The Basel Ban: A Triumph Over Business-As-Usual

Basel Action Network
Jim Puckett
(updated 1 October 1997)

On 25 March 1994, the 65 Parties of the Basel Convention, led by the G-77 group of developing countries and China, took an historic step and voted by consensus for a full ban on all exports of hazardous wastes from the rich OECD (Organization for Economic Cooperation and Development) countries to non-OECD countries. The Basel Ban is to come into full force of international law on 31 December 1997. However, a handful of powerful countries and businesses continue efforts to sabotage this landmark agreement for the environment and justice.

INTRODUCTION
The Problem: An Impeccable Logic

"I think the economic logic behind dumping a load of toxic waste in the lowest wage country is impeccable and we should face up to that ... I've always thought that underpopulated countries in Africa are vastly under-polluted."

In 1991, this remarkable statement was found in a internal memo of World Bank Chief Economist Lawrence Summers and leaked to the world press. Whether or not the words were written as proposed policy or, as the author later claimed, simply to provoke collegial debate, they were enough to create a resounding outcry heard around the globe.

Then Environment Minister of Brazil, Jose Lutzenberger found words for the collective outrage in his written rebuke to the Bank: "Your reasoning is perfectly logical but totally insane...your thoughts [provide] a concrete example of the unbelievable alienation, reductionist thinking, social ruthlessness and the arrogant ignorance of many conventional `economists' concerning the nature of the world we live in."

If Mr. Summers is to be blamed, however, it would not be for deceit. His words were shocking for one simple, awful reason -- they were true. And as such, the words spoke volumes about the imperatives of the free market and its failure as a model for governance over our lives.

The economic logic of the export of hazardous wastes from the rich industrialized countries of the North to the poorer less-industrialized countries of the South had already become horribly clear to the global community before Mr. Summers wrote his infamous memo. Beginning in the mid-1980s headlines began appearing announcing the discoveries of barrels of mixed industrial poisons dumped on tropical beaches, and vessels laden with toxic trash plying the coastlines of developing countries searching for a port-of-call. These first "ships of death" were highly publicized harbingers of an extremely profitable trade that threatened to become epidemic.

Indeed, had it not been for a most remarkable, timely and concerted global response to criminalize the "impeccably logical" hazardous waste trade, by today it would have become an irreversible, flourishing "industry". By any estimate, the amount of waste trade observed since 1986, as frightening and harmful as it has been, was a mere ripple compared to the toxic flood that could have been unleashed upon the "vastly under-polluted".

Without collective international legal action taken on the basis of environmental protection, human rights, and common decency to bridle the forces of free trade, we would have seen a new form of waste colonialism. We would have witnessed an environmental apartheid where the poorer countries serve as custodians for the industrial excesses of the rich. We would have seen the poor succumbing to the "logical" choice of poison over poverty simply because starvation is a quicker death than cancer might be.

Instead, history records that the global community joining together to erect obvious and effective trade barriers for the sake of the environment and justice -- thereby closing the floodgates against a tide of waste awash in the free market. This was accomplished not only with individual national legislation and regional instruments banning waste imports, but finally, within a multilateral environmental agreement -- the Basel Convention.

EXPORTING A CRISIS
The Path of Least Resistance

Toxic waste, if left to a "free market," will follow the path of least resistance. Obeying an "impeccable economic logic," hazardous by-products of dirty industrialization inevitably move towards those areas with the least political or economic clout to resist them. In the absence of any legal restraints, wastes move down an "economic gradient", defined by the contrasting disposal costs in different locations. These costs are determined by many factors, including differing environmental legislation, infrastructure, labor costs, land value, and debt.

As waste disposal over the last 25 years has been increasingly restricted to land, with a succession of bans placed on the dumping of wastes in the seas , public pressure in industrialized countries against the landfilling and land-based incineration of hazardous wastes has grown dramatically. Although this pressure is often labeled disparagingly as a selfish, "not-in-my-back-yard" (NIMBY) syndrome, the fears of hazardous waste disposal are justifiable. All landfill sites leak and all incinerators release extremely dangerous air pollutants and toxic ash. In Europe, more than 55,000 sites covering between 47,000 to 95,000 square kilometers are already known to be contaminated by hazardous wastes. Countries such as the Netherlands have spent over a billion dollars to try and minimize and collect dioxin from incinerators but still have to contend with hazardous emissions and disposal of toxic ashes .

In rich, industrialized countries, public pressure against toxic waste generation and proliferation has resulted in the closure of some toxic waste disposal sites, actual or proposed clean-up of many, and the adoption of stricter regulations in the rest. All of these efforts have dramatically raised the costs of waste disposal. The cost of landfilling a tonne of hazardous waste in the US soared from $15 per ton in 1980 to $250 in 1989 . In the United Kingdom, the Confederation of British Industry estimated an increase of 150% in landfill costs from 1985 to 1991 . Costs of incineration have risen even more dramatically as more and more hazardous wastes are diverted from landfills to incinerators. The price of incinerating a tonne of hazardous wastes in the UK can be as high as 10,000 US dollars.

Meanwhile, the past 25 years have seen a dramatic rise in the quantities of hazardous waste subject to regulation. The European Union has recently adopted a new hazardous waste list with over 400 different waste streams listed . In the United States alone, the amount of hazardous waste leapt from 9 million tons a year in 1970 to 238 million tons in 1990 . While an OECD report expects the total hazardous waste volume in Europe to double from 24 million tonnes (in 1988) to 48 million in the year 2,000.

The lack of a preventative approach to waste management has led to more and more hazardous wastes, while an increasingly concerned and knowledgeable public has allowed fewer and fewer places to put them. The combined effect of these trends created an increasing pressure to export toxic waste.

Swapping Poverty for Poison

Likewise, there is economic pressure to import. The pressure meant to be put on industry and governments by the public in northern countries has had the unforseen effect of causing waste generators to seek to export the problem to the Third World and Eastern Europe. But it must not be forgotten that this pressure could have been contained were it not for the horribly disproportionate levels of wealth existing on the planet today. Due to an increasing debt burden combined with a recent fall in Third World agricultural and mineral commodity prices, less industrialized countries face terrible pressures to accept trash for cash.

The offer of hard currency in exchange for accepting hazardous wastes is one that many poorer debt ridden countries find tempting. Contracts offering many millions of dollars to debt-ridden governments have been commonplace. In 1988 when the government of Guinea-Bissau, one of Africa's poorest nations, briefly agreed to accept over 15 million tonnes of toxic waste for 600 million dollars -- four times its Gross National Product, the minister of Trade and Tourism explained simply, "We need money."

Suddenly for the first time, the "under-polluted" and "lowest-wage" countries had something new to sell -- a new cash crop -- their health.

THE EFFECT

The international scandal which followed the discovery of this new form of trade succeeded in holding a mirror of conscience and doubt before the faces of the northern industrialized powers. The hazardous waste trade disturbs both our physical and ethical well-being. It is a threat both to the environment and to global justice. Probably no environmental offense has demonstrated more clearly the unsustainable excesses of industrialization and consumerism, the undeniable link between environmental destruction and the global inequity in wealth, and the fallacy of free market dictates.

Moral Outrage

The dumping of hazardous wastes produced by rich industrialized countries on their poorer global neighbors offends the most basic precept of ethical foundation -- the "golden rule" -- do unto others as you would have them do unto you. When it was discovered that our own wasteful and hazardous industrial production methods were causing industrialized nations to "do unto others' what their own citizens refused to have done to themselves, the public in both victim and perpetrator countries were morally outraged.

In 1972, the Stockholm Declaration of the United Nation's Conference on the Human Environment stated it clearly in Principle 21:

"States have...the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction."

A free market in hazardous waste is an abrogation of this Principle -- the geopolitical application of the "golden rule". Putting a stop to waste trade would be a hallmark in the realization of political responsibility to act locally to respect and protect the global community.

Environmental Injury

The examples of actual dumping already witnessed in various parts of the world are often nightmarish stories of environmental devastation and occupational disease (see Box, "Exporting Anguish"). Apart from this clear and obvious damage, however, perhaps the most compelling environmental argument for ending exports of hazardous waste is that such trade acts in defiance of what all waste management experts agree is the real solution to the hazardous waste crisis -- waste prevention or clean production at source. The resolution of the crisis lies not in looking for new "hiding places" for hazardous wastes but by eliminating the hazards and wastes at the source. "The biggest misconception," says Joel Hirschorn, former Senior Associate of the US Congressional Office of Technology Assessment, "is that we have to produce toxic waste. And that is simply wrong."

The progressive closure of the global escape valves for cheap and dirty solutions to our waste crisis provides incentives for industry to internalize the very real costs incurred by the act of generating toxic wastes in the first instance. This internalization makes the introduction of clean production methods and the elimination of toxic wastes correspondingly more attractive.

A clear example of such powerful incentives at work was demonstrated in Germany, where the industrial use of toxic halogenated solvents was reduced from 180,000 tonnes in 1989 to 50,000 tonnes in 1992 following a German ban on hazardous waste incineration at sea in 1990. Suddenly, with the elimination of the cheap and dirty escape route industry was forced to deal with real solutions. To minimize the use of toxic solvents, industry began using innovative approaches such as ultrasound de-greasing, rapeseed oil and water based solvents.

POLITICAL RESPONSE
The Basel Convention: Legalizing Toxic Terror?

In June of 1987, following the intense outrage expressed by developing countries, the United Nations Governing Council authorized then Executive Director of the United Nations Environment Programme, Mustapha Tolba, to begin negotiations to prepare a global convention on transboundary movements of hazardous waste. This led, in March 1989, to 118 nations signing the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal. As of July 1997, 113 countries have now ratified the treaty.

The use of the word "control" in the Convention's title -- rather than prevention or prohibition -- was telling. During the negotiations leading up to the Basel Convention, the vast majority of nations made it clear that they wanted to ban waste trafficking entirely, particularly from developed to developing countries. Certain heavily industrialized countries, however, most notably the United Sates, fought to reject any such prohibition.

Thus the original Convention became primarily an instrument to monitor the transboundary movements of hazardous waste rather than prevent it. With the exception of a ban on exports to Antarctica, the Convention established only a weak control regime based on the principle of "prior informed consent" (PIC). Under such a regime, hazardous waste exports are not to take place unless the "competent authority" in the recipient country is notified in advance and gives written consent.

The efficacy of PIC was immediately brought into doubt when, on the eve of the signing of the Basel Convention, Gianfranco Ambrosini, an Italian waste trader who had just masterminded a shipment of waste from Italy to Djibouti, publicly scorned the treaty on Swiss television. Compared to other hurdles he faced in shipping wastes to the Third World, he said the acquisition of the signature of one governmental official, as required by the PIC provisions of the Convention, was no problem. (15) He was later proved correct.

Immediately following the signing, Greenpeace denounced the Convention as providing license to an activity which should have been considered criminal. Many developing countries refused to sign or ratify it. A very disappointed African group of states walked out claiming that they would not sign and would instead initiate their own treaty banning waste imports to Africa.

The South's Answer to Basel: Ban It

The Africans made good on their promise, and they were not alone. Having failed in the short term to achieve a global ban on waste trade from developed to developing countries, developing countries hastened to pursue national and regional avenues to the same ends. To date, these efforts include:

• The Lomé IV Convention: In December of 1989, the African, Caribbean and Pacific nations (ACP), now numbering 70, successfully concluded a waste trade ban with the European Union, which now numbers 15 member states, as part of their negotiations of the Lomé IV Convention. The agreement prohibits the European Union (EU) from exporting nuclear or hazardous wastes to the ACP states, while the ACP countries agreed to prohibit such waste imports from any country.
• The Bamako Convention: In January of 1991, in Bamako, Mali, member states of the Organization of African Unity adopted a treaty banning all forms of hazardous and nuclear waste imports to the African continent. The treaty also forbids import of products that have been banned for use in the country of manufacture. The Bamako Convention later went into force in 1996.
• The Central American Agreement on Hazardous Waste: In December 1992, six Central American nations, using the Bamako Convention as inspiration, also banned all imports of hazardous and radioactive wastes and of toxic substances not permitted in the country of manufacture.
• Association of South East Asian Nations (ASEAN): In September 1993, the Inter-Parliamentarian meeting of ASEAN voted for a regional convention to prohibit the import of toxic wastes into the region of South-East Asia. So far this initiative has yet to bear fruit, leaving this region vulnerable.
• The Waigani Convention: On the 16th of September 1995, the South Pacific Forum States adopted the Waigani Convention which prohibits each Pacific Island developing Party from importing all hazardous and radioactive wastes from outside of the Convention area. Australia and New Zealand are prohibited from exporting hazardous or radioactive wastes to all other South Pacific Forum Island countries.
• The Barcelona Convention Waste Trade Protocol: The Parties to this Mediterranean regional seas convention adopted on 1 October 1996, a protocol prohibiting the export of hazardous and radioactive wastes to non-OECD countries and for those Parties that are not members of the European Community are prohibited from importing hazardous and radioactive wastes. For the purposes of this protocol, Monaco is considered to part of the OECD and the European Community.
• National Bans: Many countries have enacted unilateral hazardous waste import bans. Colombia, for example, has a full waste import ban in its national constitution. And, of course, many have bans in law or policy as a result of the regional commitments cited above. In 1986, three countries had committed to ban the imports of hazardous wastes; by 1988, that figure had risen to 33, and by 1992, to 88. The total of import bans today, with the recent adoption of the Waigani Treaty, the Barcelona Convention Waste Trade Protocol, and the Basel Ban, is well over 100.

Basel: Convention to Unconventional Ban

Despite this remarkable legislative flurry in potential target countries and regions, the international waste trade of the 1980s which prompted the adoption of the Basel Convention continued unabated in the early 1990s. The reason was that the problem was not being dealt with at source.

As one would predict, in the presence of some import bans but with virtually no global export bans in existence, the toxic waste continued to follow the path of least resistance. A global paperwork regime (PIC) in the Basel Convention was not strong enough to withstand the economic clout of the waste trade. Such a regime was easily manipulated, corrupted, and circumvented. Likewise, in the absence of export bans with accompanying penalties for those responsible, any amount of import bans served merely to annoy a charging bull.

Rather then being "controlled" by the Basel Convention or stopped by the import bans, the observable waste trade shifted targets and pretext, but kept flowing. Waste traders were quick to move the wastes to those areas of the world where no bans existed, and, most significantly, they were quick to categorize all waste bound for export as destined for "recycling," not dumping.

Although such anecdotal data is hardly conclusive and probably represents only the tip of icebergs readily observed, Greenpeace recorded the following number of proposed or actual waste trade deals involving exports of hazardous wastes from the Organization for Economic Cooperation and Development (OECD) to non-OECD countries: 76 in 1989 , the year the Convention was signed, 118 in 1990, 113 in 1991, 285 in 1992, the year the Basel Convention entered into force, and 146 in 1993. Germany, the world's largest exporter of waste, increased its exports every year since 1988 until 1993. In 1994 the year the Basel Ban was agreed, the recorded trade in hazardous waste dropped considerably.

When Africans made it clear that its territory was off limits, waste traders shifted their targets to South America and the Caribbean. Just when many countries in South America began to enact import bans, the Berlin wall collapsed and provided new and nearby vistas for waste exporters. Almost immediately, Western hazardous wastes began to flood such countries as Poland, Rumania, Russia, Hungary, the Czech Republic, Ukraine, the Baltic States and Albania. Many of these states hastily erected waste trade bans to counter the waste invasion. Since that time, almost all of the waste trade which is easily observed involves exports from Europe, Australia and North America to the Continent of Asia.

First Conference of Parties: A Partial Ban

By the time the Basel Convention went into force and it was ready for its first meeting at the end of 1992, it was evident that the situation was still out of control. The Group of 77 (G-77) body of developing countries wasted little time in reintroducing the idea of a global ban into the Basel Convention. At the first conference of the Parties (COP1) which took place in Piriapolis, Uruguay in December of 1992, OECD countries were shocked by the force with which attending developing nations argued for a full ban.

The head of the Indian delegation, Mr. A. Bhattacharjya, summed up the sentiment in the room when he said, "You industrialized countries have been asking us to do many things for the global good -- to stop cutting down our forests, to stop using your CFCs -- now we are asking you to do something for the global good -- keep your own waste."

Knowing that they would be outnumbered should the issue come to a vote, opponents to the proposed prohibition scrambled furiously to compromise or delay the ban. These opponents could muster little support, however, even among many industrialized countries but they did manage to escape the meeting with only a rather contradictory partial ban in place. The Piriapolis meeting decided: 1) to ban those exports of hazardous wastes from industrialized to developing countries that were not going to be recycled, and 2) hazardous waste imports by developing countries of any kind must cease, and 3) the issue of recycling of hazardous waste needed further study to be presented to the next conference of parties.

At the time, the result was a huge disappointment to the vast majority of countries, but in hindsight it was better that the final ban did not get enacted at that time. At COP1 there were just 35 parties to the Convention. At COP2 there would be 65.

The Recycling Question: Dumping by Another Name

To avoid the stigma and scandal of waste dumping, waste traders were quick to embrace the "green" term recycling. This rhetorical make-over was particularly prudent because a trade characterized as "recycling" more closely fit the definition of waste being a "good" or a commodity and thus one subject to free trade. Furthermore, it was very easy to design a "further use" and thus a form of "recycling" for virtually any waste no matter how noxious, particularly in the context of needy developing countries.

Indeed, the percentage of total waste trade schemes that claimed a fate or pretext of recycling increased first dramatically and then steadily, according to Greenpeace records. From 1980 to 1988, only 36% of the schemes where the destination was reported claimed a further-use destination.

By 1989 this had risen to 76%. In 1990 it was 83%, in 1991 it was 87%, in 1992 it was 88% and in 1993 it had risen to 89%. Today, although the numbers of known waste trade schemes has dramatically reduced, the percentage is likely to be over 95%.

The head of the United Nations International Registry of Potentially Toxic Chemicals program in Geneva, Jan Huisman, summed up the trend as early as 1989: "Its a new fashion, a second generation of waste export. There is still quite a lot of effort going into waste "disposal," which is not exactly dumping, but which may turn out to be not very far from that."

Clearly the stumbling block for many at Piriapolis was the matter of toxic waste trade for recycling. To many, the export of hazardous wastes to provide both needed jobs and the transformation of such toxic wastes into useful products for the poor of the world sounded like a good thing. However, one needs only to visit these sites now mushrooming around the world, sample the air, soil, and water nearby, to know that this is not what developing countries seek in the way of technology transfer.

It was here that Greenpeace, which in the course of seven years has closely examined over 50 recycling operation in non-OECD countries, provided the greatest service to the issue. They brought the not so pretty pictures and chemical analyses to the pristine conference halls in Geneva. All operations so far observed fall roughly into two categories, "sham" recycling and "dirty" recycling. Both of these categories entailed dumping by another name.

In the case of "sham" recycling, a waste recycling technology is never seriously intended and the wastes are labeled as recyclables simply as a pretext to facilitate trade. In this category, wastes are generally received with payment for taking them and then are simply dumped, burned or used as fill material. For example, much of the mixed plastic waste exported to Asian countries has been spread in the open countryside. Other common examples include the burning of hazardous wastes as fuel or use in solid form as road building material. It was even proposed that solid wastes from the United States be used to raise the level of Pacific Islands in order to counter the effects of rising sea levels due to global warming.

Dirty recycling, although perhaps less blatantly fraudulent since some proportion of the waste is actually recuperated by a recycling technology, can nevertheless have equal or worse impacts on the health and environment of the recipient country. The real profitability usually derives less from the actual recycling than from the exporters avoiding the high cost of ensuring against, or liability for, occupational and environmental exposure at home. Often, as in the case of non-hazardous metals or plastic scraps, importers deal in wastes with a positive economic value, but often that waste is so contaminated that it qualifies as hazardous waste. Other scrap dealers are involved in the recycling of hazardous materials themselves, such as lead and cadmium, which are dirty operations wherever they take place. In every case, "sham" or "dirty," hazardous waste trade for recycling involves a significant transfer of pollution from rich to poor -- it is, toxic trade.

The Second Conference of Parties: A Full Ban

At the Second Conference of Parties to the Basel Convention, despite a powerful lobby effort to prevent it, what had for five years been the promise of the Basel Convention, became its pride. This time the G-77 refused to buckle under to any compromises presented by the United States, the EU, Australia, or Canada.

Presented repeatedly with various watered down proposals, the chair of the G-77, Dr. Nesiah of Sri Lanka stated, "These proposals have loopholes that would quickly widen. We would have a flood of movement from OECD to non-OECD countries -- from countries that can cope to countries that cannot." He said, "The G-77 will not negotiate on the ban. The only room for negotiation is the starting date."

At the end of the meeting, the OECD opposition was left stunned. They had not expected unwavering unanimity in the ranks of the G-77, nor form Eastern European countries and China. For the first time they felt like a powerless minority -- which in fact they were. The ban decision (II/12) was finally adopted by a consensus of 65 Parties. It banned all exports of hazardous wastes from OECD to non-OECD countries. For final disposal the ban was immediate, and for recycling destinations the ban would begin at the end of 1997.

Since the passage of the Basel Ban (as we shall refer to it), the number of known exports from OECD to non-OECD countries has declined dramatically. This is true despite the fact that the recycling ban is not to go into force until 1998. The numbers of exports seen to be leaving Europe have diminished considerably. Most of the waste trade that remains is metallic and plastic wastes of varying toxicity and quality transported from the United States, Canada, Australia to Asia for use in what are almost invariably dirty or sham recycling operations. Already, the Basel Ban has had a tremendous impact on actual waste trade. But the passage of the Basel Ban has even greater implications.

The Basel Ban: A Landmark in International Law

The Basel Ban stands as an impressive legal landmark for a variety of reasons:

• Non-OECD Solidarity: First, it was an initiative launched, sustained, and won by the G-77 group of developing countries (led initially by the African Group). It was this group of countries, with China, that provided the moral backbone. They were soon joined by allies found in Western and Eastern European countries. The unwavering solidarity of transition and developing countries to bridle the excesses of richer. more powerful countries for the sake of the global environment remains unprecedented to this day.
• Powerful NGO Role: Likewise, a very significant role was played by non-governmental organizations (NGOs) which are usually relegated to the sidelines of international political debate and decision making. The previously mentioned role of bringing case studies and data to the convention floor was particularly crucial.
• Restrictive of Free-trade: Despite being an unabashedly discriminatory trade barrier, the Basel Ban was passed by a consensus of 65 countries during an era noted for the proliferation of global free trade agreements (GATT, NAFTA, APEC etc.)
• Legally Binding: The Basel Ban was adopted as a legally binding instrument with criminal penalties for violators in a political climate of de-regulation and voluntary agreements.
• Defeated the Monied Interests: It was passed despite the total opposition of many powerful business lobbies such as the International Chamber of Commerce and many of the world's most powerful nations including the United States, United Kingdom, Germany, Australia, Canada, Japan, and France. These opponents not only disliked the precedent against free trade, but stood to profit tremendously if the huge economic liability for toxic waste could be cheaply exported.
• Recognized Recycling as a Problem: The great environmental significance of Decision II/12 was that it closed the recycling loophole through which more than 90% of exported hazardous waste was by then flowing. It recognized that the recycling of many wastes, and in particular hazardous waste, represents a perpetuation of the waste crisis, an further excuse for unsustainable consumption and not a real solution.
• Instrument for Clean Production: The Basel Ban, together with the London Convention ban on most forms of industrial and nuclear waste dumping in the seas, have closed some of the last global escape valves for dirty and wasteful production. By doing so, the Basel Ban, provides one of the first international legal incentives to put the days of waste disposal and control, rather than prevention, behind us. The Basel Convention is now poised to become the global leader in facilitating real solutions -- the use of clean production methods which utilize a minimum of toxic materials and create a minimum of waste.

ATTEMPTS TO UNDERMINE THE BAN

Such an obvious monument against the interests of a world order based on the economic dictates of Lawrence Summers and his ilk has not gone unnoticed, nor unchallenged. To this day, the Basel Ban remains under constant attack. As repeated efforts have so far failed to kill it outright, much is being said now to attack its credibility, legitimacy, and efficacy.

Sabotage Plans Revealed Immediately following the adoption of the Basel Ban, some of the countries that had voted for it, and even publicly agreed to abide by the decision, began to plot a strategy to weaken or reverse it. Misinformation was quickly spread to claim that it will stop all trade in recyclables. Some southern industrialists that stand to gain from importing hazardous wastes have even stated that the ban is a northern tool to impoverish the South by denying them cheap raw materials. Concerted efforts are now underway to break the non-OECD country solidarity, render the Basel Ban impotent by altering the definitions of waste or hazardous waste, or by punching loopholes in its legal underpinnings.

Australia and the United States (although a non-Party) are the most visible countries now working in opposition to the ban, while other countries like the United Kingdom, Germany and Canada are known to work more quietly. Soon after the Basel Ban decision of COP2, Australia sent diplomatic missions to their waste trading partners, India, South Korea, Philippines, Malaysia, South Africa, Japan, and China, specifically to discuss waste trade arrangements between the two countries. Many of these talks centered around the possibility of establishing bilateral agreements to trade in hazardous wastes, and the need for "capacity building" -- a not so subtle code word for a quid pro quo arrangement for waste acceptance.

In early 1995, a leaked United States State Department memo to the Interagency Committee on the Basel Convention laid out the action plan to defeat the Basel Ban. It called for the "US to work quietly on some issues and let other parties (e.g. Senegal) to take the lead." The US government was to "demarche Basel Party capitals... and international meetings...to promote US views on modification of the COP ban decision."

Another leaked State Department memo complained about the process of COP2, the secretariat of the Convention, and UNEP Executive Director Elizabeth Dowdeswell for "presiding over this lack of forum." The memo went on to state that "in an unexpected but welcome development ... Senegalese government officials responsible for trade and industry matters ...had become quite concerned about its effects on trade, development, and capacity building potential. Their counterpart of our Chamber of Commerce is keenly interested and intends to make $150,000 available to sponsor a seminar in early 1995 to further explore the various possible ramifications of the ban decision."

Dakar Workshop

If the US government and industry fronted by the International Chamber of Commerce (ICC) and the Bureau of International Recycling (BIR), had hoped and schemed that the March 1995 Dakar Workshop, entitled the "Global Workshop on the Implementation of Decision II/12" was to be the death knell for the Basel Ban, they were sadly disappointed. Despite the workshop being pre-stacked with industrialists that claimed to be impacted by the ban decision, not one government representative from a non-OECD country spoke out against the ban (the only one that did was from Germany).

Further, many of the participants clearly did not understand that the Basel Convention only regulates trade in hazardous wastes. Many had been led to the meeting on the basis of misinformation about the bans purported impacts on non-hazardous wastes such as scrap metals, paper, and textiles. At the end of all of the confusion, Denmark came to the rescue and stated that the real concern that everyone needed to address was the finer points of defining hazardous waste. Denmark offered to host a meeting to jump-start the process to create better definitions that could then more formally be taken up by the Basel Convention's Technical Working Group.

Third Conference of Parties: The Basel Ban Amendment

The next tactic of ban opponents was to claim that the Decision (II/12) alone without an amendment to the Convention was not really legally binding. Opponents clearly hoped that if the issue had to be voted on again, this time for an amendment, they would have another chance to create enough doubt and convince Ministers sympathetic to industrial and trade interests in key non-OECD countries to reverse the ban decision.

As a result, the Basel Ban had to be won twice. And the second time, due to an intensive lobby effort on the part of the ban opponents, proved to be more difficult than the first. Certain non-OECD governments, most notably India, Brazil, the Philippines (G-77 chair), and South Korea suddenly began to argue against the ban. About 30 industrialists from India came to the conference wearing blue badges reading "Recycle Now". At the end of a very divisive conference, however, thanks to full support by European Union countries and some powerful bully-pulpit interventions by Denmark, South Africa and Indonesia, a new decision (III/1) to amend the Convention based largely on the principles of Decision II/12 was adopted by consensus.

This Amendment will enter force when 63 (3/4) of the Parties that signed it ratify it. Although this is not expected to happen rapidly, in the interim there is tacit agreement that all previous ban decisions will be honored. Of course if ratifications are not forthcoming at a steady rate, this would send the wrong signal with respect to honoring international commitments. It is crucial therefore, that all Basel Parties ratify the Basel Ban Amendment at the earliest possible date. Already as of 1 October 1997, 16 ratifications have been deposited. Most significantly, these ratifications are all from OECD countries (Norway and the 15 member states of the European Union.

The Attack on Definitions

Having failed to win by attacking the ban head-on at COP3, opponents got busy with efforts to either redefine what is a waste or what is considered a hazardous waste under the Convention. Following the Basel Ban, therefore, technical discussions became grossly contaminated with politics, with science being manipulated for the sake of certain economic interests. Hazardous waste definitions, which were created for the purpose of controlling and minimizing wastes due to their propensity to cause environmental harm, were, due to the adoption of the Basel Ban, facing weakening attempts by the very same governments that helped create them. Rather than trying harder to eliminate hazardous wastes, some recalcitrant governments worked hard to eliminate waste definitions.

The efforts to attack the Basel Convention's definitions fall into two categories: Re-defining all materials that are bound for recycling destinations as non-waste, and de-listing certain hazardous wastes that are commonly recycled from the Basel listings, no matter how hazardous they may be.

Hazardous Waste Definitions

The fact that the fight over the ban quickly moved into the arena of hazardous waste definitions can be clearly judged just by the dramatic increase in participants of the open-ended Basel Technical Working Group (TWG) which was assigned with the task of elaborating the Basel Convention hazardous waste definitions. Meetings of the TWG, prior to the Second Conference of Parties, were attended by about 20-30 delegates. The participants list of the last TWG meeting held in September of 1996 named 159 delegates, 49 being from industrial organizations.

The urgent work of the TWG, begun soon after the Dakar workshop, and concluded in February of 1997, was to devise three lists of actual waste streams: An "A" list to include all wastes that are almost certainly to be considered hazardous by Basel Member States; a "B" list to include all wastes that are almost certain to be considered non-hazardous by Basel Member States; and a "C" List which will require further investigation to determine which list, A or B, they fall under.

The work of the TWG to further elaborate the existing Basel definitions was laudable and legitimate. It is important to provide greater clarity in the Basel definitions if the Convention and the Ban are to work smoothly. What was not laudable and legitimate however, was the effort to rewrite the Basel definitions so that wastes that were clearly deemed as hazardous under existing Basel parameters, somehow miraculously find their way onto the "B" list following the passage of the Basel Ban. This has been the result already with large scraps of such toxic metals as lead or cadmium which were placed by the TWG onto the "B" list despite their obvious hazardous characteristics.

Notwithstanding a few blatant manipulations such as these, the TWG battle proceeded apace with each side winning a few and losing others. By the end of the process it was clear that the effort at gutting the Basel Ban through manipulations of definitions did not succeed. However, constant attendance and vigilance on the part of Ban proponents at all future sessions of the TWG will be necessary to ensure against any further erosion of hazardous waste definitions.

Waste v. Non-waste

Another, far more subversive scheme to define away the Basel Ban has been quietly underway in the rich countries' club -- the OECD -- and in certain of their member states. This attempt, if successful, would indeed entail the evisceration of the Basel Convention, the Basel Ban, and the global effort to prevent waste colonialism on a massive scale.

In May of 1994, the Bureau of International Recycling (BIR), a global recycling business association, set up a legal fighting fund of US$250,000 for legal costs to challenge the Basel definition of scraps and residues as "waste". It was industry's strategy to call all recyclables "non-waste" or "secondary raw material" instead of "waste." By doing this, the industry hoped it will be able to perform a Houdini- like escape from the huge body of existing legislation both national and international, (including the Basel Convention) which all make reference to the term "waste".

So far, the BIR and their members have launched definitional challenges in the UK, Australia, and the European Commission to reclassify recyclables as "non-waste". However, the most important of the venues is the overarching work taken up by the OECD in their Waste Management Policy Group (WMPG). The OECD previously drafted the Basel definitions and remain very influential in global definitions of hazardous waste. The WMPG nevertheless was persuaded by their Business and Industrial Advisory Committee (BIAC) to take up the cause to undercut their own definitions. The work to prepare a guidance document for OECD governments to determine when a waste is really a waste is now in the final stages.

It is important to note that few OECD governments questioned the need to re-define what a waste was prior to the passage of the Basel Ban. Now a few of these same OECD governments suddenly find these definitions vague and inappropriate. The WMPG effort is funded by special extra-curricular donations of certain OECD member states, most notably Canada, the UK and Switzerland.

The OECD, while extremely influential, can hardly be said to be an open and democratic institution. While the OECD allows business participation in the WMPG in the form of BIAC, they allow no such participation from environmental or development oriented non-governmental organizations (NGOs). Nor does the OECD normally seek advice or participation from non-OECD countries, even though it is well known that the product of OECD work often ends up being of global influence and often adopted in international fora like the Basel Convention. Already, WMPG decisions on hazardous waste definitions, such as the concept of claiming lead and cadmium scraps to be non-hazardous, have been adopted by the Basel TWG.

The effort to re-define waste as "by-products" or "secondary raw materials" is revealed as a draconian attempt at de-regulation when one realizes that a recycling destination can be invented for any waste stream. Hundreds of examples have shown that human ingenuity in this area is without limit. It is estimated that over 95% of recent waste trade efforts involved some form of alleged further use or recycling. Thus, if wastes are suddenly deemed non-wastes simply because they are destined to be recycled, and since the Basel Convention and Basel Ban can only apply to hazardous wastes, over 95% of the Convention and Ban would quickly become meaningless.

It is hard to imagine that even the OECD governments would accept such an outcome because their own internal domestic legislation, based on regulating and controlling wastes, might suddenly become a casualty as well, rendering the last 20 years of effort in controlling wastes moot. But even short of outright definitional mayhem, the effort underway may very well succeed in muddying the waters, so that while definitions stay intact formally, a final "guidance document" will provide just enough ambiguity in interpreting the law that consistent application and enforcement of it becomes an impossibility.

Bilateral and Multilateral Agreements

In their closing statements to the Third Conference of Parties, Australia and Canada stated that their governments still believed that they reserved the right to utilize bilateral agreements allowed in Article 11 of the Convention for trade with non-parties, can be invoked to circumvent the export ban to non-OECD countries. This assertion was boldly made despite the fact that such a loophole was repeatedly rejected in all negotiations leading to both the Basel Ban Decision and Amendment. International law is only as good as the international will to uphold it. This will is largely determined by international prestige and image. If "waste cowboy" states such as Canada or Australia willingly flout the ban with such bilateral agreements it will be incumbent on the global community to condemn any such outlaw behavior.

Fortunately, most legal analysts cannot conclude that Article 11 was ever designed to be used in this way, nor did the text of the Ban Amendment Decision (III/1) state that this was possible. Indeed, in a letter to Basel Convention Secretariat Executive Secretary, Dr. Iwona Rummel-Bulska, dated 8 February 1996, Ludwig Kramer, Head of the Waste Management Policy Unit at the Directorate General of Environment, Nuclear Safety and Civil Protection (DG 11), stated that after legal analysis, "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 [the ban] in a way which is not foreseen by the Convention and are therefore not acceptable from a legal point of view."

Annex VII "Criteria" - Last Effort to Undermine Ban?

Even as the above attempts to undermine the ban seem to be headed for failure, another, even more dangerous attempt is now underway to cut out the heart of the ban. Ban opponents are seeking to make use of a loophole created in the adoption of the Basel Ban Amendment Decision at COP3. Rather than simply stating that the Ban applies to the export from OECD countries, Decision III/1 made use of an Annex (Annex VII) of countries to which the export ban applies. Utilizing an Annex, implies a potential list of countries and therefore seems to open the door a crack for future expansion beyond the limits of the OECD group.

As currently drafted, Annex VII only contains OECD countries, EU countries which are a subset of the above, and Liechtenstein (non-OECD) which managed to call for inclusion at the last minute of the negotiations. In the lead up to the Fourth Conference of Parties however, two additional non-OECD countries Monaco and Israel have formally proposed amendments to also be included in Annex VII. These moves, however motivated, have allowed Ban opponents the "Golden Opportunity" to call for "criteria" by which any non-OECD country can be admitted into Annex VII. While a call for criteria sounds reasonable on its face, if heeded, such a process would in actuality, be the beginning of the end for the Basel Ban.

Indeed, if we were to embark upon the path of allowing any country to join the "OECD group" by merely claiming some level of environmental standards, in essence we will have all time traveled back to the days of the noble but failed concept of Prior Informed Consent (PIC).

PIC did not work for hazardous waste due to the sheer weight of economic pressure that the trade in hazardous wastes can impose on developing and newly industrializing countries. The economic pressures to accept poisons in exchange for illusionary short term poverty relief have been enormous. These highly immoral pressures brought to bear on poorer communities around the world, fully justify a loophole proof ban as the only means to effectively eliminate the worst abuses of economically motivated waste dumping the exports from OECD to non OECD countries.

Furthermore, it is almost certain that criteria to determine the relative hazard of each and every waste trade proposal will be impossible to agree, let alone enforce. The task of establishing criteria for each and every possible waste management technology in each possible political and technological environment, once begun, will only justify further stalling on ratification and implementation of both the Convention and the Ban. If we thought that agreeing on refined definitions of hazardous waste were difficult, a working group on criteria for waste management technologies, capacities and infrastructure would likely take many years if agreement could be reached at all.

Of course, such a process must take into account the fact that technological capacity is only a very limited part of the equation in determining the risk and fate of imported hazardous wastes. Criteria for national legal and infra structural capabilities, and rights are even more important. These more intangible aspects include such varying issues as enforcement will and capability, public access to information, public rights to redress grievances, occupational health and safety statutes, liability laws, transport safety, industrial land use plans, emergency response capabilities etc. etc. etc.

It is extremely unlikely that a technical working group or any other body would be able to resolve these many questions and derive a universal standard. If they could, it is unlikely that the standard would be a high one rather than the lowest common denominator among diverse nations. And finally, even if it were possible to agree on a high standard, it could never be imposed on sovereign contracting parties. Once a country claims to meet a certain standard, how would that claim ever be enforced? The prospect of criteria being anything more than forgotten paper promises are very, very remote.

Finally, even if all of the above were possible, the "criteria" issue still entirely misses the main point with respect to the Basel Ban. The Basel Ban does not delineated the OECD group because of reasons of technological capability. In fact no nation has found an adequate technological solution to toxic waste once it is produced.

Rather the OECD group is differentiated from the rest of the world because it is a legally bound, closed group of nations, comprising the economic area that still produces the vast majority of toxic wastes and where the high costs of waste generation and disposal provide enormous incentive to export it for profit rather than prevent its generation at home. The Basel Ban became necessary because wastes which move from OECD countries to non OECD countries (regardless of technical capacity) violate the prime objectives of the Convention to ensure that both the generation of hazardous waste and its transboundary movement is reduced to a minimum.

The debate on the issue of the opening or closing of Annex VII is so significant that it threatens to dominate the debate at the Fourth Conference of Parties (COP4). It appears that the ban will once again need to be re-won yet a third time at that meeting by agreeing to close the Pandora's Box of Annex VII, locking it, and throwing away the key.

It is unlikely however that the efforts to sabotage the ban will cease even after the Fourth Conference of Parties. It not only stands in the way of those which can profit greatly by trafficking in hazardous wastes, but it also stands as a powerful precedent for those which would like to dispense with any restraints on free trade. It is expected that one of the last efforts at sabotage will involve challenging the Basel Convention and the Basel Ban under the World Trade Organization's free trade rules (see box). It is a certainty that it will be necessary for many years to come, to remain vigilant to ensure that the toxic waste crisis is contained and prevented and does not become yet another a tradable commodity in the era of globalization.

Conclusion: Towards an End to Toxic Trade

The international trade in hazardous wastes brought the world face to face with the failure of its economic models to responsibly govern human activity. Current economic models can never truly recognize values other than monetary ones (ie. justice, morality, dignity, aesthetics, family, mental and physical well being, environmental quality etc.). This inherent blindness permits a view that pollution is just another type of commodity rather than something to be eliminated.

Despite the fact that greed is a dominant human trait, any system which places monetary value above others, as do most businesses, as does the free market, can only present a very distorted, reductionist view of the world. From such a viewpoint, it is easy to justify using the vast reservoirs of non-monetary values as dumpsites where costs can be externalized -- pollutants of the human experience itself -- for the sake of monetary gain. A purely economic view of the world will always justify the practice of "smart" businesses externalizing the costs of toxic pollution no matter how immoral, unjust, or destructive to our health. A purely free trade will always be a toxic trade.

According to the absolutism of the free market economic model still being pursued throughout the planet today, the logic of toxic waste trade is impeccable. So, too, is the logic of exporting dangerous, even banned products. So, too, is the logic of exporting dirty technologies. It is all very logical, but clearly, something is horribly wrong with the picture. Since the beginning of recorded history all societies have found it necessary to devise laws to govern human inclinations which might impinge upon justice or quality of life. It is remarkable that in the age of globalization, there are those that believe that at the international level, legal instruments like the Basel Ban, can be dispensed with in favor of the rule of the marketplace.

At a time when malignancy is hailed as growth, depletion as consumption, destruction as development, poisoning as profit, the Basel Ban stands as a triumph of sanity over business-as-usual. But it would be dangerously naive to think that with the closing of the waste trade chapter, the phenomenon of toxic trade will be relegated to history. The next chapter clearly involves the wholesale export of an obsolete model of development and production. Rather than importing toxic waste, developing countries now seem to be lining up for what potentially is far more damaging. The governments of newly industrializing countries, intent on competing in a global economy, seem too willing to replace a fate of importing industrial pollution with a fate of being the home of the world's most polluting industries. This, too, is yet another form of toxic colonialism, a new means of profiting while being poisoned, a new form of unconscionable "toxic trade."

The best things in life are not free -- they just cannot be bought. These best things, such as a healthy planet, must be fought for relentlessly. We cannot afford to rest on the laurels of the Basel Ban. We must stay vigilant to ensure its full preservation and to ensure its ratification and implementation. And, while emboldened by this beacon, we must move swiftly to ensure that future industrial development of the South represents only the cleanest, most appropriate, technologies, and not a reenactment of a northern tragedy.

Jim Puckett was coordinator for Greenpeace International's toxics campaigns from 1989 to July 1996. Currently he is a founding director of the Asia-Pacific Environmental Exchange (APEX), an NGO based in Seattle, Washington dedicated to research, capacity sharing, and multilateral action for the clean development of the Asia-Pacific region.

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