EU Commission Legal Opinion on Article 11

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European Commission Directorate-General Environment, Nuclear Safety and Civil Protection XI.E.3 Waste Management Policy

Dr. I. Rummel-Bulska Executive Secretary, UNEP/SBC 15, Chemin des Anémones CH - 1211, Geneva 10

Dear Dr. Rummel-Bulska,

Thank you for your letter of 19 December 1995 by which you request input to the work of the Technical Working Group regarding technical guidelines for the conclusion of agreements or arrangements concerning the transboundary movements of hazardous waste. In reaction, I would like to make the following observations.

1. By means of Decision III/1, the Third Conference of the Parties adopted an amendment to the Basel Convention in the form of a new Article 4A. In accordance with this new Article 4A, Parties listed in Annex VII shall prohibit all transboundary movements of hazardous wastes to States not listed in Annex VII, with immediate effect when destined for disposal and as of 1998 when destined for recovery. For example, a Member State of the European Community, as a Party to the Convention, will be obliged to prohibit exports of hazardous wastes to all the States in the world which are not listed in Annex VII. It must be noted that there is neither an explicit reference to the possibility to conclude bilateral, multilateral, or regional agreements or arrangements, nor to Article 11, in this new Article 4A.

2. The new Article 4A will be inserted into the Convention after Article 4, and in view of this place in the legislative body of the Convention can be considered to install an obligation for Parties in addition to the general obligation for Parties in addition to the general obligations laid down in Article 4, among which the obligation to prohibit exports to non-Parties (Article 4.5). Thus, taking Article 4 and 4A together, a Party to the Basel Convention and having ratified Article 4A takes it upon itself to prohibit exports of hazardous waste to non-Parties and, in addition to that, to all Parties which are not listed in Annex VII.

3. Article 11 provides for an exception to the general obligation laid down in Article 4.5; ie.. If a Party enters into a bilateral, multilateral, or regional agreement or arrangement with a non-Party, it can be allowed to export to that country as an exception to the export prohibition of Article 4.5, on the one condition that environmentally sound management of the exported waste as required by the Convention is guaranteed. Article 11, however does not relate in any way to the new Article 4A and does therefore not provide an exception to the obligation for Parties listed in Annex VII to prohibit exports of hazardous wastes to all countries not listed in that Annex.

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

This leads to the conclusion that the only possibilities to conclude agreements or arrangements in accordance with the provisions (Article 4.5, 4A and 11) of the Convention would be:

1. between a Party listed in Annex VII and another State listed in Annex VII;

2. between a Party not listed in Annex VII and a State which is also not listed in Annex VII;

3. between a Party listed in Annex VII and a State not listed in Annex VII as far as exports from the latter to the first are concerned only.

For the reasons afore-mentioned, and without entering into the details of public international law regarding the notions of lex specialis and lex posterior which would also apply in this case, I am of the opinion that any derogation from the general obligation of Article 4A by way of a bilateral, multilateral or regional agreement or arrangement would be a violation of the spirit and the provisions of the Convention.

In addition, I would like to inform you that the European Community discussed this matter and agreed upon the position as indicated above at the meeting of Council of Ministers of the Environment of 6 October 1995. Moreover, the EC is currently in the process of transposing the requirement of the new Article 4A into Community law in accordance with this position. Procedures for the ratification for the amendment will be started as soonas possible.

In view of the above, I am unable to provide you with any input with regard to technical guidelines for assistance concerning agreements or arrangements under Article 11 which would be in contravention of Article 4A. However, as regards the remaining possibilities for concluding agreements or arrangements (eg. under 4), I enclose for your information a draft model agreement elaborated by the Directorate General for External Economic Relations (DG I) which may serve as a guideline for the Commission services in the negotiation of possible agreements with third countries in conformity with the mandate from the Council to the Commission in this respect of October 1994.

Yours sincerely,

L. Kramer

Head of Unit