BAN Annotated Agenda

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Annotated Agenda and Summary Recommendations For the Fourth Conference of Parties to the Basel Convention
Prepared by the Basel Action Network
Kuching, Malaysia -- February 23-27, 1998

Summary Recommendations

1. No Expansion of Annex VII

Parties must keep their commitments and reaffirm the original intent of Decisions II/12 and III/1 and not allow the reversal of the most significant environmental achievement since the UNCED Rio Conference. The decision to ban the export of all hazardous wastes from OECD countries was already passed twice by consensus. In both cases open ended lists of countries were rejected as an option and the strict OECD/non-OECD distinction was chosen as the only enforcable ban option. Those that would sabotage the ban know that the thread that holds the ban together is the strict membership requirements of the OECD bloc. And opponents of the ban conveniently forget, that regardless of the adequacy of the disposal or recycling process, it can never be considered environmentally sound management for rich, high-waste producing countries to export their wastes to poorer countries to avoid the costs of preventing those wastes at source. As the bloc of countries that enjoy the most wealth and produce the most waste, the OECD enjoys a capability and bears the responsibility to minimize both the generation and the transboundary movements of hazardous waste in accordance with the goals of the Convention.

2. Affirm No Use of Article 11 to Circumvent Ban

It must be affirmed that Article 11 can have no bearing on the Ban Decisions (II/12 and III/1) agreed by consensus by all parties. Such exceptions to use bilateral or multilateral agreements were specifically ruled out during the negotiation of these decisions. If any exceptions to a strict ban were to be allowed they would have been included in the ban decision.

3. Adopt Hazardous Waste Lists A and B as New Annexes

The hazardous waste lists A and B and the mechanism for continuing to adjust those lists should be adopted without further detailed debate. These lists should be seen as augmenting Article 1, paragraph 1, (a) of the Convention and should be adopted as new annexes according to Article 18. In adherence to the necessary application of the precautionary principle, exceptions to List A as noted in the chapeau should not be at the discretion of the exporting country and export should not be allowed until the Technical Working Group has made a collective decision that the waste in question is or is not hazardous waste.

4. Adopt Decision in support of Rapid Ratification of III/1

A Decision taking note of the progress of the Parties in implementing Decision III/1 and "strongly appealing to all Parties to Ratify the Amendment adopted by III/1 at the earliest date" must be adopted by the COP. This decision was already approved by the Ad Hoc committee.


Annotated Agenda

Note: Text in italics denotes the official Secretariat Provisional and Annotated Agenda. Text in regular text denotes annotations and positions of the Basel Action Network. A *indicates a very crucial agenda point.


Item 1. Opening of the Meeting

There will be a special events/cocktails in the evening.

Item 2. Adoption of the Agenda

Item 3. Organization of the Meeting

According to the usual rotating procedure of the conference it is likely that a Party from the Asian and Pacific Group will be elected to preside over the conference and a Party from the African Group will be Rapporteur.

Item 4. Implementation of Decision III/1: Amendment to the Basel Convention

Absence of Decision in support of ratifying III/1

* We are concerned about the absence of the Decision adopted by the Ad Hoc Committee (found in (UNEP/CHW.4/32) that reads:

"The Conference of Parties may wish to:
a) take note of the progress made by Parties in effectively implementing Decision III/1;
b) Welcome the ratification by [European Union Member States and Norway] of the Amendment adopted by Decision III/1;
c) Strongly appeal to Parties to ratify the Amendment adopted by Decision III/1 as soon as possible to enable the early entry into force of the Amendment."

This decision should be added at the outset of the discussion on III/1.

a) Outcome of the work of the Technical Working Group on lists of wastes and the applicable procedure for their review or adjustment (Decisions III/1 and III/12)
UNEP/CHW.4/2 (Draft Position Paper on Hazard Characterization)
UNEP/CHW.4/3 (Consolidated lists of wastes and the applicable procedure for their review or adjustment)
UNEP/CHW.4/4 (Wastes Placed on list C awaiting classification)
UNEP/CHW.4/Inf.2 (Report of the 12th session of the Technical Working Group)
--The parties are invited to adopt the Draft Position Paper on Hazard Characterization and Classification of Wastes within the Framework of the Basel Convention (UNEP/CHW.4/2)

The Draft Position Paper describes the deliberations to determine what commonly produced and traded wastes are to be deemed hazardous under the Basel Convention's Article 1, paragraph 1 (a) definition. Although the environmental interests lost important battles, such as in a failure to get toxic metals scrap such as lead and cadmium deemed a hazardous waste, and while their remains ambiguity in some listings, great progress toward practical application has been made. The Technical Working Group and the informal sessions which contributed to it, deserves praise for delivering workable lists which takes the framework definitions provided in the Convention's Annex I and III, and elaborates these into practical listings.

The lists A and B should be adopted as an amendment to the Convention to supplement the existing annexes I and III. COP4 should not be a place for more discussion on specific entries.

The case where the exporter determines that a List A waste is not hazardous:

It is extremely important for there to be exercise of the precautionary approach with respect to any exceptions to list A that are noted in the chapeau. Both of these chapeaus in lists A and B correctly adhere to the proper use of Annexes I and III. Thus in our view, both chapeaus should exist on these lists. Exceptions at the discretion of the exporting country on List B (ie. Deciding that a List B waste is in fact hazardous) are in conformity with Article 1, paragraph 1 (b) of the Convention.

However exceptions to List A (where a waste can be deemed not hazardous) cannot be allowed at the unilateral discretion of the exporting country. Such use of the chapeau would make a mockery of the entire listing exercise and potentially subject countries to wastes which they would prefer were never exported to them without even notification. It would also allow exports of wastes which have already been flagged as hazardous without any control, and without any kind of objective peer technical review.

Rather those countries which wish to make use of the chapeau over List A must bring the case of that particular waste stream back to the Technical Working Group (TWG) for example by placing that waste on List C. Until that review is completed and a collective determination is made, the waste in question will not be allowed to be exported.

There are areas in the Draft Position Paper (UNEP/CHW.4/2) which seem to hold very dangerous views in opposition to the precautionary approach and indeed are misreadings of the text of the Convention. These statements can only be read with great confusion or real concern. In paragraphs 22-24, the report tries to lay out a scheme for dealing with the case where an exporting Party, for whatever reason, decides that a waste on list A is not hazardous by reference to Annex III. That being the case, paragraph 23 then states that the waste is not hazardous waste, and...

"as far as that country is concerned, the Basel Convention control procedures will not apply unless the waste in question falls under Article 1, paragraph 1 (b) of the Convention as applied in the regulations of the countries of export, transit or import. Although there is no explicit requirement in the Convention, it is clear that the exporter or the Competent Authority of the State of export will provide all required relevant information to other competent authorities about the waste in order that they can decide whether or not they agree with its classification as not hazardous and so determine whether or not Basel Convention control procedures apply to this particular movement of the waste."

These statements are, in our view, erroneous and dangerous misreadings of the Convention. Any transboundary movement of hazardous waste, by definition involves more than one Party. Thus control procedures of the Convention cannot be assumed to not apply, just because one Party (the exporter) believes they can derogate from the normal list A designation and consider that waste non-hazardous. What the draft paper argues for here, is a very dangerous situation wherein the exporting country has more power and precedence in re-defining wastes as non-hazardous than other Parties and thereby can unilaterally determine whether a control procedure would apply. They would have more power and precedence in that determination than the countries of import or transit would have, not to mention the collective decisions of the Convention. This was never meant to be the case in the Convention.

Referring to any exceptions as being possible in Article 1, paragraph 1 (b) as stated in the paragraphs 22-24 is illogical because if a country implements the Basel lists and transposes them into their own legislation then the waste in question will naturally be considered (at least as described) as hazardous by domestic legislation. Thus it can be seen that Article 1, paragraph 1 (b) hazardous waste for any Basel Party, automatically includes List A. Thus, legally, agreement from the import and transit countries, that the particular List A waste in question is not hazardous, must be obtained prior to export. However in practice it would be prudent and precautionary to establish a peer reviewed procedure within the TWG by which such chapeau exceptions by use of demonstrating that a waste is not hazardous according to Annex I and III are discussed and a collective decision is made prior to export and disposal. In no way should the decision on delisting a hazardous waste be left to the unilateral discretion of the exporting country.

The case where a Party considers a waste to be hazardous that is not on List A:

The TWG should also examine the more common scenario of a case where a waste is not listed on List A, and is perhaps listed on List B, yet a certain Party considers the waste to be hazardous waste by right of Article 1.1.b. The following procedures should then apply:

If that Party is the exporter, then all of the normal Basel obligations and control procedures will apply pursuant to Article 4, paragraph 1 (b) and (c), as well as the Basel Ban.

If the country is an importer or transit country then they must, pursuant to Article 3, "inform the Secretariat of the Convention of the wastes...considered or defined as hazardous under its national legislation and of any requirements concerning transboundary movement procedures applicable to such waste [ie. "Prior Informed Consent" or ban]. The Secretariat shall forthwith inform all Parties of the information it has received..."

In the case of a Party with a hazardous waste import prohibition, all other Parties must be informed, pursuant to Article 4, paragraph 1 (a). Then the exporter has the obligation not to export that particular waste pursuant to Article 4, paragraph 1 (b) which clearly states that "Parties shall prohibit or shall not permit the export of hazardous wastes [as now defined by Article 1, paragraph 1 (b)] and other wastes to the Parties which have prohibited the import of such wastes, when notified..."

Or as the case may be, if the Party is an OECD country (subject to the Basel Ban) and has not prohibited the import of such wastes, then the exporter must apply the control procedure [PIC] to the waste pursuant to article 1, paragraph 1 (c).

The above procedures are the correct ones in our view. No matter how difficult it might be, under the Convention, competent authorities have the obligation to prevent uncontrolled exports of wastes they consider non-hazardous to countries that consider them to be hazardous.

--The Parties are invited to adopt the consolidated lists A and B of wastes (UNEP/CHW.4.3) and agree on how to consider these lists within the framework of the Basel convention as well as the applicable procedure to review or adjust the lists of wastes;

Adopt the lists A and B

* The lists A and B and the procedure for their review and adjustment should be adopted and the TWG should be praised for their work. Lists A and B are not replacements for Annexes I and III, with respect to Basel hazardous waste definition pursuant to Article 1 paragraph 1, (b), but are supplementary to them. The lists A and B should be considered as a new Annex to the Convention (see Section 5 of agenda) and a Decision should be passed that until and after the new Annex enters into force, that the lists are considered valid and legal supplements to Annexes I and III.

--The Parties are invited to consider the wastes placed on list C (UNEP/CHW.4/4) and request the TWG to review these wastes as a matter of priority for placement of those wastes on list A or list B;

Agree.

(b) Guidance elements for bilateral, multilateral and regional agreements or arrangements (Decision III/1);
The Conference of the Parties is invited to consider extending the mandate of its Technical Working Group and giving a mandate to the Consultative Sub-group of Legal and Technical Experts requesting these groups to cooperate closely in further elaborating the draft guidance elements (UNEP/CHW.4/33);

The Technical Working Group prepared some rather bland elements for the consideration of the Parties. They can hardly be blamed however, as the mandate in this case is confusing. The issues regarding Article 11 have much more to do with legal issues than they do technical ones. It is not a useful exercise for technical guidelines or obligations to be delineated here, as these, according to Article 11 "should not derogate from the environmentally sound management of hazardous wastes and other wastes as required by the Convention." Thus the technical or other obligations of bilateral/multilateral agreements are no different than those of the Convention and its amendments. And if those are not well understood, they should be dealt with under a different mandate than "bilateral, multilateral and regional agreements."

It is a good idea therefore, to give a mandate for the subgroup of legal and technical experts to do what work is necessary in clarifying the use of Article 11. What is needed is clarity on what is a legally appropriate Article 11 agreement, and what is not, with an elaboration of which motivations are appropriate for entering into them. Further, it is useful to review existing Article 11 agreements to determine which are in conformity with the Convention and which might not be. The existing document is not yet very useful from that standpoint.

Article 11 is not an exception to the Basel Ban:

* Paramount to the legal question of what is the appropriate use of Article 11, is the need for a clear statement saying that with respect to the adoption of Decision II/12 and Decision III/1, Article 11 cannot apply to exports of hazardous wastes from OECD to non-OECD countries.

Although legal experts maintain that the possibility to use Article 11 to circumvent the ban is not legally correct, it is well known that certain countries are still claiming the "right" to do so. It is important that the Parties reiterate what they have agreed by both ban decisions and restate why it is not possible now, to twist the Convention, and allow something fundamentally different than the letter and spirit of the two ban decisions.

If an Article 11 bilateral agreement was allowed as an exception to the ban it would have been included in the decision as an expressed exception. It was not. Such exceptions were proposed at both COP2 and COP3 by Australia and Canada and both times were completely rejected in the course of the negotiations. That is why such an exception is not stated in the text of either decision (II/12 and III/1).

If any party tries to use Article 11 in this way after such schemes have been twice rejected, it is an act of bad faith which could readily lead to the decay of the entire Convention. Indeed such acts of bad faith could also be used to justify exports for final disposal, or to Antarctica even though these prohibitions are also clearly stated in the Convention and its body of decisions.

The placement in the Convention of Article 4A, immediately after Article 4 can be considered as installing an obligation for Parties in addition to the general obligations laid down in Article 4. Article 11 does not, nor was it ever intended to relate in any way to the new Article 4A. Article 11 is designed primarily as an exception to the obligation laid out in Article 4, paragraph 5 -- the prohibition on trade with a non-Party, and are only acceptable as long as such agreements are no less environmentally sound than the provisions of the Convention. The ban will be a provision of the Convention once it enters force. The ban will thus be an inseparable part of the requirement for environmentally sound management.

Rather, the reference to Article 11 agreements in the fourth sub-paragraph of paragraph 3 of Decision III/1 is in regard to the situation when a non-OECD country wants to conclude a bilateral agreement with another non-OECD (ie. Namibia exports to South Africa) country or to an OECD country (ie. Bangladesh exports to USA). Or, Article 11 can also be used when an OECD country wishes to conclude a special arrangement with another OECD country (Canada and USA). Such arrangements may be necessary in the short-term to facilitate an environmentally motivated, rather then economically motivated, form of waste trade, particularly between parties and non-parties. For example obsolete pesticides discovered in Niger may be exported to Denmark for de-chlorination or storage.

The European Union, consisting of a majority of OECD states to which the Decision III/1 export ban applies, met on 6 October 1995 and concluded that Article 11 could not be used in such a manner. This was not an elective choice on the part of EU states, but a legal opinion with applicability to all Parties to the Convention. This position is laid out in a letter from Mr. Ludwig Kramer, head of unit of European Commission's Directorate-General on Environment, Nuclear Safety and Civil Protection to Dr. I. Rummel-Bulska, Executive Secretary of the Basel Convention on 8 February 1996:

"It is clear that bilateral, multilateral or regional agreements or arrangements between Parties listed in Annex VII and Parties or other States not listed in Annex VII, when allowing for hazardous waste to be exported from the first to the latter, would circumvent the legal requirement of Article 4A in a way which is not foreseen by the Convention and are therefore not acceptable from a legal point of view."

Although the document under review (UNEP/CHW.4.33) is meant to be technical in nature, it is crucial for the reader and the Parties to know what the actual scope of Article 11 can be. It must be clearly stated that in light of decisions II/12 and III/1, bilateral agreements can only apply for the trade in those Basel wastes traded between OECD countries, those traded between non-OECD countries and for exports from non-OECD to OECD.

Delete Reference to Economics and Costs in Developing Principles

Finally there is a section of the paper, 3 (e), which implies that cost and economic efficiency are worthy considerations when developing principles of waste management: "Basic Principles will vary from country to country recognizing that cost and economic efficiency are considerations in developing a waste management strategy."

Cost should never be considered a "technical guideline" to determining "environmental soundness." "Cost" and "economic efficiency" are the very criteria which motivates the worst forms of waste trade that necessitated the Basel Convention and the Basel Ban. Such criteria can be called the "cheapest way" principle and should be condemned. The sentence above should be deleted.

Item 5. Proposals for Amendments of Annexes and Adoption of New Annexes;

UNEP/CHW.4/6 (Amendment of the Basel Convention - Proposal submitted on behalf of the European Community)
UNEP/CHW.4/7 (Amendment of the Basel Convention - Proposal of Chile)
UNEP/CHW.4/16 (Amendment of the Basel Convention - Proposal of Morocco)

These three amendment proposals should be joined, made as simple as possible by a legal expert, adopted and ratified along with Decision III/1 at the earliest possible date.

UNEP/CHW.4/8 (Amendment of the Basel Convention - Proposal of Monaco)
UNEP/CHW.4/9 (Amendment of the Basel Convention - Proposal of Israel)
UNEP/CHW.4/15 (Amendment of the Basel Convention - Comments by the United Republic of Tanzania, Bulgaria, Peru, Zambia, Syrian Arab Republic, Indonesia and Seychelles)

Annex VII Expansion Proposals

* The two proposals to amend an amendment (Decision III/1) that has not yet even entered into force, stand as potentially the most destructive or divisive of the meeting. Hopefully these proposals will be gracefully denied or withdrawn early in the proceedings as they threaten the very foundation of the most significant environmental achievement of the Convention, and indeed the global community since the UNCED conference -- the Basel Ban (Decisions II/12 and III/1).

The Basel Ban was adopted twice by consensus. Both times, the concept of an open-ended list was explicitly rejected. Consequently, there will never be a consensus of Parties that wishes to now allow for voluntary expansion of Annex VII to non-OECD countries thereby allowing such countries to be used as disposal sites for OECD countries. Such a proposal will simply undo the ban and the 7 years of diplomacy to achieve it.

Primary Industry Concern of Ban (Definitions) Has Now Been Rationalized

What was agreed at COP2 and COP3 and the subsequent Dakar Workshop was that the ban would become acceptable, even to industry opponents, once the definitions were clarified so that trade in legitimate recycling of non-hazardous wastes would not be harmed. Now with that clarification of definitions accomplished, it is well understood that the ban will only prevent the worst abuses of hazardous waste trade and in fact will curtail very little currently traded wastes. Yet ban opponents are still not satisfied and it appears they will not be, until they completely undo the ban and undermine its real functions: preventing the deluge of toxic wastes still being produced in OECD countries (over 90%) from engulfing the rest of the world; and serving as an incentive to finally minimize hazardous waste generation at source.

OECD Strict Membership Requirement Hold Ban Together

Those that would sabotage the ban in order to avoid waste minimization efforts at home know that the thread that holds the ban together is the strict membership requirements of the OECD bloc. Pick away at that thread and the entire ban unravels. No amount of criteria and paper promises invented by the Basel Parties can ever be imposed or guaranteed. If the OECD divider is erased, would-be waste traders can rely on the lack of any international enforcement capability or authorization on the part of this or any Convention, to assure the re-establishment of a free trade in hazardous wastes. At that point, just as we were beginning to witness in the late 1980's, the brute economic pressure of a free hazardous waste market will ensure that the poorest countries of the world become the waste colonies for the rich.

Threatening Basel with WTO

Indeed, some opponents of the ban have even turned to using free trade argumentation in opposing the ban. The Dutch, the US and the Canadians are all currently citing alleged incompatibilities of the Basel Ban with the rules of the World Trade Organization (WTO) as arguments to dismantle a strict, no exceptions ban. This new tact is seen as a desperate argument upon closer examination. In fact, upon analysis, the WTO rules are imcompatible with not only the Basel Ban but with Articles 4.5, Article 4.1 (a) Article 4.1(b), Article 4.8 and 4.9 of the Basel Convention itself. Does anybody believe that the WTO will be able to throw out the entire Basel Convention? Moreover WTO rules are incompatible with provisions of the other regional waste trade agreements including the Bamako Convention, the Waigani Treaty, the Central American Agreement etc. And in addition, the Montreal Protocol, CITES Convention are also seen as incompatible. And these last two agreements are ones which the USA, Dutch and Canadians support. It is well known that incompatibilities exist with numerous multilateral environmental treaties. But those closely following the issues of harmonizing trade and environmental treaties fully expect that agreements made multilaterally will stand. Once the above information is fully understood, the WTO argumentation is seen as nothing more than scare tactics designed to turn the heads of developing countries that are sensitized to issues of trade discrimination.

The Fallacy of Technological Promises or Criteria

As the goal for dismantling the ban is so clearly to eliminate the OECD/non-OECD distinction, it is expected that those few countries that still seek to undermine the ban will propose that criteria be established for the expansion of Annex VII to ensure that the receiving country has the adequate technical capacity to take their poisons. The beauty of the word "criteria" is that it sounds so reasonable, even while being absolutely unenforcable and toothless.

But ban opponents that make this technical capacity argument make a very dangerous leap away from their Convention obligations. Regardless of the abilities to manage wastes of the receiving country, all countries, and we would argue particularly developed, high-waste producing countries are obligated to: manage their own wastes on their own territory (Basel, Article 4, 2, (b)); to ensure that the transboundary movements of hazardous wastes are reduced to a minimum (Article 4, 2, (d)); and to ensure that the generation of hazardous wastes is reduced to a minimum (Basel, Article 4, 2, (a)).

In recalling the words rationalizing the ban:

"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."

It is important to note that this paragraph does not refer to "disposal or recycling operations" in developing countries, but rather to "transboundary movements" (trade) in hazardous waste to them, as constituting the likely risk, and justifying the OECD to non-OECD ban.

In other words, the above paragraph cannot simply mean that developing countries have insufficient technology or infrastructure for the environmentally sound management of hazardous waste. Although that is most often the case as developing countries have significantly less resources to minimize risks, it can be argued that once produced, the environmentally sound management of hazardous waste does not exist anywhere in the world. In fact, a hazardous waste recycling facility that does not pollute the environment or pose a risk to workers and nearby communities, cannot be found. If developing countries believe that rich countries like the United States, Netherlands or Germany can safely manage their own waste they need only talk to the thousands of citizen activist groups that have sprung up to fight hazardous waste recycling and treatment facilities in those countries. Indeed the USA, the richest country in the world, still has over 38,000 potential or actual so-called superfund sites where contamination is severe and where cleanup is estimated to cost many billions of dollars. Many of these horribly contaminated sites exist due to very recent hazardous waste recycling operations. It is due to public pressure in opposing hazardous waste operations in the the OECD, that so many of these dirty recycling operations are now relocating to non-OECD countries.

But even if we overlooked the fact that hazardous waste management is never environmentally sound, the most important concern with respect to the "movements of hazardous waste" and their being unlikely to constitute "environmentally sound management" that justified an OECD to non-OECD ban is conveniently ignored by ban opponents. This is the fact that regardless of what level of technical capacity a non-OECD country might have, it is NEVER environmentally sound management for a rich, high-waste producing country to export their wastes to a poorer country to avoid the costs of preventing those wastes at source.

Any economically motivated waste trade equates to a strong disincentive to prevent waste generation at source. And all modern governments and waste experts agree that waste prevention and minimization is the most important principle of waste management. As the bloc of countries that enjoy the most wealth and produce the most waste, the OECD enjoys a capability and bears a responsibility to minimize both the generation and the transboundary movement of waste in accordance with the goals of the Convention. Those that argue to expand Annex VII or allow bilateral agreements to circumvent the ban, pointedly overlook this paramount waste minimization principle which is at the heart of the raison d'etre of the Basel Ban and indeed the Basel Convention.

OECD Bears Responsibility Above All Others to Minimize and Keep Their Own Waste

In conclusion, let the Parties be reminded that the OECD distinction, as arbitrary as it may sound to some, was not invented by environmentalists. In fact the OECD, by creating their own club of wealthy, industrialized, nations and excluding others, enjoys many benefits in their mutual agreements. But now when the community of nations reminds the OECD that their membership and wealth also entails responsibility, they cannot back away from those obligations. The OECD countries have a responsibility to minimize all generation and trade in hazardous wastes and particularly to non-OECD countries. The Parties must once again reaffirm a strict, no exceptions, OECD to non-OECD ban. They must not in this age of continued environmental collapse, turn back the clocks and unravel the most significant environmental agreement since the UNCED Rio Conference. Both the Monaco and Israel proposals to amend the amendment should be withdrawn or denied for the greater global good.

Item 6: Consideration of the report on capacity building activities within the Convention

(a) Establishment of Regional or Subregional Centres for Training and Technology Transfer regarding the management of hazardous wastes and other wastes
UNEP/CHW.4/20 (Implementation of Decision III/19 on the establishment of regional or sub-regional centres for training and technology transfer)

Emphasize Clean Production

Parties should be encouraged to give generously to these resources. Yet, ultimately, the only valuable training will be that which emphasizes clean production and not "band-aid approaches." There are still far too many so-called experts that either don't really know what Clean Production is, or simply give it the "lip service" while putting the majority of available resources to end-of-the pipe technologies. All technology transfer should emphasize clean production technologies and not end-of-pipe treatment, or recycling of hazardous wastes.

The most fundamental principle of Clear Production is Toxics Use Reduction. As long as toxics go into products they are almost certain to re-emerge at some point in the life-cycle as toxic wastes. Thus all countries should avoid the acceptance of new investment on their territory of hazardous technologies that produce hazardous products and wastes. One of the most hazardous industrial sectors of all is the hazardous waste recycling sector.

Further, we would ask that funds be provided for more NGO involvement in these Centres, in both the development of the programs and as participants.

(b) Training and Seminars related to the Basel Convention (Decision III/20)
UNEP/CHW.4/24 (Training and Seminars related to the Basel Convention)

Seminars on the Basel Convention have proven invaluable. However, NGO participation in them has been limited. Money from the Trust Fund should be available for representatives of international and regional environmental NGOs that need them to attend these meetings as well as to participate in developing the programs for them.

(c) Current and planned technical assistance activities including for the implementation of Agenda 21 (Decision III/21)
UNEP/CHW.4/25 (Technical Assistance under the Basel Convention including the implementation of Agenda 21)

The secretariat should consider more actively involving or referring Environmental NGO expertise as consultancies in the numerous technical assistance programs in which they are involved.

Item 7. Consideration of the report on legal matters

(a) Liability and Compensation (Decision III/2)
UNEP/CHW.4/12 (Outcome of the work of the Ad Hoc Working Group of Legal and Technical Experts)
UNEP/CHW.1/WG.1/5/5 (Report of the 5th session)
--Request the Ad Hoc Working Group to make all efforts possible to finalize the draft Articles of the Protocol, making use of informal meetings where possible, in order to present it for consideration and adoption by the fifth meeting of the Conference of the Parties to the Basel Convention.

It is taking far too long to produce a protocol on Liability and Compensation. A strong protocol is vital as a self-enforcement mechanism against illegal or irresponsible hazardous waste trade. If informal meetings are planned, these should not exclude environmental NGOs.

(b) Emergency Fund (Decision III/3)
UNEP/CHW.4/27 (Emergency Fund)
--Request the Consultative Sub-group to keep these issues on its agenda

It is difficult to comprehend how this fund remains unestablished after all of this time. It has continually been postponed at each susequent meeting. It is time the Conference of Parties takes responsibility for what might take place in an emergency situation and provides funds and a mechanism for a rapid response to an emergency situation which might arise from a legal or illegal movement of hazardous wastes.

(c) Monitoring the implementation of and compliance with the obligations set out by the Basel Convention (Decision III/11)
UNEP/CHW.4/26 (Monitoring the implementation of and compliance with the obligations set out by the Basel Convention)
UNEP/CHW/LSG/2/4 (Report of the Consultative Sub-group of Legal and Technical Experts on the work of its second session)
--Request the Consultative Sub-group to continue its step by step approach to examine the relevant issues related to the establishment of a mechanism or procedure for monitoring implementation of and compliance with the Basel Convention with a view to recommending, as soon as practicable, the best way to promote full implementation of the provisions of the Basel Convention including whether or not such a mechanism or procedure would be required, and, to the extent appropriate, what its design might be.

Hello.

(d) Illegal traffic in hazardous wastes and other wastes (Decision III/5)
UNEP/CHW.4/14 (Report on Illegal Traffic in Hazardous Wastes and Other Wastes)
--This issue was discussed at the Open-ended Ad Hoc Committee for the Implementation of the Basel Convention where several delegations expressed the opinion that this topic should be given higher priority within the process of implementing the Basel Convention. A set of activities is proposed to the Conference of the Parties to prevent and monitor illegal traffic effectively, including adoption of the form for confirmed cases of illegal traffic (UNEP/CHW.4/14).

Agreement with all activities. However much more recognition should be given to the role of NGOs with expertise in this issue in identifying and investigating illegal toxic waste trade. NGOs should be more involved in training programs on this subject.

(e) Bilateral, multilateral and regional agreements or arrangements (Decision III/9)
UNEP/CHW.4/22 (Decision III/9 A Bilateral, Multilateral and Regional Agreements or Arrangements)
UNEP/CHW.4/Inf.12 (The Basel Convention and Regional Agreements or Arrangements Concerning the Transboundary Movements of Hazardous Wastes)
--Request Parties to report all known Article 11 Agreements and for the Secretariat to prepare an updated list [paraphrased]

There are several bilateral, regional and multilateral agreements missing from this report. To be added are the Bamako Convention, Lomé IV Convention, Central American Agreement, USA-Mexico agreement, USA-Canada agreement, Barcelona Convention Protocol. The final list should include a focal point person for further information on the agreement.

(f) Competent Authorities and Focal Points (Decision III/7)
UNEP/CHW.4/13 Designation of Comptetent Authorities and Focal Points

The list needs to include e-mail addresses and each and every party must be listed.

Item 8. Consideration of the report on information exchange activities

(a) Instruction Manual (Decision III/16)
UNEP/CHW.4/5 (Draft Instruction Manual on the Control System for the Transboundary Movements of Hazardous Wastes and Other Wastes)
--A revised version of the Instruction Manual has been prepared with the assistance of the Finnish Government and Parties are requested to approve it for immediate use and to report to the Secretariat on their experience in its use.

Manual Fails to Integrate the Basel Bans

Unfortunately this Manual has not fully integrated Decisions II/12 and Decision III/1. From the beginning the text fails to acknowledge the most important information without which a user of the manual could cause great trouble -- the prohibitions that the Convention has imposed. There is more than one control procedure now operable in the Basel Convention. There is PIC and there are bans. There is a ban on all hazardous waste exports for final disposal to non-OECD countries (Decisions II/12, III/1). There is, since 31 December 1997 a ban on the export of all hazardous wastes for recovery operations (Decisions II/12, III/1). There is a ban on all exports to Antarctica (Article 4, paragraph 6).

We find it a serious omission that these prohibitions are not stated at the outset of a Basel "User's Manual." They should be explained immediately in Section 3 "General Description of the Control Procedures". In fact one does not find reference to the ban until Section 5.3. And there is no mention anywhere about the prohibition to Antarctica. There should be no argument that these obligations of the Convention should be considered integral and of great importance to the text of the manual, and not omitted or tacked on to Section 5. Argumentation that decisions are not binding on the Parties is very dangerous considering that it is through Decisions that all of the business of the Convention takes place, starting from the first Decision made -- I/1 (Establishing the Rules of Procedure).

Basel Definition of Waste is not to be Ignored

Our attention was also drawn immediately to section 5.5 from a statement found in 2.1 regarding "what is a waste." 2.1 points out that national definitions differ from state to state about what is a waste. However the text, together with 5.5 (bullet 2) implies that states have the right to decide what is a waste and what is not a waste.

The Basel Convention has already defined waste as "substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law." Disposal is then defined as any Annex 4 destination. This destination list is a minimum and only via Article 1, paragraph 1 (b) can countries add to that definition. Parties cannot delist wastes by virtue of national definitions of waste that are not as comprehensive as those of the Basel Convention.

When a waste is legally defined as hazardous by only one Party

Further, in section 5.5, paragraph 3, we find another error which is quite serious. Here it states that if a waste is legally defined as hazardous only by the state of import, then the notification duties are to be undertaken by the State of import. This makes no sense at all as the importer can hardly know about a shipment unless the exporter holding the waste before the transaction notifies the importer. It makes even less sense if one proceeds as the manual states and the importer relies on the checklist in 4.2.

Principle of Self-Sufficiency, not Proximity in the Convention

Finally we also disagree with the second stated goal of the Convention found in the Introduction of the Manual. In the second bullet of the main objectives of the Convention, the "proximity principle" is mentioned as being an objective, but in fact this principle is not found in the text of the treaty. Rather the Convention maintains a "principle of self-sufficiency" with respect to hazardous waste prevention and management (Article 4, paragraph 2, (b)).

(b) Transmission of Information (Decision III/17)
UNEP/CHW.4/18 (Implementation of Decision III/17 of the third meeting of the Conference of the Parties on A Transmission of Information)
UNEP/CHW.4/18/Corr.1
UNEP/CHW.4/23 (Decision II/12 of the Second Meeting of the Conference of the Parties)

Reporting Record of Parties Needs Improvement

In general the reporting efforts of the Parties have been very poor. The secretariat will have to get much more aggressive in ensuring that the information is forthcoming.

There is no reason why only 81 out of 111 parties have designated focal points and passed that information on to the Secretariat.

In order to properly implement the Convention, the Secretariat must know and transmit the hazardous waste definitions that individual countries possess that might be different and augment the Annexes of the Basel Convention (Article 1, paragraph 1, b). We have yet to see such a thorough listing.

The Secretariat needs to provide a complete list of all countries that have banned the imports and/or exports of hazardous wastes (3b, I/ii). This list is vital in order to implement the Convention. Yet to date we have not seen a thorough list. Contrary to what is stated in UNEP/CHW.4/18, UNEP/CHW/C.1/3/4, information provided in regards to Decision II/12 does not fulfil the informational requirements of paragraphs 2c and d of Article 13 of the Convention. There is no comprehensive list that we have seen at the Secretariat which should include all countries with national and regionally agreed bans, distinct from II/12 implementation.

The lack of reporting by both the Parties and the Secretariat on the actual export and import of hazardous waste (3b, iv) is very poor. It is so far from being close to the real amounts that such data is only useful anecdotally. Hopefully this will change once the ban is fully implemented and there is less shame in reporting the few remaining waste trade transactions.

Reporting on the environmental and human health effects of hazardous waste disposal operations (3d) is also very poor. This is not acceptable. If problems are not reported, they will never be solved and communities and environments will continue to suffer at the hands of negligent government officials.

Likewise, reporting on waste generation is extremely poor with only 19 Parties responding out of now 111. This is a shocking percentage. A prerequisite to reducing waste is knowing how much and where it is being produced.

UNEP/CHW.4/Inf.7 (Consolidated Report on the Implementation of Decision II/12)

This report is extremely useful with respect to the countries that have responded. However from a statistical point of view (ie. how many countries have banned waste trade) this is very incomplete. For example, reference to the bans imposed by the Bamako, Lomé IV, Central American Agreement etc. seem to be overlooked. All Parties need to respond and contribute to this very useful report and should not fail to report their obligation under regional treaties.

UNEP/CHW.4/Inf.10 (Reporting and Transmission of Information under the Basel Convention

This report was not made available.

--For the timely preparation of the compiled and summarized information by the Secretariat for the relevant meetings of the Parties, the next being the Fourth Session of the Open-ended Ad Hoc Committee, it is absolutely crucial that the Parties submit the information and data as required according to the provisions of Articles 13 and 16 of the Convention.

Agree.

(c) Establishment of an Information Management System on Wastes (IMS) of the Basel Convention (Decision III/18)
UNEP/CHW.4/19 (Implementation of Decision III/18 on the Establishment of the Information Management System on Wastes (IMSW) of the Basel Convention)

The necessary financial resources should be provided to the Secretariat for the regular updating of the newly established data bases under the Convention in order to comply with emerging needs in relation the implementation of the Convention ,both within the Secretariat and by the Parties, especially in relation to the work to be undertaken through the regional centers.

Agree.


Item 9. Consideration of the report on technical matters

(a) Preparation of draft technical guidelines on hazardous wastes: Physico-chemical treatment and Biological treatment (Decision III/13)
UNEP/CHW.4/10 (Draft Technical Guidelines on Hazardous Wastes: Physico-chemical treatment D9 and Biological treatment D8)
UNEP/CHW.4/Inf.4 (Draft text of the Technical Guidelines on Physico-chemical treatment D9 and Biological treatment D8)
The draft text of the technical guidelines on hazardous wastes: Physico-chemical treatment and Biological treatment prepared by the Technical Working Group is presented for adoption taking into account further revision of the text the Technical Working Group may wish to make.

No comment.

(b) Hazardous waste minimization (Decision III/13)
UNEP/CHW.4/30 (Hazardous Waste Minimization)
--The Conference of the Parties is invited to consider the work done until now on waste minimization and decide on the further course of action to strengthen this activity, in particular by requesting its Technical Working Group to pursue its work on the selection of hazardous waste streams susceptible to cleaner production approaches.

Agree.

(c) Proposed work programme of the Technical Working Group for 1998 and 1999-2000
UNEP/CHW.4/11 (Proposed work programme of the Technical Working Group for 1998 and 1999-2000)
--The Conference of the Parties is invited to take note of the proposed activities of its Technical Working Group and consider extending its mandate to enable it to carry out these proposed activities identified as important by the Technical Working Group, including proper allocation of resources.

Agree.

Item 10: Consideration of the report on international cooperation under the Convention

(a) Cooperation with UN bodies, specialized agencies and regional systems and organizations, and others (Decision III/26)
UNEP/CHW.4/21 (Cooperation with UN bodies and regional systems and organizations, and others)

Better Cooperation with NGOs Encouraged

It is hoped that the Secretariat will make efforts to work closely with, and reach out to other NGO organizations, for example, with and through the Basel Action Network -- a new coalition of small groups around the world concerned about implementing the Basel Convention and the Basel Ban. More joint activities should be encouraged. NGO participation in meetings should be ensured by providing funds for travel and expenses to attend these meetings as observers.

UNEP/CHW.4/29 (Cooperation with the World Customs Organization)
UNEP/CHW.4/31 (Cooperation with the OECD)
UNEP/CHW.4/Inf.6 (Report on progress with the separate identification of hazardous wastes and other wastes in the Harmonized Commodity Description and Coding System)

No comment on these papers necessary.

(b) Cooperation between the Basel Convention and the activities undertaken at the global level leading to the development of the legally binding instrument on trade in hazardous chemicals including the Prior Informed Consent (PIC) concept and Persistent Organic Pollutants (POPs) (Decision III/27)
UNEP/CHW.4/17 (Cooperation between the Secretariat of the Basel Convention and the activities undertaken at the global level leading to the development of legally binding instruments on trade in hazardous chemicals (PIC and POP)
--In order to ensure that the development of a legally binding instrument on the PIC procedure is consistent with and does not overlap with the provisions of the Basel Convention, Parties are invited to request the Secretariat of the Basel Convention, under the guidance of the Technical Working Group, to cooperate with the relevant organizations in this respect. Parties are also invited to consult with their respective national bodies on this matter. Furthermore, the Parties are informed on the international action to reduce or eliminate releases and emissions of Persistent Organic Pollutants.

Agree.

Item 11. Consideration of the report on institutional, financial and procedural arrangements and consideration (Decision III/28) and adoption of budget for 1999/2000

UNEP/CHW.4/28 (Implementation of Decision III/28 on Institutional, Financial and Procedural Arrangements and Draft Budgets for 1999-2000)
--In order to assist the Conference of the Parties to agree on a budget for the Implementation of the Basel Convention and the Technical Cooperation Trust Fund to Assist Developing Countries for 1999 and 2000, the Secretariat has prepared three alternatives, taking into account respective requests of Parties.

Money needs to be provided in a fund for NGOs to participate in relevant meetings of the Basel Convention as observers. Currently it is impossible for organizations other than very large, NGOs to be able to afford attendance at Basel meetings and training workshops.

Item 12. Other matters

UNEP/CHW.4/Inf.8 (Report of the third session of the Open-ended Ad Hoc Committee for the Implementation of the Basel Convention)
--Conference of Parties should follow the Ad Hoc Committee decision UNEP/CHW.4/Inf.9 (Memorandum of Understanding SBC/OECD Environment Directorate). The Conference of the Parties may wish to take note of the deliberations of the Open-ended Ad Hoc Committee for the Implementation as reflected in the report of its third meeting (UNEP/CHW.4/Inf.8), including the presentation of draft decisions for the Conference of the Parties.

Agree, particularly for the Decision on Implementation of III/1. This must become part of the COP4 body of decisions.

--Furthermore, the Conference of the Parties may wish to take note of the Memorandum of Understanding between the Secretariat of the Basel Convention and the OECD Environment Directorate (UNEP/CHW.4/Inf.9).

Not available

Item 13. Adoption of the decisions and of the report of the meeting

The Open-ended Ad Hoc Committee, at its third session (23-27 June 1997), prepared draft decisions for the Conference of the Parties (UNEP/CHW.4/32) which are expected to be considered at the Conference of the Parties. The High Level Segment of the Conference of the Parties may wish to adopt the decisions and the report of the meeting.

We hope to agree.

Item 14. Closure of the meeting

Agree.