The Illegal Trade in Chemicals

Gaps and challenges

Despite the existing international framework, various gaps and challenges remain in regulating international trade in chemicals to ensure their sound management and to reduce air, water and soil pollution. These challenges include enforcement and implementation, inconsistencies among domestic regulations, an abundance of complex exemptions allowed under multilateral agreements, the gaps in the Conventions’ coverage to prevent the trade in many harmful chemicals, open borders between some countries, and low awareness and capacity of custom authorities to identify illegal chemical trade. Differences in national legislation and gaps in coverage The legality of trade in chemicals is ultimately determined and enforced by national legislation, which can differ significantly from jurisdiction to jurisdiction. States implement and enforce their international obligations differently andmay also impose additional domestic controls on trade in chemicals; these inconsistencies can make the effective regulation of trade in chemicals more difficult. The differences in domestic rules result from a variety of factors. The Basel Convention allows Parties to define certain waste as hazardous beyond those listed by the Convention, so the exact scope of the Convention differs from one country to another. Consequently some wastes are legally defined as hazardous in one jurisdiction but not in another – used tyres in Australia, for instance, but not in Ghana. In addition, Parties can differ on whether something is considered waste – one Party’s waste may be another Party’s product, for instance in the case of e-waste. To address this issue different initiatives – such as the technical guidelines on e-waste – have been recently adopted on an interim basis. 5 Regional conventions also create divergent definitions of waste. Under the Bamako Convention, for example, substances banned in the country of manufacture are considered hazardous waste. Similarly, substances defined to be hazardous wastes by domestic legislation of a Party of export, import or transit are considered hazardous wastes, even when such substances are not covered under the Convention. This significantly expands the breadth of covered substances compared to the Basel Convention but complicates enforcement. Because maximum residue levels of pesticides are not uniform (despite attempts to adopt global standards through the Codex Alimentarius), food products banned in one country may still be permitted entry in countries that allow higher levels of hazardous substances or do not regulate particular substances in products. With no provisions on illegal trade stipulated in the Stockholm and Rotterdam Conventions,

the rules and practices of States differ. The situation with the Basel Convention may be slightly different, but a number of discrepancies remain, including at the nexus of the Basel and Stockholm Conventions, for example in the case of waste with low POPs content (see Chapter Three). These differences in national legislation incentivize trade in harmful chemicals. Highly hazardous pesticides – such as paraquat, for example – that are not permitted for use in industrialized countries are manufactured and exported to developing countries that still permit their use. The present coverage of the conventions means that trade in many harmful chemicals is unregulated by international law. Significantly, only a fraction of the tens of thousands of chemicals that are traded are subject to international environmental regulation (UNEP 2012; Honkonen and Khan 2017). Thus, many chemicals of concern fall outside the scope of key existing legally binding MEAs. On the other hand, the SAICM policy framework has a much broader scope and covers all chemicals and wastes throughout their entire life cycles. Therefore, SAICM as a multi-stakeholder and multi- sectoral framework could better address the gaps in illegal trade of chemicals and waste. Many highly hazardous pesticides, for example, do not meet the requirements for listing as POPs under the Stockholm Convention and therefore do not fall within its scope and remain on the market. Additionally, some instruments address chemicals in specific phases of their life cycles, such as when they become waste (the Basel Convention), or they address the entire life cycle of a single substance, such as mercury (the Minamata Convention). The gaps in regulated chemicals are also due in part to the failure of Parties to agree to include all chemicals that could be covered by international conventions, especially for chemicals with important industrial uses. Chloroparaffins, for example, which are used as flame retardants and plasticizers, among other things, would qualify for listing under the Stockholm Convention, but thus far Parties have failed to agree to add these substances to the list. Short-chain chloroparaffins have been recently added to the Stockholm Convention, but the long- and medium-chain chloroparaffins are still marketed. Gaps in the coverage also result from the specific exemptions, acceptable purposes and other notifications that may be transmitted by Parties in accordance with Article 4 or the relevant Parts of Annexes A and B to the Stockholm Convention and result in the delay of actual ban or restriction. 6 The Stockholm Convention, for example, permits hazardous Gaps in coverage of the conventions

The Illegal Trade in Chemicals


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