This legal opinion is an analysis of the legal obligations for Organisation for Economic Co-operation and Development (OECD) members trading in plastic wastes, following the OECD’s inability to reach consensus on the incorporation of most of the Basel Plastic Amendments into the OECD Decision on the Control of Transboundary Movements of Wastes Destined for Recovery Operations (“The OECD Wastes Trade Decision”). The OECD Wastes Trade Decision is a multilateral agreement governing the trade of certain hazardous and other wastes for recovery purposes among OECD members. Since the agreement covers trade in hazardous waste between both parties to the Basel Convention and non-parties, it must contain provisions governing the environmentally sound management of waste equal to or stronger than those in the Basel Convention in order for OECD members to continue to engage in trade without breaching their obligations.
The analysis concludes that the OECD’s failure to reach consensus removes the plastic wastes deemed “other wastes” under the Basel Convention from the OECD Wastes Trade Decision’s scope. OECD members who are Basel parties and have not objected to the Basel Plastic Amendments must therefore apply the relevant Basel control and ban mechanisms to trade in those wastes with Basel parties and non-parties.
This legal opinion also analyses two agreements or arrangements concluded among OECD members since the adoption of the Plastic Amendments – between the US and Canada and among member states of the European Union. It concludes that these agreements do not ensure equivalent levels of control to Basel and are therefore invalid as Article 11 agreements. Parties to these agreements must instead apply Basel control procedures or risk breaching their binding legal obligations.