Comments on Decision IV/8: Regarding Annex VII
Prepared by the Basel Action Network (BAN) Secretariat for the Parties of the Basel Convention
April 12, 1999
Basel Action Network (BAN) Secretariat
c/o Asia Pacific Environmental Exchange (APEX)
1827 39th Ave. E.
Seattle, WA. 98112 USA
The following paper constitutes the comments by the Basel Action Network on the implementation of Decision IV/8 regarding Annex VII. It is divided into three parts.
The first part is a review of the basis for the Basel ban amendment. We believe that to date, this basis has been misrepresented and discussed in only the most limited way, particularly by the small group of countries that continue efforts to ignore or undermine the ban decisions that have been made at each of the Conferences of the Parties (I/22, II/12, III/1, IV/7, IV/8,). Some ban opponents continue to characterize "environmentally sound management" as being simply a matter of down-stream responsibility of potential recipient countries. We find this interpretation one-sided, dangerous and in contradiction to the objectives of the Basel Convention. Rather we submit that "environmentally sound management" is primarily the up-stream duty of the state of export, in its fulfillment of the basic obligations of the Convention.
The second part of this paper consists of a point-by-point critique of the argumentation and complaints submitted to the Secretariat by the countries which continue to oppose the ban. In that section we explain why we believe these arguments are erroneous and irresponsible.
The third part of this paper consists of elements that we believe should be thoroughly explored in the analysis of Annex VII called for in Decision IV/8.
Part One: The Rationale for Decision III/1
It is very important at the outset of any discussion regarding an analysis of Annex VII, to review the basis for Decision III/1 or the so-called Basel Ban. Annex VII is the backbone of the Basel Ban. Thus it is vital that the basis for the ban be well understood in order to establish the foundation by which an objective analysis of Annex VII and its efficacy can occur. Some of the comments that have been provided to date by countries opposed to the Basel Ban evidence only a very limited view of the basis for the ban and thus misrepresent its value and purpose and thereby misrepresent the value and purpose of Annex VII.
1.1 The Basis of the Ban
Decision III/1 is based on the following stated justification: "Recognizing that transboundary movements of hazardous wastes, especially to developing countries, have a high risk of not constituting an environmentally sound management of hazardous wastes as required by this Convention."
On the basis of the statement above, the Parties took the decision to ban exports from Annex VII countries (OECD countries, EU countries and Liechtenstein) to non-Annex VII countries. There are three elements to the the text found in III/1 that are of vital importance:
First, it is stated that it is the "transboundary movement" (or trade) in hazardous waste which is seen as having the "high risk" (not just disposal) with respect to environmentally sound management. "Transboundary movement" implies obligations and characteristics of all "states concerned," and in particular those of the exporting state initiating the transboundary movement, and certainly, not just those of the importing state.
Second, such trade is seen as "having a high risk" of being in conflict with the Convention, and thus the consequent action taken to remedy this problem is to ban the export from Annex VII countries to non-Annex VII countries. The fact that the Parties did not see fit to likewise ban the export of hazardous wastes from non-Annex VII countries to non-Annex VII countries illustrates that the concern being addressed for the most part had to do with concerns about more than just the technical or other capacity of non-Annex VII countries to manage hazardous wastes in an environmentally sound manner. Rather it had to do with something inherently harmful to "environmentally sound management" when an Annex VII country exports its waste to a non-Annex VII country. It had to do with responsibilities, obligations and characteristics of Annex VII countries vis a vis non-Annex VII countries, much more than it had to do with those of non-Annex VII countries alone.
Finally, it is imperative to realize that the primary problem identified was the "high risk" of such Annex VII to non-Annex VII trade not constituting "environmentally sound management." Environmentally Sound Management is defined in the Convention as:
"taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes."
1.2 Environmentally Sound Management -- Taking all Practicable Steps
Surely, at a minimum, "taking all practicable steps" on the part of the Annex VII "state of export" to which the ban is meant to apply, must include adhering to the general obligations of the Convention found in Article 4. If these steps were not practicable and essential would they have been considered as obligations for all of the Parties? And, as we shall see, in the case of Annex VII exporting countries the case is even more clear and compelling. These obligations include:
- The obligation to reduce waste generation:
Each Party shall take the appropriate measures to ensure that the generation of hazardous wastes and other wastes within it is reduced to a minimum, taking into account social, technological and economic aspects;" (Article 4, paragraph 2, (a))
It is clear and irrefutable, that export of hazardous wastes from higher cost waste disposal facilities to lower cost facilities, which is almost always the case in the Annex VII to non-Annex VII waste trade subject of the ban, acts as a powerful disincentive to cost internalization and the realization of waste reduction at the source. This fact was highlighted in a recent OECD study on the Basel Convention:
"By raising the costs of disposing of wastes, firms face an incentive to produce less wastes, or produce wastes that are less hazardous to handle, through cleaner production processes for example. The same logic can be extended to restrictions on transfrontier waste movements: restricting access to one more of the alternative disposal options increases the pressure for waste generation in industrialized countries to be minimized at its source."
Thus, waste reduction on the part of Annex VII countries, a fundamental obligation and indeed a "practicable step" for environmentally sound management, is much less likely to occur without the Basel Ban. Further, we would argue that it is the Annex VII countries, by virtue of their economic stature and high levels of waste generation that have the greatest responsibility for moving rapidly on the path of hazardous waste reductions.
- The obligation for self-sufficiency in waste management:
"Each Party shall take the appropriate measures to ensure the availability of adequate disposal facilities, for the environmentally sound management of hazardous wastes, that shall be located, to the extent possible, within it, whatever the place of their disposal." (Article 4, paragraph 2, (b)).
This is a practicable step that all countries are obligated to achieve. While the phrase "to the extent possible" is a particularly strong one, and does not specify exceptions based on economics, it is clear that the Annex VII countries will be best placed to fulfil this obligation by virtue of their relative wealth and longer experience with toxic wastes. When an Annex VII country exports hazardous wastes for disposal (including recycling) to a non-Annex VII country they are almost assuredly in violation of this obligation as they have not taken this obvious and required "practicable step" for environmentally sound management. It is highly unlikely that an "adequate" technology exists in a non-Annex VII country that cannot also exist in the Annex VII country of export, or within its political/economic integration organization (ie. the European Union).
- The obligation for reducing transboundary movements:
"Each Party shall take the appropriate measures to ensure that the transboundary movement of hazardous wastes and other wastes is reduced to a minimum consistent with the environmentally sound and efficient management of such wastes, and is conducted in a manner which will protect human health and the environment against the adverse effects which may result from that movement." (Article 4, paragraph 2, (d))
When an Annex VII country exports its hazardous waste to a non-Annex VII country, they have indeed increased the transboundary movements of hazardous waste by each such movement. They have thus failed to take the practicable step of reducing such movements to a minimum. While some have argued that the Basel Ban might reduce some transboundary movements while prompting an increase in others, there is no evidence to back up any claim that the ban will result in an increase in transboundary movements -- indeed there is a mountain of common sense that would refute it. First, the obligation to minimize transboundary movements ois incumbant on all Parties. Second, almost all of the hazardous waste trade witnessed prior to the widespread adoption of national, regional bans as well as the Basel Ban was trade from OECD to non-OECD countries. Eliminating the lions share of the obvious, economically motivated trade is almost assuredly going to reduce the overall potential or actual hazardous waste trade. This is particularly the case when a country must fulfill the obligation to become self sufficient in hazardous waste management as required in Article 4, paragraph 2 (b), rather than simply redirect waste trade. In any case, individual states are obliged to reduce their individual transboundary movements to a minimum.
1.3 Annex VII Country Responsibility is Essential
Even before ban detractors can approach the question of whether or not the actual disposal of hazardous waste in the importing non-Annex VII country might be "environmentally sound management" or not -- which is the only issue they currently choose to discuss, they are obliged first to satisfy three fundamental obligations and "practicable steps" noted above that Annex VII countries must take and which in almost every case Annex VII countries will not be taking if they are engaged in Annex VII to non-Annex VII waste trade.
In this light the basis for the Basel Ban becomes very clear. Before the question arises about various technologies employed, standards, or conditions in the non-Annex VII importing country, the obligations upon the Annex VII exporting countries make it obvious why "transboundary movements of hazardous wastes, especially to developing countries, have a high risk of not constituting environmentally sound management."
The countries of the United States, Canada, Australia, and New Zealand, overlook these fundamental requirements of the Convention which are "practicable steps" to "environmentally sound management." These countries seek to ignore their own obligations and responsibility as envisaged in the Convention and the ban and instead try to focus our attention on the capabilities of non-Annex VII importing countries. Such a move is self-serving in that it makes it appear that the waste crisis is the fault of non-Annex VII countries for their failure to possess "end-of-pipe" treatment and recycling technologies to deal with wastes not of their making, rather than the fault of those generating the waste in the first place who fail to reduce it at source through the use of clean production methods as the Convention envisages.
1.4 Technical, and other Capacity of non-Annex VII Countries
As we have seen, with respect to the rationale for the Basel Ban, environmentally sound management has far more to do with the responsibilities of exporting states to uphold fundamental principles of waste management, than it has to do with the inability of potentially importing countries to manage hazardous wastes. For even if all countries of the world had identical technologies, the principles of self-sufficiency, waste prevention at source, and minimizing transboundary movements of hazardous waste remain ever valid and essential principles for reducing risk and pollution. The ban simply prescribes a remedy for those waste flows most likely to flow for economic reasons in abuse of the obligations and principles outlined above.
While it is almost certain that technical and infra-structural capacity of non-Annex VII countries is less likely to be as advanced as in Annex VII countries and for that additional reason the export of such wastes to non-Annex VII countries cannot be seen as having taken "all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes," this fact is really secondary to the obligations placed upon exporting countries which must be viewed as requisite "practicable steps."
1.5 Hazardous Waste Recycling -- A Closer Look
Even if we were to accept the false premise that it is environmentally sound to even begin an export of hazardous waste from Annex VII to non-Annex VII countries, we run into an ugly brick wall of reality with respect to hazardous waste recycling technologies. An examination of such technologies around the world reveal them to be some of the dirtiest, most polluting enterprises in the history of industrialization. This fact has been somewhat ignored by virtue of the positive connotations of the word "Recycling". But the pretty mask provided by this word falls quickly upon real examination. Even overlooking the numerous incidents of fraudulent or "sham" recycling that have been documented to date, we find that hazardous waste recycling is simply dumping by another name, often causing equal or worse damage to the populace and environment than final disposal. Two quick facts illustrate that even in OECD countries such as the United States, hazardous waste recycling is extremely dangerous and has a continuing history of very serious and costly contamination:
- Of the 1194 toxic waste sites listed in the US Superfund legislation's National Priority List of worst toxic sites in the USA as of 29 September 1998, 133 of these, or over 11%, were formerly or currently hazardous waste recycling facilities.
- The Inventory of Sources of Dioxin in the United States, External Review Draft cites secondary smelting of ferrous and non-ferrous metals and waste-to-energy incineration operations as a major source of dioxin and furans.
In non-OECD countries of course the risk is exacerbated to extremes by the lack of resources and infrastructure to contain the contamination known to occur at such sites. Greenpeace and BAN have yet to document a single hazardous waste recycling facility that does not cause pollution. Exports for recycling always involve some degree of final disposal. And yet there is no dispute among any of the Parties of the Basel Convention that exports of hazardous waste for final disposal to non-OECD countries are to be eliminated. Thus it follows that exports of hazardous waste for recycling from Annex VII to non-Annex VII countries must likewise be eliminated. According to the OECD Basel study:
"...it should be noted with regard to certain ashes and residues, e.g. filter dust ....that the recycling process for such hazardous wastes, in reality often leaves a considerable waste landfill problem, as only 10-20% can typically be extracted from this dust. The remaining 80-90 % which often continues to contain such large amounts of environmentally hazardous substances that it must be considered a hazardous waste, will in practice be placed in landfills in the importing country."
It is always more costly to attempt to clean-up pollution after it occurs than to prevent it. Yet a full costing analysis which internalizes all costs of the hazardous waste recycling trade has never been undertaken. Instead, we are just asked to take it on faith that recycling of hazardous waste is good for the economy and the environment. However, once a full cost assessment of externalized costs is undertaken and factored in economically, it will be clear that the costs from the transfer of pollution via recycling, far exceeds any benefits gained.
Finally, and most importantly, hazardous waste recycling is yet another end-of-pipe technology which serves as a disincentive for preventing hazardous waste at source by the use of non-toxic inputs and clean production methods. In the case of transboundary movements covered under the Basel Ban, this pipeline begins in Annex VII countries and ends in non-Annex VII countries. Such a steep economic gradient represented by these country groups equates to such wastes flows that create very serious economic disincentives to achieving waste prevention. Waste prevention is not only an obligation of the Convention but is the prime objective of all modern hazardous waste management policy.
1.6 The Rationale for the OECD Distinction
There is no mystery in determining the latest method by which ban opponent countries wish to undermine and unravel the Basel Ban. Their latest tactic which holds the most promise for them is to allow for expansion of Annex VII beyond the OECD group. They know full well that once the OECD distinction is erased then the ban will also be erased. There are two compelling reasons why the decision by the Parties to distinguish OECD countries from non-OECD countries as a basis for the ban is sound and consistent with the aims of the Convention:
- The OECD group is disproportionately responsible for a global problem (hazardous waste generation) and possesses a disproportionate capability (wealth) to solve that problem at home as required by the Basel Convention (Article 4, para. 2, (a)(b)and (d)).
- The OECD, is a legally bound set of nations whose membership is not self-elective but based on economic, and infra-structural criteria. The rigidity and economic basis of OECD membership provides an enforceable safeguard against an elective regime where countries, on the basis of unenforceable criteria, can opt in or out of the ban.. An "opt-out" ban is not a ban at all.
The OECD/non-OECD divider, while imperfect, does address the worst abuses of dumping for profit and at the same time serves as a self-enforcing mechanism to prevent the return to the failed elective system of "prior informed consent". If, non-OECD countries are allowed (or are pressured into) joining Annex VII , once again they will become the potential target for economically motivated waste dumping and in the process, OECD countries will be able to avoid their special responsibility to fulfil obligations under the Convention.
It is expected at the meetings of the Technical Working Group and the Joint meeting of the Technical Working Group and the Consultative Sub-Group of Legal and Technical Experts that ban opponent countries will work hard to make the study of Annex VII mandated at the last Conference of Parties (Decision IV/8), a vehicle to reverse the agreement of that same decision to not change Annex VII until it enters into force. Yet, the Parties of the Basel Convention must maintain their unity in the face of greedy impulses by a handful of powerful countries. We must continue to firmly and politely reject bad-faith efforts to sabotage one of the centuries greatest environmental achievements. As much as we all have an urgent duty to create new, innovative ways to protect our children's future, it is even more vital that we protect and uphold the difficult gains we have made.
Part Two: Critique of Argumentation Provided by Canada, Australia and New Zealand in their submissions regarding IV/8
As demonstrated in Part One above, the argumentation provided by ban opponents is based fundamentally on an inappropriately restricted definition of "environmentally sound management" -- one that only fixates concern over the disposal operation in potentially importing countries. Fortunately, however for the environment and human health, the Basel Convention has a much more progressive and preventative view of environmentally sound management -- one that puts the first and most important obligations on the waste generating and exporting country.
Yet the misguided view of "environmentally sound management" remains the theme of much of the ban opponents argumentation as articulated in the submissions to the Second meeting of the Technical Working Group in cooperation with the Sub-group of Legal and Technical Experts, of Canada, Australia and New Zealand. However, as other points are also raised, we examine these in turn below. As these three countries share much of the same argumentation we have chosen to cite just one country's actual words in each case, in order to use an exact reference.
"The Ban Amendment continues to be a divisive rather than a uniting element of the Basel Convention" -- (Canada)
Beyond the obvious handful of countries still fighting the Basel Ban, evidence of divisiveness is not apparent. In fact, we can think of no environmental decision that has been decided,and turned into an amendment with such rapid, overwhelming and diverse support than the Basel Ban. The Basel Ban has been passed (Decision II/12 in 1994), turned into an amendment (Decision III/1 in 1995) and endorsed (Decision IV/7 in 1998) each time by a consensus of parties which now number 122. It has had the overwhelming support of the G-77 countries, Nordic countries and most recently all of the European Union.
The fact that Canada, Australia, the United States (a non-party) and New Zealand continue to stand alone in opposition to the Basel Ban Amendment, hardly make it a "divisive" issue, particularly as these countries have never felt strongly enough to block consensus on this matter. Certainly any decision which is designed to eliminate cheap disposal routes for industry is going to burst some bubbles, and create some controversy among those industries that stand to profit from a free trade in hazardous wastes. However treaties are not born to assert the status quo. Environmental treaties are designed to change the world by improving its environment. Clearly, the overwhelming majority of the Parties view the Basel Ban Amendment as doing just that.
"...the low number of ratifications which Decision III/1 has attracted." - (New Zealand)
The characterization by Canada and New Zealand of the number of ratifications of the Basel Ban Amendment as being low, and therefore an indication of some lack of support is extremely misleading. First, these countries fail to note that one of the ratifiers is the EEC. The European Economic Community is known to have competence over all EU member states with respect to international treaties dealing with trade. That is why the European Union countries have passed 259/93 and its amendments as a regulation (binding on all member states). This regulation has implemented the Basel Ban Amendment into EU law which is applicable not only to all EU states but also to their trading partners in the European Free Trade Association (EFTA) under the European Economic Agreement (EEA). The fact that the Basel Convention Secretariat has not noted each individual EU member state, nor their EFTA partners (which is comprised of Liechtenstein, Norway and Iceland), is reflective of the fact that they have no authority to do so. It is not reflective of the fact that for all intents and purposes, the EU and EFTA countries have now fully implemented the Basel Ban Amendment regardless of when each individual state takes the somewhat redundant step of ratifying individually.
Thus, in fact, there are actually 23 countries that have implemented the Basel Ban Amendment. More importantly, 17 of these are Annex VII countries! For a ban which is actually an Annex VII export ban, this is highly significant as Annex VII lists only 29 countries which are also Parties to the Basel Convention. Thus, well over half of the countries to which the ban applies have already implemented the ban.
Secondly, it has been widely understood that the debate over the scope of the treaty with respect to the definitions of hazardous wastes, which was not resolved until the end of COP-IV, delayed ratification of the ban as many countries claimed that they did not know what it was they were banning and thus early ratification might seem improper. Now that the decisions have been elaborated with widespread satisfaction by industry and the environmental community alike, ratifications have proceeded apace. Already, since COP IV, four new ratifications have been deposited. The characterization that somehow this is on a slower pace than what could be expected and that this might represent some form of divisiveness is wishful thinking at best.
However it is important to note that, if a debate now ensues about Annex VII and its constitution, as is being advocated by ban opponents, such a debate may very well have the effect of slowing ratifications as did the previous debate on definitions. Thus those countries that profess to be concerned about the number of ratifications should ensure that Decision IV/8 is upheld and that no changes are allowed prior to entry into force of the amendment.
"In future, a non-Annex VII country may not only wish to import hazardous wastes, but may have also developed the capacity to manage them in an environmentally sound manner. Such a country is able to propose itself for addition to Annex VII." -- (Australia)
If ban opponents continue to view hazardous waste as more a commodity than as a problem to be eliminated at source, then the goals of the Convention will simply not be realized and they enter the Convention walking backwards. The distinction between Annex VII and non-Annex VII country groupings was not meant to reflect a desire to receive hazardous waste. The right to ban imports was already well established within the text of the original treaty. Nor, was the distinction meant to reflect the capacity to manage waste in the importing country alone. As explained in the previous section of this paper, the Convention obligates all countries to become self-sufficient, and to reduce their generation of hazardous wastes and to minimize its transboundary movement. The Annex VII group should not be seen as a waste trading bloc any more than should the non-Annex VII group. Rather, Annex VII countries were set apart as they are the countries disproportionately responsible for a global problem (hazardous waste generation) and which possess a disproportionate capability (wealth) to solve that problem at home as required of all countries by the Basel Convention (Article 4, para. 2, (a)(b)and (d)).
Indeed the desire to receive hazardous wastes should never be seen as a legitimate reason to join Annex VII! Just because a country wants to import hazardous waste is no reason that the rest of the Parties should facilitate that desire. And certainly that country has no special right to receive hazardous waste when that waste trade runs contrary to the aims and decisions of the Convention. Just as the Parties should not allow a country to receive hazardous wastes should that country wish to exempt itself from the obligations of prior-informed notifications and consent, licensing and permitting of facilities etc., a country cannot be allowed to violate the obligations of the Convention and its decisions simply because they want to.
"The ban amendment is likely to negatively impact the ability of developing countries to enhance their recycling capacity, thus limiting the development of this part of the internationally accepted waste management hierarchy. This can also limit or eliminate other environmentally sound, and sustainable development opportunities." -- (Canada)
The Basel Action Network finds this argumentation to be preposterous in its cynicism and immorality. The Basel Ban opponents claim that unless non-Annex VII countries are willing to be the recipients of hazardous wastes from Annex VII countries, then they will not likewise be the recipients of "environmentally sound" technologies.
First, sugar-coating the bitter pill of toxic waste with the promise of technology transfer is no different than the gross offers of money for taking hazardous wastes which characterized the waste traffickers in their most unsubtle early efforts. It is environmental blackmail and is an immoral abuse of relative wealth, and a serious fomr of exploitation. The OECD Basel study examined this perverse rationale and recorded the following rather understated observation:
"On the other hand, it might be argued that transboundary movement of hazardous waste is not itself the first best instrument for developing countries to acquire the technology, expertise and institutional infrastructure necessary for environmentally sound handling of hazardous wastes."
Second, the fact that hazardous waste recycling is "part of" a waste hierarchy hardly makes it a preferable option or one that should be promoted. Final disposal is also on the internationally accepted waste management hierarchy, and yet nobody is publicly advocating that exports of hazardous waste from Annex VII countries to non-Annex VII countries for final disposal might help developing countries learn how to build dumps. As we have noted above, hazardous waste recycling, landfilling and incineration are all very poor alternatives compared to front-of-pipe waste management that avoids hazards and waste in the first instance. These are the technologies that should be transferred to non-Annex VII countries in good faith and not as "rewards" for swallowing the effluent of affluent countries.
"The ban amendment does nothing to address the transboundary movements of hazardous wastes between developing countries and from developing to developed countries and whether they can be handled in an environmentally sound manner. The inference that these will be environmentally sound is not always accurate." - (Canada)
The ban was never intended to end all waste trade, and certainly removing or weakening the ban as has been advocated by ban opponents does nothing further to address problems associated with such South to South trade or South to North trade. Rather, the ban was designed to halt the trade from richer to poorer countries, which due to the serious economic disparities involved, led to the most egregious dumping efforts, the enormous profits, which in turn had the effect of corrupting the prior informed consent (PIC) regime. It was designed to halt the type of trade that was most obviously abusive and contradictory to the aims of the convention. This type of waste trade not only victimizes countries with lesser resources to mitigate the risks from such toxic wastes but also provides a disincentive for countries that produce the most toxic waste globally for taking responsibility for it. Halting the worst form of hazardous waste trade by enforcing responsibility on rich, industrialized, high-waste producing countries is the ban's purpose. The general obligations of the original Convention provide for controls over the less extreme economically motivated waste trade.
We must remember that according to Article 15 paragraph 7 of the Convention, "the Conference of the Parties shall undertake three years after the entry into force of this Convention and at least every six years thereafter, an evaluation of its effectiveness and, if deemed necessary, to consider adoption of a complete or partial ban of transboundary movements of hazardous wastes and other wastes in light of the latest scientific, environmental, technical and economic information. Already three years after entry into force the Parties have instituted a partial ban (only Annex VII to non-Annex VII). If in time a full ban is deemed necessary to treat all waste trade equally, this can be accomplished as envisaged.
"freezing of countries in their current Annex VII status is inconsistent with the aims of the Convention...The Convention has a process to amend the Annexes which would include Annex VII." - (Canada)
Ban opponents show bad faith in their efforts to reopen issues already decided by the Parties. At COP-IV, decision IV/8, passed by consensus, agreed to leave Annex VII unchanged until the ban amendment enters into force. After that time if the Parties so choose, they can amend the Annex or they can decide to leave it unchanged. Such a course is hardly inconsistent with the Convention. Indeed it would be highly irregular and confusing to change the text of an amendment before it enters into force and thus have every country subject to a differing list of countries. We firmly believe that there are very compelling reasons to leave Annex VII unchanged. Indeed in the current annex a mechanism exists already for country additions without amendment and that is through expansion of the OECD or EU.
"relying on OECD membership as the basis for the list of countries in Annex VII distorts the role of the OECD. OECD membership is based on a wide variety of social, political and economic factors. Using this as the key factor in adjusting Annex VII membership does not necessarily reflect the development of environmentally sound management capacity in all new members, nor does it reflect the absence of environmentally sound management capacity in non-members." -- (Canada)
Unfortunately we live in a world of disproportionate economic planes. The OECD is an organization whose embodiment demonstrates that fact. It is not an open organization open to all who might wish to join it. Rather they have distinguished themselves from the rest of the world by their own design. Members of the OECD group of states enjoy many benefits, but we would argue that with such privileges come real responsibilities. The Basel Ban asks the OECD group to take some responsibility for its higher economic standard of living, greater experience with hazardous waste, consumption and high levels wastefulness, and take active steps to fulfil the Convention obligation to prevent waste at home rather than passing it to those countries that can least afford to deal with it and who had no part in its generation.
The OECD divider is not without flaws but it does provide a legally binding set of countries whose membership is not self-elective, but is subject to a rigorous set of criteria. If the OECD professes to stand for egalitarianism then they are being hypocritical. For if OECD countries really feel that any country should have the right to become a member of Annex VII, why should they not also advocate that any country be allowed to become a member of the OECD?
"The existing amendment and structure of Annex VII as well as the lack of broad-based support for it (ie. ratifications) raises legitimate questions of how the ban relates to other areas of international law, including trade law...Not allowing Parties to change their status under the Annex also creates serious risks of trade law and other challenges from countries that have or that will develop the capacity to handle certain wastes in an environmentally sound manner." -- (Canada)
This is yet another disturbing new attack on the Basel Ban being "field tested" by ban opponents. In response it first must be said that it is a perverse form of thinking that allows one to consider hazardous waste more as a tradable "good" than as a tremendous environmental problem that needs to be eliminated. But even if this "everything-is-the-market" mentality were acceptable, the entire Basel Convention and not just the Basel Ban can be subject to a WTO challenge. The entire Convention is designed to install trade barriers as the most effective way to better the environment. These trade barriers are designed to discriminate against non-Parties and countries which do not practice environmentally sound management, for example. Furthermore the Convention upholds the sovereign right of countries to unilaterally ban the import of hazardous wastes. Unilateralism is also considered anti-WTO.
Further, the notion that multilateral treaties such as the Basel Convention are beholden to or subservient to another multilateral treaty -- the WTO -- is no more acceptable than if the WTO were beholden to and subservient to the Basel Convention. In short the WTO has no legal right to tell the Basel Convention what to do. And certainly they cannot advocate that member states break international law by avoiding their Basel obligations.
But all of this question of incompatibility can be resolved once the WTO makes use of its Article XX environmental/human health exception and moreover, develops mechanisms to allow other exceptions to sanely protect the environment and human rights. Advocating the undermining of environmental treaties, and national environmental laws by invoking radical, inflexible "free trade" dictates will only serve to weaken the cause of free trade as the public will increasingly see it as a menace to their right to a healthy environment and a potent threat to democracy rather than a boon to their pocketbooks.
"Canada and others have been accused of seeking to open the full scope of the ban amendment so that OECD countries can indiscriminately dump all their hazardous wastes on developing countries. This is quite simply false....Canada as a major recycling country, has no strategic reason to try to shift these activities to other countries given their economic value added to Canada." -- (Canada)
Canada, the United States, Australia, and New Zealand consistently act insulted by the suggestion that they might be advocating a position for dumping on non-OECD countries. Yet it is hard to see it any other way. Certainly Canadian, American, New Zealand and Australian business associations seem to be united in opposing ratification of the Basel Ban Amendment. These businesses are not without a great deal of political clout. Certainly, the country position on this issue is reflective of the Business community and not the public at large in these so-called democracies. Thus democracy has been subjugated and for what purpose? These same businesses stand to gain enormously from the export of hazardous wastes which have become quite expensive to dispose of according to the laws of those respective countries.
While the ban opponent countries like to claim that they are not currently involved in widespread exports of hazardous waste they fail to acknowledge the huge potential for expanding this type of trade and the enormity of the potential savings involved. It is a fact that currently, thanks to diligence on the part of developing countries, the European Union, regional treaties and the Basel Convention, the floodgates have been for the most part closing. There is a non legally binding de-facto global ban now in place. However should the treaty choose to send a different message, via expansion of Annex VII to include countries with vastly different economies and capacities, as is being advocated by ban opponents, that situation would change dramatically. The green light would say "GO".
It is difficult to envisage a reason any more powerful than the obvious, blunt economic one above, for the countries of the United States, Australia, New Zealand and Canada to expend so much of their resources to continually launch initiative after initiative to try and thwart the will of the international community and their own electorate. For a long time we were told that once the definitional ambiguities were clarified, then the business community would cease its opposition to the ban. The business community was mostly satisfied with the new lists of wastes adopted at COP-IV but it is clear now that they will not be satisfied until they have completely eviscerated the Basel Convention's primary accomplishment and pre-occupation since entry into force.
"...the current approach to the ban amendment and its relationship to Annex VII is not sound, nor is it a sufficient end-point in addressing the environmental objective." -- (Canada)
Finally, we agree that the Basel Ban cannot be a "sufficient or effective end-point." There is much more work to be done and more incentives must be given to proceed toward goals of hazardous waste elimination in avoidance of "end-of-pipe" methods such as disposal and recycling. Further, we wish to see the development of mechanisms whereby clean production technologies and clean development are what is promoted for export instead of hazardous wastes. Such trade, unlike the trade in hazardous waste, would allow developing countries to leap-frog the mistaken crisis waste management that has characterized the development of industrialized countries. While the Basel Ban Amendment is not an end-point, we do see it as a landmark and major first step to address issues of the toxic crisis and more generally, sustainability and global environmental justice.
Part Three: The Decision IV/8 Mandate -- Appropriate Elements for the Analysis
3.1 The Mandate
At the Fourth Conference of the Parties, a decision, (IV/8) was reached to "leave Annex VII unchanged until the amendment contained in Decision III/1 enters into force." It was further decided to "explore issues relating to Annex VII and requests the Technical Working Group in cooperation with the Sub-group of Legal and Technical Experts to provide Parties with a detailed and documented analysis that would highlight issues related to Annex VII."
At the First Session of the Joint meeting of the Technical Working Group with the Consultative Sub-Group of Legal and Technical Experts of the Basel Convention, the issue of what would be the terms of reference for the documented analysis was discussed and the outcome of that discussion was a document attached to the report of that meeting as Annex I. Annex I called for a two-step approach to the analysis.
The first step would be a statistical analysis of transboundary movements of waste between and among Annex VII and non-Annex VII countries and any changes in waste streams, applicable standards of waste management etc.
The second step of the analysis should be initiated following the second meeting of the Technical Working Group in cooperation with the Consultative Sub-group of legal and technical experts, building upon the elements contained in document UNEP/CHW/WG.4/14/8 as well as upon subsequent elements submitted by the Parties. This second step will also explore how to assist Parties to ratify the ban Amendment.
Finally, Annex I of the report explicitly states that the analysis "shall not examine any criteria for changes to Annex VII in general and technical elements for such changes in particular," nor should the analysis "identify options for changes in Annex VII."
Given the above caveats found in this Annex I, and taking into account the findings made in section (1) of this paper the Basel Action Network (BAN) makes the following recommendations for elements of the study.
3.2 Elements for Analysis of Annex VII
- How much hazardous waste is produced in Annex VII countries as opposed to non-Annex VII countries?
- What is the relative per-capita wealth of Annex VII countries as opposed to non-Annex VII countries?
- How much of the global capacity for hazardous waste recycling shifted from Annex VII to non-Annex VII countries in recent years? Why?
- Examine the total cost to date expended to clean up former and current hazardous waste recycling facilities in countries such as the United States (e.g. Superfund).
- Examine the effectiveness of the Ban Amendment in the context of all of the existing regional and national bans that have likewise been enacted to halt the international trade in hazardous wastes. Taken in this context it is important to explore the preventative effect of this package of bans (ie. What would have likely happened had not these bans, of which the Basel Ban is the multilateral embodiment, been put in place in the last decade) with respect to the Convention obligation to minimize transboundary movements (Article 4, paragraph 2 (d)).
- Examine the incentive effects provided by the Basel Ban Amendment for the development of hazardous waste reduction, and prevention as envisaged in Article 4, 2 (a), when cheap economic outlets for hazardous waste disposal are denied by Decision III/1.
- Examine the consistency and benefits of the Basel Ban Amendment in moving states closer to the principle of self-sufficiency as embodied in Article 4, Paragraph 2, (b) of the Convention.
- Examine each of the many issues which lead to the conclusion that hazardous waste exports from OECD to non-OECD countries "have a high risk of not constituting an environmentally sound management." These issues should include upstream (preventative) as well as downstream (end-of-pipe) effects on waste management.
- Examine the effects of having Annex VII membership determined by non-self-elective bodies such as the European Union and OECD rather than in a self-elective manner.
- Examine the possible contradictions between a desire to join Annex VII in order to import hazardous wastes for profit, and the obligations of the Convention found in Article 4, paragraph 2.
- Examine the effects of the migration of end-of-pipe, hazardous waste recycling facilities from OECD to non-OECD countries, versus the possibility for the export of cleaner, more sustainable industries and technologies that produce less hazardous wastes, or reduce it upstream in the process.
- What is the relationship between the wealth of a country and its ability to manage hazardous wastes? This analysis must include research and development of clean production methods, ability to monitor, enforce laws, provide protections to citizens and workers and public participation.
- What steps are being taken by Annex VII countries and non-Annex VII countries to implement the ban amendment?
- Conduct a cost analysis of the short-term economic benefits from disposing, recycling or recovering hazardous waste by the importing countries, versus the long-term, externalized economic costs to human health and the environment associated with disposal (including recycling operations).
- Examine the amount and degree of hazard of the residues of commonly and potentially traded hazardous wastes following various established methods of hazardous waste recycling operations in the recipient country.
- Which Annex VII countries have taken steps to build the capacity of developing countries for cleaner production measures that prevent hazardous waste generation rather than employ end-of-pipe measures such as treatment, recycling or disposal?
- Which countries have succeeded in reducing their hazardous waste generation? Why and How?
- Which countries have succeeded in reducing their overall export of hazardous wastes and the reasons for this?
- Examine how much actual hazardous waste that is subject to the ban is currently being legally traded prior to entry into force of the Basel Ban Amendment and therefore might be impacted by the Basel Ban Amendment.
- Examine the levels of pollution currently coming out of hazardous waste recycling facilities in Annex VII countries and non-Annex VII countries. Examine also the usual fate of such wastes in these countries.
- Quantify and examine the special problems of dioxin/furan and heavy metal emissions from secondary smelting operations, plastics recycling and waste-to-energy operations worldwide. What are the likely implications of this for the newly negotiated treaty on persistent organic pollutants (POPs)?
- Examine in overview the global examples of how increasing costs of disposal and closing outlets for cheaper disposal have contributed to the adoption of cleaner production methods.
- Examine the issues of consistency with the Basel Ban and the resolutions of the United Nations Commission on Human Rights in their work on "illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights."
3.3 How to Assist Parties to Ratify the Basel Ban Amendment
The decision made by the first meeting of the Technical Working Group with the Consultative Sub-Group of Legal and Technical Experts of the Basel Convention also called for the second step of the analysis to "explore how to assist Parties to ratify the Amendment noting that there is a limited number of ratifications of the Amendment contained in Decision III/1 so far."
While we hardly are alarmed at the steady pace of ratifications, as we have explained in Part II of this paper, we would suggest the following:
- All Parties should honor existing related decisions (I/22, II/12, III/1, IV/7, IV/8) prior to entry into force and cease lobbying efforts against such decisions.
- All efforts to change the Amendment in defiance of Decision IV/8 must cease.
- Parties should be asked by the Secretariat to send the Secretariat information regarding their intent to ratify the Ban Amendment and their intended time line for doing so. This information will be published by the Secretariat.
- The Secretariat should update its model legislation to include implementation of the Basel Ban.
- The Secretariat should update its Convention Implementation guide to make strong reference to the Basel Ban.
- The Secretariat must be provided with the funds to hold regional workshops on Basel Convention and Amendment Ratification. These workshops should be conducted in conjunction with relevant NGOs.
- The Secretariat should produce a guide on how to ratify the Basel Convention and its Amendments.
- Parties should be encouraged to fund relevant, specific projects by NGOs whose objectives are to inform and advocate for the Basel Convention and the Basel Ban Amendment.
1. COM/ENV/TD(97)41/FINAL, Trade Measures in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 27 May 1998.
2. Final National Priority List NPL Sites (1194 as of September 29 1998). Reviewed by the Basel Action Network. Categories and numbers included: Solvent/Chemical Recycling - 26; Oil Waste Recycling - 25; Battery Recycling - 20; Transformer Recycling - 12, Drum Recycling - 9; Metal Sludge Recycling - 8; Secondary Lead Recycling - 5; Wire Recycling - 5; Catalyst Regeneration - 2; Mercury Recycling - 1; Precious Metals - 1; Miscellaneous Recycling - 19.
3. Inventory of Sources of Dioxin in the United States, EPA/600/P-98/002A.