hazardous waste can only be transported if the State of origin demonstrates that it does not have the technical capacity, storage sites or adequate facilities to dispose of the waste in its own territory. If applicable to CO2, this would limit legal transboundary transportation to instances where there was proof that these conditions were satisfied. The transport of CO2 is also subject to the condition that the importing State will manage the hazardous waste in an 'environmentally sound manner'. If applicable to CCS, uncertainty could arise with respect to the parameters to be taken into account in the fulfilment of that requirement.
The 2005 IPCC report argued that the only circumstance in which CO2 would fall under the scope of the Basel Convention would be when CO2 is mixed with other substances listed in the Convention. That suggests that the applicability of the Convention's regime will depend crucially on purity standards for transported CO2 from the capture to the storage site. However, at present this interpretation is not agreed.
An amendment or an interpretative note from Contracting Parties is necessary to clarify the international regulation of CO2 when it comes to the transboundary transportation phase of CCS. However, this has not so far been put on the agenda of the Contracting Parties to the Basel Convention.