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Basel Ratification: OECD BAN Update Could Free Senate

Environmental Law Institute Report - September/October 1998

As the Basel Convention on the Control of the Transboundary Movement of Hazardous Waste nears its 10-year anniversary, the United States has yet to join the 120 countries that have ratified the treaty. Panelists Robert Ford of the State Department, Richard Frandsen of the House Commerce Committee, and Jim Puckett of the Basel Action Network joined moderator Paul Hagen of Beveridge & Diamond at an Associates Seminar to define the issues of the ratification debate.

Prompted by decisions made at the Fourth Conference of the Parties - COP4 - in February, the Clinton administration has reawakened the ratification debate with an industry-supported proposal to ratify the original convention, excluding the contentious 1995 OECD export ban amendment.

"Years of remaining on the outside of this international treaty have not only complicated the United States' ability to move hazardous waste across boundaries, but has also impaired America's ability to be effective in the decisiorimaking processes, according to Hagen.

"With the progress made at the COP4 meeting, the administration and industry are taking a second look at whether getting on board the Basel Convention is a good idea and whether it is a political possibility."

In the eyes of Congress, the Basel Convention "has dropped off of the radar screen," requiring a reeducation process, said Frandsen. "If you don't get a fairly broad political consensus on a ratification proposal and if you fail to keep implementation legislation focused, you are inviting a number of political complications into the process."

Ford said the administration recognizes remaining outside of the treaty could be detrimental to U.S. credibility. The White House is pleased with the progress made at the COP4 meeting in clearly defining what hazardous wastes are governed by the convention, which eliminated preliminary obstacles blocking the passage of the convention by the Senate.

"The United States is on the outside of many international environmental conventions. We feel that Basel is important in its own right, but the concept of the U.S. being part of the international framework is important and something the administration should strive to do," Ford said. "COP4 was a very important event, and I think it has done a lot to change the thinking of the administration. It has clarified probably the most important undecided issue in the convention with regard to scope."

While the convention prohibits countries who have ratified the treaty from engaging in hazardous waste trade with non-party countries, it does exempt trade among these countries if that trade is governed by a separate bilateral agreement having similar requirements.

Through these treaties, the United States has been able to remain outside of the convention while maintaining its trade with parties. But, the 1995 OECD export trade ban, which prohibits member countries from exporting their waste to OECD countries, would eliminate the United States' ability to work bilaterally, ending what some environmentalists view as a loophole in the convention.

"The Basel Convention says that parties must do everything that they can to minimize generation of waste, but that isn't going to happen without creating the incentive to do it," said Puckett. "Without the OECD export ban, the convention is mainly an instrument to monitor the transboundary movement of hazardous waste, allowing countries to export their problems instead of solving them."

This new U.S. ratification proposal does not include plans to ratify the OECD ban. "Allowing the United States to do this, regardless of legality, is tantamount to allowing an area of the world which still practices slavery to become the 51st state of the union and ratify the U.S. Constitution while refusing to agree to ratify the 1865 amendment banning slavery," said Puckett.

According to Ford, the "rigid nature of the ban" raises a number of issues in the administration's view. "The ban takes, somewhat arbitrarily, one set of countries, the OECD countries, and says you cannot have exports from this set of countries to non-OECD countries," Ford said.


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