Comments on the Draft Document on the Relationship Between the Basel Convention and the Convention on Persistent Organic Pollutants (POPs) 

17th Session of the Technical Working Group of the Basel Convention, Geneva, 9-11 October 2000 

Prepared by the Basel Action Network (BAN)

Summary

In tone and substance, the Draft Document on the Relationship between the Basel Convention and the POPs Convention (Annex 1 of UNEP/CHW/TWG/17/11), and referred to here as "Draft Document", overstates the ability of the Basel Convention to ensure a high environmental standard of POPs destruction while inappropriately discouraging the more specific and focussed POPs Convention from working to accomplish that task. "Territorial" disputes and competition between two multilateral environmental agreements has no place on the agenda for bettering the global environment.

What is important is for the Basel Convention to inform the POPs treaty negotiators in a balanced and accurate manner as to the Basel Convention's limitations and cease embellishing the Basel Convention's ability at this stage of its development to ensure best practices for POPs destruction.

The fact remains that the Basel Convention cannot legally prescribe how POPs wastes should be destroyed, beyond the most general terms. If the intention and will of the POPs treaty negotiators is to go further than that, as we think it should be, then negotiators of the POPs treaty must place language within that treaty to ensure this is the case, rather than refer vaguely and wistfully to the Basel Convention. Likewise the Basel Convention must accept that the most environmentally protective thing is likely to be legally binding and specific criteria for POPs destruction within the POPs treaty which could then be transposed into the Basel Convention.

Scope of Basel Convention

The Basel Convention primarily covers only Basel defined "hazardous" and "other" wastes that are subject to transboundary movements. There are possibly but three exceptions to this and they are the only obligations in the Convention that can be seen to oblige Parties irrespective of the existence of or plan for transboundary movement. These obligations are:

Article 4.2 (a): Each Party shall take the appropriate measures to ensure that the generation of hazardous wastes and other wastes within it is reduced to a minimum, taking into account social, technological and economic aspects;

Article 4.2 (b): Each Party shall take the appropriate measures to ensure the availability of adequate disposal facilities, for the environmentally sound management of hazardous wastes and other wastes, that shall be located, to the extent possible, within it, whatever the place of their disposal.

Article 4.2 (c): Each Party shall take the appropriate measures to ensure that persons involved in the management of hazardous wastes or other wastes within it take such steps as are necessary to prevent pollution due to hazardous wastes and other wastes arising from such management and, if such pollution occurs, to minimize the consequences thereof for human health and the environment;

While it is true that all of the current 12 POPs targeted by the Intergovernmental Negotiating Committee (INC) for the POPs Convention are covered by the Basel Convention, the vast majority of the provisions of the Basel Convention (with the exception of the obligations outlined above), apply only when the wastes in question are subject to transboundary movements.

However, in either case, domestic waste or that subject to transboundary movement, the Convention applies only the most vague requirements for how disposal should take place. These requirements all center around the term of art "environmentally sound management" or ESM.

"Environmentally Sound Management"

With respect to "hazardous" and "other" wastes as defined, The Basel Convention only legally requires that such wastes be disposed of in an environmentally sound manner. This is defined in the Convention simply as:

"Taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes."

Unfortunately this definition is general enough to provide a very subjective interpretation. Some criteria for environmentally sound management required by Article 4.2 (e) in the context of waste exports have been elaborated in what is known as the Basel Framework Document and are listed as follows:

(a) There exists a regulatory infrastructure and enforcement that ensures compliance with applicable regulations;

(b) Sites or facilities are authorised and of an adequate standard of technology and pollution control to deal with the hazardous wastes in the way proposed, in particular taking into account the level of technology and pollution control in the exporting country;

(c) Operators of sites or facilities at which hazardous wastes are managed are required, as appropriate, to monitor the effects of those activities;

(d) Appropriate action is taken in cases where monitoring gives indication that the management of hazardous wastes have resulted in unacceptable emissions;

(e) Persons involved in the management of hazardous wastes are capable and adequately trained in their capacity.

The above criteria brings us a step closer to ensuring ESM but fail to better define what types of technologies are employed, what minimum infra structural and environmental democracy requirements are to be guaranteed etc. For example there is no requirement for public right to know, or minimum destruction removal efficiency standards to ensure that no new POPs are produced in the process and those that exist are adequately destroyed. Further, and perhaps most importantly the framework document of the Convention is not legally binding.

Only once in the history of the Convention, have the Parties decided to place legal obligations on the parties by reference to ESM and that was done when they recognized "that transboundary movements of hazardous wastes from OECD to non-OECD States have a high risk of not constituting an environmentally sound management of hazardous wastes as required by the Basel Convention" and therefore decided to amend the Convention to prohibit all transboundary movement from OECD states and Liechtenstein to all other countries.

This to date is the only legal requirement delineated from ESM. It is not yet fully in force and of course, as valuable as it is, says nothing whatsoever about how wastes should be disposed or destroyed.

Basel Technical Guidelines

Finally, while Article 4.8 requires that the Parties develop Technical Guidelines for the ESM of wastes subject to the Convention, these guidelines are presented in the context of waste exports. Further, these Technical Guidelines will likely not serve to provide a high standard of environmental protection with respect to POPs disposal or destruction for the following reasons:

1. Like the Framework Criteria, the Technical Guidelines are not thought to be legally binding on Parties of the Convention. Certainly as many Parties have been quick to stress that even the decisions of the Convention are not legally binding, then certainly "guidelines" would not be considered such.

2. The Technical Guidelines are written in such a way that huge latitude is given states on their interpretation and the various disposal options employed. For example the guidelines never delineate prohibitions but merely might discourage certain types of disposal or state preferences. In other words the guidelines are flexible to a fault.

3. The Technical Guidelines have never to our knowledge been updated. As technology and practices with respect to waste management change rather rapidly, we can thus expect that all but the most recently adopted guidelines are now out of date with no real agenda to revise them.

4. The Technical Guidelines are blind to the very real problems of dioxins and furan production and proliferation as well as the recent discoveries of the harm posed by endocrine disrupting compounds. Recent information about the real harm caused by dioxins and furans and endocrine disruptors is not at al present in the current technical guidelines making them woefully inadequate especially on the topic of persistent organic pollutants (POPs). This shortcoming is evident in the fact that there is no preference to destruction over disposal, and the lack of up to date information and preference to non-combustion methods of POPs destruction which will not form byproduct POPs.

The fact that the Technical Guidelines are not legally binding nor appropriately rigorous is revealed to be a serious problem by the data presented in the Draft Document itself. While Paragraph 8 of the Draft Document states that the Convention believes that POPs should be destroyed by D9 or D10, the data included in Appendix 2, shows that all kinds of other destinations (e.g. R4, R5, D12, R13, R9, R1, R2, R3) many of them absolutely inappropriate for POPs are in fact taking place. This is a major indictment of the fact that Basel guidelines are not in fact leading Parties to appropriate disposal options.

For the above reasons we find the Draft Document to be overstated with respect to the abilities of the Basel Convention to adequately manage POPs waste to the point of being misleading. We call on the Basel Parties to present a more accurate and balanced picture of what prescriptions the Basel Convention really can and does apply.

Conclusion

The Draft Document must present a much more balanced approach with respect to highlighting the limitations of the Basel Convention in regard to POPs disposal/destruction. The possibility of the POPs treaty stipulating more specific and legally binding criteria for POPs destruction should not be seen as a threat to the Basel Convention's remit and function. Rather it should be seen as appropriate in light of the special threat from POPs that has come to light in recent years and that has made that more specific and more recent convention necessary. Certainly, under international law, more specific and recent instruments have the full right to elaborate stronger obligations than older and less specific instruments.

We call on the Parties to the Basel Convention to work together with the POPs Convention to elaborate a set of legally binding criteria that are more specific and rigorous than those elaborated in the Basel Convention for this most serious problem of persistent organic pollutants. Cooperation and not competition is needed in this regard. Once a more rigorous and legally binding set of criteria for POPs destruction is called for in the POPs treaty, then the Basel Convention can get busy with an amendment to ensure that such requirements are transposed and elaborated within the Basel Convention. While the POPs treaty is awaiting entry into force, the Basel Convention could then save time by strengthening its provisions with respect to POPs destruction to echo the will of the international community as reflected in the POPs treaty.