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Following its adoption in 1989, the Basel Convention was denounced as an instrument that

served more to legitimize hazardous waste trade rather than to prohibit what many felt was a
criminal activity. The African group of countries, other developing countries and Greenpeace
condemned the Convention but continued to work diligently within it to achieve a ban.

Finally, in 1994, a unique coalition of developing countries, and some from Eastern and
Western Europe along with Greenpeace, managed to pass by consensus what has come to be
known as the Basel Ban 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 was also passed by a consensus of the Basel
Convention Parties.

For some years after, there were differing views among Parties about the interpretation of the
provision on amendments to the Convention, with many considering it to be ambiguous.
After several meetings without agreement in this regard, the President of the ninth meeting of
the Conference of the Parties issued a Statement on the possible way forward on the Ban
Amendment. In this statement, the President called on Parties to create enabling conditions,
through among other measures, country-led initiatives conducive to the attainment of the
objectives of the Amendment. Based on the statement of the President of COP 9, Indonesia
and Switzerland announced their readiness to organize a “Country-led Initiative” (CLI).

The “Ban Amendment” provides for the prohibition by each Party included in the proposed
new Annex VII (Parties and other States which are members of the OECD, EC,
Liechtenstein) of all transboundary movements to States not included in Annex VII of
hazardous wastes covered by the Convention that are intended for final disposal, and of all
transboundary movements to States not included in Annex VII of hazardous wastes covered
by paragraph 1 (a) of Article 1 of the Convention that are destined for reuse, recycling or
recovery operations.

At its tenth meeting, the Conference of the Parties adopted decision BC-10/3 on the
Indonesian-Swiss country-led initiative to improve the effectiveness of the Basel Convention.
Section A of this decision addresses the entry into force of the Ban Amendment and agreed
an interpretation of Article 17(5) of the Basel Convention on amendments to the Convention.
This was an important step in the development of the Convention that then led to follow up to
the Country-led initiative being adopted at the eleventh meeting of the Conference of the
Parties.
The Secretariat provides assistance to Parties that are facing difficulties in ratifying the Ban
Amendment, on request and within available resources. This includes provision of
information and documentation to relevant stakeholders and decision makers; the provision
of legal and practical advice; organization of electronic and face to face activities (workshops
and webinars); and facilitation of exchange of information and experiences between Parties.

Advocates argue that most developing countries cannot manage hazardous waste and that
countries will only stop the production of such wastes when they have nowhere to offload it.
Critics counter this argument by saying, inter alia, that some developing countries, especially
in Asia, may have better capacities for environmentally sound management of wastes than
certain OECD members. Furthermore, a ban would most likely not resolve cases of illegal
traffic in hazardous waste nor assist in the creation of waste treatment and recycling capacity
in developing countries. The critics also question the need for the ban as the Convention
already allows countries to prohibit the import of any waste they declare hazardous under
domestic legislation. Regarding the trade implications of the amendment, a study
commissioned by the International Council on Metals and the Environment raises concerns
that the ban might be "GATT-inconsistent and trade-disruptive", arguing that it would
discriminate between countries where the same conditions may prevail. Thus far, 44 countries
have ratified the Basel Ban Amendment, and 62 are needed before it enters into force

Bamako Convention
The Bamako Convention on the Ban of the Import Into Africa and the Control of
Transboundary Movement and Management of Hazardous Wastes Within Africa was
negotiated by twelve nations of the Organization of African Unity at Bamako, Mali in
January, 1991. The Convention entered into force on April 22, 1998 and has been ratified by
23 countries.

The objective of the Bamako Convention is to prevent the import of hazardous wastes
including radioactive wastes into African nations that are party to the Convention. It also
prohibits ocean disposal of all types and obliges African country Parties to minimize their
own intra-African waste trade and only conduct it with prior informed consent. Parties must
also engage in environmentally sound management and disposal of hazardous wastes
generated within these African nations while auditing and minimizing generation of
hazardous wastes.

The Bamako Convention provides strong legal prohibitions on hazardous waste import and
dumping by declaring such activity an illegal and criminal act. The prohibition also applies to
products which have been banned, cancelled or withdrawn from registration for
environmental or health reasons. The Convention also prohibits hazardous waste incineration
at sea or their disposal in the seabed and sub-seabed. Other features include the adoption of
the precautionary principle in relation to waste generation and promotion of cleaner
production. Transboundary transfer of polluting technologies is also prohibited under the
Convention.
The Waigani Convention

The Waigani Convention was adopted by, and opened for signature at, the South Pacific
Forum held in September 1995. All members of the Forum will be asked to sign the
Convention, a regional measure seeking to ban the importation of hazardous wastes. The
Convention will cover the national territories and exclusive economic zones of Pacific Island
states, Australia and Aotearoa/New Zealand, together with areas of the high seas enclosed by
their exclusive economic zones (EEZs).

The negotations for the Convention were initiated by Papua New Guinea with the aim of
regionally improving upon the existing 1989 Basel Convention. As a global convention, the
Basel Convention was necessarily something of a compromise, which failed to categorically
prohibit the export of hazardous wastes from developed to developing countries. It also
excluded radioactive wastes on the optimistic assumption that these could be dealt with
separately through existing and proposed new international guidelines and conventions.

Despite the best intentions of Papua New Guinea, the Waigani Convention, as negotiated, is
itself something of a compromise. While certainly an advance on the Basel Convention, it
offers significantly less risk protection than the 1991 Bamako Convention negotiated by the
African states, despite the fact that the small size and marine environment of Pacific island
countries make them even more vulnerable to hazardous waste risks than African countries.

Strengths of Waigani
The undeniable strengths of the Waigani Convention are:

 it enjoins all island members of the South Pacific Forum to ban the import of
hazardous and radioactive wastes, and to establish "appropriate legal, administrative
and other measures" to achieve this;
 it sets up cooperative arrangements to prevent illegal traffic in hazardous and
radioactive wastes;
 it commits parties to principles of minimising waste-generation, ensuring adequate
and environmentally sound management of wastes, and developing waste
management programs;
 it establishes mandatory notification procedures for transboundary movements of non-
radioactive hazardous waste.

In addition, it will create a Conference of Parties and Secretariat to review and oversee the
implementation of the Convention. It is anticipated that SPREP (South Pacific Regional
EnvironmentProgramme) will act as the Secretariat. As such, it will help lockin potential
'hold-out' island states that may have been reluctant to adhere to a mandatory ban on waste
imports. It will also greatly improve regional cooperation in exchanging information, sharing
resource and technical expertise, and harmonising regional and global waste management
regimes.

But despite this progress, important opportunities have been lostfor establishing a rigorous
and comprehensive regime covering allforms of hazardous waste. The new convention is
potentially as'leaky' as the Basel Convention itself.

Leaks in the control of radwaste


To begin with, the Waigani Convention is significantly weaker in its controls over radioactive
waste than the 1991 Bamako Convention covering Africa. Whereas the Bamako Convention
explicitly includes radioactive wastes in its definition of wastes to be covered by the
convention, the Waigani Convention has opted to specifically exclude radioactive waste from
most of the provisions of the convention other than Articles 4.1, 4.2, 4.3 and 4.5.

The Article 4 provisions do, it should be noted, commit parties not to import or export
radioactive waste, to cooperate in preventing illegal import of such waste, to reaffirm existing
commitments not to dump radioactive wastes at sea, and to "give active consideration to the
implementation of the IAEA Code of Practice on the International Transboundary Movement
of Radioactive Wastes" and to "participating in the development of a Convention on the Safe
Management of Nuclear Waste". However, these provisions, positive and welcome as they
are, still leave major loopholes that were successfully closed off in the Bamako Convention.

In the case of transboundary movement of radioactive waste, the Waigani Convention does
little to control or prevent a recurrence of further Japanese shipments of high-level
radioactive waste and plutonium through South Pacific exclusive economic zones, or in the
conceivable future such radioactive waste shipments between Australia and either the Asian
or North American mainlands. Certainly, it does refer to the relevant IAEA Code of Practice
on this activity, and the Code does call for "prior notification and consent" of transit states,
but this Code does not unequivocally cover the EEZs of transit states as distinct from their
territorial waters. Further, parties to the Waigani Treaty are only invited to "give active
consideration" to this Code, and not required to be bound by its principles.

This contrasts with the much stronger and more binding requirements of the Bamako
Convention where States of export are required to notify and seek the consent of transit states
even where the shipments of radioactive waste are passing through EEZs. Inclusion of
Bamako-type provisions in the Waigani Convention would at least have enabled the
convention to require relevant Pacific Rim countries to notify and gain consent of island
countries before shipping radioactive waste through their exclusive economic zones....

A further loophole in dealing with nuclear waste is that the Waigani Convention's deliberate
exemption of radioactive waste from Article 4.4 means that there is no obligation to prevent
or minimise generation of such waste in Pacific island countries. France, for example, has
already generated large quantities of nuclear waste and is continuing to generate more
through its current nuclear tests. Rising sea levels associated with global warming will further
aggravate the problem of weapons-test-related nuclear waste stored or present on low-lying
atolls. The Waigani Convention was intended to cover Polynesia; its failure to proscribe
nuclear waste generation as distinct from nuclear waste import creates a loophole for France
to continue generating waste through nuclear testing.

In contrast, the more rigorous Bamako Convention's Article 4.3 would have required that
France:

 take "precautionary measures" to prevent "the release into the environment of


substances which may cause harm to humans or the environment without waiting for
scientific proof regarding such harm"
 submit to the Convention Secretariat detailed reports ofits nuclear waste generation
and permit the Secretariat to conduct "a complete hazardous waste audit"
 assume "strict, unlimited liability" for accidents and human/environmental
consequences of the waste generation
 "ensure the availability of adequate treatment and disposal facilities for the
environmentally sound management of hazardous waste"
 take "such steps as are necessary to prevent pollution arising from such wastes".

It should also be noted that the Waigani negotiators failed to incorporate some of the relevant
United Nations Earth Summit Agenda 21 recommendations on radioactive waste issues.
Section 22.4 called for "environmental impact assessment where appropriate, of safe and
environmentally sound management of radioactive waste, including emergency procedures,
storage, transportation and disposal, prior to and after activities that generate such waste".

Another key Agenda 21 recommendation of particular relevance to Pacific Islands and


French activities in Polynesia is Section 22.5(c) which calls on states "Not to promote or
allow the storage ordisposal of high-level, intermediate-level and low-level radioactive
wastes near the marine environment unless they determine that scientific evidence ... shows
that such storage or disposal poses no unacceptable risk to people and the marine
environment..." A further principle recommended by Agenda 21 was that "Governments
should ascertain that their military establishments conform to their nationally applicable
environmental norms in the treatment and disposal of hazardous wastes". Since the Waigani
negotiators had both the Bamako Convention and Agenda 21 documents in front of them, it is
curious and disturbing that they chose to ignore "best practice" principles in drafting Pacific
island legislation. One suspects that major parties to the negotations, such as Australia, have
put their own trilateral economic interests in relation to France (Waigani was drafted long
before Chirac resumed testing) and Japan ahead of regional Pacific island health and
environmental interests.

Leaks in control of other forms of hazardous waste


The Waigani Convention is weaker than Bamako in its definition of non- radioactive forms of
hazardous waste.

 The Bamako Convention applies to "substances which have been banned, cancelled
or refused registration in the country of manufacture, or voluntarily withdrawn from
registration in the country of manufacture, for health or environmental
reasons".Bamako seeks to impose a more comprehensive regime in covering all
substances that fail to secure registration rather than only those legislatively defined
as hazardous waste substances.
 The Waigani and Basel formula (as compared to Bamako) would seem to be more
open to abuse in that alleged lack of scientific evidence for possession of Annex 2
characteristics (of hazardous wastes) could be used as a pretext for exempting some
substances from Convention controls.

It should also be noted that the Waigani Convention failed to include the principle adopted in
the Earth Summit Agenda 21 that "Governments should establish regulations that lay down
the ultimate responsibility of industries for environmentally sound disposal of the hazardous
wastes their activities generate", although this would have fitted well with Waigani's Article
4.4 on waste-generation and sound management of the environment.