Basel Ban Victory at COP4

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Basel Ban Victory At COP4! A report on the negotiations and results of the Fourth Conference of Parties to the Basel Convention Held in Kuching, Malaysia 23-27 February 1998

BASEL ACTION NETWORK


The Stage is Set -- Countries Line Up on Annex VII Expansion Issue

Coming to the Fourth meeting of the Conference of the Parties (COP4) to the Basel Convention, environmental NGO delegations of the Basel Action Network (BAN) and Greenpeace International knew that the most important issue of the meeting, and the most potentially destructive to the Basel Ban was the question of proposed amendments to Annex VII. The Basel Ban, which was adopted as an amendment to the Basel Convention at their last meeting (COP3, Decision III/1) effectively banned all exports of hazardous wastes for any reason from being exported from Annex VII to non-Annex VII countries.

The other large issue of the meeting -- the adoption of the hazardous waste list (List A) and non-hazardous waste list (List B) as Annexes, was, as predicted, much less contentious, receiving widespread support from industry and environmentalists alike. Remarkably, the business lobby did not weigh-in heavily on Annex VII, but instead seemed only concerned about the unopposed Hazardous Waste lists. This shift in emphasis by the business lobby can be read as either an admission that the currently traded hazardous wastes, revealed to be under the scope of the Convention is negligible or they simply decided to allow the industry dominated governments to front their usually very full agenda.

But for the environmental NGOs which had in the past fought long and hard for the Basel Ban, the proposals of Monaco, Israel and, at the last minute, Slovenia, to be admitted to Annex VII, raised the specter of an Annex VII "domino effect" expansion, which would rapidly render the Basel Ban meaningless. Annex VII as created in Decision III/1 was the group of countries which were forbidden from exporting to non Annex VII countries. Annex VII in Decision III/1 consisted only of member states of the Organization of Economic Cooperation and Development (OECD) and Euroepan Union (EU) countries and Liechtenstein, thus confining the hazardous waste exports allowable from these countries to that same list.

If the wishes of Monaco, Israel and Slovenia were granted, the only enforceable global dividing line (OECD group) between the richest, most industrialized countries and the rest of the world would be erased, and the Basel Ban would be transformed into an open ended agreement based perhaps on some form of unenforceable criteria for "environmentally sound management." In short, if non-OECD countries were allowed to join Annex VII, the ban would no longer be a ban, but an open ended, largely voluntary agreement.

Knowing the difficulty nation states have in denying specific named countries their sovereign right of choice, and knowing of the intense global lobby effort of powerful countries like the United States, Canada, Australia, and Netherlands, environmentalists had real concern entering the meeting. They feared that either countries would be allowed to "self-declare" membership to Annex VII, or a compromise would be struck allowing some form of "criteria" for Annex VII membership that would be developed by COP5.

On the first day of the week long conference, it was uncertain just how much support for expansion of Annex VII existed. What was known was that the European Union member states were entering Kuching with the shaky majority "common position" that at COP4 only Monaco should be allowed into Annex VII "for exceptional geo-political reasons." Indeed the case they made was that Monaco, similar to Leitchtenstein's relationship with Switzerland, shared a customs union with France. More importantly it was well known that Monaco had no intention of ever importing hazardous wastes for recycling or disposal. Despite the nominal "common position" of the European Union, it was known that certain EU member states despite having adopted it by consensus, were not happy with Decision III/1 as it stood. Netherlands and Germany had worked hard behind the scenes to argue for Annex VII expansion and had sought to ensure that the only mandate of the EU was that they would negotiate for no changes at COP4, leaving the door wide open for the development of Annex VII criteria and the possibility of additions at COP5. Further, the fact that the Presidency of the EU belonged to the UK and that the delegation was led by Lizette Simcock was cause for concern. The UK and Ms. Simcock had both long fought against the Basel Ban at previous COPs, raising fears that under UK leadership, the EU "common position" might break down in the course of the meeting. Finally, there was no doubt that Canada, USA, Australia, Netherlands, and New Zealand were strongly in favour of opening Annex VII in order to leave the ban more "flexible".

Arab League States Emphatically: No Additions to Annex VII

The Malaysian meeting President, Puan Rosnani Ibrahim, opened the business part of the meeting on Monday for general comments on the Convention. What followed was a clear laying down of the gauntlet by the Arab League, with each of their members present, Saudia Arabia, Kuwait, Qatar, Syria, Oman, Yemen, Tunisia, Egypt, Jordan, Lebanon, Morocco, one after the other, stating unequivocally that they rejected the principle of opening Annex VII for any additional membership or for the establishment of any criteria for its membership. They claimed further that such expansion attempts would violate the general obligations of the Convention and consequently destroy it. They were joined in these strong statements by Sri Lanka, Turkey and Cuba.

Creation of Contact Group -- Observers Locked Out

Following these statements, Puan Rosnani then made an unorthodox move to immediately create a "contact group" to deal with both the question of Annex VII as well as the adoption of the new hazardous waste lists A and B, without further discussion. Usually issues are discussed in plenary under their agenda point and when they are proved to be contentious are then moved to open-ended working groups. Later if necessary, very small closed contact groups might be created.

The Basel Convention Bureau however had apparently predetermined to launch a working group almost immediately and call it a "contact group." Most importantly, however motivated, and despite objections by China, Malaysia, and Qatar, a decision was made to close the contract group to all observers. No official reasons were given for this move to obscure transparency of the decision making process. Later, the European Commission attempted to reverse the closure but the attempt was rejected.

The effect of this was that many NGO and other observer delegates who had come from all over the world to witness and influence the most critical issue of the meeting were prevented from doing so. Fortunately however, numerous friendly delegates supplied NGOs with information about the internal proceedings of the Contact Group and additionally, it was agreed that official observer briefings would take place whenever there was something to report.

Chile Proposal Unhinges Solidarity of G-77

On the first day of the Contact group, Chile stated that they were in favor of a study to look into criteria for Annex VII expansion. Surprisingly the Chilean proposal for a study received vocal support from Denmark at this juncture of the meeting, raising concern that the former champion of the strict, no-exceptions ban was going soft. More alarming, was that Chile was joined by other G-77 countries, South Africa, Philippines, Brazil Argentina and at times, Malaysia.

These countries then got together and drafted a proposal entitled "Proposed Way Forward" which called for a study to commence following COP4 to assess the "implications and consequences of bringing changes to annex VII." A second paragraph which called for "the development of criteria and procedures for state parties to the convention proposing to be added to annex VII." The ploy of this move was clearly to start the determination of technical capacity for environmentally sound management criteria for possible Annex VII candidates at the earliest possible opportunity. Such a study, starting immediately without any time frame of when it might be applied posed a serious risk for the Basel Ban. While the second paragraph could be used as a bargaining chip, the first paragraph without a time frame would mean that the study could begin at once and as early as COP5 criteria for Annex VII expansion might be employed.

Four Options on the Table Reduced to Two

Looking at the proposals by Israel, Monaco, and Slovenia to enter Annex VII, the contact group started with 4 different options:

Option 1 would allow no additions to Annex VII. This position was supported by the Arab League, most of the African countries, China, Cuba, Sri Lanka, the Basel Action Network and Greenpeace.

Option 2 would allow any countries that wanted to be placed on Annex VII to be admitted. This position was supported in a Canadian "non-paper" prior to and during the meeting and was presumably supported also by Monaco, Israel and Slovenia, although no other country other than Canada was known to have vocally supported this position during the course of the meeting.

Option 3 called for the allowance of only Monaco. This option was supported by the European Union.

Option 4 called for the development of criteria to decide which countries could be placed on Annex VII. This position was supported prior to or during the deliberations of the Contact group by the United States, New Zealand, Australia, Brazil, Argentina, Chile, South Africa, and the Philippines.

At the close of Wednesday, options 2 and 3 had been rejected. This meant that self declaration by any of the three countries, Monaco, Israel and/or Slovenia were ruled out. While some countries saw the merits of Monaco's request, many Arab and African countries suggested that they could not allow Monaco as such an exception would make it appear that they were prejudicial to Israel. Others cited reasons that any further opening of the door to Annex VII would allow the countries working in continual bad faith (USA, Canada, Australia, New Zealand) to exploit the situation further. While the worst scenario of self-declaration was disposed of, Option 4 still remained as a very serious threat to the Basel Ban.

Fortunately, for the ban, many Arabic and African countries remained steadfast in reiterating that there should be no study, no criteria, no additions. China agreed, but softened the position somewhat by saying that certainly the Parties should entertain no additions until the Ban enters into force with the necessary ratifications. Currently the ban has been ratified by 16 Parties and needs 48 more to enter into force. This view received a lot of support.

However, a smaller drafting group without any G-77 members was formed and produced a document that was not reflective of the majority view of the contact group. The paper said that while there should be no country additions to Annex VII at COP4, there should be a study of impacts and possible criteria for Annex VII expansion to be presented at COP5. That paper was presented to the Contact group and was amended again following complaints by numerous countries that it was not inclusive of their viewpoint.

United Nations Environment Program Head Toepfer's Appeal: Ratify!

In the opening speech of Thursday's Ministerial session of the Conference, new UNEP chief Klaus Toepfer called for immediate implementation of the Basel Ban, and for the Parties to answer all of the remaining open questions with respect to the ban at COP4 so that countries can immediately begin the process of ratifications.. He also pointedly praised the strong support of NGOs in the Basel Convention negotiations. Following Toepfer's speech the long list of country speeches commenced. The most favorable with respect to the Basel Ban were those given by Indonesia, Tanzania and Mauritius. The worst were delivered by Australia, New Zealand and Canada. These countries not only supported Annex VII expansion but also raised questions of World Trade Organization compatibility. Additionally they revisited the discredited notion that Article 11 of the Convention (which allows bilateral and multilateral agreements outside of the Convention) can be used to circumvent the ban.

Final Plenary Battle Cry -- No Changes Before Entry into Force!

On Friday morning the Contact group chairs, Mr. Marco Bulleti of Switzerland and Mr. Ibrahim Sow of Senegal finalized a draft decision for the final decision of the full plenary of Contracting Parties. The "Proposed Draft Decision Regarding Annex VII for the Consideration of the Plenary" was presented as UNEP/CHW.4/CRP.13. It was presented featuring the following key operative paragraphs:

Decides at this time to leave Annex VII unchanged [until the amendment contained in decision III/1 enters into force]; Further decides 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, including technical elements, that would highlight issues related to Annex VII. Brackets on paragraph 1, Indicate Undecided Language

At the same time Basel Action Network circulated a position paper which read as follows:

No Action on Annex VII Before Entry into Force! Reasons: a) It is inappropriate to amend an amendment until such time as it enters force and is shown not to be working correctly. b) By raising doubt about the efficacy of the amendment before entry into force, through the launch of a study about the consequences of changing it, many countries will be given an excuse not to ratify and implement it. c) Annex VII does not represent a list of technologically advanced countries. In fact any technical or other criteria that could be devised for Annex VII expansion could be shown to be criteria which most OECD countries fail to meet. Some of the worst hazardous waste recycling facilities in the world still exist in OECD countries. Rather, Annex VII identifies a group of countries that possess the capability and responsibility to fulfil the Convention obligation of waste management self-sufficiency through waste minimization. d) The ban issue has dragged on for far too long. By keeping this debate going, Parties will continue to waste valuable time for work that could be done regarding liability, clean production, illegal traffic etc. Parties must keep their commitments made at the last two COPS, and allow the amendment to enter into force before debating it further.

What followed was a very dramatic finish to what until the final day was a rather stagnated impasse. President Rosnani Ibrahim opened the discussion on the paper and was immediately deluged with the push of buttons and the waving of country signs from delegates wishing to take the floor.

Most countries expressed their opinion that it was inappropriate to amend an amendment that had not yet entered into force. Why change something that has been agreed until it has had a chance to succeed or fail, they argued. Further many noted that as some countries had either already ratified the amendment or were in the process of doing so, they would be forced to go back and restart their efforts. Some delegates declared that uncertainty over what any country was ratifying if the lists could be added to freely before entering into force was a real problem. Others reminded the Parties that the Convention required self-sufficiency and waste minimization and opening Annex VII or even considering it was in conflict with those goals.

Most of the countries taking the floor, argued for removal of the brackets and the words "at this time" in Paragraph One. In addition many called for removal of the words "including technical elements" in Paragraph Two. "At this time" was seen as contradictory to the time reference in the bracketed text. The "technical elements" reference seemed to many to be too pointedly moving toward the development of technical criteria for environmentally sound management.

On the other side of the issue, Canadian Ambassador for the Environment John Fraser railed against the notion that Annex VII would be locked shut until entry into force. In an intervention that was more a tantrum than an argument he claimed that the views of his delegation were being ignored and that the attempt by this Conference to "bind" the decisions of the next COP were unacceptable. He complained that the Parties would be forced to wait an indeterminate period of years before any further action could be taken. He demanded that the bracketed text be deleted and the words "at this time" be retained. Following that intervention, Fraser left the Conference room. Australia, New Zealand, and Israel also took the floor in support of various permutations of his position. South Korea voiced the opinion that Paragraph One should be deleted entirely.

The President Proposes a Compromise

Just before the lunch break, Puan Rosnani Ibrahim offered a compromise for lunchtime digestion. She proposed removing the words "at this time" and the bracketed text, leaving this statement as Paragraph 1: "Decides to leave Annex VII unchanged."

Lunchtime lobbying was furious. When the Parties reassembled, it became evident that several of the Parties that had been wavering in the middle of the issue, had moved to the side of no action before entry into force. This was probably due to the fact that the morning session had made it apparent that it was more than just the Arab league that was in support of this position. In addition, China played a very influential role in persuading countries to move to what was clearly shaping up to be the majority position.

After hearing numerous interventions supporting a reinstatement of the bracketed phrase: "until the amendment contained in decision III/1 enters into force", President Puan Rosnani Ibrahim made another proposal. She stated that there appeared to be a consensus for the following text: "Decides to leave Annex VII unchanged until the amendment contained in III/1 enters into force." This announcement was received with spontaneous and loud applause. The president then announced that this then appeared to be a consensus and thus the decision is now adopted. Even more applause followed this rather abrupt closure.

Last Gasp for those Seeking Loopholes, the EU Flip-Flops

Immediately, Australia and New Zealand and Israel protested that there was not a consensus and the sudden bringing down of the gavel was not appropriate. Israel noted that while there was certainly a lot of applause, there was not in their view, a consensus. They asked pointedly what the Secretariat's position was with respect to the definition of consensus. Without answering that question, Puan Rosnani Ibrahim decided to re-open the discussion with the implication that the decision was unadopted. This reversal was met with a splatter of applause from the USA delegation which up to that point had not made a peep.

Later it was revealed that Ms. Lizette Simcock of the UK had pushed European Commission delegation head, Ms. Ruth Frommer into a panic by claiming that the language was not consistent with the European Union common position (that no changes would be made at COP4). Indeed, Ms. Simcock could be seen in these final minutes very obviously running around the front of the Conference hall conferring with various European delegations, trying to convince them that the language under consideration was incompatible with the EU common position. Presumably this view received enough support by other EU member states that Frommer felt obliged to make her ill-fated, embarrassing intervention. Ms. Simcock apparently believed or had hoped that the EU would not have their hands tied with respect to changes that might be possible in subsequent COPs.

Call for a Vote Threatened

Following the re-opening of debate on CRP.13, several Arab countries took the floor and voiced great dismay at the President's reversal. Saudia Arabia, in a diplomatically veiled threat of a vote call, stated that if there was not a consensus, there nevertheless was a vast overwhelming majority and they appealed on the president to "resort to the rules of procedure." Other delegations such as Jordan, Tanzania, Tunisia, Syria, and Benin supported the Saudia Arabia position, some even making use of the "V" word.

Next the European Commission after a strong counter appeal by EU member states, Denmark and Sweden, claimed that they would withdraw their proposal for insisting on the inclusion of the words "at this time". This encouraged other delegations to then ask why the few remaining problem countries could not simply make a reservation and note it in the report of the meeting. At that point the President appealed on the Parties to accept the previously adopted text for final adoption with countries making their objections known in the final report. Hearing no further objections, the decision was adopted to long and loud applause.

In a sour-grapes speech which is becoming their norm for meetings of this kind, Australia took the floor to state that they would think long and hard before ratifying the decisions. New Zealand made the statement that despite the fact that they were not involved in hazardous waste trade, they nevertheless viewed the decision as a "matter of profound disappointment". Israel on the other hand was gracious in defeat, saying that although "the time was not ripe" for their proposal they would continue to respect all the decisions of the Conference of Parties.

Conclusion

It is the view of the Basel Action Network (BAN), that the final result of the meeting is just one step away from perfection.

First, the hazardous waste lists A, and B were adopted as legally binding annexes to the Convention. This added clarity with respect to which wastes are covered within the scope of the Convention, defuses the most vociferous industry argument and one which they asserted repeatedly in recent years -- that nobody knew what the ban was banning. Indeed, following the meeting, the Federation of Malaysian Manufacturers' representative, Lim Cheng Sang, said that industries should be happy with the lists as they clearly define what constituted hazardous waste and what did not. "Malaysia imports a lot of raw materials...for its industries. We were afraid that these raw materials would be affected by the ban. Now it is clear that these metal scraps will not be banned," he said.

With respect to the most important issue of Annex VII expansion, environmental interests achieved an option second best to one which would have avoided launching any study. The real danger that a study can be used as a lever to pry open the door to Annex VII expansion was highlighted by Denmark in their final statement.

"Denmark fears that the mandate hereby given to the Working Group might be misused by certain delegations to serve as a means for undermining the adopted ban on exports of hazardous wastes from Annex VII to non-Annex VII countries, practically speaking from OECD to non-OECD countries...Denmark will within the Working Group put in all of our efforts to secure that the mandate given will not be misused to undermine the adopted ban and the environmental aims of the Convention."

The Basel Action Network shares the concern of Denmark. It will be vital that environmental NGOs such as Greenpeace and BAN remain vigilant and participate fully in the development of the study. It is particularly important for environmental NGOs to demonstrate that even hazardous waste recycling that can be performed in relatively controlled conditions, only perpetuates toxic production and works in conflict with the hazardous waste minimization principles of the Convention.

The best result of the decision of COP4, is that barring more acts of bad faith whereby Parties return at COP5 and attempt to reverse Paragraph One of the Annex VII decision, the Basel Ban will likely remain untouched for at least 7 years. That estimate is based on a likely number of years before entry into force (4-5 years), plus the likely time between that event and the next scheduled COP (1-2 years), plus the additional time that would elapse if that COP decided to develop criteria, before the completion of the criteria (2-3 years) and its later adoption at a still later COP.

In these 7-10 years, more and more countries will enact implementing legislation as they ratify the ban, locking country positions into place, and further allowing waste markets the necessary time to adjust to the ban.

In the future, the Basel Ban must be strengthened, not weakened. The Ban was only designed to eliminate the worst abuses of a despicable trade. An unfair trade that threatened to make toxic colonies of countries thoughout the Southern Hemisphere and in Eastern Europe. We have now closed those floodgates for at least 7 years. In the final press conference, President Rosnani Ibrahim paid tribute to the progress that had already been enjoyed by passage of the Basel Ban. "We would not be where we are now had the ban not been adopted in 1994," she said. The Basel Action Network asserts that this is true and pledges to push further for all countries to take even more dramatic steps to prevent the global generation and release of hazardous wastes.