For years, wealthy nations have flooded developing countries with toxic plastic waste under the guise of “recycling.” Now, the international community has almost unanimously agreed to finally tackle the plastic waste trade crisis, but the US is, naturally, attempting to circumvent the new standards.
The practice of shipping plastic to other countries has been the preferred method of “recycling” for most wealthy nations for decades. However, the countries receiving these mountains of plastic waste simply don’t have the capacity to properly manage it in addition to their own. As a result, much of this plastic either sits indefinitely in rivers, beaches, and fields, or is burned, either way leaching dangerous chemicals into the environment. Until earlier this year, the Basel Convention, adopted in 1989 to regulate the transboundary movement of hazardous waste, did nothing to help control the large-scale export of plastic waste, leaving the international plastic waste trade virtually unregulated.
Enter the Basel Plastic Amendment
This changed, however, in May of 2019 with a major breakthrough for plastic regulation in the form of an amendment dubbed the “Basel Plastic Amendment.” This amendment, which took less than one year to come to fruition, addresses the lack of transparency in the plastic trade. It adds three listings for plastic waste to the Basel Convention so that most plastic, apart from the pre-sorted, single-polymer, clean plastic destined for recycling, will be subject to the Prior Informed Consent procedure. This means that exporting states have to follow stricter rules on transboundary transportation of plastic, including obtaining the prior, informed consent of the importing country. As a result, importing countries are better protected from unwanted plastic pollution from foreign countries, and exporting countries have an opportunity (theoretically) to improve their own domestic recycling.
Where the OECD Fits into the Basel Plastic Amendment
The OECD is an economic organization of 36 of the most developed countries that aims to promote global trade and economic progress. All OECD member countries, except the US, are also parties to the Basel Convention. Notably, Article 11 of the Basel Convention states that Basel parties can only enter into other multilateral agreements on transboundary hazardous waste trade, for example within the OECD, if those agreements’ regulations are as environmentally sound as the Basel Convention’s regulations. So, for all OECD member countries, aside from the US, the OECD control system (which regulates waste trade within the OECD) must comply with the Basel Plastic Amendment (and all Basel environmental provisions for that matter) in order to meet the requirements of Article 11. In other words, thanks to Article 11, the Basel Plastic Amendment sets a minimum standard for environmental regulations on trading waste that all Basel members, including OECD members, must follow.
Usually, new amendments to the Basel Convention automatically become incorporated into the OECD mechanism in the absence of a formal objection. However, the US — ever a thorn in the side of environmental multilateralism — objected to the incorporation of the new amendments, arguing that the new requirements could “reduce the level of recycling,” a justification at which we can all collectively roll our eyes.
As the only member of the OECD not to have ratified Basel, the US stands in a unique position. Its objection delays, and even potentially prevents, the incorporation of the Basel Plastic Amendment provisions into the intra-OECD waste trade.
What the US’ Objection Means
The outcome of the US’ objection will have important ramifications for the waste trade within the OECD. The US proposes maintaining the status quo (i.e., ignoring the Basel Plastic Amendment). But the OECD’s internal procedure requires that all member countries agree on a way forward, leaving three potential scenarios for how this could play out:
- The US withdraws its objection
- A consensus is reached on how to move forward. This could be that OECD members agree to the US proposal, or they reach an agreement on another arrangement.
- No consensus can be reached by OECD members on an alternative proposal.
Withdrawal of the Objection
The best-case scenario, although unlikely, would be for the US to withdraw its objection to the OECD. In this case, the Basel Plastic Amendment will become automatically incorporated into the OECD mechanism.
In lieu of this improbable eventuality, the OECD member countries will have to come to a consensus on how to progress, and then the Working Party on Resource Productivity, the Environment Policy Committee of the OECD, and lastly the OECD Council will formally adopt the decision.
Consensus
If a consensus is reached within the OECD to accept the US’ proposal of objecting to incorporating the Basel Plastic Amendment into the OECD mechanism, members would agree to maintaining free, unrestricted trade of all plastic waste, regardless of their status under the Basel Convention. By thus agreeing to an OECD control system that is less environmentally sound than Basel, all OECD members, except the US, would be in violation of Article 11 of the Basel Convention.
Therefore, it seems that members of the Basel Convention would not be able to agree to the US’ proposal, and that any OECD decision that compromises on the strict provisions of Basel would put into question the OECD waste control system. At the same time, however, there’s no explicit procedure under the Basel Convention for recognizing a violation of Article 11 (unless the conference of parties specifically rules on it, which is unlikely). So, Basel parties may still be tempted to risk violating Article 11 by compromising on the Basel Plastic Amendment’s standards in the name of consensus and, dare we say it, to appease the US in international forums. With this possibility, the US’ objection might block other OECD countries from enforcing the Basel Plastic Amendment in intra-OECD waste trade.
No Consensus
Based on ongoing discussions, a scenario with no consensus seems the most likely, but it is still unclear as to what that would entail. It would be the first non-consensus decision in the OECD, and different OECD members have diverging views on how to interpret OECD rules on what this means. As a result, a non-consensus scenario on integrating the Basel Plastic Amendment provisions would require a… consensus decision on what a non-consensus decision means (welcome to the bureaucracy of international multilateralism).
One of the proposed interpretations of a non-consensus decision is that all plastic waste would be excluded from the scope of the OECD decision. Instead, it would be up to each individual country to decide their own plastic regulation, though that regulation would still have to conform with domestic legislation and international law.
In this scenario, countries that are parties to the Basel Convention (so every OECD member aside from the US) would still need to follow the rules from the Basel Plastic Amendment. Therefore, they would be forbidden to trade mixed plastic waste with the US unless they enter a separate individual trade agreement with the US that, crucially, ensures at least an equivalent level of protection to the provisions of the Basel Convention (i.e., the same definition of hazardous and other waste and the requirement for prior, informed consent when trading mixed plastic waste). This would likely result in a proliferation of different plastic trade agreements with the US, creating a barrier to cohesive international waste regulation. Given that the OECD’s premise is to promote overarching regulation that’s conducive to international trade, the US’ continued obstructionism calls into question the relevance of the OECD.
Another proposed interpretation for how to proceed with a non-consensus decision is to implement the OECD decision in its pre-Basel Plastic Amendment form. But, clearly that form has less environmental provisions than Basel’s current form, once again putting the OECD decision at risk of violating Article 11 of the Basel Convention.
If a consensus on the meaning of a non-consensus decision cannot be reached, legal uncertainty will undoubtedly follow. Although parties to Basel would still be bound by the Basel Plastic Amendment obligations, US waste traders could try to operate in a legal grey zone. They could attempt to interpret the non-consensus decision to suit their own agenda (despite violating Article 11) and continue their conveyor belt of mixed plastic waste exports to other OECD countries. The OECD countries with lax environmental regulation enforcement would be most at risk, such as Turkey and Mexico, who have already seen their incoming plastic rise sharply since the Chinese ban on plastic waste imports.
So What’s Next?
All in all, it appears that the US’ efforts to derail the Basel Plastic Amendment may be misfiring. Incorporating the Basel Plastic Amendment into the OECD decision would have offered US waste traders the possibility to continue trading mixed plastic waste with all OECD countries, in exchange for complying with the relatively light administrative requirement of the Prior Informed Consent procedure (since this would have met the provisions of Article 11). Now, however, it is likely that US waste traders will either be (1) barred from trading with OECD partners who interpret no consensus as meaning that the waste trade is outside the scope of the OECD decision, or (2) forced to maneuver through a complex and uncertain legal framework that may change from one destination country to the next.
All of this begs the question as to why the US is objecting to the incorporation of the Amendment in the OECD decision. Maybe the US miscalculated in thinking that its objection would be agreed upon, or it just assumed it could bully all other OECD members to bend to its will. Or perhaps, efforts to derail the Amendment are just another attempt by the US to dismantle the multilateral system (even at the expense of its own waste traders and managers). Or, it sees this as yet another opportunity to throw its weight around on the international stage… but, surely, no one can suspect the US of this?
Ultimately, this decision will indicate the ability of international environmental law to progress, despite the US’ persistent attempts to derail it. It will not only be a crucial litmus test for the progression of environmental regulation going forward, but also for the fate of the US plastic waste trade.
By interns Adele Shraiman, Ekaterina Mikhaylova, and Hope de Rooy-Underhill
Originally posted on January 17, 2020