the toxic truth - Greenpeace

74 Amnesty internAtionAl And greenpeAce netherlAnds
Chapter 6
and a non-Party (such as the US) should only
take place in the context of a special bilateral
or multilateral agreement. 318 One such
multilateral agreement has been established
between OECD countries: this is an
agreement known as OECD Council Decision
C(2001)107/FINAL as amended, which covers
the issue of transboundary movement of
wastes for recycling/recovery between OECD
countries. Norway, Mexico, the UK, Spain and
the US were all OECD countries in 2005-2006.
Consequenly, trade for recycling between
these states would have been legal — but
only if the prior-informed consent provisions of
that agreement were followed. 319 Thus, under
the OECD agreement, Mexico was under an
obligation to require corporate actors (and any
other entity generating and planning to ship a
waste) to notify the appropriate government
authorities. The Mexican authorities had
an obligation to notify the US authorities of
the shipment and gain their consent prior to
export. The US had the same obligations and
should have informed, and gained the consent
of, Norway, Spain and/or the UK. Any export
of waste material for recycling without such
notifications and consent was a violation of the
OECD accord. There is no record that any such
shipments were notified and consented to.
Tunisia, Malta and the United Arab Emirates
(being Basel Parties but not OECD countries,
and therefore not part of the special
multilateral agreement authorized to
overcome the Party to non-Party ban) would
not be permitted to receive the coker naphtha
from the US, as the US is not a Party to the
Basel Convention.
If one assumes, as argued above, that coker
naphtha is a hazardous waste, it is likely
that the exports of coker naphtha to these
countries were illegal imports of hazardous
waste and thus criminal traffic under the Basel
Convention, and the exports from the US were
also a violation of the OECD accord referred to
above. 320
In summary, the coker naphtha itself has
all the characteristics of a hazardous waste
under Basel definitions. As such, the export of
coker naphtha from Mexico to the US should
only have been done subject to the receipt of
consent by the US. If the US did not consent,
then these shipments would be illegal. The
subsequent export of coker naphtha from
the US to any member states of the OECD,
including Norway and the territorial waters of
Spain or the UK, without prior notification and
consent would likewise be a violation of the
OECD accord. The export of coker naphtha
from the US to Tunisia, Malta and/or the
United Arab Emirates would be illegal traffic
and a criminal offence under the terms of the
Basel Convention. As the US has not ratified
the Basel Convention, the illegal activity could
only be addressed in the recipient countries.