Neocolonialism as a Fundamental Premise of International Environmental Law: a Case Study of the Basel Convention

The issue of hazardous waste management highlights some of the salient problems and chasms within international environmental law, in particular the gap between international legal regimes and country-specific interpretations thereof, leading to various levels of convolution that affect both the global north and south. This essay seeks to foreground the discussion around this based on an understanding of the Basel Convention, an international framework for transboundary hazardous waste disposal. The gap that remains between the aims of the Basel Convention and the domestic interpretations of its standards by party states greatly impedes the effectiveness of the program, leading many to question the efficacy of international environmental law. Perhaps most potently, the Basel Convention highlights some of the essential paradoxes within international environmental law, and the philosophical tension between its aims and its implementation. In particular, this essay will argue that the fundamentally global north-centric discourse and norms in the Basel Convention ultimately still continue older economic and social inequalities by giving its party states more power for interpretation to suit their own needs.

The Basel Convention was set up in 1989 to address the emergent trend of hazardous waste being disposed of by developed countries in developing countries that were less equipped to handle the materials safely, a practice that is often termed “toxic waste colonialism” as mentioned by Laura A. Pratt in her research entitled “Decreasing Dirty Dumping? A Reevaluation of Toxic Waste Colonialism and the Global Management of Transboundary Hazardous Waste”. The rationale behind the Basel Convention was to create accountability and norms within member states to reduce illegal trading of hazardous wastes to countries where due to mishandling and mismanagement, it could pose a serious threat to environmental health and wellbeing. Member states of the Convention were encouraged to reduce their production of hazardous waste and to allow trade of hazardous materials within countries within the Convention that were deemed to have the effective infrastructure to dispose of the waste in a safe environmentally-friendly manner, as further claimed by Laura A. Pratt. However, while in principle this would seem rather straightforward, the Basel Convention for the large part left it up to the member states themselves to define what constitutes hazardous waste and what the regulation, enforcement and punitive regimes of the Convention would be. Unsurprisingly, this created multiple loopholes that enabled many member states to continue with “toxic waste colonialism”, through increasing interference with local economies in the global south, exacerbating the dependency of the Southern nations to capitalist expansion from the North. Some of the problems with legislating the management of hazardous waste, is however, not exclusive to the realm of the Basel Convention and related treaties, but rather a feature shared by the whole of international environmental law.

What remains particularly interesting surrounding the establishment of implications of treaties such as the Basel Convention is the potential for any piece of international environmental legislation to fail due to overly broad definitions and language and no elucidation, or even guidance regarding implementation practices. The environmental and humanitarian injustices that were perpetuated by toxic waste colonialism before the establishment of international legal infrastructure risk being continued, or even exacerbated if no clear guidelines on definitions of hazardous waste and related implementation are provided and internationally accepted by the signatories. This is an issue of effectiveness of these laws, as much as an issue of environmental justice. As Carmen G. Gonzalez mentions in his research entitled: “Environmental Justice and International Environmental Law”:

North-South environmental conflicts reflect broader social injustice because they are inextricably intertwined with colonial and post-colonial economic policies that impoverished the global South and facilitated the North’s appropriation of its natural resources.

This highlights one of the major areas in international environmental law that is not explicitly acknowledged by mainstream environmental and legal discourses. While the notion of North-South cooperation and even the fact that certain countries lag far behind in levels of economic and technological development are part of the recognized paradigm of international laws, environmental laws seem to be formed in an ahistorical vacuum, in mostly technocratic ways that do little to address the fundamental inequalities and colonial context for them, as further claimed by Carmen G. Gonzalez. While pieces of international environmental law such as the Basel Convention may have been set up with the intention of attending to these inequalities head on, the loopholes it has created can indeed exacerbate neocolonial attempts with continued economic subservience and resource depletion in countries in the global south. Although the political understanding of colonialism, in that many countries in the global north took political decision making away from the hands of many nations in the global south, is widely acknowledged, international laws pay little attention to the environmental and resource-based colonialism and neocolonialism that has taken place and continues to take place in the global south. As Carmen G. Gonzalez explains once further:

Colonialism transformed subsistence economies into economic satellites of Europe, and wreaked havoc on the peoples and environments of the colonized territories. Asia, Africa, and Latin America were incorporated into the global economy as exporters of raw materials and importers of manufactured products. Mining, logging, and plantation agriculture destroyed forests, displaced indigenous communities, and disrupted local ecosystems.

Countries in the global north continue to practice some form of resource-based colonialism in countries in the global south even within the context and with the help of international laws. This is ultimately rooted in the large differences between the production and consumption patterns between the global north and the global south, with the global south being a pool of resources for the global north to exploit.  For instance, the Washington Consensus perpetuates global capitalist expansion and neocolonial regimes by encouraging export-oriented economies in the global south to cater to northern demand, while advocating for economic development strategies that mimic and ultimately benefit the global north, as northern corporations gain increasing power in the economies and politics of the global south. Laura A. Pratt highlights that this is the very nature of transboundary toxic waste disposal between the global north and south that makes it have a distinctly neocolonial context:

Even though historical colonialism focused on the political and legal domination over an alien society, some of the characteristics of colonialism involving economic dependence, exploitation, and cultural inequality are intimately associated within the new realm of toxic waste colonialism.

Thus, in the years prior to the establishment of the Basel Convention, global north states continued with the economic patterns of the colonial eras by using the global south as the bearers of its economic growth. The Basel Convention, once established, sought to eradicate, or at least minimize the level of risk and social inequality faced by the global south countries with its efforts to ban all signatory parties from exporting their hazardous to global south countries (with few exceptions). However, the terms of this convention were still dictated by the global north, and each country signatory to the convention was allowed to have its own internal legislation to enforce the Basel Convention. As such, many countries in the global north were able to legislate in a way that made way for numerous loopholes to legally transport hazardous waste to the global south, once again continuing with the toxic waste colonialism.

In order to address the root of the problem, once again, we must return to the fundamental reason why the global south countries accept hazardous waste shipments, legally or otherwise. As Laura A. Pratt mentions, economic reasons are at the base of this. Developed countries seek to reduce their hazardous waste management costs, whereas developing countries seek to improve their economies with incoming foreign capital. Thus, in cases where developing countries cannot afford to have or enforce rigorous environmental legislation, there is incentive for many actors to buy foreign hazardous waste, even when the environmental concerns may be at least somewhat understood.

Perhaps one way to address the eclectic challenges and pressures faced by global south countries in dealing with hazardous waste from the global north is by turning the tables and defining the laws under which they will accept waste shipments from the north, or not. Such attempts have indeed been made through Bamako Convention, and the Lomé IV Convention. The Bamako Convention requires its parties to develop domestic means of regulation and enforcement to prevent the import of hazardous waste within their territories, whereas the Lomé IV Convention, which in association with the Basel Convention, outlaws the export of from the European Economic Community to the African, Caribbean and Pacific States that form the ACP. By giving further agency to states in the global south in interacting with the global network of hazardous waste and the related legislation and the legal definitions within them, the Bamako and the Lomé IV Conventions take international environmental law a bit further by implicating new actors which have historically been undermined in the discourses surrounding these activities. Nonetheless, vague definitions within all of these treaties make it difficult for global south nations to move along in implementing and enforcing these legislations. Perhaps part of the problem remains that these treaties use the language of the colonizers themselves, in that they cater ultimately to the definitions, thereby the needs of global north nations, and the tyranny of these definitions, the vague chasm between hazardous “waste” and “product” make it easy for many actors within the north the take advantage of loopholes in the system to carry forward with older toxic waste regimes.

In order for global environmental laws to address any problems, such as “toxic waste colonialism”, it has to first acknowledge the extent to which these are intersectional issues that demand an evidence-based, socioeconomically and historically conscious decision-making that simply do not reduce hazardous waste to a technical scientific problem. Failing to do this may indeed create numerous loopholes internationally that would aid in the continued exploitation of the global south. Simply providing a standard of implementation or definition without counsel from the global south may result in external regimes being imposed on them once more, moving from political to socioeconomic colonialism. The fundamental conditions of postcolonial states, and their continued dependency and subservience to the north must be critically examined in order to make any piece of international environmental legislation effective and enforceable.