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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.