The Case for U.S. Ratification of the Basel Convention on Hazardous Waste

56 Pages Posted: 10 Nov 2015 Last revised: 3 Nov 2018

See all articles by Tseming Yang

Tseming Yang

Santa Clara Law School

C. Scott Fulton

Environmental Law Institute

Date Written: February 28, 2016

Abstract

Over the past two decades, the failure of the United States to ratify a string of global multilateral environmental agreements has become a significant source of frustration for environmentalists and diplomats. Delay has been uniquely serious, however, with respect to the 1989 Basel Convention on Hazardous Wastes. Signed under the elder President Bush and approved by the Senate in 1992, the agreement has remained stuck in legal limbo for almost a quarter of a century - unratified and thus without U.S. membership.

The common perception is that Washington politics is to blame. Our article, however, explains that instead a legal issue, which has received little attention, has proven to be the more significant impediment - whether U.S. law provides adequate authority for domestic agencies to carry out treaty obligations. With respect to Basel Convention ratification, it has been commonly believed that further implementing legislation is necessary. Similar assessments of inadequate domestic implementing authority apply to other pending MEAs.

Based on a careful review of existing legal authorities, our article argues that the Executive Branch already has, at this point in time, sufficient authority to implement Convention obligations. Given the negative consequences of ongoing delay and the closing time window for avoiding ratification complications associated with the Ban Amendment, the Convention’s controversial amendment that has yet to enter into force, we believe that ratification of the Convention can and should move forward without delay.

Keywords: hazardous waste trade, Basel Convention, treaty ratification, treaty compliance

JEL Classification: K32, K33

Suggested Citation

Yang, Tseming and Fulton, C. Scott, The Case for U.S. Ratification of the Basel Convention on Hazardous Waste (February 28, 2016). Santa Clara Univ. Legal Studies Research Paper No. 1-15, Available at SSRN: https://ssrn.com/abstract=2688173 or http://dx.doi.org/10.2139/ssrn.2688173

Tseming Yang (Contact Author)

Santa Clara Law School ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-551-6037 (Phone)

C. Scott Fulton

Environmental Law Institute ( email )

2000 L Street, NW, Suite 620
Washington, DC 20036
United States

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