Basel Action Network (BAN) Report on the 4th Open Ended Ad Hoc Meeting for the Implementation of the Basel Convention 

June 21-25, Geneva, Switzerland

Summary Comments

The 4th Meeting of the Implementation Committee meeting continued in the quieter, more conciliatory tone marked by the last major subsidiary meetings of the Technical Working Group and the Joint Consultative meeting of legal and technical experts held in April of this year. Challenges to the Basel Ban Amendment by the few opposing countries which have continued to make the Ban the dominant issue for the last five years seem to have lost momentum for the time being. Efforts to amend the ban prior to its entry into force seem to have been set aside and talk of utilizing the study on Annex VII, as well as the guidance document on the use of Article 11, have been placed in the background with their due dates put well beyond COP5. Rhetoric for and against the ban has only been heard in the corridors and even there, it is rare.

Increasingly contentious but still not an issue for great discussion at the 4th Implementation Meeting are the basic underlying principles of the Liability Protocol. BAN utilized the opportunity of the 4th Implementation Meeting to place a document on the table entitled "Saving the Basel Liability Protocol" spelling out the fundamental flaws of that protocol as it now stands. In our view the current draft risks being worse than no protocol at all.

The most important new development of the Basel Convention was the announced "re-deployment" of Secretariat Coordinator Dr. Iwona Rummel-Bulska. The vast majority view of this decision taken by UNEP Executive Director Mr. Klaus Toepfer, to take effect just months before the 10th Anniversary COP5 meeting, was that the timing was very poor and reflected badly on Mr. Toepfer's management abilities.

Finally, a new effort which may prove to be very important, is now underway to define the thrust of the next decade of work for the Convention.

Basel Ban Amendment Issues

Annex VII

Although both non-OECD countries Slovenia and Israel have put in applications to COP5 to join Annex VII, Slovenia once again (as at COP4) submitted theirs late. They apparently had thought that their last one would be automatically resubmitted. Israel on the other hand made it clear that while they had resubmitted their application, they did so only to signal their continued desire to enter Annex VII and had no intention of defying the wishes of the Parties. Thus presumably they will simply be told at COP5 that a decision on the matter had already been taken at COP4 and Israel would then accept this. There was some speculation that the reason these applications by Slovenia and Israel have been resubmitted might be due to the possibility that they may be wishing to maintain a track record of diligent effort to join Annex VII should they wish to later launch a WTO challenge to the Basel Ban.

Decision IV/8, required a study of Annex VII as part of the compromise arranged at COP4 which ensured that the Ban Amendment would be maintained at least until entry into force. This study is now being viewed as largely an exercise and appears to hold little political significance, at least at the moment. The study was broken into two parts. The first is statistical and the last analytical. The first part has been finished and was released at the 4th Implementation Meeting. BAN has not yet had a chance to thoroughly critique it but it does appear to have serious flaws. Among these are the problem of not making adequate distinctions in statistics between Basel hazardous waste subject to the ban and non-hazardous waste not subject to the ban. Further it relies on information from too few and very biased sources -- such as the United Nations Center on Trade and Development (UNCTAD) and Australia, both of which are entities that strongly object to the Basel Ban Amendment. The second part of the study to date consists only of terms of reference and will not be completed until COP6. The terms of reference as they exist are very balanced and depending on how the study is done should remain so. But few are giving this study much weight at the moment. There wasn't even a prepared decision for COP5 on this line of work as is usually the case until Canada intervened late in the meeting and asked for such a decision. That decision simply called for a continuation of the work and for a report to be made to COP6 on the progress.

Article 11 Agreements

Perhaps more of an immediate threat to the Basel Ban is the possibility that a country such as Australia, which has indicated that it believes that it reserves the right to do so, will engage in waste trade in defiance of the ban via a bilateral agreement. In the compromise that led to Decision III/1 which created the Basel Ban Amendment, an ambiguous, confusing request is made of the Convention to develop guidelines for the use of Article 11. Yet during the negotiations the notion of using Article 11 to get around the ban was ruled out. In any event, a paper was thus commissioned by the Secretariat which in our view was of poor quality. It presupposes that Article 11 agreements are designed to facilitate waste trade. Additionally the proposed guidelines thoroughly mix up Basel obligations with optional requirements. However, this paper has yet to be finalized and there appears no apparent political will to accomplish this any time soon. Once again, thankfully, this misguided exercise was passed through the 4th Implementation meeting with a decision calling for further comments by the Parties for the finalization of the guidelines by COP6.

Interestingly, the European Commission is preparing a common position with respect to Article 11 and its relation to the Ban Amendment. This clearly appears to be an effort to convince the rest of the world of the compelling legal arguments that Article 11 cannot be used to circumvent the Basel Ban. The EU already possesses a common position on this by virtue of their own waste shipment regulation which forbids the use of multilateral agreements.

Decision II/12

It is important to note that Decision II/12 (the first Basel Export/Import Ban Decision) is very much alive in the treaty and is not seen as having been wholly replaced by Decision III/1(Basel Ban Amendment). This has been demonstrated by the fact that the Secretariat is still collecting information regarding the implementation of Decision II/12 as required by that decision and has sent a new decision regarding II/12 follow-up to COP5. A consolidated report on the implementation of II/12 was also prepared for COP5. This report contains some useful information regarding many national positions vis a vis the ban and is available like most of the other 4th Implemention Meeting Documents on the Basel Secretariat Website (see "Links" on BAN website).

African Workshop, Dakar II, OECD Workshop

The offering made some time ago by Senegal to hold a second workshop in Dakar is still on the table. However it is now clear that this will not happen prior to COP5 and may not happen at all. This workshop on the subject of "environmentally sound management" (ESM) of hazardous waste has been offered 50,000 dollars and 25,000 dollars by the US and Australia respectively. However it is thought that at least twice that amount will be needed to hold the event.

The fear from those supporting the Basel Ban is that this workshop is being funded by those countries most concerned with undermining the Basel Ban and will therefore concentrate on developing criteria for entry into Annex VII in order to expand that Annex. Or alternatively, such criteria will be used to allow the development of bilateral agreements allowing waste trade from OECD to non-OECD countries. Too often the view that has been held regarding ESM is one that emphasizes down-stream, end-of-pipe waste management and does not stress the obligations in the Convention placed on OECD countries to minimize their generation of hazardous waste.

While there has been hesitancy by both pro and con ban camps to fund or attend another Dakar Workshop (a previous one on "Implementation of the Ban" was largely a waste of time and resources), we have learned that the OECD now wants to sponsor an ESM workshop in October in Mexico and would presumably invite persons from all over the world. It appears that the OECD wants greater control over the agenda than they might have in Dakar or perhaps they wish to develop the program in Mexico and then clone that programme in Dakar should all of the funding materialize.

On the other side of the coin, Denmark and Norway are looking toward the possible funding of a Workshop for Africa, either in front or just in back of the August 30 - September 3 drafting meeting for the Protocol on Liability and Compensation in Geneva. This African meeting would stress implementation of the Convention and Ban Ratification.

News on Ratifications

It appears from numerous informal discussions with delegates that ban ratifications are on their way. Perhaps many countries will try to ratify by the COP5 10th Anniversary meeting. Already it is known that Burkina Faso has ratified as the first African State to do so.

Liability Protocol

BAN in conjunction with West Coast Environmental Law (Canada) prepared a paper entitled "Saving the Basel Liability Protocol" (see website section Subsidiary Meetings) which lays out the three most glaring deficiencies of the Liability Protocol. It is clear that without substantial changes the Liability Protocol will be a shameful document. Germany released a non-paper for information as well which urged parties to finish the protocol and do it their way -- a package of final fine tunings which, in our view, fall far short. Their version would continue to fail to always apply to generators of hazardous wastes and would fail to apply to aftercare. Further it would not establish an Emergency Fund. The Liability Protocol Meeting of August 30 - September 3 is billed as the last drafting session. This should be a very contentious meeting as the protocol is very far from being a progressive document and NGOs and their allies will be fighting hard for a document that actually protects the environment and potential victims of hazardous waste trade.

Technical Issues

Plastic Waste Guidelines

There is considerable interest in the Guidelines for Plastic Waste, due to the fact that halogenated plastics are included and the Guidelines were drafted by industry. The Guidelines presented by industry were quite bad as they included spurious claims of the non-hazardousness of plastic waste, including the notion that incineration of PVC or mixed plastics did not contribute to dioxin and furan production any more than any other type of incineration. It is hoped by NGOs, the European Commission, Denmark and others, that first the paper will deal with halogenated plastics separately and highlight the special problems associated with them; second, that the special needs of developing countries will be taken into account in the document; and third, that the finalization of the document will not take place until after Parties have a chance to substantially revise the paper. It was decided that the Secretariat will prepare a revised version based on the new proposed structure (which will separate halogenated plastics in a separate chapter. Comments received by the Secretariat before November 1 will also be utilized. The TWG will be asked to finish the work by COP6.

Medical Waste Guidelines

There were no new developments with respect to the Guidelines on Medical and Clinical Wastes. They are still in the process of receiving comments and being redrafted.

Cooperation With and Role of NGOs -- Brazilian Mission

One of the notable developments during the meeting was the clear mandate given the Brazilian delegation to try and limit NGO involvement in their national and international affairs. The Brazilian delegate's mission was first revealed in the context of a draft decision on waste minimization, when BAN asked that Environmental NGOs be on an equal footing with industry. Following this BAN intervention, Brazil intervened and said that they felt that this was an affront to their sovereignty -- in other words countries did not have to work with NGOs if they did not want to. Colombia and the chair (Andreas Jaron of Germany) then reminded Brazil that the word "encourage" as was used, is hardly binding and that this was a decision on waste minimization and not sovereignty. Brazil persisted however and the Parties finally accommodated that country by inserting the language "in accordance with their national legislation and practices".

On several other occasions during the meeting the Brazilian delegate balked with respect to NGO involvement (it must be noted that Brazil did not apparently feel the same in the context of industry) and took up much meeting time insisting on language that would put distance between countries and environmental NGOs. At one point she wanted wording that said NGOs would be involved "when requested". The chair said "surely this is not what was meant -- "that they cannot write you a letter unless asked?" -- she then stated openly that she had a mandate from her government and unless she dealt with the issue now on the floor, than she would have to deal with it later when she returned home. Readers might need to be reminded that in the 14th Technical Working Group taking place in Pretoria, South Africa, Brazil had industrialists on their delegation and brought them into contact group meetings in which environmental NGOs were excluded.

In one decision dealing exclusively with relations with NGOs and industry, BAN was forced to point out, as did numerous Parties that the paper, despite the title, was almost entirely about industry. This was corrected, albeit as an afterthought and BAN will be allowed to draft an Annex to the decision regarding NGO involvement and cooperation.

Persistent Organic Pollutants (POPs)

The Basel Secretariat is working on a joint Basel / POPs capacity building programme on the identification, management and destruction of PCBs and PCB-containing wastes. This will be important for toxics activists to join in order to ensure that non-combustion methods of PCB destruction are explored and given priority. Apparently a document has already been published in December 1998 concerning the global inventory of world-wide PCB destruction capacity. It is unclear who was the leading agency that produced this document or what precisely it contains. It has also been noted that the Basel Convention Secretariat participated in the development phase of a project entitled "Regionally Based Assessment of Persistent Toxic Substances" financed by the Global Environment Facility (GEF). This project also warrants scrutiny and international involvement by NGOs. The Basel Convention Secretariat also participated in the IOMC (Inter-organization programme for the Sound Management of Chemicals) Project Planning and Proposal Meeting on Unwanted Stocks of Pesticides and Other Chemicals in August 1998.

The Technical Working group of the Basel Convention has on its workplan other related POPs work including work on dioxins and furans; classification of waste pesticides destined for reformulation or recovery operations; consideration of the preparation of further technical guidelines for the ESM of POPs etc.

Additionally, the Basel Secretariat is working with the POPs Intergovernmental Negotiating Committee (INC) in the preparation of a paper on the issues related between POPs and Basel. This work is referred to in paragraphs 58 and 61 of the POPs INC2 Report.

Shipbreaking

There has been no substantive change to the decision forwarded by the Technical Working Group and Consultative Sub-group of Legal and Technical Experts on the course of action with regard to the dismantling of ships. The proposed collaboration with IMO is still envisaged and the TWG will take up the issue of possibly preparing technical guidelines for the ESM of ships. They will also discuss the legal aspects with respect to application of the Basel Convention to ships. A progress report is likely to go to the COP5 and a full report readied for COP6. It has been rumored by many that IMO is not overjoyed with collaborating with the Basel Convention on a matter concerning ships.

COP5

Scheduled Events

COP5 will take place from 6-10 December at the Basel Congress Center -- the same place where it was adopted in 1989. Thus it will be the 10th Anniversary meeting of the Convention. On December 3-4 the Bureau will meet. There will be numerous social events. On the Evening of the 6th there will be a reception hosted by the City of Basel. On December 7th there will be a special visit to a hazardous waste incineration plant hosted by the chemical industry, followed by a reception. On the evening of the 9th there will be two dinners, one for Ministers and heads of delegations and one for all others.

Citation of Excellence Awards

It is proposed that 2 awards will be given at COP5. One for the person/s significantly involved in the development of the Basel Convention (1987-1989). And one for the person/s who were particularly significant in the implementation of the Basel Convention. It is not well understood how the nomination list was derived but BAN has obtained the lists attached below:

Dr. Mostafa K. Tolba, former Executive Director of UNEP (Egypt)

Mr. Flavio Cotti, President of Cnference of Plenipotentiaries 1989 (Switzerland)

Mr. Patrick Szell, Chief Legal Officer, Department of Environment (UK)

Mr. Tan Meng Leng, former Director General - Environment (Malaysia)

Mr. John Myslicki, Chief, Transboundary Movement Division - Environment (Canada)

Mr. Lauri Tarasti, former Director General of the Ministry of Environment (Finland)

Mr. Jan Huismans, fomer Director of UNEP/IRPTC (The Netherlands)

Mr. Alain Clerc, former Director, BUWAL (Switzerland)

Mr. Nandor Zoltai, former Director in the Ministry of Environment (Hungary)

Mr. Ahmed Fathalla, former Counsellor, Permanent Mission of Egypt in Geneva (Egypt)

Mr. Bakary Kante, former Director of Environment (Senegal)

Mr. Andrew Sens, Chief negotiator of the United States (USA)

Mr. Jan Johansen, Senior Executive Officer, Polution Control Authority (Norway)

Mr. F. Roelants-du-Vivier, President, NGO-Globe (Belgium)

Ms. Ines Rodrigues, Secretary, Permanent Mission of Uruguay in Geneva (Uruguay)

Mr. Willy Kempel, Secretary, Permanent Mission of Austria in Geneva (Austria)

Mr. Jimenez Beltran, Director, Ministry of Environment (Spain)

Mr. Kevin Stairs, NGO-Greenpeace International (USA)

Ms. M. Smet, former Minister of Environment (Belgium)

Mr. German Garcia Duran, Ambassador of Colombia to Kenya and UNEP (Colombia)

Mr. Carlo Ripa de Meana, former Commissioner, European Commission (Italy)

Mr. Michel de Bonnecorse, former Ambassador of France to Kenya and UNEP as well as to the UN in Geneva (France)

Dr. P. Screenivasa Rao, Director, Department of Treaties, Ministry of Foreign Affairs, Member of ILC (India)

Mr. Comlavi, former Minister of Environment (Togo)

List of Persons Identified for Citation of Excellence Who Were Particularly Significant in the Implementation of the Basel Convention

Ms. Ruth Dreifuss, Switzerland

Dr. Klaus Toepfer, Germany

Mr. Hans Alders, Netherlands

Mr. Peter Hinchcliffe, United Kingdom

Ms. Hajah Rosnani Ibarahim, Malaysia

Mr. Law Hieng Ding, Malaysia

Mr. Sven Auken, Denmark

Mr. John Myslicki, Canada

Mr. Day Mount, USA

Mr. J. Lammers, Netherlands

Mr. Jorge Berguno, Chile

Mr. Philippe Delacroix, France

Mr. Julio Cesar Balino, Uruguay

Mr. Julio Barboza, Argentina

Mr. Christopher Lamb, Australia

Ms. Penelope Wensley, Australia

Prof. Winfred Lang, Austria

Mr. Marc Gedopt, Belgium

Mr. Thomas Michael Baier, Austria

Mr. Wang Yangzhu, China

Mr. Jack Christofides, South Africa

Mr. Kevin Stairs, NGO-Greenpeace International, (USA)

Mr. Francis Veys, NGO-BIR (Belgium)

Mr. Josep Borrell, former Minister of Environment (Spain)

Mr. Larsey Mensah, former Deputy Secretary General, IMO (Ghana)

Mr. Akao, Ambassador of Japan to the U.N. in Geneva (Japan)

Basel the Next Decade

Earlier in the year, in Heidelberg, the extended bureau of the Basel Convention were all invited to a special meeting to discuss "Basel Convention -- the Next Decade". That meeting concluded that the focus of the next decade should be Environmentally Sound Management (ESM) and capacity building, particularly for developing countries. Andreas Jaron (Chair) of Germany was given the task of drafting both a Paper, a Declaration and a Decision. A special sub-group took up the issue at the 4th Implementation Meeting and many excellent comments to these documents were contributed. Greenpeace, BAN and several parties pointed out that ESM must not only include waste minimization and prevention but must emphasize it in order to be visionary or inspirational. Further we advocated for special pilot projects such as non-combustion destruction of Pesticide stockpiles and for Cleaner Production in specific industrial sectors. The meetings were quite positive and a transparent process is in place. There will now be a time period until the end of July when comments can be given by all. Then a special drafting group will take place from 6-7 September in Berne, Switzerland. One NGO representative has been invited. Then the final declarations and decisions will be finalized in the preparatory segment of COP5.

This Declaration could prove to be quite influential with respect to the Basel Convention and even the ban. It will be important to ensure that the document truly moves toward sustainable clean production solutions and does not simply promote end-of-pipe non-solutions.

The "Re-Deployment" of Dr. Iwona Rummel-Bulska

The most emotional issue of the meeting had to do with the sudden news presented to the Bureau that the coordinator of almost a decade would be replaced effective July 15, 1999. According to Bureau members, the subject was presented by the Deputy UNEP Administrator in a most awkward and sudden way, leaving those present somewhat stunned. The concern was not so much the fact of her re-deployment, but rather the timing of both the announcement and the effective date of her departure. It was argued by the Bureau that this was not appropriate given the fact that it was only 5 months away from one of the most important Conference's of the Parties and that such a disruption could only hurt the outcome of the meeting. The Bureau thus sent a letter to UNEP Executive Secretary Dr. Klaus Toepfer asking that the effective date of the re-deployment be moved to after the COP. He then sent a letter back stating in no uncertain terms that his mind was made up, that it was normal for such re-deployments to take place in UNEP after a number of years, that he had a very important post lined up for Ms. Rummel-Bulska, and that he would ensure that the COP would not be affected adversely.

When the matter came up on the floor of the 4th Implementation Meeting, the Philippines launched the salvo after the chair explained the situation. She noted that this was part of a disturbing pattern of UNEP recently making momentous decisions without consulting the Parties. She considered the matter very serious. She insisted that more authority must rest with the COP and not only with agency demands. She insisted that the Parties be fully consulted with respect to the replacement and all such future decisions. Her intervention was then followed by many other countries expressing similar views including Uruguay, Russia, China, Poland, Nigeria, Japan, Iran, Israel, Gambia, Congo, and Egypt. Notably the Nordic group was absent from any comment as was most of the OECD. Switzerland made a statement regretting the loss but doubting whether anything could now be done. New Zealand acknowledged Ms. Iwona Rummel-Bulska's contribution, while Australia also hoped for better consultation in future. The meeting then broke so that each regional group could go away and discuss what to to do. Upon reconvening, each of the groups had tamed their rhetoric somewhat with all but "Western Europe and Others" asking that the concerns be registered in the report. "Western Europe and Others" stated that it would not be useful to write another letter to Mr. Toepfer. They noted that the Parties should not interfere in UNEP administrative matters, and that hoped that there would be a way to draw upon Ms. Rummel-Bulska's experience. All of these comments were summarized in the report.

There is no word or rumor on her replacement. However it was well known among the delegates that it was the diplomatic corps of the Nordic countries who pushed hardest and most recently for the coordinator's ouster. This initiative was largely believed to have been started by Finland which in turn involved the rest of the Nordic Group. The complaints did not apparently derive from the Nordic Basel delegates, rather they heard about it in a round about way. Yet because of their government's complaints, their tongues were tied during the meeting although several privately confided their unhappiness to the way the decision was handled. It is also well known that numerous governments such as the USA and Canada have also voiced complaints about the Secretariat in the past over the handling of the ban decision.

If the Finns were most responsible for Mr. Toepfer's decision it is unclear what precipitated it, and why it was done in such an ugly manner. Almost all delegates we queried felt that the timing was very awkward and insulting. Most felt that while it was certainly fine to replace somebody in a dignified and graceful way, this was certainly not that. Indeed COP5, being the anniversary meeting would have been the ideal place to celebrate Ms. Rummel-Bulska's decade of work and announce the new coordinator. Instead the impression left was that Mr. Toepfer is either an insensitive administrator or had very strong pressures which forced his hand. Throughout all of this Ms. Rummel-Bulska carried on in a very professional manner but off of the floor, it was clear that she was distressed. The amazing and sad thing was that the 4th Implementation Meeting was likely to be Ms. Rummel-Bulska's last and yet nobody made any kind of fitting farewell statement or gift, due to the suddenness of the decision. We can only hope that such an appropriate attribution will be granted at COP5 and that Ms. Rummel-Bulska's replacement will adhere strongly to the Agenda 21 mandate with respect to NGO participation in UN affairs.

END