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Waste and the Law

If you hold an interest in international environmental law, you might find the special rapport in this week’s Economist on waste interesting. Although waste does not at first sight concern international law and related areas, the rapport fascinatingly describes many of the challenges and problems which waste gives rise to.  Given that, on average, each westerner produce around 500 kg of municipal waste a year, it is easy to appreciate that waste is an important issue. For example, the report cites data from a French research institute documenting that each year developed countries spend $120 billion disposing municipal waste in addition to $150 billion on industrial waste.  At the same time, waste remains a highly emotional issue with seriously negative connotations. This is, for instance, witnessed when authorities attempt to site new waste treatment facilities, be it landfills or incinerators, which often lead to protracted battles between local communities and authorities often under banners of “environmental justice”. Moreover, the simple classification of waste is a complicated matter given the fact that one man’s waste is another man’s raw material. Thus, it is no surprise that governments and private enterprises are constantly looking to achieve better disposal regimes while, at the same time, trying to facilitate environmentally sound procedures for such disposal.

As for the legal issues, a number of points are worth making. For instance, the problem of waste in space (e.g. debris from worn out satellites) represents, in addition to the threat to other satellites and space engineering in general, an apparent realization of Hardin’s Tragedy of the Commons. The same can be said of the gigantic “islands” of waste floating on the high seas by the prevailing currents.  In this case, the general obligations in the UN Convention on the Law of the Sea on states to protect the marine environment have, perhaps not surprisingly, proven to be toothless.  It is evident that stronger international measures are need in these cases to get states to take action outside their own territories.

One international agreement set up to address another waste related problem, that of export of waste from developed to developing countries (which often lack proper disposal facilities as well suitable enforcement mechanisms), have to some extent proven more successful. The 1989 Basel Convention, inter alia, operates with a system of prior consent between states before waste is shipped from a developed to a developing country. Although this merely affirms the sovereign rights of states to deny the export of waste to their territory, the Convention partly spurred the 1991 Bamako Convention banning the Import into Africa of hazardous waste. Critics, however, assert that the Basel Convention’s exemptions are too lenient, by for instance allowing for the export of waste for recycling, leading to waste simply being masked as other products. At the same time, the ban on such export has been questioned from the point of view that export is only taking place because it makes economic sense. This was vividly summed up, to the horror of many environmentalists, by Lawrence Summers when working for the World Bank. In addition, the problem of export of waste for e.g. recycling purposes is being further hampered by the plummeting of prices for recyclable products which has in some instance led to waste management companies requesting financial assistance.

In many countries, including the UK, many forms of waste is simply landfilled. Albeit a matter of primarily domestic law, this may have severe environmental consequences as deposited waste leaches into ground water resources. Where toxic waste is landfilled this has the potential to cause serious environmental damage. In addition, landfills emit methane, which from a climate change perspective is considered a dangerous gas, when the deposited waste decomposes. Another problem arising in relation to landfills emitting methane gasses is that such gasses are highly explosive. Thus, the European Court of Human Rights, in Öneryildiz v Turkey, from 2004, found Turkey in violation of the Convention’s Article 2 (right to life) as a result of a gas explosion at a landfill site near Istanbul which killed nine of the applicant’s family members dwelling in a slum neighbourhood close to the landfill.

As far as Europe goes, the European Community is often considered to be at the forefront when it comes to dealing with the environment in general and waste in particular. The Community has promulgated an extensive portfolio of waste directives covering issues from hazardous waste, vehicles, batteries, packaging and landfill sites. Just the same, the basic issue of actually defining what waste is remains a problem for the EC (in particular in relation to recyclable and reusable materials) and although attempts have been made in the new directive on waste (Directive 2008/98/EC) to remedy this, the problem persists. Here, the ECJ is unfortunately not to much help as the case law from the Court represents a (perhaps unnecessary) complex approach to the issue (see for instance C-418/97 Arco Chemie and C-9/00 Palin Granit).

An alternative to landfilling of waste is incineration. Although this has the potential to create cheap and carbon-low energy, it creates other problems. No matter how many times waste is burned, ashes will always remain as a by-product. These are often landfilled where no use can be found (such as road-filling etc. depending on whether it is toxic or not etc.). However, this is not entirely problem-free either. Recently, 300 million gallons of sludge and water containing coal ashes spilled from a depository after a dam broke in Eastern Tennessee burying several houses.

It thus becomes clear that the issue of waste raises a series of legal issues touching upon public international law, international environmental law, human rights as well as EC law. In this light, it is tempting to call for stringent government intervention and regulation. However, at the same time, it is evident that some role is there to play for the free market given the commercial interests in waste.

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