TL: COP4 THE KEY ISSUES AT A GLANCE 
SO: GREENPEACE INTERNATIONAL, (GP)
DT: FEBRUARY, 1998

MAKE THE BAN HAPPEN, SHIFT TO CLEAN PRODUCTION

1. INTRODUCTION

The overarching objective of the Basel Convention is to reduce
the generation of hazardous waste to a minimum. As long as the
generators of hazardous waste are not being held responsible for
their wastes, they will never reduce their generation. In view
of the detrimental effects on the environment and human health
by international hazardous waste trade, a no-exceptions ban on
all hazardous waste exports from the OECD States was adopted at
COP2 in 1994. This decision was transformed into an amendment to
the Convention in Decision III/1 at COP3 in 1995. The full
implementation of this ban is an imperative prerequisite to
achieve the primary goal of the Basel Convention - the reduction
of the generation of hazardous wastes to a minimum. Therefore,
the key challenge to the Fourth Conference of the Parties of the
Basel Convention is to act with determination to keep the ban
firm and to make it operational - as the stepping stone to the
real challenge ahead of us: the shift to clean production.

2. THE KEY ISSUES

2.1 Adoption of the lists

YES: to amend Annex I and to add lists A and B as Annexes VIII
and IX

NO: to amendments of the body of the Convention, guidelines, or
protocols

- the meaning of the lists A and B: The Third Conference of the
Parties (September 1995) amended the Convention to enshrine
Decision II/12 into the Convention and instructed the Technical
Working Group (TWG) to develop lists of wastes which are
hazardous and wastes which are not hazardous under Article
1.1.(a) of the Convention. The TWG has placed hazardous wastes
as under Article 1.1(a) on the so-called A-list, and wastes not
covered by Article 1.1(a), on the so-called B-list. These lists
do not change the underlying definition of what constitutes a
hazardous waste in any way. They supplement Annex I and III as
a detailed application of the definition given in Article 1.1(a)
so as to facilitate the distinction between hazardous and non-
hazardous wastes for the purpose of the Convention.

- how to adopt the lists A and B? Since proper implementation
and enforcement of the ban will be in the interest of all
sincere Parties of the Convention, it is crucial that these
lists have clear legal status and are binding on all Parties.
This has to be achieved in the fastest possible way without
jeopardizing legal certainty. This can only be achieved by an
amendment of Annex I and the addition of two new annexes to
incorporate the two lists. Calls for an amendment of the body of
the Convention in the pretence of maximum legal certainty are
nothing but attempts to delay entry into force of the Basel Ban
by calling for the most laborious and time-consuming approach
with the ultimate aim of undermining the entire Convention and
should therefore be rejected. Guidelines and protocols create
legal and formal problems that make them unsuitable.

2.2 Bilateral, Multilateral and Regional Agreements

for OECD to non-OECD trade (between Parties; or Parties with
non-Parties):

YES: to the possibility of agreements, provided that they do not 
circumvent the export ban NOR other provisions of the Basel    
Convention (e.g. Lomé Convention)

NO: to the possibility of agreements that circumvent the export 
ban or other provisions of the Basel Convention

for intra-OECD, intra-non-OECD or non-OECD to OECD trade (of
Parties; or Parties with non-Parties):

YES: to the possibility of agreements, provided that they are
not less environmentally sound than those

provided for by the Convention (e.g. Bamako Convention, Central
American Agreement)

NO: to the possibility of agreements that are less
environmentally sound than those of the Convention

- why no agreements to circumvent the ban? Article 11(1) of the
Basel Convention does not refer to the new Article 4A, inserted
into the Convention by Decision III/1, and can therefore not
constitute an exception to the ban. Furthermore, Article 4A does
not foresee any such exception itself. On the basis of this, it
is clear that agreements 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. Such agreements or
arrangements are therefore not acceptable from a legal point of
view.

- the repeated attempts of those who won’t take no for an
answer: A few OECD States intent on protecting the economic
interests of a few industries that want to escape the disposal
costs in their countries at the expense of the human health and
the environment of non-OECD States have repeatedly tried to
escape the legal obligation of the export ban by evoking the
possibility of agreements in accordance with Article 11 of the
Basel Convention. This act of bad faith has not ceased despite
the clear rejection of Article 11 exceptions to the ban during
the Second and Third Conference of the Parties and subsequent
meetings of the TWG.

- EC: no more agreements that circumvent the ban: On 20 January
1997, the 15 Member States of the European Community (EC)
amended their legislation on waste shipments so as to transpose
the Decisions II/12 and III/1 of the Basel Convention into EC
legislation. With this amendment, the EC made it clear that
bilateral, multilateral or regional agreements or arrangements
in accordance with Article 11 of the Basel Convention that would
circumvent the ban on hazardous waste exports from the EC to
non-OECD States will no longer be possible after 1 January 1998.
The amendment also ends existing agreements or arrangements
covering exports of hazardous waste from the EC to non-OECD
States as of 1 January 1998, whether concluded at EC level or by
individual Member States.

2.3 Annex VII

YES: to the addition of Monaco to Annex VII due to its unique
geopolitical situation (i.e. customs union with an OECD State)
to strengthen the OECD to non-OECD trade ban

NO: to the addition of any other non-OECD State to Annex VII
(e.g. Israel, Slovenia or any other),

NO: to the formulation of additional criteria for joining Annex
VII other than OECD/EC membership

- why OECD to non-OECD? When the ban was first requested in
1992, the terminology industrialized vs. developing countries
was used. Its lack of clarity was soon acknowledged. For reasons
of legal certainty, Decision II/12 was based on the distinction
between OECD States and non-OECD States. More importantly, the
choice of this distinction was justified because it is not open-
ended and based primarily on global economics, eliminating the
worst of the abuses possible with a minimum of loopholes.
Finally, it was justified by the existence of an internal OECD
control regime for transboundary movements.

- the meaning of Annex VII: In September 1995, the Third
Conference of the Parties decided to amend the Convention to
enshrine Decision II/12 into the Convention so as to leave no
doubt to its legal certainty. In keeping with the accepted
rationale of an OECD to non-OECD trade restriction, a new Annex
VII was created, only to allow the explicit mentioning of the
European Community as a separate entity within the OECD. Annex
VII was never meant to be an open Annex.

- the case of Liechtenstein: Furthermore, Liechtenstein,
although not an OECD State, was added to Annex VII at COP3 due
to its special geopolitical situation. As Liechtenstein shares
a customs union with Switzerland, Liechtenstein has no border
controls. If Liechtenstein had not joined Annex VII, it could
have represented a possible loophole for exports to non-Annex
VII countries via "mailbox"- companies. This loophole was
effectively closed by Liechtenstein's inclusion on Annex VII. A
few bad faithed OECD States now try to turn the inclusion of
Liechtenstein into a precedent for a country's right to be
included on Annex VII following self-declaration about the
capacity to dispose of hazardous wastes. These allegations lack
all foundation, as it is evident that Liechtenstein never had
any interest in importing hazardous waste and can therefore
impossibly have self-declared it capable to do so.

- the request of Monaco: Monaco has now also requested to be put
on Annex VII, for the very same reasons as Liechtenstein: It
shares a customs union with an OECD State (France). Monaco
clearly states that it has no interest in importing hazardous
waste. Given that the inclusion of Monaco does not in any way
impair the spirit of the Basel Convention, but on the opposite
helps to close a possible loophole to the export ban, we believe
that the request of Monaco should be granted as a strengthening
of the OECD to non-OECD trade ban.

- the requests of Israel (and Slovenia): A totally different
situation is presented by the application of Israel. Israel's
application to join Annex VII is motivated by the intention to
import hazardous waste. This is in direct conflict with Article
4.2(d), which calls for the reduction of transboundary movements
of hazardous waste to a minimum. Moreover, granting this request
would undermine Article 4.2(a), which calls for the reduction of
the generation of hazardous waste to a minimum. This will not
occur as long as the generating OECD States can escape the
responsibility for their wastes. Finally, accepting such a
request would represent a dangerous precedent, as it could
create a "domino effect" whereby other countries under pressure
from individual industry interests could request the same. This
is exemplified by the late request from Slovenia. The
applications from Israel and Slovenia have to be clearly
rejected as they violate the general obligations of the Parties
of the Basel Convention. Accepting these and similar requests
would directly undermine the export ban, the most important
measure of the Basel Convention to date, a measure which the
global community decided by consensus in 1994 and 1995 to
protect developing countries from hazardous waste. Support for
these applications has to be seen as acting in bad faith to
undermine the entire Basel Convention.

- the precedent of the Barcelona Convention: The current
situation has already been dealt with in the context of the
Barcelona Convention. In October 1996, the Parties to this
Convention adopted the Protocol on the Prevention of Pollution
of the Mediterranean Sea from the Transboundary Movements of
Hazardous Waste and their Disposal. This protocol prohibits all
exports of hazardous wastes to developing countries, defined as
non-OECD except Monaco that was granted OECD status for the
purpose of that Convention. Israel and Slovenia had asked for
the same status as Monaco, however, this was not granted to them
in line with the purpose of the Convention.

- the formulation of criteria to join Annex VII? These
applications have resulted in the very unfortunate debate as to
whether criteria for additions to Annex VII should be set up.
Proponents of criteria put the focus on waste treatment instead
of on the prevention of waste generation. They seem to propose
that treating hazardous waste deserves more attention than
preventing their generation, putting the common knowledge that
prevention is better than cure on its head. They do so in the
hope that they can pass on the task of the alleged "cure" to
others, while they themselves are unwilling to prevent, as this
would require action by themselves, namely production changes.
Apart from this unacceptable end-of-pipe mentality,
implementation and enforcement of such criteria is bound to fail
both for technical and political reasons. A similar debate was
held at COP1 when an attempt was made to define criteria for
environmentally sound management – it was soon agreed that this
would come down to self-certification which in turn was rejected
as unacceptable. A discussion about criteria is solely motivated
by the attempt to avoid responsibility for the hazardous waste
generating activities and should therefore be rejected.

- Annex VII as an incentive for better waste treatment
standards? The attempts to sell OECD wastes to non-OECD States
as incentives for better treatment standards are obscene. It
corrupts the overarching objective of the Basel convention and
of every sensible waste policy, which gives highest priority to
waste prevention and not to end of pipe treatment. It is an
attempt not only to keep the escape valves open, but also to
make extra profits selling treatment technologies in combination
with the waste. Instead of calling for criteria to assess the
capacity of non-OECD States to dispose of OECD hazardous wastes,
OECD States should call for criteria to assess their production
technologies back home so as to promote non-hazardous production
technologies which do not create the hazards in the first place.

- join Annex VII to protect remaining non-OECD States from
hazardous wastes? Some countries have tried to argue that
allowing non-OECD States to join Annex VII would help to protect
the remaining non-OECD States from the exports of these. This
argumentation is paradoxical. It acknowledges the damage from
hazardous waste imports to non-OECD States and promotes such
imports at the same time. It amounts in requesting a country to
sacrifice itself in becoming a future victim of imports of
hazardous waste from OECD States for the sake of better
protection of others. The real reason behind such argumentation
is evident: enlarge the possibilities for OECD States to export
their hazardous waste. Protection of non-OECD States from other
non-OECD States should better be achieved by additional regional
bans on transboundary movements of hazardous waste and not by
turning some of them into future victims of OECD exports.

- incompatibility with WTO? As the ultimate weapon to justify
the formulation of criteria for Annex VII additions, a few OECD
States have evoked the World Trade Organization’s (WTO)
provisions of non-discrimination. They argue that the Basel ban
risks to be challenged by the WTO if it does not allow for other
countries to join Annex VII. Such argumentation assumes the
precedence of WTO over multilateral environ-mental agreements
(MEAs). It intends to make negotiators of MEAs weaken their
provisions in expectation of an imaginary negative panel
outcome. However, there has never been a trade dispute within
WTO which would have challenged the policies established by the
Basel Convention. Such argumentation calls for rushing ahead
with obedience where obedience is neither required nor demanded.
The Basel Convention and the ban decisions were agreed after the
establishment of the multilateral trade regime and in the
presence of GATT/WTO members. They were agreed by the global
community as the only way to protect non-OECD States from
hazardous wastes generated in the OECD. The Parties of the Basel
Convention should not allow that the WTO "chill factor" is used
as a "kill factor" for the repeatedly agreed OECD to non-OECD
ban on hazardous waste exports in particular, and envionmental
protection by MEAs in general.