A Victory for Environment and Justice: The Basel Ban and How it Happened
By Jim Puckett and Cathy Fogel
Greenpeace International, 1994
On March 25, 1994, in Geneva, Switzerland, the 65 parties to the Basel Convention took an unprecedented and historic step, and adopted a consensus decision for a full ban on all transboundary movements of hazardous wastes from the 24 rich, industrialized countries of the Organization for Economic Cooperation and Development (OECD, Mexico joined in April so there are now 25 members) to other states that are not members of the OECD. The ban is immediate for wastes bound for final disposal, and takes effect at the beginning of 1998 for all hazardous wastes that are said to be destined for recycling or recovery operations.
The Basel Ban decision actually signifies two victories. The first was the obvious: an end to the sad chapter of industrialization where industries in rich countries were able to exploit the weaker regulations and infrastructure of poorer countries to avoid the responsibility for minimizing waste and hazards at home. The significance of the Geneva Decision was that it finally recognized and closed the recycling loophole through which almost 90% of the hazardous waste was flowing. After 1998, hazardous waste traders will no longer be able to justify hazardous waste exports by sending them to sham or dirty recycling operations in Eastern Europe or the South. For the first time in international law the Basel parties took a clear decision that hazardous waste is not a "good" suitable for free trade, but something to be avoided, prevented and cured, like a disease or a dangerous plague.
The second victory was the decisive breakthrough for global environmental democracy achieved by an unwavering coalition of Northern, Southern, and Central and Eastern European countries. The majority of 120 countries in support of a total ban did prevail against the buying power of a rich and powerful minority opposed to a ban. Even though a vote was never necessary, it was a case of "one country, one vote," where the less powerful countries were able to hold their own against the pressure of the most powerful countries of the world. There was little evidence of rich countries being able to buy any country off to break the solidarity through influence trading, aid packages, or other bribes. The unprecedented solidarity of the victim countries, consisting of the Group of 77 or G-77 countries (which includes most developing countries) together with China and Central and Eastern Europe was vital. Not one non-OECD country was persuaded that hazardous waste importation was a good idea, and thus it was difficult for ban opponents to undermine or water down the intent of the initiative. As a result, the environment won. This second victory -- for global democracy and environmental justice -- may, in fact, prove to be the more decisive of the two.
This remarkable decision owes much to the committed, inspired leadership of the G-77, and their allies -- the Nordic countries (particularly Denmark), and the countries of Central and Eastern Europe, and China. The G-77 was blessed with the superb leadership abilities of Dr. Devanesan Nesiah of Sri Lanka, chair of the group, and Mr. Bakary Kante from Senegal. The principled position of Danish Environment Minister, Svend Auken, was also an essential ingredient to the ban, for it was Denmark that refused to bow down to a morally bankrupt European Union (EU) which sought to the very end to keep the door for exports to non-OECD states propped open. It was Denmark's determination that first convinced the Nordic States and during the meeting finally led to all of the EU countries agreeing, however reluctantly, to the full ban. Delegates and ministers from Italy, Portugal, Belgium, Spain, France, Sweden and Norway also played positive roles in turning around the European opposition.
On the first day of the week-long meeting, Dr. Kevin Stairs from Greenpeace asked, "can the global community finally convince a handful of dirty industrial countries to halt their toxic assault on the rest of the world?" The answer, this time, was yes.
The Meeting Unfolds
Coming into the meeting everyone knew that the ban was the issue of the meeting, in fact, the issue of the treaty itself, that had been left unresolved in the 5 years since the Convention was adopted. This was the issue that had convinced the African, Caribbean and Pacific Group of states to ensure a waste trade ban in the Lome IV Convention in 1989, the African nations to launch their own ban framed in the Bamako Convention in 1991, and at least seven other regions to launch other, regional treaties to take up the issue of a total waste trade ban.
At the first meeting of the Basel Conference of Parties, held in Uruguay at the end of 1992, the ban issue had been raised and had been shelved until the next meeting. At that time the G-77 had announced its resolve to continue to push for a ban until it was achieved. The other significant event of that meeting happened when Denmark, upon seeing the steadfast resolve of the G-77, decided to break ranks with the rest of the EU and support the call for a total ban.
Three Proposals on the Table
On the first morning of the Second Conference of the Parties, three ban proposals were on the table. One from the G-77 calling for a total ban, one from Denmark calling for a total ban by 1995 and one last ditch effort by the European Union to avoid a ban. The EU proposal would have banned exports of hazardous waste for final disposal but not exports for recycling. Instead, they proposed that a list of developing countries willing to accept certain types of wastes would be drawn up (and published). This "global designated dumping grounds" approach, was an attempt to buy time in which to break non-OECD solidarity while passing responsibility for the problem to the non-OECD states.
In response to the EU proposal, Kante from Senegal said, "it is unacceptable to us; it is a mixture of nonsense." Mr. Miguel Arujo, from El Salvador added, "we cannot allow this situation that requires us to be alert to continue. We need to adopt the ban once and for all. Why is this so difficult if, as industrial countries have said, only 1% of OECD hazardous wastes are exported to the non-OECD countries?"
The "Threat" of a Vote
In the first hours of the meeting, the G-77 group met and decided as a group, by consensus, that they wanted a "no-exceptions" ban and would not negotiate on this point. What they would negotiate was the implementation date. As chair, Dr. Nesiah from Sri Lanka, stated this position to the entire conference and also announced that the G-77 would be willing to call a vote on the issue if needed. In international treaties the preferred means of decision making is by consensus. Voting is done only as a last resort.
Greenpeace also went into the meeting announcing to the international press that a vote would in all probability be necessary to override the intransigence of the handful of nations opposed to a ban. The "threat" of a vote, murmured in the halls of the conference, was a powerful unseen force--it takes only one country to call a vote and the numbers were clearly there to achieve the necessary two-thirds majority to win.
Developing or Non-OECD?
It is important to note that all three proposals used the language non-OECD instead of the previously established convention language of "developing countries" whenever an economically-based distinction was required to describe potential victim countries. This was primarily important in order to encompass the former East Bloc which had been increasingly victimized by West European waste traders since the fall of the Berlin wall. A ban just to developing countries therefore would have meant very little as waste traders would simply redirect waste to the vast economically desperate lands of Central and Eastern Europe.
However, whereas the G-77 solidarity on the issue was well established, it was much less certain whether the rest of the non-OECD countries would join them in a bloc calling for a total, no exceptions ban. Would countries like China, Russia, Belarus, Hungary, or the Czech Republic, all seeking close ties or membership in the OECD group of nations, join the G-77 in calling for a total ban? Would they thereby group themselves, at least on this issue, apart from industrial elite? Would one of these countries be persuaded to keep their options open? This was another question which hung over the meeting until the final days.
Proponents of a total ban were relieved when China stepped forward on the first day to ask to co-sponsor the G-77 proposal. On the second day when Hungary, Slovakia, Croatia, Slovenia, Ukraine, Poland, Czech Republic, Estonia, Latvia, and Romania all voiced support for the total ban in their speeches before the conference, a two-thirds majority of non-OECD countries was assured. But unanimity was still in doubt.
The Sinister Seven
Going into the meeting Greenpeace had identified seven key opponents to the ban. They were Australia, Canada, Germany, Japan, the Netherlands, the U.K., and the U.S. The U.S., as one of the few non-parties to the convention, played an unusually low-profile role, stating in its plenary remarks only that it wished to better understand the views of non-OECD countries. However, in the closed and open ban negotiating sessions, the U.S. worked aggressively to undermine the total ban, supporting either the EU proposal or even weaker compromise positions.
This came as a surprise to many of the delegations given the Clinton Adminstration's announcement, only a few weeks earlier, of "Principles" that supported a full ban on exports of U.S. hazardous wastes to all countries outside of North America with the allowance of Presidential-level exceptions in only extremely rare cases. Given this previous announcement, the schizophrenic, flip-flop stance by the U.S. delegation served only to undermine its international environmental credibility particularly in the opinions of non-OECD states. The U.S. passed up a golden opportunity to establish itself as an international environmental and development leader. Rather, U.S. delegates left the meeting with their tails between their legs and, much like former U.S. administrations, lacking credibility on critical international environmental issues. Canada, Australia and Japan seemed to favor a status-quo position in favor of leaving the recycling loophole wide open.
The European Union's so-called "common position" of its twelve- member states was shaky from the start. It had been forced down the throats of many of the member states by the pro-business European Commission, and the countries of Germany, the U.K. and the Netherlands, where the governments' Economic Affairs Ministries hold a dominant policy-making position. However, of the 12 EU states, Denmark was strongly in favor of a ban, while Ireland, Portugal, Spain, Greece, Luxembourg, and Italy all supported a total ban but were hushed by the bullying of the European Commission which was known to have made outrageous threats about taking legal action against certain states if they supported a ban.
Dr. Nesiah commented, "these proposals [of the EU, Canada and Australia] 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."
Solidarity of Non-OECD
Intensive, behind-the-scenes lobbying by the Sinister Seven countries of certain G-77 countries had ban proponents worried. We had seen quick deals cut before, with solidarity broken and where watered down compromises prevailed. Would the non-OECD stay in solidarity?
On the third afternoon of the conference, that question was put to the test again at a pivotal final meeting of the open negotiation group. The G-77 was asked what their final negotiating position was. In response Dr. Nesiah, speaking on behalf of the G-77 stated, "we will not negotiate on the ban itself. That is our final position. We will negotiate only on the starting date." The room was silent. Canada, acting as co-chair of the negotiating group, finally thanked Dr. Nesiah for his "very clear presentation," and asked if there were any questions. Again, there was total silence. The "sinister seven" delegates sat with stunned expressions, staring blankly. The Canadian co- chair then managed to comment, "I guess that means there are no questions." The OECD hold-outs had not expected to be in this position so late in the meeting. They had not expected unanimity in the G-77 nor from Eastern and Central Europe, and China. For the first time they were feeling like a powerless minority. For the first time they were.
Europe Abandons the EU Sinking Ship
Following that negotiation meeting, the EU felt itself increasingly squeezed between the South, the Nordic States, and Eastern Europe. It was clear that EU Commission policy was adrift. On Wednesday, the Netherlands realized that their position in direct opposition to developing countries, principled only on the basis of "free trade" and being "pro-Europe" would not be defensible to their citizenry. They were the first to abandon the sinking EU ship, stating that they would support whatever the G-7 7 wanted. It was Italy however that really tipped the scales. On Thursday, Italy presented a new proposal which borrowed language from all of the other three that were currently being discussed.
By doing so, they shrewdly offered EU countries an opportunity to save face by supporting an entirely new proposal which, in some respects, looked like the old EU proposal. The genius of the new proposal however, was that it was actually the strongest of all of them.
Meanwhile, in Brussels, an important meeting of all of the European Union Environment Ministers was taking place. The Basel ban issue preempted much of their regular agenda. It was there that the Italian proposal began to receive more and more support despite the protestations of the Commission, Germany and the U.K. This fourth proposal gained the immediate support of all of the EU countries except the U.K., Germany, France and Belgium. However on Thursday, France and Belgium also announced from Brussels their intention to join in support of a ban.
In the EU's population-weighted manner of voting, this 10-2 combination was enough to make a qualified majority to create a new common position. When Germany saw that this was the case, they reluctantly stated a change in position. When observers saw Germany, the world champion waste trading country back down, it seemed that a total ban was in sight. The last EU country to publicly state its support for a ban was the U.K. On March 24, the Secretariat of the European Council of Ministers announced a new unanimous common position in support of a total ban with the implementation date for recycling left undecided.
The Last Hold-Outs
The "Sinister Seven" countries still opposed to the ban on the last day of the meeting were Australia, Canada, Japan and the U.S. With no compromise forthcoming from a solid G-77, and with all of Europe lining up in favor of the ban, all they could do at that point was negotiate as much as possible to postpone the effective date and weaken the language. Their bargaining power seemed to be limited to agreeing to adopt the decision by consensus instead of a vote. This was influential to many delegate s and especially to the Secretariat of the Convention. Although the Secretariat remained appropriately neutral on the question of the ban, it was averse to a voting precedent in the Convention which may have left some countries feeling disenfranchised, isolated and perhaps unwilling to make financial contributions to the convention's general fund
The Final Decision
The final language of the Basel Ban was decided in an arduous, closed-door negotiating session running late into Thursday night. Sides were chosen, with Canada, the U.S., Japan, Australia, and the European Commission allowed to negotiate against the ban. The presence of the EU Commission on the opposition side of the negotiation group after the common EU position had been reversed in favor of the ban, was remarkable and illustrated the scandalous arrogance of the Commission which increasingly claims sole competence on international negotiations where the EU is involved despite the positions of member states. Also scandalous was an eruption by the Environment Directorate General of the European Commission, Laurens Jan Brinkhorst, who forbade Denmark 's Mr. Auken to sit in the negotiations on the side of the ban proponents even though Denmark authored one of the original ban proposals. On the other side, the ban proponents were represented by Sri Lanka, Antigua and Barbuda, the Bahamas, El Salvador, Colombia, Senegal, Egypt, and Poland.
The pressure to compromise in the meeting was relentless, according to one G-77 delegate. "We would defend our position in turns, while they tried to wear us down. We would take breaks every so often and talk amongst ourselves to renew our resolve. Then we'd go back for more."
In the end, the closed negotiating group agreed to a text very similar to the Italian proposal. The main change was delaying the implementation date for the ban on exports of hazardous waste for recycling until 31 December 1997. All agreed that the "transboundary movements of hazardous wastes from OECD to non- OECD states [had] a high risk of not constituting environmentally sound management of hazardous wastes as required by the Convention" and thus should be prohibited.
The text was agreed by consensus on the final morning. The Honorable Sarwono Kusumaatmadja, Environment Minister of Indonesia, noted that never before had such a high degree of political unity been demonstrated by the G-77 in the face of opposition from a handful of powerful industrial governments.