INTERNATIONAL CONVENTIONS ON HAZARDOUS CHEMICALS

Paul P. Appasamy Madras School of Economics, Chennai

Contents

1. Introduction 2. General Provisions of the Conventions 3. Trade Measures and WTO Implications of the Basel Convention 4. Relevance of the Chemical Conventions for India Annexures

Bibliography

1. INTRODUCTION There has been widespread concern about the long term effects of chemicals – mainly organic chemicals used in agriculture and industry as well as heavy metals like mercury – on human health and the environment. The Bhopal Gas Tragedy as well as other incidents across the country have highlighted the need for environmentally sound management of production, transport, use and disposal of hazardous chemicals. In addition, the import and export of hazardous chemicals and wastes has been of concern. Recently, the proposed ship - breaking of a French warship laden with asbestos has been highlighted by the media. India is a signatory to three international conventions:

• The 1989 Basel Convention on the Transboundary Movement of Hazardous Waste and the subsequent 1995 ban amendment (“Basel Ban”)

• The 1998 Rotterdam Convention of an Prior Informed Consent (PIC) Procedure for Hazardous Chemicals and Pesticides in International Trade.

• The 2001 Stockholm Convention on Persistent Organic Pollutants. The purpose of this compendium is to explain the major provisions of the chemical conventions, the trade measures and the potential conflict with the WTO, and lastly the relevance for Indian environmental and trade policy. As is evident from the titles of the Conventions, the Basel and Rotterdam Conventions primarily deal with trade (import/export) in respect of hazardous wastes and hazardous chemicals respectively. The Stockholm Convention on the other hand deals primarily with the production, use and disposal of persistent organic pollutants (POPs). The trade aspects of POPs are in any event covered by the Rotterdam Convention. In the case of both the original Basel Convention and the Rotterdam Convention, the instrument of control was the

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prior informed consent (PIC) procedure. Subsequently, a ban on exports of hazardous wastes from OECD to non-OECD Countries was approved but has not yet come into force. Many developing countries felt that they did not have the institutional capacity to implement the original PIC procedure to ensure environmentally sound management. As a result, the ban amendment was introduced in 1995, but is yet to come into force. Thus, the existing policy framework is a cradle-to-grave approach atleast in the case of the most toxic pollutants. The three chemical conventions are briefly explained below: The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. Adopted in 1989, the Basel Convention is intended to reduce the generation and transboundary movement of hazardous wastes to a minimum and ensure that such wastes are treated and disposed of as close to the source of generation as possible and in an environmentally sound manner. The Convention includes a Ban Amendment (which has not yet entered into force) to prohibit the export of hazardous wastes for final disposal, recovery, or recycling from developed (OECD) countries to developing countries. The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. Adopted in 1998, the Rotterdam Convention is intended to protect human health and the environment by prohibiting international trade in certain hazardous chemicals unless the importing state first gives its informed consent, and by facilitating information exchange to promote the safe handling and use of such chemicals. The Stockholm Convention on Persistent Organic Pollutants (POPs). Adopted in 2001, the Stockholm Convention bans or severely restricts production, trade, and use of twelve POPs known as the “dirty dozen.” Most of these chemicals are no longer manufactured or used in industrialized countries; however, the nature of POPs means that people can be seriously impacted by releases of POPs that occur hundreds or even thousands of miles away. The Stockholm Convention contains provisions for the disposal and treatment of POPs wastes and stockpiles. It also establishes procedures for listing additional POPs that may be banned or severely restricted. Secretariat UNEP is the main Inter – Governmental Organisation for the major chemicals conventions and initiatives. UNEP Chemicals, part of UNEP’s Division of Technology, Industry, and Economics (DTIE), is considered the center for all of UNEP’s chemicals-related activities. UNEP Chemicals is located in Geneva, where it administers the secretariat for the Basel and Stockholm Conventions, and co-administers (with FAO) the Rotterdam Convention secretariat.

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The Rationale for the Conventions In theory, domestic environmental laws/regulation could deal with all these issues. In India, the Environmental Protection Act (1986), the Manufacture, Storage and Import of Hazardous Chemicals Rules (1989), the Hazardous Wastes Rules (1989) should be adequate if they cover production, use, disposal, import and export. However, the domestic institutional capacity to deal with these environmental problems is extremely limited. The situation in other developing countries is much worse. After some well publicized incidents of dumping of hazardous wastes in developing countries, the international community came up with the Basel Convention and later the Basel Ban. However, it was also necessary to restrict the transboundary movement of hazardous chemicals such as pesticides which were being exported to developing countries ostensibly to benefit agriculture. Many countries were unaware of the risks of using these chemicals and needed to atleast receive prior information and give their consent. This was the rationale for the Rotterdam Convention. The Stockholm Convention attempts to eliminate or restrict the use of Persistent Organic Pollutants (POPs). Persistent organic pollutants travel long distances and remain/accumulate in the environment for long periods. Some of these pollutants are found even in the Arctic circle. POPs as they are known are a source of transboundary/global pollution even without being actually transported through trade. In this sense, POPs are more like acid rain, or ozone depleting substances. Two of the persistent organic pollutants (dioxins and furans) are not products but emissions from incineration and from certain industrial process. The use or emission of these pollutants in one country/location can cause damage far away – a classic case of global pollution. In such a case there is not much choice, but to have a global agreement to limit the pollutant. Moreover this convention is basically about production, use and disposal and not so much about trade. (Most of the POPs which are traded are anyway covered by Rotterdam). Thus, conflict with WTO provisions is least likely in the case of the Stockholm Convention. In summary, the chemical conventions are essentially a “second-best” solution of environmental management due to the inadequate domestic environmental regulatory scenario in most developing countries. In other words, if India could manage hazardous chemicals/wastes in an environmentally sound manner (ESM), most of the provisions of the conventions would be redundant. However, there is one central issue namely recycling of wastes that needs to be highlighted. Recycling or Final Disposal After the Basel Convention came into force, a greater proportion of the total quantity of hazardous waste exported, is for recycling compared to final disposal. India and many other countries have been importing hazardous wastes not for final disposal but for recycling. This is

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particularly true of zinc, lead and waste oil. Another economic activity is ship-breaking leading to the recovery of steel, wood, cables, etc. Ship steel is a rich source of steel for Indian industry. In 1998-99, 361 ships were broken with a tonnage of more than 3 million tonnes. The peculiarity of the Basel ban amendment is that the ban relates to exports from OECD to non-OECD countries, but not amongst OECD countries themselves. So, France can export its waste to U.K. for recycling but not to India. Contrary to popular perception, much of the waste trade was intra-OECD even in the past, and is likely to increase in the future due to the ban. The exception is the U.S., which has not ratified the Basel Convention, and can export to India. India has banned imports of certain categories of hazardous wastes to be “Basel Compliant”. The Basel ban when it comes into force will have major economic implications – industries using zinc and lead will have to import these metals in the pure form or source domestic supplies, which may be more expensive and may end up using virgin metal (a non-renewable resource). The prices of these metals may also go up.

Trade Restrictions and the WTO There is no doubt that the Basel ban which is an export ban is a “trade restriction”. However, no country has actually raised the issue in the WTO, although there are complaints that the Basel ban will restrict trade. In the case of the Rotterdam Convention, the decision of the importing country must be trade neutral. If it decides not to accept imports of a specific chemical, it must also stop domestic production for domestic use. Rotterdam has provision for arbitration and dispute settlement. There are some other technical issues as well with regard to conflicts with the WTO:

• Is waste a “product” under WTO rules? This is particularly relevant if the waste is for final disposal.

• Restriction on trade with non-parties may be in conflict with Most Favoured Nation (MFN) treatment.

• Export and import bans are quantitative restrictions not permitted under GATT/WTO. • Is PIC a form of import and export licensing? • Would these Conventions meet the general exemptions on health and environment of

Article XX of the WTO? (Section 3 provides more details on these Trade Implications). However, there is a very real possibility that trade diversion may take place as a result of the conventions. A signatory country may lose out particularly with regard to recycling. Non-parties may also benefit from the diverted trade. While India was an enthusiastic supporter of the 1989 Basel Convention, it has been less so with regard to the ban, after the recycling implications were realized. In the case of the Rotterdam Convention, India’s economic interests may be affected because she is a large producer and exporter of pesticides. The Stockholm

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Convention does not have any additional trade implications for India. Moreover, the Rotterdam and Stockholm Conventions were negotiated after the creation of the WTO in 1995. There was greater recognition of areas of potential conflict with WTO, and attempts were made to minimize these differences. The Basel agreement on the other hand was negotiated at a different time (1989). Liability The “Basel Protocol” spells out liability and compensation for damages caused by accidental spills of hazardous waste during import, exports, or during disposal. The protocol provides financial limits for strict liability based on tonnage. “Damage” includes loss of life, injury, property damage, loss of income, repairing or restoring costs, and cost of preventive measures. The persons liable under the protocol need to establish and maintain insurance and other financial guarantees covering their liability for the minimum amount specified. The Basel protocol is yet to enter into force. There are no similar liability provisions as yet in the Rotterdam and Stockholm Conventions, although these have been discussed in the Committee of Parties. Compliance The Basel Convention does not use trade sanctions for non-compliance. It relies on national law enforcement systems and legal liability with regard to private sectors. However, the Convention requires reporting of information to the Secretariat (UNEP). An Annual Report providing details of each transboundary shipment of Basel controlled wastes; disposal methods; countries of import and transit; accidents; efforts to reduce transboundary movements of hazardous wastes. Illegal traffic in hazardous waste is criminal and Parties to the Conventions are required to take appropriate action. An exporting country is required to re-import any shipment of hazardous waste that is deemed to be illegal. Some of these issues are discussed in more detail in Sections 2 and 3 which are extracts from an OECD report on the Basel Convention. The parties are working towards developing a compliance mechanism. The objective of mechanism for promoting implementation and compliance is to assist the Parties to comply with their obligations and to facilitate, promote, monitor and aim to secure the implementation of and compliance with the obligations under the Convention. The nature of the mechanism shall be non-confrontational, transparent, cost-effective, preventive, simple, flexible and non-binding. Indian Context India has signed all the three chemical conventions, and has in place a legal framework in terms of the Hazardous Chemicals Rules and Hazardous Waste Rules of 1989. The latter have been amended in 2000, 2003 and 2004 to be in conformity with the Basel Convention. India has

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banned the imports of 11 categories of hazardous wastes. A detailed discussion of the implications of the Basel Convention and ban are given in section 4. The implications of the Rotterdam/Stockholm Conventions are discussed below: Rotterdam / Stockholm Conventions – Implications The implications of these two conventions can be considered jointly since they both cover toxic chemicals in terms of production and use (Stockholm) and import and export (Rotterdam). The Rotterdam list includes pesticides and pesticide formulations as well as some industrial chemicals. Other chemicals could also be added to the list. India is in an unusual position of being both an importer and an exporter of pesticides and chemicals. India is the second largest manufacturer of chemical pesticides in Asia, and ranks twelfth globally. In 2001-02 when domestic sales was approximately Rs.4000 crores, exports were of the order of Rs.1800 crore. India has banned manufacture ,import and use of 25 pesticides/pesticides formulations . banned 2 pesticides/pesticide formulations for use but their manufacture is allowed for export and restricted the use of 8 pesticides including DDT. Clearly the pesticides that are banned or not approved for use should not be imported. However, there are stockpiles or wastes that will have to be disposed in an environmentally sound manner. Exports of chemicals would have to conform to the Prior Informed Consent procedure of the Rotterdam Convention. The Stockholm Convention on Persistent Organic Pollutants adopted in the Conference of Plenipotentiaries held at Stockholm on 22-23 May 2001 and signed by India on 14 May 2002, focuses on reducing and eliminating the production /use and release of 12 highly hazardous substances (industrial chemicals and pesticides) include 8 pesticides (aldrin, chlordane, DDT, dieldrin, endrin, heptachlor, mirex and toxaphene); 2 industrial chemicals (poly chlorinated biphenyls or PCBs and hexachlorobenzene) and 2 unintended byproducts (poly chlorinated dibenzo-p-dioxins and dibenzo furans, commonly referred to as dioxins and furans). The Convention has entered into force on 17 May 2004.The Convention has entered into force for India on 13th April, 2006. India has banned 25 pesticides of which 6 are in the POPs list: Aldrin, chlordane, dieldrin, endrin, heptachlor , toxaphene. India has restricted the use of DDT. Trade Implications Since the PIC Procedure of the Rotterdam Convention already covers the import and export of the pesticides and the industrial chemicals there is no additional demand placed as a result of the Stockholm Convention. A member of the Stockholm Convention can import POPs only for

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disposal purposes under more environmentally sound conditions than the exporting country. Export is allowed only for environmentally sound disposal of POPs. Compliance Both the Rotterdam and Stockholm Conventions are developing mechanisms for compliance with the provisions of the conventions. The mechanisms are intented to be simple, transparent, cost effective and preventive and should address the special needs and situations of developing countries. There are several policy issues confronting India:

(1) The future of the recycling industries dependent on imported zinc, lead and waste oil and also the ship breaking industry at Alang. The Basel ban amendment will have serious economic implications for these industries. The controversy over the French warship has brought the issue to the consciousness of the public as well as policymakers. India has to develop environmentally sound recycling technology in all these industries. India may also have to review the import ban provisions more carefully.

(2) India is a major producer and exporter of chemicals and pesticides. The impact of the Rotterdam/Stockholm Conventions on India needs to be analyzed. India has reduced its domestic consumption but increased its exports of pesticides in recent years.

(3) The control of emissions of dioxins and furans requires sophisticated monitoring capacity which is currently not available with most State Pollution Control Boards.

(4) Disposal of hazardous waste is still at a very nascent stage in India. SPCBs have to upgrade their capabilities to deal with this emerging issue, particularly in the industrialized states.

(5) The ability of Customs and Port authorities to check the chemical composition of imported chemicals is very limited. Illegal trade may increase with the Basel ban. There have already been several cases of hazardous wastes being mixed with fuel oil entering the country. Regulatory provisions alone are insufficient.

In the ultimate analysis, India cannot rely on multilateral environmental agreements and domestic legislation and rules to safeguard the environment. Domestic capability has to be strengthened in the area of hazardous chemicals and wastes. Conflict with WTO requirements is not likely to be a serious issue, if countries who have signed the chemical conventions are also WTO members. The main bone of contention seems to be the “Basel ban” which is not yet in force, but has been accepted by most OECD countries except the U.S. It will be difficult for India at this stage to object to the ban on the grounds of free trade after being an enthusiastic supporter of the Basel Convention all these years. It is unfortunate that the ban does not make any distinction between imports for disposal and for recycling. The genuine recycling needs of countries like India and Brazil will be adversely affected if the ban comes into force. India has to

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make sure that her exports of pesticides comply with the requirements of the Rotterdam Convention. The Stockholm Convention will have little or no trade implications for India, but compliance with restricting the unintentional release of dioxins and furans may be difficult.

2. GENERAL PROVISIONS OF THE CONVENTIONS A. GENERAL

The Basel Convention*

The tightening of environmental regulations in industrialized countries in the late 1980s led to a dramatic rise in the cost of hazardous waste disposal there. Many companies in these countries began shipping hazardous wastes to developing countries and Eastern Europe as a way to get rid of them more cheaply. International outrage over this practice led to the negotiation and adoption in 1989 of the Basel Convention. The Convention entered into force 5 May 1992. It had 165 parties as of April 2005. Basic treaty obligations The objectives of the Basel Convention are to reduce the generation and transboundary movement of hazardous wastes to a minimum and ensure that such wastes are treated and disposed of as close to the source of generation as possible and in an environmentally sound manner. The Convention covers toxic and eco-toxic, poisonous, explosive, corrosive, flammable, and infectious wastes. The Convention sets up a framework for controlling the transboundary movement of hazardous wastes. Transboundary movements of hazardous wastes or other wastes can take place only upon prior written notification by the State of export to the competent authorities of the States of import and transit (if appropriate). Each shipment of hazardous waste or other waste must be accompanied by a movement document from the point at which a transboundary movement begins to the point of disposal. Hazardous waste shipments made without such documents are illegal. In addition, there are outright bans on the export of these wastes if the exporting state “has reason to believe the wastes in question will not be disposed of in an environmentally sound manner.” Transboundary movements can take place, however, if the state of export does not have the capability to manage or dispose of the hazardous waste in an environmentally sound manner. The Convention also developed criteria for “environmentally sound management” of wastes, which require members to take practical steps to minimize the generation of hazardous waste by controlling the storage, transport, treatment, reuse, recycling, recovery and final disposal of the waste. * This section is reproduced from the OECD Report “Trade measures in the Basel Convention on the control of transboundary movements of hazardous wastes and their disposal”, 28 May, 1998.

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Additionally, parties adopted a convention amendment (the Ban Amendment) to ban the export of hazardous wastes for final disposal, recovery, or recycling from developed (OECD) countries to developing countries. Parties also adopted a Liability and Compensation Protocol to deal with damage resulting from the transboundary movement of hazardous wastes, including incidents due to illegal traffic. Neither the Ban Amendment nor the Liability Protocol has yet entered into force. Major issues arising from the Basel Convention

Definition of “wastes” and “hazardous wastes”

One of the biggest difficulties for the effective functioning of the Basel Convention’s regulatory regime is the core question of defining precisely which materials it covers. The Convention in effect lays out a classification mechanism, rather than specifying precisely which materials in which forms are hazardous wastes. The definitional system enumerates sources of wastes which are covered unless they do not possess any of the listed hazard characteristics. In practical terms this means it can be difficult for those operating the Basel provisions to know when they are dealing with a material to which the Convention applies. The difficulty is most acute in countries lacking a sophisticated testing and technical infrastructure. The Convention defines “wastes” as substances or objects which are (or will be or must by law be) disposed of. The distinction between products and wastes is a very complex and controversial threshold question. By their nature, many materials which, while being wastes, and while they may be hazardous in some sense, are also sources of “secondary” raw materials. Different approaches to this question of differentiating between wastes and products can cause confusion in international trade. The notification and consent procedure The Basel Convention’s core is the system it established for requiring written consent, on the basis of disclosure of relevant information, prior to any legal shipment of hazardous or other wastes. The notification and consent system has clearly achieved the primary objective of controlling previously uncontrolled transboundary movements of wastes, in the sense that it has established multilateral rules that govern such movements. It is hard to say whether there has been a reduction in transboundary movements because of the prior informed consent procedures. Has the procedure promoted the environmentally sound management of hazardous wastes? The main issue here concerns the ability of authorities to understand and make informed use of the information generated by the notification and consent procedure, and to manage the bureaucratic processes required.

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The Basel system is effectively a management system, and hence requires management expertise to function effectively. If properly implemented, it should promote the environmentally sound management of hazardous wastes. If in effect no assessment is made of whether hazardous waste imports will be managed in an environmentally sound manner, then the objective will not necessarily be met. The supplementary efforts undertaken on technical guidelines and training, work towards easing these constraints, and it will be a continuous process. It would seem safe to assume however that some countries are not currently in a position to implement the prior informed consent procedure in a way that clearly ensures environmentally sound waste management in their territories. This institutional capacity constraint was one of the reasons why many developing countries initially pushed for a total ban on hazardous waste movements. A total trade ban is administratively simpler than a permit system. A permit system obviously provides more scope for hazardous wastes to be imported than does a trade ban. Under a permit system, there is scope not only for poor quality technical decisions to be made, but also for illicit payments. While there is an argument that a total ban removes these dangers, that also depends on the State’s ability to control illegal trade. The fact that the Convention is moving toward implementing a ban on the export of hazardous wastes for both disposal and recovery, from Annex VII to non-Annex VII countries, can be interpreted as evincing the Parties’ belief that the prior informed consent procedures are inadequate for effectively controlling that category of trade in hazardous wastes. It is estimated by the Secretariat of the Basel Convention that at least 50 countries have implemented substantial restrictions on the importation of hazardous wastes. Reinforced by the Convention’s requirement that exporting countries shall not permit exports to countries with import bans, this measure should lead directly to the reduction of the quantity of hazardous waste movements. The degree to which this is the case in practice depends on the compliance with and enforcement of the import ban. Illegal trade could continue, and would probably be subject to lesser checks on the environmental soundness of its treatment than would legal trade. Thus there may be a trade-off between “control” and “reduction” of transboundary movements of hazardous wastes. As the Convention recognises, there may also be a trade-off in certain circumstances, between reducing transboundary movements, and environmentally sound management, of hazardous wastes. This would be the case when environmentally sound disposal or recovery facilities are not available domestically, but are internationally. Article 4.9(a) acknowledges this by providing a specific exception for this case, viz. specifically allowing for the transboundary movement of hazardous wastes where the State of export does not have the technical capacity and the necessary facilities to dispose of the wastes in an environmentally sound and efficient manner.

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The Effect on Recycling In general terms, environmentally sound recycling has a positive contribution to make to sustainable development in terms of reducing pressure on virgin materials and by avoiding environmental problems associated with disposal of the hazardous wastes. Recycling operations however can also be very damaging to health and the environment in the absence of worker protection and adequate environmental safeguards. Examples documented by Greenpeace include families smelting down small amounts of lead in cooking utensils for extra cash, causing releases of hazardous acids, chemicals into air and water in urban areas. It is not clear whether this kind of “back-yard” or informal sector recycling uses domestic or imported feedstock primarily, and whether it would be encouraged or discouraged by the Annex VII/non-Annex VII export ban, given the rising importance of trade among non-Annex VII countries. Recycling across national boundaries will be environmentally beneficial in certain cases, for example when there are economies of scale so that a shared facility is available for a group of countries, obviating the need for either technologically inferior processes domestically, final disposal or longer-distance shipments. In this context, increased movements of hazardous wastes could signify preferred environmental outcomes if they are shipped for environmentally superior management or instead of going to landfill. Increased transport of such recyclable hazardous wastes however poses increased risks of accidents and energy use that would add to the environmental costs of transboundary recycling. Recycling operations, to be economically viable, must often operate above a minimum capacity to effectively achieve the required economy of scale. It is often the case that there are insufficient materials available domestically to sustain the operation of environmentally sound recycling facilities and that economies of scale can be reached through import. In conclusion, the export ban would seem to be effective in meeting the stated objective of reducing exports of hazardous wastes from Annex VII countries to others, enforcement problems with illegal trade notwithstanding. However it can be argued that there is a problem in the overall economic and environmental impact of splitting the world market in two as concerns certain recyclable hazardous wastes which are valuable sources of secondary raw materials in some industries. Consequently it has been argued that potential perverse effects could include an increase in South/South trade, a discouragement of recycling in non-Annex VII countries, increased demand for extraction and processing of raw materials, cost increases and competitive disadvantage to user-industries in developing countries, a reduction in flows of environmentally sound recycling technology and technical assistance, and possibly enhanced backyard recycling. The broader goal of avoiding damage to health and environment may not be unambiguously well served once these ramifications are included in the calculus. Loss of business for the industries

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involved is another economic dimension. In the final analysis, each country weighs these factors from its own national perspective. Empirical analysis at the country level of all these factors would yield better information on which to analyse the economic and environmental impacts and overall effectiveness of the Convention. Compliance The purpose of this section is to examine the mechanisms in the Convention for ensuring compliance with its obligations. The Basel Convention does not use trade measures as sanctions for non-compliance. It relies on national law enforcement systems, and is working towards using legal liability as a key mechanism for encouraging compliance by private actors. While a formal implementation, compliance and control procedure (like the Montreal Protocol’s Implementation Committee) has not yet been established under the Basel Convention, some moves are being made in that direction. The Convention contains several provisions requiring reporting of information to the Secretariat. Each Party is required to submit an annual report providing details of each transboundary shipment of Basel-controlled wastes; disposal methods; countries of import and transit; accidents; efforts to reduce transboundary movements of hazardous and other wastes; Article 11 agreements; available information on the health and environmental effects of hazardous and other wastes; and measures taken to develop technologies to reduce or eliminate the production of controlled wastes. Parties may, under Article 19, notify the Secretariat if they suspect another Party of breaching its obligations under the Convention (although Article 19 has not yet been used). The Secretariat is in the process of establishing an integrated computerised information management system to organise and make accessible this and other information. Problems remain however with the amount and timeliness of information reported, thus hampering compliance monitoring. Furthermore, there is no mechanism yet in place for going beyond notification to critical review of information supplied. The Consultative Sub-Group of Legal and Technical Experts was therefore requested at COP III to report to the COP IV (February 1998) on issues related to the establishment of a mechanism for monitoring implementation and compliance. A questionnaire has been circulated to gather views on whether a new specific mechanism for implementation and compliance is necessary.

Illegal trade

Article 9 deems any transboundary movement of hazardous wastes or other wastes undertaken without valid notification or consent, or resulting in disposal in contravention of the Convention, to be illegal traffic. An exporting country is required to re-import any shipment of hazardous waste that is deemed to be illegal as a result of the exporter’s conduct. Article 4.3 says the

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Parties consider that illegal traffic in hazardous wastes or other wastes is criminal. Consequently, Article 4.4 requires Parties to take appropriate legal, administrative and other measures to implement and enforce the provisions of the Convention, including measures to prevent and punish conduct in contravention of the Convention. Article 9.5 requires parties to introduce national legislation to prevent and punish illegal traffic.

In order to assist with compliance, the Secretariat of the Basel Convention is establishing an international reporting system for cases of illegal trade. It also provides advice and information to Parties on monitoring, preventing and punishing illegal traffic. Further, co-operation with Interpol and regional governmental and private organisations in information exchange on illegal traffic has been instituted. The Secretariat and Interpol also jointly organise training courses for police officers in the identification of illegal traffic in hazardous wastes. Work with the World Customs Organisation to incorporate Basel-controlled wastes as specific items in the Harmonised System, the classification system used by customs, will also increase the capacity of States to monitor waste movements and to ensure compliance with the Convention. The current lack of comparability between information on shipments required at the customs level, and Basel-controlled wastes, is a major impediment to effective monitoring of and compliance with the Convention.

Information on the amount of illegal trade in hazardous wastes is not available. As the legal obligations of the Convention become tighter, e.g. as the prohibitions on Annex VII to non-Annex VII trade destined for disposal and recovery are implemented, the pressures for shipments to occur illegally increase. On the other hand it can be argued that the fact that the Annex VII/non-Annex VII ban makes Annex VII countries responsible for applying their institutional and administrative infrastructure to enforce the ban on export of hazardous wastes is an important means of dealing with illegal trade.

Liability Protocol

Article 12 requires Parties to co-operate with a view to adopting, as soon as practicable, a protocol setting out rules and procedures in the field of liability and compensation for damage resulting from the transboundary movement and disposal of hazardous and other wastes.

Since 1992, an Ad Hoc Working Group has been working on a draft Protocol on Liability and Compensation for Damage. This includes the possibility of establishing a civil liability regime and a compensation fund for damage caused during the transboundary movement of hazardous and other wastes. Agreement has not been reached on the desirability of establishing a compensation fund. Priority has been given to work on the liability protocol. A partial draft text has been prepared, but several key issues remain to be resolved.

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The draft calls for joint and several strict liability of either: (1) the generator, exporter or any person at the time of the incident “in [possession and/or] control” of the hazardous or other wastes, or (2) any person who at the time of the incident has operational control of the wastes. The right to seek contributions from other potentially liable persons is bracketed. The draft protocol sets a statute of limitations of 3 or 5 years depending on circumstances, but no time limitation for damage resulting from illegal traffic. No limit is placed on the extent of financial liability. Recoverable damages include loss of life and personal injury, loss or damage to property, loss of profit due to environmental impairment; impairment of environment costs of preventative measures, and loss or damage caused by preventative measures. The draft protocol will be one of the important issues to be considered by the next Conference of the Parties. Further developing international law on legal liability arising from transboundary movement and disposal of hazardous and other wastes would have significant implications for both private actors and States involved in these activities. There would be an incentive for trade to be conducted legally relative to illegally, but overall there would be a significant discouragement to movements of wastes that could conceivably cause damage. The Rotterdam Convention The dramatic growth in chemicals production and trade during the past three decades has raised both public and official concern about the potential risks posed by the hazardous chemicals and pesticides. Countries lacking adequate infrastructure to monitor and use of these chemicals are particularly vulnerable. In response to these concerns, the United Nations Environment Programme (UNEP) and the Food and Agriculture Organization of the United Nations (FAO) started developing and pronouncing voluntary information-exchange programme in the mid 1980’s .FAO launched its International Code of Conduct on the Distribution and Use of Pesticides in 1985 and UNEP set up the London Guidelines for the Exchange of Information on Chemicals in International Trade in 1987.Soon after , the two organizations jointly introduced the 1989 Prior Informed Consent (PIC) procedure. Jointly implemented by FAO and UNEP this programme has helped to ensure that governments have the information they need about hazardous chemicals for assessing risks and taking informed decisions on chemical imports. Seeing the need for mandatory controls, officials attending the 1992 Rio Summit adopted Chapter 19 of Agenda 21 which called for the adoption of a legally binding instrument on the PIC procedure by the year 2000. Consequently, the FAO Council (in 1994) and the UNEP Governing Council (in 1995) mandated their executive heads to launch negotiations which lead to the finalization of the text of the Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals in International Trade in March 1998.

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The Convention was adopted and opened for signature at a Conference of Plenipotentiaries in Rotterdam on 10 September 1998 and entered into force on 24 February 2004. The first Conference of the Parties to he Rotterdam Convention (COP-1) was held in September 2004 resulting in the addition of 14 new chemicals to Annex III and the adoption of a new section (Annex VI) on arbitration and conciliation. FAO and UNEP jointly perform the Secretariat functions for the Rotterdam Convention.

Stockholm Convention POPs are highly stable compounds that circulate globally through a repeated process of evaporation and deposit, and are transported through the atmosphere and the oceans to regions far away from their original source. They accumulate in the tissue of living organisms, which absorb POPs through food, water, and air. The effects of POPs exposure include birth defects, cancers, and dysfunctional immune and reproductive systems. POPs are also a threat to biodiversity, and even have the potential to cause disruption at the ecosystem level. The Stockholm Convention was adopted on 22 May 2001 at the Conference of Plenipotentiaries on the Stockholm Convention on Persistent Organic Pollutants, Stockholm, 22-23 May 2001 . The Convention has entered into force on May 17, 2004.As of November, 2006 , the Convention has 152 Signatories and 134 Parties The Stockholm Convention requires parties to eliminate, or in limited cases severely restrict, production and use of listed pesticides and industrial chemicals. Similarly, import and export of listed substances are prohibited or restricted, except for the purpose of environmentally sound disposal. Exports to non-parties are prohibited unless the nonparty meets certain conditions. All permitted exports must be done “taking into account any relevant provisions in existing international prior informed consent instruments.” Parties are permitted to register for specific, time-limited exemptions to some of the Convention’s production and use prohibitions. Parties are required to take actions to promote application and development of measures to reduce and eliminate releases of listed unintentionally produced POPs, such as dioxins and furans. Parties are obliged to develop strategies to identify, manage, and dispose of POPs wastes. Moreover, they must regulate with the aim of preventing the production and use of new chemicals that exhibit POPs characteristics. Each party must develop and “endeavour to implement” a national implementation plan setting out how the party will comply with convention requirements. Developed country parties are to provide new and additional financial resources to enable developing country parties and parties with economies in transition to meet the agreed full incremental costs of implementing measures that fulfill their obligations under the Convention.

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(Specific Provisions of the three Conventions are given in Annexures I, II and III).

3. TRADE MEASURES AND WTO IMPLICATIONS OF THE BASEL CONVENTION*

The purpose and effectiveness of the trade measures While the trade-related provisions of the Basel Convention are set in a broader context of environmentally sound management of hazardous and other wastes, they constitute the core operational provisions of the Convention. They are the primary means by which the Convention seeks to meet its objectives. Thus the purpose and effectiveness of the trade provisions is inextricably linked to the overall environmental purposes and effectiveness of the Convention. Furthermore, it would not seem productive to attempt to assign specific purposes to each of the various trade provisions. The concept of “effectiveness” of policy measures taken for environmental purposes has many dimensions, at least including political, legal, environmental and economic dimensions. The question of which indicators could be used to assess environmental effectiveness, or overall effectiveness in terms of costs and benefits, of the trade measures is particularly difficult in the case of the Basel Convention. It is not possible to state clearly the coverage of the Convention because of the margin for interpretation in the definitions of waste and hazardous waste; data at a waste-specific level is largely unavailable; several policy regimes operate in this area simultaneously, and the Convention is so young.

Hazardous waste movements

After full cost/benefit analysis, the next best proxy indicator of effectiveness might be to assess whether physical transboundary movements of hazardous wastes have declined in volume over the life of the Convention. The fact that data is not generally available on even legal shipments of hazardous waste as a discrete category has been discussed previously. Moreover, quantities of materials traded would of course give no indication of hazard and environmental costs in themselves, and some movements are acknowledged to yield environmentally preferable outcomes. Without data disaggregated according to final use (recycling or disposal), to type of waste, and to destination country, it is practically impossible to assess the “environmental loading” caused by waste flows, and the effectiveness of the Basel Convention in reducing those effects.

Information on hazardous waste movements covered by the Basel Convention must be reported to the Convention Secretariat. Ideally, the secretariat would then publish them in standard * This section is reproduced from the OECD report “Trade measures in the Basel Convention on the control of transboundary movements of hazardous wastes and their disposal”. The report raises some hypothetical issues on potential conflict with WTO requirements.

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format, compiled and analysed. Although the Convention requires reporting of various information including quantities of transboundary movements, so far these obligations have not been fulfilled in a way which enables data to be effectively collated. For example of the 32 Parties which provided information on exports of hazardous wastes (as required by Article 13.3(b)(i)), only 15 used the form prepared by the Secretariat. Consequently, information given covers different time periods, different units of measurement, different definitions and categorisations of hazardous wastes, a variety of languages, and sometimes illegible print. There is a general view in business and environmental circles that international movements for final disposal have probably declined, whereas movements for recycling have increased. This view is supported by the OECD data in Table 1 below. It presents the OECD figures on total exports within OECD, and the proportions going to disposal and recovery, over the years 1990 to 1993.

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Table 1: Exports of hazardous wastes within the OECD area

1990 1991 1992 1993 Total “Hazardous Waste” Exports from OECD Countries (tonnes)

1 801 108 1 941 317 1 425 962 1 396 470

Average* share going to Final Disposal (%)

53.1 51.3 49.8 41.6

Average* share going to Recovery (%)

46.9 48.7 50.2 58.4

of which: % of recycling/reclamation of metals and metal compounds % used as fuel to generate energy % of recycling of inorganic materials

42.6 9.5 7.5

19.7 2.4 61.8

51.0 7.9 12.1

51.5 10.3 8.9

Source: OECD (1993), (1994) and (1997), various tables. * These averages are based only on data from those countries for which the breakdown

as between final disposal and recovery is available. As can be seen, both the total measure of exports of “hazardous wastes” (as defined by the national authorities reporting data to OECD) and the share going to final disposal have decreased over the four years for which data are available. It is not possible to distinguish the effect of the Basel Convention (which entered into force in 1992) from the effect of other control systems operating in the OECD countries, such as the OECD System, the EU regulations and national policies which have been implemented progressively since the mid-1980s. However, to the extent a trend can be identified here, it would seem to be a downward one. Recycling and/or reclamation of metals and metal compounds would also seem to be constituting a generally increasing share of exports of hazardous wastes destined for recovery. The dramatic difference in the 1991 composition of hazardous wastes going to recovery relative to the other years shown in the Table is possibly due to a large once-only shipment of a particular waste item, which distorted the shares in that year.

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Membership of the Basel Convention and the WTO

In analysing the situations in which inconsistencies may arise, it is useful to distinguish between the possible classes of countries. A majority of countries are parties to both the WTO and the Basel Convention. Some countries such as the US are WTO members but not party to the Basel Convention. Some countries such as China are parties to the Basel Convention, but not WTO members. The amendment to the Basel Convention (which will enter into force 90 days after ratification by three quarters of the Parties) raises further possible categories of countries. States Party to the Basel Convention would only be legally bound by the amendment (introducing the Annex VII/non-Annex VII export ban) if they ratify it. Therefore some countries will be Party to the Basel Convention including the amendment, and some, at least transitionally, will be Party to the Convention excluding the amendment. In cases where both countries are Party to the Convention including the amendment, and the WTO, it is quite unlikely as a practical matter that they would challenge in the WTO a measure authorised or taken in pursuance of their obligations under the Basel Convention. As Parties to the Convention and the amendment, it would be difficult, not least politically, to object to other Basel Parties implementing their obligations under the Convention. The case where two countries are both members of the WTO but only one is a Basel Convention Party (including or excluding the amendment) is a hypothetical situation where an inconsistency may arise. In implementing the obligations of the Basel Convention, a country may find itself unable to respect certain obligations to another WTO member, not Party to the Basel Convention. The case where two countries are WTO members and party to the Convention, but only one of them is a party to the ban amendment, is analogous to the preceding case. Under ordinary principles of international law, and as applied in Article 17 of the Basel Convention, a state is only bound by an amendment to a treaty if it accepts the amendment. Therefore a Party which has accepted the amendment may find itself unable to both implement the amendment ban and respect its WTO obligations to a fellow WTO member which has not accepted the amendment. However, in political, rather than strictly legal, terms it may be more difficult for a Basel Party to pursue any incompatability in the WTO than it would be for a non-Party, non-acceptance of the amendment notwithstanding, given Decisions I/22 and II/12, adopted formally by consensusi at meetings of the Conference of the Parties. The case where one or both countries are not WTO members is not of interest for the purposes of a discussion of the relationship with the multilateral trade rules.

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Where would a dispute be heard?

The preliminary issue of where a dispute would be heard has potentially significant implications for which legal regime is applied to settle it. Parties to the Basel Convention are required to seek a peaceful resolution of any disputes that may arise either through negotiation or other peaceful means of their choice (Article 20.1). If the Parties fail to reach a resolution of a dispute informally, the Convention provides that, where Parties agree, such disputes be submitted to the International Court of Justice (ICJ) or to arbitration (Article 20.2). A dispute before the ICJ would be settled according to the rules and principles of international law.

Annex VI of the Convention covers the formation of the arbitral panel, deadlines and procedures for rendering a decision, the ability to raise counter-claims, and the ability to appeal a decision of the arbitration panel. Within the section on Conclusions and Recommendations of the December 1996 Report of the WTO Committee on Trade and Environment WTO Members have stated their view that “if a dispute arises between WTO members, parties to an MEA, over the use of trade measures they are applying between themselves pursuant to the MEA, they should consider trying to resolve it through the dispute settlement mechanisms available under the MEA”. In the event that a WTO dispute settlement procedure were initiated, the Dispute Settlement Panel would be charged with deciding the issue in the context of the GATT and the relevant WTO Agreements, using “customary rules of interpretation of public international law” where appropriate to clarify WTO provisions (Article 3(2) of the Dispute Settlement Understanding).

Some relevant WTO principles

(a) Is waste a “product” under the WTO rules? The first question that would arise is whether hazardous or other wastes would be considered a ‘product’ for the purposes of the WTO rules. As noted above, the distinction between ‘wastes’ and ‘products’ or ‘goods’ is fundamental in defining the scope of the operation of laws relating specifically to wastes. As the WTO rules apply to ‘products’, it is worth considering therefore whether the waste/product distinction is relevant in the WTO context. The WTO Agreements do not contain an agreed definition of ‘product’. While the issue of defining wastes and products separately has been discussed in the Working Group on Export of Domestically Prohibited Goods and Other Hazardous Substances, no definitive answer has been reached. One commentary has argued that, while arguments can be made to the contrary, it is likely that the WTO rules on products apply to wastes covered by the Basel Convention, as they are “moveable items” placed in international commerce. This reasoning is perhaps stronger with

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respect to hazardous wastes destined for recycling or recovery operations than it is for those destined for final disposal. Apart from the product/waste issue, in cases where the importer is paid to receive hazardous wastes for treatment, this is effectively the provision of a service across international borders. As such it would seem to be a service as defined in the General Agreement on Trade in Services (GATS) which defines ‘service’ as any service in any sector, except services supplied “...neither on a commercial basis, nor in competition with one or more service suppliers”. The GATS would raise essentially similar legal issues as the main WTO provisions discussed hereafter, depending on the coverage of treatment of hazardous wastes in the WTO Schedules of WTO Members. (b) Article I - General Most Favored Nation Treatment. Article I of GATT 1994 requires that with respect to (inter alia) all rules and formalities in connection with importation and exportation, any advantage, favour, privilege or immunity granted by any WTO member to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other WTO members. The question would therefore arise as to whether a country, in implementing its obligations under the Basel Convention, could find itself denying another WTO member Most Favored Nation treatment. The restriction on trade with non-Parties, and the proposed Annex VII/non-Annex export ban, could give rise to this situation. For example, country A, a party to the Basel Convention and a member of the WTO, would be obliged to implement an export and an import ban on hazardous or other wastes to and from country B, not a party to the Basel Convention, but a WTO member. In the context of Article I of the GATT, country B could claim that country A is conferring an advantage or privilege on the product going to or coming from other countries which are party to the Basel Convention, that is being denied to a like product going to or coming from country B. The nature of the advantage would be the right to import or export the hazardous or other wastes. This “advantage” could be significant where the hazardous or other waste in question is also a secondary source of a needed raw material. If a measure taken under the Basel Convention was considered to be inconsistent with the MFN principle, the question would then arise as to whether the trade restriction would nevertheless be justified in the WTO under a relevant exception (see discussion of Article XX below).

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Article XI - General Elimination of Quantitative Restrictions GATT Article XI states that no prohibitions or restrictions other than duties, taxes or other charges shall be applied to imported or exported products (with some exceptions not relevant here, such as agricultural products). In effect, export and import bans are prohibited. Therefore, the question could arise as to whether the provisions in the Basel Convention that concern an export or an import ban would be consistent with GATT Article XI. It is essential that this Article, as others, be considered in conjunction with the general exceptions to the basic principles. (d) Article XIII - Non-discriminatory Administration of Quantitative Restrictions This Article concerns import and export licensing, prohibitions and quotas, and requires that like products coming from, or going to, all countries be treated in the same way. Would the prior informed consent procedures be considered as import and export licensing under this Article? Similar issues concerning non-discrimination could arise under this Article as arise under Article I with respect to the distinctions made between Annex VII and non-Annex VII countries, and the distinction made between Parties and non-Parties. (e) Article XX - General Exceptions The GATT provisions accommodate trade restrictions in the pursuit of environmental protection under certain circumstances. Article XX states (in part) that:

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: ... (b) necessary to protect human, animal or plant life or health; ... (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption; ...

To fall under Article XX, an action taken needs to satisfy the conditions laid down in the chapeau and one of the paragraphs of Article XX. Paragraph (b) and (g) above would seem to be the most relevant with respect to the Basel Convention.

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A preliminary question of approach however would arise. Given that the Basel Convention is also a reflection of the views of the international community, it is not clear how far a WTO Panel would inquire into the specific requirements of Article XX in the case of a trade measure taken under the Convention. It is possible, for example, that a (rebuttable) presumption would be made that an international consensus exists on the validity and necessity of the instruments chosen to meet a Basel Convention objective. It could also, for example, decide to solicit the views of the Convention or associated experts on the specific matters raised by Article XX. Where appropriate, e.g. in a situation of ambiguity regarding the interpretation of a WTO provision, or regarding a WTO provision and the provision of another international agreement, the WTO dispute settlement system provides for recourse to customary rules of interpretation of public international law, including the Vienna Convention on Treaty Law. To date, the WTO dispute settlement system has made reference only to some of the rules of interpretation of the Vienna Convention in clarifying WTO provisions. Article 31(3)(c) of the Vienna Convention on the Law of Treaties provides that when interpreting a Treaty provision, one may take into account “any relevant rules of international law in the relations between the parties”. Nevertheless, the role of WTO dispute settlement is to determine existing rights and obligations under the WTO Agreements. If the text of the Convention were examined when applying the “arbitrary and unjustifiable discrimination”, and the “disguised restriction on trade” tests of the chapeau of Article XX, the “necessity” test in Article XX(b), and the specific requirements of Article XX(g), the following aspects of the Convention and the amendment would seem to be relevant:

• The Convention makes it very clear that controlling and restricting transboundary movement or trade in hazardous wastes is the very purpose of the Convention.

• Of specific relevance to the amendment proposing the export ban, the preamble of the Convention recognises “the increasing desire for the prohibition of transboundary movements of hazardous wastes and their disposal in other States, especially developing countries”.

• Furthermore, the amendment when ratified would insert a new paragraph in the preamble of the Convention: “recognising 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 this Convention”.

• Article 11 agreements mitigate the trade restrictions in certain circumstances.

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• Parties are free to seek enlistment in Annex VII.

In terms of the application of Article XX(b), previous WTO panels, none of which have concerned trade measures taken pursuant to multilateral environmental agreements, have not considered trade measures as “necessary” if “alternative measures either consistent or less inconsistent with the General Agreement were reasonably available to (a member) for achieving its aim of protecting human, animal or plant life.” Therefore the argument might be put that various other measures such as technology transfer would be less trade-restrictive ways of meeting the Convention’s objectives than would certain trade restrictions. Some would argue however that such “positive” measures function as complements, not alternatives, to the trade measures. In this latter case the implementation of the “positive” measures in complementing the trade measures might also be assessed.

4. RELEVANCE OF THE CHEMICAL CONVENTIONS FOR INDIA

The three chemical conventions cover trade in hazardous wastes (Basel), trade in hazardous chemicals (Rotterdam) and the elimination of persistent organic pollutants (Stockholm). Each convention has a list of wastes/chemicals that come under the purview of the respective convention. India has a regulatory framework under the Environment Protection Act to manage hazardous chemicals as well as hazardous waste, viz.

• Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989. • Hazardous Wastes (Management and Handling Rules, 1989 as amended in 2000, 2003

and 2004. In addition there are rules for biomedical wastes and lead acid batteries. The major responsibility for implementing the rules is with the Central and State Pollution Control Boards. Approximately 4.4 million tones and hazardous wastes are generated annually by 13011 units spread over 37 districts of which the States of Maharashtra, Gujarat and Tamil Nadu account for over 63 per cent. India is a signatory to the Basel Convention, which came into force in 1992; to the Rotterdam Convention, which came into force in February 2004; and to the Stockholm Convention, which came into force in May 2004. However, India has not ratified the Basel Ban Amendment or the Protocol Liability, which are not yet in force. The relevance of each of the three conventions is discussed below.

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Basel Convention The 1989 Hazardous Waste Rules permitted the import of hazardous wastes which could be reused as raw material; but banned the import of hazardous waste for final disposal. In spite of these rules, unauthorized imports of hazardous waste continued. These were mainly metal scrap-lead, zinc, copper and aluminium – and also plastics. In response to a petition, the Supreme Court issued an order in 1997 completely banning imports of hazardous wastes covered by the Basel Convention, making the HW rules “Basel compliant” (Annexure VII). However, the original Basel Convention did not prohibit or ban exports of hazardous wastes, but put in place a prior notification and consent procedure. The Convention provided for imports of hazardous waste either for recycling or for environmentally sound disposal. The 1995 Ban amendment which prohibits exports from OECD to Non-OECD countries is not yet in force, and in any case India has not ratified the amendment. There was therefore no need for a ban on imports of hazardous waste, particularly those wastes that are intended for recycling. The High Powered Committee chaired by MGK Menon was extremely critical of the ban on imports (Box I), particularly with regard to lead, zinc and waste oil. This was also the view of the Central Pollution Control Board (Boralkar and Biswas, 2000) who felt that an import ban would increase the dependence on virgin ore, and also result in dumping of potentially recyclable material which may cause other environmental problems.

Box I: Recommendations of M.G.K Menon Committee (1998) • No wastes should be permitted into the country which is for the purpose of direct

dumping or which results in indirect dumping. Monitoring of this has to be ensured.

• The Basel ban (which is yet to come into force) should not result in killing India’s recycling industry. Consumption of Virgin materials and energy would increase due to shortage of secondary materials

• The Government should actively support the development of environment friendly recycling technology

• Build and maintain capacity for environmentally sound management (ESM) of indigenously generated wastes.

• Need for a proper policy on hazardous waste that would minimize, if not eliminate, the need for imports of such materials.

• List of non-hazardous materials should also be reviewed, since their handling and disposal may generate hazards (eg., PVC scrap)

Source: Report of the High Powered Committee on Hazardous Wastes (1998)

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Recycling Implications

The Basel Convention (and the Ban Amendment) has important economic implications for the recycling of zinc, lead, fuel oil and for the ship breaking industry. These are discussed below by the High Powered Committee (HPC). (a) Recycling of Imported Zinc Wastes The primary production of zinc in India is about 142,000 TPA and secondary (recycled) production is about 40,000 TPA.The total consumption of zinc is 239,000 TPA. The demand-supply gap of 57,000 TPA is met by secondary zinc-producers using indigenous and imported zinc-secondaries (wastes).In 1997, with the Court order banning all wastes banned by the Basel Convention, the import of zinc wastes came to a halt, as zinc wastes are on Annex VII of the Convention. The easy availability of zinc wastes abroad was an important factor in preventing the emergence of any serious effort to collect and channel zinc wastes generated within the country. As a result, till the present time, there is no estimate available of the quantities of zinc waste generated in India. The HPC doubts whether all the zinc waste generated is recycled. If it were, dependence on imported zinc wastes would certainly reduce and so would the hazards associated with their import. In fact there is evidence that when zinc waste imports came to a halt, many units were able to procure materials from local sources to keep their production going. It now appears that quantities of zinc waste have continued to be imported into India, though on a smaller scale, despite the order of the Court.

The R.A.Mashelkar Committee had recommended that zinc ash with a minimum 65 percentage of zinc and contaminated with not more than 1.25 per cent and 0.1 per cent of lead and cadmium respectively be allowed for import processing as this, in its view, would be non-hazardous wastes and worth recycling. Such imports would be permitted under OGL only to those units that are registered with the MoEF. Based on this recommendation, the MoEF has resumed granting approvals for import of zinc wastes from abroad. (b) Recycling of Imported Lead Wastes Lead wastes are decidedly more hazardous than zinc wastes, and both lead and battery waste appear in Annexure VII of the Basel Convention. Imports of lead wastes, however, have continued unabated despite prohibitions by the courts. For example, more than 38 companies, none of them with licenses, imported lead and battery wastes between April 1996 and February 1997. The total imported waste was in the region of 15,000 metric tonnes. There is little doubt that the ease with which imports are conducted has continuously dampened any efforts within the country to organize take-back or buy-back of used batteries. One of the

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principal consequences of the failure has been encouragement for the growth of backyard lead smelters, widely acknowledged as a major source of unacceptable lead pollution in the form of emissions and unrecovered lead waste. It is important that the ban on lead waste import not be lifted until and unless there is reasonably well-established system for the collection and recycling of used batteries within the country. (c) Recycling Imports of Waste Oil Waste oil is hazardous waste as per the HW Rules, 1989/2000, as well as the Basel Convention .It is listed in List A, Annex VII and transboundary movement of waste oil is not permitted. However, the import of waste and used oils has been taking place in India, though there is now a declining trend. It has been found that waste oils containing hazardous contaminants (like PCBs, PCTs, chlorinated solvents, heavy metals etc.) are often dumped in the developing countries, which do not have sufficient monitoring mechanisms. It has been seen that importers may import the waste/used oil in the name of fuel oil/black oil or furnace oil or other lube oils. The virgin lubricants do not contain toxic materials. Since the Port or Customs authorities do not have the facilities to quickly analyse these contaminants and have to clear the consignments in a short time, the authorities may go as per the declaration provided by the exporters and/ or importers. PCB are added to waste oils by international or accidental mixing. PCB is highly hazardous and is one of the twelve persistent organic pollutants under the Stockholm Convention. Because of their oily appearance and mineral-oil miscibility, they are mixed with other waste oils. In may cases, PCB owners deliberately mix PCBs with other waste oils intended for recovery, in order to “hide” PCBs, thus saving expenses for the disposal of PCBs as hazardous waste. For the same reasons,(chlorinated) solvents and diluants are sometimes mixed with waste oils.

(d) Ship – Breaking Ship breaking was recognized as a manufacturing industry in India in 1979. The Alang shipyard in Gujarat is the most important site for ship-breaking in India. In 1989-99, 361 ships were dismantled with a total tonnage of 3 million metric tones, and provides employment for 40,000-50,000 people. 2-2.5 million tones of recyclable steel are recovered, which accounts for 20-25 per cent of inputs to the steel and foundry industry. Ship breaking at Alang is regulated by the Gujarat Maritime Board, Pollution Control Board, and Coastal Zone Regulation and Port authorities. The rights and safety of the workers are protected by regulations of the Maritime Board. Currently, the mortality rate of workers at Alang is 40-50 per annum according to official estimates. There is also severe environmental degradation due to disposal of hazardous wastes. Ultimately, Alang would have to meet international standards of environmental practice for ship breaking. There is concern that ship breaking would migrate to other countries with less

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stringent rules. India would also have to be make up the recyclable steel from other sources or virgin ore. The High Powered Committee (HPC) has recommended that ships destined for ship breaking on India’s coast ought to be decontaminated as far as possible; and that this may be a transitional issue as the later generations of ships no longer carry asbestos. The Committee has already expressed its concern about the manner in which waste asbestos is handled. It has also recorded its opinion that the import of waste asbestos (whether directly or indirectly) is a violation of the Rules. The HPC was informed that the CPCB has inspected ships brought for breaking at Alang on two occasions. Samples of oil/paint chips were analysed for the presence of PCBs.The tests were negative. Compared to the total amount of re-usable products that are recovered from the ships broken at Alang, quantities of materials considered hazardous are fairly small, less than 1% of the total weight of the ship. The HPC, after considering the balance to be maintained in such circumstances and the large number of people that are employed in the industry, has come to the conclusion that there are certainly several advantages to the shipbreaking activities along the Alang and Sosiya coast. This is not to conceal the problems associated with shipbreaking at present. These must be radically resolved, and closure must be a realistic option if there is an absence of marked improvements in the conduct of the shipbreaking activities. The HPC has recommended that the shipbreaking activities sould be made subject to uniform norms all over the world, so that enforcement of norms such as recommended above in the case of Alang will not force the migration of the industry to other countries. The legal status of obsolete ships is a matter of debate at the international level. The issue is whether the ship bound for ship-breaking is regulated by the International Maritime Organisation or by the Basel Convention. Whatever agreement is reached, asbestos and other wastes contained on board ships should be disposed in an environmentally sound manner. (e) E -Waste Yet another sector which may come under the purview of the Basel Convention is Electronic Waste. E-waste refers to obsolete computers, laptops, TVs, DVD players, mobile phones which are disposed by the original users. These wastes contain chlorofluoro carbons (CFC), Polychlorinated Biphenyls (PCB), and heavy metals like Mercury, Cadmium, Lead and Chromium. It is estimated that 1,46,000 tonnes per year of e-waste are generated in India every year. In addition, a lot of e-waste is exported from developed countries to Asian Countries for recycling and disposal. The Hazardous Waste Rules are unclear, with regard to electrical and electronic equipment. Moreover, the import of second hand computers no older than 10 years and donations of computers to non-profit organizations is permitted in India. China has banned

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the import of most forms of e - waste such as circuit boards, cathode ray tubes and monitors. The Central Pollution Control Board has constituted a Task-Force on E-Waste which will look at several aspects including policy, recycling and extended producer responsibility. India has not ratified the Basel Ban amendment, mainly because of the negative repercussions on the recycling industry. However, the import restrictions that India has imposed have virtually had the same impact. In any event, India has to ensure that recycling is done in an environmentally sound manner, with regard to domestic hazardous wastes, including ship breaking and e-wastes, regardless of whether the Basel ban comes into force. Recycling is profitable in India but it should not be at the expense of the health of the workers or the quality of the environment. Rotterdam Convention The pesticide industry in India is the industry most affected by the Rotterdam Convention. The pesticide industry has grown rapidly during the last 40 years and presently there are more than 60 technical grade pesticides being manufactured in India. There are more than 125 units engaged in the manufacture of technical grade pesticides and over 500 units making pesticide formulations. Insecticides, fungicides, weedicides, rodenticides are all produced and are extensively used in agriculture and disease vector control. Due to various restrictions on use within the country (see Annexures VIII for lists of Banned and Restricted Pesticides), pesticides consumption in India had fallen to 43 tonnes in 2000-01.However, exports of pesticides have nearly doubled from 39,000 MT in 1999-2000 to nearly 72,000 MT in 2004-05.In other words, pesticides production is increasing for exports, rather than for domestic consumption. For those pesticides covered by the Rotterdam Convention, India would have to abide by the framework of the Convention. India produces some of the pesticides covered by the Rotterdam Convention including: DDT, Methyl Parathion, Monocrotophos, Lindane and Captafol. PESTICIDES STATISTICS IN INDIA1

Table 2: Trade in Pesticides (in Metric Tonnes per Year)

Year 1999-00 2000-01 2001-02 2002-03 2003-04 2004-05

Export

Quantity

39042 47930 50085 55693 68981 70879

Import

Quantity

5379 5934 7240 6795 12647 18102

Source: CMIE 1 There are some inconsistencies between the three tables because each is from a different source. Consumption = Production + Import – Export is not strictly met. However, it is clear that consumption is falling and exports are rising; possibly, inventories / stockpiles may have increased.

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Table 3: Production of Pesticides (in MT per Year)

Year 1990-00 2000-01 2001-02 2002-03

Insecticides 68571 69703 58106 49893

Fungicides 12383 12058 13536 12266

Weedicides 7942 5839 5524 3197

Others 4813 4736 3135 2044

Total 93709 92336 80301 67400

Source: Directorate of Plant Protection

Table 4: Consumption of Pesticides

Consumption of pesticides (group-wise) during 1995-96 to 2000-01 MT(Tech. Grade) Pesticide Group 1995-96 1996-97 1997-98 1998-99 1999-2000 2000-01 Insecticide 38,788 34,665 33,379 30,469 28,926 26,756 Fungicide 10,563 9,969 10,054 10,428 8,435 8,307 Weedicide 6,040 7,060 7,103 7,292 7,369 7,299

Others 5,869 4,420 1,703 968 1,465 1,222 Total 61,260 56,114 52,239 49,157 46,195 43,584

Source: Pawar, 2003

The Insecticides Act, 1968 regulates the import, manufacture, storage, transportation, sale and use of insecticides with a view to prevent risk to human beings and animals. The list of pesticides produced in India is given in Annexure IX. 4.3 Stockholm Convention The regulatory status of the pesticides in the Stockholm Convention is as follows: The Ministry of Agriculture has banned and restricted nearly 30 pesticides, including some of the POPs pesticides under the provisions of Insecticides Act, 1968.The regulatory status of the pesticides prescribed in the Stockholm Convention is given in Table 5.

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Table 5: Pesticides: Regulatory Status

Chemical Status Effective Notification No. & Date

DDT Banned for agricultural use and restricted use in public health sector to the tune of 10000 metric tonnes of technical grade.

26.5.89 378(E) 25.7.89

Aldrin Complete ban on manufacture, use, Import and export

20.9.96 648(E) 20.9.96

Dieldrin a). use restricted for Locust control in desert areas by Plant Protection Advisor to the GOI. b). Production is banned w.e.f. 17.7.2001 c). Marketing & use is permitted for 2 years or date of expiry whichever is earlier

15.5.90 382(E) 15.5.90

Endrin Complete ban on manufacture, use, import and export

15.5.90

382(E) 15.5.90

Chlordane Complete ban on manufacture, use, import and export.

20.9.96 648(E) 20.9.96

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Table 5 Continued

Chemical Status Effective Notification No. & Date

Mirex Never registered in India.

Heptachlor Complete ban on manufacture, use, import and export.

20.9.96 648(E) 20.9.96

Hexachloro –Benzene

Complete ban on manufacture, use, import and export.

Toxaphene Complete ban on manufacture, use, import and export.

25.7.89 569(E) 25.7.89

Of the twelve listed chemicals, production is confined to DDT. However there are stockpiles and waste accumulations of obsolete POPs, principally pesticides, stored in warehouses and at abandoned production sites. These sites are likely to be responsible for the release of POPs into the environment through rainfall water run off, seepage leaking and vaporization , giving rise to major problems of soil contamination. The Government of India has sought and obtained specific exemption with regard to DDT for vector control and Dieldrin (for two years for agricultural purpose). India continues to use articles containing PCBs in accordance with Annex A, Part II of the convention. India will not have much difficulty in meeting the requirements of the Stockholm Convention with regard to the nine pesticides. Most of these are pesticides are already banned, and DDT is primarily used for vector control for malaria. However, there may be stockpiles that have to be disposed in a sound manner. The PCB family consists of about 209 compounds, which contain varying amounts of chlorine. PCB was extensively used to insulate electrical components such as cabling, electrical wiring, etc. The Hazardous Waste Rules include wastes containing PCBs. Unfortunately, PCBs do not degrade easily and persist in the environment for long periods of times. PCBs can be substituted by silicone oils and transformer grade mineral oils. (McGinn, 2000). Dioxins and furans are not produced intentionally, but are the by-products of industrial processes like bleaching or the incineration of municipal and biomedical wastes. Incineration accounts for 69 per cent of dioxins and furans releases to air. In India, the regulation of dioxins and furans is through the Air Quality standards. There has been a great deal of controversy over incinerators for bio medical waste management. CPCB has banned the burning of PVC in medical waste incinerators. However, there are no dependable data in India on dioxins and furans. The

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Regional Research Laboratory, Thiruvananthapuram is carrying out a project on the monitoring and analysis of dioxins/furans in biomedical waste incinerators. India initiated an Enabling Activity Project on “Preliminary Assessment to Identify the Requirements for Developing a national implementation plan as a First Step to Implement the Stockholm Convention on Persistent Organic Pollutant(POPs)”. Industrial Toxicology Research Centre (ITRC) , Lucknow was entrusted to carry out the study with UNIDO as the executing agency under GEF funding. The objective of the study was to undertake a preliminary assessment of the situation relating to POPs in India and identify the requirements for developing a National Implementation Plan. The study has been completed and the final draft Project Brief has been forwarded to Global Environment Facility(GEF) for seeking funds for preparation of National Implementation Plan for India

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ANNEXURES

I. MAJOR PROVISIONS – BASEL CONVENTION

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal Brief Description

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal

Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary

Movements of Hazardous Wastes and their Disposal

Web site http://www.basel.int/ Objective The objective of the Basel Convention is to protect human health and the

environment against the adverse effects which may result from the generation and management of hazardous and other wastes.

The specific objectives of the Basel Convention are: • To reduce transboundary movements of hazardous wastes • To minimize the generation – in terms of quantity and hazardousness

– of wastes • To promote the environmentally sound management of hazardous and

other wastes The Convention provides for the attainment of these objectives through

control of the transboundary movements of hazardous wastes, monitoring and prevention of illegal traffic, assistance for the environmentally sound management of hazardous wastes, promotion of cooperation between Parties in this field, and development of Technical Guidelines for the management of hazardous wastes.

The objective of the Protocol is to provide for a comprehensive regime for liability as well as adequate and prompt compensation for damage resulting from the transboundary movement of hazardous wastes and other wastes and their disposal, including incidents occurring because of illegal traffic in those wastes.

Under the Protocol, actors involved in the transboundary movement and disposal of hazardous waste are strictly liable for damage caused regardless of the presence of fault and up to the financial limits established by the Protocol. Fault-based liability is also regulated by the Protocol.

Date of Adoption 22 March 1989 10 December 1999 Entry into force 5 May 1992 Not in force.

The Protocol will enter into force after 90 days of the date of the 20th instrument of ratification.

Parties 163 4WTO Members 130 Parties to the Basel Convention are also WTO Members. 2 Parties to the Basel Protocol are also WTO Members.

Openness of Article 23 – Accession Article 26 – Signature

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Movements of Hazardous Wastes and their Disposal

Membership "1. This Convention shall be open for accession by States, by Namibia, represented by the United Nations Council for Namibia, and by political and/or economic integration organizations from the day after the date on which the Convention is closed for signature …".

"The Protocol shall be open for signature by States and by regional economic integration organizations Parties to the Basel Convention …".

Decision-Making Bodies

Article 15:4, 5, 7 – Conference of the Parties "4. The Parties at their first meeting shall consider any additional measures needed to assist them in fulfilling their responsibilities with respect to the protection and the preservation of the marine environment in the context of this Convention. 5. The COP shall keep under continuous review and evaluation the effective implementation of this Convention, and, in addition, shall:

(a) Promote the harmonization of appropriate policies, strategies and measures for minimizing harm to human health and the environment by hazardous wastes and other wastes; (b) Consider and adopt, as required, amendments to this Convention and its annexes, taking into consideration, inter alia, available scientific, technical, economic and environmental information; (c) Consider and undertake any additional action that may be required for the achievement of the purposes of this Convention in the light of experience gained in its operation and in the operation of the agreements and arrangements envisaged in Article 11; (d) Consider and adopt protocols as required; and (e) Establish such subsidiary bodies as are deemed necessary for the implementation of this Convention. ...

7. The COP shall undertake three years after the entry into force of this Convention, and at least every six years thereafter, an evaluation of its effectiveness and, if deemed necessary, to consider the adoption of a complete or partial ban of transboundary movements of hazardous wastes and other wastes in light of the latest scientific, environmental, technical and economic information".

The COP, the main decision-making organ, is composed of the representatives of the Parties.

The Expanded Bureau is a body composed of 13 representatives of all the regions. It meets between the meetings of the COP to orientate the work of the secretariat; provide advise for the preparation of meeting agendas; address

Article 24:4 – Meeting of the Parties "4. The functions of the MOP shall be:

(a) To review the implementation of and compliance with the Protocol; (b) To provide for reporting and establish guidelines and procedures for such reporting where necessary; (c) To consider and adopt, where necessary, proposals for amendment of the Protocol or any annexes and for any new annexes; and (d) To consider and undertake any additional action that may be required for the purposes of the Protocol".

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institutional and financial issues raised by the secretariat. The Open-ended Working Group is a subsidiary body of the Basel

Convention and its mandate is to assist the COP in the implementation of the Convention and consider and advise the COP on issues relating to policy, technical, scientific, legal, institutional, administration, finance, budgetary and other aspects of the implementation of the Convention.

The Committee for Administrating the Mechanism for Promoting Implementation and Compliance is a subsidiary body and its mandate is to administer the said mechanism established 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.

Basel Convention Regional Centres for Training and Technology Transfer are regional institutions to assist developing countries and economies in transition, within their own region, through capacity-building for environmentally sound management, to achieve the fulfilment of the objectives of the Convention (See Decision VI/3 for detailed description of the centres’ functions).

Competent Authorities and Focal Points are established at the national level, in accordance with Article 5, to receive, and respond to the notifications of transboundary movements of hazardous wastes and to receive and submit information to the secretariat, respectively.

Amendments and Protocols

Article 17 – Amendment of the Convention "1. Any Party may propose amendments to this Convention and any Party to a protocol may propose amendments to that protocol. Such amendments shall take due account, inter alia, of relevant scientific and technical considerations. 2. Amendments to this Convention shall be adopted at a meeting of the COP. Amendments to any protocol shall be adopted at a MOP to the protocol in question. The text of any proposed amendment to this Convention or to any protocol, except as may otherwise be provided in such protocol, shall be communicated to the Parties by the Secretariat at least six months before the meeting at which it is proposed for adoption. The Secretariat shall also communicate proposed amendments to the Signatories to this Convention for information. 3. The Parties shall make every effort to reach agreement on any proposed

Article 12 of the Basel Convention – Consultations on Liability "The Parties shall co-operate with a view to adopting, as soon as practicable, a protocol setting out appropriate rules and procedures in the field of liability and compensation for damage resulting from the transboundary movement and disposal of hazardous wastes and other wastes". Article 22 of the Protocol on Liability– Relationship of the Protocol with the Basel Convention "Except as otherwise provided in the Protocol, the provisions of the Convention relating to its Protocols

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Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal

Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary

Movements of Hazardous Wastes and their Disposal

amendment to this Convention by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority of the Parties present and voting at the meeting, and shall be submitted by the Depositary to all Parties for ratification, approval, formal confirmation or acceptance. 4. The procedure mentioned in paragraph 3 above shall apply to amendments to any protocol, except that a two-thirds majority of the Parties to that protocol present and voting at the meeting shall suffice for their adoption. 5. … Amendments adopted in accordance with paragraphs 3 or 4 above shall enter into force between Parties having accepted them on the ninetieth day after the receipt by the Depositary of their instrument of ratification, approval, formal confirmation or acceptance by at least three-fourths of the Parties who accepted them or by at least two-thirds of the Parties to the protocol concerned who accepted them, except as may otherwise be provided in such protocol. The amendments shall enter into force for any other Party on the ninetieth day after that Party deposits its instrument of ratification, approval, formal confirmation or acceptance of the amendments. 6. For the purpose of this Article, "Parties present and voting" means Parties present and casting an affirmative or negative vote".

The Ban Amendment was adopted on 22 September 1995. 55 Parties have ratified the Amendment. In accordance with Article 17 of the Convention, the Amendment has to be ratified by three-quarters of those Parties who accepted it or by two thirds of the Parties to the protocol who accepted it in order for it to enter into force.

The objective of this Amendment is to prohibit immediately exports from countries listed in Annex VII ("Parties and other States, which are members of the OECD, EC, Liechtenstein") to all other countries, of hazardous wastes intended for final disposal, and to prohibit transboundary movements from Annex VII to non-Annex VII countries of hazardous wastes intended for recycling or reuse as of end 1997. Annex VII is not yet in force, pending the entry into force of the Amendment.

The following amendments to technical annexes have been adopted by the COP: • Amendment to Annex I (adopted through Decision IV/9): in order to make

reference to Annexes VIII and IX and establish the relationship between

provisions of the Convention relating to its Protocols shall apply to the Protocol".

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Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary

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these new annexes and Annex III • Introduction of Annex VIII and IX: Annex VIII includes wastes

characterized as hazardous under Article 1, paragraph 1(a) of the Basel Convention and Annex IX includes wastes that are not covered by Article 1, paragraph 1(a), unless they contain Annex I material to an extent causing them to exhibit an Annex III characteristic.

• Amendment to Annex VIII and IX: at its sixth meeting, the COP adopted an amendment to Annex VIII and IX in order to harmonize the annexes with other international lists and incorporate changes in accordance with scientific and technical advances.

• COP-7 adopted further amendments to Annex VIII and IX of the Basel Convention.

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Trade-Related Measures

Provisions of the Convention

Article 3 National Definitions of

Hazardous Wastes

"1. Each Party shall, within six months of becoming a Party to this Convention, inform the Secretariat of the Convention of the wastes, other than those listed in Annexes I and II, considered or defined as hazardous under its national legislation and of any requirements concerning transboundary movement procedures applicable to such wastes. 2. Each Party shall subsequently inform the Secretariat of any significant changes to the information it has provided pursuant to paragraph 1. 3. The Secretariat shall forthwith inform all Parties of the information it has received pursuant to paragraphs 1 and 2. 4. Parties shall be responsible for making the information transmitted to them by the Secretariat under paragraph 3 available to their exporters".

Article 4 General Obligations

"1. (a) Parties exercising their right to prohibit the import of hazardous wastes or other wastes for disposal shall inform the other Parties of their decision pursuant to Article 13.

(b) Parties shall prohibit or shall not permit the export of hazardous wastes and other wastes to the Parties which have prohibited the import of such wastes, when notified pursuant to subparagraph (a) above. (c) Parties shall prohibit or shall not permit the export of hazardous wastes and other wastes if the State of import does not consent in writing to the specific import, in the case where that State of import has not prohibited the import of such wastes.

2. …(d) Ensure that the transboundary movement of hazardous wastes 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; (e) Not allow the export of hazardous wastes or other wastes to a State or group of States belonging to an economic and/or political integration organization that are Parties, particularly developing countries, which have prohibited by their legislation all imports, or if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner, according to criteria to be decided on by the Parties at their first meeting. (f) Require that information about a proposed transboundary movement of hazardous wastes and other wastes be provided to the States concerned, according to Annex V A, to state clearly the effects of the proposed movement on human health and the environment; (g) Prevent the import of hazardous wastes and other wastes if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner;…

5. A Party shall not permit hazardous wastes or other wastes to be exported to a non-Party or to be imported from a non-Party. 6. The Parties agree not to allow the export of hazardous wastes or other wastes for disposal within the area south of 60° South latitude, whether or not such wastes are subject to transboundary movement. 7. Furthermore, each Party shall:

(a) Prohibit all persons under its national jurisdiction from transporting or disposing of hazardous wastes or other wastes unless such persons are authorized or allowed to perform such types of operations;

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(b) Require that hazardous wastes and other wastes that are to be the subject of a transboundary movement be packaged, labelled, and transported in conformity with generally accepted and recognized international rules and standards in the field of packaging, labelling, and transport, and that due account is taken of relevant internationally recognized practices; (c) Require that hazardous wastes and other wastes be accompanied by a movement document from the point at which a transboundary movement commences to the point of disposal.

8. Each Party shall require that hazardous wastes or other wastes, to be exported, are managed in an environmentally sound manner in the State of import or elsewhere. Technical guidelines for the environmentally sound management of wastes subject to this Convention shall be decided by the Parties at their first meeting. 9. Parties shall take the appropriate measures to ensure that the transboundary movement of hazardous wastes and other wastes only be allowed if:

(a) The State of export does not have the technical capacity and the necessary facilities, capacity or suitable disposal sites in order to dispose of the wastes in question in an environmentally sound and efficient manner; or (b) The wastes in question are required as a raw material for recycling or recovery industries in the State of import; or (c) The transboundary movement in question is in accordance with other criteria to be decided by the Parties, provided those criteria do not differ from the objectives of this Convention.

10. The obligation under this Convention of States in which hazardous wastes and other wastes are generated to require that those wastes are managed in an environmentally sound manner may not under any circumstances be transferred to the States of import or transit. 11. Nothing in this Convention shall prevent a Party from imposing additional requirements that are consistent with the provisions of this Convention, and are in accordance with the rules of international law, in order better to protect human health and the environment. 12. Nothing in this Convention shall affect in any way the sovereignty of States over their territorial sea established in accordance with international law, and the sovereign rights and the jurisdiction which States have in their exclusive economic zones and their continental shelves in accordance with international law, and the exercise by ships and aircraft of all States of navigational rights and freedoms as provided for in international law and as reflected in relevant international instruments …".

Article 5 Designation of

Competent Authorities and Focal Point

"To facilitate the implementation of this Convention, the Parties shall: 1. Designate or establish one or more competent authorities and one focal point. One competent authority shall be designated to receive the notification in case of a State of transit …".

Article 6 Transboundary

Movement between Parties

Article 6 provides for the prior informed consent procedure or "control system", according to which the transboundary movements of hazardous wastes shall take place. "1. The State of export shall notify, or shall require the generator or exporter to notify, in writing, through the channel of the competent authority of the State of export, the competent authority of the States concerned of any proposed transboundary movement of hazardous wastes or other wastes. Such notification shall contain the declarations and information specified in Annex V A, written in a language acceptable to the State of import. Only one notification needs to be sent to each State concerned. 2. The State of import shall respond to the notifier in writing, consenting to the movement with or without conditions, denying permission for the movement, or requesting additional information. A copy of the final response of the State of import shall be

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sent to the competent authorities of the States concerned which are Parties. 3. The State of export shall not allow the generator or exporter to commence the transboundary movement until it has received written confirmation that:

(a) The notifier has received the written consent of the State of import; and (b) The notifier has received from the State of import confirmation of the existence of a contract between the exporter and the disposer specifying environmentally sound management of the wastes in question.

4. Each State of transit which is a Party shall promptly acknowledge to the notifier receipt of the notification. It may subsequently respond to the notifier in writing, within 60 days, consenting to the movement with or without conditions, denying permission for the movement, or requesting additional information. The State of export shall not allow the transboundary movement to commence until it has received the written consent of the State of transit. However, if at any time a Party decides not to require prior written consent, either generally or under specific conditions, for transit transboundary movements of hazardous wastes or other wastes, or modifies its requirements in this respect, it shall forthwith inform the other Parties of its decision pursuant to Article 13. In this latter case, if no response is received by the State of export within 60 days of the receipt of a given notification by the State of transit, the State of export may allow the export to proceed through the State of transit. 5. In the case of a transboundary movement of wastes where the wastes are legally defined as or considered to be hazardous wastes only:

(a) By the State of export, the requirements of paragraph 9 of this Article that apply to the importer or disposer and the State of import shall apply mutatis mutandis to the exporter and State of export, respectively; (b) By the State of import, or by the States of import and transit which are Parties, the requirements of paragraphs 1, 3, 4 and 6 of this Article that apply to the exporter and State of export shall apply mutatis mutandis to the importer or disposer and State of import, respectively; or (c) By any State of transit which is a Party, the provisions of paragraph 4 shall apply to such State.

6. The State of export may, subject to the written consent of the States concerned, allow the generator or the exporter to use a general notification where hazardous wastes or other wastes having the same physical and chemical characteristics are shipped regularly to the same disposer via the same customs office of exit of the State of export via the same customs office of entry of the State of import, and, in the case of transit, via the same customs office of entry and exit of the State or States of transit. 7. The States concerned may make their written consent to the use of the general notification referred to in paragraph 6 subject to the supply of certain information, such as the exact quantities or periodical lists of hazardous wastes or other wastes to be shipped. 8. The general notification and written consent referred to in paragraphs 6 and 7 may cover multiple shipments of hazardous wastes or other wastes during a maximum period of 12 months. 9. The Parties shall require that each person who takes charge of a transboundary movement of hazardous wastes or other wastes sign the movement document either upon delivery or receipt of the wastes in question. They shall also require that the disposer inform both the exporter and the competent authority of the State of export of receipt by the disposer of the wastes in question and, in due course, of the completion of disposal as specified in the notification. If no such information is received within the State of export, the competent authority of the State of export or the exporter shall so notify the State of import. 10. The notification and response required by this Article shall be transmitted to the competent authority of the Parties concerned or to such governmental authority as may be appropriate in the case of non-Parties. 11. Any transboundary movement of hazardous wastes or other wastes shall be covered by insurance, bond or other guarantee as

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may be required by the State of import or any State of transit which is a Party". Article 8

Duty to Re-import "When a transboundary movement of hazardous wastes or other wastes to which the consent of the States concerned has been given, subject to the provisions of this Convention, cannot be completed in accordance with the terms of the contract, the State of export shall ensure that the wastes in question are taken back into the State of export, by the exporter, if alternative arrangements cannot be made for their disposal in an environmentally sound manner, within 90 days from the time that the importing State informed the State of export and the Secretariat, or such other period of time as the States concerned agree. To this end, the State of export and any Party of transit shall not oppose, hinder or prevent the return of those wastes to the State of export."

There is a duty to re-import if waste cannot be disposed of in an environmentally sound manner. Article 9

Illegal Traffic "1. For the purpose of this Convention, any transboundary movement of hazardous wastes or other wastes:

(a) without notification pursuant to the provisions of this Convention to all States concerned; or (b) without the consent pursuant to the provisions of this Convention of a State concerned; or (c) with consent obtained from States concerned through falsification, misrepresentation or fraud; or (d) that does not conform in a material way with the documents; or (e) that results in deliberate disposal (e.g. dumping) of hazardous wastes or other wastes in contravention of this Convention and of general principles of international law,

shall be deemed to be illegal traffic. 2. In case of a transboundary movement of hazardous wastes or other wastes deemed to be illegal traffic as the result of conduct on the part of the exporter or generator, the State of export shall ensure that the wastes in question are:

(a) taken back by the exporter or the generator or, if necessary, by itself into the State of export, or, if impracticable, (b) are otherwise disposed of in accordance with the provisions of this Convention,

within 30 days from the time the State of export has been informed about the illegal traffic or such other period of time as States concerned may agree. To this end the Parties concerned shall not oppose, hinder or prevent the return of those wastes to the State of export. 3. In the case of a transboundary movement of hazardous wastes or other wastes deemed to be illegal traffic as the result of conduct on the part of the importer or disposer, the State of import shall ensure that the wastes in question are disposed of in an environmentally sound manner by the importer or disposer or, if necessary, by itself within 30 days from the time the illegal traffic has come to the attention of the State of import or such other period of time as the States concerned may agree. To this end, the Parties concerned shall co-operate, as necessary, in the disposal of the wastes in an environmentally sound manner. 4. In cases where the responsibility for the illegal traffic cannot be assigned either to the exporter or generator or to the importer or disposer, the Parties concerned or other Parties, as appropriate, shall ensure, through co-operation, that the wastes in question are disposed of as soon as possible in an environmentally sound manner either in the State of export or the State of import or elsewhere as appropriate. 5. Each Party shall introduce appropriate national/domestic legislation to prevent and punish illegal traffic. The Parties shall co-operate with a view to achieving the objects of this Article".

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Decisions of the Conference of Parties

At meetings of the COP of the Basel Convention the following decisions have, for instance, been adopted: COP-2

Geneva, 1994 At COP-2 parties agreed to a ban on the export of hazardous wastes from OECD to non-OECD countries intended for final

disposal, recovery, and recycling (Decision II/12). Because the decision was not incorporated in the text of the Convention itself, the question as to whether it was legally binding or not arose.

COP-3 Geneva, 1995

At COP-3, it was proposed that the Ban be formally incorporated in the Basel Convention as an amendment (Decision III/1). It bans hazardous wastes exports for final disposal and recycling from Annex VII countries to non-Annex VII countries.

COP-4 Kuching, 1998

At COP-4, there was a discussion concerning other countries wishing to join Annex VII. These countries are Monaco, Slovenia and Israel. However, it was decided to wait and see how the ban was functioning and to leave Annex VII unchanged until its entry into force. A decision could then be made as to whether to close Annex VII or to have open criteria. This issue was raised again at COP-5.

Annexes VIII and IX of the Convention, adopted at COP-4, clarify what is and what is not considered to be hazardous waste. Non-hazardous material is listed in Annex IX (list B) wastes. Many of the recyclable materials such as copper, zinc (and their products) and other precious metals are in Annex IX and are not considered hazardous unless they have been contaminated. Further clarification is needed for some wastes, such as lead acid and zinc ashes (as these would be hazardous waste under Basel).

COP-5 Basel, 1999

At COP-5, the Basel Declaration on Environmentally Sound Management was adopted. This Declaration outlines the activities to be undertaken to achieve the objectives of the practical implementation of environmentally sound management: prevention, minimization, recycling, recovery and disposal of wastes subject to the Convention.

COP-6 Geneva, 2002

At COP-6, Decision VI/30 was adopted by the COP on the Cooperation with the WTO: "… 1. Requests the secretariat of the Basel Convention to:

(a) Seek observer status in the CTE meeting in Special Session, and to advise the Parties to the Basel Convention when the request has been submitted to and granted by WTO; (b) Report to the Parties to the Basel Convention on any meetings it attends at WTO and any substantive contacts with the WTO Secretariat and its committee secretariats; (c) Monitor developments in the WTO CTE meeting in Special Session and report to the Parties thereon;

2. Further requests the secretariat of the Basel Convention, when called upon to provide general information to WTO on trade provisions of the Basel Convention, to consult with the Parties to the Basel Convention before providing that information. If the Secretariat of the Basel Convention is requested to provide interpretation on the trade provisions of the Convention, it will refer such requests to the COP."

COP-7 Geneva, 2004

The COP-7 adopted a ministerial statement on partnerships for meeting the global waste challenge which sets out strategies for mobilizing additional resources to address hazardous wastes. The statement calls for strengthening partnerships with industries and other international organizations and agreements, in particular the Rotterdam Convention on trade in hazardous chemicals and pesticides and the Stockholm Convention on Persistent Organic Pollutants. It also encourages governments to consider setting their own individual or regional targets for minimizing wastes. Decisions VII/2 on Hazardous Waste Minimization, VII/3

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Basel Convention Partnership Programme and VII/4 Mobile Phone Partnership Initiative were adopted to meet the global waste challenge.

Decision VII/38 on International Cooperation, including cooperation with the WTO and the Global Environment Facility (GEF) "requests the Secretariat to continue its cooperation, in accordance with decisions VI/29 and VI/30, on critical areas for the effective implementation of the Basel Convention, its protocol and amendments with relevant organizations, including the following: ... (j) the WTO; …"

Supportive Measures

UNEP administers two trust funds for the Basel Convention: 1. A fund for the implementation of the Convention where funds are based on the UN scale of assessment and; 2. A technical cooperation fund to assist developing countries and other countries in need of assistance to implement the Convention. Parties decide on the level of contribution for this fund. Other financial resources come from bilateral assistance programmes among Parties.

Basel has no specific financial mechanism to promote capacity building and to facilitate technology transfer. Capacity building is carried out by the Basel Convention Regional Centres (BCRCs), Parties and the Secretariat. With the adoption of the Basel Declaration

on Environmentally Sound Management in 1999, efforts increased to assist Parties to minimize generation of hazardous and other wastes and to manage these wastes in an environmentally sound manner. Parties agreed to provide US$300,000 per year over a three-year period (2000-2002). The COP, at its sixth meeting in December 2002, adopted a Strategic Plan for the implementation of the Basel Convention to 2010, building on and using the framework of the 1999 Ministerial Basel Declaration on Environmentally Sound Management. Under the Strategic Plan the Parties approved US$1,200,000 for 21 projects being carried out by the BCRCs and the Parties. For the period 2005-2006 there is a request of US$2,750,255 in 2005 and US$2,217,171 in 2006, but sufficient funds are not yet available to continue activities for the implementation of the Basel Declaration, the Strategic Plan and the Basel Convention.

At COP6, Parties considered and approved a draft decision on enlarging the scope of the Technical Cooperation Trust Fund, including interim guidelines on emergency assistance, compensation, and accident and damage prevention in an annex. The guidelines focus on emergency assistance, compensation for damage to the environment, capacity building, technology transfer, and developing measures to prevent accidents and damage to the environment caused by the transboundary movement of wastes and their disposal. The COP invites developing countries and countries with economies in transition to submit to the Secretariat project proposals for development of capacity building and transfer of technology, and encourages Parties and the Secretariat to continue working on the improvement of the existing mechanism, or on establishment of a new mechanism, if necessary.

At COP7, Parties adopted a Ministerial Statement on Partnership for meeting the Global Waste Challenge that provides fundamental policy direction to Parties and the other stakeholders, focusing on implementing life-cycle approach, integrated waste management and regional approaches for waste streams such as POPs wastes, biomedical and healthcare wastes, electronic wastes, used lead-acid batteries and hazardous wastes mixed with hazardous wastes.

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Non-Compliance Mechanism

At COP-6, Parties adopted a decision on the compliance mechanism which sets out a Mechanism for promoting implementation and compliance. The mechanism is a non-confrontational, flexible and non-binding tool that aims at preventing problems. It will be administered by a Committee composed of 15 members reflecting an equitable geographic representation of the five UN regional groups. Submissions to the Committee may be made by: a Party regarding itself; one Party regarding another Party; or the Secretariat. Submissions regarding compliance are forwarded to the Party in question, who may respond or provide comments. The Committee may provide advice to the Party to facilitate compliance, such as: advice on regulatory regimes; assistance, including financial and technical support; elaboration of voluntary compliance action plans; and/or follow-up arrangements. The Committee may also review general issues of compliance and implementation of the Convention, and may recommend that the COP take additional measures regarding specific cases.

During the first and second sessions of the committee, it considered procedural matters that were raised in the terms of reference but were not clarified, namely time periods for submitting cases to the committee; submissions made to the committee by the Secretariat; language of submissions; and report of the committee.

At COP-7, Parties approved the work programme for 2005-2006 of the Committee for Administering the Mechanism for Promoting Implementation and Compliance.

No cases of non-compliance to date.

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Disputes

Relevant Provision Any dispute?

Article 20 – Settlement of Disputes "1. In case of a dispute between Parties as to the interpretation or application of, or compliance with, this Convention or any protocol thereto, they shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice. 2. If the Parties concerned cannot settle their dispute through the means mentioned in the preceding paragraph, the dispute, if the Parties to the dispute agree, shall be submitted to the ICJ or to arbitration under the conditions set out in Annex VI on Arbitration. However, failure to reach common agreement on submission of the dispute to the ICJ or to arbitration shall not absolve the Parties from the responsibility of continuing to seek to resolve it by the means referred to in paragraph 1. 3. When ratifying, accepting, approving, formally confirming or acceding to this Convention, or at any time thereafter, a State or political and/or economic integration organization may declare that it recognizes as compulsory ipso facto and without special agreement, in relation to any Party accepting the same obligation:

(a) submission of the dispute to the ICJ; and/or (b) arbitration in accordance with the procedures set out in Annex VI.

Such declaration shall be notified in writing to the Secretariat which shall communicate it to the Parties". In the event that arbitration is the chosen method (Annex VI), the tribunal is to draw up its own rules of procedure and render its

decision in accordance with international law and with the provisions of the Convention. It may take all appropriate measures to establish the facts of the dispute and shall render a decision within a specified time limit. The award of the arbitral tribunal shall be accompanied by a statement of reasons and be final and binding on the Parties to the dispute.

No

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Provisions for non-parties Article 4:5 – General Obligations "A Party shall not permit hazardous wastes or other wastes to be exported to a non-Party or to be imported from a non-Party". Article 7 – Transboundary Movement from a Party through States which are not Parties "Paragraph 1 of Article 6 of the Convention shall apply mutatis mutandis to transboundary movement of hazardous wastes or other wastes from a Party through a State or States which are not Parties". Article 11 – Bilateral, Multilateral and Regional Agreements "1. Notwithstanding the provisions of Article 4 paragraph 5, Parties may enter into bilateral, multilateral, or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with Parties or non-Parties provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention. These agreements or arrangements shall stipulate provisions which are not less environmentally sound than those provided for by this Convention in particular taking into account the interests of developing countries. 2. Parties shall notify the Secretariat of any bilateral, multilateral or regional agreements or arrangements referred to in paragraph 1 and those which they have entered into prior to the entry into force of this Convention for them, for the purpose of controlling transboundary movements of hazardous wastes and other wastes which take place entirely among the Parties to such agreements. The provisions of this Convention shall not affect transboundary movements which take place pursuant to such agreements provided that such agreements are compatible with the environmentally sound management of hazardous wastes and other wastes as required by this Convention".

Parties can consent to transboundary movements with non-parties provided the provisions in the Convention are met.

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II. MAJOR ProVISIONS – ROTTERDAM CONVENTION

Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals And Pesticides in

International Trade

Brief Description

Web site http://www.pic.int/ Objective The objective of the Rotterdam Convention is to promote shared responsibility and cooperative effort among Parties in the

international trade of certain hazardous chemicals in order to protect human health and the environment from potential harm and to contribute to their environmentally sound use, by facilitating information exchange about their characteristics, by providing for a national decision-making process on their import and export and by disseminating these decisions to Parties.

The Convention provides that chemicals subject to the Convention may be exported only in accordance with an informed decision by importing Parties.

Date of Signature 10 September 1998 Entry into force 24 February 2004

Parties 80 WTO Members 68 Parties to the Rotterdam Convention are also WTO Members.

Openness of Membership

Article 24 – Signature "This Convention shall be open for signature at Rotterdam by all States and regional economic integration organizations…".

Article 25:1 – Ratification, acceptance, approval or accession "1. This Convention shall be subject to ratification, acceptance or approval by States and by regional economic integration organizations. It shall be open for accession by States and by regional economic integration organizations from the day after the date on which the Convention is closed for signature. Instruments of ratification, acceptance, approval or accession shall be deposited with the Depositary".

Decision-Making Bodies

Article 18:5-6 – Conference of the Parties "5. The COP shall keep under continuous review and evaluation the implementation of this Convention. It shall perform the functions assigned to it by the Convention and, to this end, shall:

(a) Establish, further to the requirements of paragraph 6 below, such subsidiary bodies, as it considers necessary for the implementation of the Convention; (b) Cooperate, where appropriate, with competent international organizations and intergovernmental and non-governmental bodies; and (c) Consider and undertake any additional action that may be required for the achievement of the objectives of the Convention.

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6. The COP shall, at its first meeting, establish a subsidiary body, to be called the Chemical Review Committee, for the purposes of performing the functions assigned to that Committee by this Convention. In this regard:

(a) The members of the Chemical Review Committee shall be appointed by the COP. Membership of the Committee shall consist of a limited number of government-designated experts in chemicals management. The members of the Committee shall be appointed on the basis of equitable geographical distribution, including ensuring a balance between developed and developing Parties; (b) The COP shall decide on the terms of reference, organization and operation of the Committee; (c) The Committee shall make every effort to make its recommendations by consensus. If all efforts at consensus have been exhausted, and no consensus reached, such recommendation shall as a last resort be adopted by a two-thirds majority vote of the members present and voting". In decisions RC-1/6 and RC-1/7, COP-1 established the Chemical Review Committee and Rules and Procedures for preventing

and dealing with conflicts of interest relating to the activities of the Chemical Review Committee. Amendments and

Protocols Article 21 – Amendments to the Convention "1. Amendments to this Convention may be proposed by any Party. 2. Amendments to this Convention shall be adopted at a meeting of the COP. The text of any proposed amendment shall be communicated to the Parties by the Secretariat at least six months before the meeting at which it is proposed for adoption. The Secretariat shall also communicate the proposed amendment to the signatories to this Convention and, for information, to the Depositary. 3. The Parties shall make every effort to reach agreement on any proposed amendment to this Convention by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting at the meeting. 4. The amendment shall be communicated by the Depositary to all Parties for ratification, acceptance or approval. 5. Ratification, acceptance or approval of an amendment shall be notified to the Depositary in writing. An amendment adopted in accordance with paragraph 3 shall enter into force for the Parties having accepted it on the ninetieth day after the date of deposit of instruments of ratification, acceptance or approval by at least three fourths of the Parties. Thereafter, the amendment shall enter into force for any other Party on the ninetieth day after the date on which that Party deposits its instrument of ratification, acceptance or approval of the amendment".

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Trade-Related Measures

Provisions of the Convention

Preamble "…Recognizing that trade and environmental policies should be mutually supportive with a view to achieving sustainable development,

Emphasizing that nothing in this Convention shall be interpreted as implying in any way a change in the rights and obligations of a Party under any existing international agreement applying to chemicals in international trade or to environmental protection,

Understanding that the above recital is not intended to create a hierarchy between this Convention and other international agreements,

Determined to protect human health, including the health of consumers and workers, and the environment against potentially harmful impacts from certain hazardous chemicals and pesticides in international trade…".

Articles 5, 6, 7 and 8

Set out the procedure to list chemicals that are subject to the prior informed consent procedure in Annex III.

Article 5 Procedures for Banned or Severely Restricted

Chemicals

"1. Each Party that has adopted a final regulatory action shall notify the Secretariat in writing of such action. Such notification shall be made as soon as possible, and in any event no later than ninety days after the date on which the final regulatory action has taken effect, and shall contain the information required by Annex I, where available. 2. Each Party shall, at the date of entry into force of this Convention for it, notify the Secretariat in writing of its final regulatory actions in effect at that time, except that each Party that has submitted notifications of final regulatory actions under the Amended London Guidelines or the International Code of Conduct need not resubmit those notifications. 3. The Secretariat shall, as soon as possible, and in any event no later than six months after receipt of a notification under paragraphs 1 and 2, verify whether the notification contains the information required by Annex I. If the notification contains the information required, the Secretariat shall forthwith forward to all Parties a summary of the information received. If the notification does not contain the information required, it shall inform the notifying Party accordingly. 4. The Secretariat shall every six months communicate to the Parties a synopsis of the information received pursuant to paragraphs 1 and 2, including information regarding those notifications which do not contain all the information required by Annex I. 5. When the Secretariat has received at least one notification from each of two Prior Informed Consent regions regarding a particular chemical that it has verified meet the requirements of Annex I, it shall forward them to the Chemical Review Committee. The composition of the Prior Informed Consent regions shall be defined in a decision to be adopted by consensus at the first meeting of the COP. 6. The Chemical Review Committee shall review the information provided in such notifications and, in accordance with the criteria set out in Annex II, recommend to the COP whether the chemical in question should be made subject to the Prior Informed Consent procedure and, accordingly, be listed in Annex III".

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Article 6 Procedures for Severely

Hazardous Pesticide Formulations

"1. Any Party that is a developing country or a country with an economy in transition and that is experiencing problems caused by a severely hazardous pesticide formulation under conditions of use in its territory, may propose to the Secretariat the listing of the severely hazardous pesticide formulation in Annex III. In developing a proposal, the Party may draw upon technical expertise from any relevant source. The proposal shall contain the information required by part 1 of Annex IV. 2. The Secretariat shall, as soon as possible, and in any event no later than six months after receipt of a proposal under paragraph 1, verify whether the proposal contains the information required by part 1 of Annex IV. If the proposal contains the information required, the Secretariat shall forthwith forward to all Parties a summary of the information received. If the proposal does not contain the information required, it shall inform the proposing Party accordingly. 3. The Secretariat shall collect the additional information set out in part 2 of Annex IV regarding the proposal forwarded under paragraph 2. 4. When the requirements of paragraphs 2 and 3 above have been fulfilled with regard to a particular severely hazardous pesticide formulation, the Secretariat shall forward the proposal and the related information to the Chemical Review Committee. 5. The Chemical Review Committee shall review the information provided in the proposal and the additional information collected and, in accordance with the criteria set out in part 3 of Annex IV, recommend to the COP whether the severely hazardous pesticide formulation in question should be made subject to the Prior Informed Consent procedure and, accordingly, be listed in Annex III".

Article 7 Listing of Chemicals in

Annex III

"1. For each chemical that the Chemical Review Committee has decided to recommend for listing in Annex III, it shall prepare a draft decision guidance document. The decision guidance document should, at a minimum, be based on the information specified in Annex I, or, as the case may be, Annex IV, and include information on uses of the chemical in a category other than the category for which the final regulatory action applies. 2. The recommendation referred to in paragraph 1 together with the draft decision guidance document shall be forwarded to the COP. The COP shall decide whether the chemical should be made subject to the Prior Informed Consent procedure and, accordingly, list the chemical in Annex III and approve the draft decision guidance document. 3. When a decision to list a chemical in Annex III has been taken and the related decision guidance document has been approved by the COP, the Secretariat shall forthwith communicate this information to all Parties".

Article 8 Chemicals in the Volun-

tary Prior Informed Consent Procedure

"For any chemical, other than a chemical listed in Annex III, that has been included in the voluntary Prior Informed Consent procedure before the date of the first meeting of the COP, the COP shall decide at that meeting to list the chemical in Annex III, provided that it is satisfied that all the requirements for listing in that Annex have been fulfilled".

In Decision RC-1/C COP 1 decided to include 14 chemicals in Annex III. Article 9

Removal of Chemicals from Annex III

"1. If a Party submits to the Secretariat information that was not available at the time of the decision to list a chemical in Annex III and that information indicates that its listing may no longer be justified in accordance with the relevant criteria in Annex II or, as the case may be, Annex IV, the Secretariat shall forward the information to the Chemical Review Committee. 2. The Chemical Review Committee shall review the information it receives under paragraph 1. For each chemical that the Chemical Review Committee decides, in accordance with the relevant criteria in Annex II or, as the case may be, Annex IV, to recommend for removal from Annex III, it shall prepare a revised draft decision guidance document. 3. A recommendation referred to in paragraph 2 shall be forwarded to the COP and be accompanied by a revised draft decision guidance document. The COP shall decide whether the chemical should be removed from Annex III and whether to approve the revised draft decision guidance document. 4. When a decision to remove a chemical from Annex III has been taken and the revised decision guidance document has been

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approved by the COP, the Secretariat shall forthwith communicate this information to all Parties". Contains the procedure for de-listing a chemical from Annex III.

Article 10 Obligations in Relation to Imports of Chemicals

Listed in Annex III

"1. Each Party shall implement appropriate legislative or administrative measures to ensure timely decisions with respect to the import of chemicals listed in Annex III. 2. Each Party shall transmit to the Secretariat, as soon as possible, and in any event no later than nine months after the date of dispatch of the decision guidance document referred to in paragraph 3 of Article 7, a response concerning the future import of the chemical concerned. If a Party modifies this response, it shall forthwith submit the revised response to the Secretariat. 3. The Secretariat shall, at the expiration of the time period in paragraph 2, forthwith address to a Party that has not provided such a response, a written request to do so. Should the Party be unable to provide a response, the Secretariat shall, where appropriate, help it to provide a response within the time period specified in the last sentence of paragraph 2 of Article 11. 4. A response under paragraph 2 shall consist of either:

(a) A final decision, pursuant to legislative or administrative measures: (i) To consent to import; (ii) Not to consent to import; or (iii) To consent to import only subject to specified conditions; or

(b) An interim response, which may include: (i) An interim decision consenting to import with or without specified conditions, or not consenting to import during the interim period; (ii) A statement that a final decision is under active consideration; (iii) A request to the Secretariat, or to the Party that notified the final regulatory action, for further information; (iv) A request to the Secretariat for assistance in evaluating the chemical.

5. A response under subparagraphs (a) or (b) of paragraph 4 shall relate to the category or categories specified for the chemical in Annex III. 6. A final decision should be accompanied by a description of any legislative or administrative measures upon which it is based. 7. Each Party shall, no later than the date of entry into force of this Convention for it, transmit to the Secretariat responses with respect to each chemical listed in Annex III. A Party that has provided such responses under the Amended London Guidelines or the International Code of Conduct need not resubmit those responses. 8. Each Party shall make its responses under this Article available to those concerned within its jurisdiction, in accordance with its legislative or administrative measures. 9. A Party that, pursuant to paragraphs 2 and 4 above and paragraph 2 of Article 11, takes a decision not to consent to import of a chemical or to consent to its import only under specified conditions shall, if it has not already done so, simultaneously prohibit or make subject to the same conditions:

(a) Import of the chemical from any source; and (b) Domestic production of the chemical for domestic use.

10. Every six months the Secretariat shall inform all Parties of the responses it has received. Such information shall include a description of the legislative or administrative measures on which the decisions have been based, where available. The Secretariat shall, in addition, inform the Parties of any cases of failure to transmit a response".

Article 11 Obligations in Relation

"1. Each exporting Party shall: (a) Implement appropriate legislative or administrative measures to communicate the responses forwarded by the Secretariat in

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to Exports of Chemicals Listed in Annex III

accordance with paragraph 10 of Article 10 to those concerned within its jurisdiction; (b) Take appropriate legislative or administrative measures to ensure that exporters within its jurisdiction comply with decisions in each response no later than six months after the date on which the Secretariat first informs the Parties of such response in accordance with paragraph 10 of Article 10; (c) Advise and assist importing Parties, upon request and as appropriate:

(i) To obtain further information to help them to take action in accordance with paragraph 4 of Article 10 and paragraph 2 (c) below; and (ii) To strengthen their capacities and capabilities to manage chemicals safely during their life-cycle.

2. Each Party shall ensure that a chemical listed in Annex III is not exported from its territory to any importing Party that, in exceptional circumstances, has failed to transmit a response or has transmitted an interim response that does not contain an interim decision, unless:

(a) It is a chemical that, at the time of import, is registered as a chemical in the importing Party; or (b) It is a chemical for which evidence exists that it has previously been used in, or imported into, the importing Party and in relation to which no regulatory action to prohibit its use has been taken; or (c) Explicit consent to the import has been sought and received by the exporter through a designated national authority of the importing Party. The importing Party shall respond to such a request within sixty days and shall promptly notify the Secretariat of its decision.

The obligations of exporting Parties under this paragraph shall apply with effect from the expiration of a period of six months from the date on which the Secretariat first informs the Parties, in accordance with paragraph 10 of Article 10, that a Party has failed to transmit a response or has transmitted an interim response that does not contain an interim decision, and shall apply for one year".

Article 12 Export Notification

"1. Where a chemical that is banned or severely restricted by a Party is exported from its territory, that Party shall provide an export notification to the importing Party. The export notification shall include the information set out in Annex V. 2. The export notification shall be provided for that chemical prior to the first export following adoption of the corresponding final regulatory action. Thereafter, the export notification shall be provided before the first export in any calendar year. The requirement to notify before export may be waived by the designated national authority of the importing Party. 3. An exporting Party shall provide an updated export notification after it has adopted a final regulatory action that results in a major change concerning the ban or severe restriction of that chemical. 4. The importing Party shall acknowledge receipt of the first export notification received after the adoption of the final regulatory action. If the exporting Party does not receive the acknowledgement within thirty days of the dispatch of the export notification, it shall submit a second notification. The exporting Party shall make reasonable efforts to ensure that the importing Party receives the second notification. 5. The obligations of a Party set out in paragraph 1 shall cease when:

(a) The chemical has been listed in Annex III; (b) The importing Party has provided a response for the chemical to the Secretariat in accordance with paragraph 2 of Article 10; and (c) The Secretariat has distributed the response to the Parties in accordance with paragraph 10 of Article 10".

Article 13 "1. The COP shall encourage the World Customs Organization to assign specific Harmonized System customs codes to the

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Information to Accompany Exported

Chemicals

individual chemicals or groups of chemicals listed in Annex III, as appropriate. Each Party shall require that, whenever a code has been assigned to such a chemical, the shipping document for that chemical bears the code when exported. 2. Without prejudice to any requirements of the importing Party, each Party shall require that both chemicals listed in Annex III and chemicals banned or severely restricted in its territory are, when exported, subject to labelling requirements that ensure adequate availability of information with regard to risks and/or hazards to human health or the environment, taking into account relevant international standards. 3. Without prejudice to any requirements of the importing Party, each Party may require that chemicals subject to environmental or health labelling requirements in its territory are, when exported, subject to labelling requirements that ensure adequate availability of information with regard to risks and/or hazards to human health or the environment, taking into account relevant international standards. 4. With respect to the chemicals referred to in paragraph 2 that are to be used for occupational purposes, each exporting Party shall require that a safety data sheet that follows an internationally recognized format, setting out the most up-to-date information available, is sent to each importer. 5. The information on the label and on the safety data sheet should, as far as practicable, be given in one or more of the official languages of the importing Party".

Article 15 Implementation of the

Convention

"4. Nothing in this Convention shall be interpreted as restricting the right of the Parties to take action that is more stringently protective of human health and the environment than that called for in this Convention, provided that such action is consistent with the provisions of this Convention and is in accordance with international law".

Decisions

Decision RC-1/15 Cooperation with the

WTO

"... 2. Requests the secretariat: (a) To seek observer status in the CTE in Special Session of the WTO and inform Parties when the request has been submitted and when it has been granted; (b) To report to the COP on any meetings of the WTO that it attends, any substantive contacts that it has with the secretariat of the WTO and any general or factual information provided to or any other information requested by the secretariat of the WTO or any other body of the WTO; (c) To ensure that at all times it does not provide an interpretation of the provisions of the Convention; (d) To monitor developments in the CTE in Special Session and report on such developments to the COP; (e) To reflect on ways of enhancing information flows on matters of common interest with the WTO; ...".

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Supportive Measures Article 16 – Technical assistance "The Parties shall, taking into account in particular the needs of developing countries and countries with economies in transition, cooperate in promoting technical assistance for the development of the infrastructure and the capacity necessary to manage chemicals to enable implementation of this Convention. Parties with more advanced programmes for regulating chemicals should provide technical assistance, including training, to other Parties in developing their infrastructure and capacity to manage chemicals throughout their life-cycle".

Since 1998, the secretariat has conducted a series of 11 subregional workshops. Initially these workshop focused on awareness raising; however, since 2002, the focus has been on providing training in the practical implementation of the Rotterdam Convention. In Decision RC-1/14, COP 1 agreed on a strategy for the delivery of technical assistance, and the secretariat has planned a number of sub-regional and national workshops for 2005, with the main focus on national action plans for implementation and building on or establishing support networks for implementation within specific regions.

Non-Compliance Mechanism Article 17 – Non-compliance "The COP shall, as soon as practicable, develop and approve procedures and institutional mechanisms for determining non-compliance with the provisions of this Convention and for treatment of Parties found to be in non-compliance".

In Decision RC-1/10, COP 1 decided to convene an open-ended ad hoc working group on Article 17 immediately prior to its second meeting, scheduled to take place in Rome from 26-30 September 2005.

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Disputes

Relevant Provision Any dispute?

Article 20 – Settlement of disputes "1. Parties shall settle any dispute between them concerning the interpretation or application of this Convention through negotiation or other peaceful means of their own choice. 2. When ratifying, accepting, approving or acceding to this Convention, or at any time thereafter, a Party that is not a regional economic integration organization may declare in a written instrument submitted to the Depositary that, with respect to any dispute concerning the interpretation or application of the Convention, it recognizes one or both of the following means of dispute settlement as compulsory in relation to any Party accepting the same obligation:

(a) Arbitration in accordance with procedures to be adopted by the COP in an annex as soon as practicable; and (b) Submission of the dispute to the ICJ.

3. A Party that is a regional economic integration organization may make a declaration with like effect in relation to arbitration in accordance with the procedure referred to in paragraph 2 (a). 4. A declaration made pursuant to paragraph 2 shall remain in force until it expires in accordance with its terms or until three months after written notice of its revocation has been deposited with the Depositary. 5. The expiry of a declaration, a notice of revocation or a new declaration shall not in any way affect proceedings pending before an arbitral tribunal or the ICJ unless the parties to the dispute otherwise agree. 6. If the parties to a dispute have not accepted the same or any procedure pursuant to paragraph 2, and if they have not been able to settle their dispute within twelve months following notification by one party to another that a dispute exists between them, the dispute shall be submitted to a conciliation commission at the request of any party to the dispute. The conciliation commission shall render a report with recommendations. Additional procedures relating to the conciliation commission shall be included in an annex to be adopted by the COP no later than the second meeting of the Conference".

In Decision RC-1/11, COP 1 established rules for the settlement of disputes: • In cases of Arbitration under Article 20 paragraphs 1-5 an Arbitration Tribunal shall be established, consisting of three members,

which renders a decision within five months of being fully constituted. The decision is binding between the parties to the dispute and Parties intervening under Article 10, insofar as it relates to matters in respect of which that Party intervened. The award shall be without appeal unless the parties to the dispute have agreed in advance to an appellate procedure.

• In cases of conciliation under Article 20 paragraph 6, a conciliation commission shall be established composed of five members. It shall take its decision by majority vote of its members and shall render a report for the resolution within 12 months of being established.

No

Provisions for non-parties Article 10:9(a) – Obligations in relation to imports of chemicals listed in Annex III "9. A Party that, pursuant to paragraphs 2 and 4 above and paragraph 2 of Article 11, takes a decision not to consent to import of a chemical or to consent to its import only under specified conditions shall, if it has not already done so, simultaneously prohibit or make subject to the same conditions:

(a) Import of the chemical from any source ...".

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III. MAJOR PROVISIONS – STOCKHOLM CONVENTION

Stockholm convention on Persistent Organic Pollutants

Brief Description

Web site http://www.pops.int/ Objective The aim of the Convention is to reduce or eliminate the release of Persistent Organic Pollutants (POPs) into the environment.

Date of Signature 22 May 2001 Entry into force 17 May 2004

Parties 93 WTO Members 78 Parties to the Stockholm Convention are also WTO Members.

Openness of Membership

Article 24 – Signature "This Convention shall be open for signature at Stockholm by all States and regional economic integration organizations …". Article 25 – Ratification, acceptance, approval or accession "1. This Convention shall be subject to ratification, acceptance or approval by States and by regional economic integration organizations. It shall be open for accession by States and by regional economic integration organizations from the day after the date on which the Convention is closed for signature. Instruments of ratification, acceptance, approval or accession shall be deposited with the Depositary".

Decision-Making Bodies

Article 19:5-7 – Conference of the Parties "5. The COP shall keep under continuous review and evaluation the implementation of this Convention. It shall perform the functions assigned to it by the Convention and, to this end, shall:

(a) Establish, further to the requirements of paragraph 6, such subsidiary bodies as it considers necessary for the implementation of the Convention; (b) Cooperate, where appropriate, with competent international organizations and intergovernmental and non-governmental bodies; and (c) Regularly review all information made available to the Parties pursuant to Article 15, including consideration of the effectiveness of paragraph 2 (b) (iii) of Article 3; (d) Consider and undertake any additional action that may be required for the achievement of the objectives of the Convention.

6. The COP shall, at its first meeting, establish a subsidiary body to be called the Persistent Organic Pollutants Review Committee for the purposes of performing the functions assigned to that Committee by this Convention. In this regard:

(a) The members of the Persistent Organic Pollutants Review Committee shall be appointed by the COP. Membership of the Committee shall consist of government-designated experts in chemical assessment or management. The members of the Committee shall be appointed on the basis of equitable geographical distribution; (b) The COP shall decide on the terms of reference, organization and operation of the Committee; and (c) The Committee shall make every effort to adopt its recommendations by consensus. If all efforts at consensus have been

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exhausted, and no consensus reached, such recommendation shall as a last resort be adopted by a two-thirds majority vote of the members present and voting.

7. The COP shall, at its third meeting, evaluate the continued need for the procedure contained in paragraph 2 (b) of Article 3, including consideration of its effectiveness".

Amendments and Protocols

Article 21 – Amendments to the Convention "1. Amendments to this Convention may be proposed by any Party. 2. Amendments to this Convention shall be adopted at a meeting of the COP. The text of any proposed amendment shall be communicated to the Parties by the Secretariat at least six months before the meeting at which it is proposed for adoption. The Secretariat shall also communicate proposed amendments to the signatories to this Convention and, for information, to the depositary. 3. The Parties shall make every effort to reach agreement on any proposed amendment to this Convention by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting. 4. The amendment shall be communicated by the depositary to all Parties for ratification, acceptance or approval. 5. Ratification, acceptance or approval of an amendment shall be notified to the depositary in writing. An amendment adopted in accordance with paragraph 3 shall enter into force for the Parties having accepted it on the ninetieth day after the date of deposit of instruments of ratification, acceptance or approval by at least three-fourths of the Parties. Thereafter, the amendment shall enter into force for any other Party on the ninetieth day after the date on which that Party deposits its instrument of ratification, acceptance or approval of the amendment".

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Trade-Related Measures

Preamble "… Recognizing that this Convention and other international agreements in the field of trade and the environment are mutually supportive…".

Article 3 Measures to Reduce or

Eliminate Releases from Intentional Production

and Use

"1. Each Party shall: (a) Prohibit and/or take the legal and administrative measures necessary to eliminate:

(i) Its production and use of the chemicals listed in Annex A subject to the provisions of that Annex; and (ii) Its import and export of the chemicals listed in Annex A in accordance with the provisions of paragraph 2; and

(b) Restrict its production and use of the chemicals listed in Annex B in accordance with the provisions of that Annex". 2. Each Party shall take measures to ensure:

(a) That a chemical listed in Annex A or Annex B is imported only: (i) For the purpose of environmentally sound disposal as set forth in paragraph 1 (d) of Article 6; or (ii) For a use or purpose which is permitted for that Party under Annex A or Annex B;

(b) That a chemical listed in Annex A for which any production or use specific exemption is in effect or a chemical listed in Annex B for which any production or use specific exemption or acceptable purpose is in effect, taking into account any relevant provisions in existing international prior informed consent instruments, is exported only:

(i) For the purpose of environmentally sound disposal as set forth in paragraph 1 (d) of Article 6; (ii) To a Party which is permitted to use that chemical under Annex A or Annex B; or (iii) To a State not Party to this Convention which has provided an annual certification to the exporting Party. Such certification shall specify the intended use of the chemical and include a statement that, with respect to that chemical, the importing State is committed to:

a. Protect human health and the environment by taking the necessary measures to minimize or prevent releases; b. Comply with the provisions of paragraph 1 of Article 6; and c. Comply, where appropriate, with the provisions of paragraph 2 of Part II of Annex B. The certification shall also include any appropriate supporting documentation, such as legislation, regulatory instruments, or administrative or policy guidelines. The exporting Party shall transmit the certification to the Secretariat within sixty days of receipt.

(c) That a chemical listed in Annex A, for which production and use specific exemptions are no longer in effect for any Party, is not exported from it except for the purpose of environmentally sound disposal as set forth in paragraph 1 (d) of Article 6; (d) For the purposes of this paragraph, the term "State not Party to this Convention" shall include, with respect to a particular chemical, a State or regional economic integration organization that has not agreed to be bound by the Convention with respect to that chemical.

3. Each Party that has one or more regulatory and assessment schemes for new pesticides or new industrial chemicals shall take measures to regulate with the aim of preventing the production and use of new pesticides or new industrial chemicals which, taking into consideration the criteria in paragraph 1 of Annex D, exhibit the characteristics of persistent organic pollutants. 4. Each Party that has one or more regulatory and assessment schemes for pesticides or industrial chemicals shall, where appropriate, take into consideration within these schemes the criteria in paragraph 1 of Annex D when conducting assessments of pesticides or industrial chemicals currently in use.

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5. Except as otherwise provided in this Convention, paragraphs 1 and 2 shall not apply to quantities of a chemical to be used for laboratory-scale research or as a reference standard. 6. Any Party that has a specific exemption in accordance with Annex A or a specific exemption or an acceptable purpose in accordance with Annex B shall take appropriate measures to ensure that any production or use under such exemption or purpose is carried out in a manner that prevents or minimizes human exposure and release into the environment. For exempted uses or acceptable purposes that involve intentional release into the environment under conditions of normal use, such release shall be to the minimum extent necessary, taking into account any applicable standards and guidelines".

Article 4 Register of Specific

Exemptions

"1. A Register is hereby established for the purpose of identifying the Parties that have specific exemptions listed in Annex A or Annex B. It shall not identify Parties that make use of the provisions in Annex A or Annex B that may be exercised by all Parties. The Register shall be maintained by the Secretariat and shall be available to the public. 2. The Register shall include:

(a) A list of the types of specific exemptions reproduced from Annex A and Annex B; (b) A list of the Parties that have a specific exemption listed under Annex A or Annex B; and (c) A list of the expiry dates for each registered specific exemption.

3. Any State may, on becoming a Party, by means of a notification in writing to the Secretariat, register for one or more types of specific exemptions listed in Annex A or Annex B. 4. Unless an earlier date is indicated in the Register by a Party, or an extension is granted pursuant to paragraph 7, all registrations of specific exemptions shall expire five years after the date of entry into force of this Convention with respect to a particular chemical. 5. At its first meeting, the COP shall decide upon its review process for the entries in the Register. 6. Prior to a review of an entry in the Register, the Party concerned shall submit a report to the Secretariat justifying its continuing need for registration of that exemption. The report shall be circulated by the Secretariat to all Parties. The review of a registration shall be carried out on the basis of all available information. Thereupon, the COP may make such recommendations to the Party concerned as it deems appropriate. 7. The COP may, upon request from the Party concerned, decide to extend the expiry date of a specific exemption for a period of up to five years. In making its decision, the COP shall take due account of the special circumstances of the developing country Parties and Parties with economies in transition. 8. A Party may, at any time, withdraw an entry from the Register for a specific exemption upon written notification to the Secretariat. The withdrawal shall take effect on the date specified in the notification. 9. When there are no longer any Parties registered for a particular type of specific exemption, no new registrations may be made with respect to it".

Establishes a register of specific exemptions for Parties for production or use of POPs listed in Annexes A or B. Article 8

Listing of chemicals in Annexes A, B and C

Sets out the procedures for listing POPs in Annexes A, B and C.

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Supportive Measures Article 7 – Implementation plans

Calls for the development of national plans to implement the Agreement. Article 12 – Technical assistance "1. The Parties recognize that rendering of timely and appropriate technical assistance in response to requests from developing country Parties and Parties with economies in transition is essential to the successful implementation of this Convention. 2. The Parties shall cooperate to provide timely and appropriate technical assistance to developing country Parties and Parties with economies in transition, to assist them, taking into account their particular needs, to develop and strengthen their capacity to implement their obligations under this Convention. 3. In this regard, technical assistance to be provided by developed country Parties, and other Parties in accordance with their capabilities, shall include, as appropriate and as mutually agreed, technical assistance for capacity-building relating to implementation of the obligations under this Convention. Further guidance in this regard shall be provided by the COP. 4. The Parties shall establish, as appropriate, arrangements for the purpose of providing technical assistance and promoting the transfer of technology to developing country Parties and Parties with economies in transition relating to the implementation of this Convention. These arrangements shall include regional and subregional centres for capacity-building and transfer of technology to assist developing country Parties and Parties with economies in transition to fulfil their obligations under this Convention. Further guidance in this regard shall be provided by the COP. 5. The Parties shall, in the context of this Article, take full account of the specific needs and special situation of least developed countries and small island developing states in their actions with regard to technical assistance". Article 13 – Financial resources and mechanisms

Parties undertake to provide financial support and incentives to achieve the objective of the Convention. Developed country Parties shall provide new and additional financial resources to enable developing country Parties and Parties with economies in transition to meet the agreed full incremental costs of implementing measures which fulfil their obligations under the Convention.

Establishes a mechanism for the provision of adequate and sustainable financial resources to developing country Parties and Parties with economies in transition on a grant or concessional basis to assist in their implementation of the Convention.

Calls upon the first meeting of the COP to develop appropriate guidance to be provided to the mechanism. At its second meeting, and on a regular basis, the COP shall review the effectiveness of the mechanism. Article 14 – Interim financial arrangements

Entrusts the GEF, on an interim basis, to be the principal entity operating the financial mechanism referred to in Article 13. Non-Compliance Mechanism Article 15 – Reporting

Sets out a reporting mechanism on the implementation of the Convention. Article 16 – Effectiveness evaluation

Requests the COP to evaluate the effectiveness of the Convention. Article 17 – Non-compliance "The COP shall, as soon as practicable, develop and approve procedures and institutional mechanisms for determining non-compliance with the provisions of this Convention and for the treatment of Parties found to be in non-compliance"

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Disputes

Relevant Provision Any dispute?

Article 18 – Settlement of disputes "1. Parties shall settle any dispute between them concerning the interpretation or application of this Convention through negotiation or other peaceful means of their own choice. 2. When ratifying, accepting, approving or acceding to the Convention, or at any time thereafter, a Party that is not a regional economic integration organization may declare in a written instrument submitted to the depositary that, with respect to any dispute concerning the interpretation or application of the Convention, it recognizes one or both of the following means of dispute settlement as compulsory in relation to any Party accepting the same obligation:

(a) Arbitration in accordance with procedures to be adopted by the COP in an annex as soon as practicable; (b) Submission of the dispute to the ICJ.

3. A Party that is a regional economic integration organization may make a declaration with like effect in relation to arbitration in accordance with the procedure referred to in paragraph 2 (a). 4. A declaration made pursuant to paragraph 2 or paragraph 3 shall remain in force until it expires in accordance with its terms or until three months after written notice of its revocation has been deposited with the depositary. 5. The expiry of a declaration, a notice of revocation or a new declaration shall not in any way affect proceedings pending before an arbitral tribunal or the ICJ unless the parties to the dispute otherwise agree. 6. If the parties to a dispute have not accepted the same or any procedure pursuant to paragraph 2, and if they have not been able to settle their dispute within twelve months following notification by one party to another that a dispute exists between them, the dispute shall be submitted to a conciliation commission at the request of any party to the dispute. The conciliation commission shall render a report with recommendations. Additional procedures relating to the conciliation commission shall be included in an annex to be adopted by the COP no later than at its second meeting".

No

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Provisions for non-parties Article 3:2(b) – Measures to reduce or eliminate releases from intentional production and use "2. Each Party shall take measures to ensure: ...

(b) That a chemical listed in Annex A for which any production or use specific exemption is in effect or a chemical listed in Annex B for which any production or use specific exemption or acceptable purpose is in effect, taking into account any relevant provisions in existing international prior informed consent instruments, is exported only:

(i) For the purpose of environmentally sound disposal as set forth in paragraph 1 (d) of Article 6; (ii) To a Party which is permitted to use that chemical under Annex A or Annex B; or (iii) To a State not Party to this Convention which has provided an annual certification to the exporting Party. Such certification shall specify the intended use of the chemical and include a statement that, with respect to that chemical, the importing State is committed to:

a. Protect human health and the environment by taking the necessary measures to minimize or prevent releases; b. Comply with the provisions of paragraph 1 of Article 6; and c. Comply, where appropriate, with the provisions of paragraph 2 of Part II of Annex B.

The certification shall also include any appropriate supporting documentation, such as legislation, regulatory instruments, or administrative or policy guidelines. The exporting Party shall transmit the certification to the Secretariat within sixty days of receipt ...".

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IV. Waste Constituents Controlled by Basel Convention • Metal carbonyls • Beryllium; beryllium compounds • Hexavalent chromium compounds • Copper compounds • Zinc compounds • Arsenic; arsenic compounds • Selenium; selenium compounds • Cadmium; cadmium compounds • Antimony; antimony compounds • Tellurium ; tellurium compounds • Mercury; mercury compounds • Thallium; thallium compounds • Lead; lead compounds • Inorganic fluorine compounds excluding calcium fluoride • Inorganic cyanides • Acidic solutions or acids in solid form • Basic solutions or bases in solid form • Asbestos (dust and fibres) • Organic phosphorous compounds • Organic cyanides • Phenols; phenol compounds including chlorophenols • Ethers • Halogenated organic solvents • Organic solvents excluding halogenated solvents • Any congenor or polychlorinated dibenzo-furan • Any congenor of polychlorinates dibenzo-dioxin • Other organohalogen compounds Source: Sheehan (1996), Summarizing Basel Convention Annex I.

LIST OF CHEMICALS – ROTTERDAM CONVENTION

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229

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LIST OF CHEMICALS – STOCKHOLM CONVENTION

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LIST OF HAZARDOUS WASTES BANNED FROM IMPORT BY MOEF Table Hazardous wastes from Annex I prohibited / banned from import by the MoEF S.No1. Types of Wastes Waste Category

under HW(M&H) Rules, 1989

Prohibited for import vide MoEF Notification Dated

Waste Category Under The Basel Convention

1. Cyanide wastes 1 26.12.1196 Annex I – Y7 waste from heat treatment and tempering operations containing cyanides Annex I – Y38 (organic cyanides)

2. Mercury And Arsenicbearing wastes

4 26.12.1996 Annex I-Y29 (Mercury ; mercury compounds) Annex – I Y24 (Arsenic ; arsenic compounds)

3. Berylium * 15.4.1997 Annex I –Y20 (Beryllium ; beryllium compounds) 4. Selenium 3 15.4.1997 Annex I – Y25 (Selenium ; selenium compounds) 5. Chromium (Hexavalent) 3 15.4.1997 Annex I – Y 21( Hexavalent chromium compounds) 6. Thallium 4 15.4.1997 Annex I – Y 30 (Thallium ; thallium compounds) 7. Wastes containing

pesticides, herbicides and insecticides and intermediates / residues thereof including outdated pesticides

15 15.4.1997 Annex I – Y4 Waste from the production, formulation and use of biocides and phytopharmaceuticals

8. PolychlorinatedBiphenyl’s (PCB)

6-Halogenated hydrocarbons

13.10.1998 Annex I – Y10 waste substances and articles containing or contaminated with polychlorinates biphenyls(pcbs)

9. Polychlorinatesterphenyls (PCT)

6-Halogenated hydrocarbons

13.10.1998 Annex I –Y10 waste substances and articles containing or contaminated with polychlorinated terphenyl (pcts)

10. Polybrominates biphenyls(PBB)

6-Halogenated hydrocarbons

13.10.1998 Annex I – Y10 wastes substances and articles containing or contaminated with polybrominated biphenyls (pbbs)

11. Waste Asbestos (dustfibres)

14- Asbestos 13.10.1998 Annex I – Y36 assbestos (dust and fibres)

Source : High Powered Committee on Hazardous Waste

LIST OF BANNED AND RESTRICTED PESTICIDES

A. Pesticides Banned for manufacture, import and use (25 Nos.)

1. Aldrin 2. Benzene Hexachloride 3. Calcium Cyanide 4. Chlordane 5. Copper Acetoarsenite 6. Cibromochloropropane 7. Endrin 8. Ethyl Mercury Chloride 9. Ethyl Parathion 10. Heptachlor 11. Menazone 12. Nitrofen 13. Paraquat Dimethyl Sulphate 14. Pentachloro Nitrobenzene 15. Pentachlorophenol 16. Phenyl Mercury Acetate 17. Sodium Methane Arsonate 18. Tetradifon 19. Toxafen 20. Aldicarb 21. Chlorobenzilate 22. Dieldrine

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23. Maleic Hydrazide 24. Ethylene Dibromide 25. TCA (Trichloro acetic acid) B. Pesticide / Pesticide formulations banned for use but their manufacture is allowed for export (2

Nos.)

26. Nicotin Sulfate 27. Captafol 80% Powder C. Pesticide formulations banned for import, manufacture and use (4 Nos)

1. Methomyl 24% L 2. Methomyl 12.5% L 3. Phosphamidon 85% SL 4. Carbofuron 50% SP

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IX. PESTICIDES PRODUCED IN INDIA

S. No. PRODUCT Inst. Cap. PRODUCTION % Variation% Cap. Utilised

Mar-02 1999-00 2000-01 2001-02 2002-03 Co.7/Col6 01-02/00-01

1 2 3 4 5 6 7 8

IV PESTICIDES & INSECTICIDES A INSECTICIDES

1 D.D.T. 6,344 3,638 3,786 3,513 2,937 -16.4 46.3

2 Malathion 9,500 5,894 5,900 5,597 4,248 -24.1 44.72

3 Parathion (Methyl) 4,000 1,860 1,979 2,055 1,901 -7.49 47.53

4 Dimethoate 3,210 1,477 1,436 817 758 -10.51 23.61

5 DDVP 3,900 3,495 2,648 2,832 2,426 -14.34 62.21

6 Quinalphos 5,600 2,218 2,649 2,059 1,770 -14.04 31.61

7 Monocrotophos 16,200 9,522 8,319 6,706 6,519 -2.79 40.24

8 Phospluunidon 5,700 3,234 3,470 534 832 56.37 14.65

9 Phorate 7,500 6,140 6,101 4,717 3,156 -33.09 42.08

10 Ethion 5,100 3,383 3,456 3,838 1,246 -67.54 24.43

11 Endosulphan 10,100 8,287 8,508 4,489 3,663 -18.4 36.27

12 Fenvalarate 2,100 1,394 1,632 1,070 522 -51.21 24.86

13 Cypermethrin 4,600 3,714 4,438 5,064 5,078 0.28 110.39

14 Anilophos 1,200 900 848 596 354 -40.6 29.5

15 Acephate 4,800 2,884 3,109 4,012 4,837 20.56 100.77

16 Chlorpyriphos 10,300 7,513 8,033 6,621 6,313 -4.65 61.29

17 Phosalone 1,000 514 582 440 438 -0.45 43.8

18 Metasystox @ 744 583 660 513 -22.27 19 Abate @ 185 265 67 45 -32.84 20 Fenthion @ 155 189 69 352 410.14 21 Trizaphos @ 845 847 1,512 1,151 -23.88 22 Lindane 1,300 1,107 483 266 331 24.44 25.46

23 Temphos 200 6 176 142 122 -14.08 61

24 Deltamethrin 300 104 124 97 184 89.69 61.33

25 Alphamethrin 400 361 115 303 194 -35.97 48.5

TOTAL 103,354 68,571 69,703 58,106 49,893 -14.13 48.27

B. FUNGICIDES

26 Captain & Captafol 1,800 1,125 1,383 1,177 782 -33.56 43.44

27 Carbandazim 1,085 900 108 670 1,263 88.51 116.41

28 Calixn 200 35 678 61 33 -15.9 16.5

29 Mancozeb 11,000 10,323 9,889 11,628 10,188 -12.38 92.62

TOTAL 14,085 12,383 12,058 13,536 12,266 -9.38 87.09

C. HERBICIDES 31 2,4-D 2,900 1,348 1,290 202 0 -100 0

32 Butachler 900 706 224 309 244 -21.04 27.11

TOTAL 3,800 2,054 1,514 511 244 -52.25 6.24

D. WEEDICIDES

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33 Isoproturon 8,500 4,610 3,752 3,779 2,657 -29.69 31.26

34 Glyphosphate 1,950 1,676 674 409 107 -73.84 5.49

35 Paraquat 2,000 1,374 1,239 1,000 0 -100 0

36 Diuron 0 0 24 0 48 37 Afrazin 40 128 100 203 200 -1.48 500

38 Fluchlorine 300 154 50 133 185 39.4 61.67

TOTAL 12,790 7,942 5,839 5,524 3,197 -42.13 25

E. RODENTICIDES

39 Zinc Phosphide 860 474 592 338 235 -30.47 27.33

40 Aluminium Phosphide 2,300 1,842 2,461 2,184 1,991 -8.84 86.57

TOTAL 3,160 2,316 3,053 2,522 2,226 -11.74 70.44

F. FUMIGANTS

41. Methyle bromide 300 100 63 41 56 36.59 18.67

42. Dicofol 150 124 106 109 90 -17.43 60

TOTAL 450 224 169 150 146 -2.67 32.44

GRAND TOTAL OF

PESTICIDES 137,639 93,709 92,336 80,301 67,400 -16.07 48.97 Source : http://www.pmfai.org/stats3.htm

BIBLIOGRAPHY A.WEBSITES http://www.ban.org/country_status.html This Website provides a country-wise listing of the waste trade ban agreements. Also provides a table wise listing of countries, which have ratified the convention. Other information available in the Website are about the Basel Ban, the Basel Convention, Basel Convention meetings, highlights of the Basel Ban and country status. http://www.basel.int/pub/nation-report.html This website provides a compilation on the reporting and transmission of information under the Basel convention from the year 1997-1999. http://www.ban.org/Library/waste-26.html This Website provides information on the Basel Convention, in the context of United States which played a major role in developing the 1989 United Nations-sponsored Basel Convention on the Control of the Transboundry Movement of Hazardous Wastes and their Disposal, a key purpose of which is to protect countries from receiving unwanted shipments of wastes. The Convention entered into force in 1992, and by mid-1998, 121 countries (but not the United

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States) had ratified it. In 1991, the Bush Administration transmitted the Convention to the Senate for advice and consent to ratification aid offered implementing legislation. The Senate consented to ratification in 1992; however, implementing legislation has not been enacted. (Although existing U.S. law regulates hazardous waste, exports, it covers fewer wastes and imposes fewer controls than does the Basel Convention.) In 1995, Basel Parties adopted an amendment to ban the export of hazardous wastes from highly industrialized countries to all other countries. The pending ban, in combination with the uncertainty about which recyclable wastes would be covered by it, caused U.S. interest in Basel ratification to decline. In February 1998, however, Basel Parties resolved the issue of which recyclable wastes are exempt from the Convention. Consequently, Congressional committees in the 105th Congress again expressed interested in taking up implementing legislation, but waited to hear the Administration's views on implementation. The Administration has stated that it will provide a legislative proposal during the first session of the 106th Congress. This report will be updated to reflect developments. http://www.pic.int/en/print_it.asp?id=392 This website provides a discussion on the Rotterdam Convention. Starts with an introduction to the Rotterdam Convention discusses about the developments of the Rotterdam Convention. http://www.basel.int/pub/basics.html This Website provides information on the origin of the convention, the present scenario, the goal of minimizing the Hazardous waste, overview of compliance and enforcement, national reporting of Hazardous wastes, technical assistance offered by the Convention, training provided in the management and minimization of Hazardous wastes and concludes with the FAQs on the Basel Convention. http://www.pic.int/en/viewpage.asp?id_cat=72&mTitre=CHEMICALS This website provides a discussion on the Article 2 of the Rotterdam Convention on Chemicals, Banned Chemicals, Severely restricted chemicals and severely hazardous pesticide formulation. http://www.pic.int/PagesUP/SignaturesRatifications_EN.html This Website provides general information on the Rotterdam Convention. Also provides a listing of participants of the Convention with details on the signatures, acceptance, approval and accession by the countries. THE BASEL CONVENTION OF N 1989 – A DEVELOPING COUNTRY’S PERSPECTIVE http://www.libertyindia.org/pdfs/basel_convention_srinivasan.pdf This study discusses about the Basel Convention in the Indian Context. The paper examines whether

• The functioning of the Convention is consistent with practices of such multi-lateral fora

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• the actions pursuant to the Convention agreements have worked towards its objectives • the measures and actions of the Convention are consistent with the principles of free trade

and economic development, as practiced under the World Trade Organization (WTO) • whether the Convention has worked towards a secular development of environment

related practices and technologies amongst its member Countries. JOURNAL ARTICLES Jonathan Krueger, Prior Informed Consent and the Basel Convention: The Hazards of What isn’t known, Journal of Environment and Development, Vol.7.No.2, June 1998. The international agreement to regulate hazardous waste trading, the Basel Convention, has relied on the procedure of Prior Informed Consent (PIC) to ensure that human health and the environment are protected. As the debate over banning such trade continues, and as a new agreement using PIC for the trade in hazardous chemicals is being negotiated, it is useful to ask how effective the PIC mechanism has been. This article outlines how PIC functions in theory and in practice, and examines data on the notification and response rates of hazardous waste trade proposal. After outlining the experiences and drawbacks of the PIC mechanism for hazardous wastes, several lessons regarding the use of PIC for hazardous chemicals are suggested. Kate O’Nell, Out of Backyard: The Problems of Hazardous Waste Management at a Global Level, Journal of Environment and Development, Vol.7, No.2, June 1998. This article explores recent developments in the regulation of the international hazardous waste trade. It begins with the move in recent years towards banning the North-South waste trade and shows how this ban reflects a particular specification of the waste trade, as a transboundary environmental issue whereby domestic waste management problems are seen as issues of sovereign national responsibility. It examines another way of formulating the waste trade: as a symptom of more fundamental problems afflicting waste management sectors in most industalized countries. Without taking this perspective into account, the ban on the waste trade is likely to fail. The final section is more optimistic, examining how certain countries like Britain, France, Germany and Australia are formulating policy change in ways likely to have an impact on the waste trade, drawing conclusions about how the role of international authorities might be revised in the light of these developments. Principles and Approaches of Sustainable Development and Chemicals Management for a Strategic Approach to International Chemicals Management (SAICM) Prepared by Glenn M. Wiser and Daniel B. Magraw, Jr., Centre for International Environmental Law (CIEL), July 2005.

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This study identifies the 15 principles and approaches that the authors believe have the most direct relevance to the SAICM. For each principle and approach, the study provides its description and main elements, its origin and application in selected chemicals and wastes instruments and policies, and its possible relevance to the SAICM. The study includes the Integrated Chemicals Management (ICM), Inter-generational equity, precaution, proportionality, life-cycle approach, prevention, substitution, internalization of costs, public participation, right to know, confidential business information, good governance, cooperation among states, partnership and liability principle. Boralkar D.B and Dilip Biswas, Implications of the Basel Convention in Indian context, Presented at the International Conference on Hazardous Waste Management, Centre for Environmental Studies, Anna University, January 27-28, 2000. Hazardous wastes belong to the category of special wastes having constituents of chemicals. Metals and other compounds, which can cause environmental pollution. In order to regulate and ensure environmentally sound management of the hazardous wastes, the Government of India notified the Hazardous Wastes (Management and Handling) Rules, 1989 under the Environment (Protection) Act, 1986.The Government of India has ratified the Basel Convention on the control of transboundary movement of hazardous wastes and their disposal (under the aegis of UNEP). Provisions and certain decisions of the Basel Convention will have to be harmonized within the domestic legislation according to the India’s commitment to the Convention. These will have implications on the Indian industry and environment. The issues and options available for India, within the framework of the Convention, have been discussed in this paper. Katharina Kummer, The International Regulation of Transboundary Traffic in Hazardous Wastes: The 1989 Basel Convention, The International and Comparative Law Quarterly, Vol.41, No.3 (Jul., 1992), 530-562. This article provides a discussion on the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. The article lays emphasis on the necessity of a comprehensive regulatory system extending to every sphere and including control of the source of the detrimental effects. Also provides a discussion on the general obligations of the Basel Convention, the nature of the obligations, the scope of the Basel Convention, the institutional and financial mechanism of the convention, the compliance monitoring and settlements of disputes. The article ends with an assessment of the Basel Convention. Jonathan Krueger (2002), “ The Basel Convention and the International Trade in Hazardous Wastes “ in The Yearbook of International Cooperation on Environment and Development 2001/02.

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This article summarizes the background, issues and impact of the Basel Convention .It contains a good discussion on the Problems of Compatibility with the WTO. It concludes with a brief discussion on the future of The Convention in the Twenty first century. Anne Platt McGinin (2000), “Phasing Out Persistent Organic Pollutants “, in State of the World 2000, Washington, D.C. Worldwatch Institute. Although written prior to the Stockholm Convention, it as an excellent review of the environment, health, and policy issues related to the persistent organic pollutants (POPs). Peter L. Lallas (2001), “ The Stockholm Convention on Persistent Organic Pollutants “, The American Journal of International Law, Vol 95, No.3, pp 692 – 708. A review of the background and provisions of the Stockholm Convention. There is a discussion of the trade measures, obligations, implementation plans, and funding and technical assistance provisions in the Convention. The Author is a Senior Attorney with the U.S Environmental Protection Agency. Claudia Saladin and Brewman Van Dyke (1999) “International Trading Rules and the POPs Convention”, Washington, D.C. Centre for International Environmental Law. The article anticipates the potential conflict of trading rules and a future POPs convention. One of the issues was the “WTO Supremacy Clause” which was subsequently dropped in the Stockholm Convention. The Convention has a more neutral wording that “Agreements in the field of trade and environment are mutually supportive”. C. BOOKS 1. Centre for Science and Environment (2001), Global Environment Negotiations: Vol I and II, New Delhi. Vol II is particularly useful to gain an understanding of the Chemical Conventions. Chapter 2 and 3 discuss the background and history of the Basel and Rotterdam Conventions, and chapter 4 is the update section is an account of the Stockholm Convention. There are also extensive references, which are useful.

2. Toxics Link (2000), Pesticides in India: Environment and Health Sourcebook, New Delhi.

This is a Compendium /Sourcebook containing valuable data on the production, use and impact

of pesticides in India. It also contains a dictionary of institutions working on pesticides research

in India.

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3. Jonathan Krueger (1999) International Trade and the Basel Convention, London : Earthscan Publications . 4. Katharina Kummer (1995) International Management of Hazardous Wastes , New York : Oxford University Press. 5. Peter Hough (1998) The Global Politics of Pesticides : Forging Consensus for Conflicting Interests, London : Earthscan Publications. 6. Persistent Organic Pollutants and the Stockholm Convention: A Resource Guide Prepared by Resource Futures International for the World Bank and CIDA, September 2001.

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