Legal Rules for the International Waste Trade

The Implementation of the Basel Convention in Japan and the EU

Abstract

This article examines the implementation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal in Japan and the EU. It analyses how two of the largest economies and major waste exporters transpose the rules of international waste shipment law into their respective legal systems. The article shows that both Japan and the EU essentially fulfil their obligations under the Convention, in particular by establishing prior informed consent (PIC) procedures for the export of certain waste types and provisions for the re-import of illegally exported wastes. But, despite being based on the same international standards, also notable differences can by observed. Some of these can simply be attributed to divergent decisions by the respective legislatures: One example is Japan’s non-ratification of Article 4a of the Basel Convention and the corresponding absence in Japanese law of a ban prohibiting export to non-OECD countries. The article argues, however, that many other differences can be explained by characteristics of the two legal systems that extend beyond waste shipment law. Examples include the traditionally value-based concept of “waste” in Japan that has posed a challenge for the Japanese legislature, as it contradicts the operation-based waste definition of the Convention. The complex and detailed design of re-import rules in EU law is explained by the need to prevent conflicts between Member States. The fact that Japan instead relies on a vague general clause as a basis for re-imports can be attributed to the important role of informal administrative guidance in Japanese administrative law. Finally, it is shown that the EU and Japan have chosen different ways to determine which plastic wastes are subject to the 2019 Plastic Amendment of the Convention. The EU has set quantitative purity requirements to achieve harmonization and predictability for plastic waste shipments, also within the EU. By contrast, Japan has established criteria that are vague but easier to enforce in order to facilitate effective border controls and prevent ship-back demands from plastic waste import countries.