BAN Report and Analysis of the Fifth Conference of the Parties to the Basel Convention

December 6-10, 1999
Basel Action Network (BAN)

I. Summary and General Comments

The Fifth Conference of the Parties to the Basel Convention (COP5) was significant for the following reasons:

• After almost 10 years of negotiations, the Parties adopted a protocol on liability and compensation. This protocol has been denounced by BAN and Greenpeace as being redundant, loophole ridden and in many cases counterproductive to the aims of the Basel Convention; To further contribute to this major disappointment the Parties failed to establish a mandatory fund for the compensation of victims of damage from the transboundary movement of hazardous wastes and their disposal.
• The Parties declared and established an agenda for the next Decade of the Basel Convention that prioritizes capacity building in "environmentally sound management" (ESM) of Basel wastes, whether or not they are the subject of transboundary movement. And most significantly has declared "waste minimization" to be the most important aspect of ESM which is to be emphasized.
• The Parties placed the subject of "dismantling of ships" (shipbreaking) fully within the mandate and scope of the Basel Convention's work, which will proceed at once.
• The Parties indicated vastly increased levels of commitment to Basel Ban Amendment Ratifications. These included the Czech Republic and China stating that ratifications were soon to be finalized. Meanwhile, a small but powerful minority of Basel Ban opponent countries and organizations continue to see the expansion of Annex VII as the avenue by which the Basel Ban is to be destroyed.

While BAN sees the Liability Protocol adoption and the continued efforts by some to undermine the Basel Ban as being highly negative, we are very happy with the Declaration which places an emphasis on waste minimization. We are also thrilled to note that ratifications of the Basel Ban are proceeding apace and that the very damaging loophole by which hazardous materials onboard ships are exported to developing countries will be addressed. Thus, with respect to the interests of the environment and related human rights issues, we can characterize the COP5 meeting as being both a major success and a major disappointment.

COP5 was the first Basel plenipotentiaries meeting where the Basel Ban was not the primary issue on the negotiation table. However the issue of the ban remained as a strong undercurrent, while the divide between certain rich and powerful OECD countries on the one hand, and the wishes of a majority of non-OECD countries and environmental non-governmental organizations (NGOs) on the other, continued to characterize negotiations. This time the OECD/non-OECD conflict was most apparent on issues having to do with the strength of the new liability protocol and the need for an emergency fund.

The Echo of Dr. Tolba's Words

As COP5 was indeed the 10th anniversary of the Basel Convention, several notable speeches were made by such dignitaries as Mostapha Tolba, Minister Svend Auken and Mr. Klaus Toepfer. (Copies of some of these speeches can be found on the BAN website, COP5 section, as well as links to the audio version of the texts).

Most significant was Dr. Tolba's speech which blasted the United States --"the biggest power in the world that produces and exports large amounts of hazardous wastes" -- for its lack of commitment to the Basel Convention after all of these years. "I fail to find an explanation for this when the US delegation over eighteen months of negotiations, regularly pressed for assurance that the Convention's provisions were not inconsistent with US national laws and regulations," he said.

Dr. Tolba warmly congratulated the Parties for passing the Ban Amendment which was the central issue when he presided over UNEP, but stated that 17 ratifications were not enough and therefore the President, the Extended Bureau and the UNEP Executive Director must apply pressure in all quarters to gather the necessary 62 ratifications for entry into force. He also referenced failings on the part of the Convention in that hazardous waste generation is still increasing. He noted that indeed waste minimization must be the goal as outlined in the Declaration for the Next Decade, but that for it to succeed, technology transfer must be emphasized along with the transfer of resources to ensure this transfer.

Below we will examine each of the noted significant developments of COP5 outlined above in greater detail, providing both reporting and some analysis as the issues relate to the mission of the Basel Action Network (BAN).

II. Adoption of the Liability Protocol

While the Liability Protocol was hailed as a success publicly by UNEP officials and the Parties toasted its adoption, a clear responsibility lies with the NGO community to declare that "the emperor has no clothes."

Only time will tell us whether the protocol will remain as weak and dangerous as it is currently drafted or whether it will in time be amended to assure real victim protection and provide incentives for industry to reduce transboundary movements and the generation of hazardous wastes. As it is currently drafted however, it can be declared to be: very limited in scope; largely redundant; easily avoided; in opposition to the objectives of the Basel Convention itself; contrary to the Polluter Pays principle and thus, in many easily foreseen instances, actually counterproductive. As such it sets a very dangerous and sad precedent. Certainly, compared to its initial promise (witness drafts as late as 1997) the final protocol can only be seen as a major disappointment and one that might haunt us for some time to come.

The primary defects of the protocol are explored in greater detail below, but can be summarized as follows:

• The protocol fails to make the generator liable unless the state involved requires the generator to be the notifier and only then up to the point where the waste passes to the disposer. This is contrary to the "polluter pays principle" and will actually create numerous situations where waste producers will actually have an incentive to generate and then export wastes in order to avoid liability they would otherwise face under domestic legislation. (Article 6 paragraph 1)
• The protocol fails to include damage which occurs after the initial act of disposal (e.g. deposit in a landfill or burning in an incinerator). As most of all damage that occurs from hazardous waste does not occur during shipments, initial deposit or processing, but rather after residues have accumulated or leached into groundwater, the protocol becomes largely meaningless. This is especially true considering that a liability regime already exists for the Transport of Hazardous and Noxious Substances. The failure to cover "aftercare" as part of disposal actually provides an incentive for the construction of highly polluting incinerators or leaky landfills. (Article 3, paragraph 2)
• The protocol allows countries to opt-out of the protocol by virtue of a bilateral, multilateral or regional agreement as long as there exists a liability regime meeting or exceeding the "objectives" of the protocol. As the objectives of the protocol are non-specific and are thus subject to subjective interpretation, there is little assurance that the replacement regimes which might be national laws, will be even as comprehensive as the weak protocol itself. (Article 3, Paragraph 6)
• The protocol fails to provide for a mandatory compensation fund to provide compensation funds in cases where funds are needed quickly, where responsible parties are unable to be found, or for preventative measures particularly in developing countries. (Article 15)
• The protocol fails to provide an adequate minimum financial limit or "floor". While it allows countries to exceed this minimum level, in many cases this will not occur and the fund will be inadequate to the task. (Annex B)

A. The Final COP5 Negotiation

As we shall see, COP5 succeeded in the further weakening of an already very weak document. We will first examine what occurred at COP5 with respect to the final negotiations and then review the fundamental flaws of the adopted protocol that were apparent prior to COP5.

From Impasse to Adoption

The final conflict over the adoption of the liability protocol came to a full impasse in September at the last (10th) meeting of the Legal Working Group. This meeting was supposed to put the final touches to the protocol. Instead, however it broke down after it was discovered that the OECD countries never intended to utilize the protocol themselves and had no intention of establishing a mandatory compensation fund. This impasse threatened to derail the adoption of an already fundamentally flawed protocol. Ultimately however, at COP5, due to three factors, the final differences were swallowed and the legal egg was laid, however ugly or unlikely to mature.

The first factor was the effort made on the part of UNEP Executive Director Klaus Toepfer who convened a small meeting of key countries between the last meeting of the Legal Group, and COP5. There, a compromise on the two outstanding issues was proposed whereby an existent fund would be utilized for compensation from accidents involving the transboundary movement of hazardous wastes. Contributions to it were encouraged but were not mandatory. In addition, wording with respect to the opt-out clause, was reformulated albeit in a very vague and weak manner. Developing countries and environmentalists would have preferred to delete the opt-out entirely. Short of that, it needed to state explicitly that side agreement liability regimes had to be specifically as strong or stronger than the protocol. The effort put forward by UNEP and the secretariat to craft a compromise, however, gave new impetus to making a final deal in Basel.

Second, despite repeated refrains heard in the corridors throughout the week that "no agreement is better than a bad agreement" the pressure to "succeed," particularly at the 10th Anniversary meeting, clearly, emphasized "any agreement, rather than no agreement." This mentality was spurred by behinds the scenes urging from notables such as Klaus Toepfer and even former Basel Coordinator, Ms. Iwona Rummel-Bulska.

Third, as is often the case in the creation of international law, consensus decision making leads to a final document reflective of the lowest common denominator. This is particularly true when that lowest denominator also happens to be those nations with the most economic clout. Thus, at the end of the 10 year ordeal most countries were willing to settle for something far less than ideal, knowing that such a minimalist outcome is often the norm in multilateral decision-making.

Developing Countries Placed at a Disadvantage

However, in the course of those 10 years of negotiations and certainly at COP5, the outcome might have been fundamentally different were there not other very significant factors enshrined in the process which played to the great disadvantage of those countries which were more likely to seek a strong protocol.

First, despite the importance of the protocol and the fact that there are in fact 6 official United Nations languages, all of the liability negotiations were conducted only in English, with no translation provided. English speaking nations thus dominated the negotiations throughout, and were commonly the principal advocates for weakening it (e.g. Canada, Australia, New Zealand, USA). The complexity of the technical and legal issues involved was challenging for all. It was really an impossibility for countries to have an equal footing while working with a second or third language.

In negotiating sessions and certainly at COP5, developing nations were also overwhelmed by the size of the delegations from many of the OECD countries. For example at COP5 the United States brought 12 delegates, Canada brought 9, Colombia in comparison had but 2. As the chair selected several working groups to meet simultaneously on separate, but related issues, developing nations found themselves torn as to which group to participate in, and made continual sacrifices through their inability to be in two or more places at the same time. While principal delegates were in concurrent work groups, the regional and coalition groups were frequently then unable to meet. And once in a workgroup they found themselves besieged by the inordinate OECD/English speaking presence in these groups. Largely outnumbered in these working groups developing country delegates often found themselves badgered by tag-teams of OECD/English speakers to the point of near exhaustion.

Adding to this, at COP5, the chair (Brazil) frequently appointed nations with highly similar positions and concerns to negotiate for the supposed middle ground. Thus for example, Singapore and Switzerland were selected to craft a compromise on financial insurance provisions, when Singapore's position was much more allied with the Switzerland's position than for example the African position. Far too often we observed that language suggested by OECD nations was the starting point for discussion and negotiation, even when there were alternative proposals and language submitted from developing nations. OECD suggestions or proposals were also made the focus of floor discussion while all too frequently excellent proposals, statements, or questions from non-OECD delegates were not presented for areas for floor discussion.

Opt-Out Wins Out, The "Fund" becomes an Empty Purse

At COP5 the (JUSCANZ) group (Japan, United States, Canada, Australia, Korea and New Zealand) joined by Austria, and Germany continued their vigorous defense of a very loose and flexible opt-out provision, as well as an absolute refusal to compromise on the establishment of a mandatory liability fund which was so desired by developing countries. The two issues were seen as linked because developing nations realized that if OECD countries chose to opt-out, there would be little incentive for those nations to contribute to a fund.

Despite the conjunction of these two provisions, the matters were considered separately at COP5 by pre-arrangement, and in fact, the fund language was not discussed until the opt-out provisions (Article 3.6) had been all but finalized -- a subject that occupied the bulk of the debate. This vastly weakened the bargaining possibilities inherent in a package deal.

Developing countries and the European Community representative fought hard to minimize the impact of these side agreements by seeking language assuring that they contain liability provisions as protective of the victim in explicit terms as was the case in Colombia's alternative 2 language. This option, however, was rapidly disposed of by the chair, and "consensus building" commenced around the weaker language.

In the end, the basic ideas of the UNEP "compromise" proposal prevailed with nothing but the mere promise of funds for compensation to be made available to developing countries on an interim basis, and very weak ambiguous language which would allow any country to opt-out of the protocol by establishing a bilateral, multilateral or regional agreement as long as there exists a liability regime, which "fully meets, or exceeds the objective of the protocol by providing a high level of protection to persons who have suffered damage."

As the "objective" of the protocol is to provide a "...comprehensive regime for liability..." it becomes far too easy to claim that any regime intends to meet that objective. Thus, OECD countries can opt-out of the protocol and apply their own domestic law, even if it is substantially weaker in certain aspects than the protocol. OECD countries were clear in their intention that it should be the parties to the opt-out agreements that decide if their agreement meets or exceeds the protocol. One would hope that in a liability question that determination would be one for the Courts seeking relief for the victims.

"Compromise" as Loss for Developing Countries and the Environment

As developing countries' wishes for a mandatory fund and a shoring-up of the opt-out clause were largely ignored, BAN believes that the COP5 result was hardly a compromise at all, but a clear negotiation loss for developing countries and the environment. On the other hand, it was a victory for those industries and countries which have fought hard for the last 10 years to progressively weaken the protocol to the lowest levels of protection possible (these countries included Austria, Germany, Japan, Australia, USA, and Canada).

Indeed, much in the same way as was done at the close of the meeting adopting the Convention itself in 1989, the African Group was able only to lodge a protest upon the adoption of the protocol, stating that the financial mechanism language found in Article 15 was "weak and cannot guarantee adequate compensation as it did not establish a mandatory fund." They registered their continued desire for a permanent, mandatory fund and viewed the current arrangement as strictly interim.

Financial Responsibility Limits

When the 10th session of the technical working group collapsed in September, the financial limits had been expressed as limits to strict liability, and then these limits had been repeatedly lowered under vague claims made about the unavailability of insurance. The secretariat looked to break the impasse here by contracting a consultant to evaluate the availability of insurance. This issue was revisited and hard fought throughout the COP5 meeting.

Belgium proposed new language early on that separated the notion of insurance from the strict liability cap by making domestic law the source for limits on strict liability, while coupling this with a minimum floor amount based on tonnage and differentiating between shipments and disposal. While these amounts were shockingly low in our view (e.g. the minimum limits of liability for a shipment of 5 tonnes would be around 1 million dollars while a disposer, regardless of tonnage would only have to be liable at a minimum of about 2 million dollars), they were still vigorously opposed by certain OECD nations.

Despite the consultant's work on the ready and affordable availability of insurance at these amounts, and statements by knowledgeable parties to that effect, Australia led others in strong opposition to these rates. They first, rather outrageously tried to establish them as a ceiling rather than a floor, and then tried to lower these already very low floor levels. In the end, Australia prevailed in the last minutes of the technical group to get language requiring the limits to be revisited at the next COP. After this tremendous last minute concession apparently solely for Australia, Australia still spoke out at length against the protocol at its adoption by the Ministers.

Basel Wastes by Virtue of National Laws (1,1,(b)) Not Always Covered

OECD nations led principally by Austria, Germany, and France sought to have liability for transboundary incidents of Basel Hazardous Wastes defined by Article 1, paragraph 1, (b) of the Convention apply only in the import or exporting nation where the waste was considered hazardous and then only if that was where the incident occurred. Other nations particularly transit and island nations, sought full liability for incidents to extend to transit incidents involving these wastes.

Without this global recognition of domestic laws a double standard exists, which was precisely why the Basel Convention included Article 1, 1, (b). BAN pointed out that exporters of 1, 1, (b) wastes seeking to escape the regulation of their own domestic liability regime for these materials would not be covered by the protocol if their efforts at escaping their own regulation resulted in damage in other countries that did not likewise define the waste as hazardous.

After minor tinkering and editorial changes and several restatements, the weaker position was essentially adopted. Liability for 1, 1, (b) wastes under the protocol will exist only when exporting or importing nations claim the waste is hazardous and only then when the state where the damage occurred also considers it hazardous. Thus, waste disposers in a country that considers a waste hazardous can simply move that waste to or through a country that does not consider it hazardous in order to avoid liability. Or alternatively, a transit state might stand alone as being the only entity considering the waste hazardous, and yet be unable to envoke the liability protocol when the waste in question causes damage on their territory. Once again the countries seeking to weaken the protocol prevailed resulting in a protocol that actually encourages exports and environmentally unsound disposal rather than promoting the principles of self-sufficiency or waste minimization and environmentally sound management embodied in the Convention itself.

B. Liability Protocol: The Fundamental Flaws Not Negotiated at COP5

While the technical working group at COP5 further weakened and diluted the protocol, much of the most severe damage had already been accomplished in the Tenth Session and before. The protocol was the result of 10 years of erosion of environmental and progressive liability principles perpetrated largely by industrial lobbies and the nations that allow such interest groups to dictate their foreign environmental policies. Most of the damage was done however in the last two years. Prior to this time, excellent language remained in brackets (undecided). Most deplorable, is the fact that two of the countries most involved in the recent destruction of the proposal's more protective provisions (United States and Canada) themselves possess domestic liability law far stronger and more rigorous for their own citizens within their own borders.

Polluters Avoid Liability Via Export

The protocol terminates generator liability with transfer to the notifier, and/or disposer. This has the perverse effect of transforming a treaty meant to encourage waste minimization and discourage exports, to a regime that suddenly provides a tremendous, almost irresistible incentive to export waste. In many developed countries, generators bear ultimate responsibility for their wastes. In others it is not explicit, but generators can usually be held liable.

The idea of holding generators liable is in complete accordance with the Polluter Pays Principle and all principles of waste minimization and prevention. Hazardous waste is something the world is seeking to eliminate. As such it is a unique subject matter, apart from all other norms of liability law which apply to goods and services. Yet the Basel Parties allowed waste generators (also known as polluters) to avoid liability for the wastes they produce as long as they export it. Now, under the final protocol, domestic regulatory regimes and long term liability can be readily terminated by transfer to a notifier and export. Faced with long term, substantial liabilities and ready termination of these potential liabilities, what generator would not seek to export their wastes? In fact, multinationals will find it highly profitable to launder waste liability through international transport.

Placing the liability, however short, on the notifier creates a scenario we faced in the worst days of the international trade in hazardous waste -- the proliferation of small and shady mailbox companies that can become the broker/notifier/exporter. When this is coupled with the protocol's minimal levels of insurance or bonding, these brokers do not have to even pledge significant assets or financial responsibility. It is an invitation for abuse.

The Greater Part of "Disposal" Not Covered

The protocol's failure to extend to the full scope of "disposal" including the period of time following deposit in a landfill, burning or processing in an incinerator or recycling facility, is inexplicable given the scope of the Convention itself and its obligation to achieve environmentally sound management.

It is clear that the framers of the Basel Convention meant to include aftercare or they would never have explicitly included the concept in the definition of hazardous characteristics (H13 of Annex III). Likewise the definition of Environmentally Sound Management states, "protect human health and the environment against adverse effects which may result from such wastes." This "result" is not qualified with language such as "prior to and up until the point of deposit, combustion or processing."

By twisting radically away from the scope of the Convention the draft liability protocol fails to apply to the most critical problems associated with hazardous waste disposal – gradual and long-term soil and groundwater contamination attributable to leakage and fallout from disposal and recovery operations. The impacts of long-term leachate, groundwater or other forms of pollution fallout and migration from a disposal facility are much more likely, significant, and costly to remedy than are sudden spills of hazardous waste along the shipping route. Indeed, most spills will occur during sea-transport, which is already the province of another liability regime.

Under the current draft, "completion of disposal" is the end point of the protocol's scope under Article 3.1. The term "disposal" means any operation in Annex IV of the Convention. For example, one of these operations is D1 "Deposit into or onto land". Thus, according to this description, the disposal is completed at the moment that there is a "deposit". Likewise, recycling or combustion operations will be interpreted as being up to the moment of processing and the damage arising from the residues of such operations may be excluded.

It is very well known that the most significant problems occur after the point of the handling. Illogically, the current draft definition of disposal does not extend to securing and monitoring the landfill over the longer-term (i.e., environmentally sound management which is required after "deposit"). Nor do they include the long-term management of residues or the effects of air pollution from a processing plant.

As these hazards are not encompassed by the regime, there will be little incentive for operating disposal and recycling facilities in the best possible manner (e.g. why bother placing landfills in geologically stable areas)? Nor will there be incentive to avoid exporting wastes to facilities that are less environmentally sound than those at home – on the contrary, these will become more desirable due to their lower costs without liability. Indeed in countries where aftercare is clearly within the scope of liability, a huge incentive is provided to export hazardous wastes to avoid having to ever worry about leaking landfills for example. Again these perverse outcomes are in violation of the fundamental principles and obligations of the Basel Convention.

The limited coverage also renders the liability regime largely redundant. Liability regimes already exist for most of the important transport (seagoing) aspects (e.g., IMO's Hazardous and Noxious Substances regime; Carriage of Dangerous Goods liability regimes). The potential added value of the Basel regime would have had to do with hazards arising from disposal – almost all of which come well after the moment of deposit, combustion or processing.

C. Conclusion

One would have hoped that the Basel Liability protocol which deals with a unique subject matter of something that society is hoping to eliminate -- toxic waste, and a practice -- waste trade, which the Basel Convention seeks to minimize, would have established a very rigorous and high level of protection, far above the international norm for transboundary movements of goods and services. We would have hoped for a protocol that encouraged waste minimization, national self-sufficiency in waste management and the minimization of transboundary movements and for responsible transportation and disposal of wastes. We would have hoped for a protocol with an adequate, certain, and capable fund for quick response to incidents and recovery of victim damages.

Instead with its range of opt-outs, side agreements, extremely narrow scope, and counterproductive incentives the treaty offers very little that is positive and much that is highly negative. Transboundary shipments it seems will be managed instead under a patchwork of bilateral, multilateral and regional agreements with no real promise of adequate liability provisions. Shipments under the convention might be encouraged for the purpose of escaping and terminating domestic liability, with a clear incentive to externalize costs through the use of the cheapest, more irresponsible transporters, notifiers and disposers. And finally, the long-term damage after disposal or resulting from poor recycling practices will not be covered leaving this instead to domestic law which in the case of many countries is inadequate to the task. Even if it can address the problem, the original polluter (the waste generator) remains off the hook. And if this were not bad enough, any two countries (the minimum necessary for a transboundary movement) can simply opt-out of the protocol by establishing a bilateral agreement utilizing a national or other liability regime of their own design.

It is a sad picture. What was adopted at Basel in 1999 after 10 years of negotiations represents a successful attack on the Basel Convention's own fundamental principles and a dangerous international precedent. Only time will tell how much damage will actually be done by the adoption of this fatally flawed text or whether it can be mended by amendment in future. The protocol will enter into force after it receives 20 ratifications.

III. Challenges for the Next Decade: Declaration and Decision on Environmentally Sound Management of Hazardous Wastes

For often varying reasons, certain active parties to the Basel Convention saw fit to utilize the opportunity of the 10th Anniversary meeting to signal a new direction to apply for the next, second, decade of the Convention. This effort taking the form of a declaration and a decision, was initiated in a special meeting which took place in Heidelberg in the middle of last year. Next the issue was framed at the Ad Hoc Meeting, followed by a drafting session in Bern in September in which BAN was the participant representing environmental NGOs.

Whatever the initial reason for launching this new initiative, the resulting vision moves the Convention in a direction far beyond its strict original mandate -- to encompassing issues of hazardous waste management where there might be no transboundary movement and in particular toward mechanisms to build capacity with respect to sound hazardous waste minimization and management (environmentally sound management or ESM).

A. Emphasizing Waste Minimization -- A Real Solution

As there is currently no treaty covering the subject of hazardous waste management in the absence of transboundary movement, the handling of this subject under the scope of the Basel Convention could be a welcome way forward as long as the effort emphasizes real solutions of waste minimization and prevention rather than simply discredited, and ultimately futile, end-of-pipe methods that to this day largely remain the status quo in both OECD and non-OECD countries.

The subject of the declaration and decision is Environmentally Sound Management (ESM), yet to date there is no consensus as to what ESM really mean. As defined broadly in the Convention ESM means:

"taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes."

Unfortunately, too many in industry and in some governments, believe that ESM simply deals with what to do with hazardous waste after it is produced and therefore the essential concept of waste prevention is not a seen as a "practicable step." This view fails to consider "management" as front end management and unfortunately the original Basel definition of "management" is unhelpful in this regard despite the clear obligation within the Convention to minimize the generation of hazardous waste.

Thus, it has been that too many have failed to recognize the clear and compelling relationship between the Basel Ban Amendment (Basel's First Decade Achievement) and ESM, even though the former provides a certain and powerful incentive to prevent hazardous waste generation at source by eliminating cheap and dirty disposal routes to poorer economies. (BAN has produced a paper on this subject which can be found in the COP-5 section of the BAN website: http://www.ban.org).

It is certain to most expert observers, that ESM can only succeed if one starts with the premise that the ultimate goal is to eliminate to the extent possible hazardous waste generation utilizing clean production methods. Foremost of these is the elimination of hazardous inputs into our manufacturing processes and manufactured products -- product and process design. ESM that fails to not only include waste minimization, but moreover emphasize it, will be doomed to failure.

Thus it is truly something to celebrate, that the Basel Declaration adopted at COP5 states succinctly:

"We the Ministers....Building on the achievements of the first decade of the Convention,

1. Assert a vision that the environmentally sound management of hazardous and other wastes is accessible to all Parties, emphasizing [emphasis added] the minimization of such wastes and the strengthening of capacity-building;

The word "emphasis" here is highly significant. It indicates an approach far more progressive and pro-active than simply a waste management hierarchy approach that has been used extensively to little effect, as it makes explicit that waste minimization is not only preferable (as might be indicated by being at the apex of waste management hierarchies) but in fact must be emphasized.

In the past, too many in government and industry have simply seen waste minimization as an elusive, supposedly unrealistic, lofty, preference to be used when available, but which hardly needs emphasizing in terms of overall activities and allocation of resources. This has been a tremendous problem and is why we are still mired in the global crisis of increasing waste generation as astutely noted by Dr. Tolba in his speech (see COP5 section of BAN website: http://www.ban.org). In contrast to the waste management hierarchy, the word emphasizing can hardly be misconstrued. If the Convention is true to its word, emphasis must be reflected in a proportional manner with respect to project scope and budget with waste minimization efforts receiving the greater share of the overall resources, time and effort.

B. Declaration Already in Jeopardy?

Already the Annex attached to the Decision on Environmentally Sound Management which lists proposed priority activities for the years 2000-2002 on the implementation of the declaration appears to erode the concept of emphasis. Although it has yet to be seen just how and if the Technical Working Group, the Bureau and the Secretariat will implement these proposals, they are listed in a manner which appears to give equal weight to a) hazardous waste minimization; b) environmentally sound recycling initiatives; and c) environmentally sound disposal. If this is indeed the case, this agenda would proposes a de-emphasis of waste minimization at a ratio of 2 to 1! Also worrying is the fact that none of the proposed activities, deals with waste minimization alone, appearing indicative that the required emphasis is being ignored.

Further, the Annex proposes a second workshop in Dakar, Senegal on the subject of ESM. This workshop was proposed well in advance of the ESM declaration and is widely known to have received promised funds from the United States. Australia is also interested in funding this meeting. Both of these countries are well known Ban opponents. If the Dakar II conference is primarily funded by opponents to the Ban, the objectivity and balance of the proposed meeting is already in serious doubt. The Basel Ban and the concept of ESM are inextricably linked. Ban opponents wish to utilize the ESM debate to promote the misconception that the Ban is really only for those developing countries lacking technical capacity to accomplish ESM rather than for OECD countries which bear the responsibility to completely halt their export of hazardous wastes and make strides to minimize its generation.

This Annex which was added at the last minute and with little scrutiny by the Parties needs serious and critical attention to ensure that it is line with the declaration.

+ There is an opportunity to do this now, as comments on the Annex are sought by Parties by the end of February 2000.

C. Capacity Building

The emphasis on capacity building made in the Next Decade Declaration and Decision is also very welcome. However it is important not to forget the dismal waste management track record of the rich, developed, countries of the past 50 years which remains primarily end-of-pipe and recycling management and to ensure that this is not what is replicated in developing countries. Actually know-how for waste minimization exists in both developed and developing countries, and both the OECD and non-OECD arenas are in vast need for its actual implementation. The primary difference in capacity between OECD and non-OECD is one of resources, not know-how. Converting industry to non-toxic methods requires an initial outlay of capital which many developing countries cannot afford.

D. Pilot Projects

The Declaration also stated:

"The Ministers...Support the development of pilot projects on state-of-the-art or best available technologies to demonstrate the environmentally sound management of hazardous wastes and their minimization, including those financed by public and private partnership, in selected countries or regions, taking into account the needs of small and medium-sized enterprises, and agree that these pilot projects will take into consideration issues related to the environmentally sound disposal of stockpiles of hazardous wastes"

Further this sentiment was echoed in the Decision attached to the Declaration, calling on the Technical Working Group (TWG) to come up with a plan to develop the pilot projects. It was also stated during the last negotiations on the Decision that the pilot projects might come from the regional centers.

BAN believes that an excellent project and one that is desperately needed around the world and which is central to the positive solutions work of both the POPs and Basel Conventions is to develop capacity for destroying stockpiles of pesticides and POPs around the world in a manner which will not produce more POPs (e.g. via combustion technologies). Many countries voiced support for this idea and it is hoped that support will grow for this and find fruition within the TWG.

IV. Shipbreaking

As BAN and Greenpeace were both instrumental in bringing the matter of waste trade via shipbreaking to the attention of the Basel Convention, we are especially pleased to note that the effort has born fruit. The Basel Convention in conjunction with the International Maritime Organization (IMO) will take up this important issue. For many years now, hazardous wastes, as part of obsolete vessels have been exported in contravention of the Basel Convention (see BAN/Greenpeace Paper on this subject under Subsidiary Bodies section of website). The Basel Convention must now decide how best to close this loophole.

The decision on shipbreaking passed without controversy or comment and most significantly was not opposed by the leading shipbreaking countries of India, Pakistan, Bangladesh, China and the Philippines.

The final decision calls for the TWG (in cooperation with IMO) to prepare guidelines for the Environmentally Sound Management of the dismantling of ships, as well as to have the legal working group explore and discuss the legal aspects under the Basel Convention relating to full and partial dismantling of ships. Finally, these groups are to report to COP6 and through the Open-Ended Ad Hoc Committee on how the issue should finally be resolved.

The most important goal of the work, and the most difficult will be how to implement the spirit, if not the letter, of the Basel Convention and the Basel Ban when/as ships are considered hazardous wastes.

V. The Basel Ban Amendment

While the Basel Ban Amendment was never at the fore of the COP5 agenda, it was readily apparent by those in attendance that the battle between the vast majority of countries supporting the ban and a handful of those fighting hard to undermine it, continues. While 18 countries took the floor to register that they were indeed in the process of ratification, other countries revealed their intent to try and make use of Phase II of the study mandated under IV/8 to try and develop "criteria" for non-OECD countries to be able to receive hazardous waste (via Annex VII expansion).

This highly contentious "criteria" issue was openly discussed in relation to Phase II of the study despite the fact that the negotiators of the terms of reference for the study went to great lengths to avoid language which might lead to the development of any such criteria. At one point in the plenary, the representative of Canada (probably the most active country seeking to undo the ban), became quite agitated on the floor, demanding that the Secretariat push very hard for the funds to be found and the competence given to the TWG to move rapidly toward completion of Phase II of the study.

A. The Threat Against The Ban Expected to Intensify

It is certain that vigilance to protect the Basel Ban will be needed in 2000 more than ever before. Canada, the USA and Australia still refuse to accept the wishes of the vast majority of countries that want to close the door on the sad chapter of international waste trafficking. Canada has funded activities in the Philippines and in India under the auspices of the United Nations Center for Trade and Development (UNCTAD) an intergovernmental organization which is openly critical of the Basel Ban. Canada and USA have also funded a recent workshop within the OECD in Mexico to develop criteria for the environmentally sound management of hazardous wastes destined for recycling operations. These countries are very keen to try again to utilize a special meeting in Senegal (Dakar II) to further develop such criteria.

It is clear that most ban opponents have conceded that the Ban Amendment will enter into force. Rather, they rest their hope in perpetuating the argument that Annex VII is really a waste trader's club rather than a group needing to take responsibility for their wastes because of the facts that they generate the most and have the most resources to manage it domestically. These ban opponents hope that they can convince developing countries to expand Annex VII -- not so that waste trade will be decreased, but rather so it can increase!

They also hope to be able to convince those that might be opposed to undermining the Basel Ban Amendment by using argumentation that shows that the ban is contrary to trade rules of the World Trade Organization (WTO). (For more on this subject see BAN report "When Trade is Toxic: The WTO Threat to Public and Planetary Health," available on BAN website, COP5 section).

It is vital that the only environmental agreement forged by non-OECD countries acting in solidarity and supported by progressive OECD countries not be undermined. The Basel Ban was the most significant accomplishment of the Basel Convention in its first decade. It is crucial that in the first years of the second decade that we do not forget the necessity for it simply because it has largely been successful in curtailing global waste trafficking even before it enters into force. In order to avoid the destruction of this singular accomplishment in international law, Phase II of the study must be carefully monitored to ensure that the consultant's approach is fair, that the input process is geographically and politically balanced, and that the outcome of the study does not lead to the development of criteria for Annex VII expansion for the sake of perpetuating waste trade.

B. Ratifications on The Way: A Synopsis of the Ban Floor Discussion

The COP5 discussion regarding the Basel Ban commenced under the agenda items covering Decisions II/12 (establishing the ban), III/1 (establishing the ban amendment), and IV/8, (the decision to study its implications and to not alter III/1 prior to entry into force).

Norway launched the discussion by expressing concern over the disappointing number of ratifications to date (17 our of 62 needed). He called for the declaration to more explicitly ask for ban ratification. Next the delegate from Brazil, which is a country known to be one of 5 non-OECD countries (including India, Philippines, Israel and Slovenia) which have at times complained about aspects of the Basel Ban, launched into a long intervention implying that the lack of ratifications was indicative of something being wrong with the ban. Brazil echoed the familiar argumentation used so often by Canada, USA and Australia that the Ban should be based on technical criteria to manage hazardous waste rather than on an OECD/non-OECD distinction was noted. The Brazilian delegate even went so far as to argue that the ban was discriminatory to developing countries! (For more information on why such argumentation is misplaced please read "The Basel Ban Amendment and Environmentally Sound Management" in COP5 section of Ban Website).

The Swiss chair, Philippe Roch, then revealed what appeared to be a bias against the Basel Ban Amendment by characterizing the Brazilian remarks as "clever" and stating that on the one hand while we didn't want to reopen the debate on the ban, on the other hand it was a "problem". This remark was inappropriate coming from the chair and based on the intervention of but one country. Fortunately, these pessimistic interventions while noted throughout the session were met by a diplomatic landslide of voiced support and tangible committment for the Basel Ban Amendment, cut short only by the chair after 18 countries indicated strong, concrete support for ratification.

The EU Commission representative stated that the Basel Ban was one of the major achievements of international law and that the EU had ratified it. Next China stated that the Chinese ratification instrument would be submitted shortly. Algeria followed saying that they too fully subscribed to the ban and that ratification of III/1 would begin as soon as possible following COP5. Egypt then registered that they had already begun the ratification procedure. El Salvador next stated that their country was in the process of ratifying the Amendment.

South Africa interrupted the flow momentarily by stating that they believe criteria needed to be looked at for entry into Annex VII of the ban, but noted "we don't import." Canada next took the floor and stated that in listening to South African and Brazil it was necessary to begin phase II of the study called for under IV/8. If more money is needed then the matter should be brought to the financial group. In this statement, Canada seemed to forget that the terms of reference for Phase II of the study developed by the TWG were crafted deliberately to avoid the development of such contentious "criteria" for entry into Annex VII.

Following these remarks, Burkina Faso stated that they have already ratified III/1 back in September and its deposit would be registered shortly. The Gambia stated that since 30 April 1999, the Gambia has ratified the Ban but has been slower in preparing the instrument for deposit. However this was now being forwarded to the President for signature.

Further the Gambia explained that recently an investigation had been made as to why African countries had not yet ratified. It was discovered that much was due to ignorance with many countries believed that by ratifying the Convention they had automatically ratified its amendments. Now that this has been clarified, many more African countries would take the effort needed to finalize ratification.

Bolivia next voiced their full support for Brazil. South Korea, also known to be a ban opponent, noted that they had incorporated the ban into their legislation in 1998 but that they agreed with Brazil, that criteria should be developed and that Phase II of the study was very important. Honduras stated that they shared the concerns of Brazil but noted that Honduras already bans waste import.

Argentina then took the floor to state that they will be ratifying next year. Pakistan also stated that they are just about to submit their instrument of ratification to their President. Venezuela also stated that they fully support III/1 and are preparing amendment ratification.

Malaysia stated that they would like to support the 2nd phase of the study. Australia and New Zealand then echoed this sentiment.

The Czech Republic stated that as of November 1999, they have ratified the amendment. Benin supported what was said by Gambia and stated that their non-ratification was not the result of lack of political will but rather a lack of capacity. Now the government has taken action in the constitution and the instrument will be coming shortly. Bangladesh also stated that their ban is in place and they have initiated ratification. Syria reaffirmed that they support a total ban and have taken steps to ratify it. Uruguay noted that they have already ratified the ban. Chile stated that III/1 has been sent to parliament and ratification has been initiated. Denmark fully supported III/1 and noted that many countries needed assistance on how to ratify it. Congo supported Gambia and Benin saying "we are about to ratify." Namibia supported the Gambian statement. Burundi said that the problem for them was that information was too often in English but they too wished to ratify.

The Chair then cut off discussion saying "we must conclude." Oman stated that they are about to Ratify the Basel Ban Amendment. Russia stated that they have not decided yet on III/1 but first must conclude their work on hazardous waste definitions.

The chair then said that there appears to be a strong desire to "settle the matter of the ban. Lets adopt the three decisions before you." All were adopted. The first called for Parties to report on their implementation of Decision II/12 (original OECD to non-OECD export ban decision), the second strongly appealed to Parties to ratify decision III/1, and lastly it was decided to proceed with the second phase of the study on Annex VII.

In sum, with respect to the ban there are now 17 actual ratifiers. As we have noted in our Briefing Paper #4 (available on BAN website, Library Section), this means that there are in fact 27 countries that have implemented and/or ratified. And, following the interventions noted above, we can say that 18 more countries are well on their way to ratifying. This would seem to indicate that far from being a real matter of concern, the entry into force of the Amendment is indeed proceeding steadily.

What is far more worrying than number of ratifications, with respect to the viability of the ban, is the fact that several countries intend to dramatically alter the original intent of the ban by using "criteria" to call for expanding Annex VII in order to INCREASE the transboundary movements of hazardous wastes rather than to DECREASE them as the Convention requires. Thus, once the ban enters into force these ban opponents hope to water it down to meaninglessness via amendments to Annex VII -- a relatively simple process. It is this strategy which must be absolutely prevented in the months to come.

END

Note: The Liability Protocol Text is Available at the Basel Convention Secretariat website. We have placed a link to it on the BAN website as well. See COP5 section. For other texts from the meeting please keep checking the Basel Convention's website: http://www.basel.int/ for availability.