Legal Analysis of the Consequences of the OECD Non-Consensus Determination on the Basel Plastic Amendment

This legal opinion by the Center for International Environmental Law (CIEL) analyzes the obligations of OECD members regarding the trade of plastic wastes following the OECD's failure to reach a consensus on incorporating the Basel Plastic Amendments into the OECD Wastes Trade Decision. The analysis concludes that plastic wastes designated as "other wastes" under the Basel Convention have fallen outside the scope of the OECD Decision, requiring OECD members who are Basel parties to apply Basel's control and ban mechanisms. CIEL further argues that recent arrangements between the US and Canada, and within the European Union, fail to meet the requirements of Article 11 of the Basel Convention and are therefore invalid as alternatives to Basel controls.

• The OECD's inability to reach a consensus on the Basel Plastic Amendments means that plastic wastes classified as "other wastes" are no longer covered by the OECD Wastes Trade Decision. Consequently, OECD members that are parties to the Basel Convention and have not objected to the amendments must apply Basel's control and ban mechanisms to these wastes when trading with both Basel parties and non-parties.
• The Basel Plastic Amendments, effective January 1, 2021, significantly restricted the trade of plastic wastes. Only non-hazardous plastic shipments that are almost free from contamination, destined specifically for R3 disposal operations (excluding incineration, landfill, or waste-to-energy), and generally unmixed (single polymers only) are exempt from prior informed consent (PIC) procedures and other controls.
• For an agreement to be a valid Article 11 agreement under the Basel Convention, it must be legally binding and provide a level of protection and control equivalent to the Basel Convention. This includes requirements for obtaining assurances of environmentally sound management, a strict notification and consent system, and the classification of non-compliant movements as criminal illegal trafficking.
• The 2020 arrangement between the United States and Canada for trading plastic wastes is considered invalid as an Article 11 agreement because it is explicitly not legally binding and lacks a system for notification, prior informed consent, or tracking and reporting.
• The EU Waste Shipment Regulation (WSR) is deemed an invalid Article 11 agreement because it departs from Basel standards in two ways: it allows uncontaminated plastic waste to be destined for a broad range of "recovery" operations (including burning for fuel) rather than just recycling, and it allows free trade of certain plastic wastes, such as PVC and PTFE, that Basel requires to be subject to PIC procedures.
• While some OECD members, such as Turkey, notified the Basel Secretariat of their inability to accept the Plastic Amendments, they are still practically limited by the obligations of their trading partners who have ratified the amendments and must ensure notification and prior informed consent.

APA

Azoulay, D., & Eisen, N. (n.d.). Legal Analysis of the Consequences of the OECD Non-Consensus Determination on the Basel Plastic Amendment. Center for International Environmental Law. https://www.ciel.org/wp-content/uploads/2021/02/OECD_Basel_Legal-Analysis_FINAL.pdf

Chicago

Azoulay, David, and Nathaniel Eisen. Legal Analysis of the Consequences of the OECD Non-Consensus Determination on the Basel Plastic Amendment. Center for International Environmental Law, n.d. https://www.ciel.org/wp-content/uploads/2021/02/OECD_Basel_Legal-Analysis_FINAL.pdf.

Wikipedia

{{cite report |last1=Azoulay |first1=David |last2=Eisen |first2=Nathaniel |title=Legal Analysis of the Consequences of the OECD Non-Consensus Determination on the Basel Plastic Amendment |publisher=Center for International Environmental Law |url=https://www.ciel.org/wp-content/uploads/2021/02/OECD_Basel_Legal-Analysis_FINAL.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{azoulayndlegal, author = {Azoulay, David and Eisen, Nathaniel}, title = {{Legal Analysis of the Consequences of the OECD Non-Consensus Determination on the Basel Plastic Amendment}}, institution = {Center for International Environmental Law}, url = {https://www.ciel.org/wp-content/uploads/2021/02/OECD_Basel_Legal-Analysis_FINAL.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }