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Move to undermine Basel Convention ban on hazardous wastes rejected

The recent Basel Convention meeting in Sarawak, Malaysia rejected attempts by some Northern countries to vitiate the prohibition on the transboundary movement of hazardous wastes from OECD countries to developing countries.

by Gurdial Singh Nijar


PARTIES to the Basel Convention meeting in Sarawak for the 4th Conference of the Parties in February unanimously rejected an attempt by some industrialised countries to undermine the ban agreed to in 1995 prohibiting the dumping of hazardous wastes from the OECD countries to developing countries. The ban prohibits transboundary movements of hazardous wastes intended for final disposal from OECD to non-OECD countries. Wastes intended for recovery or recycling were prohibited from 31 December 1997.

The ban is yet to come into force, as the requisite number of countries - 3/4ths of those who accepted the ban decision - have yet to ratify it. Precisely to dilute the effect of the ban decision, the US, the Netherlands, Canada, and Australia - all of which are at the forefront of shipping their wastes to Third World countries - mounted a fresh assault.

There was a two-pronged attack.

Assault One
First an amendment was proposed to Annex VII to the Convention which groups together OECD countries banned from exporting wastes. The effect of the amendment was to allow for other countries to join this group. The implications were serious because countries within this Annex can trade freely in hazardous wastes. Allowing countries into this Annex would have had the effect of enlarging the number of countries which could continue the trade in hazardous wastes regardless of the ban and in disregard of the purpose for which the ban was imposed. This purpose, as outlined at the first meeting of the Conference of Parties (COP) by the United Nations Environment Programme (UNEP) Secretary was 'to reduce to a minimum the generation of hazardous wastes and ensure that whatever was produced was disposed of in an environmentally sound manner as close to the point of generation as possible'. Prohibiting countries from exporting their wastes for cheap disposal, recovery or recycling to developing countries, would provide the impetus for these countries to develop clean production technologies.

The Annex refers expressly to OECD countries because these countries are largely responsible for the generation, and export of, these wastes: some 80% of the more than 400 million tons of waste generated annually, of which 10% is exported.

At this COP4 meeting, Israel and Slovenia applied to be included in the Annex. Their aim was quite clearly to enable them to receive exports of these wastes from the other countries in the Annex. It is widely known that Slovenia's application was supported and urged by Hungary, Austria and Germany, all OECD countries. As the newly formed Basel Action Network, a grouping of NGOs, noted: 'The prospect of being included in the waste management strategy of a country like Germany is particularly alarming given the high costs of disposal in that country and the huge incentives for export that has always entailed with respect to Eastern European countries.' (BAN Newsletter, Vol. 1 No. 2, February 1998)

Both Israel and Slovenia have a very bad track record. Slovenia was the subject of a scandal regarding the import of lead-acid battery waste in 1994. The pollution caused was so serious that the Swiss government took extraordinary enforcement measures to ensure that no Swiss car batteries reached Slovenia. Israel was identified by several Parties to the Convention as being responsible for dumping its wastes into the Yafa River and the Mediterranean sea.

The Contact Group set up at the COP4 meeting to resolve the matter ended in an impasse, despite several closed door meetings. The matter had to be referred to the plenary session on the final day. In the end the resolute unified stand of the developing countries prevailed and it was decided not to add new Parties to the Annex until the ban was duly ratified and came into effect.

Assault Two
The second potential assault intended but which did not materialise because of the time spent on the Annex VII amendment, related to the assertion by several industrial countries that despite the ban, the OECD countries were free to enter into bilateral or other agreements for the export of hazardous wastes. This was an incredulous proposal as it would very directly undermine the ban.

The arguments advanced by some industrialised countries centred on Article 11 of the Convention which allows for such agreements to be entered into. Five years after the Convention and this article were formulated, the decision to ban transboundary movement of hazardous wastes was adopted by the Conference of Parties (Decision II/12). The third meeting of the Conference of Parties decided to incorporate the ban decision in the Convention and proposed an amendment to the Convention to include a new Article 4A. Article 11 makes no reference to the new Article 4A. This implies that there can be no qualification or exception which allows for any such agreements. Otherwise the ban can be circumvented by Parties entering into bilateral, multilateral or regional agreements. [Article 11 refers only to Article 4(5) and states that notwithstanding its provisions, parties may enter into such agreements. Article 4(5) prohibits parties from exporting or importing wastes from or to a non-Party.]

During the negotiations, in particular at the COP2 and COP3 meetings, Australia and Canada proposed that Article 11 agreements be made an exception to the ban decision. On both occasions their proposal was rejected.

The ban decision itself makes it explicit that 'transboundary movements of hazardous wastes from OECD to non-OECD States have a high risk of not constituting an environmentally sound management of hazardous wastes as required by the Basel Convention'. And Article 11, even in allowing agreements dealing with exports to or from non-Parties, states that such agreements must not 'derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention'. As the Parties have by the ban decision declared any transboundary movement of hazadous wastes between themselves as not constituting environmentally sound management, no agreements would satisfy the 'environmentally sound management' test in Article 11, in any event.

Finally, the interpretation of the European Community (EC) is that there can be no such agreements after the ban decision. On 20 January 1997, the 15 member States of the EC amended their legislation on waste shipments to transpose Decisions II/12 and III/1 of the Basel Convention into EC legislation. The EC made it clear that multilateral, bilateral or regional agreements in accordance with Article 11 could not be resorted to to circumvent the ban on hazardous waste exports from EC to non-OECD countries after 1 January 1998. The amendment also terminated any existing agreements or arrangements covering exports of hazardous wastes from the EC to non-OECD countries as at 1 January 1998, whether concluded at the EC level or by individual member states.

Other Issues

Lists A and B adopted
The COP4 also adopted two new lists: list A which sets out materials which constitute hazardous wastes as defined by the Convention; and list B which sets out non-hazardous wastes. These lists were accepted as a further Annex to the Convention and supplement the existing description of hazardous wastes in Annex I and III of the Convention. The lists do no change the underlying definition of what constitutes a hazardous waste under the Convention. The adoption of these lists as an annex makes them legally binding. This further description of what constitutes hazardous wastes will now overcome the reservations of some countries which were hesitant to ratify the Convention as they argued that they did not know for sure what they would be signing on to.

Protocol on liability and compensation

The Convention, to have any real 'bite', should have developed a Protocol on liability and compensation for damage resulting from transboundary movement of hazardous wastes. The ad hoc Working Group of Legal and Technical experts have been working on this protocol since it was mandated to do so in 1995 by COP3. It was to have presented its final draft for consideration and adoption for COP4. This did not materialise. The Parties have requested the Working Group to make all efforts to have it ready for adoption at the next COP.

Ratification of the ban decision

The ban was adopted in 1995. It needs to be ratified by 64 countries. To date it has been ratified by only 16 countries. Several Third World countries, which are the victims of dumping of hazardous wastes, called for the ratification of the ban on an urgent basis. The hope was expressed at the end of this COP meeting that with several key issues now resolved, the world community would honour its original commitment and ratify the ban. For until then, the implementation of clean production processes - the real objective of the Convention - will remain a distant illusion. (Third World Resurgence No. 92, April 1998)

Gurdial Singh Nijar is a Malaysian lawyer and a consultant to the Third World Network.

 


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