COP7 Advance Briefing

Dear Basel Delegates:

The Basel Action Network hopes that the Autumn of 2004 finds you in good health and very optimistic about progress to make the earth a more livable and healthy place.

BAN has identified two issues of concern which are likely to be discussed and/or decided at the upcoming Basel Convention's 7th Conference of the Parties.  We hope you can take a few minutes in your busy schedule to read the following briefing so that together we can work to ensure that the Basel Convention continues as an leading instrument to protect the earth and not just the interests of those that would have us only conduct "business-as-usual".   We can not afford for Basel to now at this critical time become ineffectual in solving the worlds' growing toxic waste problems.

I. Entry into Force of the Basel Ban Amendment

As many of you have no doubt heard, earlier this year, the United Nations Office of Legal Affairs (OLA), issued an opinion interpreting Article 17, paragraph 5 of the Basel Convention - on the issue of entry into force of the Basel Ban Amendment.  At the outset, it is important to note that the Parties did not ask the OLA to provide this opinion nor to act as an authority of any kind.  Instead of providing insight that would help interpret the original intent of the Parties, the OLA provided an extreme opinion that wildly veered away from the historical and previous understanding of the majority of the Parties and the Secretariat with respect to Article 17, Paragraph 5.  Historically, the Parties have interpreted Art. 17, para. 5, to mean three-fourths of the Parties at the time of the adoption of the amendment.  

The only ambiguity is whether three-fourths applied to those present and voting, or 3/4 of the number of Parties at the time the amendment was adopted.  Instead of sorting out that question, the OLA stated in a May 2004 letter to the Basel Secretariat: Where there is ambiguity as to the provisions governing entry into force, the depositary [UN Secretary General] will apply the current time approach which stipulates that the number of ratifications required for entry into force will be calculated on the basis of the percentage of the Parties at the time each ratification is deposited; not the Parties at the time of the adoption of the amendment.

The current time approach OLA advocates creates even more dissatisfaction, as it is vastly inconsistent with the original intent of the Parties.  If the Parties were to accept this approach, this action would:

1. supplant the Basel Parties prerogative to be masters of their own Convention.

2. apply an interpretation to the Convention that is far from the interpretation that has been commonly understood for 15 years.

3. create a draconian interpretation whereby amendments face an ever increasing, unlimited number of necessary ratifications and at such a high number as to pose an almost insurmountable challenge.

The Parties are Masters of Their Own Convention

Unfortunately, ambiguities in international treaties are all too common.  Fortunately, the Parties to a Convention are the masters of their Convention and thus the ultimate determination of the interpretation of ambiguous language lies with the Parties.  BAN has conducted research and questioned several of the world's foremost experts in international law and discovered the following.

The Parties now have two choices to determine an interpretation.  The parties can adopt a decision and cede their authority, if they wish to and accept an authoritative interpretation (e.g. by an authority such as the OLA).  Alternatively, the Parties can choose another method of interpretation known as authentic interpretation whereby the Parties to a treaty resolve the question themselves.  The Parties have not adopted a decision nor have given the Secretariat a mandate for which path to take.  Thus, the OLA opinion is not binding, and in fact is simply an opinion until the Parties take a formal decision. 

Other Precedents

It will hardly be the first time this has happened.  The Basel Convention Parties need only look at other precedents that addressed the same issue, and where Parties to treaties found it necessary to exert their sovereign right to eliminate the ambiguities in their treaties. In 1983, the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) resolved an almost identical ambiguity that was found in their Article XVII, paragraph 3, by adopting the following recommendation: Recommends that the meaning of Article XVII, paragraph 3, of the Convention be interpreted in its narrow sense so as to mean that the acceptance of two-thirds of the Parties at the time of the adoption of an amendment is required for the coming into force of such amendment. In 1990, the Ramsar Convention on Wetlands similarly followed the CITES Resolution precedent in interpreting the ambiguity of the two-thirds requirement in Art. 10 par. 6 of the Ramsar Convention.

These are two recent, relevant and very similar instances to the Basel Convention situation where the Parties chose to exercise their sovereignty and choose an authentic interpretation, thus clearing up the ambiguity in their Conventions in a manner reflecting the will of the Parties. 

The Will of the Basel Parties: Early Entry into Force

There can be no doubt that the will of the Basel Parties with respect to the Basel Ban Amendment has always been one of urgency.  It has been highest on the agenda of the first four conferences of the Parties and has facilitated the following decisions at every conference of the Parties.  Urgency and unanimity, has been noted every step of the way as indicated in the table below: 

The current time model, if accepted by the Parties, would dramatically delay and perhaps prevent the entry into force of the Ban Amendment, the creation of which the Parties spent thousands of person-hours and many millions of dollars.  To demonstrate the undue burden the current time interpretation would place on such an amendment, consider the existing requirements for an Amendment to enter into force in comparison with other similar Basel Convention instruments.

As can be seen, the undue burden that would be placed upon the Basel Ban Amendment is disproportionate to any other similar decision by a factor of more than 6.  This is clearly far, far away from what has been, and is expected, by the Parties for entry into force of Basel instruments.

Recommendation

The Basel Convention is what it is today because of the Parties.  Every letter, every word, every decision, every guideline, was achieved through the work of all the Basel Parties.  They are the ones bound by it, and it is only correct that the Parties themselves determine every decision. 

Likewise the true determination of the meaning of Art. 17, para. 5 of the Basel Convention be concluded by the Parties in the spirit of consensus, past and present and in the spirit of the consistent call for urgency in entry into force of the Basel Convention.  It is never appropriate to press for revisionism in a treaty but to press for the original intent. 

As we have seen, the UN Office of Legal Affairs (OLA) opinion if it were to be accepted would depart from original inent, create dissatisfaction and inconsistency and will lead to unintended consequences the possibility that the Amendment will never enter into force or will enter into force far too late for it to serve as it was intended. Only the Basel Parties can truly appreciate the depth and breadth of their intent of their work and its importance to the world. 

The Convention is meant to be an instrument of the Parties, by the Parties and for the Parties.  They are its masters and creators and should continue in that role and not cede it to a third party authority.  There remains little choice but for the Parties to assert their proper role and set forth an unequivocal decision clearing the ambiguity on Art. 17, para. 5 in favor of a decision that supports 3/4ths of the Parties current during the passage of Decision III/1.

II. Preventing the Shipping Industry from Undermining the Basel Convention

Where we Are

The Convention has made notable strides on shipbreaking from the adoption of the Technical Guidelines for the ESM of the Full and Partial Dismantling of Ships, to resolving fundamental issues, particularly with the pronouncement in OEWG II/4, Noting that a ship may become waste, in accordance with article 2 of the Basel Convention, and that at the same time it may be defined as a ship under other international rules.  Indeed, coming into OEWG III, there was great expectation among delegates for progress of the work on shipbreaking.

Unfortunately, instead of moving forward on the issue, the process stalled due to new faces suddenly appearing in our Convention representing the shipping industry and not representing the environment or the interests of developing countries.  These new delegates stonewalled and slowed progress toward essential discussions regarding the fundamental legal issues regarding ships as waste.  The source of conflict in the proceedings at OEWG III is the failure to recognize and respect the competency and implementation of the Basel Convention. 

Divergence of ideas and disagreements are important aspects of open and democratic debates under the United Nations, however, all stakeholders must resolve these conflicts and move toward solutions to the pressing problems that face all of us.  Recognition and respect for each bodys competency, i.e. Basel, IMO, and ILO, and the need to allow the competent body to do its work in accordance with their mandate is equally crucial.  The Basel Convention has not interfered with the work of the ILO nor the IMO.  We must expect similar respect.

Draft Decision Language

One of the most important matters to be resolved is the removal of the brackets found in two versions of the draft decision language that is  before the COP.  It is important to note that the brackets are the result of the shipping industry influence at the last meeting of the OEWG. 

6. In decision OEWG-III/3, the Open-ended Working Group also decided to submit for consideration of the Conference of the Parties at its seventh meeting the following paragraphs: [Urges [Parties that are flag States, States of export or States of import][States concerned] to implement the provisions of the Basel Convention, in particular with respect to the application of the obligations of prior informed consent and principles of environmentally sound management]. [Urges flag States, owner States and [other] States of export as well as States of import that are Parties to [implement] [apply] the [provisions] [aims] of the Basel Convention, in particular with respect to the application of the obligations of prior informed consent and principles of environmentally sound management] .

1.  It is very important that the Parties make progress by removing the brackets so that the issue is clearly not IF but HOW the Basel Convention must implement the Basel Convention vis-a-vis ships-as-waste.

2.  Above you will see that flag states are always combined in the brackets with other responsible states.  This is how it must be as it is extremely important in this exercise that the competence of "exporting state" not solely be placed upon the flag state.   There are many more states of responsibility than just the flag state that have jurisdiction over a ship and its operators/owners in various instances.  Very often the "flag state" is the least able to properly exercise the responsibilities and obligations under the Basel Convention.

Respecting and Upholding Basel's Competency

In the upcoming Joint Basel/IMO/ILO working group the importance of respecting each delegations competency and mandates cannot be stressed enough.  Presently, Basel and IMO are wading through some gray areas in international law that sometimes involves both institutions, and it is important that in this exploration Basel maintain its core jurisdiction and at the same time engage in principled discussion on upstream solutions that both impact the shipping and ship recycling industries. 

However, what cannot be further contested is that ships that are intended to be disposed of or disposed are wastes, and if they contain substances possessing hazardous characteristics, they are then indeed hazardous wastes and are under the competency of the Basel Convention.  This is a fact of law under the Convention.  And we should not be persuaded by any special interests to alter this legal fact.

BAN and Greenpeace had the opportunity to review the IMO Shipbreaking Guidelines that was adopted by the IMO General Assembly in December 2003.  Our review found egregious inconsistencies between the provisions of the IMO Guidelines with respect to existing provisions of the Basel Convention.  Fundamental obligations and principles of the Basel Convention, such as whether vessels are wastes, the need to minimize transboundary movements of wastes, the obligation to minimize the generation of hazardous waste, to name a few, were ignored by the IMO in their work.   

Alarmingly, the IMO Guidelines unjustly pin the burden of ship dismantling risk and obligation on the developing countries that host most of the existing ship recyclers.  This turns on its head what Basel stands for and to what the Basel Convention and the Ban Amendment have achieved in the area of international environmental justice.  It also twists the very nature of the polluter-pays principle.  By burdening the recipient countries with all the mandatory responsibilities, shipowners, designers, all the relevant upstream actors, who have the resources, both technical and financial, to deal with the hazardous materials, are relieved of their duty to minimize the wastes they will generate at the end-of-life of these vessels.  Once more the workers, their families, and communities in the developing countries are left holding the bag for the pollution brought upon by the waste vessels. 

Careful reviewing of the IMO evidences that special industrial interests and not existent international law reigned supreme in drafting of the IMO Guidelines, and developing country interests were not held in high regard. BAN and Greenpeace have already submitted a critique of the IMO Guidelines, demonstrating their inadequacy and inappropriate trespass into the core competence of the Basel Convention - http://www.ban.org/Library/greenpeace-ban-iii-3e.pdf . We have also noted as have many, that there are some problems encountered when trying to apply the Basel Convention to ships.  This is due primarily to their constant state of movement making it difficult to determine when a ship becomes a waste, and which state is the exporting state.  These are recognised issues but in no way should the spirit and intent of the Basel Convention as an instrument to minimize and control transboundary movement be thrown out simply because of such difficulty.  Indeed BAN has proposed several ideas for rectifying these difficulties and closing loopholes in our most recent submission to the OEWG -- http://www.ban.org/Library/BAN_Submission_shipbreaking_jan04.pdf .

Recommendations

For the meeting to make real progress the following points must be stressed:

1.   While the Parties have already made progress on the question of ESM for ships (Guidelines), it must be remembered that the Basel Convention is first and foremost a legal instrument governing transboundary movements of hazardous wastes.  We now need to make real progress on this crucial matter by removing the brackets around the above forwarded decisions to the COP (see above).

2.  The Basel Parties have already decided that a ship can be a waste and a ship at the same time.  Reading the law there was really no other conclusion possible.  There can be no possibility for backsliding on this matter of clear legal interpretation regardless of how loud the shipping industry repeats their spurious reading of the law.

3.  The Basel Convention is not a Convention that is only about environmentally sound management.  It is first and foremost a Convention that obligates parties to minimize transboundary movements of hazardous waste as well as the generation of hazardous waste.  It is a Convention primarily about control and minimization of transboundary movement of hazardous wastes.  Any decisions with respect to ships as waste must not only encompass the need to minimize the generation of hazardous waste, but also minimize and strictly control their transboundary movement.

4.  Each Institution/Instrument has its respective scope and competence. And that is how it should be.  The Basel Convention's scope is Control of Transboundary Movement of Hazardous Waste.  When a ship is both a hazardous waste and a ship, IMO has competence over its navigation/operations, and the Basel Convention has competence over the Control of its Transboundary Movement as a waste destined to a disposal facility.  ILO and Basel have competence over the nature of that disposal. 

5.  Just as we in Basel would not wrest control over the issue of ocean dumping from IMO or the operations of ships in commerce, it is absolutely inappropriate for the IMO to wrest control or attempt to replicate (but not really) the competence and scope of the Basel Convention with respect to Basel obligations on the transboundary movements of waste.  This cannot be seen as a viable solution or compromise.  Therefore it is not supportable that IMO invent their own reporting system that will interfere with, replace of confuse that of the Basel Convention.   The job of prohibiting, notifying and otherwise controlling the transboundary movement of hazardous wastes with a view to minimizing such movement is the clear competence of the Basel Convention. We should not shirk from that duty, no matter how many new faces from IMO attend our meetings and attempt to block us from doing our job. 

6.  The Basel Convention was created in 1989 to change the world to make it a better place, not to endorse the status quo practices of certain industries.  We cannot set a precedent whereby any industry, that becomes unhappy with Basel governing its wastes creates an alternative regime to circumvent and weaken the original Basel obligations.   Today it is the shipping industry exerting this unfortunate pressure, next time it could be the electronics industry.  It is not acceptable to turn back the clock on Basel's landmark progress and return to a time of waste trade anarchy.

Sincerely,

Jim Puckett, Richard Gutierrez