230911

UNITED NATIONS

BC

UNEP/CHW.10/INF/47

Distr.: General 20 September 2011

English only

Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal Tenth meeting Cartagena, Colombia, 17–21 October 2011 Item 3 (a) (iii) of the provisional agenda∗ Matters related to the implementation of the Convention: strategic issues: Indonesian-Swiss country-led initiative to improve the effectiveness of the Basel Convention

Compilation of comments received from parties and stakeholders on the Indonesian-Swiss country-led initiative to improve the effectiveness of the Basel Convention

Note by the Secretariat

The annex to this document contains the comments received from parties and stakeholders on the Indonesian-Swiss country-led initiative to improve the effectiveness of the Basel Convention. They have not been formally edited by the Secretariat and are presented as received.

∗ UNEP/CHW.10/1.

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Annex I Table of Contents Section I: Comments on the draft omnibus decision

Page

1. Comments from Canada ................................................................................................................................3

2. Comments from Colombia ............................................................................................................................7

3. Comments from the European Union and its member states .......................................................................9

4. Comments from the United States of America ...........................................................................................16

5. Comments from the Basel Action Network (BAN) ....................................................................................18

Section II: Comments on the draft list of possible elements of a way forward

1. Comments from the European Union .........................................................................................................33

2. Comments from Mexico ..............................................................................................................................36

3. Comments from Mexico (informal English translation) ............................................................................38

4. Comments from the Bureau of International Recycling .............................................................................40

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Section I: Comments on the draft omnibus decision

Comments from Canada

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Comments from Colombia

Comments from Colombia to the Indonesian-Swiss country-led initiative to improve the effectiveness of the

Basel Convention. General comments Colombia, welcomes the efforts made by Switzerland and Indonesia to develop a comprehensive proposal with the overarching objective of reaffirming the Ban Amendment objectives and to explore means by which they might be achieved. In our capacity as Presidents of CoP 10, we will endeavor to promote the adoption by consensus in Cartagena de Indias in October 2010 of the text of a decision that reflects the needs and interests of all the Parties to the Convention.

We would like to express our concern however, with the process as detailed in paragraphs 4 to 8 of document CLI/2010/3/1. While we recognize that the lack of financial resources is the underlining reason for not having a more inclusive process, the fact that participation at the three physical meetings have been very limited, undermines the basic principle of transparency and representation in international environmental agreements.

We are aware that the documentation and the outcomes of the meetings under the CLI were circulated to Parties and other stakeholders by e-mail and through the Basel Convention website, and thereby Parties and stakeholders were afforded the opportunity to comment on the issues. However, only few comments have been received so far and it seems that Parties are not yet familiar with the objective, the content and the implications of the proposal. In that regard, we are of the opinion that in order to ensure effective implementation of a comprehensive set of decisions as the ones included in the CLI, additional face to face discussions and negotiations are needed.

In that regard, we call upon the Secretariat to mobilize resources in order to convene a Fourth meeting to discuss the CLI prior to COP 10. The meeting should be open to all Parties to the Basel Convention and observers and financial support should be made available for participants from developing country parties in order to ensure equitable geographical representation. Such a meeting should take place in the GRULAC or AFRICA regions, since the other 3 meetings took place in Asia and Europe.

In order to contribute to this effort, Colombia offers to provide a venue for a Fifth informal meeting on Saturday October 15 and Sunday October 16, 2011, back to back with COP 10. In addition to that, the Colombian government is exploring the possibility of conveying a GRULAC regional meeting some time in July 2011, and therefore to provide an additional fora for the CLI to be discussed amongst participants.

Having said that, we agree with the general considerations contained in document CLI/2010/3/1, and we strongly support the statement that the entry into force of the Ban Amendment is a matter of political importance, in particular for developing country parties.

Specific comments

1.1 ADDRESSING THE ENTRY INTO FORCE OF THE BAN AMENMENT

Colombia supports the so called second variation of the “fixed-time approach” according to which an amendment to the Convention will enter into force when the Depositary has received a number of instruments of ratification equivalent to three-fourths of the number of Parties to the Convention when the amendment was adopted. On that basis, as there were 82 Parties to the Convention when the Conference adopted decision III/1, 62 ratifications received from any Party, including those that became party to the Convention after the adoption of the amendment, would bring the amendment into force.

COP 10 shall then take a decision stating that under Article 17 of the Convention, the Ban Amendment will enter into force immediately, as 69 Parties had ratified it to date.

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In this regard, we wish also to inform Parties that the ratification of the amendment is under consideration by the Colombian legislative body and we expect to be able to deposit the instrument of ratification in 2012.

1.2 DEVELOPING STANDARDS AND GUIDELINES FOR ESM

The proposal implies that some elements will be developed at a later stage by the Secretariat in close cooperation with the Parties. However we would like some clarification in relation with the ways in which the ESM framework might be linked to the issue of the TBM. In particular we wish to know whether it is intended to include the elements refer to, as prerequisites for the control system. It has to be noted that so far, the Parties to the Convention have adopted Technical Guidelines for ESM, and that those guidelines are of a voluntary nature and do not replace national legislation. In that regard, there is a need to discuss the appropriateness of introducing binding ESM standards, which would imply that the Parties would have to implement them at the domestic level. The implications for developing countries of the establishment of an international certification scheme for ESM also need further consideration. In relation with item 4 we suggest the establishment of an Ad-Hoc Technical Working Group with a clear mandate agreed by all Parties. The terms of reference of this group shall include equitable regional representation, delegates nominated by Parties (as oppose to experts selected by the Secretariat). The negotiations on this issue need to be based, in particular on articles 2.5 and 4 c) and d) of the Convention in order not to prevent Parties to exercise their right to prohibit the import of hazardous wastes and other wastes. 4.3 PROVIDING FURTHER LEGAL CLARITY

Colombia fully supports the underlying objective of this provision and concurs with the preambular paragraph as suggested. However we still have doubts in relation with the role of the Committee for Administering the Mechanism for Promoting Implementation and Compliance in this context and therefore we wish to put the reference to this body in operative paragraph 1, 2 and 3 between brackets for the time being.

For Colombia there is no need for redefining the term waste wastes/non waste, hazardous wastes/non-hazardous wastes. A better approach might be to provide guidelines for the interpretation of the existing definitions in cases where difficulties are encountered; for example it would be very useful if Parties agree on thresholds for the presence of materials that causes a waste to exhibit an Annex III characteristic. The situation is different in relation with the terms that are not already define in the Convention and for which there is an undisputable need to get to a common understanding in the framework of the Convention.

Finally, Colombia is looking forward to have the opportunity to engage with Parties in negotiations about the details of the proposals on the table in relation with the BCRCs, the combat against illegal traffic and capacity building. We see positive elements in the draft as it stands. However at this point we wish to emphasise that without a robust financial mechanism the CLI will be empty and the efforts to agree on it will be lost. Therefore, means of implementing for all the activities contained in the CLI need to be addressed at the earliest.

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Comments from the European Union and its member states

EU submission on the Country Led Initiative (CLI)

General comments

1. The EU and its Member States would like to thank Indonesia and Switzerland for this second opportunity to

provide comments on the documents CLI/2010/3/1 and CLI/2010/3/2. 2. We note that several sections of the draft omnibus decision are addressing issues which are also covered by

other COP decisions which are under preparation, e.g. Strategic Framework, the OEWG work programme, the work programme for the Compliance Committee, Regional Centres and Illegal Traffic etc. We consider that all COP decisions should constitute a consistent package. We consider that, when presenting the outcomes of the CLI process, Indonesia and Switzerland should ensure consistency with the other draft decisions to be considered at COP 10. We are of the opinion that Indonesia and Switzerland should work in close cooperation with the Secretariat of Basel Convention when finalizing the draft omnibus decision and the explanatory note.

3. We consider that the explanatory note should be extended: - to better reflect the information provided in the study "Waste without frontiers" recently published on

Basel Convention's website: http://www.basel.int/pub/ww-frontiers26Jan2010.pdf. - Include more explanation about the difference between the terms "guidelines", "guidance", "standards"

and "requirements" on environmentally sound management (ESM) of wastes so as to clarify the legal and operational implications of what is proposed in the second part ("developing standards and guidelines for ESM") of the draft omnibus decision.

4. We support the two-tier approach proposed by Indonesia and Switzerland namely: finding a possible way

forward on the Ban Amendment and finding other ways of protecting vulnerable countries. 5. With respect to part 2 of the draft omnibus decision (Developing standards and guidelines for ESM), we

think that this part should cover the development of a framework of recommendations for Environmentally Sound Management (ESM) of waste. We think that this would be in line with the draft strategic framework (cf. objective 2.1). The currently used term 'requirements' implies the adoption of legally binding provisions, which has significant procedural implications, that we think are not desirable at the moment.

6. In this respect, we consider that the OECD Recommendation on the Environmentally Sound Management of

Waste C(2004)100, including the core performance elements, and the “Guidance Document on the Preparation of Technical Guidelines for the Environmentally Sound Management of Wastes Subject to the Basel Convention” adopted by COP2 (in particular paragraphs 4 to 9 under the heading “Note on ESM”) should be taken into account in developing this framework.

7. A draft of framework of recommendations for ESM of waste should be submitted for consideration and

possible adoption to COP 11. 8. We could consider establishing either a small intersessional working group or a technical expert group for

developing this draft framework and would suggest identifying one or two lead country (ies). We think that these two approaches may give more impetus to the work and be less costly. If a technical expert group is put in place, this group should be representative and regionally balanced and include stakeholders as observers as well as work in one language only.

9. We would like to stress that, while the technical work will be most effectively done in a smaller setting,

decisions would have to be taken by all Parties. We consider that the involvement of stakeholders is important in general and for the actions mentioned in parts 4 (points vi and vii) and 7 (points 7 and 8) of the draft omnibus decision, in particular.

10. With respect to part 3 of the draft omnibus decision (Providing further legal clarity), we think that

priority issues should be selected and work should be agreed upon that can be accomplished by COP11. Before deciding on taking certain actions, more explanations would be needed on the rationale inter alia to avoid duplication of work. We note that technical guidelines on transboundary movements of e-waste, in

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particular regarding the distinction between waste and non-waste, are already being developed and are scheduled for adoption at COP10. We think that further similar technical guidelines on waste vehicles could be developed.

11. We have doubt that the Compliance Committee would be an appropriate body for conducting this work,

noting that such work is not in the Committee's terms of reference. We note that modifying the definitions would indeed have an impact on the scope of the Convention. It would seem more appropriate to us to call on legal and technical expertise.

12. The work could, in our view, be taken forward, for instance, by lead country(ies) or by the Secretariat, if

appropriate in consultation with a small intersessional working group. 13. With respect to part 4 of the draft omnibus decision (Further strengthening the Basel Convention

Regional and Coordinating Centres (BCRCs)) and in order to ensure consistency, we suggest a close cooperation with the secretariat that prepares a draft COP decision on the review and strengthening the operation of the BCRCs in order to ensure consistency and avoid duplication.

14. With respect to part 5 of the draft omnibus decision (Combating illegal traffic more effectively), we

suggest to take into account, at least, the following COP decisions: IX/23, VIII/24, VII/34, VI/16, V/2. 15. Finally, with respect to parts 6 (Assisting vulnerable countries to prohibit the import of hazardous

wastes) and 7 (Building Capacity) of the draft omnibus decision, we suggest taking into account previous COP decisions ( e.g. VI/11 and VII/8).

16. We would be very pleased to provide further comments to Indonesia and Switzerland should they organize

another round of comments on the draft omnibus decision.

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Comments on the draft omnibus decision

The Conference of the Parties 1. Addressing the entry into force of the Ban Amendment

Recognising that there are vulnerable Parties who are unable to handle hazardous and other wastes in an environmentally sound manner, but who continue to receive such wastes, which results in serious harm and needs to be addressed as a matter of urgency; Noting that the amendment to the Basel Convention adopted by decision III/1 of the Conference of the Parties is one way of meeting that challenge but that other ways exist to meet that challenge responsibly, especially through a stringent application of the prior informed consent procedure, strengthening environmentally sound management and national legislation; Bearing in mind decision VIII/30 of the Conference of the Parties emphasising that the Parties to the Convention have the ultimate power to agree on the interpretation of the Convention Stressing the need for the Parties to agree on an interpretation of paragraph 5 of Article 17 of the Basel Convention as an important step in the development of the Convention,

1. Welcomes the practical initiative and activities that have taken place in response to the call of the President of the ninth meeting of the Conference of the Parties for Parties to expedite ratification of the Ban Amendment, so as to facilitate its entry into force, and further invites Parties to continue to undertake concrete actions towards encouraging and assisting Parties to ratify the Amendment, including:

• Specific actions, such as the Nordic Initiative, to assist Parties facing legal and technical difficulties in ratifying the Ban Amendment;

• Regional meetings; • Country-specific studies of the implications of ratification and entry into force.

2. Resolves, without prejudice to any other multilateral environmental agreement, that paragraph 5 of Article 17 of the Basel Convention be interpreted so mean that the acceptance of three-fourths of the Parties at the time of the adoption of the amendment is required for the coming into force of such amendment, noting that such an interpretation of paragraph 5 of Article 17 does not compel any Party to ratify an amendment.

Comment [M1]: The EU and its Member States are not entirely sure that this is the appropriate term to use. We note that it is used also in section 4.

Comment [M2]: We strongly support this operative paragraph. It would however need to be completed by standard legal text. See the decision IX/25 "Addressing the interpretation of paragraph 5 of article 17 of the Basel Convention"

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2. Developing standards and guidelines for ESM Recognising that harm to human health and the environment is still being caused throughout the world by inadequate waste management procedures; Acknowledging the existing activities undertaken by Parties and others to ensure environmentally sound management of hazardous wastes and other wastes, including the development of technical guidelines, national legislation, reference documentation and other guidance, whilst also acknowledging that further dissemination of these activities is necessary; Recognizing the need to pursue the development of ESM of hazardous wastes and other wastes, especially through the preparation of technical guidelines, and to promote the implementation of ESM in national legislation as well as capacity building. Stressing the continuous need of Parties to have access to sufficient information to ensure that hazardous waste and other wastes to be exported are managed in an environmentally sound manner; Noting that a more systematic and comprehensive effort is needed to improve the environmentally sound management of hazardous wastes and other wastes and to encourage its adoption,

1. Invites Parties and others stakeholders to submit information on existing activities to ensure the environmentally sound management of hazardous wastes and other wastes to the Secretariat and requests the Secretariat to disseminate this information, inter alia on its website;

2. Decides to include the development of a framework of recommendations on the environmentally sound management of hazardous wastes and other wastes in the OEWG work programme for 2012-2013 with a view to consideration and adoption at COP 11, taking into account the elements listed in Annex I, the Guidance Document on the Preparation of Technical Guidelines for the Environmentally Sound Management of Wastes Subject to the Basel Convention adopted by COP2 and other relevant work, e.g. the OECD Recommendation on the Environmentally Sound Management of Waste; 2bis. Invites Parties to serve as lead country(ies) for the development of a framework of recommendation referred to in para. 2; 2ter. Invites the lead country(ies), or, if a lead country is not found, requests the Secretariat, in close cooperation with the Parties, to develop by May 2012, a draft framework of recommendations on the environmentally sound management of hazardous wastes and other wastes, taking into account the elements listed in Annex I. 2quat. Invites Parties and others to submit comments on the draft referred to in para. 2ter by July 2012;

3. Decides to mandate either a technical expert group based on equitable geographical representation of the five regional groups of the United Nations as well as stakeholders as observers or a small intersessional working group, to undertake work to further develop the framework, taking into account the elements listed in Annex I, and to submit the elaborated draft framework to the eleventh meeting of the Conference of the Parties for its consideration and possible adoption.

Note: further process may need to be elaborated. Annex I Elements for the development of a framework of recommendations for the environmentally sound management of hazardous wastes and other wastes In developing the framework of recommendations for the environmentally sound management of hazardous wastes and other wastes, the following elements should be taken into account: • Occupational health and safety requirements (e.g. regarding safety, health, liability, emergency response) • Environmental protection requirements (e.g. prevention of pollution). • Facility related requirements (e.g. regarding construction and infrastructure) • Waste related requirements (e.g. collection, sorting, pre-treatment, treatment, storage, downstream management) • Emission related requirements (e.g. emission limit values to air, water, and soil) • Organizational requirements (e.g. valid licence/permit, monitoring, record keeping, information to be provided to

authorities, aftercare, insurance, management abilities/training level environmental management systems) • Regulatory requirements (consistency/complementarity) In addition, guidance on tools, instruments and measures implementing these recommendations should be included in the framework, inter alia on the following: • Legislation; • Standards; • Policies; • Codes of good practice. • Certification of standards; • Licences and permits regularly validated; • Compliance promotion of regulations (e.g. training, awareness raising); • Regular inspections and controls;

Comment [M3]: Building upon objectives 2.1.and 2.2. of the draft Strategic Framework.

Comment [M4]: We are not clear on whether these points refer to the framework or to the tools or instruments.

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• Mechanism to take measures in case of non-compliance.

3. Providing further legal clarity Noting that a number of the provisions of the Convention are interpreted differently by Parties and that implementation and application of these provisions would benefit from additional legal clarity; Noting therefore that there is a need to reach a common understanding amongst Parties of the definition, interpretation and terminologies of wastes covered by the Basel Convention, including the distinction between wastes and non-wastes Recognising that there needs to be a clear distinction between wastes and non-wastes for some used equipment and second-hand goods and that some countries receive unwanted imports of used and near end-of-life goods that soon become waste;

1. Requests the Committee for Administering the Mechanism for Promoting Implementation and Compliance, assisted by technical experts as appropriate:

o to recommend to the COP, the definition or interpretation of a list of terms related to the implementation of the Convention, including:

waste / non-waste; hazardous waste / non-hazardous waste; re-use; direct re-use; refurbishment; second hand goods; used goods; recycling; recovery.

o to develop such guidance to provide the national authorities, regional centres and all other stakeholders with authoritative and consistent advice on the interpretation of these terms in connection with the Basel Convention, building on existing guidance and examples of good practice.

2. Requests the Committee for Administering the Mechanism for Promoting Implementation and Compliance, , assisted by legal and technical experts as appropriate and taking account other initiatives such as MPPI and PACE, to consider specific arrangements that can be applied to used and end of life goods:

o to require take-back obligations to be put on the importers of such goods; o to clarify the status of ‘charitable donations’; o to evaluate and propose a definition of when used goods become waste.

3. Requests the Committee for Administering the Mechanism for Promoting Implementation and Compliance to

submit the results of its work to the eleventh session of the Conference of the Parties for its consideration and possible adoption;

4. Requests that, following its possible adoption by the Conference of the Parties, the Basel Convention Regional and Coordinating Centres use this guidance in their training, capacity building and awareness raising activities.

4. Further strengthening the Basel Convention Regional and Coordinating Centres (BCRCs)

Noting that many of the proposals included in the recommendations of the CLI ultimately involve initiatives that are best taken at the regional and sub-regional levels [and the BCRCs are ideally placed to take them forward]; Recognising that the BCRCs play an important role in training, technical assistance and awareness raising and that there is a need, therefore, to strengthen the effectiveness of the Centres and thus to expedite the ongoing review of their work.

[Requests BCRCs in the light of the results of the review of the BCRC to]: i. Convene regional meetings to encourage and assist Parties in their ratification of the Ban Amendment or

national measures to prohibit imports; ii. Disseminate guidance on ESM through their training, assistance and awareness raising activities; iii. Develop a program and deploying activities to bring actors together, to provide training and to

coordinate joint actions to combat illegal traffic, with support of the SBC and other stakeholders as appropriate;

iv. Consult the Parties within their regions and to identify the real needs of vulnerable countries and the difficulties that they face with unwanted imports of hazardous wastes;

v. Seek further collaboration with other agencies, NGOs and the private sector; vi. Seek out and mobilise relevant expertise in other relevant international and regional organisations. [Requests Parties to work with the Regional Centres and in the light of the results of the review of the BCRC to]: vii. Take action to secure political and public engagement with the work of the Convention;

Comment [M5]: In addition to the question of principle raised in the general comments and since ambitious tasks are proposed in this section: - we presume that the existing work at national, regional and international level (e.g. PACE, MPPI) will be taken into account when developing the recommendationrs general comments aboits aboive)for the consistency and avoid duplication. - we would like to have an indication of the amount of work (and resources) implied by this proposal.

Comment [M6]: See objective 1.1. of the draft Strategic Framework.

Comment [M7]: It is worth noting that the PACE guidance document which is subject to COP10 agreement seeks to define many of these terms in the context of used and end of life computing equipment. These definitions build on what is already agreed in the MPPI documents.

Comment [M8]: We are not clear on what is suggested here since these definitions should already be in place.

Comment [M9]: We consider that there might overlap with the objective 2.2. of the draft Strategic Framework.

Comment [M10]: We have some doubts on whether this is the right entity (see general comments).

Comment [M11]: We are also not sure what is meant here. Is it take back as a result of an illegal shipment, or take back by retailers as a result of producer responsibility? The current drafting seems to be outside the scope of the Basel Convention.

Comment [M12]: We note that there is a clear link with the Draft Strategic Framework

Comment [M13]: We consider that this depends on the completion of the review and on implementation of any recommendation which will made in this context.

Comment [M14]: We consider that this depends on the completion of the review and on implementation of any recommendation which will made in this context.

Comment [M15]: We consider that this depends on the completion of the review and on implementation of any recommendation which will made in this context.

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5. Combating illegal traffic more effectively Recognizing the importance of preventing and combating illegal traffic in hazardous wastes and other wastes and that illegal traffic in wastes, especially hazardous wastes, constitutes one of the main challenges to be addressed by the Parties to the Basel Convention in order to prevent harm to human health and the environment; Noting that the provision of more legal clarity, strengthening the role of the BCRCs and building capacity would facilitate the work of enforcement agencies in preventing and combating illegal traffic more effectively; Recognising that coordinated action would be the most effective way to improve effectiveness in preventing and combating illegal traffic.

1. Requests the Secretariat to build on and enhance existing actions to stimulate cooperation between existing networks of enforcement agencies including INECE, IMPEL-network of Europe, the Asian Network, and the green customs initiative;

2. Requests the Secretariat to stimulate the formation of new networks, in particular with other enforcement organisations or in regions where such networks currently do not exist;

3. Requests the Secretariat to further strengthen its collaboration with WCO on the harmonisation of customs codes;

4. Requests the Secretariat to collect and disseminate examples of best practice in enforcement as well as practical arrangements, such as on procedures for take-back in case of detected illegal traffic;

5. Requests the BCRCs to consult with the Parties in their regions with support of the Secretariat and other stakeholders as appropriate in order to develop programs and deploy activities to bring actors together, provide training and coordinate joint actions in this field.

6. Invites Parties to report to the Secretariat on cases of illegal traffic, using the form for confirmed cases of illegal traffic, as adopted by decision IV/12 of the Conference of the Parties, and invites the Secretariat to explore ways of making better use of the information to guide the decision-making of the Conference of the Parties;

7. Requests the Committee for Administering the Mechanism for Promoting Implementation and Compliance to oversee the activities to be undertaken to prevent and combat illegal traffic more effectively and report on the progress to the Conference of the Parties at its eleventh meeting.

• 6. Assisting vulnerable countries to prohibit the import of hazardous wastes

Recognising that Parties have the right to prohibit the import of hazardous wastes or other wastes and to define additional wastes as hazardous in accordance with Article 3; paragraph 1 of Article 4 and paragraph 2 of Article 13 of the Basel Convention; Noting that there remain obstacles to the full use of these provisions by Parties who would wish to be protected by them;

1. Requests BCRCs to consult the Parties within their regions and to identify the needs of such vulnerable countries and the difficulties that they face and make this information available to the Secretariat for dissemination to Parties;

2. Requests the Secretariat to facilitate and encourage greater use of the Basel Convention model legislation for the development or revision of national legislative and other measures for the prohibition of imports of hazardous wastes and further encourages Parties to make use of this model legislation;

3. Requests the Secretariat to develop and disseminate material for use through the BCRCs for the purpose of raising awareness of these provisions in their regions;

4. Encourages Parties to develop and update national lists of prohibited hazardous wastes and to transmit them to the Secretariat in accordance with Article 3 of the Convention and to cooperate with each other in the development of such lists;

5. Encourages the Secretariat to continue to adopt a pro-active approach with regard to the collection of the information required under paragraph 1 of Article 4 and paragraph 2 of Article 13, especially the lists of prohibited wastes, and to disseminate such lists electronically to Parties at 6-month intervals;

6. Requests the Secretariat to assist Parties towards a better understanding of the relationship between trade and the environment as relating to the transboundary movements of wastes.

7. Building Capacity

Recognising that some of the proposals in this decision may require additional funding, expertise and technology transfer; Recognising further that the objective of the Basel Convention contributes towards the achievement of the United Nations Millennium Development Goals and as such should be taken up by development agencies:

1. Encourages Parties to endeavour to ensure that the management of waste is considered in the preparation and implementation of development strategies and that waste management is recognized as part of meeting the Millennium Development Goals regarding environmental sustainability;

Comment [M16]: See objective 1.2 of the draft Strategic Framework.

Comment [M17]: We would be interested to know why it is proposed that the Secretariat, and not Parties themselves, should conduct these actions.

Comment [M18]: This decision does not contain a form.

Comment [M19]: We consider that extra work would need to be part of the committee's work programme. The work program of the Compliance Committee is covered by a separate decision

Comment [M20]: We are not very clear on what is actually requested in this point.

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2. Encourages the Secretariat to forge links with high-profile initiatives such as climate change and human health, in particular taking into account resolution WHA.63.25 adopted by the WHO General Assembly, and to continue to explore the possibilities to use the synergy process and SAICM for these purposes;

3. Encourages the BCRCs to specify and quantify the needs for capacity building for different Parties, including capacity needed to improve of national reporting to monitor implementation;

4. Encourages the Secretariat, the BCRCs and Parties to take action to secure political and public engagement with the work of the Convention;

5. To that end, invites WHO, building on its earlier studies on health and environment, to initiate a study into the impact on human health of failures to manage wastes in an environmentally sound manner, and to utilise the result of that study to demonstrate the importance of the Convention’s work;

6. Encourages the Secretariat to continue to exercise its advocacy role to promote and stimulate the inclusion of hazardous waste issues and implementation into other international and UN organisations’ work programs.

7. Encourages Parties to seek further collaboration with other agencies, NGOs and the private sector; 8.

Comment [M21]: We consider that this is neither the role of the Secretariat nor of the BCRC to mobilize expertise.

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Comments from the United States of America

Comments from the United States on the proposal prepared by Indonesia and Switzerland on the country-led initiative to improve

the effectiveness of the Basel Convention The United States appreciates the opportunity to comment on the proposal and draft omnibus decision prepared by Indonesia and Switzerland as an outcome of the country-led initiative. In general, we welcome the initiative and proposal and its focus on identifying and addressing the needs of countries that continue to face obstacles to prohibiting the illegitimate and unsound import of hazardous wastes. We offer the following comments, organized according to the sub-sections of the proposed omnibus decision, for consideration. 1. Addressing the entry into force of the Ban Amendment The proper interpretation of Article 17(5) of the Convention has been the subject of extensive discussion over the past decade. The United States, along with many Parties, other stakeholders, and the UN Office of Legal Affairs have all expressed views on the question. We do not intend to restate our views here. We do, however, take particular note of the conclusion of the CLI participants that the entry into force of the Ban Amendment would have “no practical implications.” In light of that conclusion, we would encourage Parties to consider whether it is necessary or appropriate to take steps, such as adopting interpretations of the Convention’s text motivated by a desire to reach a particular outcome, which might have far-reaching and/or unintended consequences. If the Parties were to proceed along the lines proposed in the omnibus decision, in our view it would be important that such a decision be explicitly limited to the particular situation of Article 17(5) of the Basel Convention. In this regard, we believe the caveat in the proposed decision that suggests it is to be “without prejudice to any other multilateral environmental agreement” is a good step, but is insufficient. It would be clearer to indicate that the resolution is “unique to the circumstances of the Basel Convention and is not intended to address the meaning of the words used in the Convention or any similar textual formulation in any other international instrument.” Finally, we note that there is an error in the explanatory note to the omnibus decision. That note suggests that a country joining the Convention after entry into force of the Ban Amendment, should it enter into force, would automatically be bound by the Amendment. As made clear by Article 40, paragraph 5 of the Vienna Convention on the Law of Treaties, a State joining a multilateral treaty that has been amended shall be considered a party to the treaty as amended “failing an expression of a different intention by that State.” In other words, a State in such circumstances may choose whether to be bound by the amendment; application of the amendment may be the default assumption, but it is not automatic. 2. Developing standards and guidelines for environmentally sound management (ESM) We support the continued development of guidelines for the environmentally sound management of hazardous wastes and other wastes and the proposal by the CLI to create an expert technical group to further develop these guidelines into an overarching framework. We would be interested in participating in, and sharing information for, such an effort, and suggest that the group draw from signatories as well as Parties to the Convention. With respect to timing, we believe it would be important to first conduct a thorough needs assessment, such as proposed in other elements of the draft omnibus decision, to identify specific gaps among countries in terms of implementing the Convention. Such an assessment would ensure that resources are used where they will be most useful and would not duplicate the extensive work that has already been done. We do suggest that the intended output from the group be further clarified. A framework of “requirements” could be interpreted as something intended to be legally binding, which may not be the intention of the Parties. 3. Providing further legal clarity In the abstract, the United States supports the goal of legal clarity. We also welcome developments under the Basel Convention that recognize the resource value of end-of-life products, and the challenges and issues posed by newer, non-traditional materials, products, and waste streams, such as used and end-of-life electronics. It is not clear, however, that adopting definitions and interpretations is a useful approach to address those challenges and issues. Issues of terminology might be best addressed in the context of substantive initiatives such as the Partnership for Action on Computing Equipment (mentioned by the CLI) and the effort to develop technical guidelines on the transboundary movement of used electrical and electronic equipment. In particular, it is not clear what is contemplated in the draft omnibus decision with respect to the definition of waste and hazardous waste, terms that are explicitly defined in Articles 1 and 2 of the Convention. Furthermore, we question

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whether it is appropriate for a Convention body to seek to define terms such as “second hand goods” and “used goods” that do not appear anywhere in the Convention. We have similar questions regarding whether it is appropriate for a Convention body to consider requirements for categories of goods and imports that are not “hazardous wastes” or “other wastes” within the scope of the Convention, as is suggested, for example, in paragraph 2 of this section of the draft omnibus decision with respect to “specific arrangements that can be applied to used and end of life goods.” Finally, and perhaps most importantly, we do not believe that the Committee for Administering the Mechanism for Promoting Implementation and Compliance is the correct forum to develop definitions and interpretations of Convention terms. The terms of reference of the Committee state that its purpose is to “assist Parties to comply with their obligations under the Convention and to facilitate, promote, monitor and aim to secure the implementation of and compliance with the obligations under the Convention.” In addition to addressing specific cases, the Committee may, as directed by the Conference of Parties, address general issues of compliance and implementation, but definition of terms is not an issue of compliance or implementation. 4. Further strengthening the Basel Convention Regional and Coordinating Centers (BCRCs) The United States fully agrees that BCRCs, as the draft decision suggests, “play an important role in training, technical assistance, and awareness raising,” and should be strengthened. We believe it could be counter-productive to their continued success in this role, as well as a drain on badly-needed resources, to assign to the BCRCs a more political set of tasks. Therefore, we suggest that the first (“Convening regional meetings to encourage and assist Parties in their ratification of the Ban Amendment or national measures to prohibit imports”) and fifth (“Taking action to secure political and public engagement with the work of the Convention”) bullet points related to activities of the BCRCs in the 2012-2021 framework be deleted. 5. Combating illegal traffic more effectively The United States supports the continuing efforts of the Basel Convention to combat illegal traffic in wastes. Many of the recommendations provided in the CLI proposal by Indonesia and Switzerland are ongoing; therefore, we suggest that the Basel Secretariat conduct an assessment of needs to better focus funding in terms of the various recommendations. 6. Assisting vulnerable countries to prohibit the import of hazardous wastes The United States overall supports the activities recommended in this section. Work on such issues as identifying real needs of developing countries and countries with economies in transition; updating national lists of prohibited materials and transmitting them to the SBC; enhancing reporting; developing national legislation; and promoting a better understanding between trade and environment as relating to the transboundary movement of hazardous waste, is critical in terms of how the other recommendations within the CLI proposal are implemented. The United States suggests that the term "vulnerable" used to describe certain countries is not well defined, but in any event may not be necessary; in each place in which that term is used in the draft omnibus decision, it could easily be deleted or replaced with the word "certain" with no change in meaning.

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Comments from the Basel Action Network (BAN)

206 1st Ave. S., Suite 410 Seattle, Washington 98104

Telephone 206 652-5555, Fax 206 652-5750 Web: www.ban.org

BAN’s Commentary on CLI Explanatory Note and Draft Decision 24 January 2011 Prepared by Basel Action Network A. General Comments BAN wishes to state at the outset that it greatly appreciates the work of the CLI and its participants. Great hope lies in the success of this process to fulfil the Indonesian President’s statement to the Parties at COP IX and his wish shared by so many to expedite the entry into force of the Ban Amendment. BAN concurs then with this overarching goal. Nevertheless some serious misstatments and false conclusions are prominent in the two CLI documents, which if they remain unaddressed can cause dangerous conclusions and possibly encourage inappropriate activities later. For these reasons we feel compelled to offer the following commentary to address these concerns. 1. Incorrect and dangerously limited rationale for Basel Ban cited BAN's strongest objection to the work of the CLI to date is the reductionist and revisionist notion that the only reason for the Basel Ban Amendment is the "protection of vulnerable countries." The history and actual text of decision III/1 indicate very strongly that the amendment exists for multiple reasons. It has long been recognized and discussed that the Amendment provides downstream protective benefits to importing countries and at the same time provides upstream benefits to all countries by incentivizing more efficient and appropriate minimization of waste generation by internalizing costs. The original text of the Basel Ban (Decision III/1) cited the following as the reason:

“Recognizing that transboundary movements of hazardous wastes, especially to developing countries, have a high risk of not constituting an environmentally sound management of hazardous wastes as required by the Convention;”

It must be recognized that this rationale states that it is the transboundary movement (particularly that which goes to developing countries) itself that constitutes a high risk of not being ESM. It implies therefore that it is the TBM that is the ESM problem (not just the harm from improper technology in a facility once the TBM takes place) and the risk to ESM is not limited to developing countries, but is a risk to all countries and includes the harm to all of us by allowing cost externalities via export to weaker economies (e.g. developing countries), rather than minimizing hazardous waste generation and solving the problem at the source (e.g. developed countries). ESM has always included the notion of minimizing waste generation as well as best management practices for waste that cannot be avoided. Thus, the rationale for the ban has always encompassed far more than simply preventing harm to vulnerable countries.

The extreme danger of the reductionist view as promoted by the CLI documents is that it creates a mythological and false picture of a world where Annex VII countries are the ones that can properly manage wastes and non-Annex VII countries cannot and thus the remedy for this is to provide technology to properly manage the waste. In other words the victims of cost externalization are blamed for the global problem and the remedy is seen as being downstream (e.g. end-of-pipe solution). This is very dangerous because in fact it is the Annex VII countries that have been creating the vast majority of the world’s hazardous waste to date and have not taken their responsibility to solve the problem by a) reducing their waste generation at source and b) not internalizing the significant costs of its management but rather externalizing it via export.

Once generated, hazardous waste creates risk and harm in all regions of the world. In richer countries they have the ability to mitigate the harm by the expenditure of resources. But all experts agree that the ultimate solution is to not produce hazardous waste in the first place and to internalize the costs not through expenditure but more efficient waste prevention measures and green design at source. Rather the true distinction between Annex VII and non-

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Annex VII is based on economic grounds to prevent the most egregious waste management cost externalization made possible via trade.

The Decision III/1 explanation also highlights the overarching obligation of the Convention for all countries to minimize ALL transboundary movement and has simply singled out those countries with the most resources (Annex VII) should be the ones to accomplish that obligation the first in the course of time. If the rationale for the Ban Amendment is simply framed as protecting the poor vulnerable developing countries because they are weak, this ignores the source of the problem and implies that the problem is located downstream and thus that is where the problem is to be solved. Nothing could be further from the truth. We are all vulnerable to hazardous waste and the answer can never be solving the problem downstream, but preventing it at source.

For this same reason BAN objects to the use of the word vulnerable in most instances as we are all vulnerable to hazardous waste once produced. Its just that in richer countries they can, by vast and often inappropriate (compared to waste minimization methods) expenditure of resources mitigate and contain the hazard.

BAN objects strongly to the CLI documents and in particular the Draft Decision in regard to the dangerous and revisionary language that frames the rationale for the Basel Ban Amendment erroneously and a limited way. We have provided track changes text in part B to address these concerns.

2. Document fails to accept and note the obligations of the Convention to minimize the generation of hazardous waste and its transboundary movement

The CLI documents strangely act as if the only concerns of the Basel Convention are ESM of existing hazardous waste and the Basel Ban. The Basel Ban is an outgrowth of these fundamental obligations and so the fact that they are not mentioned at all except in the annexed text of the Ban Amendment itself is not well understood. Unfortunately while ESM should rightfully include waste prevention in its definition, it is not understood this way by many. Far too many consider ESM to only be about what takes place in a recycling or disposal facility. Therefore it is very important to not leave out the overarching obligation to minimize the generation of hazardous waste – an obligation placed on all countries.

Of utmost importance is the reiteration of the obligation of all states to minimize transboundary movements of waste. The Basel Ban is the first step in fulfilling that obligation starting with the most egregious cost externalization and unsustainable form of hazardous waste trade.

BAN has seen a need to insert into these documents these obligations without which, one might conclude that hazardous waste trade is fine as long as it goes to state-of-art facilities anywhere in the world. Such a view is a throw-back to a time even before the Basel Convention was drafted.

3. Fixed time approach adoption the correct response for COP X to avoid vote

BAN has long argued strongly for the interpretation of Article 17 paragraph 5 being interpreted as some form of the “fixed time” approach. To argue for a “present time” approach would doom the possibility for the Ban Amendment to become into force when it is needed most (now and twenty years into the future). Already we have wasted precious years since its adoption in 1995. Fortunately it has been a success in any event due to the preponderance of responsible countries (33 of the 41 Annex VII countries) having already placed it into national law. Due to the uncontrolled daily exports of post consumer wastes such as electronics and ships, the ban is needed now more than ever in history. It is unlikely that Parties, particularly those in developing countries that have patiently awaited the fruition of this Amendment promise, will accept any more delays. Clearly to avoid a vote by the Parties on this important issue in Cartagena, the fixed time approach must be agreed to.

However, BAN takes issue with the Explanatory Note that makes the case that its entry into force would be somewhat symbolic or useful in sending a political message but otherwise inconsequential. The assumption in this statement rests on the notion that once it becomes international law, then those that have not acceded to it would remain unpersuaded to join the international community in implementing it. Rather, we believe that the eight hold-out countries (Australia, Canada, Israel, Japan, Mexico, New Zealand, South Korea, United States) that have not ratified the Ban Amendment will very likely ratify it once it enters into force. Further we believe that some of the above countries, even if they do not immediately take the step of ratifying the Amendment will rapidly improve their enforcement of exports that would violate the ban were it in force for them based on the ban’s legal significance in light of the sovereign right of states (Article 4, para. 1) to ban the import of hazardous waste and all other states to recognize that right. Once in force it will be very clear that those non-Annex VII countries that have ratified the ban are exercising this sovereign right and any country exporting to them will be in violation of the Convention.

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B. Suggested Amendments to CLI Documents

Please find BAN’s comments and track changes inserted into the document below.

CLI/2010/3/2 Basel Convention

Indonesian-Swiss Country-Led Initiative (CLI)

to improve the effectiveness of the Basel Convention

Explanatory note

Introduction

The Indonesian-Swiss Country-Led Initiative (CLI) process was initiated by Indonesia and Switzerland in response to a statement made by the President of the Ninth Meeting of the Conference of the Parties to the Basel Convention1. The President encouraged Parties to explore ways of furthering the objectives of the Ban Amendment.

The Ban Amendment (Annex 1) has been identified as an important instrument to:

a) protect potentially exploited countries against adverse effects of exports of hazardous wastes from developed countries,

b) prevent the externalization of costs, risks and harm by generators and exporters of wastes in developed countries to developing countries which creates economic disincentives for the more appropriate and efficient upstream internalization of costs through green design, waste prevention and environmentally sound management at source.

c) Prevent globally the environmental injustice of disproportionately burdening populations with global loads of pollutants simply due to their economic status

There are many good reasons the amendment should enter into force, the primary ones highlighted above. The Basel Ban Amendment addresses the most egregious examples of global cost externalities, it divides the Parties to the Basel Convention into two groups, the first of which comprises of OECD and EU member countries as well as Liechtenstein (Annex VII); the second, all other countries (non-Annex VII). The Amendment prohibits movements of hazardous wastes from the first group of Parties who have ratified the Amendment or who have acceded to the Convention after amendment, to the second group. This includes movement for any sort of disposal, whether final disposal or recycling/recovery.

Although the ban was adopted as a decision at the second meeting of the Conference of the Parties in 1994 and subsequently adopted as an amendment to the Convention at the third meeting 15 years ago (1995), it still has not entered into force despite having achieved 69 ratifications to date.

There are two possible approaches to furthering the objectives of the Ban Amendment as requested by the President’s statement: a) to find a possible way forward to ensure entry into force of the Ban Amendment and; b) to find other ways of protecting potentially exploited countries, preventing economically motivated exports (externalization) and incentivizing upstream waste prevention. The CLI concluded that both of these approaches are needed.

The CLI process

The two lead countries to the CLI invited experts from a number of Parties to participate in the process. The range of participation was selected from Annex VII and non-Annex VII Parties, and was intended to reflect the range of political positions on the Ban Amendment as well as being drawn from across the various United Nations geographic regions.

1 Annex to Decision IX/26: President’s statement on the possible way forward on the Ban Amendment

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Comment [JP22]: Please see BAN general comments section 1. It is not acceptable that but one rationale is given for the Ban amendment and that one only looks downstream in its thinking. We have adjusted the text here to provide the most important rationales for the Ban Amendment

Deleted: is

Comment [JP23]: BAN objects to the use of the term "vulnerable" as it implies that the only reason that transboundary movement should not take place is because certain countries are "too weak" to accept hazardous waste. It implies that once they become less weak then TBM is fine despite the fact that all hazardous waste anywhere in the world implies significant risk, and all countries and peoples are in fact vulnerable to it and the Convention obliges all countries to minimize all transboundary movements. Furthermore, higher levels of technology to mitigate risk (less vulnerability), is no justification for allowing increased hazardous waste trade moving for economic reasons (e.g. cost externalization). The use of this term is incorrect and is a form of blaming the victim of economically motivated

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Comment [JP24]: The Basel Ban is an export ban, not an import

Comment [JP25]: This language implies that non-Annex

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Comment [JP26]: This needs to be corrected. The first meeting

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Comment [JP27]: Again, all of the key reasons must be listed

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Three meetings were held to hear and consider evidence about flows of hazardous wastes, the reasons for those flows and the harm caused by inadequate management of the wastes and cost externalization. Each meeting lasted 4 or 5 days, was residential and held in a remote resort, to encourage participants to immerse themselves in the process. The participants were invited to discuss the issue in a pragmatic way, without taking a political stance. Chatham House rules prevailed, so that participants could speak frankly without attribution.

The outcomes of the meetings were a series of papers that were placed on the Basel Convention website for public consultation. Responses to the consultations were also published (where the author gave permission) and were referred to in revising the documents. Additionally, the outcomes of the first and second meetings were presented to and discussed by the Open Ended Working Group of the Basel Convention during its seventh session (10-14 May 2010). Therefore, even though the participation in the meetings was limited, the outcomes of the meetings were transparent.

This document reflects the outcome of the third meeting, which takes the form of a draft omnibus decision, composed of seven sections to be presented for consideration by the tenth meeting of the Conference of the Parties. This draft decision shall be subject to consultation and discussion, at first between participants in the CLI process but then opening up to all Parties and interested stakeholders.

The draft omnibus decision emanating from the third meeting deals with both the approaches to meeting the objectives of the Ban Amendment: expediting ratification of the Ban Amendment; and other ways of meeting the ban’s objectives.

Promoting entry into force

At the time of drafting this Explanatory Note, 69 Parties have ratified the Amendment. Depending on how the Convention’s provision on entry into force of amendments is interpreted, the Ban Amendment may therefore still require ratification by a number of Parties before it enters into force.

There are different reasons why some Parties have not as yetratified the Ban Amendment. Some countries find it difficult to implement the necessary legislation or other measures necessary to ratify the amendment. Some Annex VII countries lack the necessary facilities for recycling certain wastes in their own country and find that an effective and efficient solution, consistent with the proximity principle, is to have the waste treated in environmentally sound facilities in nearby non-Annex VII countries. Some non-Annex VII countries rely on such imports as important sources of raw materials. Others have simply not prioritized it’s ratification. In any case, the Basel Convention obliges parties to minimize the transboundary movement of hazardous wastes and to establish national self-sufficiency in waste management.

The CLI identified a number of measures that could be brought forward to assist the first group of Parties – those who lack the resources or institutional capacity to propose and implement legislative or regulatory instruments to implement the Ban Amendment, or have simply not prioritized it. For some countries on the other hand, it was recognised that theymight be remain opposed to ratifying the Amendment even if it should enter into force.

It is important, as the objective of the CLI is to expedite and encourage entry into force of the Ban Amendment, to interpret the provisions of paragraph 5 of Article 17 of the Convention in a way that requires the minimum number of additional ratifications to this Amendment. Considering that the Parties to the Convention have the ultimate power to agree on the interpretation of the Convention, the CLI has proposed adopting a ‘fixed-time’ approach for amendments to the Convention to enter into force. This approach would use the number of parties to the Convention at the time that the Amendment was adopted as the basis for entry into force.

The CLI considered the consequences of entry into force of the Amendment. Regardless of whether the Amendment was in force or not, Annex VII countries that have ratified the Amendment can commit themselves to not export hazardous wastes to non-Annex VII countries. In fact 33 of the 41 Annex VII countries that have already ratified the Amendment have also adopted legislation in line with the terms of the ban and are thus already implementing it. In the event that the 8 Annex VII countries that have not ratified as yet wished to continue to not ratify the Amendment, they would not be bound by it once it entered into force, provided they were a Party to the Convention prior to its entry into force.

Following entry into force of the amendment, non-Annex VII countries that have ratified the agreement will be expected not to receive any hazardous wastes from Annex VII countries whether or not that have ratified the Amendment. As indicated, in the light of the current policy of Annex VII countries that have ratified the Amendment to implement the ban already before its entry into force, the entry into force of the Amendment would primarily formalize internationally the current situation. Ratification of the ban would not affect imports from non-Annex VII countries. Therefore, to secure wider protection the countries would have to take active steps, e.g. via import bans in national legislation to prohibit imports from non-Annex VII countries, as provided by the Convention.

It was concluded that while entry into force of the Amendment would send a powerful political signal, it may not necessarily result in significant changes in waste flows, volumes and patterns currently. However, it is possible that

Comment [JP28]: It is vital to discuss openly the issue of cost externalization because at the core this is the driver for the international trade in wastes.

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Comment [JP29]: It is incorrect to state that meetings that exclude people intentionally are transparent. Rather what is correct is that the outcomes were transparent. BAN is still very unhappy that we as an with persons on staff with the historic perspective, having been integral to drafting the Ban Amendment and have written extensively about it, its importance and impacts were not organization that was allowed to participate in the analysis of its meaning and impacts.

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Comment [JP30]: Saying that countries are "not in a position" already implies more than can be known. It implies that there is a "good "reason for not ratifying when in fact the reason may be simply inertia or their being more pressing problems. Better to not pretend why. Many is likewise a loaded word. One person's "many" is another person's "few". Better to just state the facts without subjective comment.

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Comment [JP31]: To make such assertions without examples is lacking in transparency. BAN has no evidence that countries have exchanged the rights to dispose of waste for investment.

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Comment [JP32]: It is rather remarkable that the minimization

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Comment [JP33]: It is appropriate to remind that this is

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entry into force would encourage more widespread acceptance by all countries including the 8 Annex VII countries that have so far not ratified and thus have not put the ban into their national legislation. Further it could be forseen that even if the remaining 8 countries chose to continue to not ratify, they may nevertheless see fit to ensure greater enforcement if the ban were in strict legal force globally. If this is the case the reduction in volumes of Annex VII to non-Annex VII waste trade could be significant. The legal situation is visualised in the graphic below.

Other measures

Even when the fixed time approach is applied, the Ban Amendment will not enter into force immediately as ratifications of ¾ of those Parties present at the time of adoption has yet to be achieved.

Further, while the Basel Ban Amendment perhaps addresses the most egregious forms of cost externalization and exploitation, it does not address all of the possibilities of unsustainable waste trade. The entry into force of the Ban Amendment thus ,should be viewed as a partial solution to protect potentially exploited countries and ensure cost internalization through waste prevention at source. Other measures are necessary to further its objective.

Broader measures are also important because the world has changed considerably over the last 15 years since the adoption of the Ban Amendment. Generation of hazardous wastes is increasingly a problem in developing countries. Transboundary movements of hazardous wastes from non-Annex VII countries to other non-Annex VII countries and treatment of domestically-generated hazardous wastes are therefore increasingly relevant. Further, illegal traffic

Comment [JP34]: It is just not possible to determine the impacts of entry into force of the BAN on waste trade flows and volumes. This is particulary true as the political force of entry into force may persuade current Parties that are currently entrenched in opposition to change their stance or it may not. For example if the JUSCANZ group were to accept the global norm of the ban, we could see a significant increase in diligent enforcement and a reduction in e-wastes for example that BAN has documented currently flowing all to easily from Canada, South Korea and the United States.

Deleted: there would be no practical implications.

Deleted: The only difference to the current situation

Comment [JP35]: It is impossible to know what the effect will be. This is a rather pessemistic view which BAN does not share.

Comment [JP36]: This graphic only shows what is legally allowed or not. It does not show volumes.

Deleted: would be that more Parties have ratified the Ban and thus the number of Parties applying the Ban would have increased.

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Comment [JP37]: The statement deleted below can not be made with any degree of certaintly. We believe that if the fixed time approach is adopted, it will not be long before entry into force is achieved.

Deleted: In spite of the steps taken to promote the Amendment’s entry into force this is unlikely to happen in the near future, and when it does enter into force many countries will continue to choose not to ratify it.

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of hazardous wastes and in particular, post-consumer waste is an increasing problem. Many of these issues can not be addressed by the entry into force of the Ban Amendment alone.

For these reasons, the CLI has considered other ways of furthering the objectives of the Ban Amendment - the protection of potentially exploited countries, the prevention of cost externalization to the detriment of fostering a minimization of waste generation, and redressing the possible disproportionate burdening of developing countries from global waste arisings. It has made recommendations about improving the ways hazardous wastes are dealt with, through the promotion of a framework of requirements for environmentally sound management (ESM)2, recommendations about legal clarity and combating illegal traffic, recommendations for action at regional level and ways of assisting countries to build upon and utilise their rights to prohibit the import of hazardous wastes, from whatever source. The CLI also recognised that financing, expertise and technology would have to be found for such initiatives, and has proposed methods for raising awareness of the Convention’s work and forging links with other initiatives.

The CLI’s recommendations

The outcome of the CLI process is a paper, currently in draft form, intended ultimately for presentation to the tenth meeting of the Conference of the Parties (COP) in October 2011. This paper sets out a number of recommendations in the form of an omnibus draft decision for consideration by the COP. This decision is a compilation from a number of elements identified during the second meeting of the CLI and presented to the seventh session of the Open Ended Working Group (OEWG-7) in May 2010, which took note of the list of elements for inclusion in a possible way forward.

The following elements were identified:

• Addressing the entry into force of the Amendment

Following comments received at OEWG-7 this element was given greater priority, not least because of its political importance. Countries are encouraged to ratify the Amendment and would be assisted through regional cooperation and specific initiatives.

An agreed interpretation of paragraph 5 of article 17 - the provision of the Convention relating to the entry into force of amendments - so as to allow an early entry into force of the Ban Amendment is also recommended

• Development of a Framework of Requirements for Environmentally Sound Management

The draft decision recommends that an expert technical group be established, taking into account regional balance to be mandated to further disseminate existing work, develop a new framework on ESM and investigate ways in which ESM standards might be linked to transboundary movements of hazardous wastes.

• Providing further legal clarity

CLI participants have identified a number of areas where the wording of the Convention, or its on-the-ground interpretation, is not clear or differs between countries. The CLI is recommending that work be undertaken within the Basel Convention Committee for Administering the Mechanism for Promoting Implementation and Compliance to provide additional clarity in this respect.

• Recognising the important role of the Basel Convention Regional Centres

Many of the recommendations in the draft decision would be best implemented at regional level. For this reason, the COP is invited to recognise this, to enhance and further support the work of the Centres, including integrating this role into the BCRCs development within the new strategic framework for the Basel Convention.

• Combating illegal traffic more effectively

The CLI heard evidence that illegal traffic in hazardous wastes is causing considerable harm to human health and the environment. Clearly, better enforcement is essential to addressing this issue. Enforcement authorities already cooperate with each other in a number of ways, and the CLI recommends that this work is built upon, promulgated and encouraged in a number of specific ways.

• Assisting potentially exploited countries to prohibit the import of hazardous wastes

2 ESM – environmentally sound management: 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 from the adverse effects which may result from such wastes

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Deleted: None of these issues would

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Comment [JP38]: This is a rather selective treatment of recent trends. We have sought to balance it better with this change.

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The Convention provides for Parties to prohibit imports of hazardous wastes and a mechanism is provided to enable notification of such prohibitions. Some countries have, however, faced practical obstacles to taking the necessary steps to implement such prohibitions. The draft decision identifies a number of steps that might be taken by the Secretariat, by regional centres and by Parties to assist overcome these obstacles.

• Building Capacity

In many parts of the world there would be severe difficulties in finding the resources necessary to support a drive towards the improved environmentally sound waste management envisaged in the above mentioned elements. Thus, capacity building will need to be a priority in any such initiative implementing the draft decision. The CLI has identified a number of elements that might contribute to capacity building. In this context it is important to recognise that the resources that would be needed include not just financial resources but also expertise, knowledge and technology transfer.

An important first step would be to link and integrate the goals of the Convention with other important initiatives, such as the Millennium Development Goals, climate change, human health initiatives and so on. Securing political and public engagement is also necessary. At present, the data on the problems caused by inadequate management of hazardous waste is sparse when compared to the data relating to other health and environmental problems, such as water pollution, desertification, biodiversity loss, and so on. This makes it difficult for the Convention to present a strong case for resources and the draft decision also recommends a better assessment of impacts.

Next steps

Comments by Parties and other stakeholders on the draft omnibus decision and on this explanatory note are invited by the end of January 2011. Both papers will then be revised and distributed more widely. Further opportunities for consultation and review are planned to be exploited at the 26th Session of the UNEP Governing Council Global Ministerial Environment Forum in February 2011 and at the second meeting of the Expanded Bureau of the ninth meeting of the Conference of the Parties to the Basel Convention in March 2011.

The final paper, to serve as a working document for the tenth meeting of the Conference of the Parties, will be elaborated in July 2011. Thereafter, Permanent Missions of Parties and non-governmental organisations will be consulted through consultative and information meetings in September 2011 and early October 2011. The tenth meeting of the COP is tentatively scheduled for 17-21 October 2011 in Cartageña de Indios, Colombia.

Consideration will also be given to the possibility of attracting co-sponsorship for the paper by the countries of the participants in the CLI process. A significant number of participants co-sponsoring the document would lend considerable weight to its recommendations, but a smaller number might send the opposite signal and in this case Indonesia and Switzerland would present the paper.

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Annex 1: The Ban Amendment

Decision III/1 adopted by the third meeting of the Conference of the Parties (the ‘Ban Amendment’) consists of the following elements:

a) Insertion of a new preambular paragraph 7 bis stating:

“Recognizing that transboundary movements of hazardous wastes, especially to developing countries, have a high risk of not constituting an environmentally sound management of hazardous wastes as required by the Convention;”

b) Insertion of a new Article 4A reading:

“

1. Each Party listed in Annex VII shall prohibit all transboundary movements of hazardous wastes which are destined for operations according to Annex IV A, to States not listed in Annex VII.

2. Each Party listed in Annex VII shall phase out by 31 December 1997, and prohibit as of that date, all transboundary movements of hazardous wastes under Article 1 (1)(a) of the Convention which are destined for operations according to Annex IV B to States not listed in Annex VII. Such transboundary movements shall not be prohibited unless the wastes in question are characterised as hazardous under the Convention.”

c) Introduce a new Annex VII reading:

“Parties and other States which are members of OECD, EC, Liechtenstein.”

Please note that the Annex IV A mentioned in decision III/1 refers to the Annex of the Convention listing ‘operations which do not lead to the possibility of resource recovery, recycling, reclamation, direct re-use or alternative uses’. Annex IV B refers to the Annex of the Convention listing ‘operations which may lead to resource recovery, recycling reclamation, direct re-use or alternative uses’.

CLI/2010/3/1

Indonesian-Swiss country-led initiative to improve the effectiveness of the Basel Convention

Proposal prepared by Indonesia and Switzerland

Introduction 1. By its decision IX/26, the Conference of the Parties to the Basel Convention acknowledged the “President’s statement on the possible way forward on the Ban Amendment” set out in the annex thereto and invited Parties to take that proposed way forward into consideration wherever possible. 2. In his statement, the President sought to launch a process to reaffirm the Amendment’s objectives and to explore means by which they might be achieved. The President called upon all Parties to create enabling conditions, through, among other measures, country-led initiatives conducive to the attainment of those objectives. The president stated that, “such country-led initiatives will serve to contribute to gathering momentum to en-courage ratification of the Amendment and to expedite its entry into force.” 3. Based on that statement, the Governments of Indonesia and Switzerland announced their readiness to organize a country-led initiative to discuss, in an informal and dynamic manner, views from various sides on a way forward to ensure that the transboundary movements of hazardous wastes, especially to developing countries and countries with economies in transition, constitute an environmentally sound management of hazardous wastes, as required by the Basel Convention.

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The process 4. Three physical meetings, supported by the Basel Convention Secretariat and consultants, have taken place as part of the Indonesian-Swiss Country Led Initiative (the ‘CLI’). The first took place from 15 to 17 June 2009 in Bali, Indonesia, the second from 12 to 15 January 2010 in Wildhaus, Switzerland, and the third from 24 to 28 September 2010 in Hilterfingen, Switzerland. The outcome of the first two meetings was presented to the seventh session of OEWG on 10-14 May 2010 (UNEP/CHW/OEWG/7/7 and UNEP/CHW/OEWG/7/INF/8). 5. The documentation and outcomes of meetings under the CLI were circulated to Parties and other stakeholders by e-mail and through the Basel Convention website. All Parties and stakeholders were afforded the opportunity to comment on the issues to be discussed and a number of stakeholders that were not directly involved in the CLI provided valuable input to the process. 6. The first meeting considered the available statistics on the transboundary movements of waste and discussed the possible reasons why transboundary movement takes place to countries where environmentally sound management cannot be assured. This led to the preparation of an analysis of these reasons. 7. The second meeting considered further this analysis of possible reasons for the transboundary movement of hazardous wastes where environmentally sound management could not be ensured, and also considered a paper on the impacts on human health and the environment of transboundary movements of hazardous wastes. In light of these discussions the meeting developed a list of possible elements for a way forward. 8. The third meeting focused on the preparation of concrete proposals for recommendations for consideration by the Conference of the Parties. A more detailed paper describing the background to these recommendations is set out in an explanatory note that is distributed together with the present document General considerations 9. The entry into force of the Ban Amendment is a matter of political importance. Obstacles to its entry into force and ways of addressing those obstacles were considered and draft recommendations prepared for transmission to the Conference of the Parties. It was noted that Parties are not obliged to ratify the ban.. 10. Consideration of some data on waste flows and on health effects indicated that movements between non-Annex VII countries continue to increase based on demand from both sides and illegal movements and management of hazardous waste arising within non-Annex VII countries are cause for concern. It was also noted that to this day a great deal of toxic waste (e.g. e-waste) traffic that is presently illegal or would be made illegal with entry into force of the Amendment continues. The former would not be addressed by the Ban Amendment but the latter would be. 11. Therefore, a number of the recommendations arising from the CLI process deal with ways of addressing these issues and improving standards of waste management practices, enhancing efforts for combating illegal traffic, helping vulnerable countries to protect themselves against unwanted imports, and clarifying certain aspects of the implementation of the Basel Convention, and providing economic incentives for more efficient and appropriate upstream management and especially prevention of hazardous waste generation. Proposed action 12. The Conference of the Parties may wish to adopt a decision along the fol-lowing lines: The Conference of the Parties 1. Addressing the entry into force of the Ban Amendment Recalling the basis for the Basel Ban Amendment, that the transboundary move-ments of hazardous wastes, especially to developing countries, have a high risk of not constituting an environmentally sound management of hazardous wastes as required by the Convention;” Understanding that the export of hazardous wastes from developed to developing countries is likely to exploit communities and environments in developing countries; externalize costs and risks of waste management and therefore provide disincentives to applying such costs more appropriately upstream by the waste generators to prevent and properly manage such wastes; and disproportionately burdening peoples and environments in developing countries.

Comment [JP39]: Then they would not be Parties.

Deleted: unless they become Parties after the Ban has entered into force

Comment [JP40]: As we have said in our earlier comments this data is highly suspect.

Comment [JP41]: Need to balance the reporting of recent trends.

Comment [JP42]: This is really the most important recital with respect to the Basel Ban Amendment.

Deleted: there

Deleted: while

Deleted: vulnerable

Deleted: Parties who are unable to handle hazardous and other wastes in an envi-ronmentally sound manner, but who continue to receive such wastes, which results in serious harm and needs to be addressed as a matter of urgency;

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Noting that the amendment to the Basel Convention adopted by decision III/1 of the Conference of the Parties is one way of meeting these challenges but that other ways exist to address the challenges responsibly, (e.g. national or international initiatives to apply extended producer responsibility policies, green de-sign initiatives to prevent the use of toxics in products and processes, as well as through stringent application of the existing Basel obligations and enforcement of them. Bearing in mind decision VIII/30 of the Conference of the Parties emphasising that the Parties to the Convention have the ultimate power to agree on the interpretation of the Convention, Stressing the need for the Parties to agree on an interpretation of paragraph 5 of Arti-cle 17 of the Basel Convention as an important step in the development of the Con-vention, without which the capacity of the Parties to amend the Convention for any reason would be inhibited, 1. Welcomes the practical initiative and activities that have taken place in re-sponse to the call of the President of the ninth meeting of the Conference of the Parties for Parties to expedite ratification of the Ban Amendment, so as to facilitate its entry into force, and further invites Parties to continue to under-take concrete actions towards encouraging and assisting Parties to ratify the Amendment, including: � Specific actions, such as the Nordic Initiative, to assist Parties facing legal and technical difficulties in ratifying the Ban Amendment; � Regional meetings; � Country-specific studies of the implications of ratification and entry into force. 2. Resolves, without prejudice to any other multilateral environmental agree-ment, that the meaning of paragraph 5 of Article 17 of the Basel Convention be interpreted so as to mean that the acceptance of three-fourths of the Parties at the time of the adoption of the amendment is required for the coming into force of such amendment. 3. Notes, that such an interpretation of paragraph 5 of Article 17 does not compel any Party to ratify an amendment.. 2. Developing standards and guidelines for ESM and prevention of hazardous wastes and their Transboundary Movement Reaffirming that the fundamental obligations of the Convention include ensuring that the generation of hazardous wastes and other wastes is reduced to a minimum taking into account social, technological and economic aspects; that the transboundary movement of hazardous and other wastes is reduced to the minimum consistent with the environmentally sound and efficient management of such wastes; and is conducted in a manner which will protect human health and the environment against the adverse effects which may result from such movement; Recognising that the generation of hazardous wastes has continued to increase glo-bally, and that transboundary movements of hazardous and other wastes has still not been reduced to a minimum while harm to human health and the environment is still being caused throughout the world by such hazardous waste and inadequate waste management procedures; Acknowledging the existing activities undertaken by Parties and others to ensure that the generation of hazardous and other wastes and the transboundary movements of such wastes are reduced to a minimum; as well as those activities to promote environmentally sound management of hazardous wastes and other wastes that do exist, including the development of technical guidelines, national legislation, reference documentation and other guidance, whilst also acknowledging that further dissemination of these activities is necessary; Stressing the continuous need of Parties to have access to sufficient information to minimize the generation of hazardous and other wastes and their movement as well as to ensure that hazardous waste and other wastes to be exported are managed in an environmentally sound manner; Considering that a more systematic and comprehensive effort is needed to identify requirements for the minimization of waste generation and its movement as well as its environmentally sound waste management, and to encourage their adoption, 1. Invites the Secretariat to disseminate information it receives on existing activi-ties undertaken by Parties and other stakeholders to ensure the environmentally sound management of hazardous wastes and other wastes; and to

Deleted: at

Deleted: meet that

Deleted: especially

Comment [JP43]: This is a highly selective mention of Basel obligations. Better to mention them all inclusively.

Deleted: prior informed consent procedure, strengthening environmentally sound man-agement and national legislation;

Comment [JP44]: An important reminder that this decision needs to be made for all amendments in future.

Comment [JP45]: It is wrong to assume that it is ok to produce hazardous waste and that the only issue is how to mitigate the risks inherent in its generation. The Basel Convention says otherwise.

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minimize the generation and movement of such wastes; 2. Decides to complete the development of a framework of requirements for the environmentally sound management of hazardous wastes and other wastes and their minimization at source as well as the minimization of their transboundary movement; 3. Requests the Secretariat in close cooperation with the Parties to elaborate, based on the elements listed in Annex I, a draft framework of requirements for the environmentally sound management of hazardous wastes and other wastes, including waste minimization and reductions in transboundary movements, that can be implemented and enforced through various tools or instruments, which shall include the following elements: - categories of requirements; - the availability and appropriateness of existing tools; - gaps and priority areas for action for the Convention; - ways in which this ESM framework and its elements might be linked to the issue of transboundary movement of hazardous waste; 4. Decides to mandate an expert technical group established by regional balance to undertake work to further develop the framework, taking into account the categories of requirements, tools and instruments and measures listed above, and to submit the framework to the eleventh meeting of the Conference of the Parties for its consideration and possible adoption. Annex I Elements for the environmentally sound management of hazardous wastes and other wastes, the minimization of their transboundary movement and generation that can be implemented and enforced through tools or instruments for imple-mentation and enforcement,: In developing the framework of requirements for the environmentally sound man-agement of hazardous wastes and other wastes, the Secretariat shall take into account the following elements: � National infrastructure and capacity to maintain and enforce optimal envi-ronmental management and occupational health and safety both inside facilities and externally, including worker rights, and access to information and legal re-dress of damage; � Assurances in place that costs will not be externalized, and if the waste is im-ported that such imports are not driven by cost externalization. � Assurances that any population will not be disproportionately burdened by environmental risk or negative impacts simply due to economic, political, social or other status; � Occupational health and safety requirements (e.g. regarding safety, health, lia-bility, emergency response) � Facility related requirements (e.g. regarding construction and infrastructure) � Waste related requirements (e.g. collection, sorting, pre-treatment, treatment, storage, downstream management) � Emission related requirements (e.g. emission limit values to air, water, and soil) � Organizational requirements (e.g. valid licence/permit, monitoring, record keep-ing, information to be provided to authorities, aftercare, insurance, management abilities/training level environmental management systems) � Regulatory and enforcement infrastructure and requirements (consis-tency/complementarity) Tools and instruments implementing these require-ments may include the following: � Legislation; � Infrastructure to empower workers and communities rights and access to infor-mation; � Standards and certifications that include Basel Convention obligations;

Deleted: to be operationalised through

Deleted: tools or instruments for implementation and enforcement

Deleted:

Deleted: to be operationalised through

Deleted: operationalising

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� Policies; � Codes of good practice. The measures needed to implement the requirements may include: � Certification of standards that include Basel obligations; � Licences and permits regularly validated; � Compliance promotion of regulations (e.g. training, awareness raising); � Regular inspections and controls; � Mechanism to take measures in case of non-compliance.

3. Providing further legal clarity

Noting that a number of the provisions of the Convention are interpreted differently by Parties and that implementation and application of these provisions would benefit from additional legal clarity; Recognising that there needs to be a clear distinction between wastes and products for some used equipment and second-hand goods and that some countries receive unwanted imports of used and near end-of-life goods that will soon become waste; 1. Requests the Open-Ended Working Group, , assisted by tech-nical experts as appropriate: o to recommend to the COP, the definitions and or interpretation of a list of terms related to the implementation of the Convention be elaborated, including: • waste / non-waste; • hazardous waste / non-hazardous waste; • re-use; • full functionality • direct re-use; • refurbishment; • second hand goods • used goods. to develop such guidance to provide the national authorities, regional centres and all other stakeholders with authoritative and consistent advice on the interpretation of these terms in connection with the Basel Convention, building on existing guidance and examples of good practice. 2. Requests the Open Ended Working Group, assisted by legal and technical experts as appropriate and taking account other initiatives such as PACE, to consider specific arrangements that can be applied to used and end of life goods: o to require take-back obligations to be put on the importers of such goods; o to clarify the status of ‘charitable donations’; o to evaluate and propose a definition of when used goods become waste. 3. Requests the Open-Ended Working Group to submit the results of its work to the eleventh session of the Conference of the Parties for its consideration and possible adoption; 4. Requests that, following its possible adoption by the Conference of the Parties, the Basel Convention Regional and Coordinating Centres use this guidance in their training, capacity building and awareness raising activities.

4. Further strengthening the Basel Convention Regional and Coordi-nating Centres (BCRCs)

Recognising that the BCRCs play an important role in training, technical assistance and awareness raising and that this role should be strengthened;

Formatted: Bullets andNumbering

Formatted: Indent: Before: 1.27 cm

Deleted: 3.

Deleted:

Deleted: vulnerable

Comment [JP46]: BAN does not believe this activity lies within the terms of referenceof the "compliance committee" but rather should lie with the Open Ended Working Group which deals with both legal and technical aspects. The compliance committe is lacking in the full array of legal expertise and has a very limited participation and mandate. Perhaps the OEWG would want to create another subsidiary body to accomplish this specific task.

Deleted: Committee for Administering the Mechanism for Promoting Implementation and Compliance

Comment [JP47]: This is a very important consideration given that the EU and PACE are grappling with this definition.

Deleted: Committee for Administering the Mechanism for Promoting Implementation and Compliance,

Deleted: Committee for Administering the Mechanism for Promoting Implementation and Compliance

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Noting that many of the proposals included in the recommendations of the CLI ulti-mately involve initiatives that are best taken at the regional and sub-regional levels and the BCRCs are ideally placed to take them forward; Hence identifying the need to expedite the ongoing review and strengthening of the operation of these centres: Requests Parties to integrate the following activities into the plan for the de-velopment of the BCRC as foreseen in the strategic framework 2012 -2021 for the implementation of the Basel Convention:

i. Convening regional meetings to encourage and assist Parties in their ratifi-cation of the Ban Amendment or national measures to prohibit imports;

ii. Promulgating guidance and standards of ESM, minimizing waste generation and the minimization of transboundary movement through their training, assistance and awareness raising activities; iii. Developing a program and deploying activities to bring actors together, to provide training and to coordinate joint actions to minimize the transboundary movement of hazardous and other wastes and to combat illegal traffic, with support of the SBC and other stakeholders as appropriate; iv. Consulting the Parties within their regions and to identify the real needs of developed and developing countries and countries with economies in transition and the difficulties that they face with minimizing waste generation, transboundary movements of wastes and other wastes, including near-end-of-life second hand goods.v. Taking action to secure political and public engagement with the obligations and objectives of the Convention; vi. Seeking further collaboration with other agencies, NGOs and the private sector; vii. Seeking out and mobilising relevant expertise in other relevant international and regional organisations. 5. Combating illegal traffic more effectively Recognising that illegal traffic in wastes, especially hazardous wastes, constitutes one of the main challenges to be addressed by the Parties to the Basel Convention in order to prevent harm to human health and the environment; Realizing that there is a great need to implement the Basel Convention into national law in order to provide for legal application at the national level in all countries; Noting that the provision of more legal clarity, strengthening the role of the BCRCs and building capacity would facilitate the work of enforcement agencies in preventing and combating illegal traffic more effectively; Recognising that coordinated action between various national and international gov-ernment and non-governmental entities including customs, police, courts and envi-ronmental agencies, and environmental NGOs would be the most effective way to improve effectiveness in preventing and combating illegal traffic. 1. Requests the Secretariat to build on and enhance existing actions to stimulate cooperation between existing networks of enforcement agencies including INECE, Interpol, Europol, IMPEL-network of Europe, the Asian Network, and the green customs initiative and with NGOs involved in combating illegal traffic; 2. Requests the Secretariat to stimulate the formation of new networks as appro-priate, in particular with other enforcement organisations or in regions where such networks currently do not exist; 3. Invites the Secretariat to further strengthen its collaboration with WCO to en-sure the appropriate creation and harmonisation of customs codes for traded wastes; 4. Requests the Secretariat to collect and disseminate examples of best practice in enforcement as well as practical arrangements, such as on procedures for repatriation of wastes in case of detected illegal traffic; 5. Requests the BCRCs with support of the Secretariat and other stakeholders as appropriate to develop a program and to deploy activities to bring actors to-gether, provide training and to coordinate joint actions in this field. 6. Invites Parties and other stakeholders to report to the Secretariat on cases of illegal traffic keeping in mind, using the form for confirmed cases of illegal traffic, as adopted by decision IV/12 of the Conference of the Parties, and in-vites the Secretariat to explore ways of making better use of the information to guide the decision-making of the Conference of the Parties; 7. Requests the Open Ended Working Group, to oversee the activities to be undertaken to prevent and combat illegal traffic more effectively and report on the progress to the Conference of the Parties at its eleventh meeting.

Deleted: vulnerable countries

Deleted: unwant-ed

Deleted: . imports of hazardous wastes;¶

Deleted: work

Comment [JP48]: This is absolutely essential and the prerequisite for combatting illegal traffic.

Comment [JP49]: "Take-back" has a different meaning used in the context of EPR programs.

Deleted: take-back

Deleted: Committee for Administering the Mechanism for Promoting Im-plementation and Compliance

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6. Assisting vulnerable countries to minimize the generation and transboundary movement of wastes, Ratify the Amendment, and to prohibit the import and export of hazardous wastes Recognising that Parties have the right to prohibit the import or export of hazardous wastes or other wastes and to define additional wastes as hazardous in accordance with Article 3; paragraph 1 of Article 4 and paragraph 2 of Article 13 of the Basel Con-vention; Noting that there remain obstacles to the full use of these provisions by Parties who would wish to be protected or served by them; Realizing that far too many countries have not translated the obligations of the Basel Convention into national law; 1. Requests BCRCs to consult the Parties within their regions and to identify the real needs of such countries and the difficulties that they face; 2. Requests SBC to facilitate and encourage greater use of the Basel Convention model legislation for the development or revision of national legislative and other measures for the prohibition of imports of hazardous wastes and further encourages Parties to make use of this model legislation; 3. Requests the Secretariat to develop and disseminate material for use through the BCRCs for the purpose of raising awareness of these provisions in their regions; 4. Encourages Parties to develop and update national lists of prohibited hazard-ous wastes and to transmit them to the Secretariat in accordance with Article 3 of the Convention; 5. Encourages the Secretariat to continue to adopt a pro-active approach with regard to the collection of the information required under paragraph 1 of Article 4 and paragraph 2 of Article 13, especially the lists of prohibited wastes, and to disseminate such lists electronically to Parties at 6-month intervals; 6. Requests the Secretariat to assist Parties in the mechanics as well as the ben-efits of ratifying the Basel Ban Amendment and to develop national legislation and other measures to protect themselves from unwanted imports of wastes; 7. Requests the Secretariat to assist Parties towards a better understanding of the relationship between trade and the environment as relating to the transboundary movements of wastes, including the concept of cost externalization through exportation. 7. Building Capacity Recognising that some of the proposals in this decision may require additional fund-ing, expertise and technology transfer; Recognising further that the objective of the Basel Convention contributes towards the achievement of the United Nations Millennium Development Goals and as such should be taken up by development agencies: 1. Encourages Parties to endeavour to ensure that the management of waste is considered in the preparation and implementation of development strategies and that waste management is recognized as part of meeting the Millennium Development Goals regarding environmental sustainability; 2. Encourages the Secretariat to forge links with high-profile initiatives such as climate change and human health, in particular taking into account resolution WHA.63.25 adopted by the WHO General Assembly, and to continue to explore the possibilities to use the synergy process and SAICM for these purposes; 3. Encourages the BCRCs to specify and quantify the needs for capacity building for different Parties, including capacity needed to improve of national report-ing to monitor implementation; 4. Encourages the Secretariat, the BCRCs and Parties to take action to secure po-litical and public engagement with the work of the Convention; 5. To that end, invites WHO to initiate a study into the impact on human health of failures to manage wastes in an environmentally sound manner, and to utilise the result of that study to demonstrate the importance of the Convention’s work; 6. Encourages the Secretariat to continue to exercise its advocacy role to promote and stimulate the inclusion of hazardous waste issues and implementation into other international and UN organisations’ work programs;

Deleted: ¶¶

Deleted: vulnerable

Comment [JP50]: In earlier meetings it has been identified that some do not know or understand the mechanics of ratification.

Deleted: ¶

Deleted:

Deleted: .

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7. Encourages the Secretariat, the BCRCs and Parties to seek further collabor-ation with other agencies, NGOs and the private sector; 8. Encourages the Secretariat and the BCRCs to seek out and mobilise relevant expertise in other international and regional organisations;

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Section II: Comments on the draft list of possible elements for a way forward

Comments from the European Union

30 July 2010

EU Submission on document CLI/2010/1 of the Indonesian-Swiss Country-Led Initiative (CLI) to improve the effectiveness of the Basel Convention – possible elements for a way forward to address the objective of the CLI.

1. The EU would like to thank Indonesia and Switzerland for this very useful document and for having an opportunity to provide comments on which ways forward should be pursued and on the timing.

2. The EU considers that all the elements listed in document CLI/2010/1 are interesting and could be considered during the third meeting.

3. There are clear links between most of the elements presented in the above mentioned document and issues which will be discussed in other ongoing processes in the context of Basel Convention. The EU considers that the 3rd CLI meeting could come up with useful proposals which could be transmitted to and considered by Parties to the Basel Convention in the context of the discussions on the development of the draft Strategic Framework for 2012-2021.

4. More specifically, EU has developed a table (Annex) identifying which elements could be taken up immediately and which elements would require preliminary work. Proposals are also made regarding existing processes that could be used to move forward the elements concerned.

Belgian Presidency of the Council of the European Union Présidence belge du Conseil de l'Union européenne Belgisch Voorzitterschap van de Raad van de Europese Unie Belgischer Vorsitz des Rates der Europäischen Union

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Annex: comparison between the 7 main elements identified in the document CLI/2010/1 and the draft strategic framework annexed to decision OEWG VII/1 and identification of processes to move them forward.

Element number Goal in the draft strategic framework

Objective in the draft strategic framework

Can the element be taken up immediately or would preliminary work be needed?

Existing processes within Basel Convention to be used or other processes to be developed

A: Standards of Environmentally Sound Management (ESM) including its link to Transboundary Movement (TBM)

Goal 2: Strengthening the environmentally sound management of hazardous wastes and other wastes

Objective 2.1: to pursue the development of ESM of hazardous wastes and other wastes, especially through the preparation of technical guidelines, and to promote its implementation in national legislation

Preliminary work needed • Draft Strategic framework for 2012–2021

• Development of technical guidelines on the transboundary movements of e-waste

B: Supporting vulnerable countries not to allow import of hazardous wastes;

Goal 1: Effective implementation of Parties' obligations on transboundary movements of hazardous wastes and other wastes

Objective 1.3: to improve performance on the notification on national definitions of hazardous wastes and other wastes and associated requirements, prohibitions and other control requirements.

Could be taken up immediately • Draft Strategic framework for 2012–2021

• Transmission to the Implementation and Compliance Committee

C: Providing further legal clarity;

Goal 1: Effective implementation of Parties' obligations on transboundary movements of hazardous wastes and other wastes

Objective 1.1: to reach a common understanding amongst Parties of the definition, interpretation and terminologies of wastes covered by the Basel Convention, including the distinction between wastes and non-wastes

Could be taken up immediately • Development of technical guidelines on the transboundary movements of e-waste

D: Support for and better involvement of the Basel Convention Regional Centres;

Goal 3: Promoting the implementation of ESM of hazardous wastes and other wastes as an essential contribution to the achievement of sustainable livelihood, the Millennium Development Goals and the protection of human health and the environment.

Objective 3.1: Develop national and regional capacity, particularly through the BCRCs, by integrating waste management issues in national sustainable development strategies and plans for sustainable livelihood Objective 3.2: Promote cooperation with national, regional and international bodies, in particular cooperation and coordination among

Preliminary work needed • Review of the operations of BCRC (decision IX/4)

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Basel, Rotterdam and Stockholm Conventions, to improve environmental and working conditions through the ESM of hazardous wastes and other wastes

E: Dealing with illegal traffic;

Goal 1: Effective implementation of Parties' obligations on transboundary movements of hazardous wastes and other wastes

Objective 1.2: to prevent and combat illegal traffic in hazardous wastes and other wastes

Could be taken up immediately • Draft Strategic framework for 2012–2021

F: Promotion of better application of existing measures and instruments of the Basel Convention and possible extension or enhancement of the Convention

Goal 1: Effective implementation of Parties' obligations on transboundary movements of hazardous wastes and other wastes

Objective 1.3: to improve performance on the notification on national definitions of hazardous wastes and other wastes and associated requirements, prohibitions and other control requirements. Objective 1.4: to generate, provide, collect, transmit and use reliable, qualitative and quantitative information and data regarding export, import and generation as required by Article 13 of the Basel Convention

Elements related to promotion and enhancement of the Basel Convention could be taken up immediately

• Draft Strategic framework for 2012–2021

• Transmission to the Implementation and Compliance Committee

G: Building Capacity Goal 2: Strengthening the environmentally sound management of hazardous wastes and other wastes

Objective 2.2: to support and promote capacity-building for Parties, including technological capability, technology needs assessment and technology transfer, to reduce the generation and hazard potential of hazardous wastes and other wastes

Preliminary work needed • Draft Strategic framework for 2012–2021

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Comments from Mexico

COMENTARIOS DE LA DGGIMAR SOBRE LA INICIATIVA: INDONESIA-SUIZA COUNTRY-LED INITIATIVE (CLI)

PARA LA APLICACIÓN EFECTIVA DEL CONVENIO DE BASILEA

Introducción.- Debe tenerse presente que el objetivo de la iniciativa es el desarrollo de recomendaciones para su examen en la décima reunión de la Conferencia de las Partes (COP 10), en particular la propuesta de elaborar y promulgar normas para la gestión ambientalmente racional de desechos peligrosos al tiempo que permite el movimiento transfronterizo de residuos sólo si se destinan a una instalación que es capaz de cumplir esas normas y propuestas de medidas para interpretar el convenio en las áreas donde se ha demostrado la falta de claridad jurídica.

A. Standards of Environmentally Sound Management including its link to Transboundary Movements. Un factor clave para esta labor son los recursos que deben ser identificados y asignados. En términos generales las normas de referencia constituirán un marco técnico de referencia para el manejo adecuado de residuos y sus movimientos transfronterizos, dichas normas deben diferenciarse de las guías técnicas para el manejo ambientalmente adecuado de residuos y ser compatibles con el marco nacional. Debe tenerse en cuenta que la propuesta no abona al fortalecimiento institucional nacional para la elaboración de reportes por las Partes sobre la implementación de dichas normas, tampoco a la supervisión e inspección del cumplimiento de dichas normas, la constatación de que la exportación de residuos se realizará a países con mejores estándares de manejo de residuos que su propio país, etc, lo cual incrementará su carga técnico- administrativa, que en caso de aprobarse se sumará a los reportes que deben enviarse al Secretariado y al cumplimiento de las decisiones adoptadas. .Linking standards of ESM to TBM Dado que es necesario que los países aseguren que los estándares de las instalaciones previstas para la eliminación de residuos peligrosos a los que se destinen los residuos sean superiores en su caso, a las instalaciones nacionales, es necesario que se establezcan los criterios técnicos de evaluación de dichos estándares. B. Supporting vulnerable countries not to allow import of hazardous wastes Se consideran importantes los elementos que se enlistan para apoyar a los países vulnerables para no permitir la importación de los desechos peligrosos que se hayan prohibido; no obstante habrá que tener en cuenta las cuestiones económicas, jurídicas, de observancia, sensibilización e infraestructura de dichos países. C. Providing further legal clarity Los puntos enlistados para dar mayor claridad jurídica al texto del convenio son relevantes, no obstante también habrá que tener en cuenta las dificultades en la clasificación de residuos que se pretenden movilizar, tal es el caso de las mezclas que no se localizan fácilmente en los listados; ya que hay residuos que se encuentran en la lista A y B y el Convenio no establece parámetros, límites ni análisis de laboratorio para saber si un residuo presenta alguna de las características de peligrosidad del Anexo III. Asimismo, existe cierta ambiguedad en cuanto a la clasificación de los residuos electrónicos. D. Support for and better involvement of the Basel Convention Regional Centres: Para mejorar y optimizar el funcionamiento de los centros regionales se considera importante que se consideren:

Mas opciones para el fortalecimiento de su capacidad Opciones de gestión ambientalmente racional de corrientes prioritarias de residuos en la región Sistemas de información sobre residuos peligrosos Herramientas de divulgación de información y programas de sensibilización

Se recomienda tener presente que el rendimiento de los centros es directamente proporcional a la cantidad disponible de recursos financieros para las actividades administradas por cada centro y que las funciones de los mismos deben ser determinadas por los países de la región a la que ofrecen sus servicios.

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De igual forma se debe asegurar la capacitación adecuada del personal de los centros sobre formas de obtener recursos y la gestión de proyectos, de tal forma que sean capaces de apoyar eficaz y eficientemente a las Partes en la aplicación sostenible del Convenio. E. Dealing with illegal traffic Se reconoce que el manejo ambientalmente adecuado de los movimientos transfronterizos de residuos peligrosos no puede ser asegurado bajo las condiciones actuales, por lo anterior se manifiesta el apoyo a esta iniciativa con la solicitud de incluir formas de apoyo a las Partes, encaminadas a prevenir y castigar el tráfico ilícito. F. Promotion of better application of existing measures and instruments of the Basel Convention and possible extension or enhancement of the Convention Estamos de acuerdo que haya una mejor utilización del informe que realiza el eliminador de los residuos peligrosos con el objeto de asegurar que se lleve el manejo ambientalmente racional de los residuos. Asimismo, consideramos viable la decisión de dar continuidad al desarrollo de la aplicación de la Enmienda de Prohibición y de la ratificación de la misma por parte de los estados que ya han implantado estas medidas. Se sugiere apoyar la decisión de ampliar las disposiciones de la convención para incluir las importaciones y en su caso la repatriación de bienes de segunda mano y las donaciones caritativas, así como la decisión de desarrollar un sistema para la homologación de los códigos de clasificación de residuos, para aplicarlos en los reportes nacionales e internacionales con el objeto de contar con mejor comunicación en el control de los movimientos transfronterizos. Finalmente, se propone reforzar la difusión de los impactos negativos que trae consigo un mal manejo de los residuos peligrosos para la salud humana y al ambiente para poder promover la convención. G. Building Capacity

Apoyamos la creación de capacidad como una prioridad, por lo que también consideramos que el primer paso para la creación de capacidad, es la especificación y cuantificación de las necesidades. De la misma forma, la transferencia de conocimientos y de tecnología son esenciales para asegurar que la gestión de los residuos peligrosos sea sostenible. 3 How to move forward En la próxima COP se definirá la forma de redactar el borrador con los próximos pasos. Entre los elementos a considerar, se sugiere establecer con claridad la forma en la que se determinará cuándo un país cuenta con mejores estándares de manejo de residuos que otro.

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Comments from Mexico (Informal English translation)

: DGGIMAR COMMENTS ON

THE INDONESIA-SWITZERLAND COUNTRY-LED INITIATIVE (CLI) FOR EFFECTIVE APPLICATION OF THE BASEL CONVENTION

Introduction - It is necessary to bear in mind that the aim of the initiative is the development of the recommendations for examination in the tenth meeting of the Conference of the Parties (COP 10). This includes particularly the proposal to draw up and promulgate standards for the environmentally sound management of hazardous wastes while permitting transboundary movements of wastes only if these are being sent to an installation that is capable of complying with the said standards. It also includes proposals for measures to interpret the Convention in areas where it has been shown that the law is not clear.

B. Standards of Environmentally Sound Management including its link to Transboundary Movements. A key factor for this task is the resources that need to be identified and assigned. In general, the reference standards will constitute a technical reference framework for the sound management of wastes and transboundary movements involving them. The said standards must be differentiated from the technical guides for environmentally sound management of wastes and must be compatible with the national framework. It is necessary to bear in mind that the proposal does not address the national institutional strengthening for the drawing up of reports by the Parties concerning the implementation of the said standards, nor the supervision and inspection of compliance with the said standards, nor the confirmation that the export of the wastes will be effected to countries with better standards of waste management than the country of origin, etc. All of this will increase the technical and administrative burden which, in the event of approval, will be added to the reports that have to be sent to the Secretariat and the fulfilment of the resolutions adopted. Linking standards of ESM to TBM Given that it is necessary for the countries to ensure that the standards of the installations to which hazardous wastes are being sent for elimination are higher, where applicable, than those of the national installations, technical criteria must be established for the assessment of the said standards. B. Supporting vulnerable countries not to allow import of hazardous wastes We consider that importance attaches to the elements listed to support the vulnerable countries in not allowing the import of prohibited hazardous wastes. At the same time, it is necessary to bear in mind the economic and legal issues, the questions of compliance and awareness-raising and the infrastructures of these countries. C. Providing further legal clarity The points listed to provide further legal clarity to the text of the Convention are relevant. Nevertheless, it will be necessary to take into consideration the difficulties of classifying the wastes intended to be transported. This is the case, for example, with mixtures which cannot be easily identified in the lists. There are wastes in list A and B and the Convention does not lay down parameters, limits or laboratory analyses to determine whether a waste presents any of the hazard characteristics of Annex III. In addition, there is a certain ambiguity as to the classification of electronic wastes. D. Support for and better involvement of the Basel Convention Regional Centres: To improve and optimise the operation of the regional centres, the following points need to be taken into consideration:

more options to strengthen the capacity of the centres environmentally sound management options for priority streams of wastes in the region information systems on hazardous wastes tools for the disclosure of information and awareness-raising programmes.

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It is necessary to bear in mind the fact that the output of the centres is directly proportional to the quantity of financial resources made available for the activities administered by each centre and that their functions must be determined by the countries of the region to which their services are offered. Equally, it is necessary to ensure appropriate training of the personnel of the centres with regard to fund-raising and project management so that they are able to provide the Parties with efficient and effective support in the sustainable application of the Convention. E. Dealing with illegal traffic It is acknowledged that the environmentally sound management of transboundary movements of hazardous wastes cannot be ensured under the existing conditions. Accordingly, we back this initiative, with the request that forms of support be included for the Parties called upon to prevent and punish illegal traffic. F. Promotion of better application of existing measures and instruments of the Basel Convention and possible extension or enhancement of the Convention We agree that better use should be made of the report produced by those responsible for disposing of hazardous wastes in order to ensure the environmentally sound management of the wastes. Furthermore, we consider that the decision to continue working towards the application of the Ban Amendment and its ratification by the States which have already established these measures is a feasible one. Support should be given to the decision to extend the provisions of the Convention to include the importation and, where applicable, the repatriation of second hand goods and charitable donations, as well as the decision to develop a system for the homologation of waste classification codes, so as to apply them in national and international reports with the aim of improving communication in the control of transboundary movements. Finally, to promote the Convention, we propose that increased efforts should be made to disseminate information concerning the adverse impacts for human health and the environment resulting from the incorrect management of hazardous wastes. H. Capacity building

We consider capacity building to be a priority. We further consider that the first step in capacity building is the specification and quantification of needs. Similarly, transfers of know-how and technology are essential to ensure that the management of hazardous wastes is sustainable. 3 How to move forward The next COP will be the occasion to draw up a first draft of the next steps to be taken. We suggest that this should include establishing clearly the form in which it can be determined that one country has better waste management standards than another.

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Comments from the Bureau of International Recycling

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Page 20: [1] Comment [JP23] Jim Puckett 9/20/2011 9:33:00 AM BAN objects to the use of the term "vulnerable" as it implies that the only reason that transboundary movement should not take place is because certain countries are "too weak" to accept hazardous waste. It implies that once they become less weak then TBM is fine despite the fact that all hazardous waste anywhere in the world implies significant risk, and all countries and peoples are in fact vulnerable to it and the Convention obliges all countries to minimize all transboundary movements. Furthermore, higher levels of technology to mitigate risk (less vulnerability), is no justification for allowing increased hazardous waste trade moving for economic reasons (e.g. cost externalization). The use of this term is incorrect and is a form of blaming the victim of economically motivated dumping for weakness. We would prefer use of the term "potentially exploited." See BAN's general comments (Section 1).

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Justified, Space Before: 6 pt, After: 12 pt, Numbered + Level: 1 + Numbering Style: a, b, c, … + Start at: 1 + Alignment: Left + Aligned at: 0.21 cm + Tab after: 0 cm + Indent at: 0.85 cm, Tabs: Not at 4.2 cm + 16.73 cm

Page 20: [3] Comment [JP24] Jim Puckett 9/20/2011 9:33:00 AM The Basel Ban is an export ban, not an import ban.

Page 20: [4] Comment [JP25] Jim Puckett 9/20/2011 9:33:00 AM This language implies that non-Annex VII countries are somehow weak and lack the capacity to manage hazardous waste and that is their problem. When in fact the real "weakness" is generating the waste in the first instance. This kind of language is contrary to the aims of the Convention which is to minimize transboundary movment and generation of hazardous waste.

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Font: 10 pt, Complex Script Font: Times New Roman, English U.K.

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Font: 10 pt, Complex Script Font: Times New Roman, English U.K.

Page 20: [7] Comment [JP26] Jim Puckett 9/20/2011 9:33:00 AM This needs to be corrected. The first meeting adopted Decision I/22 but that has never been characterized as an export ban as it is not. Decision II/12 at the second meeting in 1994 was the ban without calling for amendment. Decision III/1 in 1995 is the Ban Amendment decision.

Page 20: [8] Comment [JP27] Jim Puckett 9/20/2011 9:33:00 AM Again, all of the key reasons must be listed otherwise the entire thrust of this document is based on a false foundation which will lead to serious misunderstanding of proper solutions in next steps.

Page 21: [9] Comment [JP31] Jim Puckett 9/20/2011 9:33:00 AM To make such assertions without examples is lacking in transparency. BAN has no evidence that countries have exchanged the rights to dispose of waste for investment. Such an action is contrary to the obligation of the Basel Convention (to minimize the transboundary movement of hazardous waste) and would be subject of severe criticism by Parties. We think it best to excise this from the document.

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In some regions, there are important collaborations between countries, using investment by an Annex VII country to promote improved environmentally sound waste management in nearby non-Annex VII countries.[JP1]

Page 21: [11] Comment [JP32] Jim Puckett 9/20/2011 9:33:00 AM It is rather remarkable that the minimization of transboundary movement through national self-sufficiency in waste management is not mentioned once in the two CLI documents except in Decision III/1 itself. The Ban Amendment seen through the lens of this general obligation makes it more obvious that the amendment is hardly radical, but is a natural extension of the Convention's obligations.

Page 21: [12] Comment [JP33] Jim Puckett 9/20/2011 9:33:00 AM It is appropriate to remind that this is one of the objectives of the CLI process.