spaceBasel Action News, Vol 1, #1

Despite the fact that a full OECD to non-OECD hazardous waste export ban (Basel Ban) has already been twice approved by a consensus of the Contracting Parties of the Basel Convention (Decisions II/12, III/1), opponents of the Basel Ban are still plotting new schemes to sabotage what has been the most significant environmental achievement of the Post Rio conference era.

Officials in certain countries, most notably the Netherlands, Germany, United States, United Kingdom, Canada, Australia and Israel, are known to still be seeking ways to accommodate those industries which wish to externalize the economic and environmental costs of their own toxic waste problem by dumping their toxic wastes on poorer countries.

This seemingly never-ending effort to undermine the Basel waste export and dumping ban was given new life by two proposals to amend the Ban amendment (Decision III/1) to allow two non-OECD countries -- Monaco and Israel -- to receive hazardous wastes from OECD (Annex VII) countries. These requests, however motivated, are giving ban opponents the "golden opportunity" to call for criteria by which any non-OECD country can once again become the legal recipient of hazardous waste from the world's richest and most wasteful countries.

To those who are unfamiliar with the objectives and historical underpinnings of the Basel Convention and the Basel Ban, the request for criteria might at first reading, sound reasonable. However a careful review reveals this scheme to be yet another attempt to reverse eight years of hard work by the Convention, and turn back the clock to an era of free trade in hazardous wastes,

without any disincentive to minimize its generation. To those that have already witnessed numerous attempts by nations which generate disproportionate amounts of hazardous waste to avoid responsibility for it by sending it abroad, the reappearance of yet another such scheme might cause them to wonder -- when will the nonsense ever cease?

Indeed, if we were to embark upon the path of allowing any country to join the "OECD group" by merely claiming some level of environmental criteria, in essence we will have all time-traveled back to the days of the noble but failed concept of "prior informed consent" (PIC).

PIC did not work for hazardous waste due to the sheer weight of economic pressure that the trade in hazardous wastes can impose on developing and newly industrializing countries. The economic pressures to accept poisons in exchange for illusionary, short-term poverty relief have been enormous. These highly immoral pressures brought to bear on poorer communities around the world, fully justify a loophole-proof ban as the only means to effectively eliminate the worst abuses of economically motivated waste dumping --the exports from OECD to non-OECD countries.

Furthermore, it is almost certain that criteria to determine the relative hazard of each and every waste trade proposal will be impossible to agree, let alone enforce. A criteria determining process for each and every possible waste management technology in each possible political and technological environment, once begun, would only justify stalling on ratification and implementation of both the Convention and the Ban. We have already witnessed the difficulty in reaching consensus on the definition of hazardous waste. An international working group convened to recommend proper criteria for waste management technologies, capacities and infrastructure would likely take many more years and is unlikely to succeed at all.

Such a process would have to take into account the fact that technological capacity is only a very limited part of the equation in determining the risk and fate of imported hazardous wastes. Criteria for national legal and infra structural capabilities, and rights are even more important. These more intangible aspects include such varying issues as enforcement will and capability, public access to information, public rights to redress grievances, occupational health and safety statutes, liability laws, transport safety, industrial land use plans, emergency response capabilities etc. etc. etc.

Does anybody really believe that a technical working group or any other body would be able to resolve these many questions and derive a universal standard? If they could, does anybody believe that the standard would be a high one rather than the lowest common denominator among diverse nations? And even if it were possible to agree on a high standard, does anybody believe that this standard could be imposed on contracting parties -- sovereign nations? That it could be enforced? In a recent example, India refused inspection by Dutch authorities which wished to witness the fate of Dutch wastes on Indian soil. The prospect of any such criteria, if achievable, being anything more than forgotten paper promises is very, very remote.

But in fact, even if all of the above scenarios were possible, the criteria issue still entirely misses the main point with respect to the Basel Ban. The Basel Ban does not delineate the OECD group because of issues of technological capability (See "Basel Ban Revisionism: Blaming the Victims"). In fact no nation has found an adequate technological solution to toxic waste once it is produced. Rather the OECD group is differentiated from the rest of the world because it is a legally bound, closed group of nations, comprising the economic area that still produces the vast majority of toxic wastes and where the high costs of waste generation and disposal provide enormous incentive to export it for profit rather than prevent its generation at home. The Basel Ban became necessary because wastes which move from OECD countries to non-OECD countries regardless of technological capacity violate the prime objectives of the Convention -- to ensure that both the generation of hazardous waste and its transboundary movement is reduced to a minimum.

If the global community of nations were to continue to allow economically motivated OECD to non-OECD waste trade they would maintain a terribly persuasive disincentive for high-consumption, high-waste countries (OECD) from ever preventing their excessive use of hazardous substances and excessive generation of hazardous wastes. As long as the avenue of cheaper hazardous waste disposal/recycling via export is available, the long recognized goal of waste prevention and minimization of transboundary movements of wastes would never become a reality.

Likewise, arguments that claim the establishment of criteria for waste facilities in non-OECD countries as a form of "capacity building" are highly suspect. Where is the equal generosity in exporting toxics-free or waste prevention technologies? Rather, in the age of globalization, the reverse is taking place. The global trend has seen the expansion of the most toxic industries in the non-OECD area followed by the export of end-of-pipe technologies that have already proven to be unsustainable in the OECD. The export or promotion of end-of-pipe technical capacity is yet another form of toxic trade which only perpetuates the generation, rather than the prevention of, hazardous wastes --all in violation of the aims of the Basel Convention.

Another essential rationale for using the OECD/non-OECD as a global divider in this context, is due to the fact that it is a legally bound, closed set of nations. Membership in the OECD is not voluntary and in fact is a fairly rigorous process based primarily on economic criteria taking into account issues far beyond mere technological capacity. Thus, while the OECD/non-OECD distinction is not perfect, it does serve well to eliminate loopholes that could easily grow into vast chasms through which a tide of hazardous wastes could inundate the poorest communities which can ill afford more poison and pain.

But of course all of this has been debated extensively over the course of the last eight years. Repeatedly, attempts have been made by opponents to a full ban to allow exceptions such as open-ended lists, with or without criteria. All of these were rejected time and again at the first, second and third Basel Conferences of Parties. These loopholes have repeatedly been rejected precisely because a ban is no longer a ban once its provisions are open-ended or voluntary.

Finally, it is not useful or relevant to belabor the point of the last minute admission to Annex VII of Liechtenstein (a non-OECD country) at the Third Conference of Parties. This was, in our view a mistake, and was a last second decision granted without any debate after a difficult week of exhausting negotiations. However, in real terms, Liechtenstein, is hardly going to be even a minor recipient of OECD hazardous waste. Rather than allowing its admission to be an opening of the lid of a Pandora's box which might easily unleash all of the known demons of international waste trade, it is time to once and for all simply close the door and lock it. We would urge Liechtenstein and Monaco (and all others) not to import hazardous wastes, but if they insist on doing so, that they follow the rigorous process of joining the OECD.

In conclusion, we urge the vast majority of contracting parties not to tolerate at this late stage any more attempts to undermine the Basel Ban. Already there were two opportunities for all to vote against the ban and not one country chose to do so. Indeed, past meetings made it clear, that the only concern that contracting Parties had with the OECD/non-OECD ban was over the definitions of hazardous waste. Great progress has been made on this front and its time to move forward to new issues in good faith.

The vast majority of contracting parties (see articles, this issue, on ACP/EU Assembly resolution, EU, Norway ban ratification) believe that any proposal for additional criteria, beyond membership in the OECD, risks to transform the historic Basel Ban decision into a weak, non-binding, unenforceable return to the failed concept of prior informed consent (PIC). If this transpires, we will have taken a giant step backward, for diplomacy, for international law and for the environment. These Contracting Parties understand that the rationale for the OECD to non-OECD ban is environmentally, legally and politically sound, and in fact is necessitated by the objectives of the Convention. It is time to move forward in implementing the Basel Ban hailed by the international community as the most significant international post-Rio decision to date; and certainly not to accommodate any new proposals which undo these vital gains.