Trading Plastic Waste in a Global Economy: Soundly Regulated by the Basel Convention?

Abstract

This article investigates the implications of the Basel Convention’s amendments on plastics as part of the transition to a more sustainable global plastics economy where plastic wastes are seen as a valuable resource. Key categories of plastics continue to be excluded from the Convention, provided they are destined for recycling in an ‘environmentally sound manner’ (so-called ESM recycling). The exact interpretation of ESM recycling is worthy of attention as the way in which the term is applied reveals much about the kind of plastics economy that the Convention supports, which, as shown here, continues to risk mismanagement of plastic waste abroad. This article finds that, absent sound regulation, there is a need to reimagine the role of the country of export and strengthen its responsibilities to ensure the sound management of plastic wastes abroad.

1. Introduction

The world generates around 343 million metric tonnes (Mt) of primary plastic waste, of which a fifth or less is being recycled and the rest incinerated or disposed of.¹ This linear ‘throw away culture’ and the huge amounts of plastic waste that it generates has well documented negative consequences. These consequences include contributing to resource depletion and greenhouse gas emissions; leading to the leakage of plastics and toxic chemicals into the environment, which causes significant physical and toxicological harm on the ecosystems; as well as the loss of economic value of plastic following single or short use.² Growing awareness of these problems and their negative impact on sustainable development has led, in March 2022 at the resumed 5th session of the United Nations Environment Assembly (UNEA), to the unanimous adoption of a resolution to convene an intergovernmental negotiating committee to develop a new international legally binding instrument on plastics pollution to address the full lifecycle of plastic.³

Despite this growing momentum to tackle the plastic waste problem, there is neither a defined common goal (what constitutes sustainability in relation to plastics), nor agreed on common approaches to deal with these issues at the international level. This ambiguity over goals and approaches can also be observed in the recent ‘plastic waste amendments’ to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the Convention).⁴ These amendments were adopted in May 2019 at COP14 and bring more plastics within the regulatory scope of the Convention, and came into effect on 1 January 2021.⁵ COP14 also launched the updating⁶ of the Technical Guidelines on the environmentally sound management (ESM) of plastic wastes adopted at COP6 (2002 Plastics Guidelines).⁷ It also created an inclusive ‘Plastic Waste Partnership’ to mobilise stakeholders in improving and promoting the ESM of plastic waste, and in preventing and minimising its generation.⁸ The Basel Convention is widely ratified by 189 parties, including all major producers of plastic waste and those involved in their trade.⁹ It thereby plays an important role in the global plastics economy, which relies on the trade in plastic waste.¹⁰

The new plastics treaty under negotiation is suggested to include the promotion of ‘sustainable production and consumption of plastics, including among others, product design, and environmentally sound waste management, including through resource efficiency and circular economy approaches’.¹¹ The reference to ESM means that the new plastics treaty will overlap with existing legal frameworks for plastic waste, which it will have to consider. There is therefore an urgent need to examine what international law currently delivers on plastic waste management, to highlight legal barriers, and to identify solutions to these.¹² This article seeks to contribute to this debate by examining the implications of the Convention’s plastic waste amendments, and the potential and limitations of the Convention’s reliance on ‘recycling in an environmentally sound manner’ (so-called ESM recycling). ESM recycling sets a threshold for plastic wastes to be excluded from the scope of the Basel Convention, and potentially provides an international standard with normative implications beyond the Convention. To the extent that the Convention fails to support greater sustainability in relation to plastics, this article also asks where solutions may be found. It considers how updating the 2002 Plastics Guidelines could contribute to greater clarity, and asks whether the country exporting plastic waste could play a greater role in ensuring ESM abroad (either through a strict interpretation of its international obligations, or by voluntary upward derogation). Identifying these barriers and possible solutions could feed back into the ongoing discussions over a new plastics treaty, which may make specific reference to (or even broaden) the obligations and guidance developed under the Basel Convention concerning the ESM of plastic wastes.

The article is structured as follows. Section 2 examines how a more sustainable plastics economy could be defined, and contextualises the Basel Convention’s mechanisms and principles in light of this, in so far as it now applies to plastic wastes. Section 3 critically examines the continued exclusion of a long list of plastic wastes from the scope of the Convention when they meet the threshold of ESM recycling. It analyses this ambiguous concept and looks at the role that guidance developed under the Convention plays in determining what constitutes ESM plastics recycling at a technical level, and more generally, in determining the appropriate steps to be undertaken by countries to ensure it. Having identified the lack of control over plastic waste exports as a significant challenge to greater sustainability, something which is amplified by the uncertainty over what constitutes ESM recycling and what plastic wastes therefore continue to be excluded from the Convention, section 4 examines which appropriate steps can, and should, be expected of the country exporting its plastic waste, in order to mitigate this. Section 5 concludes.

2. Within the Scope of the Basel Convention: Implications for a Sustainable Plastics Economy

2.1 Conceptualising a Sustainable Plastics Economy

Despite the absence of a clear common goal or common approaches to make the plastics economy more sustainable, it is increasingly popular across a variety of jurisdictions and internationally to promote a more circular plastics economy as a way to ensure sustainability.¹³ Though not unique to plastics, the circular economy model is encouraged through national legislation,¹⁴ and it is generally seen as beneficial to achieving several of the 2030 Sustainable Development Goals (SDGs).¹⁵ A circular economy is generally understood as an economic system in which the value of products, materials, and other resources is kept as high as possible and for as long as possible.¹⁶ In a circular economy, ‘it is the reuse of vast amounts of material reclaimed from end-of-life products, rather than the extraction of resources, that is the foundation of economic growth’.¹⁷ Plastic wastes that lend themselves to recycling into new plastics and products thereby become a resource with intrinsic commercial value.

There are, nevertheless, both practical and conceptual limitations to the circular economy model. As a start, greater circularity is not always environmentally, economically, or even socially sound. For example, it can be technologically difficult to meaningfully recycle certain plastics, and to do so in a manner that is not more energy consuming or polluting than outright disposal.¹⁸ Waste contamination and the use of certain additives can complicate recycling potential.¹⁹ There is also the difficulty to create new plastic products from recycled materials that, in turn, may later be meaningfully recycled, as well as the issue of material degradation over time.²⁰ Continuing down the list, there are the questions under what conditions circularity is more desirable than, for example, the use of linear (biodegradable, compostable) plastics; whether alternative materials would reduce overall environmental footprint; how to carry out a lifecycle analysis that might inform these decisions;²¹ and whether society has to change at a more fundamental level and consume less, as well as differently.²²

Clearly, there is an urgent need to define the parameters for shifting the plastics economy towards greater sustainability. With this ambiguity in mind, the next section examines how the Basel Convention applies to plastic wastes, and how its mechanisms and principles relate to these conceptual questions. This is also to show that although the Convention was not designed as an instrument that incentivises a particular conceptualisation of the plastics economy, its application to plastic wastes has implications to this effect.

2.2 Plastic Within the Basel Convention: Legal Implications

The Basel Convention distinguishes between several types of waste streams: hazardous wastes, ‘other wastes’ that require special consideration, and wastes that are presumed non-hazardous and which therefore fall outside the scope of the Basel Convention altogether.²³ Which waste streams fall within which category is set out in a series of Annexes. Annex I contains a list of categories of waste that are deemed hazardous unless they do not possess any of the hazardous characteristics contained in Annex III, such as being poisonous or ecotoxic.²⁴ Moreover, export/import/transit countries can themselves designate particular wastes as hazardous in their domestic legislation, which will then be considered hazardous for the purpose of the Basel Convention.²⁵ Two further Annexes were adopted in 1998 to facilitate the exercise of interpreting what is hazardous, and what is not. Namely, Annex VIII, which lists wastes that are presumed to be hazardous (unless proven otherwise), are therefore controlled under the Basel Convention, while Annex IX lists wastes presumed to be non-hazardous and therefore fall outside the scope of the Convention (unless proven otherwise). Finally, Annex II contains a list of categories of other wastes that require special consideration and are thus also controlled under the Convention.²⁶ For most intents and purposes there is no need to distinguish between hazardous wastes and other wastes that require special consideration (hereafter: controlled wastes), as they are mostly subject to the same mechanisms and principles of the Basel Convention.

It is the list of controlled wastes found in Annex II and VIII and the list of wastes presumed non-hazardous (Annex IX) that were amended at COP14, and together determine the scope of the Basel Convention for plastic wastes. The amendments clarify that all plastic wastes—including mixtures of such waste—now fall within the category of other wastes (Annex II, so-called ‘entry’ code Y48), except those that are presumed hazardous (Annex VIII, entry A3210) or which are presumed non-hazardous (Annex IX, entry B3011). The latter narrows the scope of plastic wastes which are presumed non-hazardous and thereby fall outside the scope of the Convention, although ambiguity remains about some of the conditions for exclusion. A simplified and adapted overview of the amendments is provided in Table 1.

Hazardous and other plastic wastes that are now clearly included within the scope of the Basel Convention are subject to the Convention’s different mechanisms and principles. The overarching aim of these is to protect human health and the environment.²⁷ This aim is embodied through the concept of ESM, which predates and is not unique to the Basel Convention, but has been given specific meaning in its context of waste management.²⁸ The Convention defines ESM as ‘taking all practicable steps to ensure that [controlled wastes] are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes’.²⁹ ESM is both expressed through and incentivised by the Basel Convention’s other mechanisms of waste minimisation, self-sufficiency, minimising and controlling transboundary movement, and so on, and looks as follows.

First of all, the Basel Convention encourages a reduction in controlled wastes. Parties must take the appropriate measures to ensure that the generation of such wastes is ‘reduced to a minimum’.³⁰ Though minimisation can be seen as conceptually distinct from management, waste prevention and minimisation are the first steps in the waste hierarchy, a management principle that is increasingly recognised as fundamental to ESM.³¹ The obligation to reduce the generation of wastes to a minimum applies to all plastic waste included within the scope of the Convention, recyclable or otherwise. Waste under the Basel Convention is defined broadly as ‘substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law’.³² Disposal operations listed under the Convention include both final disposal and various recovery options.³³ This suggests that even recyclable controlled plastic wastes should be minimised. This obligation to minimise all controlled wastes implies that there are up-stream obligations of sustainable production (for example, to design for recyclability or requiring material substitution), though the weight of this generic obligation is attenuated by parties being able to take into account ‘social, technological and economic aspects’.³⁴

Second, once controlled plastic waste is generated, countries should ensure the availability of adequate disposal facilities for the ESM of controlled wastes (principle of self-sufficiency), and prevent and minimise any pollution from their waste management.³⁵ This waste management should take place as close as possible to the source of generation (principle of proximity) and the transboundary movement of wastes should be minimised (least transboundary movement principle).³⁶ The movement of wastes carries a risk of pollution during transit and at destination, often due to mismanagement. This is of particular concern for shifting to a more sustainable plastics economy, as the export of plastic waste is associated with a high risk of pollution, in particular since some of the top export destinations rank among the top countries in terms of contribution to plastic waste mismanagement.³⁷

The Basel Convention’s concern with minimising transboundary movement is reflected across several obligations, including outright limitations on the trade in waste, as follows. Controlled wastes may not be exported to, or imported from, a non-party to the Basel Convention. A notable exception to this is if parties have an agreement to that effect which requires at least the same level of ESM as the Basel Convention.³⁸ The Organisation for Economic Co-operation and Development (OECD) waste trading regime, for instance, falls within the scope of this exception.³⁹ Another limitation on export that arises from the recent plastics amendments affects only plastic wastes listed as deemed hazardous (Annex VIII), which can no longer be exported from an Annex VII party (an OECD member, the European Union (EU) or Liechtenstein) to a non-Annex VII party.⁴⁰

Where no export ban is foreseen, the transboundary movement of controlled wastes is still only allowed in specifically defined circumstances. Parties can export waste where they lack the technical capacity and the necessary facilities, capacity, or suitable disposal sites to dispose of waste in an environmentally sound and efficient manner.⁴¹ This could be interpreted broadly, as has been the case, reflecting a reluctance of parties to put too many restrictions on the export of controlled wastes.⁴² In addition, wastes can be exported where they are required as a raw material for recycling or recovery industries in the country of import.⁴³ This leads to the third point, namely that the Basel Convention reflects the growing view that waste—including recyclable plastic waste—is a resource with intrinsic commercial value.⁴⁴ At the time of the adoption of the Basel Convention, this was particularly relevant for the recovery of metals, as a significant proportion of the trade in hazardous wastes consisted of recoverable metals or metal-bearing wastes.⁴⁵ It also sits at the heart of a modern circular economy approach. The export of all controlled wastes, however, is subject to prior informed consent (PIC), and parties may, from the outset, decide not to consent to certain categories of waste imports.⁴⁶ Where a party does not prohibit the import in principle, its consent must still be sought for individual shipments,⁴⁷ and the Convention foresees certain procedural requirements.⁴⁸ Importantly, the Basel Convention preconditions waste exports on the principle that wastes are to be managed in an environmentally sound manner (ESM).⁴⁹ The country of export has an important role to play here, as it is under the obligation to take the appropriate measures not to allow exports of Basel-controlled waste ‘if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner’.⁵⁰ These broad requirements are implemented by means of a contract between the exporter and the disposer specifying the ESM of the wastes in question,⁵¹ and a take-back obligation where the waste is not soundly managed upon arrival, or in the case of illegal waste traffic.⁵²

2.3 Plastics Within the Basel Convention: An Appraisal

Despite the Basel Convention’s key provisions, the conclusion cannot easily be drawn that the Basel Convention encourages plastic waste only to be exported as part of a more environmentally sound, or indeed, a more circular global economy. It is unclear when (plastic) waste would constitute the kind of raw material for recycling or recovery that warrants export. One of the difficulties is that the Convention does not generally distinguish between waste exported for recycling and waste exported for other recovery operations,⁵³ which may include non-selective recycling methods that yield very little or no final recycled product. This puts into question whether any plastic waste destined to undergo such a process can be considered a raw material of the kind envisaged for instance by a circular economy model. The situation is particularly complex in the context of plastics, where the concept of ESM recycling lends itself to making such a distinction but is fraught with ambiguity, as explained in Section 3 below.

Moreover, there is the challenge of controlling what happens to wastes after export and to ensure that wastes are not mismanaged and lose their resource potential, if ever they had any. Adequate oversight and control are difficult to ensure in practice, and the export of plastic waste destined for recycling and other recovery operations have been prone to mismanagement in the past.⁵⁴ Risks of mismanagement are exacerbated by the plastic market’s volatility. For example, for many years, China has received the bulk of global waste exported for recycling.⁵⁵ This changed rapidly when, after several years of increasingly strict waste policies, China adopted a ban (effective as of January 2018) on the import of 24 kinds of solid wastes, including plastics waste from non-industrial sources.⁵⁶ Import restrictions from other Asian countries followed suit, and as a result, global plastics exports dropped by about half from 2016 to 2018.⁵⁷ The latest available data show that ‘only’ around 8 Mt of the plastic wastes produced globally are nowadays being exported internationally, mostly by developed countries for the purpose of recycling abroad.⁵⁸ At the same time, new export markets continue to emerge, alongside an increase in the illegal plastic waste trade.⁵⁹

On the whole, the actual effects of bringing more plastics within the scope of the Basel Convention remain to be seen. It is evident that these new limitations on the plastic waste trade and the bureaucracy and higher cost of having to ensure PIC will have implications for industry. On the one hand, the amendments may have the positive effect of boosting recycling facilities in the country where the waste is generated.⁶⁰ The European Environment Agency predicts that although the Basel Convention amendments will likely cause increased landfilling in the short term, they also provide a clear signal for EU countries to move towards a more circular plastic economy.⁶¹ On the other hand, there is the risk that these measures will have a stifling effect. The World Economic Forum warns of developing countries’ capacity constraints to efficiently review and process PIC notifications,⁶² and interviews with companies raised the question whether the new requirements will in fact slow down recycling initiatives and global circular economy prospects because ‘the time, effort and legal uncertainties may outweigh the costs of investing in recycling capacities intended for scale’.⁶³ These concerns have been echoed by industry elsewhere.⁶⁴ New dynamics in the waste market may also lead to illegal waste disposal practices, in particular if there is a lack of capacity in current recycling centres to deal with any sudden surplus waste.⁶⁵

The preliminary conclusions that can be drawn from this brief overview is that the Basel Convention contains several requirements that could help shift to a more sustainable plastics economy, however the term is understood. The practical effects and conceptual implications of subjecting plastic wastes to these requirements will greatly depend on questions of definition (when does plastic waste constitute a raw material for recycling? what constitutes the ESM of plastic waste?) and the distribution of duties between the exporting and country of import (what practicable steps must be undertaken, and by whom?). This article returns to these questions after investigating which plastics remain excluded from the scope of the Basel Convention, which adds a layer of complexity to how plastic waste is regulated at the international level.

3. ESM Recycling: A New Definition?

3.1 Outside the scope of the Basel Convention for the (not so) Soundly Recycled

Prior to the COP14 plastics amendments outlined above, plastic wastes were to some extent controlled under the Basel Convention by virtue of the reference to ‘wastes collected from households’ in the list of ‘other wastes’ (Annex II, entry Y46).⁶⁶ However, the Basel Convention also included a broad and open-ended list of plastic wastes presumed to be non-hazardous (Annex IX, entry B3010). Entry B3010 included both plastic and mixed plastic materials, with only undefined conditions that they ‘not [be] mixed with other wastes and are prepared to a specification’. In practice, a broad range of plastic wastes were, therefore, deemed to fall outside the scope of the Convention, including plastics from industrial and commercial packaging.⁶⁷

In comparison, the new list of plastic wastes presumed non-hazardous and thereby presumed excluded from the scope of the Convention is more detailed and narrower, although still contains commonly used plastics (Annex IX, entry B3011). It lists plastics that almost exclusively consist of one non-halogenated polymer (like polyethylene (PE), used, for example, in packaging film; polypropylene (PP), for example, found in food tubs; and polyethylene terephthalate (PET), used for example in disposable water bottles). It also lists plastics that almost exclusively consist of one cured resin, including formaldehyde resins used in composite wood fiberboards, and epoxy resins used for example to make strong boat hulls, or one condensation product (such as polyester, used for example in carpets). Additionally, it also lists plastics that almost exclusively exist of one of a closed list of fluorinated polymers, widely used in industrial applications such as wire insulation, gaskets, and bearings - although post-consumer wastes are excluded from this category.

A significant condition for the abovementioned plastic wastes to fall outside the scope of the Basel Convention is that they must be destined for recycling in an environmentally sound manner (ESM recycling) and almost free from contamination and other types of wastes. Moreover, a limited group of mixtures of plastic wastes (those consisting of PE, PP, or PET) continue to fall outside the scope of the Convention, provided they are destined for separate recycling of each material and in an environmentally sound manner (ESM recycling), and almost free from contamination and other types of wastes.

The choice of what plastics to exclude from the scope of the Basel Convention has been subject to critique by some non-governmental organisations (NGOs) that consider the categories of fluoropolymers, cured resins and condensation products to be inherently hazardous.⁶⁸ They also highlight the non-exhaustive nature of the lists of single polymers and cured resins excluded from the Convention, which could lead to the future exclusion of new plastics whose hazards have not yet been documented.⁶⁹

These additional conditions for plastic waste to fall outside the scope of the Convention raise the following questions. First, there is the issue of waste purity. Entry B3011 specifies that waste streams must ‘almost exclusively’ exist of a single polymer, with the exception of mixtures of PE, PP and PET, and be ‘almost free from contamination and other types of waste’. As was the case prior to the amendments, these criteria are open to the individual interpretation of the parties and difficult to determine.⁷⁰ It can be noted with concern that common plastic waste streams almost always are contaminated with hazardous chemicals (eg plasticisers, compatibilisers, dies, fillers, UV stabilisers and so on), which negatively affects their recycling potential.⁷¹ Moreover, a footnote reference in entry B3011implies that a range of possible appropriate points of reference can exist.⁷² Indeed, recent draft guidance on the ESM of plastic wastes refers to a variety of industry-wide standards as possible points of reference.⁷³ This raises the further concern of a lack of clarity relating to the application of the Convention and the use of conflicting standards.

A second condition for the listed categories of plastic waste to fall outside the scope of the Basel Convention is that it is destined for ESM recycling. Including this as a condition in Annex IX means that the very building blocks of a circular economy (plastic wastes with resource potential) are not intended to be regulated by the Convention. This is problematic because, in the absence of international control, there is a greater risk of mismanagement abroad, including not complying with ESM recycling.⁷⁴ It is also problematic because the scope of this exclusion is unclear. Plastics recycling can take many forms and refers to extremely technical and complex industrial processes. Generally, mechanical processes involve the physical treatment of plastic waste at a macroscopic level (eg extrusion) and can either be closed loop (bottle to bottle) or, more commonly, lead to recycling into a lower value plastic.⁷⁵ Though mechanical recycling is suggested to remain the most effective method to recycle plastics (in terms of time, cost, carbon footprint and environmental impact), it is also often unavailable.⁷⁶ Chemical recycling processes ideally break plastics down to their original monomers, which can then be purified and re-polymerised into new plastics.⁷⁷ However, chemical processes vary enormously in their methods (selective or unselective), and can be extremely energy intensive, contribute to CO₂ emissions and harmful chemicals and, depending on the methods that can be used, yield only limited and lower-quality recycled materials.⁷⁸

Though Annex IX includes those plastic wastes that are both most common and easiest to recycle, like PET,⁷⁹ this is not currently the case for all plastics listed. Fluoropolymers have high thermal and chemical stability, and their incineration at high temperatures releases corrosive fumes, which has implications for their waste management.⁸⁰ Cured resins and condensation products (which are thermoset plastics, and which unlike thermoplastics cannot be remoulded into a different shape) likewise cannot be mechanically recycled and are most often incinerated.⁸¹ Certain polymer waste might be revalorised using pyrolysis technologies (a type of chemical recycling), during which the chemical bonds of plastic are broken due to thermal energy.⁸² However, the type and quality of the final product that comes out of this process depends on various process parameters, such as temperature, pressure, residence time.⁸³ As a result, only a mix stream of products of relative low value may be recovered (eg waxes, oils, aromatic compounds, light olefins) to be used as fuel or chemical building blocks.⁸⁴ The question should therefore be asked which processes constitute ESM recycling for the purpose of Annex IX, which is considered next.

3.2 The ESM Recycling of Plastic Wastes

Turning first to the definition of ‘recycling’ under the Basel Convention, this means ‘recycling/reclamation of organic substances not used as solvents’.⁸⁵ Though no further detail is provided, this explicitly does not include incineration with energy recovery, which is listed as a separate process under the Convention.⁸ Though the recycling of plastic wastes under Annex IX thus does not include the process of incineration with energy recovery, it remains unclear where this leaves unselective chemical ‘recycling’ processes using pyrolysis.⁸⁷ Likely, as a matter of law, these processes constitute a form recycling. To compare, EU law makes use of the same definitions of energy recovery and recycling, whereby pyrolysis and gasification are explicitly included in the latter and not the former definition, provided the components are used as chemicals rather than subsequently incinerated.⁸⁸ If these processes are indeed considered a form of recycling rather than energy recovery, this would allow uncontaminated listed plastic wastes destined for such a process to fall outside the scope of the Convention and escape international regulatory scrutiny.

Absent clarity over when a process counts or does not count as recycling, the reference to ESM recycling provides an opportunity for nuance. Though ESM does not benefit from a universal understanding,⁸⁹ a set of principles has emerged through a growing body of guidance developed by the Basel Convention parties.⁹⁰ This includes both general guidance pertaining to the ESM of all wastes, and specific guidance to plastics, found in the 2002 Plastics Guidelines that are currently in the process of being updated. Although plastics destined for ESM recycling fall outside the scope of the Basel Convention, the available guidance is nevertheless of relevance to all types of plastic waste. The 2002 Plastics Guidelines state they have ‘been deliberately extended to include all polymer and plastic types’, even though such technical guidelines ‘normally’ only apply to Basel Convention-controlled wastes.⁹¹ The next section discusses the normative implications of this body of guidance more fully. Here, they are considered as a starting point for answering the technical question: when do certain recycling processes constitute ESM recycling; and subsequently, when do listed plastics destined for such processes fall within the scope of the Basel Convention?

The guidance identifies key environmental principles that indirectly inform the answer. The earliest (1994) Guidance Document on the Preparation of Technical Guidelines for the ESM of Wastes, adopted by the Parties to the Basel Convention on the ESM of waste, set out 11 principles with the intention not to ‘define’ ESM but to present ‘principles that merit consideration’, including the precautionary principle and the polluter-pays principle.⁹² Similar though slightly different lists of guiding principles appear in more recent guidance documents, such as the ESM Framework adopted at COP11(2013),⁹³ and the Strategic Framework for the implementation of the Basel Convention for 2012-2021.⁹⁴ Noteworthy is the growing recognition across these documents of the importance of the waste management hierarchy, which ranks waste management options in the following order of priority: prevention, minimisation, reuse, recycling, other recovery including energy recovery, and finally disposal.⁹⁵ This hierarchy benefits from wide support in most developed countries.⁹⁶ The ESM Framework explains that, when prevention and minimisation possibilities have been exhausted, parties should encourage reuse, recycling, and recovery techniques that deliver the ‘best overall environmental outcomes’, in accordance with the best available techniques (BAT), best environmental practices (BEP) and a lifecycle approach.⁹⁷ Applying the waste hierarchy implies the need to foster more selective recycling methods for waste whose generation cannot be prevented over other less selective forms of recovery. At the same time, the focus on best overall environmental outcome also implies that the waste hierarchy should not be strictly applied, and that less selective recycling processes may well be in line with its objective, provided no environmentally sounder alternative exists.⁹⁸ The optimal choice of recycling process may also change over time. This is acknowledged in the ESM Framework by the reference to BAT, BEP and a lifecycle approach, and which turns ‘best overall environmental outcome’ into an adaptive standard. As the draft updated Plastics Guidelines also acknowledge, chemical recycling is a rapidly developing area, though it may be observed that the reference to BAT and BEP does not (yet) appear in the text.⁹⁹ It is, however, clear that if the recycling processes that can be used for the wastes listed in Annex IX become more selective over time, and if they deliver a better overall environmental outcome, then only plastics destined for these processes should fall outside the scope of the Convention. Under current circumstances, plastic wastes listed in Annex IX may potentially be ‘destined for ESM recycling’ when they are destined for unselective chemical recycling processes, given the absence of sounder alternatives (unless such processes are deemed to fall outside the definition of recycling altogether, as discussed above).

Though the ‘best overall environmental outcome’ is (and should be) the overall goal of sound waste management, the conclusion reached above is disappointing. The lack of a clear distinction between more or less selective recycling methods affirms the status quo, and certain plastic wastes that cannot truly be recycled may continue to escape international regulation. As a response to this, some delegates, in reference to the draft updated Plastics Guidelines, put forward the idea to trace how much of the input plastic waste actually ends up in the polymer end-products.¹⁰⁰ The latest draft updated Plastics Guidelines include the suggestion that ‘only those waste mass fractions which are proven to become recycled polymers can be claimed to be “recycling”; fuels, oils, waxes and other by-products cannot be treated as recycling’ and that ‘various auditing schemes exist to certify this mass-balance tracing approach’.¹⁰¹ If this thinking is retained in the final text, it could be envisaged that Parties agree on clear qualitative and quantitative thresholds for when a recycling process is sufficiently selective to be deemed ESM recycling. Such thresholds could be phrased either as a separate standard, or as a key element in deciding what recycling process yields the best overall environmental outcome. The draft updated Plastics Guidelines also acknowledge that ‘new inventions and novel modifications’ of chemical recycling processes ‘will continue to be discovered over the coming years, as will the way in which the output product materials are classified under “recycling”, “recovery”, or “energy-from-waste”’.¹⁰² It is exactly the latter that Parties can, and should, focus on to ensure consistent interpretation of the scope of the Basel Convention, which, in turn would clarify also the definition of ESM recycling.

To reiterate, current ESM guidance does not solve the conceptual tension between preserving plastic waste as a resource in the global economy, and ensuring the best overall environmental outcome from the waste management (and recycling) process. On the one hand, the reference to ESM offers an opportunity for different approaches to sustainability in plastics to be considered: lifecycle-thinking leading to best environmental outcome, if interpreted broadly; material substitution or greater circularity, if interpreted narrowly. On the other hand, this ambiguity is highly problematic. Too broad an understanding of what constitutes ESM recycling would exclude more plastic waste from the scope of the Convention, meaning that the relevant parties would be under no obligation to minimise such waste; they do not have to seek PIC before exporting it; and there is no clear further obligation to check what happens with the waste once it has been exported. Too broad a definition of ESM recycling also misses an opportunity to use ‘exclusion from the Convention’ as a carrot to incentivise more selective recycling methods for the plastic waste streams that are listed in Annex IX, or where this is technically impossible, to provide an argument for material substitution. Incentivising more selective recycling methods would be in line with the growing common objective of transitioning to a more sustainable, and (partly) more circular, plastics economy. Further reflection will also be needed about the growing industry for biodegradable and compostable plastics, and what ESM recycling means for such plastics. Therefore, it seems prudent to agree on clear international standards (such as quantitative and qualitative recycling thresholds) for when recycling processes constitute ESM recycling. To this end, the next section turns to the normative potential of the Basel Convention’s guidance materials on ESM, both for their relevance in interpreting countries’ obligations under the Basel Convention, and beyond.

3.3 The Normative Potential of ESM Guidance

Guidance on ESM developed under the Basel Convention is not legally binding, but may nevertheless have significant effect. Though technical guidelines should not ‘be regarded as prescriptive or a clear recommendation to use an option in all cases’,¹⁰³ the 1994 ESM Guidance Document highlights their ‘special legal value’¹⁰⁴ due to being prepared by experts, and subsequently sent to the COP for adoption by way of consensus, which tends to be the way of decision-making.¹⁰⁵ This gives technical guidelines ‘persuasive force as a basic standard for countries to meet in fulfilling their obligations’.¹⁰⁶ This persuasive force is visible as follows.

First, guidance on ESM can play a role in the interpretation of the norms they help further develop. The principle of ESM can be considered inherently dynamic, meaning that the original intentions of the parties to the Basel Convention would evolve over time.¹⁰⁷ This view is supported both by the broad definition of ESM, and by the reference in the Convention to the subsequent adoption of guidance materials.¹⁰⁸ An evolutive interpretation in light of the ESM Framework and future updated Plastics Guidelines expands the definition of ESM, and provides current and detailed content. Alternatively, it can be argued that ESM guidance, which is adopted by consensus, amounts to subsequent agreement or subsequent practice between the parties on the interpretation of the Convention’s provisions on ESM¹⁰⁹—although the threshold for accepting an agreement on the interpretation by state practice is high.¹¹⁰

Either way, the ESM Framework and future updated Plastics Guidelines constitute a starting point, not only for technical questions on which recycling processes are sound, but also for determining what is required of parties to fulfil their obligations under the Convention. What are ‘the appropriate measures’ that parties must take not to allow the export of controlled plastic wastes absent ESM abroad?¹¹¹ What are ‘the appropriate measures to ensure’ that they only be exported if they are required as a raw material (or, if they cannot be soundly managed at home)?¹¹² More generally, what are the appropriate legal, administrative, and other measures that parties must adopt to implement and enforce the Convention?¹¹³ Additionally, and looking specifically at the definition of ESM, what does it mean to take ‘all practicable steps to ensure that [controlled wastes] are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes’?¹¹⁴ This language denotes obligations of conduct (to take appropriate measures) rather than of result (ESM/no ESM), the fulfilment of which requires the exercise of due diligence.¹¹⁵ International courts and tribunals have generally taken a broad view of what due diligence requires, both in terms of the adoption of rules and their monitoring and enforcement.¹¹⁶ Both the ESM Framework and the latest draft of the updated Plastics Guidelines list detailed and concrete steps to be taken to ensure ESM,¹¹⁷ which could provide relevant benchmarks.¹¹⁸ Exactly what measures would be appropriate for parties to adopt is contextual, though the next section tentatively suggests what this could mean for the exporting state.¹¹⁹

The persuasive force of the Basel Convention’s guidance on ESM is furthermore visible in so far as it may constitute a reference point for other processes that aim to reduce the environmental impacts from (plastic) wastes.¹²⁰ For example, this could be relevant when adopting laws and regulations to prevent, reduce and control pollution to the marine environment from land-based sources in accordance with the UN Law of the Sea Convention (LOSC),¹²¹ part of the general duty found in the LOSC and customary international law to protect and preserve the marine environment.¹²² Similarly, the launch of negotiations for a new plastics treaty, as mentioned in the introduction, could reinforce the normative contribution of the ESM Framework and Plastics Guidelines. In particular, a new plastics treaty could include the concept of ESM recycling, as well as give legal effect to the ESM guidance and in particular the Plastics Guidelines developed under the Basel Convention, which would help minimising potential conflict between the two instruments.¹²³

In short, although the body of guidance on ESM has (some) legal significance, its normative contribution both to clarifying the duties under the Basel Convention and for setting international standards could be enhanced by providing greater clarity and clearer recommendations in the updated Plastics Guidelines. Both future COP meetings and the parallel development of a new plastics treaty provide an opportunity to agree on additional principles specific to the problem of plastics pollution that may add further clarity and precision to what countries should do to ensure the ESM of plastic wastes, and in particular, standards to decide what amounts to plastics recycling that is ‘environmentally sound’.¹²⁴

4. The Future of Plastics: Beyond the Basel Convention?

4.1 The Plastics Export Challenge

The continued exclusion of a large amount of plastic waste from the Basel Convention, exacerbated by the ambiguity over ESM recycling, poses the following challenge. As aforementioned, the risk of mismanagement abroad undermines the likelihood that recyclable wastes will be subject to ESM recycling in practice, and generally risks pollution.¹²⁵ Including more plastic wastes within the Convention’s scope through a strict definition of ESM recycling or by narrowing the list of exclusions could improve this, provided that control over waste exports can be ensured. It has long been acknowledged that the ESM of wastes and their transboundary movement ‘calls for international co-operation between exporting and importing countries in the light of their joint responsibility for the protection of the global environment’.¹²⁶ This raises the fundamental questions: how is this responsibility distributed between the exporting and importing state; what practicable steps must be undertaken; by whom; and, more generally, how can compliance be ensured?

As for the latter, a Committee of the Implementation and Compliance Mechanism (the Compliance Committee) was created at COP6 (2002) to assist parties with compliance.¹²⁷ The Committee considers problems with compliance, which are notified by the party itself; by another party should bilateral consultations fail to resolve the matter; or by the secretariat in the case that consultations with the secretariat are not resolved within three months.¹²⁸ Together with the relevant party, the Committee then agrees on a voluntary action plan, and can recommend the allocation of resources from the implementation fund (part of the Basel Convention Voluntary Trust Fund) to assist.¹²⁹ Moreover, the Committee can provide advice and non-binding recommendations. Should the matter still be unresolved, the Committee can submit to the COP recommendations for further measures and support, such as technical assistance, or to ask the COP to issue a cautionary statement.¹³⁰

The country of export complements these mechanisms by playing a dual role. On the one hand, it is responsible to ensure the ESM of the plastic wastes it generates, including by minimising their generation and transboundary movement, as discussed section 2. The duty is to ensure that ESM can ‘under no circumstances’ be transferred to the country of import,¹³¹ which puts a legal responsibility on the country of export to withhold exports if this prevents harm to the country of import.¹³² The country of export is under the legal obligation to take the appropriate measures not to allow exports of wastes ‘if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner’.¹³³ One the other hand, in withholding (valuable) waste exports for lack of ESM abroad, the country of export also helps ensure compliance by potential importing countries with their respective responsibilities to ensure ESM.¹³⁴ A greater degree of scrutiny by the country of export could trigger positive change in importing countries, with the potential knock-on effect that the exports of wastes that fall outside the scope of the Basel Convention become less likely to be mismanaged. What is more, it could trigger broader reflection on what constitute appropriate measures to ensure the ESM of plastic wastes, and what is, and should not be part of the sustainable global plastics economy that is sought. Therefore, this article calls for the exporting state’s responsibilities to be re-examined and to identify the scope and potential of the two roles that it plays. A detailed scoping study falls outside the remit of this article, but the next section highlights important elements for further exploration.

4.2 The Exporter’s Role Reimagined

As a first step, there is a need to clarify whether a greater role for the country of export constitutes a duty or a right, both within and beyond the Basel Convention. Though this article focuses on the Basel Convention, there are other legal frameworks applicable to the export wastes even when these fall outside the Convention’s scope. One view is that the procedural corollaries to the customary law duty not to cause significant transboundary harm may be applicable and require PIC prior to exporting hazardous waste (or indeed, prior to any pollution source transfer).¹³⁵ The general duty not to cause significant transboundary harm goes hand in hand with an obligation to notify, and consult with the potentially affected country in respect of activities which carry a risk of such harm.¹³⁶ This bears similarity to the requirement of PIC under the Basel Convention. Furthermore, the duty not to cause significant transboundary harm not only entails reparation after a possible incident, but also the taking of appropriate measures to prevent and minimise the risks of such harm.¹³⁷ This obligation of prevention and minimisation bears resemblance to the duty to reduce Basel-controlled waste to a minimum, and to the aim for waste prevention and minimisation as first steps in the waste hierarchy.¹³⁸ The level of responsibility required under customary international law to prevent harm is widely understood as an obligation of due diligence, the high threshold of which has been highlighted in the previous section.¹³⁹ However, before asking what this due diligence means for a country exporting plastic wastes, it is necessary to question when exactly the threshold of harm is met in relation to plastic pollution,¹⁴⁰ and whether it is possible, and if so, how to allocate causation across the complex plastics lifecycle.¹⁴¹ The question is particularly pertinent in relation to the export of wastes that are explicitly presumed non-hazardous, as per the Convention, and whose hazardous nature stems predominantly from the waste management process itself. The relevance of customary international law for ascertaining the role for the country of export would benefit from further analysis and could arguably be informed by the level of due diligence required under the Basel Convention, to which I turn next.

Although technical clarity is lacking regarding which processes constitute ESM recycling, the ESM Framework clearly carves out a common understanding of what is required of states at a broader level, both in terms of ensuring ESM, and specifically regarding country of export duties. It explains that the ‘ESM of wastes requires the development and implementation of a system of policies, legislation and regulations, monitoring and enforcement, incentives and penalties, technologies and other tools in which all key stakeholders participate and cooperate’,¹⁴² and it lists a number of elements that should be taken into account when establishing, implementing or evaluating ESM. These elements include but are not limited to regulatory matters (eg compliance and enforcement); transparency and accountability; and environmental protection.¹⁴³ As aforementioned, the ESM Framework recommends that resources be allocated and strategies be implemented in accordance with the waste hierarchy, although there is flexibility in deciding what strategies lead to best overall environmental outcome.¹⁴⁴ It also calls on parties to have the required regulatory and enforcement infrastructure to ensure a list of things, such as a clear definition of what is/is not waste and what is/is not hazardous waste, and due diligence and proper management of wastes by all operators downstream.¹⁴⁵ Similarly, and unlike the 2002 Plastics Guidelines, the draft updated Plastic Guidelines contain a detailed section entitled ‘Legislative and Regulatory Framework’ which states inter alia that parties’ ‘legislation should cover plastics product policies to increase the recycling rates of plastics materials or stimulate sustainable use of plastic products’, and that Parties should consider a systematic approach to harm and develop policy frameworks related to plastic wastes which may address the root causes of the problem—though the use of the word ‘may’ is not encouraging.¹⁴⁶ They then go on to list in some detail relevant legal tools to ensure the ESM of plastic waste.¹⁴⁷

The Basel Convention guidance thus confirms a high threshold for the appropriate measures to take at country-level to ensure the ESM of wastes within their territory.¹⁴⁸ This threshold should also inform the degree of scrutiny to be undertaken by the country of export of the measures applicable in the country of import. The ESM Framework appears to confirm this, encouraging the country of export to look beyond individual waste shipments, and to also consider the country of import’s legal system, government oversight, and other infrastructure for ensuring ESM as a condition for waste shipments. It does so as follows.

The Framework contains a section on transboundary movements of wastes for management in another country, which observes that such movements ‘cannot be assured to result in ESM by evaluating receiving facilities alone’, and that ‘elements such as those for effective legal systems and infrastructure listed in paragraph 7 should also be considered’.¹⁴⁹ Paragraph 7 explains that the ‘ESM of wastes cannot be guaranteed within the confines of waste management or generator facilities without effective legal systems, government oversight and other infrastructure to protect the occupational health and safety of workers, communities and the environment. In the absence of such effective systems and infrastructure, it is recognised that ESM may not be readily available in some countries and facilities’. In light of this, the level of due diligence required of the country of export to ensure ESM abroad could be interpreted broadly, to look beyond the adequacy of the individual waste shipment facility alone and to also consider the regulatory circumstances and infrastructure of the country of import. It the country of export’s duties cannot be interpreted to entail such a greater role, the question to be asked next is whether it has a right to voluntarily go beyond what is required. The Basel Convention does not seem to exclude a high(er) level of scrutiny by the country of export provided any measures (such as export prohibitions) are adopted because the country of export does not believe there will be ESM abroad. Moreover, the Convention stipulates that nothing shall prevent parties ‘from imposing additional requirements that are consistent with the provisions of this Convention, and are in accordance with the rules of international law, in order better to protect human health and the environment’.¹⁵⁰ Nevertheless, export restrictions that are clear upward derogation from the Convention could become subject to a challenge before the World Trade Organisation¹⁵¹ and so require further analysis.¹⁵²

Second, reimaging the role of the country of export as a key driver of ESM meets a practical obstacle: the Convention does not specify the manner or the extent to which the country of export must verify ESM abroad.¹⁵³ Which shape, then, should a greater role for the country of export take? Kummer suggests that ‘except where the lack of proper facilities is notorious, the term “reason to believe” must be interpreted to refer to the country of export’s conclusion based on relevant information received from the [country of import]’.¹⁵⁴ However, relying only on information directly received by the country of import seems an unnecessarily restrictive interpretation. Other reliable sources of information can be envisaged. A country of export could, for instance, have ‘reason to believe’ that a party cannot ensure ESM based on reports by NGOs, parties’ national reports,¹⁵⁵ or from submissions of non-compliance to the Compliance Committee. Without undermining the non-confrontational element of the Implementation and Compliance Mechanism, or discouraging party self-submissions,¹⁵⁶ information on non-compliance should give the country of export sufficient ‘reason to believe’ that the appropriate measures to take would be to withhold exports. It could also provide a reason for not exporting plastic wastes that fall outside the scope of the Convention on a voluntary basis.

Third, a greater role for the exporting state—whether as the expression of a duty or as the exercise of a right—also raises questions of how to appraise such a role. Beyond the question of legality (at national and international level), encouraging a greater degree of scrutiny by the exporting state regarding ESM abroad requires careful consideration of how to avoid the arbitrary imposition of global standards, or even national standards, and to mitigate the risk of a fragmented approach across different exporting countries.¹⁵⁷

The importance of thinking critically about a greater role for the country of export in the context of plastic wastes is timely. The European Commission recently proposed amendments to the EU Waste Shipment Regulation—the EU instrument that inter alia implements the Basel Convention, and the EU’s commitments as an OECD member—that appear to go in this direction.¹⁵⁸ The proposed amendments would, for example, limit the export of wastes excluded from the Convention to white-listed countries only.¹⁵⁹ For a country to be included on this list, it must demonstrate that it has put in place and implements all necessary measures to ensure the ESM of waste in a manner that is ‘broadly equivalent’ to the EU level for ESM.¹⁶⁰ To demonstrate that it can ensure ESM, a country must show that is has put in place extensive regulatory measures, a holistic waste management plan, and ratified and implemented a list of international environmental law measures.¹⁶¹ Although it remains to be seen how much of the original proposal is retained in any final amendments, it would appear that a greater role for the country of export is already being envisaged in some parts of the world. As well as being timely, thinking critically about the role of the country of export in the context of plastic wastes is conceptually important. It ties in with the overarching question of what global plastics economy is sought. In exercising greater scrutiny over importing countries and withholding plastic wastes for lack of ESM, the country of export contributes not only to a common understanding of ESM in the context of plastics, but also in shaping the global plastics economy.

5. Conclusion

The recent plastics amendments bring more plastic wastes within the scope of the Basel Convention and subject them to international obligations on waste minimisation, ESM, and provide greater control over their international trade. These are promising developments for a more sustainable global plastics economy. However, the Convention does not sufficiently harness the resource potential of recyclable plastic waste, especially when it is exported abroad. Recyclable plastic wastes—the building blocks of a circular economy—continue to largely fall outside the scope of the Convention by virtue of Annex IX, as do some potentially harmful plastic wastes, provided they are almost free from contamination and destined for ESM recycling. This raises the important questions of what constitutes ESM and the ESM recycling of plastics, which, as this article shows, directly informs how we envisage shifting to a more sustainable plastics economy. The explicit linking of the definition of recycling with ESM provides opportunity for nuance, yet there is no proposed resolution as to how to resolve the conceptual tension between preserving waste as a resource in the global economy, and ensuring best overall environmental outcome from the waste management process. This article suggests that agreeing on clear benchmarks in the updated Plastics Guidelines under discussion by parties to the Basel Convention would be a meaningful contribution towards solving this issue, the effect of which could be reinforced by a reference in any new plastics treaty. In so far as some plastic wastes continue to escape international regulatory control, the question also remains how oversight over their treatment abroad (and in particular, ESM recycling for plastic wastes beyond the Basel Convention) can be ensured. Absent sound regulation of the trade in plastic wastes in a global economy, this article concludes on the need to further explore the role of the country of export in shaping a more sustainable global plastics economy by generating greater across the board ESM in waste importing countries, which would help ensure that the building blocks of a circular economy are not lost through the mismanagement of plastic waste.

Acknowledgements

I thank Catherine Redgwell for her valuable feedback and Fernando Vidal Peña and the Oxford Martin School-funded Future of Plastics programme for helpful context. I am also grateful for insights received from various colleagues along the way, and in particular comments from Feja Lesniewska at the waste law workshop 2022, convened at Edinburgh Law School. All errors are my own.

Funding

The Oxford Martin School (Future of Plastics) is acknowledged for research funding.

Footnotes