On Legal Regime Of The Transboundary Movements Of Hazardous Wastes

With the quick development of municipal . modernization and industrialization, the fast increasing of the population in cities and the continuous existence of the unsustainable used-up production mode and consuming society, the quickly increasing amount of hazardous waste in all countries, especially in the western industrialized countries has threatened the survival of the future human being and the progress and prosperity of the whole human society. The international society exerts itself on making the international laws on transboundary movements of hazardous wastes in order to reply the challenge of transboundary movements of hazardous wastes. It has signed a series of conventions, protocols and instruments.The international community promulgated 1987 "Principles and Guidelines on Environmentally Sound Management of Hazardous Wastes" in Cario. It established the basic principles of the transboundary movements of hazardous wastes. 1989 "Basel Convention on the Control of Transboundary movements of hazardous wastes and its Disposal" is the most important convention of transboundary movements of hazardous wastes and it has got the very important functions on the management of the transboundary movements of hazardous wastes.From the view of the region, "Bamaka Convention on the Ban of the Import into Africa and the Control of Transboundary movements of hazardous wastes and Management of Hazardous Waste within Africa (1991)" and "Izmir Protocol on the Prevention and Control the Pollution of the Mediterranean Sea by Transboundary movements of hazardous wastes and its Disposal " and some other conventions and protocols has made the legal systems of Transboundary movements of hazardous wastes more and more perfect.The western industrialized countries have already begun to regulate wastes. The US not only promulgated waste laws on the level of the commonwealth, but also had laws and regulations on the level of the states. Japan, the South Korea, India and Argentina also promulgated many waste laws, policies and regulations.In a word, The legislation and enforcement of the management of transboundary movements of hazardous wastes is becoming the important agenda of the international society and all governments in the world. With the subscription and being into effect of the above international legal instruments, the legal regimes of the transboundary movements of hazardous wastes has set up and been becoming more and more perfect.As a party state of the Basel Convention, China takes an active part in implementing its international obligations. According to the situation of China itself and the status in quo that some developed countries is continuously and crazily transporting the hazardous wastes they produced into China, China has promulgated and amended "Law of the People' s Republicof China on the Prevention and Control of Environmental Pollution by Solid Waste" respectively in 1995 and 2004. China has also amended the Criminal Law to adapt to the new situations. China has promulgated a large quantity of administrative regulations and department rules. All these strongly kept the foreign hazardous wastes within limits from transporting into China and stick up for China' s environmental sovereignty.The status in quo of research of the problem of transboundary movements of hazardous wastes in China is not satisfied with the needs of real-life. On the one hand, the national legislation did not sufficiently response to the Basel Convention that China has subscribed and ratified. There are many places that need to harmonize with the international conventions. On the other hand, none of scholars in China specially study on this special topic so that the national policies on transboundary movements of hazardous wastes cannot get the support of the theory. So the author tries to do some research on this problem, with the consent and instruction of the tutor.This study is divided into three parts.First Part is on the background analysis of the origin of transboundary movements of hazardous wastes. It has two chapters. Chapter One introduces the conception of waste and hazardous waste in detail. It also collects the legal definitions of waste and hazardous waste in global conventions, regional agreements, bilateral agreements and national and foreign legislations. All these both circle the scope of this study and try to provide some experiences for China' s waste legislation. Chapter Two analyzes the international background and cause of formation on transboundary movements of hazardous wastes. It describes the international political background, the international economic background, the international scientific and technical background and the international environment protection background before and after the creation of the Basel Convention, that is in 80s, 90s of 20th century. It also discusses the causes of the creation of transboundary movements of hazardous wastes.Part Two is the keystone of this study. It mainly discusses the general issues of international law that are created by transboundary movements of hazardous wastes. It tries to analyze the relative international conventions on transboundary movements of hazardous wastes, to summarize and conclude the international legal principles, detailed legal systems, which is contained in the legal regime of transboundary movements of hazardous wastes. It also examines the relationship of the legal regime of transboundary movements of hazardous wastes and waste trade. This part has five chapters.Chapter Three particularly introduces the development of international legal systems of transboundary movements of hazardous wastes. The legal systems of transboundary movements of hazardous wastes is not formed in one day, but experienced a process of developing maturating and consummating. Section One introduces the budding period of legal systems of transboundary movements of hazardous wastes. In this period, the international societybegan to pay attention to the hazards to human health and environment by transboundary movements of hazardous wastes. Some bilateral agreements and regional decisions and recommendations began to appear. Among them, "Agreement Between the Government of the United States of America and the Government of Canada Concerning the Transboundary Movement of Hazardous Wastes" and "Agreement of Co-operation between the United States of America and the United Mexican States regarding the Transboundary Shipments of Wastes and Hazardous Substances (1986) " , the decisions and recommendations of the OECD and directives and regulations of the EC or EU on transboundary movements of hazardous wastes are comparatively typical. Section Two analyzes the international legal instruments of the forming period of legal systems of transboundary movements of hazardous wastes. In this period, the Basel Convention as a specialized global framework convention on transboundary movements of hazardous wastes has appeared. The Basel Convention has provided some basic principles and legal systems for transboundary movements 'of hazardous wastes and its disposal. After the Basel Convention, the international society also promulgated several regional conventions and agreements on transboundary movements of hazardous wastes, such as the Baraaka Convention and Izmir Protocol. Section Three introduces the perfect period of legal systems of transboundary movements of hazardous wastes. In this period, legal systems of transboundary movements of hazardous wastes are becoming more and more perfect. The promulgation of "the Basel Protocol on Liability and Compensation for Damage Resulting from the transboundary movements of hazardous wastes and their disposal" is not only the success of the legal systems of transboundary movements of hazardous wastes, but also the perfectness of the legal regime of international responsibility. The Conferences of the Parties to the Basel Convention get across the amendment of "the Basel Ban" . This amendment has important impacts on legal systems of transboundary movements of hazardous wastes. It indicates the strength of the developing countries in international affairs is becoming stronger and stronger. Besides the above things, three additional annex, that is, Annex VII, Annex VJD and Annex DC, "the Basel Declaration on Environmentally Sound Management" and many technical guidelines made by the Technical Working Group are also got across on the Conferences of the Parties to the Basel Convention.Chapter Four disserts the international legal principles that the legal systems of transboundary movements of hazardous wastes should be complied with. These principles include the Principle of State Environmental Sovereignty and Responsibility of Non-damage to foreign environment and global commons, the Principle of International Cooperation, the Precautionary Principle, the Principle of Hazardous Wastes Minimization and the Principle of Proximity of Disposal of Hazardous Wastes. Among them, there are some general principles of international law or the principles of customary international law, which is applied to the legal systems oftransboundary movements of hazardous wastes, such as the Principle of State Environmental Sovereignty and Responsibility of Non-damage to foreign environment and global commons, the Principle of International Cooperation and the Precautionary Principle. There are some own principles of the legal systems of transboundary movements of hazardous wastes, such as the Principle of Hazardous Wastes Minimization and the Principle of Proximity of Disposal of Hazardous Wastes.Chapter Five summarizes and concludes the national and. international legal systems of the transboundary movements of hazardous wastes from the above international conventions, agreements, protocols, decisions and recommendations, directives and so on. These systems include the Identification System of Hazardous Wastes, the Cleaner Production System, the Integrated Management System, the Prior Informed Consent Procedure System, the System of Environmentally Sound Management of Hazardous Wastes, the Hazardous Wastes List System, the Controlling System of Illegal Traffic of Hazardous Wastes and the Controlling System of Special Area.These systems are in favor of prevention and decrease of the transboundary movements of hazardous wastes. The Identification System of Hazardous Wastes can help to identify wastes and hazardous wastes. The Cleaner Production System will result in minimum of hazardous wastes and alleviate the toxicity. The Integrated Management System requires the regulating departments regulate hazardous wastes from the cradle to the grave. The Prior Informed Consent Procedure System respects the sovereignty of the import states. The System of Environmentally Sound Management of Hazardous Wastes requires the disposal of hazardous wastes properly. The Hazardous Wastes List System may easily identify hazardous wastes and it will make it easy to establish an standard. The Controlling System of Illegal Traffic of Hazardous Wastes and the Controlling System of Special Area both hope to fight against the illegal traffic of hazardous wastes through international cooperation in order to protect environment and human health.Chapter Six discusses the international system of responsibility and compensation for damage resulting from the transboundary movements of hazardous wastes. Section One introduces the international liability system. Section Two discusses the system of the international civil responsibility, including the system of fault responsibility and compensation and the system of strict responsibility and compensation. Section Three supplies the environmental liability insurance system of the transboundary movements of hazardous wastes. Section Five analyzes the environmental fund system. The author wants to provide a binding system of responsibility and compensation for the transboundary movements of hazardous wastes according to the above analysis.Chapter Seven probe into the relationship between the transboundary movements of hazardous wastes and waste trade. The author tries to distinguish the transboundary movements of hazardous wastes with waste tradeso that some countries do the business of transboundary movements of hazardous wastes in the name of waste trade. The author hopes to differentiate the green waste of trade objects, which can freely trade, from the hazardous wastes, which transboundary movements need to regulate and control, and even ban.Part Three is the last one. The author wants to provide some suggestions for China' s waste management legislation and the policies of transboundary movements of hazardous wastes according to the study on the international legal regime of the transboundary movements of hazardous wastes.Chapter Eight tries to give some advices and suggestions on perfecting China' s Legal Regimes of Controlling the transboundary movements of hazardous wastes. Section One simply introduces Legal Practice of the transboundary movements of hazardous wastes in China, including legislative practice, executive practice and judicatory practice of the transboundary movements of hazardous wastes in China. Section Two introduces the legal systems of the transboundary movements of hazardous wastes which are. promulgated in Chinese waste laws and regulations. Section Three brings out the limitation of the transboundary movements of hazardous wastes in China. It includes that the solid waste law is not harmony and amalgamation enough with the solid waste law, limitation of the solid waste law and unconnected with the Basel Convention. Section Four tries to brings out some advices and suggestions on Chinese legal system of the transboundary movements of hazardous wastes. The author provides his own suggestions on the creation of China' s transboundary movements of hazardous wastes on the basis of analyzing the legislation, practice and management of the transboundary movements of hazardous wastes in China.Last is a simple review and conclusion for the whole study.