Beware U.S. Fox in Basel Chicken Coop
by Jim Puckett,
Published in Environmental Law Reporter - September/October 1998
Shortly after the business lobby announced that it no longer opposed US accession to the Basel Convention, the State Department signaled a sudden renewed desire to ratify the Basel Convention. The administration is now expected to introduce treaty implementing legislation in the 106th Congress.
However, what they will pointedly fail to announce is that the United States steadfastly refuses to simultaneously ratify the Amendment to that Convention which transformed the Basel Convention from being a treaty that was denounced by developing countries and environmentalists alike, to being one that once and for all would close the sad chapter of international waste dumping.
The Basel Ban as it is known, first adopted by a consensus of the Basel Parties in 1994 and then turned into a treaty amendment by consensus in 1995 forbids the export of hazardous wastes from the most wealthy and industrialized countries of the Organization of Economic Cooperation and Development (OECD Group) to poorer, less-industrialized (non-OECD) countries for any reason.
The original 1989 Basel Convention, on the other hand, did not prohibit waste trade to anywhere except Antarctica. Because of this, it was condemned by environmentalists and developing countries (the African group of nations refused to sign) as being an easily abused "control" mechanism that did more to legitimize international waste trafficking than it did to criminalize it.
However as soon as the weak 1989 treaty entered into force in 1992, the Parties progressively moved at each successive Conference of Parties to rectify its shortcomings. Indeed, the Basel Ban has been the dominant pre-occupation of the Convention to date, the fruit of long labor and its most significant achievement. It has dramatically and indelibly altered the Convention and has been hailed as a landmark for international environmental justice. Now, following its adoption, the original Convention without the Basel Ban is seen as a global anachronism. Yet this is what the US has finally decided it wants to support.
Since the beginning of the Basel negotiations, the United States in both Democrat and Republican administrations has favored the viewpoint of its industrial lobby over that of its public and has fought hard, even as a non-Party, against passage of such a ban. Repeatedly they have attempted to sabotage the Parties efforts to achieve it. As the Basel Ban has been the dominant goal, activity and product of the treaty and since the US still actively opposes it, US efforts to now accede to the original treaty and ignore the Basel Ban Amendment must, in our view, be seen as an act of bad faith.
Regardless of the legality of doing so, such an action is tantamount to a new 51st state joining the United States union by ratifying the original 1787 US Constitution without accepting the subsequent bill of rights or the amendment banning slavery . Its simply not acceptable.
A close look at the stated US motivations for selectively ratifying the Basel Convention reveals that the strongest motivation is likely to be an unstated one -- an enhanced ability for the United States to continue to work against the progressive efforts of the treaty -- this time as a fox inside the chicken coop.
While the sly administration fox claims that its only trying to gain the legal authority it needs to better control hazardous wastes, in fact, legislation of any kind can be proposed at any time. Indeed, the United States already has the obligation to apply virtually all of the requirements of the original 1989 Basel Convention due to legally binding OECD decision [C(86)64(Final)], yet this instrument has never been implemented into US national laws such as RCRA and TSCA. The fact that existent obligations to better control hazardous wastes are ignored, together with the fact that the Basel Convention with the Ban provides the greatest degree of control, reveals the State Department claim for wanting greater authority to be disingenuous at best.
Administration officials also privately whine that in a Republican controlled congress they will never be able to obtain the Senate "advice and consent" for the amendment while such consent has already been given back in the Bush administration for the original treaty. They claim that the 1989 text would be "better than nothing." In light of the fact that the original treaty was denounced by environmentalists and developing countries alike as doing more harm than good, the question is begged, better for whom? And blaming the lack of support for a ban on the Republicans when the administration also touts the "pollution lobby" line in opposing it, is a shameless act of misdirecting blame.
The real reason that the administration wishes to ratify the treaty at this late date is far less honorable or pragmatic. To date, as non-Parties, the United States has been forced to argue their extreme minority view from an increasingly weak position. There is no doubt that if the world's last superpower were allowed to join the Convention without accepting the decisions made by the global community within it, their new position within the institution, their ability to project their current policy to weaken the Basel Ban would be vastly improved. Rights and obligations of Parties include ability to block consensus, call special votes, propose amendments etc. Additionally the relatively large amount of money the US as a party would be required to contribute to the trust fund of the Convention would allow it considerable more clout than every other nation. By selectively ratifying the treaty, they hope to get their large foot in the door, however unwelcome it might be, and be much better positioned to kick major loopholes in the Basel Ban.
It is for this reason that on May 8th of this year, the Basel Action Network (BAN), Greenpeace, Friends of the Earth, the Sierra Club, the Center for Health, Environment and Justice (CCHW), Essential Action and the Center for International Environmental Law (CIEL) wrote to Acting Assistant Secretary of State, Melinda L. Kimble stating clearly their opposition to US Basel ratification unless the US ratified the whole Convention, amendments and all.
It is our conclusion that US ratification of the original 1989 treaty without simultaneous ratification of its Ban Amendment will equate to a net loss for the global environment and the protection of developing countries. Such a move must be actively opposed.
-- Jim Puckett has covered the subject of Waste Trade and the Basel Convention since 1989 as coordinator for Greenpeace. He is currently Director of the Asia Pacific Environmental Exchange (APEX) and coordinator of the Basel Action Network (BAN), a global alliance of "toxic trade" activists. For more information on ban visit its website at http://www.ban.org.