Trade Measures for Regulating Transboundary Movement of Electronic Waste

Author:Gideon Emcee Christian
Position:Adjunct Professor, Faculty of Law, University of Ottawa, Canada
Pages:103-127
UTRECHT JOURNAL OF
INTERNATIONAL AND EUROPEAN LAW
RESEARCH ARTICLE
Trade Measures for Regulating Transboundary
Movement of Electronic Waste
Gideon Emcee Christian*
International trade in used electrical and electronics equipment (UEEE) provides an avenue
for socio-economic development in the developing world and also serves as a conduit for
transboundary dumping of waste electrical and electronic equipment (WEEE) also referred to
as electronic waste or e-waste. The latter problem arises from the absence of a regulatory
framework fordierentiating between functional UEEE and junk e-waste.This has resulted
inboth functionalUEEEand junke-wastebeing concurrentlyshipped todeveloping countries
under the guise of international trade in used electronics.
Dealingwiththese problemswillrequire eectiveregulationof internationaltradeinUEEE
from both exporting and importing countries. Although, the export of e-waste from the European
Communitytodevelopingcountriesiscurrentlyprohibited,signicantamountsofe-wastefrom
theregion continue to owinto developing countriesdue to lax regulatorymeasures in the
latter. Hence, there is a need for a regulatory regime in developing countries to complement the
prohibitiveregimeinthemajor e-wastesourcecountries.Thispaperproposes trademeasures
modelled in line with WTO rules that could be adopted by developing countries in addressing
theseproblems.Theproposedmeasuresinclude thedevelopmentofacompulsory certication
and labelling system for functional UEEE as well as trade ban on commercial importation of UEEE
notcomplyingwiththesaidcerticationandlabellingsystem.Thepaperthengoesfurtherto
examinetheseproposedmeasuresinthelightofWTOrulesandjurisprudence.
Keywords: Electronic waste; e-waste; UEEE; Sustainable development; quantitative restriction;
WTO; GATT; TBT Agreement; technical regulation; standard; RoHS; WEEE
I. Introduction
The transboundary movement of used electrical and electronic equipment (UEEE) from developed to
developing countries presents positive socio-economic benefits as well as negative health and environmen-
tal impacts to the developing world. The problem with international trade in used electronics lies in the
absence of a regulatory framework for distinguishing between functional UEEE, and obsolete waste electri-
cal and electronic equipment (e-waste). This problem is evident in the Basel Convention framework. While
the Convention (including the Basel Ban) expressly prohibits transboundary movement of hazardous wastes
to developing countries, it does not prohibit transboundary movement or trade in UEEE meant for reuse.
Hence, a mere documentary declaration to the effect that a consignment of used electronic exports to a
developing country is meant for reuse automatically takes it outside the framework of the Basel Convention.
There is no requirement under the framework to verify if the shipment is in its actual state capable of reuse.
This regulatory gap has resulted in both functional and obsolete electronics flowing collectively to develop-
ing countries in the guise of international trade in used electronics. The massive transboundary movement
of obsolete e-waste from Europe and North America to developing countries in the guise of international
trade gives rise to environmental and public health concerns. It has been estimated that about 180 contain-
ers of used electrical and electronic products enter the Lagos (Nigeria) ports daily.1
* Adjunct Professor, Faculty of Law, University of Ottawa, Canada.
1 See Ola Oresanya, ‘E-Waste Management in Lagos State – The LAWMA Experience’ (24 February 2011) Paper presented at the 2-Day
International Summit on Regulations and Management of e-Waste in Nigeria.
Gideon Emcee Christian, ‘Trade Measures for Regulating Transboundary
Movement of Electronic Waste’ (2017) 33(85) Utrecht Journal
of International and European Law pp. 103–127, DOI: https://doi.
org/10.5334/ujiel.435
Bridging Scholarship and Practice104
Most of the containers consist of mixed functional and junk electronic equipment. Research studies in
Nigeria and Ghana has estimated functional UEEE to constitute about 70% of UEEE imported into both
countries.2 Hence the remaining 30% represents junk e-waste that is shipped for the purpose of dumping.
While the functional electronics are traded as used electronics, the junk components are discarded in
unregulated waste dumps. E-waste scavengers in these dumpsites employ archaic recycling methods includ-
ing manual breaking and disassembly of electrical and electronic components of e-waste, open burning
of plastic cables to extract copper wires, as well as open incineration of unwanted plastics components.3
E-waste contains a ‘witches’ brew’ of heavy metals and organic chemicals. Heavy metals found in e-waste
include lead, mercury, cadmium etc, while its organic chemical contents include, among others, polychlorin-
ated biphenyls and brominated flame-retardants.4 Due to the presence of these substances, e-waste is gener-
ally considered a hazardous waste. Thus, improper handling or disposal of e-waste will naturally result in
these substances escaping into the environment, constituting serious health and environmental hazards to
people and communities, especially in developing countries where these junk electronics are now increas-
ingly being dumped.5
Dealing with the e-waste problem in developing countries will require effective regulation of interna-
tional trade in UEEE. This article proposes a combined framework involving technical regulations and
import bans which could be adopted by developing countries either at regional, sub-regional or national
levels in addressing the problems associated with international trade in UEEE. The technical regulation
will entail the development of a certification mechanism in UEEE exporting countries by environmental
NGOs or certification bodies.6 The mechanism should incorporate the use of a product certification mark
or label that would be attached to UEEE meant for export. The certification mark or label will serve as
physical evidence of compliance with the standard for reusability. Hence, recyclers and/or UEEE export-
ers in exporting countries who meet the certification or similar certification schemes developed along
those lines could be permitted to apply the certification marks or labels with a unique identification
code on their exports. Enforcement officers at the borders of the exporting countries could conduct a
random search of potential UEEE shipments to ensure that the shipments comply with the certification
mechanism and hence with the exporting country’s domestic regulations prohibiting export of e-waste to
developing countries.
At the receiving end, enforcement officers in the ports of entry in developing countries could rely on the
certification labels or marks as evidence of functionality of the UEEE bearing them. In addition, a trade ban
on commercial importation of UEEE not complying with the stipulated certification scheme and labelling
requirement could be imposed by developing countries to effectively bar the importation of e-waste.
The paper will examine measures for regulating transboundary movement of e-waste to developing coun-
tries. The paper will begin with a brief examination of WTO rules relating to trade regulation. It will then
proceed to examine two possible approaches to regulating the transboundary movement of e-waste to devel-
oping countries. The first approach to be examined is the non-trade-restrictive framework that allows for a
free trade in UEEE complemented by domestic measures for management and disposal of e-waste resulting
from the free trade. The paper will proceed further to examine a trade restrictive framework incorporating
a certification and labelling scheme and an import ban. The validity of these frameworks will be examined
within the context of WTO rules under the Agreement on Technical Barriers to Trade (TBT Agreement) and
the General Agreement on Tariffs and Trade (GATT).
2 See Olakitan Ogungbuyi, Innocent Chidi Nnorom, Oladele Osibanjo, Mathias Schluep, ‘Nigeria e-Waste Country Assessment’ (2012)
Basel Convention Coordinating Center for Africa (BCCC-Nigeria) CC-Empa.
pdf> accessed 3 August 2011; Odeyingbo Olusegun Ayodeji, ‘Assessment of the Flow and Driving Forces of Used Electrical and
Electronic Equipment into and within Nigeria’ (2011).
3 Jack Caravanos, Edith Clark, Richard Fuller, Calah Lambertson, ‘Assessing Worker and Environmental Chemical Exposure Risks at an
e-Waste Recycling and Disposal Site in Accra, Ghana’ (2011) 1 Blacksmith Institute Journal of Health & Pollution 16.
4 See Jim Puckett and Ted Smith, Exporting Harm: The High-Tech Trashing of Asia (Diane Pub Co 2002).
5 Staffan Lundstedt, ‘Recycling and disposal of electronic waste – Health hazards and environmental impacts’ (2011) Swedish
Environmental Protection Agency Report 6417.
6 An example is the e-stewards certification. The mechanism provides a measure of assurance that electronic equipment exported
from e-steward certified recyclers/exporters conforms to the standard of functionality and a guarantee against obsolete e-waste
export. See ‘The e-Stewards Story’ accessed 3 August 2017.

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