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

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