Rapid innovation in information and communications technology (ICT) leads to the increased production and consumption of electronic goods. Sometimes, this innovation is regulation-driven, such as when the United States migrated from analogue to digital television converters. At other times, competitive forces drive innovation, as established tech market giants seek to continually improve on flagship products, while new entrants seek a foothold into some segment of the market with novel products. Developing country exporters, notably from China and India, flood the market with low-cost alternatives that, in turn, have price-suppressive effects in many tech-related industries.

Consumer demand for cheaper products and tight manufacturer cost structures in competitive markets lead to a glaring market externality: the inability to budget for the escalating costs of electronic (e-) waste disposal. E-waste is broadly described as ‘all types of electrical and electronic equipment (EEE) and components thereof that have been discarded by owners, with no intention to reuse’(http://www.step-initiative.org/what-is-ewaste.html.). The US EPA estimates a 5-10% global increase in the generation of e-waste each year. Last year, the EPA estimated that US-based consumers discarded over 6 million tons of e-waste – a figure that does not take into account the amount of electronic products that consumers store at home, and which can be introduced into the waste stream at any time.

A recent UN study indicates that only 13% of e-waste is managed properly (that is, properly disposed or recycled). The residual e-waste is shipped to Africa and Asia. The UN projects, in line with the EPA’s global growth figures in the preceding paragraph, that in 5 years, the earth’s e-waste reserves will increase by 33% from 49.7 million tons to 65.4 millions tons. This represents the weight of 200 Empire State Buildings and 11 Great Pyramids (all three) of Giza. Readers curious about their country’s e-waste generation are referred to the Step Initiative’s website, which contains updated waste generation data on a per-country basis.(http://www.step-initiative.org/step-e-waste-world-map.html.)

The cost of safely disposing of e-waste is considerable. A single computer in the United States, for instance, costs $20 to safely dispose. In India, however, this same computer will cost $2 to be [un]safely disposed ( Typically through open-air burnings or acid baths.) This leads to the creation of export markets for e-waste in developing countries, with importers eager to save on high e-waste disposal costs in developed countries. What’s more, e-waste contains precious metals. Some estimates indicate that up to 30 times as much gold can be found in cell phone circuitry than can be found in gold ore (some 150 grams, or 5.3 ounces, per ton, compared to 5 grams, or 0.18 ounces per ton). This same ton of cell phone circuitry also contains 100kg (220lb) of copper and 3kg (6.6lb) of silver, as well as smaller quantities of other valuable materials. Further, the cell phone waste contains less toxins than ore. The possibility to harvest precious metals from e-waste has led importers in Nigeria and Ghana to pay manufacturers or recyclers abroad for their e-waste.

In the United States, 25 States have enacted e-waste disposal laws. These laws either require manufacturers, through take-bake initiatives or advanced recycling fees, or consumers, through advanced recycling fees, to bear the cost and responsibility for depositing e-waste with designated recyclers, who in turn are charged with its safe disposal. There is little that can be done by States, however, to police recyclers – in these 25 States, let alone waste disposers in those 25 States without e–waste laws – to ensure that e-waste is not shipped abroad. This is because any attempt by States to prohibit the exportation of e-waste would constitute a violation of Congress’s Commerce Clause, which vests Congress with the sole authority to regulate foreign commerce. It should be noted, in this regard, that past attempts to introduce federal e-waste legislation before Congress have all failed. In the EU, in contrast, the recast RoHS (Directive 2011/65/EU on the Restriction of the use of certain Hazardous Substances (RoHS II).) and WEEE (Directive 2012/19/EU on Waste Electrical and Electronic Equipment (WEEE II).) Directives respectively prohibit the placing of hazardous chemicals into electronic products, and restrict the exportation of EEE waste abroad. These laws require Member States to increase monitoring and control of EEE exports that are consigned for recycling abroad.

As e-waste ‘mountains’ grow in cities in China, India, Ghana, and Nigeria, and local populations suffer mounting and serious diseases caused by inhaling the lethal cocktail of lead, cadmium, mercury, and beryllium that burnt e-waste emits into the atmosphere (or introduces into the water supply), an increasing number of developing countries

have called for tighter controls on e-waste regulation. The 1992 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, and its so-called “Ban” Amendment, sought to prohibit its signatory OECD members from shipping to non-OECD members over two decades ago. Both the Convention and the Amendment, however, exempt goods consigned from recycling from this prohibition. Yet, 99% of e-waste exports to Africa and Asia are designated as recyclable goods. Presently, countries hesitate to introduce outright bans on recyclable goods as these goods are indistinguishable from finished goods in international trade (Recycled goods are exported under the same harmonized system (HS) classification codes as finished goods.) Where a developing country member of the World Trade Organization (WTO) seeks to ban the importation of recyclable electronic goods from entering its commerce, this can be construed as an outright ban on those electronic goods in toto, in violation of, inter alia, GATT Articles II and XI. This leads to paralysis in combating the illegal exportation of e-Waste ( It bears mentioning that the Bamako Convention on the ban on the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, ratified by 25 African States, criminalizes the deliberate exportation and importation of hazardous waste (including e-waste) into Africa. Enforcement of the Convention is severely hampered by a lack of funding and cooperation from signatory state authorities.)

Moving forward, it is critical that States foreclose the export ‘loophole’ that is preventing a full-blown e-waste crisis from developing in poorer countries. So long as manufacturers, recyclers and waste disposers have the option of saving costs (or indeed making profits) from e-waste exports, the tech industry’s response to safely disposing of e-waste will continue to be confined to, albeit important, first movers such as Apple, Amazon, Ebay, and Dell, through their trade-in and buy-back programs. Studies in the EU and US have shown that the extended producer responsibility laws introduced by the RoHS I and WEEE I Directives have not pushed industry to truly transition from ‘cradle to grave’ production models, where electronic goods reach end-of-life in 2-3 years and are disposed of in the general waste stream, to ‘cradle to cradle’ production models, where these goods can be fully or substantially recycled into refurbished products. The EU Commission will assess whether or to what extent the RoHS II and WEEE II Recast Directives will fare better in this regard than their predecessors. It is hoped that the more stringent disciplines introduced on the exportation of e-waste abroad will show some improvement on earlier studies.

While literature on e-waste encourages States – notable the United States – to adhere to the letter and spirit of the Basel Convention, this is unlikely to yield much improvement on the status quo – particularly as problems of monitoring imports designated for recycling in developing countries will remain the big challenge. Rather, an Asian or African State should take the plunge and ban exports of recyclable electronic goods on grounds of public health. This State – perhaps a member of the Bamako Convention – should effectively hold itself out as a test case for potential WTO litigation. Such litigation, should it ever arise, should be defensible under the so-called “trade and” exemptions codified in GATT Article XX or TBT Article 2.2, which allow a Member State to set import bans or qualitative/quantitative import restrictions on goods, where such measures can be shown to be justified on grounds of protecting public health, or preserving public morals. While it is true that WTO panels display a certain trade proclivity in its rulings, these panels are not ‘tone deaf’ to the severe political fall-out that an adverse ruling for the defendant Member State would have. This scenario assumes that a developed Member State would have the stomach to initiate dispute settlement proceedings against a developing Member State seeking to protect its citizenry from the harmful effects of e-waste ( Civil society was, after all, quite unforgiving of Canada’s attempts to protect its asbestos industry in the EC – Asbestos dispute (which it lost in any event)