Briefing Paper: No. 3

Annex VII Expansion? -- An Ignoble Attempt to Undo the Basel Ban

Lest We Forget: History of the Basel Ban

Ever since its entry into force, the Contracting Parties of the Basel Convention have made the enactment of a full ban on the exports of hazardous wastes from developed to developing countries the overarching priority of the Convention.

At the first meeting of Contracting Parties (COP1) in 1992, Decision I/22 was passed, requesting developing countries to prohibit the import of hazardous wastes from industrialized countries. At their next opportunity (COP2) in 1994, the Parties passed Decision II/12 banning the export of all hazardous wastes from Organization of Economic Cooperation and Development (OECD) countries to non-OECD countries. Then, at COP3 in 1995 Decision III/1 was adopted, installing the Basel Ban as an amendment to the Convention. Decision III/1 created Annex VII, a list of countries consisting of the OECD, EU and Liechtenstein, prohibited from exporting hazardous wastes to non-Annex VII countries.

The achievement of the Basel Ban has clearly been the dominant work of the Parties and its rapid adoption can be seen as a remakable success story for the treaty and international cooperation. Unfortunately, despite the overwhelming support for this landmark agreement, there remains a small minority of powerful countries including the United States, Canada, and Australia, wishing to reverse the Basel Ban decision. These countries are now aiming to create a loophole in the Basel Ban Decision (III/1) by pressuring relentlessly for the expansion and opening of Annex VII.

Annex VII: A Pandora's Box

While Annex VII countries are forbidden from exporting hazardous wastes to non-Annex VII countries, they nevertheless can trade in hazardous wastes with other Annex VII countries. This was never seen as a serious problem as the Ban was never designed to halt intra-OECD trade in hazardous wastes but only those hazardous wastes which might leave the OECD group for economic reasons. Yet, Basel Ban opponents are now pressing for adding non-OECD countries to join Liechtenstein. These OECD countries are not doing this because they want to prevent these countries from exporting hazardous waste, but rather because they want them to be able to import their waste.

Liechtenstein in real terms is not a problem as they have, via the European Economic Agreement (EEA) already implemented the Basel Ban Amendment. The addition of Liechtenstein can be viewed as an exceptional case and was never meant to be the first in a long list of countries joining Annex VII without first joining the OECD or EU. Indeed the idea of an open list of countries to which the ban might apply was rejected during the negotiations of COP2 and COP3. There are two fundamental reasons why the OECD/non-OECD distinction is an essential foundation for the ban:

• The OECD group is disproportionately responsible for a global problem (hazardous waste generation) and possesses a disproportionate capability (wealth) to solve that problem at home as required by the Basel Convention (Article 4, 2, (a),(b) and (d)).
• The OECD, is a legally bound set of nations whose membership is not self-elective but based on economic, and infra-structural criteria. The rigidity and economic basis of OECD membership provides an enforceable safeguard against an regime where countries, on the basis of unenforceable criteria, can opt in, or out of the ban. An "opt-out" ban is not a ban at all.

The OECD/non-OECD divider, while imperfect, does address the worst abuses of dumping for profit and at the same time serves to prevent the return to the failed elective system of "prior informed consent." If, non-OECD countries are allowed (or are pressured into) joining Annex VII , once again they will become the potential target for economically motivated waste dumping. If the OECD line is erased, a Pandora's box will be opened, and the demons of waste colonialism the Basel Convention Parties fought so hard to contain will again be unleashed.

Blaming the Victims, Ignoring Responsibility

Aspiring waste trading nations opposed to the ban are trying hard to justify Annex VII expansion by falsely characterizing the distinction between Annex VII and non-Annex VII as strictly a case of non-Annex VII countries being too technologically underdeveloped to properly manage hazardous wastes. Yet the assertion that "environmentally sound management" as defined in the convention is only a matter of "end-of-pipe," downstream responsibility for the importing country (possessing adequate technical capacity etc.) and not front-of-pipe, upstream responsibility of the exporter is simply wrong.

The convention defines "environmentally sound management" as "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." Yet ban opponents conveniently ignore that "taking all practicable steps" is certainly not confined to downstream capabilities of importing states for end-of-pipe disposal methods. Rather, the most important first practicable steps must involve fulfilling the preventative obligations of the convention itself:

• To reduce waste to a minimum at source. (Article 4, para 2, (a))
  
  Almost certainly when Annex VII countries export to non-Annex VII countries that export equates to an economic disincentive to reduce hazardous wastes at source.

• To ensure the availability of adequate disposal facilities, that shall be located, to the extent possible in the exporting state. (Article 4, para 2, (b))
  
  It is almost certain that Annex VII countries possess the ability (to the extent possible) to provide for adequate disposal facilities domestically for those remaining wastes which they have not reduced at source.

• To ensure that the exporting state reduces transboundary movements of hazardous wastes to a minimum. (Article 4, paragraph 2, (d))
  
  Each exporting country, and in particular those with the greatest resources, has the individual responsibility to reduce transboundary movements to a minimum.

And we submit that Annex VII countries above all others have a special responsibility to fulfill the above obligations due to the facts that:

• economically motivated waste trade (Annex VII to non-Annex VII) serves as a strong disincentive to source reduction
• Annex VII countries produce a disproportionate amount of the hazardous waste on the plane
• Annex VII countries also have the greatest resources to implement the above obligations and "practicable steps."

If Annex VII countries took the three "practicable steps" highlighted above, as they must, waste trade to non-Annex VII countries would cease. Thus the ban is a logical extension of the convention itself.

The question of whether a non-Annex VII country possesses the technical capacity for "environmentally sound management" in this context becomes irrelevant . Raising this issue repeatedly is an attempt to vastly limit the real meaning of "environmentally sound management" which must first and foremost include upstream waste management and prevention by Annex VII countries. By trying to focus our attention on the capabilities of non-Annex VII importing countries instead of their own, ban opponents would like us to believe that the waste crisis is the fault of non-Annex VII countries for their failure to possess "end-of-pipe" treatment and recycling technologies to deal with wastes not of their making. Rather, we know that the real failure lies with those generating hazardous wastes -- a failure to reduce it at source through the use of clean production methods as the Convention envisages and instead export these burdens to others.

COP4: Decision IV/8 and its Mandates

At the Fourth Conference of the Parties in February of 1998, the resolve of the Parties to resist the opening of Annex VII was tested when Slovenia, Israel and Monaco all sought to amend the amendment (Decision III/1) to allow their entry into Annex VII. After lengthy debate however, these proposals were all wisely rejected and instead a compromise (Decision IV/8) was passed wherein it was decided that Annex VII would not be altered until it entered into force, but the Technical Working Group and the Sub-group of Legal and Technical Experts must "explore issues relating to Annex VII" and "provide Parties with a detailed and documented analysis that would highlight issues related to Annex VII."

As Annex VII is really the "backbone" of the Basel ban, a mandate to explore issues related to Annex VII is a mandate to explore issues related to the Basel Ban. Unfortunately, such an undertaking is self-defeating in that a debate and analysis of something that has not entered into force is first, not possible. Second, if it is attempted, will likely lead to confusion and uncertainty and thus a low rate of ratifications. Care must be taken therefore to ensure that the analysis does not pretend to be able to analyze the effects of something (Annex VII) that has not yet become operable and able to demonstrate its efficacy. Further, the analysis must reflect implications of a much broader definition of "environmentally sound management" than simply post-prevention, end-of-pipe, disposal and recycling methods.

No to Annex VII Expansion

The Basel Ban is a logical extension of the obligations of the Convention and in fact was envisaged in the Convention (Article 15, paragraph 7). It became necessary when it was revealed that the elective waste trade regime, based on "prior informed consent," was ineffectual in the face of the enormous economic pressures of the global waste trade. If Annex VII is opened beyond the OECD group we will have returned to just such a failed opt-in/opt-out system. If Annex VII is expanded we will reassert that pollution does pay -- that instead of solving waste problems at home, and exporting clean technologies, affluent countries can simply clean their own house by exporting their poisons to their global neighbors. Lets not let that happen.

Basel Convention Parties must say NO to Annex VII expansion and continue to firmly and politely reject bad-faith efforts to sabotage one of this century's greatest environmental achievements. As much as we all have an urgent duty to create new protections for our beleaguered environment, it is even more vital that we protect and uphold the difficult gains already made.