THE BAMAKO CONVENTION ON HAZARDOUS WASTE: A NEW STEP IN THE DEVELOPMENT OF THE AFRICAN INTERNATIONAL ENVIRONMENTAL LAW

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THE BAMAKO CONVENTION ON HAZARDOUS WASTE: A NEW STEP IN THE DEVELOPMENT OF THE AFRICAN INTERNATIONAL ENVIRONMENTAL LAW

in African Yearbook of International Law Online / Annuaire Africain de droit international Online

References

1 Hereinafter referred to as the 'Bamako Convention', reprinted in International Legal Materials, 1991, Vol. 30, pp. 773. As of 31 December 1992, the Bamako Convention was not yet in force; it has been ratified by three States only: Mauritius, Tunisia and Zimbabwe, Doc. OAU CAB/LEG/170. 2 Hereinafter referred to as the 'Basel Convention', reprinted in International Legal Materials, 1989, Vol. 28, pp. 656. As of 31 December 1992, 36 States were parties thereto among which three are African (Mauritius, Nigeria and Senegal); this convention came into force on 5 May 1992, United Nations, Multilateral Treaties deposited with the Secretary- General -Status as at 31 December 1991, UN Doc. ST/LEG/SER.E/10, New York, 1992, p. 871 and Supplement to UN Doc. ST/LEG/SER.E/10. 3 See International Environment Reporter - Current Reports, The Bureau of National Affairs, Inc, Washington DC, 1992, Vol. 15, Special Reports, p. 275. See also the Meeting of Dakar (Senegal), 23-27 January 1989, where 12 western countries failed to get 30 African countries to agree to a concrete plan of action on the banning of toxic waste shipments across national borders; according to the Swiss Minister, Flavio Cotti, the meeting broke down because the African States were suspicious of the motives of western countries in pushing the proposed treaty; moreover the African representatives demanded a massive injection of western technological help because they said that they were unable to solve the problem of transboundary waste movement themselves, International Environment Reporter - Current Reports, 8 February 1989, Vol. 12, No. 2, p. 49.

4 Came into force on 13 April 1963; reprinted in United Nations, Treaty Series, 1964, Vol. 486, pp. 103. 5 Concluded at Addis Ababa (Ethiopia) on 25 May 1963 and came into force on 13 September 1963; reprinted in United Nations, Treaty Series, 1963, Vol. 479, pp. 39. 6 See also its Article 2(1) Littera b) according to which the purpose of the OAU is to coordinate and intensify the cooperation and efforts of the Member States 'to achieve a better life for the peoples of Africa'. 7 See for instance, Resolution on Environment and Human Establishments, OAU, CM/ Res. 893 (XXXVII), Nairobi (Kenya), 15-201une 1981; Resolution on the Struggle against the Invasion of the East African States by the Locusts, OAU CM/Res. 650 (XXXI), Khartoum (Sudan), 7-18 July 1978; Resolution on the Drought and Other Natural Disasters, OAU, CM/ Res. 743 (XXXIII), Monrovia (Liberia), 9-20 July 1979; Plan of Action of Lagos, Lagos (Nigeria), 28-29 April 1980, Doc. OAU, ECM/ECO/9 (XIV) Rev. 2, pp. 119 (## 266-267). 8 At the beginning of the century, the African natural fauna and flora had already mo- bilized the attention of the colonial powers; see the two major treaties concluded on this matter: the London Convention for the Preservation of Wild Animals, Birds and Fish in Africa, adopted at London on 19 May 1900 by the Congo Free State, France, Germany, Great Britain, Italy, Portugal and Spain (the French text is reprinted in Clive Parry (ed.), The

Britain, Italy, Portugal and Spain (the French text is reprinted in Clive Parry (ed.), The Consolidated Treaty Series, Vol. 188, 1899-1900, Dobbs Ferry, New York, Oceana Publi- cations Inc, 1979, pp. 418-425) and the Convention relating to the Preservation of Fauna and Flora in their Natural State (with Annex and Protocol), signed at London on 8 November 1933 by the Governments of the Union of South Africa, Belgium, the United Kingdom of Great Britain and Northern Ireland, Egypt, Spain, France, Italy, Portugal and the Anglo- Egyptian Sudan (reprinted in League of Nations, Treaty Series, 1936, Vol. CLXXII, pp. 241 ). 9 Adopted at Algiers on 15 September 1968 and came into force on 16 June 1969; reprinted in United Nations, Treaty Series, 1976, Vol. 1001, pp. 19. (with annexed list of protected species). 10 Its Article VII relating to faunal resources provides, for instance, for the duty of the contracting States to ensure their conservation and the wise use and development within the framework of economic and social development (see also Article VI (1) littera a) relating to the conservation and utilization of forests); as for Article XIV, it requires the States to give full consideration, in the formulation of all development plans, to ecological, as well as economic and social factors. However, it should be pointed out that Article XVII relating to exceptions, lists among the situations susceptible of releasing the contracting States from their obligations 'the paramount interest of the State', 'defence of human life', and 'time of famine'. 11 Phytosanitary Convention for Africa, adopted at Kinshasa (Zaire) on 13 September 1967, Doc. OAU, CAB/LEG/24.4/11. 12 Convention establishing the Permanent Inter-State Committee for Drought Control in the Sahel, concluded at Ouagadougou on 12 September 1973 by eight African States (Cape Verde, Gambia, Burkina Faso, Mali, Mauritania, Niger, Senegal, Chad), and amended on 21 December 1977 at Banjul (Gambia). See also, Agreement relating to the Creation of the Inter- Governmental Authority for Drought Control and for the Development in East Africa, adopted at Djibouti on 16 January 1986 by six African States (Djibouti, Ethiopia, Kenya, Uganda, Somalia, Sudan). 13 Convention for the Protection of the Mediterranean Sea Against Pollution, adopted at Barcelona (Spain) on 16 February 1976 and came into force on 12 February 1978, United Nations Environment Programme (Nairobi), Convention for the Protection of the Mediter- ranean Sea Against Pollution, United Nations, New York, 1982; the five coastal African States (Morocco, Algeria, Tunisia, Libya and Egypt) are parties thereto. 14 This Article requires the contracting States to refrain to take, without prior notice to the Commission of the Chad Basin, any action likely to have an effect on the sanitary state of the waters or on the biological characteristics of the Basin fauna or flora, Convention and

Statute relating to the Development of the Chad Basin, adopted at Fort-Lamy (Chad) on 22 May 1964 by four African States (Cameroon, Chad, Niger, Nigeria), the French text is reprinted in Journal officiel de la République fédérale du Cameroun, 15 September 1964. See also Convention creating the Niger Basin Authority, adopted at Faranah (Guinea) on 21 November 1980 by nine African States (Benin, Cameroon, Chad, Cote d'lvoire, Guinea, Upper-Volta, Mali, Niger, Nigeria); one of the objectives ascribed to the said Authority is the control and the preservation of the environment (Article 4 (2) littera d)). 15 See Point 267, litterae a) and g) of the Plan, (cf. supra note 7). 16 Adopted on 27 June 1981 and came into force on 21 October 1986, Doc. OAU CAB/ LEG/67/3/Rev.2. 17 See on this question, Maesschalk, Anne & Gerard de Selys, 'Le cri d'alanne des pays- poubelles', Le Monde Diplomatique, August 1988, p. 3, and L'etat de l'environnement, OCDE, Paris, 1991, p. 164. See also 'Greenpeace claiming that illegal toxic waste were moving through Belgium to African destination', lnternational Environment Reporter - Current Reports, The Bureau of National Affairs, Inc, Washington DC, 12 April 1989, Vol. 12, Number 4, p. 184; more recently (10 April 1992) toxic waste were shipped back to Germany after Greenpeace tips off Egyptian officials, International Environment Reporter -Current Reports, 22 April 1992, Vol. 15, Number 8, p. 233. 18 See for instance, Decision and Recommendation of the Council on Transfrontier Movements of Hazardous Waste, of 1 February 1984 which is at our knowledge the first legal international instrument adopted in the field of transboundary movements, Doc. C(83) 180 (Final), reprinted in International Legal Materials, 1984, Vol. 23, pp. 214. On 5 June 1986, the Council of OECD adopted another resolution requiring Member States to monitor and control exports of hazardous wastes to a final destination which is outside the OECD area, 'Decision-Recommendation on Exports of Hazardous Wastes from the OECD Area', Doc. C(86) 64 (Final), reprinted in lnternational Legal Materials, 1986, Vol. 25, pp. 1010.

19 Doc. OAU Resolution CM/Res.1153 (XLVIII), reprinted in International Legal Ma- terials, 1989, Vol. 28, pp. 567. See also the resolution adopted on the same matter by the OAU Assembly of Heads of State and Government, Doc. OAU AHG/182 (XXV). 20 Adopted at Lome (Togo) on 15 December 1989, reprinted in lnternotional Legal Materials, 1990, Vol. 29, pp. 783 . 21 Adopted on 16 June 1972 by the United Nations Conference on the Human Environ- ment held in this same city from 5 - 16 June 1972, reprinted in International Legal Materials, 1972, Vol. 11, pp. 416. 22 Adopted by the General Assembly of the United Nations at its Thirty-seventh Session (annexed to Resolution 37/7 of 28 October 1982).

23 On this matter, see the arbitral award of 11 March 1941 in the Trail Smelter case (United States of America v. Canada) in Reports of International Arbitral Awards, Vol. III, United Nations, pp. 1905-1982; according to the Arbitral Tribunal 'under the principles of international law (...) no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence', ibid., p. 1965. See also Principle 21 of the afore-mentioned 'Stockholm Declaration' which specifies that: 'States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the envi- ronment of other States or of areas beyond the limits of national jurisdiction'. 24 At Abuja (Nigeria), on 3 June 1991, reprinted in International Legal Materials, 1991, Vol. 30, pp. 1241. 25 See also Article 58 ('Environment') which states that: '1. Member States undertake to promote a healthy environment. To this end, they shall adopt national, regional and continental policies, strategies and programmes and establish appropriate institutions for the protection and enhancement of the environment. 2. For purposes of paragraph 1 of this Article, Member States shall take the necessary measures to accelerate the reform and innovation process leading to ecologically rational, economically sound and socially acceptable development policies and programmes'.

26 See Articles 21 to 23.

27 See the customary rule codified by Article 18 of the Vienna Convention on the Law of Treaties concluded at Vienna on 23 May 1969, reprinted in United Nations, Treaty Series, 1980, Vol. 1155, pp. 331. 28 '[...] control of transboundary movement and management of hazardous wastes within Africa' (emphasis added); the french title is much more significant: 'contr6le des mouvements transfrontieres et la gestion des dechets dangereux produits en Afrique' (emphasis added). 29 Adopted at Montego Bay (Jamaica) on 10 December 1982, not yet in force but, as at 31 December 1992, ratified by 51 States among which 26 are African, (reprinted in International Legal Materials, 1982, Vol. 21, pp. 1261). See in a more general way its Part II called 'Protection and Preservation of the Marine Environment'. See also, Article 25 of the 'Convention on the High Seas' at Geneva on 29 April 1958 and which requires the contracting States to take measures to prevent pollution of the seas from the dumping of radioactive wastes.

30 Before giving its approval, the coastal State must, however, consider the matter with other States which by reason of their geographical situation may be adversely affected by the said dumping. 31 Opened to signature at London on 29 December 1972, and came into force on 30 August 1975, reprinted in International Legal Materials, 1972, Vol.l l, pp. 1294. 32 Contracting States exercising their right to prohibit the import of hazardous wastes shall, however, inform the other parties of their decision (Article 4 (3) littera q)). 33 Littera j) of the same article provides for a prohibition which is hardly distinguishable from the preceding one; as a matter of fact, it bans exports of hazardous wastes to States which do not have the facilities for treating or disposing of them in an environmentally sound manner. 34 See Article 4 (3) littera i).

35 See infra.

36 See supra the regime of prohibition established by the Convention.

37 According to Article 6 (2) in fine, a copy of the final response of the State of import shall be communicated to the 'States concerned', that is States of export or import, or States of transit, whether or not parties. In that case, the opportuneness of Article 7 would be questionable since that provision states that 'Paragraphs 2 and 4 of Article 6 of this Con- vention shall apply mutates nutandis to transboundary movements of hazardous wastes from a party through a State or States which are not parties'. For that reason, the English version of Article 6 (2) should be brought into conformity with the French text which specifies 'Etats concernes qui sont parties a la presente Convention'; this is actually also the wording of the English and French texts of Article 6 (2) of the Basel Convention. Furthermore, one shall point out that the English version of Article 7 of the Basel Convention refers only to paragraph 2 of Article 6 of this latter (the French, Russian and Spanish versions refer probably by mistake to paragraph 1 instead of paragraph 2). By referring also to paragraph 4 of Article 6, the Bamako Convention is providing for an obligation for third States (see Article 35 of the Vienna Convention on the Law of Treaties); it is thus making transboundary movements difficult since the State of export cannot allow the transboundary movement to commence until it has received 'the written consent of the State of transit' who is not obliged to respond to the notifier if it is not party to the Bamako Convention. 38 See, for example, the early adoption, on 7 July 1988, by Cote d'lvoire of a law on toxic and nuclear waste which punishes by imprisonment from 15 to 20 years and a substantial fine, anyone committing an act relating to the buying, selling, importing, transiting, depos- iting, and stocking of toxic and nuclear waste and noxious substances, reprinted in Inlerna- tional Legal Materials, 1989, Vol. 28, pp. 391.

39 See infra.

40 See Article 15 (7) of the Basel Convention which states that: 'The Conference of the Parties shall undertake three years after the entry into force of this Convention, and at least every six years thereafter, an evaluation of its effectiveness and, if deemed necessary, to consider the adoption of a complete or partial ban of transboundary movements of hazardous wastes and other wastes in light of the latest scientific, environmental, technical and economic information'. 41 One shall, in substance, point out that Article 20 of the Bamako Convention provides that in case of disputes as to its interpretation or application, the parties shall seek a settlement of the dispute through negotiations or any other peaceful means of their own choice. Para- graph 2 of the same Article, moreover, states that if the parties cannot settle their dispute as provided for in paragraph 1, such a dispute 'shall be submitted either to an Ad Hoc organ set up by the Conference for this purpose [see Annex V of the Convention], or to the International Court of Justice'. Such a wording implicates the compulsory jurisdiction of either the said arbitral tribunal or the International Court of Justice. It is, however, unlikely that this was the real intention of the parties. As far as it is concerned, the Basel Convention (Article 20) provides only for an optional jurisdiction of one of these two bodies, thus following more or less the classical solution in matters of environment as adopted for instance by the Vienna Convention for the Protection of the Ozone Layer, concluded on 22 March 1985 under the auspices of the United Nations Environment Programme, reprinted in Inter- national Legal Materials, 1987, Vol. 26, pp. 1529.

42 See in both, Article 11. 43 As of 31 December 1992, three African States (Mauritius, Nigeria, Senegal) were parties to the Basel Convention; one of them, Mauritius, has also ratified the Bamako Convention (see supra, notes 1 and 2). 44 Article 11, para. 1, of the Basel Convention is worded as follows: '1. Notvithstanding the provisions of Article 4, paragraph 5, parties may enter into bilateral, multilateral, or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with parties or non-parties provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention. These agreements or arrangements shall stipulate provisions which are not less environmentally sound than those provided for by this Con- vention in particular taking into account the interests of developing countries' (emphasis added). 45 Article 11, para. 1, of the Bamako Convention is worded as follows: 'I. Parties to this Convention may enter into bilateral, multilateral, or regional agreements or arrangements regarding the transboundary movement and management of hazardous wastes generated in Africa with parties or non-parties provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes as required by this Convention. These agreements or arrangements shall stipulate provisions which are not less environmentally sound than those provided for by this Convention' (emphasis added).

46 See Article 4, para. 3, littera i). 47 As codified by Article 30 of the Vienna Convention on the Law of Treaties concluded on 23 May 1969. 48 See, for instance, the statement made on 9 September 1992 by the UNEP Executive Director; according to the latter: 'Italian and Swiss firms trading in hazardous waste entered into a contract with an individual named Dr Nur Elmy Osman, who describes himself as Minister of Health of the Republic of Somalia. The contract allows for the export of various types of waste to Somalia for 20 years, 1991-2011. The value of the current phase of the contract is believed to be in the order of US$ 80 million. Shipments - each of 100,000 to 150,000 tonnes - were to have yielded a profit of US$ 8-10 million each. A Swiss firm

involved in the transaction was to take a profit of US$ 2-3 million per shipment. A Swiss firm is reported to be engaged in building two ship-board incinerators which would be used for the incineration of early waste consignments. No firm evidence of shipments actually having been made has come to this office. There are allegations that waste consignments have already been dumped along the Somali coast. We are awaiting further information on this. In a separate incident, 81,200 litres of toxic chemicals have been spilled in Somalia and are threatening scarce drinking water supplies in the north of the country. The chemicals were stored in a pesticide warehouse which was brought under fire', UNEP, Press Releasel Disposal of Hazardous Wastes in Somalia - Statement by UNEP Executive Director Dr Mostafa K Tolba, Nairobi, 9 September 1992, pp. 1-2. One may recall that Switzerland ratified the Basel Convention on 31 January 1990 and that pursuant to Article 4 (5) of this Convention which came into force on 5 May 1992: 'A party shall not permit hazardous wastes or other wastes to be exported to a non-party or to be imported from a non-party'; as far as it is concerned, Somalia is not party to the Basel Convention.

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