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Canada must take lead on Convention on Hazardous Waste

Stop Undermining Ban on Hazardous Waste Movement to Developing Countries

Press Release
Sierra Club of Canada
October 25th 2004

Ottawa: The Sierra Club of Canada today called on the Canadian government to stop its opposition to restrictions on international hazardous waste shipments, and to take a lead on crucial issues at the 7th Conference of the Parties (COP), being held this week in Geneva, Switzerland.

Canada, along with Australia, the United States and others, has for over a decade opposed the inclusion of the “Basel Ban” that would prohibit the movement of hazardous waste from industrialized countries to other
countries. The ambiguity of the Convention text has allowed the opposition
to stall the ratification of this crucial amendment.

“Canada’s track record on the Basel Ban is disgraceful and hypocritical,” said Angela Rickman, Senior Policy Advisor. “By fighting this amendment, Canada is jeopardizing the future of the Convention and contravening the spirit of the treaty. Effectively, we are putting developing countries at greater risk by exporting the toxic waste we can’t or won’t deal with.”

Another issue to be dealt with at the conference is the dismantling of
decommissioned ships. Canada must push for stronger legal action on ship
dismantling, including who is responsible for the proper disposal of toxic
ships. Controversy exists on whether the responsibility of disposal lies
solely with the “flag state” or if the obligation should be expanded to
include other states relevant to ownership and operation.

“Very often the flag state is least able to properly exercise the
responsibilities of the Basel Convention,” said Katie Albright, Health and
Environment campaigner. “Take for instance, Canada Steamship Lines. The
disposal of its ships would be the responsibility of Liberia, Barbados or
Vanuatu, depending on the flag of convenience, and Canada could wash its
hands of all responsibility. This would be deplorable.”

However, the shipping industry has become increasingly vocal in opposition. Canada must ensure that the Parties to the Convention make the decisions regarding health and environmental protection, not those with their financial interests as their primary concern.

For more information on the Basel Convention, and the relevant issues for COP-7, please find the Backgrounder below.

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Contact:

Angela Rickman, Senior Policy Advisor, 613-241-1839, cell 613-859-5701

Katie Albright, Health and Environment Campaigner, 613-241-4611

Basel Convention – 7th Conference of the Parties – Backgrounder

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was adopted in Basel, Switzerland on 22 March 1989. The Convention was initiated in response to numerous international scandals regarding hazardous waste trafficking that began to occur in the late 1980s. The Convention entered into force on 5 May 1992 and today has its Secretariat in Geneva, Switzerland.

Basel Ban Amendment

Following its adoption in 1989, the Convention was at first condemned by environmentalists and developing countries as it failed to ban hazardous waste exports to any location other than Antarctica. Developing countries worked tirelessly to achieve a ban in their own countries, despite their initial qualms. Finally, in 1994, a unique coalition of developing countries, and some from Eastern and Western Europe, managed to pass by consensus what has come to be known as the Basel Ban (Decision II/12). This victory for international environmental justice was achieved despite powerful opposition from such countries as the United States, Australia, Germany, Canada, Japan and the United Kingdom.

The Basel Ban decision effectively banned as of 1 January 1998, all forms of hazardous waste exports from the 29 wealthiest most industrialized countries of the Organization of Economic Cooperation and Development (OECD) to all non-OECD countries.

Following this decision, opponents of the ban argued that the 1994 decision was not legally binding unless it became part of the Basel Convention through amendment. Thus in 1995 the ban decision had to be fought and won again despite massive opposition from such countries as the United States, South Korea, Australia and Canada and a very vocal industrial lobby. The second decision to amend the Convention (Decision III/1) was also passed by a consensus of the Basel Convention Parties. At each subsequent COP, decisions (V/3 and VI/33 respectively) were made to appeal to Parties to ratify the amendment to facilitate its entry into force.

However, this year, the United Nations Office of Legal Affairs, issued its opinion on how to interpret Article 17, paragraph 5 of the Convention,
which concerns the entry into force of the Basel Ban Amendment. This was
done without a request from the Parties to do so. This suggestion varied
from the currently understood interpretation, which is the amendment must
be passed by a ¾ majority of Parties at the time of adoption, and opted
instead for a “current time approach” which stipulates that “the number of
ratifications required for entry into force will be calculated on the basis of the percentage of the Parties at the time each ratification is
deposited; not the Parties at the time of the adoption of the amendment.”

The adoption of the following text would clear ambiguity and ensure
amendments were ratified in a timely manner. “That the meaning of Article
17, paragraph 5, of the Convention be interpreted in its narrow sense so as
to mean that the acceptance of ¾ths of the Parities at the time of the
adoption of an amendment is required for the coming into force of such
amendment.” This would resolve the issue once and for all, and would help
to safeguard developing countries from continuing to be havens for
hazardous waste.

There is precedent for taking action to adopt decisions to clarify treaties
to eliminate ambiguities. The Conference of the Parties to the Convention
on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) in 1983, resolved a nearly identical ambiguity, as did the Ramsar
Convention on Wetlands in 1990.

If Parties do not assert their role as masters of the Convention, and they
let the OLA dictate the interpretation of their Convention, they would be
setting up the Convention to fail, to be bogged down with endless
ratifications for this amendment and future amendments.

Ship dismantling

The mandate of the Basel Convention is the Control of Transboundary
Movement of Hazardous Waste. With respect to shipping, Basel has the
ability to ensure that the disposal of a ship that is considered hazardous
is conducted according to its guidelines. Obsolete naval ships contain a
host of toxic chemicals from asbestos to PCBs.

The Convention has moved forward on ship dismantling from the adoption of
Technical Guidelines for the Environmentally Sound Management (ESM) of the
Full and Partial Dismantling of Ships to the fundamental resolutions
regarding the connection of international law and the Basel Convention
text. The next steps that are crucial for the implementation of guidelines
are to outline who is responsible for carrying out disposal. Unfortunately,
delegates representing the shipping industry’s concerns, and not those of
the environment or developing countries interests have stalled this process.

The Open-ended Working Group (OEWG) that was instructed by the COP to look
at the legal text regarding the ship waste rules, created a draft text that
is littered with brackets, denoting non-consensus among the group members,
and these brackets could drastically change the impact of which States are
responsible for the environmentally sound disposal of toxic ships.

One of the essential differences is that one set of brackets denotes total
responsibility to the “Flag States” – that is whichever flag the ship
happens to be waving. Another bracket would see responsibilities expand to
include other states. It is essential that the latter bracket be included,
as the “flag state” is often not the state that ultimately has power over
the ownership or operating powers, and often times the “flag state” is
merely a tax haven, and in fact would have little ability to implement the
guidelines of the Basel Convention for proper disposal.

Posted October 26, 2004 by russ

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